Articles / State of the Nation / 2008 - 2012
State of the Nation
Our Canadian Republic
(This essay was first published in The Literary Review of Canada, October 2008.)
The People’s House of Commons: Theories of Democracy in Contention by David E. Smith. Toronto: University of Toronto Press, 2007. xii, 217 pp. paperback. ISBN 978-0-8020-9465-0
Our Republican Constitution by Adam Tomkins. Oxford, U.K. and Portland, USA: Hart Publishing, 2005. xii, 156 pp. paperback. ISBN 1-84113-522-4)
When I met a group of Australian visitors to Canada recently, they observed that Canada has long flown its own distinctive national flag. Why then, they asked, has Canada not had a national debate on becoming a republic? Australia still uses one of those variants on the Union Jack, but it held a referendum on the monarchy almost a decade ago. True, referenda being what they are, an abolitionist consensus managed to sustain the monarchy in every single Australian state, but still….
I ventured the idea that Canada has been too preoccupied with substantial constitutional wrangles separation, federalism, an entrenched bill of rights to become very much engaged with the fate of Elizabeth II and her progeny. But I might instead have recommended to them a recent essay on the British constitution by the young British scholar Adam Tomkins, professor of public law at the University of Glasgow. Tomkins proudly declares himself a republican, but he advises British constitutional reformers not to pay much attention to the queen. “The narrow question of who should be the head of state” is just not that important.
The good health of our constitutional order, Tomkins insists, hardly depends on “the head of state issue.” He thinks we should all be republicans by now, but he dismisses obsession with the monarchy as “a depressingly thin, diluted account of what the republican alternative has to offer.” The task he recommends, the subject of his essay Our Republican Constitution, is for Britons to pursue the real and serious issues posed by a republican analysis of parliamentary democracy. Monarchy may be the least of the problems.
Britons are republicans? Not, Tomkins hastens to say, George Bush Republicans. Nor IRA republicans. Nor even division-of-powers written-constitution republicans, or even anti-monarchists, necessarily. Tomkins takes us back to the Latin root. Britain’s constitutional order, he declares, is a res publica, a public thing. Republicanism requires popular sovereignty, and popular sovereignty is achieved when the government is constantly accountable to a parliament representing the people, through which the people are able “to contest the doings of government” as Philip Petit puts it. This is not just republican, according to Tomkins. “This is beautiful,” and for two reasons: “because it is democratic” and “because it can actually work.”
Tomkins celebrates the republican principle as expressed in British-style parliamentary democracy as “more suitable and more effective” at defending and implementing popular sovereignty than either the American or European versions of republicanism, and he attacks the fashionable view that we can rely on to courts to restrain governments. He is, in other words, that rare species: a passionate advocate for the parliamentary system. He admits from the start that support for British-style parliamentary democracy is a minority view, now generally associated with complacent Victorian superiority. “We just do not seem to like our constitution very much any more,” Tomkins writes. “In the past thirty years, the British constitution has taken a real beating.”
The Canadian constitution has been taking a beating too. “There was a time when the Parliament at Westminster and its Dominion progeny were celebrated…. Today, Parliamentary government, in Canada and Great Britain, is scorned,” is how David E. Smith, the distinguished Saskatchewan political scientist, begins The People’s House of Commons, his Donner Prize winning essay on the state of parliamentary government in Canada. Since Adam Tomkins has almost nothing to say about the Canadian parliamentary situation and David Smith has a great deal, let’s look at Smith on parliamentary institutions in Canada before taking up Tomkins’s case that we already have in principle the best constitution in the world and need only to apply properly republican values in order to make it fulfill its promise.
Parliament is “scorned” in Canada, David Smith argues, because it has failed “to accommodate in existing constitutional structures attitudes that no longer presume Parliament’s predominance.” Anti-parliamentary attitudes come in two forms, he says. He calls them “constitutional democracy,” which means judicial review of political decision-making, and “electoral democracy,” meaning initiatives, referenda, recall, and all the other techniques of direct rather than representative democracy the full Manning, in effect.
On constitutional democracy, Smith counsels calm. He concludes that we have already accommodated the courts within Canadian democracy. We have always had judicial review, he notes: the British North America Act was litigated from the start, though mostly on federal-provincial issues. The addition of the charter in 1982 greatly extended judicial power to review and revise parliamentary acts, but Smith is not persuaded by the extensive literature that decries the pernicious influence of unelected judges. Mostly Smith is confident that the courts’ new role, given by parliament in the first place, accommodates itself easily into traditional parliamentary democracy. Constitutional democracy “revalues rather than devalues” parliamentary democracy and “intensifies rather than depreciates parliamentary democratic government, ”Smith writes. “It is the role of the court to reinforce values already alive that are central to parliamentary democratic government.”
Smith is more alarmed about the impact of “electoral” or direct democracy. He acknowledges in his title the need for a “People’s” House of Commons, and he agrees that Canadians no longer accept a traditional understanding of parliamentary democracy, which he believes to have been rooted in deference and hierarchy. But he criticizes proposals for electoral democracy as impractical and negative. Changes on the lines of Preston Manning’s Reform Party proposals of the 1990s -- which Smith argues were intended to “unite” the people and parliament and also to separate parliament from the government -- would add uncertainty, make the House weaker, undermine the primacy of the Commons, and “enervate the people’s house.”
Smith wants active representation from an empowered parliament. But at the same time he asserts that parliamentary democracy requires a deferential, hierarchical population. Canada has always had a populist tradition, but the current assault on deference and hierarchy, he says, is “qualitatively different from past experience.” For Smith, representative democracy cannot survive without deference. Canadians’ new rejection of deference, he argues, is part of a “hostility to Parliament that goes beyond mere anti-partisanship.”
The Canadian parliament imagined by David Smith turns out to be radically different from Adam Tomkins’s British parliament. Tomkins evokes parliament as a republican forum rooted in the sovereignty of the people. Smith recognizes that Canadians today insist on the primacy of the people, but he tells us popular sovereignty is a non-starter. In The People’s House of Commons, he repeats over and over that Canadian government is not the people’s government. In Canada in the twenty-first century, he tells us, “authority comes from the crown… not from the people.” He declares that “sovereignty in Canada rests in the crown and not the people,” that “the heart of the constitution… is monarchy,” that we live under a “monarchical constitution that makes no provision for the people,” and that “there is no basis for popular constituent power.” In The People’s House of Commons, we the Canadian people seem not to exist, constitutionally speaking. Smith declares popular sovereignty incompatible with parliamentary government.
After this, what a relief for a Canadian and a democrat to return to Adam Tomkins’s republican vision. Frankly, David Smith undermines not just our motive for defending parliamentary democracy, but our reasons for being Canadian citizens at all. Subjects of the Queen? Seriously? Hell, if that’s the case, Preston Manning wasn’t half radical enough. Canadians will not, do not, and should not accept a constitutional order in which subjection to the Crown is anything more than a ritual formula devoid of significance. Canadians’ “scorn” for the kind of constitution David Smith describes is no failure of “deference,” but robust healthy citizenship, the natural reaction of any politically-aware Canadian.
For anyone who values both parliamentary democracy and popular sovereignty, Adam Tomkins offers reassurance. Tomkins’s assertion that all the “rules of the British constitution are reflective of, indeed based upon, the republican principle of popular sovereignty” applies as much to Canada as to Britain. Clearly we badly need an account of Canadian political practice rooted in this kind of understanding of popular sovereignty, but in the meantime, Tomkins’s examination of British constitutional practice offers clues to where Canadian democrats need to go.
What is Tomkins’s evidence that Britain’s parliamentary constitution, far from being some medieval holdover based on monarchical authority and deferential subjects, is a robust form of democracy? In a provocative survey of British constitutional history and philosophy, he reviews how it became established that a British monarch who subverts the will of the people as expressed by parliament commits treason and will be held accountable, not by the courts but by parliament. Of the last two kings to attempt such a thing, he shows, parliament tried, convicted, and executed Charles I and deposed James II. It is deeply engrained in British constitutional history that the crown should be bound as much as any other citizen by the will of parliament.
Canadians should have the same confidence about our own constitution. Canadians have not put a crowned head on a spike, but as long ago as 1849 a thoroughly undeferential Canadian parliament told a governor general that no matter how much he might dislike the Rebellion Losses Bill (which provided property-loss compensation to rebels as well as to loyalists), it was too damned bad, he had to sign it. Loyalists rioted in the streets and burned the legislative building in Montreal, but the governor general acknowledged legislative sovereignty and signed. Since well before Confederation, in other words, the Canadian head of state has been accountable to the Canadian parliament. The right of the Canadian people to determine their own constitution was then and remains now the basis of our constitutional order. Monarchical formulas survive in both countries, but what Tomkins identifies as the republican order is as secure here as in Britain.
Adam Tomkins is not out merely to defend the constitutional status quo by the ancient orthodoxies of Whig history. A constitution can simultaneously hold republican and monarchical elements, he says, and most of the anti-democratic failings he finds in British government today come from the lingering influence of monarchical principles. The urgent republican agenda, Tomkins argues, is to remove those lingering monarchical and anti-democratic elements that have survived to the detriment of full parliamentary accountability. Tomkins recommends several steps to reform parliamentary democracy in Britain. One is, yes, abolition of the monarchy. Others include the abolition of all forms of crown prerogative and a radical commitment to open government and freedom of information. None involves rights charters or judicial review. (“To move away from a political constitution and toward a legal one is a mistake.”) But from the Canadian perspective, Tomkins’s most interesting target for “republican” scrutiny is party discipline, or what he calls “the problem of party.”
David Smith too is vividly aware that the impotence of backbenchers and the four-year dictatorships of majority prime ministers have undermined Canadians’ faith in the parliamentary system. But Smith defends party discipline as “the essence of parliamentary democracy,” indispensable to the functioning of parliament. Smith implies Canadian proposals to reduce party discipline are rooted in our inability to understand how parliamentary democracy really works. MPs with independent authority are “unimaginable.”
Tomkins can imagine them. Parliamentarians, he declares, must not “allow loyalty to party to obscure or even to obstruct loyalty to Parliament’s constitutional function of holding the government to account.” He therefore proposes, not some mealy-mouthed nostrums about party leaders allowing more “free” votes on insignificant matters, but “the removal of party and of party loyalty from the workings of Parliament.”
Tomkins employs both principles and examples to build his bold case for the pernicious impact of political parties. The principles of parliamentary democracy, he argues, require members of parliament to be able to wield independent authority. When MPs allow parliament to be reduced to monolithic blocs, it is parliamentary accountability itself that they destroy, because a real parliament has two historic functions. One is to put together a government sustained by a coherent majority -- and for that party solidarity is useful and important. But the other vital obligation upon Parliament is that it hold government to account. The familiar confrontation between government and opposition, Tomkins urges, cannot be allowed to obscure the other essential dynamic, the one “between Crown and Parliament, between front bench and back, or between minister and parliamentarian.”
For observers steeped in Canadian parliamentary practice, where party leaders summarily eject from influence and probably from the House itself any MPs who show any hint of disloyalty by either voice or vote, Adam Tomkins’s image of a dynamic relationship between ministers and backbenchers must be almost incomprehensible. Yet Tomkins is at pains to demonstrate that dynamic at work in contemporary Britain. This law professor, scathingly sarcastic about the repeated and almost inevitable failures of British courts and British laws to restrain unconstitutional actions by British governments, offers vivid accounts of British MPs who regularly put their parliamentary authority ahead of their party loyalties to negotiate important changes to laws proposed by headstrong governments.
Tomkins cites the British anti-terrorism law passed in the wake of September 11, 2001. He thinks it is terrible legislation, brutal and nasty and rushed through by a majority government in a climate of panic. But he notes that, even under those circumstances, parliament sought independent testimony on the matter, formed independent judgments, and imposed significant changes on the bill the government wanted. He then describes how Prime Minister Blair’s decision to involve Britain into the Iraq war in 2003 was opposed in parliament by scores of his own backbenchers, who forced a parliamentary vote on the decision and voted against it. Labour backbenchers also secured changes to fundamental aspects of Blair’s health and education policies by threatening to withdraw their support. (Even after that, the bills got barely enough Labour votes to scrape through the house, despite a Labour majority of over 160 seats.) Tomkins argues that such displays of parliamentary independence show that even though Britain’s parliament is hardly what he would want it to be, it can still provide the “political accountability and contestatory democracy” that republican democracy requires.
If British backbenchers and parliamentary committees can negotiate with governments, why can’t it happen here? Tomkins, who would like the independence of British MPs to increase radically, has nothing to say about their ineffectual Canadian counterparts. Smith acknowledges the difference in British practice, but explains it away by noting that the British house is larger and its MPs have safer seats and longer careers. These hardly seem like compelling explanations for the frequent mass defections of British MPs, not on trivial matters but on crucial issues of policy.
In fact, there is one profound structural difference in the situations of British and Canadian MPs. In Britain, as in almost every parliamentary democracy in the world except Canada, MPs hire and fire their party leaders. Party leaders are caucus members, subject to caucus pressures rather like any other member and constantly under threat of removal if substantial factions of MPs lose faith in their leadership or reject their policies. In recent years British parties have begun to drift toward the Canadian example, but it is that underlying power over the survival of the leader (and the naming of a new one) that has given British MPs, and particularly blocs of MPs, the authority to negotiate the terms of their support for their own party’s actions and to maintain the dynamic tension between government and backbench.
In Canada, party leaders have no such accountability. Stephen Harper and Stéphane Dion are party leaders not because any MP or bloc of MPs supports them, but because their supporters across the country purchased more votes (“memberships”) than those of rival candidates in extra-parliamentary leadership contests. In Canada we take it as given that a leadership process based on the buying and selling of thousands of party memberships is “democratic.” But as long as our party leaders are selected by extra-parliamentary processes, they are not accountable to their own caucuses, and it will be impossible for MPs to hold them to account or for government backbenchers to bargain with ministers over legislation and policy. A key mechanism underlying the accountability of government to parliament is lost.
The constitutional implications of leadership processes and their role in undermining parliament never come up in David Smith’s synthesis of current Canadian thought about parliamentary government, and it seems safe to say they simply are not on the agenda of political thought in Canada. But if Adam Tomkins is right that political accountability is vital and parliament is the forum that must provide it, a process that allows parliament to be held hostage to extra-parliamentary forces is not just undemocratic but anti-democratic. If elected representatives cannot influence their own leaders, the whole edifice of popular sovereignty crumbles.
Adam Tomkins declares that political control of government, achieved through parliamentary democracy on the republican, popular-sovereignty model, is beautiful. How urgently do we need such a republican re-imagining of Canadian constitutional practice? When the October 2008 federal election was called, sober, sensible commentators argued that Governor General Michaelle Jean should, on her own initiative, refuse to grant the dissolution Prime Minister Harper sought. (Adam Tomkins would not be surprised that a law intended to put a bridle on government once again proved ineffectual.) One can sympathize with their desperate wish for something to thwart a prime minister’s manipulation of crown prerogative for partisan advantage. But four hundred years of experience should have established that the crown cannot be permitted to take independent measures, ever. A republican understanding of the Canadian constitution would suggest that the decision rested squarely with parliament. If parliament did not want an election, all it needed to do was withdraw confidence from the government and indicate there was an alternate government which it was prepared to support. But Canadian MPs are unlikely to act unless Canadians tell them we expect them to. David Smith’s study does not give much hope that that day is coming soon.
©Christopher Moore Editorial Ltd 2008
The Calamity of Caledonia
(First published in the Literary Review of Canada, April 2010)
Can Ontario take the confrontation at Douglas Creek Estates seriously?
No one, I think, denies the seriousness of the armed confrontation outside Caledonia in the Grand River valley of southern Ontario. For four years armed gunmen known as the Mohawk Warriors have occupied a ten-house real estate development on the edge of the reserve of the Six Nations of the Grand River, southwest of Hamilton. In April 2006, Ontario Provincial Police sent to carry out a court order for the Warriors’ expulsion were driven back, with the gunmen supported by an estimated 1,000 demonstrators from the reserve. The armed standoff has continued ever since, with the constant threat that either miscalculation or provocation will lead to an explosion of gunfire and death. Throughout these years, the confrontation has been destroying homes, ruining businesses, and generally blighting lives and prospects on both sides of the barricades.
The costs are serious too. The government of Ontario alone has spent about $65 million, mostly for policing—without, many residents would say, providing any real security. The federal government paid the developers of Douglas Creek Estates some $12 million for the land in question, without affecting the confrontation at all.
But this is a land claim—or what we call a purported or alleged land claim, as if “claim” were not tenuous enough. Those sorts of things are not supposed to happen in southern Ontario. Aboriginal land claims may happen in the Arctic or northern British Columbia, but this is southern Ontario, a place of suburban sprawl, intensive agriculture and industrial zones. Wasn’t that land title stuff put behind us, like, 200 years ago or something? Ontario is not likely to take seriously a gunfight over land claims if it cannot contemplate the idea of aboriginal rights in the heartland of the country.
Journalist Christie Blatchford has been trying to take seriously at least the gunfight part of the confrontation. In a long series of articles in The Globe and Mail that ran to some 20,000 words in late 2009 and early 2010, she applied her trademark empathy to the loss and pain experienced by one family trapped by the confrontation. Their sufferings are real and moving: physical danger, loss of home, loss of work, crippling stress, substance abuse, family breakdown and, along with all those, a furious rage, shared and powerfully expressed by Blatchford in every article, at the way the government of Ontario has actually impeded the family’s efforts at redress against the occupation, whether from the police or through the courts. Blatchford calls their story a “horror show that was visited upon an ordinary Canadian couple with the blessing of the state.”
Horror story is an apt summary of Blatchford’s account. No Six Nations Reserve residents, indeed no aboriginal people at all, appear anywhere in her thousands of words except looming over a gunsight. Blatchford has picked up unerringly on the mood of Ontario. She finds it so difficult to conceive that the Six Nations might have a grievance that they simply do not exist in her narrative. This is a horror story of a kind familiar in pop culture. At Caledonia, Blatchford finds herself writing about the innocent people of a small town menaced by foes who are implacable but impersonal, who do not live by the same rules as normal, living society. Given the sheer unreality of aboriginal land claims to Ontarians, Blatchford writes the Caledonia standoff as a zombie movie. The Six Nations get to be the undead.
Is there another way to conceive this? We may not like it in Ontario, but there is a history here, and it is not surprising that we flinch from it. It is not a happy story.
The Six Nations settled the Grand River valley in 1784. It is frequently said King George III bestowed the lands on them as a reward for their loyalty in the American Revolutionary War, but the Six Nations were always independent allies, not subjects. As a tough-minded soldier of the king said about that time, “one who would call the Six Nations our subjects needs a good army at his back.” At the end of the war, the British government acknowledged Six Nations’ title to the lands, ten kilometres deep on either side, along the full length of southern Ontario’s Grand River “which them and their posterity are to enjoy forever.” The government of Upper Canada confirmed the agreement in 1793, guaranteeing the Six Nations “the full and entire possession, use, benefit and advantage of the said district or territory, to be held and enjoyed by them in the most free and ample manner.”
This was no postage-stamp reserve. From the resort shores of Lake Erie, past Wayne Gretzky’s childhood home in Brantford and the home of the BlackBerry in Kitchener-Waterloo’s technology triangle, through the scenic Elora Gorge, and across rich agricultural lands almost as far as Georgian Bay, the lands that the Six Nations were to enjoy forever constitute a substantial chunk of the very best land in southern Ontario. It is crossed by freeways, railroads and power corridors and is home to hundreds of thousands of non-Native Canadian citizens as well as the largest single aboriginal community in Canada.
In 1784 the Six Nations territory on the Grand amounted to almost 400,000 hectares. Today the Six Nations hold less than 20,000 hectares of their original territory, and it takes a strong stomach to contemplate what happened to the other 380,000. The Six Nations never built a wall around their territory, and from the start their leaders contemplated non-Native settlement and shared development on their land. Instead, they faced tidal waves of squatters pouring in, and Crown officers who used the squatters to “prove” that the only solution was for the Six Nations to abandon most of their territory. An endless sequence of Crown officials redefined into meaninglessness the commitments of 1784 and 1793, and Crown courts repeatedly sustained them. Development projects that enticed yet more squatters destroyed aboriginal fisheries and farmlands, but were paid for with “Indian monies” that never seemed to be returned to its supposed beneficiaries. Revenues the Crown raised from “Indian lands” that had been appropriated for non-Native use vanished into the public treasury. Even on the lands remaining to them, the Six Nations were unable to maintain their rights. Provincial fish and game laws overrode the treaties, and entitlements guaranteed by treaty and deed were dismissed. “Indians are subjects in the same way as others. There are no troublesome subtleties in Canadian law,” declared an Ontario judge dismissing Six Nations’ rights in 1921.
This history is well documented. Look dispassionately at the history of the Six Nations lands, and what leaps into question is not the ten-house development project at Douglas Creek Estates that forms about one ten-thousandth of the original Six Nations territory. What really demands scrutiny is the legitimacy of Crown title to that huge chunk of southern Ontario, the Six Nations’ lost 380,000 hectares.
But even as I write these paragraphs, I can sense irritation and dismissal rising in Ontario readers. How can this story from centuries ago have any power in today’s Ontario? Is every non-Native person and enterprise in the whole Grand River valley somehow going to be uprooted and removed? What happened there a very long time ago may not have been nice, but it happened. It is done. Surely it is impossible and self-defeating to revisit these ancient obligations and ancient repudiations of them.
They used to say that in British Columbia, too.
Let Right Be Done is a recent collection of scholarly legal studies edited by Hamar Foster, Heather Raven and Jeremy Webber and inspired by the 30th anniversary of a 1973 Supreme Court of Canada decision known as the Calder case. Unusually for a scholarly volume, Let Right Be Done includes a long conversation recorded in 2003 with the case’s namesake, Frank Calder, politician, hereditary Nisga’a chief and lead plaintiff in Calder et al. v. Attorney General of British Columbia.
Frank Calder, whose gift for narrative comes through even in this transcript of an impromptu conversation, genially recounts the many decades during which the Nisga’a of the Nass River valley in British Columbia asserted their title to their ancestral lands. The Nisga’a problem was not with a broken treaty, but with the absence of a treaty. Since the 1880s, British Columbia had been asserting authority over the Nass Valley and Nisga’a leaders had been denying their right to do so. If there had been no treaty and no land surrender, the Nisga’a asserted, how could they not control their own land? In the 1920s, with the Nisga’a case about to reach the courts, Canada enacted legislation to forestall the litigation of any aboriginal land claims. It was not until the 1960s, after the law’s repeal, that the grandchildren of the original leaders were able to challenge British Columbia’s claim to the Nisga’a traditional territory in the Calder case.
In the interview, Frank Calder describes how fellow aboriginal leaders urged the Nisga’a not to take their case to Canada’s courts, fearing that if they lost, Native people all over Canada would be worse off than before. It is worth recalling how unlikely a successful legal assertion of aboriginal title must have seemed. In 1969 Pierre Trudeau’s government issued a White Paper that dismissed the whole idea of treaty obligations and aboriginal rights and began laying the groundwork for their wholesale extinguishment. Quebec was about to begin developing its James Bay hydro resources without any significant attention to the rights or interests of the aboriginal nations in the lands to be developed. There had not been a new land treaty in Canada since the early years of the 20th century, and most of the existing ones were observed just about as much as Canadian governments and Indian agents cared to observe them.
In its 1973 Calder decision, however, the Supreme Court of Canada saw logic in the Nisga’a position. It acknowledged the common law precedents and British imperial policies (often breached, but still…) that affirmed that aboriginal land could only pass to settlers through a treaty between the Crown and the aboriginal owners. There were no treaties in most of British Columbia. Then British Columbia’s claims—to the Nisga’a lands, but logically to most of the rest of British Columbia as well—lacked legal foundation.
Calder had a profound impact. The ideas of the 1969 White Paper were themselves extinguished, and almost immediately the federal government announced it would fulfill treaties where they existed and negotiate new ones where they did not. Comprehensive treaties and self-government agreements began to be reached across the North; one might say Nunavut is one of the fruits of Calder. The Calder decision along with other cases from the North and Quebec led to Quebec’s (and Canada’s) James Bay Agreement, negotiated between 1973 and 1975, which now underpins both the vast hydroelectric development of that region and the self-government of the Cree-Naskapi.
Calder’s impact was at first not very visible in British Columbia. British Columbia was then in a situation similar to Ontario today. It was hardly possible to take seriously the idea that land might actually belong to aboriginal people long marginalized on what small reserves the governments had deigned to provide them. For years, British Columbia essentially ignored Calder, and indeed it is unlikely any British Columbia government could have made a wide-ranging acknowledgement of aboriginal title and survived in office. As late as 1997, when another land claims decision, Delgamuukw, affirmed the impossibility of extinguishing aboriginal title without a clear record of doing so, politician and commentator Gordon Gibson called the Supreme Court decision “invented law.” The popular Vancouver Sun columnist Trevor Lautens suggested the province should end this distraction simply by legislating aboriginal title out of existence.1
But the court decisions continued to arrive, binding the province ever more tightly and gradually acclimatizing both the government and the citizenry to the idea that aboriginal title could not be avoided. In 1984, a B.C. judicial decision affirmed that where treaties existed, they had to be considered “in the sense in which they would naturally be understood by Indians,” not simply for the convenience of government departments. In 1986, 13 years after Calder, the highest court in British Columbia had to explain to the provincial government that Calder really was the law and it was “a fallacy” for the province to believe it could go on ignoring it. In that same year came a further wake-up call: another British Columbia judgement found that in the absence of treaties, the province could not assume it was free to authorize mining, logging and other economic activities.
Gradually, all the decisions since Calder began to be reflected in land and treaty policy in British Columbia. As recently as 2002, the province held a referendum designed to ensure that only token acknowledgements of aboriginal title would ever be made. But British Columbians were ceasing to treat aboriginal title with the disbelieving dismissal that still typifies the general Ontario response to the purported “claims” of the Six Nations and other Ontario First Nations. After holding out for 17 years, British Columbia in 1990 had joined the treaty discussions that Canada and the Nisga’a Nation had begun after Calder, and the province was a signatory to the Nisga’a Final Agreement in May 2000.
Some of the consequences of changing realities in British Columbia can be seen in All That We Say Is Ours: Guujaaw and the Reawakening of the Haida Nation by West Coast journalist Ian Gill. Gill’s book explores the recent achievements of one British Columbia First Nation through the lifework of Guujaaw, a Haida who first presented himself in public in the 1970s as a hunter-gatherer, a drummer, a carver, a keeper of traditional lore. Today, in his mid 50s, Guujaaw is president of the Haida Nation and a figure to reckon with in British Columbia politics. During Guujaaw’s time in public life, the revival of Haida culture and political organization have been reinforced by the Haida Nation’s vigorous assertion of aboriginal title and refusal to negotiate its extinguishment. All That We Say Is Ours is a story of what has become slowly possible for British Columbia First Nations in the post-Calder environment. Today young Haida have options other than becoming sullen tenants on their own islands.
Gill describes how Guujaaw and a non-Native ally, late one night at a kitchen table, pretty much invented the world-famous South Moresby wilderness preserve, now Gwaii Haanas National Park. But equally to the point is Gill’s account of how the bureaucrats of Parks Canada came to grasp that co-management with the Haida Nation was more likely to produce a national park than attempts to sideline aboriginal participation. He takes note how, as British Columbia lost its illusion of unfettered authority to greenlight resource developments without regard to aboriginal title, businesses began to turn—however reluctantly—to the partner that could actually make developments possible. Gill even suggests that the non-Native logging population of the islands, once strong supporters of the multinational logging companies whose clear-cut timber leases the Haida fought to abolish, now calculate they might be better off working in a sustainable industry with Haida forestry projects than trusting to cut-and-run multinationals. The Nisga’a agreed to cede much of their traditional territory to British Columbia; the Haida have not yielded one hectare. But in both cases, non-Native businesses and non-Native citizens continue to live and thrive where they were before aboriginal title was affirmed.
Let’s not be too optimistic about the revolution in aboriginal land law in British Columbia. There have been many confrontations and there are doubtless more to come. Much distrust endures, much remains unsettled, and many aboriginal people in British Columbia remain poor, undereducated, misgoverned and often embittered. The cost to British Columbia of accepting aboriginal title is also real. Aboriginal people are going to be the landlords and proprietors of a good deal of British Columbia, and they are certain to collect a rent or royalty on the province’s future prosperity.
But the next generation of British Columbians may find a better solution and a more manageable cost than the vain hope that police or military force will sustain a denial of aboriginal title that the courts of Canada have long since found to be without legal or ethical foundation.
At least since Calder, every Canadian judicial decision in aboriginal law has declared that these questions ought to be resolved by negotiation, not litigation. Aboriginal rights are political questions, and the courts will always be blunt instruments with which to try to formulate policy. Yet without the prodding of the courts, it would surely have been impossible for any government to move toward fair treatment of aboriginal title and aboriginal rights in British Columbia. Only the steady accretion of judicial decisions on aboriginal rights has gradually educated governments and the business community, and the public too. Court decisions gradually taught that land claims left unsettled will prevent economic development, undermine everyone’s land titles and subject the Crown either to endless litigation or to violent confrontations. As that lesson slowly took hold, sober self-interest began to whisper that a deal was both smart and feasible. Less than a decade after the provincial government of Gordon Campbell came to power very hostile to aboriginal rights, it hosted the 2010 Vancouver-Whistler Olympic Winter Games in partnership with four First Nations whose title to the territories where the games were taking place could not be gainsaid.
Are there lessons for Ontario in the West Coast experience? In Ontario, 19th- and early 20th- century judicial decisions on aboriginal rights mostly show settler governments and settler courts working hand in hand to reason away any obligation that might have impeded the appropriation of aboriginal land and rights. Lower courts in Ontario still seem to be guided by those ancient precedents. In March 2008 an Ontario judge jailed most of the elected councillors of the KI First Nation of the James Bay lowlands when they insisted their treaty rights should not simply be overruled by the Ontario Mining Act. In 2006, when the Ontario government sought a negotiated settlement to forestall further violence at Douglas Creek Estates, an Ontario judge decreed negotiations must cease. He wanted his injunction enforced, at the point of a bayonet if necessary. He called that the rule of law.
Indeed, much of the bitter criticism of Ontario’s attempts to negotiate out of the Douglas Creek Estates impasse has invoked “the rule of law” with apparently serene confidence that in Ontario the law will never include aboriginal rights. In her articles, Christie Blatchford’s strongest attacks were on the Ontario government for tolerating “two-tier justice” that indulged “natives who … played the victim.” It is probably still politically impossible today for any Ontario government to treat aboriginal rights with the kind of respect they have begun to receive in British Columbia. Ontario courts have not spent 40 years educating governments and citizens what the rule of law actually requires on aboriginal title and treaty obligations. The Nass Valley and Haida Gwaii seem very far away.
If Ontario had a case like Calder affecting the status of the Grand River valley, what might the law actually say? Now that it is settled law that Canada must accept treaty obligations to First Nations, can the cynical manoeuvrings and tortured reasoning by which Ontario justified its 19th-century appropriations of Six Nations’ land survive judicial scrutiny? Now that legal interpretations of treaty clauses must consider how aboriginal parties actually understood them, the courts may eventually take a fresh look at how Ontario redefined those guarantees of land “to be enjoyed forever” and “in the most free and ample manner.” It might not be a bad bet to wager that one day a court is going to rule that the Crown in Ontario lacks valid title not just to the postage stamp that is Douglas Creek Estates but to the full 400,000 hectares of the original Six Nations territory, and that the Crown is indeed compelled to consult in the use and development of those lands and their resources.
Would Kitchener and Waterloo have to move away and Highway 401 cease to run? Hardly. The Six Nations have shown themselves willing since 1784 to share the development of their territory. Already, experience in the rest of Canada suggests that confirmation of aboriginal title is less of an obstacle to progress or economic development than endless conflict over it. The Nisga’a and the Haida have repeatedly declared that aboriginal title leads to partnership with non-Native society, and in northern Quebec the James Bay Agreement has fostered economic development instead of forestalling it.
There would surely be a cost to Ontario in paying a royalty to the landlords of the Grand River valley, perhaps even one larger than the cost of maintaining an endless armed force at Caledonia. But the British Columbia experience suggests that prospects for economic development—to say nothing of cooperation, justice and cultural enrichment—are enhanced, not harmed, by a generous acknowledgment of aboriginal rights and titles.
Let the courts speak clearly enough, and governments and even journalists in Ontario would eventually grasp the lesson. Kids in Ontario First Nations might even aspire to be Guujaaws and Frank Calders instead of being driven to become masked armed warriors on their own territories. That would not be a horror story.
Note
1 Gordon Gibson Jr (1997), “The Land-Claims Ruling Is a Breathtaking Mistake,” Globe and Mail, December 16, A21; Trevor Lautens (1998), “How to Make Indian Land Claims Go Away,” Vancouver Sun, February 28, A23.
©Christopher Moore Editorial Ltd 2010
Our Hidden History: Why do we Down Play the Seminal Moment in Canadian Democracy?
(This essay was published in the July 2011 print issue of The Literary Review of Canada )
The colleague who brings the cups of coffee to our table has been reading John Ralston Saul’s elegant double biography Louis-Hippolyte LaFontaine and Robert Baldwin, and she is perplexed. She seeks historical guidance. She sees that in his entwined lives of these nineteenth-century parliamentarians, Saul is asserting large claims about the meaning of Canada. The book is an argument about the foundation of the country and the origins of Canadian political culture. It has flashes of violence, clashes of incompatible political philosophies, threats of ethno-cultural war, and the spectacle of politicians making subtle choices for the highest of stakes. It is not only a dramatic story, that is, but one that addresses fundamental questions about our political inheritance from the distant 1840s.
My perplexed colleague is a veteran of the Canadian literary-cultural-political scene. She has good reason to consider herself widely read and well informed. (Okay, she is the editor of this magazine.) Why, she wonders, with all her knowledge of this country, is this story so damned unfamiliar to her? If this is the central story of Canadian political history, and as dramatic as Saul’s telling makes it, why has she known so little about it? And if she doesn’t know about it, whose fault is that?
Well, not John Ralston Saul’s, I think.
LaFontaine and Baldwin is Saul’s own contribution to Extraordinary Canadians, the series of short, readable biographies of which he is general editor. His choice is no random one: John Ralston Saul has been writing and talking about Louis-Hippolyte LaFontaine and Robert Baldwin for years. Almost fifteen years ago, Saul was virtually alone in insisting on a public commemoration on March 11, 1998, the one hundred and fiftieth anniversary of the ascension to power of the LaFontaine-Baldwin government. He has been the prime mover of the LaFontaine-Baldwin Lectures, an annual series. His first book on the Canadian condition, 1997’s Reflections of a Siamese Twin, cited the two men as “the original Siamese twins,” the founders of the “inclusive society” based on “social complexity” and “fairness” that he celebrated there. They turned up again as role models for his second essay on this theme, 2008’s A Fair Country, in which “a Métis nation” became Saul’s metaphor for social complexity. Now he comes at the two men directly in a double biography.
Saul easily pairs these two Canadians born in the first decade of the 1800s: LaFontaine fatherless and childless, Baldwin the dutiful son of a powerful father. Both became successful lawyers, one in Montreal, the other in Toronto. Both were beset by ailments more associated with Victorian women than powerful men: LaFontaine often bedridden with mysterious ailments, Baldwin crippled by grief over the death of his young wife. Neither seemed a natural for public life, but both became career politicians.
In the 1830s, they and their societies faced a political problem that should be familiar in the twenty-first century: unaccountable executive power imposed on people unwilling to accept autocratic rule. They spoke of “responsible government.” We call it “the democratic deficit.”
LaFontaine and Baldwin came to maturity in a Canada where the governor general actually governed. Elected legislatures existed, but the government held broad powers independent of them, and governors took advice where they chose. One Canadian response was radical – and opposed by both LaFontaine and Baldwin: armed uprisings in 1837 and 1838. Saul suggests that Canadians tend to treat these rebellions as comic opera. He prefers to underline their consequences for political moderates like LaFontaine and Baldwin: a “rogue government,” fierce repression, “friends… hanged, shot, exiled, in and out of prison,” and the radicals’ failure used to discredit moderation.
It was in those circumstances that LaFontaine and Baldwin met, built their alliance, and fought a decade-long battle. It was a political battle: they rejected violence as unnecessary and self-defeating. As a result, their platform may seem a modest and counter-revolutionary one. Baldwin in Upper Canada and LaFontaine in Lower Canada focused Canadian political aspirations on a single principle: that Canadians were entitled to the same rights Britons held in Britain. In Canada, this demand was summed up as “responsible government,” meaning that in each Canadian jurisdiction the actions of the Crown had to be guided by advisors who were endorsed by, and constantly accountable to, a majority of the elected representatives of the Canadian people.
Much of this was already available in theory in Britain, through the parliamentary system. Saul, however, is at pains to emphasize the unBritishness of the LaFontaine-Baldwin platform. He dismisses the notion that the coming of Canadian self-government can be credited to the radical aristocrat Lord Durham and magnanimous British governments. Durham’s solution, Saul argues, remained rooted in the ethnic nationalism of the existing British and Canadian oligarchies: the government could be accountable, but only if francophone Canadians were politically marginalized, denied their language and history, and assimilated. “There would be democracy, but for the anglophones only,” is Saul’s dismissive précis of Durham’s plan, which the LaFontaine-Baldwin alliance confronted directly. (p.86)
The question, Saul observes, was not whether LaFontaine and Baldwin “could achieve Responsible Government, but whether they could imagine and deliver the sort of society that could make Responsible Government mean something.” (p.103) Social equality, declared LaFontaine in his Address to the Electors of Terrebonne in 1840, was “the characteristic feature of the population as well of Upper Canada as of Lower Canada.” This was unimaginable in the Britain of that time, where even voting remained the prerogative of the landowning “Ten Thousand.”
The LaFontaine-Baldwin alternative was rooted in two Canadian innovations: something close to universal manhood suffrage (largely achieved in Canada, unknown in Britain), and a politics that depended more on political rights than ethnic homogeneity. Political accountability was half the answer; the other half was a politics grounded in toleration of diversity and in ethno-cultural accommodation.
The LaFontaine-Baldwin program was slowly, hesitatingly assembled early in the 1840s, as anglophone and francophone reformers debated whether they could work together for mutual benefit. When LaFontaine was defeated by violence in his Montreal-area constituency, Baldwin arranged to have him elected by the anglophone farmers of York riding; not long after, LaFontaine returned the favour and Baldwin was elected by pur-laine Rimouski. Throughout the 1840s, in the aftermath of ethnically-based political cleansings and assimilationist British policies, LaFontaine and Baldwin struggled to sell consensus politics to divided societies. LaFontaine had to persuade French-Canada it was not suicidal to pin the survival of francophone, catholic Lower Canada on an alliance with anglophone, protestant Upper Canada. Baldwin had to persuade proud and ambitious Upper Canadians that their political success would be inseparable from a government dependent on francophone majorities.
In counseling non-cooperation even with sympathetic British governors, the reform alliance led by LaFontaine and Baldwin had to overcome deep habits of social deference. In counselling unity even at the price of political office, they had to overcome the counter-example of such notables as the Upper Canadian preacher and intellectual Egerton Ryerson, the old francophone radical Denis-Benjamin Viger, and the rising young politician John A. Macdonald, all of whom found cooperation with the autocratic governors more attractive than responsible government principles.
Saul declares repeatedly that the building of a reform consensus was a domestic Canadian achievement: “the great leaders of England …were unanimously against democracy in the colonies” (p133). In the late 1840s, however, the British cabinet conceded, though naturally announcing its concession as an original discovery. Henceforth, governors in British North America were bound to lead governments acceptable to the colonials’ elected representatives. In February 1848, Joseph Howe’s reformers in Nova Scotia were first to take office on this principle. A month later, following a reform sweep in elections in the united Canadas, the newly elected legislators worked through the formalities of democratic accountability in a parliamentary system. The Governor’s advisors met the newly elected House, they lost a confidence vote, they sent in their resignations. Then the Governor invited LaFontaine, as leader of the new majority, to form a new cabinet acceptable to the legislature.
Saul acknowledges the importance of this parliamentary moment, the confirmation of legislative authority. But he opens LaFontaine and Baldwin with a vivid set-piece evoking a more dramatic test of ethno-cultural cooperation and responsible government. The LaFontaine-Baldwin ministry, committed to ending resentments that still lingered from the Lower Canadian rebellions and repression of 1837-38, brought in a bill to compensate for property damage that citizens had suffered in the conflict. Similar payments had already been approved for Upper Canada, but here the majority of the beneficiaries would be francophones. This was a Canadian political choice, not an imperial one, and therefore a bold display of the new rules: the governor general no longer governed. Like it or not, his duty was to sign the bill into law.
The first result of Governor General Elgin’s signing of the Rebellion Losses Act was fresh rebellion, this time by the loyal elite of anglophone Montreal. In April 1849, those most committed to the British connection and British ethnic superiority attempted to kill the British Governor-General and his cabinet. They succeeded in putting the Canadian parliament building to the torch and began talking about joining the United States. Parliament burned, and so did LaFontaine’s house, but the LaFontaine government chose not to turn its troops on the mobs, and so a bloodbath was averted. “At key historic moments,” Saul declares (p20), “every society burns into its unconscious the outline of patterns for agreement and disagreement.… The spring of 1849 was the defining moment for modern Canada.”
With the weight of Saul’s whole book marshaled behind it, this seems a sufficiently large statement about the enduring influence of 1848-9 upon the nature of Canadian political culture to justify the question from my perplexed editor: why is this not a history we hear about?
It is true, of course, that there are many questions in Canadian history that we “don’t hear about.” Indeed the question “Why is X not better known/ taught in our schools?” (where X stands for anything in Canadian history) seems infinitely applicable. Inevitably we compare ourselves unfavourably to the Americans. But Americans think themselves uniquely ignorant of their own past, looking to the British – where the new Cameron government recently appointed celebrity historians Niall Ferguson and Simon Schama to revive the dying subject of British history. The British look to France for models, but in France ignorance of the national epic is perpetually une crise nationale.
But I do not think my editor’s complaint is of that universal variety. Saul himself effectively documents not just lack of interest but active dismissal of the story he seeks to revive here. Throughout LaFontaine and Baldwin he neatly grounds the events of the 1840s in the physical places in the hearts of our cities where they happened – the homes of the protagonists, the governors’ gardens, the legislative buildings – and then describes them today: a parking lot, an office tower, unmarked, unknown, forgotten. It is not just the places but the ideas, he writes.
The common interpretation built up over the past 160 years tends to ignore their ideas and to rush over these events, as if our stable, middle-class democracy didn’t and doesn’t want to think of itself as an intentional and controversial project…. We have ended up thinking that Canada stumbled into democracy.
Why this neglect? Historians do not exist outside of society. Their choices of subject matter often reflect contemporary realities and societal concerns. Is their – our – neglect of the origins of Canadian parliamentary democracy perhaps a reflection of how Canadians imagine parliamentary democracy today?
Consider, as a way into this question, the ending of the parliamentary careers of Saul’s two protagonists. Despite great achievements and an extensive legislative record, Louis-Hippolyte LaFontaine and Robert Baldwin each relinquished power in 1851, resigning their seats even before the term of the 1848 parliament had expired and ending their political careers while still in their forties. Their reasons for doing so are instructive.
LaFontaine and Baldwin’s victory was a parliamentary one. Though it was rooted in principles of ethnic tolerance, social equality, and negotiation, as Saul emphasizes, the heart of their achievement lay in establishing that leaders must be constantly accountable to the people’s elected representatives. To impose that principle upon powerful governors who stood outside and above the legislature, LaFontaine and Baldwin had built a very broad parliamentary caucus; Saul notes that it was the ancestor of both the Liberal Party and the Progressive Conservative Party of modern times.
But by 1851 their large caucus was growing restive. Baldwin found his policies questioned by his Upper Canadian colleagues, and LaFontaine was overruled by his Lower Canadian supporters. Their resignations were the result, and therefore confirmed that the principle of 1848 imposed accountability not only on governors and their cliques, but on party leaders as well. By 1851 LaFontaine and Baldwin’s parliamentary caucus wanted to move in new directions they themselves disliked. Accepting their accountability, the two men yielded party leadership to colleagues more in tune with the emerging caucus majority.
On this central question of parliamentary accountability, we today live once again in something like pre-1848 conditions. What Canadian party leader ever cedes power because his or her caucus is changing its mind? Today we accept that any party leader who wins a majority has, not constant accountability, but a four-year free hand, during which any caucus member who doubts or disagrees will be put out of caucus and probably out of politics. We have replaced LaFontaine and Baldwin’s hard-won achievement of leadership accountability with the perverse idea that legislators are once more accountable to leaders, rather than the other way around. Where the backbenchers concluded in 1851 that they could dispense in mid-term with the services of the two greatest leaders of a generation – and did -- today’s MPs accept that they must be the only people in the country with no political opinions of their own, just passive supporters for whatever leader extra-parliamentary processes have imposed on them.
When the country doesn’t take parliamentary accountability seriously, that is, we should not be surprised that our historians do not trouble themselves to write about its origins. Why should we take the events of 1848 seriously when everything about our politics suggests we have actually regressed to a lower standard of parliamentary practice?
But John Ralston Saul introduces his Extraordinary Canadians series with the declaration that the subjects of the series tend to be people of the word, masters of language. He has rooted this series in the idea that words and ideas matter. Could reading about LaFontaine and Baldwin actually improve contemporary politics? This provocative, readable little book might just suggest to some Canadians and their elected representatives that holding their leaders accountable is what members of parliament are there for, indeed the only thing they are there for.
I’d say: from JRS’s mouth to your MP’s ear.
©Christopher Moore Editorial Ltd 2011
What Old Tomorrow Can Teach us Today
Sir John A.’s skills as a consensus builder are lost on our modern leaders
(Published in Maclean's, January 16, 2012 )
Can Canadian politics learn anything from old dead prime ministers? On John A. Macdonald’s 197th birthday, consider how the first prime minister spent his 70th birthday.
On Jan. 11, 1885, Macdonald entered his eighth decade with a quick trip to Montreal for a snowy parade by torchlight and a gala dinner with hundreds of supporters. It was adulation and cheers all around. But right after the partying, John A. hastened back to the office in Ottawa. A crisis was brewing. Barely a year short of completion, the Pacific railroad company, Macdonald’s flagship project, was near collapse. With creditors at the door, CPR president George Stephen was haunting the prime minister’s office, begging for one more bailout.
Macdonald knew the stakes. “The day the CPR busts, the government busts the day after,” one of his advisers put it succinctly. The money had to be found. If 1885 were 2012, that would have ended the crisis. Macdonald was the dominating political figure of his day and his re-elected government held a big majority. If Macdonald favoured the bailout, surely all he had to do was put the cheque in the mail. Isn’t that what a stable national majority government leader does?
Instead, for another six months, Old Tomorrow kept Stephen waiting while the railroad lurched toward bankruptcy. The problem was Macdonald’s caucus and cabinet had deserted him. They could not stomach throwing more money at the railroad. Cabinet colleagues said letting the company fail was better politics than saving it. Backbenchers from the Maritimes and Quebec demanded something in exchange: help for their own pet railroads. His own finance minister, Leonard Tilley, thought the government could scoop up the assets of the bankrupt CPR and finish the job itself. In short, Macdonald led a majority government but lacked the parliamentary votes for a bailout.
Macdonald did not discipline his dissident ministers of 1885. The colossus of Canadian politics did not drive skeptical backbenchers out of politics as a modern leader would. Macdonald lived by the rules of 19th-century Canadian Parliaments: a leader answered to caucus, not the other way round. If a prime minister could not assemble a majority of his own MPs behind him on an issue, he accommodated.
That ability to accommodate certainly contributed to his reputation as Canada’s “nation maker,” as Richard Gwyn brilliantly portrayed him. But perhaps Macdonald’s greatest skill was as a majority maker. In a recent Historica-Dominion Institute project to promote the celebration of “John A. Day,” we suggested that what kept Macdonald at the top during his extraordinary career was rarely the authority of single-minded vision. More often, it was his uncanny ability to pull together majorities in the House when none seemed to exist.
That’s not an issue for Canadian leaders now. Today we accept that MPs should have no political opinions, that only leaders and their sleek young operatives think and decide. (Then we complain about the democratic deficit.) It was harder for Macdonald and his contemporaries.
Is this just an obsolete quirk of 19th-century political mores? Hardly. In 2010, an Australian caucus removed an incumbent prime minister on the eve of a national election. And though it wasn’t much noted in Canada, one reason British Prime Minister David Cameron broke with Europe over the euro was his inability to count on his own caucus to support a pro-Europe stance. All over the world, parliamentary leaders need those consensus-building skills that Macdonald had in such abundance. Only Canadian MPs think it is their job to give their leaders a free hand for years at a time.
That railroad crisis of 1885? The CPR dangled until May. Then came the Metis resistance on the South Saskatchewan, and it was the unfinished railroad that rushed troops to the West. Suddenly the CPR could do no wrong. Caucus came around, and the votes were there. The last spike was driven six months later. John A. Macdonald looked like a genius. Again.
Christopher Moore is a two-time Governor-General’s Literary Award winner whose video talks on John A. Macdonald are available at the Historica-Dominion Institute’s website (historica-dominion.ca) as part of a Sir John A. national education campaign.
Keeping Party Leaders Honest
A review of Politics at the Centre: The Selection and Removal of Party Leaders in the Anglo Parliamentary World
William P. Cross and Andre Blais'
(First published in the Literary Review of Canada, June 2012)
Not a leader? Who looks like a leader? Where is the leadership today? Who do you know in the leader’s office?
Today leadership is what Canadian political culture amounts to; the rest is window dressing. So what could be more useful than a tough, data-driven analysis of how Canadian political leadership systems stand up to international benchmarks? Politics at the Centre: The Selection and Removal of Party Leaders in the Anglo Parliamentary World looks like the right book at the right time.
Its authors, both Canadians, are veteran scholars with impeccable credentials in political science: William Cross at Carleton University, André Blais at the Université de Montréal. As we might expect, Cross and Blais deliver lots of data. They compare leadership procedures in Australia, Canada, Ireland, New Zealand and the United Kingdom—a selection that may evoke the old idea of the “white commonwealth,” as if parliamentary democracy only functions in states that evolved under the rule of British peoples. They do not include data on Commonwealth states such as India or Jamaica, or countries such as Japan, Spain or some of the new parliamentary democracies of Eastern Europe.
Still, even with their “anglo” sample, they have taken on no small challenge. For just five countries between 1965 and 2008, they had to chart and interpret more than 200 leadership changes in 22 different political parties. For every leadership career ended, for instance, Cross and Blais carefully parse the differences between “resigned voluntarily,” “resigned under pressure” and, most ominously, “removed.” If you seek to compare the rise and fall of our own Dions, Campbells, Clarks and Martins against the fates of Bob Hawke of Australia, Jenny Shipley of New Zealand, Margaret Thatcher of Britain or Ireland’s Bertie Ahern (among hundreds of others), the materials are here at hand.
They have the information. Can they also enlighten us as to what it means?
Here Cross and Blais run into what seems an existential problem of political science. Political scientists have developed very sophisticated expertise in gathering, handling and displaying quantitative data on political phenomena. To my non-expert eye, Cross and Blais are exemplars of this exacting discipline. But the other side of the commitment to data often seems to be ambivalence about political thought. Anyone can think about politics, anyone can have a political opinion and political judgement is not easily reduced to quantifiable data. Perhaps as a result, quantitative political science sometimes seems to shy away from subtleties of political thought. To the rest of us, seeking meaning more than data, texts in political science sometimes read like Dylan Thomas’s Christmas gift books, the ones that told him everything about the wasp, except why.
I find that wasp problem acute in Cross and Blais’s study of political leadership. But before taking up the problem of what the data mean, let’s swim a little in Cross and Blais’s river of data. They present leadership events and situations that to a Canadian observer seem not merely eyebrow raising but head-snappingly strange.
Canadians will be familiar with the account here of leadership selection in this country. In Canada leaders have long been chosen by the party at large, either in delegated conventions or by mass membership voting. At the end, a leader is chosen by an electorate that instantly dissolves, leaving the new boss formally accountable to no one. Until the next slow, expensive race develops, probably years in the future, party and leader are effectively fused.
When they turn to the other countries in their international sample, Cross and Blais’s data sets open windows on a different world. Many Canadians know how Britain’s onetime prime minister Margaret Thatcher, at the height of her power, was replaced in a matter of days by her own members of Parliament. Some Canadians may have noted the recent adventures of Julia Gillard, who became Australia’s prime minister in the summer of 2010 by persuading her Labour Party caucus colleagues to remove the incumbent prime minister just before a general election—and then, early in 2012, had to face down her resurgent predecessor, who was still in caucus and cabinet. In these situations, there are no crippling campaign debts, no vote-selling competitions, no months of a leadership vacuum. The verdict is almost instant, the cost practically zero and the accountability constant.
In Canadian discourse, processes like these are invariably dubbed “coups” or “mutinies” and framed as violent, extra legal and lacking in political legitimacy. Describing Gillard’s rise to power, the dean of Canadian political columnists, Jeffrey Simpson, declared that Australia’s system was “coups and knifing” and “elitism,” which would be acceptable only to those Canadians who wanted “intrigue and blood-on-the-floor politics.”
Cross and Blais, like most Canadian commentators, share Simpson’s disapproval. But their data sets demonstrate that the process Canadians take as an unquestioned norm (ours) has long been alien and bizarre in the rest of the parliamentary world. Every time Cross and Blais compare leadership details across their five countries, they are obliged to distinguish the Canadian way: “everywhere, except Canada,” “Canadian parties were the clear outliers,” “the norm everywhere except in Canada,” “the Canadian … parties are the exception,” “with the exception of the Canadian parties,” “the exceptions here are the Canadian campaigns,” “the situation has been dramatically different in Canada,” and so on. Their data sets reveal the Thatcher-Gillard rules as having been the norm around the world: citizens elect MPs, and their MPs not only influence policies but also hire and fire leaders to implement them. What Canadians call coups, parliamentary democracies around the world have long endorsed as a vital chain of political accountability.
Cross and Blais’s data sets make possible a thought experiment that compares the strengths and weaknesses of two systems that have coexisted in the parliamentary world. In the four other countries under review, party leaders have generally been accountable to MPs who can hire or fire them. MPs are accountable to citizens who can deny them re-election. So when the British Conservative MPs removed Thatcher and when Australian Labour MPs first chose Gillard and then reviewed their choice, they were surely calculating how best to save their own seats. But they were thereby aligning themselves with the will of the citizenry—something the Canadian system hardly allows. Those Australian government MPs have been under daily pressure to make the correct strategic choice about who should lead the country. Nobody calls them nobodies.
Exploring in Cross and Blais’s data sets, I found myself marvelling over what rich material their comparative study provides for fresh thinking about our Canadian situation. We struggle with the “democratic deficit” incarnated in the “friendly dictator,” the leader who forms a government and does as he pleases for years at a time, formally accountable to no one and gleefully firing our elected representatives should they provide anything but fawning deference to him. (I could write “to him or her,” but I have one of Cross and Blais’s head-snapping observations in mind. In their period of study, “not a single full-member [i.e., Canadian-style] vote process has resulted in the selection of a female leader.”1)
Could a different model of accountability give Canadians fresh ways to conceive of political leadership in this country? Sadly, Cross and Blais do not think like that. They are firm adherents of Simpson’s view that any leadership model other than the Canadian one is all coups and knifing. Where elected representatives hold leaders to account, Cross and Blais denounce them as “a small unrepresentative group of elites.” They hold that parliamentary systems in which the people’s elected representatives make leadership choices are remnants of an outdated elitism.
Structuring their data by this dictum, Cross and Blais find a simple progression: from elitism to democracy, from wrong to right. At the start of their study period in 1965, leadership selection in the five states they study rested with MPs (except in Canada, to be sure!). By 2008, they show, there had been movement in some parties in some countries toward the Canadian model, with at least some of them empowering party membership holders over elected MPs. Cross and Blais’s theory, then, is less a comparison of two systems than a simple linear change of which they warmly approve. “While the expansion of the leadership selectorate is far from universal, it is widespread and unidirectional,” they write. “There is no going back to more elite-controlled processes.”
For all their scrupulous care, this is one place where their use of data wobbles a little. Widespread? In their sample of just five countries, they must disregard as “laggards” two (Australia and New Zealand) that have rejected the trend and a third (Ireland) where it has had little purchase in major parties. Unidirectional? Their own tables show that in Britain a mass-party selectorate chose Tony Blair as Labour leader in 1994, but the caucus alone made Gordon Brown leader (and prime minister) in 2007. Cross and Blais see only last stands of elitism, but around the world the debate on principles is alive.
Although their study is international and comparative, Cross and Blais are thoroughly Canadian in their preference for mass party members as the crux of accountability. They are instinctively hostile to any parliamentary system that has not yet moved to the Canadian model. Leadership selections made by the citizens’ elected representatives, they declare, are not just disqualified by elitism, but “plagued with Machiavellian-like tactics.” They reflect “ugly politics,” have “the aura of palace politics” and are “marked by deception and often clandestine-like intrigue” leading to “coronations.” They find no fruitful comparisons in their data, only the good Canadian way and the benighted but gradually reforming habits of quasi-democratic foreigners.
In a single paragraph about the case for MPs’ control of leadership, Cross and Blais acknowledge (and dismiss as elitist) one argument: that MPs, as professional politicians, are “best situated to judge” who will become an effective party leader. Considering Canadian experiences with such mass party choices as Kim Campbell, Stockwell Day, Stéphane Dion and Michael Ignatieff, it is easy to see the merit in that claim. Could MPs possibly do worse? (Actually, Cross and Blais have data on this too; parliamentary leaders have about the same life expectancy no matter what system produces them.)
But despite Cross and Blais, expertise is not the only, or even the principal, reason advanced by thoughtful advocates of making or keeping leaders accountable to MPs who are themselves accountable to citizens.
I claim nothing like the breadth of information about leadership selection that professors Cross and Blais have compiled and organized, but over the years I have interviewed a then-future leader of the British Conservatives, a then-recently deposed New Zealand prime minister and a kingmaker in Irish leadership politics, among others. And in my recollection, an argument to which Cross and Blais seem to have been entirely deaf came up regularly.
Cross and Blais’s tables show that William Hague was chosen as leader of the British Conservative party by the party caucus in 1997 and resigned from the leadership when caucus was about to fire him in 2001. (He accepted his demotion, went back into caucus and is today Britain’s foreign minister.) When I interviewed him, he was still a backbencher, fresh from the excitement of Margaret Thatcher’s removal. His argument then in favour of caucus selection still strikes me as persuasive.
"Having the leader elected in parliament strengthens parliament itself. Without the power to change the leader, to elect the prime minister, backbench MPs would have less influence, would have less power over their party leader. All of us who are constituency MPs, trying to represent our constituents and our interests in different parts of the country, know that we are strengthened by having this colossal power at our disposal. In other systems, where party conventions do the choosing of the leader, individual members of Parliament have less influence throughout most of the life of the parliament. And it can very clearly be argued that democracy suffers as a result because the ability of members of Parliament to bring influence to bear is fundamental to democracy."2
To be sure, this is not an idea that polls well in Canada. Cross and Blais stand squarely in the Canadian mainstream in refusing to consider that leaders should be accountable to representatives accountable to citizens. They are entitled to their opinion. But it is discouraging to see such gifted and dedicated students of politics rejecting as inconceivable what seems to have worked quite well in much of the parliamentary world. Why commit so much labour to the gathering of vivid comparisons and then shrink from comparing the real and serious ideas that underpin them? It is as if they measure every parliamentary wasp to the millimetre and then dismiss as deformed all the subspecies that fly differently from our local variety.
Finally, is it at all plausible that accountability as practised in other parliaments could come to Canadian politics?
The old adage that power corrupts and absolute power is even better suggests that any such reform would be ferociously opposed by the parties and by potential leaders (and consultants) enticed by the untrammelled authority the Canadian system promises. Given the still sacred status of unaccountable leadership in Canadian public opinion, it is hard to predict where the change might start or gain traction.
But fundamentally, Canadian party caucuses have always been free to assert authority over their leaders. No significant structural difference separates Canadian practice from that of other parliamentary democracies, just habits and convictions. The constitutional accountability of executive to legislature and leaders to elected representatives is a power long unused by Canadian MPs, but it remains as potent as ever. At bottom MPs need only to grasp they have the authority any time they are prepared to wield it. But who is going to give them the hint?
Notes
- Kim Campbell? Audrey McLaughlin? Cross and Blais are here distinguishing all-members-may-vote systems from delegated conventions as well as caucus selection, but in general the rule holds. Thatcher, Gillard and New Zealand’s Shipley and Clark: so far women prime ministers who stick have all been caucus choices.
- William Hague, MP, interviewed by Christopher Moore for CBC Radio Ideas, “Leadership Conventions,” broadcast February 1, 1993 (from CBC Ideas Transcripts). The quotation here is slightly condensed from the spoken original.