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Official Opposition: Three Contributing Factors

The House of Commons Procedure and Practice Ed 2 defines the official opposition (also know as Her Majesty’s Opposition) as “…the opposition party with the largest number of seats” in the House of Commons. The leader of this party is also conventionally styled the Leader of the Official Opposition (LOO). Every parliament since confederation has had an official opposition despite the fact that the institution itself is never once mentioned in any constitutional document. The existence of the official opposition is drawn from the preamble of the Constitution Act, 1867 which calls for a parliament “similar in Principle to that of the United Kingdom.” And while there is no mention of the official opposition in any constitutional document, special rights and privileges are granted to the institution through the Standing Orders of the House of Commons. These special rights and privileges include the right for the leader (or another member of the official opposition) to have unlimited time during debate to respond to the prime minister and the privilege to ask the first question during Oral Questions.

Three Contributing Factors

Interestingly, while we have had an official opposition in Canada for as long as we have had a House of Commons and parliament, very little has been written or explored specifically about the institution and its role in parliament. David E. Smith in his seminal work on the opposition in Canada titled Across the Aisle: Opposition in Canadian Politics scratches the surface of the role and function of the opposition, including opposition members of third and fourth parties in the House of Commons and concludes that the institution itself is unique from parliament to parliament and its role is largely driven (1) by the current composition of the House of Commons (majority or minority government, for example), (2) the issue at hand  and (3) the personalities of the leaders within the House and government.

The Role of the Official Opposition in Canada

The first and obvious role of the official opposition in the House of Commons is to hold the government to account on all measures presented within the House and advanced by the government. It does not follow however that the opposition is forced to oppose all measures of the government despite the fact that such a situation would appear to undermine an institution charged with opposition. An example of such a situation would be a minority government being sustained with the support of a third party or, in the extreme, members from the official opposition. In order to maintain a degree of value of opposition in such an instance, official opposition leaders have advocated a vote abstaining from supporting or rejecting the government (and thus continuing confidence within the House). This is exactly what happened in 2005 when Stephen Harper (at the time the LOO) changed his stance on the budget presented by the governing Liberal Party and along with the NDP and Bloc abstained his caucus from voting, effectively allowing the government to advance in confidence of the House of Commons (notably, this was the largest abstention on any piece of legislation in Canadian history). However, for the most part, these moments are few and far between and more often than not the official opposition will oppose government legislation and initiatives. The mechanism by which the official opposition can constructively oppose the government is through amendments to legislation which are often tabled shortly after the prime minister or a minister presents a new piece of legislation. Another mechanism is through the presentation of minority reports from committees which are presented by the leader or a member of the official opposition immediately after the tabling of a report from a parliamentary committee. These minority reports often capture issues which the opposition drew from the investigation surrounding a piece of government legislation or initiative and may or may not propose an alternative course of action. And of course, the most direct means of opposition toward the government at the official opposition’s disposal is voting against government motions and legislation when divisions are called.

David E. Smith asserts in Across the Aisle that the “practice of opposition in the Canadian Parliament has never conformed to the theory of opposition found in political science textbooks” (p. 101). And this statement is strikingly accurate. As mentioned earlier, what drives the role and effectiveness of an official opposition are not the laws and conventions which enable it, but the composition of the House which contains it, the issues which drive it and the personalities who lead it. The official opposition has been as colourful, if not more so, than that of the government-of-the-day since confederation.

Case Studies: Medicare and the Afghanistan Engagement

A contemporary example of the changing role of opposition in Canada can be derived in the passing of a national health insurance program in Canada, known as Medicare. In was under a minority government parliament that medicare was passed with the support of the governing Liberals under Lester B. Pearson, the official opposition under the leadership of Progressive Conservative John Diefenbaker and the third party NDP under the leadership of T.C. Douglas. It was through previous legislation introduced by Diefenbaker for a national hospital insurance programme that modelled the provincial medical insurance programme introduced in Saskatchewan while Douglas was the CCF premier that was instrumental in providing the framework for a more robust federal programme. Also, the opposition found support among key government ministers, especially Paul Martin Sr. who was a long-time supporter of a national healthcare plan for Canadians. In this instance, the government was able to secure support from opposition parties in a minority government parliament and medicare was introduced. We see how the composition of the House of Commons (a minority government requiring the support of opposition parties in order to advance legislation), the issue of the day (an almost universally supported concept of a federal medical insurance programme) and the personalities (support from key government ministers) articulated the role of the opposition and enabled the creation of one of the most popular government programmes in Canadian history.

The detailed article on the official opposition in the Compendium of Procedure explains that “by law, [the leader of the official opposition] must be consulted before certain important decisions are taken by the Government” and this was made evident in the lead-up to sending Canadian soldiers to Afghanistan in the aftermath of the terrorist attacks on 9/11. Prime Minister Paul Martin Jr. (as he then was) sought support from the Leader of the Official Opposition Stephen Harper (as he then was) prior to sending troops into combat. The logic in gaining such support was driven by the importance of the issue at hand. The belief was that since sending Canadians into combat had been such a contentious issue in the past especially in the passage of conscription legislation during World Wars One and Two, it was important for the government to seek support from all parties in the House of Commons. Such an initiative on the face seems to go against of the role of the opposition to oppose the government, but realistically it provides the opposition parties a chance to influence federal policy. However, the question of when and how such action by the government is deemed so important as to warrant support or consolation from the opposition benches is left to the government itself and is a cause of disagreement among parties in the House of Commons themselves. This was evident in 2014 when Stephen Harper did not seek unanimous parliamentary support to authorize the use of CF-18s for airstrikes against Libya. The justification from the government was that the mission did not constitute a direct “boots-on-the-ground” campaign and thus was not important or grand enough to require all-party support. In this case study we again see how the role and effectiveness of the opposition is driven by the composition of parliament, the nature of the issue at hand and the personalities of the leaders within the House of Commons.

Conclusion

Smith is absolutely correct when he concludes that three main factors contribute to a changing role for the opposition in Canada. He is even more correct when he points out that no political science textbook can capture this changing role. However, despite this, there is no question that the role of the opposition is key to the democratic function of parliament. Or, as Sir Wilfred Laurier succinctly explained,

… it is indeed essential for the country that the shades of opinion which are represented on both sides of this House should be placed as far as possible on a footing of equality and that we should have a strong opposition to voice the views of those who do not think with the majority.

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Dissolution of the Ministry

Both section 5 of the Constitution Act, 1867 and section 4(1) of the Charter of Rights and Freedoms limit the duration of a Parliament to five years (with the exception of times of war or insurrection). These sections translate into a system of democracy whereby elections must happen at least every five years. However, typically elections happen at more regular intervals as the governor general is bound through constitutional convention to dissolve Parliament at the request of the prime minister. The prime minister themselves may resign his or her government at any time or is bound to seek dissolution from the governor general after a no confidence vote in the House of Commons. Furthermore, specific to the current election campaign, Parliament has bound itself to fixed election dates through a 2007 amendment to the Canada Elections Act which made provision for a general election “on the third Monday in October every four years.” (Note: even under the amendments, the convention for the prime minister to seek dissolution in the event of a loss of confidence stands).

The mechanism whereby a Parliament is dissolved is central to responsible government in Canada. The heart of a ministry is the cabinet which provides advice to the Sovereign, controls the public service, and remains collectively responsible to the legislature. Governments in Canada are appointed, not elected, and their membership is drawn from the legislature. This is fundamental in a system of responsible government. This appointment does not last for a set term but stands until the minister dies, resigns or is dismissed. The sections contained within our constitutional documents which provide for a dissolution every five years, binds the prime minister to resign the government and thus exercise one of the three conditions upon which a ministry comes to an end. The appointment cannot be made possible without the individual first being elected as a member of the legislature. Thus, the minister also has an individual responsibility to the House of Commons. It is generally accepted that a minister is responsible for their ministry and is accountable to Parliament for their actions while in power. This personal responsibility generally guides how and when a minister should resign and when and how it should be asked for by the legislature.

The overarching theme of ministerial responsibility is its collective nature. The formation of the ministry rests on the concept of a collection of people having the ability to command the confidence of the legislature. Its continued existence rests on its ability to pass legislation and measures within the House of Commons. And its dissolution comes about through collective resignation. It would be absurd to permit a government to continue to function within a democracy when it is unable to pass a budget measure or advance its mandate. The ministry can only continue to function after a loss of confidence within the House of Commons if it is sustained by the electorate in a general election.

Democracy demands that executive governments be elected by the people. This concept emphasizes the formation of a democratic government which can claim legitimate power within society. Key to this concept is the function of terminating a government in order to permit democratic elections and thus enable the formation of a representative government. Constitutional documents in Canada limit the extreme length of parliamentary terms to five years and through convention provide expectations for governments in the event of a loss of legitimate authority. This is the essence of responsible government. A democratic government must be responsible in its formation, execution and dissolution.

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Responsible Government

When Canada became a confederation of provinces of the British Empire, the Fathers of Confederation envisioned a system of government that was to be responsible in nature. This concept of a responsible government was not born  specifically out of the Confederation conferences, but rather was born out of decades of struggle between the provinces of Upper and Lower Canada as well as the United Province of Canada. Before we can understand what a responsible government look like in Parliament, one must understand the historical and legal concept of responsible government as a whole.

In broad political science terms the concept of responsible government states that Westminster democracies are accountable to Parliament. This is in contrast to a system where executive members of government are accountable to the monarch (often through an appointed representative).  In Canada, responsible government has been linked with the concept of self-government.  The idea  that functions of the executive, such as the administration of monetary bills, be conducted by members elected by citizens rather than elites appointed by the Governor-General.  The first executive Council of a Canadian colony to first achieve responsible government was in Nova Scotia on 2 February 1848. The government of Joseph Howe was formed by members of the elected legislature.  In the Province of Canada the structure of responsible government was put to the test under the strains of relations with French-Canadians from what was formerly Lower Canada.  These tensions became particularly evident in 1849 when the Rebellion Losses Bill was passed in the legislature. Despite having misgivings over the bill due to the fact that it had enraged English Canadians by compensating so-called rebels, the Governor-General, Lord Elgin, gave Royal Assent.  Regardless of the opposition of a large segment of Canadian society, the Governor-General gave way to the concept of responsible government.

In modern terms, responsible government in Canada manifests itself in several ways. First of all, members of the government are selected among elected members of Parliament. The person who selects these members is themselves selected among elected members of Parliament. This person is invited by the Governor-General as a result of them being able to form a government which could maintain the confidence of the legislature.  Once a government is formed in Canada responsible government is maintained through ministerial accountability to Parliament. What this means is that ministers are accountable for their actions before elected representatives. This has traditionally manifested itself in ministers making announcements within the House of Commons and subjecting them to scrutiny. The daily period reserved for Oral Questions in Parliament is also a manifestation of responsible government and ministerial accountability. Another aspect of responsible government while a government has been formed is that the Governor-General will not refuse to grant Royal Assent to legislation which is been duly read and ratified by Parliament. In order for a government in Canada to remain in power it must maintain the confidence of the House of Commons. That means that at any time during the ministry the government can face a motion of non-confidence which would trigger the resignation of said ministry (which may or may not lead to an election). There are also certain pieces of legislation which are considered matters of confidence in and of themselves, these include the annual budget and the Address in Reply to the Speech from the Throne which opens Parliament.

One can see with a simplified explanation of responsible government in Canada that it is possible that today we do not have responsible government. This potential fact is not unique to the ministry which is currently in power nor is it unique to the ministry directly before it. The alleged slide away from responsible government within our parliamentary system has been gradual and started when the Prime Minister’s Office established regional desks in the 1960s and began to take parliamentary responsibilities away from Members of Parliament. It has been assisted with the growth of the party apparatus away from a system of patronage and towards a system of concentrated control power. Again, this is not unique to any one ministry or any one party in Canada at this time. Members of Parliament are asserted no longer act as representatives for the people who elect them. There are no longer incentives in place for representatives to serve the interests of the people but there are rather strong incentives or Members of Parliament to bend to the wills of a select few in exchange for a piece of the consolidated power.

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Abolishing the Indian Act

Michael Den Tandt’s recent piece in the National Post provides an explanation as to why Canada should abolish the Indian Act and the reserve system entirely. This particular editorial has sparked considerable debate on the subreddit r/CanadaPolitics. Using that forum as a metric, the debate concerning such a proposal assumes that abolishing the Indian Act is a logical necessity, implies a new system of funding First Nations is required and that a so-called ‘special status’ should not (re: no longer) be applied to First Nations peoples. The editorial itself is mostly misleading and simplistic, and the conclusions drawn in the debate on Reddit are baseless and not rooted in the realities of international and common law.

Any attempt to discuss abolishing the Indian Act should immediately trigger the White Paper Statement of the Government of Canada on Indian Policy. It was presented in 1969 by then Minister of Indian Affairs, Jean Chretien during Pierre Trudeau’s first term as Prime Minister. From a UBC website project entitled Indigenous Foundations the 1969 White Paper proposed to:

  • Eliminate Indian status
  • Dissolve the Department of Indian Affairs within five years
  • Abolish the Indian Act
  • Convert reserve land to private property that can be sold by the band or its members
  • Transfer responsibility for Indian affairs from the federal government to the province and integrate these services into those provided to other Canadian citizens
  • Provide funding for economic development
  • Appoint a commissioner to address outstanding land claims and gradually terminate existing treaties

The proposed policy was met with skepticism among aboriginal populations which was articulated in the so-called ‘Red Paper’ entitled Citizens Plus published by the Indian Association of Alberta. The Red Paper took issue, among other things, with the lack of consultation from the federal government in the lead-up to the 1969 White Paper, the removal of Indian status in Canada and the repeal of the Indian Act itself. The criticism was so powerful that it prompted Prime Minister Pierre Trudeau to step-in and reverse government direction before any of the proposals could be enacted. Since that time the jurisprudence surrounding aboriginal affairs in Canada has continued to develop but the proposals outlined in the 1969 White Paper have never been mentioned in a serious political context. I take issue with Den Tandt’s failure to even mention the 1969 White Paper or the subsequent Red Paper in his editorial calling for the abolition of the Indian Act and the reserve system. Especially in light of the fact that aboriginal affairs in Canada is rooted deeply in historic events, De Tandt cannot begin a discussion on this topic without mentioning the 1969 White Paper.

Any discussion on how to move forward from the Indian Act and the reserve system must first be based on existing jurisprudence and should take place within the context of international law and agreements. The Supreme Court of Canada has on numerous occasions upheld the sui generis rights of aboriginal people in Canada (see Delgamuukw v. British Columbia). When discussing the relationship between Canada (Canadians) and First Nations (aboriginals), it should be conducted under the same pretense as discussing the relationship between Canada and the United States of America, for example. First Nations in Canada are equal and separate political entities in the same manner as any other states that exist in the world. This is not a mere statement of fact contained within the Indian Act nor it is not a policy of the department of Indian Affairs, rather it is a right that exists simply because of the relationship between the Crown and First Nations that has existed before Canada was a country and transcends all jurisdiction of the federal government. It is a sui generis right that has serious implications for the relationship between First Nations and the federal government.

Understanding the legal basis for the relationship between First Nations and the federal government, we can now discuss the sticky issue of aboriginal social welfare programmes and their sources of revenue. Just the same as it would be terribly out of line to suggest that Americans be granted a waiver to unconditionally inspect our budgetary finances in Canada, so too is it out of line to suggest that Canadians be granted permission to inspect the financial affairs of aboriginal people. This is rooted in the inherent right of nations through sovereignty and it is the same right which we as Canadians exercise when we govern ourselves within our own lands and comport ourselves in other lands. And furthermore, to argue that because the source of the funding is from the federal government and the Canadian taxpayer, and therefore an inspection is justified is not useful. The federal government has a fiduciary duty to ensure that a system is in place which permits First Nations to co-exist within the boundaries of Canada. This duty again does not stem from an act of Parliament but from internationally recognized rights that are unique to the relationship between the Crown and First Nations in Canada. The system which is currently established does not permit aboriginal people to raise revenue through traditional means typically exercised by a state. This system has been upheld by the Supreme Court of Canada provided that it continues to, in good faith, provide for the needs of the communities it seeks to serve. Thus, through our obligation to ensure that First Nations communities can co-exist in Canada, we have established a funding system as the sole source of income for aboriginal nations. Simply because the system involves the exchange of funding does not mean that one state entity has the right to follow-up on spending and order or direct spending schemes within another state. Or to use a more personal analogy; you would not permit the federal government to inspect your bank account simply because they backed your mortgage. And nor should an example of international aid come into play unless we are dealing with a situation where a state is in such a dire need for assistance that they request said assistance (as if often the case for international aid programmes). That is not to say that a funding scheme could not be proposed that would seek to follow-up on spending programmes within each nation, but such an agreement would have to be settled between the federal government and each respective nation. Again, respecting the rights of each political entity as separate and equal nations.

When we can understand the position of First Nations within the context of a relationship with Canada and the federal government we can better understand why arguments that seek to have aboriginal people integrate within Canada are illogical and oppressive. Again, just the same as Canadians would be revolted at the suggestion that we begin integration with the United States because said integration is inevitable, so too might First Nations be revolted at the idea of integration with the nation they have arranged to co-exist alongside. As a separate nation, we are masters of our own house and have the right to self-determination, which extends to cultural self-determination. Integration is simply not possible in any form as a government policy without being unconstitutional and worse against the spirit of international law.

At the end of the day, I do not have a solution to the relationship between the federal government and First Nations. I can agree that there is a problem and that it needs to be fixed sooner rather than later. I can also agree that the current provisions of the Indian Act and the reserve system are out-dated and require a complete overhaul. I reject the idea that the Indian Act can be abolished outright because Canada will always have a fiduciary duty to First Nations in Canada and thus a policy of some form will always exist at the federal level. Micheal Den Tandt simply avoids this discussion outright which only lends to an oversimplification on his part. In order to move ahead on this issue in Canada we must acknowledge the rights of aboriginals and bring the negotiations under the right terms. The Crown plays a positive role in this as the great mediator who has established this system in their wisdom, now at least Canada and First Nations can come to the table as brothers from a common mother.