Friday, 4 January 2013

The Small Matter of Responsible Government

Canada is a constitutional monarchy with a parliamentary democracy. While I’m not fond of the monarchy part – elevating individuals based on heredity being so very unseemly – I do respect how this confluence of ideas and historical institutions underpins our mode of government. As David Smith has forcefully explained, the Crown is the first principle of Canadian government[1], underpinning diffuse aspects as federalism and the judiciary. I also take solace in the fact that I can separate the Crown – the locus of power and authority of the Canadian state – from the monarchy – the manner in which we choose to represent and express that power.

This is no mere trick or slight of hand.  It the product of centuries in which Crown powers – literally, the powers associated with an adornment worn on the monarchs head – were gradually divorced and exercised by representative (and ultimately, elected) governments and placed firmly in the hands of Parliament. Government continues to be vested in the Queen – so says the Constitution Act – but this exercise of power has been transfigured by the practice of constitutional convention and other documents of constitutional weight.

The product of that evolution is essentially an extension of responsible government in which responsible Ministers exercise executive – thus Crown – authority. In the standard parlance we speak of Ministers advising the Crown, but as Mallory notes, “a Minister or the Cabinet is assuming responsibility for a decision which they have taken”[2] not merely proffering advice. The point is that the powers of the Crown – with little exception – are essentially exercised – without need of consultation with the monarch or her representative the Governor General – by the Prime Minister or the Cabinet without need to resort to the formal executive to enact decisions or exercise power.

This pattern of constitutional and political development has important ramifications for historic relationships, particularly between Canada and First Nations. The Royal Proclamation (1763) was enacted in the voice of the King. This seems to establish a direct relationship between Crown and First Nations. Indeed, that is a pattern which continues through subsequent monarchs. The problem is that this is an elaborate fiction and had become so even in 1763. A close examination of the wording of that important document reveals that this was far from an arbitrary or personal decree of George III, but rather one made in conjunction with his council – that is, Cabinet.

This had ramifications for Canada. First, and most obvious, Canada is the inheritor state of the British Crown. As such, there is a continuance of what came before unlike the American example in which the overthrow of British authority decoupled the new state from previous agreements, including the Royal Proclamation.[3] This means that the government of Canada – extending from provisions in s.91 of the Constitution Act – inherits treaty obligations as they existed prior to Confederation (all laws remaining in place unless repealed by the new Parliament). Aboriginal title and existing treaties remain in force.

The second ramification, in conjunction with the advent of responsible government in the 1840s in the British possessions, is that the nature of Crown power changes and thus the relationship between First Nations and Britain. This change is formalized in the 1931 Statute of Westminster in which Canada – along with the other white Dominions – is granted formal autonomy from the Imperial Parliament at Westminster. Canada – more specifically the federal government – would assume the relevant Crown powers in this regard.

Why does this matter? The simple fact is that this demonstrates a change in who speaks on behalf of the Crown and who exercises its power. Responsible government – essentially the democratization of Crown powers, albeit far from complete in 1840 – means that the Cabinet is the locus of executive authority. Foreign relations are conducted through this body – largely by the PM (although there remains ambiguity over the role of province, and thus premiers, in foreign relations[4]) – and not by the Governor General who’s role is largely ceremonial. The political aspects flow through Cabinet and the power to make, modify, and implement treaties flows through a functional executive, not the formal executive.

So, what is the point of all of this in connection to the Crown-First Nations relationship? Simply this: Aboriginal demands for a Crown-First Nations meeting can be fully satisfied by the presence of the Prime Minister – or frankly, by the Aboriginal Affairs Minister – as both represent and act on behalf of and exercise the powers of the Crown as they relate to policy – particularly Aboriginal policy – and treaty making and implementation. To include the Governor General would be superfluous and futile. The position has no policy powers. Moreover, the Governor General should avoid making more than the vaguest pronouncements in areas touching upon politics. His role is symbolic and apolitical and should be brought into the political arena. To do so merely undermines the office without gain and introduces a troubling – and undemocratic – element, reversing centuries of political development. For better or worse, the relationship between the Canadian Crown and First Nations is mediated through the democratically responsible Cabinet. The Governor General has no place at the table.

[1] See The Invisible Crown: The First Principle of Canadian Government, David Smith
[2] See The Structure of Canadian Government: Revised Edition J.R. Mallory p35
[3] For a good discussion of the differences between the experiences of the settler states’ relations with Aboriginal people, see Recognizing Aboriginal Title by Peter Russell
[4] See The Politics of Canadian Foreign Policy by Kim Richard Nossal

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