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Some Factors Affecting the Resolution of a Federal-Provincial Conflict*

Published online by Cambridge University Press:  10 November 2009

Neil Caplan
Neil Caplan
Affiliation:
London, England
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Canadian Journal of Political Science/Revue canadienne de science politique , Volume 2 , Issue 2 , June 1969 , pp. 173 - 186
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Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1969

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References

1 A detailed history of the dispute can be found in the author's “Offshore Mineral Rights: Anatomy of a Federal-Provincial Conflict”, Journal of Canadian Studies (forthcoming).

2 Bill “L,” “An Act to Amend the Territorial Lands Act,” introduced in the Senate on October 29, 1957, and referred to the Standing Committee on Natural Resources which held hearings on November 21 and December 11, 1957, and January 9, 1958.

3 Canada Oil and Gas Regulations, PC 1960–474; superseded by Canada Oil and Gas Lands Regulations, PC 1961–797 and subsequent amendments.

4 Most of the correspondence exchanged was made public in the “Case” submitted to the Supreme Court of Canada in 1965. See II, 432–7.

5 The first ministerial meeting took place in Ottawa on July 26, 1963. This meeting was followed by only one other, which took place almost a year later, June 12, 1964.

6 PC 1965–750, April 26, 1965.

7 Reference Re Ownership of Off-shore Mineral Rights (1968) 65 DLR [2d] 353. For a discussion, see the author's “Legal Issues of the Offshore Mineral Rights Dispute,” McGill Law Journal, XIV, no. 3 (Sept. 1968), 475–93.

8 For the initial federal optimism and proposals see, e.g., House of Commons Debates (unrev.), March 15, 1968, 7670; Dec. 2, 1968, 3342–3; and March 4, 1969, 6171. Evidence of the continuing dispute may be seen in the provincial hostility to these federal proposals. See, e.g., Le Devoir, 3 déc. 1968; Globe and Mail, Dec. 4,1968.

9 This last set of factors, while of no small importance, will not be discussed in the present article owing to the difficulty of penetrating the secretive oil firms involved. For an interesting exposé of the role of oil interests in the United States “tidelands” controversy, see Engler, Robert, The Politics of Oil (Chicago, 1961), esp. 86–95.Google Scholar

10 Duverger, Maurice, The Idea of Politics (London, 1966), 171.Google Scholar

11 This was complicated further by the fact that judicial interpretation since the Second World War was tending to favour the central government, while informal political relationships seem to have benefited the provinces more (see n. 20 below). In addition, further confusion resulted from the misunderstood and misused “mystique” of “co-operative federalism” (see section B below).

12 This suggests that perhaps single issues periodically serve as foci for the frustrations encountered in a variety of unresolved federal-provincial problems.

13 Hurley, James Ross, “Federalism, Co-ordinate Status, and the Canadian Situation,” Queen's Quarterly, LXXIII (summer 1966), 151. Cf.Google ScholarJohnson, A. W., “The Dynamics of Federalism in Canada,” this Journal, I, no. 1 (March 1968), 24.Google Scholar

14 Carl Friedrich has suggested the notion of federalism as a “process” of continuous differentiation and integration. “New Tendencies in Federal Theory and Practice,” mimeo., 1964; see Birch, A. H., “Approaches to the Study of Federalism,” in Wildavsky, A., ed., American Federalism in Perspective (Boston, 1967), 59–60.Google Scholar A related notion in Canada can be seen in Trudeau, P. E., who speaks of the oscillation between times of federal and times of provincial dominance. “The Practice and Theory of Federalism,” in his Federalism and the French Canadians (Toronto, 1968), 134 ff.Google Scholar; cf. his “Quebec and the Constitutional Problem,” in Ibid., 37–9. Black and Cairns refer to the “cyclical swings from centralization to decentralization and back again.” Black, E. R. and Cairns, A. C., “A Different Perspective on Canadian Federalism,” Canadian Public Administration, IX (1966), 29.Google Scholar See also Johnson, “The Dynamics of Federalism in Canada,” 20–1.

15 See, e.g., Smiley, D. V., The Canadian Political Nationality (Toronto, 1967), 20–1;Google ScholarCorry, J. A., “Constitutional Trends and Federalism,” in Lower, A. R. M., Scott, F. R.et al., Evolving Canadian Federalism (Durham, NC, 1958), 118Google Scholar; Black and Cairns, “A Different Perspective on Canadian Federalism,” 30–1; A. R. M. Lower, “Theories of Canadian Federalism,” in Lower, Scott et al., Evolving Canadian Federalism, 40; Beetz, Jean, “Les Attitudes changeantes du Québec à l'endroit de la constitution de 1867,” in Crépeau, P.-A. and Macpherson, C. B., eds., The Future of Canadian Federalism/L'Avenir du fédéralisme canadien (Toronto, 1965), 119.Google Scholar

16 See, e.g., Smiley, The Canadian Political Nationality, 39–41, 51–2; Black and Cairns, “A Different Perspective on Canadian Federalism,” 31–3.

17 The levelling of jurisdictional barriers resulted in a ‘fused federalism’ characterized by involvement of the federal administration in virtually all of the provincial areas of ‘exclusive’ jurisdiction.” Black and Cairns, “A Different Perspective,” 33. Cf. Smiley, D. V., “Public Administration and Canadian Federalism,” Canadian Public Administration, VII (1964), 385–6Google Scholar; Smiley, The Canadian Political Nationality.

18 See, e.g., Black and Cairns, “A Different Perspective,” 34 ff.; Smiley, “Public Administration and Canadian Federalism,” 380 ff.; Johnson, “The Dynamics of Federalism in Canada,” 22–3; Trudeau, “Quebec and the Constitutional Problem,” 38–9.

19 Il reste en effect à savoir si la pénombre s'étendra sur les compétences provinciales ou sur les pouvoirs fédéraux.” Jacques-Yvan Morin, “Vers un nouvel équilibre constitutionnel au Canada,” in Crépeau and Macpherson, The Future of Canadian Federalism, 144. It is suggested that both observers, like Mr. Morin, and political actors themselves are unable to clearly assess the “direction” of contemporary “co-operative federalism.”

20 For example, Black and Cairns, “A Different Perspective,” 36; Johnson, “The Dynamics of Federalism in Canada,” 23–4. However, J.-L. Pepin believes that “constant co-operation is what might save Canadian federalism in the future from swinging, as in the past, from excessive centralization to excessive decentralization.” Speech of March 13, 1967, to the Association of Real Estate Boards, mimeo., 10.

21 A deadlock situation may be seen as one in which either (a) both parties prefer non-agreement to the kind of agreement which each feels is available from the other, or (b) one party is perfectly willing to allow the state of non-agreement to continue, while the other is unable to coerce or convince the former into wanting to come to an agreement at that particular time. See, e.g., Iklé, Fred Charles, How Nations Negotiate (New York, 1964), 68 ff.Google Scholar

22 The provinces have not been asked [their opinions on the proposed amendment to the Territorial Lands Act (see n. 2 above)]. If they were to challenge it, I presume they would do so in the courts.” R. G. Robertson, deputy minister of northern affairs and natural resources, Proceedings of the standing committee on natural resources (Senate of Canada), Nov. 21, 1957, 8. “Any reversal of [our] position would depend upon the advice of the courts.” Dinsdale, W. G., minister of northern affairs and natural resources, House of Commons Debates, Sept. 11, 1961, 8153.Google Scholar

23 For example, Premier Lesage said, “Nous continuerons d'émettre nos propres permis et les reconnaîtrons comme seuls valides. Il n'est pas question d'émettre conjointement des permis.” La Presse, 22 juillet 1965.

24 In such situations it may be expected that each party will (a) hold out for as long as it can in order to arrive at a settlement which will offer it the best “available” terms, and (b) always seek to bargain from a position of strength. See, e.g., Iklé, How Nations Negotiate, 59–62.

25 “Offshore Oil Troubles the Waters,” Queen's Quarterly, LXXII (winter 1965–6), 602.Google Scholar

26 Globe and Mail, Dec. 9, 1966.

27 Ibid. Cf. Black, “Offshore Oil Troubles the Waters,” 590, and pp. 180–1 below. Russell, in contrast to these opinions, says that the “inclination of governments to refer constitutional questions directly to the courts is especially marked in the modern period.” Russell, Peter H., ed., Leading Constitutional Decisions (Toronto, 1965), xxiv–v.Google Scholar

28 Atkey, Globe and Mail; Black, “Offshore Oil Troubles the Water,” 602.

29 Atkey, Globe and Mail; Although his diagnosis is similar, Black dissents from this conclusion (although with some internal inconsistencies to his own argument, it seems to me) by stating that “ultimately, if negotiation in good faith has continued fruitlessly for some time, an outside referee becomes essential where the controversy is of some public consequence.” “Offshore Oil Troubles the Waters,” 603.

30 Iklé questions the conventional wisdom concerning negotiation: “Is this always the best way to settle a conflict?… both sides make concessions, [but] according to which law?” He also challenges several platitudes on the subject: “If both sides negotiate in good faith (Who judges ‘good faith'?) they can always find a fair solution (And what is ‘fair'?)… A good negotiator should never make a threat he is not prepared to carry out (What is wrong with successful bluffing?).” How Nations Negotiate, 1–2, 53–4.

In the present case, see House of Commons Debates March 12, 1962, 1708 ff.Google Scholar; December 12, 1962, 2580; February 25, 1965, 11719; February 26, 1965, 11759; June 25, 1965, 2842–43; February 21, 1966, 1540–41.

31 Rejecting the idea of a reference case to the Supreme Court of Canada, Premier Bennett publicly called for the resolution of the dispute “by co-operative federalism.” Vancouver Sun and Victoria Daily Colonist, Aug. 5, 1964; Vancouver Sun, Aug. 6, 1964; cf. comments by Diefenbaker, John, House of Commons Debates (unrev.), Aug. 7, 1964, 6525.Google Scholar Also, on May 4, 1965, Premier Bennett accused the Liberal government of hypocrisy for having violated its pledges of “co-operative federalism,” because it was going ahead with the reference case. Vancouver Sun, May 4, 1965. See also n. 43.

32 How Nations Negotiate, 3–4.

33 Idea of Politics, 169–70 (emphasis added).

34 “Statement Regarding the Position of the Province of British Columbia With Respect to Offshore Mineral Rights,” Aug. 20, 1963, dispatched to Ottawa, Sept. 24, 1963.

35 Ibid., 20; correspondence between Laing and Kiernan, July 31, 1963, Aug. 21, 1963 (confidential).

36 See, e.g., Kiernan's, statements reported in Vancouver Sun and Victoria Daily Colonist, Jan. 3 and May 1, 1964.Google Scholar

37 Press release 201–5609, Monday, June 15, 1964: “… After a review of the possibility of administrative arrangements and a review also of their respective legal positions, both Ministers were of the view that the only way the matter could be reconciled was by a reference to the Supreme Court of Canada….”

38 For reports of these conferences see (a) Globe and Mail, Oct. 15, 1964; Victoria Daily Times, Oct. 21, 1964; Financial Post, Nov. 21, 1964; House of Commons Debates (unrev.), Nov. 4, 1964, 9740–1; (b) Saywell, John T., “Federal-provincial Conferences,” in Saywell, ed., Canadian Annual Review for 1965 (Toronto, 1966), 61CrossRefGoogle Scholar; Globe and Mail, July 22, 1965; Vancouver Sun and Victoria Daily Times, July 21, 1965; La Presse, 22 juillet 1965; Vancouver Sun, July 22, 1965.

39 It is to be expected that in a bargaining situation a distinction can be made between one's real and one's stated positions. In an ideal situation, one deliberately overstates the latter, so that concessions which are not inimical to one's real stand may be made, if necessary. In the present case, British Columbia's stand seemed to leave no such room for manoeuvring, asking for the maximum and being satisfied with nothing less. For example, “… so far as mineral rights in B.C. are concerned, they are ours and that's all there is to it.” W. A. C. Bennett, quoted in Vancouver Sun, Aug. 14, 1961.

40 “Imaginez-vous bien les mots que j'emploierai le 19 juillet [1965] alors que je serai entouré des premiers ministres [sic] qui ont les mèmes interêts que les miens.” Premier Lesage, quoted in Le Devoir, 25 juin 1965. Cf. the alarm expressed in a Montreal Star editorial of June 29, 1965: “What is implied in M. Lesage's statement is that, if a substantial number of provinces back him… Ottawa should give way.”

41 See, e.g., the replies of the provincial premiers to Lester Pearson's letter of Dec. 11, 1964, which announced his definite intention to proceed with a reference case. Sessional Paper 356, tabled in the House of Commons, Feb. 26,1965.

42 Even when the dispute was relatively obscured from the public spotlight, provincial premiers have gone on record as listing Ottawa's resort to the Supreme Court on this issue as one of their main grievances. See, e.g., Premiers Stanfield and Robichaud, interviewed by Newman, Peter, reported in Ottawa Journal, Jan. 24 and 31, 1967.Google Scholar See also Premier Stanfield's comments in Globe and Mail, Aug. 3, 1967.

43 Premier Bennett saw withdrawal of the reference as “the real test of the Liberals — if they really believe in co-operative federalism or are just out to grab everything the provinces own.” Quoted in Vancouver Sun, May 4, 1965. Mr. Laing's reactions were forthcoming in a three-page press release 1–6559, May 7, 1965.

44 See, e.g., Corry, “Constitutional Trends and Federalism,” 96, 115–8, 120–1. Smiley has noted that “the federal aspects of the Canadian constitution… have come to be less what the courts say they are than what the federal and provincial cabinets and bureaucracies determine them to be.” “The Rowell-Sirois Report and Provincial Autonomy,” Canadian Journal of Economics and Political Science, XXVIII (Feb. 1962), 59,Google Scholar quoted in Russell, Leading Constitutional Decisions, xxvi. Russell goes on to agree that “co-operative federalism” in the post-war period had “been much less a litigious struggle between Ottawa and the provinces to defend and expand their own enclaves than a matter of political compromise and administrative pragmatism;” but he imposes important qualifications (see below).

45 Leading Constitutional Decisions, xiv, xxvi.

46 For example, “British Columbia was never a willing bride in Canada. Ottawa talks with a forked tongue…. They think of us as a goblet to be drained…. Ottawa's trying to steal our offshore minerals, but they never will, because that would shake this country as nothing has shaken it before.” Premier Bennett, interviewed by Newman, Peter, Toronto Daily Star, Feb. 18, 1967.Google Scholar

47 Mr. Pearson saw the problem as follows: “If federal compromises in the interest of agreements which are valid and wise… merely increase the appetite for concessions that would not be valid or wise, and if the feeling develops that the federal government will always give way when pressed, then this country is in for serious trouble.” House of Commons Debates, Jan. 20, 1966, 73. Cf. Mr. Diefenbaker's doubts about “that so-called new federalism that has brought about so much division” (Ibid., June 25, 1965, 1843) and Mr. Hamilton's views, n. 63.

48 Iklé, How Nations Negotiate, 87. Cf. “Co-operation is a two-way street. It has obligations as well as benefits. Sometimes it has appeared that our various representatives have failed to consider it in these terms.” Burns, R. M., “The Machinery of Federal-Provincial Relations, II,” Canadian Public Administration, VIII (1965), 532.Google Scholar

49 Iklé, How Nations Negotiate, 99 ff. See below, p. 182. In addition, it is possible to view the sequence of events from 1957 to 1960 as constituting a broken pledge of sorts. When testifying before the standing committee on natural resources on January 9, 1958, federal ministers specified (in an about-face after an initial hostile reception to Bill “L” by the senators) that the amendment to the Territorial Lands Act was “not applicable to land under the sea on the east or west coast.” Hamilton, Alvin, Proceedings…, Jan. 9, 1958Google Scholar, 46; cf. 47, 52, 56. Yet in 1960 a federal order in council (n. 3) made possible the federal granting of offshore exploration permits in these areas. (See correspondence cited in n. 4.)

50 Iklé, How Nations Negotiate, 102 ff. Cf. above, esp. n. 39.

51 Ibid., 106 ff. Immediately following the announcement of the order in council asking the opinion of the Supreme Court, British Columbia's Attorney General, Robert Bonner, publicly claimed that neither he nor his officials had been consulted, and pointed out that “this reference has got off to a very bad start.” Vancouver Sun, April 30, 1965. Mr. Pearson quickly dispatched (and released to the press) a stern wire expressing his astonishment at the Attorney General's statement, which was undoubtedly erroneous. CN Wire, May 1, 1965.

52 Iklé, How Nations Negotiate, 109–11. For instance, Mr. Laing charged Mr. Bennett with preventing exploration by greedily demanding exorbitant fees. Calgary Herald, Oct. 6, 1964; Victoria Daily Colonist, Oct. 7, 1964 (“Bennett to Laing: ‘Keep Hands Out’.”). Also, British Columbia did not hesitate to imply “thievery” on the part of the federal Liberal party; cf. nn. 43, 46.

53 Iklé, How Nations Negotiate, 114 ff. For example, “Federal officials are trying to butt in, but they have no more chance of getting offshore mineral rights in British Columbia than they have of getting them on the moon…. They'd better keep their cotton-pickin’ fingers off our resources.” Bennett, W. A. C., quoted in Globe and Mail, Oct. 15, 1964.Google Scholar It is difficult, of course, for both the observer and the politicians themselves to draw a definite line between personal “colour” or “flair,” on the one hand, and downright arrogance or rudeness on the other.

54 Cf. page 179, above.

55 “Our repeated efforts to get a stated case from the Federal Government, however, have on each occasion received only the bland reply that the Federal Government is advised by its law officers that they have jurisdiction. We do not know to this day and are unable to find out on what, if anything, the Federal Government bases its assertion. From this failure to state their case we can only further conclude that they have in fact no case at all.” W. K. Kiernan, “Excerpts from an Address in the Legislative Assembly during the 1962 Session,” mimeo. (n.d.), 3. See also Victoria Daily Colonist and Vancouver Sun for Jan. 3, 1964; Victoria Daily Times, Aug. 8, 1963; Vancouver Sun, Nov. 2, 1965.

56 Cf. n. 34.

57 Arthur Laing to W. K. Kiernan, March 21, 1966 (used with permission).

58 Ibid. When, in December 1964, Mr. Bennett continued to press for the federal brief, Mr. Pearson immediately replied that his letter of December 11, 1964, fulfilled any obligation which his government might have had. Sessional Paper 356.

59 See, e.g., Vancouver Sun, Feb. 18, 1966. Mr. Laing, also in a different portfolio at the time, wrote Mr. Kiernan to review once again the history of the dispute as he saw it.

60 Difficulties of Divided Jurisdiction, Study prepared for the Royal Commission on Dominion-Provincial Relations (Ottawa, 1939), 9–10.

61 Smiley, “Public Administration and Canadian Federalism,” 375–7. It should be noted that the animosities generated during the offshore mineral rights dispute remained, as in the case of other disputes, only at the level of the political actors, and did not seep down to the stratum of senior civil servants.

62 “Offshore Oil Troubles the Waters,” 590, 602.

63 House of Commons Debates (unrev.), May 24, 1966, 5462.

64 Newman interview, Toronto Daily Star, Feb. 18, 1967.Google Scholar

65 Quoted in Vancouver Sun, Oct. 23, 1965; see also Ibid., March 19, 1965.

66 “Like any human beings, officials who play a role in negotiations have their emotions, personal frailties, and quirks… [and] are all influenced by their own sympathies or hostilities….” Iklé, How Nations Negotiate, 143. In Canada it seems possible to classify most politically aware people on the basis of their “centralist” or “provincialist” sympathies.

67 Edgar Gallant underlines the importance of the “process of getting to know one's counter-parts in other governments, to the extent that a sense of rapport and conviviality is established. This… helps to oil the channels for smoother intergovernmental consultations in future.” “The Machinery of Federal-Provincial Relations, I,” Canadian Public Administration, VIII (1965), 524.

68 This is suggestive of Bertram Gross’ choice of the term “struggle,” rather than “adjustment” or “bargaining,” to describe the American legislative process. The rejected terms, he feels, unrealistically suggest either a balanced outcome or a willingness to compromise. The Legislative Struggle (New York, 1953), 4–7.

69 Difficulties of Divided Jurisdiction, 9.

70 Constitutional Trends and Federalism,” 124.

71 Legislative Expedients and Devices Adopted by the Dominion and the Provinces, Study prepared for the Royal Commission on Dominion-Provincial Relations (Ottawa, 1939), 8–9.

72 Johnson, “The Dynamics of Federalism in Canada,” 24. Manitoba seems to be the province referred to in the case of Hudson Bay. See Sessional Paper 356.

73 Montreal Star, May 8, 1967.

74 Difficulties of Divided Jurisdiction, 9. Smiley is more explicit in paraphrasing Corry's main contention: “… if the provincial official shows himself to be relatively passive in the face of his federal collaborators [or vice versa, for that matter], he is demonstrating to his superiors that he has lost his originality. Conflicts thus [can] be attributed to… factors inherent in the situation and are more likely than otherwise to occur when able and zealous people are involved…. It is almost inevitable that federal and provincial officials will disagree on the objectives of particular public policies and the most appropriate means by which they may be attained…. When administrative conflict between two independent bureaucracies occurs there is no hierarchical superior by which the dispute may be expeditiously resolved.” “Public Administration and Canadian Federalism,” 375–6.

75 There has been a very recent pragmatism expressed by some federal politicians suggesting that, where functionally justifiable, there should be strong federal and strong provincial governments (i.e., the strength of one level does not necessarily mean the corresponding “weakness” on the part of the other). See, esp., the suggestions of Elliott, Pierre Trudeau for “un seul critère: l'efficacité,” Réponses (Montreal, 1968), 42–3.Google Scholar Jean-Luc Pepin suggests the principle, “à chaque ordre de gouvernement selon ses aptitudes.” “Le fédéralisme coopératif,” in Institut canadien des Affaires publiques, Le Canada face à I'avenir (Montreal, 1964), 118. Whether this philosophy is truly practicable and to what extent it will be practised are interesting questions for future observation.

76 Cf. nn. 44, 45.

77 For a more detailed account, see the author's “Offshore Mineral Rights: Anatomy of a Federal-Provincial Conflict.”

78 Corry, “Constitutional Trends and Federalism,” 121.

79 This is not to suggest that arriving at a solution guarantees that the settlement arrived at will be “equitable” and “satisfactory” in the eyes of all concerned. This is a “value” question focusing on the content of the settlement, which is a different and subtler dimension of conflict-resolution.