Francis Savage Reilly (1825-1883)

7 12 2017

Today was the second day of the Supreme Court of Canada hearings into the Comeau case. I’ve been following some of the hearings on Twitter thanks to the live tweeting by Paul Braunovan, a partner at Perley-Robertson, Hill & McDougall., who is in the Court Room. He is also President @brownvanbrewing, an Ottawa’s craft beer company.

A few minutes ago, Paul noted that one of the lawyers  (Brown) disputed my interpretation of the historical origins of s. 121 of the Canadian constitution. I gather that there was a request from someone in the courtroom for more information about the actual individual who drafted the British North America bill before it went through the UK parliament. Well it was Francis Savage Reilly (1825-1883).

You can read more about his individual, his role in drafting s. 121, and his probable reasons for phrasing it in the way he did in right here.

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The Comeau Case: a Compendium of Resources

28 11 2017

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As long-time readers of this blog will know, I was the expert witness at a 2015 court case (Comeau) about the constitutionality of internal trade barriers in Canada. (I wrote a number of blog posts about this case at the time– see here and here). This test case involved a New Brunswick man who was charged with driving into Quebec, buying some beer, and then bringing it back to New Brunswick, which has a government monopoly on liquor sales. In Quebec, of course, you can buy beer in convenience stores and it is cheaper. The Comeau case has important ramifications for a number of industries, not just beer, since there are many interprovincial trade barriers in Canada that go against the constitution’s provision that there should be free trade between Canada’s provinces. For instance, there are restrictions on interprovincial free trade created by marketing boards. These restrictions serve to increase the price of milk and other commodities.

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Canada’s subnational governments, the provinces, impose many restrictions on interprovincial trade that are protectionist in intent and effect. (Canada isn’t the only country to have such internal trade barrier—see here for a gateway into the academic literature on this subject).  Canada’s internal trade barriers appear to conflict with section 121 of the 1867 Canadian constitution, which explicitly provides for free trade between Canadian provinces. This constitution is the British North America Act, 1867 (UK), which was retroactively renamed the Constitution Act, 1867 by the Constitution Act, 1982 . [Most academic historians continue to refer to the text by its historical name]. Since I wrote a PhD thesis and book on the political economy of the 1867 constitution, I am considered to be well qualified to speak about the motivations of the creators of section 121. You can read the expert witness report I wrote for the Comeau case here.

I believe that section 121 was included in the Canadian constitution because the framers of this document wanted the new Dominion of Canada to be a single market without fetters on interprovincial trade. These framers included the Fathers of Confederation- a group of British North American politicians- as well some senior British politicians (especially the Earl of Carnarvon but also Adderley, Watkin, and others), and a handful of very accomplished civil servants and lawyers in London.

150 years later, trade barriers are still in place. For those who don’t wish to read my entire expert witness report, this 2015 CBC article gives a summary of the views I presented in “The Historical Origins of Section 121 of the British North America Act: a Study of Confederation’s Political, Social, and Economic Context

In April 2016, the judge in the Comeau case made his ruling, which found that New Brunswick’s restrictions on the importation of beer from Quebec were incompatible with section 121. (You can download Justice Leblanc’s ruling, which was 194 paragraphs in length, here or here).

The Comeau case has now made its way to the Supreme Court of Canada, which will hear it on 6 and 7 December. In the last few weeks, the Canadian media have begun to carry a range of stories about the case and associated issues, such as the constitutionality of the provincial government monopolies on marijuana that will be created in 2018, when recreational marijuana becomes legal in Canada. There are literally dozens of stories on this topic, so I will content myself with linking to just a few (see-here, here, here, and here).  I was quoted in a recent Toronto Star story on marijuana and the constitutionality of interprovincial trade barriers.

I thought I would take this opportunity to share links to a series of online resources for people who are interested in this case and the various issues it raises.

The Supreme Court of Canada’s website has a section with a range of documents related to the Comeau case. For convenience, I have put links to them here.

As you can see, the Comeau case has attracted the attention of a wide range of interest groups!

Think tanks have published some interesting pieces about the case. For a perspective from the C.D. Howe Institute, see here. Also check out this 2013 report by the C.D. Howe institute,  “Beer, Butter, and Barristers: How Canadian Governments Put Cartels before Consumers”. (That report wins the prize for best title!)

In the wake of the lower court’s ruling in the Comeau case, the Canadian Senate Standing Committee on Banking Trade and Commerce has published a data-rich report on interprovincial trade barriers.

In the academic and legal blogosphere, the case has attracted some attention, particularly from those who are interested in whether “originalism” is the right way to the interpret constitutional documents (see here, here, and here). (I blogged some thoughts about originalism some time ago). Bradley Miller, a legal and constitutional historian at the University of British Columbia, published a much more eloquent piece about originalism in January that has recently been brought to my attention.

The implications of the Comeau case for the Canadian drinks industry have been discussed on Alcohol and Advocacy, a specialized legal blog maintained by Dan Coles, a litigation lawyer at Owen Bird Law Corporation in Vancouver, British Columbia.

In October 2017, Christopher Moore, a Toronto-based historian, published a paper that offers an interpretation of Section 121 that is very different from that which I offered in my 2015 report. You can read his paper Federalism, Free Trade within Canada, and the British North America Act, S.121 here.  Moore argues that Section 121 was not intended to eliminate non-tariff trade barriers between Canadian provinces, only tariff barriers.

There are many statements with which I disagree that appear in Christopher Moore’s paper. His paper motivated me to write a report that focuses on those of these statements that appeared in parts II and III of his paper. The most important of these points is his claim was that the creators of the British North America Act would not have been thinking about non-tariff barriers when section 121 was composed since nineteenth century people had not yet started to worry about non-tariff trade barriers. His argument is that paying attention to non-tariff trade barriers is a very comparatively recent development and one that dates from after 1970.  It is likely that Chris Moore has been misled by secondary sources that date from around the time of the GATT’s Tokyo and Uruguay rounds that declare that the focus on non-tariff barriers is totally new and without precedent.

Now it is certainly true that non-tariff trade barriers became a more important issue in trade diplomacy in the 1970s and 1980s than they had been in the 1950s. However, there is abundant evidence that the creators of the British North America Act and nineteenth-century people in general were indeed interested in non-tariff Western tariff barriers. The 1860 trade agreement between the UK and France, the famous Chevalier-Cobden agreement,  included sections that dealt with what we would today call non-tariff trade barriers.  (The WTO website has a good explainer that can act as an introduction to the academic literature on this agreemen and there is an equally good discussion of this treaty on the University of Exeter’s Imperial and Global Forum blog. Unfortunately, I can’t share an electronic copy of the text of this treaty here for copyright reasons).

Why is the Chevalier-Cobden agreement relevant here? The British parliamentarians who passed the British North America Act, Section 121 and all, were doubtless familiar with the provisions of the 1860 treaty, which they also debatedthey also debated. Most importantly, Francis Savage Reilly (1825-1883), the individual who actually wrote the British North America bill, also would have been familiar with the 1860 Anglo-French treaty, even though I haven’t been able to find out whether he actually read this document in his capacity as a lawyer who took on lots of British government work in the 1860s.   Reilly was the real architect of section 121 and my sense was that his drafting of it was informed by his knowledge of European commercial diplomacy.  Reilly literally wrote books on diplomacy and arbitration, as his WorldCat author entry shows! Moreover, we know from nineteenth-century US Supreme Court rulings that contemporaries in North America were aware of the potential to non-tariff barriers to impede trade between jurisdictions even in the absence of tariffs (i.e., fiscal levies imposed at ports of entry).

I discuss all of the problems with Moore’s interpretation in a new paper called A Critical Response to Christopher Moore’s “Federalism, Free Trade within Canada, and the British North America Act, S.121. Those who wish to read this as-yet unpublished paper can do so by emailing me on my University of Liverpool email address.





How Management Theory Helps Us to Understand Why the Canadian Government’s Celebrations of the 150th Anniversary of Confederation Ignore Confederation

3 06 2017

How Management Theory Helps Us to Understand Why the Canadian Government’s Celebrations of the 150th Anniversary of Confederation Ignore Confederation

Management academics are increasingly interested in the uses of the past (see here).  For a good gateway into this literature, see the very recent article in Administrative Science Quarterly by  Mary Jo Hatch and Majken Schultz (both of Copenhagen Business School). The focus of much of this research how managers and other social use ideas about history to get what they want in the present. In this blog post, I’ll try to show how this body of theory is useful in understanding a recent development in Canadian politics.

As long-time readers of this blog know, I’m now every interested in social memory (i.e., how perceptions of the past influence thought and action in the present). In an early stage of my academic career, I published extensively on the process by which the Canadian constitution of 1867 was created.  This process is called Confederation. British North America Act of 1867, which united several British colonies into a federal state, still forms the basis of Canada’s written constitution, which is why 2017 is considered to be the 150th anniversary of Canada.

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The 150th anniversary has been marked with public celebrations and commemorative projects all across the country, some of which are funded by a special program of the Canadian government. To mark the 150th anniversary of Confederation, the entry fees to all national parks have been temporarily lifted.  The government has decided to use the 150th anniversary of Confederation as an excuse to fund a variety of perfectly worthy projects that range from making playgrounds more accessible disabled children to orchestra tours to more funding for a ParticiPACTION, a campaign to make Canadians exercise a bit more.  (see full list here).

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Most of these fine projects have zero heritage or historical content and are thus similar to the civic projects that marked the 100th anniversary of Confederation in 1967. The 1967 Centennial project fund resulted in the construction of a string of municipal swimming pools, hockey arenas, roads,  libraries, etc all across Canada, all of which have the name Centennial.   As someone who was born in the 1970s, I was able to make use of some of the facilities built in 1967, so I would imagine that the facilities that will be opened this summer will benefit future generations.

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[I must confess that I am less certain that the gigantic rubber duck that Toronto has rented for the summer to celebrate the 150th anniversary of Confederation will actually benefit future generations, or indeed current residents of that city. The plan is to let the duck drift around Toronto harbour for the summer in a “whimsical” fashion. Although we are assured that the duck does not pose a threat to navigation, its arrival in the city has generated some debates about cost effectiveness].

 

Ok, let me get back to my main point. Some people have observed that the projects that the government has funded to mark the sesquicentennial of Confederation do not have anything to do with the actual event being commemorated (Confederation). Some historical or heritage projects are being funded, but they are designed to share stories about many events and historical periods in Canadian history rather than the events of 1867 itself.  For instance, there has been an oral-history initiative called Red Couch, which invites people to sit on a sofa in a public place and reminisce about what they have observed during their lives. Since nobody born in the nineteenth century is still alive, of course, this form of heritage will say nothing about Confederation in 1867. Similarly, children are being invited to make short videos called Here’s My Canada in which they talk about whichever events in Canadian history are of interest to them. From what I can see, the children were not asked to speak about the events of 1867 and they probably weren’t even told of them.

 

The legal academic Leonid Sirota has recently noted that while academics are using the sesquicentennial of Confederation as occasion for debating Canada’s  past and future constitutional development , the same is not true of the non-academic events designed to mark the sesquicentennial. In other words, whilst law school professors and political scientists interested in the constitution have organized scholarly conferences and journal special issues about that discuss the events of the 1860s, the government-funded events for the public have avoided discussing this issue.   In management journals, we have the concept of “organizational forgetting.” My fellow business-school professors have published a great deal of work on this subect. That’s what appears to be taking place in Canada right now—a conscious desire to try to supress discussion of 1867 and to get people to forget about the snippets of historical knowledge they have from high school that relate to the process that resulted in Confederation in 1867.

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An Iconic Image of the 1864 Quebec Conference

 

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Another Canadian-Famous Picture. The London Conference 1866

Most Canadians vaguely remember a little a bit about the various constitutional conferences in Charlottetown, Quebec City, and London that resulted in Confederation in 1867. The iconic pictures of these conferences taking place used to be very common in Canadian history textbooks and can still be found hanging in Canadian public buildings. These conferences have also been depicted on postage stamps (see below).

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The organizers of the Canada 150 celebrations could have used this summer’s celebrations as a teachable moment for building on the public’s rudimentary knowledge of politics in the 1867 to teach people about the process by which their constitution was created. It appears that they consciously decided to avoid doing so.

 

 

So we have a very curious pattern: there is a concerted effort to  ensure that little is said about the making of the Canadian constitution of 1867 in a series of celebrations designed to mark the 150th anniversary of this constitution.  The journalist Andrew Coyne recently mocked the whole Canada 150 project for, er, forgetting about Confederation.  Lawyers, who are naturally inclined to think that the 1867 constitution is rather important, have also noted that the celebrations are skipping over the thing they are supposed to be celebrating.

In a recent issue of the magazine of the Canadian Bar Association, Sirota speculates that part of the Liberal government’s evidence reluctance to mention the events of 1867 may be a desire to avoid accusation of partisanship and the manipulation of the historical record. He notes that  “both Liberal and Conservative governments have a record of playing politics with history and refusing to honour figures associated with the other [main] party, and it would have been difficult to mark Confederation without talking John A. Macdonald and George-Étienne Cartier” who were both Conservatives.

I have a somewhat different explanation for the policy of not mentioning the war not mentioning Confederation.  Anniversary celebrations can themselves be “performative” to use a fancy social-science term. That means that discussing a historical events may encourage people to think about doing something similar.  The historical event or figure becomes a sort of role model.

Consider the case of the firm du Pont Company, which was founded in 1802. According to the historian Alfred Chandler (1962, p.52), the process of planning  the 100th anniversary in 1902 forced the firm’s senior leaders to reflect on the future of the firm and whether dramatic administrative reorganization was required to deal with certain real changes in the firm’s operating environment. In the next few years, Du Pont, dramatically changed its internal organization. The firm likely would have made the same changes  anyway had the anniversary not focused the minds of its leaders of fundamental issues, but it does appear that the anniversary had at least some impact on their thought process.

A more dramatic case of anniversary celebrations being a focal point that encourages people to think about institutional change is the 1967 centennial celebrations in Canada. The 100th anniversary of the introduction of a new constitution (the British North America Act of 1867) prompted the political leaders to think about whether the constitution needed to be changed. The public celebrations of Confederation coincided with a meeting of senior politicians called The Confederation of Tomorrow where future changes to the constitution were discussed.

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Confederation of Tomorrow Conference, 1967

Now there was no obvious reason why constitutional change was urgent in Canada in the mid-1960s: although a very small nationalist movement was present in Quebec, the existing institutional arrangement represented by the 1867 constitution appeared to be working well—the country was politically stable, GDP was growing rapidly, unemployment was low, etc. Canada was a net recipient of migrants from the US, which was another sign the existing institutional arrangements were performing well. In some societies, constitutional change is necessary. In Canada in the 1960s, it was a solution looking for a problem. However, I can understand why Canadian politicians of the 1960s wanted to hold meetings and change the constitution. That’s because they had been brought up in a political culture that valorizes well, politicians who sit around in conferences and talking about changing the constitution. In some countries, they way to get your face on a postage stamp is to lead your country into war. In Canada, the way earn a place in the historical record is to attend meetings where you negotiate changes to the constitutional order. The men in the picture from 1967 I’ve pasted above may well have grown up licking postage stamps that celebrated the men who attended the 1864 constitutional conference in Quebec City. (I’ve also pasted a 1917 Canadian postage stamp that celebrated this meeting and the men who attended it).  Come of think of it, the politicians who attended the 1967 Confederation of Tomorrow Conference probably did see the 1917 postage stamp as boys.

 

I would speculate that staring at pictures of the Canadian constitutional meetings of the 1860s inspired Canadian politicians of the 1960s to become constitution-makers themselves. They had a role to perform! At around the time of the 1967 confederation celebrations, Canada’s federal and provincial leaders began a series of grand conferences devoted to the subject of how the constitution should be modernized.   These meetings were, visually, rather similar to the constitutional meetings that led to Confederation in 1867: they involved representatives of all of the provinces sitting together to talk about details of the constitution. The clothing styles were different and there were TV cameras rolling, but in other ways the process was basically similar to the earlier constitutional conferences.

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1981 Constitutional Conference Meeting

Constitutional politics came  to dominate Canadian politics from the 1970s to the early 1990s, when the last of these attempts at macro-constitutional change failed, when the they so-called Charlottetown Accord, a package of constitutional amendments was rejected in a deeply divisive national plebiscite.  For symbolic reasons, this accord had been negotiated in the city of Charlottetown, which has also hosted the famous 1864 constitutional meeting (see pictures below).

From about 1993 to the present, the Canadian political class has sought to avoid  marco-constitutional politics—the use of the so-called C-word (i.e., “constitution”). The focus has been economic policy, healthcare policy, global warming, the war on terror,  and pretty much everything except the constitution. The focus of politics has been on making decisions within the existing constitutional framework rather than changing the constitutional issues themselves.

I have no insider knowledge of the process by which the planners of the Canada150 celebration decided to ignore the actual events of 1867. However, I suspect that they were thinking that any public events that commemorated earlier rounds of constitutional bargaining (e.g., high-profile visits by political leaders to the sites of the constitutional meetings of 1864 and 1866-7) might encourage political actors to re-open the subject of constitutional reform. The last thing any Canadian Prime Minister wants is to legitimate calls for another set of constitutional conferences.  Instead, the Prime Minister wants to simply enjoy the festivities, which will culminate on 1 July, Canada’s national holiday and the precise moment when the Canadian constitution turns 150 years old. There will be a massive party and outdoor music festival in front of the Canadian parliament.

As if on cue, the Quebec government announced on 1 June that it was seeking to re-open  the subject of the constitution. It proposed a gathering of political leaders from across Canada so that the constitution can be re-written so as to satisfy its five demands for constitutional change, along with demands that may come from Aboriginal Peoples. In releasing a document with its proposals for constitutional change, the Quebec government explicitly stated that the timing of its publication was connected to sesquicentennial celebrations. The government’s 200-page policy paper  (available in French here and in English here) refers to the sesquicentennial and the events of 1867 and declared that:  “We must work to re-establish what Quebecers have always wanted since 1867: a Canada that accepts them for who they are….” The first 40 or so pages of the document consist of a historical narrative covering Quebec history from before 1867 to the 1995 Referendum on Quebec independence.

The timing of the Quebec’s government decision to re-open the constitution strongly suggests that historical anniversaries can become performative. In my view, it illustrates the utility of the growing body of research in management, and indeed across the social sciences, on social memory and the power of history to shape action in the present.

 

 

 

 

 

 

 

 





Thoughts on the Case of the Queen v. Comeau

27 08 2015

For the last few days, I’ve been testifying as an expert witness in a Canadian constitutional court case that has captured the imagination of the country and which has serious implications for a number of key economic sectors. The court case is about the section of the Canadian constitution that declares that there should be free trade among Canada’s ten provinces. It’s rare for a business historian to be called as an expert witness in a court case. However, since my PhD thesis was on the role of business in the creation of the Canadian constitution, I’m qualified to speak to what the framers of the Canadian constitution intended when they inserted this section (s.121) into the 1867 constitution. My view is that since the creators of the Canadian constitution wanted to create a comprehensive economic union of the various British colonies in North America, the various laws that restrict “imports” of goods from one Canadian province to another should be considered unconstitutional. (This particular “test case” centres on the conviction in 2012 of a man who purchased some beer in Quebec, a Canadian province, and then drove this beer into New Brunswick, another Canadian province, where he was arrested by the RCMP).

I’ve been astonished by the extent to which the Canadian media is discussing this case (see here, here, and here). Last evening, Canada’s 24 hour news channels were abuzz with discussion of the case. For part of yesterday, our case was the most discussed issue in Canadian social media, ahead of the ongoing federal general election. Moreover, the topic has gone viral in ordinary conversations. As I write this I am sitting in a roadhouse in between the location of the trial, the tiny border town of Campbellton, and the nearest international airport, which is in Moncton. The other diners, who don’t know that I am involved in the case, are energetically debating its merit. One of the people I just overheard has speculated that if free trade in beer among Canadian provinces is established, the brewing companies will no longer be required to operate small breweries in each province. This individual, who appears to be of university-student age, is predicting consolidation and rationalization in the industry should the defence win in this trial. (The defence wants the court to declare inter—provincial trade barriers to be unconstitutional). His friend is talking about the implication for dairy products and the other goods that are currently fettered by internal trade barriers. The implication is that if inter-provincial free trade and a Canadian common market is established, a wide range of industries will have to be restructured. I expect that regardless of the decision by the judge, the case will ultimately make its way to the Supreme Court of Canada.

I’ve listened to a number of radio stations, French-language and English-language, during my drive today. Interspersed among the music and weather reports is discussion of the ongoing trial.  The DJs are also reference discussion of the trial on Facebook and other social media. A DJ at a radio station said “For anyone who is at the trial today, here is this song”. He proceeded to play a catchy pop song by Mark Ronson and Bruno Mars called “Uptown Funk.” I don’t know how much meaning should be read into the DJ’s decision to play this song in honour of the ongoing trial.  It would probably be a mistake to ascribe any political significance into the verbal machine-gun fire that is commercial radio DJ blather.  However, I do know that the people in the local community I spoke to are uniformly in favour of being able to purchase beer in Quebec dépanneur.

As I prepare to fly back to Europe, I reflect that I am honoured that my academic research has been used in this way in a court case that has important implications for many companies, and individuals, in an important G-20 economy. My guess is that future economic historians may regard this case as the Canadian analogue of the Cassis de Dijon case in EU law. (That court case helped to create the European Common Market).

If you would like to read the Expert Witness Report that was submitted to the court,it will soon be available online.

P.S. I would like to thank the staff of the trial hotel, Campbellton’s Quality Inn, and Brasserie 1026, the adjacent restaurant, for all of their help during my stay in their community.





The Use and Abuse of Environmental Knowledge: A Bloomington School Interpretation of the Canadian Fisheries Act of 1868

25 11 2014

The Review of Austrian Economics has just published my article The Use and Abuse of Environmental Knowledge: A Bloomington School Interpretation of the Canadian Fisheries Act of 1868 

Abstract: This paper will focus on the ambitious plan for regulation embodied in the Dominion Fisheries Act of 1868, a law passed by the Canadian federal parliament in its very first year of existence. The 1868 law was intended to bring the nation’s fisheries firmly under the control of officials employed by the new federal government. The paper argues that 1868 law, which was designed to address what would today be called Tragedy of the Commons problems, was a product of the hubris identified by Hayek as “the fatal conceit.” The centralized and bureaucratic approach to governing fisheries represented by the 1868 Fisheries Act did not work well because the knowledge that would have been required for successful management of fisheries was highly dispersed. Drawing on Hayek and the Bloomington School, this paper argues that the experience of Canada’s fisheries sector in the generation after 1868 illustrates the problems with centralized management Common-Pool Resources. In the 1890s, the centralized approach represented by the Fisheries Act of 1868 was replaced by a more flexible and decentralized system Hayek’s theory of knowledge would suggest the reversal of centralization over environmental policy in the 1890s was a positive development that helped Canadians to reconcile the goals of economic development and the protection of the environment. The Hayekian paradigm of knowledge management suggests that control over environmental policy should be devolved downwards to the levels of government closest to resource users.

F.A. Hayek

F.A. Hayek

Special thanks to Viv Nelles, Pierre Desrochers and Mark Pennington for commenting on an earlier draft of this paper. I also received valuable feedback when I presented this paper at a workshop at the Rotman School of Management in Toronto.  Thanks also to the Foundation for Canadian Studies in the United Kingdom for its financial support.





AbitibiBowater, Danny Williams, NAFTA, and the Future of Canadian Federalism

25 02 2010

The Grand Falls Pulp and Paper Mill as it Appeared in the 1950s

The inside of the mill

AbitibiBowater has filed a $500-million free trade complaint over the expropriation of some of its resource assets by the Newfoundland and Labrador government. In 2008, the company announced it was shutting down a pulp and paper mill in Grand Falls. Newfoundland’s Premier, Danny Williams then announced that it was going to nationalize the mill. Danny Williams was then dubbed Danny Chavez by the media, a somewhat inaccurate comparison with the leftwing and anti-American leader of Venezuela, Hugo Chavez.

Danny Williams

The company, which was incorporated in Delaware, announced that it was going to sue the provincial government under a provision of NAFTA that protects the property rights of American and Mexican firms in Canada. For the benefit of US readers, I should point out that Canada’s constitution does not protect property rights. In Canada, the theory is that all property is the gift of the Crown (i.e., the government) and can be taken back if needs be.

To make the politics of this case even more complex, the government of Quebec is now considering buying a stake in AbitibiBowater, which is now bankrupt and in court protection. The governments of Newfoundland and Quebec have never been able to get along. There is bad blood going back to a border dispute in Labrador.

I don’t think that Williams was right to expropriate AbitibiBowater’s assets without fair compensation. Seizing the asset in this way may discourage future foreign investment in the province. However, one thing about this story really disturbs me as a constitutional historian. The federal government, which had nothing to do with the provincial government’s seizure of the mill, yet it is Ottawa rather than the provincial government is being sued by the company.

The apparent thinking is that the federal government has a responsibility to foreign nations to control sub-national units. The problem with this is that management of Crown land and property and civil rights are clearly a matter of provincial jurisdiction. If the federal government can gain control over matters of provincial jurisdiction simply by signing a treaty with a foreign power, the authority of the province’s will be eroded. This is a case with momentous implications for Canadian federalism.

In the late 1930s, the JCPC, which was then Canada’s highest court of appeal was called upon to rule on the constitutionality of the Bennett New Deal, a package of federal legislation that dealt with matters previously considered to be provincial. Louis St-Laurent (see left), the future Prime Minister who was the federal government’s lawyer in this case argued that the federal government had acquired the right to legislate in this field by virtue of Canada being a member of the League of Nations, an organization that had set standards regarding working conditions. St-Laurent concocted an argument based on section 132 of the British North America Act, which gives the federal parliament authority to implement imperial treaties, in this case the labour aspects of the 1919 Treaty of Versailles.

In 1937, this argument was, essentially laughed out of court by the law lords of the Privy Council. Actually, what Lord Atkin said was that the mere assumption by Ottawa of an international obligation under a treaty did not alter the distribution of powers in the Constitution. Atkin said : “While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.” For the ruling see here.

One wonders how the Supreme Court of Canada would rule on a case in which the federal government claimed authority over a provincial matter by virtue of the NAFTA treaty.

As far as I can tell, no observer in the media has commented on the possible implications of this case for the constitutionality of federal policy under a future climate-change treaty. However, the connection between s. 132 of the constitution and the Kyoto Accord has been discussed by Chris Kukucha, a political science professor in Alberta.  Many in Alberta have argued that Canada’s decision to sign the Kyoto Protocol was unconstitutional because only the provinces have the power to limit greenhouse gas emissions and to sign agreements related to them.





Ignatieff on the Monarchy

4 11 2009

An opinion piece on the monarchy that Michael Ignatieff published in The Observer in 1992 has surfaced.  Some people are interpreting this article as evidence that Ignatieff supported the idea that Britain should become a republic.  (See here). The article, in true Ignatieff fashion, avoids making a clear statement on whether the monarchy should be abolished, although it does criticizes aspects of the British monarchy as it then existed. As far as we can tell, Ignatieff appears to have been calling for a more Scandinavian-style monarchy. Either way, I don’t think Canadians will care about what Ignatieff said in a British debate nearly twenty years ago.

The sad thing is that Michael Ignatieff is unwilling to take a stand on this issue as it relates to Canada in 2009. If he championed the cause of republicanism, he might boost his popularity, since most Canadians favoured getting rid of the monarchy. The silence of the NDP on the issue of the monarchy is also deafening. Even though the majority of Canadians want us to become a republic, the leaders of the three federalist parties are too cowardly to broach this issue.

The royal visit has generated some discussion in the media about the future of the monarchy in Canada. See:

Lawrence Martin in the Globe and Mail

Heather Mallick in the Guardian

Claire Hoy in the Orangeville Citizen

Andrew Duffy in the National Post (see also here)

(I will add new links as they appear)