It was to be Fisheries Minister Jonathan Wilkinson’s first appearance in the Senate, still new in the portfolio. Senator Don Plett led off, asking on the Fisheries bill and how it had provisions around captions of cetaceans which were different from those in the Senate public bill that deals with similar matter. Wilkinson first led off by remarking that he used to be a constitutional negotiator and worked on senate reform, before he launched into some prepared remarks on the capture of cetaceans for public display, and said that they support the Senate bill in principle and looked forward to the Chamber’s debates on the Fisheries bill. Plett pressed and raised Wilkinson’s predecessor’s concerns around provincial jurisdiction which would render the Senate bill unconstitutional, and Wilkinson noted that the Senate bill is not government legislation, but the provisions related to whales in the Fishies bill were done with the understanding that it was federal jurisdiction.
Tag Archives: First Nations
Roundup: Finishing a ham-fisted job
In the wake of Karina Gould’s appearance at Senate QP earlier this week, the ISG is reaching out to the media to push the narrative that they desperately need changes to the Parliament of Canada Act in order to “finish the job” of making the Senate “independent,” which has me giving a bit of a resigned sigh because it feels to me a bit like someone climbing onto a steamroller when they’ve barely taking the training wheels off of a bicycle. While there are arguments to be made for changes to the Act, it ignores the fact that it’s actually fairly difficult to do (previous attempts to change the Act have been curtailed because of legal opinions that have stated that it may require the consultation of the provinces), and the fact that it’s probably premature to start making these changes.
While on the one hand, I understand that the ISG is looking to cement changes to the Senate in advance of the election in the event that the Liberals don’t win and a hypothetical Andrew Scheer-led Conservative government starts making partisan appointments again, and they want to protect the gains they’ve made, but on the other hand, they really still haven’t even learned how the Senate operates currently, so demanding changes in advance of that seems a bit precious. The fact that they haven’t managed to figure out some pretty basic procedure (while complaining that it’s being used against them) and then demanding the rulebook be thrown out and rewritten to suit them is problematic, and making what amount to permanent changes to the institution on the basis of what is currently a grand experiment seems completely foolhardy – particularly when they have already negotiated workarounds to most of the issues that are currently irritating them, such as funds for the ISG, while I’m really not sure why the length of vote bells is being treated as a dire circumstance demanding action.
The other thing that bothers me with the interview that Senator Woo gave is that he’s demanding that Trudeau pick up the reins with this modernisation while he’s thus-far been content to let Senators figure it out. Granted, there is an element of “he made this mess and now he’s letting everyone else clean it up” to the whole thing, but I’m not sure I want to trust Trudeau to finish the job of “modernising” the Senate because of the fact that he’s caused significant damage that a future generation is going to have to undo, and along the way, he’s managed to centralise more power within the caucus room as part of his ham-fisted “fix” for a Senate problem that didn’t actually exist. Trying to get him to finish the job may simply be inviting bigger problems that will take even longer to undo.
QP: Eight questions later…
With so much news going on, and so many balls to juggle, it was a question as to whether the Conservatives would carry on the tactics they’ve been pursuing the past week or so. Andrew Scheer led off, mini-lectern on desk, and he immediately led off with the falsehood that small and medium-sized business would bear the brunt of the new carbon taxes. Justin Trudeau stated how proud he was of his plan, and they had lowered small business taxes. Scheer tried again, and Trudeau accused the Conservatives of having no plan. Scheer waved around the background documents to claim that the industrial sector is exempt from the same costs as SMEs — deliberately omitting that the rebates are only for trade-exposed sectors — but Trudeau didn’t correct the record. Scheer dug into that same line of questioning, and Trudeau went into a bit of high dudgeon about how Canadians wanted more than opposition but wanted their plan. Scheer tried one last time, and Trudeau again avoided calling bullshit on it, but simply lamented that the Conservatives were unwilling to take climate action. Guy Caron was up next for the NDP, who raised the concerns of BC First Nations opposed to the Trans Mountain pipeline who claim the new process remained rigged. Trudeau picked up a script to read about how the we’re getting the job done. Caron then raised the lack of movement on steel and aluminium tariffs, and Trudeau took up another script to read about how great the New NAFTA was. Tracey Ramsey took over to lament that polling showed people being disappointed with the agreement, and Trudeau assured her that he met with workers in her area who were pleased with the deal. Nathan Cullen returned to the TMX review’s timelines, and Trudeau picked up a script to say that the old process was why the previous government couldn’t get pipelines built.
Scheer again remains obtuse about trade-exposed sector compensation. #QP
— Dale Smith (@journo_dale) October 24, 2018
QP: Performative carbon outrage
While Justin Trudeau was off in Toronto to sell his climate rebate plan, Andrew Scheer was back in Ottawa, leading the charge against the idea. And to lead off in QP, he disingenuously suggested that a carbon price would have no effect on the climate (not true), and would only raise costs for families. Dominic LeBlanc responded by touting that they have a plan and the Conservatives did not. Scheer forced a tortured trick-or-treat analogy to insist that large emitters were exempt from the plan — which is a lie — and LeBlanc reiterated his points without correcting the record. They went for another round of the same, and then Scheer reached into his bag of greatest hits to demand the true costs of the climate plan, and LeBlanc hit back that Scheer’s lack of plan wouldn’t be revealed until after the election. Guy Caron was up next for the NDP, and he railed about the concessions in the New NAFTA. Marc Garneau praised the agreement and stated that they were continuing to fight the steel and aluminium tariffs. Caron railed about the exemptions on duties for private couriers but not Canada Post, and Garneau insisted that Canadians were satisfied with the agreement. Alexandre Boulerice heard scorn on the government’s climate targets, and LeBlanc assured him that they were living up to their commitments, and noted the Nobel prize for pricing pollution, which is what the government was doing. Boulerice groused about pipelines, and LeBlanc gave more assurances of their plan.
Scheer falsely says that large industrial emitters are exempt from the plan, which I reiterate is a lie.
And Dominic LeBlanc lets the lie go uncorrected on the record. #QP— Dale Smith (@journo_dale) October 23, 2018
QP: Trying to lay an obvious trap
Following statements marking the two fallen soldiers who were killed by terrorists on Canadian soil four years ago, Andrew Scheer led off in French, mini-lectern on desk, reading a demand to deal with returnees from groups like ISIS, and that included demanding support for their opposition motion. Justin Trudeau responded with a statement of support for the police and intelligence services who are looking to bring these people to justice, and that they would support their motion. Scheer switched to English to repeat the demand, saying the government hasn’t done enough, and Trudeau reiterated the response in English. Scheer switched to the Mark Norman case, demanding the records from PMO be released to Norman’s defence, and Trudeau said that he wouldn’t comment on the case as it’s before the courts. Scheer insisted that he didn’t want comment on the case, but wanted to know if he would release the documents, to which Trudeau said that there were all kinds of other things they could ask about but they were fixated on this court case he couldn’t comment on. Scheer took Trudeau up on the invitation to ask about the New NAFTA, and wondered about caps on dairy exports to third countries, but Trudeau simply praised Supply Management and didn’t answer. Guy Caron was up next for the NDP, lamenting that Canada could not meet their GHG targets, to which Trudeau accused the opposition of refusing to accept that the economy and the environment to together. Caron changed to French, and railed about the purchase of the Trans Mountain pipeline, and Trudeau listed investments in environmental protection that they’ve made, and insisted that they would meet their GHG targets. Hélène Laverdière demanded that arms to Saudi Arabia be halted, to which Trudeau picked up a script to read his condemnation for the killing of Jamal Khashoggi, and said that they were working closely with G7 allies. Laverdière switched to English to repeat the demand, and Trudeau read his English version of the script, with new paragraphs on strengthening export permit reviews.
QP: More Mark Norman insinuations
While Justin Trudeau was in town but not in Question Period, Andrew Scheer was also away for reasons undisclosed. Candice Bergen led off on the Vice-Admiral Mark Norman issue again, demanding that the government turn over recordings of Cabinet meetings where shipbuilding contracts were discussed. Ralph Goodale got up to respond by reminding her that this is before the courts and they can’t discuss it. Bergen raised the spectre that the government was destroying records because of the Ontario Liberals did in relation to the gas plants scandal. Goodale reminded her of the Standing Orders that state that matters before the courts can’t be discussed. Bergen tried again on the same insinuations, and Goodale said that the government follows the law. Gérard Deltell got up to try again in French, and Goodale reminded him about the independence of the courts. Deltell reminded him that Paul Martin released records for the sponsorship scandal, and Goodale cautioned him that commentary like that was not permitted. Guy Caron was up next for the NDP, demanding expungements instead of pardons for former simple possession convictions. Goodale reminded him that the old system didn’t work which was why they changed it, and that they were putting in a new expedited process for those pardons. Caron asked again in French, and Caron reminded him that the expungements for when the law itself was discriminatory such as when it criminalised people for being gay. Hélène Laverdière got up next, and asked the government to apply the Magnitsky Act on Saudi officials responsible for the disappearance and possible death of Jamal Khashoggi. Chrystia Freeland assured her that they were working with partners to call for answers, but when Laverdière asked again in English, bringing up our arms sales, and Freeland gave a more pointed response about the G7 foreign minister’s statement that she led.
QP: The broken record of the Norman files
On cannabis legalisation day, as all the media was focused on line-ups at pot shops, the work of Parliament carried on. Andrew Scheer led off, curiously raising the court case of Vice Admiral Mark Norman and the refusal to turn over secret documents to his defence team. Justin Trudeau said that this was before the courts, and would comment no further. Scheer tried again in English, and Trudeau reiterated his response. Scheer demanded the documents be released, not a comment, and Trudeau repeated his responses, and they went yet again, and again. Guy Caron was up next, and wanted criminal records for pot possession to be expunged rather than pardoned, and Trudeau gave a speech about how prohibition didn’t work and why legalisation and regulation was a better path — but he didn’t answer the question. Caron switched to French to ask the same again, and this time, Trudeau said their plan was for rapid pardons. Matthew Dubé picked up on the same demand for expungements, and Trudeau spelled out that these were different than the LGBT expungements because those laws were an instrument of discrimination. Dubé returned in English by saying the war on drugs is racist, and Trudeau said they recognised that fact, but insisted that the pardons would be free and fast.
Roundup: Protecting parliament from court interference
The decision in Mikisew Cree First Nation v. Canada (Governor General in Council) at the Supreme Court of Canada yesterday has been described in some cases as relieving the government of the Duty to Consult Indigenous communities when preparing legislation, but I think some of that misses the very real issue of the separation of powers and parliamentary privilege – particularly when the news channels would immediately trot out Indigenous lawyers to say that this was an infringement on the Duty to Consult, and that it was a “missed opportunity” to get legislation right, and so on. (And lo and behold, here’s Pam Palmater to argue just that, and I find her analysis flawed). In fact, the CBC piece on the decision buried the aspect about separation of powers at the very bottom of the piece, despite the fact that it’s at the heart of the ruling.
To recap, the separation of powers is the doctrine that the executive, legislative, and judicial branches have different roles and you shouldn’t have them meddling in one another’s business, which is exactly what the case was proposing to do – to allow the courts to weigh in on legislation before it’s been passed, or in this case, even been drafted. That’s a huge overreach by the courts, and a giant infringement on parliamentary supremacy. Why that’s especially important is because we’re seeing a growing movement of people who try turning to the courts when they lose at politics, which is very bad for democracy. (In fact, it appears that the Mikisew are engaging in a bit of that very thing here, objecting to the changes to the changes to environmental assessment legislation). If the Mikisew had their way, it would allow for the courts to weigh in on the legislative process at all points, which not only makes legislation impossible, but it means that parliament can no longer govern its own affairs, which is a very bad thing. Of course, there were many differences of opinion between the justices as to how this all shakes out, but they all agreed that the courts have no role in interference in the legislative process, and I don’t think that was highlighted nearly enough.
https://twitter.com/cmathen/status/1050384273394622464
https://twitter.com/PhilippeLagasse/status/1050384955954483200
https://twitter.com/PhilippeLagasse/status/1050386530752032768
https://twitter.com/PhilippeLagasse/status/1050389501523050496
https://twitter.com/PhilippeLagasse/status/1050390172947296257
https://twitter.com/PhilippeLagasse/status/1050393327521038336
https://twitter.com/EmmMacfarlane/status/1050397264298950657
This being said, they did affirm that the Duty to Consult is still necessary – just that it didn’t need to be mandatory before drafting legislation. Smart governments who take the Duty seriously would do so in the planning stages of legislation, and there are opportunities to engage in consultation during the legislative process, particularly at committees, when amendments can be proposed that would assist with accommodation. Emmett Macfarlane also suspects that we could see the Senate take a more active role in ensuring proper consultation as it weighs in on bills as well, which could be an interesting evolution in the Senate’s activities as we move forward with its “new” characteristics.
https://twitter.com/EmmMacfarlane/status/1050391764069019649
https://twitter.com/EmmMacfarlane/status/1050392582931369984
https://twitter.com/EmmMacfarlane/status/1050393088823185408
Meanwhile, Philippe Lagassé digs into Justice Brown’s reasoning around the Crown’s distinct capacities. Here is a thread from Emmett Macfarlane on his thoughts on the decision. And here’s University of Ottawa law school vice dean Carissima Mathen to explain the decision.
Roundup: Yet more dubious suggestions hosted by the GRO
Over on the Government Representative Office website, Government Leader in the Senate – err, “government representative” Senator Peter Harder has been hosting suggestions from former senators of late on how to “reform” the Senate. Because of course he has. And not all of the suggestions are particularly helpful, or good for the Senate in the long run. The latest example is from Senator Pierre De Bané, who was a senator for thirty years and an MP before that. De Bané seems to think that what the Senate needs more than anything is the independent oversight body that the Auditor General wants instituted before voluntarily neutering its powers by passing a motion to only use a suspensive veto. Because hey, if it’s good enough for the UK…
I’ve written numerous times that the notion of an independent oversight body risks the senate’s status as a self-governing parliamentary body. I would be okay with an audit committee that includes outside members but is still made up with a majority of senators in order to ensure that it remains in Senate control because it’s important that our parliamentary bodies retain self-governing status. Otherwise we might as well turn power back over to the Queen, because we obviously have no business governing ourselves. I’m also forever baffled by the notion that we should neuter the Senate’s ability to exercise hard power and defeat a bad government bill when necessary. It’s part of their necessary duties to hold government to account, and before you say that it’s good enough for the House of Lords, the Canadian Senate is a vastly different body than the Lords, with a very different history, and the Senate was never the primary legislative body as the Lords was for centuries. These are differences that can’t be papered over.
De Bané’s other suggestion is that the Senate start creating a series of special committees tailored to senators’ special interests to…do advocacy work, apparently. I’m not opposed to senators undertaking an advocacy role on issues that are of particular interest to them, I am less keen on the proliferation of special committees because I worry that it will draw the focus away from the actual legislative responsibilities of senators – especially in an environment with independent senators who are beholden to nobody and who aren’t able to be corralled into getting work done. We’re already having problems getting bills passed in a timely manner because the leadership within the Senate refuses to do things like negotiate with one another – now imagine that these senators are otherwise engaged with busywork of their own interest rather than with the boring work of scrutinising legislation or holding government to account. I do fear that creating an environment where personalized committees can proliferate will have a detrimental effect on the Senate overall, and I’m a bit surprised that a former senator doesn’t see this possibility.
Roundup: Not appealing, just consulting
First thing yesterday morning, the federal government announced that they were proceeding with restarting consultations with First Nations affected by the Trans Mountain Expansion pipeline, and that they had tasked former Supreme Court of Canada justice Franc Iacobucci to oversee the process. Iacobucci has done a great deal of work around the Duty to Consult in recent years, as this report that he wrote with law firm Torys LLP demonstrates, along with work he’s done with Ontario over the underrepresentation of Indigenous people on juries in the province. Indigenous groups in the region have responded with some optimism, but are also warning that these consultations can’t come with a predetermined outcome if they’re to be meaningful (which may be too far to go given that the government has stated that this project will go ahead). Some of those Indigenous communities are also looking at the fact that this process could allow them to talk more amongst themselves.
https://twitter.com/coreyshefman/status/1047512242109997056
https://twitter.com/coreyshefman/status/1047512244303663104
https://twitter.com/coreyshefman/status/1047512246660808704
https://twitter.com/coreyshefman/status/1047512248716087297
Meanwhile, Rachel Notley and Jason Kenney (among others) are bellyaching that the government has opted not to appeal the Federal Court of Appeal decision to the Supreme Court of Canada, and yet not one of them has articulated what the error in law they are looking to contest would actually be, which is kind of a big deal if they think the Court will hear it. It’s also not clear that an appeal would get them any clarity anytime soon, given that the Court usually gives about six months between granting leave and hearing the case in order to provide time for submissions, and then a decision could take another six months at least – possibly more if it’s a contentious issue, like this one is.
This is really important for those imagining there is a legislative 'answer' to duty to consult. It's a legal interpretation of the constitutional duties of the Crown, so the gov't can't legislate the equivalent of yelling "not it!" on the duty. https://t.co/MWkZJSjWAN
— Andrew Leach (@andrew_leach) October 3, 2018