MUNICIPAL GOVERNMENT IN A NEW
CANADIAN FEDERAL SYSTEM
Report of the Resource Task Force on
Constitutional Reform
Federation of Canadian Municipalities
Ottawa
Members of the Resource Task Force
Yves Bériault, Montreal
Lionel D. Feldman, Toronto
Professor Dale Gibson, Winnipeg
Professor André Tremblay, Montreal
Chairman
Professor Edward McWhinney, Q.C.
May, 1980
[letterhead]
City of Vancouver
British Columbia
V5Y 1V4
April 23, 1980
OFFICE OF THE MAYOR
JOHN J VOLRICH
MAYOR
To the Members of the Executive
Federation of Canadian Municipalities
I am transmitting herewith the final report of the Special Committee on Constitutional Reform.
This report is submitted for the consideration of the Members of the Federation of Canadian Municipalities at its Annual Meeting to be held June 8th to June 11th, 1980 in Halifax.
If I may add a personal note, this report represents an excellent presentation on a difficult, complex subject and I should like to extend my sincere thanks to the very able gentlemen who made up the special Resource Group which has been responsible for the preparation of this report, namely Dr. Edward McWhinney, Dr. Dale Gibson, Mr. Lionel Feldman, Mr. Yves Beriault, and Mr. André Tremblay.
Mayor Jack Volrich,
Chairman
Special Committee on Constitutional Reform
[letterhead]
FCM
federation of canadian municipalities
federation canadienne des municipalities
SUMMARY OF “MUNICIPAL GOVERNMENT IN A CANADIAN FEDERAL SYSTEM”,
A REPORT OF THE TASK FORCE ON CONSTITUTIONAL REFORM
The Report Municipal Government in a New Canadian Federal System is a response to the revived “Great Debate” on the future of the British North America Act of 1867, as amended, and of the Canadian federal system generally, itself initiated as a direct consequence of the election of the Parti québécois Government in Quebec in the November, 1976, general elections. With research and study groups on the constitution launched at both the federal and the provincial governmental levels, it seemed likely that among the specific projects for constitutional change emerging in the immediate future would be proposals for comprehensive, as distinct from piecemeal or incremental, change, leading on to entirely new federal constitutional charters involving of necessity reexamination of the constitutional role, status, and powers (legislative and financial) of the municipalities as the third level of government within Canadian Confederation. Even without the stimulus to immediate, short-range proposals for constitutional change in response to the conceived Quebec political crisis of tbe late 1970fs, the rapidly changing situation of the municipalities and of local government generally in the post-World War II era — the marked increases in population as a result of the flight from rural areas and of the mass waves of immigrationj to Canada, the new social and economic problems going with the augmented numbers and an increasingly plural, multi-lingual and multi-cultural urban community-fmeant enormous strains upon largely static municipal financial resources. There was also a crisis in decision-making power, flowing from the fact that existing municipal constitutional-legislative competences and their established techniques of social control through law could only with difficulty encompass the new social problems and the new forms of civil and criminal delinquency that accompanied them. It would thus have been inevitable, even without the Quebec crisis, that Canadian municipalities should undertake some review of their contemporary roles and missions, as distinct from those originally envisaged and constitutionally provided for in the British North America Act at the time of its adoption in 1867; and also some critical examination of the extent to which the legislative competences and the economic resources effectively allocated to the municipalities more than a century ago respond to or fall far short of the present responsibilities. The election of the Parti québécois Government in November, 1976, and the launching of the Quebec referendum campaign, and the consequent acceptance by all Canadians of the obligation to re-examine the intellectual basis of our Confederation and the fundamental political compromises of contending social
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forces and interests inherent in it, simply accelerated a process of constitutional review that, in the case of the Canadian municipalities, could not be postponed for too long. [“The Federation of Canadian Municipalities set up a Special Committee on Constitutional Reform to formulate concrete proposals on the future role of the municipalities in a new or Renewed Canadian federal system, and the Special Committee, in turn, formed an “expert” advisory research committee — named the Resource Task Force on Constitutional Reform—in January, 1979, charged with the task of preparing a scientific report that would set out the existing situation of municipalities within the Canadian federal system, identify the main objections raised against the existing system and also the points of weakness or strain, and finally canvass the main alternative options for change available for the future with some attempts at quantification, as far as possible, of the differing degrees of social cost. The Report, officially presented in May, 1980, and discussed at the Annual Meeting of the Federation held in Halifax in June, 1980, is the collective work of a group of scholars and specialists in Constitutional and Local Government Law, and it is broadly representative of the two legal systems, Civil Law and Common Law, and also of the main regions of the country. The collective responsibility of the Resource Task Force covers the scientific conclusions and recommendations set out in the Report, though individual members have assumed responsibility for particular research chapters and documents according to their individual expertise.
The constitutional plan of 1867 was to allocate responsibility for local government to the Provincial spheres. In terms of the British North America Act of 1867, the Municipalities are the creatures of the Provinces, and their powers to legislate and to impose taxes and raise revenues must therefore be derived, by constitutional indirection, from Provincial powers. From the viewpoint of the municipalities, this has meant that the quest for a sphere of legislative autonomy and of fiscal autonomy free from the possibility of arbitrary alteration or recall, and without which rational and orderly community planning and development on some continuing, long-range basis becomes difficult if not impossible, must be pursued through the Provincial governments. In part because of Canadian Supreme Court jurisprudence as to intergovernmental delegations and transfers of constitutional competences, and in part because of inflexible administrative attitudes at the Provincial governmental levels, such legislative and financial autonomy for municipal government on a guaranteed, term-of-years basis has proved difficult to attain. The federal Government in recent years has shown itself as sympathetic to municipal governmental decision-making concerns in the light of the sharply accrued social and economic problems and conflicts inherent in the larger urban concentrations, federal government ventures in dealing directly and bilaterally with the municipalities through the creation of a special federal Ministry and through the use of the federal Government’s general constitutional powers in order to make financial grants directly to the municipalities without the intervention of the Provincial Governments have aroused strong Provincial opposition and produced a federal Government retreat when directly challenged or objected to by the Provinces. The federal Government view seems to have been that, in venturing into such fields, it was doing what comes naturally in terms of cooperative,
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intergovernmental decision-making in what are so often complex community problems involving more than one level of government at the same tiraeTî The municipalities would no doubt have agreed that, in cooperating with tliè federal government without using the intermediary of the Provincial Governments, they were merely acting to fill a vacuum in community decision-making created by the failure of the Provincial Governments themselves to move affirmatively with their own comprehensive programmes on their own positive authorizations to the municipalities to act on their own account. It must be noted, in this regard, that by comparison to other, more generally modern federal systems like that of West Germany, or to continually “modernized” constitutions like that of the United States, the B.N.A. Act of 1867 has significant gaps both as to the possibility and also the concrete machinery for intergovernmental cooperation involving the three levels of government (federal, provincial, municipal), or some of them, at any one time, and also as to the constitutional guarantee, on some more long-range and continuing basis, of legislative autonomy and financial autonomy to the municipalities, and even institutional autonomy (meaning here the ability to revise or amend, on one’s own initiative, the basic municipal charter).
The three municipal and local governmental autonomies referred to-law-making, financial, institutional — could be constitutionally effected in several different ways. They could be entrenched in the federal constitutional charter, or else entrenched in Provincial constitutional charters, or finallyjjrealized at both federal and Provincial levels, in complementary ways. What seems important is that it be done, in one way or another, in a new or “renewed” Canadian federal system; and this is the main recommendation in the Report of the Resource Task Force. In fact, and on the basis, as a scientific committee, of recommending, if possible, in a way that involves no unnecessary onstitutional escalation in terms of disturbance of existing institutions and processes within the constitutional-governmental system,[the Resource Task Force recommends a two-level approach that will involve entrenchment of the general principle of local government and of the three local government “autonomies”, in a new or “renewed” Canadian constitution, and that will have the concrete implementation and specification of such “autonomies” in Provincial constitutional charters, or in the general Provincial constitutional systems
in the absence of a specific Provincial constitutional charter. The same results could, of course, be achieved another way by putting everything in a new or “renewed” federal constitution — both the general principles and also the
detailed specifications; and that would involve, of course, a frank and uninhibited constitutional acceptance of the existence of the three distinct levels of government — federal, provincial and municipal — each of these being autonomous within its own federal system as a whole in deference to the principle of federal comity. As already indicated, the Report’s authors have not felt it necessary to go as far as that for present purposes; nor have they actively canvassed, in their recommendations, the possibility of constitutionally elevating to the rank of City-Provinces in their own right, certain of the great contemporary urban concentrations in Canada, interesting though such possibilities might be in a Canadian context in the future, and demonstrably successful though they have certainly been in comparative federal constitutional experience in the post-World War II era.
TO: Members of the Federation of Canadian Municipalities and Delegates to
the 43rd Annual Conference
It is with pride and pleasure that I accept the final report of the Resource Task Force on Constitutional Reform. I am confident that it will serve as an outstanding basis for discussion of the Constitutional reform issue at our forthcoming Annual Conference in Halifax.
My colleagues on the Executive Committee and I extend sincere thanks to the members of the Resource Task Force and to its able Chairman, Dr. Edward MeWhinney for their excellent work on the Federation’s behalf.
To Mr. Dale Richmond, who prepared Chapter 5 of this report, our special thanks are due.
C. J. Purves,
President of the
Federation of Canadian Municipalities
Mayor of Edmonton
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