Thursday, October 12, 2006

JOHN A. AND THE BNA - NON-CENTRALIZING TENDENCIES?

L. Ian MacDonald argues in his speech to the Calgary conference that the BNA Act and the governance of John A. Macdonald established a tradition of respecting the right of provinces and established the foundation of Canadian compromise and asymmetrical federalism.

I have to disagree.

The BNA Act did delineate both Federal and Provincial powers but which powers did it give to which level of government. MacDonald himself spells some of them out:

In the BNA tradition, Ottawa's powers are invested in section 91, the POGG, peace, order and good government. Defence, foreign affairs, international trade, the economic union. The powers of the provinces are in section 92, including health care, daycare, and cities.
I would argue that Ottawa got control of most of the powers that really mattered to government in the later nineteenth century. Health-care was an entirely private concern. Upper and Lower Canada had well established public education systems that pre-dated Confederation with the School Acts of 1841 and 1843; there was no need to undo what was already working. As for post-secondary education it was largely private and largely the reserve of a small elite. As for cities, even in 1901 the country’s population was still predominantly rural, with most people’s livelihoods connected to farming.

Further, MacDonald overlooks two major factors that diminish this portion of his argument. First, powers over jurisdictions not specifically enumerated in the BNA Act were reserved to the federal government, not the provinces. Second, the BNA Act allowed the federal government the power of disallowance over any provincially passed statute.

Lets discuss this aspect specifically. MacDonald himself argues that the power of disallowance “fell into disuse.” This is hardly accurate.

The provision of disallowance began to fall into disuse in 1881 when Prime Minister John A. Macdonald three times vetoed a piece of Ontario legislation. Macdonald’s use of the disallowance clause was finally appealed by private interests, whom the proposed law benefited, to the Judicial Committee of the Privy Council in London where Macdonald’s use of the clause in this instance was ruled to be a gross violation of private rights. From that case the precedent of not using the disallowance clause was set.

The use of the disallowance clause was not the only example of Macdonald’s often centralizing outlook. Ian MacDonald sites the NEP as an instance of Liberal centralizing tendencies. Indeed. But what of Sir John’s National Policy. Remove the ‘Energy’ aspect and apply it to everything. Not to mention Macdonald’s massive use of patronage to solidify his power not just in Ottawa but also to influence policy and placemen in the provinces.

L. Ian MacDonald glosses over a lot to argue that the BNA Act as envisioned and implemented by Sir John A. Macdonald respected the power of the provinces and did not hold any federalist centralizing tendencies.

Posted by Matthew @ 5:01 PM