Thursday, 29 December 2011

Near Buckingham Palace, London, August 2011

The Queen was not in residence.  We had to make do without her.

What’s so great about balanced budget laws?

(This is an edited version of the original blog.  For some reason the last half dozen paragraphs were omitted from the first "publication."  Sorry about that.)

Over the past couple of weeks the BC government has suggested it may not be able to balance the provincial budget by 2013-14, as is required by the Balanced Budget and Ministerial Accountability Act.

It’s hard not to sympathize with Finance Minister Kevin Falcon, who has to manage the impact of a deteriorating world economy on provincial government revenues and expenditures.

But my intention here today is not to talk about the fiscal challenges facing government; rather, I want to talk about what it means to make a law that requires government to balance its budget every year.  

[Full disclosure:  I was a Cabinet minister in the BC Liberal government which enacted the Balanced Budget and Ministerial Accountability Act in 2001.]

A basic feature of our system of government is that each year the government must ask for permission from the legislature to spend money.  The request is contained in the documents that accompany the budget speech which the Finance Minister gives in the legislature.  The legislature eventually gives permission by passing what’s called a “supply” bill.    

If the legislature does not “give” supply, the government will not have the authority to spend money.   

All of this is part of the framework within which our system has operated for generations.  It is both legal and political.  Taxes are levied and supply is granted by law.  But the debate over the budget is purely political - it’s about the government’s taxing and spending decisions. 

Of course, government usually has a majority in the legislature, so the immediate result is usually not in doubt.  But government will also eventually be responsible to the voters for its budget decisions.  

In my view, that’s the best accountability tool we have: the electorate.  The question whether government has struck an acceptable balance between taxing and spending is ultimately a political question, for voters.  It should not be a legal question.

Balanced budget laws change this dynamic.

There are different ways balanced budget laws work.  They can be written in a way that gives government some flexibility, and impose different kinds of consequences if the budget is not balanced.  But in BC it’s very simple.  The law states, “The main estimates [ie, the budget] for a fiscal year must not contain a forecast of a deficit for that fiscal year”.

Put bluntly, the point of making it a legal obligation to balance the budget is to tie the hands of spendthrift politicians.  A politician who promises to enact a balanced budget legislation is therefore trying to up the ante on his commitment to fiscal prudence.  The not-so-hidden message is that a legal requirement is somehow more serious than a political commitment.  

Why am I concerned about this?

First, the argument that politicians can’t be trusted to do the right thing in the absence of a law is not just a cynical perspective on politics; it actually undermines political accountability, because it says that voters can’t be trusted to hold politicians accountable for bad budget decisions. 

Of course if a politician is running for office against a government that has lost its political credibility on fiscal matters then it is tempting to make a promise to do something that will make it harder for any politician ever again to practice fiscal imprudence.

But generally, the argument that a law is required to achieve a political objective is an argument that politics is somehow not good enough.

My second concern is that the enactment of a balanced budget law changes the conversation from what government ought to do, which is a complex multi-faceted consideration of a myriad of economic and fiscal policy facts, to what it must do, which is both brutally and deceptively simple, namely, balance the budget.  That makes it all sound much simpler than it really is.  

In the absence of a balanced budget law a Finance Minister is forced to defend his fiscal policy decisions on their own terms.  Is the level of taxation adequate?  Are programs and services well designed and properly funded?  

A balanced budget law distorts the conversation.  Take speed limits, for example.  The question for drivers is not, “what would a safe driving speed be on this road?” but rather “what is the speed limit?”.  Enacting a law changes the question from what the right or best or wisest thing to do is, to what the law requires.  

There’s also a risk when you commit yourself by law to balanced budgets.  From time to time - and this is surely one of those times - economic pressures are well nigh unmanageable.  So much so that in 2009 the BC government, facing the biggest economic crisis since the Great Depression, amended the Balanced Budget Act to let it run deficits until 2013-14.  That’s the deadline that is making the government nervous right now, because the economy has not yet recovered enough to produce the revenues needed to keep pace with expenditure demands.

So not only is government forced to continue the hard work of finding the right “balance” between program cuts, fee increases, and the like; it is forced to consider what it means to have to introduce another amendment to its balanced budget law.

Unlike citizens, governments can change the law, and thereby change the rules by which it operates.  

But it does so at peril.  How many times can a legislated deadline be extended before the idea that there is a deadline is simply no longer credible?  And if the deadline for balancing the budget can simply be extended when government sees fit to do so, do we really have a balanced budget “law”?  

And what does it mean for public confidence in the rule of law when government can simply change the law to suit its convenience?  

Wouldn’t we be better off without a balanced budget law, and instead with a system where politicians were simply - and yet I would say more profoundly - held accountable for what really counts, namely their fiscal priorities?

The "what my blog is about" blog.

Everyone who knows me knows I have opinions.  Some people would even say that the phrase “Plant rant” is a very good way of describing (at least some of) my opinions.  But my goal here, notwithstanding the title, is to avoid ranting, and instead, post some observations on things I care about.  I was going to say “thoughts”, but I don’t want to overreach.
I am a lawyer by profession and I have served in public office as a member of the Legislative Assembly of British Columbia and, from 2001 to 2005, as BC’s Attorney General and minister responsible for Treaty Negotiations.  I’ve taught law school courses on public law and I’ve certainly thought a lot over the years about our political and legal institutions and how they work and interact.  I intend to write about these issues here.  
It won’t all be politics and the law.  I have opinions about lots of things: books, music, movies, weather and of course the Vancouver Canucks, to name a few. My wife and I also travel a lot, and I take photographs, so this space will probably soon look more like a randomly put together scrapbook than a serious blog.  Oh well.  I am not very serious, organized or disciplined about most things; why should that change here?   
Along the way, I will probably say some things that are inconsistent with positions or policies I have advocated for - or even implemented - in the past.  I will try to point this out when I remember, but I may not always remember.  
I like to believe that I have an open mind, and that I am capable of changing my opinions as facts and circumstances change.  (As in the famous, but perhaps apocryphal statement attributed to John Maynard Keynes, “When the facts change, I change my mind.  What do you do, sir?”)  But the practice of politics imposes many constraints on free thinking and action.  
For one thing, in our system, you are usually elected as a member of a caucus (as I was), and in Canada’s version of parliamentary democracy caucuses tend to function (and for lots of reasons need to function) as a team.  This means that the really interesting discussions usually happen behind closed doors, and the resulting consensus thereafter becomes the public position of the whole caucus, whether or not it is the view of every single member of the group.  (There are some exceptions to this.)  
When I was in politics I sometimes said and did things as a member of my caucus that I did not personally agree with.  It didn’t happen often, but it did happen, and I don’t say that just to make an excuse for what I did then, or why it’s different from what I might think or say today, but that’s just the way it is.  I don’t operate under those rules now.  I don’t think that means I get to be irresponsible just because I don’t have to be accountable to a caucus, a party or my constituents, but it does mean that I don’t feel constrained by the fact that I once publicly said or did something different from what I now believe to be the best view about an issue or problem.  Anyway, I intend to say what I think.  Respectfully, I hope, but also vigorously.  And I welcome other views (though I do not presume that anyone will actually read what I write!).  My hope is that when folks disagree they will not be disagreeable about it, but that’s probably naive.  We seem to be pretty cranky these days.  And perhaps with good reason.  It’s a pretty unsettling time to be alive and paying attention.  But hey, the Canucks won last night, I have had a few wonderful days with family, and the Christmas cookies this year seem to be better then ever!

Wednesday, 21 December 2011

The BC Treaty Process twenty years on - success or not?

Here is a piece I wrote last month for the Ontario Bar Association newsletter:

In its 2011 annual report, released in October, the BC Treaty Commission notes that the 20th anniversary of the BC treaty process is less than a year away. It then poses two thought-provoking questions:

On September 21, 2012 British Columbians and Canadians should be asking: Has there been a sufficient return on investment in the BC treaty process given the time and money spent? Has it been worth it?[1]

What is the report card?  The raw numbers look like this:

Sixty First Nations comprising 110 Indian Act bands are currently in the treaty process, thereby representing just over half the bands in BC.  Of these, two First Nations have implemented treaties, three have completed final agreements which are not yet fully ratified, two are said to be close to concluding Final Agreements, and one has completed an Agreement-in-Principle.  Eight First Nations are in advanced Agreement-in-Principle negotiations, 26 are said to be “actively involved” in negotiations, and 18 are not currently engaged in treaty negotiations. 

Judged by the criteria of implemented agreements, these are modest results, to say the least.  And while Chief Commissioner Sophie Pierre calls on the parties to “shake the status quo”, there is little likelihood that the pace or progress of negotiations will change in the next twelve months. 

But is this the best measure of success? 

From the outset, it was bound to be difficult to reach Final Agreements.  Key elements of the process design, essential to establish its credibility, also made it hard to achieve closure.  For example, the parties were deliberately encouraged to put all issues on the table; all First Nations in the province were encouraged to participate and to organize themselves as they saw fit; and there were no timelines.

These and other commitments were necessary to give First Nations some confidence that the process was legitimate, and not simply a mechanism for imposing government-dictated settlements. 

But negotiations that are purely voluntary, consensual, and without any timelines are inevitably complex and lengthy.  And while the premise is that each table is negotiating freely, the reality is that governments have often been - and are today - constrained by mandates that can appear inflexible, given that they are the result of policy decisions intended to ensure fairness and equity - as well as affordability - across all tables.  Mandate constraints have created frustration at many tables, and this has contributed significantly to the delay in reaching Final Agreements.

There are many other reasons why it has proved difficult to achieve more Final Agreements in this process.  But for those who have persisted, it needs to be said that in those communities where agreements have been achieved, there is a tremendous sense of pride and ownership in the process and its outcome.  There is also the reality that the end of negotiations marks the beginning of the hard and on-going work of implementation, so that for First Nations, the work never really ends. 

Still, the question remains whether the process has been a success.  In this context it is helpful to recall that the first recommendation of the 1991 BC Claims Task Force report - which led to the creation of the BC treaty process - was to "establish a new relationship based on mutual trust, respect, and understanding-through political negotiations". 

In ways too numerous to explain fully here, this simple, but profoundly important objective is being achieved.  As well as being a forum for the negotiation of mechanisms for recognition of aboriginal rights and title, the treaty process has provided opportunities for a tremendous exchange of ideas, knowledge and aspirations for aboriginal economic and social development.  The result has been the development of a plethora of additional processes and tools for engagement, everything from self-government capacity-building projects to resource-specific economic development funding, and much more.

In addition, and perhaps more importantly, developments in the case law have also re-directed focus away from the need to establish aboriginal rights and title either by litigation or negotiation towards the processes of consultation and accommodation laid down by the Supreme Court of Canada in the Haida Nation case in 2004 and further developed in subsequent cases.  That decision itself was the impetus for the work that led to the negotiation of the New Relationship political protocol between the BC government and the province’s First Nations political groups in 2005.  The case law, and the New Relationship, place less emphasis on requiring proof of title, and instead encourage different forms of engagement intended to build mutual trust, respect and understanding, and to provide practical economic and social benefits to aboriginal communities. 

Increasingly, for some First Nations, the decision not to participate actively in the treaty process reflects their own experience that other forms of engagement with governments and businesses have produced more direct and immediate results.  The phrase one hears from time to time is that these First Nations “don’t need the treaty process” to advance the goals of their communities.

The forms of engagement have multiplied.  For businesses, there are consultation protocols, impact benefit agreements, joint ventures, equity partnerships, and corporate social responsibility initiatives.  The province has also expanded the toolkit of options for direct engagement with First Nations.  These include the comprehensive land use planning agreements with multiple First Nations on the North and Central coasts.  Forest and range agreements.  Strategic engagement agreements.  Resource revenue sharing policy frameworks.  ‘Recognition and reconciliation’ agreements intended to create processes for shared decision-making. 

Twenty years on, perhaps what has changed most is a shift away from the original objective of ‘settling’ land claims.  Increasingly, there is a recognition that the goal is not to end something, but rather to establish on-going relationships, based on the recognition of aboriginal rights and title, where the parties focus on more limited and immediate social and economic development objectives.  

For some First Nations, the best platform for progress will be a comprehensive Final Agreement under the BC Treaty Process.  But for others, progress will be found in other forms of engagement, with the possibility that at some point in the future it will be possible through the treaty process to achieve comprehensive agreement.  The work of achieving real trust and mutually beneficial relationships is rarely easy.  Matching expectations with the reality of limited government budgets and corporate profit objectives requires hard work - and it is too often still the case that First Nations engagement is seen as an add-on requirement to a project development process, rather than an integral aspect of government and business planning.  But to the extent there is progress, it has at least some roots in the treaty process. The legacy of twenty years of treaty-making is real success; perhaps not exactly as planned, but in ways that are starting to make a real difference in the lives of aboriginal British Columbians.


[1] BC Treaty Commission, Annual Report 2011, online: BC Treaty Commission <>.

Friday, 16 December 2011

A favourite photo from 2011

This photograph was taken at the Cliffs of Moher, a spectacular place on the west coast of County Clare in Ireland, where the shale and sandstone cliffs rise 700 feet straight up above the Atlantic Ocean.   It's an enormously popular tourist attraction; Janet and I were travelling by bicycle, but on this bright July day the parking lot was full of cars and tour buses and the place was packed.  It's really well set up - there are carefully constructed pathways and an interpretive centre and even a watchtower you can climb to get a grand view of the birds and the blue ocean and the vertigo-inducing cliffs - with the Aran Islands off in the distance of Galway Bay.  I say this just to make the point that there is absolutely no need for anyone to be in this photograph.  You don't need to stand where these people are standing to get a really big thrill from the Cliffs of Moher.

I love this picture because it can mean almost anything.  It makes me smile every time I look at it.  (You too?) The sign is very clear.  Its intended message is impossible to ignore.  Don't go any further!  In big letters.  In three languages. And yet you can see from the well-trodden path on the far side that it is routinely ignored.  It looks like its only practical function is to provide a convenient place for people to hang their jackets.

Now the people who put the sign there were on to something.  The edge of the cliff is a bit precarious.  As the picture below shows, it really is a perilously long way down from the top to the rocks and sea at the bottom.  How do I know?  Well of course I took that picture from a convenient patch of grass just past the sign.

So, what are we all doing when we ignore the sign?  Are we trying to prove something to ourselves, that we've got guts?  Or that we're different, that we're not like all those well-behaved folks in the tour buses, who are buying ice cream cones at the concession?  Or is it that we can somehow feel brave and safe at the same time, because while we aren't supposed to go past the sign, there are lots of other people milling around who don't look like they are about to fall to their death.

And so let me stretch these thoughts a bit.  Does the fact that so many folks are blithely disobeying the sign say something about our general attitude towards rules and authority?  We are so surrounded by commands and dictates and warnings and advice and cautionary words.  Coffee cups tell us the startling news that the beverage we are about to enjoy may actually be hot.  If you look at the signs in some of the city parks in Vancouver the list of prohibitions is so long that you sometimes wonder whether there is really anything permitted at all?  And so are we just tuning it all out?  On this day the folks we saw did not seem at all deterred by the presence of a "rule" or the evident view of "authority" that it would be unsafe to travel further along the cliff.  The fact that it was not "permitted" seemed irrelevant.

Maybe if there were fewer rules, we might be more inclined to respect them?  But then, how would all of us lawyers stay busy?