A modest electoral reform proposal - weighted voting

We are only two days away from a provincial election in BC.  I don’t know about you, but I’ve found the whole campaign more than a bit disheartening. The unjustified timing of the election, the seeming inability of any party to offer credible proposals for restoring some sense of financial sanity, the endless parade of promises that no serious person thinks will be kept, and the tiresome attacks on individual candidates are hardly reasons to celebrate this opportunity to exercise our franchise. 

But hey! the leader of the Green Party says that if her party holds the balance of power in the Legislature after the election, she will require the implementation of electoral reform as a condition of Green Party support. Specifically, she will demand proportional representation. The end to our “first past the post” electoral system. BC has experienced several attempts to implement forms of proportional representation over the past two decades. None have succeeded. But since electoral reform is being discussed, why not take this opportunity to highlight another unfairness in our electoral system and offer a proposal to address it? (If that’s not interesting enough for you, then I suggest you play a round of what I call Delta Whack-a-Mole: bridge, tunnel, bridge, tunnel, bridge, tunnel, ad infinitum.)

More seriously……

The way our governments are chosen is that the country and its provinces are divided into electoral districts. In the case of BC there are currently 93 electoral districts. One member of the legislative assembly (MLA) is elected in each district. The government is formed by the leader of the party (or anyone else for that matter) who commands the support of the largest number of MLAs. Most often, this will be someone who leads a political party that has an absolute majority of seats in the legislature – a majority government. But if the leader of a party with the most seats lacks a majority, they can enter into a formal or informal arrangement with another party to obtain a functional working majority or simply govern on the basis that on any given day they will succeed in any vote in the legislature –a minority government.

The point here is that for this purpose, each MLA has one vote. They are all equal. It’s a simple calculation. Political power is achieved if you have the support of the most MLAs.

Many people probably think that the basic principle of our electoral system is “one person one vote.” Not so. While representation by population is recognized as the starting point for determining the democratic fairness of our system, there’s a second principle that does the main work. It’s called “effective representation.” This is the idea that other considerations beyond the simple calculation of each vote should bear on the determination of electoral districts. This principle became part of our constitutional law in a Supreme Court of Canada decision from 1991 called the Reference re Provincial Electoral Boundaries (Sask.) [1991] 2 SCR 158, a decision that interpreted the guarantee of voting rights in section 3 of the Charter of Rights and Freedoms.

 MacLachlin, J. wrote for the majority in that decision, and here is some of what she said: 

 I turn finally to the admonition that courts must be sensitive to practical considerations in interpreting Charter  rights.  The "practical living fact", to borrow Frankfurter J.'s phrase, is that effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests.   The problems of representing vast, sparsely populated territories, for example, may dictate somewhat lower voter populations in these districts; to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their "ombudsman" role.  This is only one of a number of factors which may necessitate deviation from the "one person - one vote" rule in the interests of effective representation.

 

In the final analysis, the values and principles animating a free and democratic society are arguably best served by a definition that places effective representation at the heart of the right to vote.  The concerns which Dickson C.J. in Oakes associated with a free and democratic society -- respect for the inherent dignity of the human person, commitment to social justice and equality, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals in society -- are better met by an electoral system that focuses on effective representation than by one that focuses on mathematical parity.  Respect for individual dignity and social equality mandate that citizen's votes not be unduly debased or diluted.  But the need to recognize cultural and group identity and to enhance the participation of individuals in the electoral process and society requires that other concerns also be accommodated.

 

 In summary, I am satisfied that the precepts which govern the interpretation of Charter  rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation.  The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit of sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada.  In the end, it is the broader concept of effective representation which best serves the interests of a free and democratic society.

In BC electoral boundaries (and the number of MLAs) are determined by the Legislative Assembly, informed by regular reports of an independent, impartial electoral boundaries commission. The statute that empowers that commission requires it to take into account considerations reflecting the principle of effective representation: issues such as geography, “communities of interest”, and the availability of communication and transportation.  

In the most recent report in 2023, (which the legislature adopted) the Commission recommended increasing the number of electoral districts from 87 to 93. It also determined something called the ‘electoral quotient”, in effect, the median population number if districts were defined purely on a one-person one-vote basis. That number was 53,773.  The basic requirement is that districts generally should not deviate more than 25% from the electoral quotient. Applying the 25% deviation principle in its report led the commission to propose districts within a range of 40,330 and 67,216. 

The commission however then identified (and proposed boundaries for) several districts in the north of the province where the population deviated more substantially. For example, the population figure for the proposed district of Bulkley Valley Stikine was 20,552, or 61.8% less than the median, and for the district of North Coast Haida Gwaii was 21,980, or 59.1% below the median.

Compare those two districts with West Vancouver Capilano, with a population of 62,569 (16.4% above the median) or Port Coquitlam, with a population of 61,483, or 14.3% above the median. (These are two constituencies with the largest deviation above the norm.)

To illustrate the significance of these differences, imagine an election in which every person in the district can vote, and there are only two candidates in each riding. (I recognize that the figures used by the commission are population numbers, not a calculation of the number of eligble voters but bear with me.) Put another way, what is the minimum number of votes required to get elected in, say, Bulkley Valley Stikine, or West Vancouver Capilano? In Bulkley Valley Stikine the number is 10, 277. In West Vancouver Capilano, you’d need three times as many votes, 31,285.

I want to be clear about one thing here: I am not criticizing the work of the electoral boundaries commission. Drawing constituency boundary lines is a complicated and difficult job. Although I have some concerns with the principle of effective representation , for the purpose of this analysis I am accepting that this principle bears legitimately upon the question of determining electoral boundaries. 

But in my view the principle fails adequately to account for the basic fact of our politics: power is achieved by adding up the number of MLAs you have on your team. This in turn is a function of how many votes is required to get elected. Put bluntly, you need fewer votes to become premier in Bulkley Valley Stikine (and all the constituencies with population below the median) than in, for example, West Vancouver Capilano.

Put another way, a vote in West Vancouver Capilano is only worth one third of a vote in Bulkley Valley Stikine. I think this is unfair. Unacceptably and unnecessarily so.

The question then is whether this basic unfairness is a necessary result of a system based on the principle of effective representation, or can the two principles, representation by population and effective representation, live together?

I think they can be reconciled. The solution is weighted voting. In a weighted voting system, there would still be 93 MLAs, and the different regional and community interests, and geographic considerations would be unchanged. The so-called ombudsman function performed by MLAs would be unaffected. But when it comes time for MLAs to vote in the legislature, their votes would be weighted according to the population of their constituencies. The MLA representing a constituency with a population of 53,773 (the electoral quotient I identified earlier) would have precisely one vote. The MLA representing West Vancouver Capilano would have 62,569 divided by 53,773, or 1.164 votes (corresponding to the percentage deviation from the median), and the MLA representing Bulkley Valley Stikine would have (by my calculation) 0.382 votes.

In this system, every MLA would have an equal right to speak, vote and to bring the considerations of their constituents to the floor of the legislature. But on the central question of the allocation and distribution of political power – the question of who is to govern – the primary and ruling principle would be the equal worth of each citizen. 

For the purposes of this argument I am willing to accept (because the Supreme Court of Canada requires me to do so) that for some purposes the residents of Bulkley Valley Stikine should have, numerically speaking, greater access to – a disproportionate voice in - the legislature than, say, the residents of West Vancouver Capilano. But I am not willing to accept that when it comes to the actual exercise of political power – votes – the vote of someone who lives in Smithers should be three times more powerful than the vote of someone who lives in West Vancouver. So if we are going to continue to have a system in which “effective representation” is the principle for determining the geographic boundaries of electoral districts, we should have “weighted voting” to ensure that some citizens of the province do not enjoy more political power than others. 

Of course, any serious consideration of this idea would have to take objections into account. (A hundred political science professors are probably lining up right now to shoot this idea down.) Some might say, for example, the result would be to dis-enfranchise rural voters, by diluting the strength of their MLAs’ vote in the legislature. But that’s not what would happen. Every citizen’s vote would now count equally on the critical question of who is to govern. There’s no persuasive reason why someone who lives in a northern community should have a more powerful voice on that issue than someone who lives in the Lower Mainland – and MLAs from rural constituencies would still have every opportunity to raise their issues in the legislature. Yes, they should be heard, but so should we all. In a society where the foundational principle is the equal worth and dignity of every individual, we should all have an equal say on the question of who is to govern.

Of Earthquakes and DRIPA

Everyone is expecting that the Declaration of the Rights of Indigenous Peoples Act – DRIPA – will be front and centre in the upcoming session of the BC Legislature. I've been talking about it a lot lately, and I'm going to talk about it again here.

But first, let’s talk about earthquakes. As everyone knows (or should know!) the Pacific Coast is the most earthquake-prone region of Canada. Earthquakes occur here regularly. Those of us living in the southwest corner of British Columbia have long been warned to protect ourselves against the risk of the big one, which the experts tell us is not a question of “if” but “when.”

What do we do about that risk? 

In Vancouver, most of the schools were not originally built to withstand any serious earthquake, let alone a major one. We know more now than we did when these schools were built, and we know the damage that a major earthquake would cause.

The situation presents two options for policy-makers. 

One is to wait for the earthquake to occur, express our thoughts and prayers for all those who have been injured or killed, and then build a new school afterwards.

Another option is to take steps to mitigate the risk of that harm by earthquake-proofing schools, where that is feasible, or in some cases, building the new, earthquake proof schools now.

As a grandfather of two boys who attend an old school in Vancouver where these steps have not been taken, I am acutely aware of the risk we subject these boys to when they head off to school every morning.

There is strong public support for all efforts undertaken by government to mitigate or prevent the risks associated with major earthquakes. You don’t hear people say, “well, we should just wait for the earthquake to happen and then do something about it.” 

The idea of risk mitigation and avoidance is pervasive in our lives. We vaccinate our children and ourselves to mitigate or prevent the risk of serious disease.  We exercise not just because we feel better doing it but because it’s a way of lowering the risks of poor health. We encourage governments to provide deposit insurance for our savings as a way of mitigating the risk of bank failure. We buy insurance to avoid the risk of personal financial disaster if our house should burn down or we are involved in a catastrophic car accident. We don’t wait for the bankruptcy or the fire or the collision. We take steps now. We take those steps not because we are obliged to, but because we choose to.

So now let’s talk about aboriginal rights and title.

We know that substantially all of British Columbia is subject to claims of aboriginal rights and title. We also know that in the most recent three court cases involving disputed claims of aboriginal title, the courts ruled in favour of such claims, and in fact there is no case in British Columbia where a court has ever rejected a claim of aboriginal title. Aboriginal title is not a question of “if”, it’s a question of “where” and “when.”

What do we know about Aboriginal title? Aboriginal title confers the right to the exclusive use and enjoyment of the land and the right to decide how the land will be used. This is the law as it has been established by the Supreme Court of Canada. 

We also know that a finding of Aboriginal title imposes significant constraints on the ability of the Province to make land and resource laws and decisions. It was conclusively established by the Supreme Court of Canda in 1997 in a case called Delgamuukw that the province has never had the authority to extinguish aboriginal title. The province does have the authority to infringe aboriginal title (not the same as extinguishment), but only if it can justify that infringement, and the bar for justifiable infringement is high – there is no aboriginal title case in British Columbia where a court has upheld an infringement argument. But more importantly, whenever the province makes a decision that may infringe Aboriginal rights or title, the indigenous group has the right to take government to court, to challenge the decision, and as I have said elsewhere, it is the courts, not government, that have the last word on whether the infringement has been justified.

Aboriginal title has not been found in many places. But there is a risk it could exist anywhere. 

There’s that word: risk.

So, faced with a risk, policy makers once again have two options. They could ignore the risk and simply wait for title claims to make their way through the courts and then deal with the consequences afterwards. 

Or they could take steps to avoid or mitigate the risk.

Here is where DRIPA comes in. DRIPA is legislation that creates frameworks for government to enter into agreements with indigenous governing bodies with respect to such matters as land and resource decision making. In these agreements, arrangements are made for indigenous participation in decision making. Decision making may be shared. It may be that both government and the First Nation will have to agree before a tenure or permit or Crown grant can be issued. 

One way to understand DRIPA is as a framework for dealing ahead of time with the risks of a finding of aboriginal title, and to secure the agreement of First Nations that in lieu of pursuing a claim of aboriginal title, or litigating government’s decision-making, they will agree to participate in land and resource decision-making, and share in the benefits that will accrue from resource development or protection.

The uncertainty and risk that flow from claimed aboriginal title are exchanged for the certainty and benefits of agreement.

If DRIPA is repealed, the framework will be gone. But the risk of aboriginal title claims will remain. And because of decisions of the Supreme Court twenty years ago, government will still be required to consult and in some cases accommodate asserted rights and title, even if they have not been proven. Repealing DRIPA will not eliminate these constitutional obligations. But there will no longer be a framework for doing this work, and no obligation on government to implement any plan to make sure this work is done. 

We are much better off with this framework than without it.

But some say, ah, but there is no constitutional requirement for indigenous consent.  The Supreme Court, they say, has said that aboriginal people do not have a veto over government’s decisions.

Here is my response to this argument.

First, shared decision-making is a political choice, not a constitutional obligation. So, too, is the enactment of DRIPA, and the acceptance of the principle that governments are to consult and cooperate in good faith with indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.

But now let’s see what the Supreme Court of Canada has said about consent. The word consent appears eleven times in the text of the Supreme Court of Canada decision in Tsilhqot’in. What the court is dealing with is the question of what is left of Crown authority after a declaration of title has been made. It’s worth reading all of these statements. I’ve footnoted some of them.^[1] But here’s the most important sentence:

[97]                          Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

To say that “consent” is not a constitutional obligation, or that aboriginal people have no constitutional “veto” over Crown decision making is to miss the point altogether. Negotiating shared decision-making agreements is a way of avoiding a charge of infringement or failure to adequately consult. It’s a way of trading the uncertainty of court challenges for the certainty of agreement. It’s a way of trading the paralysis of endless delay and litigation, with all of the harm to investor confidence that flows from that, for the certainty of agreements in which, yes, decision-making is shared, but opportunity is created, and benefits are also shared.

The other day I was thinking about how the world changed when the Supreme Court of Canada held in the Haida Nation case in 2004 that government is constitutionally required to consult with First Nations whenever it “contemplates“ conduct that may adversely affect asserted aboriginal rights and title. What Haida Nation has meant is that every government land and resource decision can be judicially challenged. And every judicial challenge creates delay and uncertainty – driving up project costs, putting jobs and communities at risk. Is this a big deal? I decided to ask AI: how many Haida Nation cases have there been? Google AI said this: “Since November 2004, the Haida decision has been referenced in thousands of legal contexts, including federal and provincial court decisions, tribunal hearings, and legal arguments regarding resource development.”

Wouldn’t it be better to live in a world where we could negotiate these things, rather than spend all our time fighting about them?

To all those who say the province will be better off without the framework of DRIPA, I say, go ahead. Wait for the earthquake. And in the meantime, maybe you’d like to have a chat with the private landowners in the Cowichan Tribes title lands?

Reconciliation in a judge-made world

I have been following the public discussion about recent court decisions and government's reconciliation policies with growing concern. As a result, I decided to put my thoughts in writing, and fortunately the online newspaper Northern Beat agreed to publish them.  Here is the link:

https://northernbeat.ca/opinion/judges-have-last-word-on-aboriginal-law-not-politicians-says-former-bc-official/