Rolling the Dice with the Public Good

There has been a lot written and there will be a lot more written about the Roger William judgment that came down last week. Justice Vickers savaged the positions of the Government of Canada and the Government of British Columbia, effectively holding that the province's forestry legislation does not even pass basic constitutional muster and almost holding that most provincial resource laws were displaced from a 2,200 square kilometer region in the interior of British Columbia.

The two governments (and all of us) were saved from the consequences of a finding of aboriginal title by a true legal technicality that may not matter for long. The judge held that since the Chilcotin had asked for all of the claimed area and had not included claims for parts of the claim area as a fall back position, he could not award them parts of the claimed area despite having proven their case in those areas. Most legal observers I have spoken to think this is a pretty shaky ground upon which to deny the Chilcotin their prize and it is a flaw that will soon be fixed either by an amendment to the existing pleadings, the Court of Appeal or a new case (or possibly all three). I expect that the judge felt he was buying everyone some breathing room by not trying too hard to get around that technicality and is hoping (as he pleads toward the end of his judgment) that everyone gets on with resolving things.

What the judgment shows is how close we are coming to chaos given the refusal of the governments to entertain even the remotest possibility that they might lose one of these big cases. If Justice Vickers had not relied upon the technicality the results would have been far more dramatic than they were (and don't kid yourself, while people have focused on the technical loss, the Chilcotin actually won the case on the basis of their non-title rights -- and every aboriginal group in the province has similar rights). From the moment of the judgment provincial laws regulating any land based resources -- trees, land, minerals -- would have been out and only applicable federal laws would have applied. Which federal laws? Well there's the rub -- there are none.

Back in the early 1900's the Government of Canada decided that the part of the Constitution that says that they have jurisdiction over "Indians and Lands Reserved for the Indians" meant "Indians and the Indian Act reserves". On this basis there is no federal legislation that speaks to the regulation of Indian lands off-reserve (south of sixty) and the entire focus of federal thinking and policy relates to the reserves. This means the Federal government essentially washes its hands of any Indians who cross the reserve boundaries (voluntarily or not) and whether teh issue is welfare or constitutional rights essentially says "over to you Province."

The Supreme Court of Canada said that this thinking -- that Canada's jurisdiction and responsibility ended at the edge of the reserves -- was fundamentally wrongheaded. The Court said that Federal exclusive jurisdiction extended over aboriginal title land as well. How did the governments react? Well for all intents in purposes they put their fingers in their ears (undoubtedly on the basis of extensive legal advice) and went "la-la-la-la" and cooked up various theories like "well there really is no title" or "the court really didn't mean it when it said that." On this basis they did nothing.

The other thing that did not change was the position of the government's at the negotiating table. Delgamuukw made it clear that there was real potential that aboriginal groups outright owned various pieces of land throughout British Columbia and had control over those lands free and clear of the Province's jurisdiction. Surely such a holding would have brought about some rethinking of the Government's mandate followed by the addition of new incentives and approaches to induce First Nations in the treaty process to sign treaties and those outside to come to the table. However this did not happen.

If one looks at the Final Agreements presently going through the process of approval now what one sees are agreements that are clearly poorer than the Nisga'a Final Agreement. Self-government is weaker; the overall package seems smaller and the fiscal arrangements more brutal. Even some of the gains that have been touted -- say the inclusion of governance and the exemption from the ALR for TFN -- do not represent gains on Nisga'a: they represent gains on hard line positions introduced by the NDP and Liberals post- Nisga'a. There is little here to bring the hard line nations to the table or to get movement out of the tables that have been stuck. Sure there will be more treaties but these will likely be small treaties in remote areas or (at the other extreme)treaties in urban areas where there is little left to fight over. Even in the latter case I wonder if we will see many more treaties given the incredible value of the tax exemption on urban Indian reserves and the brutal Federal approach to clawing back 50% of every dollar a nation earns to set-off against social programs (this is on top of the taxes that wage earning aboriginal people will pay after treaty).

British Columbia and Canada have rolled the dice with all of us. They have rolled the dice with aboriginal people hoping to bankrupt them in all or nothing games of court poker. They have rolled the dice with the economy by betting land, minerals, trees and chaos on high stakes games of bluff. All of this to avoid coming to grips with the fact that modern treaty negotiation and dealings with Aboriginal people will require flexibility, imagination and respect.

Decision Day in the Nemiah Valley

Justice David Vickers will be bringing down his ruling today in the Xeni Gwet'in title case. This case lays claim to a fairly large area of land around Chilko Lake and its watershed on befalf of the Tsilhqot'in (Chilcotin)people.

It will be a mammoth judgement filled with details, technical language and subtle analysis but there will a few things to watch out for to get a sense of who really won the case:

First, does Justice Vickers award any title to the Tsilhqot'in? This will be a clear defeat for the Province which for years now has hung its hat on the idea that there is no aboriginal title in BC or if there is, itis confined to the reserves.

Second, does any area subject to title extend outside of the Nemiah Valley itself (where most of the Xeni Gwet'in reserves are)? If title is just found in the Nemiah Valley and not in places like the Brittany Triangle, Henry's Crossing, Eagle Lake and the Potato Mountains, then the decision is basically a draw -- there is aboriginal title but there is not huge amounts of it.

Third, does the area subject to aboriginal title include 'hunting grounds' or is it limited to more settled areas (as the judge describes them). If Justice Vickers makes any substantial award of hunting grounds to the Tsilhqot'in then the case should be characterizes as a rout for the Province.

Fourth, does Justice Vickers rule in favour of the Tsilhqot'in on the "Division of Powers" issue (this might be called things like the "Land Reserved for the Indians issue". the "Section 91(24)/Section 88 Issue" or the "Jurisdiction Issue". This is the real wild card in this case -- even if the Tsilhqot'in win less title than they hope for (which will be a huge disappointment for them) a win on this issue would be huge and would be a complete and utter disaster for the Province's legal team. For all intents and purposes this would mean that the Province is essentially removed from having any real control over the Tsilhqot'in's lands without the consent and cooperation of Ottawa. This is an issue for constitutional law junkies but it is the sleeper issue in this case.

Fifth, if the Province does have any real jurisdiction, how does Justice Vickers deal with the issue of infringement. The Provinces love the cases that same 'aboriginal rights are not absolute' and they are not. The question is though, does the Province, subject to having to chit-chat with the aboriginal people first, have the right to go ahead do mostly what it was going to do anyway? This is where Justice Vickers could strike a balance: aboriginal title could be across broad areas but be paper thin when push comes to shove or aboriginal title could over smaller areas but surrounded by very high fences.

It will be in this last issue that I think much of the really difficult reading is going to be found. This is the area where the freedom of the Crown to govern and the expectation of all aboriginal people that their rights mean something and deserve protection will be balanced and interwoven. This area will likely read as much likel a policy piece on constitutional reform as a legal treatise and will provide endless scope of room for discussion.

Whatever the outcome -- it will be an interesting few days for everyone.

Cathlolic Schools and the Protection of Minorities

My brother’s blog at Ranting and Roaring has an interesting reaction to a proposal that was made, largely in the wake of the Ontario election, that maybe the time has come to abolish the Catholic school system in Ontario. The essence of the reaction is that it surely cannot be right that where the protection of a Catholic school system was an integral part of the original ‘deal’ in 1867 that it can merely be done away with now that it is expedient to do so. This is particularly so, the reaction goes, given the historically disadvantaged position of Catholics in Anglo-Canadian society. Furthermore, there is no discrimination to be fixed as, has been confirmed by the Courts, the separate schools are a measure designed to protect a minority and advance their rights. In a final jab (working on the principle that it is always good to put your opponent in your shoes) David makes the point that the commentator making the proposal would react quite differently if the same proposal were made regarding the protection of aboriginal rights.

There is a great deal of merit in the reaction and it does raise a number of important questions. First up, it is entirely correct that there was protection given to Catholic schools in Ontario (and Protestant schools in Quebec) at the time of Confederation. This has been described as a part of the original “compact” underpinning the establishment of Canada. Here is what Sir Charles Tupper said about this in the House of Commons:

. . I say it within the knowledge of all these gentlemen...that but for the consent to the proposal of the Hon. Sir Alexander Galt, who represented especially the Protestants of the great province of Quebec on that occasion, but for the assent of that conference to the proposal of Sir Alexander Galt, that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant, in this country, there would have been no Confederation . . . . I say, therefore, it is important, it is significant that without this clause, without this guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present.

An extensive discussion of this, including a confirmation that the existence of Catholic schools and the extension of rights to those schools is not discrimination under the Canadian Charter of Rights and Freedoms can be found in the Supreme Court of Canada's decision in Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.

It is also worth noting before wading into the waters of Constitutional amendment that the protection of Catholic schools has been the source of some of our most heated political debate, particularly around the abolition of Catholic schools in Manitoba in the 1890's. This was seen at the time as pure majoritarian attack on the rights of both a French and aboriginal (Metis) minority and does not stand as one of the prouder moments in our history.

However, as I have commented before, the existence of a publicly funded religious school system in Ontario does raise a number of public policy questions which do impact upon ensuring a strong sense of social cohesion in a society which now has many religious minorities. In 1867 the burning questions was how can we split Canada into two provinces (Ontario and Quebec) and ensure that the religious minority in each are not obliterated through the abolition of their school system? Remember to that this was happening the context of a world where in the not too distant past qualification for public office had been tied to being able to swear that one was a good Anglican and had nothing to do with the infamous Pope at Rome. The question today though is quite different -- we now live in a society where there are many religious minorities and it is inevitable (no matter what any Court says) that many of them will feel resentful and excluded when they see one religion getting a publicly funded school system while they do not.

Without trying to say what Ontario should do (that is a political question which requires a political debate) I think that the moral/legal questions raised at Ranting and Roaring can be answered as followed.

First, it should be noted what the protection given to Catholic schools by s. 93 of the 1867 Constitution was -- it was a protection from being cut back or reduced by the Provincial legislatures. There was no equivalent restriction placed upon the Federal government and, indeed, it was always seen that the Federal government could legislate with respect to the rights of Catholic and Protestant schools. The proposal to amend the Constitution thus takes away a quite limited procedural protection and it only does so with the consent of the Federal government (which was the procedural protection that was promised in the first place).

Second, the context of rights protection has dramatically changed in Canada since 1867. Now, because of the Charter of Rights and Freedoms there are actually positive substantive protections given to minorities, particularly religious minorities. These include (1) freedom of religion and conscience (s. 2); (2) the guarantee of the right to vote and to stand for election to the House of Commons and legislatures (s. 3) (thus no established religion); and protection from discrimination (s. 15). These restrictions apply both to the Federal government and the Provincial governments. It is worth noting in this regard that these rights as package have essentially given Catholics in Ontario (and Protestants in Quebec) far stronger protection from what they feared -- that is being forced to send their children to a Protestant school -- than s. 93. No government today could create a public school system that mandated religious education, much less religious education in a particular faith or creed.

Finally, David's point about aboriginal rights is without any real merit. The proper analogy to s. 93 (the section that protects Catholic schools) in the aboriginal context is s. 91(24). Section 91(24) is the provision in the 1867 Constitution that places the Federal government in charge of "Indians and lands reserved for the Indians". The theory again being that we would protect a local minority (the Indians) from a local majority (the settlers) by putting their affairs in the hands of a more distant, less directly interested government (the Federal government). Ironically in 1951 the Federal Government all but gutted this protection (except for treaty rights and reserves) by passing s. 87 (now 88) of the Indian Act which essentially said any Provincial laws that were unlawful because they interfered with the Federal power over Indians were made lawful as Federal laws. The complete abdication of the Federal role in protecting aboriginal rights is exactly one of the things that led to the passage of s. 35 of the modern Constitution.

Thus Catholics today (just as with aboriginal people) have stronger substantive protections of their rights than they ever had before. They are protected from being faced with qualifications on office or with forced protestant education. They are protected from discrimination. The question then is whether the social cost that comes in terms of dissent and a feeling of exclusion by other minorities is outwieghed by the social benefit of maintaining the Catholic schools. Answering this question is not simple and will require a real dialogue with the Catholics and others in Ontario. My choice, it I had one, would be to move on from an archaic system and reap the social benefits that come from a coherent secular public school system. This does not really answer the question of whether or not as a society Ontario should invest in this debate now.

My own feeling is that abolishing the Catholic schools system will not actually address the issue for many of the minority religions (who are largely driving the debate) in such a way that it is worth having the debate now. While the debate is framed in terms of discrimination -- why is it that the Catholics get while the Jews, muslims and others do not? -- that is not really the issue. The real issue I suspect is that many Jews, muslims and others object to having to send their children to a secular system which does not inculcate a core respect for religion and foster adherence to their parents' faith. It is for this reason that I expect many minority religion parents send their children to Catholic school -- even if the children are not educated in their parent's faith at least they are educated in a religious environment. Tearing down the Catholic school system will not change that and will not assuage the feelings of many minority religious parents.

The Difficulty of Quantifying Health Care Quality

Kudos to John Ibbotson for taking on the way in which the press throughout the world reported on a recent report evaluating health care systems around the world (a link to his column for Globe insiders is here). Media around the world looked at the numbers and wrote headlines around the worse thing that applied to their nation (in Canada it was waiting time) and did not focus on overall impression.

The danger in doing this is that it tends to frame the debate over approaches to health care in misleading or narrow terms. For example, in Canada the debate is largely framed around waiting times and so a stand alone headline like "Waiting Times Worst in Canada" will tend to be used as fodder for the the U.S.-approach-is better-camp. But here is the analysis (as reported by Ibbotson) of the overall picture:

For while some countries do better at some things and worse at others, only the United States, the report concluded, "stands out for cost-related access barriers and less-efficient care."

U.S. health-care statistics chill the blood. One-third of U.S. adults are uninsured or underinsured. Twenty per cent of American adults had serious difficulty in paying their medical bills last year. Thirty per cent of people with insurance had to spend more than $1,000 in additional out-of-pocket costs.

Although the United States expends far more of the nation's wealth on health care - 16 per cent of GDP, compared with 10 per cent in Canada, Australia and Germany - many Americans simply can't afford to spend what it costs to stay well.

"Forty-two per cent of chronically ill adults said that they had skipped medications, not seen a doctor or forgone recommended care because of costs - a rate two to eight times higher than rates in other countries," the report observed.

And this fascinating comparison: "U.S. adults often report waits for primary care, find it difficult to get care after hours and end up seeking care from ERs - joining Canada with symptoms of primary care under stress."

"While there's no clear leader," among nations in the timely and efficient delivery of health care, said Cathy Schoen, the report's co-author, in an interview, the United States is "much more consistently at the bottom of the pack."

This commentary would obviously frame the debate over the Canada versus the United States approach very differently.

The waiting time measure is a particularly tricky measure to look at for a number of reasons. A few example serve to illustrate the difficulty of assigning meaning to a waiting time measure.

Suppose you have a procedure with a 100 person waiting list which results in a ten week delay (assuming that the list is worked through simply as a first in, last out queue). Then suppose that the great gods of medical accesss walk by and say, "to stay in this line-up you will have to pay $5,000 when you access the procedure"). Immediately 30 people leave the line and a 100 person waiting list becomes a 70 person waiting list. Does this mean that the resource is being allocated 'correctly'? It all depends upon what 'correctly' means.

Similarly, suppose that you have a population of 100,000 and there is an objective requirement at any time for 0.1% of the population to access the procedure on a mdeical basis (that is there are objective medical indications for the procedure). In one community access to the procedure is gained after initial family practice screening and 100% of the 100 cases are recognized but there is only one facility to do the procedure, leading to a 100 person queue all of whom need the procedure. In the other community access is dictated by individual patient choice subject to ability to pay. There the system leads to five facilities, 250 people in the total queue, but only 25 of the 100 who need to be in the queue actually getting there. The queue in the second community is only 50 people long but the cost is five times higher and only 25% of the community in need is reached.

A third scenario to consider is this: suppose there are two procedures. One needs to be done within one week of diagnosis and the other within six weeks of diagnosis to be medically effective. Suppose procedure number two though is both more profitable to provide and in higher demand with those with more disposable income. The net result is that as the market plays out in one country (say where access is allocated by individual ability to pay) access to both procedures is achieved in three weeks (that is for the first procedure everyone is two weeks late, for the second, three weeks early). In the second country where the resources are allocated on some mixed basis (single payer, private providers, state providers) the result is an average of one week for procedure one and five weeks for procedure two with an average queue time of 4.5 weeks for both procedures. In country two the average wait time is longer but everyone gets timely treatment.

These examples are not based upon real scenarios but they are designed to demonstrate that looking at a single variable -- wait times -- without analyzing other variables to get an overall picture is a mug's game. Furthermore, whether or not a system is successful depends upon the criteria for success that are established in advance. For example, if the criteria that is established is "maximization of freedom to use my personal resources to maximize my health care" you get a very different measure of success than if the criteria is "to maximize timely access to medically necessary procedures across all procedures and a national population." Both are measures that have moral and philosphical foundations and require serious value judgments to be made in order to answer the question, "is the available medical care system working?"

Senate Reform and Referedums

It is always nice seeing new friends play together happily in the playground but when it is Stephen Harper and Jack Layton who are having fun any sensible teacher will make sure the fire extinguisher is at hand.

Senate reform in Canada is long overdue and there is only one reform that makes sense -- abolish the place. It is an affront to democracy in a modern era to have an unelected institution whose principal function is to frustrate democratic decision making (well that is what "provide sober second thought" really means). In terms of regional representation and balance, in a federal state we supposedly protect regional or local interests by having regional or local governments -- provinces.

Steve and Jackie-L though have come up with an idea -- let's have a national referendum to poll the public in a more formal way about abolishing the Senate. This is a bad idea. First it serves no purpose -- we all know what the man in the street thinks -- abolish the Senate. It is only policy wonks and die hard Reformers who still think of the Triple-E Senate (a slightly worse affront to democracy).

Second, it opens the constitutional reform can of worms. Whether the referendum passes or not, the only way to implement it is through the amending process in the Constitution. This requires seven of ten provinces to sign on to the amendment. The difficulty come as each province arrives with a shopping list of amendments that will absolutely have to go along with the abolition of the Senate. Immediate deadlock will ensue. Remember the premiers of every small province will be opposed because the Senate gives those provinces greater power nationally (Danny Williams would love to say "no" and this will give the premier of PEI the one chance to have his (or her?) name known by anybody on the other side of the Confederation Bridge). Quebec will oppose because the Constitution is an illegitimate document anyway and there will be a list of things that will have to be implemented to make up for Quebec's loss of status through the abolition of the Senate. It would then just take one other province to torpedo the project.

This brings me to the third problem: the disappointment of the public. It is one thing to have Senate reform bubbling away as one of a myriad of issues that the public occasionally considers; it is quite another to have a formal referendum and then fail to follow through. The cynicism this will entrench around the democratic process is something we really do not need in our country right now.

Why has Jack Layton taken on Senate Reform? Well he knows that this is something that will appeal to his new pal Steve and will put the old school yard bully the Liberals (led by that wimp Stephan) into a tight spot. It will put Stephan in an exquisitely difficult position in fact. Immediately Stephan will have ask, "do the Liberals stand up for Senate abolition (which would destroy their last bastion of power if implemented)?" Even if Stephan supports Senate abolition he creates a quandary -- he alienates his supporters with their sinecures in the Senate and further undermines the Liberals' position as a credible opposition (since they will oppose nothing). It will be even worse for Stephan then if the senators oppose the referendum and Stephan is then called upon by Steve and his new ally Jack to discipline those unruly Liberal senators. When Stephan can't, well, we already knew he was ineffectual, right?

Thus this proposition is nothing but short term political fun for Steve and Jack, unless, of course, Stephan supports it and brings the senators into line thus having the referendum proceed. This would actually be the best move for Stephan, provided he can actually get the senators onside. It would be cynical beyond comment given that Dion will know full well that the abolition will never be implemented -- but then that is Steve's problem, not his (unless Stephan wins the next election -- now that would be a whoops).

Why doesn't Jack support a referendum on something that really would advance the NDP interest as it is likely to exist for many years to come -- say, a referendum on proportional representation with a properly funded 'yes' committee. Better still, it is a minority Parliament and the idea has appeal to the Conservatives, why not just implement some form of proportional representation? The answer to that question is that Jack has set his sights too low. He would consider it his crowning achievement if the NDP displaced the Liberals on the progressive centre/left and became the 'real opposition'. The problem with that is that the most the NDP could hope for then would be to be a permanent opposition hoping for minority governments -- the Conservatives would rule forever.