How to Hobble A Democracy (by Brian Bullen)
How to Hobble a Democracy
"No one pretends that democracy is perfect or all wise. Indeed, it has been said that democracy is the worst form of government, except for all the others that have been tried from time to time." - Winston Churchill, 1947.
Winston Churchill would likely not have objected to his assessment being restated (erased of his famous wit) in the positive: that democracy is the best form of government yet tried, even though it is far from perfect. There are very few Canadians today who would disagree. However, we ignore at our peril the reality that democracy remains a delicate instrument, despite all its remarkable, world-leading successes in the decades following Churchill’s pronouncement. Ensuring that democracy maintains its hard-won role as the foundation of just, prosperous and progressive societies requires mature leadership and careful management. It is a serious business.
Democracy’s great strength is its openness and its invitation to all to engage in discussion and debate, whether directly or through representatives. The push and pull of opposing opinions, particularly in public forums, tend to force thorough deliberation and the reasonable weighting of considerations. The freedom to openly applaud or criticize the resulting conclusions fosters retrospection. All to the good.
Still, at its practical core, democracy is a decision-making tool. It should not be overlooked that it will only last as a useful tool for so long as it is demonstrably more effective than other methods. Its effectiveness is not now, and never has been, a given. The time and attention paid to safeguarding the right to participate in the collective back and forth and to promoting freedom of expression must be balanced with equal time and attention paid to the way in which decisions are finally made and implemented.
This balance is important. Any form of government, whatever its philosophical underpinnings, should with at least some urgency work toward decisions that are certain, certain enough as a minimum for those being governed to order their affairs. This is especially so in democracies because the process of open debate can appear disorderly. The consequences of prolonged uncertainty go well beyond being irritating. The gravest consequences include lasting damage to economies and to markets and industries within those economies.
Since taking office in 2015, Justin Trudeau and the Liberals have been playing a dangerous game with our Canadian democracy. This dangerous game takes the form of the Liberal’s flirtations with the idea that, even after the democratic decision-making processes have been fully worked through and a decision made, there may still be contrary, isolated voices that must be heeded and won over. In a nutshell, the idea risks a corruption of one of the basic tenets of democracy – that the majority rules for the sake of the “common good”.
Early in the Liberals’ term, Trudeau and his government enthusiastically adopted from others the concept of “social licence”, being an amorphous term immediately seized on by opponents of major infrastructure and resource development projects. At the extreme end of the various interpretations, “social licence” means that all individuals, groups and communities affected by a project must expressly consent to its construction and operation. This consent is understood by some, with no forceful attempts by the Liberals to discourage this understanding, to be a requirement well outside the established legal channels a project’s proponent must navigate to achieve final regulatory approvals.
Trudeau’s invocation of the magic of social licence might at first have sounded enlightened and forward-thinking, but his careless use of the phrase has contributed substantially to the destabilization of the Canadian energy and resource extraction industries and of associated markets. Even the slightest possibility that there may be some foggy extra-legal requirement for the approval of energy or resource extraction projects is enough to turn potential proponents and investors away at the turnstiles, all the more quickly if this requirement is given credence by the head of state. At the same time, Trudeau’s endorsement of the concept legitimizes the continuing and often unlawful physical obstruction of project planning, construction and operation, in the style of the impetuous leader of the Green Party and Member of Parliament, Elizabeth May. Silliness begets silliness.
Similarly, Trudeau’s promise to indigenous peoples of Canada of a new “nation-to-nation”relationship is on its face an expression of the lofty ideals of the Liberal government. But at ground-level it is a promise fraught with uncertainty and cynically delivered false hope. What does it mean? In the fizzy world of “sunny ways”, it is not much more than a catchy phrase. Viewed more seriously, though, it advertises a result that is for most practical purposes unattainable, certainly in the literal meaning of a nation-to-nation relationship.
As with the idea of social licence, the Liberals’ promotion of the idea of a nation-to-nation relationship invites and implicitly endorses challenges to existing laws that are not obviously in keeping with that idea, and invites and implicitly endorses civil disobedience in responses to democratically derived decisions. Why would an indigenous people not assert national sovereignty as a first line of defence against the “extraterritorial” imposition of a Canadian law or decision? There are already substantial legal hurdles proponents of major projects must overcome with respect to consulting with and accommodating indigenous peoples impacted, and unfortunately the laws in this regard are not yet entirely settled. The possibility of the introduction of another set of hurdles that would reasonably arise in a true nation-to-nation relationship is causing potential proponents and investors additional pause. Uncertainty layered on uncertainty.
In fairness, the Trudeau Liberals might not have anticipated that these lightheaded attempts at high-minded leadership would erode the effectiveness of our democracy, and likely did not foresee the damage to industries and markets that these attempts would cause. But the effects of their Bill C-69 as presently drafted cannot also be explained away as shortsighted or naive. Bill C-69 appears to be a deliberate attempt by the Liberals to undermine a definitive decision-making process as it relates specifically to major infrastructure projects.
Bill C-69 codifies the Liberal-inspired notion that even a sliver of an opposing minority to an infrastructure project should have the ability to impede the progress of the project’s regulatory review, and ultimately impede or prevent the project’s development. This is accomplished in three steps.
First, Bill C-69 open the doors to the regulatory theatre wide-open by eliminating the “standing test”, being the present requirement that a participant must be directly impacted by the project under review or have relevant expertise or information. (Come one come all, and you will each be heard in full).
Second, the bill expands the list of matters that must be considered, from primarily safety and the potential environmental impacts proximate to the project to also include such things as open-ended economic, environmental, social and even gender-related factors. (Come one come all, and address all the topics that might affect you, whether directly, incidentally or maybe not at all.)
Third, and most concerning, any one of the gathered throng who takes exception to a decision of the regulator concerning any one of the expanded list of factors may apply for a judicial review of that decision. The number of participants combined with the number of factors alone makes it highly unlikely that any infrastructure project would escape being shunted to an equally crowded courtroom, perhaps several times over. (Come one come all and if you don’t like any aspect of the outcome, stop the bus and seek a lengthy external legal review – one at a time, please!).
Bill C-69 is a fitting Liberal flagship. In the name of openness and transparency it proposes to tip the regulatory process steeply to one side. The attention it pays to safeguarding every citizen’s opportunity to participate in collective deliberations swamps the attention it pays to the value of definitive and timely decisions. The damage this may do to the perceived effectiveness of the Canadian democracy as a decision-making tool will, if Bill C-69 is passed into law unamended, be immediately evident in the choices project proponents and investors make. It is difficult to imagine that these choices will result in very many new major projects in Canada funded by the private sector. Perhaps this is the intention – as so many now suspect - but the price we will all pay is the flight of capital to other jurisdictions that offer a much less cluttered and more predictable path to critical decisions.
Churchill would have been the first to say that democracy is worth vigorously protecting. While the threats our democracy faces today are not nearly as dire as in his day, we should still be reminded by his counsel that democracy is a complex and challenging device and that it demands thoughtful, mature stewardship. It is a serious business.
Brian Bullen
Calgary, Alberta