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JJ McCullough: The unwritten rules of our democracy have always rested on fairness

Commentary

Canadians have short memories when it comes to politics, often deliberately so. But here’s a fact about Canada’s 2006 election which, for those who forget, ended with Stephen Harper winning his first minority government: it was decided on election night.

Once it became clear the Liberals under incumbent prime minister Paul Martin were solidly trailing Harper’s Conservatives in the seat count, Martin conceded. About two and a half hours after polls closed, the PM informed a crowd in his home riding that he had “just telephoned Stephen Harper and I’ve offered him my congratulations. The people of Canada have chosen him to lead a minority government. I wish him the best.”

This was after all the big networks had called a Conservative minority; a conclusion that would be similarly blared on front pages across the country the following morning.

Nothing about this was considered controversial. There were no editorials demanding Martin attempt to cling to power, no fiery denunciations of those suggesting Harper had a right to rule.

Harper was sworn in as prime minister a few weeks later and quietly affirmed by a unanimous motion of confidence in the House of Commons a few months after that, an event treated as such an unimportant bit of parliamentary housekeeping it received only the most perfunctory coverage.

Canada’s political culture has clearly changed since then. The question of whether a Conservative minority government can be legitimately elected, and expect to assume power in a smooth and orderly transition, is now treated by many Canadian pundits as a deeply dubious and controversial proposition deserving lengthy debunking and deconstruction. Center-left media outlets now routinely feel the need to grandly declare that Prime Minister Justin Trudeau would actually possess every right in the world to not concede to Pierre Poilievre on election day, even if the Conservative Party wins the most seats in precisely the same fashion Harper did in 2006.

These constant, condescending demands to accept what would clearly be an extraordinarily unusual political situation as entirely unremarkable, combined with ferocious animosity towards anyone who speculates on the potentially severe social consequences of trying to normalize this abnormality, as Sean Speer did on Twitter the other day, gives the whole exercise an air of propaganda and gaslighting. A project, as Speer put it, of Liberals mobilizing “left-wing academics, the broader opinion elite and the (publicly funded) media” in order to legitimize Trudeau refusing to concede power to a Conservative minority government and thereby prolong progressive rule beyond its natural shelf life.

A particularly revealing example popped up on Éric Grenier’s blog the other day; forced to acknowledge that the Canadian news media has a long tradition of declaring minority governments elected on election night, Grenier could only lamely ask that they stop doing this, in order to provide Trudeau some gloss of legitimacy should he attempt to hang on.

It’s strange that even Canada’s most righteously patriotic commentators are loath to suggest Canada possesses any political traditions of its own. The demand is to always take cues from England or Australia on the pretext that Canada is an obedient follower of some transnational system of “Westminster democracy,” but lacks the agency to define the rules of that system for itself.

Canada is a sovereign state, however, and “Westminster system” has never been a precise concept. Indeed, a 2018 Senate report concluded that “Westminster principles” were so inherently slippery, their “most important feature” was simply an “ability to evolve, or adapt, to the historical, regional, and political realities in which they are situated.”

In a Canadian context, this has entailed evolving and adapting unique norms regarding the idea of a “minority government.” As a term, “minority government” wasn’t even a common bit of Canadian political jargon until after the Second World War (when heard earlier, it would just as often refer to a government elected without a majority of the popular vote). As Michael Smith noted in an important 2008 paper, well into the 20th century an outcome where no one party controlled a majority of seats in the House was considered an intimidatingly odd and ambiguous situation because it was so rare. The notorious drama following the 1925 election, which culminated in the so-called King-Byng affair wherein Prime Minister Mackenzie King was fired by Canada’s British governor and a Conservative minority government briefly installed, was far more chaotic and improvised than today’s dry academic retellings make it sound, occurring, as it did, in an age so politically immature even a question like “how many Liberal MPs are there” lacked a precise answer.

It’s a testament to Canada‘s development into a serious democracy that clearer norms have since solidified to make once-ambiguous situations easier to settle. Governor generals are no longer English grandees with an inflated sense of relevance, the business of nominating, identifying, and electing partisan candidates is standardized and easily understood, and yes, a protocol of deciding who runs the country in cases where no party wins a majority (the head of the plurality party) has been established.


Headlines the day after the 1957, 1979, and 2006 elections which saw Conservative minority governments elected.

Admittedly, it would have been better if the norms of how minority governments (or prime ministers in general) are elected in Canada had been codified at some point during the late 20th century (as was once proposed during the constitutional reforms of the 1980s). The fact that they were not leaves us vulnerable to the situation we find ourselves in now. Unwritten norms within a political system, after all, are always subject to a certain cynical calculus, that they’ll only be respected so long as some critical faction of the political elite believes the taboo of breaking them is less severe than the consequences that come with obeying them.

Stephen Harper was widely loathed when he was opposition leader, but the progressive faction of the Canadian political establishment did not regard his 2006 election as an existential threat worth revisiting the settled postwar precedents of Canadian democracy over. The non-event that was his first confidence vote was the sort of chummy “Ottawa consensus” moment that signalled business-as-usual.

That consensus collapsed following the Conservatives’ reelection to a second, larger minority in 2008; an event which radicalized the leadership of the Liberals, NDP and Bloc Quebecois into believing Harper had become such a danger they were justified in requesting the governor-general dismiss him and install Stephane Dion in his place, a public plea for a blunt exertion of royal power unprecedented in Canadian history.

That whole episode can be seen as the moment that damaged Canadian parliamentary democracy beyond repair. It definitively moved Canada out of its postwar consensus, in which minority governments of either party could be uncontroversially elected and unelected via predictable methods, and towards a new status quo in which anyone broadly allied with the political left, the “opinion elite“ as Speer put it, has adopted the position that it is necessary and proper for progressive parties to use any means necessary to prevent the Conservatives from assuming office. The Conservatives are no longer to be regarded as an ordinary party entitled to the same polite conventions of election night concessions and swift transfers of power that have defined the aftermath of previous general elections, but rather an inherently sinister force that can only be permitted to come to power after the parties of the left have exhausted all opportunities to form an anti-Conservative coalition government amongst themselves.

In the face of this new normal, there are several things Conservatives can do to overcome what is, in effect, a broad plot to encourage and normalize a permanent electoral handicap for their party.

The first is to simply ensure Pierre Poilievre will be elected with a majority government. An unambiguous majority victory is what doused the progressive creativity unleashed by the 2008 coalition scheme and it would douse the energies we are seeing now, at least temporarily.

Second, they can continue to observe, loudly and often, what is obviously going on: Anti-Conservative politicians, journalists, and intellectuals encouraging Justin Trudeau to break nearly 100 years of precedent and refuse to concede to a Conservative leader that beats him in the seat count, something former Liberal prime ministers Louis St. Laurent, Pierre Elliott Trudeau, and Paul Martin did with speed and grace.

Third, they can resist the temptation to constantly concede ownership of the rules of the Canadian political system to hostile actors.

Any honest look at Canadian history suggests our parliamentary procedures have evolved slowly and domestically, with any alleged “rules” of the system always more descriptive than prescriptive. Self-styled constitutional experts are not lawyers, they are rarely more than political commentators, in fact, and their theories of what is constitutionally binding have not been tested in court.

The unwritten rules of Canadian democracy have always rested as much on public standards of what’s fair and familiar as anything else, and Conservatives should not be shy about appealing to these common sense instincts of justice above the angry essays of those who hate them.

Howard Anglin: A journey to the heart of Fairy Creek finds so much at stake for so little gain

Commentary

It’s been two summers since I visited the anti-logging protest camps at Fairy Creek on the southwest side of Vancouver Island, and I still can’t fully reconcile the conflicting views I have about them. On the one hand, I do think the RCMP overreached in its treatment of the protesters, but I also think the RCMP should have done a better—a more lawful and efficient—job enforcing the logging company’s injunctions against the protesters. And on the merits of the case I side with the protesters, even as I find them personally unsympathetic. In the face of rational uncertainty, I am forced to fall back on instinct and there the matter is clear: I oppose logging old growth forests.

I went to Fairy Creek intending to write about what I saw, but I was there for such a short time that when I sat down at my computer I concluded that my observations and insights didn’t justify my contribution. They probably still don’t, but I was reminded of my visit this week when I received an email asking me to send a message to federal government ministers in support of Motion M-83 by MP Patrick Weiler (West Vancouver–Sunshine Coast–Sea to Sky Country). The motion calls on the government to protect old-growth forests by:

  • ending the destruction of old growth forests on federal land;
  • prioritizing and funding the long-term protection of endangered old growth forest ecosystems;
  • launching the Old Growth Nature Fund before the end of 2023 to finance the protection and conservation of the remaining old growth forest in Canada; and
  • banning the export of old growth logs and wood products made from old growth trees, from and through Canada by 2030.

The email caused me to go back to my notes from June 2021 and to consider how my thoughts then and now bear on Mr Weiler’s motion. My conclusion is that M-83 is, on balance, a good motion. I don’t agree with everything in it, especially in the preamble, but subjective perfection is an impossible standard in deliberative politics. I added my name to the petition. What follows is my attempt to explain why.

Before I visited Fairy Creek, I read the cases for and against the protests, including the controversy over how to usefully define “old growth.” I read the letters from local elected First Nations leaders accusing the protesters of colonial presumption, and I heard the frustration of local foresters at interlopers shutting down the work that has sustained their community for more than a hundred years. I also read the report on “forests and forest-dependent communities” by the UBC Faculty of Forestry and the B.C. NDP government’s Old Growth Strategic Review report, each of which argued for different balances between industrial logging and conservation. But I wanted to see for myself.

When I decided to visit in June 2021, self-described “land defenders” had been encamped for a little less than a year fighting to stop the logging of old growth forest near a pristine watershed. With the sort of name propagandists dream of, Fairy Creek had attracted protesters from across Canada. There had already been 260 arrests, but by the end of August, the number of arrests would grow to 800, and by the end of 2021 almost 1,200 arrests would make it the largest act of civil disobedience in modern Canadian history. That was still in the future, but everyone I met at the time could have told you it would happen.

As I approached the site, I passed about half a dozen police cars parked along the side of the road. The week before my visit, the police had raided several of the camps further up the mountain, where protesters were digging in to stop the logging company building new roads. They had chained themselves to camp buildings, locked and cemented themselves into trenches on the road impeding logging equipment, and balanced themselves precariously up trees leaning above road or, in one case, over a gorge next to the road. But the officers I saw were relaxed. Reclining in their seats with their sunglasses on, they looked like they were napping. There would be no confrontations today.

Before I reached the base camp, “Fairy Creek HQ,” I had to pass through two road blocks about a hundred yards apart on a dirt access road, each manned by young protesters. Given the lingering tension from the recent arrests, I expected them to be more suspicious, but after a couple of questions they were satisfied that I just wanted to look around and they directed me to a gravel parking area a few hundred yards further up the road. The only things they asked were whether I was planning to stay the night (I was not), whether I had brought supplies (I had not), and not to take photographs of individual protesters or camp infrastructure.

Almost as soon as I arrived, I was conscripted by a man called “Moth” into carrying a large pot of soup around the lower part of the base camp. Moth was tall, about 30 years old, lean and tanned like rock-climber and looked like he’d been living outdoors for several weeks. While protesters ladled lunch into their personal bowls, I asked him about his time at the camp. He was happy to talk and blithely incurious about me. The campers were evidently used to transients. From what I could tell, the permanent population of the camp was relatively small—maybe a few dozen—and supplemented by short-term residents who would pitch up for a week or two, as well as people who would drive from as far away as Kamloops to deliver supplies.

I didn’t stay long, just long enough to hike up past Red Dress Camp to River Camp, two of the camps that would later be dismantled by the police and then reclaimed and rebuilt. River Camp was about two hours up the mountain, much closer to the main watershed. It felt simultaneously temporary and well-worn, with huts made of plywood, timber, and tarp, and individual tents scattered behind and around them. It was mostly deserted—I was told by a woman in a heavy formless sweater with matted grey hair that the others were out on reconnaissance, whatever that meant. Beyond the small camp, you didn’t have to walk far into the forest to be absorbed into the intense stillness. Pushing through damp ferns under the high canopy, fifty feet from the trail felt like fifty miles.

Writers trying convey what it’s like to stand in old growth forests often reach for a comparison to cathedrals. There is even a famous stand of old trees on Vancouver Island called Cathedral Grove. As you walk among them, the thick trunks recede in all directions and taper out of sight above, and a quiet heaviness hangs over the tall spaces in between. Your own sound is as intrusive as the echo of heels on the flagstones of an empty church. But it is important to remember that the analogy properly goes the other way. More than just structural necessity, the fluted columns of the great cathedrals, like the earlier columns of Roman basilicas and the hypostyle halls of Egyptian temples dense with dendriform pillars, brought the hushed reverence of the forest indoors as a setting fit for worship.

A sign is pictured in the trees in the Fairy Creek logging area near Port Renfrew, B.C. Jonathan Hayward/The Canadian Press.

Most of the people I spoke to were friendly enough, especially the youngest and the oldest. Passionate and optimistic, they were happy to talk about what they thought the government should be doing to defend old growth and were especially contemptuous of NDP leader John Horgan, who was also the local MLA. Many of the protesters were students or recent graduates, and though they were serious about the cause they smiled easily and I could see them eventually settling into NGO or government jobs. The retired professionals in Patagonia fleece vests and Tilley hats, with whom the younger set chatted cheerfully, offered a greying image of their futures.

One of the older men, a part-time journalist chronicling his time at the camp for alternative online publications, told me that he had been among those arrested the week before. He had spent six hours in the back of a hot paddy wagon before being driven to a police station and released without booking. He said this “catch and release” was a common tactic and, because they weren’t actually arrested, they weren’t able to challenge the legality of the arrest directly. I mumbled tepid commiseration. My sympathy for police confronting obdurate illegality is strong, but I reminded myself that the rule of law is not just neutral as between law-enforcer and law-breaker, it defines which is which.

As I got farther into the base camp, I also became aware of another type of protester, more reserved, more serious. Mostly but not exclusively men, these people appeared to be in charge. They weren’t exactly unwelcoming, but in contrast to the people I first encountered they made no effort to hide their wariness. No doubt it was well-earned. The few I spoke to were veterans of environmental protests. They were not idealists. Talking to one of them, I was struck by the rawness that is left when hope runs out. He had fought and lost too often. He was angry and his open contempt for humanity was beyond antisocial, it was sociopathic. He was the exception among those I spoke to, but although I couldn’t imagine him fitting in anywhere else, he had a place there.

I asked another of these veterans how they were handling their dispute with local First Nations leaders. He was blunt. He said he didn’t care who owned the land, he was there for the trees. He told me that if the First Nations didn’t care for the land, then they had no right to stop the people who did. He said he saw no difference in principle between the provincial government and First Nations’ governments: one was corrupt and the other had been corrupted. The only people he would listen to were those committed to ending old growth logging. It was an unusually stark view of what was at stake, but it differed from what I heard from others only in its antinomian honesty.

I can’t say I liked the people I met at Fairy Creek, but that doesn’t matter: you don’t have to like someone to agree with them. We would do better as a society if we remembered that. It’s an understandable reflex to dislike whatever someone you dislike is doing or, equally unhelpfully, to agree with whatever someone you like supports. But it confounds good public policy when we evaluate ideas based on who proposes them. I felt this poisonous impulse in myself at Fairy Creek. The more I talked to the people in the camps, the less I liked their cause, while the further I got from the protesters and into the forest, the more I understood why they were there.

A 1,200-yr-old slab of yellow cedar known as a cookie from the old growth forest in the Port Renfrew area was removed from the west annex area where the Premier’s office is located. Chad Hipolito/The Canadian Press.

Two years later, it’s not clear who “won” and who “lost” at Fairy Creek. In the spring of 2022, the provincial NDP government announced a deferral of 1.7 million hectares of old-growth forest, which it later increased to 2.1 million hectares, but neither the forestry industry nor the former camp protesters are happy with the decision and local First Nations remain torn between the sides and divided among themselves. As for me, my instinct for conservation is unchanged. I am happy to be told that this is a naïve and ignorant opinion, and I’ve spoken to people more knowledgeable than me who have explained why it is. But while I may vacillate on other aspects of the protests, I can’t shake that core conviction.

The timber industry is important to the economy and the culture of British Columbia; much of the province was quite literally built by local timber. But the industrial depletion of old growth has left only a small fraction of the oldest parts of the ancient forests intact. It is too late to save what is lost, but what remains we must preserve and steward wisely. The intangible worth of the oldest trees is incommensurable with any commercial value. “Old growth” on Vancouver Island means more than 250 years old, but some of the trees that have been cut are much, much older, some more than a thousand years old.

Because a society is an intergenerational compact, we must conserve for the common good things that cannot be replaced within our lifetimes or, in the case of the oldest trees, within fifty generations. No profit can compensate for the loss of a tree that was already 200 years old when Magna Carta was signed and more than 400 years old when Gutenberg printed his first Bible, and certainly not the trivial commercial value of the wood.

The value of all the timber in Teal-Jones’s licensed harvesting area, of which Fairy Creek is just a small part, is $20 million, less than what the B.C. government spends to build a single new school. With so much at stake for so little, I can’t believe it isn’t possible to make everyone, if not happy, then at least whole.