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Description:
Local Self Government - Bulletin No 1, November 1999

The purpose of this public-service bulletin is to focus debate on the need to increase local self-government in Canada, and help local communities achieve more autonomy. Our web site is http://www.localselfgovt.org . This
first bulletin is three and a half pages long, and includes:

1. News on the Alberta School Boards case which will be heard by the SupremeCourt of Canada in 2000. This case asks the court for a declaration that the Canadian constitution contains an implicit guarantee of a reasonable level of local government autonomy. This case has the possibility to returning to local governments in Canada the protection most local officials thought they had from arbitrary provincial downloading, structural change, and loss of power.

2. A brief description of the loss of local government in the state of Victoria, Australia, and its replacement by local administration on behalf of the province. It is a chilling example that might be an international precedent for continued attacks on local institutions in Canada.

3. Defining the issue. What words should one use to talk about stronger, more independent, local government?

4. An invitation to subscribe to this bulletin and to join in our discussion space. Neither the bulletin nor the web site involves financial obligations of any kind to subscribers or visitors.


1. Alberta School Boards case.

This case was brought by the Public School Boards Association of Alberta, and others, arguing that 1994 legislation passed by the Ralph Klein government to remove taxing and decision-making powers from local school boards is contrary to constitutional law and convention in Canada as it relates to local institutions. The case will be heard by the Supreme Court of Canada in 2000, probably before the summer.

Unlike court challenges to the City of Toronto megacity legislation (Bill 103) which were argued mainly on grounds that the legislation infringed on the Charter of Rights and Freedoms arguments that were unsuccessful at both the Ontario Supreme Court and the Ontario Court of Appeal - this case takes a much broader view of constitutional arrangements in Canada to protect
local institutions.
The following are excerpts from the factum:

Paragraph 1.
Municipal institutions are at a crossroads. Democratic government in Canada has always operated, de facto, at three levels: federal, provincial and municipal. Although only the federal and provincial orders of government are fully-autonomous partners in the Canadian federal union, de jure, Canadians and the British before them have always placed heavy responsibility for the governance of matters close to home on locally-elected municipal institutions. While those municipal institutions have always been supervised in Canada by the provincial order of government, until recently they enjoyed a degree of relative freedom reasonable autonomy or semi-autonomy that permitted democracy to function effectively at the local level.

Paragraph 14.
Only this Court can say whether reasonable autonomy is a quality that school boards and other municipal institutions constitutionally possess. So long as the unstated understandings and organizing principles that animate the Constitution are tacitly respected, there is little need for judicial involvement. But when a principle that is fundamental to some is denied, questioned, or narrowly construed by others, the courts must clarify the situation. This Court has done so in relation to such principles as judicial independence, legislative privileges, fiduciary obligations to Aboriginal peoples, full faith and credit, the implied bill of rights, secession and the rule of law. Tacit understandings and political suasion are no longer sufficient to guarantee effective democracy at the local level. Provincial governments are acting upon assumptions about the constitutional role of municipal institutions that are fundamentally at odds with the principles many Canadians believe to be basic. A decision is required.

Paragraph 15.
The notion of reasonable autonomy is rooted in a long-standing principle of governance called subsidiarity. It embodies the very simple, but important, idea that governance should occur at the lowest level having the requisite knowledge, authority and skill to deal with matters effectively. Subsidiarity underlies federalism, and it was in play, long before federalism was invented in the relationship between local and national governments in the U.K. and elsewhere; as well as in the ancient principles of feudalism from which those models evolved. Simple necessity may have dictated that in pioneer societies governance typically began at the local level; but the reason strong local governments persisted after central authorities asserted their authority was plain common-sense: local matters are best dealt with locally.

Paragraph 26.
The Public School [Board]s do not deny that school boards and other municipal institutions are creatures of, and are legally subordinate to, the provincial order of government. Both Courts below relied on authorities to that effect ... It is submitted, however, that those authorities are beside the point. The Public School [Board]s simply say that provincial legislatures must respect constitutional constraints when exercising theirundoubted authority over municipal institutions and education. Just as they must observe Charter restrictions when dealing with all matters under their jurisdiction, legislatures must also observe restrictions implicit in the foundational principle of democracy. Those restrictions include local governments reasonable autonomy, which an expert witness for the Government acknowledged to be a fairly standard expression in the field.

A large part of this interesting and provocative factum, filed with the court in mid-September by Dale Gibson Associates, the Edmonton lawyers for
the School Boards Association, can be accessed on our web site, http://www.localselfgovt.org , in the library tab.


2. From local government to local administration: the new order

Dr. Rosemary Kiss, a professor at the University of Melbourne, has recently written about the changes made by the state government of Prime Minister Jeffrey Kennett to local government in the state of Victoria, Australia. Since 1992 the state has: forcibly amalgamated municipalities (only one of 210 municipalities in the state was left untouched by amalgamation fever); significantly reduced the ability of local government to raise money through property taxes; removed from locally elected representatives the power to hire and fire staff, lodging all administrative power and decision-making within the hands of the municipalitys chief administrative officer; and imposed compulsory competitive tendering on local governments, forcing them to lay off many employees.

What makes these changes so worrisome is that in many instances the Kennett government relied on reports from consultants KPMG. It is known that provincial governments in Canada often rely on the reports of KPMG to justify the change they want to force on local government. Some of the things that have happened in Australia have happened in some Canadian jurisdictions: are the rest on their way?

And just as changes to local government in Canada have been accompanied by much talk that is derogatory of locally elected officials and local interest groups, the same occurred in Victoria. There have been the same (unfounded) claims of how much money has been saved by state intervention, and the same (untruthful) claims about local consultation, participation, and consent.

Dr. Kiss' article, which is part of a book, just published, can be found on our site, http://www.localselfgovt.org , at the library tab. It provides a strong warning about a worrisome future for local government in Canada.


3. Defining the issue

There's not a lot of agreement about the words to use in carrying on a discussion about local democracy for local institutions. Some people like the reasonable autonomy phrase from the Alberta School Boards case, but others argue that the word autonomy implies a self-sufficiency and independence that isn't really intended. Others worry that autonomy puts one into the middle of the debate about Quebec succession.

Some people like the phrase 'local self government', since it stresses the idea of a local institution being charge of its own affairs, but others say it doesn't hint enough at the kinds of infringement now being felt by local institutions as provincial governments act in unilateral fashion. They say its not just that a local government should have the ability to run its own affairs it also should have the authority to prevent the imposition of provincially mandated change if it disagrees with those changes.

Some like the phrase 'local democracy', claiming that democracy includes the notion of a necessary consent to changes before they are implemented. Others think that claim might not be so widely agreed to.

So while the general concepts about the need for local self-government, or autonomy, or local democracy might be agreed to, there's more work to do on the phrases used to express the idea. Your ideas on this issue are welcome.
Why not set them down in the discussion area on the website so they are widely shared? Go to the web site and follow
the simple instructions.


4. Subscribe to the bulletin

This first edition of the bulletin has been sent to about 900 individuals involved directly and indirectly in local government in Canada. We invite you to subscribe to the bulletin by going to the Bulletin tab of the web site http://www.localselfgovt.org and following the instructions.

More information about the sponsors of the bulletin, members of the advisory
committee, and our discussion space, can be found on the web site,
http://www.localselfgovt.org .
Now: http://www.localgovernment.ca

We appreciate your comments, your feedback, and items of interest that you
wish to share with us and others who visit the web site.