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Russell Wangersky: Terms of union were rules of engagement

Things are seasonal: the leaves fall, the snow flies, and sooner or later, someone pitches out the old idea that this province needs to fix things by reopening the terms of union.

The difference? The snow and the leaves are real. Calls to reopen the terms of union for some great benefit — say, in gaining fisheries jurisdiction, are imaginary.

 

Russell Wangersky
Russell Wangersky

 

The simple fact is that the terms of union are not a buffet at an all-inclusive resort; you can’t just arbitrarily decide that the roast beef on your plate looks a little overdone, so you head back for shrimp instead.

They’re not going to be reopened, and even if they were, there’s no guarantee any change would leave us the least bit better off.

The terms were the mechanism for Newfoundland the country becoming a Canadian province. The possibility of Newfoundland’s entry had been foreseen by Canada, and any entry already had constitutional rules enshrined in Canadian law.

As Stephen May pointed out in his thorough review “The Terms of Union: An Analysis of Their Current Relevance” for the Royal Commission on Renewing and Strengthening Our Place in Canada, in 2003, “the terms of union have little practical application to current federal-provincial political and financial relationships. … (Asserting) the terms of union in trying to expand Confederation’s benefits to the province could result in an interpretation, based on current legal principles, having the opposite effect.”

They’re not going to be reopened, and even if they were, there’s no guarantee any change would leave us the least bit better off.

The other harsh truth is that those negotiating the terms had the opportunity to negotiate for more fisheries jurisdiction in the first place, and chose not to.

As May wrote, “However, two Newfoundland delegates, Joseph Smallwood and Gordon Bradley, rejected the option of providing Newfoundland with exclusive provincial jurisdiction over fisheries at a meeting with officials of the federal Department of Fisheries. A memorandum to the assistant secretary to the cabinet indicates that the Newfoundland delegates rejected the option on the basis that it would ‘deprive Newfoundland of the assistance of the federal Department of Fisheries, and they did not wish to deprive Newfoundland of these services.’ The concept of concurrent legislative jurisdiction was rejected due to the federal government’s ability to override any provincial legislation.”

The negotiations were more concerned about finances: “These concerns about Newfoundland’s finances were such a preoccupation that they prevailed in discussions on Newfoundland’s potential to obtain exclusive or shared jurisdiction over a critical sector in its economy, the fishery,” May wrote. “This is not raised to suggest that the federal government was prepared to agree to a constitutional provision ensuring that Newfoundland obtain exclusive jurisdiction over its fishery; however, it does illustrate that financial concerns and realities hindered even simple discussions on issues pertaining to power transfer or sharing.”

What about going back and trying again?

Well, even if you could get past the theoretical and into the practical and reopen the terms, the fact is that what the province would be doing is reopening a negotiation, not simply making stand-alone demands. So put your mind to this question: what would we be willing to trade for more jurisdiction over the fishery? And what would other provinces — whose agreement would be needed for any change — demand in return?

Keep in mind that negotiations are not a one-sided effort. Think about the pitfalls of a reopened North American Free Trade Agreement, for instance. (Leave aside the fact that a provincial-administered fishery is no guarantee of any improvement; successive provincial governments have been almost hopeless at administering the parts of the fishery they do control, like fish processing licences.)

What should we do when someone suggests redrafting the terms as a solution?

Let your eyes glaze over, murmur politely, and realize that raising the topic actually means they have nothing to offer.

 

Russell Wangersky’s column appears in 35 SaltWire newspapers and websites in Atlantic Canada. He can be reached at rwanger@thetelegram.com — Twitter: @wangersky.

 

 

 

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