Curb provincial power over army, says ex-senior bureaucrat

The federal government should dilute the existing and unbridled power held by provinces to call in the military during times of domestic turmoil, says a former Indian Affairs deputy minister who held the post during the Oka crisis.

(photo: Canadian troops battle with Kahnawake Mohawks during Oka crisis. Archive)

By Jorge Barrera
APTN National News
-The federal government should dilute the existing and unbridled power held by provinces to call in the military during times of domestic turmoil, says a former Indian Affairs deputy minister who held the post during the Oka crisis.

Under existing legislation, Ottawa plays no official role in a direct provincial request for military aid under the National Defence Act, or in the military’s response to that request. The federal government, however, would cover all the costs for such an event.

The provincial power to call in the army dates back to Confederation, but the federal government assumed full responsibility for the cost under former prime minister Brian Mulroney’s government.

Harry Swain, who was Indian Affairs deputy minister from 1987 to 1992, said it is time to bring the federal government into any decision involving the intervention of the Canadian Forces in a domestic situation.

“There is no role in that for the federal leadership to say ‘gosh, maybe we should try to do this way or that way or find a compromise or to have a handle on expenses,'” said Swain, in an interview with APTN National News while promoting his new book, Oka, a political crisis and its legacy. “A system in which there are maybe two keys to the kingdom may have some appeal.”

Quebec has been the only province to use its power to trigger a military intervention when faced with a conflict with First Nations since 1988, when the Mulroney government replaced the War Measures Act with the Emergencies Act, limiting Ottawa’s powers to call in the troops.

The military became involved in the high-profile 1995 Gustafson Lake armed stand-off in British Columbia after the province sent a request asking the federal government for support.

There were some calls for a military intervention during the Six Nations conflict in Caledonia, Ont., in 2006, but Ontario never invoked its powers.

The military, however, was on site gathering intelligence and preparing contingency plans “for a possible, yet improbable, domestic operation,” according a draft chapter written by military historian Timothy Winegard for a soon to be published book on conflicts between First Nations and the state called, Blockades or Breakthoughs?: Aboriginal Peoples Confront the Canadian State, 1968-2010.

Swain said Ontario made a wise choice, but, with the existence of pressure points between First Nations and the state across the country, it may be time to reign in provincial powers over the military before disaster strikes.

A crisis currently looms in B.C. if Prime Minister Stephen Harper’s federal cabinet approves the construction of a gold and copper mine in the province’s remote interior.

The Taseko Mines Ltd. project would lead to the draining of a lake sacred to the Tsilhqot’in people.

The Tsilhqot’in have vowed to stop the project with their lives.

Under the National Defence Act, a province can send a direct request of Aid to Civil Power to the military. This type of request would go around the prime minister and the minister of national defence, straight to the military’s chief of defence staff. It is then solely up to the military to decide how to respond to such a request.

There are no official mechanisms allowing for federal government involvement in this scenario.

In such a crisis situation, the political relationship between a prime minister and a premier can have a major impact on the outcome and resolution, said Swain.

“As it is, the affair in 1990 worked well because the relationship between (former prime minister Brian) Mulroney and (former Quebec premier Robert) Bourassa worked very well,” said Swain.

Swain said Bourassa and Mulroney faced different scenarios as the Oka crisis unfolded.

“Mr. Bourrassa was reacting cautiously and carefully to an inflamed public opinion in Quebec, which was very decidedly anti-Mohawk at the time and there were an awful lot of people calling for quite violent solutions,” said Swain.

“The dilemma for Mr. Mulroney was that this sentiment was not shared across the country. There was more sympathy for the Indian cause elsewhere.”

Swain said there is too much at stake when situations such as these arise to have Ottawa frozen out of the decision-making process.

“The armed forces are not just a national institution, but a unique one. A great deal of the country’s reputation and honour rests with their behaviour and it has to be exemplary,” said Swain. “You really want a mechanism for more hands on the tiller before you do something like that.”

Renowned McGill University military historian Desmond Morton has written extensively on the subject. Morton said a move to dilute provincial powers on the military would mean altering one of the compromises of Confederation.

Morton said the power to call in the military has already been extensively curtailed since the days when mayors and magistrates called in the troops in “literally hundreds of cases,” including to quell labour unrest.

“The Constitution acknowledges co-ordinate powers for the maintenance of public orders. To transform that responsibility exclusively to a federal government, even if it owns the Canadian Forces in its responsibility for “militia and defence,” would be quite a significant amendment at a time when such interventions have been relatively few and, outside the First Nations communities affected, not perceptibly very controversial,” said Morton in an email.

Morton, however, says it may be time for the provinces to foot the bill.

“If you have a responsibility, even for law and order, you should, in my view, pay your bill,” said Morton

According to Winegard, the federal government would be involved unofficially whenever the military is called.

“There is nothing to say that the chief of defence staff can’t talk to the minister of national defence or the prime minister. It would be career suicide for them not to,” said Winegard, who also agrees provinces should pick up the tab.

In its 1991 report on the Oka crisis, the Commons Aboriginal affairs committee recommended a review of the portion of the National Defence Act that grants provinces the power to call in the military, “in light of concerns about the need for stronger review mechanisms and additional reporting requirements respecting the use of the armed forces as an aid to a civil power.”

The review never occurred.

As it stands, “short of a nuclear attack,” the domestic deployment of the Canadian military occurs under three main categories, according to Winegard.

The federal government can call in the military when it faces specific situations where existing laws fail.

These include scenarios that threaten Canada’s sovereignty, security and territorial integrity, according to Winegard, who wrote about the issue in a book on the 1990 crisis called,  Oka: A convergence of cultures and the Canadian Forces.

The federal government can also call in the military for non-combat operations like narcotic traffic surveillance, fisheries issues or dealing with natural disasters like the recent clean up of Newfoundland and Labrador following Hurricane Igor.

The military was also called in under this provision to aid authorities sent in to quell Akwesasne after its 1990 civil war, which preceded the Oka crisis, and to support the RCMP in Gustafsen Lake.

The third category includes the provincial power to call in the military.

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