Is Cooperative Federalism For Losers?

Every kindergarten teacher tells their students about the benefits of cooperation. Cooperation, the theory goes, means working together, allowing people to hit heights of accomplishment that they could never reach by themselves. We are told that when we cooperate, nap time is more fun, everyone's milk and cookies are a little more delicious, and no one throws sand in your face.

Anyone who follows federal-provincial relations in Canada knows that kindergarten can be an apt metaphor. But it turns out that the courts—forced to play referee in the federalism "sandbox"—often prefer solid legal doctrines to vague notions like "cooperation". While cooperative federalism has been invoked by the Supreme Court to blunt some overarching federal powers, arguments relying heavily on cooperative federalism are often rejected.

This winter, the Supreme Court will hear two politically charged cases that will test the limits of cooperative federalism: the references from Saskatchewan and Ontario testing the constitutionality of the federal carbon tax legislation. In their respective Courts of Appeal, both Ontario and Saskatchewan relied on the principle of cooperative federalism in arguing that the Federal carbon tax legislation invalid.

If recent history is any guide, none of these arguments will succeed. This article will briefly explain the history of this concept and show why the party who relies too heavily on cooperative federalism has likely run out of better arguments.

The rise of cooperative federalism

For nearly a century after Confederation, the governing analogy for federal and provincial powers was "water-tight compartments". On this theory, times might change, but constitutionally granted legislative authority remains the same. Federal and provincial powers were separate from one another. These powers were not intended to "leak" between different levels of government. Moreover, clauses granting what appeared to be broad authority to the federal government, like "trade and commerce" and "peace, order and good government" were read narrowly and limited to matters such as international or interprovincial trade, national emergencies, and matters of national concern.

While cooperative federalism has been invoked by the Supreme Court to blunt some overarching federal powers, arguments relying heavily on cooperative federalism are often rejected.

As the scope and complexity of the regulatory state increased, it became increasingly difficult to keep the compartments quite so water tight. Matters arose...