I wanted to follow-up on the theme of the latest article published on this site, “The Forest and Range Statutes Amendment Act, 2007 (“Bill 18”) – Further Advances in Regulatory Discretion”. In my article, I focus on the fact (in my view, anyway) that over the past decade, and continuing with Bill 18, we have witnessed a massive devolution of legislative authority over the forest industry in BC from the Legislature to Executive Council of government—the provincial Cabinet in other words.
The title of this blog entry is entirely tongue-in-cheek—what is of concern is that this trend does not seem to particularly bother anyone. There is no fuss.
The true source of sovereign political power in our democracy is the Legislature. Dave Zirnhelt was technically wrong when he stated something to the effect that government can do whatever it wants. In fact, the government can only do what the Legislature will allow it to do. Nit-picking aside, however, one can easily understand how Zirnhelt may have become confused over the true source of political sovereignty: if one looks at the devolution of legislative authority from the Legislature to Cabinet in recent times, especially in the field of forestry law, one might easily conclude that the Legislature had in fact abdicated its sovereignty to Cabinet. The Legislature has handed over so much authority to Cabinet that if a scandal hit the current government, and the NDP came back to power, they could change the direction of BC’s forest policy through order in council without even going before the Legislature.
My article only picks on Bill 18, but the transfer of legislative power from the Legislature to Cabinet (at least in respect of forestry legislation) started to increase exponentially somewhere around the enactment of the original Forest Practices Code of British Columbia Act under the NDP in 1996. Some may recall that a provision in that legislation even gave Cabinet the extraordinary discretion to determine whether the Code should apply to private land (fortunately, Cabinet never exercised that authority). However, the BC Liberals have picked up the ball and run with great enthusiasm. The idea that Cabinet should have the discretion to define a concept so integral to FRPA as “forest practice” (as is contemplated in Bill 18) and, thereby, effectively determine the scope and application of FRPA is mind-boggling.
While we must tolerate the delegation of legislative authority as a necessary evil in the modern world, we should still view it as an evil that should be limited wherever possible. Instead, we seem to have collectively shrugged our shoulders, and given up any pretense that the sovereignty of the Legislature matters. Government controls the Legislature so will do what it wants anyway, so what’s difference whether policy is enacted through the Legislature or through Cabinet? In my view, the Legislature plays a vital role in the legislative process, both for sake of legitimacy, and for sake of transparency and accountability.
Whenever government enacts laws, it is in some way restricting someone’s liberty. This is necessary—without some restrictions on liberty we would have no liberty at all. But, as a matter of democratic theory, the restriction of individual liberty is only legitimate if undertaken through a sovereign authority. In modern times, sovereign authority is found in the institution of the Legislature (the “Legislative Body”), not in any particular politician or bureaucrat. When legislative authority is delegated out of the hands of the sovereign authority into the hands of someone else, the legitimacy of the resulting legislation is diminished (even if technically valid). That’s why the Legislature should legislate directly with respect matters of public importance (for example, the definition of “forest practice”)—important legislation requires more legitimacy. Only the lesser aspects of public policy should become matters for delegated legislation—the nuts and bolts of an administrative scheme, for example.
Delegated legislation also does not receive the same amount of scrutiny as enactments of the Legislature. Delegated legislation is one step removed from the media and opposition politicians. The exercise of delegated legislative authority is less transparent, and those who exercise it are less accountable. While narrow interests are able to make their voices heard, there is less representation of the public interest. For sake of the public interest, more important legislation requires more transparency and accountability. Again, this suggests that only the Legislature should legislate directly with respect to matters of public importance.
Those in government or otherwise involved in the legislative process would undoubtedly reject these notions as hopelessly naïve and argue that the governance of modern societies necessarily requires the Legislature to delegate the legislation of important matters to others. Maybe so, but this attitude only serves to remind me of a famous quote from Edmund Burke: “The true danger is when liberty is nibbled away, for expedience, and by parts”. It’s not the fact of delegated legislation itself that is bothersome; it’s the extent that the Legislature is able to delegate legislative authority without, apparently, even a whiff of controversy.
The commentary in this blog is general in nature and does not constitute legal advice. Persons requiring further information or advice should contact Jeff Waatainen at 250.758.9485 or jeff@bcforestrylaw.com
