The following op-ed by Democracy Watch Co-founder Duff Conacher was published in shorter form by Maclean’s magazine on May 10, 2017
After an election in which democracy issues were a major focus, a vote split between the B.C. Liberal, NDP and Green parties could lead to the first minority government in the province in 52 years, a development that would open the door to major democratic reforms. Recounts in some ridings, and absentee ballots that still need to be counted, mean the official results won’t be known for two weeks.
In any case, at best, the Liberals will likely have a one-seat majority, giving the opposition parties significant power. With the Liberals winning only about 41 per cent of the popular vote, and with only approximately 57 per cent voter turnout, the Liberals will also be hampered by the fact that only 23 per cent of eligible voters actually supported them.
A first order of business for all the party leaders should be to issue a public statement of agreement, along with the Lieutenant Governor, on a set of rules to prepare for a minority government. The rules should make clear: which party will get to try governing first; when the legislature will open; when it can be closed; what a vote of non-confidence is; when and how the opposition parties may get a chance to govern and; when and how the next election can be called.
Even if the final vote count gives one party a majority, these rules will help the legislature run fairly and democratically until the next election. England, Australia and New Zealand all enacted these rules, and others, years ago, and more than 80 per cent of Canadian voters want similarly clear rules to stop abuses.
Other priorities include: cleaning up the ethics rules and enforcement system; democratizing the political finance system; changing the voting system so that parties receive the same percentage of seats in the legislature as votes (and also freeing and empowering MLAs to represent voters and hold the government accountable); and other key transparency and accountability measures.
B.C.’s provincial political ethics law prohibits politicians from having even the appearance of a conflict of interest when making decisions that affect specific companies or individuals – a higher standard than other jurisdictions in Canada. What can cause an apparent conflict of interest is the key issue in a lawsuit Democracy Watch and the PIPE UP Network have filed challenging the B.C. Liberals’ approval of the Kinder Morgan Trans Mountain pipeline. The lawsuit asks the court to declare that Liberal Premier Christy Clark and her Cabinet ministers were in a conflict of interest that prohibited them from approving the pipeline because Kinder Morgan and pipeline-connected companies donated more than $630,000 to the B.C. Liberals over the past five years.
Several other businesses and business sectors that seek B.C. government contracts, or other favourable decisions, have donated hundreds of thousands of dollars to the Liberals over the past decade. In some cases, lobbyists for the companies made the donations and were reimbursed by the companies, and the NDP has also returned some donations that seem to have been made improperly. These donations are being probed by a special prosecutor and the RCMP.
As well, business lobbyists routinely work on B.C. Liberal campaigns, and union representatives routinely work on NDP campaigns. The details about who helped with the Green Party’s campaign are not known, and as a result it may escape the charge.
As a result, even if the B.C. legislature finally bans corporate and union donations, and limits individual donations, as both the NDP and Greens promised to do in their election platforms, key ethical questions will remain for party leaders.
In a landmark ruling in 1993, then-B.C. Conflict of Interest Commissioner Ted Hughes ruled that Minister Robin Blencoe violated the provincial political ethics law because he made a decision that affected the private business interests of two people who had helped him win election as an MLA a few years before. In 2009, the Federal Court of Appeal unanimously ruled on a situation involving a lobbyist raising tens of thousands of dollars for a Cabinet minister he was lobbying, writing that: “Where the lobbyist's effectiveness depends upon the decision maker's personal sense of obligation to the lobbyist…the line between legitimate lobbying and illegitimate lobbying has been crossed.”
These rulings have been largely ignored in recent years in B.C. The question now is what will the courts do with the lawsuit concerning the Kinder Morgan pipeline approval? And what will the courts, and B.C.’s Conflict of Interest Commissioner, do when faced with future challenges of the Premier, Cabinet ministers, and possibly opposition party leaders making decisions that help their party’s big money donors, and lobbyists who helped on their campaigns?
Depending on how the courts rule, the Kinder Morgan lawsuit may end up disclosing details about how much pipeline-connected companies helped the Liberals fundraise in recent years. However, some of the ways in which lobbyists have helped B.C.’s parties and politicians in the past will likely remain hidden forever.
Another democratizing step that B.C.’s parties could take is to require disclosure of everyone who helps with fundraising, campaigns and other activities that support candidates and parties every year, and before every election day so voters know.
Closing loopholes that allow lobbyists to hide their lobbying activities and communications, and strengthening the access-to-information law so that politicians can’t hide details about their decisions, would also help untangle the web of undue influence that currently affects B.C. politics.
No law enforces itself, especially laws that require powerful people to be honest, ethical and open about their actions and decisions. B.C. election, ethics, lobbying and transparency watchdog commissioners play a key role in ensuring good government laws are followed.
However, the commissioners all lack independence from the government, especially Conflict of Interest Commissioner Paul Fraser whose son works for Premier Clark’s Cabinet. It would help to change the appointment process for these watchdogs by having an independent commission conduct a public, merit-based search process to come up with shortlist of two or three candidates for each commissioner post from which the legislature would have to choose. The Ontario government and the United Kingdom use this process to appoint its provincial judges, and their systems are considered to be world leading.
The good government watchdogs must also all be required to conduct random, unannounced audits to ensure everyone knows there is a high chance of being caught if they violate any of the rules. As well, to ensure that all good government watchdogs enforce rules properly and effectively, anyone who questions any of the watchdogs’ rulings must have a right to appeal to the courts.
One would think that this right would already exist, but Democracy Watch is currently appealing a B.C. Supreme Court judge’s ruling that no one can challenge rulings by B.C.’s Conflict of Interest Commissioner (or other commissioners), even if the Commissioner ignored the facts and the law in his ruling.
Finally, key transparency and enforcement tools that B.C. parties should enact are changes to strengthen the Auditor General’s powers and to establish a Parliamentary Budget Officer, and a whistleblower protection law that ensures anyone who reports wrongdoing by anyone in politics is protected from retaliation, and compensated if their allegations are proven true (as in the U.S. and many other countries).
While making these key changes won’t resolve the conflicts of interest that haunt B.C. politics, the sooner the changes are made the sooner B.C. will be able to move forward into a modern era of honest, ethical, open and democratic politics.
FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Democracy Watch’s Campaigns page