Editor’s Take: Precedents and partisanship

[UPDATED: Oct. 1, 2020] Manitoba’s Municipal Board has, for the first time, overruled an RM council decision regarding a development application.

If the fact that a politically appointed board can override the decisions of a duly elected local council isn’t raising eyebrows, it should.

We only have to look south at what has taken place at the political crisis sparked by the death of U.S. Supreme Court Justice Ruth Bader Ginsburg for hints as to why.

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Both major U.S. political parties are lining up to do battle in what will likely prove to be yet another divisive, damaging and bitter nomination.

That’s sad considering the role of the court in the U.S. political system.

Established by the U.S. Constitution, the Supreme Court has the ultimate jurisdiction over all laws within the United States and is responsible for evaluating the constitutionality of those laws.

It is the interest of all to not politicize this body, and instead to rely upon it for keen jurisprudence and a view that’s above politics.

Of course today nothing could be further from the truth, as increasingly issues are decided by single votes, and the court increasingly reflects the hyper-partisanship that it is surrounded by.

This wasn’t always the case. From 1801 to 1940, less than two per cent of the issues the U.S. Supreme Court weighed in on were settled by a single vote. Today that number is above 20 per cent.

Consider the late Earl Warren, who served as chief justice from 1953 to 1969, presiding over some of the most controversial and far-reaching decisions of the day.

As The Economist noted in a 2018 article during his tenure the court ruled segregation unlawful, that states must provide attorneys to indigent criminal defendants, that the police must inform suspects of their right to both an attorney and to stay silent, and that legislative districts within states must have roughly equal populations.

All of these issues were very controversial at the time, and Warren, despite being a former Republican governor of California, was also a noted small-l liberal.

What’s remarkable, in the context of 2020, is how he gained his position, as the Economist article notes: “A Republican president, Dwight Eisenhower, installed him when the Senate was out of session, and though there was some politics in between (some southerners worried Warren was too liberal, some liberals that he was too conservative) he was eventually confirmed with a unanimous voice vote in the Republican Senate.”

That of course would never fly today, and the brewing battle over the latest seat on the court will almost certainly reinforce that.

We like to look with a mix of pity and horror at the political squabbling afflicting our neighbours to the south, while somewhat smugly assuring ourselves that we’ll never go down that road.

The reality is that on a much smaller scale, the potential seems to be emerging for what could be a similarly partisan body here in Manitoba.

*In this case, as reported by Geralyn Wichers the proposed development is a quarry in the RM of Rosser. The local council ruled against the development multiple times before the legislation changed, granting new powers to the board.

The precedent-setting decision will also affect agricultural undertakings like large-scale livestock operations.

What’s troubling is that the board is acting like a judicial body. It hears evidence from both sides and it makes legally binding decisions. But unlike a Canadian court of law, there appears to be little oversight regarding the appointment of the board members who will be making these decisions.

For example, appointing a federal judge in Manitoba involves approval by the Federal Judicial Advisory Committee for Manitoba. Members include nominees from the chief justice of Manitoba, the Law Society of Manitoba, the Canadian Bar Association, the justice minister of Manitoba, and three federal government nominees.

By contrast the Manitoba Municipal Board is appointed entirely by the provincial government of the day, with no oversight. Its decisions, of course, can be appealed through the civil courts, but at great cost to all parties.

If a board is going to have the power to overturn the decisions of an elected local government, there should be an arm’s-length appointment process that ensures the necessary skills are present on the board and that partisan politics doesn’t interfere with its deliberations.

Without that, it’s probable that appointments to this board will create the same controversies that we see to our south.

When it comes to issues as important as local government autonomy, economic development and the issuance of legally binding decisions, the provincial authority must be both bipartisan and credible.

*UPDATE: The editorial previously indicated the RM of Springfield.

About the author

Editor

Gord Gilmour

Gord Gilmour is Editor of the Manitoba Co-operator.

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