B.C.’s postelection stalemate has echoes of 2017, but with its own features, according to two constitutional experts.
When Christy Clark’s Liberals won the 2017 election with just two seats more than John Horgan’s NDP, the Greens surprised everyone by taking three seats and the balance of power. But the path to the Greens signing on to back the NDP in forming a government was anything but smooth.
Former B.C. cabinet minister Brian Smith, a constitutional law expert who was attorney general under premier Bill Vander Zalm, said the 2024 situation is different because there are ballots yet to be counted.
“We have a different situation. When you’ve got a party with a very slim majority, and if they can meet the House with the Green support they can form a government,” said Smith.
Such arrangements are unpredictable.
“There is nothing but problems afoot,” said Smith. “This is going to test the skill for these leaders.”
When NDP leader David Eby announced on Tuesday that he’s ready to negotiate, the Greens said they were not.
Eby will have to build relationships and forge alliances, something his predecessor, John Horgan, had an innate ability to do, said Smith. If he can’t do that, and with John Rustad vowing to make life “as difficult as possible” for a minority government, there is no easy path.
There are private conversations to come that could take weeks, even months.
“Both Eby and Rustad will be manoeuvring to form some kind of agreement with the Greens,” said Margot Young, professor at UBC’s Allard School of Law.
Will the lieutenant-governor be called upon to decide once again? It’s too early to tell, said Young.
“The lieutenant-governor is the nominal head of state in the province, and her role is to do what the premier asks her to do,” said Young. “The rare occasion where she has independence of government involves precisely this sort of situation.”
Lt.-Gov. Janet Austin will be meeting with constitutional experts to prepare for meetings with party leaders that may come, if neither the NDP or the Conservatives win a decisive majority, said Young.
In 2017, Smith was called to Government House in Victoria by then Lt.-Gov. Judith Guichon for constitutional discussions after Christy Clark’s minority government was brought down by a non-confidence vote. Clark asked for a new election rather than giving the NDP a chance to form a government.
The lieutenant-governor has constitutional discretion on whether to dissolve the legislative assembly if asked by the premier, or ask the leader of another party to form government.
“It is the lieutenant-governor’s solemn duty to uphold the constitution,” said Smith. “The Crown’s duty is to maintain the stability of government.”
In 2017, the lieutenant-governor’s decision didn’t go Clark’s way. The Liberals had won 43 seats, the NDP 41, the Greens three — similar to the current numbers.
After weeks of closed-door negotiations as both Liberals and NDP looked to the Greens to prop up their parties, Horgan struck a confidence and supply deal with the Green party, then lead led by Andrew Weaver.
When Clark appealed to Guichon for a new election, the lieutenant-governor was thrust in the rare position of having to decide who would be premier.
Such a decision, said Smith, is not about politics or favouritism. It’s about the constitution, and the Crown’s duty to maintain the stability of government.
Today, 47 ridings are required to form a majority in the 93-seat legislature, and if the Juan de Fuca-Malahat and Surrey City Centre recounts flip the ridings to the Conservatives, it would give John Rustad a slim majority.
David Eby could still be in trouble if he holds one or both of those ridings.
“If Eby has to lose one of his own members to the speaker’s chair, or gets defeated in a confidence motion and asks for another election, it would be the Lt.-Gov. Janet Austin’s duty to first see if there is another alternative,” said Smith.
“John Rustad would be entitled to say to the lieutenant-governor, I’m in negotiations with the Green party and she could delay her decision,” said Smith. “You can’t count anyone out, it’ll be a battle of persuasion.”
“It’s a cliffhanger,” said Young.
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