Social licence is starting to feel like an urban legend. Or material for a one-liner, as in how social justice bears the same relationship to justice that social worker bears to worker. But as usual, behind apparent nonsense there lurks a bad idea, old and stale while pretending to be young and fresh.
The most obvious place to examine the concept today is oil pipelines, where social licence is most prominently visible, or invisible, as a thing you need along with a legal licence before you can build one. But it is increasingly evident that there is no application process, no office at which to inquire, and no social licence that is ever issued.
So if social licence isn’t a “thing” one can actually obtain through a clear and consistent process, it would seem incompatible with the rule of law. But how could so many people have been persuaded that it was legitimate if it is not? Wherein lurks its appeal? It is dangerous to dismiss a notion until we have understood why someone else might accept it for reasons beyond malice, stupidity or convenience.
Turn, therefore, to a recent story out of British Columbia about outdoor guides launching a class-action lawsuit against the provincial government over its December 2017 ban on hunting grizzly bears. One might favour such hunting or regard it with abhorrence. Regardless, the question of whether to permit it and under what conditions cannot be settled on the classical liberal “do no harm” principle that governs, or should govern, so many of our decisions.
Normally, it is the job of the state to forbid, and punish, only acts of force or fraud against our fellows. But there are situations where it must go further and act to prevent a so-called “tragedy of the commons”, a problem whose modern analysis has its origins in ecology, specifically Garrett Hardin’s 1968 paper of the same name. When resources belong to everybody or, the same thing in practice, nobody, some sort of collective action is needed to stop a rush to plunder them before someone else does, in which those who exercise responsible restraint are simply chumps who finish last.
On that basis it is in principle possible the government should restrict a hunt because too many bears are being killed and, as a result, ecosystems are suffering – and so are citizens who enjoy nature directly or benefit from it indirectly. I do not say it is so; I am just trying to think the thing through here. There is in principle a place for government to limit hunting, or even limit it to none at all in a given place, for a given species. Indeed, in Canada hunting is heavily regulated, and most hunters support such regulation, for without it, there’d soon be scarcely any game to hunt.
As it happens, B.C.’s total ban on grizzly hunting is not a total ban. First Nations are allowed to hunt them for food, social or ceremonial purposes and in accordance with treaty rights. At the risk of sounding cynical, my guess is that this provision imposes essentially no limits on aboriginal hunters, because one’s career prospects in the B.C. public service are probably not enhanced by asking pointed questions about how much grizzly bear was habitually eaten or what ritual involves bringing one down, especially with a high-powered rifle. But I digress.
The point is, one might limit or ban hunting and be right to do so. But in a free society one should do it according to the rule of law. One should determine whether there is in fact a “tragedy of the commons” in progress in which hunters rush to kill too many bears, threatening sustainability, harming other hunters, or reducing the enjoyment of other users of the wilderness – and not only those whose preferred hike involves an invigorating race with a grizzly or at any rate their companions; eliminating top predators can have nasty consequences on down the line. But no such process was followed here, apparently.
At any rate, the provincial government did not justify its grizzly hunting ban on the premise that there were too few bears. (The hunt, incidentally, averaged 200-350 grizzlies per year in the 20 years preceding the ban, and as recently as 2013 the province reported that the overall population was being “sustainably managed” at 15,000 or so.) Nor did it promise to lift the ban if the population explodes and too many backcountry hikers are reduced to little bells in grizzly scat. (Which is what Inuit are demanding in Nunavut, there now being a rather menacing number of protected polar bears.) Rather, when the ban was imposed, the minister of Forests, Lands, Natural Resource Operations and Rural Development (yes, that’s one job and one person), Doug Donaldson, declared that it was “no longer socially acceptable to the vast majority of British Columbians to hunt grizzly bears.”
“Socially acceptable?” What can this justification mean? Especially in a world where virtually nothing is taboo, particularly if it involves non-Euclidean sexuality and we applaud those who transgress against established custom, how could the government ban something because people who didn’t want to do it said nobody else should be allowed to, either? To repeat, there is no claim that the people hunting grizzlies are stealing other people’s grizzlies or exposing them to risk of harm, from being shot by mistake to losing the capacity to watch a grizzly eat a salmon to being forced to watch someone else hunt. Apart from pressure on some local bear populations, which can be addressed by tweaking the number and location of hunting tags issued, there are few front-and-centre claims of any harm at all. So the main reason for the ban is that the anti-hunting crowd simply don’t want someone else doing something they don’t like. As Donaldson also said, “We have listened to what British Columbians have to say on this issue and it is abundantly clear that the grizzly hunt is not in line with their values.”
It’s a strangely Puritan justification for these liberated times. But never mind the theology, at least for now. Instead let’s ponder the political economy. As a Constitutional matter, if the government can ban a grizzly hunt on the basis that a lot of people find it yucky, what can it not ban? In principle, almost nothing, from gay sex to smoking in a private club. And indeed, the latter is banned in a great many places, along with a lot of other restrictions on smoking or even vaping that are plainly driven by a conviction that people are too stupid to know what’s good for them or too weak to resist sinful pleasures and that they have no inherent human right to self-harm, physical or moral.
Now we’re getting somewhere. Not somewhere we want to be, I think, but somewhere fairly clear. Social licence is, in essence, the tyranny of the majority. The constitutional theory, whatever you might think is in our ever-evolving Charter of Rights, is that the state can ban anything an apparent majority of people don’t like. In fact these bans are generally driven by vocal minorities. But their pressure succeeds because they manage to put themselves forward as the voice of the majority.
In that regard there is, again, nothing new here. Tyranny of the majority in theory has almost always meant in practice tyranny of the most vocal, engaged and threatening minority. As, for instance, in the French Revolution, whose echoes continue to this day in the way Paris mobs frequently dictate policy. And, as then federal Conservative finance minister Joe Oliver complained three years ago about pipelines, that “social licence” was being used to allow “a small minority” to block a duly authorized project that was in the national interest.
There’s no doubt that proponents of the “social licence” concept will exaggerate the number who oppose something or privilege certain groups, especially aboriginal. And as we’ve seen with opposition to TransCanada’s Coastal GasLink natural gas pipeline through northern B.C. to the planned LNG facility at Kitimat, they will sometimes do both, claiming a small group of hereditary chiefs speak for the majority and an overwhelming consensus of elected officials do not.
It’s not surprising. There is no practical, orderly, non-violent way to measure, channel and implement the popular will on the myriad ongoing questions of daily governance even if one can hold the occasional referendum on a major and clearly defined issue. But even if there were, in a Lockean framework it would be illegitimate to deny consenting adults the right to a mutually satisfactory economic transaction unless, again, it caused measurable harm to non-consenting third parties.
For over a thousand years in the English-speaking world, “freedom” and “liberty” meant far more than being permitted only to do what the majority allows itself and everyone else to do. Social licence discards this notion and, from there, it is generally a short step to pretending a minority is a majority.
Of course, in some sense every legitimate regime depends on the will of the majority. When people ask whether we would really entrust human rights to a vote, the correct if not always obvious response is: how else would you do it? But there is a vast distinction between grounding a legal order in the consent of the governed and capitulating to the tyranny of the majority.
For the rule of law to exist, for rights to be secured and liberty to be protected, here in Canada, in the United States, and in Britain when Magna Carta roamed the Earth, it must be the will of the majority to restrain itself. The majority must deliberately create an elaborate set of procedures to safeguard the rights of consenting adults that can only be altered by elaborate methods sufficiently time-consuming as to create ample opportunity for sober second thought. Otherwise, if the fundamental rules change every time the popular mood shifts, nobody is secure in their occupation, their property, their private life or even their person.
A constitution has been described as a chastity belt to which the public holds the key. But a better image, famous in American jurisprudence, is of an appeal from the people drunk to the people sober. Even if we find pipelines or grizzly bear hunts displeasing, we do not rush out and jail those who lay pipe to transport oil or shoot a magnificent creature in order to own its bloody carcass. At least, we didn’t use to.
This position we find ourselves in today, where anything and everything can be banned if it fails to secure “social licence”, is a very great distance from the classical liberal/libertarian principle of “no harm no foul” that we still imagine is a foundational legal principle. Instead we’re verging on mob rule – except of a very Canadian, orderly sort with hardly any extra-legal violence (although we certainly see outbursts of it at pipeline blockades and campus deplatforming events, in a worrying trend toward lawlessness).
There is widespread mendacity in this new protocol. But such is to be expected, and not because of anything special about social licence. Politicians just lie a lot. Quebec Premier Francois Legault, for instance, dismissed proposals to revive the Energy East pipeline because, “There is no social acceptability for a pipeline that would pass through Quebec territory.” It’s obvious nonsense, and not only because Quebec has an existing pipeline network totalling some 12,000 kilometres to which nobody objects or protests. Quebeckers increasingly drive big vehicles, especially SUVs and trucks, which require considerable quantities of gasoline made from what Legault sneered at as “dirty energy” from Alberta, as if oil imported from undemocratic regimes was less sticky and smelly, and Quebeckers buy the stuff without demure. But politicians taking a widely accepted principle and then lying about it is nothing new.
The point here is that the principle must be there to be lied about. In his own tongue-tied way, Prime Minister Justin Trudeau endorsed the idea as well, telling CTV’s Evan Solomon in a year-end interview that “there is no support for a pipeline through Quebec”. Of course there is. Not even Trudeau can suppose that literally nobody in Quebec wants one built. What he meant was that there is not majority support and so a duly elected government must bow to the mob.
The core concept behind “social licence” thinking is that, whether in fact they do or not, if indeed a majority of Quebecers thought oil was yucky, it would be perfectly legal and morally right to forbid someone who did not think so from buying it from someone else who also did not. We are no longer dealing with representative government, trade-offs and delegated authority here, creating a system of laws in which whatever is consensual and does not generate significant “negative externalities” is allowed. Instead, we’re reactivated the odious concept of the “general will” first articulated by early 19th century French philosopher Jean-Jacques Rousseau, though shaved, dressed nicely and with the blood washed off. “General will” and “tyranny of the majority” are functionally interchangeable terms, right through to their amenability to being lied about, though the former sure sounds better in the abstract.
One important argument against tyranny of the majority is that it drags everyone into the political process, abolishing the protective fence that freedom of contract once erected around your private affairs. Recently presumptive next Alberta Premier Jason Kenney, offering “no apology if this sounds bellicose”, said if he wins the next provincial election this spring, “I will call in the CEOs of major oil companies and tell them they’ve got to get in this game.” He added, “I’ve got a new definition of ‘social licence.’ If they want to develop our resources, they’d darn well better start fighting for the industry. I want to see some energy companies take the fight to these (anti-oil) groups.”
It is difficult to recall the last time Kenney did apologize for sounding bellicose rather than, say, principled. But as head of a majority government, would he actually deny companies licences to build pipelines or refineries, or transport hydrocarbons, if they do not get into the partisan fray on the same side as his United Conservative Party? One hopes not, and that he is only urging companies to stop funding anti-oil groups and start taking their own side in a fight. But with language like “if they want to develop our resources” he sounds very much like those including Trudeau who now say it is no longer enough to obey the law and not harm others. One must have permission to carry out an activity from a broad swath of the public plus the government or one cannot do it.
The tyranny of the majority is not a new thing, in theory or in practice. Indeed, the Fathers of Confederation were very worried about it. As Sir John A. Macdonald famously said in urging Confederation on his colleagues in the Parliament of the Province of Canada in 1865: “In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot, or of an unbridled democracy, that the rights of minorities are regarded.” Oh my. The tyranny of an unbridled democracy. I bet they don’t talk much about the tyranny of the majority in universities these days.
Social licences may be so hard to get that you don’t know anyone who has one. But if you did, you’d find the fine print saying, “You can’t do something otherwise lawful and even constitutionally protected, because a bunch of people don’t like it. Yours sincerely, Majority Rex.” Or possibly that bloody icon of French Revolutionary terror, Maximilien Robespierre.
John Robson is a National Post columnist, documentary filmmaker, commentator-at-large with 580 CFRA in Ottawa and contributing editor with the Dorchester Review.