N.B.-style uncertainty avoidable with some planning

A week after New Brunswickers voted in a provincial election that proved to be a surprising cliffhanger, confusion remains over who will lead the province. But it doesn’t have to be this way, according to advocates and experts.

The problem, says Duff Conacher of Democracy Watch, is that the rules that purport to govern what happens after an inconclusive election are unwritten conventions that don’t necessarily apply to New Brunswick.

“If you want to have a fair and democratic legislature and a fair election ... you need these rules written down,” says Conacher, an adjunct law professor at the University of Ottawa.

On election night, Premier Brian Gallant’s incumbent Liberals won 21 seats — one fewer than the Progressive Conservatives under Blaine Higgs. With 49 seats in the legislature, and two smaller parties with three seats each, neither major party has enough seats to form a majority.

Still, Gallant has insisted that under an unwritten constitutional convention, incumbent premiers are always given the first opportunity to form a government by testing the confidence of elected members — even if the incumbent party has fewer seats than their rivals.

Higgs has cited another convention, which states that the party with the most seats should be called on by the lieutenantgovernor to form a government as soon as possible.

Having faced similar challenges in the past, the parliaments in the United Kingdom, Australia and New Zealand have all spelled out their post-election conventions in so-called cabinet manuals.

“They haven’t had any problems with their minority government parliaments since,” says Conacher. “Why? Because everyone knows the rules.”