The Confederation Bargain and its Interpretation

1. The Confederation Bargain and its Interpretation Douglas Brown St Francis Xavier University September 2012

2. The Confederation Bargain and its Interpretation • Nature of Constitutional politics • Constitutional History • Why “Confederation”? • Who did the Bargaining? • The Deal at Quebec,1864 • Debate and enactment • Conflicting Interpretations

3. Constitutional Politics at the time of Confederation • Democracy in British North America much more limited than today. • Crown, not popular sovereignty • Peter Russell’s thesis on Locke vs. Burke: why Confederation settlement not a “Lockean moment”, but a Burkean organic evolution.

4. Constitutional History before Confederation • Royal Proclamation, 1763 – the act of acquiring Canada / separation of Quebec from Indian lands / basis of aboriginal treaties and relations with Crown • Quebec Act, 1774 – guarantee to French-Canadians of religious, language and civil law rights • Constitution Act, 1791 – creates Upper and Lower Canada; guarantees representative democracy

5. Constitutional History…2 • 1837 rebellions in Upper and Lower Canada (UC and LC) • Constitution Act,1840 – Union of UC and LC under equal representation • Responsible Government – 1848 Howe in Nova Scotia, Baldwin-La Fontaine in Canada

6. Why Confederation ? • “Realist” Reasons • Better Defence • More Inter-colonial trade (“economic union”) • Ending political stalemate between UC & LC • “Idealist” Reasons • French Canadian “nation” requires autonomy • Maritime provinces not willing to be dominated by Canadians • English-speaking settlers in Ontario (UC) want to be free of the unitary democracy of United Province of Canada (UC/LC)

7. Imperial and Defense Considerations • Victorious Union forces in USA • Fenian Raids • Exposure of the west • End of British Mercantilism • Imperial federalism

8. Economic Considerations • Weak and indebted Government of the Province of Canada • Strong fiscal position of Maritimes (esp. Nova Scotia) • The end of the Reciprocity Treaty with U.S., 1866 • Railway dreams, western settlement • “Laurentian Thesis”: arguing that east-west trade is as natural as north-south

9. Political Stalemate in United Province of Canada • French Canadians not assimilated • Canada West population explosion • Double Majorities and Coalition Governments • “Rep-by-pop” movement • Increasing tensions, instability, enmity

10. Steps to Getting to a Deal • Macdonald – Cartier coalition • George Brown and the True Grits • The “Great Coalition” • Charlottetown, July 1864 • Quebec City, October 1864 • London conference, late 1866

11. Who Did the Dealing? • Elected politicians from Government and Opposition • 23 at Charlottetown; 33 at Quebec • British Government (Governors, Colonial Secretary) • Outside the Tent: • Quebec: Dorion and “les Rouges” • Nova Scotia: Howe and his reform party • First Nations, Métis, Inuit • British Columbia

12. The Deal at Quebec City…Power-sharing • Distribution of Powers: • General versus particular and local • Two long lists of exclusive jurisdictions • Central government holds “reserve” of power • Hierarchy of Power-sharing: • Federal appointment of Lt.-Governors • Reservation and disallowance • Most important fiscal powers in central hands • Federally appointed judiciary

13. Federal Peace, Order and Good Government Trade and Commerce Control over Indians and their lands, the Northwest Transportation and communications Provincial Property and Civil Rights Matters of a Local and Private Nature Ownership & regulation of natural resources Education, health and social services Deal at Quebec City --Powers

14. The Deal at Quebec City…2 • Senate: • appointed, not elected, despite what some delegates wanted • “sectional” equality: Ontario (24), Quebec (24) Nova Scotia (10) New Brunswick (10) [PEI (4)]

15. The Deal at Quebec City…3 • Minority Rights: • decentralized, not universal • Minority language rights in legislature and courts: Quebec, federal • Minority denominational rights in education: Quebec, Ontario • Amending the Constitution: left to Imperial Parliament

16. The Deal at Quebec City …4 • Room to Expand… • Anticipating Newfoundland, PEI and British Columbia • Expectations re Rupert’s Land and Northwest Territory • Government of Red River settlement • Treaties with Indians • Federal lands and resources

17. Lengthy debate in Canadian legislature, but no election. Vote of 99-31 in United Province legislature (only 27-21 among French-Canadian members) PEI and Newfoundland back off New Brunswick: 2 elections – confederates lose first 1865, win second 1866 Nova Scotia: Tupper too scared to take a vote Debate and enactment

18. Debate and Enactment…2 • British Parliament: desultory debate • Anti-Confederates win 1867 federal and provincial elections in Nova Scotia • Howe negotiates a slightly better deal, joins Macdonald’s cabinet, 1868

19. Conflicting Interpretations • Its only a “Quasi-federal” union – a hierarchy of government (Macdonald) • There’s “federal” principles from the beginning (French Canada, Maritimes) • Its an inter-provincial pact, and the provinces can dictate changes (Ontario and others) • It’s a Two-nations pact (French Canadians) No one interpretation has been able to prevail, so there is creative ambiguity and unresolved tensions in the Constitution, and in the founding of the Federation.