The Confederation Bargain and its Interpretation

1
The Confederation Bargain and its Interpretation

• Douglas Brown
• St Francis Xavier University
• September 2009

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 Russells 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 History2

• 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

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The Deal at Quebec CityPower-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
Deal at Quebec City --Powers

• 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

14
The Deal at Quebec City2

• 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 City3

• 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 Ruperts Land and Northwest
  Territory
• Government of Red River settlement
• Treaties with Indians
• Federal lands and resources

17
Debate and enactment

• 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

18
Debate and Enactment2

• British Parliament desultory debate
• Anti-Confederates win 1867 federal and provincial
  elections in Nova Scotia
• Howe negotiates a slightly better deal, joins
  Macdonalds cabinet, 1868

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Conflicting Interpretations

• Its only a Quasi-federal union a hierarchy of
  government (Macdonald)
• Theres federal principles from the beginning
  (French Canada, Maritimes)
• Its an inter-provincial pact, and the provinces
  can dictate changes (Ontario and others)
• Its 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.