The Confederation Bargain and its Interpretation Douglas Brown St Francis Xavier University September 2009

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

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.

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

Constitutional History… 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

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)

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

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

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

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

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

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

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

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

The Deal at Quebec City…3 Minority Rights: 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 Amending the Constitution: left to Imperial Parliament

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

Debate and enactment Lengthy debate in Canadian legislature, but no election. Vote of in United Province legislature (only 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…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

Conflicting Interpretations 1.Its only a “Quasi-federal” union – a hierarchy of government (Macdonald) 2.There’s “federal” principles from the beginning (French Canada, Maritimes) 3.Its an inter-provincial pact, and the provinces can dictate changes (Ontario and others) 4.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. 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.