Constitutional politics in multi-national Canada (1).

• Jurisdiction: Australia
• Author: Russell, Peter H.
• Date: 22 December 1999

It is Canada's fate to have become a pioneer in managing a very challenging type of constitutional politics. This is the constitutional politics of a democratic political community among whose people there are very different senses of national allegiance and identity. In such a society the major question underlying constitutional politics is always: can these people or peoples constitute a political community?

Canada's engagement in this kind of constitutional politics has come about not through rational choice or abstract philosophy. We have stumbled into this situation without fully realizing what we were doing. Even now many Canadians--perhaps even a majority, especially in 'English Canada' and among new immigrants--would not accept my characterization of Canada as a multi-national society. They yearn for a Canada with a single sense of national identity. In effect, they yearn for a different Canada than the one in which they find themselves. Indeed, their very sense of unease about our disunity is an important element in Canada's constitutional restlessness.

In large measure, we Canadians stumbled into the situation we find ourselves in through incomplete conquests. In the eighteenth century, the British did not complete their conquest of New France by expelling the Canadiens as they had earlier done with the Acadians. Nor did they carry through with a program of forced assimilation of French Catholics into their English/Protestant culture. Within fifteen years of the conquest they recognized the conquered people's religion and civil law. The British did this not out of any profound philosophical commitment to political or cultural pluralism. They did it mainly as a strategy for securing the loyalty of the Canadiens at a time when the Empire was threatened with rebellion in the American colonies to the south. Nonetheless it was a decisive move towards a deeply pluralist Canada and Empire.

The absence of any commitment to cultural pluralism was evident again in the nineteenth century when British constitutionalists responded to rebellions in their two Canadian provinces. Lord Durham's plan was to assimilate the French Canadians into the English culture which he believed would soon dominate a reunited Canada. But the Quebecois defeated this effort by surviving with their own sense of identity and forcing a federal constitutional solution with a province in which they as a majority would have enough political power to secure the essential elements of their distinct society.

The other incomplete conquest concerns the Indigenous peoples. In the seventeenth and eighteenth centuries the British (like the French) for military and commercial reasons entered into treatylike agreements with Aboriginal nations. The Royal Proclamation of 1763 which set out British policy for governing the lands ceded by France at the end of the Seven Years War recognized the Indian nations' possession of territory outside the settled British colonies and declared that settlement in this territory could take place only on lands that were sold or ceded by the Indians to the Crown. The Royal Proclamation, though often ignored in the nineteenth and twentieth centuries, survives as part of Canada's constitutional law. In 1982 its primacy was acknowledged in Section 25 of the new Canadian Charter of Rights and Freedoms.

In Canada, as in the United States, once the settlers clearly had the upper hand militarily and demographically, treaty-like relations with Indigenous peoples gave way to colonial domination. Nevertheless, there is an important difference between the two countries. In Canada right up into the twentieth century, treaties were the principal means for acquiring new lands from the Indians for settlement and economic development in much of Ontario, the western prairies, north-eastern British Columbia and part of the Northwest Territories. While the practical impact of these treaties was massive dispossession, they did entail recognition by the in-coming settler state of the Aboriginal signatories' nationhood and their collective ownership of traditional lands. The United States also made hundreds of treaties with Indian nations and through Chief Justice John Marshall's jurisprudence accorded Indian peoples the status of 'domestic, dependent nations'. However, soon after the Civil War, Congress abolished all future treaty making. The American west was won from the...