UBC POLI 101 Canadian Politics - Faculty of Artsfaculty.arts.ubc.ca/fcutler/teaching/POLI101/lectures/UBC POLI 101... · UBC POLI 101 Canadian Politics Mega(?)-Constitutional Politics:

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POLI 101, Winter 2001, 2nd Term Dr. Fred Cutler www.politics.ubc.ca/fcutler/teaching/POLI101

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UBC POLI 101Canadian Politics

Mega(?)-Constitutional Politics: In Search of UnityQuebec Nationalism, Aboriginal Self-Determination, Regionalism

All the usual Canadian preoccupations!

http://www.politics.ubc.ca/fcutler/teaching/POLI101


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Background to Mega-Constitutional Politics• Nationalism: Links membership in a cultural or ethnic

community to the legitimate existence, recognition, and independence of a political community

• Can Canadians “consent to form a single people”?• Canadian Nationalism? Weak?

– British / Imperial Connection – English Canada was British!– Development of Provincial identities – dual fed & prov identities– Pull of / Push against the USA – defining ourseves in opposition to US

• Competing Identities:– Quebec Nationalism– Aboriginal Nations– Provincial Communities / Regionalism


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Context: Repatriation of the Constitution• Bringing the constitution back to Canada began a process of

mega-constitutional politics– re-fashioning, re-imagination of the political community

• So the question is defining the nation and putting that into practice through the constitution: Russell asks: “Can Canadians become a sovereign people”

• Canada begins to tackle this question as the Quiet Revolution develops in Quebec (around 1960)

• Initially involves provinces – especially Quebec • But expands in the late 1970s to include

– aboriginal people, – women’s groups, – ethnic/multicultural associations:

• Everyone wants a say in re-defining the political communityAs they should!!!!!!!!!!!!!!!!!!!!!!

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Visions of Canada

Grounding ‘visions’ of the community provide stories that justify and legitimize different constitutional outcomes:

1. Two Nations – French and English (non-territorial)– Quebec and Rest of Canada

2. Equal Provinces (confederation)– Push for intrastate federalism – Senate Reform– And restriction of federal spending power– Some opposition to Charter because decisions apply nationally

3. Three Nations– Aboriginal peoples as founding nations– Requires a “third order of government”

4. Multiculturalist– Founding contributions of many ethno-cultural groups, none superior

5. Individualist – Community of Equal Individuals– All equal members of the political community – no ‘group rights’


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Society and Nationalism in Quebec

• French (Catholic) society in Quebec is 400+ years old• Politics a compromise between the Catholic Church, English

Economic Interests, and a minimal Quebec State… lasted until the 1950s!

• Lots of Grievances:– Riel Rebellion(s) – symbol of Protestant-Catholic conflict – Manitoba Schools Question – provincial rights vs. guarantees of

minority language education– Conscription Crises – Quebecois didn’t want to fight Britain’s wars– Federal government and civil service English dominated– Federal incursions into provincial jurisdiction

• Most Québecois see their community as a ‘people’, distinct from France and English Canada– Desire for la survivance of a distinct, french-speaking community– So… What is the best means to preserve French language & culture?– So it’s a small step to a ‘nation’, with a right of self-determination


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The Quiet Revolution and the Two Nations Vision

• Quebec had fought the federal government since the election of Maurice Duplessis’ Union Nationale in 1936– But this was to resist involvement of the state in general

• The Quiet Revolution meant…– Acceptance of government programs, coupled with a desire for made-in-Quebec

policies, led to Quebec opting out of federal programs (CPP, univ. grants, etc.) that other provinces accepted

– Professionalization of Quebec civil service, convincing many that they had the ability to operate the full machinery of government

• Constitutional result was a push for changes to the constitution giving Quebec expanded powers (not “power”!)

Partly Practical, Partly About National Recognition• 1st Constitutional try (1964): Failure of Fulton-Favreau constitutional

amending formula because it would make changes more difficult– Quebec veto to centralization; but ROC veto to decentralization– No movement on real ASYMMETRY for Quebec

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October Crisis and the rise of the Parti Québecois

• Seemingly no interest in Rest of Canada (ROC) for giving recognition through asymmetrical federalism– Different powers for different units of the federation (provinces)

• 1960s… Clashes over language in schools where Quebecois and recent European immigrants send their children

• October Crisis (1970):– Emergence of radical Front de Libération du Québec (FLQ)– Kidnapping and murder of Cabinet MinisterQuebec asks Federal

government to invoke War Measures Act– In retrospect, it was an over-reaction. Bad info on size of threat.

• Sentiment channeled into Parti Québecois– Inherits nationalism of Union Nationale

• PQ victory in 1976 – promise of referendum– PQ in gov’t: Bill 101 – Charte de la langue francaise


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Federal (Liberal Party) Responses & the 1980 Referendum

• Pearson (1960s)– Bilingualism and Biculturalism Commission– Three Wise Men (incl. Trudeau) brought into Cabinet

• Trudeau (1970s)– Official Languages Act– Victoria Charter: 2nd try fails – again Quebec pulls out

• Not enough to stop the rise of the PQ or a referendumThe Government of Quebec has made public its proposal to negotiate a new arrangement with the rest of Canada, based on the equality of nations; this arrangement would enable Quebec to acquire the exclusive power to make its laws, administer its taxes and establish relations abroad-in other words, sovereignty-and at the same time to maintain with Canada an economic association including a common currency; no change in the political status resulting from these negotiations will be effected without approval by the people through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?

• But perhaps enough to prevent a referendum victory in 1980 (60/40)• Trudeau promises renewal of the federal system


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What does Quebec Want? (Is it reasonable?)• Minimum ‘Needs’ (e.g. Bourassa’s Liberals in 1986)

1. Veto over Constitutional changes affecting Quebec2. Reduction of federal involvement in provincial jurisdictions3. Recognition in Constitution/Charter that Quebec is a ‘distinct society’4. Participation in nomination of Supreme Court justices (min. 3)5. power on immigration, labour training, culture (grants)6. Constitutional guarantee of compensation for opting out of federal

shared-cost programs and mounting a provincial program instead• Maximum ‘Wants’ (Allaire & Bélanger-Campeau reports)

– Much bigger list of powers: unemployment insurance, taxation, environment, r & d, culture…

– But… economic union, shared currency, shared defence, etc.– And, participation in the very limited national government

• Reasonable? Depends on the likely effects! – e.g. ‘distinct society’ might permit Quebec to protect and promote

the language, but would that create unreasonable restrictions onrights? Would it mean the Charter applies unequally depending on where one lives?

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Regionalist Challenges to the Canadian Community

• Politics and Geography are strongly linked– People live in a place and are attached to it and its people– Electoral representation based on territory – especially in Canada– Politics affects economies, which are by their nature regional

• Moral questions about communities versus equal individuals• In Canada, this question is as prominent as anywhere

– Early Canada was so big and communites so isolated that they developed distinctive cultures

– Presence of Quebec has always meant a voice of place/community– Now, most people see Canada as regionally diverse– Federal system encourages, even creates, dual loyalties


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“The West Wants In”

• A long history of marginalization and grievances?– Started as a Colony of Canada – ripe for exploitation– Tarriff policies hurt farmers, help central Canadian industry– Rates for grain transportation set by a monopoly to benefit industry– Liberal (1981) National Energy Policy ‘discriminates’ against Alberta– CF-18 contract to Montreal instead of Winnipeg

• Political Opposition– Progressive Party, United Farmers of Alberta, CCF-NDP, Reform– Provincial governments particularly assertive– 1963-1984 & 1993-present: very little government representation– Push for Senate reform: better representation

• There are electoral advantages to Ottawa-bashing – it can distract from provincial gov’t shortcomings. Is this the cause of all the conflict?

• Without federalism, would non-central interests be ignored?


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Constitutional Repatriation 1

• Trudeau and his plan:– Goal: to foster a political nationalism based on rights and freedoms

(common values) – thus defusing ethnic and regional nationalisms• Especially national bilingualism, defusing a linguistic ‘homeland’ mentality

– No reform of interstate federalism - that might reinforce regionalism– So… Charter of Rights and Freedoms (individualist vision)– And… recognition of gender equality, ‘existing’ aboriginal rights, and

the multicultural heritage of Canada• Idea of unilateral amendment: take it to Westminster

– Patriation case (1981): legal, but against spirit of constitution…So… another round of negotiation

• How hard is it to get 10 premiers, to agree on anything?– whose reputations are built on independence from Ottawa– who come from different parties– who have different levels of popularity

• And if they do, who is making the Constitution? The people?

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Repatriation 2

• Context: Quebec humbled by referendum loss– Think of this as the electorate defining the negotiating position:

no longer “a knife to the throat of English Canada”• Quebec had formed an alliance with other provinces except NB and Ont.

But this broke when Trudeau got Lévesque to agree to a referendum• So it finally worked, but without Quebec

– Charter – but with Notwithstanding Clause• tension of federalism versus parliamentary sovereignty• popularity of Charter and illegitimacy of Notwithstanding made for a

victory for the federalist – community of individuals – view – Amending formula… 7 provinces at least 50% of population (7/50)

• this is 7 PROVINICAL GOVERNMENTS – NOT REFERENDUMS– Opting out, but no financial compensation

• So: is the Constitution legitimate if it was rejected by such an important component of the political community?– many, both inside and outside Quebec, don’t think so!


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Repatriation, The Charter, and (New) Group Politics

• Did the Charter bring all kinds of groups to the political table in Canada? Yes and no.– yes: it allows another point of access by groups shut out of parties– no: groups were already active in Mega-Constiutional politics

• Women’s groups forced a section onto the Charter• Multicultural groups got an interpretive clause• Aboriginal people had some, “existing and treaty rights recognized and

affirmed”, and got a promise of future federal-provincial conferences devoted to aboriginal issues (which, in the end, produced little)

• Citizens have another point of access, but it takes money, which comes from organized inerest groups

• Challenges to the validity of laws are nearly always based on the Charter, funded by a group, and other groups are allowed by the Courts to participate as intervenors. – While governments are often the key players on one side of the case, many

groups present their points of view as near equals of government in the eyes of the Courts.


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Post- 1982 Constitutional Development - Meech Lake

• Mulroney PC gov’t elected with a promise to “bring Quebec into the constitutional family with honour and dignity”

• Meech Lake Accord agreed to in 1987– backroom deal: a governments’ constitution (not a citizens’ const.)– Two-Nations vision vs. Equal Provinces vision– “distinct society” for Quebec… but– opting out with compensation, expanded amendment veto for ALL– A PROVINCIALIST COUNTER-STRIKE AGAINST THE CHARTER

• Failure of the Accord, June 1990– “Charter Groups” opposed to it: Feminist and Aboriginal Groups– Institutional ‘veto points’: Prov. gov’ts changed, legislative consent was

required, procedural rules required time, and time ran out• Failure of Meech because of lack of popular involvement?

– condition for future was a citizens’ constitution– so: Citizens’ Forum traversed the country in 1991

• In Quebec it was interpreted as rejection– condition for future was Quebec-Canada, nation-to-nation negotiation– so: Reports emphasize what Quebec wants, ignoring Rest of Canada– Quebec issues an ultimatum: referendum on sovereignty in 1992

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Post- 1982 Constitutional Development –Charlottetown Accord

• Hmmmm. Wait a minute…. these don’t seem to match up! • Federal government releases proposals that lead to the

Charlottetown Accord, after Quebec joins the negotiations– Canada clause, laying out the fundamental ‘characteristics’ of Canada– Quebec to preserve and promote its Distinct Society “within Canada”– BUT… “equality of the provinces”! – Bigger House of Commons (Quebec 25% guarantee)– Smaller Senate, but equal representation of provinces– the usual decentralization… opting out, restriction of fed. jurisdiction– more unanimity required in the amending formula– “inherent right of self-government” for aboriginal people (3rd order)

• FAILED Referendum (September 1992) - separate Quebec & ROC votes– Something for everyone to hate– Better informed swallowed their distaste and voted for it– Only passed in Ontario, NB, Newfoundland, PEI (overall 46% yes)


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1995 Quebec Referendum and the Response

• Quebec’s response – after the election of the PQ – was to hold referendum on sovereignty

• A narrow loss 50.5% to 49.5%! 60% of francophones YES• Federal Government:

– Plan A: Conciliatory. Calgary Declaration.– Plan B: Tough. Supreme Court Reference

• SC says all parties have an obligation to negotiate in the event of a YES

• Since then, polls show sovereignty less popular (40%±)


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Models of Co-Existence – Solutions?

Correspond to Visions of the Canadian Political Community• Asymmetrical Federalism / Sovereignty Association• Quebec Independence• Aboriginal “Third Order of Government”• Equality of the Provinces• The Status Quo!

Are any of these real solutions, or are they just restatements of the ‘problem’?

• Timing makes a difference– political actors / leaders– external factors: economy, immigration, culture, globalization?– Luck of timing through veto points

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What’s at stake? Winners and Losers?

Winners• The individual – Charter gives more powers against gov’t• Quebec federalists / anglophones – status quo better than

independenceLosers• Quebec electorate? One-dimensional politics• Quebec Nationalists? Always frustrated• The national ‘community’ – bonds are weaker• Aboriginal peoples – never at top of the agenda

Is compromise possible? Under what conditions? Under which institutions (referendum, first ministers, constituent assembly, well-designed asymmetry)


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UBC POLI 101Canadian Politics

Aboriginal – Canadian Relations

http://www.politics.ubc.ca/fcutler/teaching/POLI101


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Aboriginal Politics in Canada - Introduction

• Three Groups– Indians: 50+ Nations/Cultures/Language; 500 ‘bands’– Métis: descended from intermarriage of Indians and Fur Traders– Inuit: recent arrivals (1500 years) to treeless North

• Major Issues– Lack of agreement to ‘join Canada’; unfair terms of treaties, etc.– History of injustice/abuse/assimilation– Canada does not accommodate their desire to preserve their

distinctiveness through self-government

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History

• Pre-Contact– Indian peoples gradually populate Americas from 40,000 years ago– Canada home to about 60 groups

• most are semi-nomadic, but within defined territory• some are agricultural (e.g. Iriquois)

• Contact with Europeans– autonomous – economic traders and military allies (for British & French)– 1763 Royal Proclamation fomalizes Nation-to-Nation– Continued cooperation until settlement increases (1830)– “…came to be regarded as impediments to productive development”

(RCAP, 1996, Vol. 1, 138)– Assimilationist goals: e.g. 1857 ‘enfranchisement’


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Post-Confederation History

• Treaty-Making– “to obtain rights to as much land as possible for as little as possible”– cheaper than clearing the land by force (as in USA)– many Indian peoples also wanted to enter treaties because

traditional livelihoods/lands were disappearing– money, livestock, seed, materials in exchange for land– BUT THEY WERE UNDERSTOOD DIFFERENTLY BY THE TWO

PARTIES!• Indian Act (1876)

– under Federal gov’t power over “Indians and Lands Reserved for Indians” s.91(24)

– established paternalist relationship– Indian Agents in charge of each band had absolute power


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Indian Act Provisions: The power of the State & its Law

• Interfered with traditional government– mandated election of leaders– decisions by band councils could be disallowed

• Canadian government determined ‘status’– e.g. Women lost ‘status’ if married non-Indian man– men lost status if they elected ‘enfranchisement’

• Restriction of economic activity (e.g. farming)• Outlawed cultural practices• Limited legal activity by bands• Authorized and encouraged residential schools• BUT ALL THIS WAS RESISTED

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A New (?) Relationship

• Aboriginal nations develop a political/legal consciousness and begin to challenge the Canadian State (1960s/1970s)

• Change in non-aboriginal attitudes• Hiccup with assimilationist 1969 ‘White Paper’

– aboriginal opposition galvanized around it• Aboriginal groups used:

– court actions (Treaty entitlements, land claims [to ‘title’])– attempt to get into Constitutional process– civil disobedience, road blockades: Oka, Ipperwash, Gustafson Lake

• 1990s Royal Commission recommends real self-government


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The Current Situation

• Wide variation in living standards / life-chances– Aboriginal Canadians more likely to be in jail, in poverty, out of

school, in substandard housing– but more and more in post-secondary education

• LIMITED Self-government being realized. SLOWLY.• Violations of treaty rights being compensated

– “treaty rights” guaranteed by the constitution– courts looking at ‘intent’ of treaties (e.g. Marshall case)– modern ‘treaty-making’ for groups not covered by original treaties

• Basically, Aboriginal nations want to reclaim sovereignty• Nunavut


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Self-Government… The Issues (Pro)

• Self-government remains a ‘delegated’ power; bands are not a constitutionally-defined ‘third order of government’

Pro:• Aboriginal cultures must be preserved to enable individual

aboriginal persons to flourish (a liberal-democratic value)• Doing so requires political and social institutions that have

enough power to protect the culture.• Self-government would allow those cultures to succeed in a

separate political/geographic space.• Aboriginal people can develop distinct ways of delivering

services to their citizens that will serve different needs.• Funding this requires transfers of ownership to land: ‘land

claims’

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• Aboriginal nations never possessed ‘sovereignty’ in its technical sense

• Just too many small groups to be ‘states’. – 600 bands; 2200 reserves. Not viable as countries. – Small land areas, no economic base, can’t deliver services like health

care, education, police to populations of 1000• Off-reserve population is ½ . Who could be subject to

aboriginal governments’ authority?What would their status be: Which laws to obey?

• Sovereignty and continued receipt of transfer payments are incompatible

• Self-government will work in a limited, municipal sense• Pan-Indian nation as a ‘province’ will not work

– but maybe it would

Self-Government… The Issues (Con)


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Aboriginal Peoples – Confronting Injustice(Indian First Nations, Inuit, and Métis)

• Canadian policy basically assimilationist until 1970– Discouragement (even illegality) of ceremonies (i.e. Potlach)– Loss of status / full Cdn. citizenship on military service or voting– Expropriation of reserve land– Residential Schools – broke family transmission of culture & language– No effort to discourage racism / stereotyping by non-aboriginal Canadians

• Trudeau/Chretien White Paper (1969) outlines policy of integration/assimilation

• Reaction leads to government retraction and a new policy of land claims, treaty renewal, culturally sensitive education, devolution of powers to band councils, along with…funding of aboriginal organizations and their legal challenges

• But these steps did little to improve social, economic, and health conditions for aboriginal people

• Aboriginal organizations began to press for much greater powers of self-government, and a recognition in the Constitution of:an inherent right to self-government


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Aboriginal Self-Government? An “inherent right”?• Why an inherent right ?

– Constitutional recognition would oblige federal and provincial governments to negotiate and recognize governance structures determined by each First Nation (+ Inuit & Metis)

– It would essentially create a Third Order of Government– It would secure rights to a land base, which is required for economic self-

sufficiency

• Challenges of Aboriginal Self-Government (SG)– Lack of economic opportunities, employment, tax base– That makes service delivery dependent on transfers from fed. gov’t.– how would SG apply to people living off reserve (in urban areas)?– huge government responsibilities for a tiny population (cost too high)

• Aboriginal people wanted rights recognized in the Charter, and since then have pushed for entrenchment of a right to self-government.

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Aboriginal Political Realities

• The Courts– Most of the progress of the last 30 years has come through challenging

government laws and practices in the Courts: treaty rights, hunting and fishing rights, gender equality, title to land, exemptions from taxation on reserve, equality in the court system

– But all this is still happening through a system that many aboriginal people argue is illegitimate. Why should they fight for what is rightfully theirs?

• Who speaks for Aboriginal People (as a whole)?– Band governments sometimes very factional / familial– Assembly of First Nations made up of chiefs of 500+ nations– The AFN is a confederation!

• The Indian Act– paternalistic relationship – defines who is an aboriginal person!– it was the instrument of assimilation– governance structures at odds with traditional governance

• So… Modern Treaties (e.g. Nisga’a) and Land Claims– But this is really slow. How can hundreds of groups negotiate with a small

branch of the federal government, along with 10 concerned provincial gov’ts.

Documents

UBC POLI 101 Canadian Politics - Faculty of Artsfaculty.arts.ubc.ca/fcutler/teaching/POLI101/lectures/UBC POLI 101... · UBC POLI 101 Canadian Politics Mega(?)-Constitutional Politics: