Constitutional Renewal: An Example in Aboriginal Politics

Marty Thurston 

September 25, 2008

     One of the main distinctions to make in the constitutional renewal of the 1970s and early 1980s is the distinction between self-determinism of people and self-determinism of provinces.  The case of aboriginal rights is a good example of the evolution of self-determinism of people and the discontent of Francophones and Western Canada during this time period is an indication of self-determinism based on provinces. 

Aboriginal Rights    

     The Calder case of 1973 found the existence of an aboriginal title, that is, distinct recognition of the aboriginal society.  This landmark decision represents a social dimension of constitutional renewal.  By itself, the Calder appeal was ultimately denied by the SCC because of legal grounds.  The technicality rested on the notion that governments can not be sued unless there is consent in the interests of justice.  In this respect, it was somewhat of a legal convention that governments were to be given sovereign immunity.  Procedure would have required Calder to request a fiat from the lieutenant-governor of British Columbia, but although this appeal was denied, the significance of the case rested in the public opinion that followed.  As a matter of common law, the Calder case is a good example of obiter dicta, that is, the practical manner by which the Supreme Court of Canada can influence public discourse without the force of law.  This case would become a major aspect of constitutional renewal for native peoples because at common law, an Indian title was established - which was a significant step in a more inclusive direction.  Prior to the Calder case, aboriginal rights were largely defined by the JCPC St. Catherine’s case of 1888, which granted the crown overt discretion over such matters.  

Western Alienation

     By the early 1970s, the Western provinces were beginning to enter the constitutional struggle.  The first factor was economical; OPEC price increases would give Alberta, Saskatchewan, and Manitoba a very large source of wealth.  Russell notes that it was not this initial event, but the federal government’s response, that would stir sentiments in the West.  The two main grievances that would emerge from the federal response would be the oil export tax, and the provision that “oil companies could no longer deduct royalties paid to the provinces from their federal income tax.” (Russell, 95)  Furthermore, in the late 1970s, the Supreme Court had stated that the taxation and regulation of resource industries were ultra vires of the provinces, and this constitutional exclusion would leave Westerners feeling particularly exposed to the wrath of Central Canada.  The second major influence of Western discontent was the apparent political failures of the Trudeau government to acknowledge the Western provinces for the contributions they were starting to make to the rest of the country.  Russell notes that we should not think of Western alienation as synonymous with Quebec nationalism because if anything, the West was fighting for more inclusion in the Canadian formula, and not to distance itself.  Politically, many Westerns likened Pierre Trudeau to federal unilateralism; whether it was patriation, an amending formula, bilingualism, or the NEP, the biggest outcry from the Western provinces has always been that of alienation.  A popular proposal (to this day) is the idea of a triple E senate, one that would consist of equal provincial representation to oversee federal legislation.

Quebec and All the Rest   

     The main turning point in the constitutional renewal came in 1976 with the Partis Quebecois.  The separatists’ agenda was clear, and the whole country was watching the macro-constitutional standoff between culture and cooperation.  However realistic the threat, the question at this stage of the game was whether Canada would reinvent itself constitutionally, or whether there would be a breakdown of national unity.  A majority-vote referendum for Quebec separation was very much an ad hoc proposal, but it was a can of worms that the rest of Canada simply would rather not want to open.  At this time in the late 1970s every region in Canada had a persuasive argument and every region was talking at once.  If the federal government had been unwilling to reconcile the interests of Quebec, it is difficult to say what the response could have been from the Western provinces or even the Maritime Provinces who were looking for more control over their off-shore resources.  The main point here is that discontent was not localized, and the game was more of a free-for-all, than a teaming-up against the federal government.  With different voices coming from different directions, new constitutionalism “had been reduced to a grab-bag of issues reflecting each government’s pet constitutional project – except, of course, Quebec’s separatist objective.” (Russell, 104)  This round of new constitutionalism would come at the end of the Trudeau era.  Losing political resources, Trudeau was losing significant ground with the patriation agenda and was forced to back-off.  He would never regain the political power he had previously commanded and by this point he had done little to reconcile the interests of any of the regional factions.  The most significant institutional changes were still on the horizon but closing in fast. 

Peter H. Russell (2004), Constitutional Odyssey, 3rd Ed., (Toronto: University of Toronto Press).

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