—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
It’s difficult to keep working on research with little relevance to the Covid-19 crisis that we all face in some way today. The pandemic is bringing many things to a halt, including oral arguments at the US Supreme Court, and constitutional referendums in Chile and Armenia. However, there were a number of interesting developments in the offing before this crisis began, and to which we may return when the crisis ends.
Canada may be one of the “usual suspects” in comparative constitutionalism,[1] but our scholarly attention in recent years has been fixed on some of the more notable rulings of the Canadian Supreme Court rather than formal constitutional change through a legislative process. There has in fact been very little activity in terms of formal constitutional change. As Richard Albert notes in his recent book,[2] the Canadian constitution is very difficult to amend. Moreover, the constitution seems to function reasonably well as it is, at least in comparative terms.
However, there are also interesting political reasons for the lack of constitutional change in Canada for almost four decades, and reasons to think that a critical juncture is now approaching. After the patriation of the constitution and the addition of the Charter of Rights and Freedoms in 1982, there were two further attempts to amend the constitution, with the primary goal of gaining Quebec’s support for the Constitution. These both failed, and left such a distaste for mega-constitutional politics in Canada that essentially nothing has been attempted since 1992. The preeminent scholar of Canada’s constitution Peter Russell wrote:
We Canadians do not have a single constitutional document in which we can all see the vision of the political community we want Canada to be or become. We know now that we cannot expect such a finish to our constitutional odyssey, for the simple reason that we do not share a common vision. The kind of constitutional patriotism we sought through the era of mega constitutional politics is beyond us.[3]
At this point, dear reader, you may be tempted to skip the rest of this post as an iteration of that most boring of headlines “Worthwhile Canadian Initiative.” I promise, there are interesting legal issues in play here.
Why revisit this ancient history now? A number of constitutional and quasi-constitutional issues in Canada have festered unresolved in the years since the last abortive attempt a constitutional reform in 1992, and have recently risen to the level of near crises. Chief among these are the status of Quebec within Canada, Indigenous rights and sovereignty, the structure and function of the Senate, and the electoral system. Halting attempts have been made on these various fronts over the years, without success. Before the novel coronavirus took over social and political life across the country, a political struggle over the relationship between Indigenous rights and natural resource exploitation had the potential to revive constitutional politics, and Canadians were in general not happy about the situation.
The politics of oil and gas pipeline construction bring together a number of the ongoing meta-constitutional problems in Canada, especially regionalism and Indigenous rights recognition. The province of Quebec recently opposed new pipeline construction in that province, and is consistently more opposed to pipelines than the rest of the country. Meanwhile, for the “oil patch” in Alberta, pipelines are essential to keeping Canada’s fossil fuels competitively priced and especially for shipment to emerging markets in Asia. These regionally fractious dynamics are likely to be even more difficult as the price of Canadian oil has dropped to an astonishingly low price over the past month.
The most recent and serious conflict over pipeline construction concerns a liquified natural gas pipeline (Coastal GasLink) that will carry gas from Alberta to a port on British Columbia’s Pacific coast. Since the landmark decision of the Supreme Court of Canada in Haida Nation v. British Columbia, projects that exploit lands to which First Nations have claims must pass through a process of consultation with the affected First Nations.[4] The earlier ruling in Delgamuukw v. British Columbia had established that First Nations’ titles to their traditional lands had not been extinguished when the colony of British Columbia became a part Canada in 1871.[5] In Delgamuukw the Court actually resolved very little, instead ordering a second trial that is not likely to take place. However, in the subsequent decision in Tsilhqot’in Nation v. British Columbia the Court further clarified the extent of Indigenous title on the basis of traditional occupation, and gave effect to the duty to consult.[6]
While the Supreme Court has decided a number of crucial cases in ways that empower First Nations, the piecemeal approach to dealing with Canada’s relationship with its Indigenous peoples is far from ideal. In the past there was significant interest and even some consensus on amending the Constitution in a way that would empower Canada’s First Nations through representation in the Senate, veto powers over amendments, and other cultural and political rights. Sadly, these ideas were swept away with the rest of the constitutional reforms that failed in 1992.
The Coastal GasLink project followed the process that has been required since these rulings. However, it also highlighted one of the enduring problems with Canada’s relationship with its Indigenous peoples. The relationship is governed in large part by patently racist legislation from 1876, the Indian Act. The Indian Act set up elected band councils that have authority over many issues relating to the day-to-day life of First Nations communities – itself a seemingly neutral intervention. However, in many First Nations, there also exists a system of government by hereditary chiefs who have jurisdiction over what is in many cases the much larger off-reserve lands to which the First Nation claims title. In the specific case of the Wet’suwet’en First Nation, the band councils had agreed to the Coastal Gas Link project, but a majority (eight of nine) of the sitting hereditary chiefs of the five clans that make up the Wet’suwet’en First Nation opposed the project. Opposition from the First Nations concerned is not always sufficient to end a project like Coast GasLink, but the decision in Tsilhqot’in Nation v. British Columbia requires the government to establish that the project would achieve both a compelling objective and be consistent with the government’s obligations to the First Nation.
As construction began on the Coastal GasLink pipeline, Indigenous peoples and non-Indigenous allies blockades roads, bridges, and most importantly rail lines in various locations in Canada. The rail blockades in Ontario in particular went on for some time and caused significant economic difficulties. While there were vocal minorities of Canada’s non-indigenous population in support of the hereditary chiefs, a majority supported police action to end the blockade. The blockades had just ended (with police intervention), and new discussions were underway within the Wet’suwet’en First Nation when the Covid-19 crisis arrived in Canada. To date, it seems that the virus has disrupted the talks more than the construction.
According to a poll taken in February 2020 (amid these protests), 59% of respondents answered that the country as a whole was headed in the “wrong direction.” Support for the federal government and Prime Minister Trudeau was even lower. The government’s handling of the protests in support of the hereditary chiefs of the Wet’suwet’en First Nation had rattled many Canadians’ confidence in the ability of the Trudeau government to make progress on reconciliation with First Nations. This followed hard on the heels of an election in which the Liberal Party was completely shut out of the western plains provinces, reviving some interest in what was dubbed “Wexit.” The phenomenon of “western alienation” is unlikely to provoke serious efforts at secession, but it highlights some of the inadequacies of the constitution.
Things are not much better on other institutional fronts. Despite a long series of minor scandals, and the larger issue of malapportionment between provinces, the Senate has yet to be seriously reformed. Senators remain appointed for life (or during good behaviour), with the Atlantic provinces receiving far more than their share of the votes in the Senate. And, despite a central promise of the winning Liberal Party campaign in the 2015 election, electoral reform was shelved in 2017.
Remarking on the sesquicentennial of the Canadian constitution a few years ago, Richard Albert wrote: “Despite the accolades Canada has earned abroad for our constitutional law and for the judges who give effect to the Constitution’s words, the lived experience of many of the peoples of Canada remains one of misgiving, disenchantment and also of anger for a past that remains unreconciled with the present.” To date, most serious issues have been either pushed to the Supreme Court to decide, or papered over.
The Coronavirus pandemic may have bought the Trudeau government some time, but these issues remain unresolved. As many famous political figures are reputed to have said: never waste a good crisis. Whatever damage the Covid-19 crisis does to the economy and the people, these institutional and political issues will be there, and perhaps more pressing than ever. Can the West be brought back into the fold? Can Indigenous peoples be given a dignified and powerful place within the Confederation? Could amendments gain Quebec’s support for the Constitution? Climate change remains unaddressed and the actions we take to recover from the economic fallout of the large-scale quarantine present an opportunity to do something bold. Will Canada (and other countries) answer the call? Something has to give. The question is whether the change will be in the form of small, incremental, and perhaps legislative changes, or an ambitious attempt to resolve Canada’s constitutional disfunctions through a larger package of amendments.
Suggested
citation: Alexander Hudson, A Constitutional
Crisis of a Different Kind: Canada’s Slow March Back to Mega-Constitutional
Politics, Int’l J. Const. L. Blog, Mar. 25, 2020, at:
http://www.iconnectblog.com/2020/03/a-constitutional-crisis-of-a-different-kind-canadas-slow-march-back-to-mega-constitutional-politics/
[1] Ran Hirschl, Comparative matters: the renaissance of comparative constitutional law (2014).
[2] Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019).
[3] Peter H Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 272–273 (2004).
[4] Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73
[5] Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010
[6] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256
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