by Graham A. MacDonald
Parksville, British Columbia
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Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests. Toronto, Buffalo, London: University of Toronto Press, 2017, 535 pages. ISBN: 978-1-4875-0204-1, $39.95 (hardcover)
This is a book about the constitutional history of Canada, and it will appeal even to those who do not enjoy constitutional histories. Far from being ‘dry as dust’, this is a lively account of Canada’s past and a grand interpretation of it. The main purpose is to convince us of just what it all means in constitutional and legal terms. In a series of topical chapters, rather than by a strict chronological treatment, the author asks us to view the constitution from the viewpoint of those who have composed its main sociological components. Sixteen chapters are divided into six groups: 1) The Founding Pillars; 2) Trying to Complete the Conquests; 3) Confederation; 4) The Three Pillars to the Second World War; 5) Transformation of the Pillars; and 6) Seeking a Constitutional Fix. The Canadian constitution is then, foremost, a work in progress, and the author chooses to tell us a story about its construction.
Russell begins it in the middle, at that point where the longstanding clash of various European empires contending for commercial control of the New World reached a certain hiatus. This occurred, as far as England and France were concerned, with the fall of New France in 1760. The next fourteen years were critical in terms of establishing new rules for the old residents of Quebec and for those commercial interests, English and French, already present or intended to arise. The Quebec Act of 1774 had many ramifications owing to its extension of the boundaries of Quebec into the Ohio Country as far west as the Mississippi River. To the American colonists it become one of the ‘intolerable acts,’ as many were anxious to settle to the west or engage in commerce in those same territories. Russell considers the Act to be the final seal of an ‘incomplete conquest’ of Quebec, owing to the generous manner by which traditional Quebec civic laws, religion, and the seigneuries were largely preserved under English rule. Readers may wonder if ‘conquest’ always implies the replacement or curbing of the religion, customs, and laws of those groups they have suddenly come to rule. The evidence often suggests that cooption of existing local leadership and group loyalties is a much surer basis for consolidating imperial rule. But let that pass.
After 1774, many of the old traditional relationships between specified tribes or federations of Native peoples were shaken up, some alliances preserved, others reversed, others betrayed. The author puts much weight on the 1764 Treaty of Niagara as a key moment when Native groups were recognized to be nations worthy of formal treaty negotiations (p. 48). The Royal Proclamation of 1763 has long been recognized as the fundamental source of the doctrine that the King of England recognize an underlying aboriginal title to lands in greater Canada and that in all future dealings this title had to be ‘extinguished’ by proper diplomatic means. Hence, Russell puts in place the second ‘pillar’ of the unfinished conquest idea. Many pages are given to tracing the long path subsequently trod by diverse First Nations seeking to reestablish the spirit of these first principles despite the land and commercial impositions increasingly placed upon them after the Confederation of 1867. These impositions issued partially out of the terms of old and new territorial treaties, but more radically out of the strictures of the new Indian Act of 1876 and the ever more damaging amended versions of that Act over the next forty years. The situation was also complicated by the entry of British Columbia into Confederation in 1871, with its different history of European-Native relations.
The ‘Odyssey’ image is that of a long journey home from the setting of long-forgotten battles. The hero, of course, is not an old soldier returning from Troy, but a ship of state seeking its true course in the dangerous seas of international waters. Captains have come and gone; the mid-shipmen have sometimes been rebellious, one faction, indeed, leading mutinies on occasion. Below decks, the longest serving and of ancient memory, have been reduced to drudges, but they have carried on rowing, hopeful of seeing once again the light of day. Surrounded by enemy fleets now and then, it occurs to several captains that the ship needs improvement, but the plans reside in the care of a Queen in a far-off isle to the east. Efforts to ‘amend the constitution’ of the craft have always failed for want of these originals. Having sailed through the scylla of the rocky shoals of Fulton-Favreau and the Charybdis of the turbulent chasm of Victoria, one powerful and impatient new captain said ‘enough’ and steered for that distant isle and did not rest until the plans were retrieved from the good natured Queen, who was happy to part with them. The captain saw the difficulty at once: there were inadequate acknowledgements of the place of the Law Gods in these plans. Instructions for their recognition were quickly posted on the main mast. A new route was charted home, but there was still a need to navigate the murky channels of the bottom-feeding, many-headed Particularism Monster and to move slowly through stormy Meech Lake with its perpetual fogs. These tasks brought on further signs of rebellion, for these were all dangerous waters. Finally, from below, a slave escaped to the upper deck and waving a magic feather, blew all of the newly repaired riggings to the four winds. The ship, becalmed, was then rocked by revived mutineers. A new captain, still possessed of the revised plans, now resorted to consulting the Law Gods for better guidance. By these overdue shows of humility, the Captain was instructed from above to bring the slaves up on deck more often and provide them with the same rations provided the others and make room for them at the Captain’s table. And so the ship sailed on, looking for some friendly port of its long lost homeland.
Thus, in 2018, Canadians are seeking to make constitutional and tangible amends for the mess left behind by such failed policies as the residential schools, the shortcomings of the original treaty settlements, and unresolved regional complaints, real or imagined. The good news is that the renewed Constitution of 1982, with its Charter of Rights and Freedoms, has allowed First Nations to make progress with land claims and other matters by court challenges rather than by seeking constitutional amendments or changes to the Indian Act. The latter, considerably modified since 1951, still sits as an anachronism in our system, and one that nobody knows how to get rid of.
There remain other loose ends. With the failure of the Charlottetown Accord of 1992, Quebec has still not signed onto the patriated Constitution of 1982, proving the old adage that ‘Canada is a country that does not work in theory but works in practice.’ We are also left to figure out better ways to solve the economic regional tensions which have come about as a result of the original terms of 1867 which gave most controls of natural resources to the provinces, thereby assuring that some kind of economic equalization formula would be required down the line if certain provinces were not going to be left behind owing to the accidents of geography. Additionally, there are the on-going ambiguities of a multi-cultural policy, which Russell favours in principle, but understands to be not without difficulties.
There is the vast learning of a lifetime in this book. It exquisitely details fundamental aspects of our written and unwritten constitution, particularly the more recent attempts to alter it by what Russell calls ‘mega constitutional politics,’ an exhausting post-1960 national preoccupation that may have run its course for years to come. Some readers may question Russell’s view of group identity politics or argue about various points of interpretation about past imperial conflicts waged for control of North America. ‘Modernity’ works tirelessly to dissolve group identities and thus ‘assimilation’ has become a nasty word for many who plead for groups; but appreciating the many ways by which ‘one culture tumbles into another’ to use the words of Loren Eiseley, are also important to consider. ‘Assimilation’ and ‘multi-culturalism’ are not mutually exclusive terms. Nations and empires attempt to provide a framework of acceptable law as a necessary cost of doing business and asserting sovereignty. The agents of King George III tried to provide such in Canada in the years between 1763 and 1774. The 1763 Proclamation remains an underlying guideline for our approach to adjudicated land use with First Nations. Ultimately, it did much to distinguish practices in British North America from those in the ambitious new nation to the south (p.51). With the successful challenge to the Supreme Court in 1997 by the Gitxsan of northwestern B.C. an important judgement was rendered for Native self-government, but one which also preserved the original sense of 1763 by which First Nations title could only be transferred to the Crown, and not to private buyers (p.435).
With the proliferation of First Nations governments now being added to the mix of provincial, municipal and territorial governments, and with periodic claims for ‘distinct societies’ or separatist clamours from east or west, vast Canada has come to resemble the Hapsburg or Ottoman Empires more than the American. Yet, somebody still has to be in charge, and that is why a Canadian Prime Minister, with a majority in the House of Commons, is far more efficient than any American President. Professor Russell has a good deal to say about that situation as well, noting with a jaundiced eye the growth in influence of the Prime Minister’s Office since 1969. He urges Canadians to follow Great Britain and Australia in putting together a Parliamentary Guide for the benefit of legislators and citizens alike. This would do much to elevate the general level of constitutional and legal literacy concerning conventions and citizen rights, which Russell thinks to be very low.
We thank Clara Bachmann for assistance in preparing the online version of this article.
We thank S. Goldsborough for assistance in preparing the online version of this article.
Page revised: 31 March 2021
