Commentary & Opinion

They all knew they were making history that summer. Over the month of July 1764, some two thousand chiefs and sachems, holy men, elders, warriors, and family members representing twenty-four indigenous First Nations arrived for a Great Council at Fort Niagara. Also present was the personal representative of the British king, George III. This diplomat, Sir William Johnson, was the superintendent of Indian Affairs for the northern colonies of America. Although Fort Niagara had been built by the French, it was now in British hands, having been appropriated following their conquest of New France in the Seven Years’ War (1756–63). Now, the king requested that the leaders of all the indigenous peoples living in the northeastern regions of North America congregate at the place where the Niagara River flows into Lake Ontario. There, amidst the beauty of nature and under the ramparts and guns of the British Empire, they would discuss and enter into a treaty setting out how all this land was to be governed.
The First Nations people came from far and wide. Some arrived from what is now Nova Scotia, while others journeyed from as far west as the Great Plains. Many more travelled south, from Hudson Bay, while others headed north, beginning their treks in the Adirondack Mountains. Leaders of the Algonquin, Cree, and Huron nations arrived along with representatives of the Nipissing, Pawnee, Mohican, Odawa, and Potawatomi nations, to name just a few. The Haudenosaunee Confederacy of the Mohawk, Seneca, Cayuga, Oneida, and Onondaga was also well represented. These leaders and their people had all been informed that the French were no longer a power in the land and that the British would be their nearest non-indigenous neighbours. They had also been informed that the British king had spoken of new rules regarding how the British would live with the indigenous peoples in the land now claimed by the British Crown. There had been a royal proclamation, and they desired to know more. The chiefs wanted to hear from the king’s delegate himself, to listen to how Sir William would describe the new order of things, so they could decide if the English king’s words were fair and just, and determine whether they would live in peace or war with the British.
Johnson, married to a Mohawk clan mother named Molly Brant, was a keen observer of indigenous traditions and political systems. He respected the oral traditions of the First Nations, the importance of symbolism, and the idea that these nations deserved equal respect and dignity from the British. Over the month of July, Johnson met separately with the leaders of each First Nation to discuss the future. He gave them details of George III’s Royal Proclamation of 1763, whereby the British claimed sovereignty over the eastern half of North America. He stressed that this declaration recognized the existence of Indian nations and their pre-existing ownership of their lands. He further promised that the British desired free and fair trade with all First Nations and freedom of movement throughout all lands subject to the British Crown. And there was more. Johnson assured the chiefs, in the name of his king, that under British law the Crown had to respect indigenous land ownership, and that the only way for the British to acquire more land than they currently held was through treaties signed between the British Crown and First Nations. British subjects could never take land from “the Indians” without their consent and without the approval of the king. Furthermore, the British Crown promised to bring to justice any Briton who committed robbery or murder against indigenous persons and pledged that the Crown would protect and aid First Nations against their enemies.
By the end of July 1764, Johnson had secured a unanimous agreement from the chiefs present at the Great Council, and on July 29 the Treaty of Niagara was confirmed. This treaty was made real through the exchange of covenant chain wampum belts, which served as a symbol of the agreement between the British and indigenous First Nations to live in peace, friendship, and respect with one another, with each nation recognizing all the others as equals. The wampum belt that Johnson gave to the First Nations chiefs showed two figures — one British, one indigenous — linked by a chain of silver, signifying that the treaty required constant attention and polishing in order to remain bright and vibrant. The belt given in return to Johnson by the chiefs of the Haudenosaunee Confederacy was a “two row” wampum. Ray Fadden, a Haudenosaunee scholar, describes the symbolic significance of this belt: “[It shows] two paths, or two vessels, travelling down the same river together. One, a birch bark canoe, will be for the Indian people, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs, and their ways. We shall each travel the river together, but in our own boat. Neither of us will try to steer the other’s vessel.”
While most Canadians have never heard of the Treaty of Niagara or the Royal Proclamation of 1763, these documents are recalled by First Nations to this day as reminders of the historic linkages between these nations and the British Crown, and of the ongoing constitutional obligations borne by Canadian governments to indigenous peoples. In 1763 and 1764 the Crown made legal commitments to First Nations, most of which were dishonourably broken and abused. The honour of the Crown still remains to be attended to, enhanced, and polished.

Distant Echoes of Regal Origins
The monarchy in Canada today is necessarily of British origin. Elizabeth II is Queen of Canada because she is also “Queen of the United Kingdom and of her other Realms and Territories.” She holds sovereignty over Canada because her ancestors laid claim to Newfoundland in 1497, the Hudson Bay watershed in 1670, and acquired Nova Scotia by treaty from the French in 1713. And, most significantly, the British won control of a large part of North America from the French during the Seven Years’ War of 1756–63. The Citadelle of Quebec fell to the British in 1759, with the French government of Louis XV ceding all of New France, save for the little islands of Saint-Pierre and Miquelon, to George III and his British Empire through the Treaty of Paris in 1763. While the British lost possession of the American Thirteen Colonies in 1783, they retained control of the northern half of the continent and its separate colonies and territories, eventually witnessing four of these jurisdictions — Nova Scotia, New Brunswick, Quebec, and Ontario — form the nation of Canada in 1867.
We are our history, and the history of Canada has been shaped by the actions of the British Crown. But monarchies existed in what is now Canada long before the arrival of the English. In 1534, the French explorer Jacques Cartier set foot on the Gaspé, planting a crucifix while claiming all that he saw in the name of Francis I, the king of France. This act inaugurated over two centuries of French royal rule in North America. These years would witness the birth of a distinct French Canadian society in North America, centred upon the St. Lawrence River and the lands of Acadia.
Watching Cartier raise his cross to his king were indigenous peoples. Likely Haudenosaunee, these wary observers were members of just one of the First Nations spanning the continent. A significant number of these nations were themselves either monarchies or had governments strongly influenced by monarchical ideas of aristocracy and hereditary rule, a reality not lost on early French colonial leaders. The first international agreements between First Nations peoples and Europeans were military and trade alliances entered into between indigenous leaders, viewed by the French as kings, and representatives of the French Crown.
The arrival of the English into North America heralded a period of added complications and increased tensions to an already complex political environment. By the early eighteenth century, the British Crown was front and centre in the development of two crucial political realities in the history of Canada: one focusing on the power relations between the French and the British, the other the link between the British and indigenous First Nations. The historical narrative respecting both sets of relationships is fraught with contradictions. In the years before and immediately after the conquest of New France, agents of the British Crown were leading figures in some of the most shameful episodes of racism and discrimination against First Nations peoples and French Canadians in our country’s history. In the opinion of many Canadians to this day, these are chapters in Canada’s history that still bring the reputation of the Crown into disgrace. In the years after 1763, though, we observe the first signs of a willingness on the part of various Crown officials to marry English and French interests; to recognize and respect certain features of the distinct social, linguistic, religious, and legal culture found in Quebec; and to see French Canadians — former foes — become loyal subjects of the Crown, eventually setting the stage for Confederation in 1867. Even pre-dating these events, we see the beginning of a special, historic, and ongoing relationship between indigenous First Nations and the British Crown. Before the conquest of New France, the British were entering into treaties with First Nations in what are now the Maritime Provinces; these documents recognized indigenous nations as nations with legal personality and with rights to traditional use of indigenous lands. These treaties and the related Royal Proclamation of 1763 endure as valid legal documents. They are recognized by the Supreme Court of Canada as bestowing significant entitlements to First Nations and important obligations on the Crown. The relationship between the Crown and indigenous Canadians is one that is both as historic as the old treaties and as current as the struggle for indigenous self-government and social justice.

1
The Founder’s Intentions

John A. Macdonald was gone. He had missed nearly a week in the pre-Confederation Canadian legislature. A drunk and dishevelled Macdonald yawned open his rooming house door and squinted through watery eyes at a young man who demanded his immediate return to duties. Macdonald mumbled that if the governor general was responsible for the message then he could go to hell, but if the gentleman was there at his own behest, then he could take the trip himself. The door slammed. The tale is either endearing or disturbing.
Sir John is tough to love, but tougher to hate. The lanky man with the high forehead, wiry and unruly hair, prominent nose, and dancing eyes was a rogue, but he was our rogue. He was a charmer and a ruthless operator. Macdonald can be applauded for efforts to afford more rights for women and for promoting better understanding between the French and English, but he should also be condemned for racist attitudes and policies toward Chinese workers and Aboriginal nations. A scoundrel and a scamp, Macdonald was a hail-fellow-well-met, a loyal friend, and a fierce enemy. He was Canada’s indispensable man because nation building is both mechanical and organic and so demands both architects and gardeners. Structures might be put in place, but as with any venture involving unpredictable and often irrational human beings, it is slow growth and adjustment to changing conditions that test and either strengthen those structures or tear them asunder. Fortunately, at its birth and through early, perilous years, Canada enjoyed the perfect marriage of man and moment. Sir John A. Macdonald was Canada’s architect and gardener, with the personality, skills, and vision to be expert at both.
In the fall of 1864, Macdonald was in a small, high-ceilinged, ornate room in Charlottetown. He knew, as did the other delegates from the British North American colonies of Canada (Quebec and Ontario), Nova Scotia, New Brunswick, and Prince Edward Island, that they were in trouble. The Americans had been butchering themselves in a civil war for three years. Confederate spies openly operated from Toronto and Montreal, and unscrupulous crimpers were tricking and even kidnapping young men to become Union soldiers. American generals, newspapers, and powerful politicians were advocating an invasion that would quickly overwhelm the thin red line of British soldiers and undertrained colonial militia. Meanwhile, British politicians were falling under the sway of those demanding an end to military and financial support for their expensive and troublesome colonies. Britain had withdrawn from a trade agreement that had greatly benefitted the British North American colonies and the United States had pledged to do the same, with both actions contributing to economic hardship. Beyond all of that, the political structures that had been created in response to disquiet in the Maritimes and rebellions in Upper and Lower Canada had proven themselves dysfunctional and clearly unequal to the challenges of the day. In the face of economic, political, and military hazards, the colonial governments were broken and broke.
After just a few hours of discussion, the Charlottetown delegates agreed that to save themselves they needed to create themselves. Unification was the answer. The question was how. There were two models upon which they could base their new country. The British parliamentary system of government was most appealing to the loyal British subjects around the big table. However, Quebec delegates agreed with those from the Maritimes that, unlike Britain, a new Canada needed not just a central government but a federal system to allow sub-national governments to protect local rights and identities. The essential question quickly became how much power should be placed with the central government and how much should be apportioned to the provinces. It is the question that has shaped our history and haunts us still.
On this matter, the United States offered a compelling and alarmingly negative example. While the American Constitution was brilliant in its conception, the booming Union and Confederate cannons, shattered cities, and armies-worth of mourning widows demonstrated its appalling failure in practice. Sir John and others said the American Constitution’s problem and the main reason the United States was currently eating its young was that too much power had been located in the sub-national state governments.
Macdonald explained to Confederation delegates that he admired the U.S. Constitution and respected the work and vision of its framers. However, he observed, “The dangers that have arisen from this system will be avoided if we can agree upon a strong central government — a great central legislature — a constitution for a Union which will have all the rights of sovereignty except those that are given to the local governments. Then we shall have taken a great step in advance of the American Republic.”¹ He repeated the point when the conference moved to cool and rainy Quebec City. Perched in grand rooms offering spectacular views of the thundering St. Lawrence, delegates drew closer to hammering out the new Constitution’s details. Canada would reverse the “primary error” of the United States, Macdonald said, “by strengthening the general government and conferring on the provincial bodies only such powers as may be required for local purposes.”²
The Charlottetown and Quebec City conferences were spectacular successes. Despite the fact that Newfoundland and, ironically, Prince Edward Island decided not to join, the delegates had undertaken a peaceful, respectful state-building project like few in the world had ever done. No armies marched. No shots were fired. No one died or, for that matter, was threatened, beaten up, or arrested. We began our national conversation by talking ourselves into a country.
As the process moved to the ratification stage, Macdonald repeatedly used the American example to remind the wavering and unconvinced of his reason for locating so much power with the federal government. In a speech to the Canadian legislature, he said: 
The American Constitution … commenced, in fact, at the wrong end. They declared by their constitution that each state was a sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the constitution, were confirmed upon the General Government and Congress. Here we have adopted a different system. We have strengthened the General Government. We have given the General Legislature all the great subjects of legislation.³
When Queen Victoria signed the British North America Act in 1867, the provinces were as Macdonald, George-Étienne Cartier, Alexander Galt, George Brown, Charles Tupper, Samuel Tilley, and the other founders intended. They were akin to municipalities. Section 92 of the new Constitution ceded only 16 powers to the four original provinces. They included education; the regulation of hospitals, asylums, and charities; the issuing of shop, saloon, tavern, and auctioneer licences; the solemnization of marriage, as well as the protection of property and civil rights; the administration of justice; the management of public lands, including the sale of wood and timber; and, finally, direct taxation within each province. The only addition was that Section 95 rendered agriculture and immigration as concurrent or shared powers in which the federal and provincial governments would co-operate. It is interesting that while the primary reason Cartier and French-speaking Quebecers demanded a federal system was to protect their language and religion, Section 92 was silent on both.
Among the powers allocated to the federal government in Section 91 were the militia, military, and naval service; defence; navigation and shipping; the postal service; criminal law; marriage and divorce; immigration; and the responsibility for Aboriginals and Aboriginal land. The federal government’s financial powers were immense. They included responsibility for currency and coinage, banking, bankruptcy and insolvency, trade and commerce, public debt and property, and in a phrase that was potent in its ambiguity, “the raising of money by any mode or system of taxation.” By giving the federal government the power to levy direct and indirect taxes and limiting provinces to collecting only direct taxes, the federal government was rendered fiscally powerful and the provinces set up to be poor cousins.
The lists made clear where the fiscal and legislative power would lie, but there was even more. In the United States, to balance legislative representation between big and little states, it was decided to base the House of Representatives on representation by population but to allocate two seats per state in the Senate. In 1867, and until 1913, state legislatures appointed senators. Macdonald and his centralist colleagues determined that House of Commons members would be elected through representation by population. As in the United States and Britain, the upper house would be filled by appointment. However, unlike in the United States, the federal government, really the prime minister, would do the appointing and the Senate would reflect not provinces but regions.
There was more. Provincial premiers were constitutionally bound to work with lieutenant governors, who were appointed by the monarch but became federal government appointees in practice. The BNA Act gave lieutenant governors reserve power. With this power, rather than being obliged to sign all provincial bills into law, lieutenant governors could send questionable ones to the federal government for consideration. Provincial bills could then be killed through interminable delay. Sections 55 and 56 also gave the federal government the power of disallowance. That is, it could deem any provincial law in contradiction of the best interests of the county, and even if legally passed by a provincial legislature and signed by a lieutenant governor, simply rip it up.
Also in Section 92 was the declaratory power that gave the federal government the right, whenever it determined that a particular public work would benefit Canada as a whole, to take control of a project and land, regardless of the provincial government’s opinion or constitutional power over the matter.
Finally, the federal government was given residuary power. While the wording of this portion of the Constitution was infuriatingly vague, its intention was clear: anything that fell between the constitutional cracks or that came up later that the Constitution did not specifically address (who would regulate the Internet or airports, for example) would automatically go to the federal government.
Sir John was a late convert to the Confederation idea. He lent support only when it had become politically expedient as well as the best way forward. Even then, he had opposed a federal state, arguing instead for a more efficient and more British style of legislative union with no sub-national governments. He later relented when Quebec’s George-Étienne Cartier and Ontario’s George Brown made federalism a condition of their support. It is clear that with the new country’s Constitution, much of which was written in his hand, Macdonald had won the next best thing to a legislative union. The provinces were as weak as they could be while still having any power at all.