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Unit 5 - Study Guide
Unit 5 Study Guide
Unit 5 Study Guide
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Date:
Faculty of Humanities and Social Sciences
POLI 390: Canadian Federalism_ May2010
Unit 5 Study Guide
Sara AlMarashdeh
Monday, 1 October 2018, 8:23 AM MDT
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Unit 5 - Study Guide
Table of contents
Overview
Learning Objectives
Reading Assignment
Commentary
Notes on Terms
Study Questions
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Unit 5 The Drive for Self
Determination: Aboriginal Self
Government
Overview
Unit 4 described Quebec’s quest for selfdetermination. Unit 5 describes a similar, but more
difficult and complex, quest by Canada’s Aboriginal peoples, and its implications for
Canadian federalism. Aboriginal demands for self government have grown in recent years,
but the appropriate response to those demands will require considerable imagination and
skill, given the cultural and geographic divisions among the Aboriginal population and their
intermingling with nonAboriginals in the same territory. Meanwhile, some progress has
been made on settling land claims and in implementing the rights guaranteed to Aboriginals
by the Constitution.
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Unit 4 - Study Guide
Unit 4 Study Guide
Unit 4 Study Guide
Site:
Course:
Book:
Printed by:
Date:
Faculty of Humanities and Social Sciences
POLI 390: Canadian Federalism_ May2010
Unit 4 Study Guide
Sara AlMarashdeh
Monday, 1 October 2018, 8:22 AM MDT
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10/1/2018
Unit 4 - Study Guide
Table of contents
Overview
Learning Objectives
Reading Assignment
Commentary
Notes on Terms
Study Questions
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Unit 4 - Study Guide
Unit 4 The Drive for Self
Determination: Quebec Nationalism
Overview
Unit 3 examined the evolution of the Canadian federal system. Specifically, it examined
factors that have contributed to longterm political decentralization and the rise of
regionalism. Unit 4 continues this analysis by focusing on how nationalism and the drive for
selfdetermination have affected the operation of the Canadian federation. It sets out the
historical position of Quebec within Confederation and analyses the actions of particular
Quebec premiers that have led to the attenuation of federal power.
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Unit 4 The Drive for Self
Determination: Quebec Nationalism
Learning Objectives
When you have completed Unit 4, you should be able to achieve the following learning
objectives.
1. Discuss how the Canadian state defines and recognizes newly mobilized cultural
identities.
2. Describe how the Canadian state has attempted to accommodate cultural differences.
3. Differentiate between the concept of dualism and multiculturalism, and explain why these
two concepts are in tension within the Canadian system.
4. Outline the basic linguistic and cultural concerns of Canada’s Frenchspeaking
community.
5. Identify and discuss the two alternative strategies used by Quebec political leaders in
their dealings with the federal government.
6. Give reasons why the Quiet Revolution is considered a watershed in the history of
Quebec.
7. Discuss the concept of “special status,” and differentiate between de jure and de facto
special status.
8. Discuss the relationship between identity and the need for recognition, and describe the
different ways in which groups can build a positive collective identity.
9. Identify the origins of the Quebec separatist movement.
10. Discuss what was involved in the sovereigntyassociation proposal of the Parti
Québécois.
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Unit 4 The Drive for Self
Determination: Quebec Nationalism
Reading Assignment
Chapter 4: “Conceiving Diversity: Dualism, Multiculturalism, and Multinationalism,”
by Kenneth McRoberts, in New Trends in Canadian Federalism, 2nd ed., edited by
Rocher and Smith, pp. 85–109.
Chapter 5: “A Province Unlike the Others,” in Unfulfilled Union, 5th ed., by Garth
Stevenson, pp. 94–123.
Reading 2: “Explaining Quebec Nationalism,” by Stéphane Dion, in the Reading
File.
Chapter 12: “Quebec’s Role in Canadian FederalProvincial Relations,” by
Jacques Bourgault, in Canada: The State of the Federation 2002: Reconsidering
the Institutions of Canadian Federalism, edited by Meekison, Telford, and Lazar,
pp. 341–376.
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Unit 4 The Drive for Self
Determination: Quebec Nationalism
Commentary
In reviewing the evolution of the Canadian federal system, it quickly becomes apparent that
Quebec is a province unlike the others. At the heart of this distinction is language. Unlike
the situation elsewhere in Canada, the vast majority of Quebec residents continue to live
and work in the French language. The desire to preserve and promote linguistic and
cultural diversity was one of the prime reasons a federal system of government was
adopted in 1867. Ever since Confederation, successive Quebec governments have been
inspired by a strong sense of “nationalism”—a belief that Quebec represents something
akin to a national homeland for French Canadians and a consequent desire to protect,
almost at all costs, the French language and culture.
Quebec nationalism historically has represented the most consistent destabilizing element
in the federal system. Conflict between Quebec City and Ottawa characterizes every period
of Canadian history. Before 1960, the Quebec government stood at the forefront of what
has been labelled the “provincial rights movement.” During this period, Quebec regularly
opposed the use of the quasifederal powers; blocked real or imagined intrusions into
provincial areas of jurisdiction; and insisted on a literalist interpretation of the division of
powers. This strategy of defensive nationalism is closely associated with, first, Premier
Honore Mercier (1887–91) and, later, Premier Maurice Duplessis (1936–39 and 1944–59).
Each closely held to the compact theory of Confederation, which had first been formulated
shortly before Mercier took office. However most Quebec premiers from Mercier onward
took essentially the same position, regardless of which party they belonged to.
Beginning with the great political and social changes of the Quiet Revolution of the 1960s,
the strategy of the Quebec government shifted from defensive to offensive nationalism. The
Quiet Revolution is associated with several major changes in Quebec society which
resulted from a complex series of social forces—urbanization, industrialization, and
secularization—which produced a new, politically active middle class. During those years
Quebec built a modern public service and a number of state agencies which intervened
actively in both social and economic affairs. At the same time, and partly as a
consequence, the power and influence of the Roman Catholic Church, which had
dominated civil society in Quebec at least since the 1840s, was drastically diminished.
Another major change was the shift from the traditional, conservative, defensive form of
nationalism to a modern, aggressive nationalism using the state as the prime instrument of
change. Many, although not all, of the neonationalists came to the conclusion that Quebec
should become a completely sovereign state in order to realize its potential.
Quebec Premier Jean Lesage, elected in 1960, saw the need for a strong and activist
Quebec state with an effective public service and the necessary powers and financial
resources to stimulate economic and social development. As a result, Quebec took the
initiative in proposing changes to Canada’s constitutional arrangements. Since that time
Quebec governments have usually advocated either more powers for Quebec within
Confederation, or, alternatively, complete political sovereignty, possibly combined with
continuing economic association with the rest of Canada. Although by no means all
provincial politicians in Quebec favour sovereignty, those who do not favour it generally
advocate additional powers for Quebec in a reformed constitution. This could be achieved
either by asymmetrical federalism (more powers for Quebec only, while the other provinces
would retain their present status) or else a general decentralization that would give more
powers to all of the provinces.
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From 1960 to 1976, Quebec’s search for greater jurisdictional autonomy centred on the
negotiation of special administrative arrangements with the federal government and an
attempt to expand provincial powers through the process of formal constitutional reform. In
the early 1960s, Quebec established its own pension plan rather than participating in the
Canada Pension Plan. It was also allowed to “opt out” of certain federalprovincial shared
cost programs, receiving fiscal compensation instead. Quebec also began to conduct direct
relations with foreign governments, particularly that of France—a development that greatly
disturbed the federal government.
It was also during this period that the government of Quebec actively began to promote and
protect the French language and culture. The declining francophone birth rate, and the
tendency of immigrants in Montreal to adopt English rather than French as their new
language, caused concern that Montreal might become a predominantly Englishspeaking
city. In 1972 the Gendron Royal Commission, established three years earlier to investigate
the status of the French language, recommended measures to encourage the use of
French as a language of work. The first comprehensive language law enacted in Quebec
was Bill 22. Passed in 1974 by the government of Robert Bourassa, Bill 22 declared French
to be the official language of Quebec. It required private firms wishing to obtain government
contracts to pursue a policy of “francization,” and required the predominance of French on
all public signs within the province. The most controversial aspect of Bill 22 involved an
effort to channel the children of immigrants into the French school system. The law required
all students wishing to enrol in schools where English was the language of instruction to
pass an English proficiency test.
After 1976 a new dynamic was added to the federal system. The election of the separatist
Parti Québécois represented the first direct challenge to Canada’s constitutional regime.
This event, and the subsequent referendum on sovereigntyassociation, served as the
catalyst for extensive constitutional discussions between the federal government and the
provinces, and the final patriation of the Canadian constitution in 1982. The new premier,
Réné Lévesque, moved to strengthen the Bourassa government’s Bill 22 by replacing it
with Bill 101 in 1977. Bill 101 made French the sole official language of the government,
courts, schools, and economy of Quebec. Under this legislation, members of the Quebec
National Assembly could debate in English, and litigation involving individual citizens could
be heard in the courts in English, but only the French versions of debates, documents, and
court proceedings were deemed to be official. Businesses employing more than fifty
persons were required to conduct their operations in French, including the negotiation of
labour contracts. All public signs, posters, and advertising were required to be in French. In
education, the law restricted the Englishlanguage school system to the children of the
resident English minority, although special exemptions were allowed for temporary
residents of the province.
In 1979 the Supreme Court of Canada found parts of Bill 101 dealing with the legislature
and the courts in contradiction with Section 133 of the Constitution Act. In 1984 the Court
ruled that sections of Bill 101 restricting the English language school rights of Canadians
moving into Quebec from other provinces were in conflict with provisions of the new
Canadian Charter of Rights and Freedoms. In 1988 the French only sign policy met a
similar fate and was ruled invalid by the Supreme Court. It was replaced by a law that
allows English on commercial signs as long as the French lettering is larger than the
English lettering. The image of Quebec police enforcing this law by pulling out measuring
tapes to compare the size of French and English lettering was viewed as either highly
comical or blatantly discriminatory by most anglophones in Canada. For the Québécois who
feel that their language is threatened, restricting the use of English is Quebec is justified if it
serves to protect and promote the use of French. They argue that the overwhelming
predominance of English in North America, and increasingly in the world, requires some
restriction of individual liberties if French is to be preserved. Whatever one’s perspective is,
Quebec language laws illustrate the passion that the politics of language evokes.
The outcome of the 1980 referendum and the electoral defeat of the Parti Quebecois in
1985, after nine years in office, convinced some observers that “separatism is dead.”
However, the failure of Canada to recognize Quebec’s national identity in its constitution
contributed to the election of a new Parti Quebecois government in 1994, and a second
referendum a year later. The outcome of the 1995 referendum was an extremely narrow
victory for the federalist option, a victory that Premier Jacques Parizeau accurately but
tactlessly attributed to “money and ethnic votes.” Although the PQ returned to the
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opposition benches in 2003, the option of sovereignty continues to command widespread
support in Quebec, although the passion and militancy of earlier years seems, at least for
the time being, to be lacking.
The first assigned reading for this unit was written by Kenneth McRoberts, a scholar who
has written extensively on the province of Quebec. McRoberts’s chapter is not focused
exclusively on Quebec, but provides a more generalized picture of how cultural difference is
accommodated in the Canadian federal system. McRoberts analyses which cultural
identities have been recognized by the Canadian state and how the state is responding to
newly mobilizing cultural groups. He also examines the tension between two federally
sanctioned policies: multiculturalism and dualism.
The assigned reading from the Stevenson text focuses on Quebec, providing a general
overview of Quebec’s role within the federal system from the preConfederation period to
the defeat of the Parti Québécois government in 1986. Stevenson’s analysis is interesting
because he focuses on the changing nature of Quebec society and the internal forces
(political, economic, and social) that account for the relatively high degree of conflict
between the provincial government and the federal government.
The strength of the Stevenson reading lies in the chronological examination of Quebec
nationalism, the identification of important historical events, and the elaboration of the long
standing linguistic disputes between Quebec’s French speaking majority and its English
speaking minority. Missing from the discussion is the federalist constitutional perspective;
the view of some Quebecers (best symbolized by former Prime Minister Pierre Trudeau[1])
that a strong federal government can serve as the best line of defense for the protection of
the French language and culture, not just in Quebec, but throughout Canada. The conflict
between these two conceptions of Confederation, each rooted in FrenchCanadian political
thought, serves as the source of much of the dynamic tension that has always existed in
federalprovincial relations.
The assigned reading by Stephane Dion, an academic when he wrote it and now leader of
the Liberal Party of Canada, provides a concise explanation of why many people in Quebec
want a sovereign state. Dion attributes the strength of Quebec nationalism to three factors:
(1) fear that the French language is in danger of disappearing; (2) confidence that Quebec
has the capabilities to be a successful independent nationstate; and (3) a feeling of
rejection because anglophone Canada has refused to recognize Quebec’s national identity
in the constitution.
The final assigned reading, by Jacques Bourgault, assesses Quebec’s role in federal
provincial relations since the early 1960s. He concludes that Quebec’s influence over the
evolution of Canadian federalism has been less than many Canadians believe, that it
reached its peak in the 1960s, and that it has actually declined in recent years. Quebec has
not really achieved any of its objectives in terms of formal amendments to the constitution,
and its gains in terms of administrative arrangements have been limited and are not
necessarily permanent.
In studying Quebec in the context of Canadian federalism, it is critical to understand that all
recent Quebec governments, regardless of their political ideology, have attempted to
enhance the province’s cultural, fiscal, and political autonomy in the hope of achieving
either a form of de facto (i.e., administrative) or de jure (i.e., constitutional) special status.
Ultimately, the pursuit of this special status has not only benefited Quebec, but the other
provinces as well. By advocating a concept of provincial equality, other provinces have
succeeded in using the threat of Quebec independence to advance their own political and
constitutional agendas. A more comprehensive analysis of past federalprovincial
constitutional discussions follows in Unit 6. First, however, Unit 5 focuses on another group
of Canadians who are seeking cultural and political selfdetermination: Canada’s Aboriginal
peoples.
Be sure to use the learning objectives and study questions as guides to the assigned
readings.
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[1]
Trudeau’s views on federalism and Quebec nationalism are summarized in his
book Federalism and the French Canadians (Toronto: Macmillan, 1968).
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Unit 4 The Drive for Self
Determination: Quebec Nationalism
Notes on Terms
Action Democratique (ADQ): A political party formed in 1994 by dissident members of the
Quebec Liberal Party. It is more nationalist than the Liberals, but is conservative on
economic issues.
Allaire Report: A report by a constitutional task force of the Quebec Liberal Party which was
prepared after the collapse of the Meech Lake accord in 1990. The report recommended a
radically decentralized form of Canadian federalism. After Premier Bourassa refused to
endorse the report, the chairman of the task force helped to form the ADQ (see above).
asymmetrical federalism: A type of federalism in which one or more of the provinces or
states has more formal authority or status than the others. The term “special status” (see
below) conveys essentially the same idea.
BelangerCampeau Commission: A committee created by the National Assembly after the
collapse of the Meech Lake Accord. It was constructed so as to include federalists and
sovereignists in approximately equal numbers. The Commission recommended that
Quebec hold a referendum in 1992, either on sovereignty or on an “offer” of constitutional
changes from the federal government.
Bill 101: Name popularly given to Quebec’s Charter of the French Language, adopted by
the National Assembly in 1977. Designed to preserve the French language and to improve
the social and economic position of those who speak it, it is overwhelmingly popular in
francophone Quebec. A few of its provisions have been struck down by the Supreme Court
of Canada.
Bloc Québécois: A political party that was originally a grouping of dissident members of
parliament from Quebec drawn primarily from the ranks of the Conservative Party. The Bloc
Québécois was created soon after the Meech Lake Accord failed. The objective of the Bloc
Québécois is to promote Quebec independence through political activities at the federal
level.
compact theory: See definition in Unit 2, Part 2.1.
Constitution Act of 1791: In some texts this is called the “Constitutional Act” of 1791. This
act of the British parliament created the political units of Upper and Lower Canada and
established a system of representative government in the two colonies.
de facto: administrative; that is, what happens in practice.
de jure: formal; that is, delineated in the constitution.
defensive nationalism: A political strategy of the government of Quebec based on a strict,
literalist interpretation of the constitution, a defense of provincial autonomy, and a rejection
of any changes to the original Confederation agreement. Defensive nationalism is most
often associated with the government of Premier Maurice Duplessis.
distinct society clause: This was the most controversial element of the Meech Lake Accord.
It was meant to be a new interpretative clause, which would be placed in Section 2 of the
Constitution Act. The distinct society clause recognized Canada as a partnership between
English and French speaking peoples, and Quebec’s position as a distinct society within
Canada. It gave federal and provincial governments the responsibility of preserving
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Canada’s bilingual and bicultural character, and gave the Quebec government the
additional responsibility of preserving and protecting Quebec’s distinct (i.e., French)
character.
Front de liberation du Québéc (FLQ): This revolutionary group, formed in the early 1960s,
attempted to secure the independence of Quebec through the use of political propaganda
and acts of political terrorism. In 1970 several members of an FLQ cell kidnapped British
Trade Commissioner James Cross and Quebec Labour Minister Pierre Laporte. Laporte
was later murdered and Cross was released in exchange for safe passage out of Canada.
The movement ceased activities a few years later after a successful campaign against it by
the RCMP.
maitres chez nous: This phrase was the political slogan used by the Liberal government of
Jean Lesage in the 1962 Quebec provincial election. Simply translated, it means “masters
in our own house.” The slogan was first coined by Fr. Lionel Groulx and was used by
Resources Minister René Lévesque to support a plan for the nationalization of
hydroelectricity operations in the province.
nationalism: Nationalism identifies the nation as the primary political value. Nationalism can
involve: (1) a sentiment of loyalty to a nation; (2) an attitude attaching high importance to
the distinctive characteristics of a nation; (3) a tendency to consider exclusively the
interests of one’s own nation over the interests of other nations; (4) a doctrine maintaining
that national cultures should be preserved; and (5) a political theory that humanity is
naturally divided into nations and that each nation is entitled to its own government.
October Crisis: The name given to the events surrounding the kidnapping of two hostages
by the FLQ in October 1970 and the consequent invocation of the War Measures Act by the
Trudeau government.
offensive nationalism: A political strategy of the Quebec government calling for the ceding
of administrative and constitutional powers by the federal government to Quebec. Offensive
nationalism is associated with Quebec’s drive for special status and underlies the position
of most Quebec premiers since 1960.
Parti Québécois (PQ): A political party formed in 1968 by René Lévesque to promote the
cause of sovereignty for Quebec. The PQ has been the governing party in Quebec for a
total of eighteen years.
patriation: The transfer of the power to amend the Canadian Constitution (i.e., legislative
sovereignty) from Great Britain to Canada. Patriation took place in 1982.
Quebec Act of 1774: This act of the British parliament defined the territory of the conquered
colony of Quebec and the rights of its citizens. The Quebec Act granted freedom of worship
for Roman Catholics and sanctioned the use of French civil law. Government institutions
were restricted to a legislative council appointed by the colonial governor.
Quebec Referendum: Two events are referred to here. The first was a vote of the Quebec
electorate held on 20 May 1980 to consider the request of the Lévesque government for a
mandate to negotiate sovereigntyassociation. The Referendum question was defeated by
a 60 to 40 margin. A second vote on the question of sovereignty was conducted by the
Parizeau government on 30 October 1995, in which 49.4% of the votes were in favour of a
sovereign Quebec.
Quiet Revolution: This term refers to the changes that took place in Quebec during the
1960s which saw the modernization of Quebec society and the rise of a politically active
middle class. The Quiet Revolution is linked to the Liberal government of Jean Lesage
(1960–1966) and the slogan maitres chez nous.
separatism: A movement or idea promoting the secession of one state, province, or region
from a larger political entity. The term was first used in Ireland around 1900 to describe the
movement for separating that country from the United Kingdom. Separatism was popular
idea in Quebec in the 1960s; however, supporters of Quebec independence today prefer
not to use the word “separatism” on the grounds that it sounds too negative.
sovereignty: In international law, “sovereignty” denotes the status of being a fully
independent actor in international relations. Canada is generally considered to have
become sovereign with the Statute of Westminster in 1931. Many people in Quebec believe
that Quebec should achieve sovereignty in its own right.
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sovereigntyassociation: This name was given to the political and economic arrangement
between Canada and an independent Quebec proposed by the Parti Québécois in the
referendum campaign of 1980. Sovereigntyassociation would have involved full political
autonomy for Quebec, including a seat at the United Nations, but with continuing economic
ties to the rest of Canada. Economic links would include a common currency, the free trade
of goods and services, and a common external tariff policy. An international treaty and a
number of permanent intergovernmental institutions would govern relations between
Canada and Quebec. After about 1990 the PQ began to place less emphasis on the need
for a formal association with the rest of Canada.
special status: An objective sought by Quebec political leaders recognizing that Quebec, as
the historic homeland of Frenchspeaking Canadians and the only province with a French
speaking majority, is a distinctive province and should be treated differently from the others.
Quebec premiers have sought both de facto (i.e., administrative) and de jure (i.e.,
constitutional) special status in the post1960 period.
Union Nationale: A conservative, nationalist political party formed in Quebec in 1936. The
UN originally joined Conservatives and reformminded Liberals under the leadership of
Maurice Duplessis. The party formed the government of Quebec from 1936 to 1939, 1944
to 1960, and 1966 to 1970. It ceased to exist in the 1980s.
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Unit 4 The Drive for Self
Determination: Quebec Nationalism
Study Questions
When you have read the assigned reading and the commentary, test your understanding of
the material by answering the following study questions. You will find it helpful to write out
your answers in full sentences or a brief paragraph. If you have difficulty, review the
relevant material. If you still cannot answer the question, please contact your tutor for
assistance.
1. How has the Canadian state defined and recognized newly mobilized cultural identities?
(McRoberts)
2. How has the Canadian state attempted to accommodate cultural differences?
(McRoberts)
3. How do the concepts of dualism and multiculturalism differ? Why would some say that
the two concepts are incompatible within the Canadian federal system?
4. What makes Quebec’s position within Confederation different from that of the other nine
provinces? (Commentary; Stevenson)
5. a. How has the nature of Quebec’s political economy affected relations between English
and Frenchspeaking residents of the province? (Stevenson)
b. How are language and economic status interconnected in Quebec? (Stevenson)
6. a. What is the compact theory of Confederation? (Stevenson)
b. Which Quebec political leaders have emphasized the compact theory? (Stevenson)
c. How did the compact theory assist the pursuit of defensive nationalism? (Stevenson)
7. a. What was the Quiet Revolution? (Commentary; Stevenson)
b. What social changes are associated with the Quiet Revolution? (Stevenson)
c. What economic changes are associated with the Quiet Revolution? (Stevenson)
d. What political changes are associated with the Quiet Revolution? (Stevenson)
8. How did the Quiet Revolution alter Quebec’s approach to federal provincial relations?
(Bourgault)
9. What gains has Quebec achieved in its relations with the federal government and the
other provinces since 1960? Why has it not achieved more? (Bourgault)
10. What does “special status” mean? What is the difference between de jure and de facto
special status? (Commentary; Stevenson)
11. What is the relationship between Quebec’s language policy and its drive for more
autonomy? (Commentary, Dion)
12. What led some Quebecois to consider the idea of Quebec independence? Was Quebec
separatism a logical consequence of the Quiet Revolution? Why, or why not? (Dion)
13. Why does Quebec feel “rejected” by Canadians outside Quebec? What can be done
about it? (Dion)
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14. Why has Quebec’s influence over Canadian federalism declined in recent years?
(Bourgault)
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Unit 2 Study Guide
Unit 2 Study Guide
Site:
Course:
Book:
Printed by:
Date:
Faculty of Humanities and Social Sciences
POLI 390: Canadian Federalism_ May2010
Unit 2 Study Guide
Sara AlMarashdeh
Monday, 1 October 2018, 8:21 AM MDT
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Table of contents
Overview
Learning Objectives
Part 2.1 Confederation
Part 2.2 The Constitution and the Game of Politics
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Unit 2 The Origins of Canadian
Federalism
Overview
Unit 2 begins a discussion of the historical development of Canadian federalism. To
understand the evolution of the federal system, however, it is first necessary to explore the
creation of Canada’s federal constitution and the original objectives of the Fathers of
Confederation.
Part 2.1 focuses on the factors that pushed the British North American colonies in the
direction of federal union. Part 2.2 explores the distribution of legislative powers in the
Canadian constitution.
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Unit 2 The Origins of Canadian
Federalism
Learning Objectives
When you have completed Unit 2, you should be able to achieve the following learning
objectives.
Part 2.1 Confederation
1. Explain why Confederation is considered the most important political event in the history
of Canada.
2. Outline the nature of economic activity, government, society, and politics in the British
North American colonies before Confederation.
3. Identify and discuss the historical events that led Central Canada and the Maritimes to
consider the idea of a federal union.
4. Outline the arguments advanced in both the Maritimes and French Canada by
proponents and opponents of the Confederation agreement.
5. Describe and critique the process by which Confederation was negotiated and
implemented.
6. Summarize the final terms of the federal union.
7. Identify and discuss the major governmental and political issues left unresolved by the
Fathers of Confederation.
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Part 2.2 The Constitution and the Game of Politics
8. Identify and discuss the criteria used to determine the final distribution of legislative
powers between the federal government and the provinces.
9. Identify and describe the major constitutional powers assigned to the federal government
and the provinces.
10. Discuss how and why the distribution of government powers has changed over time.
11. Compare the different visions of the framers of the Canadian and American
constitutions.
12. Give reasons why the Canadian and American federal systems evolved in such
different ways.
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Unit 2 The Origins of Canadian
Federalism
Part 2.1 Confederation
Reading Assignment
Commentary for Part 2.1.
Chapter 2: “Origins and Objectives of Canadian Confederation,” in Unfulfilled
Union, 5th ed., by Garth Stevenson, pp. 20–42.
Commentary
Confederation is the single most important political event in Canada’s history. Most
Canadians know something about Sir John A. Macdonald and his national dream, yet there
is little real comprehension of exactly why a federal form of government was chosen by the
Fathers of Confederation, how federalism was intended to work, and what written and
unwritten understandings were part of the original Confederation agreement.
What Did Confederation Accomplish?
Confederation accomplished a number of important goals as listed below:
Confederation united three British colonies—Canada, Nova Scotia, and New
Brunswick—into a single political unit, divided the old province of Canada into the
new provinces of Ontario and Quebec, and laid the basis for the inclusion of the
other British North American colonies in the new Dominion of Canada.
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Confederation established an entirely new form of government organization,
grafting federalism onto a British parliamentary system of government.
Confederation provided a better means of managing relations between Canada’s
two founding peoples—the English and the French.
Confederation gave French Canadians living in Quebec their own legislature and
the constitutional powers necessary to preserve the French language and culture.
Confederation reduced the American military threat and laid the basis for
Canada’s future expansion into the prairies and British Columbia.
Confederation made possible the establishment of a transcontinental economy
and the means to promote Canada’s future economic growth.
Finally, Confederation established a principle of sharing both the costs and benefits
of nationhood, a uniquely Canadian approach to governing that stresses the
redistribution of wealth between different regions and provinces.
Confederation, however, did not solve every Canadian problem and the new constitution—
the British North America Act—was far from a perfect document. It failed to accomplish a
number of objectives:
Confederation failed to provide Canada with total independence from Britain. Full
constitutional autonomy came slowly over the next century, and it was not until
1982 that the constitution was finally patriated and a domestic amending formula
was adopted.
Confederation failed to provide Canada with a fully written constitution, leaving
many of Canada’s constitutional practices (including the procedure by which the
BNA Act itself was to be amended) subject to custom and convention.
Confederation failed to create an equal relationship between Frenchspeaking and
Englishspeaking Canadians. Frenchspeaking minorities outside of Quebec
received no constitutional protection. Even within Quebec, Englishspeakers
continued to dominate the economy.
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Confederation did not completely resolve the problem of combining majority rule
with respect for the interests of smaller provinces or regions. In particular, the
Senate proved to be totally ineffective in this regard.
The creation of Canada and the United States can be contrasted in terms of democratic
legitimacy. In the United States, a constitution was drafted, several years after the war of
independence, through the convening of a special constitutional convention of the people’s
delegates. It did not take effect until each of the thirteen original states had approved it. In
Canada, Confederation was a political deal worked out (somewhat unexpectedly) by
political leaders from several British colonies with no specific popular mandate for the
project. The British government used its considerable influence on behalf of the project.
The final agreement was submitted for approval to only one legislature and faced serious
popular opposition in the Maritimes and in Quebec. It was probably supported by most
people in Ontario, while opinion in Quebec and New Brunswick was probably divided. Nova
Scotia was forced into Confederation against the will of most of its people.
PreConfederation British North America
To understand the forces that led the united Canadas, Nova Scotia, and New Brunswick
into federal union, it is necessary to first consider the nature of British North America before
Confederation. Unit 1 pointed out that federalism represents a rather delicate balance, as
previously independent political units must possess some forms of commonality while
striving to preserve and protect certain diversities.
Unfortunately, the assigned reading from the Stevenson text fails to explain fully the distinct
character of the British North American colonies. It is, therefore, useful to review briefly the
situation previous to 1867.
Before Confederation, British North America comprised five separate colonies: Canada
(comprising Canada East and Canada West; or what is now known as Quebec and
Ontario), Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland (the latter
two colonies did not enter Confederation until 1873 and 1949, respectively). In each colony,
responsible government was in its final stage of development. Settlement patterns had
resulted in each colony having its own ethnic and religious mix. The colony of Canada was
united politically, but divided culturally and linguistically between its English and French
speaking populations. Economic activity varied between the Maritime concentration on
wood, wind, and water, and the merchant, manufacturing, and farming operations of
Central Canada. Most important in the context of the midnineteenth century, each colony
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was geographically separate from the others. Communication took place primarily by ship,
and the travel time between colonies was considerable.
Map of PreConfederation British North America
From Canada: Unity in Diversity, by P. G. Cornell, J. Hamelin, F. Ouellet, and M.
Trudel. (Toronto: Holt, Rinehart, and Winston of Canada, Ltd., 1967), p. 234.
Perhaps the best academic study of the Confederation period was carried out by historian
Donald Creighton for the Royal Commission on DominionProvincial Relations (the Rowell
Sirois Commission) in 1939.[1] The final report of the Commission summarized the pre
Confederation situation in British North America as follows:
The Maritimes looked to the sea. They concentrated on their timber and fish, their
shipbuilding and their carrying trade. Their own hinterland and the vast continent behind
them were little in their thoughts. The Canadas had developed a thriving export trade in
timber and wheat. The most active spirits, however, took these outlets for granted and
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faced inward on the continent. For them, the St. Lawrence water system was not so
much a political boundary as a great highway leading into the heart of the continent.
From the beginning, the Canadians had dreamed of a future when a trade of continental
proportions would pour along their highway. The other British colonies had little place in
their plans for the St. Lawrence as one of the great trade routes of the world. And the
concerns of the Red River and the Pacific Coast settlements were entirely foreign to
those of Canada and the Maritimes. The separate preoccupations of the colonies had
led them in opposite directions emphasizing, in social terms, their physical isolation
from one another.[2]
In the context of the nineteenth century, the political union of the British colonies was
viewed almost as improbable as a presentday union between Canada and Australia. The
colonies were not only miles apart, in many respects they were also worlds apart. Although
they shared a common British ancestry and common British political institutions, their
historical and social evolution remained separate and distinct. Strong local identities
predominated. Until the 1850s the idea of political union was never seriously contemplated
by politicians and certainly not by ordinary citizens.
Factors Leading to Confederation
What caused the British North American colonies to think about the idea of a federal
political union? For some federal scholars, Confederation serves as almost a perfect case
study of the creation of a federal state. This situation is well illustrated in the Stevenson
reading. However, before proceeding with the Stevenson text, it is best to pause and review
the material covered in Unit 1.
As was discussed in Unit 1, federalism results from a combination of factors, the most
important of which depends on the specific country and the specific circumstance. The
mostcited explanatory factors for federal union involve:
a desire to preserve cultural or social diversity and recognize and protect group or
community identities.
a desire to promote economic development, reduce the cost of government, or
pool economic risk.
a desire to provide for joint military protection, military expansion, or both.
a desire to fragment government authority and limit the power of the state over a
country’s citizens.
The assigned chapter by Stevenson discusses the social, economic, military, and political
factors that led to Confederation in 1867. Read this chapter carefully, then try to link the
historical material covered by Stevenson to the theoretical discussion in Unit 1. As you
read, jot down information relating to each factor, and then compile four separate lists for
reference and future study.
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In addition to the general factors at play in the 1860s, it is also important to understand the
original objectives of specific regions or colonies when they entered into the Confederation
negotiations. Confederation was a political deal, but what were the objectives of each
Confederation partner? In the case of the Maritimes, strategic, economic, and
transportation concerns tended to predominate. In Central Canada, the overriding problem
related to a changing demographic balance, escalating political instability, and an inability of
existing political institutions to manage FrenchEnglish relations effectively. As Stevenson
suggests, these regional considerations can be closely related to the limited objectives of
particular economic interests operating in the colonies. Thus, Confederation can be
interpreted as the work of the various political and economic élites that dominated the
colonies in British North America.
Negotiating the Confederation Agreement
In developing an understanding of Canadian federalism, the process by which
Confederation was negotiated assumes equal importance with the factors that led to a
consideration of political union. Even today, process appears to be a particularly Canadian
preoccupation.
Intergovernmental discussions on Confederation began unexpectedly in September 1864
when representatives of the Great Coalition dropped in on a Charlottetown conference
called to consider the idea of Maritime union. Interest in the Central Canadian proposal for
a federal union led to further negotiations at Quebec City in November 1864 and a final
drafting session in London in 1866. All negotiations took place in private and no official
record of the deliberations exists today.
Only in the legislature of Canada was the final Confederation agreement put to a vote.
Referring to the deal as a “treaty” and “solemn pact,” Macdonald refused to entertain any
amendments to the new constitutional arrangement for fear that negotiations would have to
begin anew with the Maritime governments. In the cases of Nova Scotia and New
Brunswick, substantial public opposition to the idea of political union (focused primarily in
the port cities of Halifax and Saint John) left the final decision on Confederation in the
hands of the premier and the colonial office in Britain. As Stevenson points out, the concept
of Confederation was never directly put to a vote by the citizens of the colonies. This fact
both denied the federal system democratic legitimacy and, at the same time, established a
longstanding precedent that intergovernmental negotiations should be carried out without
public consultation and input.
A number of political tradeoffs underlay the final Confederation settlement. These trade
offs are implied, but not clearly outlined, in the Stevenson reading.
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The federal government’s powers related to the great matters of the day: military defence,
nationbuilding and territorial expansion, and economic development. Provincial powers
related to local concerns, matters that were primarily church (not government)
responsibilities, and activities basic to the cultural and linguistic preservation of the English
and Frenchspeaking communities.
In entering into negotiations, Sir John A. Macdonald showed a decided preference for what
he called a “legislative union” (in other words, a unitary system of government). This view
was inspired by Macdonald’s negative assessment of the American federal system and by
his desire for a strong government capable of forging a national economy and pursuing
westward expansion. Opposition from Quebec members of the Great Coalition and from
New Brunswick and Nova Scotia delegates at the Quebec Conference necessitated a
pragmatic compromise. While Macdonald finally accepted a federal system of government,
it was one in which the cards were decidedly stacked in favour of the federal government in
Ottawa. Among the special quasifederal powers assigned to the federal government were:
the right to legislate in all matters relating to “peace, order, and good government
of Canada”
the right to raise money by any “mode or system of taxation”
the right to appoint the judges to the most important courts in each province
the right to assume control of “works for the general advantage of Canada”
the right to appoint LieutenantGovernors in the provinces and instruct these
LieutenantGovernors to withhold royal assent to provincial legislation, or “reserve”
it for a final decision by the federal government
the right to disallow provincial legislation within one year of its passage
The gains for the Maritimes were mostly economic. Terms of the Confederation settlement
included the assumption of existing colonial debts by the new central government and the
guaranteed construction of the Intercolonial Railway to link the Maritimes to markets in
Central Canada. An additional concession involved creating an appointed Senate
apportioned on the basis of equal regional representation. This concession was intended to
offset, at least in part, the political power of Central Canada in the new House of Commons.
Confederation provided French Canadians with their own government in the Province of
Quebec and constitutional jurisdiction over matters relating to language, culture, religion,
and education. Special constitutional guarantees protected existing religious school
systems, Protestant as well as Catholic, and Quebec kept its system of French civil law.
French and English were to be the official languages of the federal parliament, the federal
courts, and the legislature and courts of Quebec, but bilingualism was not provided for in
the other provinces. This duality was intended to provide both linguistic minorities (the
English in Quebec and the French in the rest of the country) a limited form of constitutional
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protection. However, much of the tension between English and Frenchspeaking
Canadians since 1867 has revolved around a continuing debate concerning the adequacy
of these constitutional provisions.
Notes on Terms
The Act of Union: The 1841 act of the British parliament that united the colonies of Upper
and Lower Canada into a single political unit (Canada) and two administrative units
(Canada East and Canada West). Representation in the new legislature was evenly divided
between the predominately Englishspeaking Canada West and the predominately French
speaking Canada East, despite the fact that the majority of the population lived in Canada
East.
British North America Act: The act of the British parliament that united the colonies of
British North America and outlined Canada’s federal form of government. In 1982 the ability
to alter this document was “patriated” to Canada and the document was renamed The
Constitution Act.
compact theory: A historical interpretation of Confederation that sees federal union as the
product of a contractual agreement among provincial governments, or among the two
founding peoples. According to the compact theory of Confederation, constitutional change
can only take place with the unanimous agreement of the original Confederation partners.
constitution: A constitution is a document that contains “the rules of the political game.” Put
more formally, it is the set of fundamental laws, customs, and conventions within which
government is exercised in a state. Federalism requires a formal written constitution with
the division of powers clearly spelled out in a single document.
constitutional convention (constituent assembly): A constitutional convention is a meeting of
delegates expressly selected to formulate a constitution, or to amend the existing one. In
the summer of 1787 the Americans held such a meeting in order to draft a new constitution.
This meeting was followed by a process of ratification by the states.
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The Durham Report: The Durham Report is named after its author, Lord Durham. In the
aftermath of the rebellions of 1837 in Central Canada, Durham recommended the granting
of responsible government, but he linked it to the political unification of Upper and Lower
Canada. The intent of this action was to speed the assimilation of French Canadians into
the EnglishCanadian population. The Durham Report was published in 1839 and laid the
basis for the Act of Union of 1841.
The Great Coalition: The Great Coalition was formed in the legislature of the United
Canadas in 1864. The coalition brought into a single government the leaders of the three
largest political parties—John A. Macdonald of the Conservatives, GeorgesEtienne Cartier
of the Parti Bleu, and George Brown of the Grits. The aim of the coalition was to end the
political deadlock in Central Canada and create a new political entity encompassing all the
British North American colonies.
Grits: This is the popular name given to the progressive members of the Upper Canadian
Reform Party (the forerunner of the presentday Liberal Party). The strength of this party lay
with the socalled “agrarian radicals” of Southwestern Ontario. George Brown, one of the
Fathers of Confederation, led most of the Grits (or Clear Grits as they were also called) into
the Great Coalition of 1864.
legislative union: This was Sir John A. Macdonald’s preferred system of government.
Essentially, legislative union is another term for a unitary system of government, such as
England and Scotland shared after 1707.
Parti Bleu: This moderately conservative, churchsupported party was led by George
Etienne Cartier. The Parti Bleu was the FrenchCanadian equivalent of the Conservative
Party in Canada West and a frequent coalition partner with Sir John A. Macdonald. After
Confederation, the Parti Bleu formally merged into Macdonald’s national Conservative
Party.
Parti Rouge: The Parti Rouge represented the more radical stream of political thought in
French Canada. Its leader, A. A. Dorion, vigorously opposed the Confederation scheme of
Macdonald and Cartier. After Confederation the Parti Rouge merged with the Clear Grits of
Ontario to form the Liberal Party of Canada.
quasifederal powers: A group of special constitutional powers assigned to the federal
government that allow it to modify, displace, or influence provincial jurisdiction through
unilateral action.
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Quebec Resolutions: These were the product of the Quebec Conference of November
1864. This conference brought together the representatives of the Great Coalition, Nova
Scotia, New Brunswick, Prince Edward Island, and Newfoundland for a formal discussion of
the concept of federal union. The seventytwo Quebec Resolutions outlined in draft form
the government system that was eventually embodied in the British North America Act.
reciprocal trade agreement or reciprocity: The name given to the free trade agreement
between the United States and the British North American colonies. This arrangement went
into force in 1854 and was ended by the United States in 1866. The termination of the
Reciprocity Treaty, coupled with British ending of imperial trading preferences, encouraged
the Maritimes to look to Central Canada for new markets for their fish, lumber, and coal.
rep by pop: The determination of representation in the legislature based on the size and
distribution of the population.
responsible government: The constitutional principle (associated with a British
parliamentary system of government) that the executive should be elected and remain in
office only as long as it can enjoy the support of the legislature.
Study Questions
When you have read the assigned reading and the commentary, test your understanding of
the material by answering the following study questions. You will find it helpful to write out
your answers in full sentences or a brief paragraph. If you have difficulty, review the
relevant materials. If you still cannot answer the question, please contact your tutor for
assistance.
1. What is the political significance of Confederation? (Commentary;
Stevenson)
2. What other political events were happening throughout the world when
Canadians first began to consider a federal union? (Stevenson)
3. a. How did the economies of the British North American colonies differ
before Confederation? (Commentary)
b. What evidence is there (if any) of the existence of a federal society
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before the establishment of a federal government in British North
America? (Commentary)
4. a. What political crisis confronted Central Canada in the late 1850s and
early 1860s? (Stevenson)
b. What political options were considered in an effort to alleviate the
crisis? (Stevenson)
c. Why were the members of the Great Coalition attracted to the concept
of federal union and territorial expansion? (Stevenson)
5. What caused the Maritimes to consider the idea of political union with
Central Canada? (Stevenson)
6. a. Which economic interests endorsed the concept of political union?
(Stevenson)
b. What did these economic interests hope to gain from Confederation?
(Stevenson)
7. a. What type of political arrangement was Sir John A. Macdonald’s first
preference? (Commentary; Stevenson)
b. What caused Macdonald to alter his position? (Commentary;
Stevenson)
8. What did the Maritime region gain from Confederation? (Commentary;
Stevenson)
9. What did the French-Canadian population gain from Confederation?
(Commentary)
10. Who opposed the Confederation settlement? What formed the basis of
this opposition? (Stevenson)
11. According to the 1867 constitution, what was to be the position of the
federal government and what was to be the position of the provinces in
the Canadian federation? (Stevenson)
12. How did this arrangement conform to the standard definition of a federal
system of government? (Stevenson)
13. What are the quasifederal powers held by the federal government?
(Commentary; Stevenson)
14. What was missing from the 1867 constitution? (Commentary)
15. What important political issues were left unresolved by the Fathers of
Confederation? (Stevenson
16. Why did the Confederation settlement lack democratic legitimacy?
(Commentary; Stevenson)
17. What was wrong with the process by which Confederation was
negotiated? (Stevenson; Commentary)
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[1]
See D. G. Creighton, British North America at Confederation (Ottawa: The King’s
Printer, 1939).
[2]
Quoted from The RowellSirois Report/Book I, D. V. Smiley, ed. (Toronto:
McClelland and Stewart, 1963), p. 10.
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Unit 2 The Origins of Canadian
Federalism
Part 2.2 The Constitution and the Game of Politics
Reading Assignment
Commentary for Part 2.2.
Appendix 1: “Constitution Act, 1867,” in Unfulfilled Union, 5th ed., by Garth
Stevenson, pp. 287–295.
Commentary
Central to any federal system is a division of legislative powers entrenched in a written
constitution. A knowledge of the federal division of powers is therefore essential to the
study of Canadian federalism and the actions of political leaders. The division of powers
determines (at least formally) the nature of the federal system and the balance of power
between the two levels of government and thus the relative power of various political
actors. It should be considered analogous to a “program,” spelling out the positions of the
“players” in the federalprovincial “game.”
The original distribution of powers established at the time of Confederation is outlined in the
abridged version of the Constitution Act, 1867, found in Appendix 1 of the Stevenson text.
When examined more than one hundred years after Confederation, and from the
perspective of someone without legal training, the division of powers can prove difficult to
read. The terminology is complicated, and few of the enumerated headings appear to
translate easily into the presentday functions of government. To make things even worse,
the distribution of legislative responsibilities contained in the Canadian constitution has
undergone informal change over the years. Rather than federal and provincial powers
being isolated in watertight compartments, circumstances have caused jurisdictions to
become entangled, with both levels of government sharing responsibility for some aspects
of government operation.
The main task in reviewing the Constitution Act is to sort out federal and provincial
responsibilities in terms of the different functions performed by governments. One criterion
that was used to determine the distribution of legislative powers in Canada is the concept of
“externalities.” Simply put, an externality is a spillover, or overlap. The avoidance of
externalities serves as one of the criteria that have determined the distribution of legislative
powers in Canada. As a general rule, governments should not be given powers that easily
allow them to affect the residents of other constituent units. In Canada’s case, the
avoidance of externalities justifies federal control of matters that affect two or more
provinces: for example, interprovincial transportation, money and banking, or interprovincial
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trade. Similarly, in Canada it is generally accepted that citizens living in different areas of
the country should be allowed freedom of choice in policy areas that are “local or private in
nature.”
To ensure that the federal government would maintain its dominant position, the framers of
the Canadian constitution included a number of provisions that centralized political power in
Ottawa. The first was the power of reservation. This provision allows the Lieutenant
Governor of any province to pass on to the federal government the responsibility of giving
or refusing assent to provincial legislation. The second provision, the power of
disallowance, allows the federal cabinet to annul any piece of provincial legislation within
one year of its passage. The third provision, declaratory power, allows the federal
parliament to pass legislation proclaiming a local work or undertaking “for the general
advantage of Canada.” This enables the federal government to regulate various physical
entities, such as canals and uranium mines, in the national interest even if they fall within
the boundaries of a province.
Disallowance and reservation were used frequently in the early years of Confederation,
particularly on western Canadian legislation. Often the mere threat of invoking this power
was enough to pressure recalcitrant provinces to toe the federal government line. As the
power of the provinces has increased, the legitimacy of the federal government to use
these provisions has decreased. Disallowance has not been used since 1943; reservation
was last used in 1961.
It is interesting to note that while the framers of the American and Canadian constitutions
had diametrically opposed goals, both federal systems ended up developing in the exact
opposite direction that their framers had intended. These systems are a fascinating study of
contrasts because their historical development is so different. Remember to use the study
questions to guide your reading. A more detailed explanation of the evolution of Canadian
federalism follows in later units.
Notes on Terms
concurrent powers: Legislative responsibilities that are assigned by the constitution to both
levels of government. In Canada’s case, immigration, agriculture, pensions, and the export
of natural resources are designated matters of concurrent jurisdiction.
constitution: A constitution is a document that contains the “rules of the political game.” Put
more formally, it is the set of fundamental laws, customs, and conventions providing the
framework within which government is exercised in a state. Federalism requires a formal
written constitution with the division of powers clearly spelled out in a single document.
The Constitution Act: Canada’s core constitutional document (known until 1982 as the
British North America Act).
declaratory power: This quasifederal power allows the federal parliament to pass
legislation declaring a local work to be “for the general advantage of Canada.” This power
enables the federal government to regulate various physical entities in the national interest.
disallowance: This quasifederal power allows the federal cabinet to annul any piece of
provincial legislation within one year of its passage. Disallowance was used frequently in
the early years of Confederation, but has not been used since 1943.
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enumerated powers: An enumerated power (or heading) is an area of government authority
assigned exclusively to one government, or the other, or both, by the constitution. The
enumerated powers in the Canadian constitution can be found in Sections 91 through 95 of
the Constitution Act.
externalities: Externality is a word often used in the study of economics. Simply put, it
means spillover or overlap. Stevenson notes that the avoidance of externalities serves as
one of the criteria that have determined the distribution of legislative powers in Canada. As
a general rule, governments should not be given powers that easily allow them to affect the
residents of other constituent units. In Canada’s case, the avoidance of externalities
justifies federal control of matters that affect two or more provinces; for example,
interprovincial transportation, money and banking, or interprovincial trade.
paramountcy: The designation of which government takes precedence should federal and
provincial laws conflict in concurrent areas of responsibility. In Canada, the federal
government possesses paramountcy in the areas of immigration and agriculture, and in the
export of natural resources. Provinces possess paramountcy in the administration of
pensions.
reservation: This constitutional provision allows the LieutenantGovernor of any province to
evade the responsibility for giving or refusing royal assent to provincial legislation by
sending a provincial statute to the federal government for the latter to decide its fate. This
quasifederal power has not been invoked since 1961.
residual power: The provision of the constitution assigning to the federal government all
legislative matters not specifically mentioned in the enumerated headings.
Study Questions
When you have read the assigned reading and the commentary, test your understanding of
the material by answering the following study questions. You will find it helpful to write out
your answers in full sentences or a brief paragraph. If you have difficulty, review the
relevant material. If you still cannot answer the question, please contact your tutor for
assistance.
1. How is responsibility for a given policy area determined?
2. Which level of government possesses constitutional authority over each of the following
matters? (Constitution Act)
paying price supports to prairie wheat farmers
setting doctor’s fees
the settlement of political refugees
awarding oil leases
limiting automobiles imported from Japan
setting telephone rates
old age pension payments
television broadcasting
financial institutions
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industrial relations
consumer protection
criminal law
the incorporation of companies
the construction of a new pulp and paper plant on a major inland waterway
taxing gasoline and cigarettes
university education
unemployment insurance
the sale and consumption of alcohol
3. Would it be possible and/or desirable to return to the type of federalism that the Fathers
of Confederation envisioned in the 1860s? Why, or why not? (Commentary)
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Unit 7 - Study Guide
Unit 7 Study Guide
Unit 7 Study Guide
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Course:
Book:
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Date:
Faculty of Humanities and Social Sciences
POLI 390: Canadian Federalism_ May2010
Unit 7 Study Guide
Sara AlMarashdeh
Monday, 1 October 2018, 8:24 AM MDT
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Unit 7 - Study Guide
Table of contents
Overview
Learning Objectives
Reading Assignment
Commentary
Notes on Terms
Study Questions
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Unit 7 The Courts and Judicial Review
Overview
To date, our examination of Canadian federalism has been primarily historical. Unit 2
reviewed the origins of the Canadian federal system. Unit 3 moved on to explore the
general tendency toward a more decentralized federal system that developed in the years
after Confederation. Units 4 and 5 explored the impact of Quebec nationalism and the
desire of Aboriginal peoples for selfgovernment on Canadian federalism. Unit 6 analysed
the events surrounding the patriation of the Canadian constitution and subsequent
constitutional negotiations.
Unit 7 changes the level of analysis. Unit 7 focuses on the daytoday operation of the
federal system and the institutions that manage conflict between the federal government
and the provinces, beginning with a discussion of the judiciary and the role of the courts in
interpreting the division of powers.
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Unit 7 The Courts and Judicial Review
Learning Objectives
When you have completed Unit 7, you should be able to achieve the following learning
objectives.
1. Describe what judicial review involves, and give reasons why it is necessary in a federal
system of government.
2. Identify the major constitutional rulings of the Judicial Committee of the Privy Council,
and discuss the significance of these rulings.
3. Identify the major constitutional rulings of the Supreme Court of Canada, and discuss the
significance of these rulings.
4. Assess the charge that the Supreme Court of Canada is biased toward the federal
government in its interpretation of the constitution.
5. Evaluate the current proposals for the reform of the Supreme Court of Canada.
6. Define the concept of the rule of law, and explain how it justifies judicial action.
7. Discuss the discretionary role the Court has in interpreting the constitution.
8. Discuss how liberal ideology (the protection of individual rights) colours judicial
interpretation.
9. Describe the tension between judicial activism and judicial restraint with respect to
interpreting the constitution.
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Unit 3 - Study Guide
Unit 3 Study Guide
Unit 3 Study Guide
Site:
Course:
Book:
Printed by:
Date:
Faculty of Humanities and Social Sciences
POLI 390: Canadian Federalism_ May2010
Unit 3 Study Guide
Sara AlMarashdeh
Monday, 1 October 2018, 8:22 AM MDT
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10/1/2018
Unit 3 - Study Guide
Table of contents
Overview
Learning Objectives
Reading Assignment
Commentary
Centralization and Decentralization
The Longterm Trend
Explanations for Canada’s Evolution
The ProvinceBuilding Debate
Notes on Terms
Study Questions
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Unit 3 Regionalism and Province
Building
Overview
Unit 3 continues the discussion from Unit 2 of changes in the responsibilities of the federal
and provincial governments. The level of analysis broadens in this unit, however, focusing
on the shifting balance of power within the Canadian federal system instead of on specific
government activities.
All federal systems possess a certain dynamic quality. As political institutions change and
adapt to new circumstances, the original alignment of political forces that produced a
federal union may be altered by events and forces totally unforeseen by that country’s
founders.
In Canada’s case, the federal system has evolved through various periods of centralization
and decentralization. The study of Canadian federalism, therefore, requires both a
knowledge of these periods and an explanation of the gradual erosion of federal dominance
over the provinces. Conflicts between different economic classes, strong regional
sentiments among the Canadian population, and “provincebuilding” are often cited as
factors that have contributed to a weakening of the federal government’s position. A fourth
factor, Quebec nationalism, will be examined separately in Unit 4.
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Unit 3 - Study Guide
Unit 3 Regionalism and Province
Building
Learning Objectives
When you have completed Unit 3, you should be able to achieve the following learning
objectives.
1. Identify and discuss distinct periods of centralization and decentralization in
Canadian history.
2. Discuss how Canada’s political evolution differs from that of most other federal
states.
3. Identify and critique the various theories that have been put forth to explain the
economic underdevelopment of the Atlantic region.
4. Discuss how economic underdevelopment in the four Atlantic provinces has
conditioned their response to federal government initiatives and shaped their approach
to federalprovincial relations.
5. Describe how the parliamentary system of government constrains the expression of
regional differences and regional discontent.
6. Describe how the failure of intrastate federal institutions to provide adequate
representation to regional interests led to the growing emphasis on interstate
federalism.
7. Discuss how and why Canadian regional development policies evolved the way they
did.
8. Describe how globalization will affect the political economy of Canada’s regions.
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Unit 3 Regionalism and Province
Building
Reading Assignment
Commentary for Unit 3.
Chapter 4: “The Political Economy of Decentralization,” in Unfulfilled Union, 5th
ed., by Garth Stevenson, pp. 72–93.
Reading 1: “The Atlantic Region: The Politics of Dependency,” by Donald J.
Savoie, in the Reading File.
Chapter 13: “Regional Development : A Policy for All Seasons and All Regions,”
by Donald J. Savoie, in New Trends in Canadian Federalism, 2nd ed., edited by
Rocher and Smith, pp. 353–374.
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Unit 3 Regionalism and Province
Building
Commentary
A constitution provides a framework for the operation of a federal system of government.
Even so, the original allotment of government responsibilities can change both formally and
informally through time. The balance of power within a federal system, therefore, is
constantly in flux, and it is this dynamic quality of federalism that makes governing difficult.
Those constitutions and political systems that can adapt to change tend to endure for long
periods of time; those that cannot are often discarded into the dustbin of history.
In terms of stability and longevity, the Canadian federal system compares quite favourably
to most other countries. The Canadian federal state has been in existence for 140 years
now; only the United States and Switzerland have had federal governments for longer than
that. Canada has not had any breakdown in its political regime, and there have been few
serious threats to the legitimacy of Canadian government institutions. This is not to say,
however, that Canadian federalism today is the same governmental arrangement
envisioned by John A. Macdonald and the other Fathers of Confederation in 1867! The
Canadian federal system has, of necessity, evolved and responded to new conditions and
political crises.
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Unit 3 Regionalism and Province
Building
Centralization and Decentralization
At times, the balance of forces within Confederation has favoured the federal government
in Ottawa—known as periods of centralization. Periods of decentralization refer to those
times in which the power and influence of the provinces have increased relative to those of
the federal government. The literature in Canadian political science identifies several
historical periods in which the federal system has shifted between extreme political
centralization and varying degrees of political decentralization.
Perhaps the best description of the historical evolution of Canadian federalism is found in
the writings of James Mallory. In an oftenquoted essay, entitled “The Five Faces of
Federalism,”[1] Mallory identifies four periods of centralization: (1) the Macdonald era (1867
to approximately 1890), when the quasifederal powers of the federal government were
used quite often; (2) World War I; (3) World War II, when the imperative of defending the
country in time of national emergency made the division of powers virtually meaningless;
and (4) the immediate period following World War II (1945 to about 1960), when federal
spending power was used extensively to erect the Canadian social welfare state.
Periods of decentralization were linked by Mallory to the socalled “provincial rights era”
(1890–1914) and the interwar years (the 1920s and 1930s), when the Judicial Committee
of the Privy Council consistently favoured the provinces in its interpretation of the
constitution; and the post1960 period, when demands for constitutional reform and greater
jurisdictional autonomy emanating from Quebec caused a reexamination of the roles of
both levels of government. Since the publication of the Mallory article, the decentralist trend
in Canadian federalism has continued with little interruption, fuelled by the demands of
Quebec and by the increasingly aggressive actions of some western Canadian provinces,
most notably Alberta and British Columbia.
How far has the current round of political decentralization gone? This situation is almost
impossible to assess, despite the oftenmade assertion that Canada possesses the most
decentralized federal system in the world. There is no easy way to measure the exact
degree of centralization and decentralization found in a federal state. Economists often look
to tax revenue and government spending as indicators of one government’s dominance
over the other.[2] Constitutional jurisdiction is only meaningful if a government possesses
the funds necessary to fulfil its responsibilities. There are few taxing and spending fields in
which the Canadian federal government possesses exclusivity.[3] Does this fact reveal a
decentralized federal state? Yes, on one level it does, but federalism is a complicated
system that works on many levels simultaneously. Viewing federalism in terms of a giant
pendulum swinging back and forth does not always conform to reality. For example, it is
possible for a government to compensate for a loss of financial autonomy through the use
of its regulatory powers or some other policy instrument. In the end, everything could simply
cancel out. In the study of federalism, nothing is as simple as it appears at first glance!
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Figure 3.1 The Evolution of Canadian Federalism 1867 to the Present
1
See J. R. Mallory, “The Fives Faces of Federalism,” in J. Peter Meekison, ed., Canadian
Federalism: Myth or Reality, 2nd ed. (Toronto: Methuen, 1971), pp. 55–65.
2
For an example of an economic analysis of the centralization/decentralization issue,
see T. J. Courchene, Economic Management and the Division of Powers (Studies of
the Royal Commission on the Economic Union and Development Prospects for
Canada, #67, Toronto: University of Toronto Press, 1986), Chapter 2. For a
discussion of the limitations of measuring the degree of economic decentralization in
a federal state, see R. M. Bird, “Federal Finance in Comparative Perspective,” in
David Conklin, ed., Ottawa and the Provinces: The Distribution of Money and
Power (Toronto: Ontario Economic Council, 1985), pp. 137–177.
3
G. Stevenson, “The Division of Powers,” in R. D. Olling and M. W. Westmacott, eds.,
Perspectives on Canadian Federalism (Scarborough: Prentice-Hall Canada Inc.,
1988), pp. 35–60.
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Unit 3 Regionalism and Province
Building
The Long-term Trend
Venturing opinions on the relative degree of centralization or decentralization in Canada
today can be an extremely imprecise exercise. Predicting the future evolution of Canadian
federalism is almost as foolhardy. Stepping back and using historical hindsight can produce
meaningful observations, however. In Canada’s case the longterm trend is clear (see
Figure 3.1). We are a much more decentralized federation today than when we started out
in 1867. While power has shifted from the federal government to the provinces, and back
again, the balance sheet clearly favours the provinces. John A. Macdonald’s famous
prediction that provincial governments would eventually wither and die has not been
fulfilled. Today, provinces are important and powerful actors in the Canadian federal
system.
What is interesting about the Canadian experience is that it runs directly counter to the
situation in almost all other federal states. During the post World War II era the role of the
national government increased considerably in some countries, notably the United States
and Australia.[1] This situation is normally attributed to such factors as the development of
the modern social welfare state, the application of Keynesian economics, a desire to create
a national industrial policy, and the technological revolution in transportation and
communication. But what makes Canada different? What has caused political centralization
throughout the world and political decentralization in our own federal state?
[1]
T. O. Heuglin, “Federalism in Comparative Perspective,” in R. D. Olling and M. W.
Westmacott, eds., Perspectives on Canadian Federalism (Scarborough: Prentice-Hall
Canada Inc., 1988), pp. 16–32.
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Unit 3 Regionalism and Province
Building
Explanations for Canada’s Evolution
Perhaps the most difficult problem confronting students of Canadian politics is that of
providing an adequate explanation of the longterm attenuation of federal power.
Explanations of the evolution of Canadian federalism fall into four distinct schools of
thought focusing on: aspects of political economy, Canada’s regional character, province
building, and the influence of Quebec nationalism.
Writings in political economy stress the changing nature of the national economy, divisions
within various “class fractions,” and the shifting loyalties of different economic interests. An
example of this class analysis of the evolution of the Canadian federal system is found in
the assigned reading for this unit from the Stevenson text.
The second explanation of the evolution of Canadian federalism is sociological, and relates
to the nature of Canada’s federal society. Here the focus is placed on regionalism and on
the strong identification of Canadian citizens with the particular geographic area in which
they reside. Richard Vernon argues that in a federal system the loyalty of citizens is divided
between two different governments.[1] Should there be a shift in public sentiment,
identifying more with one government than another, then it is possible to envision a loss of
political legitimacy for a particular government and a change in the balance of power within
the federation.
Many observers argue that Canadians possess strong regional attachments. Historian J. M.
S. Careless, for example, has observed that Canadians define themselves primarily in
terms of “limited identities.”[2] According to this view, we see ourselves, first and foremost,
as members of distinct regional and provincial communities united under a federal system
of government. Careless argues that regional sentiments have long held prominence in
Canada (beginning well before Confederation) and today stand at the core of Canadian
national identity. This view coincides closely with former Prime Minister Joe Clark’s famous
description of Canada as a “community of communities.”
During the 1970s, several Canadian political scientists attempted to gather more scientific
evidence concerning the regional orientation of Canadians. They conducted a number of
public opinion surveys in conjunction with the National Election Study of 1974 and, later,
the 1977–79 deliberations of the Task Force on Canadian Unity.[3] Their findings are
extremely interesting. When asked to make a choice about primary identification, an
overwhelming number of those surveyed, outside of Quebec, saw themselves first and
foremost as “Canadians.” Yet, at the same time, the majority of the population (and
particularly those people living in the eastern and western peripheries) revealed a tendency
to see Canada as a composite of distinct regions and provinces, and themselves as
residents of these distinct regions or provinces. When asked to indicate which level of
government felt “closer” and had a greater “effect” on their daily lives, provincial
governments held a clear advantage in all cases except Ontario.
What are we to make of the polling data? Clearly, there is support for the Careless view that
Canadians define themselves in terms of “limited identities.” However, the idea of a region
seems to mean different things to different people. Some people identify with a local
geographic area (e.g., the Niagara region in Ontario), others see their region comprising a
combination of several provinces (e.g., the Canadian West or the Maritimes), and still
others view region and province as synonymous.
It must also be remembered that most of the polling data concerning regional
consciousness was assembled during a single decade. No systematic and scientific
sampling of regional sentiment was carried out before the 1970s and none has taken place
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in the past several years. It is impossible, then, to prove any sort of trend. Did Canadians
think more in regional terms in 1974 than during the Depression or during John A.
Macdonald’s time? Has regional sentiment increased or decreased in the aftermath of the
patriation of the Canadian constitution in 1982? If it has increased, has it been at the
expense of a larger sense of Canadian nationalism? Lacking the appropriate data gathered
across time, it is simply impossible to offer a definitive opinion.
Further complicating the situation is the fact that the data reveals the impact of regionalism
as lacking uniformity across the population. Analysing the results of the 1974 National
Election Study, the team of Clark, Jensen, LeDuc, and Pammett concluded that ”regional
consciousness is highest among Canadians who are young, more highly educated, better
off, Englishspeaking, from metropolitan areas and smaller cities, uppermiddle class in
identification and geographically mobile.”[4] Essentially, regionalism impacts the greatest on
upperlevel socioeconomic groups—the country’s political and economic elite—while only
weakly or moderately affecting the mass of the population. The political importance of
regionalism increases when regional consciousness is first linked to a shared sense of
injustice (or historical grievance) and then given shape and focus by provincial political
leaders. According to Richard Simeon, the implications for the federal system can be great:
At the elite level, federalism . . . [confers] leadership on a set of leaders in provincial
governments who have vested interest in maintaining and strengthening the salience of
the regional dimension. The provincial governments do more than just respond to
demands from their populations. First, they respond to some groups more than others;
and, more important, they have, as complex organizations in their own right, certain
bureaucratic needs, especially the need to gain power, to enhance their status, and to
maintain their political support. So, of course, has the federal government. This is the
truth behind the common observation that somehow the interests of the public get lost
in federalprovincial discussions. Thus to maintain support, a provincial government is
motivated to accentuate the degree of internal unity, and to exaggerate the extent of
difference with Ottawa, and to divert political conflict onto an external enemy. They are
likely to stress issues in such a way that their internal divisions are minimized, and to
stress most those issues on which there is least internal disagreement. They are also
less likely to be concerned with the substance of issues, and more likely to be
concerned with those aspects of an issue with the greatest importance for them as
governments. They are less concerned with what is done than with questions like who
does it and who gets credit. One does not need to assume that provincial leaders are
foolish or evil, or that each will pursue the same policies. One simply has to recognize
the importance of certain wellknown characteristics of organizational behaviour. In this
sense the interests of a provincial government are quite different conceptually from the
interests of the residents of the province.[5]
[1]
R. Vernon, “The Federal Citizen,” in Olling and Westmacott, Perspectives on
Canadian Federalism, pp. 3–15.
[2]
J. M. S. Careless, “ ‘Limited Identities’ in Canada,” Canadian Historical Review
50, no. 1 (1969): 1–10.
[3]
For a summary and interpretation of the 1974 polling results see H. D. Clarke, J.
Jenson, L. LeDuc, and J. H. Pammett, Political Choice in Canada (Toronto: McGrawHill Ryerson, 1980). Another interesting discussion of regional political attitudes can
be found in Small Worlds: Provinces and Parties in Canadian Political Life, D. J.
Elkins and R. Simeon, eds. (Toronto: Methuen, 1980).
[4]
Clarke, Jenson, LeDuc, and Pammett, Political Choice in Canada, p. 37.
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[5]
R. Simeon, “Regionalism and Canadian Political Institutions,” in J. Peter
Meekison, ed., Canadian Federalism: Myth or Reality (Toronto: Methuen, 1977), pp.
301–302. Used by permission, Nelson Canada.
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Unit 3 Regionalism and Province
Building
The Province-Building Debate
Simeon’s observations point to the longstanding difficulty of sorting out the interrelationship
between federal government and federal society. In Canada, provincial governments “are
not simply the outgrowth or products of the environment and . . . they are not just
dependent variables in the political system. They can also be seen as independent forces,
which have some effects of their own: once established, they themselves come to shape
and influence the environment.”[1] The end result is the longterm enhancement of
provincial political and bureaucratic competence leading to an increase in the power and
prestige of the “provincial state” and greater federalprovincial competition over the
“legitimization” functions of government. The expansive and manipulative actions of
provincial governments are often cited as a third factor influencing the development of the
Canadian federal system.
In an influential article published in 1977, Alan Cairns introduces a more thorough and
comprehensive discussion of the theory of “provincebuilding” that analyses the interplay of
social and institutional forces within the Canadian federal system.[2] According to Cairns,
the evolution of the Canadian federal system is largely a reflection of a conscious attempt
on the part of provincial political leaders and provincial government bureaucracies to
expand their personal power and prestige at the expense of the federal government in
Ottawa. Not surprisingly given the explanations for Canada’s evolution provided earlier in
this commentary, not all students of Canadian federalism agree with Cairns’s analysis. An
essay published in 1984 by Young, Faucher, and Blais provides a critical review of the
fundamental assumptions underlying the provincebuilding theory and thus stands as an
important counterpoint to Cairns.[3] Even the most appealing explanatory theories need to
be examined carefully and, where necessary, challenged and debated. This is the essence
of academic study.
Federalism and Regionalism
One of the enduring features of the Canadian federal system is its distinct “regions.” The
concept of “region” is less arbitrary than that of a province, in that regions are typically
defined by enduring geographic and sociocultural characteristics. Unfortunately, no
consensus is found within the academic literature as to what variables should be used to
demarcate the boundaries of a region. Geographers differentiate regions on the basis of
physical features, such as landforms, climate, and vegetation. Sociologists define a region
by reference to linguistic and cultural communities. Economists often identify a region with
the existence of major economic growth centres within a nationstate. In political science,
regions are most often defined by the existence of political boundaries.
The regions in the “centre” of the country coincide with provincial boundaries (e.g., Quebec
and Ontario). In the case of the regions beyond the “centre,” the concept of “region”
comprises a clustering of provinces or territories. Although British Columbia has sometimes
been grouped with the Prairie provinces, convincing arguments have been made that its
distinct geographical, social, and economic circumstances warrant that British Columbia be
considered a region unto itself. The same could perhaps be said for Alberta, which has
much less in common with Saskatchewan and Manitoba today than it did fifty or a hundred
years ago.
The notion of “region” is important in discussing Canadian federalism, as tensions between
the subunits in the Canadian federal system increasingly play out along regional lines. The
primary regional tensions are between “the centre” and “the periphery” and between the
predominantly francophone region of Quebec and the anglophone regions of the country.
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The tension between the francophone and anglophone regions of the country is discussed
in Unit 4; the tension between centre and the peripheries is the focus of the remainder of
this unit.
“Atlantic Canada” is an artificial concept since Newfoundland and Labrador (a separate
country until 1949) is quite different from the other three eastern provinces and traditionally
had little contact with them. Nonetheless, all four Atlantic provinces are sparsely populated,
far from major markets, and subject to the vicissitudes of a resourcebased economy.
Unlike other parts of Canada, they have received few immigrants in the last hundred years.
The Atlantic provinces concern themselves most with chronically high rates of
unemployment and the region’s lack of economic diversity. However, the capacity of
Atlantic Canada to devise its own economic development strategies is rather limited. The
first assigned reading by Donald Savoie attempts to explain why this is so.
The Savoie article is interesting because of its analytical approach. Working within the
framework of dependency theory, Savoie concludes that the Atlantic region’s heavy
reliance on federal fiscal transfers and bureaucratic expertise has seriously undermined the
ability of provincial governments to take independent action or to challenge federal program
initiatives. The Atlantic region has no provincial economic programs, only federal economic
programs provincially administered. As Savoie notes “federal costsharing permeates every
policy field, and every government department and agency concerned with both social and
economic development.”[4]
In the Atlantic region, fiscal, administrative, and political realities dictate a cautious and
pragmatic approach toward dealings with the federal government. As Savoie points out, the
positions adopted by the Atlantic provinces are often contradictory. On the one hand,
political leaders argue that a major reason for the region’s underdevelopment lies with the
discriminatory and poorly formulated policies and programs of the federal government. On
the other hand, the region is profoundly centralist, preferring the maintenance of a strong
central government armed with an array of policy tools and financial resources capable of
alleviating regional economic disparities.
Of course, the recent tendency of Newfoundland and Labrador to chart its own distinct
course in questions of economic development somewhat contradicts Savoie’s dependency
thesis. In the case of Newfoundland and Labrador, a more aggressive stance in federal
provincial relations appears predicated on only a hope of future economic prosperity.
However, the province remains dependent on federal transfer payments and on federal
funding of the Hibernia oil project. Whether Newfoundland and Labrador will revert to more
traditional forms of intergovernmental behaviour under different political leadership remains
open to question.[5] Note that the term “Atlantic” refers to all four of the eastern provinces;
the term “Maritimes” refers only to Nova Scotia, New Brunswick, and Prince Edward Island.
The reason for this distinction is that Newfoundland and Labrador has a social, cultural, and
economic history that is distinct from the other three provinces.
Like the Atlantic provinces, the four western provinces also form a periphery of Canada.
The economy of western Canada is also primarily resource driven, but, unlike the situation
in the Atlantic region, the western region, particularly Alberta and British Columbia, is
relatively prosperous. Also unlike the Atlantic provinces, provincial governments in the West
have engaged in highly aggressive actions to diversify their own economies and reduce the
influence of the federal government. These efforts are made possible because of provincial
financial surpluses generated from resource ...
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