The Lower Canadian Rebels Issue an American Style Declaration of Independence

 The first shots of the Lower Canada rebellion were fired in November 1837, when Sir John Colborne, now commander-in-chief of British forces in North America, sent six companies of British regulars under Colonel Charles Gore to attack the Patriotes at St-Denis on the Richelieu River. Colborne's action was triggered by communal fighting in Montreal between partisans of the Canadiens and English Loyalists, and a series of large public meetings, culminating in a gathering of five to six thousand at St-Charles, a few miles upriver from St-Denis, which produced "a declaration of independence drawn directly from the American Declaration." The battle of St-Denis on 23 November was the Patriotes' one and only victory.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 102-103. 

French-Canadian Nationalism and the Lower Canada Rebellion

The Union bill, though aborted, deeply affected French Canada's political leaders, none more so than Papineau. After that episode, even though he had been well received in the imperial capital, Papineau moved steadily away from working for reform within the existing constitutional system and towards a complete break with Britain. The party he led in the Assembly became known as the Patriotes. Driving their politics was an increasingly strident French-Canadian nationalism.

Like virtually all nationalist movements, French Canada's surge of nationalism was led by middle-class politicians. Papineau himself was a lawyer, and most of the Patriote leaders in the Assembly were lawyers, notaries, doctors, or surveyors. It is men of this kind who acquire the literary and oratorical skills needed to mobilize the masses.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 94. 

The Judicial Committee of the Privy Council's Decentralizing Jurisprudence Hinders Canada's New Deal

This decentralizing jurisprudence was welcome in Quebec and other provincial capitals. But it was anathema to policy-makers in Ottawa and constitutional scholars in English-speaking Canada. To deal with the economic crisis of the Great Depression, Bennett, the Conservative prime minister, fashioned a legislative package modelled on Franklin Delano Roosevelt's New Deal. Before moving forward with the Canadian New Deal, the ever-cautious King, whose Liberals defeated the Bennett Conservatives in the 1935 election, referred the legislation to the Supreme Court of Canada for an opinion on its constitutional validity. The Supreme Court and, on appeal, the JCPC found that most of it fell outside the federal Parliament's jurisdiction. In the mid-1930s a spate of law journal articles written by eminent scholars such as Frank Scott and W.P.M. Kennedy argued that the Judicial Committee's emasculation of federal powers was rendering Canada incapable of dealing effectively with the social and economic malaise the country faced in the Great Depression.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 243-244. 

Residential Schools and the Destruction of Indian Identity

The numbered treaties also promised to provide teachers and schools for Indian children. The need for education in the skills to function effectively in a setting that would soon be dominated by the white man was common ground for the Canadian government and the First Nations leadership. But the schools were understood to be on reserves, not distant residential schools, and there was no expectation on the Indians' part that the fundamental aim of the education their children would receive was to destroy their Indian identity.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 186. 

How Should the Treaties with the Indians be Interpreted?

There is a profound difference between what the Government of Canada and its lawyers believe was accomplished through the treaties and what First Nations believe their forebears agreed to.... it was not until the 1980s that the Supreme Court of Canada insisted that, in interpreting the treaties, an effort had to be made to probe beyond a literal reading of the written text to make it possible "to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed." The trouble is that, on fundamental issues of rights and title to land, there probably was no "common intention."

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 185.

The Queen Agreed to Set Aside Reserves for the Indians

The second part of the land deal was that, in return for "surrendering" all their land to Canada, the queen agreed to set aside reserves for the Indians. Treaty 3 set the amount of land to be reserved at no more than one square mile for each family of five, or in that proportion for smaller or larger families.... One square mile per family of five remained the standard for reserve lands in the subsequent numbered treaties. Given that this worked out to considerably less than 5 per cent of the lands "surrendered," it can hardly be regarded as a generous allotment, particularly when one takes into account the third element of the land deal: access to the 95 per cent-plus of the "surrendered" lands outside the reserves.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 184.

Do Hereby Cede, Release, Surrender and Yield Up to the Government of Canada for Her Majesty the Queen

Morris's first treaty drew on the two pre-Confederation treaties Commissioner William Robinson had negotiated in 1849-50 with the Ojibwa peoples along the north shore of Lake Superior and Lake Huron. Treaty 3, in turn, became a template for the numbered treaties that followed. The key to all of these treaties was their threefold provision with respect to land.

The first provision, the one that led off the text of every treaty because it was essential for the Government of Canada, was the statement that the Indian signatories "do hereby cede, release, surrender and yield up to the Government of Canada for her Majesty the Queen and Her successors forever, all their rights, titles and privileges whatsoever, to the lands included within the following limits."

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 183-184.

The Court Party or the Family Compact

The reformers' opponents were the network of early Loyalists and their descendants known as the "Family Compact," a term that can be misleading. Although there were plenty of family connections among the socially prominent Loyalist families, it would be more accurate to refer to the political leaders who worked closely with the lieutenant-governor, holding most of the positions on the Executive Council and the appointed Legislative Council, as a "court party" or an incipient Tory party. Many of the Tory opponents of democratic reform who served on these appointed bodies were social upstarts, and their power was based more on their control of economic institutions such as the Bank of Upper Canada--a private bank with a state-created monopoly over the issuing of credit--and the Canada Land Company than on their family pedigree.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 98.

Thomas-Jean-Jacques Loranger and the Compact Theory of Confederation

The very fact that the premiers thought they could have Canada's Constitution changed without the federal government's participation indicated the growing strength of the "compact theory" of Confederation. That theory, which had long been an underlying premise of many Quebec leaders, was worked into a full-blown theoretical statement by Quebec judge Thomas-Jean-Jacques Loranger just before Mercier's election as premier. Its central argument was that Confederation resulted from a compact entered into by the provinces, which had delegated certain powers to the new central government. It followed that the provinces, far from being subordinate to the federal government, were equal to it.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 224.

The Indian Act of 1876: Minors or White Men

The Indian Act, passed by Parliament in 1876, was mainly a consolidation of laws already enacted, many of them rooted in pre-Confederation statutes of the Province of Canada. But now Canada was poised to apply the legislative apparatus of control to Indians in all parts of the country. David Laird, the first minister of the interior, laid out the underlying rationale of individual emancipation and strict control of reserves: "Indians must be either treated as minors or white men."

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 190.

The Gradual Enfranchisement Act Attacks Tribal Self-Government

Minister of Public Works Hector Langevin introduced the bill that would become Canada's first major piece of legislation relating to Indians, the Gradual Enfranchisement Act. This Act clearly built on the Gradual Civilization Act, the 1857 legislation of the United Province of Canada. The legislation continued to offer any Indian man who passed a morals test the opportunity to "migrate" from an Indian community into Canada with his family and fifty acres of land, give up his Indian identity, and enter into mainstream society. Unlike the Gradual Civilization Act, however, the Gradual Enfranchisement Act was a direct assault on tribal self-government.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 188.

Fighting over the Office of Lieutenant-Governor

But section 58 of the Act provides that the governor general in council (legalese for federal cabinet) appoints the lieutenant-governors of the provinces. For Macdonald that meant the lieutenant-governors were representatives, not of the queen, but of the federal government--they were Ottawa's agents in provincial governments.... Oliver Mowat would have none of that. A provincial government was not a mere local government with the status of a municipality. A provincial government had all the paraphernalia of responsible parliamentary government, and part of that paraphernalia was a representative of the queen as titular head of government. That was what the self-governing British North American colonies had before Confederation and what the provinces must have within Confederation.

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 214-215.

Subjugating the Indigenous Peoples after the War of 1812

For the Indigenous peoples in Canadian territory, Confederation was simply a continuation of the colonialist subjugation they had been experiencing since the end of the War of 1812. The idea of involving them in the construction of a new political community never occurred to Confederation's architects. The only mention of Indigenous peoples in Canada's new Constitution was in section 91, listing the exclusive legislative powers assigned to the federal Parliament. In this constitutional instrument Indians were simply a subject matter of laws made by a legislature in which they had no representation.

 

--Peter H. Russell, Canada's Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), 10.