Our Constitution and Our Future

NL's constitutional history could support a creative approach to renewal

The 1855 Letters Patent issued to the Newfoundland Governor established a government to provide for the peace, order, and public welfare of the country.

American actor Wendell Pierce asked a simple question on Saturday.  He asked his Twitter followers to help him understand why people who identify as non-binary refer to themselves as “I” while preferring other people refer to them using the pronouns “they” or “them.”

It was a logical question as much as a question of grammar.  Them and they are third person plural pronouns.  So logically, Pierce wondered, they should say “we” and not “I”.

Pierce got a string of sensible replies each of which explained the thinking behind it.

What was most striking about the exchange – aside from its civility on a sensitive subject – is that it showed how much English is an adaptable language.  What people explained to Pierce was not a question of formal rules and structure but of changing the way they used some words to fit a new social understanding.

English is an organic language. 

Not surprisingly, the British constitution has been an organic thing as well.  While the American constitution is made up mainly of written rules, the British constitution relies very heavily on understandings among people about how things work.  Make no mistake: there are plenty of written parts of the British constitution, like the 1689 Bill of Rights. 

Much of what makes the whole system of government run, though, is the unwritten stuff. That gives the constitution some flexibility so that people can adapt what they do to fit a particular situation. No one needs to talk about the framer’s intent when speaking of a British-style constitution because their intent was to set some basic principles, one of which is flexibility.

People talk about the Canadian constitution in much the same way since it is based on the British model. There are some written parts and lots of unwritten rules.  In practice, though, lots of people in Canada these days place a lot more weight on the written rules than might be the case in the United Kingdom. Living next to the United States has rubbed off. But there’s more to it than that.

Canada has a thing called the Constitution Act. The Charter of Rights contained in it since 1982 made the courts more important than before in Canadian government. Canada looks more like the United States.

That description will make some people squirm but for our purposes here, work with it.  Think of Canada as a hybrid between the Americans and the British.  Formally, there is a strict division of powers between the federal and provincial governments.  If you have suffered through an introductory class in Canadian politics, you will spend a lot of time wading through the constitution and its instructions about who can do what to whom. 

The emphasis on the Constitution Act is so strong in both popular and expert thinking about the Canadian constitution that many people talking about Quebec’s proposed constitutional change earlier this year likely don’t know that there are provincial constitutions, as well.  There are something like 11 constitutions within Canada.  Maybe 12, depending on how you want to count them. Not all of the provincial constitutions are not all contained within that Constitution Act.  

One of the ideas that is in there, though, is that Quebec, like all other provinces, has the power to change its own constitution without affecting any other provinces.  Bill 96, which changed Quebec’s language law, didn’t affect any other province but it did reinforce French as the official language within Quebec. It didn’t change Quebec’s status among provinces, though, nor did Bill 96 affect anything about the other provinces. That’s why the federal government nodded and smiled and did nothing. The change had nothing to do with Uncle Ottawa.

Each province has some peculiar customs of its own but Canadian constitutions are generally similar. They are all based on the British example. Some provinces governed themselves before becoming part of Canada, so they may have some different customs. When you look at provinces across Canada, though, the one that stands out as being the most different isn’t Quebec’s constitution. It’s the one in Newfoundland and Labrador.

Alone among Canadian provinces, Newfoundland and Labrador had a constitution before 1949 that was much closer to Britain’s than Canada’s. In Canada, the fundamental constitutional document is a piece of British legislation. It spells out everything, including how many seats there would be in the federal House of Commons and Senate.  Canada served as the model for South Africa and Australia.

But in Newfoundland, the fundamental document was the Letters Patent issued by the Queen to each Governor. It gave general instructions to the Governor, allowed for an Executive Council and a legislature, but everything else besides international relations was a decision for the local government.

In 1855 - the year Newfoundland and Labrador gained self-government - every law from every colony in the British Empire came with a star beside it. The British reserve the right to veto any law that didn’t fit British interests. If the House of Assembly set rules for elections the British didn’t like or the House of Assembly Act rubbed them the wrong way, the British could void it.

The scheme got to be so unwieldy that in 1865, the British parliament passed The Colonial Laws Validity Act. It effectively ended the veto power on most things and for Newfoundland and Labrador those things included aspects of the local constitution like voting rules and how the legislature ran.

Just to give you a sense of how different that was, consider that every other self-governing British colony – all the self-governing British North American colonies before 1867 in what became Canada, Canada itself in 1867, South Africa, and Australia - were all created by a British statute. To change their own constitution, all those colonies had to ask the British parliament to agree.

In Newfoundland, as it was called then, there was a Newfoundland Act between 1832 and 1855 to set up the different forms of limited self-government that existed. None worked. Yet, when the British created a properly self-governing colony in Newfoundland, they did not pass a Newfoundland Act to go along with it. They just had the Queen issue Letters Patent. Newfoundland’s constitution was a direct grant of authority from the Crown. The Newfoundland legislature could do just about anything it wanted without asking permission from anyone else.

The only thing it couldn’t do is change the number of seats in the upper chamber of the legislature. Yet all that took the handful of times it happened was a conversation between the politicians in St. John’s and their counterparts in London.

Ned Morris was Prime Minister of Newfoundland from 1908 to 1917.

There’s something obviously different about the Newfoundland constitution. There was a reason for it.  And the difference means something. Frankly, no one has written much, if anything, about this difference so it is hard to say what the difference means.  Given that the British were meticulous in following a pattern for colonial government around the world, though, doing something odd in one colony wasn’t an accident.

Whatever the reason the British had for using a different way to grant responsible government in Newfoundland, the difference may have had an impact on how attitudes toward government developed in Newfoundland and Labrador. Think of understandings and arrangements instead of formal, written agreements with precise rules.  Think of relationships between social groups within a community versus the relationships between different groups with radically different backgrounds, experiences, and interests. 

The difference might also mean something today as the province tackles issues, some of which are local, and some of which relate to national concerns or ones in other provinces.  That’s because the Terms of Union in 1949 restored the old constitution as the constitution of the new province:

The Constitution of Newfoundland as it existed immediately prior to the sixteenth day of February, J934 is revived at the date of union and, subject to these terms and the British North America Act, 1867 to 1946, shall continue as the Constitution of Newfoundland from and after the date of Union until altered by the authority of the said Acts.

Indigenous reconciliation is a good example.  The entire discussion of the relationship between Indigenous people and the rest of Newfoundland and Labrador society, including government, has been shaped for in recent decades not by the history of Newfoundland and Labrador but by views from Canada superimposed on the local situation.

Much of it is assumption, like Andrea Proctor’s bald assertion that even though the two countries were different before 1949, everything in the relationship between government and Indigenous people was the same.  She offers nothing to back it up in her recent book about four schools in Labrador and an orphanage in St. Anthony.  There is no discussion of how the Newfoundland government funded education across the county between 1855 and 1949.  None.

That is a glaring omission since her bald assertion demands proof. We know that the Newfoundland government did not treat Indigenous people any differently than it treated non-Indigenous people.  They were not penned up on reservations, made wards of the state, and, unlike their Canadian counterparts, they could vote.  So if there was a difference in the way the two countries treated Indigenous people, that difference meant something. And in 1949 that difference turned out to be crucial in one very important aspect of the Canadian and Newfoundland constitutions. 

The popular belief is that the two countries left Indigenous people out.  Two of the popular papers on the subject actually use some version of that idea.  One used the phrase “penciled out.”  Another, a submission to the 2003 Blame Canada commission is about the supposed “omission” of Indigenous people from the Terms.

The original version of the argument is rooted in the Miawpukek Mi’gmaw fight for registration under the Indian Act in the 1970s. Later versions, like David Mackenzie’s 2011 paper for Newfoundland and Labrador Studies tells the story with more detail but Mackenzie adds his own that are, themselves, misleading.  He is proof that event historians can fall for the presentist bias. He made conclusions not based on what people did based on what they knew at the time but on what they ought to have done based on 75 years of experience they didn’t have.

People can only act on what they know *at the time. *  What this idea about Indigenous people in 1949 misses is the fundamental point that Indigenous people were accepted in Newfoundland and Labrador before 1949 as citizens, full stop.  A Mi’gmaw Newfoundlander could own property and vote in 1935 just like every other Newfoundlander. His relatives in Nova Scotia could not. If his female cousin o Nova Scotia married a non-Indigenous man, she automatically lost her status as a registered Indian. In Newfoundland, people had a wedding and there as no change in anyone’s citizenship or status aside from becoming husband and wife.

As one senior Newfoundland official noted at the time, taking the Canadian approach would have stripped people who had just voted for Confederation of the right to vote in Canada. People who had enjoyed whatever benefits there were of citizenship in Newfoundland and the freedom that went with it would overnight be - in effect - robbed of full Canadian citizenship.

The idea should have been abhorrent to anyone at the time given the issues the world had just finished fighting a world war over. But it was that one senior official from newfoundland who resisted the idea. No one these days gives him credit for standing up for basic human decency and democratic principles as they push the myth of erasure.

This is ultimately the view that won the day. And while the negotiating teams did not reach a final decision for the Terms of Union, within five years, the two governments agreed to leave things as they were. The federal government provided additional funds to Newfoundland and Labrador specifically for Indigenous communities.  In effect, Canadian and Newfoundland officials adapted to the reality rather than insist on formal rules.

What’s staggering is the number of people in Newfoundland and Labrador these days who believe passionately in the idea that in 1949 Indigenous people in Newfoundland and Labrador were hard-done-by because they were not made wards of the Canadian state, stripped of their citizenship, penned up on reservations, and had their children sent off to residential schools to assimilate them into Canadian culture.

This does not mean that everything was fine and right in Newfoundland and Labrador before 1949. Nor does it mean everything was perfect afterward. It looks at things as they were and acknowledges the meaningful differences that existed. Those differences matter. 

There’s more to the differences that what happened 75 years ago. If we accept the mainland definitions, then about nine percent of the people in Newfoundland and Labrador would be considered Indigenous according to the 2016 census. But if you take the attitude within Newfoundland and Labrador, exemplified by the way Justin Brake’s family considers its cultural heritage or by Nunatukavut people or even beneficiaries of the Labrador Inuit land claim agreement, then upwards of 30% of Newfoundlanders and Labradorians would be of Indigenous ancestry. 

Most of them would be what came to be known in western Canada as Metis. Brake included this quote in his piece in Maisonneuve and it is worth thinking about:

“The Brake families provide an interesting example of how aboriginal and immigrant cultures merged in west coast Newfoundland. Elements of both cultures were retained, but it seems that, in day to day life, the Micmac way of life prevailed,” anthropologist Dorothy Stewart and Mi’kmaw Elder Marlene Companion wrote in a report for the Federation of Newfoundland Indians (FNI).

It’s also worth considering Brake’s lengthy discussion of mainland opinions that would consider many people who identify as Indigenous in Newfoundland and Labrador as posers. But that view is, itself, rooted in the fundamentally racist Canadian policy toward Indigenous people. It’s a view that isn’t found in the experience in Newfoundland and Labrador. Individuals may have been racist and may still be but officially, no one saw a difference between Brake’s two grandfathers and many thousands of others like them.

When looking for a way forward for all Newfoundlanders and Labradorians, rethinking our shared history may point a way forward that would be radically different from anything thought of in Canada.  Asserting our own understanding of who we are and what is right for us may be better than accepting other people’s problems as if they were our own. Better to accept our own mistakes and failings and atone for them that ignorant assumptions by people who simply do not know or do not take the time to understand the local history.

We can take a different view and turn what some people now see as a failure – even though it clearly wasn’t – into an asset.  People in Newfoundland and Labrador could think outside the Canadian framework of land claims and separate government. We don’t have to do away with the Indian Act - a perennial source of controversy - since it never applied here.

Newfoundlanders and Labradorians could build on the foundation built since 1949. One step could be to accept a broader understanding of what Indigenous means in Newfoundland and Labrador than is accepted in the rest of Canada or by the federal government.

Another step could be to stop dividing issues along racial lines. It is appalling that in dealing with Muskrat Falls, for example, concerns from Indigenous people affected by the project fell on deaf ears. This is not about Indigenous and non-Indigenous people: it is about Indigenous people whose views were not considered valid by other Indigenous people.

There are other opportunities. Newfoundland and Labrador’s constitution allows us to revive a second chamber in the legislature. Elected on a different basis from the House of Assembly, it could give a way for Indigenous Newfoundlanders and Labradorians to shape provincial policy. It could be a chamber that brings all communities in Newfoundland and Labrador together to govern the whole province together.

We need to move beyond the narrow or siloed thinking that marks the way we talk about many things in Newfoundland and Labrador.  One of them is the way we talk about being Indigenous. If you want to see the limited thinking, look no further than the Democracy Cookbook.  The collection of suggestions on renewing democracy in the province included *two* chapters on how to include Indigenous Labradorians in government but none so specific about the island. 

English is a flexible language that people can adapt to fit their needs.  The same is true of the British constitutional system.  The same is true of Canada. Newfoundlanders and Labradorians could take the flexibility they have inherited and use it to build a stronger province for themselves and for future generations.