Asymmetry‐lite? The Constitutional Status of the “Terms of Union” for British Columbia, Prince Edward Island, and Newfoundland and Labrador Liam O’Flaherty, B.A. (Hons.) Memorial University, M.A. University of British Columbia ABSTRACT "Terms of Union" exist between the federal government of Canada and three Canadian provinces: British Columbia (1871), Prince Edward Island (1873), and Newfoundland and Labrador (1949). These documents once paved the way for three provinces to join Confederation. But they have also since been amended several times, and occasionally become sites of political controversy. While it is not clear that these documents are “treaties”, they do impose uniQue legal, constitutional and political obligations and rights on the signatory governments – obligations and rights which may not exist for other provinces. The function of these Terms of Union agreements is described and analyzed by comparing the case studies of the British Columbia railway dispute in the late 19th century and denominational education reforms in 1990s Newfoundland and Labrador. These events show not only that Terms of Union remain relevant in any discussion of constitution politics in the provinces where they exist, they are also sources of asymmetrical federalism. Chapter I: Introduction Federations can come about as a result of a variety of processes. Constituent units of a federation may form as a result of devolutionary or federal reforms. They may also come about as a result of a one‐time agreement of a federation’s constituent parts. Or, they may result from the incremental, evolutionary or expansionist growth of a state from pre‐existing state or sub‐ state groups. The United States and Canada are especially good examples of the latter. Canada formed after the “Confederation” of Ontario, Quebec, Nova Scotia and New Brunswick. The three Prairie Provinces and the three Northern territories came about as a result of Acts of the central government in Ottawa. And three provinces joined as a result of unique agreements between the former dominions or colonies and the central government. These provinces are British Columbia (1871), Prince Edward Island (1873), and Newfoundland and Labrador (1949), and the agreements are called “Terms of Union.” The three Terms of Union agreements have an unusual and much understudied role in the Canadian federation. They are generally overlooked as being of any significant constitutional importance in the many decades since they were signed and put into effect. However they occasionally generate controversy or at least are recognized as important pieces of the larger puzzle that is the sweeping set of Acts, documents, accords, and conventions that comprise the Canadian constitution. On one hand, Terms of Union may be viewed as a pact or even treaty‐ like mechanism between two otherwise “sovereign” entities. On the other hand they may be viewed as mere “laundry lists” of time‐specific requirements for the dominions to become provinces. The truth is somewhere in between the two. This paper attempts to develop a theory of the evolution of the Terms of Union for Prince Edward Island, British Columbia, and Newfoundland and Labrador, with emphasis on the latter two. It suggests that the once‐held notion that a Terms of Union agreement could be interpreted as a constitutional “partnership” between two equally sovereign groups has generally withered. Yet at the same time they are Mapping Politics 8 Volume 1, Winter 2009 not mere formalities with less weight than other parts of the Constitution. This paper looks at the cases of the railroad in early British Columbian and Canadian history, and denominational education in Newfoundland and Labrador as instances of when Terms of Union became prominent constitutional mechanisms which guided not only policy development but the overall behaviour of federal and provincial governments. In addition, the paper adds to the discussion of the constitutional significance of Terms of Union by assessing their impacts on the development of Canadian federalism. Specifically, it posits that these unique agreements contribute to – and are examples of – asymmetrical federalism. Chapter II: Case Studies The Terms of Union occasionally grab the attention of Canadians during constitutional or other political battles. Former British Columbia Senator Pat Carney caused controversy in the 1990s when she suggested that one way for British Columbia to get the most from Canadian federalism would be to renegotiate the Terms of Union between that province and the federal government.1 It highlighted a somewhat consistent view that exists in British Columbia and elsewhere that Terms of Union between provinces and the federal government are relevant and evolving constitutional agreements. The view highlights a widespread interpretation of the Terms as having a contractual nature. That they are potentially open for renegotiation and revision is an exciting proposition with major implications for constitutional politics and Canadian federalism. The Terms of Union for Prince Edward Island were also recently cited by citizens of that province as a reason for the federal government to build a fixed link between the Island and the mainland of Canada. The Prince Edward Island Terms of Union state that the: “…Dominion Government shall assume and defray all the charges for… Efficient Steam Service for the conveyance of mails and passengers, to be established and maintained between the Island and the mainland of the Dominion, Winter and Summer, thus placing the Island in continuous communication with the Intercolonial Railway and the railway system of the Dominion.”2 In the 1990s, this evolved into the interpretation that the federal government was required to provide Prince Edward Island with a bridge to the mainland, and in 1994, the Schedule to the Terms of Union was amended by the federal government through the Constitution Amendment 1993. It provided that a “fixed crossing joining the Island to the mainland may be substituted for the steam service referred to in this Schedule.”3 It is noteworthy that the legislative and statutory process was not the main or only approach used. The Terms of Union were not 1 Pat Carney, Speech PresenteD to the BC Unity Panel (December 16, 1997), retrieved April 26, 2008, accessed on‐ line at: http://www.uni.ca/initiatives/bc_carn.html. 2 Prince EDwarD IslanD Terms of Union, Retrieved April 25, 2008, Accessed on‐line at http://www.solon.org/Constitutions/Canada/English/peitu.html. 3 Constitution AmenDment Proclamation, 1993 (Prince EDwarD IslanD), Retrieved April 25, 2008, Accessed on‐line at: http://www.solon.org/Constitutions/Canada/English/cap_1993pei.html. Mapping Politics 9 Volume 1, Winter 2009 constitutionally irrelevant and were not otherwise ignored or overlooked. This was a matter of constitutional scope and significance. The selected cases for comparison in this paper are two examples which help us develop a comprehensive theory of Canada’s Terms of Union agreements within the context of the Canadian constitution and Canadian federalism. They were chosen because they both represent the two points noted above: Terms of Union are useful during constitutional crises for bargaining purposes, as with Senator Carney’s remarks; and they are means to an end for policy development and resource allocation as when the Constitution was amended to bring about the Confederation Bridge. The first case concerns British Columbia’s general disposition towards its constitutional status in the 1870s and 1880s. The federal government was slow to act on its codified promise to build a railroad linking the province with the rest of the country. The second case to be examined is the role of the Terms of Union as a source of constraint on the discussions surrounding reforms to the denominational education system in Newfoundland and Labrador in the mid‐1990s. British Columbia and the Railroad British Columbia became Canada’s sixth province in July of 1871. The political culture in this colonial, settler society prior to Confederation was one of pronounced British loyalty. In the 1860s and 1870s, many settlers supported the direct tutelage of Queen Victoria and the imperial government in London. But increasingly it was felt that the colony should have local representative institutions by way of responsible government and membership in (or partnership with) the Canadian Dominion. 4 The catalyst for British Columbia’s joining Confederation was the “sandwiching” of that colony after the Alaska purchase,5 and the British government’s purchase of the land rights hitherto owned by the Hudson’s Bay Company for the Canadian Dominion. Yet even the most ardent supporters of Confederation in the colony identified British Columbian entry into confederation in mainly economic rather than political terms.6 It was viewed as a potential boon to the local economy – one which was reeling from the slow down of the Gold Rush a decade earlier. As such, the British Columbian position was that Confederation would have to be on terms that were agreeable to the political and economic establishment in the colony. The three delegates of the colony who were sent to Ottawa (Joseph Trutch, Robert Carrall, and John Helmcken) drew up Terms of Union which were closely emulated by Prince Edward Island two years later when that province joined Confederation in 1873.7 4 Jean Barman, The West Beyond the West: A History of British Columbia (Toronto: University of Toronto Press, 1991), 72‐94. 5 Philip Resnick, The Politics of Resentment: British Columbia Regionalism and Canadian Unity (Vancouver: UBC Press, 2000), 14. 6 Barman, 96. 7 Gilbert kennedy describes the Terms and the orders‐in‐council from which they originated for both British Columbia and Prince Edward Island as being “practically identical” in “Amendment of the British North America Acts in Relation to British Columbia, Prince Edward Island, and Newfoundland,” University of Toronto Law Journal 8 (1950), 211. Mapping Politics 10 Volume 1, Winter 2009 The British Columbian Terms of Union detail a number of conditions for entry into Confederation including services to be taken up by and run by the federal government.