I read somewhere that Canada, although gaining independence from the British in 1931, did not get full independence until 1982. The lateness of that date really surprised me but what was even more surprising is that it was apparently the Canadians themselves who requested in 1931 that full independence be postponed. There was no explanation however as to the reasoning behind that and I found it hard to figure out what the reason could be.
At first I thought that it had something to do with the English/French divide in Canada but weren’t Anglophones still dominant in Quebec at that period (not numerically of course but politically?) I was certain I’d get the fullest answer from members of this board, hence the thread.
The issue was that if the British Parliament wasn’t the body to make major amendments to the constitution (the Canadian Parliament gained the ability to make certain minor amendments by the 1960s IIRC), some other body would have to have that responsibility, and that’s not an easy decision to make in a federal state. Doing nothing is a lot easier than figuring out the exact nature of divided sovereignty.
Also, the final settlement of Australia’s independence wasn’t until 1986. And that was bogged down in negotiations between the federal and state governments for several years, despite it not being nearly as major as what Canada had to do.
The independence was a nominal distinction between what was before anyway, surely? I mean, in theory the British Parliament retained legislative power of the Australian/Canadian parliaments, but in practice such activity without the Australian/Canadian parliaments’ express blessing would invite outrage and uproar.
In Canada the issue was kind of the reverse. Britain had no intention of legislating without consent, but who exactly had to consent was an open question. A unilateral change at the behest of the federal government would have invited outrage and uproar from the provinces (and the possibility of such did, in fact, cause outrage and uproar from the provincial governments).
There is an ongoing debate on the Talk page for the Canada Wikipedia article on exactly this point: given Canada’s evolutionary history, should the term “Independence” be used in the infobox, or “Establishment”?
Many electrons have been bent out of shape on the issue, with numerous accusations and counter-accusations of edit-warring. It looks like it’s going to have to enter the WP convoluted dispute resolution process. :smack:
This isn’t quite right. British Cabinet docs released under the 30 year rule show that the British government seriously considered passing the Canada Act just with the amending formula, but not the Charter, which was not an approach that anyone in Canada had requested.
The reason the British government considered this option seem to have been because of the uncertainty over who could request amendments, and also a feeling that an entrenched Charter of Rights was contrary to the British parliamentary tradition and should only be done by the Canadians themselves, once the amending formula was patriated.
That was the view of the federal and provincial governments in Canada leading up to the 1982 constitutional settlement. The phrase commonly used in Canada was that the UK was a “bare trustee” for constitutional amendments, a phrase from trust law to indicate that the UK was just holding the amending power because Canada had left it with the UK, but that the UK did not have independent discretion as to how to exercise that power, a restriction based on the Balfour Declaration and the the Statute of Westminster.
However, the British Cabinet docs which came open under the 30 year rule suggest that the British government may initially have taken a different view of its power, and that it continued to have discretion on Canadian constitutional amendments.
The matter became moot after the Supreme Court of Canada held that some measure of provincial consent was required for constitutional amendments, but not unanimity. The federal government and nine of the ten provinces (other than Quebec) reached a political accord in the fall of 1981, and the British Parliament duly passed the requested Canada Act in the spring of 1982, since the combined effect of the SCC decision and the political accord satisfied their lingering doubts.
Even then, about 40 British MPs voted against the Canada Act, to protest Canada’s treatment of its aboriginal peoples.
NP, as a Canadian lawyer, what is your view of the additional self-governance that Canada gained in 1982? Was it independence? Was it simply a de jure recognition of its de facto independence? Something else?
Also Quebec lobbied in Westminister against their passing the 1982 patriation bill and have still, 35 years later, still have not accepted it. As a result, the constitution is now thought to be unamendable.
Here is a possible dispute for the future. A king (or queen regnant) of England’s oldest child is female but there are one or more younger male children. Under the latest British law. the girl would become Queen regnant, but under the Canadian constitution (based on the British North American Act of 1867), the oldest male child would be King of Canada, despite being nothing special in the UK.
Regarding the possible dispute, doesn’t the Perth Agreement and the Canadian Succession to the Throne Act, 2013, handle that eventuality? Apparently, there is some case on appeal about the constitutionality of the enabling legislation, so do you mean in the event that it is ultimately found unenforceable?
Then the two lines and countries separate for head of state. The present Head of the House of Stuart will leave his Stuart patrimony to his niece, and his Wittelsbach patrimony of Bavaria to a male-line successor.
Again, with those Hannover people, Queen Victoria got Britain but not Hannover which went to her male-line uncle.
The recent British changes to succession were just pandering to modernity, which usually marks the death-throes of an old institution.
In the early 80’s, Trudeau (the old one) decided to leave his mark on Canada by “bringing home the constitution”. He held several rounds of negotiations with the provinces, since the key issues were amending formula and charter of rights. (i.e. what civil rights need a constitutional amendment to be changed, and how? Also, if the existing rights of provinces vs. fed was to change, how would that be done?)
The provinces could not agree with him, IIRC 8 out of 10 formed a block to refuse to agree to his position, so he chose to proceed unilaterally. This provoked outrage, and suggestions that Britain should refuse to pass this request against the opposition of the provinces. the mess was referred to Canada’s Supreme Court, which split the baby by saying that consensus was necessary but no unanimity - conveniently failing to define consensus.
In subsequent negotiations, a decision was found that Quebec refused to agree to; but the consensus of the other provinces was that it was acceptable. Quebec had a separatist government in charge at the time, and the general consensus(?!)of the other provinces was that they would never agree to anything. (A definition floated at the time - consensus was a significant majority, who also had to agree that the others disagreeing were being deliberately negative.)
IIRC the formula is that 7 of 10 provinces representing 75% of the population had to agree to any constitutional change, plus the fed - a result that has effectively stymied any future changes. Plus changing the constitution in the face of Quebec opposition would likely be a fairly gross insult to Quebec unless there was perceived serious support within that province’s population despite the government, so unlikely any serious changes will happen. Any attempt to make a single change has usually triggered the avalanche of “what about my issue?” by other assorted groups.
But for the OP - as Canada evolved as less of a colony and more of a strong independent nation, Britain was less and less likely to make any changes to the Canadian “constitution” without the direct request of Canada, and in consideration that it did not want to become one side of any internal Canadian disputes -which is why the power stayed in Britain for decades, until a Canadian impetus initiated the change.
If you think trying to work out when Canada became fully independent is a mess, try doing it for New Zealand - no-one can agree on when the country stopped being a British dominion and became a sovereign country. It just sort of happened sometime after 1907, and although the some laws in 1986 and 1988 clarified the British couldn’t make laws for the country anymore, that hadn’t been an issue for as long as anyone could remember - and appeals to the Privy Council in the UK were still a possibility until the late 1990s.
Yup. The transition to independence of most of the former UK dominions was very much a process rather than an event, so trying to fix a particular date is a somewhat artificial exercise. While you can usually fix a date on which the transition was finally, definitely, definitively complete, that date will often turn out not to have any substantial importance, the politically signficant transition having been effected long before. Plus, in the case of the Commonwealth realms, you can still quibble about whether they are completely independent, given that legislation regulating succession to the crown, while it can’t be passed without their consent, also can’t be passed without the consent of the UK Parliament.
The de facto date of Canadian independence was the passing of the Statute of Westminster in 1931. The only legal controls the UK continued to have over Canada were the right to amend the constitution and (until 1949) be the final court of appeal to Canadian courts. In both cases, the UK never acted against a decision by the Canadian governments, and only reserved these rights because the Canadians themselves couldn’t agree on how to change the applicable laws.
Slight nitpick: it’s 7 of 10 provinces comprising 50% of the population, plus the federal Parliament. This is known as the “7/50 Rule,” and applies to most amendments that might be needed. See Charter s. 38.
Note, however, that I said “most.” There are some amendments that require the assent of all ten provinces, plus the federal Parliament: see Charter s. 41.
Other exceptions to the 7/50 Rule exist (such as altering the boundaries between provinces), but these are quite specifically defined as to whose assent is required. For most amendments, the 7/50 Rule would apply.
It may be true that the UK authorities never acted against a deicsion of the Canadian governments, but the Privy Council did regularly overturn decisions made by the Canadian courts, and I would see that as a material qualification to Canada’s independence. Plus, while appeals to the Privy Council were terminated in 1949, cases which had already begun at that date could still be appealed all the way through the Canadian courts, and then to the Privy Council. It was another ten years before the Privy Council actually heard its final Canadian appeal and, while it didn’t overturn the Supreme Court’s ruling in that appeal, it did overturn it in the second-last Canadian appeal a few months earlier.
Exactly. Reading your post, I was reminded of an excellent answer to the OP’s question, that was posted by our own Northern Piper back in 2006. It nicely illustrates the process (to use your term, UDS) of Canada’s becoming independent, but also illustrates the difficulty in nailing down any single date. Here are a couple of pertinent paragraphs from what Northern Piper wrote back then, but I would suggest reading his whole post to get a full understanding:
Canada was not alone. The Statute of Westminster 1931 (UK) granted full sovereignty to various British dominions and invited them to join the British Commonwealth organisation. However each Dominion had to adopt the statute to bring it into effect.
Statute of Westminster Adoption Act 1947 (NZ) is the New Zealand act.