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With contribution from Karl Salgo and Stephen M. Van Dine.
December 11th will mark the 90th anniversary of the British statute to which Canada owes its autonomy as a nation. This refers not to what was once known as the British North America Act (BNA) and is now the Constitution Act, 1867, but to a (yet) less well-known act entitled the Statute of Westminster – a crucial piece of legislation.
While Canada did become a country in 1867, it’s a common misconception that we gained our independence at the time.
Britain mostly left us to our own devices on domestic matters but played a not-always-helpful role in our international affairs. They sided with the United States on such significant matters as the Alaska boundary dispute of the early 1900s.
The right to appeal to the Judicial Committee of the Privy Council (JCPC) had a significant impact on Canada’s constitutional jurisprudence. Perhaps even more to the point, the British Parliament retained an ill-defined right to legislate for Canada.
Fast forward to the Imperial Conference of 1926 and the Balfour Declaration that came out of it.
The Balfour Declaration stated that “autonomous communities within the British Empire” were equal and “in no way subordinate to one another”. In other words, Britain was no longer in charge.
It’s important to appreciate that the Declaration had been proposed by Canada’s own Mackenzie King. King was a far stronger and more effective champion of Canadian sovereignty than is sometimes recognized.
King had famously struggled with Governor General Byng earlier in 1926, so it’s interesting that the Declaration recommended that Governors General cease to be representatives of the British government to the dominions.
The provisions of the Balfour Declaration were enacted in legislation as the Statute of Westminster in 1931. The Statute of Westminster declared that no act of the British Parliament would have any impact on a dominion without the dominion’s express desire and consent.
This was a profound moment of maturation in Canada’s history, not least because we had shown leadership in bringing it about.
In fact, ties were not severed all that cleanly. Canada continued to allow appeals to the JCPC until 1949 in civil matters. Our written constitution, the BNA, remained a British statute until 1982 essentially because we couldn’t agree on an amending formula.
Even that was not quite the end of it.
The nations affected by the Statute of Westminster remained subjects of the Crown – their consent was required for any amendments to the law of succession.
Before passing the Succession to the Crown Act in 2013 , the British government made a point of securing the approval of the Commonwealth – Canada included.
After some hand wringing about whether this triggered the amending formula under our own constitution, Canada’s government gave its consent to bringing the monarchy into the 21st century.
December 11th is also the anniversary of the 1997 Supreme Court of Canada decision referred to as Delgamuukw v. British Columbia, where Aboriginal title over traditional use and occupancy of lands was recognized and defined by the court. This paved the way for land claim settlements across Canada.
Sharing the anniversary date with the Statue of Westminster, while coincidental, is nevertheless symbolic of a special day of the Crown recognizing the rights of Nations.
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