On the power of the Governor General

A debate about the role of the David Johnston may seem arcane, but it’s also revealing

Adrian Wyld/CP

The politics surrounding the Idle No More movement were never going to be neat and tidy.

First, non-aboriginal Canadians have an embarrassing lack of understanding of the history of the relationship between First Nations and “the Crown.” When native leaders speak of a “nation-to-nation” relationship they are speaking to a history of settler-indigenous relations that were expressly predicated on the notion that two sovereigns were reaching agreements via treaty.

There is a strong, legitimate argument to be made that the foundation of Canadian federalism rests on a federal relationship between the Crown (first the British Crown, then the distinct Canadian Crown) and aboriginals, and that self government for First Nations constitutes another “order of government,” much like the federal and provincial orders of government already familiar to most grade schoolers.

Understood through federalism, the “nation-to-nation” conception shouldn’t be so scary to non-aboriginal Canadians because–despite how some appear to interpret it–it doesn’t mean indigenous nations are their own independent countries. Instead, it means we recognize aboriginal sovereignty in the sense that they are owed the rights that flow from historical treaties as recognized by section 35 of the 1982 Constitution Act. This fact was recognized by the Royal Commission on Aboriginal Peoples in 1996, and is something which many of the aboriginal activists behind Idle No More support.

Second, Canada’s indigenous population consists of a diverse array of customs, languages and modes of governance (and yes, these are things that comprise “nations” in the socio-political sense of the word). So perhaps we should not be too surprised that there is a lack of a clear consensus on how to articulate demands, which demands ought to be prioritized, and–as we see today–whether to meet with the prime minister without Governor General David Johnston’s presence.

The significance of the Crown and its symbolic meaning for First Nations should not be understated. For many aboriginals the Crown, as embodied by the Queen and her representative the governor general, is viewed as distinct from state institutions and the government. And indeed it is: the Crown is where Canada’s sovereignty resides, it is the source of the power to govern.

But the Crown has evolved considerably from its pre-Confederation incarnation, and this is where the role of the governor general in all of this becomes problematic. The power to govern might be vested in the Crown but it is entrusted to the government to exercise on behalf of the people.

This is what distinguishes an absolute monarchy from a constitutional monarchy. It also reflects a constitutional principle that has served as a pinnacle for our system of government since before Confederation: responsible government. State power in a parliamentary democracy ultimately flows from the people, through its elected representatives, who serve in a legislature and who ultimately hold the government of the day to account.

The governor general’s role is almost entirely symbolic, in that it reflects the source of sovereign power in the Canadian state. But that power should only be exercised by state institutions, comprising the executive, legislature and judiciary. The governor general plays no political or policy role. He has no autonomous capacity to act in First Nations’ interest. Nor does the Queen, for that matter, and if she tried, it would rightly be regarded as an affront to Canadian constitutionalism.

This does not mean the governor general cannot or should not meet with First Nations. In fact, he was present at last year’s Crown-First Nations “gathering” which was meant to mark renewal in the relationship. But it would be inappropriate for the governor general to attend today’s meeting, which was the product of political protest and which is supposed to focus on policy demands (such as those concerning the government’s omnibus legislation).

For one thing, it would set a problematic precedent that whenever major issues or controversies arose, the governor general should be expected to meet with First Nations to act as arbiter or a party to policy debate. One chief interviewed on CBC this morning argued that the governor general’s presence is required so that he can listen to demands and “work with” the prime minister on solutions. The governor general has no authority to help craft policy.

Moreover, setting such a precedent–even in the context of the special and distinctive Crown-aboriginal relationship–propagates the myth that one can write to the Queen to have her override or fire the prime minister (a farcical notion hardly limited to Idle No More protesters).

While it is true that formally the relationship is with “the Crown,” the Crown cannot be separated from the state or the constitution in the manner the chiefs’ demands imply. The relationship is very much with the Canadian state. This is confirmed by the Supreme Court of Canada’s jurisprudence on section 35 rights: it is the government that holds a fiduciary responsibility to aboriginals.

The prime minister rightly offered a compromise this week, requesting the governor general meet with native leaders separately, in a ceremonial capacity. This is an obvious and wholly appropriate compromise.

None of this should undercut the legitimate demands of Aboriginal Peoples in Canada. For some, a debate about the role of the governor general may seem like an arcane issue, but it clearly speaks to the damaged relationship and valid distrust aboriginals have of the government itself.

Let me be clear: we shouldn’t be having this debate, not because the demand that the governor general attend is appropriate (it isn’t and it would be a mistake for the prime minister to acquiesce on this specific point), but because the government should already be meeting and collaborating regularly with First Nations across the country.

However valid the feelings of distrust might be, it does not change how our constitution and system of government operate. It would be shame to see an attempt at reconciliation fail on this point.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane




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On the power of the Governor General

  1. Thank you!

  2. Thank you for clarifying the GG’s role.

  3. Excellent article!

  4. This is all very reasonable but it doesn’t deal with the issue from the First Nations point of view.
    Yes the Crown has evolved since the treaties were signed, but what role did the FN have in that evolution? So it has been a sort of “bait and switch”. I don’t imagine the “Indians” had much input when Canada gained independence from Britain.
    Sure you can’t expect to organize a flash mob in 30 minutes using smoke signals, but like the round dances and drums, symbols of the past are important. Why not honour them???

    • Our parliament is riddled with symbols from the past but we hung up about the First Nations using theirs. We seem to have a bit of a blind spot here.

  5. Good article.

    Still, I’m not fully convinced it would have been very terrible for the GG to attend the meeting in the limited capacity that his office entails. For instance, the GG could have welcomed all the parties, perhaps with a brief opening remark, or sharing a ceremonial kick-off with an Elder.

    It seems like this sort of approach could have been the sort compromise that met the technical demands of the Chiefs and the technical limitations of the GG’s office.

    • That’s it exactly.

    • But as this article states, that could set a problematic precedent of demanding the GG’s presence at any or all future meetings.

      • How would merely welcoming them set up the GG for involvement in the process?

    • It seems like a reasonable answer, but is not a smart position to be, for government, FN and GG.

  6. If the role of the Governor General is “almost entirely symbolic”, then why didn’t the Governor General symbolically attend the meeting? This isn’t a difficult ask — and, if there’s no inherent power to the Governor General’s role, then there is no issue with them attending to be a fly-on-the-wall.

    Instead. It’s angered (again) the First Nations delegates who’ve travelled to Ottawa for this meeting. So, I’d be very understanding hostility directed towards Canada continues. This was a simple, effortless request — denied only to antagonize.

    • Therein lies the problem, what evidence or reason is there to believe the GG’s decision was done ‘only to antagonize’? Pretty clear reasons were given. It’s this attitude that any demand that is not met exactly is done to antagonize or rile up FN leaders. The GG made reasonable attempts to accommodate the request, including offeriring to host the Chiefs later in the day. He kept within the role he is required to do under the Constitution.

      • It sais the GG can meet with natives on his own. Why not start to cruise around the country and drop in on reserves at random and talk to the chiefs at their offices. Make them warm and fuzzy

        • Harper seems to be keeping him busy doing trade deals in Africa.

    • Did you understand this piece at all?!

  7. This comment was deleted.

    • The British Empire signed a lot of treaties with a lot of different nations, and all of them (as per your definition of the British Empire) were not “equal partners”. So what is the significance of the size of the British Empire with regard to the treaties they signed?

      • when orders of the court are not enforced this means that the government can dictate lives by cutting off access to civil constitutional torts for violating treaties and laws applied in the constitutional act of Canada and the Canadian Charter of rights and freedoms. Discrimination from Legal aid Ontario who would not allow civil litigation until 2005!

    • “The Harper government held over 5,000 consultations with First Nations last year.”
      Source please.

      • out of his ass probably.

    • So patronizing…i’ve seen pompous official comments like that before, but only on treaty document from over a century ago..

      Perhaps it’s you who are ignorant bud. At the time of first contact and for a couple of hundred years we were here on their sufferance. You would have made a great turn of the century treaty commissioner or indian agent.

    • Depends on how you define consulatations. NMany of the 5000 were of teh This waht we have to say. Thanks for listening. Goodbye.consultation should mena dialogue until both sides at least understand teh other’s position.

  8. The media is all over the fact that chiefs across the country have differing views/ approaches on the big meeting with Harper. Well folks, that’s democracy at work. Unlike Harper and his Conservative MPs, National Chief Atleo doesn’t control every single chief’s move; unlike Harper who even makes sure at the riding level he has to approve the candidates no matter what the members in that riding think, Atleo doesn’t interfere with local First Nation member choices. Yes, there is some lack of consensus here, but Atleo is doing his best to consider all of our voices; unlike Harper who only listens to himself.

  9. aboriginals should stop living a dream world of the past and wake up to the reality of now and the future. that may be why they have not done so well in many ways in the past. keep your culture but join the rest of society. and negotiation does not mean a lot of preconditions leading to a giant step for now!

  10. I wouldn’t want to get into a constitutional debate with EM [ kick my ass for sure] but from a layman’s pov i think having the GG there in the same room[at least for a bit] as the PM is pretty much harmless. Excepting your argument[ it's much better than your first go round] it seems obvious to point that having the actual head of govt in attendance negates the problem of having the pretend one there…it’s pretty clear to everyone who’s the real boss. I’m pretty sure most FNs chiefs are well aware of this…as you say, times have changed – they study the law and the constitution too these days.

  11. You know what I wish for? For the Canada to finally be the united country that it should be. EVERYBODY should pay taxes. Where I live, all of the natives get paid to go to school, are given houses for free, are given clothes, support at their finger tips…they truly can do as they please and get paid for sitting. yet they choose to waste it on weed and junk food. When you drive past the reserves it is a wasteland, garbage all over the lawns, the houses are destroyed and there are young kids throwing rocks at our car windows. All the natives spit on the white people walking past. But are we not all equal? why should you have the right to spit on us when you are just the same.

    I was sitting on the bus the other day and I heard a young native girl tell her mom she cant wait to graduate school so she can go to college, The mom told her..”why would you want to do a stupid thing like that, you should have a baby…its the best way to make money’

    Is this really what you are teaching? This is what you are protesting?

    so you can have more money?
    Im sorry, I am all about human rights…but if I am paying my taxes for you, to supply you all these nourishments….what are you complaining about?!
    I am astonished with this, And no I am not racist so save your slander and protest for someone else. I am just a concerned citizen seeing how this plays out.

    This act is selfish, and greedy.

    Homeless people freezing on the streets of major cities have less than you. I don’t see them protesting.

    If you ask me, natives are abusing the priviledges they have. Mr.Harper(although I hate that bastard) should not abide to your harsh demands. Instead make everyone equal, we all pay taxes, work..create an income for ourselves. In society these days, nothing is every good enough. So you may as well stop trying.

    • unfortunately I have had the same kind of experience. The change has to come from the people. The government can`t change the people. look at Davis Inlet.

    • Myth : Ther are lots of myths about free education and free housing. when you do the research, it all is nonsense.

  12. What disgusts me is lack of accountability when immigration errs cutting off access through legal aid after courts made orders protecting rights

  13. How very true the Queen can overthrow any government who does not apply within the Canadian Charter of Rights and Freedoms of anyone residing in Canada, so when Canada cut off access to civil litigation when people had constitutional torts against the government for violating rights and treaties they should have been able to access a court of competent jurisdiction however, how come it took until 2005 for people to be able to pursue their rights when clare lewis made it possible in Ontario where was all the prior governments when it came to the principle rule of law!

  14. GG should at least show good faith would have meant he support all people living and residing in Canada

  15. ombudsmen role and code of conduct how come they put the ombudsmen as the person that allowed legal services for civil suits in 2005! I know that prior to this legal aid did not cover civil constitutional torts against the government because they were afraid to bite the hand that fed them…. funding…. cuts economic gain at the expense of other peoples rights goes against orders of courts, meaning government took the law into their own hands for economic gain!

  16. Queen is the Head of State of Canada, she gave Canada the Charter of Rights and Freedoms, Canada ratified civil and human rights, but did they give the Province of Ontario legal aid the means in which to pursue these rights in a court of law, answer is NO they did not legal aid would not allow civil litigation until 2005, then Beverley McLaughlin appointed by Mulroney to Supreme Court would not allow the Press to publish Charter of Rights section 24(1) conflicts with people living and residing in Canada when Canada broke the principle rule of law when they had constitutional torts against the government, my issues are simply obstruction of justice! which is a criminal offense!

  17. prorogation in Canada ……doh why is that exactly!

  18. eh ever wonder if Canada can truly get their BIG ACT TOGETHER AND SORT OUT THIS COUNTIES MESSES FROM PAST MISTAKES!

  19. SO YOU THINK YOU CAN IGNORE ORDERS MADE FROM COURTS……CANADA!

  20. YOU BELIEVE THAT LAWYERS RULE THE COUNTRY…. WRONG QUEEN IS HEAD OF STATE OF CANADA NOT LAWYERS, NOT JUDGES, NOT THE PRIME MINISTER, NOT THE PREMIERS, THERE IS A REASON TREATIES AND RULE OF LAW APPLY TO CANADA AS WELL AS ANY OTHER. HENCE THE REASON FOR LAWS!

  21. GG HAS A CONSTITUTIONAL ROLE TO PLAY AS DOES THE SPEAKER! AND THE LIEUTENANT GOVERNOR

  22. OH MY GOODNESS WHEN IS ALL THIS GOING TO COME TO A HEAD IT IS ABOUT TIME CANADA HEADS GOT A WAKE UP CALL.

  23. maybe if the media was not ordered by the court to obstruct justice then issues relating to treaty and other rules of law may be answered however, press are not allowed!

  24. united we stand……but when you put our backs against the wall we come together and this is called democracy…. government does not have the right to abuse treaties! or the rule of law

  25. welcome to hell put yourselves in the position that aboriginals and immigrants and the working poor in Canada and the government should be held to account in the Geneva convention on crimes which inflict torture on others for economic gain

  26. WHO DO YOU THINK YOU ARE… I BELIEVE THIS IS A SONG AND DANCE!

  27. CANADIAN CHARTER OF RIGHTS AND FREEDOMS! CANADA WAS TO PROVIDE EQUAL ACCESS TO ALL RESIDING IN CANADA NOT JUST THE CHOSEN FEW!

  28. Theresa Spence, Pam Palmater, Manitoba Chiefs, etc, went out of their way to find things to be offended about yesterday – nothing would have satisfied them. PM should work with those who are open to discussion…and whatever happens to Theresa Spence is now on her and the #idlenomore people.

  29. This black and white analysis seems too…black and white. For one thing, there are First Nations peoples who signed no treaties whatsoever. For another, British parliamentary democracy has been evolving for about 800 years, and it’s not clear to me that anybody understands how it works, but it works, which is more than can be said for the American Constitution. Only a fool would assume they know how our system works, and what would happen if we tinkered with it without due respect. Blithe statements about what the Governor-General’s role is and isn’t are best treated with healthy skepticism, particularly from anonymous officials who may be entirely political. It seems possible that Harper got his head in a bag for trying to finesse legislation of importance to First Nations as part of an “omnibus bill”, thereby trying to avoid any serious debate and consultation, which is what set this whole thing off (and anybody who doubts this can consult the Treaty 3 website.) I don’t see why the Governor-General should not point this out to his Ministers, just like Minto did.

    • Well done Neil. You’ve brought some disparate elements together nicely.

  30. Good commentary on Aboriginal relations, but misses some key historical facts. The last significant time Canadian Government tried to make changes without consultation (Trudeau’s White Paper), Aboriginal Leaders had to go to England to petition their claim. Ultimately, the treaties rest with the crown.

    • But since Trudeau there came the Canadian Charter of Rights and Freedoms which the government are also to respect, however, they did not because they denied access to the courts through legal aid for even immigrants and I am British which discriminates against immigrants and the poor when they had constitutional torts against the government for going against orders of the court and taking the law into their own hands, the way they did that was to state 23 years later they erred! at immigration, they knew they would be cutting off access to Provincial community and social services! by cutting off civil and human rights which are housing health education employment and sustenance and denying access through the court then when immigration erred they then cut off human rights

      • also obstruction of justice…. economic gain at the expense of other peoples civil and human rights social and economic rights. way to go!

        • Chretien signed the Charter of Rights and Freedoms ask him, why you could not access civil constitutional torts. Liberal Government

    • You make it sound as though the Queen put an end to the White Paper or any government attempt at policy. She did not. Aboriginal Leaders may have gone to England to petition, but ultimately the decision to back away from the foolish White Paper was the government’s.

  31. Thanks for clarifying the Governor General’s role.
    What about from another “Canadians” point of view… times change… death & taxes are the only certain things. We are “ALL” in this rowboat together. If you live in Canada you are CANADIAN and are able to carry a passport which many others around would love to own.
    Many folks I know, thought the “Idle No More” meant that they were going to be idle no more and would be contributing members to our society in general. I was raised that one did not expect a handout but rather a hand up perhaps when things were tough. If you work then you get a salary to provide for yourself and family. This also leads to feelings of pride in one’s accomplishment!
    It seems quite apparent that the current system of $ to the First Nation groups gets bogged down at their “Chief” levels, especially when you go down to the TPC Summerlin in Las Vegas and see names of Chiefs as non-resident members of the Golf Course – who pays for that? I feel very sad when I see other fellow Canadians living squalor conditions when CANADIAN tax dollars where sent to pay for improved living conditions! Enough is enough. Time to be idle no more… contribute to Canada… and stand as equals.

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