On the power of the Governor General

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

<p>Gordie Odjig of Wikwemikong stands at the west gate to the Langevin Block during the aboriginal meeting in Ottawa on Friday, January 11, 2013. THE CANADIAN PRESS/Sean Kilpatrick</p>

Gordie Odjig of Wikwemikong stands at the west gate to the Langevin Block during the aboriginal meeting in Ottawa on Friday, January 11, 2013. THE CANADIAN PRESS/Sean Kilpatrick

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