Big Canada, Little Canada, and the Canadian Constitution

8 06 2011

I’ve blogged in the past about the Canada-EU trade agreement (CETA).

I thought that I would bring your attention to a recent article on CETA by Robert Hage. Hage is a former Canadian ambassador and director general for both Europe and legal affairs in the Department of Foreign Affairs and International Trade. His article contextualizes the current negotiations and talks about the importance of the Quebec-France relationship to the launching of the talks.

The EU has overcome centuries of mutual hostility and nationalist rivalries to create a single market spanning 27 countries with 500 million people. It is the ultimate post-conflict reconciliation project.  Canada not yet achieved an EU-style single market in goods and services thanks to interprovincial trade barriers.

Hage says something very interesting about the role of Canada’s provincial governments in the negotiations. Traditionally, relations with foreign countries were regarded as exclusively a matter of federal jurisdiction rather a matter shared between the federal and provincial governments. The 1867 Canadian constitution (the British North America Act) doesn’t really specify which level of government should have control over foreign policy because at the time it was drafted, Britain represented Canada in the international arena. Canada’s written constitution merely states that:

The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries. 

Since 1867, Canada’s courts have had to make a series of decision about exactly how far federal control over foreign relations should extend. The situation in Canada has, historically, been similar to that of Australia, another country where the written constitution is ambiguous about which level of government controls foreign affairs. As Ryan Morrow argued earlier this year, “in Australia, centralized treaty-power encourages a centripetal dynamic and dysfunctional intergovernmental relations. Conversely, in Canada, treaty-powers promote a modestly centrifugal dynamic which protects the federal balance and necessitates intergovernmental relations premised on federal and provincial equality.” In other words, power over foreign policy in Canada has gradually moved away from the central government and to the sub-national units, whereas the opposite has been the case in Australia. A key differences between Canada and Australia is that Canada is a bi-national federation: Quebec and other provinces have long campaigned for a great role in international diplomacy. Quebec maintains a network of quasi-diplomatic offices abroad.

With the CETA talks, Canada’s provincial governments have, for the first time, been given seats at an international negotiating table. Hage regards this as a major step in “functional federalism” going beyond the strict constitutional provisions of the federal “trade and commerce” power Canada’s written constitution.

If you look at Canada House in Trafalgar Square in London, you will see that the flags of Canada’s provinces are prominently displayed, which is symbolic of the role that the provincial governments now play in Canadian diplomacy.

Canada House



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