Canada, Australia, Federalism, and the Royal Succession Law

5 07 2013

Today, I’m working on a co-authored paper that will compare how the Canadian and Australian systems of federalism have historically dealt with the issue of the monarchy. Canada and Australia are unique in the Commonwealth in that they are both federations and monarchies. In fact, they are compound monarchies.  Despite the similarities, these two federations have developed very different approaches to changing the rules governing the royal succession: in Australia, the state governments have been involved in the process via a first ministers’ conference  and the passage of resolutions in the state parliaments. In Canada, the federal government has legislated unilaterally without even consulting the provinces. Our paper seeks to explain this historical pattern by looking at the constitutional histories of the two countries.

Our paper is historical, not legal, as we are legal laymen. However, it is informed by the on-going debate about the constitutionality of Canada’s Succession to The Throne Act, 2013. This statute is designed to make it possible for the Duchess of Cambridge’s eldest child, irrespective of gender, to inherit the Canadian Crown. Equivalent laws have either been passed or are in process in other former “White Dominions” of the British Empire. As you may know, the constitutionality of the Canadian law is currently being challenged in Canada’s courts. In my personal view, this piece of legislation, which purports to change the rules governing the inheritance of the Canadian crown, constitutes a substantive change to the Canadian constitution about which the provincial governments should have been consulted. [My co-author, who is a specialist in Australian political history, is agnostic on the issue of whether the 2013 Canadian statute is unconstitutional].  The Canadian federal government’s decision to change the rules of succession without the involvement of the provinces is incompatible with the explicit meaning of Section 41 of the Constitution Act, 1982, as a distinguished Australia legal academic has pointed out.

The exclusion of Canada’s provinces from the revision of Canada’s rules of succession is particularly anomalous because they have, in general, greater powers than those the states in Australia’s relatively centralized version of federalism enjoy. Moreover, one of Canada’s provinces is recognized as a “nation,” a status claimed by no Australian state. My own personal view, which won’t appear in our academic paper, is that if Australia’s sub-national units, the states, have the right to have a say in the alteration of the rules of the royal succession, surely Canada’s provinces should also have been participants in the process.

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2 responses

5 07 2013
Chris Dummitt

Hi Andrew,

I just couldn’t agree less with you on this one. The provinces are powerful in Canada, but that’s because the specific powers that they have from the Constitution Act are ones that have grown in importance since the 1860s. If monarchy doesn’t stay in the realm of federal powers, it’s unclear what does. What else could have been considered a sovereign, national power in the 19th century? And it was the federal government that was to have these kinds of powers. That the fathers were wrong, in hindsight, about what constitutes national powers for the nation is clear. But I can’t imagine that they ever would have considered a decision about the monarchy as being a local matter to be considered by the provinces.

But on other matters, are you coming to the Mackenzie King conference in London next week? I’ll be there.

7 07 2013
andrewdsmith

Hi Chris, “Sovereign” and “national” are not synonymous terms, at least not in Canada. In 1892, the JCPC ruled that the provinces were “sovereign” in their own areas of jurisdiction and that the provincial lieutenant governors were constitutional monarchs. In fact, the JCPC confirmed that the provinces separate “kingdoms”.

What the Fathers of Confederation would have wanted is secondary here, since the British North America Act 1867 has been modified many times both by amendment and by the evolution of constitutional convention. It is clear that many of the Anglophone Fathers wanted a very centralized state, even a unitary one Whether we should be bound by their wishes today is a very different question.

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