Unfinished constitutional business
and Gil Dupuis,
Unfinished constitutional business
and Gil Dupuis,
As Canada celebrates its 150th anniversary, now is an appropriate time to read what is included in Canada’s constitution. Could it be that where the boundary between Ontario and Quebec in the Upper Ottawa Valley entrenched in the Constitution, is actually in a different location from where the border between the two provinces is assumed to be?
Here’s the story so far.
The legislation setting the boundary between Ontario and Quebec, “An Act to declare the Boundaries of the Province of Ontario in the Dominion of Canada; 1889,” is an Imperial statute that was adopted in its entirety by the Parliament of Canada. While Parliament had granted itself the power to set provincial boundaries in what is referred to as the second British North America Act in 1870 with the creation of Manitoba (a statute that was subsequently confirmed in 1871 by Imperial statute), by the 1880s, the interprovincial boundary in the Ottawa Valley still hadn’t been settled. This resulted in a reference to the Privy Council at Westminister in Great Britain for final arbitration.
It was not until 1889 that the boundary between Ontario and Quebec along the Ottawa River was finalized. In the preamble to the Canada (Ontario Boundary) Act, 1889 it states;
Whereas the Senate and Commons of Canada in Parliament assembled have presented to Her Majesty the Queen the address set forth in the schedule to this Act respecting the boundaries of the province of Ontario:
And Whereas the Government of the province of Ontario have assented to the boundaries mentioned in that address:
And whereas such boundaries so far as the province of Ontario adjoins the province of Quebec are identical with those fixed by the proclamation of the Governor-General issued in November, one thousand seven hundred and ninety-one, which have ever since existed:
Be it therefore enacted by the Queen’s most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by authority of the same, as follows:
1. This Act may be cited as the Canada (Ontario Boundary) Act, 1889.
2. It is hereby declared that the westerly, northerly, and easterly boundaries of the province of Ontario are those described in the address set forth in the schedule to this Act.
For clarity, the boundaries are described in the schedule to the Act. In the Ottawa Valley, the boundary follows along the middle of the main channel of the Ottawa River after it empties out of Lake Temiscamingue; “such mid-channel being as indicated on a map of the Ottawa Ship Canal Survey made by Walter Shanly, C.E., and approved by Order of the Governor-General in Council, dated the twenty-first July one thousand eight hundred and eighty six;”
Exhaustive research has determined that the Order of the Governor-General in Council referred to above, does not exist.
As recently as March 9, 2016, the Federal Government, responding to a question placed on the Order Paper of the House of Commons by Cheryl Gallant, Member of Parliament for Renfrew-Nipissing-Pembroke, it was confirmed that of eight Orders of the Governor General in Council that were approved July 21st 1886, none of them pertained to the boundary between Quebec and Ontario. While reference was made in the March response to a pre-confederation order-in-council, the constitution only mentions the missing 1886 Order-in Council. The Minister of Natural Resources, who is also the Surveyor-General of Canada, concluded the official federal government response by stating;
“As stated in the Canada (Ontario Boundary) Act, 1889, the middle of the main channel still delineates the boundary between Ontario and Quebec. The main channel of the Ottawa River today may be different than that shown on the map of the Ottawa Ship Canal Survey by Walter Shanly, C.E.; nevertheless, it does not change the interprovincial boundary.”
That leaves the survey by Walter Shanly referred to in the Boundary Act of 1889 that now forms part of the Canadian Constitution, as the final authority on the location of the boundary.
So what does Walter Shanly say in his “Report of the Ottawa and French River Navigation Project,” that was submitted to the Legislative Assembly of Canada
“It has been mentioned on page 2 of this report, that by far the most obstructed
portion of the Ottawa is that extending from Fort William, at the foot of the Deep River, to Portage du Fort at the head of the Chats Lake, a distance of sixty miles. To this section of the route, surveying operations were mainly confined, and the results fully confirm the conclusion I had from personal observations previously arrived at, namely, that the north side of the river throughout the whole of this distance are presented the best facilities for improving the navigation.”
Where the Ottawa river divides into two channels near Pembroke, Mr. Shanly identifies the Northern channel, known as the Culbute, as the navigable or main
channel, best suited for navigation. The southern channel, known as the Pembroke channel, is clearly marked as being “not sounded” on the charts that accompanied Shanly’s Report.
Where the Ottawa River once again divides into two channels, Shanly identifies the North Channel, called the Calumet channel, as the main or navigable channel best suited for navigation.
That places Allumettes, Morrison, Calumet, and Sullivan (Little Calumet) islands clearly in the province of Ontario.
The people who live on these islands presume to live in the province of Quebec, which has been only too happy to collect Quebec taxes from island residents as well as pass laws. Much to the annoyance of Ontario electricity customers, Allumettes Island residents benefit from cheap electricity rates.
In more recent times, the 1889 statute setting out the boundary between Ontario and Quebec was identified as a constitutional document when Canada’s Constitution was being repatriated. It is now in the appendix of the Constitution Act, 1982 and is entrenched in the Constitution of Canada. Any changes to the Ontario-Quebec boundary would require an amendment to the Constitution.
Should the residents of these islands wish to be a part of the province of Quebec, it will require an amendment to the Canadian Constitution, with agreement from all affected parties; Ontario, Quebec and the Federal Government.
Once you open up the constitution, you open it up to all manner of changes.
And it could get more complicated.
The Federal Government has designated the Ottawa River a Canadian Heritage River. Since the designation includes only the Ontario side of the Ottawa River, as Quebec has opted out of the Canadian Heritage River Program, the question then becomes exactly what is being designated.
For residents who enjoy fishing in the Ottawa River, the river boundary is an annoyance when they are stopped by law enforcement and asked if they are using Quebec or Ontario worms for bait.
There is a comprehensive land claim taking place with the Algonquins of Ontario. Algonquins in Quebec have been asking for similar treatment and recognition.
In the 19th century, Allumettes Island was promised to the Algonquins as Algonquin territory, a fact recognized by the Crown, who subsequently reneged on that promise. Maybe Allumettes Island does not belong in either Quebec or Ontario and should revert back to the Crown as Federal land as part of the Algonquin land claim negotiation process.
For the past 150 years, the boundary between Ontario and Quebec was assumed to be in one location, when by legislation, and now entrenched in Canada’s Constitution, it appears the boundary follows a different line.
It’s only fitting that on the 150th anniversary of the founding of Canada
we should be having a constitutional discussion. The first legal challenge to
jurisdiction ensures that this issue cannot remain hidden for another 150 years.
If it is the will of the people to change the boundary, there is a proper, legal,
constitutional process to follow.