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Claude
Bélanger, The Statute of Westminster was the last of the Imperial Acts of the Parliament of Great Britain applicable to all the Dominions. It granted Canada, Newfoundland, New Zealand, Australia, the Union of South Africa and the Irish Free State what amounted to independence. As in most advances in British constitutional practices, the Statute of Westminster did not constitute a clear break with the past. It merely only consecrated practices that were already firmly established. In the case of Canada, one could consider that the road to independence started with the grant, to the several colonies, of a legislature and eventually of Responsible Government (1847-48). Confederation (1867) crowned this period in so far as, for all intent and purposes, the provinces and the Dominion government obtained full control of all internal matters. The next sixty years were to see a gradual take-over by the federal government of the responsibilities in external sovereignty that had remained, to this point, in the hands of the government and Parliament of Great Britain. Important dates in the road to independence were the withdrawal of the British troops from Canada (1871), the negotiation of the Washington Treaty (1871) where for the first time a Canadian was included in a British negotiating team to sign a treaty on behalf of Canada, the establishment of the Supreme Court of Canada (1875), the creation of a High Commissioner's Office in London to "represent" Canada (1878), Macdonald’s refusal to send Canadian troops to the Sudan (1885), the last use of the veto (1873) and reserve powers by Britain (1886) under ss. 55-57 of the Constitution Act, 1867, and the establishment of the Department of External Affairs (1909). It was the First World War that accelerated the process to independence. The major colonies played a role of such magnitude that it could not be said, by the end of the war, that they were mere colonies of Great Britain. Hence, the international status of Canada evolved rapidly in the post-World War period: in 1919, Canada signed the Treaty of Versailles and was elected as an independent member of the League of Nations ( a Canadian, Raoul Dandurand became a President of the League in 1925); in 1923, Canada signed for the first time a treaty on its own (Halibut Treaty) and, finally in 1926, the Balfour resolution was adopted at the Imperial Conference. Arthur Balfour presented this resolution to the Imperial conference of the self-governing dominions. In it Great Britain recognized that the Dominions were "autonomous communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations". Thus, by 1931, Canada and the other Dominions had become "autonomous communities... equal in status" to Great Britain. There were some problems resulting from the federal nature of Canada connected with the accession to independence. If Britain was not responsible for Canada any more, who would receive the power to alter Canada's constitution? A Dominion-Provincial conference in 1927, considered this issue. The federal Minister of Justice, Ernest Lapointe, proposed that Great Britain confer upon the federal Parliament powers to change the constitution subject to the rule, for ordinary amendments to the Constitutional Act, 1867, the consent of the majority of the provinces should be obtained, while for fundamental changes - the distribution of powers and minority rights (ss. 93, 133) - the unanimous consent of the provinces would be required. The provinces rejected the report of the Minister of Justice as too vague. Later, in 1930, the Premier of Ontario, G.H. Ferguson, presented a strongly worded memorandum expounding the Confederation pact theory by which there would be need of unanimous agreement between provinces before the Constitution Act be patriated to Canada. The Prime Minister of Quebec, Alexandre Taschereau, supported the views of Ontario. Consequently, the Statute of Westminster granted independence to Canada except in relation to the amendment of the constitution. Until 1982, all attempts to patriate the constitution were unsuccessful so that Canada continued to seek amendments in London and an element of colonial status remained in force (one might also add that appeals to the Judicial Committee of the Privy Council existed until abolished in 1949). Terms of the Statute Any alteration in the law governing the Succession to the Throne would require the assent of the Dominion Parliaments as well as that of the United Kingdom. No law of the Parliament of Britain shall extend to any of the Dominions "otherwise than at the request and with the consent of that Dominion." Thus the Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63) was repealed (s. 1). The Parliaments of the Dominions obtained "full power to make laws having extra-territorial operation." (s. 3) Art. 7 stipulated that "Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of British North America Acts, 1967 to 1930 (now renamed Constitution Acts), or any order, rule or regulation made thereunder." S. 7 (3) stated "The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or any of the legislatures of the Provinces respectively."
© 2001 Claude Bélanger, Marianopolis College |