Peter H. Russell’s Canada’s Odyssey is a sweeping reconsideration of the foundations of Canada’s constitutional order that has garnered considerable attention and praise. This essay is the third in a three-part series assessing the book’s significance.
Nicole C. O’Byrne
Question: Do you think history is actually too important to be left to the professional historians and academic history departments?
Answer: Oh, for sure. I describe myself as an unlicensed historian. And there’s a lot of us. Some of them in the media…many who write good history in magazines and publish books without having their Ph.D.’s in history and they do terrific research and analysis. So, you can do this, you can do some history if you have integrity in terms of looking at the right resources and assessing them fairly without being a licensed historian.[1]
During a recent Witness to History podcast with Peter Russell, author of Canada’s Odyssey, interviewer Greg Marchildon starts the interview by posing this provocative question. Russell, a political scientist who has spent his career researching and writing about constitutional issues, has never shied away from employing historical sources or method in his work. In the interview, Russell points out that it is nearly impossible to write about politics or constitutional law without understanding the historical context. One of the major strengths of Canada’s Odyssey is Russell’s willingness to clearly situate himself within the debate over who should write history and whether history should be used to help explain contemporary political debates.
In the introduction, Russell boldly asserts his purpose: “[t]he book is an argument about Canadian history and its bearing on Canada today” and that he is “a political scientist who believes strongly that an understanding of today’s politics requires an appreciation of formative events of the past.”[2] He then clearly states that his work uses historical research to illustrate the idea that modern Canada is the product of the relationship of three pillars: First Nations, French Canadians and an English-speaking majority. He argues that it is the intersections between the people who constitute these three pillars that have shaped the unique constitutional experiment that is the Canadian state. Throughout the book, Russell marshals historical evidence to support his thought-provoking thesis that Canada has been successful as a pluralistic nation because the English-speaking pillar never successfully dominated the French Canada or Indigenous peoples. Keenly sensitive to historical context, Russell carefully outlines that the imperial ambitions of the English-speaking pillar were often tempered by political expedience, lack of resources, or withdrawn due to active resistance. The ambition and scope of the work reflects Russell’s decades of working and thinking about the constitution and political dimensions of the Canadian state. Some may question his instrumentalist use of historical material to inform a reconceptionalization and challenge some of his conclusions; however, his ideas are supported by a prodigious amount of research and careful analysis. The book is a monumental achievement – one that will undoubtedly influence the debate over the nature of Canada itself. Peter Russell may not be a ‘licensed historian’; however, his ideas about the nature, history and purpose of Canada will undoubtedly be as influential as those presented by such ground-breaking historians as Donald Creighton, Harold Innis, Sylvia Van Kirk, or H.V. Nelles.
Despite the groundbreaking nature of the work, many of Russell’s ideas in Canada’s Odyssey are not altogether new. Throughout the book, he masterfully weaves in the work of political philosophers and legal theorists such as Jim Tully, James Youngblood (sákéj) Henderson, and John Borrows.[3] For several decades, these scholars along with countless others, have been arguing that Indigenous peoples have always played an active role in the shaping of the Canadian state. In this book, Russell builds on his own significant body of work in this area and skillfully integrates the role played by First Nations and Métis in the constitutional history of Canada by relying on the work of Indigenous scholars.[4] In his 1992 book, Constitutional Odyssey – Can Canadians Become a Sovereign People?, Russell explored the role played by Indigenous peoples in the history of Canada since 1867.[5] Significantly, he now rejects The British North America Act, 1867 as the starting point for discussions about the origins and nature of the Canadian federal state. In Canada’s Odyssey, Russell replaces the focus on two nations by shifting the starting point of the journey to the 1764 Treaty of Niagara, which he regards as “Canada’s first Confederation.”[6] He argues that this shift is essential to redefining Canada because the treaty recognized the political and territorial independence of the Indigenous peoples and set out the terms of reciprocal relationship between nations joined.
Throughout the book, Russell returns to the theme that Indigenous peoples played an integral role in the formation of the Canadian state. The shift in focus on Indigenous-non-Indigenous relations from the late 19th century to the 18th is important because it illustrates the status by which First Nations were regarded by both French and English Canada. In the 18th century, Indigenous peoples signed Peace and Friendship treaties with the state. These treaties recognized the independent status of the First Nations and did not surrender land. By the late 19th century, however, the relationship between the Canadian state and the First Nations had deteriorated. The treaties signed in the 19th century were land cession treaties and the Canadian state passed the Indian Act 1876, a profoundly colonial piece of legislation the consequences of which we are still unwinding.
In a series of exceptionally well-researched chapters, Russell outlines the consequences of Indigenous-state relations as they evolved over the past 300 years. The political and legal consequences of events such as the Red River Resistance and the 1969 White Paper are not treated as footnotes to the unfolding sage of French-English relations. Rather, Indigenous-state relations are presented to the reader as foundational to the understanding contemporary constitutional and political issues such as the meaning of section 35 of The Constitution Act, 1982, the noxious legacy of residential schools, the Truth and Reconciliation Commission’s Calls to Action and various important court cases such as Tshilqot’in v British Columbia and Manitoba Metis Federation v Canada.[7] Significantly, Russell illuminates the underlying constitutional problems associated with Indigenous-state relations and explains why Indigenous peoples “are more than a disadvantaged ethnic minority – that they are members of long-standing political societies… .”[8] This distinction is essential to understanding Russell’s three pillars thesis as well as the significance of including Indigenous people in explorations of Canada’s social contract past, present, and future.
Russell’s prodigious historical research and exhaustive review of the secondary literature will make it difficult if not impossible for future scholars to argue that the project of Canada started in 1867. His argument shifts the constitutional frame back to the 18th century and recognizes the integral role played by Indigenous peoples in the creation of Canada. He also makes a convincing argument regarding the nature of the social contract that underlies the continuing existence of the Canadian state. In the introduction, Russell claims that “big bang” mega-constitutional politics such as the negotiations leading up to The Constitution Act, 1982 and the Charlottetown Accord are not appropriate for a country based on three pillars. He argues that “a country as diverse and complex in its composition as Canada, the organic constitutionalism of Edmund Burke is the path along which Canadians can best adjust their relationships with one another.”[9]
Throughout the book, Russell presents convincing evidence that Canada has never been the result of a Lockean social contract in which a cohesive political, cultural group has agreed to be governed by a majoritarian ethos bound by a rule of law. Rather, Russell argues that the continuous mediation between the three pillars provided space for institutions such as parliamentary government, constitutionalism, federalism and monarchy to develop in ways that reflected the needs of the governed. Russell does not argue that the evolution has been smooth or even adequate; however, he does argue that the contested relational space between the pillars has encouraged the evolution of a pluralistic constitutional frame. One that would not have been possible under the imposition of a majoritarian social contract under which the consent of aspirations of minorities would have been quashed.
Russell’s characterization of Canada’s constitution as largely incremental and organic is convincing. While large-scale constitutional negotiations such as the Charlottetown and Kelowna Accords generally have a poor record of success, there are hundreds if not thousands of smaller economic development projects currently operating in Canada. For example, the Membertou First Nation on Cape Breton Island participates in many joint projects is widely regarded as an economic driver in the region.[10] Political and legal institutions such as the Supreme Court of Canada have also operated in the space between the three pillars and have served to mediate disputes. The Quebec Succession Reference is a particularly good example of a jointly constituted entity navigating a seemingly intractable dispute between two of Canada’s founding pillars.
In conclusion, Russell may be a self-described ‘unlicensed historian’ and his instrumentalist use of historical research may deserve criticism from academic historians who will undoubtedly query aspects of his three-pillar thesis. However, a synthetic overview such as this should become foundational reading for anyone interested in the legal, constitutional, and political history and current nature of the Canadian state. The accessible language and the historical sensitivity contextualize the constitutional issues in a way that clearly outlines the past, present, and future challenges inherent in governing an inclusive and pluralistic federalist state. Russell has brought a lifetime of scholarly integrity to the vital project of reconceptualizing a more inclusive constitutional state – one in which the contributions of all have been recognized. This remarkable book is essential reading and will undoubtedly change the conversation about origin and nature of Canada.
Nicole C. O’Byrne, Ph.D. is an Associate Professor at the Faculty of Law, University of New Brunswick where she teaches Aboriginal Law, Criminal Law and Evidence. Her current research interests include the British North America Act 1930 and the history of Medicare in Atlantic Canada.
[1] Witness to History – The Podcast of the Champlain Society, Interview with Peter H. Russell, 1 July 2018. https://champlainsociety.utpjournals.press/witness-to-yesterday
[2] Peter H. Russell, Canada’s Odyssey – A Country Based on Incomplete Conquests (Toronto: UTP, 2016), p. 4.
[3] See: James Tully, Strange Multiplicity – Constitutionalism in an Age of Diversity (Cambridge: Cambridge UP, 1995); James (sákèj) Youngblood Henderson, “Empowering Treaty Federalism,” Saskatchewan Law Review 58(1994): 241-329; John Borrows, Recovering Canada – The Resurgence of Indigenous Law (Toronto: UTP, 2002).
[4] See: Peter H. Russell, “The Dene Nation and Confederation,” in Dene Nation – The Colony Within, ed. Mel Watkins (Toronto: UTP, 1976), 163-173.
[5] Peter H. Russell, Constitutional Odyssey – Can Canadians Become a Sovereign People? 3rd ed. (Toronto: UTP, 2004).
[6] Russell, Canada’s Odyssey, 5.
[7] Tshilqot’in v British Columbia, [2014] 2 SCR 257; Manitoba Metis Federation v Canada, [2013] 1 SCR 623.
[8] Russell, Canada’s Odyssey, 323.
[9] Russell, Canada’s Odyssey, 18.
[10] See: Christopher Alcantara and Jen Nelles, A Quiet Evolution – The Emergence of Indigenous-Local Intergovernmental Partnerships in Canada (Toronto: UTP, 2016).
Featured Image: “A view of Niagara Fort, taken by Sir William Johnson on the 25th July 1759, drawn on the spot in 1758.” Library and Archives Canada, Upper Canada cartographic material, R11981-130-8-E.
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