Regional Self-Government, Mantario or Canada's 11th Province? An Analysis of Self-Determination For Northwestern Ontario
| Author | Adam Jantunen |
| Position | University of Victoria, Faculty of Law |
| Pages | 112-144 |
112 n APPEAL VOLUME 12
REGIONAL SELF-GOVERNMENT, MANTARIO OR
CANADA’S 11TH PROVINCE?
AN ANALYSIS OF SELF-DETERMINATION FOR
NORTHWESTERN ONTARIO
Adam Jantunen, University of Victoria - Faculty of Law
Adam Jantunen, originally from Thunder Bay, Ontario, is a third-year law student at the University of Victoria.
He holds degrees in History (Hons.) and Political Science from the University of Ottawa. Upon graduation, he
will be articling with Stikeman Elliott LLP in Ottawa.
CITED: (2007) 12 Appeal 112-144
“The Constitution is the expression of the sovereignty of the people of Canada.
It lies within the power of the people of Canada, acting through their various
governments duly elected and recognized under the Constitution, to effect what-
ever constitutional arrangements are desired within Canadian territory, including,
should it be so desired, the secession of Quebec from Canada.”
– Supreme Court of Canada, 19981
“[S]overeignty is no value in itself. It’s only a value insofar as it relates to freedom
and rights, either enhancing them or diminishing them.”
– Noam Chomsky2 “Control of Our Lives” Lecture, February 26, 2000.
Canada is often described as a nation of nations, because of its geographic size and cultural
diversity. By making Canada a federal state, the drafters of the Constitution Act, 1867 sought
to balance regional interests with the desire to create a strong, united country. However, after
more than a century of constitutional litigation, attempts at constitutional reform, and federal-
provincial power-sharing arrangements, the proper balance is anything but clear.
The same tensions exist within many provinces. Unlike provinces and the federal govern-
ment, sub-provincial entities such as regions, municipalities, and cities have no constitutionally
guaranteed powers, and sometimes regional grievances are even more pronounced than pro-
vincial complaints against the federal government.
One such region is Northwestern Ontario. Professor Livio Di Matteo, a Lakehead Univer-
sity economist and leading authority on Northwestern Ontario, defines Northwestern Ontario
2 Noam Chomsky, “Control of Our Lives” (Lecture delivered at the Kiva Auditorium, Albuquerque, New Mexico, 26 February
2000), online: Z Communications .
APPEAL VOLUME 12 n 113
as the territory covered by the Kenora, Rainy River and Thunder Bay census districts.3 Using
this definition, Northwestern Ontario runs from the Manitoba border, east to the Wawa area
and north to Hudson Bay and James Bay.4 This appears to be the most commonly accepted
definition of the region, though different organizations have used different definitions for ad-
ministrative purposes.5
From the time Northwestern Ontario was annexed to Ontario to the present day, many
Northwesterners have felt alienated and neglected by Southern Ontario. Though all of Ontar-
io’s northern regions have been said to experience a certain degree of alienation relative to the
economically and politically dominant South, Di Matteo et al. note that “this alienation is often
more keenly felt in the northwest portion of the province rather than the northeast, which is
immediately adjacent to the south”.6
As a result, since its annexation to Ontario, groups in Northwestern Ontario have alterna-
tively called for the region to be granted some type of regional autonomy, become a separate
province, join with the northeast to create a province of Northern Ontario (under various names,
such as Algoma, Huronia or New Ontario), or join Manitoba (to form a province of “Mantar-
io”).7 Recently, the region’s severe economic decline has fuelled the latent desire of many in the
region for such political change.8 Many Northwesterners feel that Ontario has failed to respond
adequately to this decline. In a recent Economist article, Di Matteo suggested that support for
separation from Ontario is at an all-time high.9 However, to my knowledge, this support does
not extend to the creation of an independent country of Northwestern Ontario.10
The proposed alternative governance structures are all technically possible. First, regarding
regional autonomy, the City of Toronto recently gained broad powers of regulation, the abil-
ity to engage in inter-governmental relations, and increased fundraising capabilities through
Ontario’s passage of the Stronger City of Toronto for a Stronger Ontario Act.11 Di Matteo has
suggested that if Toronto can gain increased regional powers, not only could Northwestern
Ontario gain the same, but that it would be irresponsible not to give similar grants of power to
the Northwest.12 He notes that “[c]reating what amounts to regional government for Toronto
without creating regional governments in the rest of the province is asymmetrical federalism at
its worst”.13 Second, provisions for creating new provinces and for redrawing provincial bound-
aries are contained in Part V of the Constitution Act, 1982.14 Subsection 42(1)(f) provides that,
3 Livio Di Matteo, J.C. Herbert Emery & Ryan English, “Is It Better to Live in a Basement, an Attic, or to Get Your Own Place?
Analysing the Costs and Benefits of Institutional Change for Northwestern Ontario,” 32 (2006) 2 Can. Pub. Policy at 174
[Di Matteo, Emery & English].
4 See Appendix A – Figure 1.
5 The Ontario government uses the same definition of Northwestern Ontario, online: MAH - OnRAMP - Northwestern On-
tario .on.ca/userfiles/HTML/nts_1_17375_1.html>. Parks Ontario uses a slightly different definition
of Northwestern Ontario, drawing the region’s southeastern border at Marathon and the northeastern border due north
from Highway 11 east of Longlac. See Appendix A – Figure 2.
6 Di Matteo, Emery & English, supra note 3 at 174.
7 Gordon Brock, The Province of Northern Ontario, (Cobalt: Highway Book Shop, 1978) at 72 [Brock].
8 See e.g. “The Lumberjacks Are Not OK” Economist (9 March 2006), online: Fissiparous Canada: The lumberjacks are not
OK .cfm?story_id=5609889> [The Economist].
9 Ibid. Note that Di Matteo himself favours regional autonomy within Ontario over separation from Ontario.
10 Note that the term “sovereignty”, as it appears in this paper in the context of Northwestern Ontario self-determination,
will refer to the sovereign right of people to control their future, as contemplated in the Secession Reference, supra note 1
and not to political independence.
11 Stronger City of Toronto for a Stronger Ontario Act, S.O. 2006, c. 11 [City of Toronto Act].
12 Livio Di Matteo, “The Northern Ontario Party?” Northern Ontario Business (December 2005), online: Northern Ontario
Business - The Northern Ontario Party?
party.asp>.
13 Ibid.
14 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
114 n APPEAL VOLUME 12
in order to create a new province, resolutions must be passed by the Senate, House of Com-
mons and two-thirds of the legislative assemblies of provinces that have at least 50 per cent of
the population. Subsection 43(a) requires that any change to boundaries between provinces
must be approved by the Senate, House of Commons, and the legislative assemblies of the
provinces to which the alteration of boundaries applies.
This essay will address three major questions. First, I will examine the historical issues sur-
rounding Northwestern Ontario’s accession to Ontario. Second, I will look at the issues, histori-
cal and contemporary, which have led to calls for Northwestern Ontario regional autonomy
and/or provincial realignment. Third, I will address the question of whether Northwestern On-
tario has a right to self-determination, based on international and domestic law and Canadian
political history.
PART I: Northwestern Ontario’s Accession to Ontario
From Confederation to the late 1880s, the Dominion of Canada and Ontario fought an
often-fierce political, legal and sometimes physical battle for control of Northwestern Ontario.
Though the federal government and Ontario provided a wealth of legal arguments to support
their cases, their motivations were far more economic and political than legal.
In Ontario’s case, from the 1850s onwards, many influential Torontonians believed that
Ontario’s economic future depended on its annexation and conquest of the Northwest. In De-
cember 1856, publisher, politician and future Father of Confederation George Brown stated in
his newspaper, The Globe, “[l]et the merchants of Toronto consider, that if their city is ever to
be made really great—if it is ever to rise above the rank of a fifth rate American town—it must
be by the development of the great British territory lying to the north and west”.15
Viewing the north as a vast, untamed terra nullius, Ontario considered it vital to acquire
the Northwest as an agricultural frontier and a source of natural resources.16 The discovery of
Silver Islet, which from 1870 to 1884 was the richest silver mine in the world, spawned further
interest in the region. Ontario Premier Oliver Mowat sought to emulate European leaders who
were acquiring new territories in Africa and Asia, and American politicians who believed that
expansion and settlement west to the Pacific Ocean was part of America’s “manifest destiny”.17
During this era, “maps made heady reading which showed the doubled area of Ontario with
appended comment suggesting that, were it not for the obstruction of malevolent forces in Ot-
tawa and other provinces, Ontario would be fulfilling its manifest destiny”.18
The federal government of John A. Macdonald also wanted to open up the frontier for set-
tlement and development. However, for various reasons, Macdonald opposed Mowat’s plans.
Control of Northwestern Ontario was part of a larger provincial rights struggle;19 while Mac-
15 Randall White, Ontario 1610-1985 (Toronto: Dundurn Press, 1985) at 110 [White].
16 Di Matteo, Emery & English, supra note 3 at 175. See also H.G. Nelles, The Politics of Development (Toronto: Macmillan,
1974) [Nelles].
17 See Michael T. Lubragge, “Manifest Destiny: The Philosophy that Created a Nation”, online: From Revolution to Recon-
struction: Essays: Manifest Destiny: The Philosophy That Created A Nation .let.rug.nl/usa/E/manifest/manif1.
htm>.
18 Kenneth MacKirdy, “National vs. Provincial Loyalty: The Ontario Western Boundary Dispute, 1883–1884” 11 (1959) 3
Ontario History at 194 [MacKirdy].
19 For a detailed analysis of the boundary dispute’s significance in federal-provincial relations, see Chapter 3 of J.C. Morrison,
“Oliver Mowat and the Development of Provincial Rights in Ontario: A Study of Dominion-Provincial Relations, 1867–
1896”, in Three History Theses (Toronto: Ontario Department of Public Records and Archives, 1961) at 1 [Morrison].
APPEAL VOLUME 12 n 115
donald sought to create a strong federal government, exercising federal disallowance powers20
and pursuing other centralist policies, Mowat advocated for increased provincial powers and
suggested that “the Provincial Governments of all parties should always diligently watch over
and maintain the rights of the Provinces”.21 By opposing Mowat’s expansionism, Macdonald
was likely sending a message to Ontario that Canada, and not any one province, would deter-
mine the nation’s geographic future. On a similar note, if Ontario gained control of the North-
west, Macdonald feared that the balance of Confederation would be tipped and that Ontario’s
power would rival even that of the federal government. Balance of power considerations also
applied at the interprovincial level. Christopher Robinson, counsel for the Dominion in the 1884
Judicial Committee of the Privy Council (“J.C.P.C.”) arbitration of the boundary dispute (which
will be discussed later), stated that “Confederation was formed under a great deal of difficulty,
and it is carried on under some difficulty”.22 Specifically, Macdonald knew that if Ontario got its
way, Quebec would be opposed to Ontario being larger than it was when it entered Confed-
eration, and that Manitoba would lose land that it desired, and even “required”23 for its future
growth. With this in mind, Macdonald sought to quell interprovincial rivalries by opposing
Ontario’s expansionist plans. A final reason for Macdonald’s position was that the Dominion
would control Northwestern Ontario’s resources if the territory were either part of Manitoba or
a Crown Territory.24 Given Northwestern Ontario’s immense natural resources, this is perhaps
the most logical of Macdonald’s reasons. Allocation of lands and the resources they contained
was an extremely important political issue post-Confederation.25
After Confederation, Manitoba became the third player in the boundary dispute. Section 1
of the Manitoba Act, passed in May 1870, provided that Her Majesty the Queen “by Order in
Council … admit Rupert’s Land and the North-Western Territory into the Union or Dominion of
Canada, [and that] there shall be formed out of the same a Province, which shall be one of the
Provinces of the Dominion of Canada, and which shall be called the Province of Manitoba”.26
Originally, Manitoba was known as the “Postage Stamp Province”, because it was only about
20 Peter Hogg, Constitutional Law of Canada, 2nd ed. (Toronto: Carswell, 1985) at 90. Hogg notes that “[t]he federal power
to disallow provincial statutes was frequently exercised by the dominant federal government in the early years of confed-
eration”. However, he goes on to say “modern development of ideas of judicial review and democratic responsibility has
left no room for the exercise of the federal power of disallowance” and suggests it is obsolete as an instrument of federal
policymaking.
21 White, supra note 15 at 164.
22 Legislative Assembly of Ontario, The Proceedings Before The Judicial Committee of Her Majesty’s Imperial Privy Council
of the Special Case Respecting the Westerly Boundary of Ontario (Toronto: Warwick and Sons, 1889) at 399.
23 Ibid.
24 Morris Zaslow, “The Ontario Boundary Question,” in Profiles of a Province: Studies in the History of Ontario (Toronto:
Bryant Press Ltd., 1967) at 112 [Zaslow].
25 Nelles, supra note 16 at 2.
26 Manitoba Act, 1870, 33 Vict., c. 3, s. 1 (Canada). I would argue that the Manitoba Act’s wording is incorrect, and that
Rupert’s Land and not the North-Western Territory covered all of modern-day Manitoba. Rupert’s Land and the North-
Western Territory were geographically separate. The former consisted of lands within the Hudson Bay drainage basin,
which covers all of Manitoba, along with much of modern-day Northern Ontario, most of Saskatchewan and part of South-
ern Alberta. The North-Western Territory consisted of lands to the north and west of Rupert’s Land, which lay within the
Arctic and Pacific drainage basins. For more information, see Library and Archives Canada, “The North-Western Territory
and Rupert’s Land”, online: Library and Archives Canada
e.html>. Both territories were property of the Hudson’s Bay Company and were admitted to Canada in June 1870 with the
passage of the Rupert’s Land and North-Western Territory Order.
Adding to the confusion is the fact that some sources use “North-Western Territory”, “Northwest Territory” and “North-
west Territories” interchangeably (for example, see “Atlas of Canada – Territorial Evolution 1870”, online: Natural Re-
sources Canada ). However, the three
regions were distinct entities. The Northwest Territory was a region south of the 49th parallel, ceded to Britain by France in
the 1763 Treaty of Paris, and which later became the American states of Ohio, Illinois, Michigan, Wisconsin, Indiana and
Minnesota (source: “History – Northwest Territory,” online: MariettaOhio.info: History: Northwest Territory
ettaohio.info/history/northwest/index.php>). The Northwest Territories was the name given to the sections of Rupert’s
Land and the North-Western Territory controlled by the federal Crown after being admitted to Canada in 1870.
116 n APPEAL VOLUME 12
33,280 square kilometres,27 surrounded by the Northwest Territories. Rapid population growth,
combined with other limitations inherent in a small, landlocked territory, led to calls by the
Manitoba government for its borders to be expanded by the federal government. As early as
1873, Manitoba was lobbying for territorial expansion that would give it control of much of
Northwestern Ontario, including a much-coveted port facility at the Lakehead.28
The fourth party to the dispute, and arguably the most influential, was the British Crown.
In many ways, Canada was still effectively a colony until well into the twentieth century,29 and
the admission of new territories to Canada was an area over which the British Crown had par-
ticular influence. Section 146 of the Constitution Act, 1867 provides that:
It shall be lawful for the Queen, by and with the Advice of Her Majesty’s
Most Honourable Privy Council … on Address from the Houses of the Par-
liament of Canada to admit Rupert’s Land and the North-western Territory,
or either of them, into the Union, on such Terms and Conditions in each
Case as are in the Addresses expressed and as the Queen thinks fit to ap-
prove, subject to the Provisions of this Act; and the Provisions of any Order
in Council in that Behalf shall have effect as if they had been enacted by the
Parliament of the United Kingdom of Great Britain and Ireland.30
Even after Rupert’s Land became a Dominion territory, Clement writes that the order of
legislative hierarchy in the acquired territory was 1) the Imperial Parliament; 2) the Canadian
Parliament and 3) the Lieutenant-Governor of Manitoba, who was appointed to oversee the
Northwest Territories.31
The one party not yet mentioned is, of course, the people of Northwestern Ontario. By
1867, Ontario had granted 35,000 acres of land to homesteaders in the region of modern-day
Thunder Bay, and municipal institutions had been established by the province at Prince Arthur’s
Landing (now Thunder Bay North). However, Ontario, Manitoba and the Dominion largely ig-
nored the inhabitants of Northwestern Ontario during the territorial dispute. In fact, it appears
that many Northwesterners, such as M.P. Simon Dawson, opposed the Northwest being part
of Ontario.32 Dawson had moved to the Northwest after he was hired by the federal Depart-
ment of Public Works to construct a road between the Lakehead and the Red River Settlement,
and his concern for the future development of the region is said to be what inspired him to
enter politics.33 He served as Member of Parliament for the Algoma riding (which covered all
of modern-day Northern Ontario) provincially between 1875 and 1878 and federally between
1878 and 1891. During this time he lobbied for Northern Ontario to be a separate province,
both as an independent M.P. (until 1887) and as chairman of the parliamentary committee that
examined Ontario’s boundary claims in 1880.34 However, the creation of a northern province
27 Association of Manitoba Land Surveyors, “Manitoba’s Boundaries”, online: Manitoba Land Surveyors //www.amls.ca/>.
28 Ibid. Di Matteo,Emery & English note that “in 1905, while introducing a series of resolutions calling for the northern exten-
sion of the province’s boundaries Manitoba’s Attorney General C. H. Campbell made reference to the award of 1884 and
how it had deprived Manitoba of its ‘own port facilities’ at the Lakehead.” See Livio Di Matteo, J.C. Emery & Ryan English,
“Is it Better to Live in a Basement or an Attic? Analysing the Costs and Benefits of a Union of Northwestern Ontario and
Manitoba” (2005) at 10, online: University of Calgary .
29 Many historians have argued that Canada did not become fully independent until 1931, when the Statute of Westminster
provided that Imperial laws would not extend to a dominion unless “it is expressly declared in that Act that the dominion
has requested, and consented to, the enactment thereof”, Statute of Westminster, 1931 (U.K.), 22 Geo. 5, c. 4, reprinted
R.S.C. 1985, App. II, No. 27, s. 4.
30 Constitution Act, 1867 (U.K.) 30 & 31 Vict., c. 3, s. 146.
31 W.H.P. Clement, The Law of the Canadian Constitution, 3rd ed. (Toronto: Carswell, 1916) at 853 [Clement].
32 Elizabeth Arthur, “Dictionary of Canadian Biography Online (Simon Dawson)”, online: Dictionary of Canadian Biography
Online . Arthur notes that “the eastern part of the riding had
never been caught up in the boundary dispute”.
33 Ibid.
34 Ibid.
APPEAL VOLUME 12 n 117
appears never to have been seriously considered by the authorities responsible for its future.
Rather, the three disputing parties saw Northwestern Ontario as virgin territory ripe for politi-
cal division, and conveniently ignored the presence of a settler population and, of course, the
region’s large Aboriginal population.
Most modern sources agree that at Confederation, most of Northwestern Ontario was
owned by the Hudson’s Bay Company (“H.B.C.”) as part of Rupert’s Land.35 Zaslow notes that
“[c]ontemporary maps, notably the famous Arrowsmith map of 1857, showed the limits of the
Province of Canada as being the “height of land” separating the Great Lakes and St. Lawrence
drainage basin from that of the rivers flowing into Hudson and James Bays”.36 By the same
token, the Atlas of Canada’s map of Canada in 1867 shows Ontario’s Northwest border as cor-
responding to the boundary of the St. Lawrence drainage basin.37 In an earlier constitutional
law text, Clement also notes that, “speaking roughly, the country known [as Rupert’s Land]
comprised the territory watered by streams flowing into Hudson’s Bay”.38
However, even before Canada came into existence, there were challenges to this inter-
pretation. In 1857, the Canadian Commissioner of Crown Lands, Joseph Cauchon, began to
develop a case against the H.B.C. claim to all lands outside the height of land. Cauchon argued
that, after the Seven Years’ War, Canada had acquired more land from France than previously
thought. This was because French exploration and fur trading activity in Northwestern Ontario
had given France title to unoccupied H.B.C. lands.39 Cauchon also argued that the H.B.C. Char-
ter did not give it automatic title to land, but rather, that sovereignty was based on settlement
and occupation. Finally, he argued that legislation had extended Canadian sovereignty over
the Company lands over the previous century.40 Ironically, the same arguments were raised by
Ontario post-Confederation, in its claim to the Northwest.41
In 1868, the Imperial Parliament in Great Britain passed the Rupert’s Land Act.42 This em-
powered the Crown to negotiate the entry of Rupert’s Land into Canada and provided that
Canada would have governmental authority over the territory after it was acquired. The ad-
mission of Rupert’s Land to Canada in 1870, by way of an Imperial Order-in-Council, forced
all parties to strive for a solution to the boundary question, in order to decide to whom the
new territory would be assigned.43 In September 1872, the Dominion and Ontario appointed
boundary commissioners to determine Ontario’s western border. The Canadian representative
argued that the border lay to the east of Prince Arthur’s Landing (longitude 89° 9’ 30” west),
which would have excluded all of modern-day Thunder Bay.44 The Ontario representative sug-
gested that Ontario’s boundary lay at the northwest angle of Lake of the Woods (longitude 95°
13’ 48” west).45
Both interpretations were likely based on the 1774 Quebec Act.46 After the 1763 Treaty
35 See map of Rupert’s Land, online: University of Calgary
map2.jpg>.
36 Zaslow, supra note 24 at 107.
37 See Appendix A – Figure 3.
38 Clement, supra note 31 at 848.
39 This included La Vérendrye’s 1731–1739 expedition from Montreal to the Missouri River via Northwestern Ontario, and the
construction of forts at Abitibi (Zaslow, supra note 21 at 108).
40 Zaslow, supra note 24 at 108.
41 Legislative Assembly of Ontario, supra note 22 at 19.
42 Rupert’s Land Act,1868 (U.K.) 31-32 Vict., c. 105.
43 Imperial Order In Council Respecting Rupert’s Land and the North-Western Territory, 1870 (bound with the Statutes of
Canada, 35 Vict., 1872 at 63).
44 Zaslow, supra note 24 at 108.
45 Ibid at 109.
46 Quebec Act, 1774 14 Geo. 3, c. 83.
118 n APPEAL VOLUME 12
of Paris assigned all French territories which lay within modern-day Canada (along with the
Northwest Territory and certain others) to Britain, the Quebec Act created the original province
of Quebec out of the former French colony. Upper and Lower Canada were later carved out
of this territory, only to be rejoined to form the Province of Canada in 1840. The Quebec Act
stated that the northwest boundary between the British and French colonies ran as follows:
“along the bank of the [Ohio River], westward, to the banks of the Mississippi, and northward
to the southern boundary of the territory granted to the Merchants Adventurers of England
trading to Hudson’s Bay”.47
Two wildly different interpretations of the above provision emerged. Ontario argued that
the Treaty of Paris set the border due north from the source of the Mississippi, at Lake of the
Woods. Canada and Manitoba took the position that the Quebec Act intended the border to
be due north of the junction of the Mississippi and Ohio rivers. It is unclear where the draft-
ers of the Quebec Act intended the northwest border to be. However, note that the source of
the Mississippi was not discovered until 1832, when Henry Rowe Schoolcraft and his Ojibwa
guide Ozawindib correctly identified Lake Itasca (in what is now north-central Minnesota) as
the river’s headwaters.48 This would suggest that if the Quebec Act’s drafters intended the
border to have any precision, the correct legislative interpretation was that of the Dominion
and Manitoba.
In 1873, the Macdonald Conservatives lost the federal election to Alexander Mackenzie’s
Liberals. The following year, Ontario and Canada agreed to appoint a board of arbitrators to
decide on the boundary. Di Matteo et al. question this board’s neutrality, noting that Mackenzie
was openly supportive of Ontario’s claims, and that “the Board did not have a single represen-
tative from either Manitoba or the District of Keewatin”.49
Also in 1874, an agreement was struck between the Dominion and Ontario to enact a tem-
porary border. In 1872, Ontario agreed to a request by the federal Department of Public Works
to pay for construction at Prince Arthur’s Landing and to set up a police force there. Of course,
Ontario questioned why it was asked to pay for infrastructure in an area that the Dominion
claimed was outside of Ontario’s borders. In response to Ontario’s concerns, after taking power
the Mackenzie Liberals struck an interim agreement with Ontario to extend the province’s
northwestern borders even beyond the St. Lawrence drainage basin.50 Zaslow writes:
The agreement continued for four years until the three arbiters (none of
whom had been designated to the original panel) met for three days in Ot-
tawa, August 1-3, 1878, and issued their decision, unaccompanied by sup-
porting reasoning or explanations. The award was wholly in the province’s
favour. On the west it gave Ontario the line of the Northwest Angle [from
Lake of the Woods]; and on the north the English and Albany Rivers, the
coast of James Bay east to the meridian of Lake Temiskaming, thence south
to that point and along the Ottawa River.51
The arbitration decision was issued shortly before Mackenzie’s Liberals were defeated by
the Macdonald Conservatives in 1878, and Mackenzie did not have time to implement its find-
47 Ibid, s. 1.
48 MSNBC.com, “River’s headwaters were devilishly hard to find”” online: Mile zero: The river’s elusive source - The Mighty
Miss
49 Di Matteo, Emery & English, supra note 3 at 25.
50 Government of Ontario, Documents Respecting the Northern and Western Boundaries of Ontario (Toronto: Hunter, Rose
and Co., 1878) at 347: “Provisional Conventional Boundaries of Ontario, 1874”. See also Atlas of Canada - Territorial
Evolution, 1874 online: Natural Resources Canada – Atlas of Canada
cal/territorialevolution/1874/1>; See also Appendix A – Figure 5.
51 Zaslow, supra note 21 at 109.
APPEAL VOLUME 12 n 119
ings.52 Because the decision was non-binding and Macdonald opposed its findings,53 the new
government ignored it. Macdonald himself suggested that the arbitrators acted with “utter
disregard to the interests of the Dominion as a whole”.54 Manitoba was similarly disappointed
by the decision, as it had been lobbying for territorial expansion for several years.
Consequently, in a legislative tour de force, the re-elected Macdonald Conservatives passed
An Act to Provide for the Extension of the Boundaries of the Province of Manitoba (“Manitoba
Boundary Act”) in 1881.55 Manitoba passed similar legislation authorizing the Dominion to
expand its borders.56 This statute expanded Manitoba’s boundaries to the “westerly boundary
of the Province of Ontario”.57
The exact location of this boundary was and still is unclear, though most sources place
it at or near present-day Thunder Bay. MacKirdy suggests that “[i]f the extreme claim of the
Dominion government were upheld the boundary of Manitoba would extend to Lake Superior,
embracing the present Lakehead ports”.58 Zaslow also suggests that the Manitoba Boundary
Act would have taken away the port facilities59 of what is now Thunder Bay. Brock, somewhat
confusingly, provides one map which outlining the boundary “advocated by the Government
of Canada” which places the Lakehead in Manitoba, and another map, from 1881, which has a
different western boundary.60 White argues that “[f]or Macdonald, Ontario’s northern bound-
ary was the height of land that marked the Hudson Bay watershed, while its western boundary
ended some half a dozen miles west of Fort William”.61 White’s interpretation probably would
have denied Manitoba access to Lake Superior at modern-day Thunder Bay, though the other
interpretations of the Manitoba Boundary Act would have given Manitoba lake frontage. In-
terestingly, the Atlas of Canada’s 1881 map of Canada does not acknowledge the shrinking
of Ontario’s borders, but mentions simply that “Manitoba is enlarged in 1881 by extending
its boundaries westward, northward and eastward”.62 With respect, I think that the Appendix
A – Figure 6 depiction of the “Disputed Area” is incorrect, and the Disputed Area should be
extended to the east of modern day Thunder Bay.
Any boundary at or near modern day Thunder Bay would put territory which was outside
the Hudson Bay watershed in Manitoba, even though Ontario had established settlements at
the Lakehead before 1881. Referring to the Dominion’s assertion of the same borders in 1872
(as mentioned earlier), Zaslow notes that “as this would have removed the Lakehead centres
of Fort William and Prince Arthur’s Landing, over which the sovereignty of the old province of
52 Morrison, supra note 19 at 97.
53 Imperial Order In Council, Embodying Her Majesty’s Decision, August 11, 1884: “Legislation by the Dominion of Canada,
as well as by the Province of Ontario, was necessary to give binding effect as against the Dominion and the Province to the
Award of the 3rd August, 1878, and that, as no such legislation has taken place, the Award is not binding”.
54 Cited in John Burchill, “The Rat Portage War”, online: Winnipeg Police Service :: UD :: The Rat Portage War
nipeg.ca/police/history/story13.stm> [Burchill].
55 An Act to Provide for the Extension of the Boundaries of the Province of Manitoba, 1881 44 Vict., c. 14.
56 Ibid., at s. 1.
57 Ibid.
58 MacKirdy, supra note 18 at 195. For the benefit of readers from outside Northwestern Ontario, note that until Thunder Bay
was created by the amalgamation of Port Arthur and Fort William in 1970, the Thunder Bay area was colloquially known
as the Lakehead. In 1970, a referendum was held to determine the name of the new city, and voters were asked to choose
between “Lakehead”, “The Lakehead” and “Thunder Bay”. Though a majority preferred either “Lakehead” or “The Lake-
head” as the new name, the vote split between those two options, and “Thunder Bay” was the winner. Many older people
from the Thunder Bay area still refer to the city and its surrounding area as the Lakehead, and this author has always had a
preference for the Lakehead name.
59 Zaslow, supra note 24 at 113.
60 Brock, supra note 7 at 10, 12.
61 White, supra note 15 at 165.
62 Atlas of Canada – Territorial Evolution, 1881, online: Natural Resources Canada – Atlas of Canada
gc.ca/site/english/maps/historical/territorialevolution/1881/1>. See also Appendix A – Figure 6.
120 n APPEAL VOLUME 12
Canada had never been challenged, this was clearly unacceptable to Ontario”.63
The Ontario government was outraged by the Manitoba Boundary Act. Coming on the
heels of the federal government’s decision to disallow Ontario’s River and Streams Act, Mowat
saw the boundaries legislation as an attempt by Macdonald to assert federal dominance over
Ontario and to punish the province for electing his political arch-rival.64 Many Southern Ontar-
ians also believed that the Manitoba Boundary Act was influenced by Quebec, which feared
Ontario’s expansion.65 Consequently, Ontario chose to ignore the Manitoba Boundary Act and
argued that the 1878 arbitration award should stand. In 1882, the Ontario legislature approved
a reference to the J.C.P.C. regarding the boundary, but agreed that the federal government’s
claim was “unfounded”66 and that in the interim, the disputed area should be under Ontario’s
jurisdiction.67
As a result, the Dominion, Ontario and Manitoba all sought to assert jurisdiction over
the disputed area. Between 1881 and 1884, parts of Northwestern Ontario resembled the
Old West, with no effective government and “potentially dangerous elements” drawn to the
region by construction, logging, prospecting and other opportunities available in a booming
frontier economy.68 Because of its close proximity to Manitoba, Rat Portage (now Kenora)
was the centre of conflict between the three parties. In May 1881, when Ontario Magistrate
W.D. Lyon attempted to hold court in Rat Portage, his bailiff was arrested and imprisoned by
federal agents.69 In another case, Manitoba Constable Patrick O’Keefe seized four barrels of
moonshine, but when he brought the offending substance back to his office, he was arrested
by Dominion agents for having possession of liquor in the jurisdiction of a federal public work.
When he went to trial, O’Keefe waited until the federal magistrate left the bench, then charged
him with possessing the same alcohol. Subsequently, a Manitoba magistrate fined his federal
counterpart $100.70
Historian Alexander Begg describes the following scenario:
One day a Manitoba constable would be arrested for drunkenness by an
Ontario constable, the next, Manitoba would reciprocate by arresting an
Ontario official, or this dull routine would be enlivened by an assault on a
newspaper correspondent, or the apprehension of one of the magistrates
on some trumped-up charge, to be followed by a general swearing out of
information and wholesale arrests all around the official circle. While these
interesting proceedings commanded the strict attention of the magistrates
and police, it may be imagined that the gamblers and whisky pedlars en-
joyed complete immunity, for it was next to impossible for a constable, zeal-
ous as he might be in the discharge of his duty, to observe the actions of
evil-doers, while he himself was a fugitive from justice, engaged in dodging
a warrant for his own arrest.71
Despite the comedic ridiculousness of the situation, Evans notes that “the series of arrests
and counter-arrests which ensued [regarding liquor licences] did end the lengthy impasse on
63 Zaslow, supra note 24 at 108.
64 A. Margaret Evans, Sir Oliver Mowat (Toronto: University of Toronto Press, 1992) at 158–159 [Evans].
65 Ibid.
66 Journals of the Assembly, (1882), at 154–156.
67 Evans, supra note 64 at 161.
68 Zaslow, supra note 24 at 111.
69 Ibid. at 112.
70 Ibid.
71 Alexander Begg, History of the North West (Toronto: Hunter, Rose and Co., 1894–95) at 79.
APPEAL VOLUME 12 n 121
the boundary question”.72 Fearing that the situation in the North was getting out of control, in
December 1883, Manitoba Attorney General and Rat Portage M.L.A. J.A. Miller agreed with
Oliver Mowat to submit the boundary dispute to the J.C.P.C. for arbitration.
Miller had to persuade Macdonald to submit to J.C.P.C. arbitration, even though Parlia-
ment had approved a resolution in April 1882 calling for the Supreme Court of Canada or the
J.C.P.C. to address the boundary question. The major sticking point was interim control of the
disputed lands. While Ontario demanded full control of the disputed territory pending a final
decision, the Dominion resolution called for the territory to be administered by a joint commis-
sion appointed by the Ontario and federal governments.73 There were also issues surround-
ing which boundaries were to be determined.74 Originally, the parties had agreed to refer the
northern border question to the J.C.P.C. along with the other questions because Mowat wanted
a final resolution to all of his province’s border issues. On March 7, 1884, Alexander Campbell,
a cabinet minister and top advisor to John A. Macdonald, wrote to Mowat “I am also very glad
personally to be able to say that we are ready to agree to the reference of the Northern and
the remainder of the Western boundary to the same tribunal at the same time”.75 However, the
northern border reference was withdrawn at the last minute, presumably because Macdonald
thought that a single reference would resolve the issue in the Dominion’s favour.76 However,
despite their disagreements on the questions to be addressed by the J.C.P.C., by 1884 all three
parties had agreed to send the case to the Law Lords (“Ontario Boundary Case”).77
The J.C.P.C. decision in 1884 apparently put an end both to the aforementioned law-
lessness and chaos in Rat Portage and to the aspirations of Manitoba and Canada to extend
the former’s territory eastward. The Dominion, Manitoba and Ontario agreed to submit three
questions. These were: 1) is the 1878 award binding; 2) if the award is not binding, then what
is the true boundary between Manitoba and Ontario; and 3) whether federal and provincial
legislation would suffice to give the decisions legal effect (as per the British North America Act,
1871)78, or whether a new Imperial Act would be necessary.79 On the first question, the 1878
award was held to be non-binding. However, on the second question, its results were upheld.
Regarding the third question, the Law Lords stated:
[W]ithout expressing an opinion on the sufficiency or otherwise of con-
current legislation of the Provinces of Ontario and Manitoba, and of the
Dominion of Canada (if such legislation should take place), their Lordships
think it desirable and most expedient that an Imperial Act of Parliament
should be passed to make this decision binding and effectual.80
Unfortunately, neither the arbitrators’ award nor the J.C.P.C. decision provides reasons.
Zaslow and others have suggested that the “surprising”81 result was due to Ontario’s supe-
rior research, organization and advocacy.82 Evans writes that “[a]s senior counsel for Ontario,
[Oliver Mowat] had prepared the case for his province with minute care, using skillfully the
mass of evidence in the acts, charters, commissions, proclamations, treaties and maps which he
72 Evans, supra note 64 at 172.
73 Morrison, supra note 19 at 150.
74 Ibid., at 154–158.
75 Ibid. at 157.
76 Ibid at 158.
77 Ibid at 173.
78 British North America Act, 1871 (U.K.), 34–35 Vict., c. 28.
79 Legislative Assembly of Ontario, supra note 23 at 2.
80 Imperial Order In Council, Embodying Her Majesty’s Decision, August 11, 1884, s. 4.
81 Zaslow, supra note 24 at 113.
82 Ibid.; Evans, supra note 64 at 173.
122 n APPEAL VOLUME 12
had been collecting for over a decade”.83 Note that Ontario produced at least two volumes of
documentary information relating to the boundary,84 while it appears that neither the Domin-
ion nor Manitoba had done such research. MacKirdy goes so far as to suggest that Manitoba
was relatively uninterested in Northwestern Ontario, as it was “preoccupied with wheat land”
and it did not want to acquire vast territories over which it would have to administer without
the corresponding access to resource revenues.85 I disagree with this assertion, and would note
that, as mentioned earlier, Manitoba had been lobbying Ottawa for territorial expansion since
1873 and desired access to the Great Lakes. I would also note that Manitoba was the only
party to send militia to the disputed area. In 1883, Manitoba dispatched sixty armed men from
the Winnipeg Field Battery to Rat Portage to keep the peace during the provincial elections.86
Additionally, after Ontario authorities arrested a group of Manitoba police and burned down
the Manitoba jail during the Rat Portage War, Manitoba Premier John Norquay personally led
an expedition of Manitoba police to the town and arrested those thought to be responsible.87
However, I would agree with MacKirdy insofar as Ontario had spent more time and effort pre-
paring its case.
Though it is difficult to determine which arguments were the most persuasive, both parties’
arguments may be grouped into two major categories: arguments advocating for a particular
interpretation of the Treaty of Paris, and arguments surrounding the assertion of sovereignty
(or lack thereof) by various parties. First, in support of his interpretation of the Treaty of Paris,
Mowat cited the Quebec Act, 1774, and suggested that its plain language and its purpose
(namely, to transfer French territories to the British Crown) advocated for the Ontario interpre-
tation. Additionally, according to Morris Zaslow, the Ontario interpretation had been accepted
in the 1783 Treaty of Versailles.88
Second, Ontario argued that the H.B.C. had failed to assert sovereignty over its lands, and
that “the grant [of lands, in the 1670 Charter incorporating the Hudson’s Bay Company, by
King Charles II] was to be commensurate only with their actual appropriation or possession”.89
Ironically, these were the same arguments raised by Joseph Cauchon for Canada in its dispute
with the H.B.C. over control of Rupert’s Land. Consequently, Mowat argued that Upper Can-
ada stretched to the Rocky Mountains,90 by virtue of French fur trade operations in the west91
and the H.B.C.’s failure to assert control of its territory beyond the perimeter of Hudson Bay.92
However, acknowledging that awarding Ontario most of modern-day western Canada would
be “inconvenient”,93 Mowat was perfectly happy to accept the arbitrators’ award of 1878.94
Manitoba’s strongest argument also related to sovereignty; namely, the 1818 decision of
the courts of Lower Canada in De Reinhard’s Case.95 In this case, the defendant was charged
83 Evans, supra note 64 at 172.
84 See Government of Ontario, Statutes, Documents and Papers Bearing On The Discussion Respecting the Northern and
Western Boundaries of the Province of Ontario (Toronto: Hunter, Rose and Co., 1878); see also Legislative Assembly of
Ontario, Correspondence, Papers and Documents of Dates from 1856 to 1882 Inclusive, Relating to the Northerly and
Westerly Boundaries of the Province of Ontario (Toronto: C. Blackett Robinson, 1882).
85 MacKirdy, supra note 18 at 195–196.
86 Burchill, supra note 54. This area is part of the Canadian Shield and could not be characterized as “wheat land”.
87 Dale and Lee Gibson, Substantial Justice (Winnipeg: Peguis, 1972) at 155.
88 Zaslow, supra note 24 at 112.
89 Legislative Assembly of Ontario, supra note 23 at 54.
90 Ibid. at 45.
91 Ibid. at 88–97.
92 Ibid. at 53.
93 Ibid. at 33.
94 Ibid. at 77.
95 Reproduced in the Legislative Assembly of Ontario, supra note 23 at 207.
APPEAL VOLUME 12 n 123
with a murder that occurred in the disputed territory. The court held that it had jurisdiction
because the murder was not committed in Upper Canada.96 Therefore, Manitoba and Canada
argued that Ontario had no claim to the disputed territory, because Ontario was formed from
what had originally been Upper Canada. This “finding of law”, as it was subsequently deemed
in McLennan’s Case, was never overturned nor challenged. However, Ontario alleged that De
Reinhard was bad law because it had never been cited, and because it had been referred to
England for interpretation. Apparently no opinion was provided by the English authorities re-
garding the verdict in De Reinhard’s Case.97
However, Zaslow and others have argued that Manitoba and the federal government
discredited their case by claiming land commonly assumed to be part of Ontario, in the St.
Lawrence drainage basin west of the junction of the Ohio and Mississippi rivers. Counsel for
Manitoba, Mr. D. McCarthy, was forced to concede that that “up to the height of land—that
is between Lake Superior and the height of land—Upper Canada did exercise jurisdiction”.98
When asked if any act of Parliament referred to the “height of land”, McCarthy stated that
“there was a treaty with the Indians in 1850, and that treaty took in all the land”.99 Most cer-
tainly McCarthy was referring to the Robinson-Superior Treaty, which covers lands up to the
southern and western border of Rupert’s Land and embraces Thunder Bay.100 Counsel for the
Dominion, Mr. Christopher Robinson, concurred with Manitoba’s position on the geographical
questions.101 However, though admitting that Canada and later Ontario had controlled lands
now claimed by Manitoba, both McCarthy and Robinson argued that the “proper line” was
due north from the junction of the Ohio and Mississippi rivers.
It is beyond the scope of this paper to re-argue the Ontario Boundary Case, but a few
comments should be made regarding the J.C.P.C.’s findings. Morrison points out several flaws
with the J.C.P.C.’s description of the awarded territory, which did not conform to the 1878
award even though it claimed to do so. He also argues that the Law Lords exceeded their terms
of reference.102 First, Morrison argues that the following phrase implied giving Manitoba a piece
of the United States: “their Lordships find the true boundary between the western part of the
Province of Ontario and the south-eastern part of the Province of Manitoba to be so much
of a line drawn to the Lake of the Woods …[emphasis added]”.103 My interpretation of this
statement is that Lake of the Woods marks the southeast corner of Manitoba, and that it is not
problematic. Second, Morrison points out that, by ruling on a northern border for Ontario, the
J.C.P.C. exceeded the scope of the second reference question, which was “[i]n case the Award
is held not to settle the boundary in question, then what, on the evidence, is the true boundary
between the said provinces”.104 Of course, Ontario and Manitoba have never had a northern
border, and adjudication of the Dominion-Ontario dispute over Ontario’s northern border was
not included in the terms of reference. Third, Morrison correctly points out that the J.C.P.C.’s
description of Ontario’s western border as “a line drawn due north from the confluence of
the Rivers Mississippi and Ohio which forms the boundary eastward of the province of Mani-
toba”105 is, of course, inaccurate, as that border was proposed by Manitoba and the Dominion,
96 Jurisdiction was granted by the Imperial Act, 43 Geo. III, c. 138, to the courts of Lower Canada for crimes committed in
“Indian territory”.
97 Legislative Assembly of Ontario, supra note 23 at 102.
98 Ibid at 103.
99 Ibid.
100 Appendix A – Figure 4.
101 Legislative Assembly of Ontario, supra note 23 at 338.
102 Morrison, supra note 19 at 160.
103 Imperial Order In Council, Embodying Her Majesty’s Decision, August 11, 1884, s. 3.
104 Legislative Assembly of Ontario, supra note 23 at 2. Evans notes the same concern (supra note 64 at 173).
105 Legislative Assembly of Ontario, supra note 23 at 2.
124 n APPEAL VOLUME 12
and would run somewhere near the Lakehead.106
Aside from ending hostilities in Rat Portage, what was the effect of the Ontario Boundary
Reference? Needless to say, Macdonald disagreed with the J.C.P.C. decision. Rather than act-
ing on it, he waited for nearly five years before his government finally passed such a resolution
calling for Imperial legislation on the boundaries issue. Macdonald took particular issue with
its decision on the northern borders, in addition to asserting that the Dominion controlled
all resource revenues between the height of land west of Lake Superior and the present-day
Manitoba border107 because Canada had gained title to that land in the Northwest Angle Treaty
of 1873. This contention was laid to rest in the 1888 decision in St. Catherine’s Milling and
Lumber Company,108 in which the J.C.P.C. held that title to the resources of Aboriginal lands
acquired by the Dominion via treaties lay in the hands of the provinces under the British North
America Act, 1867.
In all likelihood, Macdonald was allowed to stall for as long as he did because the J.C.P.C.
decision was a recommendation rather than a ruling. Specifically, it stated that “their Lordships
think it desirable and most expedient that an Imperial Act of Parliament should be passed to
make this decision binding and effectual”.109 However, shortly after the J.C.P.C. issued its find-
ings, an Imperial Order-in-Council was passed, stating that:
Her Majesty, having taken the said Report into consideration, was pleased
by it and with the advice of Her Privy Council to approve thereof and to
order, as it is hereby ordered, that the same be punctually observed, obeyed
and carried into execution. Whereof the Governor-General of the Dominion
of Canada, the Lieutenant-Governor of the Province of Ontario, the Lieu-
tenant-Governor of the Province of Manitoba and all other persons whom it
may concern, are to take notice and govern themselves accordingly.110
My reading of this Order is that the J.C.P.C. ruling was ordered to be carried into ex-
ecution. Oliver Mowat apparently thought the same, and in 1885, he attempted to go over
Macdonald’s head by requesting that the Colonial Secretary arrange for Imperial legislation to
be passed to implement the J.C.P.C. ruling.111 However, this request was ignored.112 It was not
until the aforementioned resolution was passed that the Imperial Parliament passed the Canada
(Ontario Boundary) Act in 1889, which set Ontario’s current western border.113 The province’s
final border change was made in 1912, when the Dominion handed over its remaining territo-
ries south of the 60th parallel to Ontario, Manitoba and Saskatchewan.114
In the final analysis, Ontario was very lucky to win control of a vast territory beyond its
historical borders. In particular, had Alexander Mackenzie not won the 1873 election and ap-
pointed a board of arbitrators who decided as they did, the J.C.P.C. may well have ruled differ-
ently given the general reluctance of appeal courts to overturn original decisions. However, full
credit must be given to Oliver Mowat for legally and politically outgunning his opponents on
this issue. From Confederation onwards, Mowat lobbied hard for Ontario’s territorial expan-
sion. Even after the Dominion attempted to strong-arm him out of all of the territory awarded
106 Morrison, supra note 19 at 160.
107 Zaslow, supra note 24 at 114.
108 St Catherine’s Milling and Lumber Co v Queen, The (PC (Can)) Privy Council (Canada) (1888),14 App. Cas. 46 (J.C.P.C.).
109 Imperial Order In Council, Embodying Her Majesty’s Decision, August 11, 1884, s. 4.
110 Ibid.
111 Morrison, supra note 19 at 168.
112 Ibid. at 169.
113 Canada (Ontario Boundary) Act, 1889 52-53 Vict., c. 28 (U.K.).
114 The Ontario Boundaries Extension Act, S.C. 1912, 2 Geo. V, c. 40.
APPEAL VOLUME 12 n 125
in 1878, Mowat not only refused to back down, but sent law enforcement officials to the far-
thest reaches of the Ontario claim in order to assert Ontario’s control.115 His work in research-
ing and personally arguing the boundary case before the J.C.P.C. is fairly unique in Canadian
history. Further, he was prepared to pull out of Confederation in order to win the dispute, stat-
ing that “if they could only maintain Confederation by giving up half of their Province, then
Confederation must go”.116 Though it is unclear why the federal government did not take more
forceful measures to enforce the Manitoba Boundary Act, a likely explanation is that doing so
may well would have led to armed conflict with Ontario and the destruction of Canada. For its
part, Manitoba did what it could to assert sovereignty over the western regions of the disputed
area, but its physical, political and economic resources paled in comparison to Ontario’s.
PART II: Northwestern Ontario Post-Annexation to Ontario
In the early years, Northwestern Ontario was unquestionably a valuable economic acqui-
sition for Ontario. Between 1871 and 1914, Northern Ontario forestry and mining revenues
accounted for 25 per cent of Ontario’s revenue, despite the fact that the region made up, at
most, 10 per cent of Ontario’s population.117 The region’s manufacturing sector grew rapidly,
and railway construction created employment and opened up new land for settlement.118
However, since the 1950s, Northwestern Ontario has grown at a slower rate than the rest
of the province.119 Between 1996 and 2001, the population of Northwestern Ontario fell by
3.8 per cent, a net loss of 9,348 people.120 The economy throughout most of the region has
experienced similar declines. In the second quarter of 2006, the Service Canada Labour Market
Bulletin for the region noted that Northwestern Ontario has the highest unemployment rate
of any region in the province.121 This is due in large part to a decline in the forest industry,
which forms the core of the region’s economy and has lost thousands of jobs across the region
in recent months.122 Over the longer term, other traditional industries such as grain handling,
shipbuilding and agriculture have also experienced significant declines.
Not surprisingly, one often hears comments such as the following from Northwestern On-
tarians:
Last August at the Association of Municipalities of Ontario conference in
115 Some have argued that Mowat was less than successful in asserting control over the western part of Northwestern Ontario,
at least in the early years of the Rat Portage dispute. First, Rat Portage incorporated as a Manitoba town in July 1882. Sec-
ond, in the January 1883 murder trial of Thomas Drewes of Rat Portage, the accused was convicted in a Manitoba court,
with no challenge by Ontario to the court’s authority. Third, both provinces held elections in Rat Portage on September 28,
1883, and though the Ontario and Manitoba candidates were obviously not running against each other, some argued that
because the Manitoba MLA-elect (Attorney-General J.A. Miller) won more votes than his Ontario counterpart, the Mani-
toba result was more valid (source: Burchill, supra note 51). Morrison further argues “that bloodshed and open warfare did
not result was due partly to the good sense of officials on the spot, but more specifically to the fact that Ontario did not
attempt to press her claims with the degree of forcefulness exhibited by her leaders in their public utterances” (Morrison,
supra note 16 at 98).
That being said, Ontario’s presence in Rat Portage, and its willingness to resist the authority of Manitoba and Dominion
agents, was pivotal in forcing Manitoba and later, Canada, to submit to the 1884 J.C.P.C. arbitration, for which Mowat
likely believed that he was better prepared and had a good chance of winning.
116 Quoted in Evans, supra note 64 at 161.
117 Di Matteo, Emery & English, supra note 3 at 175.
118 Ibid.
119 Ibid. at 4.
120 Ontario Region Census Products, “Population Characteristics for Northwestern Ontario, Economic Region 595, Census
2001” online: Service Canada .
121 Service Canada, “Labour Market Bulletin Thunder Bay – Second Quarter 2006”, online: Service Canada
servicecanada.gc.ca/en/on/offices/0602lmb/thunderbay.shtml>.
122 Ontario Forestry Coalition, online: Ontario Foresty Coalition .
126 n APPEAL VOLUME 12
Toronto, the points of the crisis in the forestry industry were brought to the
attention of all delegates. I can assure you that by the end of the confer-
ence most people understood the situation; it would appear that further up
University Avenue at Queen’s Park the message was lost. …
Over the past 12 months the word “separation” has been heard again.
Maybe it is time. Maybe Northwestern Ontario should ask Manitoba if we
can “get in” or maybe Northern Ontario should say to the rest of Ontario,
“We want out” and establish the 11th province.
Yes, I know there are some who will think this a crazy idea, but we cannot
be any worse off than we are now.123
Though there is frustration with the provincial government’s perceived inability and un-
willingness to deal effectively with local economic issues, it would be simplistic to dismiss such
attitudes as mere irrational frustration. In his 1977 article “Hinterland Politics: The Case of
Northwestern Ontario”, Geoffrey Weller argues that Northwestern Ontario’s economy is based
on extraction—of raw materials, people and money—which has caused deep-seated disillu-
sionment amongst Northwesterners.124 As a “hinterland”, Weller suggests that Northwestern
Ontario and other regions like it are designed to serve the needs of the “metropolis”, namely,
Southern Ontario.125 Weller sets out a model which illustrates how the “economics of extrac-
tion” cut to the heart of Northwestern Ontario politics. Though I disagree with some of Weller’s
conclusions, I believe that the extraction model (reproduced in Appendix B) is extremely use-
ful in understanding the alienation felt by many Northwestern Ontarians, the desire for major
political change in the region, and the successes and failures of regional secession movements.
ECONOMICS OF EXTRACTION
Northwestern Ontario’s main industries in terms of economic output traditionally have
been forestry and mining.126 Both sectors exist to produce raw materials for outside owners
and purchasers, many of which have been based traditionally in Southern Ontario. In addition,
people have been a major export for the region; one Government of Canada report notes that
“[u]pon graduation, most of the region’s best and brightest prospects leave the North, looking
for better employment opportunities. This results in an increasingly older regional population
and a less skilled work force”.127 Weller also argues that the tourism industry, long touted as the
future of the Northwestern Ontario economy, primarily caters to Southern Ontario interests.128
However, it is important to note that in recent years, increasing numbers of tourists have come
from the U.S. Midwest.
Because extractive industries are capital-intensive and often tend to be located in close
proximity to their source of raw materials, the region’s population has grown more slowly than
the rest of the province (and is now, in fact, declining), and is unevenly distributed. North-
western Ontario’s transportation infrastructure has been built around moving goods out to the
metropolis rather than moving people and goods into the region. As a result, the region has one
123 Bill Bartley, “‘We Want Out.’ Time to Separate?” Thunder Bay Chronicle-Journal (28 January 2006).
124 Geoffrey Weller, “Hinterland Politics: The Case of Northwestern Ontario” (1977) 10 Can.J.Pol.Sci. 4 at 732 [Weller, “Hin-
terland Politics”].
125 Ibid. at 731.
126 Ibid. at 734.
127 Government of Canada, “Innovation Performance – Northwestern Ontario” (July 2002), online: Government of Canada
– Innovation in Canada .
128 Weller, “Hinterland Politics”, supra note 124 at 735.
APPEAL VOLUME 12 n 127
of the world’s largest grain handling ports, but it does not have a four-lane divided highway.129
Weller argues that these phenomena have adversely affected regional cohesiveness. Also, “the
fact that many of the industries import most of their managerial staff, pollute the environment,
set up company towns, and leave when resources are exhausted”130 perpetuates the lack of
cohesion and causes feelings of alienation and powerlessness. Combined with the fact that
most Northwestern Ontario industries are highly sensitive to swings in commodity and energy
prices,131 it is little wonder that the region has a “history of out-migration” and that “dissatis-
faction is often marked more by exit rather than voice”.132
POLITICS OF EXTRACTION
Weller suggests that Northwestern Ontario’s economy has created a “politics of extrac-
tion”.133 He categorizes the region’s political relationship with the South as “politics of futility”
and “politics of handouts”.134 The former type of politics refers to pressure to change the hin-
terland-metropolis relationship and the pressure to obtain services “that come almost as a right
in other regions”.135 Weller suggests that the relationship might be changed if Northwestern
Ontario developed more heavy industry which would support secondary manufacturing, if
freight rates were restructured to minimize the adverse impacts of transportation costs on such
industries, and if more white-collar positions were created by government. In 2004, I worked for
the City of Thunder Bay’s economic development office, and in discussions with numerous local
business owners and managers, I often heard the view that Thunder Bay needed more industry,
and in particular, manufacturing. However, Northwestern Ontario’s distance from major mar-
kets, combined with increased foreign competition and high input costs mean that such wishes
are highly unlikely to materialize. Countless studies have suggested the need for more value-
added forestry investment, with few results.136 One of the region’s few large manufacturers, the
Bombardier plant in Thunder Bay, has laid off hundreds of workers in recent years, and may well
have shut down entirely had it not landed a recent contract with the Toronto Transit Commis-
sion.137 Although the Ontario government has made some major investments in Northwestern
Ontario in the thirty years since Weller’s article was published,138 white-collar job opportunities
are few and far-between. Regarding the second component of the “politics of futility”, namely
the lack of adequate services, Weller notes in a subsequent article that Northwestern Ontario’s
severe shortage of health care professionals, its lack of a university offering law and doctoral
programs, and the plight of the region’s large Aboriginal population living on under-serviced
reserves.139 Although some progress has been made since 1977, many Northwestern Ontarians
still believe that lobbying the provincial government for economic development assistance or
improved service delivery is frustrating at best and futile on average.
The “politics of handouts” may be more of a question of perception than politics. Though
129 Government of Canada, supra note 127. In most parts of Northwestern Ontario, even the Trans-Canada remains a two-
lane, undivided highway.
130 Weller, “Hinterland Politics”, supra note 124 at 737.
131 Geoffrey Weller, “Politics and Policy in the North”, in Graham White ed., The Government and Politics of Ontario, 5th ed.
(Toronto: University of Toronto Press, 1997) at 289–290 [Weller, “Politics and Policy”].
132 Di Matteo, Emery & English, supra note 3 at 19.
133 Weller, “Hinterland Politics”, supra note 124 at 738.
134 See Appendix B.
135 Weller, “Hinterland Politics”, supra note 124 at 738.
136 See e.g. William L. Lees and Associates, “Economic Contribution of the Primary Forest Products Industry to Northwestern
Ontario”, online: Boreal Forest .
137 Made In Canada BIZ, online: Made in Canada BIZ .
138 For example, note the Ontario government’s transfer of certain Registrar-General and Ministry of Education positions to
Thunder Bay, along with the construction of the Northern Ontario School of Medicine at Lakehead University.
139 Weller, “Politics and Policy”, supra note 131 at 290–291.
128 n APPEAL VOLUME 12
it would be unfair to demand improved services from the provincial government but then
characterize successful lobby efforts as resulting in “handouts”, Weller suggests that “it is a
feeling on the part of many residents of the region that the whole objective of a great many
governmental actions is to keep open the promise of development and, therefore, a change in
the basic relationship, but never to undertake actions designed to achieve such a change”.140
POLITICS OF FRUSTRATION AND POLITICS OF PAROCHIALISM
The consequence of Northwestern Ontario’s political and economic relationship with
Southern Ontario has been two major political trends within the Northwest: frustration and
parochialism. Weller argues that the frustration of many Northwesterners with their subordi-
nate political and economic status, combined with the region’s rebellious, blue-collar culture,
has manifested itself in political radicalism over the years. Movements such as the International
Workers of the World, the Communist Party and various other radical left-wing causes have
enjoyed considerable support, and A.W. Rasporich notes that Thunder Bay’s diversity of and
support for radical left-wing movements has been considerably higher than in most Canadian
cities.141
Frustration has also manifested itself in what Weller calls “fringe movements”, created to
bring about change in the region’s political status. As noted earlier, Simon Dawson advocated
for Northern Ontario to become a separate province from the 1870s onwards. Additionally,
in 1911, the Kenora District requested to join Manitoba.142 The secessionist movements in
the late nineteenth and early twentieth centuries were undoubtedly motivated by optimistic
views about the region’s future, in light of the region’s booming economy and rapid population
growth.143 However, from the 1950s onwards, movements such as Hubert Limbrick’s “New
Province League” and Ed Deibel’s Northern Ontario Heritage Party144 have formed in reaction
to frustration and alienation resulting from the region being largely controlled by Southern
Ontario. For example, in 1944, the mayors of Port Arthur and Fort William called for the North-
west to join Manitoba, with Port Arthur’s Acting Mayor J.E. Fryer stating “[t]he greatest frontier
in Canada is being governed by people who don’t know and don’t care”.145 Similarly, Ed Deibel
was inspired to campaign for Northern Ontario to become Canada’s eleventh province after
Ontario introduced a seven per cent tax on heat and energy in the 1973 provincial budget.146
Although these movements attempted to address concerns about Northwestern Ontario’s
status as a political and economic147 hinterland, none have ever achieved any significant sup-
port at the ballot box. In fact, Northwestern Ontario has generally elected M.P.’s and M.P.P.’s
from the governing party, though C.C.F.-N.D.P. candidates have also been elected in dispro-
portionate numbers over the years.148 Several theories have attempted to explain why a region
that often sees itself as alienated would vote for the government responsible for its marginal-
ization. First, in what he referred to as the “politics of colonialism”, Rasporich has suggested
that Northwesterners have been willing to be bought off by the provincial governments of the
140 Weller, “Politics and Policy”, supra note 131 at 743.
141 A.W. Rasporich, “Factionalism and Class in Modern Lakehead Politics”, (1974) 7 Lakehead University Review at 31–65
[Rasporich].
142 Di Matteo, Emery & English, supra note 1 at 176.
143 Weller, “Politics and Policy”, supra note 131 at 295.
144 For a detailed profile of Ed Deibel and the Northern Ontario Heritage Party, see Brock, supra at 5.
145 Time Magazine Archives, “Secession!” (10 April 1944), online: Time Magazine /time/archive/pre-
view/0,10987,796542,00.html>.
146 Brock, supra note 7 at 36.
147 For example, Deibel called for legislation mandating that half of all raw materials extracted in Northern Ontario be turned
into finished products in the North (Weller, “Hinterland Politics”, supra note 124 at 748).
148 Weller, “Politics and Policy”, supra note 131 at 293–294.
APPEAL VOLUME 12 n 129
day, stating that “as in other client-patron types of society, the local tribe was satisfied as long
as even the illusion of gift-giving paternalism was evident”.149 Additionally, I would argue that
the presence of viable C.C.F.-N.D.P. candidates has decreased support for political realignment
by giving voters frustrated with the politics of colonialism the option of electing an opposition
party which has often supported major political change.
Further, I believe that the aforementioned lack of cohesion within Northwestern Ontario
has made it difficult to organize regional political parties. Cities and towns are separated by vast
distances, and due to the nature of the regional economy, many people tend to be transient.
In addition, while many secessionist movements rally members of a common ethnic or racial
group, the people of Northwestern Ontario, taken as a single group, do not constitute an eth-
nicity. Finally, after decades of feeling neglected and marginalized, many Northwesterners have
either moved on to greener pastures, or turned off politics and resigned themselves to more of
the same.
Weller’s final observation on Northwestern Ontario regional politics is that the politics of
frustration have led to a “politics of parochialism”. Because many northerners feel neglected by
the South, disproportionate attention has been given to local politics. The most well-known ex-
ample of this is the ongoing rivalry between the former cities of Port Arthur and Fort William.150
Weller concludes his 1977 article by forecasting that Northwestern Ontario’s marginal-
ization would likely increase in the years to come, due to the region’s decreasing economic
significance and proportion of the province’s population.151 Thirty years later, history has, un-
fortunately, proven him right. According to Weller’s model, Northwestern Ontario can never
expect to evolve from an exploited hinterland to an economically and politically independent
region without major political realignment. The question many Northwesterners are asking now
is, will this ever happen?
RECENT DEVELOPMENTS
Over the past year, Northwestern Ontario secession has raised national and international
headlines. A March 2006 article in the Economist discussed the growth of secessionist sentiment
in Northwestern Ontario,152 and a C.B.C. poll from the same time showed that 72 per cent of
Manitobans supported Northwestern Ontario joining their province.153 Also in early 2006, the
Central Canadian Public Policy Trust (“C.C.P.P.T.”) was created by a group of regional politi-
cians.154 The C.C.P.P.T. is now being run as a project of the Northwestern Ontario Municipal
Association, and is currently researching alternative governance models for the Northwest.155
The 2006 study by Di Matteo et al. was done in conjunction with the C.C.P.P.T. It focused
on the economic impacts of Northwestern Ontario joining with Manitoba or becoming a sepa-
rate province. By joining Manitoba, Northwestern Ontario would lose $1,026.53 per capita per
year in provincial transfers but would be entitled to federal equalization payments.156 Manitoba
also has higher taxes than Ontario, but has higher program spending. Considering Northwest-
149 Rasporich, supra note 141 at 65.
150 Weller, “Politics and Policy”, supra note 131 at 296.
151 Weller, “Hinterland Politics”, supra note 124 at 754.
152 The Economist, supra note 8; Michelle McAfee, “Study finds political merit, economic tradeoff to creation of ‘Mantario’”
Canadian Press (9 August 2006) [McAfee].
153 CBC Radio-Canada Probe Research Inc. News Release, “Manitobans and the Mantario Question” (March 2006).
154 Duane Hicks, “Majority of Manitobans Would Back Merge with Northwest” Fort Frances Times (22 March 2006), online:
Fort Francis Times .
155 E-mail from Tannis Drysdale to Adam Jantunen (May 9, 2006).
156 Di Matteo, Emery & English, supra note 3 at 181.
130 n APPEAL VOLUME 12
ern Ontario’s centre-left voting record, Di Matteo et al. note that “[t]he Manitoba spending
mix would appear to reflect the demands of ‘alienated northerners’ suggesting that Manitoba’s
spending preferences are closer to their own than to the rest of Ontario”.157 The option of cre-
ating a new Northwestern Ontario province was also determined to have no major positive or
negative economic benefits.158
The study found that a merger with Manitoba would benefit Northwestern Ontario politi-
cally; if the region joined Manitoba, it would have 16 per cent of the seats in the provincial
legislature, compared to its current three per cent share of seats in Queen’s Park.159 Demo-
graphically, age distributions in Ontario, Northwestern Ontario and Manitoba are similar, but
Northwestern Ontario and Manitoba both have large and growing Aboriginal populations who
are increasingly influencing politics and public policy. One-third of Aboriginals in Northwestern
Ontario and Manitoba are under the age of age sixteen,160 and in Northwestern Ontario and
Manitoba, Aboriginal people make up 18 per cent and 14 per cent of the provinces’ popula-
tions respectively. In Ontario, Aboriginals make up just 3 per cent of the population. Consid-
ering that Northwestern Ontario’s Aboriginal population will continue to increase in absolute
and relative terms, any serious discussion of provincial realignment would require Aboriginal
participation. For example, a group lobbying for Northwestern Ontario secession would have
to include Aboriginal members and take into account issues of particular concern to Aboriginal
peoples if it were to have any real public legitimacy and chance of success. During my research,
I was unable to find any sources dealing with Aboriginal opinions on Northwestern Ontario
secession. This topic should be explored further.
The study offers hope for proponents of secession from Ontario. Co-author Herb Emery
summed up its findings by stating “[y]ou have to decide if you want to marry up with some-
one like you, or someone different from you. … Northwestern Ontario has this problem—they
don’t really fit with the rest of Ontario that easily, but they look a lot like Manitoba economical-
ly”.161 However, it also notes that “there has been little public mobilization toward institutional
change”.162 But even before such mobilization occurred, it is necessary to examine whether the
people of Northwestern Ontario have the right to determine their political future, and by exten-
sion, their economic and cultural futures as well.
PART III: Northwestern Ontario’s Right to Self-Determination
This section will address two main questions: who is entitled to self-determination under
international law, and who is entitled to self-determination under Canadian law?
Question 1: What does self-determination entail under international law?
The self-determination of peoples is the cornerstone of international law. Though the doc-
trine of self-determination of nations is commonly thought to have originated with US Presi-
dent Woodrow Wilson’s post-World War I advocacy of self-determination of ethnic groups re-
siding in the defeated powers’ territories,163 its origins can actually be traced to the eighteenth
157 Ibid.
158 Ibid. at 189.
159 Ibid. at 178.
160 Ibid. at 181.
161 McAfee, supra note 152 at 148.
162 Di Matteo, Emery & English, supra note 3 at 191.
163 Timothy William Waters, “Indeterminate Claims: New Challenges to Self-Determination Doctrine in Yugoslavia,” (2000)
20:2 SAIS Review at 118. See also Woodrow Wilson, “President Wilson’s Fourteen Points”, online: The Avalon Project
– Yale University .
APPEAL VOLUME 12 n 131
and nineteenth centuries.164 In Considerations on Representative Government, John Stuart Mill
stated that “it is in general a necessary condition of free institutions that the boundaries should
coincide in the main with those of nationalities”.165 Sections 1 of both the United Nations Cov-
enant on Civil and Political Rights166 and the United Nations Covenant on Economic, Social and
Cultural Rights167 illustrate the significance of self-determination in international law in stating
that “[a]ll peoples have the right of self-determination. By virtue of that right they freely deter-
mine their political status and freely pursue their economic, social and cultural development”.
Many modern democratic constitutions reflect the view that self-determination in terms of
popular sovereignty is a vital human right.168 In the seminal Reference re Secession of Quebec
(“Secession Reference”), the Supreme Court of Canada stated that “[t]he existence of the right
of a people to self-determination is now so widely recognized in international conventions that
the principle has acquired a status beyond ‘convention’ and is considered a general principle of
international law”.169
On the surface, the international law would appear to provide powerful legal ammuni-
tion for Northwestern Ontario secessionists. However, in practice, the lofty principles of the
aforementioned United Nations covenants have been defined extremely narrowly. According to
leading scholar Antonio Cassese, “[s]elf-determination appears firmly entrenched in the corpus
of international law in only three areas: as an anti-colonialist standard, as a ban on foreign
military occupation, and as a requirement that all racial groups be given full access to gov-
ernment”.170 For all three areas, self-determination is an external right, and for the last area,
it is also an internal right.171 Internal self-determination refers to a people’s right to self-deter-
mination within a state, while external self-determination suggests a right to secession. The
Supreme Court of Canada in the Secession Reference suggests that “the recognized sources of
international law establish that the right to self-determination of a people is normally fulfilled
through internal self-determination”.172 However, Hannum notes that after 1960, the right to
self-determination in international law was largely confined to granting colonies the right to
independence.173
Daniele Archibugi argues for an expansion of the right to self-determination under in-
ternational law.174 In addition to giving colonized peoples the right to form a state, Archibugi
notes that self-determination has been defined by sovereigntists the world over as giving the
minorities the right to become an autonomous state or join another state. He suggests that this
interpretation of self-determination has become more popular since the end of the Cold War
and the corresponding rise of hitherto suppressed nationalist movements, even though the
international community has not recognized a right to unilateral secession.175 Archibugi also
164 Hurst Hannum, “Rethinking Self-Determination” (1993-1994) 34 Va. J. Int’l L. at 3 [Hannum].
165 Ibid.
167 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3.
168 See e.g. Part 2, Section 1 of the Constitution of the Democratic Republic of East Timor: “Sovereignty rests with the people,
who shall exercise it in the manner and form laid down in the Constitution.”
169 Secession Reference, supra note 1 at para. 114.
170 Antonio Cassese, International Law, 2nd ed. (New York: Oxford University Press, 2005) at 61.
171 Ibid. at 62.
172 Secession Reference, supra note 1 at para. 126.
173 Hannum, supra note 164. Note also that the Supreme Court of Canada in the Secession Reference, ibid. at paras. 132-
134, stated that the right of peoples to unilaterally secede under international law exists in circumstances of foreign rule or
occupation, “alien subjugation, domination and exploitation outside a colonial context,” and possibly situations in which
people are denied the opportunity to exercise a right of self-determination domestically.
174 Daniele Archibugi, “A Critical Analysis of the Self-Determination of Peoples: A Cosmopolitan Perspective”, (2003) 10
Constellations 4 at 493. Archibugi suggests that this approach unifies the description presented by Cassese and others, and
considers the relationship between internal and external self-determination.
175 Ibid. at 496.
132 n APPEAL VOLUME 12
suggests that self-determination may refer to a right of ethnic and cultural minorities to certain
collective rights within states. He argues that this “meaning of right of peoples concerns not so
much international law as internal public law. When internal public law does not provide suf-
ficient protection, minorities can seek protection also in international law and institutions”.176
However, even if the circumstances in which self-determination rights are available at in-
ternational law were defined expansively, note that self-determination rights are generally re-
served for peoples. It is difficult to define what constitutes a “people”; although the Supreme
Court of Canada touched on this issue in Secession Reference at paras. 123–125, it only notes
that a people “may include only a portion of the population of an existing state”.177 Hannum
argues that defining a people has objective and subjective components. The objective compo-
nents such as race, religion, language and ethnicity may be used to define the “self” part of
“self-determination”,178 and a person may be part of many different, overlapping groups. In
an argument popular with proponents of a narrow definition of self-determination, attempting
to categorize a people may lead to infinite fragmentation.179 The subjective component of de-
termining a people is considering which characteristics are relevant in defining a people for the
purposes of self-determination. Friedlander suggests that a people consists of “a community of
individuals bound together by mutual loyalties, an identifiable tradition, and a common cultural
awareness, with historic ties to a given territory”.180 That being said, the strongest support for
self-determination of peoples in international law has been given to colonies seeking indepen-
dence. Many former colonies did not consist of a community at all, but rather were comprised
of rival ethnic groups with bitter hatreds of one another.181
Could the people of Northwestern Ontario use international law assert a right to self-deter-
mination? At first glance, the likely answer is “no”. Using Cassese’s summary of circumstances
in which the right to self-determination exists at international law, Northwestern Ontario is
neither a former colony, nor under military occupation, nor do its people form a racial group
who are denied access to government.
However, international law has been recognized by the Supreme Court of Canada in Baker
v. Canada (Minister of Immigration) (“Baker”)182 as providing a moral framework for domestic
decision-making. For the majority in Baker, L’Heureux-Dubé J. stated that “the values reflected
in international human rights law may help inform the contextual approach to statutory inter-
pretation and judicial review”.183 I would submit that the core values of the aforementioned
U.N. covenants are democracy, freedom, and the promotion of human development among
the peoples of the world. For political reasons, self-determination rights have been defined
narrowly in the international jurisprudence; however, I would argue that the moral rationale
underlying section 1 of each of the aforementioned U.N. covenants, and not international legal
precedent, should be the focus of any analysis of Northwestern Ontario’s right to self-deter-
mination.
To this effect, I believe that Archibugi’s broad, expansive analysis of self-determination
rights would be the most appropriate framework to analyse Northwestern Ontario’s right to
176 Ibid. at 499.
177 Secession Reference, supra note 1 at para. 124.
178 Hannum, supra note 164 at 35.
179 For example, see Brian Slattery, “Paradoxes of National Self-Determination” (1994) 32 Osgoode Hall L. J. at 731.
180 Robert Friedlander, “Proposed Criteria for Testing the Validity of Self-Determination as it Applies to Disaffected Minorities”
(1975) 25 Chitty’s L.J. 335–336.
181 Because most colonial borders did not correspond to the boundaries of the ethnic groups living there, I believe that colo-
nized “peoples” should be substituted for “populations”. See Hurst Hannum, “The Right of Self-Determination in the
Twentieth Century” (1998) 55 Wash. & Lee L. Rev. at 775 for additional commentary on this topic.
183 Ibid. at para. 70.
APPEAL VOLUME 12 n 133
self-determination. If Northwestern Ontarians were to make a case for self-determination us-
ing international law principles as outlined by Archibugi, such a claim would fall under the third
category of self-determination: the right of ethnic and cultural minorities to self-determination
within states. This is problematic because Northwestern Ontarians could not be considered a
people in the sense envisioned by Wilson, Archibugi and others—namely, an ethnic or cultural
group with a defined territorial homeland. If, however, the “community of individuals” stan-
dard proposed by Friedlander were used, it might well be possible to establish the existence of
a Northwestern Ontario “people”. Although as mentioned earlier, the nature of Northwestern
Ontario’s economy and geography has created extensive fragmentation, I believe that any
Northwestern Ontario secession movement would be strengthened immeasurably if it articu-
lated how Northwestern Ontario is a cohesive community based on political, economic and
cultural commonalities. Again, this expansive analysis of the international law definition of a
“people” is in keeping with the moral values underlying the inclusion of self-determination
rights in international law.
Question 2: Who is entitled to self-determination under Canadian law?
As noted above, international law provides a moral rather than legal argument that North-
western Ontario should have a right of self-determination. However, Canadian legal and politi-
cal history provides far more support for Northwestern Ontario self-determination. The level
to which various groups within Canada are entitled to self-determination has been a perennial
theme of Canadian history, and Canada’s political development has been heavily influenced
by all three types of self-determination described by Archibugi. Canada’s independence from
Britain is an example of a colony asserting its right of self-determination, albeit in a much more
gradual manner than many other colonies. The Quebec sovereigntist movement is an example
of certain members of a minority people seeking self-determination via independence.184 De-
mands by many First Nations groups for increased autonomy within Canada fit the third de-
scription of self-determination; namely, the right of ethnic and cultural minorities to collective
rights within a state.
Further, I believe that, within the Canadian context, the right to self-determination has
been extended beyond Archibugi’s three categories. Specifically, throughout Canadian history,
various groups have called for increased autonomy from federal and/or provincial authorities
without making a case for ethnic or cultural distinctiveness. Rather, their arguments have been
based on regional concerns. As an example, the City of Toronto recently gained increased
rights to pursue its political, economic, social and cultural development within the framework
of Canada (and Ontario) despite the fact that, far from having a distinctive ethnicity, Toronto is
the most ethnically diverse city in the world. When Toronto Mayor David Miller stated that the
City of Toronto Act recognized Toronto’s “uniqueness”,185 he was likely referring to Toronto’s
unique size, status and public policy concerns as a geographical and political entity, and not to
any type of ethnic or cultural uniqueness.
The Secession Reference defines internal self-determination as “a people’s pursuit of
its political, economic, social and cultural development within the framework of an existing
state”,186 and Canada’s constitutional structure was created because a unitary system was inca-
pable of accommodating the diversity of Canada’s population. The primary motivation behind
184 The Secession Reference upheld the traditional international law principle that groups which are not being colonized or under
foreign occupation do not enjoy a unilateral right to independence, though the Supreme Court went further than the inter-
national law in requiring Canada to negotiate with Quebec should that province vote to secede (supra note 1 at para. 92).
185 City of Toronto, “Mayor Miller comments on the introduction of the new City of Toronto Act” (14 December 2004), online:
City of Toronto onto.ca/mayor_miller/speeches/cta_remarks.htm>.
186 Secession Reference, supra note 8 at para. 123.
134 n APPEAL VOLUME 12
Confederation was resolving the Canada West–Canada East rivalry. This conflict involved sepa-
rate peoples who, in the opinion of most of the Fathers of Confederation, deserved separate
provinces. However, as discussed in the aforementioned J.C.P.C. arbitration, it was clear from
the beginning that having only two provinces for Canada’s two main founding cultures was
neither feasible nor desirable. As a result, after Confederation, new provinces such as Saskatch-
ewan and Alberta were created not because they possessed distinctive regional cultures, but
because the federal government wanted responsive local governments to serve the hundreds
of thousands of settlers who migrated there in the early twentieth century.187 The creation of
new provinces after Confederation, despite the fact that they had only recently been settled by
non-Aboriginals, may be seen as the earliest precedent for granting self-determination based
on regional concerns.
The drafters of the Constitution Act, 1867 were aware of Canada’s diversity and need
for accommodation of competing interests, and I would argue that domestic and Imperial law
and policy-making has recognized a much broader right to self-determination than even the
most liberal international legal definition. However, even though the Supreme Court of Canada
has recognized federalism as a “fundamental and organizing principle of the Constitution”,
Canada has not always been guided by such principles,188 After the rebellions of 1837, Upper
and Lower Canada were united into one province. This was largely an attempt to make Canada
less diverse by culturally assimilating the Francophones of Lower Canada, which made up the
majority of that province’s population.189 In 1840, the British Parliament in the Act of Union
divided seat totals in the Legislative Assembly evenly between Canada East and Canada West,
despite the East having 190,000 more people, in part to ensure Anglophone dominance of the
united province.190 However, although the francophone Québécois refused to give up their
culture for the sake of political efficiency, their proportional share of the Canadian population
declined. By the early 1850s, Canada West had the larger population. When this happened,
radicals in Canada West such as the Clear Grits advocated more extensive democratic reforms,
including representation by population in the Legislative Assembly.191 As a result, in the lead-up
to Confederation, the United Province of Canada was wracked with political instability brought
about by shaky coalitions between parties from Canada East and West. Historian Randall White
notes that “[a]t the bottom of the difficulties was an innate sectionalism that the struggle for
responsible government had temporarily papered over”.192 Due to the united Canada’s failure
to function politically, federalism was seen as the best way to accommodate the diversity of
cultures and regional interests that existed at Confederation, in order to create a stable national
government and grant certain sections of Canadian society a degree of self-determination.193
Federalism has continued to evolve post-Confederation. In the late nineteenth century, the
J.C.P.C. expanded provincial powers in a number of decisions.194 Additionally, with the advent
of the modern welfare state, provincial control of social services, licensing, infrastructure, and
187 Of course, both provinces had large Aboriginal populations with distinctive cultures. However, the Canadian government’s
political approach to Aboriginals on the Prairies was not to grant them provincial status in light of their ethnic and cultural
distinctiveness, but rather, to strip them of rights to land and self-government via treaties, the creation of reserve lands and
federal legislation such as the Indian Act.
188 Secession Reference, supra note 1 at para. 32.
189 White, supra note 15 at 100.
190 Ibid. at 101.
191 The United Province of Canada was formed in response to the report by Lord Durham, which itself was commissioned in
response to the rebellions of Upper and Lower Canada. The Durham Report recommended that Upper and Lower Canada
be united “as a first step toward the eventual anglicization of the French-speaking population in Lower Canada” (White,
supra note 15 at 100). In Durham’s view, assimilation was the only way to prevent further rebellions by the Québécois
against the primarily Anglophone political and economic establishment.
192 Ibid. at 117.
193 Secession Reference, supra note 1 at para. 43.
194 See e.g. Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96 ; Hodge v. The Queen (1883) 9 App. Cas. 117.
APPEAL VOLUME 12 n 135
numerous other areas became much more significant in terms of provincial power. As a result,
Canada developed a decentralized federal structure likely unforeseen by Sir John A. Macdonald
and the other fathers of Confederation. Non-provincial organizations, such as groups repre-
senting Aboriginals, women and minorities, have demanded increased representation and au-
tonomy for their members, with varying degrees of success. Parliament sought to respond to
these demands in 1982 with the passage of the Canadian Charter of Rights and Freedoms195
and section 35 of the Constitution Act, 1982.196 More recently, Parliament approved a Bloc
Québécois resolution to recognize the Québécois as a nation,197 creating a precedent which
many believe should translate into similar recognition for other groups within Canada.
All of this is to say that if the people of Northwestern Ontario wanted regional autonomy
or provincial realignment, their best strategy would be to lobby higher levels of government
(namely, Ontario and the Government of Canada) for legal and political change. Di Matteo et
al. suggests that a Northwestern Ontario regional government can and should gain powers over
“economic development, environment and energy, municipal affairs, natural resources, northern
development and mines, transportation, culture, and tourism and recreation” and should lobby the
Province accordingly.198
However, in order to secede from Ontario, other legal procedures would likely have to be
followed. A constitutional amendment would be required, as outlined in the introduction to this
paper. Of course, given the constitutional amending formula, if Northwestern Ontario sought
to secede from Ontario, the latter would have to consent to its own dismantling. This brings
up the following question: if a clear majority of Northwestern Ontarians voted in favour of a
clear question regarding secession, would Ontario have to honour the results of such a vote by
negotiating a constitutional amendment?
In my opinion, the answer is yes. The Secession Reference imposes a duty on governments
to negotiate secession if a clear majority supports it. Paragraph 92 states:
The continued existence and operation of the Canadian constitutional order
cannot remain indifferent to the clear expression of a clear majority of Que-
becers that they no longer wish to remain in Canada. This would amount
to the assertion that other constitutionally recognized principles necessarily
trump the clearly expressed democratic will of the people of Quebec. Such
a proposition fails to give sufficient weight to the underlying constitutional
principles that must inform the amendment process, including the principles
of democracy and federalism. The rights of other provinces and the federal
government cannot deny the right of the government of Quebec to pursue
secession, should a clear majority of the people of Quebec choose that goal,
so long as in doing so, Quebec respects the rights of others. Negotiations
would be necessary to address the interests of the federal government, of
Quebec and the other provinces, and other participants, as well as the rights
of all Canadians both within and outside Quebec.199
The precise nature of the negotiations was not determined by the Court. However, as
Chowdry and Howse note:
Contrary to expectations … the Court decided that in the event of a yes
195 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11.
196 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
197 CBC News InDepth, “Debate: The motions on the Québécois nation”, online: CBC News
ground/parliament39/motion-quebecnation.html>.
198 Di Matteo, Emery & English, supra note 3 at 190.
199 Secession Reference, supra note 1 at para. 92.
136 n APPEAL VOLUME 12
vote, the federal government would be under a constitutional duty to ne-
gotiate in good faith. The uncertainty of the federal response to a positive
referendum result—a source of strategic power for the federal government
in the past—has been eliminated.200
In other words, good faith negotiations would necessarily have to take into account major-
ity interests, so long as there was a clear referendum question upon which people could vote.
If three of Canada’s four core values, as identified in the Secession Reference, are federalism,
democracy, and constitutionalism and the rule of law, good faith negotiations would have to
start with the recognition of a clear majority vote in favour of a a clear referendum question.
Negotiations would then address not if, but how, secession could be achieved. Such negotia-
tions would likely be easier when dealing with provincial boundary realignment than outright
independence. Issues such as border crossings, currency, control of armed forces and other
potential sticking points that have arisen relating to Quebec separatism would not apply.
Though the Quebec Secession Reference dealt with a province’s right to external self-de-
termination, there is no reason why the same “principles of democracy” would not inform a
decision by a region to secede from a province but remain in Canada. One might argue that
“principles of federalism” only apply to federal-provincial relations, and not to relations within
provinces; the fact that most regions and municipalities are, at best, creatures of provincial
statute with no constitutional rights might place them at a lower level of the totem pole of
Confederation. However, the fact that provincial boundary adjustment was contemplated in
the Constitution Act, 1982 suggests that regions and their inhabitants were meant to have
some constitutional right regarding boundary determinations.
All of this still leaves the question of what, if any, remedy Northwestern Ontario would
have if Ontario refused to negotiate secession after a referendum with a clear vote on a clear
question, and effectively employed a constitutional veto under section 43(a). In my opinion, the
options available to the Northwest would be similar to those used in the post-Confederation
boundary dispute.
First, the courts could be asked to adjudicate the matter, much as the J.C.P.C. did in 1884.
In my opinion, Northwestern Ontario’s best argument is that the amending formula was not in-
tended to be used to subvert the underlying values of the Canadian constitution as recognized
in the Secession Reference—in particular, democracy and minority rights. If successful, North-
western Ontario might then apply for an injunction requiring that Ontario negotiate secession,
or for an order recognizing and giving legal effect to the referendum results.
Second, Northwestern Ontario could appeal to Parliament to decide the matter. In any
event, Canada would have to agree to any boundary adjustment in order for a constitutional
amendment to pass. As in international law, a region’s claim to sovereignty hinges upon rec-
ognition from other parties, and the Government of Canada’s recognition of “Mantario” or a
“Province of Northwestern Ontario” might be compared to the U.N.’s recognition of a newly-
formed state. As evidenced by the Quebec-Labrador boundary dispute,201 which most would
argue was put to rest when Canada enshrined Newfoundland’s borders in the Terms of Union
after it joined Canada in 1949,202 recognition by Canada is vital to a province’s claim to sover-
200 Sujit Choudhry & Robert Howse, “Constitutional Theory and The Quebec Secession Reference” (2000) 13 C.J.L.J. 2 141 at 144.
201 The long-standing dispute between Quebec and Newfoundland over the boundaries of Labrador is described in further
detail in St John Chadwick, Newfoundland: Island Into Province (London: Cambridge University Press, 1967) at 132–153.
202 For example, Quebec government studied the matter in the early 1970s in the Commission d’étude sur l’intégrité du ter-
ritoire du Québec. According to the Royal Commission on Aboriginal Peoples, “the commission’s general conclusion was
that, contrary to what many in Quebec felt, no gross legal error had been made by the privy council in its decision and thus
no legal option was available to reverse the decision, particularly when successive governments effectively accepted the
boundary as the border between the two provinces [emphasis added]”, online: and Northern Affairs Canada
ainc-inac.gc.ca/ch/rcap/sg/sj31_e.html>
APPEAL VOLUME 12 n 137
eignty over a territory.
Conversely, Northwestern Ontario could not assert a right to unilateral withdrawal from
Ontario. A referendum process would have to occur, and likely a clear majority would have to
approve secession before Ontario allowed it to proceed. The Court recognized that good faith
negotiations could break down, and it provides no suggestions as to how such an impasse
might be resolved.203 Cairns states that “the Court indicated that negotiations would be very
difficult and that, among other subjects, the position of Aboriginal Peoples, especially in North-
ern Quebec, and boundaries could be on the table”.204 The same concerns could easily arise in
Northwestern Ontario. To avoid such a situation, supporters of Northwestern Ontario secession
would have to obtain considerable support from the region’s Aboriginal peoples. It would also
be advantageous, early in the secession process, to get the Ontario government to agree on
Northwestern Ontario’s borders, so that Queen’s Park might be prevented from arguing that
there is not a clear border during post-referendum negotiations.
CONCLUSION
When Northwestern Ontario became part of Ontario, Oliver Mowat’s legal reasoning was
questionable and the J.C.P.C. decision was surprising. His victory before a tribunal appointed
by his political ally, Alexander Mackenzie, may have been the most influential factor behind
Mowat’s eventual victory on the boundary issue. Certainly it is doubtful that the southeast
border of Rupert’s Land was hundreds of kilometres farther west than previously thought, and
good luck played a key role in Ontario winning the Ontario Boundary Case.
That being said, I believe that Oliver Mowat deserves full credit for taking control of North-
western Ontario by fighting harder for it than either the Dominion or Manitoba. Had Mowat
not sent provincial agents to the farthest reaches of his province’s claim, not prepared an im-
peccably researched case with virtually every treaty, law, case, letter and other documentary
information relevant to the boundary dispute, and not personally advocated for his province
before the J.C.P.C., the result might well have been different.
When Mowat returned to Ontario after successfully arguing the boundary case in London,
England, MacKirdy writes that “[r]arely have Ontarians indulged in such blatant manifestations
of provincial patriotism”.205 Twelve thousand people marched in a parade marking the occa-
sion in Toronto, and the event was witnessed by nearly 100,000. As part of a triumphant tour,
Mowat told a crowd in Niagara Falls, “I rejoice to know that the one great cause, the principal
cause of your enthusiasm, is that you love Ontario as I love it”.206
Northwestern Ontario has never had such a bright, charismatic and passionate advocate
for its rights. Should Northwestern Ontario ever hope to secede from Ontario, it will need an
equivalent to the man who brought the region into the province in the first place. Such an ad-
vocate will need to be aware of the legalities surrounding self-determination for Northwestern
Ontario. But more importantly, that person will have to have a passion for the Northwest, as
Mowat had for Ontario.
203 Secession Reference, supra note 1, at paras. 96–97.
204 Alan Cairns, “The Quebec Secession Reference: The Constitutional Obligation to Negotiate” 10 Constit. Forum 1 26 at 27.
205 MacKirdy, supra note 18 at 197.
206 Quoted in MacKirdy, ibid.
138 n APPEAL VOLUME 12
APPENDIX A: Maps
FIGURE 1
MAP OF NORTHWESTERN ONTARIO CENSUS DISTRICTS.
Thunder Bay District is 58, Rainy River District is 59, Kenora District is 60.
Source: Statistics Canada (Unofficial Version)
© Her Majesty the Queen in Right of Canada, Statistics Canada
All rights reserved
APPEAL VOLUME 12 n 139
FIGURE 2
ONTARIO PARKS MAP OF NORTHWESTERN ONTARIO.
Source: Queen’s Printer for Ontario, 2006 (Unofficial Version)
140 n APPEAL VOLUME 12
FIGURE 3
MAP OF ONTARIO, 1867.
Source: Atlas of Canada (Unofficial Version)
© Her Majesty the Queen in Right of Canada, Department of Natural Resources.
All rights reserved
APPEAL VOLUME 12 n 141
FIGURE 4
ROBINSON-SUPERIOR TREATY AREA.
Source: Treasury Board of Canada (Unofficial Version)
© Her Majesty the Queen in Right of Canada, Treasury Board of Canada
All rights reserved
142 n APPEAL VOLUME 12
FIGURE 5
MAP OF MANITOBA AND ONTARIO, 1874.
Source: Atlas of Canada (Unofficial Version)
© Her Majesty the Queen in Right of Canada, Department of Natural Resources.
All rights reserved
APPEAL VOLUME 12 n 143
FIGURE 6
MAP OF MANITOBA AND ONTARIO, 1881.
Source: Atlas of Canada (Unofficial Version)
© Her Majesty the Queen in Right of Canada, Department of Natural Resources.
All rights reserved
144 n APPEAL VOLUME 12
The Economics of Extraction
The Politics of Extraction
The Politics of Futility The Politics of Handouts
The Politics of Frustration The Politics of Parochialism
Radicalism Fringe
Movements
The Politics of
Sublimation
The Politics of
Dependency
METROPOLIS-HINTERLAND
RELATIONSHIP
INTRA-HINTERLAND
POLITICAL REACTION
APPENDIX B: Economic and Political Effects of Extraction in
Northwestern Ontario
Source: Reproduced from Geoffrey Weller, “Hinterland Politics: The Case of Northwestern Ontario” (1977)
10 Can.J.Pol.Sci. 4
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