Making the legal argument why Cape Breton Island should be its own entity separate from Nova Scotia

Since he was a high school student, Mark Macneill has never given up on his view that Cape Breton Island should be its own province – a view shared by many.

“Even back in 1978, I had a piece published as a high school student in the local paper advocating that Cape Breton Island should be its own province,” says Macneill, who leads a group, the Cape Breton Island Autonomy (CBIA) association, which has 5400 members on its Facebook. He later studied law at the University of Edinburgh to help him bolster his legal arguments as to why Cape Breton Island should have the rights of a separate province or territory.

“If the idea of Quebec being a ‘nation within a nation’ is accepted, then surely Cape Breton as a ‘province within a province’ should also be accepted,” says Macneill, who also trained and worked as an accountant and worked at the Cape Breton University Centre for Community Economic Development.

Macneill argues that from 1784 to 1820, Cape Breton Island was a distinct colony much like PEI and New Brunswick, created under similar royal proclamations and commissions with instructions from King George III.

Unfortunately for Cape Breton Island, Macneill says, the death of King George III in 1820 saw Nova Scotia administratively annex Cape Breton Island in October of that year “without consultation with our island’s colonial government.”

He adds: “It’s time Cape Breton Island’s constitution is respected, restored and a renaissance is rekindled.”

At the time it was annexed, he says, Cape Breton Island was prospering and accounted for about one-third of Nova Scotia’s revenues. But it was “held subordinate and was repeatedly denied calls for its legislature to sit.”

Cape Breton Island sought to pass legislation to raise revenue and finance public projects to accommodate the needs of its growing population, Macneill says. Nova Scotia’s response, with King George III’s passing, “was to secure Cape Breton Island revenues by annexing it.”

But, Macneill argues, Cape Breton Island’s “colonial constitution was never rescinded.”

Macneill adds that in 1867, Charles Tupper – Nova Scotia premier from 1864 to 1867 and, later, the sixth Prime Minister of Canada – signed the province into Confederation, and the BNA Act 1867, to become a part of Canada.

Macneill argues there are two clauses within the BNA Act that present legal arguments that Cape Breton Island’s colonial charter, although dormant since 1820, arguably may still have standing.

He points to the BNA Act’s treatment of the executive government of Nova Scotia and New Brunswick.

It says: “The Constitution of the Executive Authority in each of the provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.”

As well, he says, part 4, s. 88, of the BNA Act states, “the Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provision of this Act, continue as it exists at the Union until altered under the Authority of this Act.”

However, despite the island’s colonial charter, or constitution, bestowed on it by King George, Cape Breton Island’s attempts to call its legislature together were never allowed by Nova Scotia and “we were subsequently annexed without our consent.”

This was an arbitrary administrative action by Nova Scotia, “and there is no reference to CBI’s colonial constitution, including our right to a government executive and legislature to have ever been repealed.”

So, he adds, “it is like a dormant constitution that Nova Scotia took from us, never repealed, and thus is held within Nova Scotia’s constitutional patrimony.”

With this interpretation, Macneill argues, CBI’s constitution within NS has been protected by the BNA 1867 and gives the island standing to call for the restoration of its provincial constitution. (Under older terminology, a constitution was often referred to as a colonial charter, as colonies were also called provinces, and charters setting out the governance of a colony or a province are a constitution.)

Presented with the counterargument that when Canada’s new constitution, the Canadian Charter of Rights and Freedoms, was passed 40 years ago, it trumped any rights CBI might have had under the BNA Act, Macneill says, “this is a false presumption.”

“Our constitution is both written and unwritten,” he says, adding that along with the Charter, there are “unwritten conventions and common law decisions that are also relied on.” He then cites the two sections of the BNA Act (Section 64 and Section 88) mentioned above as part of his argument why CBI should be treated as a province and have its ancient royal charter recognized.

Macneill acknowledges there is a massive challenge in how to re-establish CBI politically and legally as a self-governing entity within Confederation. However, he points out that governance models of “nested federalism” already exist within Canada  –  the Quebec model, territorial models, and regional models such as Nunavik. The later comprises the northern third of the province of Quebec, part of the Nord-du-Québec region and it is the homeland of the Inuit of Quebec.

From a practical perspective, Macneill says that Cape Breton would have a better chance of economically developing if it were its own entity instead of being a “subrogated colony.” Even the money Nova Scotia receives as equalization payments from the federal government has not been better used to help Cape Breton Island grow.

He says he believes Canada’s “evolving federalism” will one day accommodate Cape Breton Island’s best interests. Macneill also argues there are conventions under the United Nations, to which Canada is a signatory, can point.

He adds that such an international forum may not have any means of enforcing its conventions. Still, it does carry considerable weight and “invariably global scorn is invoked when democracy is denied for just causes.”

For instance, the Human Rights Charter of the UN, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights all “affirm the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.”

Macneill adds: “As an island and a people with a distinct social, cultural and political history, Cape Breton Island has been deprived of the universal rights and liberties of human-kind recognized in international law.”

Obtaining self-governance to control its resources and revenues – with the goal of growing into an independent strategic maritime hub and ridding the need for equalization payments – “is what Cape Breton Island needs.”