B. Powers of Amendment in the BNA Act
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 166-176 |
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Although the BNA Act did not contain a general amending procedure, the Act did include a number of limited powers of amendment. Some of these amending powers were included in the original enactment in 1867; others were added later. The three bodies empowered to amend the BNA Act were the British Cabinet, the Parliament of Canada, and the legislatures of the provinces.
In 1867, Canada included only a small portion of the lands that now make up the country. The original BNA Act divided Canada into the four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick.6
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In addition, the 1867 boundaries of Ontario and Quebec comprised less than half of the lands now included within those provinces.7Yet, while Canadian territory in 1867 was extremely limited, the drafters of the BNA Act envisaged that the boundaries of the federal state would be extended to the north, east and west, so that all the British colonies and territories in British North America would eventually form part of the Dominion. Section 146 of the BNA Act explicitly contemplated this possibility and set out a procedure whereby the colonies of Newfoundland, Prince Edward Island, and British Columbia, as well as Rupert’s Land and the North-Western Territory, could be admitted to Canada. Section 146 granted the British Cabinet the power to approve the admission of the three colonies through an order-in-council, provided that the Canadian Parliament and the legislature of the particular colony concerned had approved the terms of admission.8The admission of Rupert’s Land and the North-Western Territory required a British order in council and the approval of the Canadian Parliament. An order in council approved pursuant to section 146 was to have effect as if enacted as part of the BNA Act itself.
Pursuant to the authority set out in section 146, the British Cabinet approved orders in council admitting Rupert’s Land and the NorthWestern Territory in 1870, British Columbia in 1871, Prince Edward Island in 1873, and all remaining British possessions and territories in North America and the adjacent islands, except the colony of Newfoundland, in 1880.9All these orders are included within the defin-
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ition of the Constitution of Canada in section 52 of the Constitution Act, 1982.10
While section 146 of the BNA Act set out a procedure whereby various colonies and territories could be admitted to Canada, it did not specify the manner in which additional provinces could be created out of the territories admitted or the procedure for establishing or altering the boundaries between any provinces that might be created. Nor did section 146 state who would be responsible for establishing a form of civil government in any new province or territory. The federal government initially took the position that it had the legislative authority to create new provinces and provide for civil government in areas admitted to Canada pursuant to its residual power to enact laws in relation to classes of subjects not expressly allocated to the provinces. For instance, in 1869, when it became apparent that Rupert’s Land would be admitted to Canada, the Canadian Parliament enacted a statute providing for a temporary form of civil government for the North-Western Territory that became effective once the British order in council approving the admission came into force.11In 1870, the Canadian Parliament passed a second statute creating the province of Manitoba.12
At the same time, it was argued that the power to establish provinces and provincial governments was not provided for in the BNA Act and therefore remained within the exclusive jurisdiction of the Westminster Parliament. In order to resolve these doubts, the British Parliament enacted the British North America Act, 1871 (now the Constitution Act, 1871), which retroactively confirmed the validity of the 1869 federal statute that established Rupert’s Land and the Manitoba Act, 1870.13The Constitution Act, 1871 also granted the federal Parliament the power to: create new provinces out of lands that were part of Canada but not
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within any province, and to provide for the constitution and administration of any such province (section 2); to alter the boundaries of any province with the consent of the legislature of the province affected (section 3);14and to provide for civil government in any territory not forming part of a province (section 4). Pursuant to this authority, the Canadian Parliament clarified and extended the boundaries of Quebec (in 1898 and 1912), Ontario (in 1912), and Manitoba (in 1881, 1912, and 1930) by adding to each province adjacent territory that had previously been within the original North-Western Territory. Canada also created the provinces of Alberta and Saskatchewan in 1905 pursuant to section 2 of the Constitution Act, 1871. In 1898, Parliament created the Yukon Territory as a separate territory with its own form of government.
The Constitution Act, 1982 now requires the consent of at least seven provinces with 50 percent of the total population of the ten provinces and the consent of Parliament, in order to create new provinces or to extend provincial boundaries.15However, the Constitution Act, 1871 continues to govern the process for establishing civil government in territories that are not included within any province. Thus, Parliament has passed statutes implementing land claim and self-government agreements negotiated with Aboriginal peoples in the Yukon, and enacted legislation creating the territory of Nunavut.16These changes were implemented by ordinary federal statute pursuant to section 4 of the Constitution Act, 1871 and did not require the consent of any of the provinces.
The Constitution Act, 1867 provided that Parliament could make certain changes to the composition and operation of the Senate and the House of Commons. However, the authority of Parliament in this regard was limited to what might be termed "housekeeping" matters. For example, section 52 of the Constitution Act, 1867 granted Parliament the power to increase the number of members of the House of Commons, provided that the principle of proportionate representation "is not thereby
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disturbed."17Other provisions in the Constitution Act, 1867 that provided for subsequent adjustments by Parliament included: the establishment or alteration of electoral districts for Parliament (section 40); the manner and time for adjusting provincial representation in the House of Commons in accordance with the results of the most recent decennial census and pursuant to the rules set out in section 51; federal electoral laws (section 41); the number of senators required for a quorum in the Senate (section 35); and the privileges and immunities of members of Parliament (section 18). Furthermore, the Parliament of Canada did not possess the authority to amend the terms of the BNA Act itself. Consequently, on any matter of significance regarding federal institutions, the intervention of the Westminster Parliament was required.
The Imperial Conference of 1926 recognized that Canada, Australia, Eire, New Zealand, and South Africa were independent of Great Britain.18After the Imperial Conference, the federal government and the provinces began to negotiate a "domestic" formula for amending the BNA Act.19The provinces and the federal government failed to agree on a new amending formula at dominion-provincial conferences held in 1927, 1931, and 1935-36. However, they had reached general agreement on three categories...
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