The constitutions of the maritime provinces.

• Author: Rieksts, Mark
• Position: Feature: Constitutions

To understand the constitutional makeup of Canada, one must appreciate an important historical fact: the constitutional heritage of the country is older than the country itself. This is so because several of the provinces that would eventually become part of the Dominion of Canada had their own colonial constitutions before Confederation--before the enactment of Canada's federal constitution in the form of the British North America Act (BNA Act), 1867 (now Constitution Act, 1867).

The oldest of these pre-confederation constitutions belong to the Maritime provinces: Nova Scotia, New Brunswick and Prince Edward Island. This is no accident. History is the mother of the law, and in the constitutional context, the earliest settled (or conquered) colonies were vested by the British Crown with the earliest constitutions.

The pre-confederation constitutions of the Maritime provinces provided the machinery of government for these British colonies of North America, and defined the relationship between the Crown and early legislative assemblies. The early constitutions of the Maritime provinces are still relevant to the post-Confederation constitutional framework, since they were retained (with only slight modifications) as each province entered confederation.

For Nova Scotia and New Brunswick, two of the founding provinces of Canada, the BNA Act, 1867 affirms the continuation of the "Constitution of the executive authority" (s.64) and the "Constitution of the Legislature" (s.88) as they existed at the time of union. The continuation of the constitution for each province is made "subject to the provisions of this Act" (the BNA Act), and until altered under the authority of the Act.

The BNA Act, 1867, section 146, contemplated the addition of other British North American colonies to the Dominion of Canada as provinces, after Confederation, by way of order-in-council. It was pursuant to this section that Prince Edward Island was admitted to Canada as a province by Imperial Order-in-Council in 1873. In terms similar to those used in the BNA Act for the other provinces, and to like effect, the Order continued the "constitution of the executive authority and of the legislature of Prince Edward Island", as existing at the time of the Union; subject to the BNA Act, 1867, and until altered under the authority of that Act.

The Maritime Constitutions--Form and Content

Therefore, to appreciate the constitutional structure of the present-day Maritime provinces...