THE BRITISH NORTH AMERICA ACT, 1867

30 AND 31 VICTORIA, CAP. III

An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for purposes connected therewith.

[29th March, 1867.]

WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom:1

And whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire:

And whereas on the establishment of the Union by authority of Parliament, it is expedient not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared:

And whereas it is expedient that provision be made for the eventual admission into the Union of other parts of British North America:

Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this

1 This refers to the system of parliamentary cabinet government as opposed to the system of presidential government in the United States. The criticism therefore of Professor Dicey (Introduction to the Study of the Law of the Constitution, 6th ed., p. 162) seems hardly deserved. The 3rd Resolution of the Quebec Conference ran as follows: 'In framing a constitution for the general government, the Conference, with a view to the perpetuating of our connexion with the mother-country and to the promotion of the best interests of the people of these provinces, desires to follow the model of the British Constitution, so far as our circumstances will permit.'

Short

Title.

Provisions referring

to the Queen.

Declara

tion of Union.

Construc

subse

visions of

present Parliament assembled, and by the authority of the same as follows:

I. PRELIMINARY.

1. This Act may be cited as The British North America Act, 1867.1

2. The provisions of this Act referring to Her Majesty the Queen extend also to the heirs and successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.

II. UNION.

3. It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that on and after a day therein appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia and New Brunswick shall form and be one Dominion under the name of Canada; and on and after that day those three Provinces shall form and be one Dominion under that name accordingly.2

4. The subsequent provisions of this Act shall, unless tion of it is otherwise expressed or implied, commence and have quent pro- effect on and after the Union, that is to say on and after Act. the day appointed for the Union taking effect in the Queen's Proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. 5. Canada shall be divided into four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick.

Four Provinces.

✓

1 The British North America Act has been amended by 34 & 35 Vict. ch. 28, An Act respecting the Establishment of Provinces in the Dominion of Canada, 1871; by 38 & 39 Vict. ch. 38, An Act to remove certain doubts with respect to the powers of the Parliament of Canada under section 18 of the British North America Act 1867, 1875; by 49 & 50 Vict. ch. 35, An Act respecting the representation in the Parliament of Canada of Territories which for the time being form part of the Dominion of Canada, but are not included in any Province; by 7 Edward VII, ch. 11, which rearranged the annual subsidies to be paid to the Provincial Government, and by 5 & 6 G. V, ch. 45, which altered the constitution of the Senate and secured to each Province a number of members in the ✔House of Commons not less than the number of its senators.

2 The new Constitution came into force on July 1, 1867.

of Ontario

6. The parts of the Province of Canada (as it exists at Provinces the passing of this Act) which formerly constituted and respectively the Provinces of Upper Canada and Lower Quebec; Canada, shall be deemed to be severed, and shall form two separate Provinces. The part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec.

wick.

7. The Provinces of Nova Scotia and New Brunswick Nova Scotia and shall have the same limits as at the passing of this Act. New 8. In the general census of the population of Canada, Brunswhich is hereby required to be taken in the year One Decennial thousand eight hundred and seventy-one, and in every tenth year thereafter, the respective populations of the four Provinces shall be distinguished.

III. EXECUTIVE POWER.

Census.

Power in

9. The Executive Government and authority of and Executive over Canada is hereby declared to continue and be vested the Queen. in the Queen.

to

General.

10. The provisions of this Act referring to the Gover- Provisions nor-General extend and apply to the Governor-General for referring the time being of Canada, or other the Chief Executive GovernorOfficer or Administrator for the time being carrying on the Government of Canada, on behalf and in the name of the Queen, by whatever title he is designated.

Council

11. There shall be a Council to aid and advise in the Constitution of Government of Canada, to be styled the Queen's Privy Privy Council for Canada; and the persons who are to be for Members of that Council shall be, from time to time, chosen Canada. and summoned by the Governor-General and sworn in as Privy Councillors, and Members thereof may be, from time to time, removed by the Governor-General.1

1 It should be noted that the provisions of the Act imply, though they ✔ do not express, the unwritten conventions of British parliamentary prac

All powers under

12. All Powers, Authorities, and Functions which under Acts to be any Act of the Parliament of Great Britain, or of the exercised Parliament of the United Kingdom of Great Britain and by Governor- Ireland, or of the Legislature of Upper Canada, Lower

General

with

advice of Privy Council or alone.

Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exercisable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils or with any number of Members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exercisable by the Governor-General with the advice, or with the advice and consent of, or in conjunction with the Queen's Privy Council for Canada or any Members thereof, or by the Governor-General individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the

✓ Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of ✓ Canada.

tice. It was reserved for the Australian Commonwealth Act expressly to state that a Minister must become a member of the legislature within a prescribed time. The number of the Privy Council has been altered from time to time as new departments have required representation. At present the Privy Council consists of

It should be noted, and the point is of importance in maintaining the federal principle, that the federal character of the Government is always expressed in the Constitution of the Privy Council. There are generally additional Ministers without portfolios.

13. The provisions of this Act referring to the Governor- Provisions referring General-in-Council shall be construed as referring to the to Governor-General acting by and with the advice of the GovernorQueen's Privy Council for Canada.1

General in

Council.

Majesty

rize

General

14. It shall be lawful for the Queen, if Her Majesty Power to thinks fit, to authorize the Governor-General from time to Her time to appoint any person or any persons jointly or to authoseverally to be his deputy or deputies within any part or Governorparts of Canada, and in that capacity to exercise, during to appoint the pleasure of the Governor-General such of the powers, deputies. authorities, and functions of the Governor-General as the Governor-General deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the Queen; but the appointment of such a deputy or deputies shall not affect the exercise by the Governor-General himself of any power, authority or function.

of armed

15. The Command-in-Chief of the Land and Naval Militia, Command and of all Naval and Military Forces of and in Canada, is Forces. hereby declared to continue and be vested in the Queen.2

1 The position of the Governor-General has been somewhat altered by the amended instructions given to Lord Lorne in 1878. Before this time certain classes of Bills had to be reserved by him for imperial consideration; this practice has been discontinued, but a suspending clause is now inserted in Acts which otherwise would require reservation. Some doubt having arisen as to the position of the Governor-General in the exercise of the pardoning power, after the visit to England of Mr. Blake, the Canadian Minister for Justice visited England to confer with the Imperial Government. In accordance with the arrangement arrived at, the instructions of 1878 prescribe that the Governor-General shall not pardon an offender without first receiving in capital cases the advice of the Privy ✔ Council, and in other cases the advice of one at least of his Ministers. In any case in which a pardon or reprieve might directly affect the interests of the Empire or of any country or place beyond the jurisdiction of the Government of the Dominion, the Governor-General, before deciding, must take those interests specially into his own personal consideration in conjunction with such advice of his Ministers. See Can. Sess. Papers, 1879, No. 181. The position of the Governor-General with respect to Provincial Governors is dealt with in the note to Sec. 59.

2 For many years after Confederation the officer commanding the Canadian Militia was an officer of the Imperial army lent to Canada. In 1904 there was trouble between Lord Dundonald and the Dominion Government, and the office of Commander-in-Chief was technically abolished. Lord Dundonald's successor in the command of Canadian Militia was a British officer; but the present holder of the post is a Canadian.