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122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

One or two points in these sections require comment. As to the Territories. method of government of territories, the Australian Parliament has power to allow representatives of such territories to become. members of, and to vote in, the Federal Parliament; whereas in the United States the territories cannot return members to Congress, though they are represented there by delegates who have no vote. The meaning of the word "territories" in the Australian Constitution would seem to be the same as in that of the United States, for Clause VI. of the covering Act defines "States" as meaning:

"Such of the Colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such Colonies or Territories as may be admitted into or established by the Commonwealth as States."

It is, therefore, clear that when the Australian Constitution refers to territories, it means country within the jurisdiction of the Commonwealth and not forming part of a State. Such territory may be acquired by the Commonwealth in three ways:

(a) Surrendered by a State and accepted by the Commonwealth. [Sec. III.]

(b) Placed by the Queen under the authority of, and accepted by the Commonwealth. [Sec. 122.]

(c) Otherwise acquired by the Commonwealth.

[Sec. 122.]

When acquired in either of these three ways, territories pass-as in the United States-under the direct jurisdiction of the Federal Parliament; and the Constitution contemplates such territories as being, so to speak, in a condition of political tutelage preparatory to their attaining, when fit to do so, the full political status of States.

With regard to the admission of new States, the Federal Con- New States. stitution of Australia makes a distinction between original States -i.e., States which were members of the Commonwealth at its formation-and States subsequently admitted. It differs from

the Constitution of the United States in giving original States certain privileges which States subsequently admitted cannot claim as of right. Thus :

(a) The right of equal representation in the Senate applies only to Original States.

(b) The provision that each State shall have at least five members in the House of Representatives applies only to Original States.

(c) It is very doubtful whether the proportional representation of States in the House of Representatives though expressed without qualification in Sec. 24-is not subject, in the case of new States, to the right of the Federal Parliament [under Sec. 121] to "make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit."

As to new States which may be admitted, Sec. 121 contemplates two kinds :

(1) States which, prior to their entry into the Commonwealth, were already duly-constituted Colonies.

(a) Australian Colonies not Original States, of which New Zealand is the only example.

(b) Colonies erected, or to be erected, in other dominions of the Crown, e.g., New Guinea and Fiji.

(2) States established in the jurisdiction of the Commonwealth : (a) Territories raised to the condition of States.

(b) New States created out of States already in existence, by sub-division or otherwise, as contemplated in Secs. 123 and 124.

Canada.

The Canadian legislation on the subject of the admission of new Provinces of, and the addition of territory to, the Dominion, is as follows:

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"It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on addresses from the Houses of the Parliament of Canada and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island and British Columbia, to admit those Colonies or Provinces or any of them into the Union, and, on address from the Houses of the Parliament of Canada, to admit Rupert's Land and the North-West 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 approve, 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."

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(ii.) This section was subsequently amended by The British North America Act, 1871: The preamble set out that doubts have been entertained respecting the powers of the Parliament of Canada to establish Provinces in territories admitted, or to be admitted, into the Dominion of Canada, and to provide for the

representation of such Provinces in the said Parliament "; and that it is expedient to remove such doubts and to vest such powers in the said Parliament." The Act provided that :

(a) As to the government of territories:

"The Parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included in any Province." [Sec. 4.]

(b) As to the Establishment and Constitution of Provinces:

"The Parliament of Canada may from time to time establish new Provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province and for the passing of laws for the peace, order and good government of such Province, and for its representation in the said Parliament.

"

[Sec. 2.]

The Parliament may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby."

[N.B.-Prior to the passing of this Act, the Dominion Parliament had already provided for the admission of Manitoba as a Province, and for the temporary government of Rupert's Land and the North-Western Territory when united with Canada. This Act guaranteed the continued validity of these provisions.]

(iii.) The British North America Act of 1867 had made certain limitations [Secs. 22, 28, 37, 51, 147] upon the number of members of the Senate, and the representation of Provinces in the House of Commons, of the Dominion.

It was therefore necessary to pass The British North America Representation Act, 1886. The preamble to this Act sets out that "it is expedient of Territories. to empower the Parliament of Canada to provide for the representation in the Senate and House of Commons of Canada, or either of them, of any territory which for the time being forms part of the Dominion of Canada, but is not included in any Province." The Act proceeds to give the Dominion Parliament power "to make provision for the representation in the Senate and House of Commons of Canada, or either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any Province thereof."

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The Act then goes on to safeguard any Act already passed by the Parliament of Canada for that purpose and not disallowed by the Queen. Further, it declares that any Act passed by the Parliament of Canada, whether before or after the passing of this Act, for the purpose mentioned in this Act, or in The British North America Act, 1871, has effect notwithstanding anything in The British North America Act, 1867; and the number of Senators or the number of members of the House of Commons specified in the

Number of

Senators and
Members of
Dom. House

of Commons.

last-mentioned Act is increased by the number of Senators or of members, as the case may be, provided by any such Act of the Parliament of Canada for the representation of any Provinces or territories of Canada."

[Thus the conflict between the sections of the Act of 1867 which limited the number of members of either House of the Dominion Parliament, and the Acts of 1871 and 1886 increasing the number of such members, was reconciled. The actual representation of the Provinces and territories in the Dominion Parliament are given on p. 185.]

The creation of new Provinces of, and the addition of new territory to, the Dominion of Canada is therefore a subject of some complexity. What has actually taken place can best be described by dividing the subject into three heads:

(i.) Addition of new territory to the Dominion.

As to this, the provisions of Sec. 146 of The British North America Act of 1867 applied only to Rupert's Land and the North-West Territory. That section provided that they could be added to the Dominion by Order in Council based on an address from the Dominion Parliament. Such an Order in Council, admitting them as Territories, was issued on 23rd June, 1870.

There is, however, no legislative provision for the addition of new territory-not comprised in Rupert's Land or the North-West Territory-to the Dominion. But the absence of such definite legislative provision has, as a matter of actual practice, been ignored. Thus on the 31st July, 1880, in compliance with the prayer of an address from the Parliament of Canada, dated the 3rd May, 1878, an Order in Council was issued annexing to the Dominion from 1st September, 1880, such British Possessions in North America [other than Newfoundland] as were not previously included in the Dominion.

(ii) Creation of new Provinces out of Dominion territory.

It was upon this point that a doubt arose as to the power of the Dominion Parliament. In the year 1870 an Act was passed by that Parliament creating Manitoba a Province of the Dominion, from the 15th July, 1870-i.e., from the same date as that upon which the whole of Rupert's Land [of which Manitoba was a part] was added as a territory to the Dominion by the Order in Council referred to above. There was, however, nothing in the Act of 1867 to justify the Dominion Parliament in creating a Province out of territory which was already part of the Dominion, and it was doubtless for this reason that The British North America Act of 1871 was passed by the Imperial Government. That Act gave the

Dominion Parliament power to raise the whole or part of territory into a Province, and expressly justified the Act of the Dominion Parliament in relation to the creation of the Province of Manitoba. The power given by the Act of 1871 has been exercised by the Dominion Parliament in the creation and admission into the Dominion of the two Provinces of Alberta and Saskatchewan from the 1st September, 1905.

(iii.) Admission of States not within the Dominion as Provinces of the Dominion.

Sec. 146 of The British North America Act, 1867, expressly contemplates the admission of Newfoundland, Prince Edward Island and British Columbia as Provinces of the Dominion, by means of Orders in Council to be promulgated by the Imperial Parliament upon the request of both the Dominion and the local Legislatures. Newfoundland has never been admitted. But British Columbia was admitted by Order in Council of the 16th May, 1871, and Prince Edward Island by Order in Council dated 26th June, 1873. As to the admission of these Provinces, it should be observed that the Canadian Constitution makes no discrimination between States which were original members of the Union and those which joined subsequently; for though The British North America Act, 1867, made certain limitations on the representation of new Provinces in the Dominion Parliament, these were abolished by the Act of 1886.*

*The position of the Hudson's Bay Company in relation to the admission of Rupert's Land to the Dominion, as defined and settled by The Rupert Land Act, 1868, and the Canada (Rupert's Land) Loan Act, 1869, is worthy of study. The acts are printed in Wheeler's Confederation Law of Canada, PP. 755 and 762.

Note also the case of St. Catherine's Milling and Lumber Co. vs. The Queen [Confed. Law. Can., p. 94] as illustrating the position of the Indian Territories ; and Riel's case [Id., p. 538] as to the power of the Dominion Parliament to egislate for territories.

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