Provincial Requests for Amendments to the B.N.A. Act
Eugene A. Forsey *
The Quebec Legislative Assembly’s Address for an amendment
to the British North America Act was by no means unprecedented.
Even a rather hasty examination of the Journals of the various
provincial Assemblies reveals at least nine other cases.
In 1868, the Nova Scotia Assembly unanimously passed an Address
to the Queen asking for repeal of the Act as it affected Nova Scotia; I
an Address to the Lieutenant-Governor asking him to “transmit the
foregoing Address to be laid at the foot of the Throne”; 2 and a
further Address asking the Lieutenant-Governor
to transmit to
“Her Majesty’s Principal Secretary of State for the Colonies” the
resolutions unanimously adopted, and the debates of “the latter part
of the present session,” in order to let the Secretary of State know
that he had been “misinformed as to the acquiescence of this Province
in confederation,” and to “make known to Her Majesty’s Ministers
the hope and confident expectation” of repeal. 3
In 1877, the Nova Scotia Assembly passed an Address to the Queen
for a British Act to give validity to various actions taken under the
pre-Confederation Great Seal of Nova Scotia, which had been super-
seded, but which the provincial Government had gone on using for
some considerable time.4 The Assembly also adopted an Address to
the Governor-General asking him to transmit this Address to the
Queen, and an Address to the Lieutenant-Governor asking him to
transmit both Addresses to the Governor-General. 5
In 1879, the Legislative Council of Nova Scotia having rejected
a bill for its own abolition, the Assembly passed an Address to the
Queen asking for an amendment to the British North America Act,
– Director of Research, Canadian Labour Congress; Visiting Professor of
Political Science, Carleton University.
‘Journals of the Legislative Assembly of Nova Scotia (1868), February 22,
pp. 37-39.
2 Ibid., p. 40.
3Ibid., pp. 118-19.
4Ibid., (1877), March 26, pp. 68-70; April 5, pp. 88-90; April 6, pp. 92-3. See
Canada Sessional Papers, (1877), no. 86; Lenoir v. Ritchie (1880) 3 S.C.R. 575;
40 Viet. c. 3 (Cam); 40 Vict. c. 1, c. 2 (N.S.); Berriedale Keith, Responsible
Government in the Dominions, (1912), I, 124 ff.
5Ibid., April 11, p. 104.
McGILL LAW JOURNAL
[Vol. 12
to abolish the Council. It also passed addresses to the Lieutenant-
Governor and the Governor-General, as in 1877.0 The Legislative
Council, on the same day, passed a counter-Address to the Queen
asking her not to submit to Parliament any such amendment; it
also passed the proper Addresses to the Lieutenant-Governor and
the Governor-General to ensure transmittal of the main Address. 7
The Addresses to the Queen were duly forwarded to the British
Government, which replied that “the circumstances did not then call
for” 8 an amending Act.
In 1888, after the famous Interprovincial Conference at Quebec,
the Nova Scotia Assembly passed an Address to the Lieutenant-
Governor asking him to transmit “through His Excellency
the
Governor General to the Secretary of State for the Colonies” the
resolutions of the Conference, with an “intimatioi” of the Assembly’s
approval of them, “with a view to” amendments to the B.N.A. Act.
This was adopted ner. con.9
In 1894, the Nova Scotia Assembly, having again failed to abolish
the Legislative Council by simple Act, again passed an Address to
the Queen (with the usual supplementary Addresses to the Lieutenant-
Governor and the Governor-General), asking for a British Act to do
the job.10 The Legislative Council again passed a counter-Address
to the Queen, with the usual procedural Addresses to the Lieutenant-
Governor and the Governor-General.” Again, both Addresses to the
Queen were forwarded to the British Government, which replied
that an amending Act would be “inexpedient”, since the provincial
Legislature already had the power to alter the Constitution of the
province. 12
The New Brunswick Assembly, in 1888, passed an Address to the
Lieutenant-Governor asking him to convey to the Queen its approval
of the resolutions of the Interprovincial Conference, 13 and the Leg-
islative Council, three days later, passed a counter-Address. 14
0Ibid., (1879), April 17, pp. 109-11.
7 Journals of the Legislative Council of Nova Scotia (1879), pp. 101, 107-12.
8 Journals of the Legislative Assembly of Nova Scotia (1894), Appendix 17,
91bid., (1888), April 3, pp. 105-6.
‘Dbid., (1894), February 9, pp. 113-14.
“1Journals of the Legislative Council of Nova Scotia (1894), February 10,
pp. 115-22.
12Journals of the Legislative Assembly of Nova Scotia (1896), Appendix 16,
p. 1.
p. 12.
13 Journals of the Legislative Assembly of New Brunswick (1888), March 15,
pp. 59-66; March 16, pp. 71-2; March 19, p. 79; March 20, pp. 86-7; Supple-
mentary Appendix, p. 57.
‘4 Journals of the Legislative Council of New Brunswick (1888) March 23,
pp. 48-56.
No. 4] PROVINCIAL REQUEST FOR AMENDMENTS
399
The Quebec Assembly, in 1888, passed an Address to the Lieu-
tenant-Governor to communicate to the Governor-General and the
Secretary of State for Canada its concurrence in the Interprovincial
Conference resolutions. 15 Later in the same session it passed a second
Address to the Lieutenant-Governor asking him to transmit its
concurrence in the resolutions through the Governor-General to the
Secretary of State for the Colonies.’ 6
The Ontario Assembly, in 1888, having concurred in the Inter-
provincial Conference resolutions, passed an Address to the Lieu-
tenant-Governor asking him to transmit this approval to the Governor-
General and the Secretary of State for Canada.17 In this case, there
does not seem to have been an actual request to send anything to the
Queen, but the intention was plain.
The Manitoba Assembly, in 1888, passed an Address to the Lieu-
tenant-Governor asking him to communicate to the Governor-General
“and the Secretary of State” (which one, Canadian or British, is
its approval of the Interprovincial Conference reso-
not specified)
lutions. Here, the intention that the approval should be further com-
municated to the British Government is clear, as the Assembly
defeated and amendment specifically proposing that “His Excellency
be asked not to forward the same for submission to Her Majesty in
Council.” 18
In all the cases from 1877 to 1894 (and there seem to have been
no others from then until the recent Quebec Address), the Dominion
Government seems to have acted as a mere pipeline to London, and
the provincial Assemblies seem to have made no attempt to present
their requests for amendments directly. The probability is that the
Dominion Government firmly believed that, in accordance with the
1871 resolution of the House of Commons, 9 requests for amendment
could be properly made only by joint Address of both Houses of the
Dominion Parliament, and that it therefore forwarded the provincial
requests simply as it would have forwarded any petition to the Queen
from any Tom, Dick or Harry in the Dominion. Advice would have
been superfluous. It is also probable that the British Government, as
late as 1894, thought itself fully entitled to act as it saw fit on pro-
vincial requests; its reply to the Nova Scotia Address of 1894 seems
to imply such a view.
15Journals of the Legislative Assembly of Quebec (1888), May 17, p. 48;
May 25-6, pp. 64-77; May 28, p. 83.
16 Ibid., July 5, p. 335.
17 Journals of the Legislative Assembly of Ontario (1888), February 29, pp.
78-83; March 1, p. 86; March 6, p. 94; March 8, pp. 96-9.
18 Journals of the Legislative Assembly of Manitoba (1888), May 7, pp. 65-76;
May 8, pp. 83-4.
19 Canadian House of Commons Debates (1871), March 27, pp. 649-50.
II. –
Interpreting
The Fulton-Favreau Formula
