Power Sharing in a New Country
When the Fathers crafted the BNA Act they decided amongst themselves that, for the most efficient running of the Dominion, that certain powers should be distributed between Canada and the provinces.To the Government of Canada they gave responsibility for:
- The Public Debt and Property.
- The Regulation of Trade and Commerce.
- The raising of Money by any Mode or System of Taxation.
- The borrowing of Money on the Public Credit.
- Postal Service.
- The Census and Statistics.
- Militia, Military and Naval Service, and Defense.
- The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.
- Beacons, Buoys, Lighthouses, and Sable Island.
- Navigation and Shipping.
- Quarantine and the Establishment and Maintenance of Marine Hospitals.
- Sea Coast and Inland Fisheries.
- Ferries between a Province and any British or Foreign Country or between Two Provinces.
- Currency and Coinage.
- Banking, Incorporation of Banks, and the Issue of Paper Money.
- Savings Banks.
- Weights and Measures.
- Bills of Exchange and Promissory Notes.
- Legal Tender.
- Bankruptcy and Insolvency.
- Patents of Invention and Discovery.
- Indians, and Lands reserved for the Indians.
- Naturalization and Aliens.
- Marriage and Divorce.
- The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
- The Establishment, Maintenance, and Management of Penitentiaries.
- Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
To the Provinces they bestowed the responsibilities of:
- The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.
- Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
- The borrowing of Money on the sole Credit of the Province.
- The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
- The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
- The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
- The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
- Municipal Institutions in the Province.
- Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
- Local Works and Undertakings other than such as are of the following Classes,–a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
b. Lines of Steam Ships between the Province and any British or Foreign Country:
c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
The Incorporation of Companies with Provincial Objects.
The Solemnization of Marriage in the Province.
Property and Civil Rights in the Province.
The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
Generally all Matters of a merely local or private Nature in the Province.
It is interesting that the Fathers considered that Education and Agriculture required their own separate mention within the Act:
93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: —
(1.) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:
(2.) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec:
(3.) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education:
(4.) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
So there you have it. The central government is responsible for everything affecting the country as a whole including trade, immigration and defense. The provincial government have jurisdiction over those things that affected the day-to-day lives of their citizens.
So where did it all go wrong?
If you go back to the first installment of this series you will remember that I referred to a recent First Ministers Conference. At that conference the following demands of the provinces are on the table:
The Province of Quebec wants more control over Immigration to Quebec (see section 25 under the federal government responsibilities as listed above).
The Province of Alberta will not let Canada restrict the flow of energy to the US in retaliation for the US punitive stance on soft wood lumber which affects BC and Ontario (see section 2 under the federal government responsibilities as listed above).
The Province of Nova Scotia wants authority over the energy under Sable Island (see section 9 under the federal government responsibilities as listed above).
The Province of Newfoundland and Labrador demands that quota for “their shrimp” not be allocated to PEI shrimp fishers (see section 12 under the federal government responsibilities as listed above), and
The West is demanding an elected Senate so that it may ride roughshod over the Commons under the guise of protecting the rights of Westerners.
The Fathers of Confederation, who represented not the federal government but rather the provinces at the Charlottetown and Quebec Conference, foresaw this day in Canada’s history. They crafted the British North America Act to avert the types of problems we are experiencing today.
Maybe it is time for Canadians to revisit the past so that we might make the changes to our present to ensure our future.