Dear Sir or Madam:
Today we write to you regarding the emergence of section 91 of the British North America Act of 1867 (BNA Act) and the powers that the provision awarded. Canada needed to balance the competing interests of individual provinces with the ideal of creating a strong and united Canada. Canada was not the first country faced with this dilemma, many other sovereign nations, including the United States, encountered the same predicament while trying to write their constitutions. The BNA Act recognized the interests of both parties, concretizing Canada’s federal powers in s. 91, and provincial powers under s. 92. A brief history as to how these provisions arose is detailed below.
A month after the Charlottetown Conference (aforementioned in yesterday’s letter, click here to review yesterday's post), the existing provinces all met at the Quebec Conference to try and hash out a constitutional framework for the impending nation of Canada.1 This was where federalism, or the division of powers between the federal and provincial governments, became a focal point of discussion. The delegates passed the “72 Resolutions”, which detailed which powers the provinces and the Dominion of Canada would retain should Confederation move forward.2
Certain provinces were interested in maintaining individual autonomy, whereas others were more interested in developing a strong centralized government. The Atlantic Provinces were particularly worried that a strong centralized government would leave their unique island needs improperly governed.3 Mainly due to their size and unique culture, they wanted to ensure they were still accurately represented at the national level. In contrast, John A. McDonald, one of Confederation’s key leaders, advocated for a strong centralized federal government to avoid tension between neighbouring provinces.4 This kind of tension led the United States down the road to the American Civil War, an ending McDonald wanted to adamantly avoid.5 Ultimately, the BNA Act would account for both provincial and national interests by creating a federalist nation under ss.91-92.
Section 91 granted the federal government several far-reaching powers. Notable powers included: regulation of trade and commerce, military, banking, bankruptcy and insolvency, Indians and Lands reserved for Indians, marriage and divorce, and the criminal law.6 The majority of these powers seemed to be a reasonable compromise since they had widespread impact on almost every province in the Dominion.
Other powers granted remained more suspect. Powers including: navigation and shipping, sea coasts and island fisheries, beacons, and ferries between provinces,7 seem to relate directly to the interests the Atlantic Provinces were concerned about losing control over. Last time we at the Dominion checked our records; the people of Upper Canada have not done much fishing or shipping in their day. Although a strong central government helped the Dominion establish a sense of unified allegiance, one must wonder if we gave the federal government too much power over practices they cannot accurately understand.
Your Humble and Obedient Servants,
1P.B. Waite “Confederation”, (22 September 2013), http://www.thecanadianencyclopedia.ca/en/article/confederation/
6Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.