Stories of Confederation

The British North America Act was an act of the British Parliament that created a new federal state: the Dominion of Canada. The act divided law-making powers between one federal parliament and several provincial legislatures. It outlined the structure and operations of both levels of government. Although the act has been amended several times since 1867, the federal system that it established has persisted to this day. 

Section 91 gave the federal parliament jurisdiction over matters that affected the entire country. These included the postal service, defence, currency and Indigenous affairs. This section also included a general clause allowing parliament “to make Laws for the Peace, Order and good Government of Canada.” On the basis of this clause, many federal lawmakers have claimed jurisdiction over any matter not specifically assigned to the provinces. This interpretation has been challenged in the courts.     

Sections 92 and 93 gave the provincial legislatures jurisdiction over local matters. These included municipal administration, health care and education. These sections resulted from compromise among the Fathers of Confederation. Some politicians, including John A. Macdonald, wanted to create a powerful central government in order to avoid the internal discord that underlay the American Civil War. Yet politicians from Quebec and the Maritimes insisted on local governments in order to protect their distinct identities and interests. 

Sections 37 to 52 established a federal lower house, or House of Commons, in which laws would be proposed, debated and voted on. Representation in this house would be proportional to a province’s population, and all members would be elected. In the first Dominion parliament, New Brunswick was allotted 15 seats, Nova Scotia 19, Quebec 65 and Ontario 82. Yet under sections 51 and 52 of the British North America Act, this allotment could be periodically adjusted to reflect population change.    

Section 41 recognized and preserved the voting rights that existed at the time of Confederation. Property and income qualifications varied according to the electoral laws of each province, but there were three basic requirements for becoming an elector: being male, having reached the age of 21 and being a British subject. 

Sections 21 to 36 established a federal upper house, or Senate, in which bills passed through the lower house would be studied, amended and either rejected or approved. Membership in this house would be by appointment, not by popular election. Each region of the Dominion — the Maritimes, Quebec and Ontario — would be given an equal number of senatorial seats. During the Confederation negotiations of the mid-1860s, the Maritimes had fought hard for the principle of regional representation in the Senate. This principle, they believed, would offset their low numbers in the House of Commons.  

The British North America Act referred to the new federal state of Canada as a “dominion.” At the time, this term denoted a state that was self-governing for internal matters but still under the legislative supremacy of the British Parliament. Following Canada’s lead, other parts of the British Empire achieved dominion status in the early 20th century. These included Australia, New Zealand, Newfoundland, South Africa and the Irish Free State. 

The British North America Act vested executive authority in Queen Victoria and her successors. The Queen would be represented by the governor general, who would act with the advice and consent of the prime minister and his cabinet. 

In 1867, the new Dominion of Canada consisted of only four provinces: Nova Scotia, New Brunswick, Quebec and Ontario. Yet sections 146 and 147 allowed other British colonies to join the federal union at later dates. Accordingly, new provinces and territories have joined Confederation since 1867: Manitoba (1870), the Northwest Territories (1870), British Columbia (1871), Prince Edward Island (1873), Yukon Territory (1898), Alberta (1905), Saskatchewan (1905), Newfoundland (1949) and Nunavut (1999). 

While bringing colonies together in the new Dominion of Canada, the British North America Act also created a new separation: it dissolved the 1840 legislative Union of Upper and Lower Canada and divided them into the separate provinces of Ontario and Quebec. During the Confederation negotiations of the mid-1860s, George-Étienne Cartier and his supporters had insisted that French Canadians be given a provincial government strong enough to protect their language, culture and civil law.