Constitution Act, 1886

The Constitution Act, 1886 (UK), 58 & 59 Vict, c 35, (the Act) is an Act of the Parliament of the United Kingdom and forms part of the Constitution of Canada. It was originally known as the British North America Act, 1886, but it was renamed Constitution Act, 1886 by the Constitution Act, 1982.

Section 1 of the Constitution Act, 1886 provides that "the Parliament of Canada may...make provision for the representation in the Senate and House of Commons, or in 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."

Section 2 of the Constitution Act, 1886 clarifies that Parliament can, by providing for the representation of the territories in the Senate, increase the normal and maximum total number of Senators under the Constitution Act, 1867, and, by providing for the representation of the territories in the House of Commons, increase the number of members of the House of Commons. Section 2 also retroactively validates an 1886 law providing for the representation of the Northwest Territories in the House of Commons.

Territorial representation in Parliament
There are currently three populated territories which are part of Canada, but which are not part of any province: the Northwest Territories, Nunavut and Yukon.

Each territory is currently represented by one member of the Senate and one member of the House of Commons. This is in spite of their small populations relative to the provinces and indeed, relative to nearly all federal electoral districts. In 1915, Wilfrid Laurier criticized the representation of the territories permitted by the Constitution Act, 1886 as inconsistent with representation by population. In 1987, the Chief Justice of the Supreme Court of British Columbia noted that "representation for the territories [in the House of Commons] has never been based strictly upon population".

The Northwest Territories were represented in the Senate from 1888 until the creation of Alberta and Saskatchewan in 1905. Yukon MP Erik Nielsen first proposed the renewal of territorial representation in the Senate in 1959. The Northwest Territories and Yukon have been represented in the Senate since 1975 and Nunavut has been represented in the Senate since its creation in 1999. Territorial senators are not considered part of a regional division of the Senate.

Part of the Northwest Territories were represented in the House of Commons from 1886 until the creation of Alberta and Saskatchewan in 1905. Yukon has been represented in the House of Commons since 1902. The Northwest Territories and Yukon were represented by the same member of the House of Commons between 1949 and 1952. After the 1952 election, the western portion of the Northwest Territories was represented by its own member; after the 1979 election, an additional member was added to the House of Commons to represent the eastern portion of the Northwest Territories. Nunavut, which was created from the eastern portion of the Northwest Territories, has been represented in the House of Commons since its creation in 1999.

The Keewatin territory was never represented in the Senate or the House of Commons.

History
Although section 146 of the Constitution Act, 1867 contemplated the admission of Rupert's Land and the North-western Territory to Canada, it did not provide for the territories' representation in the Senate the way section 147 did for Prince Edward Island and Newfoundland. Similarly, the Constitution Act, 1871 empowered Parliament to provide for the representation of new provinces in the Senate and the House of Commons, but not of territories.

The Constitution Act, 1886 was enacted at the request of the government of Canada "on the basis of a formal address by both Houses of Parliament". This was in accordance with the precedent set concerning the Constitution Act, 1871.

The Constitution Act, 1915, which increased the representation of Alberta, British Columbia, Manitoba and Saskatchewan in the Senate, and established the Senate floor rule according to which a province cannot have fewer members of the House of Commons than it has Senators, provided that it does not "affect the powers of the Canadian Parliament under the Constitution Act, 1886". (Like the Constitution Act, 1886, the Constitution Act, 1915 was enacted without provincial consultation or consent.)

Section 51 of the British North America Act, 1867, enacted by the British North America Act, 1946, required that Yukon be represented by one member and that "such other part of Canada not comprised within a province as may from time to time be defined by the Parliament of Canada" also be represented by one member. This requirement was later reenacted as subsection 51(2) by the Parliament of Canada.

Judicial and academic commentary
In 1979, in the Reference re Authority of Parliament in relation to the Upper House (better known as the Upper House Reference), the Supreme Court of Canada noted that the actual granting of representation in the Senate and the House of Commons to the territories by virtue of section 1 of the Constitution Act, 1886 "did not in any substantial way affect federal-provincial relationships". Guy Tremblay and André Grenier took the view that the Constitution Act, 1886 did not detract from provincial legislative authority because it transferred to Parliament part of the residual authority retained by the Parliament of the United Kingdom.

In their dissenting opinion in the Reference re Resolution to amend the Constitution (better known as the Patriation Reference) in 1981, Chief Justice Laskin and Justices Estey and McIntyre noted that the Constitution Act, 1886 was enacted "without provincial consultation and consent" despite its effects on provincial interests. The judges were presumably referring to the risk that Parliament would use the power to dilute the provincial representation in the Senate, undermining one of its fundamental features.

Senator Eugene Forsey seems to share the dissenting judges' concern. This concern was noted by W.H.P. Clement as early as 1892; Clement warned that "it is in the power of the Dominion government to swamp the Senate, so long as the additional members are appointed to represent the [territories]". James Ross Hurley, a former senior public servant, noted that "a radical increase in territorial senators could, at some point, be challenged as a violation of the federal principle". More recently, Jesse Hartery warned that "any increase to the number of seats provided to the territories [in the House of Commons beyond the existing one seat each]...may result in major distortions to the principle of representation by population".

Overlap with other powers
In the Upper House Reference, the Supreme Court suggested that Parliament's power under section 1 of the Constitution Act, 1886 overlaps with Parliament's broader power to make laws in relation to the "amendment...of the Constitution of Canada" (subject to certain exceptions) under subsection 91(1) of the British North America Act, 1867. That power was conferred to Parliament by section 1 of the British North America Act, 1949 (No. 2) and repealed by subsection 53(1) of and the Schedule to the Constitution Act, 1982.

Subsection 91(1) of the British North America Act, 1867 has since been replaced by section 44 of the Constitution Act, 1982, which empowers Parliament to make laws amending the Constitution of Canada in relation to the Senate and the House of Commons.

The Constitution Act, 1886 was not repealed by the Constitution Act, 1982, so presumably continues to coexist with section 44 of the Constitution Act, 1982.

Relationship with democratic rights
Parliament's power to "make provision for the representation in the...House of Commons...of any territor[y]" is very likely limited by the democratic rights guaranteed by the Canadian Charter of Rights and Freedoms. Section 3 of the Charter guarantees to Canadian citizens residing in each territory "right to vote in an election of members of the House of Commons...and to be qualified for membership therein". Section 3 applies to "the Parliament...of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories" (emphasis added) by virtue of paragraph 32(1)(a) of the Charter.

Jesse Hartery suggests that section 3 of the Charter requires that each territory be represented by its own member of the House of Commons.

French version of Constitution Act, 1886
Since the Constitution Act, 1886 was enacted in English by the Parliament of the United Kingdom, there is no official French version of the Act. Section 55 of the Constitution Act, 1982 requires the Minister of Justice to prepare a translation of the Act and that it be brought forward for enactment. Although a translation was prepared in 1990, it has not been brought forward for enactment.

Proposed amendments
The Constitution Act, 1886 would not have been repealed by the Victoria Charter or the Meech Lake Accord, two unsuccessful attempts to reform the Constitution of Canada.

A third attempt, the Charlottetown Accord, would have (at least impliedly) repealed the Constitution Act, 1886 in part and added a paragraph 21(1)(b) to the Constitution Act, 1867, which would have provided that "one [Senator] shall be elected for each territory, namely the Yukon Territory and the Northwest Territories". The Accord also proposed subsection 21(2), which would have provided that "where a new province is established from the Yukon Territory or the Northwest Territories, the new province shall be entitled to the same representation in the Senate as the territory had."

As interveners in the Senate Reform Reference, the Attorneys General of the Northwest Territories and Nunavut took the position that the federal government must consult the territorial governments before abolishing or reforming the Senate. The Supreme Court did not comment on the territorial attorneys general's arguments.

Comparison with other federations
In Australia, section 122 of the Constitution provides that Parliament "may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit". Territories are represented in both the Australian Senate and the Australian House of Representatives. The High Court of Australia confirmed the constitutional validity of the representation of the territories in Western Australia v Commonwealth (1975) and Queensland v Commonwealth.

In the United States, the Constitution does not contemplate the representation of territories in the United States Congress. Territories are not represented in the United States Senate. Territories are represented in a limited manner in the United States House of Representatives by Non-voting members of the United States House of Representatives.