Dominion Disallowance of Provincial Legislation in Canada

Federal disallowance of Provincial Legislation has been a significant aspect of the Canada’s system of “federalism”, allowing the central government to nullify provincial acts deemed contrary to federal interests. This power, unique to Canada, contrasts with the American federal system, reflecting a “differing approach” to federalism. From 1867 to 1935, the Dominion government disallowed at least 114 provincial acts and territorial ordinances, highlighting its considerable powers over provincial legislation.

The process of disallowance involved the submission of provincial acts to the governor-general, with the governor-general in council having the authority to disallow them, typically based on recommendations from the Ministry of Justice, in the same way colonies previous to Confederation would submit their legislation through Lieuitenant Governors to the Crown. Disallowance had to occur within one year of receiving the act. While the British government couldn’t directly interfere with provincial acts after confederation, it could express its concerns to the Dominion government instead, as could other foreign governments.

The reasons for disallowance varied widely, including conflicts with federal legislation, exceeding provincial powers outlined in the British North America Act, violation of treaty rights, or infringement on individual rights and property. The subjects of disallowed acts ranged from immigration and banking to mining and liquor regulation, indicating the Dominion’s broad oversight.

Historically, the frequency of disallowance fluctuated, with peaks in the late 19th and early 20th centuries followed by a decline in recent years. Initially, the crown and its Federal government, themselves involved in a parent-child relationship, viewed a strong central government as necessary, akin to a parent-child relationship with provinces. Evolving interpretations of “Canadian federalism” have more recently emphasized provincial rights and autonomy, more in keeping with the American meaning of the term.

Decisions by the Judicial Committee of the Privy Council and advocacy for provincial rights led to a shift in attitudes toward disallowance. Provinces began to assert their legislative independence, advocating for minimal federal interference. By the early 20th century, calls for disallowance were expected to be justified by clear attempts to infringe on federal jurisdiction.


“Although there is a federal form of government in both the Dominion of Canada. and the United States, there are striking differences in the two types of federalism. Some of these differences are to be found in fundamentals, such as the basis upon which the powers of government are divided in the two countries. Less striking, but nevertheless significant, are still other points of variance. Among these is the power which the dominion government has to disallow legislative acts of the provinces. Just why the fathers of the Canadian federation thought this power should be given to the central government is not clear. The fact remains, however, that in the years from 1867 to 1935, at least 114 provincial acts and territorial ordinances were set aside. It is important to note that these acts were dis- allowed by executive officers of the dominion government. Executive officers of the national government in the United States do not possess similar powers where state legislation is concerned.”

“A survey of the law-making efforts of provincial legislatures which have been set aside by the dominion government indicates that the central government has interfered with some of the most important fields in which provincial legislation might be enacted.”

“The frequency with which the dominion’s power of disallowance has been used has varied considerably at different periods in Canada’s history. In the years from 1867 through 1895, no less than 72 acts and ordinances were set aside. In the years from 1896 through 1920, a period of almost equal length, 37 provincial acts and ordinances were annulled. From 1920 to 1935, only five acts passed by provincial legislatures fell before the disapproval of the dominion government. In the first period mentioned, the greatest number of acts to be disallowed in one province was 26, in Manitoba. British Columbia, with 20, was a close second. Seven ordinances (as distinct from legislative acts) were set aside in the Northwest Territory, while in Ontario and Nova Scotia six acts in each province were disallowed. The remainder of the 72 can be accounted for by the disallowance of four statutes in Quebec, two in Prince Edward Island, and one in New Brunswick. In the second period, British Columbia headed the list with 22, while Manitoba and Saskatchewan had three each. Ontario and Quebec each had one act annulled. Seven ordinances were set aside, five in the Yukon Territory and two in the Northwest Territory. Since 1920, legislative acts in only three provinces have been disallowed. Three were annulled in Nova Scotia and one each in Alberta and British Columbia.”

“To many Americans, it is, of course, striking that the central government in a federation should possess this degree of control over certain types of legislation enacted by the member units in that federal organization. In the Canada of 1864-66, however, there were many who, like J. A. Macdonald, wished to see a strong central government created. They believed that the war between the states to the south of them was due, in part, to weakness at the center. That the dominion government should be able to disallow provincial legislation did not seem strange to them.”

Heneman, H. J. (1937). Dominion Disallowance of Provincial Legislation in Canada. The American Political Science Review, 31(1), 92–96. https://doi.org/10.2307/1948049

Petition of the inhabitants of Nova Scotia

The Petition of the Inhabitants of Nova Scotia Humbly Sheweth:

That the Province of Nova Scotia is one of the oldest Colonies of Great Britain, and one of the nearest to the Mother Country. That when the American Revolution separated thirteen English Colonies from the Crown, Nova Scotia stood true to her allegiance, and furnished a home for the Loyalists who sacrificed their property and their prospects in the American States’ for the sake of British connection. That, ever since, during the political agitations which have disturbed this Continent,— especially during the War of 1812, and the Canadian Rebellions of 1837-8,— Nova Scotia has been steadfast in her loyalty; and that when the neighbouring Province of New Brunswick was menaced from the American side in 1839. the Legislature of Nova Scotia unanimously placed the whole revenues and resources of the country at the disposal of the Lieutenant-Governor for the defense of the British flag upon the frontier. That this people have discharged, in other respects, the duties of British subjects to the satisfaction of the Crown.

They have sent representatives to the Provincial Parliament since 1758, for a quarter of a century have enjoyed Responsible Government in as full and ample a measure as have their fellow-subjects in the most favoured parts of the Empire, and have preserved from degeneracy and abuse their Constitutional rights and free institutions. That the people of this Province, from their Maritime position, have developed the pursuits of Shipbuilding, Navigation, Commerce, and Fishing, into prosperous activity. Their agricultural resources are rich and varied, while the vast mineral wealth which underlies the whole area of the country is a special guarantee of its future prosperity under favourable political conditions. The gold mines of Nova Scotia, without rising to the character of dazzling lotteries to attract a promiscuous or disorderly population from abroad, have proved steadily remunerative of a regular department of native industry, and a profitable investment for foreign capital. The great iron mines, already discovered, give earnest, in connection with its coal fields, of manufacturing capabilities not inferior to those of any country of similar extent. It has the thickest coal seams in the world, and their area is extensive, affording fairground for the presumption, that for the purposes of peace or way Nova Scotia’s continued connection with Great Britain would prove of mutual advantage.

Possessed of these resources, the people desire closer relations with the Mother Country, in order to be able to enjoy more largely the benefits, as well as share more fully the responsibilities, of the Empire; and already the Province has enrolled 60,000 efficient Militia and Volunteers to assist in the maintenance of British power on this Continent, and sends to sea 440,000 tons of shipping, built and owned within the Province, bearing the flag of England, and manned by more than 20,000 seamen. That Nova Scotia has no controversies with the Mother Country, the other Provinces, or with the population of the neighboring United States; and highly prizes the privileges, so long enjoyed, of regulating her own Tariffs, and conducting trade, but lightly burthened, with the British Islands and Colonies in all parts of the world and with Foreign Countries.

That the people of Nova Scotia are prepared to entertain any propositions by which (preserving to them the Institutions they now have, and the privileges they enjoy) greater facilities tor commercial and social intercourse with other States and Provinces may be secured, and they are willing, whenever their own coasts and harbors are safe, to aid Her Majesty’s forces to preserve from aggression the Provinces in the rear.

That they view with profound distrust and apprehension schemes, recently propounded, by which it is proposed to transfer to the people of Canada the control of the Government, Legislation and Revenues, of this loyal and happy Province, and they venture respectfully to crave from your honorable House justice and protection.

That the Province of Canada lies as far from Nova Scotia as Austria docs from England, and there exists no reason why a people who live at such a distance, with whom we have but little commerce, who have invested no capital in our country, who are unable to protect it, and are themselves shut off from ocean navigation by frost for five months of the year, should control our Legislation and Government.

That in 1864 the Government of Nova Scotia, without any authority from the Legislature, and without any evidence of the consent of the people, sent delegates to Canada to arrange in secret conference at Quebec a political union between the various Provinces, That these delegates concealed the result of their conference from the people until it became incidentally made public in another Province, and that, to this hour, they have never unfolded portions of the Scheme, having the most essential relation to the peculiar interests and local government of Nova Scotia subsequent to Confederation.

That the scheme, when at last made public, was received with great dissatisfaction in Nova Scotia, that the opposition to it has been constantly on the increase, and has been intensified by the conduct of the government and the delegates, who now propose to call in the aid of Your Honorable House, to assist them to overthrow, by an arbitrary exercise of power, free Institutions enjoyed for a century, and never abused.

That the objections of the people to the proposed Confederation Scheme affect not merely minor local details but the radical principles of the plan. The people cannot recognize the necessity for change in their present tranquil, prosperous and free condition. They cannot believe that the proposed Confederation with the distant Colony of Canada will prove of any practical benefit, either for defense or trade; while, from the past history of that country, its sectional troubles, and its eccentric political management and financial embarrassments, they have great reason to fear that Confederation would be to them a most disastrous change, retarding their progress, and rendering their prolonged connection with the Crown precarious if not impossible. Forming, as she does now, a portion of the Empire, Nova Scotia is already Confederated with fifty other States and Provinces, enjoys free trade with two hundred and fifty millions of people, living under one flag, and owning the authority of one Sovereign. She has no desire to part with her self-control, or to narrow her commercial privileges by placing herself under the dominion of a sister Colony, with an exposed frontier, frost-bound for a third of the year, and with no Navy to defend the Maritime Provinces when her ports are open.

The Scheme of Government framed at Quebec is unlike any other that History shows to have been successful. It secures neither the consolidation, dignity and independent power of Monarchy, nor the checks and guards which ensure to the smaller states self-government, and controlling influence over the Federal authorities, in the neighboring Republic. By adopting the Federal principle sectionalism in the five Provinces is perpetuated; by the timid and imperfect mode in which that principle is applied, the people, whose minds have been unsettled by this crude experiment, may be driven to draw contrasts, and nourish aspirations of which adventurous and powerful neighbors will not be slow to take advantage ; and the people of Nova Scotia have no desire to peril the integrity of the Empire, with the blessings they now enjoy, or to try now experiments, which may complicate foreign relations, and yet add no real strength to the Provinces it is proposed to combine.

The people object also to the financial arrangements as especially burthensome and unfair to this Province. Having long enjoyed the control and benefitted by the expenditure of their own revenues, they cannot approve a scheme that will wrest the greater part of these from their hands, to keep up costly and cumbrous Federal machinery, and to meet the liabilities of Canada.

For many years the commercial policy of Nova Scotia has been essentially different from that of Canada. The latter country, partly from necessity arising out of financial embarrassments, and partly as an indirect premium on her own manufactures, has adopted a tariff varying from 20 to 30%, on imported goods. Almost surrounded as Nova Scotia is by the ocean, her people are favourably situated for enjoying free commercial intercourse with every section of the British Empire, and with those foreign countries open to her commerce by the enlightened [)policy of the Parent State; of this privilege she has availed herself, by imitating, as far as local circumstances would permit, the liberal and free trade policy of the Mother Country — 10%, being the ad valorem duty collected under the Nova Scotia tariff on goods imported into the Province. The proposed scheme of union will give Canada, by her large preponderance in the Legislature, the power to shape the tariff for the whole Confederacy according to her inland ideas and necessities, so as to levy the same onerous duties on British goods imparted into Nova Scotia as are now exacted by Canada.

That since the Confederation scheme has been announced, there have been special parliamentary elections in three out of the eighteen counties of this Province, and in all three it has been condemned at the polls.

That in 1865 the scheme was condemned at nearly every public meeting hold by the delegates to discuss it, and numerous petitions against its adoption were presented to the Provincial Parliament, and only one in its favor, until the leader of the government declared the measure to be “impracticable”.

That at the opening of the late Session no reference to Confederation was made in the speech of the Lieutenant Governor, and down to a late period the people of Nova Scotia were led to believe that the scheme had been abandoned. A Resolution was introduced toward the close of the Session, clothing the government with power to appoint Delegates, who, in connection with Delegates from the other Provinces, are to frame a scheme of Government, to which it is proposed to ask the sanction of your Honorable House before it has been submitted to the Legislature that it may annihilate, or to the people, whose legal and constitutional rights and powers it may transfer or circumscribe.

The undersigned, menaced by a measure that may be revolutionary repose implicit confidence in the protection of the Imperial Parliament. They deny the authority of their own Legislature, invested with limited powers for a definite term, to deprive them of rights earned by their ancestry by the most painful sacrifices, wisely exercised and never abused for more than a century, and which they had no legitimate authority to alienate or break down. They believe that any scheme of Government, framed by a Committee of Delegates and forced upon the Provinces without their revision or approval, would generate widespread dissatisfaction among a loyal and contented people; who will not fail to reflect, that no change can be made in the constitution of any of the neighboring States which has not first been approved by the electors; and that important measures, affecting Imperial policy or institutions, are rarely attempted till they have been submitted for acceptance or rejection by the people whose interests they are to affect.

Your petitioners therefore pray that Your Right Honorable House will be pleased to defer all action in favour of Confederation in the Imperial Parliament until the people of Nova Scotia shall have exercised and enjoyed their Constitutional privilege to express their opinions at the polls, or that Your Honorable House may be pleased to direct that a Special Committee shall inquire into all the features of the proposed scheme of Confederation, as it is likely to affect the several Provinces in their relations to each other and to the Mother Country; or that the people of Nova Scotia be permitted to appear by counsel at the Bar of Your Honorable House to defend their interests and Institutions. And your petitioners, as in duty bound, will ever pray, &c.

The Petition of the Inhabitants of Nova Scotia Humbly Sheweth: That the Province of Nova Scotia Is One of the Oldest Colonies of Great Britain .. [S.l.: s.n., 1865?] https://hdl.handle.net/2027/aeu.ark:/13960/t6tx4hq48

Highway robbery

The steamer Druid was last evening towed round into the cove at Dartmouth to be fitted up into a gunboat for the protection of the fisheries.

The provincial government has offered a reward of $100 for the capture of four deserters from the 16th Regiment, who recently committed a highway robbery at Porter’s Lake, near Dartmouth.

Halifax Citizen, April 10 1866, Page 3 Column 6. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660410&printsec=frontpage&hl=en

USS Augusta, USS Miantonomoh, Asylum Accomodations

The American Consulate paid an official visit to the U.S. warships in harbour today, and was saluted in due form by the Augusta.


The U.S. Monitor Miantonomoh and steamer Augusta sailed this afternoon for St. Johns, Nfld. We are informed that since their arrival here some 15 of the crew deserted, only one of whom was recaptured.


It is said that over one hundred men are employed in the extension of the Lunatic Asylum. If the Legislators Mr. Archibald set down as lunatics from Tupper down to Longley, in the Pictou railway debate, are to be accommodated there, the work cannot proceed too fast.

Halifax Citizen, May 17, 1866. Page 3, Column 4. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660517&printsec=frontpage&hl=en

Ottawa’s a Hard Road to Travel

Oh listen to the East! oh listen to the West!
Oh listen to the fifing and the drumming!
The heart of Nova Scotia beats happy in her breast,
For HOWE and the people are coming!
Take off the coat boys, roll up the sleeve,
Howe and the people are a-coming!
Take off the coat boys, roll up the sleeve,
Howe and the people are a-coming I believe

The people cannot rest, they see the land opprest
With Tupper’s cruel nightmare “Botheration,”
And Johnathan’s warhorse tramples down our rights by force,
Till the people cry “confound Confederation.”
Take off the coat boys, roll up the sleeve,
Ottawa’s a hard road to travel,
Take off the coat boys, roll up the sleeve,
Howe and the people are a-coming I believe.

Tupper and McCully try to bluster and bully,
And never let the people put a word in;
But we’ll teach the tricky knaves that we were not born their slaves,
When we drive them to the other side of Jordan!
Woe to the turncoats who laugh in their sleeve,
We’ll give them a hard road to travel,
Woe to the turncoats who laugh in their sleeve,
For Howe and them people are a-coming I believe

Halifax Citizen, May 22, 1866. Page 1, Column 6. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660522&printsec=frontpage&hl=en

Valuable Property in Dartmouth

 

For sale or to let. That waterside property (second wharf south from the steamboat) now occupied by Mr. Elliott as a lumber wharf.
It has a commodious wharf, a house on the street, and large carpenter’s shop, Garden, with a good well of water. The house is in good condition and immediate possession can be had.
The whole will be sold at a bargain, or the House and Garden to be let, with or without the Wharf and Carpenter’s Shop.
For particulars apply to James Farquhar. Estate Agent, 76 Barrington Street.

 

Morning Chronicle, Oct 16, 1868. Page 2, Column 7, bottom. https://news.google.com/newspapers?id=ggMJAAAAIBAJ&sjid=YjsDAAAAIBAJ&pg=6413%2C2611273

Local and Other Matters

 

Some malicious person says that handsome women never trouble themselves upon the subject of women’s rights.

The annual meeting of the Halifax and Dartmouth Sabbath School Association will be held in Poplar Grove Church tomorrow evening.

 

Halifax Morning Chronicle, Nov 4, 1867. Page 2 Column 5. https://news.google.com/newspapers?nid=39&dat=18671104&id=jZUHAAAAIBAJ&sjid=pzoDAAAAIBAJ&pg=2801,4425561

“A Visit to a [Mi’kmaq] Encampment”

 

(From the Glasgow Sentinel, Aug 4, 1866.) From our American Correspondent.

A splendid morning! Not a cloud to obscure the effulgence of the sun. I intended to spend the day among my friends the [Mi’kmaq]. The journey – a short one – is to be performed partly by land and partly by water. The encampment is to the east of Halifax, and in order to reach it I must take the ferry steamer across the harbor to Dartmouth. This latter place stands precisely in the same relative position to Halifax as Helensburg does to Greenock, only the channel is not so wide.

After leaving Dartmouth, where I have been informed, is the direction in which the [Mi’kmaq] encampment lies, the road runs along the margin of a beautiful inland lake. As I walk slowly along I meet a few blacks, with whom, one after another, I enter into conversation. Every one of them is a ‘Blue Nose’ or Nova Scotian. I am now considerably nearer to the wigwams of the [Mi’kmaq]. In front is a square house of the apartment. It is made of wood, and, I am told, a family of two of the race live in it Acting on a hint I received before, starting I did not mope or fumble about the door, but lifting the hatch, at once entered

And vow I saw an [uncommon sight?]

a number of [Mi’kmaq] seated on the floor playing cards, with a considerable number of cents before each. Had I seen

Warlocks and witches in a dance

I could not have been more riveted by the spectacle. Indeed, to tell the truth, my good father taught me to believe that cards are in some mysterious way closely associated with

A (?) tyke, black, grim, and large
that was once seen in
A winnock bunker in the east.
Wher, glimmering thro’ the groaning trees
Kirk Attoway seem’d in a breeze,

On entering, the group never as much lifted their eyes; every thought, feeling, and emotion for the time seemed absorbed in the game, in which each had what to him or her was a great stake. The game had evidently reached a climax. Seeing something in the form of a chair or stool, I sat down and leisurely surveyed the group, which consisted of one man, two women – one of the latter with an infant in her arms – and a boy about fourteen years of age. This little [Mi’kmaq] sat right in front of me, and though so young, handled his cards as expertly as the most experienced player. His look under the undue excitement of the game, and in his anxiety to get some of the little pillars of cents that were on the opposite side, I can never forget. His eyes sparkled with excitement, and the [Mi’kmaq] words fell from his lips with the rapidity of peas from a bag. It would be impossible to say whether or not the boy’s hair had ever undergone the needful operation of combing. It was cut in front, in a line with his eyebrows, from ear to ear. His dark lustrous eyes, peering out from the superincumbent mass of hair, reminded me of those of a sky-terrier when he has smelt a rat. The man was more excited than the women, and was apparently as anxious to win as his youthful opponent. I could see that I was not at the moment a welcome visitor, but by showing attention to the baby, and addressing a few words which he did not understand to another little [Mi’kmaq], who sat, as his forefathers did, in a state of nudity, I at once secured their good graces. The latter child, apparently two years of age, reminded me forcibly of the fat boy in Pickwick in miniature. His dark eyes were literally embedded in fat, and his copper colored limbs were, for his age, of remarkable thickness. As he whimpered at the presence of a stranger, casting a woebegone look to his mother, who sat by his side, he presented a rare subject for a painter. Indeed, the whole group viewed in a pictorial sense, would be invaluable in the estimation of a Wilkie. In a corner of the room sat an aged woman. She seemed almost entirely blind. She was represented as at least ninety years of age, and her appearance did not belie the assertion. Poor body! presenting so remarkable a contrast to the baby in its mothers lap -the one on the verge of the grave, and the other just ushered into the world! My attention was so much occupied with the inmates of the house, if such I may term it, that I was seated for some time before I noticed the condition of the apartment. Two families seemed to live in it. There was neither bedstead, table nor chair, save the one on which I sat. The [Mi’kmaq] stretch their weary limbs on the bare floor, and go to roost with apparently as much pleasure as if they were to lay themselves on beds of down. I noticed a pair of blankets in a corner keeping company with some pots and pans. There was nothing, save my seat, which ventured beyond six inches above the floor. I made an attempt to draw my [Mi’kmaq] friend out a little. I said I could not play cards. “Suppose you be a Baptist”. “No”, I replied, I am not a Baptist. The reason of the remark I was afterwards informed, was the circumstance of a missionary connected with the Baptist body being employed amongst the [Mi’kmaq] who inculcated abstinence from the game of cards as leading to gambling. But the sarcastic leer with which the remark was accompanied indicated the possession of considerable humor, which I could, with the assistance of the baby and the fat boy, with whom I was a favorite, have brought out, were it not that my host’s attention was riveted by the King of Clubs or some other equally dignified personage. The following story shows that the [Mi’kmaq] are possessed of very considerable sarcastic humor – you may depend on the truth of it:-

There is a law on the Statute book of Nova Scotia which imposes a fine of one shilling on any one proven to have uttered a profane oath. On this charge a [Mi’kmaq] was brought before Judge M., now a venerable and highly esteemed gentleman, whose grey hairs are eminently honorable; the charge was proved, and the said fine accordingly imposed. The [Mi’kmaq] refused to pay the shilling. But Judge M. said peremptorily, “You must.”
“Suppose me must, me must,” said the [Mi’kmaq], handing the money to the clerk of court, adding -“Give me a receipt.”
The clerk informed him that no receipts were given for fines.
“What good will a receipt do you?” inquired Judge M.
“When me dies,” said the [Mi’kmaq], “and goes to heaven,” they say, “Whose there?” I say giving his name, “You no come here; you swear,” they say, Yes, but me pay for him. “Then where is your receipt?” they say. Then me have the receipt, and no be troubled going to [hell] to look for Judge M.”

Leaving my readers in the habitation to which I introduced them, I will, in my next letter, further describe my experience among the Indian wigwams.

 

Halifax Citizen, Sep 4, 1866. Page 1, Column 7. https://news.google.com/newspapers?nid=D90uR9ClOh8C&dat=18660904&printsec=frontpage&hl=en

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