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. Where that leaves “the people” is clear.

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

Ochterloney Street, Preston Road, No. 7 Highway

From The Story of Dartmouth, by John P. Martin:

The names of Ochterloney and Quarrell (now Queen) were commemorated by streets in downtown Dartmouth. The extension of the first named thoroughfare marked the beginnings of the present no. 7 highway.

Ochterloney Street at the harbor, second street from right above, what is now Alderney Drive travelling horizontally along the shore. Seth Coleman owned the land to the north side on both sides of Alderney at Ochterloney.

Below, “Ferry” marks the foot of Ochterloney Street where John Skerry was the proprietor, while what is now Victoria Road serves as the northern extent of the town plot.

“Peninsula and harbour of Halifax”, 1808. https://cityofdartmouth.ca/peninsula-and-harbour-of-halifax/

From the old town-plot boundary, (Ochterloney Street) veered to the north beyond Pine Street. Opposite the Greenvale Apartments, the antique stone-house demolished only recently, and apparently built “on the bias”, probably fronted the original line of Ochterloney Street as it continued through the property, now occupied by the Nova Scotia Light and Power plant, and headed for the millstream flowing from the lakes. This road then bridged the stream near the western end of the circular-dam [which then did not exist] and ran diagonally to the rise of Prince Albert Road, just below Hawthorne St. Mounded evidence of this route used to be exposed whenever Sullivan’s Pond was drained.

“Map of the Town of Dartmouth”, 1878. https://archives.novascotia.ca/maps/archives/?ID=1000&Page=201402082

The original road beyond the Sinclair Estate at First Lake is the Preston Road, the path as seen below, located above Prince Albert Road, though the ROW ends abruptly before Cottage Hill Drive.

Looking west towards Sullivan’s Pond.

At Silver’s Hill, the slope no doubt originally extended down to the lake shore. Pioneer trails generally avoided lowlands. Hence this “new” road to Preston followed the broad path still seen on the hillside below Sinclair Street, until it emerged around the bend at that bay of the lake called by the Mi’kmaq “Hooganinny Cove”.

This map shows the (old) Preston Road up above, the lower road or the “Road made by the Canal Company” is the present day Prince Albert Road at Silver’s Hill, the left edge of the map being near where Cranston Avenue is today if it were to continue through Benview to meet with Prince Albert Road. “Hooganinny Cove” would be at bottom left. “Dartmouth”, 5 September 1877. https://archives.novascotia.ca/maps/archives/?ID=963.

The causeway-bridge over Carter’s Pond at the town limits, was very likely built during the time of the Maroons, for the road is shown on military maps as early as 1808, indicating that this section of highway had been constructed some years previously.

At left Ochterloney Street labelled as Portland Street, First Red Bridge as mentioned below is seen between Hurley and Elliots at (what was once) Carter’s Pond, “Cottage Hill” subdivision at right didn’t come to pass, at least not as originally planned. “Preston Road” is shown with a notation “Canal Co road 1832” while the old “Preston Road”, the high road, is noted and dated 1815. Martin also notes a “Preston Road of 1797” which must have been the original path considering it was 1796 when the Jamaican Maroons settled Preston Township.

From the vermilion color of the protective wooden railing, this crossing was long known as “First Red Bridge” to distinguish it from “Second Red Bridge” with similarly colored railing, built about 1826 across the bay of Lake Mic Mac near Miller’s Mountain.

What is now Prince Albert Road, what was once the Preston Road. Its path continued to the right at Graham’s corner to what is now Main Street and eventually the Number 7 highway. To the left at Graham’s Corner what is now Braemar Drive. The nook in the lake that Graham’s corner once navigated, what was recently the Mic Mac Rotary is examined separately here. More on Main Street here, at the top of the map is the continuance of the “Road to Preston” in the 1820s.

Dartmouth: Real Estate, Building Sites

Dartmouth. Real Estate. By John D. Nash,
On the premises Dartmouth, on Wednesday, May 7th, at 4 o’clock, p.m.: That beautifully situated property in Dartmouth, owned by J. Cronan, Esq., the lot measuring 200×27 feet more or less. The house and grounds are so situated as to have three fronts, and is suitable as a residence for any gentleman. The whole will be first as a whole in one lot, if not thus sold, will be divided in four or more lots as may be deemed best.
Terms-10 percent deposit, the whole of the balance may remain on mortgage with collateral security. Plan of division can be seen at office.
J.D. Nash, Real Estate Broker.


May 8 – Dartmouth. Building Sites. By J D Nash.
On the premises, Dartmouth, on Thursday. May 8th at half-past 2 o’clock p.m.: A considerable portion of the large and valuable property owned by Lewis P. Fairbanks, Esq., in Dartmouth.
The lots offered will comprise sites for Dwellings, Manufactories, Shops, &c.
Terms liberal. For further particulars apply to Mr. Fairbanks, Woodburne, Dartmouth, or to the auctioneer.
N.B. No puffing will be allowed at this sale; purchasers get the land at their own prices. Refreshments will be provided J D Nash, Real Estate Broker and Auctioneer.


Sales at Auction, by J.D. Nash.
Thursday, May 8, at half past 2 o’clock, Building sites in Dartmouth owned by L.P. Fairbanks.

British Colonist, May 3, 1873. Page 3, Column 7.  https://news.google.com/newspapers?nid=HDshCWvjkbEC&dat=18730503&printsec=frontpage&hl=en

Hospital For The Insane

 

From the annual report of the Medical Superintendant for the Hospital for the Insane, a copy of which has just been received, we learn that the rate of recovery during the year was very high, being fifty per cent in proportion to the admissions, while the mortality rate, though beyond the ordinary average, was lower than the year before. During last year seventy seven patients were admitted, 44 males and 33 females. With two exceptions, 1868-69, this is the highest number received in any one year since the opening of the hospital. The total number under care in 1872 was 329, the daily average for the year being 258. The discharges were seventy, 36 males and 34 females, leaving on the record at the close of the year 256, including two who were absent on trial. Of those discharged 39 were recovered; and 27 died. Of those who died six were upwards of sixty years of age, two being over seventy. Several of those received were only sent to be nursed during their last illness, five having died within one month, and other five within three months after admission.

The re-admissions in 1872 of those who had formerly been residents of the Hospital and had been discharged, were fourteen, while of those “on trial”, five were returned before their period of probation had terminated.

During the fourteen years the Hospital has been in operation, eight hundred and thirty-eight have been admitted, and five hundred and seventy-nine discharged as follows, namely, one hundred and sixty-five have died; twenty have been removed unimproved; sixty-four have been sent home more or less relieved, and three hundred and thirty have been discharged as recovered.

When the extension now in progress is completed the Hospital will afford accommodation for ninety additional patients.

 

British Colonist, May 3, 1873. Page 2, Colum 4, near bottom. https://news.google.com/newspapers?nid=HDshCWvjkbEC&dat=18730503&printsec=frontpage&hl=en

 

Building Lots in Dartmouth

For Sale. Eight eligible sites for private residences, east of Canal bridge, and in vicinity of the new Presbyterian Church, Dartmouth, offering a pleasant view of the harbor and neighboring heights. The charming prospect afforded by those grounds, combined with the vicinity to the ferry, render them desirable to those seeking airy and healthy residences.

Also
That level plot of ground at Dartmouth Cove, two hundred feet wide by two hundred and fifty feet depth, having a fine run of water passing through it, making it a most desirable point either for a manufacturing or other business establishment. Also – the water lots in front of same, extending four hundred feet into the harbor, adapting them for a Coal Depot.

As a branch of the Intercolonial railway will most probably be taken into Dartmouth, there is no point on the harbor of Halifax so likely to be benefitted as the above.

For terms, etc., apply at the office of W.B. Hamilton.

 

British Colonist, May 3, 1873. Page 1, Colum 6. https://news.google.com/newspapers?nid=HDshCWvjkbEC&dat=18730503&printsec=frontpage&hl=en

Tenders for Altering the Town Hall

 

Office of Town Clerk, Dartmouth, N.S., Aug 5th, 1873.
Tenders will be received at the Town Hall, Dartmouth, until the 15th day of August, instant, for Altering the Town Hall, according to plan and specifications to be seen on application to the Town Clerk.
Security will be required for the due and faithful performance of the work; to be completed by the 1st day of November next.
The council does not bind itself to accept the lowest or any tender.
By order, Thomas Short, Town Clerk.

Halifax Morning Chronicle, Aug 15, 1873. Page 1 Column 3. https://news.google.com/newspapers?nid=Wp0gIr-vW9MC&dat=18730815&printsec=frontpage&hl=en

In a Fix

 

Two city youths, who had been imbibing more freely than was wise, visited Dartmouth on Wednesday afternoon. As the weather was warm the idea occurred to them that a swim would be pleasant, and notwithstanding the remonstrances of several parties, they stripped and commenced their bath in a very central spot, in full view of the streets and houses. While they were swimming some distance from the shore, some of the mischievous boys with whom Dartmouth abounds, came along and carried off the clothes of the bathers. The city youths were kept shivering in the water, or under a wharf as they pleased to prefer, for nearly an hour, by which time they had become thoroughly sobered and the place where the mischievous boys hid the clothing was discovered by some kind individuals, who came to the bather’s relief. The pair won’t go bathing in the centre of Dartmouth again in a hurry.

 

Halifax Morning Chronicle. Aug 15, 1873. Page 3 Column 1. https://news.google.com/newspapers?nid=Wp0gIr-vW9MC&dat=18730815&printsec=frontpage&hl=en

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