A Plan for the Union of British North America and the United States

“An act for the admission of the states of Nova Scotia, New Brunswick, Canada East, and Canada West, and for the organization of the territories of Selkirk, Saskatchewan, and Columbia” …provided that as soon as the governments of Great Britain and of the provinces indicated their acceptance, the states and territories should be admitted.

The conditions of admission were set forth in twelve articles. In the first two, provision was made for the taking over of public works, and the assumption of the funded debt and liabilities of the provinces.

In the apportionment of the latter, about one half of the total amount suggested is offered to Canada West – a key to the whole curious proposal.

Articles three to six made provision for organization, representation, and territorial divisions of the proposed states and territories. The next article proposed the assumption of the expenditure of $50,000,000 to improve the navigation of the St. Laurence and the great lakes.

Land grants of twenty sections per mile were next suggested, to aid in the construction of a railroad from Truro, Nova Scotia, to some point on the Pacific coast north of 49 degrees, by way of Riviere du Loup, Ottawa, Sault Ste Marie, Bayfield, Superior, Pembina, Fort Garry, and the valley of the North Saskatchewan.

An offer of ten million dollars was proposed to be made to the Hudson’s bay company for all their rights in North America.

The last section of the plan ingeniously provided that if Prince Edward Island declined to enter, the benefits offered it should be omitted, but for the others all the provisions would be retained.

Similar omissions were to be made in case Newfoundland, Nova Scotia, New Brunswickwick, and Canada declined to accept. There remained then the northwest territory and the Pacific provinces, to which were ofdered aid in the construction of a railway from the western extremity of Superior, to the Pacific coast, by way of Pembina, Fort Garry, and the valley of the Saskatchewan and this was the heart of the proposition.

General N. P. Banks introduced this bill, exactly as drafted by Taylor, into the house of representatives on July 2, 1866, and after a second reading it was referred to the committee on foreign affairs, of which Banks himself was chairman. No definite action on this bill resulted, yet it precipitated a large amount of newspaper discussion, particularly in relation to the question of reciprocity, and thus served as a means, of testing opinion on the whole subject of annexation, though the real purpose of the measure in connection with the northwest provinces was little understood.

As a result of its abrogation by the United States, the Elgin-Marcy reciprocity treaty came to an end on March 17, 1866. The precise reasons for its abrogation have been the subject of considerable discussion.

In a budget speech A. T. Galt declared, “If there was one thing more than another, apart from the irritation growing out of the events which happened during the late war, which instigated them in abrogating the reciprocity treit was the belief that they could compel us into a closer political alliance with them.”

Sir John G. Bourinot writes, “The commercial classes in the eastern and western states were, on the whole, favourable to an enlargement of the treaty, but the real cause of its repeal was the prejudice in the northern states against Canada on account of its supposed sympathy for the confederate states during the Secession war. A large body of men in the north believed that the repeal of the treaty would sooner or later force Canada to join the republic. . .

There was a general feeling in the United States that the advantages accruing to Canada under the treaty were far greater than those to the United States. American manufactured goods were rather highly taxed, and it was felt that Canadian legislation was damaging the trade of American carriers.

There seems to be no actual proof that the abrogation was brought about with the hope of securing annexation, but in Canada the belief was general that such was the motive. Mr. Robinson shows that in the debates on confederation at Quebec from February 3 to March 14, 1865, there was but one opinion, namely, that “the abrogation of the treaty was a lever to force Canada from her allegiance to England and into the United States.”


39TH CONGRESS, 1ST SESSION

H.R. 754.

IN THE HOUSE OF REPRESENTATIVES

JULY 2, 1866.

Read twice, refered to the Committee on Foreign Affairs, and ordered to be printed.


Mr Banks, on leave, introduced the following bill:


A Bill for the admission of the States of Nova Scotia, New Brunswick, Canada East, and Canada West, and for the organization of the Territories of Selkirk, Saskatchewan, and Columbia


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States is hereby authorized and directed, whenever notice shall be deposited in the Department of State that the governments of Great Britain and the provinces of New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Canada, British Columbia, and Vancouver’s Island have accepted the proposition hereinafter made by the United States, to publish by proclamation that, from the date thereof, the States of Nova Scotia, New Brunswick, Canada East, and Canada West, and the Territories of Selkirk, Saskatchewan, and Columbia, with limits and rights as by the act defined, are constituted and admitted as States and Territories of the United States of America.

SEC. 2. And be it further enacted, That the following articles are hereby proposed, and from the date of the proclamation of the President of the United States shall take effect, as irrevocable conditions of the admission of the States of Nova Scotia, New Brunswick, Canada East, and Canada West, and the future States of Selkirk, Saskatchewan, and Columbia, to wit:

ARTICLE I

All public lands not sold or granted; canals, public harbors, light-houses, and piers; river and lake improvements; railway stocks, mortgages, and other debts due by railway companies to the provinces; custom-houses and post offices, shall vest in the United States; but all other public works and property shall belong to the State governments respectively, hereby constituted, together with all sums due from purchasers or lessees of lands, mines, or minerals at the time of the union.

ARTICLE II

In consideration of the public lands, works, and property vested as aforesaid in the United States, the United States will assume and discharge the funded debt and contingent liabilities of the late provinces, at rates of interest not exceeding five per centum, to the amount of eighty-five million seven hundred thousand dollars, apportioned as follows: To Canada West, thirty-six million five hundred thousand dollars; to Canada East, twenty-nine million dollars; to Nova Scotia, eight million dollars; to New Brunswick, seven million dollars; to Newfoundland, three million two hundred thousand dollars; and to Prince Edward Island, two million dollars; and in further consideration of the transfer by said provinces to the United States of the power to levy import and export duties, the United States will make an annual grant of one million six hundred and forty-six thousand dollars in aid of local expenditures, to be apportioned as follows: To Canada West, seven hundred thousand dollars; to Canada East, five hundred and fifty thousand dollars; to Nova Scotia, one hundred and sixty-five thousand dollars; to New Brunswick, one hundred and twenty-six thousand dollars; to Newfoundland, sixty-five thousand dollars; to Prince Edward Island, forty thousand dollars.

ARTICLE III

For all purposes of State organization and representation in the Congress of the United States, Newfoundland shall be part of Canada East, and Prince Edward Island shall be part of Nova Scotia, except that each shall always be a separate representative district, and entitled to elect at least one member of the House of Representatives, and except, also, that the municipal authorities of Newfoundland and Prince Edward Island shall receive the indemnities agreed to be paid by the United States in Article II.

ARTICLE IV

Territorial divisions are established as follows: (1) New Brunswick, with its present limits; (2) Nova Scotia, with the addition of Prince Edward Island; (3) Canada East, with the addition of Newfoundland and all territory east of longitude eighty degrees and south of Hudson’s strait; (4) Canada West, with the addition of territory south of Hudson’s bay and between longitude eighty degrees longitude ninety degrees; (5) Selkirk Territory, bounded east by longitude ninety degrees, south by the late boundary of the United States, west by longitude one hundred and five degrees, and north by the Arctic circle; (6) Saskatchewan Territory, bounded east by longitude one hundred and five degrees, south by latitude forty-nine degrees, west by the Rocky mountains, and north by latitude seventy degrees; (7) Columbia Territory, including Vancouver’s Island, and Queen Charlotte’s island, and bounded east and north by the Rocky mountains, south by latitude forty-nine degrees, and west by the Pacific ocean and Russian America. But Congress reserves the right of changing the limits and subdividing the areas of the western territories at discretion.

ARTICLE V

Until the next decennial revision, representation in the House of Representatives shall be as follows: Canada West, twelve members; Canada East, including Newfoundland, eleven members; New Brunswick, two members; Nova Scotia, including Prince Edward Island, four members.

ARTICLE VI

The Congress of the United States shall enact, in favor of the proposed Territories of Selkirk, Saskatchewan, and Columbia, all the provisions of the act organizing the Territory of Montana, so far as they can be made applicable.

ARTICLE VII

The United States, by the construction of new canals, or the enlargement of existing canals, and by the improvement of shoals, will so aid the navigation of the Saint Lawrence river and the great lakes that vessels of fifteen hundred tons burden shall pass from the Gulf of Saint Lawrence to Lakes Superior and Michigan: Provided, That the expenditure under this article shall not exceed fifty millions of dollars.

ARTICLE VIII

The United States will appropriate and pay to “The European and North American Railway Company of Maine” the sum of two millions of dollars upon the construction of a continuous line of railroad from Bangor, in Maine, to Saint John’s, in New Brunswick: Provided, That said “The European and North American Railway Company of Maine” shall release the government of the United States from all claims held by it as assignee of the States of Maine and Massachusetts.

ARTICLE IX

To aid the construction of a railway from Truro, in Nova Scotia, to Riviere du Loup, in Canada East, and a railway from the city of Ottawa, by way of Sault Ste. Marie, Bayfield, and Superior, in Wisconsin, Pembina, and Fort Garry, on the Red River of the North, and the valley of the North Saskatchewan river to some point on the Pacific ocean north of latitude forty-nine degrees, the United States will grant lands along the lines of said roads to the amount of twenty sections, or twelve thousand eight hundred acres, per mile, to be selected and sold in the manner prescribed in the act to aid the construction of the Northern Pacific railroad, approved July two, eighteen hundred and sixty-two, and acts amendatory thereof; and in addition to said grants of lands, the United States will further guarantee dividends of five per centum upon the stock of the company or companies which may be authorized by Congress to undertake the construction of said railways: Provided, That such guarantee of stock shall not exceed the sum of thirty thousand dollars per mile, and Congress shall regulate the securities for advances on account thereof.

ARTICLE X

The public lands in the late provinces, as far as practicable, shall be surveyed according to the rectangular system of the General Land office of the United States; and in the Territories west of longitude ninety degrees, or the western boundary of Canada West, sections sixteen and thirty-six shall be granted for the encouragement of schools, and after the organization of the Territories into States, five per centum of the net proceeds of sales of public lands shall be paid into their treasuries as a fund for the improvement of roads and rivers.

ARTICLE XI

The United States will pay ten millions of dollars to the Hudson Bay Company in full discharge of all claims to territory or jurisdiction in North America, whether founded on the charter of the company or any treaty, law, or usage.

ARTICLE XII

It shall be devolved upon the legislatures of New Brunswick, Nova Scotia, Canada East, and Canada West, to conform the tenure of office and the local institutions of said States to the Constitution and laws of the United States, subject to revision by Congress.

SEC 3. And be it further enacted, That if Prince Edward Island and Newfoundland, or either of those provinces, shall decline union with the United States, and the remaining provinces, with the consent of Great Britain, shall accept the proposition of the United States, the foregoing stipulations in favor of Prince Edward Island and Newfoundland, or either of them, will be omitted; but in all other respects the United States will give full effect to the plan of union. If Prince Edward Island, Newfoundland, Nova Scotia, and New Brunswick shall decline the proposition, but Canada, British Columbia, and Vancouver island shall, with the consent of Great Britain, accept the same, the construction of a railway from Truro to Riviere du Loup, with all stipulations relating to the maritime provinces, will form no part of the proposed plan of union, but the same will be consummated in all other respects. If Canada shall decline the proposition, then the stipulations in regard to the Saint Lawrence canals and a railway from Ottawa to Sault Ste. Marie, with the Canadian clause of debt and revenue indemnity, will be relinquished. If the plan of union shall only be accepted in regard to the northwestern territory and the Pacific provinces, the United States will aid the construction, on the terms named, of a railway from the western extremity of Lake Superior, in the State of Minnesota, by way of Pembina, Fort Garry, and the valley of the Saskatchewan, to the Pacific coast, north of latitude forty-nine degrees, besides securing all the rights and privileges of an American territory to the proposed Territories of Selkirk, Saskatchewan, and Columbia.

AnnexationBill1866

Blegen, T. C. (1918). A Plan for the Union of British North America and the United States, 1866. The Mississippi Valley Historical Review4(4), 470–483. https://doi.org/10.2307/1896039, https://en.wikisource.org/wiki/Annexation_Bill_of_1866

An historical geography of the United States

1606:

King James’ Patent of 1606, Dividing Virginia into two parts.

The patents of the Plymouth and London companies in 1606 extended 100 miles from the coast and overlapped each other three degrees of latitude (from 38° to 41°.) Neither company however was to make a settlement within 100 miles of one already made by the other.”

[Norumbega noted on this map].

[Reading the patent itself it states “situate, lying, and being all along the Sea Coasts, between four and thirty (34°) Degrees of Northerly Latitude from the Equinoctial Line, and five and forty (45°) Degrees of the same Latitude, and in the main Land between the same four and thirty and five and forty Degrees, and the Islands thereunto adjacent, or within one hundred Miles of the Coast thereof”.

Hinted on the map, though not shaded along with the rest of the Plymouth Company lands unlike in earlier works, is the fact that 45° latitude also traverses across Nova Scotia, which, despite being a peninsula, is undoubtedly a part of the mainland. Is this revision meant to satiate those to the north, or their proprietors, after their “Confederation”? If this were a one-off I’d more less likely to attribute it to any kind of an arrangement, but there are other sources which confirm this earlier view. Even if Nova Scotia were an island and not connected to the mainland, it would still be within 50 miles of the seacoast of the shaded area, let alone 100 miles.]

[This might provide insight into the rationale behind naming conventions used for certain communities in Nova Scotia, such as “Virginia East”.]

Virginia East, Nova Scotia
Virginia East, Nova Scotia

1609-1620:

“Reorganization of the Plymouth Company in 1620 as the Council of Plymouth for New England.

The Virginia charter of 1609 bounded the London Company to the land between points 200 miles north and 200 miles south of Point Comfort, throughout from sea to sea, “west and northwest.” The Plymouth charter of 1620 fixed the limits of Plymouth Company between 40° and 48°.”

1640:

“French claims”

1655:

“French claims”

1660:

“Barony of New Scotland”

“Council of Plymouth, of New England. Grants by the Council:

1621 To Sir W. Alexander, Lordship and Barony of New Scotland (Nova Scotia)

1635 To Sir W. Alexander, Pemaquid and Islands of Long, Nantucket and Martha’s Vineyard.”

1664:

“Grants to the Duke of York”

1763:

“Massachussetts until 1696”

[There were other English colonies that existed in 1763 not included in this map. While they did not go on to become part of the United States, they were fellow colonies, at least up until ‘the commencement of hostilities’.]

Maccoun, Townsend. An historical geography of the United States. [New York, Boston etc. Silver, Burdett & company, 1911] Map. Retrieved from the Library of Congress, www.loc.gov/item/11031776/

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

“The city is an apartment house”: property, improvement and dispossession in early twentieth-century Halifax, Nova Scotia

“In early twentieth-century Halifax, municipal policies of property taxation and assessment became an important object of political discussion and contestation. Central to these political contests was a particular, theoretically informed distinction between “land” and “improvements.” This distinction would ultimately ground a set of changes in municipal taxation and assessment (introduced between 1914 and 1918) and would help to constitute a new and consequential logic of state action within property relations. Drawing on the literature on property “enactment,” this article examines how early twentieth-century struggles over municipal taxation and assessment reshaped the prevailing understanding of real property in the city of Halifax.

Consistent with existing research, I demonstrate how a new perspective on property—including a new distinction between land and improvements—gradually came into being through a series of performances, practices and material devices. Embedded within this new perspective, crucially, was a specific logic of dispossession, a new and calculative rationale for the expropriation and redevelopment of the city’s “underimproved” land. While the literature on property enactment has quite often investigated practices of dispossession, I point out that its analysis of dispossession’s logic or rationale has tended to be confined to a single property theorist, John Locke, and his justifiably famous distinction between land and improvements. Emphasizing the rather different, post-Lockean conception of property that emerged in early twentieth-century Halifax, I suggest that more attention ought to be paid to the multiple and varying logics of dispossession that are liable to be contained within prevailing property enactments.”

Published in Urban Geography | Ted Rutland | 2015, https://www.semanticscholar.org/paper/%E2%80%9CThe-city-is-an-apartment-house%E2%80%9D%3A-property%2C-and-in-Rutland/321d580be4e76c58238d61414b16b74050ec19c6, https://consensus.app/details/emphasizing-rather-conception-property-emerged-rutland/3a7efc4573bb57a88bc2044660fc731f/



Institutionalizing Eugenics: Custody, Class, Gender And Education In Nova Scotia’s Response To The “Feeble-Minded”, 1890-1931

It’s obvious to me that the eugenicists didn’t stop after 1931, that it was used in ways that were politically motivated seems just as obvious. It was preceded by a few generations of “stirpiculture“, which just so happened to make an appearance in an institutionalized form in Nova Scotia in time for “confederation” leading to many subsequent expansions, including at the time of Dartmouth’s incorporation. Howe hinted towards this possibility in his speech at Dartmouth, “The lunatic asylum of course we must keep up, because Archibald may want it by-and-by to put Tupper and Henry into at the close of the elections“, by no means the only example of such statements. That 1868-69 featured the highest number of admission to the “Hospital for the insane” since its inception in 1859 adds further context.

I often think of this whenever I hear a member of Canada’s ruling caste — those who we are supposed to believe have the best interests of their subjects at heart — talk about “mental health” within the context of the current political environment, where they’re preparing every avenue, most especially health and education, for the application of philosophical intoxication against those who resist any of their totalitarian actions and inclinations.

It certainly brings clarity as to why we have such a highly political and ideologically focused monopoly health care system devoid of private payments or hospitals, let alone private insurers for primary care. It’s a level of control that wouldn’t have been so easy to achieve with the patchwork of jurisdictions, imbued with some measure of self government, which we enjoyed previous to this current “amalgamated” regime of hyper-centralization in terms of the administrative state.

I’m sure they’re just looking out for all of our best interests, now.


“Between 1890 and 1927 hundreds of Nova Scotian children and adults were identified as either feeble-minded or mentally deficient through investigations conducted by physicians and philanthropists in the province. The earliest of these studies were not commissioned by the provincial government but instead reflected the middle-class internalization of the eugenic discourse. Reformers, drawn often from medical, religious, educational, and philanthropic vocations, sought with ever-increasing alacrity to respond to perceived social problems, such as poverty, prostitution, venereal disease, and alcoholism, with a scientific solution. The scientific solution that they embraced was eugenics.

Eugenic ideology and programs rose to popularity in Europe and North America at the end of the nineteenth and beginning of the twentieth century. Driven by social anxiety and the medicalization of reproduction, eugenic theory expressed the concerns of the middle classes that those they deemed less fit on the basis of socio-economic class, education or heredity, were reproducing at a higher rate than the ‘desirable’ segments of the population. The application of eugenic theory was shaped by cultural assumptions about gender, class and race which resulted in the same principles finding different expression in different areas across the globe.

This dissertation seeks to understand how local circumstances shaped the Nova Scotian understanding of eugenics and its application. It examines the manner in which Nova Scotian physicians and philanthropists, with strong ties to both New England and Britain, participated in the transnational eugenic discourse through both professional and popular publications and organizations. Overall it argues that the expression of eugenics in Nova Scotia culminated in legislation that enforced the inspection, segregation and institutionalization of individuals who were assessed as feeble-minded. In doing so it also calls attention to the need to recognize outcomes other than sexual sterilization as legitimate expressions of eugenic policy. Subsequently the influential role played by regional circumstances in shaping what was considered an acceptable eugenic outcome as well as how eugenic policy was sought and implemented is examined. In investigating what reformers understood to be eugenic, and conversely what they considered dysgenic, a complex discourse surrounding the health of populations and reliant on ideas of gender, race, and class is revealed.”

Baker, Leslie Elaine. Institutionalizing Eugenics: Custody, Class, Gender And Education In Nova Scotia’s Response To The “Feeble-Minded”, 1890-1931. University of Saskatchewan, Feb. 2015. https://harvest.usask.ca/bitstream/handle/10388/ETD-2015-01-1934/BAKER-DISSERTATION.pdf

Plan showing the proposed land to be owned by the [Mi’kmaq] at Tufts Cove, Dartmouth

You can see Windmill Road through the middle, its intersection with Albro Lake Road seen at bottom, Albro Lake at Wyse Road bottom middle and Victoria Road at right.

In lot “A” above is noted Quarantine ground, “Present Indian Camps” at the shoreline in block “D”, “Place they desire” seen in the middle of lot “O”, present day Farrell Street Park. A general idea of the neighborhood today:

“Plan showing the proposed land to be owned by the [Mi’kmaq] at Tufts Cove, Dartmouth”, 1912. https://recherche-collection-search.bac-lac.gc.ca/eng/home/record?app=FonAndCol&IdNumber=3672503

From Private Property to Public Resource: The Emergence of Administrative Control of Water in Nova Scotia

This is a fascinating essay, there must have been implications as it relates to Dartmouth even before it became the City of Lakes. It was expropriation on a broad scale, which encompassed “every water body in the province except for small rivulets or brooks unsuitable for milling, mechanical, or power purposes”. Dartmouth’s lakes, once “protected by public ownership for the enjoyment of future generations“, perhaps a vestige of this “administrative control over water (which) replaced not only private decision making and exchange, but judicial control.”

The assertion that “the absence of constitutional protection for property, as provided in the United States by the Fourteenth Amendment, significantly altered the rules of the game in Canada” explains so much about the increasingly feudal situation in Canada.

The kind of interjurisdictional powerplay happening as seen in the Nova Scotia Tramways incident was certainly floated before “confederation”, “does it necessarily follow that this union must produce peace and happiness? What if the larger Colonies should combine to rob the small one of her independence, should tyrannize over her, and trample on her rights and liberties…“. The timing of this powerplay, soon after the “Halifax explosion” and during a period of constitutional upheaval is yet another data point.

So many rights, so much freedom, as long as the meaning of “rights” and “freedom” aren’t arbitrarily redefined as benefits the further centralization of irresponsible power on a perpetual basis. You’re “free”, as long as you agree, under a regime with specifically apportioned constitutional powers from the Federal level disconnected from a written constitution at the Provincial level, what in essence becomes a proprietary constitution, known only to those authorized by the regime to officially opine on it, for their own benefit.


“In 1919 Nova Scotia took charge of the management of its inland water resources in a radical and dramatic way. The Water Act of 1919 simply expropriated basic riparian rights by vesting in the province the ‘sole and exclusive right to use, divert and appropriate any and all water.’ Water was transferred from private to public ownership without compensation of recourse to the courts.”

“Nova Scotia’s Act was atypical in its scope (within the Canadian provinces)… only Nova Scotia handled the widespread problem by expropriating riparian rights.”

“Judges… faced conflicts with only the traditional tools of the common law inherited from England… In addition to riparian rights, the common law affecting water included prescriptive rights and easements, nuisance and negligence… The judges seem to have focused on the details of the particular legal issues before them rather than on the consequences of the decisions.”

“Part of this tacit ‘policy’ was an absolute regard for private property rights. All the common law doctrines relevant to conflicts over water use – riparian rights, trespass, nuisance – provided for the strict protection of the individual property owner’s rights… In its strictest form, the doctrine of riparian rights accorded owners the right to the water flowing past their land undiminished in quantity or quality. Taken literally this right would have virtually precluded any upstream industrial activity: most commercial uses would violate strict common rights in some way… the traditional property rights may be thus seen as having a built-in antidevelopment bias. The doctrine… was modified, first in the United States and then in England, by allowing for some interference with water flow if the defendant’s use was ‘reasonable’, and by adding the requirement of ‘material’ or ‘sensible’ injury. These vague terms offered great potential for flexible interpretation. Nova Scotia courts, however, seem not to have been inclined to take advantage of the modifications.”

“…the chief reason for the passage of (the 1919 Water Act) does not seem to have been that common law action had significantly hindered productive development of water, rather, the act grew out of a long controversy over the control and development of water power, which by 1914 had become a major issue in the Nova Scotia legislature.

The Nova Scotia Power and Pulp Company was granted a charter with immense powers to develop hydro power on the Gaspereau River. The company, which was owned by Montreal capitalists, wanted to take over the very successful Halifax Electric Tramway, which could absorb power from the development and provide close to half a million dollars to pay dividends and interest on the large number of stocks and bonds the owners planned to float. The takeover produced a bitter struggle, with the Halifax city council trying to retain municipal control of the tramway. In the end, the Montreal-based group succeeded. Incorporating as the Nova Scotia Tramway and Power Company, it made an estimated gross profit of over a millions dollars in transfers of stocks and bonds. The Montrealer’s then sold controlling interests to a group of Americans in 1919 ‘for a further undisclosed profit’.”

‘The ostensible purpose of the merger was to permit the development of hydroelectricity on the Gasperau and the distribution of cheaper light and power within the city of Halifax. But nothing came of that … the funds raised for that purpose were promptly channeled out of Nova Scotia.’

“By 1918 the Water Power Commission was ready with its recommendations for law reform. The stated objectives of the resulting legislation were to encourage the most efficient development of water power, to protect the public from ‘worthless power schemes’, ‘ill designed plants and dams’, and ‘monopolistic control,’ and ‘to in all ways have in view the fullest conservation of the water resources.’ The act seems to have been a response to the Nova Scotia Tramways fiasco, and in particular it seems to have been an effort to keep control of water resources within Nova Scotia. The commission presumably came to the plausible conclusion that the only way to ensure local control was to remove water from the realm of unregulated market transactions.

The act can be seen as a preliminary step towards the drastic action of the 1919 Water Act. The right to use all watercourses was vested in the Crown, except ‘the right of every riparian proprietor to the use of water for domestic purposes’ — a major exception, since ‘domestic purposes’ included the workings of railways or factories by steam. All grants were to be retroactively construed as having reserved to the Crown all watercourses and beds of all watercourses. In case there was any doubt left in the minds of judges that these provisions would fundamentally change existing riparian rights, it was further stated that ‘the grant shall be construed accordingly and not in accordance with the rules of the English Common Law.”

“…The scope of the expropriation was especially large, however, since the powers could be transferred to private companies….”

“The water Act, in the words of the Halifax Herald, decalre[d] that the government of Nova Scotia has power to divert and appropriate any water at any time in any water course no matter by what grant.”

“This simple and sweeping act gave rise to a heated debate in the legislature, portions of which were reported in the local newspapers. The Herald headline read, ‘A Bill before the Legislature That Takes from the Owners the Water Powers of Nova Scotia and Can Take Also Other Valuable Property.’ The real point of objection was not public ownership, but that there was no provision for compensation in the Water Act and no exception for investment in existing power developments. The attorney general, who introduced the bill, argued lamely that it was not an expropriation measure but simply a ‘vesting bill’, that it only had to do with unused waters.”

“Administrative control over water replaced not only private decision making and exchange, but judicial control.”

“Even in recent history, long after the initial attempt to exclude them, the courts have continued to display their inclination to protect traditional private rights. In the early 1970s two parties successfully used the old exception of small rivulets or brooks to bring an action as riparian owners, and the legislature once again responded by removing the exception.”

“From an American perspective, the ease with which the Nova Scotia legislature accomplished the abolition of a whole class of property rights is astonishing.

–Carmen Baggeley offers an interesting commentary on the differences between the United States and Canada with regard to the protection of property: ‘In the absence of constitutional protection of rights and judicial review, the power of the legislature in Canada is almost unlimited. As a result, the concept of a business being “affected with the public interest”, which formed the legal basis for government regulation in the United States, was unnecessary in Canada. As Christopher Armstrong and H.V. Nelles point out, the absence of constitutional protection for property, as provided in the United States by the Fourteenth Amendment, significantly altered the rules of the game in Canada. Early in this century, when the “due process law” clause was being interpreted broadly, American businessmen were able to turn to the courts for protection. Canadian businessmen did not have this option, instead they tried to play one level of government against the other. Sometimes they succeeded, but more often than not they failed. In desperation, some Canadian businessmen began to discuss ways in which they might get the constitution amended. in 1911, B.E. Walker, President of the Bank of Commerce, even suggested pressure from abroad, “… a complaint from those who represent capital in the United States would seem to be a most natural way in which to bring about consideration of the subject by the Government at Ottawa… “

“…of course the Charter of Rights and Freedoms now provides for constitutional protection of rights and judicial review, but property is not included among those rights.”

Nedelsky, Jennifer. “From Private Property to Public Resource: The Emergence of Administrative Control of Water in Nova Scotia.” Essays in the History of Canadian Law: Nova Scotia, edited by Philip Girard and Jim Phillips, vol. 3, University of Toronto Press, 2012, pp. 326–52. JSTOR, http://www.jstor.org/stable/10.3138/j.ctt13x1qbb.17. Accessed 23 Aug. 2022.

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