Manitoba Report - Part 3

Part 3 looks in more detail at the drafting and passage of the British North America Act of 1871.

Part III

THE BRITISH NORTH AMERICA ACT OF 1871

The First Draft of the Bill: December 1870-January 1871. The Canadian Parliament passed the Manitoba Act rapidly and with broad support. It was promptly sanctioned by the Colonial Office to remove any suspicion of subsequent disallowance.[1] As outlined above, the transfer of the territory to the Dominion was completed, the Red River became the province of Manitoba, and the British expeditionary force was extricated before it could encounter either military or political complications. There the matter apparently rested. However, in December 1870 Canada's Prime Minister and Minister of Justice, Sir John A. Macdonald, decided to confront an issue which had been raised during the debate on the Manitoba Bill 'as to the power of parliament to pass the act'.[2] The core of the problem lay in an apparent discrepancy between Sections 146 and 147 of the British North America Act of 1867 (33 Vic., c. 3). Section 146 laid down a procedure for the admission to the Dominion of Newfoundland, Prince Edward Island and British Columbia, 'and to admit Rupert's Land and the North-Western Territory, or either of them'. Section 147 dealt with the implications for representation in the Senate if Newfoundland and Prince Edward Island became provinces. Section 22 had grouped the four original provinces into three regional blocks, each allocated twenty-four Senators. If Newfoundland joined, it would receive four extra Senators, thereby permanently enlarging the Red Chamber. However, Prince Edward Island would receive its four Senators at the expense of Nova Scotia and New Brunswick. The care with which Section 147 reconciled the hypothetical admission of the two island colonies with the Section 22 principle of equality of Senate representation by regional blocks gave rise to the suggestion that the Act did not confer any power to extend parliamentary representation to provinces carved out of the North West. An additional complication in the wording was the apparent assumption that 'Rupert's Land' and 'the North-Western Territory' were distinct entities. Section 2 of the Westminster Parliament's Rupert's Land Act of 1868 (31-32 Vic., c. 105) had swept away this distinction by defining Rupert's Land to 'include the whole of the Lands and Territories held or claimed' by the Hudson's Bay Company, and the Law Officers saw no difficulties in the subsequent Canadian decision to pass prospective legislation, i.e. very sensibly to lay down provision for the temporary administration of the territory in advance of its actual acquisition.[3]

Macdonald's report, dated 29 December 1870, proposed that Canada solicit Imperial legislation to validate what had been done, and to clarify procedure for the admission of future provinces. This would both avoid 'grave disquiet' in the West, and 'prevent the necessity of repeated applications to the Imperial parliament for legislation respecting the Dominion'. Accordingly, the Earl of Kimberley (who was referred to personally and not by his office) should be asked to carry a Bill through Westminster designed to deal with four points. The first would secure confirmation of the Manitoba Act (33 Vic. c. 3, Canada), 'as if it had been an Imperial Statute and legalizing what ever may have been done under it, according to its true intent'. Secondly, power was sought to create new provinces 'in the North Western Territory', with powers no greater than those of the original four provinces of 1867, and to give them representation in the Canadian Parliament, with, once again, 'the Acts so constituting such Provinces to have the same effect as if passed by the Imperial Parliament at the time of the Union'. A third requirement (actually number four in Macdonald's report) was that the terms of the requested Westminster Act should also 'be applicable to the Province of British Columbia whenever it may form part of the Dominion.[4]

Taken together, these three points represented little more than an affair of constitutional house-keeping, the tying up of some admitted loose ends from the original Confederation Act of 1867. However, Macdonald's third point may have been more subtle, and certainly triggered a revealing response in the Colonial Office. He sought permission for 'the Dominion Parliament to increase or diminish, from time to time the limits of the Province of Manitoba or of any other Province of the Dominion with the consent of the Government and Legislature of such Province'. The interesting feature of this proposal lies in the words 'or diminish'. It might be suggested that the proposal was simply intended to match the provision in Article 4, Section 3 of the Constitution of the United States that regulated the process by which a State might be carved out of another State. This had been used to detach Maine from Massachusetts in 1820 and, more controversially, to admit West Virginia to the Union in 1863. However, the wording of Macdonald's report does not suggest that he had the American Constitution in front of him. Taken together with the proposal that new provinces formed in the West should not be given larger powers that those allocated to the founding four - which left open the possibility that they might receive less - and we have perhaps a glimpse of the eventual provincial role under 'Macdonaldian' centralisation.[5] Macdonald had originally intended to limit Manitoba within very restricted boundaries intended to exclude Portage-la-Prairie, where anglophone settlers had defied the Red River Provisional Government. The government had accepted an amendment in the House of Commons to enlarge the boundaries so that Portage would be included. Perhaps Macdonald foresaw the possibility that the Manitoba legislature itself might welcome subsequent re-division if the amalgam did not work. However, as was to be queried in the Colonial Office, his proposal appeared to include the four original provinces as well.[6]

It may be pointed out that Macdonald left the drafting of Imperial legislation to the British. This was a wise use of his time learned from his experience in 1867, when the four Attorneys-General had drafted a Bill, only to have it set aside in favour of the work of a Lincoln's Inn barrister working frantically part-time.

Whatever his motives, Macdonald's report was promptly endorsed by his cabinet colleagues and the Governor General passed on to London on 3 January 1870. His despatch reached the Colonial Office on 19 January, and by 24 January Henry Holland had drafted the required Bill - and, indeed, a little more. His draft was as follows:

 

Colonial Office draft of British North America Bill January 1871[7]

 

Whereas doubts have been entertained respecting the powers of the Parliament of Canada to establish provinces in Territories admitted or which may hereafter be admitted into the Dominion of Canada, and to provide for the representation of such Provinces in the said parliament, and it is expedient to remove such doubts and to vest such powers in the s[ai]d Parliament

Be it enacted

 

1. This Act may be cited for all purposes as the British North America Act 1871. [Marginal heading: Short Title of Act]

 

2. The following Acts passed by the said Parliament of Canada & entitled respectively 'An Act for the Temporary Government of Ruperts Land & the North Western Territory when united with Canada' and 'An Act to amend & continue the Act 32 & 33 Vict[oria] Chapter 3 & to establish & provide for the Gov[ernmen]t of the Province of Manitoba' shall be & [?be, illegible] deemed to have been valid & effectual for all purposes whatsoever from the date at which they respectively received the assent of the Governor General of the s[ai]d Dominion of Canada. [Marginal heading: Confirmation of Act of Parliament of Canada]

 

3. The Parliament of Canada may from time to time establish new Provinces in the Territories admitted to be part of the s[ai]d Dominion by an Order in Council of the 23d. June 1870, or in any other Territories which may hereafter be admitted into & form part of the said Dominion; and the said Parliament may from time to time make provision for the administration of any such provinces & for the passing of Laws for the peace[,] order & good Government thereof; and for the representation from time to time of such Provinces or any of them in the said Parliament of Canada.

[Marginal heading: Power of Parliament of Canada to establish new provinces & to give them representation in Parliament]

 

4. The Parliament of Canada may from time to time, with the consent of the legislature of any Province now or at any time hereafter forming part of the said Dominion, increase, diminish, or otherwise alter the limits of such Province upon such terms & conditions as may be agreed to by the s[ai]d Provincial Legislature. [Marginal heading: Alteration of limits of Provinces]

 

5. The Parliament of Canada may, with the like consent, withdraw from any Province any part of the Territory comprised therein, & make Laws for the administration peace[,] order & good Gov[ernmen]t of the territory so withdrawn, whether the same shall or shall not be included within the limits of any other Province of the Dominion; and may make such provision, as to the s[ai]d Parliament shall seem expedient relating to the effect & operation of any such withdrawal of Territory with respect to the Province from which such Territory shall have been withdrawn.

[Marginal heading: Parliament of Canada may withdraw part of territory of any province & legislate therefor]

 

In marginal notes, Holland indicated that Section 3 was worded to cover British Columbia, and he acknowledged that it was unclear whether the provision of Sections 3 and 4 were intended to include Quebec, Ontario, New Brunswick and Nova Scotia. (The list is cited in the order given although there is no suggestion that this reflected any immediate thinking about the future shape of any of the four.)

With regard to section 5, Holland coolly acknowledged that he had gone further than Macdonald had requested in empowering the Dominion government to retain ceded provincial territory under its direct control. 'This power is not asked for in the Resolutions.' His marginal note identified the inspiration behind the wording, an Imperial Act passed two years earlier for New Zealand (31 & 32 Vic., c. 92). New Zealand had been granted a local constitution in 1852 that included a quasi-federal provincial system. Proposals for the union of British North America had sometimes been discussed with the New Zealand constitution in mind. Macdonald had moved hastily at the Quebec Conference of 1864 to squash such talk, because although powers were allotted to the local legislatures, 'the General Government had power to sweep these away'. The British government, however, continued to hanker after imposing something of the New Zealand model, attempting at a late stage in the drafting process for the British North America Act of 1867 to transplant the term 'Superintendent' in place of 'lieutenant-governor'. Using the New Zealand Act as a quarry, they did succeed in substituting 'peace, order and good government' for the delegates' preferred phrase of 'peace, welfare and good government'.[8] Section 69 of the New Zealand Constitution Act (15 & 16 Vic., c. 72) gave the central legislature, the General Assembly, power 'by any Act or Acts from Time to Time, to constitute new Provinces in New Zealand'.[9]

Since the whole of New Zealand was already organised into provinces, this necessarily implied power of sub-division.[10] In 1857, the General Assembly prescribed a procedure by which it could act on local petitions to establish new provinces. The original six quickly multiplied to ten, and in 1876 the whole system collapsed into bankruptcy and was replaced by a unitary constitution. Clearly, the power to sub-divide enabled the central government to undermine the larger provinces by splitting them up. But when in 1865 a gold-rush on the remote west coast of the South Island presented the opportunity to weaken the powerful province of Canterbury, it quickly became clear that the population, although keen to break away, was too small and rootless to support full provincial institutions. The central government responded by giving 'Westland' the status of a county, combining a practical measure of local autonomy with a degree of direct central control. The down-graded province of Canterbury succeeded in unloading a disproportionate part of its debt on to the upstart county, and Holland's marginal note on his draft British North America Bill specifically referred to the need for a mechanism to determine 'the proportion of the Provincial debt to be borne by the County'.

The County of Westland Act quickly ran into trouble in London. The Law Officers advised that the General Assembly of New Zealand had no power to create anything other than a province. The Colonial Office promptly arranged to put an enabling Act through Westminster to fill the gap (31 & 32 Vic., c. 92). This enabling Act not only confirmed the power of the General Assembly to abolish provinces altogether (something not attempted in Canadian constitution-making), but it also conferred the power of withdrawing from a province 'the whole or any part of the territory comprised therein, and of passing laws for the peace, order, and good government of the territory so withdrawn ... whether such territory shall or shall not be included within the limits of any other province'. At a superficial level, the similarity of wording to Section 5 of Holland's draft British North America Bill is not surprising, since no doubt both came from the same pen. More fundamentally, the connection is striking. True, Holland's draft recognised that, in the Dominion of Canada, provincial consent would be necessary before boundaries could be altered. None the less, the Colonial Office was attempting to use a Dominion request for a technical enabling Act in order to smuggle in a proposal, wholly new in the Canadian context, to downgrade parts of provinces into 'counties'. The provision did not get very far, for Cartier ensured that it was struck out once the draft Bill was referred to Ottawa for consultation. The significance of the initiative lies in the apparently casual sense of superiority with which a British official could depart from a Canadian brief to introduce a potentially devastating constitutional procedure on his own initiative. It was a forerunner of the mentality that a few months later simply scrapped a whole clause approved by the Canadian Parliament and replaced it with an alternative written by Rogers, probably in consultation with Thring. 'The draft Bill appears to me very good', commented Rogers on the day he first saw it. In the belief that Macdonald was about to visit London, Holland suggested holding back on referring the draft to Thring, but Lord Kimberley doubted whether Canada's Prime Minister was likely to appear (in fact, it would be eight years before his next visit to England) and the draft was sent to Canada for comment.[11]

Canadian Responses February to April 1871. In Ottawa, it fell to George-Etienne Cartier, acting as Minister of Justice, to respond to the draft bill. In this case, however, there seems to have been no difference in emphasis between Cartier, the spokesman for Quebec, and Macdonald, often suspected as a closet centraliser. In fact, Macdonald left the capital to take part in the Washington negotiations on 27 February,[12] the day that the Executive Council approved Cartier's response to the draft Bill. The previous day he had written to Cartier, stressing that it was 'important that all the Provinces of the Dominion should hold the same status', which meant that they must all 'hold their constitutions subject only to alteration by the Imperial Legislature'. This was to be the case with Prince Edward Island, Newfoundland and British Columbia, all of them expected to enter Confederation at an early stage. 'The Provinces therefore which are to be cut out of the North West Territories & Rupert's Land ought to be placed in the same position.'[13] Cartier's report to the Executive Council proposed some minor changes in word order Holland's New Zealand-inspired Trojan Horse of County status was deleted so hastily that the revised wording did not make sense, and had to be patched up again in April. (If Manitoba, with its tiny population and minimal infrastructure, could become a province, there was really no room in the Canadian system of government for any smaller unit, and no reason to offer incentives for pockets of settlers in the Territories to agitate for increased local autonomy.) Mostly, however, the Canadian cabinet accepted Holland's five-clause matrix. Their major suggestion for change reflected Cartier's echoing of Macdonald's sentiments, emphasising that the constitution of Manitoba 'should be subject only to alteration by the Imperial legislature'. The Canadians proposed to add a sixth section, as follows:

 

The two Acts of the Parliament of Canada mentioned in the Second clause of this Act and any Act of the said Parliament hereafter establishing a Province as aforesaid shall have effect as if it had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.

 

The two Acts referred to, as noted above, were the Canadian Parliament's 1868 Rupertsland Act and its 1870 Manitoba Act. Cartier's drafting probably did not meet Thring's standards of elegance. The British used the term 'Section' rather than 'clause'. Holland's proposed Section 3 had duly authorised the Parliament of Canada to establish new provinces, as requested. Cartier's addition, backing such legislation with the force of the Westminster Parliament, was open to the objection that more than Act might be involved in establishing a new province, which would give the Imperial Parliament the unwelcome burden of a vice-like grip over all manner of details. This possibility was reinforced by another slight but important change of wording in the third Section. Holland had envisaged that the Dominion Parliament 'may from time to time make provision for the administration of any such provinces'. Cartier amended this to limit the Parliament's power to 'the time of such establishment'.[14]

On 2 March, the Governor General forwarded the report to London, incidentally mentioning it that the draft Bill had been laid before the Canadian House of Commons for its information.[15] By 18 March, William Dealtry, the Colonial Office clerk who handled papers from Canada, was reporting that the Canadians had made 'a few verbal alterations' and added an extra clause. Rogers, however, noted that the change in the wording to Section 3 'appears intended to make the Constitution unalterable by Local Law'. However, neither he nor Kimberley saw any reason why the draft should not be promptly introduced into the House of Lords.[16] The draft Bill was sent on 24 March from the Colonial Office to the Treasury, with the request that it 'may be submitted to Mr. Thring for his consideration', and the standard prod that 'an early intimation of his opinion' would be welcome. Lord Kimberley, Rogers reported, 'desires to introduce it [the Bill] at once'. Their haste may have reflected a desire to oblige the Dominion or it may more realistically have resulted from fears that Cardwell's legislation to reform the Army threatened to paralyse the political system. Either way, no difficulties were envisaged.

In his short covering letter to the Treasury, Rogers specified just one reason for proposing the legislation. He enclosed both Macdonald's report of 29 December and Cartier's of 27 February to explain '[t]he circumstances under which it has been considered desirable that this Act should be passed'. The Canadian government had proposed to add a sixth clause to the Colonial Office 'as they consider it absolutely necessary that the Province of Manitoba as well as any other province which may hereafter be erected should hold the same status as the four Provinces originally composing the Dominion, and like them should hold its constitution subject only to alteration by the Imperial Legislature'.[17] Thring was capable of constructing complicated legislation under the pressure of immediate deadlines. Luckily, as it transpired, he appears to have taken his time in this instance.

On 27 March, Edward Blake rose in the House of Commons to challenge the right of the Canadian government to propose Imperial constitutional legislation without the endorsement of Parliament.[18] In later life, Sir John A. Macdonald was to attribute his defeat over the Pacific Scandal in 1873 to his absence from Ottawa during the 1871 session.[19] In this instance, he was perhaps the only parliamentarian capable of counterbalancing Blake's undoubted authority as a constitutional lawyer. A detailed study of the controversy that ensued during the following fortnight lies outwith the scope of this Report, but it may be suggested that Macdonald would have not have allowed the matter to become so prolonged. Nor, in all probability, would he have countenanced the development of the claim that Parliament should be consulted about constitutional change into the assertion of a right actually to draft legislation, clause by clause, for submission to Westminster. Cartier was still confident on March 29 that he would soon be able to forward an Address to London asserting that the provisions of the draft Act, which had been published, 'meet with the approval of this House'.[20] But on April 9, the Governor General used the transatlantic telegraph to ask the British government to halt its own legislation to confirm the Rupert's Land and Manitoba Acts pending a further address from the Parliament of Canada.[21] Cartier's tactical concession of the right of Parliament to a consultative voice in constitutional change had been insufficient. The government had lost control over the process.

On April 12 (or, more likely, during the early hours of the next day), the Canadian House of Commons passed resolutions endorsing a revised version of the proposed British North America Bill of 1871. Early in the following week, Cartier formally reported on the matter to the Governor General who sent on the documentation to London on April 18, as usual without comment.[22] Cartier reported that a clerical error had been corrected in the wording of the fifth Section, a legacy of the haste with which Holland's 'County' trial balloon had been brought to earth. More important was the new form of the proposed Section 6:

The Act of the Parliament of Canada secondly mentioned in the second clause of this Act, in so far as it relates to the Province of Manitoba, and any Act of the said Parliament hereafter establishing a Province as aforesaid, shall have effect as if it had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland, subject always to the right of the Legislature of Manitoba from time to time to alter the provisions of the Act secondly mentioned in the said clause as respects the qualification of Electors and Members of the Legislative Assembly, and to make laws respecting Elections.

 

Two substantive changes had been made to the preceding draft. (A third variation, it will be suggested below, represented merely a technical clarification to confirm the scope of the legislation.) The first related to the Rupert's Land Act of 1868. The Canadian government still wished to have its operation confirmed but, upon reflection, and with the transitional phase of the incorporation of the western territories now receding into the past, it seemed 'inexpedient' to write this enactment into Imperial law. (Section 36 of the Manitoba Act continued the Rupert's Land Act in force until the close of the Canadian parliamentary session of 1871, which both dealt with the issue of validity and gave Ottawa time to make other arrangements for the Territories.) Thus it was only the Manitoba Act that they wished to have declared as the equivalent of legislation by the Imperial Parliament. Secondly, the draft Section had been elaborated 'with a view of removing the doubt which would have existed as to the right of the Legislature of Manitoba to make laws respecting Elections and the qualification of Members and Electors'. This simply placed Manitoba on the same footing as the original four provinces (specifically under Section 92, sub-section 1 of the British North America Act, 1867, but also by implication under Sections 84 and 88).

One other elaboration in the wording of the proposed Section Six has been commented upon by Dr Thomas Flanagan of the University of Calgary.[23] His contribution relates to the phrase italicised in this extract (repeated from above):

 

The Act of the Parliament of Canada secondly mentioned in the second clause of this Act, in so far as it relates to the Province of Manitoba, and any Act of the said Parliament hereafter establishing a Province as aforesaid, shall have effect as if it had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland... (italics added)

 

Dr Flanagan's speculation regarding the use of the same phrase in the subsequent Imperial Act is discussed below, under the interpretation of the phraseology of the British North America Act of 1871.

The Bill in London, May-June 1871. The Addresses of the Canadian Parliament reached London on May 3 1871. In fact, the previous day, the file had become active again in Whitehall.[24] On May 2, Holland wrote to the Treasury noting that Kimberley (i.e the Colonial Office) was 'led to understand that further explanations are required by Mr. Thring' in relation to the draft legislation sent to him on March 24. Perhaps the matter had simply made its natural way to the top of Thring's in-tray. Equally likely, the Colonial Office had informally pressed him to act.[25] As far back as March 20, Kimberley had wished to introduce the Bill 'immediately'.[26] By the beginning of May, three months of the parliamentary session had already passed, and the government's legislative programme was highly congested. A cabinet meeting on May 6 would decide to launch Bills on the explosive issues of Licensing and the Secret Ballot. Other Bills, on subjects such as the Registration of Voters and the ever-controversial Game Laws, were in parliamentary difficulties, as was the Budget. The cabinet resorted to the unpopular expedient of asking the House of Commons to sit on Friday mornings to force through a contentious Irish measure.[27] Kimberley himself was in charge of piloting through a suspicious House of Lords a Bill to end the Church of England's monopoly over teaching posts at Oxford and Cambridge Universities. A major crisis over the Army reform loomed. There was, too, another incentive for hurrying on a piece of legislation that the British undoubtedly saw as little more than technical. The negotiations in Washington had turned into a tense three-way battle, in which Canada's Prime Minister, Sir John A. Macdonald, found himself pitted in conflict with his fellow British delegates as well as in confrontation with the American administration. Although on May 8 he would reluctantly sign the Treaty in his capacity as an Imperial Commissioner, Macdonald was deeply unhappy at the surrender of Canada's inshore fisheries as the Empire's price of placating the United States. Even so, to take effect the Treaty would have to be ratified by the Dominion Parliament, and in the event this did not happen for another twelve months.[28] If the British were to find themselves pressing Canada to pass substantive legislation to secure a major foreign policy initiative, the least they could do would be to avoid unnecessary delay in ushering through a minor Act of Parliament in reference to a distant province. This consideration may account for the terse tone of the follow-up letter to the Treasury.

The letters of further explanation of May 2 referred generally to doubts regarding the validity of the two Canadian Acts mentioned in Section 2 of the February draft: at this stage, news had not reached London of the proposal to drop the Rupert's Land Act. 'The Canadian Parliament is desirous that these doubts should be removed. Lord Kimberley is of opinion that this should be done.' (The original draft of the letter stated that Lord Kimberley 'deems that this should be done', but such language was obviously too peremptory to be directed at the all- powerful Treasury.)[29]

The Dominion government also wished to resolve the uncertainty arising out of the apparent conflict between the provisions of Sections 146 and 147 of the British North America Act of 1867 regarding the creation of new provinces and the alteration of existing boundaries, even with the consent of those involved. 'In all this Lord Kimberley concurs.' However, the Colonial Secretary seemed less emphatic in his attitude to the third Canadian request, which related to their suggested Section 6. 'The Dominion Government also desire that a Provincial Constitution once definitively established by the Legislature shall not be alterable except by the British Parliament. Lord Kimberley is prepared to accede to this wish of the Canadian Government.' Having sent the draft Bill to the Treasury some weeks earlier, the Colonial Office now wished to 'be informed whether it is properly in form and will be effectual for its purpose'. A final section was added to the clerks' draft by Holland himself, stating that 'the Bill will not be introduced till the opinion of the Canadian legislature on the subject is expressed', and that those Addresses 'may be shortly expected'.

Their arrival the next day threw the process into mild disarray, not least because Thring had been asked to comment on a draft that was now superseded. It seems likely that Rogers conferred in person with Thring immediately upon receiving the Canadian mail on May 3: they worked in adjacent departments within the crowded ministerial enclave of Whitehall. Unfortunately, the only written record of what happened seems to be the Minute written by Holland on May 3 and 4. If the term 'Minute' suggests a reflective review, then in this case it misleads. Holland wrote 118 words on May 3, punctuated by scribbled deletions and evidently interrupted two-thirds of the way through by Rogers, to whom (as Holland's 'line-manager') the written note was directed. A further 45 words of summary followed on May 4.[30] However, Holland committed enough to paper to identify the main points that he regarded as important.

First, it is possible to note a sense of unease that the Parliament of Canada had become so closely involved in the detailed process of drafting. Five years earlier, in an unofficial capacity, Henry Thring had sketched a procedure by which the Canadian Parliament might pass Addresses invoking an agreed process leading to independence. Now those same legislators were prescribing, line-by-line, the terms of a Bill that they wished to have accepted by the Mother of Parliaments. There is every reason to believe that both Holland and Rogers genuinely wished to assist Canada's politicians in laying a secure foundation for the creation of new provinces. None the less, civil servants look to precedent, and seek to avoid creating precedents that might rebound in the future. Informally, the Dominion of Canada held a special status within the Empire, more than a mere colony but not yet a junior partner. Even if Ottawa did not fall into the habit of regarding Westminster as a legislative supermarket to be invoked at its own convenience, other colonies might attempt to dictate their own detailed requirements to a legislature that took itself, and its global responsibilities, very seriously indeed. Above all, civil servants have a responsibility to protect the ministers they serve from embarrassment. The interventions of Whalley and Clanricarde on the Red River problem the previous year were reminder of the way that parliamentary loose cannon could stir up a peripheral issue. With British politics passing through an exceptionally tense and poisonous phase, it would have been easy enough to imagine a disaffected parliamentarian indignantly refusing to hold his nose and sign up to the dictates of a colonial legislature. Holland's Minute reflected these concerns. The Canadians, he originally noted, were now requesting that 'a Bill may be introduced into the Imperial Parliament in the form embodied in the addresses'. On second thoughts, he changed the wording. The Addresses contained 'the draft of a Bill' and the Canadians asked 'that a measure may be introduced into the Imperial Parliament embodying the provisions contained in the proposed Bill'. Thus, even if the Canadian draft had been perfect in every detail, there would still have been a defensive wish to tinker with the wording in London.

Holland's hinted reservation about process did not necessarily extend to content. 'The only alteration requiring consideration is in the 6th clause', he wrote. Even this was 'correct in substance, as far as regards the Rupert[']s Land Act, and the reservation of power to the Manitoba Legislature to deal with elections &c.' Holland was just on the point of specifying his objection when he learnt that Rogers had already settled the matter. In an incomplete sentence and tantalising historical cliff-hanger, he appears to have written: 'But the effect is questionable in so far as it makes', but what exactly was so questionable we shall never know. Writing now for the record, Holland changed the interrupted sentence to read: 'But you have proposed an alteration in form as to one part of the section, which caries out the object desired in a more convenient manner.' The following day he wrote that he had added 'a copy of the draft which we have settled since I wrote the above minute'. (The words 'have settled' replaced 'originally prepared', which is only explicable as a touch of absent-mindedness.)

The written record, then, established a few basic points. Kimberley wanted to press ahead with legislation, and the Holland's scribbled and interrupted Minutes shows that his senior advisers responded under pressure to a last-minute suggestion for change originating in Ottawa. Rogers came up with the final version, probably in consultation with Thring. His wording avoided the pitfalls of asking Westminster to confer the status of an Imperial Act upon a piece of colonial legislation, inserting instead a specific and defined prohibition upon Ottawa's authority. It should be noted at this point that the phrase highlighted by Dr Flanagan, ' in so far as it relates to the Province of Manitoba' (italics added), apparently passed without comment in the Colonial Office.

Unfortunately, the Office held on to its secrets. 'Should the papers be printed for Parliament?', asked Holland on May 4. If so, 'probably it would be sufficient to print the Addresses with Sir G[eorge] Cartier's report'. This drew from Rogers a response that stands in the long and often satirised tradition of off-hand dismissal characteristic of Whitehall mandarins. The Governor General's covering despatch (a typically bald document) 'w[oul]d tell the whole story', he thought. 'But is it necessary to print anything? Will not an introductory speech answer the purpose?' In short, there was no need to tell Parliament that its Canadian counterpart had requested a differently worded Bill, no need to reveal a single word of the Manitoba Act. Ministers took the hint. 'I scarcely think printing necessary', wrote Knatchbull-Hugessen. 'No papers need be printed', pronounced Kimberley.[31] Had papers been printed, it is likely that the text of Canada's Manitoba Act would have been included, thereby revealing to members of the two Houses that its 36 Sections dealt with matters not confined to political representation.

The Bill was introduced into the House of Lords on 15 May, and came up for its Second Reading on May 23.[32] It was then that Kimberley briefly explained its purpose. His speech, if speech it can be called, just managed to stretch into a second column of Hansard, and then only because about one third of his remarks consisted of courtesies and generalities. He reported, as if it were news, the success of the Red River expedition and praised the 'discretion and energy' of the lieutenant-governor of Manitoba, Adams G. Archibald. 'A provincial legislature had been elected in Manitoba, fairly representing the different races and opinions', British Columbia had agreed to enter Confederation 'and there was a prospect of railway communication between it and the Atlantic Provinces'. For Manitoba he predicted 'a flourishing future' and, in a sole and oblique allusion to land issues, he reminded their Lordships that the province 'till recent times, was only inhabited by the buffalo and the Red man'.

Of the measure before Parliament, he offered only the briefest of explanations. It would 'remove doubts which had been cast on the validity of certain Acts of the Canadian Parliament'. According to Hansard, not always accurate in capturing unfamiliar detail, Kimberley stated that the 'Act of Confederation' (i.e. the British North America Act of 1867) 'gave power to the Parliament of Canada to establish Provinces in territories admitted, or hereafter to be admitted, into the Dominion of Canada, and provide for the representation of such Provinces in Parliament' - whereas the latter point was precisely the grey area between Sections 146 and 147. 'The Bill would give the Canadian Parliament power to establish new Provinces and provide for the constitution, &c., thereof in much the same way as the United States Government dealt with territories; it gave power to alter the limits of constituted Provinces; and enabled the Canadian Parliament to legislate for any territory not for the time being included in any province'. The allusion to the American Constitution perhaps revealed an element in Kimberley's thinking, but his reported allusion to the power to alter provincial limits was misleading. If anything, by requiring provincial consent to future boundary changes, Ottawa's power was being limited - but at no point in his brief remarks did Kimberley mention that Section 6 would forbid the Dominion Parliament to alter the provincial constitution. However, Kimberley's exposition was enough for the House of Lords, which turned to the more interesting topic of compensation for six British ships that had been sunk in the River Seine during the Franco-Prussian War. It was agreed to reconsider what Hansard called the Canada Bill in two weeks' time. In a crowded legislative schedule, Kimberley had notched a place for the formalities of Manitoba.

There can be little doubt that, from the British point of view, this piece of legislation was only a formality. It did not come before the cabinet. On 13 May, Kimberley had secured approval for the annexation of the South African Diamond Fields, after Gladstone, a reluctant expansionist, insisted 'it should be mentioned in the Cabinet'. (This extension of the Imperial frontier put Kimberley's name on the map.) On May 20 and June 10, there were cabinet discussions of Canadian objections to the terms of the Washington Treaty. On June 17, ministers decided to object to a project from the Australian colonies for a customs union because it shocked Gladstone's free trade principles.[33] On 5 July, ministers confirmed Kimberley's final decision to recall the British garrison from Quebec. 'Without doubt it should be mentioned to the Cabinet,' Gladstone had written, 'as our withdrawal from Quebec will be a marked fact in the history of our Colonial relations.'[34] By contrast, enabling legislation regarding the status of Manitoba was a purely departmental matter.

Parliament took no greater interest. The Bill completed its passage through the House of Lords and was introduced into the Commons on June 13, where it sped through to an unopposed Third Reading on June 19 and received the Royal Assent on June 29. Apart from Kimberley's short introductory speech, not a single word was uttered, for or against. In one sense, this was not exceptional. Although there was an unusual logjam of controversial legislation in the 1871 session, Parliament continued to pass - or rather, nod through - large amounts of straightforward business, much of which a later age would perhaps prefer to deal with by administrative regulation. The Hansard indexes list several dozen such measures that passed into law entirely without discussion. They include the Anatomy Act (1832) Amendment Act, the Bath City Prison Act, the Beerhouses (Ireland) Act, the Citation Amendment (Scotland) Act, the East Indian (Bishops' Leave of Absence) Act - the list could be considerably extended. At least Manitoba had received a few minutes of Lord Kimberley's inaccurate affability.

The fact that the legislation was perceived by the British as technical in nature may also explain the fact that no effort was made to refer the final draft to Ottawa. As will be discussed below, Holland and Rogers freely reorganised the order of the clauses endorsed by the Canadian parliament, and streamlined some of its phraseology. This alone probably militated against using the transatlantic telegraph, an expensive form of communication, to refer their version to Canada. Even so, surface mail in early summer would have allowed the Canadian cabinet to see the proposed version before it reached its Committee stage in the Lords on June 5, and so given them the option to telegraph any proposals for amendment. After that, the amendment process would have become more complicated, since any changes made by the Commons would have necessitated reference back to the Lords, and parliamentary time was running out. None the less, it remains striking that it was not until July 1 that any official notification was sent of the altered wording of Section 6. By then, the Bill had passed into law.

However, the fact that legislation passed without arousing much interest does not mean that it lacked power. In 1865, Parliament had dealt with a technical challenge to the basis of the laws of South Australia by passing, without a word of debate, the Colonial Laws Validity Act (28 & 29 Vic., c. 69). (Part of the wording of Section 7 of this Act was reproduced in Section 5 of the British North America Act of 1871.) Sixty years later, in the case of Nadan v. The King (1926), the Judicial Committee of the Privy Council ruled that Canada's prohibition of appeals to London in criminal cases was 'void and inoperative by virtue of the Act of 1865'.[35] It is a reminder that apparently technical provisions of minor Acts of Parliament may have considerable repercussions long after the transient circumstances that brought them about. Thus it is appropriate to look more closely at the urgent re-drafting of May 3 and 4 1871 to see what light it may throw upon British intentions.

The Provisions of the Act. As noted above, the pieces were arranged in a different order, with clause 2 of the Canadian Parliament's draft becoming Section 5 of the British North America Act, 1871, and the remaining clauses renumbered to move up accordingly. This was probably done in order to group together references to the Manitoba Act in consecutive sections. There were some changes designed to streamline the wording, with, for instance, 'any territories forming for the time being part of the Dominion of Canada' (Section 2) replacing a notably more cumbersome phrase from Ottawa. There was also some recasting to distinguish between the powers of the Dominion to legislate for 'any territory not for the time being included in any Province' (Section 4) and the requirement to obtain the consent of the province concerned here it was necessary to make practical provision arising from agreed changes in provincial boundaries.

Two small alterations may also be noted. From the outset, that is Holland's original draft of late January 1871, the clause validating the Rupert's Land and Manitoba Acts had echoed the wording of Section 7 of the Colonial Laws Validity Act of 1865. This had declared that the laws of South Australia 'shall be and be deemed to have been valid and effectual for all purposes' since receiving the assent of the Governor. Section 5 of the British North America Act elaborated this to specify 'the assent, in the Queen's name, of the Governor General of the said Dominion of Canada'. In this, the addition of the words 'in the Queen's name' (italics added) Holland was amending his own draft. The addition perhaps represented a coded rebuke from the Colonial Office, intended to remind the Canadians that they were still subjects of an Empire.

The second alteration was even smaller, but in the context of the question of intentions it is worth mentioning. Clause 3 of the Canadian Parliament's resolutions followed Holland's January draft in giving Ottawa power to create new provinces, adding that Parliament 'may at the time of such establishment make provision for the Administration of any such Province'. In Section 2 of the British North America Act, this became 'may, at the time of such establishment, make provision for the constitution and administration of any such province'. There seems to be no documentary evidence to explain that insertion of the words (italics added) 'constitution and'. Presumably the term 'administration' was thought at the last minute to be either too narrow or potentially misleading: Section 67 of the British North America Act 1867 had described a designated deputy to a lieutenant-governor as an 'Administrator'. The following Section of this Report argues that the British understood the word 'constitution' in the mid-nineteenth century in a different sense from its modern usage. However, it is worthy of comment that, while it was the Canadians who wished to reinforce the status of new provinces, it should have been the British who introduced this key word into the legislation.

At the time, these changes do not appear to have been regarded as very important. The despatch of July 1 1871 transmitting the British North America Act to the Governor General was the subject of careful drafting, but it specifically mentioned only one Section. 'Upon a comparison of the Draft Bill sent by you with the Act it will be seen that in form it differs somewhat from the Draft, but in substance it confers all the powers which were asked for by the Dominion Parliament.' 'Draft Bill' replaced 'proposed Bill', and 'asked for' was substituted for 'desired' - changes in wording that subtly underlined Imperial legislative supremacy. 'Upon this point may I direct your attention to the 6th section which has been framed in accordance with the view of your Government that the Province of Manitoba, as well as any other Provinces which may hereafter be established, should hold the same status as the four Provinces created by the British North America Act of 1867.' In this sentence, 'in accordance with' replaced 'to carry out', while the original draft continued after the phrase 'the view of your Government' with the words 'that it is necessary'. Again, the Colonial Office was not going to admit to operating at the dictation of Ottawa. Equally, there was no wish to cause unnecessary offence, as was shown by the deletion of the first half of the next sentence (underlining added). 'It was considered that these provisions could not be properly presented to Parliament in the exact form proposed in the Draft Bill, but the same object is effected by the 6th section of the Act, inasmuch as recourse must be had to the Imperial Parliament for further legislation when once a Province has been established, except in the case mentioned in the 3rd section of the Act.' The underlined words were deleted, and replaced, in Lord Kimberley's handwriting, by the following:

'On consideration it was thought better not to adopt the exact provisions inserted for this purpose in the Draft Bill, but to effect the object desired...'. Kimberley, too, was anxious to avoid any suggestion of dictation from Canada, for 'inserted' replaced his original 'proposed'. Kimberley also deleted the legalistic 'inasmuch as' and fell back upon the plain word 'that'.[36]

Dr Thomas Flanagan's Suggested Interpretation. The despatch to the Governor General, and especially the care taken to select neutral and aloof wording, indicates that it was Section 6 that the Colonial Office saw as the nub of the legislation. This means that British officials, and by extension Lord Kimberley and by implication the Westminster Parliament, explicitly sanctioned the form of words highlighted by Dr Flanagan, which is here repeated for the purpose of discussion:

 

The Act of the Parliament of Canada secondly mentioned in the second clause of this Act, in so far as it relates to the Province of Manitoba, and any Act of the said Parliament hereafter establishing a Province as aforesaid, shall have effect as if it had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland... (italics added)

 

Dr Flanagan asserts that the phrase 'was introduced as a qualification or limitation on the Manitoba Act's new status as the equivalent of Imperial legislation'. In a rhetorical question, he asks: 'Is it plausible to argue that in the context the phrase 'Province of Manitoba' refers to the governmental machinery established by the Manitoba Act, and that the land provisions are not of the same nature and thus do not have the same constitutional protection?' Interpretation of the significance of the phrase must necessarily be limited to the expression of opinion: as Dr Flanagan remarks, 'the historical evidence is not decisive' and ultimately the question must be resolved through the judicial process.[37]

The opinion offered here is that it does not seem that the quoted words can bear the argument that Dr Flanagan advances. First, it may be suggested that if the phrase relating to Manitoba had not been added, it is possible that some ambiguity would have arisen, with the subsequent phrase 'hereafter establishing a Province' being taken to refer back, albeit without much meaning, to the Manitoba Act. Secondly, and more centrally, Dr Flanagan's suggestion appears to overlook the complication that the Manitoba Act did not solely refer to Manitoba. Section 34 generally confirmed the rights of the Hudson's Bay 'as contained in the conditions under which that Company surrendered Rupert's Land to Her Majesty'. Section 35 dealt with 'such portion of Rupert's Land and the North-Western Territory, as is not included in the Province of Manitoba', providing for the appointment of a lieutenant-governor and a change of name to 'the North-West Territories'. Section 36 continued the operation of Rupert's Land Act. These three sections clearly did not relate to the province of Manitoba. Not only would no purpose be served by giving these provisions the status of Imperial legislation, but to have underpinned Section 35 in this way would have directly conflicted with the power to legislate for the government of 'any territory not for the time being included in any Province, confirmed in Section 4 of the British North America Act of 1871.

It might be argued that the insertion of the specific allusion to 'constitution' in Section 2 of the Act gives colour to Dr Flanagan's speculation that the British intended to limit the protection of Imperial legislation to the structure of government, thereby excluding the land provisions in Sections 31 and 32. However, the point may be argued either way. The British were prepared to make so small a change to the wording of Section 2. They endorsed the intention in Section 6 to exempt local electoral arrangements in Manitoba from the need to secure Imperial legislative approval. It therefore seems likely that they would have dealt specifically with Sections 31 and 32 had there been any intention to exclude the land grants from the protective force of the British Act. Sections 31 and 32 of the Manitoba Act each made four specific references to the Province of Manitoba (seven to 'the Province' plus one contextual 'thereof'). On the face of it, a bar on any amendment by the Canadian Parliament of the Manitoba Act in so far as it relates to the Province of Manitoba must be interpreted to include Sections 31 and 32. Of course, it is impossible to be certain: as Dr Flanagan sagely remarks, the historical record does not reveal either way the nature of any British discussion of the two Sections. It does not even establish whether there was such discussion. Yet the silence too may be revealing. In focusing upon Section 6 in the despatch of July 1 1871 to the Governor General, and explaining the import of the substituted wording, no suggestion was made that the prohibition on amendment was confined to political institutions. The conclusion, then, can only be that the British (Holland, Rogers, Thring, Kimberley and a perhaps unaware Parliament) intended to throw an Imperial legislative guarantee over the land grant provisions of the Manitoba Act.

Yet an element of mystery remains. Holland and Rogers were highly competent lawyers with extensive experience of colonial issues. Thring had brought a new standard to legislative draughtsmanship. The Colonial Office submission of May 2 to the Treasury had been accompanied by a copy of the Canadian legislation.[38] All three key legal advisers would therefore have been aware that the Manitoba Act contained a mixture of provisions, some dealing with the political and judicial structure of the new province, others pertaining to the very different sphere of land granting. Moreover, such trained legal minds might have been expected to react uneasily to the possible conflict between Section 30, which vested in the Government of Canada '[a]ll ungranted or waste lands' in Manitoba 'for the purposes of the Dominion', and Section 31, which promptly allocated 'a portion of such ungranted lands, to the extent of one million four hundred acres thereof' to the half-breed families. Why did highly intelligent and politically aware policy-formers silently include such a local matter under the umbrella of Imperial legislation?

One likely explanation for official silence on the land question is that the information reaching the British would have led them to assume that the matter was in the process of being resolved. In February 1871, the Governor General had forwarded despatches from the lieutenant-governor of Manitoba, Adams G. Archibald (who had impressed the Colonial Office), dated December 20 and 27 1870. These reported on the disposal of Crown lands in the province and the question of lands reserved for the half-breed population. On March 7 1871, the Governor General sent a Minute of the Executive Council dealing with survey, and a four-page printed memorandum, 'Distribution of the 1,400,000 Acres Appropriated under the Manitoba Act for the Benefit of the Families of the Half-Breeds'.[39] By the time the Colonial Office came to make its final draft of the Bill, early in May 1871, the land question would have seemed on the way to being dealt with.

It was not unusual for 'start-up' legislation to contain provisions whose practical effect was rapidly superseded. For instance, in the British North America Act 1867, Sections 3, 19, 25, 42, 43, 44, 81, 88, 127 and 137 all explicitly provided for transitional arrangements, most of which ceased to have practical effect within a few months of the proclamation of the Dominion.[40] (A number of other Sections made temporary arrangements until the Dominion or provincial legislatures decided otherwise.) While such provisions would continue to legalise actions retrospectively, they were effectively fossil monuments in the text of the Act. Similarly, Section 16 and sub-section 4 of Section 17 of Canada's Manitoba Act became redundant after the first provincial election. No purpose was served by formally exempting them from the provisions of the British North America Act of 1871 simply because no practical question of their amendment was ever likely to arise.

The British North America Act of 1867 also included the controversial Section 145, declaring it 'the Duty of the Government and Parliament of Canada to provide for the Commencement within Six Months after the Union' of the Intercolonial Railway. This was not so much a legislative provision as a political declaration intended to reassure Maritimers that Canada would keep its promises and give them their railway. No penalty was proscribed for non-compliance, and it may be doubted whether the provision could have been enforced.[41] It may be that Sections 31 and 32 of the Manitoba Act were regarded in the same spirit.[42] The British, after all, had pressed the Canadian government the previous year to make concessions, of an unspecified kind to bring about a peaceful conclusion to Red River problems. Throwing a blanket of Imperial approval over Sections 31 and 32, if only through the negative procedure of not excluding them from the provisions of Section 6, represented a small political gesture.

The British Government and the British North America Act of 1871. The British North America Act of 1871 concerned only a very small group of policy-makers in London. The key proposals relating to the drafting of the Act were made by the Colonial Office legal experts, Henry Holland and Frederic Rogers, in consultation with the Treasury Counsel, Henry Thring. Thring's contribution to the final version may be assumed but cannot be definitively established. The political input came primarily from the Colonial Secretary, Lord Kimberley, although the Parliamentary Under-Secretary, Edward Knatchbull-Hugessen, was involved in discussion and would have been briefed to handle the legislation in the House of Commons. There is no evidence of any British cabinet discussion of the question, or of consultation with the Prime Minister, Gladstone. No-one other than Kimberley raised the matter in Parliament, no documentation was published and Parliament was never informed that it was validating provisions made by the Parliament of Canada other than those relating to the creation of new provinces and their parliamentary representation, administration of territories and the alteration of boundaries.

Throughout the process, the documentary record indicates a wish on the part of the British policy-makers to respond to the concerns of the Canadian government and of the Parliament of Canada. However, there is no indication that the British saw themselves as constrained in either the fact or form of their response by any request, resolution or address from Ottawa.

The documentary record suggests that discussions among British policy-makers related exclusively to these constitutional and political issues, and there is no trace that any consideration was given to the implications of limiting the authority of the Parliament of Canada to pass amendments in relation to Sections 31 and 32. It is suggested that this was probably because reports from Winnipeg and from Ottawa indicated that the half-breed land-grant was already in progress.

The ban on amendment by the Parliament of Canada of the Manitoba Act 'in so far as it relates to the Province of Manitoba' is probably to be explained by the fact that not all sections of the Act referred to the new province. There is no reason to assume that the adoption of this phrase in the Imperial legislation represented any intention to exempt Sections 31 and 33 from the ban on amendment by the Canadian Parliament.

The central thrust of British policy in the framing and passing of the British North America Act of 1871 was to give effect to the wish of the Canadian government 'that a Provincial Constitution once definitively established by the Legislature shall not be alterable except by the British Parliament'. The effect of the Act was that 'recourse must be had to the Imperial Parliament for further legislation when once a Province has been established', except in relation to agreed boundary changes and provincial control over its own elections. However, it does not necessarily follow from this that the British intended to 'constitutionalize' either the status of Manitoba or the provisions of Canada's Manitoba Act of 1870 in the modern sense of the term.

 

 



[1] CO 42/686, fos 170-71. ('Sanction the Act', Monsell minuted to Rogers on June 2 1870.)

[2] CO 42/696, Macdonald to Lisgar, December 20 1870, fos 9-13, approved by a Committee of the Canadian Privy Council, January 2 1871, fo. 8, and enclosed in Lisgar to Kimberley, no. 1, January 3 1871, fos 2-4. The Governor General, Sir John Young, had been raised to the peerage as Lord Lisgar late in 1870.

[3] CO 42/679, Law Officers to Colonial Office, December 11 1869, fos 447-54.

[4] As note 2.

[5] W.L. Morton's description of the original conception of the British North America Act of 1867.

[6] CO 42/696, fos 14-16, marginal notes.

[7] As note 6.

[8] Joseph Pope, Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto, 1895), p. 86, for the Quebec Conference. The term 'Superintendent' was used in Reilly's first draft of the Bill, pp. 150 et seq. The 'Rough Draft' made by Macdonald and his colleagues used the phrase 'peace, welfare and good government', which came from the Act of Union of 1840. Ibid., p. 132.

[9] W.D. McIntyre and W.J. Gardner, eds, Speeches and Documents on New Zealand History (Oxford, 1971), p. 82. The phrase 'Peace, Order, and good Government' occurs in Section 18 (p. 76), ironically in describing the powers of the provinces. It may reflect the wording of the Treaty of Waitangi of 1840 (p. 115), which promised 'the enjoyment of peace and good order'. 'Peace, order and good government' was carried over into every Irish devolution measure from 1886 to 1920, and also into the Australian federal constitution, but neither Ireland nor Australia has identified with the phrase.

[10] Generally, W.P. Morrell, The Provincial System in New Zealand 1852-1876 (London, 1932) and pp. 196-201 for the County of Westland Act.

[11] CO 42/696, fo. 7 ('So proceed,' Rogers minuted on January 24 1871.)

[12] Creighton, Macdonald: Old Chieftain, p. 82. There is no information about the 1871 Act in Creighton's biography.

[13] Quoted, Thomas Flanagan, Metis Land in Manitoba (Calgary, 1991), p.54 (letter of February 26 1871).

[14] CO 42/697, Cartier's report and draft bill, 27 february 1871, fos 26-31.

[15] CO 42/697, Lisgar to Kimberley, 2 March 1871, fos 18-19.

[16] CO 42/697, minutes by Dealtry and Rogers, March 18 1871, fo. 25.

[17] CO 42/697, Colonial Office to Treasury, March 24 1871, fos 20-21.

[18] Paul GĂ©rin-Lajoie, Constitutional Amendment in Canada (Toronto, 1950), pp. 50-58. CO42/697, Lisgar to Kimberley, no. 71, March 28 1871, fos 275-84.

[19] Pope, Memoirs of Macdonald, ii, p. 88.

[20] CO 42/697, fo. 247.

[21] CO 42/697, confidential telegram, Lisgar to Kimberley, April 8 1871, fo. 372.

[22] CO 42/697, Lisgar to Kimberley, 86, April 18 1871, fos 516-17. The Address and Cartier's report were enclosed at fos 521-27, and the printed version of the Bill approved by the Canadian Parliament at fo. 533.

[23] Flanagan, Metis Land in Manitoba, pp. 57, 59.

[24] CO 42/697, date stamp on fo. 516.

[25] CO 42/697, Colonial Office to Treasury (draft), May 2 1871, fos 22-24.

[26] CO 42/697, minute of March 20 1871, fo. 25.

[27] Gladstone Diaries, 7, pp. 491-92.

[28] Creighton, Macdonald: Old Chieftain, pp. 82-105, 127-19. 'I at first thought of declining to sign the treaty', Macdonald wrote to Rose on May 11 1871. Pope, Memoirs of Macdonald, ii, p. 138.

[29] CO 42/697, fo. 22.

[30] CO 42/697, minute by Holland, May 3-4 1871, fo. 520.

[31] CO 42/697, fo. 520 (Minutes by Holland, May 4, Rogers, May 5, Knatchbull-Hugessen May 6, Kimberley, May 9 1871.)

[32] Hansard, 202, 23 May 1871, cols 1171-72. The formal First Reading in the Lords took place on May 15, and the Bill completed its stages in the upper house on June 13. Given two weeks for mail to reach Ottawa, there would have been time to have consulted the Dominion government and to have made amendments before the Bill went on to the Commons, after which any amendment would have required the legislation to return to the Lords - dangerously close to the end of the session.

[33] Gladstone Diaries, 7, pp. 497, 507, 510.

[34] Gladstone Diaries, 8, p. 2.

[35] D.B. Swinfen, Imperial Control of Colonial Legislation 1813-1865 (Oxford, 1970), 167-86. The judgement of the Judicial Committee of the Privy Council in Nadan's Case is in F. Madden, ed., Imperial Constitutional Documents 1765-1952 (Oxford, 1953), pp. 47-54.

[36] CO 42/697, Kimberley to Lisgar, draft, July 1 1871, fos 518-19. Presumably nobody noticed the irony that the Colonial Office should have chosen Dominion Day to inform Canada that there had been a surprise in the alteration of its constitution.

[37] Flanagan, Metis Land in Manitoba, pp. 57, 59.

[38] CO 42/697, fo. 22. A marginal note alongside the reference to the Manitoba Act states: 'In accompanying volume to be returned.' Apparently this had not accompanied the original submission on March 24 1871.

[39] CO 42/696, Lisgar to Kimberley, confidential, February 9 1871, with reports, fos 300-302; CO 42/697, Lisgar to Kimberley, no. 57, March 7 1871, fos 112-17.

[40] McConnell, Commentary on the British North America Act, uses the term 'spent' (passim) for such provisions. As this is a historical and not a legal report, I have avoided using the term, although the point appears to be the same.

[41] Arthur Gordon, governor of New Brunswick, pointed out in 1865 that the inclusion of such a provision in an Imperial Act would 'be either unnecessary or unjust': unnecessary if it was agreed to proceed with the scheme, 'unjust if it were to have the effect of forcing on the people of British North America the execution of a work which their representatives in Parliament may consider it inexpedient to undertake'. Quoted, Ged Martin, The Case against Canadian Confederation (Fredericton, 1990), pp. 33-34. The over-riding of Gordon's objections would suggest that only projects regarded as certain of realisation were likely to be embedded in Imperial legislation.

[42] The point is speculative, but it is also possible that Thring and Rogers concluded that Sections 31 and 32 of the Manitoba Act provided a measure of administrative discretion that would make formal amendment unlikely. Section 31 referred to 'regulations to be from to time made by the Governor General in Council' and 'in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine'. Section 32 specified 'fair and equitable terms' in the 'adjusting' of the hay privilege. In both 31 and 32 it was presumably implicit that claimants should establish that they were 'the children of half-breed heads of families' or owners of or 'in peaceable possession of tracts of land'. Such provisions implied a degree of administrative discretion to establish vetting procedures. In making this point, it is not argued that administrative discretion would have implied open-ended freedom to tear up legislated guarantees. When the phrase 'terms and conditions' was used by the Canadian Parliament an address relating to the transfer of the Hudson's Bay Company territories in 1869, Granville had commented that it was 'of course necessary' that these 'should be in close accordance with the provisions of the intended surrender'. (CO 43/156, Granville to Young, no. 109, June 12 1869, pp. 197-98). In the absence of documentary record, it is impossible to know what Thring and Rogers thought of Sections 31 and 32. It is. However, permissible to speculate on the reasons why two such experienced lawyers were prepared to allow these two Sections to be included under Imperial control. It is fair to suggest that they assumed that the two Sections contained sufficient flexibility to make it unlikely that Westminster would be asked to deal with them in the future. Adams G. Archibald's interpretation of entitlement for the Metis land grant was already moving beyond the precise terms of Section 31: Flanagan, Metis Land in Manitoba, pp. 65-67.

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