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Date: 1975-02-17
By: A.W. Johnson
Citation: Memorandum from A.W. Johnson to Mr. R.G. Robertson (17 February 1975).
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Deputy Minister of Welfare
Health and Welfare Canada

Sous-ministre du Bien-être social
Santé et Bien-être social Canada

CONFIDENTIAL

February 17, 1975

MEMORANDUM TO MR. R.G. ROBERTSON

From: A.W. Johnson

General Comments on the
Paper on the Constitution

1. I was struck at first rather more by the tactical
questions than the strategic ones, I guess. Today, and
in particular at the next Federal-Provincial Conference,
“provincial rights” is and will be running strong, with
the result that the federal bargaining power may well be
at its lowest ebb. I would tend to think that a “public-
build-up” – i.e. appeals to the currents of nationalism –
would be very desirable before the question is floated
with the Premiers. Thus they would be influenced by
nationalistic views as well as by purely regional or
provincial ones. (I even found myself wondering about
the role of the CBC in all of this!)

2. Secondly, I doubt that the public would understand
a simple “patriation”. Why would a Government put itself
in the position of having no way to amend Canada’s
Constitution? Surely they had something in mind, and if
so what is it? In short, Gordon, I think you’d be
“smoked out”. Moreover I really would fear – on the
substance of the issue – that the ressures for unanimity,
at least on the amending formula to Be worked out for a
“patriated” Constitution, would be very powerful.

3. Thirdly, I fear more than anything that amendments
on the substance of the Constitution would in today‘s
climate lea to a substantial weakening of the federal
power. That is in accord with your view, I take it.
We’d end up giving things away (e.g. spending power)
without getting anything back.

4. Fourthly, I am even uneasy about the structural amend-
ments (though I cannot be sure I remember them well enough).
More power for the provinces in the Senate, in particular,
troubles me unless one were sure it wouldn’t alter materially
the dynamics of the federal political process – i.e. weaken
the powers of the Cabinet of the Government of Canada. But
if one wants an amending formula badly enough, I guess one
has to pay some price, and that is the smallest one.

5. Finally, as to the overall picture, I guess I feel
some groundswell of public opinion is required in favour of
the federal power. This could surely be engineered on the
basis of the strong nationalist winds which are blowing –
i.e. that the Canadian identity on this continent and inter-
nationally calls for a cessation of the undermining of the
federal power by “strutting premiers” who are motivated by
a desire for power (with little responsibility) and by the
good politics of being against Ottawa. In short, I would
think, Gordon, that the very strong regional sentiments
need to be counter-balanced (perhaps even calling for taking
them more into account in formulating federal policies during
the “build-up” stages to a constitutional conference).

Is this at all helpful?

A.W. Johnson

D R A F T

CONFIDENTIAL

February 14th, 1975.

MEMORANDUM FOR MR. ROBERTSON

Further to your memorandum respecting ‘patriation’ of the
constitution, it would appear that this issue first arose in the con-
text of the constitutional review, during the Second Working session
of the Conference, September 14-15, 1970. At that time some of the
Premiers expressed the opinion that the review process was progressing
rather slowly and they would prefer to “bring the constitution home”
immediately (together perhaps with some essential amendments), rather
than wait for the end of the constitutional review process. The results
of the constitutional review process, under this proposal, were then
to be incorporated into our constitution by amendment in Canada. What
was contemplated, it seems from the transcript of the meeting, was
that an interim amending procedure be sought from Westminster. Since,
at least in the opinion of the provinces, the unanimous consent of
the federal and all provincial governments was required to amend the
constitution, everyone would be in no worse position if the constitu-
tion were amendable on these terms by a Canadian procedure without
reference to an act of the United Kingdom Parliament, and therefore
the suggestion was made that an interim amending formula requiring
unanimous consent by all governments for further amendment be obtained.

A similar proposition was proposed to the Continuing Com-
mittee of Officials, at least by Ontario, in January, 1971. The
Ontario proposal was:

Patriation alone might also be con-
sidered if there is no early agreement
on an amending formula. The procedure
would be identical to that described
above, except that the amending procedure
incorporated into the B.N.A. Act by the
U.K. Parliament would be an interim one.
Two suggestions for an interim amending
procedure might be considered. The first,
proposed by the Government of Canada in 1960,
would require the unanimous consent of Parlia-
ment and all provincial legislatures for any
amendment.

The second would entrust to Parlia-
ment alone the power to pass any
amendment to the B.N.A. Act. It
has been argued that this latter
procedure is the more flexible, and
the federal government could be relied
on to seek the approval of the provincial
legislatures on matters of concern to
them before submitting to Parliament an
amendment to the Act. The 1960 sugges-
tion, on the other hand, was regarded as
overly rigid with the potential of tying
Canada into a constitutional straight-
jacket, since unanimous agreement would
be required for every amendment, including
the final amending formula itself.

Ontario went on to recommend that immediate patriation
of the B.N.A. Act might be sought with an interim amending procedure
requiring unanimous consent but that early agreement on a final
amending formula would be the best solution.

Further review of the files, which I will continue to make
may indicate other suggestions in this regard but my preliminary
investigation indicates that what was contemplated during the review
process was not-patriation completely without reference to an
amending formula, but rather patriation which carried with it some
sort of interim amending procedure. Thus there appears, subject to
further review of the files, to have been ho extensive discussion
in this context of the effect of merely requesting a U.K. amendment
without an amending formula.

Another issue which arose during the Second Working
Session of the Conference was the suggestion that our constitution
be patriated by some sort of unilateral declaration by Canada rather
than an Act of the United Kingdom Parliament. This raised the
question of the legal legitimacy of any such unilateral patriation.

Mr. Strayer consequently prepared a memorandum dealing
with both these subjects, a copy of which is attached.

Given this background I will now attempt to answer
the questions posed in your memorandum.

(a) & (b)

The process of patriating the constitution
would be that Parliament pass a joint resolution, asking
the U.K. Parliament to amend the Statute of Westminster
which expressly preserves to the U.K. Parliament competence
to amend the British North America Act. There would be no
amendment to the B.N.A. Act required because you do not
contemplate an amending formula. I am assuming that you do
not contemplate any of those ‘less legitimate’ options,
such as a unilateral declaration by Parliament, considered
by Mr. Strayer in his memorandum. While if proceeding with
the consent of all provinces it might be feasible to adopt
one of these less legitimate methods of patriating the con-
stitution it would I think create enormous difficulties
to proceed in such a manner without the consent of the
provinces and its legality would undoubtedly be suspect.

The absence of provincial consent, to action by
Wesinster amending the Statute of Westminster would not
undermine the legality of the action taken by the U.K.
Parliament. The same is true whether or not the U.K.
Parliament were asked to amend only the Statute of West-
minster or whether it also was being asked to amend the
B.N.A. Act and incorporate therein an amending procedure.

Practice has been,in considering amending
formulas for the constitution,to proceed on the assump-
tion that the consent of all provinces is desirable,
however there have been constitutional amendments where
no provincial consent was sought or obtained. This was
true of the B.N.A. Act(No. 2) 1949 which conferred on the
Parliament of Canada the powers now in section 91(1) and
which arguably gives Parliament the power to amend
matters of provincial concern such as the powers of the
Senate, the number of members by which a province is en-
titled to be represented in the Senate, and the proportion-
ate representation of the provinces in the House of Commons.
It would also appear from the records of the constitutional
review that the federal government consistently took the
position,both with the provinces and in dealings with
Westminster,that unanimous consent of the provinces to the
proposed request for an amending formula was not necessary.

The legality of any amendment to either the
Statute of Westminster or the B.N.A. Act would depend on
a validly enacted U.K. statute. The question that does arise
therefore is whether or not the U.K. Parliament would accede
to a request by the Canadian Parliament in the absence of the
consent of the provinces to pass such an enactment. The
practice has been for the U.K. Parliament to automatically
pass amendments requested by Parliament, but it is arguable
that when such amendments affect provincial matters provincial
consent has as a matter of convention usually been obtained.
Therefore pressure might be put on the U.K. Parliament, for
example by the provinces, not to accede automatically to the
Canadian request in this case. One factor that might be
relevant in considering whether the U.K. Parliament would
accede to such a request is that mentioned by Mr. Bryce,
that the U.K. is at present having-its own separatist
problems.

(c), (d) and (e)

It is very difficult to conceive of a method of
patriating the constitution without at the same time
providing for some method of amendment. If Westminster
amended the Statute of Westminster so that it expressly
stated that the U.K. Parliament no longer had authority
to amend the B.N.A. Act you perhaps could say that our
constitution in a sense was patriated but in the absence of
any amending formula either interim or final under the control
of Canada, both the Statute of Westminster and the B.N.A. Act
would remain U.K. statutes. dust as the Parliament of Canada
can amend or repeal any statute passed by it, so it would still
be open to the U.K. Parliament to amend those Acts. Such a
patriation then would not make it impossible to make future
amendments to the constitution. At the same time critics would
undoubtedly point out that actually the link with the U.K. had
not been broken and the patriation was really only a pseudo-
patriation.

To effectively patriate the constitution it would
seem to be necessary to not only cut off the authority of West-
minster but also to make the B.N.A. Act a Canadian and not a
British statute. Among the alternatives considered at the time
of the constitutional review were the suggestions that the B.N.A.
Act become a statute of the Parliament of Canada or a statutory
instrument, i.e., a Proclamation b the Governor General. But in
both instances it was contemplated that a method for amending the
statute or altering the proclamation which required the consent of at
least some of the provinces, would be incorporated into the original
statute or proclamation. I am inclined to think that if one
attempted to patriate the B.N.A. Act in its present form, without
alteration and without an amending formula, by either or these
kinds of procedures, it would legally thereafter be amendablo
by the Parliament of Canada or by proclamation of the Governor General
as the case might be, without reference to the provinces. The
principle would I think he that the procedure (or the entity) used
in the first instance to make the B.N.A. Act a Canadian enactment
would be the procedure (or the entity) which had the power to
amend it.

It therefore seems to me that patriation of the
constitution without an amending formula necessarily would mean,
either, that we would end up with a pseudo-patriation, or, a
constitution amendable, legally at least, by Parliament alone.

Attach.

B.R.

ANNEX

S E C R E T

PATRIATION OF THE CANADIAN CONSTITUTION

A. Meaning of “Patriation”

Presumably what is meant is the termination of
any power of the United Kingdom Parliament to alter the
Constitution of Canada and thus to remove external obstacles
to the establishment of a domestic Canadian procedure,
interim or permanent, for amendment of the Constitution or
adoption of a new constitution. Presumably also the
Constitution would be adequately “patriated” if no longer
subject to external amendment: that is, complete repeal
and re-enactment in Canada is not a necessary element of
patriation.

B. Policy Objectives in Patriation

Legitimacy – The new Canadian Constitution, or
amendments made in Canada pursuant to the new
procedures, should be beyond serious challenge
with respect to their legal validity, The surest
way of achieving this will be to maintain continuity
with the existing constitution-making process.
That is, the new amending process should be authorized
by the body previously empowered either to change
our constitution or to authorize its change by others –
the U.K. Parliament. Otherwise it will always be open
to litigants to challenge the validity of laws passed
pursuant to the new amendments or to a new constitution,
and it is always possible that the courts would not
uphold such laws if there is a break in legal continuity.

2. Autochthony – At the same time, but inconsistently,
we may want to create a Canadian Constitution by a
wholly domestic process, springing from Canadian sources
or “autochthonous”. It is generally recognized that
the basic norm of our constitution is now the will of
the Canadian people, not the will of the U.K. Parliament.
This would not preclude action by the U.K. at the
request of Canada, but Quebec in one of its 1968
propositions said:

Ultimate sovereignty rests with the
Canadian people; thus there is no need
whatever for a formal gesture “repatriat-
ing” the Constitution. All that is needed
is to promulgate the new Canadian Constitu-
tion in Canada.

Perhaps this view no longer prevails. If it does,
however, and if it is firmly enough hold by enough
Canadians, there will have to be a decision made as to
which is more important: legitimacy or autochthony.
The two cannot coexist, each in a perfect state. Under
Part E, infra, some possible compromises will be
suggested.

Achievement of a (workable) Canadian Amending Procedure –
Presumably it is not desirable to achieve a wholly new
constitution through the agency of the U.K. Parliament.
Moreover, such a goal is not immediately realizable,
nor is it necessary as we have a workable constitution,
howsoever imperfect, which will presumably survive
any patriation process. But the mechanisms of the exist-
ing amendment procedure for those very important
residual matters presently amendablc in the U.K. will
not survive patriation if the amending power of the
U.K. Parliament is thereby terminated. If these mechanisms
are not simultaneously replaced by an all-Canadian
procedure, we will have a constitutional lacuna which
could continue indefinitely. And if patriation and the
amending procedure are pursued as separate objectives,
the latter may be harder to achieve once the eagerness
to achieve the former has been spent on some purely
symbolic gesture of patriation. The result could be a
lasting “gap” in our constitution – the absence of an
amending procedure for the most important matters – or
an unsuitable procedure which would be only the best
that could be achieved in the indefinite future by
governments anxious to fill a constitutional void.

C. Legal Objectives in Patriation

1. To terminate U.K. power to amend any part of the
Canadian Constitution (and, incidentally, to eliminate
U.K. power to legislate for Canada at our request
and with our consent, a power implicitly retained by
the preamble and section 4 of the Statute of Westminster,
1931, attached hereto as Appendix B) .

2. To retain existing Canadian powers of constitutional
amendment (such as now exist in sections 91(1) and 92(1)
of the B.N.A. Act) or their equivalent; and to provide
a means of making in Canada such constitutional changes
as the U.K. can make at present, or at least to make
possible the ultimate achievement of such procedures in
Canada.

D. The Existing Situation

The present fragmentation of the amending proceduie
for the Canadian Constitution is the product of several U.K.
statutes.

1. Colonial Laws Validity Act, 1865 (see Appendix A) –
Section 2 generally provided that any colonial enactment
must be read subject to any statute of the U.K. extending
to that colony, and that such colonial enactment shall
be void to the the extent of conflict with such British
statute. (The subsequent B.N.A. Act was such a British
statute vis-à-vis Canada.)

2. Statute of Westminster 1931 (see Appendix D) – Section 2
generally abolished the effects of the Colonial Laws
Validit Act 1865, with respect to the Dominions, making
the latter’s legislation no longer subject to nullification
through conflict with U.K. laws. But section 7(1)
preserved U.K. paramountcy over the B.N.A. Act, 1867 to
1930. Thus, the Parliament of Canada and the provincial
legislatures were still precluded, by the Colonial Laws
Validity Act, from legislating in a manner inconsistent
with the B.N.A. Act 1867 to 1930, and by implication
this power was left in the U.K. Parliament – which can
in theory make changes in the B.N.A. Acts without our
request or consent because section 4 of the Statute of
Westminster (otherwise limiting the U.K. Parliament’s
power over the Dominions) does not apply to the matter
excepted by section 7(1). Section 7(3) reinforced this
effect by expressly stating that neither the Canadian
Parliament nor the legislatures were being given any new
subject matters of legislation by the Statute (though
Parliament did gain extra-territorial powers, by section
3, in relation to matters already within its jurisdiction).

3. B.N.A. Act, Sections 91(1) and 92(1) and Section 91,
General Clause (see Appendix C) – These sections grant
extensive powers of amendment to the Parliament and
legislatures of Canada in relation to their “internal”
constitutions. The subjects left to the U.K. Parliament
are essentially those excepted from the respective
grants of powers in these sections. Thus, for example,
while the injunction of section 7(1) of the Statute of
Westminster 1931, against the Parliament of Canada
amending the B.N.A. Act, 1867-1930 does not apply to
amendments to the B.N.A. Act 1951 or the B.N.A. Act, 19 4
(both relating to old age pensions) the federal Parliament
has no power anyway under section 91(1) to legislate
with respect to the “rights … secured to the Legislature
… of a province”. Conceivably it could be argued that
Parliament would, in the absence of external limitations
in British legislation, have power under the “peace, order,
and good government” clause to enact any amendment not
specifically authorized in sections 91(1) and 92(1).
But this would make nonsense of the spirit, and probably
the letter, of the exceptions to Parliament’s power
in section 91(1)

B. Possible Means of Patriation

There are a number of options, the choice among which
will depend on the degree of legitimacy or of autochthony
desired, and the extent to which the development of an amend-
ment procedure is seen as a prerequisite to patriation.

1. No British Involvement – This coult be effected, e.g.,
by a constitution (the existing or a new one) or constitu-
tional amendment procedure being adopted by some domestic
Canadian means – by the Canadian Parliament, by constitu-
tional convention, referendum, etc., and without any
British sanction or repeal of existing formal restrictions
(see D. supra). This was the method used in the Republic
of Ireland in 1937 (through a referendum) and, arguably,
in the Republic of India in 1949 (through a Constitutional
Assembly). Such a process is at present also under way
in Ceylon. In pursuance of a mandate achieved at the
election last summer, the members of the lower house of
Parliament are meeting as a Constituent Assembly to
devise a new constitution for Ceylon. One of their
objectives, stated in a resolution adopted in July, is
to achieve a new constitution without the participation
of the British Crown or Parliament. It is not entirely
clear as yet how they plan to do this.

A domestic Canadian procedure for adoption,
without British involvement, would yield complete auto-
chthony but a questionable legitimacy. There would be
no continuity, and t e new constitution would be the
product of a “revolution in law”. The defect of illegiti-
macy might be cured for all practical purposes by
requiring all judges to take an oath to uphold the new
constitution (if such was adopted) as a condition of
continuing to exercise judicial power. This device was
used successfully in Ireland in the 1937 Constitution,
and could be used in any of the following situations where
legitimacy might be in doubt.

2. No British Sanction for New Constitutional Instruments,
but Withdrawal of Existing British Barriers – For example,
the U.K. could be asked (publicly or privately) to repeal
section 7(1), and perhaps 7(3), of the Statute of West-
minster 1931. This would remove all restrictions except
those in sections 91(1) and 92(1) of the B.N.A. Act,
noted above. The result would be a lacuna, with no
domestic power legally available to amend the portions
formerly retained for amendment by the U.K. Any
Canadian procedure for amending these parts of the
constitution would have to be established, as in 1, by
a “revolution in law” which would result in a disconti-
nuity and an illegitimacy in the eyes of constitutional
purists. Those less exacting might find this acceptable
in that there would have been an abdication of power
by the U.K. Parliament. This approach would also pave
the way for a purely indigenous constitution, and it
would have the possible advantage of permitting instant
patriation. By the same token, we could be left
indefinitelv without an amending formula.

3. Partial British Sanction for New Constitutional Instruments,
and Withdrawal of Existing British Barriers – For example,
the U.K. could be asked (publicly or privately) to repeal
sections 7(1) and 7(3) of the Statute of Westminster 1931,
but in a way which would anticipate and “bless” the develop-
ment in Canada of an amending formula. The Act repealing
sections 7(1) and 7(3) could provide that it would come
into force upon proclamation, such proclamation to be
made By her Majesty when she has been informed by the
Governor General of Canada that the people of Canada have
adonted a new Constitution of Canada (or an amending
formula for the Constitution of Canada).

This process would yield more legitimacy as the
new constitutional instrument would be indirectly approved
by the U.K., the pre-existing authority for the amendment
of the Canadian Constitution. Admittedly, however, the
agency in Canada by which the new constitution was adopted
would have no pre-existinq authority to adopt it, and
this would cause lingering doubts among the purists.

This process would also yield a more tolerable
degree of autochthony, in that the new constitutional
instruments would seem to be adopted, by Canadians.
As the patriation would not take place until a new
constitution or amending procedure had been agreed upon,
it would also avoid the lacuna problem.

4. Withdrawal of Existing British Barriers, and Transfer
of Residual Amending Power to the Parliament of Canada –
This could presumably be effected by the U.K. repealing
sections 7(1) and 7(3) of the Statute of Westminster,
1931, and the exceptions to the Canadian Parliament’s
power under section 91(1) (preserving, however, the
exclusive power of the legislatures under section 92(1)).
As a result, the Parliament of Canada could amend any
aspect of the Constitution except the constitutions of
the provinces.

This would yield perfect legitimacy as there
would be conferral of the constitution-making power
by the pre-existing authority. Thus legal continuity
would be preserved.

It would not appear as a pure y indicenous
de elopment, since the U.K. would be in form conferring
the resididual constitutional amendment process. Given
th proper public treatment this might not appear as a
serious defect.

This method would have the advantage of producing
an amending procedure simultaneously with patriation.
But it opens up a whole range of problems associated with
the form of that amending procedure, the most obvious
being that it would probably be unacceptable to the
provinces.

Some modifications of this method of patriation
might be acceptable, however. The residual amending power
could be transferred to the Parliament of Canada on an
interim basis, and subject to certain conditions. These
conditions might be imposed by the U.K.’s transfer
Iegislation (this appearing to detr ct more from Canadian
sovereignty) or by a self-denying commitment of the
Parliament of Canada itself, perhaps contained in the
joint resolution of the two Houses on the occasion
of the initial request for the transfer by the U.K.
Parliament of the residual amending power. (Premier
Smith seemed to be suggesting some such resolution
device at the recent Working Session.) This new residual
power of Parliament to amend all aspects ot the constitu-
tion other than those covered by section 92(1), and
the conditions on that power howsoever imposed, would be
viewed as temporary, to apply pending agreement on a
permanent amending formula. The conditions which might
be thus imposed should properly apply only to the
amendments with respect to matters now included in the
exceptions to Parliament’s amending power in section
91(1) (although, consistently with the discussions
leading up to section 6 of the Fulton-Favreau formula,
there may be pressure to reduce further the area of
Parliament’s existing and exclusive power of amendment
under section 91(1)).

The conditions imposed on Parliament’s new
residual amending power might be one or more of the
following:

(a) that it not be used in certain areas at all,
e.g. language or education;

(b) that it be used consistently with existing
convention and usage (i.e., with consent of
provincial governments being sought where it
would in the past have been sought before
asking Westminster for an amendment). (This
was the kind of condition Premier Smith
seemed to be suggesting);

(c) that it be used only with the unanimous
consent of all provincial governments (or
provincial legislatures?) (Premier Bennett
seemed to be suggesting this at the last
Working Session). It should be noted that
the Honourable Davie Fulton proposed to the
Attorneys General in September, 1960, im-
mediate patriation of the constitution on the
basis of such an interim amending procedure
requiring the consent of Parliament and all
provincial legislatures. This was criticized
by several governments on the basis that
once patriation were achieved on this basis
a better formula could probably not be achieved,
and the proposal was not pursued.

5. Withdrawal of Existing British Barriers, and Conferral
by the U.K. of the Power to Adopt a Permanent Amending
Procedure – This could be effected separately or in
combination with the conferral of an interim amending
procedure as suggested in 4 (supra). The U.K. could be
asked to empower some Canadian agency – the Parliament
of Canada, Parliament with the consent of the provinces,
Parliament with the approval of the people of Canada
expressed in a referendum, or a constitutional convention
with the approval of a referendum, etc. – to adopt a
new constitution or constitutional amending procedure.

This would preserve continuity as the new
constitutional instrument would be the product of an
agency to which the power of constitution-making, ha
been delegated by the previous constitution-making
authority. It would aid in producing a constitution
conspicuously made in Canada, although admittedly
its origin would be suspect to the xtent that we
allowed an external legislative body to prescribe our
mode of adoption.

It would not guarantee that we would ever have
a new constitution or a new amending procedure, and if
in the meantime the U.K. had abdicated its formal role
and no interim procedure had been provided as suggested
in 4 (supra) there would be a laguna.

6. Withdrawal of Existing British Barriers, and Conferral
by the U.K. of a Permanent Amending Procedure – This
was in essence the scheme of the Fulton-Favreau formula.
A detailed and permanent Canadian amending procedure
was to be enacted – if Parliament and all provincial
legislatures approved – by the U.K. at the request of
Canada.

This would yield a perfectly legitimate constitu-
tional instrument. It would also avoid any lacunae,
as U.K. power would remain until a new Canadian power
was conferred. However, this new amending procedure
would be the least indigenous in its apparent origin
of any of the permanent formulae contemplated in 1 to
6.

F. Conclusion

There would appear to be a number of techniques
open for achieving patriation. Each of these must be weighed
as to the degree to which they will achieve the policy
objective described in B, and those policy objectives must
be weighed against each other to determine their relative
importance.

Generally speaking it may be said that, as
measured in relation to the suggested policy objectives,
the options described in E go in ascending order of legiti-
macy and descending order of autochthony, with no particular
pattern with respect to the probability of attaining a
domestic amending procedure. It may be that options 3 or 4
come closest to a workable compromise; but all of the options
are implicitly embraced by the current discussions of
patriation, and none can be dismissed without consideration.

Attachs. (3)

APPENDIX A

EXTRACT FROM COLONIAL LAWS VALIDITY
ACT, 1865, 28-29 VICT. C. 63 (U.K.)

2. Any colonial law, which is or shall be repugnant to the
provisions of any Act of Parliament extending to the colony to
which such law may relate, or repugnant to any order or regula-
tion made under authority of such Act of Parliament, or having
in the colony the force or effect of such Act, shall be read subject
to such Act, order, or regulation, and shall, to the extent of
such repugnancy, but not otherwise, be and remain absolutely
void and inoperative.

3. No colonial law shall be or deemed to have been
void or inoperative on the ground of repugnancy to the law of
England, unless the same shall be repugnant to the provisions
of some such Act of Parliament, order, or regulation,as
aforesaid.

APPENDIX B

THE STATUTE OF WESTMINSTER, 1931.

22 GEORGE V, CHAPTER 4.

An Act to give effect to certain resolutions passed by
Imperial Conference held in the years 1926 and
1930. (97)

[11th December, 1931.]

WHEREAS the delegates to His Majesty’s Governments in
the United Kingdom, the Dominion of Canada, the Common-
wealth of Australia, the Dominion of New Zealand, the Union
of South Africa, the Irish Free State and Newfoundland, at
Imperial Conferences holden at Westminster in the years of
our Lord nineteen hundred and twenty-six and nineteen hundred
and thirty did concur in making the declarations and resolutions
set forth in the Reports of the said Conferences:

And whereas it is meet and proper to set out by way of
preamble to this Act that, inasmuch as the Crown is the symbol
of the free association of the members of the British Common-
wealth of Nations, and as they are united by a common allegiance
to the Crown, it would be in accord with the established consti-
tutional positions (98) of all the members of the Commonwealth in
relation to one another that any alteration in the law touching
the Succession to the Throne (99) or the Royal Style and
Titles (100) shall hereafter require the assent as well of the
Parliaments of all the Dominions as of the Parliament of the
United Kingdom:

And whereas it is in accord with the established constitu-
tional position that no law hereafter made by the Parliament of
the United Kingdom shall extend to any of the said Dominions
as part of the law of that Dominion otherwise than at the request
and with the consent of that Dominion. (101)

And whereas it is necessary for the ratifying, confirming and
establishing of certain of the said declarations and resolutions
of the said Conferences that a law be made and enacted in due
form by authority of the Parliament of the United Kingdom:

And whereas the Dominion of Canada, the Commonwealth
of Australia, the Dominion of New Zealand, the Union of South
Africa, the Irish Free State and Newfoundland have severally
requested and consented to the submission of a measure to the
Parliament of the United Kingdom for making such provision
with regard to the matters aforesaid as is hereafter in this Act
contained: (102)

Now, therefore, be it enacted by the King’s most Excellent
Majesty by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as follows:–

1. In this Act the expression “Dominion” means any of the
following Dominions, that is to say, the Dominion of Canada,
the Commonwealth of Australia, the Dominion of New Zealand,
the Union of South Africa, the Irish Free State and Newfound-
land.

2. (1) The Colonial Laws Validity Act, 1865, shall not
apply to any law made after the commencement of this Act by
the Parliament of a Dominion.

(2) No law and no provision of any law made after the
commencement of this Act by the Parliament of a Dominion
shall be void or inoperative on the ground that it is repugnant
to the law of England, or to the provisions of any existing or
future Act of Parliament of the United Kingdom, or to any
order, rule, or regulation made under any such Act, and the
powers of the Parliament of a Dominion shall include the power
to repeal or amend any such Act, order, rule or regulation in so
far as the same is part of the law of the Dominion. (103)

3. It is hereby declared and enacted that the Parliament of
a Dominion has full power to make laws having extra-territorial
operation. (104)

4. No Act of Parliament of the United Kingdom passed
after the commencement of this Act shall extend or be deemed
to extend, to a Dominion as part of the law of that Dominion,
unless it is expressly declared in that Act that that Dominion
has requested, and consented to, the enactment thereof. (105)

5. Without prejudice to the generality of the foregoing
provisions of this Act, sections seven hundred and thirty-five
and seven hundred and thirty-six of the Merchant Shipping
Act, 1894, shall be construed as though reference therein to the
Legislature of a British possession did not include reference to
the Parliament of a Dominion. (106)

6. Without prejudice to a generality of the foregoing
provisions of this Act, section four of the Colonial Courts of
Admirality Act, 1890 (which requires certain laws to be reserved
for the signification of His Majesty’s pleasure or to contain a
suspending clause), and so much of section seven of that Act as
requires the approval of His Majesty in Council to any rules of
Court for regulating the practice and procedure of a Colonial
Court of Admirality, shall cease to have effect in any Dominion
as from the commencement of this Act. (107)

7. (1) Nothing in this Act shall be deemed to apply to
the repeal, amedment or alteration of the British North
America Act, 1867 to 1930 or any order, rule or regulation
made thereunder. (108)

(2) The provisions of section two of this Act shall extend
to laws made by any of the Provinces of Canada and to the
powers of the legislatures of such Provinces. (109)

(3) The powers conferred by this Act upon the Parliament
of Canada or upon the legislatures of the Provinces shall be
restricted to the enactment of laws in relation to matters within
the competence of the Parliament of Canada or of any of the
legislatures of the Provinces respectively. (110)

8. Nothing in this Act shall be deemed to confer any power
to repeal or alter the Constitution or the Constitution Act of
the Commonwealth of Australia or the Constitution Act of the
Dominion of New Zealand otherwise than in accordance with
the law existing before the commencement of this Act.

9. (1) Nothing in this Act shall be deemed to authorize
the Parliament of the Commonwealth of Australia to make laws
on any matter within the authority of the States of Australia,
not being a matter within the authority of the Parliament or
Government of the Commonwealth of Australia.

(2) Nothing in this Act shall be deemed to require the
concurrence of the Parliament or Government of the Common-
wealth of Australia, in any case where it would have been in
United Kingdom with respect to any matter within the authority
of the States of Australia, not being a matter within the
authority of the Parliament or Government of the Common-
wealth of Australia, in any case where it would have been in
accordance with the constitutional practice existing before the
commencement of this Act that the Parliament of the United
Kingdom should make that law without such concurrence.

(3) In the application of this Act to the Commonwealth of
Australia the request and consent of the Parliament and
Government of the Commonwealth.

10. (1) None of the following sections of this Act, that is
to say, sections two, three, four, five and six, shall extend to
a Dominion to which thi section applies as part of the law of
that Dominion unless that section is adopted by the Parliament
of the Dominion, and any Act of that Parliament adopting any
section of this Act may provide that the adoption shall have
effect either from the commencement of this Act or from such
later date as is specified in the adopting Act.

(2) The Parliament of any such Dominion as aforesaid
may at any time revoke the adoption of any section referred to
in subsection (1) of this section.

(3) The Dominions to which this section applies are the
Commonwealth of Australia, the Dominion of New Zealand and
Newfoundland.

11. Notwithstanding anything in the Interpretation Act,
1889, the expression “Colony” shall not, in any Act of the
Parliament of the United Kingdom passed after the commence-
ment of this Act, include a Dominion or any Province or State
forming part of a Dominion.

12. This Act may be cited as the Statute of Westminster,
1931. (111)

APPENDIX C

EXTRACTS FROM THE B.N.A. ACT,
1867 AS AMENDED

VI.–DISTRIBUTION OF LEGISLATIVE POWERS.

Powers of the Parliament.

91. It shall be lawful for the Queen, by and with the
Advice and Consent of the Senate and House of Commons
to make Laws for the Peace, Order, and good Government
of Canada, in relation to all Matters not coming within
the Classes of Subjects by this Act assigned exclusively
to the Legislatures of the Provinces; and for greater
Certainty, but not so as to restrict the Generality of the
foregoing Terms of this Section, it is hereby declared that
(notwithstanding anything in this Act) the exclusive
Legislative Authority of the Parliament of Canada extends
to all Matters coming within the Classes of Subjects next
herein-after enumerated; that is to say,–

1. The amendment from time to time of the Constitu-
tion of Canada, except as regards matters coming within
the classes of subjects by this Act assigned exclusively
to the Legislatures of the provinces, or as regards rights
or privileges by this or any other Constitutional Act
granted or secured to the Legislature or the Government
of a province, or to any class of persons with respect to
schools or as regards the use of the English or the
French language or as regards the requirements that
there shall be a session of the Parliament of Canada at
least once each year, and that no House of Commons
shall continue for more than five years from the day
of the return of the Writs for choosing the House:
provided, however, that a House of Commons may in
time of real or apprended war, invasion or insurrec-
tion be continued by the Parliament of Canada if such
continuation is not opposed by the votes of more
one-third of the members of such House. (39)

27

Exclusive Powers of Provincial Legislatures.

92. In each Province the Legislature may exclusively
make Laws in relation to Matters coming within the Classes
of Subject next herein-after enumerated; that is to say,–

1. The Amendment from Time to Time, notwith-
standing anything in this Act, of the Constitution
of the Province, except as regards the Office of
Lieutenant Governor.

*See PDF for footnotes.