Section 92 of the Constitution Act, 1867
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Section 92 of the ''Constitution Act, 1867'' (french: article 92 de la Loi constitutionnelle de 1867) is a provision in the
Constitution of Canada The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
that sets out the legislative powers of the legislatures of the
provinces of Canada A province is almost always an administrative division within a country or sovereign state, state. The term derives from the ancient Roman ''Roman province, provincia'', which was the major territorial and administrative unit of the Roman Empire ...
. The provincial powers in section 92 are balanced by the list of federal legislative powers set out in section 91 of the ''Constitution Act, 1867''. The dynamic tension between these two sets of legislative authority is generally known as the "division of powers". The interplay between the two lists of powers have been the source of much constitutional litigation since
Confederation of Canada Canadian Confederation (french: Confédération canadienne, link=no) was the process by which three British North American provinces, the Province of Canada, Nova Scotia, and New Brunswick, were united into one federation called the Dominion of ...
in 1867. The ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'' is the constitutional statute which established
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
. Originally named the ''
British North America Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', the Act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.


''Constitution Act, 1867''

The ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'' is part of the
Constitution of Canada The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
and thus part of the supreme law of
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
. It was the product of extensive negotiations by the governments of the
British North America British North America comprised the colonial territories of the British Empire in North America from 1783 onwards. English overseas possessions, English colonisation of North America began in the 16th century in Newfoundland (island), Newfound ...
n provinces in the 1860s. The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. Originally enacted in 1867 by the
British Parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremacy ...
under the name the ''British North America Act, 1867'', in 1982 the Act was brought under full Canadian control through the
Patriation Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the Parliament o ...
of the Constitution, and was re-named the ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
''. Since Patriation the Act can only be amended in Canada, under the amending formula set out in the ''
Constitution Act, 1982 The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
''.''Constitution Act, 1982'', Part V.
/ref>


Text of section 92

Section 92 reads: Section 92 is found in Part VI of the ''Constitution Act, 1867'', dealing with the distribution of legislative powers.


Amendments

Section 92 has been amended once since the Act was enacted in 1867. Section 92(1) originally gave the provincial legislatures the power to enact laws to amend the constitutions of the provinces, other than the office of the Lieutenant Governor. Section 92(1) was repealed as part of the Patriation of the Constitution. The provincial power to amend the provincial constitution is now found in section 45 of the ''Constitution Act, 1982''. The exception with regard to the office of the Lieutenant Governor is now found in s. 41 of the ''Constitution Act, 1982''.


Background and interpretation

The interplay between the list of provincial powers in section 92, and the corresponding list of federal powers in section 91, has been one of the most heavily litigated issues since
Confederation A confederation (also known as a confederacy or league) is a union of sovereign groups or states united for purposes of common action. Usually created by a treaty, confederations of states tend to be established for dealing with critical issu ...
in 1867. The relationship between the federal and provincial powers is generally referred to as the "division of powers", meaning federalism issues, not
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
. Both the provincial powers and the federal powers are stated to be exclusive, not concurrent. A subject matter which falls within provincial legislative jurisdiction therefore does not come within federal jurisdiction, and ''vice versa''. Canadian constitutional analysis uses the term ''
ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' as shorthand for a matter that is outside the jurisdiction of a government, and ''
intra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' for a matter that is within the jurisdiction of a government. Related constitutional doctrines such as
paramountcy Suzerainty () is the rights and obligations of a person, state or other polity who controls the foreign policy and relations of a tributary state, while allowing the tributary state to have internal autonomy. While the subordinate party is calle ...
and
inter-jurisdictional immunity In Canadian Constitutional law, interjurisdictional immunity is the legal doctrine that determines which legislation arising from one level of jurisdiction may be applicable to matters covered at another level. Interjurisdictional immunity is an e ...
are also used to assess the constitutionality of a law under the division of powers. Although some of the Fathers of Confederation, such as
John A. Macdonald Sir John Alexander Macdonald (January 10 or 11, 1815 – June 6, 1891) was the first prime minister of Canada, serving from 1867 to 1873 and from 1878 to 1891. The dominant figure of Canadian Confederation, he had a political career that sp ...
, favoured a strong central government, other Fathers of Confederation, such as
Oliver Mowat Sir Oliver Mowat (July 22, 1820 – April 19, 1903) was a Canadian lawyer, politician, and Ontario Liberal Party leader. He served for nearly 24 years as the third premier of Ontario. He was the eighth lieutenant governor of Ontario and one of ...
, were more inclined to broader provincial powers. Quebec has traditionally favoured stronger provincial powers. In the late 19th century and early 20th century, the
Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
, the highest appellate body of the
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
, issued a series of decisions which expanded provincial powers at the expense of federal powers.


Other sources of provincial jurisdiction

Section 92 is not the only source of provincial legislative authority, as there are other provisions of the ''Constitution Act, 1867'' which confer legislative power on the provincial legislatures: * Section 92A, enacted by the ''Constitution Act, 1982'', gives the provinces jurisdiction over natural resources in the Province; * Section 93 gives the provinces jurisdiction over education, including jurisdiction over denominational and separate schools in some provinces; * Section 94A confirms provincial jurisdiction over old age pensions and supplemental benefits, even when the federal Parliament has legislated in the area; * Section 95 gives the provinces jurisdiction over agriculture and immigration, subject to concurrent federal jurisdiction over those subjects.''Constitution Act, 1867'', s. 95.
/ref> There is also section 45 of the ''Constitution Act, 1982'', which gives the provincial legislatures the power to amend the provincial constitutions.


References

{{Reflist Constitution of Canada Canadian Confederation Federalism in Canada