Federal Legislation and the Private Law of the Canadian Territories: An Argument for Complementarity

In 1670, a vast expanse of land was granted by British royal charter to the Hudson's Bay Company. The area, called Rupert's Land, was at the time mostly a fur-trading area. Later, the North-Western Territory would be added to it. The area was admitted to the Canadian Union in 1870 and was the precursor to the current Canadian territories: the Northwest Territory, the Yukon and Nunavut.

Within this union, the territories, however, do not have the same status as the provinces and are considered to be under federal administration. From a constitutional point of view, the distinction is important: the territories, unlike the provinces, have no inherent jurisdiction beyond that which Parliament decides to delegate to them.

Whether this distinction has a real impact in the interpretation and application of federal legislation in one of the Canadian territories is an open question. In relation to this, it is important to note that the division of powers provided for by the Constitution Act, 1867[1] allows for rules, principles or notions that, if necessary, may complete the federal norm. Key to this is the exclusive provincial power over "property and civil rights"; a power that the territories have only by way of legislative devolution by the federal Parliament…

We will see that whether the source of the power to legislate over property and civil rights is constitutional or legislative has no real impact on the interpretation and application of federal legislation in the Canadian territory.

Let us thus start at the beginning…

I-Vast expanses

On May 2nd, 1670; by Royal Charter, King Charles II of England granted an exclusive "trading monopoly over the entire Hudson's Bay drainage basin"[2] and these vast lands and territories to the "Company of Adventurers of England trading into Hudson's Bay", better known as the "Hudson's Bay Company".

(…)

WE HAVE given, granted and confirmed, and by these Presents, (…), DO give, grant, and confirm, unto the said Governor and Company, and their Successors, the sole Trade and Commerce of all those Seas, Streights, Bays, Rivers, Lakes, Creeks, and Sounds, in whatsoever Latitude they shall be, that lie within the Entrance of the Streights commonly called Hudson's Streights, together with all the Lands and Territories upon the Countries, Coasts and Confines of the Seas, Bays, Lakes, Kivers (sic), Creeks, and Sounds aforesaid, that are not already actually possessed by or granted to any of our Subjects or possessed by the Subjects of any other Christian Prince or State, (…), and that the said Land be from henceforth reckoned and reputed as one of our Plantations or Colonies in America, called Rupert's Land.

AND FURTHER, WE DO by these Presents, for Us, Our Heirs and Successors, make, create and constitute, the said Governor and Company for the Time being, and their Successors, the true and absolute Lords and Proprietors, of the same Territory, Limits and Places aforesaid, and of all other the Premisses,

SAVING ALWAYS, the Faith, Allegiance and Sovereign Dominion due to Us, our Heirs and Successors, for the same

TO HAVE, HOLD, possess and enjoy the said Territory, Limits, and Places, and all and singular other the Premisses, hereby granted as aforesaid, with their, and every of their Rights, Members, Jurisdictions, Prerogatives, Royalties, and Appurtenances whatsoever, to them the said Governor and Company, and their Successors for ever,

TO BE HOLDEN of Us, Our Heirs and Successors, as of Our Manor of East Greenwich in our County of Kent, in free and common Soccage, and not in Capite or by Knight's Service; (…)[3]. (our emphasis)

Image 1: Hudson's Bay Company Territory, 1670 to 1763

Image of Hudson's Bay Company Territory, 1670 to 1763

©2001 Government of Canada, with permission from Natural Resources Canada.

Source : http://www.canadiana.org/hbc/_popups/PAMhbc1670-1763_e.htm (2011-01-21)

Without looking at the legal premises underpinning such a grant, specifically how such a vast territory known as Rupert's Land came to be under its dominion, let us just say that England:

prétendait l'avoir acquis depuis les découvertes de Henry Hudson, en 1610, et c'est sur ce titre qu'elle fonda la concession qu'elle en fit à la Compagnie de la Baie d'Hudson en 1670. La France, qui prétendait à un droit illimité à l'intérieur des côtes de l'Atlantique et du Saint-Laurent, contestait la prétention anglaise. Ce n'est qu'en 1713, par le traité d'Utrecht, que les deux parties manifestèrent officiellement leur accord sur l'appartenance anglaise de ce territoire[4].

By this grant, Rupert's Land was established as a British colony[5] but was not part of the British public domain. It nonetheless received the common law of England[6].

1867; at the dawn of confederation, Rupert's Land was still mainly used as a fur-trading territory and remained under the control of the Hudson's Bay Company. The British colonies were part scattered from the East coast to the West coast of British North America.

Image 2: British North America in 1862

British North America in 1862

Source : http://www.canadiangeographic.ca/mapping/historical_maps/1862.asp (2011-01-21)

II-A territory in Canada

July 1st, 1867; the colonies of Canada (Upper Canada and Lower Canada), New Brunswick and Nova Scotia united to form Canada. This union, acknowledged by the Constitution Act, 1867, established Canada as a federation and provided for the admission of further colonies within the union[7].

As previously mentioned, Rupert's Land had been granted to the Hudson's Bay Company and was not part of the British public domain. Nevertheless, the Constitution Act, 1867 expressly provided, at section 146, for the admission within the Canadian union of Rupert's Land and the North-Western Territory.

It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on the Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland[8]. (our emphasis)

The admission of these territories within Canada would appear essential if only from a geographical point of view since Rupert's Land and the North-Western Territory naturally link together the diverse British North American colonies.

Rupert's Land was surrendered by the Hudson's Bay Company to the British Crown in 1869. As attested by the Order in Council of June 23rd, 1870, the Crown accepted this surrender and proceeded, on July 15th, 1870, with the admission of Rupert's Land and of the North-Western Territory into the "Dominion of Canada". From then on it became known as "The North-West Territories"[9]. British territories and possessions in North America not already included within the Dominion of Canada and all islands adjacent to such territories or possessions[10], to the exclusion of Newfoundland, were annexed in 1880. This vast territory was to be the object of various territorial reorganisations in the years to come. The provinces of Manitoba[11] (1870), of Alberta[12] (1905) and of Saskatchewan[13] (1905) were thus created while the provinces of Manitoba, Ontario and Quebec were further expanded at the cost of the North-West Territories from which two new territories – Yukon[14] (1898) and Nunavut[15] (1999) were eventually carved out.

III- Constitutional powers and legislative powers

Beyond the territorial union of the British colonies, the Constitution Act, 1867 also provided for the Canadian constitutional framework and more specifically at sections 91 and 92, for a division of legislative powers between the central authority, the Parliament of Canada, and the regional authorities, the provinces[16].

From a legislative perspective, the division of powers serves to determine the structural elements of the legal systems that coexist in the Canadian legal framework, including the rules specific to federal law. This constitutional structure also serves to define the spectrum of rules, principles or notions that may supplement a federal rule, if need be. In many cases, these supplementary rules, principles or notions come from authority over "property and civil rights" in the province. This authority is one of the most important heads of power under the Constitution Act, 1867[17]. It is exclusive to the provinces. Jurisdiction over "property and civil rights" conferred by subsection 92(13) has been described as "a compendious description of the entire body of private law which governs the relationships between subject and subject, as opposed to the law which governs the relationship between the subject and the institutions of government"[18].

Crucial to the relationship between federal legislation and private law, this head of power does not exist for the territories. With the exception of section 146, it should be recalled that the Constitution Act, 1867 does not provide for the territories or for their status within the union. At the time of the admission of Rupert's Land and of the North-Western Territory into Canada in 1870, all heads of power provided for by the Constitution Act, 1867, including the power to legislate for their future welfare and good government, were granted to the Canadian Parliament[19]. Still in force to this date, section 4 of the Constitution Act, 1871[20] confirms that the Canadian Parliament may make provision for any territory that is not yet included in any province while the existing laws of general application in force at the time of admission within Canada, stemming from the common law of England, are to remain in force until altered by Parliament[21].

Constitutionally, the territories remain a creation of the federal government[22] and must be distinguished from the provinces. Unlike the provinces which all have equivalent status[23] and are fully autonomous within their sphere of exclusive legislative powers[24], the territories have no entrenched constitutional status or legislative powers under the Canadian Constitution.

This distinction is considerable. For our purposes, however, it has no practical impact since the Parliament of Canada has, by statute, devolved some of its constitutional powers to the territorial administrations. This devolution may, in principle, be revoked, in all or in part, at any time by Parliament and is not constitutionally entrenched[25]. Nevertheless, by the enactment of the Northwest Territories Act[26], the Yukon Act[27] and the Nunavut Act[28], extensive powers of self-government, mostly equivalent to the legislative powers granted to the provinces by the Constitution Act, 1867, including the jurisdiction over property and civil rights, now belong to the territorial legislative assemblies[29].

Since they now have authority over all matters relating to the law of property and civil rights in their respective territories, there is no doubt that the territorial legislatures, and not the Parliament of Canada, have jurisdiction to legislate. Caselaw on this point is unequivocal. The resulting legislation is territorial private law. As quoted in Re Pfeiffer:

(…) It is true that all ordinances of the Northwest Territories are made under the authority of Parliament, and in that sense could be described as laws of Canada. However, they are made by the Legislature constituted for the Territories and in that sense are laws of the Territories[30].

As well,

52. (…) while the Commissioner in Council legislates under the authority of an act of the federal Parliament, the laws enacted are laws of the Territories passed by a legislature constituted: (…)

53. It has long been recognized that the territorial assemblies, whether of the Northwest Territories or the Yukon, are not acting as agents or delegates of the federal Parliament when legislating within their sphere of powers. In this sense they have a sovereign-like legislative character[31].

It should be recalled that the private law applicable in the territories derives from the common law of England for which initial date of reception goes back to the time of the Royal Charter of the Hudson's Bay Company. However, for greater certainty, the date of reception has been established by statute of the Parliament of Canada at July 15th, 1870[32].

Left to be examined is the question of how, from a practical point of view, the rules, principles or notions derived from the law in force in the Canadian territories are taken into account in federal legislation.

IV- Rules of construction and a bit of legislative gymnastics

Unless a contrary intention is expressed in an enactment, a federal legislative text applies to the whole of Canada[33]. The law of property and civil rights plays an important part as a source for the rules, principles or notions expressed in the federal legislative corpus. This interaction between the legislative text and the private law is also known as the principle of complementarity. It has often been recognized by caselaw[34] and has been reasserted through the enactment of bijural rules of constructions at sections 8.1 and 8.2 of the Interpretation Act[35]:

8.1 Duality of legal traditions and application of provincial law

Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

8.2 Terminology

Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

This legislative statement is significant since the law of property and civil rights is the law derived from the French civil law in Quebec and the law derived from the common law of England elsewhere in Canada[36]. Beyond the dichotomy civil law – common law, it is important to understand that the rules provided for at sections 8.1 and 8.2 of the Interpretation Act, define the recourse to the private law – "property and civil rights" – of a province for the application of federal legislation in a given place. The rules are intended to simplify the interpretation, application and comprehension of federal legislation in Canada[37].

For our purposes, we must consider how this applies when federal legislation is applied in the Canadian territories. The wording of the rules of construction ties the interaction of federal legislation to the idea of "property and civil rights" which, from a constitutional point of view, is a head of power exclusive to the provinces…

Does this mean the rules of construction could not be called upon when the federal legislative corpus is to apply in one of the Canadian territories? The answer to this is no. As previously discussed, the Canadian territories, although they are not provinces and do not benefit from the division of powers under the Constitution Act, 1867, have nonetheless jurisdiction over property and civil rights within their respective territory. This is due to the devolution of powers by the Parliament of Canada.

Further, the fact that the word "province" takes a different meaning for the purposes of the federal legislation than it does in a constitutional context is also an important factor that should be noted:

That sense of the term "Provinces" clearly differs from the statutory definition of "provinces" to be found, for purposes of federal legislation generally, in s. 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21, this definition being however inapplicable to the 1867 Act[38].

Under the Interpretation Act, the word province, when used in a federal legislative enactment, means a province of Canada as well as Yukon, the Northwest Territories and Nunavut[39].

Whether for a province or a territory, the rules of construction provided for at sections 8.1 and 8.2 of the Interpretation Act are clear that where federal legislation interacts with private law rules, reference must be made, unless otherwise provided by law, to the rules, principles and notions in force in the place of application of the enactment. Therefore, when federal legislation is applied in one of the territories, where necessary, reference must be made to the law in force in the particular territory.

Conclusion

The constitutional distinction between the provinces and the territories has no practical impact on the relationship between federal legislation and private law. This relationship, although based on a wording found in Canadian constitutional texts, must first be understood in a legislative context. Due to the devolution of powers to the territorial legislative assemblies, and to the federal legislative rules of construction enacted by the Parliament of Canada, the Canadian territories, although not part of the division of powers established by the Constitution Act, 1867, are nonetheless, like the provinces, capable of exercising legislative jurisdiction in all matters falling within the category of property and civil rights.

In conclusion, although founded on a different basis, recourse to the law of general application in the interpretation and application of federal legislation in the provinces and the territories follows the same rules of construction. Unless otherwise provided by law, when interpreting and applying federal legislation, where necessary, reference must be made to the rules, principles and notions in force in the province or territory at the time the enactment is being applied.

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