The Constitution Act, 1886 (49 & 50 Vict. c. 35 (UK)) is an act of the Parliament of the United Kingdom that forms part of the Constitution of Canada.Constitution Act, 1982, s 52(2)(b) and Schedule, Item 9.
The Constitution Act, 1886 empowers the Parliament of Canada to provide for the representation of territories in the Senate and the House of Commons. Parliament used its authority under the Constitution Act, 1886 to provide that the Northwest Territories, Nunavut and Yukon would be represented by one member each in the Senate and House of Commons.Constitution Act, 1867, s 51(2); Constitution Act, 1999 (Nunavut), s 43(3).
Provisions WHEREAS it is expedient to empower the Parliament of Canada to provide for the representation in the Senate and House of Commons of Canada, or either of them, of any territory which for the time being forms part of the Dominion of Canada, but is not included in any province:The preamble was repealed in respect of the United Kingdom, but not Canada, by the Statute Law Revision Act, 1898 (UK), 61 & 62 Vict, c 22.
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1. The Parliament of Canada may from time to time make provision for the representation in the Senate and House of Commons of Canada, or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any province thereof.Section 1 of the Constitution Act, 1886 gives Parliament legislative authority to provide for the representation of a territory in the Senate and the House of Commons. Unlike a province, a territory can be represented in either the Senate or the House of Commons or both.See, by contrast, Constitution Act, 1867, s 51A; Constitution Act, 1982, s 41(b).2. Any Act passed by the Parliament of Canada before the passing of [the Constitution Act, 1886]The Constitution Act, 1886 received royal assent on June 25, 1886. The North-West Territories Representation Act, 1886, SC 1886, c 24 was assented to by the Governor General on June 2, 1886. for the purpose mentioned in [the Constitution Act, 1886] shall, if not disallowed by the Queen,The North-West Territories Representation Act, 1886, SC 1886, c 24 was not disallowed by the Queen before June 25, 1886. be, and shall be deemed to have been, valid and effectual from the date at which it received the assent, in Her Majesty's name, of the Governor-General of Canada.
It is hereby declared that any Act passed by the Parliament of Canada, whether before or after the passing of [the Constitution Act, 1886], for the purpose mentioned in [the Constitution Act, 1886] or in the Constitution Act, 1871,As amended by Constitution Act, 1982, s 53(2) and Schedule, Item 5. has effect, notwithstanding anything in the Constitution Act, 1867,As amended by Constitution Act, 1982, s 53(2) and Schedule, Item 1. and the number of Senators or the number of Members of the House of Commons specified in the [Constitution Act, 1867] is increased by the number of Senators or of Members, as the case may be, provided by any such Act of the Parliament of Canada for the representation of any provinces or territories of Canada.Section 2 of the Constitution Act, 1886 has several effects. Section 2 retroactively validates an 1886 Act of the Parliament of Canada providing for the representation of the Northwest Territories in the House of Commons.North-West Territories Representation Act, 1886, SC 1886, c 24; Canadian Pacific Railway Co v Saskatchewan, 2024 SKKB 157 at para 38. Section 2 clarifies that Parliament can, by providing for the representation of the territories in the Senate, increase the normal and maximum total number of Senators under the Constitution Act, 1867,The maximum total number of Senators under section 28 of the Constitution Act, 1867 (presently 113) is the normal number set out in sections 21 and 22 (presently 105) plus the eight Senators who can be appointed under section 26: Constitution Act, 1867, ss 21-22, 26; Constitution Act, 1999 (Nunavut), s 43(1), (2). and, by providing for the representation of the territories in the House of Commons, increase the number of members of the House of Commons.The maximum number of members of the House of Commons is 343. The minimum number of members of the House of Commons is equivalent to the total number of Senators by virtue of section 51A of the Constitution Act, 1867 and paragraph 41(b) of the Constitution Act, 1982. The current number of members is determined under section 51 of the Constitution Act, 1867 and the Electoral Boundaries Readjustment Act, RSC 1985, c E-3 and is set out in the Proclamation Declaring the Representation Orders to be in Force Effective on the First Dissolution of Parliament that Occurs after April 22, 2024 (SI/2023-57). Section 2 also clarifies that the Parliament of Canada can do the same by providing for the representation of new provinces in the Senate and House of Commons under s 2 of the Constitution Act, 1871, as it did for Manitoba in 1870 and Alberta and Saskatchewan in 1905.Constitution Act, 1871, ss 2, 5; Manitoba Act, 1870, ss 3-4; Alberta Act, ss 4-5; Saskatchewan Act, ss 4-5. Section 2 also ensures that the residence and property qualifications under section 23 of the Constitution Act, 1867 can be adapted for Senators representing territories.Constitution Act, 1975 (No 2), s 2; Constitution Act, 1999 (Nunavut), s 44. 3. This Act may be cited as the Constitution Act, 1886.As amended by Constitution Act, 1982, s 53(1) and Schedule, Item 9.Section 3 of the Constitution Act, 1886 provides its short title. The original version of section 3 provided that the Act would be "construed together" with what is now the Constitution Act, 1867 and Constitution Act, 1871.
History The growing non-Indigenous population of the Northwest Territories led to calls for its representation in the Senate and the House of Commons in the 1870s and 1880s.
Although section 146 of the Constitution Act, 1867 contemplated the admission of Rupert's Land and the North-western Territory to Canada, it did not provide for the territories' representation in the Senate the way section 147 did for Prince Edward Island and Newfoundland. Similarly, the Constitution Act, 1871 empowered Parliament to provide for the representation of certain new provinces in the Senate and the House of Commons, but not of territories.
The Constitution Act, 1886 was enacted at the request of the government of Canada "on the basis of a formal address by both Houses of Parliament".Guy Favreau, The Amendment of the Constitution of Canada, Ottawa: Queen's Printer for Canada, 1965. This was in accordance with the precedent set concerning the Constitution Act, 1871. The Constitution Act, 1886 was enacted without provincial consultation or consent.
The Constitution Act, 1915, which increased the representation of Alberta, British Columbia, Manitoba and Saskatchewan in the Senate, and established the Senate floor rule in s 51A of the Constitution Act, 1867, according to which a province cannot have fewer members of the House of Commons than it has Senators, provided that it does not "affect the powers of the Canadian Parliament under the Constitution Act, 1886".Constitution Act, 1915 (UK), 5 & 6 Geo V, c 45, s 1(1)(vii). Like the Constitution Act, 1886, the Constitution Act, 1915 was enacted without provincial consultation or consent.
The Colonial Laws Validity Act barred Parliament and the provincial legislatures from amending the Constitution Act, 1886; this prohibition was continued by section 7(1) of the Statute of Westminster, 1931,Colonial Laws Validity Act, 28 & 29 Vict., c. 63, s. 1.Statute of Westminster, 1931, ss 2, 7. until it was repealed in respect of Canada by the Constitution Act, 1982.Constitution Act, 1982, s 53(1) & Schedule, Item 17.
Section 51 of the British North America Act, 1867, enacted by the British North America Act, 1946, required that Yukon be represented in the House of Commons by one member and that "such other part of Canada not comprised within a province as may from time to time be defined by the Parliament of Canada" also be represented by one member.British North America Act, 1946 (UK), c 63. This requirement was later reenacted as subsection 51(2) of the British North America Act, 1867 by the Parliament of Canada.British North America Act, 1952, SC 1952, c 15.
In the Upper House Reference, the Supreme Court suggested that Parliament's power under section 1 of the Constitution Act, 1886 overlaps with Parliament's more general power to make laws in relation to the "amendment...of the Constitution of Canada" (subject to certain exceptions) under subsection 91(1) of the British North America Act, 1867,Reference re Authority of Parliament in relation to the Upper House, 1 SCR 54 at 65. which was conferred on Parliament in 1949.British North America Act, 1949 (No 2) (UK), c 81; Constitution Act, 1982, s 53(1) & Schedule, Item 1. Several academics have taken the same view. Subsection 91(1) of the British North America Act, 1867 has since been replaced by section 44 of the Constitution Act, 1982, which empowers Parliament to make laws amending the Constitution of Canada in relation to the Senate and the House of Commons, provided that those laws do not alter the "fundamental nature and role" of the Senate and the House of Commons.Reference re Senate Reform, 2014 SCC 32 at paras 46, 48.
The Constitution Act, 1886 was originally known as the British North America Act, 1886, but it was renamed Constitution Act, 1886 in 1982.Constitution Act, 1982, s 53 and Schedule, Item 9; Constitution Act, 1886, s 3. The Constitution Act, 1886 was not repealed by the Constitution Act, 1982,Constitution Act, 1982, s 53(1) & Schedule, Item 9. so it continues to coexist with section 44 of the Constitution Act, 1982.
Since the Constitution Act, 1886 was enacted in English only by the Parliament of the United Kingdom, there is no official French version of the Act.Warren J Newman, "The Duty to Prepare and Put Forward for Enactment the French-Language Version of Certain Constitutional Instruments: From the Bertrand Case to the Langlois Case" (November 6, 2015) at 14: http://www.capitaldocumentation.ca/documents/NewmanW6nov2015en.pdf . Section 55 of the Constitution Act, 1982 requires the Minister of Justice to prepare a translation of the Act and that it be brought forward for enactment. Although a translation was prepared in accordance with section 55 by 1990, it has not been brought forward for enactment.
Territorial representation in Parliament There are currently three populated territories which are part of Canada, but which are not part of any province: the Northwest Territories, Nunavut and Yukon. Each territory is currently represented by one member of the Senate and one member of the House of Commons.Constitution Act, 1867, s 51(2) (representation in the House of Commons); Constitution Act, 1999 (Nunavut), s 43(3) (representation in the Senate); Fair Voting BC v Canada (Attorney General), 2023 ONSC 6516 at paras 143, 145, 149, aff'd 2025 ONCA 581, leave to appeal to SCC denied 42044 (April 2, 2026).
Members of the Senate representing the Northwest Territories, Nunavut and Yukon are selected in the same manner as other Senators and members of the House of Commons representing the territories are elected in the same manner as other members. These members have the same privileges, immunities and powers as other members of the Senate and House of Commons.Constitution Act, 1867, s 18; Parliament of Canada Act, RSC 1985, c P-1, s 4.