User:Mr Serjeant Buzfuz/Third Schedule to the Constitution Act, 1867

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The Third Schedule to the Constitution Act, 1867 is part of the Constitution of Canada setting out the property of the provinces which was to be transferred to the new federal government on the achievement of Canadian Confederation. It is one of six schedules to the Constitution Act, 1867.

The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867, 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 is part of the Constitution of Canada and thus part of the supreme law of Canada.^[1] It was the product of extensive negotiations by the governments of the British North American provinces in the 1860s.^[2]^[3] The Act sets out the basic constitutional structure of Canada, including creating the federal government and defining the powers of the federal government and the provinces. Originally enacted in 1867 by the British Parliament under the name the British North America Act, 1867,^[4] in 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was re-named the Constitution Act, 1867.^[5] Since Patriation, the Act can only be amended in Canada under the amending formula set out in the Constitution Act, 1982.^[6]

Text of the Third Schedule

The Third Schedule reads:

“

The THIRD SCHEDULE.

Provincial Public Works and Property to be the Property of Canada.
1. Canals, with Lands and Water Power connected therewith.
2. Public Harbours.
3. Lighthouses and Piers, and Sable Island.
4. Steamboats, Dredges, and public Vessels.
5. Rivers and Lake Improvements.
6. Railways and Railway Stocks, Mortgages, and other Debts due by Railway Companies.
7. Military Roads.
8. Custom Houses, Post Offices, and all other Public Buildings, except such as the Government of Canada appropriate for the Use of the Provincial Legislatures and Governments.
9. Property transferred by the Imperial Government, and known as Ordnance Property.
10. Armouries, Drill Sheds, Military Clothing, and Munitions of War, and Lands set apart for general Public Purposes.^[7]

”

The Third Schedule is located at the end of the text of the Constitution Act, 1867, between the Second Schedule and the Fourth Schedule. It has not been amended since the Act was enacted in 1867.

Purpose and interpretation

Section 108 of the Constitution Act, 1867 provides that provincial property, as set out in the Third Schedule, was to be the property of the federal government upon the coming into force of the Act.^[8] Provincial property was transferred in 1867 according to section 108. Section 108 and the Third Schedule also applied in British Columbia and Prince Edward Island when those provinces entered Confederation.

There has been litigation about the meaning of the terms used in the Third Schedule, particularly "Public harbours". The issue whether something is a public harbour has arisen in litigation, often in the context of a dispute between private landholders trying to determine who owns property.^[9]

Related provisions

The Fourth Schedule sets out the property of the Province of Canada which was to be divided equally between the new provinces of Ontario and Quebec.^[10]

References

^ Constitution Act, 1982, s. 52(1).
^ Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; revised ed., Oxford, Oxford University Press, 2012.)
^ Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).
^ British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK).
^ Constitution Act, 1982, s. 52, s. 53, and Schedule, Item 1.
^ Constitution Act, 1982, Part V.
^ Constitution Act, 1867, Third Schedule.
^ Constitution Act, 1867, s. 108.
^ G.V. La Forest, "The Meaning of 'Public Harbours' in the Third Schedule to the British North America Act, 1867" (1963), 41 Canadian Bar Review 519.
^ Constitution Act, 1867, Fourth Schedule.

[1] Constitution Act, 1982, s. 52(1).

[2] Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; revised ed., Oxford, Oxford University Press, 2012.)

[3] Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).

[4] British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK).

[5] Constitution Act, 1982, s. 52, s. 53, and Schedule, Item 1.

[6] Constitution Act, 1982, Part V.

[7] Constitution Act, 1867, Third Schedule.

[8] Constitution Act, 1867, s. 108.

[9] G.V. La Forest, "The Meaning of 'Public Harbours' in the Third Schedule to the British North America Act, 1867" (1963), 41 Canadian Bar Review 519.

[10] Constitution Act, 1867, Fourth Schedule.

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