The Problem of Treaty-Making and Treaty Implementation in Canada
![handle is hein.journals/alblr19 and id is 305 raw text is: 1981] PROBLEM OF TREATY-MAKING
NOTES AND CASE COMMENTS
THE PROBLEM OF TREATY-MAKING AND
TREATY IMPLEMENTATION IN CANADA
SUSAN A. McDONALD*
The federal state contemplates a political equilibrium in which govern-
mental functions are exhaustively distributed between autonomous
central and regional authorities. Ideally, a constitution based on the con-
cept of federalism would provide for several coordinate and independent
bodies, each confined to its own jurisdicton. In practice, however, con-
flicts of policy between the central and regional governments are the in-
evitable result of such a system.
In recent years Canada has witnessed increasing federal/provincial
tension in the field of domestic policy. Claims put forward by the province
of Quebec for special status within confederation and by the province of
Alberta for the exclusive control, management and export of its natural
resources have been dominant factors in the federalist struggle. Not sur-
prisingly, this conflict of policy has extended to the international sphere
with the development of a possible federal/provincial division of treaty-
making power. In emphasizing the implications of such a division, Morris
states:1
The claim that a Canadian province should play an external role enabling it to undertake interna-
tional obligations in provincial fields of legislative jurisdiction, without the necessity of any con-
sent or supervision by Ottawa, has the most profound significance for Canadian federalism.
In order to maintain the Canadian federation, as well as the status of
Canada in the international community, Canadian foreign policy must ac-
commodate provincial interests and provincial international initiatives.
To what extent is a division of international powers between the federal
and provincial governments a viable solution?
Despite the concept of exhaustive distribution of powers between the
central and regional authorities, nowhere in the BNA Act is provision
made for the allocation of treaty-making powers. Similarly, the Act
makes no reference to foreign or external affairs. It was simply not con-
templated in 1867 that the Dominion would eventually possess interna-
tional status and the concurrent power to negotiate and conclude interna-
tional treaties; such matters were left to the control of Great Britain. This
is illustrated by s. 132 of the BNA Act which provides:2
The Parliament and government of Canada shall have all powers necessary or proper for perform-
ing [i.e. implementing] the obligations of Canada or of any province thereof, as part of the British
empire, towards foreign countries, arising under treaties between the empire and such foreign
countries.
* Of the graduating class of 1981, Faculty of Law, University of Alberta. This article won
the 1980 Alberta Law Review Essay Competiton.
1. G. L. Morris, The Treaty-Making Power: A Canadian Dilemma (1967)45 Can BarRev.
478.
2. British North America Act, 1867, 30 & 31 Vict., c-3.
1981]
PROBLEM OF TREATY-MAKING](ViewImageLocal?handle=hein.journals/alblr19&div=20&collection=&method=preview&ext=.png&size=3)
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The Problem of Treaty-Making and Treaty Implementation in Canada
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