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The Constitution of IndependenceThe Development of Constitutional Theory in Australia, Canada, and New Zealand$
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Peter C. Oliver

Print publication date: 2005

Print ISBN-13: 9780198268956

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780198268956.001.0001

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Canada I: Confederation and the Imperial Theory

Canada I: Confederation and the Imperial Theory

Chapter:
(p.111) 5 Canada I: Confederation and the Imperial Theory
Source:
The Constitution of Independence
Author(s):

PETER C. OLIVER

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198268956.003.0005

This chapter describes how Canada lacked an amending formula at Confederation and how it was assumed that the Imperial Parliament would continue to fulfil this role. An ‘Imperial Theory’ is identified, according to which, in its various forms (a) independence legislation would be futile; (b) independence would be achieved by an Act of the Imperial Parliament, but that Westminster would retain a ghostly presence; and (c) building on the last point, the newly ‘independent’ constitution could only retain its legal validity and supremacy if the Westminster Parliament remained part of the local legal system.

Keywords:   amendment, confederation, O'Sullivan, Lefroy, Clement, O'Connor, Gérin–Lajoie

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