Section 2 of the Constitution Act, 1886 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,[3] and, by providing for the representation of the territories in the House of Commons, increase the number of members of the House of Commons.

[4] Section 2 also retroactively validates an 1886 law providing for the representation of the Northwest Territories in the House of Commons.

[6] In 1987, the Chief Justice of the Supreme Court of British Columbia noted that "representation for the territories [in the House of Commons] has never been based strictly upon population".

Similarly, the Constitution Act, 1871 empowered Parliament to provide for the representation of new provinces in the Senate and the House of Commons, but not of territories.

[15] 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".

Section 51 of the British North America Act, 1867, enacted by the British North America Act, 1946, required that Yukon be represented 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.

[21] In their dissenting opinion in the Reference re Resolution to amend the Constitution (better known as the Patriation Reference) in 1981, Chief Justice Laskin and Justices Estey and McIntyre noted that the Constitution Act, 1886 was enacted "without provincial consultation and consent" despite its effects on provincial interests.

[22] The judges were presumably referring to the risk that Parliament would use the power to dilute the provincial representation in the Senate, undermining one of its fundamental features.

[25] James Ross Hurley, a former senior public servant, noted that "a radical increase in territorial senators could, at some point, be challenged as a violation of the federal principle".

[27] 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 broader 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.

Section 3 of the Charter guarantees to Canadian citizens residing in each territory "right to vote in an election of members of the House of Commons...and to be qualified for membership therein".

Jesse Hartery suggests that section 3 of the Charter requires that each territory be represented by its own member of the House of Commons.