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into deep water at the mouth of the River St. Maurice was held to be valid, subject to the implied restriction that the grantee should not use his powers in such a way as to interfere with the requirements of navigation.
In Queddy River Driving Boom Co. v. Davidson (x), it was held by the Supreme Court of Canada affirming the judgment of the Supreme Court of New Brunswick, that a provincial legislature cannot authorize such an obstruction of a navigable stream as would create a public nuisance. In that case there was no Dominion legislation upon the subject to alter the law as it existed in New Brunswick at the date of the Union, and the true effect of the decision would seem to be contained in an observation of Mr. Justice Strong:
"The Queddy river is shown to be a navigable tidal river, and the appellants have obstructed the navigation and thus committed an act which is prima facie a public nuisance, and which the respondent shows to be especially injurious to him as a riparian proprietor. The respondent was therefore entitled to an injunction to restrain the continuance of the obstruction, unless the appellants were able to show some legal justification for the interference with the navigation of the river caused by the construction and maintenance of these booms; they, how ever, show nothing but an Act of the provincial legislature of New Brunswick."
Following Bank of Toronto v. Lambe (y), the Supreme Court of Canada has held in Longueuil Navigation Co. Montreal (2), that a provincial legislature can impose direct taxation-e.g., a fixed annual tax of $200.00-upon ferry men and ferry companies. Ferries plying entirely within one province would, in any case, fall' within sub-section 10 of section 92, although no doubt they would have to conform to the provisions of any Act respecting "navigation and shipping" passed by the Dominion parliament within the proper scope of this sub-section.
(x) 10 S. C. R. 222; see notes to section 129, post, and also ante, p. 200. (2) 15 S. C. R. 566.
(y) 12 App. Cas. 575.
In Central Vermont Railway Co. v. St. John (a), the Supreme Court of Canada treated as almost beneath notice the contention that the boundaries of a municipality can not be extended by provincial legislation so as to include therein part of a navigable river.
"If it is beyond controversy that navigable rivers are for purposes of navigation under the control of the parliament of Canada, it is not less clearly established that the provinces have, upon these same rivers, the right to exercise all municipal and police powers, so long as their legislation creates no hindrance to navigation."-Per Fournier, J., at p. 297.
In "The Picton" (b), it was held by the Supreme Court of Canada that, under section 101 (see post) and this sub-section 10, the Dominion government was within its powers in creating the Maritime Court of Ontario, having jurisdiction over certain matters relating to navigation and shipping.
In the case of "The Farewell" (c), before the ViceAdmiralty Court of Quebec, it was held by Stuart, J., that the Dominion parliament can confer upon Vice-Admiralty Courts existing in Canada under Imperial legislation, jurisdiction in any matter relating to navigation and shipping within the territorial limits of the Dominion, and that any such Act is to be given full effect so far as its provisions are not repugnant to Imperial legislation (d).
Compare the cases which have arisen under this subsection with those under sub-section 12; and see also note (xi) to the opening clause of section 91, ante, p. 350.
12. Sea coast and inland Fisheries.
Note the curious error into which Lord Chancellor Selborne fell, in L'Union St. Jacques v. Bélisle (e), in not apply
(a) 14 S. C. R. 288.
(b) 4 S. C. R. 648.
(c) 7 Q. L. R. 380; 2 Cart. 378.
(d) See Chapter XI. ante, p. 230; also Todd, "Parl. Govt. Brit. Col.," p. 149, et seq.
(e) L. R. 6 P. C. 31.
ing the word "fisheries " to "sea coast." He speaks of the whole of the sea coast being put within the exclusive cognizance of the Dominion legislature.
See notes to section 108, and cases there cited.
The different views that may be taken of the scope of the various sub-sections of sections 91 and 92 are nowhere better illustrated than in the litigation (f) which arose out of the grant of a lease of a salmon fishery by the Minister of Marine and Fisheries under authority of a Dominion Act. The locus in quo included part of the Miramichi river, in New Brunswick, above the ebb and flow of the tide, and the lease in question purported to give an exclusive right to fish in that part of the river, regardless of the rights of the riparian proprietor. After much litigation, the invalidity of the lease, and of the clause of the Dominion Act under which it was made, was finally declared by the Supreme Court of Canada. On the subject of the rights of riparian proprietors generally, the opinions expressed by the different judges are interesting and instructive; but, confining our attention to the constitutional point involved, the Supreme Court held that the scope of this sub-section 12 is properly limited to
"subjects affecting the fisheries generally, tending to their regulation, protection, and preservation, matters of a national and general concern and important to the public, such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and the increase of the fisheries; in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth; -that the Dominion parliament could not interfere with the rights of property (with all its incidents) vested in the riparian proprietors-whether the province, or individual owners-further than laws within the above limits might
(ƒ) Terminating in The Queen v. Robertson, 6 S. C. R. 52. CAN. CON.-25
curtail their exercise; and that, having no power to interfere directly, the Dominion parliament could not authorize others to interfere with those rights. Such legislation would be confiscation, not regulation.
13. Ferries between a Province and any British or Foreign country or between two provinces.
Such undertakings, as being of extra-provincial operation, fall naturally into the classes of matters confided to the parliament of Canada. We need not, however, discuss the sub-section at length here, as the whole subject will come up for consideration under sub-section 10 of section 92.
14. Currency and Coinage.
See R. S. C. (1886) c. 30, which contains our legislation upon this subject. In Lynch v. Canada N. W. Land Co. (g), Patterson, J. refers to this and the six following classes as relating "to the regulation of the general commercial and financial system of the country at large."
15. Banking, incorporation of banks, and the issue of paper money.
The scope of this sub-section has been under consideration by the Judicial Committee of the Privy Council in Bank of Toronto v. Lambe (h). It was there "earnestly contended" that this sub-section operates to prevent a province from levying direct taxation (under section 92, sub-section 2) upon a bank; but this view was negatived:
"Their Lordships think that this contention gives far too wide an extent to the classes in question; they cannot see how the power of making banks contribute to the public objects of the province where they carry on business can interfere at all with
(g) 19 S. C. R. 204; see notes to s-s. 19, post.
(h) 12 App. Cas. 575; see Chapter X., ante, p. 213.
the power of making laws on the subject of banking, or with the power of incorporating banks. Then it is suggested
that the legislature may lay on taxes so heavy as to crush a bank out of existence, and so to nullify the power of parliament to erect banks. But their Lordships cannot conceive that when the Imperial parliament conferred wide powers of local selfgovernment on great countries such as Quebec, it intended to limit them on the speculation that they would be used in an injurious manner. People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes. There are obvious reasons for confining their powers to direct taxes and licenses, because the power of indirect taxation would be felt all over the Dominion; but whatever power falls within the meaning of class 2 is, in their Lordships' judgment, what the Imperial parliament intended to give; and to place a limit on it, because the power may be used unwisely, as all powers may, would be an error and would lead to insuperable difficulties in the construction of the Federation Act."
The provisions of the Dominion Banking Act (34 Vic. c. 5; R. S. C. c. 120), empowering banks to hold warehouse receipts as collateral security for the re-payment of monies advanced to the holders of such receipts, was held to be intra vires, and no interference with "property and civil rights" further than the fair requirements of a banking Act would warrant-Merchants Bank v. Smith (i); with which compare Beard v. Steele (j), cited in the notes to subsection 2, ante, p. 374.
In Windsor v. Commercial Bank (k), it was held in New Brunswick that a provincial legislature has authority to enact a law to impose a tax on the Dominion notes held by a bank, as portion of its cash reserve, under the Dominion Act relating to banks and banking. The correctness of this decision would seem to be settled by the judgment of the Judicial Committee of the Privy Council in Bank of Toronto v. Lambe.
(i) 8 S C. R. 512.
(j) 34 U. C. Q. B. 43.
(k) 3 Cart. 377; 3 Russ. & Geld. 420.