ada otherwise directs, be made in such form and manner as may from time to time be ordered by the Governor-General in Council. Canadian &c. 121. All articles of the growth, pro- manufactures, duce, or manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces. of Customs and Excise 122. The Customs and Excise Laws Continuance of each Province shall, subject to the Laws. provisions of this Act, continue in force until altered by the Parliament of Canada. and Importation as be tween two Provinces. 123. Where Customs duties are, at Exportation the Union, leviable on any goods, wares, or merchandises in any two Provinces, those goods, wares, and merchandises. may, from and after the Union, be imported from one of those Provinces into the other of them on proof of payment of the Customs duty leviable thereon in the Province of exportation, and on payment of such further amount (if any) of Customs duty as is leviable thereon in the Province of importation. in New Brunswick (d) 124. Nothing in this Act shall affect Lumber dues the right of New Brunswick to levy the lumber dues provided in chapter fifteen of title three of the Revised Statutes of New Brunswick, or in any Act amending that (d) See note (vi) following section 126, post. Exemption of public lands, &c. Provincial Act before or after the Union, and not increasing the amount of such dues; but the lumber of any of the Provinces other than New Brunswick shall not be subject to such dues. 125. No lands or property belonging to Canada or any Province shall be liable to taxation (e). 126. Such portions of the duties and revenues over which the respective Legislatures of Canada, Nova Scotia, and New Brunswick had before the Union power of appropriation as are by this Act reserved to the respective Governments or Legislatures of the Provinces, and all duties and revenues raised by them in accordance with the special powers conferred upon them by this Act, shall in each Province form one Consolidated Revenue Fund to be appropriated for the public. service of the Province. (i) "Revenues, etc."-In arriving at a determination of the line of division of revenues, etc., effected by this group of clauses we must bear in mind what is said by Lord Watson in delivering the judgment of the Judicial Committee of the Privy Council in a case to which we have already had occasion to refer-St. Catharines' Milling Co. v. The Queen (ƒ): "There can be no a priori probability that the British Legislature, in a branch of the statute which professes to deal only (e) See note (vii) following section 126, post. (f) 14 App. Cas. 46, at p. 59. See notes to sec. 91, s-s. 24, ante. with the distribution of legislative power, intended to deprive the provinces of rights which are expressly given them in that branch of it which relates to the distribution of revenues and assets." by way of application of which rule to the case then in hand, he says: "The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial interest in those lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title." It is matter for remark, too, that in construing these sections, the Committee has taken into consideration the "high political nature" of the B. N. A. Act. In AttorneyGeneral of Ontario v. Mercer (g), they speak of "the attribution of royal territorial rights for purposes of revenue and government." Their reference in the later case to a priori probabilities indicates the use of aids to the interpretation of these sections somewhat wider than those which they have felt free to use in construing the various sub-sections of sections 91 and 92, which provide for the division of the field of subject matters proper for legislative action between the Dominion and the provinces. Owing to the reference made in these sections to the power of appropriation over the duties and revenues arising in the pre-Confederation provinces we may refer to what has been already said in chapter II. (h). Taking up the thread at the date of the Union Act, 1840, the Committee thus characterize its provisions upon this head (i): "By an Imperial statute passed in the year 1840 (3 & 4 Vic. c. 35) the provinces of Ontario and Quebec, then known as Upper and Lower Canada, were united under the name of the Province of Canada, and it was, inter alia, enacted that in consideration of certain annual payments which Her Majesty had agreed to (h) Ante, p. 35, et seq. (i) 14 App. Cas. at p. 55. (9) 8 App. Cas. 767. accept by way of civil list,' the produce of all territorial and other revenues at the disposal of the Crown arising in either of the united provinces should be paid into the Consolidated Revenue Fund of the said province. There was no transfer to the province of any legal estate in the Crown lands, which continued to be vested in the Sovereign; but all monies realized by sales or in any other manner became the property of the province. In other words, all beneficial interest in such lands within the provincial boundaries belonging to the Queen, and either producing or capable of producing revenue, passed to the province, the title still remaining in the Crown. That continued to be the right of the province until the passing of the British North America Act, 1867." The Consolidated Revenue Fund created by this Act was to be appropriated—subject to the payment of the "civil list" charges-by the Canadian parliament “for the public service in such manner as they shall think proper." We should, perhaps, point out that the 42nd section of the Union Act, 1840, limited the right of the then province to dispose of the "waste lands of the Crown," but this section was repealed by 17 & 18 Vic. c. 118, s. 6. We may refer also to the Imperial Act, 10 & 11 Vic. c. 71, which handed over to the province the control of the civil list. Prior to Confederation, therefore, the parliament of (old) Canada had the fullest power of appropriation over these territorial and other revenues, as had also the assemblies of the Maritime Provinces over the revenues therein arising (j). The scheme of division of assets, etc., effected by the B. N. A. Act has been the subject of exhaustive examination by the Judicial Committee of the Privy Council in the two cases to which we have above referred. We quote from the judgment in the later case (k) : See note (b), ante, p. 40. (k) St. Catharines' Milling Co. v. The Queen, 14 App. Cas. at p. 56 et seq. "The Act also contains careful provisions for the distribution of legislative powers and of revenues and assets between the respective provinces included in the Union, on the one hand, and the Dominion on the other. The conflicting claims to the ceded territory maintained by the Dominion and the province of Ontario are wholly dependent upon these statutory provisions. In construing these enactments it must be always kept in view that, wherever public land with its incidents is described as 'the property of' or as 'belonging to' the Dominion or a province, these expressions merely import that the right to its beneficial use, or to its proceeds, has been appropriated to the Dominion or the province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown. "Section 108 enacts that the public works and undertakings enumerated in Schedule 3 shall be the property of Canada. As specified in the Schedule, these consist of public undertakings which might be fairly considered to exist for the benefit of all the provinces federally united, of lands and buildings necessary for carrying on the customs or postal service of the Dominion, or required for the purpose of national defence, and of lands set apart for general public purposes.' It is obvious that the enumeration cannot be reasonably held to include Crown lands which are reserved for Indian use. The only other clause in the Act by which a share of what previously constituted provincial revenues and assets is directly assigned to the Dominion is section 102. It enacts that all duties and revenues' over which the respective legislatures of the united provinces had and have power of appropriation, except such portions thereof as are by this Act reserved to the respective legislatures of the provinces, or are raised by them in accordance with the special powers conferred upon them by this Act,' shall form one consolidated fund, to be appropriated for the public service of Canada. The extent to which duties and revenues arising within the limits of Ontario, and over which the legislature of the old province of Canada possessed the power of appropriation before the passing of the Act, have been transferred to the Dominion by this clause, can only be ascertained by reference to the two exceptions which it makes in favor of the new provincial legislatures. |
