INDIANS.

As natural-born British subjects segregated into a class apart from the ordinary inhabitants of the Canadian provinces, the Indians seem to fall naturally into this chapter. Their lands and their 'title' thereto have been the subject of discussion elsewhere in this book; but the Indians themselves as a special subject for federal legislation call for some attention. As mentioned on a previous page," aliens and Indians are the only instances of persons as a class being specifically enumerated as a subject matter for legislation; and the view was expressed that all laws in relation to aliens and Indians as aliens or Indians respectively must emanate from the parliament of Canada. As to Indians the authorities are clear that in so far as the federal parliament has not made special provision as to their privileges and disabilities they are subject as any other inhabitant to the law of the province in which they live. Whether the federal parliament could remove them entirely from the scope of provincial law is, perhaps, doubtful; as a matter of fact, federal legislation has treated them as wards of the nation standing in need of protective measures, and has not attempted to exempt them from the laws which govern ordinary citizens further than such purely protective measures extend. Their special privileges (if any) and their special disabilities, as well as certain disabilities under which others labor in dealing with them, are designed for their own benefit only. So far as these do not. extend, Indians have the same rights and are subject to the same obligation to observe the law as the ordinary inhabitant of a province. In an early case

See the Indian Act, R. S. C. (1906), c. 81.

in Ontario, for example, it was held that an Indian, if otherwise qualified, might be elected to membership in a municipal council; and in a more recent case the Court of Appeal for that province held without hesitation that the Ontario Medical Act applied to prevent an Indian from practising without a license. In this case Mr. Justice Osler expressed the view that the federal parliament might completely withdraw Indians from the scope of provincial law; in other words, might legislate for them in all their relations in life if deemed advisable. In a later case in Manitoba the same rule of subjection to provincial law in all matters not touched by the federal Indian Act was laid down, and an Indian was held entitled to deal freely with land privately owned by him.10 The provisions of the provincial Estoppel Act were also applied in construing the Indian's deed.

Provincial Discrimination:-A more difficult question perhaps is whether a provincial Act can single out Indians as a class to be debarred from the benefit of provincial Acts. For example, can they be debarred from the franchise, if otherwise qualified to vote? In the Tomey Homma Case1 Lord Halsbury treated it as beyond question that an alien could be debarred from the provincial franchise, meaning obviously on the simple ground of alienage. If so, there would apparently be no question as to the right to debar Indians simply as Indians. Such provisions relate to the provincial constitution and the legislative power of a province in that connection (section 92, No. 1) is guarded by a non-obstante later than that in section 91. But how about municipal and school-board elections? Are they part of the constitution of the province?

R. ex rel. Gibb v. White, 5 Ont. Prac. R. 315.

9 R. v. Hill (1907), 15 Ont. L. R. 406.

10 Sanderson v. Heap (1909), 19 Man. L. R. 122. 1 Extract ante, p. 676.

IMMIGRATION.

The position of a British colony in reference to immigration has already been sufficiently dealt with, and little need be added here. There is nothing in the British North America Act to restrict in this particular the plenary powers of legislation conferred by it; and the doubt concerning the exterritorial restraint of the person necessarily incident to deportation under our immigration legislation has been set at rest by the decision of the Privy Council in the Cain & Gilhula Case. As between the Dominion and the provinces there is a concurrent power to make laws on the subject of immigration, but the federal power is paramount and provincial legislation is operative so far only as it is not repugnant to the provision made by federal law. Upon this principle an Act of the legislature of British Columbia placing restrictions upon Japanese immigration into that province was held invalid as being repugnant to the imperial Japanese treaty which had been adopted as part of the law of Canada by the Japanese Treaty Act of 1907.* And on the like ground of its repugnancy to the federal Immigration Act, the provincial Immigra tion Act, 1908, was held inoperative."

There are a number of cases in which the validity of Orders-in-Council purporting to have been passed pursuant to the Immigration Act has been questioned. Such Orders-in-Council must of course be founded on and cannot go beyond the statute; and the power conferred by the statute upon the

2 Chapter X.. ante, p. 192.

3 See ante, p. 106.

Re Nakane (1908), 13 B. C. 370; referred to ante, p. 143. "Narain Singh (1908), 13 B. C. 477.

For example, Re Narain Singh (1913), 18 B. C. 506; In re Rahim (1911), 16 B. C. 471; Re Murphy (1910), 15 B. C. 401.

Governor-General in Council cannot be delegated to any official as, for example, to the Minister of the Interior."

In an Australian case it was held that the word (6 immigration " in the Commonwealth of Australia Constitution Act, 1900,-an imperial Act-would not cover the case of an Australian returning to Australia after an absence during which the intention to return had always existed, but it was a question whether true domicil was required or mere bona fide residence and how the facts were to be investigated and determined. So far as the parliament of Canada is concerned the meaning to be put upon the word "immigration" would probably be immaterial for under the opening clause of section 91 the federal parliament would have plenary powers of exclusion apart altogether from section 95. But in the case of the provinces, section 95 must, it is conceived, be necessarily invoked and, if so, the view taken by the High Court of Australia would limit the range of provincial legislation. The further view, too, might be taken as already intimated that provincial law could not prohibit the immigration of aliens as a class, but might reach them by discrimination along lines other than that of lack of British nationality. The "Indians " of the British North America Act are, of course, the Canadian aborigines, so that they are not as a class of practical concern here. As a matter of fact, the control of immigration into Canada is now, largely, if not entirely, exercised under federal law.

'Re Behari Lal (1908), 13 B. C. 415.

8 Atty.-Gen. of Commonwealth v. Ah Sheung (1906), 4 Comm. L. R. 949.

See ante, p. 192.

CHAPTER XXXII.

"THE REGULATION OF TRADE AND COMMERCE."

(Section 91, No. 2.)

The exclusive authority of the parliament of Canada to make laws in relation to all matters coming within the class designated by the phrase "the regulation of trade and commerce" would manifestly, upon the bare words, cover a very large field of possible legislation; and naturally there has been from the very beginning much discussion as to its limits. Here, as in all other cases, the view taken by the Privy Council must govern and for that sufficient reason the judgments of the Board should first be examined. Not merely have the lines been laid down in certain individual instances but the reasons for so laying them down, the difficulties to which a different interpretation would lead, have been so stated as to make it possible to indicate with a certain degree of assurance the scope of federal authority under this head.

Parsons' Case: In the earliest and what may still be called the leading case on this subject, an Act of the Ontario legislature prescribing certain uniform conditions to be inserted in all fire insurance policies in force in the province was attacked as an unwarranted invasion of the federal field.1 The Act was upheld as a law relating to property and civil rights in the province; it was not, in the opinion of the Board, a regulation of trade and commerce within the meaning of that phrase in section 91, for reasons thus elaborated:

1

1 Parsons' Case (1881), 7 App. Cas. 96; 51 L. J. P. C. 11.