Prop. 1-2 importance. Many of the propositions formulated in this book may be said to be corollaries from it; for example, that no consent or acquiescence of the Crown in the form of non-exercise of the veto power, Corollaries. or otherwise, can render valid an Act otherwise ultra vires and unconstitutional under the British North America Act,1-that no Colonial Secretary has ex officio a right by a despatch or otherwise either to add to, alter or restrain any of the legislative powers conferred by the Act, or to authorize a subordinate legislature to do so,2-that provincial legislatures have no powers excepting the enumerated powers which are given to them by the Act. The second proposition. The Privy 3 It follows also from it that, as indicated in the notes to Proposition 4, the state of legislation and the legislative powers exercised in the various. provinces prior to Confederation can at most only be usefully referred to to throw light upon the language of the Imperial Act when that language is doubtful. The second Proposition might also be fairly said to be a corollary from the first. It is not taken in its entirety from any one judgment, but would appear to embody correctly the result of the authorities at the present time, although there are some dicta, as will be seen, opposed to it. 4 It would seem, however, from Bank of Toronto v. Lambe, that the matter is one not yet argued out before the Privy Council. Their lordships say:-"It has been suggested that the provincial legislatures possess powers of legislation either inherent in them 1 Proposition II. 2 Proposition 13. 3 Proposition 66. 412 App. Cas. at p. 587-8, 4 Cart. at pp. 23, (1887). view that exhaustive. or dating from a time anterior to the Federation Prop. 1-2 Act, and not taken away by that Act. Their lordships have not thought it necessary to call on the respondent's counsel, and, therefore, possibly, have not heard all that may be said in support of such Incline to views. But the judgments below are so carefully B.N.A. Act reasoned, and the citation and discussion of them. here has been so full and elaborate, that their lordships feel justified in expressing their present dissent on these points. . . . They adhere to the view which has always been taken by the Committee, that the Federation Act exhausts the whole range of legislative power, and that whatever is not thereby given to the provincial legislatures rests with the Parliament." Act a treaty In moving the second reading of the British North America Act in the House of Lords, Lord Lord Carnarvon said :—' -"To those resolutions " (sc., the Carnarvon. Quebec Resolutions) "all the British Provinces in North America were, as I have said, consenting parties, and the measure founded upon them must be accepted as a treaty of union."2 And he also The B.N.A. observed that, although, it was, of course, within of union. the competence of Parliament to alter the provisions of the Bill, yet he would be glad for the House to understand that the Bill partook somewhat of the nature of a treaty of union, every single clause in it had been debated upon over and over again, and had been submitted to the closest scrutiny, and, in fact, each of them represented a compromise between the several interests involved. Its inter What we have to deal with now, however, is the bearing of the Propositions under discussion upon pretation. the question of what are the proper and legitimate 1See Proposition 26 and the notes thereto. 2 Hansard, 3rd Series, vol. 185, p. 558. Prop. 1-2 methods to be applied in interpreting the provisions of the British North America Act.1 Per Not to be state of Confedera tion. In Mercer v. The Attorney-General for Ontario,o where the question before the Court was whether lands escheated to the Crown for defect of heirs belong to the province in which they are situate or to the Dominion, Henry, J., observes:-" Our attention was directed at the argument to the position of founded on Canada immediately preceding the passage of the Act things before as regards Crown or waste lands, and also to that of Upper Canada before the union with Lower Canada. Holding, however, the views I do as to the result of the union of the four provinces in 1867, I am unable to feel that much, if any, weight should be given to an argument founded on the position, as touching the question under consideration, which the provinces or any of them occupied at any time before Confederation, except so far as the Act Save when specially refers to such position. The Imperial Act was not one forced upon the provinces by an arbi referred to by it. 1In the argument in In re Portage Extension of the Red River Valley R.W., Cass. S.C. Dig., p. 487, (reported in extenso by Holland Brothers, Senate Reporters, Ottawa, printed by A. S. Woodburn, Ottawa, 1888), Mr. Mowat, who was of counsel in the case, said (at p. 62):- "In various cases that have been decided, I am not quite sure whether in this Court, or in other Counts, reference has been made to the resolutions upon which the British North America Act was founded. What degree of importance should be attached to them has not been stated, but at all events it is reasonable for judges to look at them, and, if they do find that they throw any light on the subject, they should avail themselves of that light. . . . The proceedings preliminary to the American constitution are frequently referred to in their Courts, and even their debates are referred to. We have no debates, because at the Conference the sessions were held with closed doors, and there has been no publication of what was said." But Ritchie, C.J., observes (p. 64):-"Are we to construe the Act of parliament with the resolutions? It shows that it was before the mind of the draughtsman, or those who negotiated this draft,the understanding between the representatives of the different provinces in England at the time of the passing of the Act, and it appears that when it came to be put in binding form they most materially altered it. The inference is that they altered it advisedly.” See, also, Clement's Canadian Constitution, at p. 219. 25 S.C. R. at p. 657-8, 3 Cart. at p. 43-4, (1881). Must look for all rights. trary proceeding of an overruling legislative body, Prop. 1-2 depriving them, or any of them, of legislative power. In such a case it might be contended that the extent of the deprivation must be ascertained from the Act; and as regards any subject or matter not embraced in it, the power would still remain. Here, however, the case is far different. The Act was passed, as it recites, on the application of the provinces to give to Act alone legislative sanction and authority to an agreement entered into on the part of the provinces for their federal union. The implied, if not expressed, principle acted on was, that all rights and privileges, including legislative as well as others, of each of the provinces should be surrendered; and that each should, if the union were consummated, depend subsequently for the exercise of their rights and privileges upon the Imperial Act to be passed, to give effect to the agreement for union entered into. This is patent in the Act itself, and in the resolutions of the delegates upon which it was founded and passed. I could give many reasons, and show many facts, to prove the correctness of this proposition; but it appears to me only necessary to suggest that if it were intended to be otherwise, we would reasonably expect to find provision made for intended exceptions. The absence of any such is strong presumptive evidence that none were desired." Strong, J. And there seems to be a certain analogy between Henry, J.'s, view as thus expressed as to the principle Per acted on in the British North America Act and the view of Strong, J., in St. Catharines Milling and Lumber Co. v. The Queen,1 where he says that the scheme by which the British North America Act carried out Confederation was "by first consolidating the four original provinces into one body politic, 113 S.C. R. at p. 605, 4 Cart. at p. 134, (1887). Prop. -2 -the Dominion,—and then redistributing this Do The Act a minion into provinces, and appropriating certain specified property to these several provinces," whence he argues that it follows that the residue of the property belonging to the Crown in right of the redistribu- provinces before Confederation not specifically apDominion propriated by the appropriation clauses of the Act, provinces. sections 109 and 117, to the newly-created provinces, must of necessity have remained in the Crown, and it is reasonable to presume for the use and purposes of the Dominion.1 into Per Taschereau, J. 2 And, if by "central government," and "central power," is to be understood "Imperial government," and "Imperial power," the words of Taschereau, J., in Attorney-General of Quebec v. Attorney-General of Canada, would seem to accord with those of Henry, J., just cited. After stating that "there is only one sovereignty for the whole Dominion, and this sovereignty resides in the federal executive power," The provin ces surren he adds:-" Before Confederation, each of the sovereignty. provinces was invested with this character of sover dered their And revenues. eignty; but in joining the federal union each of them made a full surrender to the central government of this sovereignty, with its privileges, prerogatives, and attributes, as also of the revenues proceeding from the exercise of said privileges, prerogatives, and 66 1The conclusion thus arrived at by Strong, J., but little harmonizes with what counsel for the provinces in their argument before the Privy Council in that case (14 App. Cas. at p. 50, 4 Cart. at p. 113) asserted, apparently correctly, to be a feature of the British North America Act. viz., that, as to legislative powers, it is the residuum which is left to the Dominion; as to proprietary rights the residuum goes to the provinces. Where property is intended to go to the Dominion, it is specifically granted, even though legislative authority over it may already have been vested in the Dominion." 21 Q.L. R. at p. 181, 3 Cart. at p. 114, (1876). |