the B.N.A. Act. Prop. 52-4 royalties therein referred to shall belong to the several provinces, subject to any trusts existing in Sect. 109 of respect thereof, and to any interest other than that of the province in the same,' the meaning of these latter words has been recently up for determination before the Privy Council in the Indian Claims case. In 1850 certain Indians inhabiting districts now included in the province of Ontario *Subject to entered into treaties with the government of the province of Canada, acting on behalf of Her Majesty and the government of the province, for the cession of certain tracts of lands which had until that time been occupied as Indian reserves, and the lands were accordingly surrendered in consideration of certain sums paid down and certain perpetual annuities, and on the further term and agreement that in any trust,' etc. Indian case. Provisions of B.N.A. Act as to incidence of Canada. 1 1 Attorney-General for the Dominion of Canada v. Attorney-General for the Province of Ontario, 66 L.J. (P.C.) 11, (1896). This was an appeal from the award of certain arbitrators appointed for the final determination of questions which had arisen on the settlement of accounts between the Dominion of Canada and the provinces of Ontario and Quebec, on the basis of those provisions of the British North America Act, (namely, sections 109, 111, 112, and 142), which relate to the incidence, after the Union, of the debts and liabilities of the old province of Canada. In the course of the argument, Lord Watson said of section 109:-"If the Crown right was subject to a burden upon the land, the interest is to pass to the province under that burden. There was to be no change in the position of the Crown. I think the whole of debts and effect of this clause is to appropriate to the province of Ontario all the liabilities of interest in lands within that province as vested in the Crown, subject to old province all the conditions under which they were vested in the Crown: " Manuscript transcript from shorthand notes, Ist day, p. 27. And in another place he says:-"The policy of these sections of the Act, 109 and 112 and 111 and 142, when read together, appears to me to be generally this, beyond all dispute. The intention obviously was to provide that with regard to all those debts and liabilities of the old province of Canada, which were simply debts and liabilities charged generally upon the revenues of the provinces, the creditors were to be paid by the Dominion, and to a certain extent, in excess of a particular sum, the Dominion was to be recouped by the two new provinces in the proportions which might be determined under the provisions of section 142. On the other hand to this extent it is made plain-at least I hold it to be made very plain under section 109-that any debt or liability which was made a proper charge upon any property or assets passing to the province under section 109, was to remain that charge, and was not to be satisfied by the Dominion government, under section III:" Ibid. at pp. 84-5. Claims case. case the territory ceded should at any future period Prop. 52-4 produce an amount which would enable the government of the province, without incurring loss, to increase the annuities, then and in that case the sum should be increased from time to time on the scale therein provided; and the question was whether such right to augment an annuity constituted a Indian 'trust' or 'interest' in respect to the lands in favour of the Indians, within the meaning of section 109. The judgment states:-"The expressions 'subject to any trusts existing in respect thereof,' and subject to any interest other than that of the province,' appear to their lordships to be intended to refer to different classes of right. Their lordships are not prepared to hold that the word 'trust' was meant by the legislature to be strictly limited to such proper trusts as a Court of Equity would undertake to administer; but, in their opinion, must at least have been intended to signify the existence of a contractual or legal duty, incumbent upon the holder of the beneficial estate or its proceeds, to Meaning of make payment, out of one or other of these, of the interest debt due to the creditor to whom that duty ought to be fulfilled. On the other hand, an interest other than that of the province in the same appears to them to denote some right or interest in a third party, independent of, and capable of being vindicated in competition with the beneficial interest of the old province. Their lordships have been unable to discover any reasonable grounds for holding that by the terms of the treaties any independent interest of that kind was conferred upon the Indian communities. Their lordships have had no difficulty in coming to the conclusion that under the treaties the Indians obtained no right to their annuities, whether original or aug 'trust,' and in sect. 109 of B.N.A. Act. Prop. 52-4 mented, beyond a promise and agreement, which was nothing more than a personal obligation by its Governor, as representing the old province, that the latter should pay the annuities as and when they became due; that the Indians obtained no right which gave them any interest in the territory which they surrendered other than that of the province; and that no duty was imposed upon the province, whether in the nature of a trust obligation, or otherwise, to apply the revenue derived from the surrendered lands in payment of the annuities.1 'Trust' or 'interest' 109, B.N.A. Act. Such a trust' or 'interest' as is referred to in under sect. section 109 was found, in Booth v. McIntyre, to be the right possessed by the Canada Central railway, under its charter, comprised in Acts of the old province of Canada, to pass over any portion of the country between limits mentioned therein, and carry the railway through the Crown lands lying between the same. "The Crown lands through which their railway passed," says Osler, J., delivering the judgment of the Court, "were subject, it may be said, to a trust existing in favour of the company so long as they remained Crown lands, and to the interest of the company, being an interest other than that of the province in the same."3 As to Crown lands being subject to trusts. 'In his judgment in this case in the Supreme Court, 25 S.C. R. at pp. 524-5, (1895), Gwynne, J., held that the Crown's undertaking and promise constituted a trust obligation existing in respect of the proceeds arising out of the ceded territories within the meaning of section 109,"notwithstanding that letters patent of the said lands granted by the government of Canada would pass an absolute title in fee simple to the grantees thereof," and although "the estate of Her Majesty in the ungranted lands of the Crown in the province never were, nor were supposed to be, nor indeed could be, subject to any such trust. But as to Crown lands being bound by a trust, see per Strong, V.C., in Canada Central Railway Co. v. The Queen, 20 Gr. at pp. 289-90; per Killam, J., in Canadian Pacific Railway Co. v. Rural Municipality of Cornwallis, 7 M. R. at pp. 21-3; and McQueen v. The Queen, 16 S.C. R. at pp. 58, 117. 3 231 C. P. at pp. 193-4, (1880). Section 125 of the British North America Act specially provides 1 lands. Lastly as to provincial lands, in In re Provincial Prop. 52-4 Fisheries, it was held by all the judges, except Gwynne, J., that the provincial legislatures have jurisdiction to regulate times and modes of fishing in provincial waters, subject to any Dominion Provincial legislation in relation to sea coast and inland fisheries, Strong, C.J., placing this under the power of the provinces over the management and sale of the public lands of the province, (No. 9 of section 92), and their power to make laws in relation to all matters of a local or private nature in the province, (No. 16 of section 92); and Girouard, J., referring it to the former power, and to their power over property and civil rights in the province, (No. 13 of section 92). Gwynne, J., however, dissents and says: "I do not think that any Act or part of an Act of a provincial legislature, passed for the purpose of aiding in the protection of fisheries as pro- Provincial vided by an Act of the Dominion parliament, would legislation. be held to be ultra vires as being legislation upon a subject, namely, the 'fisheries,' which is exclusively within the jurisdiction of the Dominion parliament, however inoperative and unnecessary such provin fishery lands. that " no lands or property belonging to Canada or any province shall Taxation be liable to taxation;" and in Ruddell v. Georgeson, 5 W. L.T. 1, and Crown (1893), it was held that unpatented lands are not liable to be assessed or sold for taxes. Killam, J., however, at p. 2, held that the provin cial legislature has the power to tax any interest in Dominion lands, legal or equitable, which the Crown has really conferred on a subject, but not where no estate or interest has been so conferred, and refers to Canadian Pacific R. W. Co. v. Rural Municipality of Cornwallis, 7 M.R. at p. 24, q.v. ; and see S. C. in App., 19 S.C. R. at pp. 710-11. 126 S.C.R. 444, (1896). In Queen v. Robertson, 6 S.C. R. at p. 136, 2 Cart. at p. 109, (1882), the same learned judge expresses the view that the provinces 'may, without special legislation, and in exercise of their right of property, restrict the use" of provincial fisheries, "in any manner which may seem expedient, just as freely as private owners might do.” 26 S.C. R. at p. 545. Prop. 52-4 cial legislation might be; but unless as so in aid of the legislation of the Dominion parliament, I am of opinion that the subject is not within the jurisdiction of the provincial legislatures."1 reached in the Provin cial Fisheries case. were Summary of 1Cf. supra pp. 538-40. Cf. also a report in 1884 of Sir A. Campconclusions bell, as Minister of Justice: Hodgins' Provincial Legislation, 2nd ed. at p. 1209. In In re Provincial Fisheries, Strong, C.J., thus sums up his conclusions :-" First, the beds of all such waters which remained ungranted at the date of Confederation Jurisdiction public lands belonging to the provinces within the limits of which the same were situated, and as such were by section 109 of the Confederation Act vested in the provinces respectively; secondly, so long as the property in the beds of this class of rivers remains ungranted, the right of fishing in such waters belongs to the public as of common right; thirdly, the Crown in right of the provinces can, however, grant the beds of such waters and streams, in which case the exclusive right of fishing, unless expressly reserved, passes to the grantee as an incident of the ownership of the soil in the bed, and the province can also grant an exclusive right of fishing in the same waters, distinct from and without any grant of the bed; fourthly, the parliament of the Dominion cannot by its legislation in any way affect or interfere with the rights of fishing in the waters before mentioned, nor with the title and rights of the provinces in respect of such waters and the fisheries therein, save as hereinafter mentioned; fifthly, neither the provinces, except in the case of the province of Quebec, nor the Dominion, can, without legislative authority, grant exclusive rights of fishing in tidal waters, but the legislatures of the provinces may authorize such grants as regards all tidal waters within the limits and jurisdiction of the provinces respectively; sixthly, the power of legislation conferred upon parliament by section 91, sub-section 12, is to be limited, in the manner defined in the Queen v. Robertson, to the conservancy and regulation B.N.A. Act. of the fisheries and other matters there specified: 26 S.C.R. at pp. No. 12 of sect. 91, Goods 531-2. King and Girouard, JJ., seem to concur with him on all points, except that the latter holds, as has already been stated, that the restrictions of Magna Charta as to tidal waters had been removed before Confederation by colonial legislation in most, if not all, the provinces: 26 S.C.R. at p. 555, et seq. Taschereau, J., also seems to agree with Strong, C.J., so far as he touches the above points. See, also, Ex parte Wilson, 25 N.B. 209, (1885), at p. 211. And before leaving the subject of public property, reference may be made to per Tessier, J., in Attorney-General of Quebec v. Attorneyconfiscated General of the Dominion, 2 Q. L. R. at p. 241, 3 Cart. at pp. 104-5, as for customs. to goods confiscated by custom laws accruing to the Crown as represented by the Federal government, while unclaimed stolen goods accrue to the provincial government, as also lands gained from the sea by accretion. The right to fines and penalties under the criminal law is in question upon the continued reference before the same arbitrators as the Indian Claims case came before, (see supra p. 612, n. 1), pending as this goes to press; and see the report of Sir J. Thompson of April 6th, 1887: Hodgins' ibid. at p. 1107. As to provincial legislatures, (and not the Dominion parliament, as it assumed to do by 32-33 Vict. c. 29), having power to legislate respecting the forfeiture of goods of a felon, under property and civil rights in the province, see Dumphy v. Kehoe, 21 R.L. 119, (1891), and supra P. 79, n. 2. Sed quere as to the Dominion parliament not being able so to legislate under the principle of Proposition 37. Accretion. Fines and penalties. Forfeiture for felony. |