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We may refer also here to the report of Sir John Prop. 52-4

tion for In

ways though it had been declared a work for the benefit of Canada, for, Workmen's says Patterson, J., 17 S.C. R., at p. 325, 4 Cart., at p. 458: "It is not Compensalegislation respecting such local works and undertakings as are juries Act. excepted from the legislative jurisdiction of the provinces by article 10, section 92 of the British North America Act. It touches civil rights in the province. The rule of law which it alters was a rule of common law in no way dependent on or arising out of Dominion legislation, and the measure is strictly of the same class as Lord Campbell's Act, which, as adopted by provincial legislation, has been applied without question to all our railways." By his report of May 10th, 1892, however, Sir J. Thompson, as Minister of Justice, expresses doubt as to the validity of a British Columbia Act which purported to subject Fence Act. Dominion railway companies to the obligations and requirements of the provincial Fence Act, thereby extending the obligation of such companies beyond those imposed upon them by the Railway Act of Canada: Hodgins' Provincial Legislation, 2nd ed., at p. 1124. In Larsen v. Nelson and Fort Sheppard R. W. Co., 4 B. C. 151, (1895), it was held that the provisions of a provincial Mechanic's Lien Act were so inconsistent with those of the Dominion Railway Act, 1888, as to priority of mortgages upon railways, that it must be inferred they were not intended to apply to Dominion railways. In Baie des Chaleurs R. W. Co., v. Nantel, R. J. Q. 9 S. C. 47, 5 Q. B. 65, (1896), the Quebec Court of Queen's Bench held that a provincial statute which provided for the sequestration of the property of a railway company subsidized by the province, when such company was Act as to insolvent, or had not complied with its charter, or had ceased to work sequestraits road, and that the sequestrator should take possession and perform tion of railall acts necessary for the construction, maintenance, administration and working of the railway, and that if he had not the means at his disposal for that, the Court might order the sheriff to seize and sell the road and its rolling stock,--applied, and was intra vires as applying, to a railway company under the legislative jurisdiction of the Dominion parliament. The majority of the Court held the Act merely one of procedure in order to attain a judicial sale, and that its provisions were accessory to this end, Pagnuelo, J., the judge of first instance, whose decision was affirmed, observing that if there were a Dominion law providing for the liquidation of such insolvent railways, the provincial legislature could not interfere, but there was no such law. Hall and Wurtele, JJ., however, dissented and held the Act ultra vires; Hall, J., because the sequestration provided for was not merely of a preservative and temporary character, and as an interim procedure simply, in contemplation of a definite sale, but involved the administration and operation of the railway as a "going concern": R. J. Q. 5 Q. B., at pp. 70-2; and he refers to the case of Burgoin v. The Montreal, Ottawa and Occidental R. W. Co., 5 App. Cas. 381, I Cart., 233, supra, p. 595. Wurtele, J., took the ground that the Act was not one merely enacting rules of procedure for carrying on proceedings by which an existing right in the property of a federal railway was sought to be enforced (such, apparently, as a right to seize under a judgment), which he held would be intra vires-but created a right which did not exist when the railway was made a federal railAs to the sale of a Dominion railway under a fi. fa., see Redfield v. Corporation of Wickham, 13 App. Cas. 467, (1888). See also p. 445, n. 3, supra.

way.

ways.

Manitoba
Crown
Lands

Prop. 52-4 Thompson, as Minister of Justice, of July 4th, 1887,' with reference to a Manitoba Act respecting the Red River Valley railway, by which power was given to appropriate so much of the public lands as should be deemed necessary for the purposes of the railway, wherein he reported that the public lands of Manitoba are for the most part, and with the exception of those especially transferred to the province, vested in Her Majesty in the right of the Dominion, and that it was not competent for the legislature of that province to authorize any one to enter upon and to appropriate for any purpose the lands so vested in Her Majesty in right of the Dominion, and accordingly recommended the disallowance of the Act, which was disallowed accordingly.

Provisions of the

relating to vesting of public prop

erty.

And bearing in mind that by No. 1 of section 91 B.N.A. Act of the British North America Act exclusive legislative authority is conferred upon the Dominion parliament to make laws in relation to the public debt and property,' and by No. 5 of section 92, upon the provincial legislatures to make laws in relation to 'the management and sale of the public lands belonging to the province, and of the timber and wood thereon,' it will be appropriate to notice here certain reported decisions upon the proper interpretation and application of those sections of the British North America Act which distribute the public property. And first as to section 108, which provides that the public works and property of each province enumerated in the third schedule to the Act shall be the property of Canada,' and as to the meaning of 'public harbours,' which are among the

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1Hodgins' Provincial Legislation, 2nd ed. at pp. 855-6.

2See p. 6, n. 1, supra.

In Prop. 52-4

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public works and property so enumerated.1 Holman v. Green it was decided that under the term 'public harbours' were included all harbours, together with the bed and soil thereof, which the public have the right to use, and not only such as at the time of Confederation had been artificially constructed or improved at the public expense; where a grant of part of the foreshore of a natural harbour, used as such by the public, was made by Public the provincial government of Prince Edward Island Harbours." subsequent to the admission of that province into the Union, the grant was held to be invalid. Ritchie, C.J., however, though he holds with the rest of the Court that the soil of such public harbours as are referred to in schedule 3 of the Act became vested in the Dominion, says that it did so "as distinct from the franchise of a port, it being clear from Lord Hale that the franchise of a port may be in one person and the ownership of the soil. within the limits of the port in another.'" And this decision of Holman v. Green has been followed

1Schedule 3 consists "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:" St. Catharines Milling and Lumber Co. v The Queen, 14 App. Cas. at p. 56, 4 Cart. at p. 120, (1888). As to Indian lands see supra p. 593, n. 2.

26 S.C. R. 707, 2 Cart. 147, (1881).

It might possibly have been thought that public harbours' meant harbours which had been declared to be such by some executive act, some exercise of the jus regium as to harbours. See Dicey on the Crown, pp. 182-3, Brown v. Reed, 2 Pugs. 206, (1874), and Nash v. Newton, per Allen, C.J., 30 N.B. at p. 618-20, (1891). By his report of January 20th, 1889, the Minister of Justice recommended the disallowance (unless sooner repealed) of a New Brunswick Act to incorporate a company to construct a subway beneath the harbour of St. John, as interfering with the public property of Canada, citing Holman v. Green : Hodgins' Provincial Legislation, 2nd ed., at p. 748. But see The Queen v. The St. John Gas Light Co., 4 Ex. C.R. 326, (1895), at p. 338.

46 S.C.R. at p. 711, 2 Cart. at p. 151.

'Public Harbours.'

Prop. 52-4 by the same Court in the recent case, In re Provincial Fisheries,1 Strong, C.J., observing :"-" The beds of public harbours, non-tidal as well as tidal, according to the case of Holman v. Green, which, as I have said, is binding upon me, are vested in the Dominion"; while Girouard, J., says":-" Relying upon the authority of Holman v. Green, I am of the opinion that public harbours,' (whatever may be the meaning of the term within section 108 and the third schedule of the British North America Act, for I am not called upon to express any opinion upon that point under the order of reference), being the property of the provinces at the time of Confederation, became the property of the Dominion, and that, as such proprietor, the Dominion became the owner of the soil and of the fisheries therein. The same rule should be applied to canals, lighthouses, piers, Sable Island, ordnance property, lands Sched. 3 of set apart for general public purposes, and other public works enumerated in the third schedule, and also lands or public property assumed by the Dominjon for fortifications or for the defence of the country under section 117." Taschereau, J., observes :+-"As to public harbours-are there any private harbours? I am bound by the decision in Holman v. Green to say that the beds thereof belong to the Dominion. If the question was not concluded by that case, I would say that the beds of public harbours belong to the provinces."

B.N.A. Act.

3

Nash v. Newton is another case on the subject

126 S.C.R. 444, (1896).

At p. 535.

At p. 564.

*At pp. 538-9.

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An appeal to the Privy Council in this case is pending as this goes to press.

"30 N. B. 610, (1891).

of public harbours under the British North America Prop. 52-4Act. There it appeared that public money of the province of New Brunswick was between 1846 and 1851 expended in opening and improving a channel through a sea wall which separated a small body of water known as Dark Harbour in the Island of Grand Manan from the Bay of Fundy, and the question was whether it thereupon became a public harbour, and it was held that it did. As Allen, C.J., says, (p. 618):-"It became then a harbour in fact, whether it had ever been so before or not."

by 'Rail.

Sched. 3 of

A curious question under section 108 also arose What passes in the Windsor and Annapolis R.W. Co. v. The ways in Western Counties R.W. Co.1 already referred to. B.N.A. Act. The government and legislature of Nova Scotia. prior to Confederation granted or leased certain running powers and other rights to the Windsor and Annapolis railway company, a private corporation, over a provincial railway known as the Windsor branch railway; and all the judges in the provincial Supreme Court, with the exception. of one, agreed that though this provincial railway became vested in Canada under section 108 of the British North America Act, and schedule 3 thereof, it did so subject to the rights of the Windsor and Annapolis railway company; and on the case ultimately reaching the Privy Council this point was finally set at rest, for their lordships say that in their opinion section 108 "had not the effect of vesting in Canada any other or larger interest in these railways," (sc., railways which were at Confederation the property of Nova Scotia), "than that which belonged to the province at the time of the

Russ. Eq. 287, 383, 3 R. & C. 377, 2 R. & G. 280, (1878), 7 App. Cas. 178, 1 Cart. 397, (1882). See, supra, pp. 586-7.

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