In Re Provincial Fisheries

In Re Provincial Fisheries
Collection
Supreme Court Judgments
Date
1896-10-13
Report
(1896) 26 SCR 444
Judges
Taschereau, Henri-Elzéar; Strong, Samuel Henry; King, George Edwin; Girouard, Désiré; Gwynne, John Wellington
On appeal from
Federal Court of Appeal
Subjects
Property law
Decision Content
Supreme Court of Canada
In Re Provincial Fisheries (1896) 26 SCR 444
Date: 1896-10-13
IN THE MATTER OF JURISDICTION OVER PROVINCIAL FISHERIES.
SPECIAL CASE REFERRED BY THE GOVERNOR GENERAL IN COUNCIL.
1895: Oct. 9, 10; 1896: Oct. 13.
Present:—Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard JJ.
Canadian waters—Property in beds—Public harbours—Erections in navigable waters—Interference with navigation—Right of fishing—Power to grant—Riparian proprietors—Great lakes and navigable rivers—Operation of Magna Charta—Provincial legislation—R. S. O. [1887] c. 24, s. 47—55 Vict. c. 10, ss. 5 to 13, 19 and 21 (O)—R. S. Q. arts. 1375 to 1378.
The beds of public harbours not granted before confederation are the property of the Dominion of Canada. Holman v. Green, (6 Can. S. C. R. 707) followed. The beds of all other waters not so granted belong to the respective provinces in which they are situate, without any distinction between the various classes of waters.
Per Gwynne J.—The beds of all waters are subject to the jurisdiction and control of the Dominion Parliament so far as required for creating future harbours, erecting beacons or other public works for the benefit of Canada under British North America Act, s. 92, item 10, and for the administration of the fisheries.
R. S. C. c. 92, "An Act respecting certain works constructed in or over navigable rivers," is intra vires of the Dominion Parliament.
The Dominion Parliament has power to declare what shall be deemed an interference with navigation and to require its sanction to any work in navigable waters. A province may grant land extending into a lake or river for the purpose of there being built thereon a wharf, warehouse or the like, and the grantee on obtaining the sanction of the Dominion may build thereon subject to compliance with R. S. C. c. 92.
Riparian proprietors before confederation had an exclusive right of fishing in non-navigable, and in navigable non-tidal, lakes, rivers, streams and waters, the beds of which had been granted to them by the Crown. Robertson v. The Queen, (6 Can. S. C. R. 52) followed. The rule that riparian proprietors own ad medium filum aquœ does not apply to the great lakes or navigable rivers. Where beds of such waters have not been granted the right of fishing is public and not restricted to waters within the ebb and flow of the tide.
Where the provisions of Magna Charta are not in force, as in the province of Quebec, the Crown in right of the province may grant exclusive rights of fishing in tidal waters, except in tidal public harbours in which, as in other public harbours, the Crown in right of the Dominion may grant the beds and fishing rights. Gwynne J. dissenting.
Per Strong C.J. and King and Girouard. JJ.—The provisions of Magna Charta relating to tidal waters would be in force in the provinces in which such waters exist (except Quebec) unless repealed by legislation, but such legislation has probably been passed by the various provincial legislatures; and these provisions of the charter so far as they affect public harbours have been repealed by Dominion legislation.
The Dominion Parliament cannot authorize the giving by lease, license or otherwise the right of fishing in non-navigable waters, nor in navigable waters the beds and banks of which are assigned to the provinces under the British North America Act. The legislative authority of Parliament under section 91, item 12, is confined to the regulation and conservation of sea-coast and inland fisheries under which it may require that no person shall fish in public waters without a license from the Department of Marine and Fisheries, may impose fees for such license and prohibit all fishing without it, and may prohibit particular classes, such as foreigners, unconditionally from fishing. The license as required will, however, be merely personally conferring qualification, and will give no exclusive right to fish in a particular locality.
Section 4 and other portions of Revised Statutes of Canada, c. 95, so far as they attempt to confer exclusive rights of fishing in provincial waters, are ultra vires. Gwynne J. contra.
Per Gwynne J.—Provincial legislatures have no jurisdiction to deal with fisheries. Whatever comes within that term is given to the Dominion by the British North America Act, section 91, item 12, including the grant of leases or licenses for exclusive fishing.
Per Strong C. J. and Taschereau, King and Girouard JJ. R. S. O. c. 24, s. 47, and ss. 5 to 13 and 19 to 21 of the Ontario Act of 1892, are intra vires except as to public harbours, but may be superseded by Dominion legislation. P. S. Q. arts. 1375 to 1378 are also intra vires. Per Gwynne J.—S. 0. c. 24, s. 47 is ultra vires so far as it assumes to authorize the sale of land covered with water within public harbours. The margins of navigable rivers and lakes may be sold if there is an understanding with the Dominion Government for protection against interference with navigation. The Act of 1892 and E. S. Q. arts. 1375 to 1378 are valid if passed in aid of a Dominion Act for protection of fisheries. If not they are ultra vires,.
SPECIAL CASE referred by the Governor General in Council to the Supreme Court of Canada for hearing and consideration pursuant to the provisions of Revised Statutes of Canada, chapter 135, "An Act respecting the Supreme and Exchequer Courts" as amended by 54 & 55 Victoria, chapter 25, section 4.
By Orders in Council passed respectively on the twenty-third day of February, 1894, and the twenty-third day of February, 1895, the following questions, seventeen in number, were referred to the Supreme Court.
1.—Did the beds of all lakes, rivers, public harbours, and other waters, or any and which of them, situate within the territorial limits of the several provinces and not granted before confederation, become under the British North America Act the property of the Dominion or the property of the province in which the same respectively are situate? And is there in that respect any and what distinction between the various classes of waters, whether salt waters or fresh waters, tidal or non-tidal, navigable or non-navigable, or between the so-called great lakes, such as Lakes Superior, Huron, Erie, &c., and other lakes, or the so-called great rivers, such as the St. Lawrence River, the Richelieu, the Ottawa, &c., and other rivers, or between waters directly and immediately connected with the sea-coast and waters not so connected, or between other waters and waters separating (and so far as they do separate) two or more provinces of the Dominion from one another, or between other waters and waters separating (and so far as they do separate) the Dominion from the territory of a foreign nation?
2.—Is the Act of the Dominion Parliament, Revised Statutes of Canada, chapter 92, intituled "An Act respecting certain works constructed in or over navigable rivers," an Act which the Dominion Parliament had jurisdiction to pass either in whole or in part?
3.—If not. in case the bed and banks of a lake or navigable river belong to a province, and the province makes a grant of land extending into the lake or river for the purpose of there being built thereon a wharf, warehouse or the like, has the grantee a right to build thereon accordingly, subject to the work not interfering with the navigation of the lake or river?
4.—In case the bed of a public harbour, or any portion of the bed of a public harbour, at the time of confederation had not been granted by the Crown, has the province a like jurisdiction in regard to the making a grant as and for the purpose in preceding paragraph stated, subject to not thereby interfering with navigation, or other full use of the harbour as a harbour, and subject to any Dominion legislation within the competence of the Dominion Parliament?
5.—Had riparian proprietors before confederation an exclusive right of fishing in non-navigable lakes, rivers, streams and waters, the beds of which had been granted to them by the Crown?
6.—Has the Dominion Parliament jurisdiction to authorize the giving by lease, license, or otherwise, to lessees, licensees, or other grantees, the right of fishing in such waters as mentioned in the last question, or any and which of them?
7.—Has the Dominion Parliament exclusive jurisdiction to authorize the giving by lease, license, or otherwise, to lessees, licensees, or other grantees, the right of fishing in such waters as mentioned in the last question, or any and which of them?
8.—Has the Dominion Parliament such jurisdiction as regards navigable or non-navigable waters, the beds and banks of which are assigned to the provinces respectively under the British North America Act, if any such are so assigned?
9,—If the Dominion Parliament has such jurisdiction as mentioned in the preceding three questions, has a provincial legislature jurisdiction for the purpose of provincial revenue or otherwise to require the Dominion lessee, licensee or other grantee to take out a provincial license also?
10— Had the Dominion Parliament jurisdiction to pass section 4 of the Revised Statutes of Canada,chapter 95, intituled "An Act respecting Fisheries and Fishing," or any other of the provisions of the said Act, or any and which of such several sections, or any and what parts thereof respectively?
11.—Had the Dominion Parliament jurisdiction to pass section 4 of the Revised Statutes of Canada, chapter 95, intituled "An Act respecting Fisheries and Fishing," or any other of the provisions of the said Act, so far as these respectively relate to fishing in waters, the beds of which do not belong to the Dominion and are not Indian lands?
12.—If not, has the Dominion Parliament any jurisdiction in respect of fisheries, except to pass general laws not derogating from the property in the lands constituting the beds of such waters as aforesaid, or from the rights incident to the ownership by the provinces and others, but (subject to such property and rights) providing in the interests of the owners and the public, for the regulation, protection, improvement and preservation of fisheries, as, for example, by forbidding fish to be taken at improper seasons, preventing the undue destruction of fish by taking them in an improper manner, or with improper engines, prohibiting obstructions in ascending rivers and the like?
13.—Had the legislature of Ontario jurisdiction to enact the 47th section of the Revised Statutes of Ontario, chapter 24, intituled "An Act respecting the sale and management of Public Lands," and sections 5 to 13, both inclusive, and sections 19 and 21, both inclusive, of the Ontario Act of 1892, intituled "An Act for the protection of the Provincial Fisheries," or any and which of such several sections, or any and what parts thereof respectively?
14.—Had the legislature of Quebec jurisdiction to enact sections 1375 to 1378, inclusive, of the Revised Statutes of Quebec, or any and which of the said sections, or any and what parts thereof?
15.—Has a province jurisdiction to legislate in regard to providing fishways in dams, slides and other constructions, and otherwise to regulate and protect fisheries within the province, subject to, and so far as may consist with, any laws passed by the Dominion Parliament within its constitutional competence?
16.—Has the Dominion Parliament power to declare what shall be deemed an interference with navigation and require its sanction to any work or erection in, or filling up of navigable waters?
17.—Had riparian proprietors before confederation an exclusive right of fishing in navigable non-tidal lakes, rivers, streams and waters, the beds of which had been granted to them by the Crown?
The following counsel appeared for the several governments interested:
Christopher Robinson Q.C. and Mr. Lefroy for the Dominion of Canada.
Æelius Irving Q.C, S. H. Blake Q.C. and Mr. J M. Clarke for the province of Ontario. Hon. T. C. Casgrain, Attorney General, for the province of Quebec.
Hon. J, W. Longley, Attorney General, for the province of Nova Scotia.
Æmelius Irving Q.C. and Mr. Clarke for the province of British Columbia.
The provinces of Prince Edward Island and Manitoba took no part in the proceedings. A factum was filed on behalf of the province of New Brunswick, but no counsel appeared to support it on the hearing.
Robinson Q.C. I appear for the Dominion, with my learned friend Mr. Lefroy. The questions are submitted, as your Lordships are aware, by the Dominion Government, in order to be advised as to the respective rights of the Dominion and the provinces with regard to various questions bearing upon the water rights and harbours, and the question of fisheries which have arisen between the Dominion and the provinces at different times. As I understand, these questions (of which there are rather a large number) are submitted, many of them, I apprehend, with a view rather to their importance in the administrative aspect, that is to say, to guide the different governments in the exercise of their administrative powers, than with regard to any necessary material or pecuniary importance that they may be to the respective governments. As to some of them, I apprehend it is of probably more importance to get them settled than to settle them either one way or the other. As to others, they do involve important interests, and both the Dominion and the provinces are contending seriously and earnestly for different views.
Perhaps it may be as well in the beginning just to endeavour, without reference to the questions, to point out, as i understand it, what are the material questions arising between the two governments. In the first place, I apprehend the discussion here will be very much shortened by the fact that, as regards the most important questions, this court, in the cases of The Queen v. Robertson[1], and Holman v. Green[2], has either expressed deliberate opinions, or has given deliberate decisions, which are conclusive on one side or the other if they are adhered to. Now, I apprehend that with regard to those questions which are actually decided, for example in The Queen v. Robertson (1), there is no object in re-discussing them here at all. There are, however, questions which are not actually decided in The Queen v. Robertson (1), I mean, which were not part of the discussion, but upon which, nevertheless, the various judges have expressed deliberate and considered opinions.
To take the question of fisheries first—perhaps that being the most important—I shall just put very shortly to your Lordships what are the difficulties which have arisen. There does not appear to be any substantial dispute that, under the power given to the Dominion over sea-coast and inland fisheries as one of the subjects entrusted to their legislative action, they have power to regulate fishing; that is to say, to prescribe close seasons, to prescribe the manner in which the fish shall be taken, and so on. Everything that may be said in popular language to consist of regulations, it seems to be admitted, belongs to them. The only question, as I understand, that there is a serious contest upon with regard to that arises on the position taken by some of the provinces, which they have acted upon in their legislation, that until the Dominion prescribes regulations they have power to prescribe them; in other words they say: "Admitting that when the Dominion chooses to come in and make fishery regulations they will supersede our regulations; in the meantime, until they do that, we have a right to make regulations." But i do not think it is seriously contested, with regard to what may be strictly regulations, that the Dominion is supreme when it chooses to act. However, the serious point is that the Dominion claims unlimited powers over the fisheries, just as the province has power over any other property; and they say: "We have a right to deal with that as you can deal with any property in your charge; we may give a person the exclusive right to fish on any land, no matter where, and we may charge him just such fee as we please." And the provinces say: "You can only regulate; the land is ours, the rights to be exercised over it, in so far as that consists of property, are ours also." The material importance of that rests in this, that it is then vain to say to the Dominion: "You will make regulations and prescribe times and manners in which fish are to be caught;" for all that involves enormous expense, the employment of fishery inspectors all over the country, and their pay, and so on. The provinces say: "You can do that and pay the expenses of it, but all the revenue to be derived from these fisheries belongs to us." Now that is a matter to be settled between them, and it may be that we have not only the power to regulate, but the power to license. A very curious result might arise, though it is perhaps not very important here, because it is not in the sense of taxation that this question comes up, but it would look as if—however this decision went—either of these parties could attain the same result under their taxing powers. The Dominion has power to raise money by any mode or system of taxation. I have never been able to satisfy myself, apart altogether from the further question as regards fishery, why they cannot say: "We will tax everyone who fishes $100." That is raising money by taxation; and the Dominion can do that if they please. On the other hand it is difficult to contend, in view of the later decisions, that the provinces, under their right to levy money for municipal purposes by direct taxation, cannot do the same thing; because your Lordships are aware the later decisions have gone in the direction —I might say it has been expressly decided in The Bank of Toronto v. Lambe[3]—that the requirement of a license is direct taxation.
Then, the second question is as to the rights of the Dominion over navigable waters. We have passed a statute, the result of which is that no person can put up any erection in navigable waters without submitting the plans to the Dominion and obtaining their assent to it; that is to say, the Dominion claim is: "It is our province, in the exercise of our jurisdiction over navigation and shipping, and over navigable waters, and over trade and commerce, to say beforehand, as they can do in the United States, what we will allow to be put up in navigable waters."On the other hand the provinces say,—New Brunswick, at all events, asserts it very distinctly and emphatically while Nova Scotia does not take such strong ground—"No; your power over navigable waters is to proceed against us when we are obstructing you, and you must satisfy a court or jury that the particular obstruction is an impediment to navigation and make us remedy it, but you cannot prescribe beforehand what we shall put in navigable waters."The Dominion say that falls short of what is necessary to enable them to exercise their legislative power. Then that has an indirect and important effect on the question of granting water lots. The provinces say: "We can grant water lots in navigable waters." Take the Detroit River, or any river; it was the common practice before confederation, and since then it has been the custom of the provinces, to grant water lots, to erect warehouses, and so on. The provinces say: "We may grant those water lots, and our grantee may do as he pleases with them, subject to your right to bring him before a court or jury, and shew that what he is doing is an impediment to navigation." And the Dominion say: "We have a far wider power; we can prescribe beforehand what shall or shall not be done in navigable waters; and if we choose to say, 'that lot shall not be filled up,' we have a right to do so, and we are to decide whether it will be an impediment to navigation or not." Tour Lordships will see that has indirectly an important bearing on the right of the provinces to grant water lots. Then what does the grantee take under it? The provinces cannot authorize impediments to navigation; there is no question about that if we shew it is an impediment to navigation. But the question is, can we say beforehand: "You shall not erect it, because we say it will be an impediment to navigation." Can they say: "No, it will not; we will go and test that." They all admit that if it is an impediment to navigation we can have it removed by the ordinary process, just as we always could; but it is an important question as to our power of making regulations which will take effect by anticipation so to speak. They may say: "We propose to put up this, it will not be an impediment to navigation, and you can prosecute us if you like, but we will test that before a jury." We say: "No, we have a higher power than that, and we are to say whether it will or will not be an impediment to navigation." Now, that is a question of practical importance.
The first question is one relating entirely to the property in the beds, as apart from legislative powers altogether. It is: "In whom are the beds vested as matters of property?" The beds of all waters, within the provinces, not granted before confederation to whom they do belong?
In Holman v. Green [4] the court has said that public harbours go to the Dominion, so that as to that class of waters the question is answered by that case.
Then we go on to ask: And is there any difference between the respective waters? We ask that in order that your Lordships may not say, "No, all of them did not pass"; we want your Lordships to tell us which passed, and which did not pass, if you answer it in that way. That is the purview of that question.
As regards many of these things there can probably be little discussion, because we claim them either upon the ground of decided cases, or upon the ground of specific clauses of the British North America Act. For example, we claim, in the first place, all rivers, tidal or non-tidal, navigable or non-navigable, ungranted at the time of the passing of the British North America Act. Then that brings up a matter which has been a question, certainly, in the minds of the Dominion Government since confederation. The late Minister of Justice, as we all know, and as his reports show, has always taken the position, under the British North America Act, in connection with section 109, "The public works and property of each province enumerated in the third schedule to this Act shall be the property of Canada," that all rivers not granted at confederation passed to the Dominion. In the third schedule of the Act we find the words, item five, "Rivers and Lake Improvements." Sir John Thompson always held and took the position that "Rivers" meant "Rivers" and rivers are the property of the Dominion Government, that all rivers which had not been granted, and which at the time of confederation were the property of the respective provinces passed to the Dominion Government. This was not part of the decision in The Queen v. Robertson[5]. But I am placing it as the distinct and earnest contention of the Dominion Government; it is not a point on which very much can be said; and there it stands. I may explain to your Lordships how it stood in the different drafts. It began in the "Quebec Resolutions" in 1864, which was the initiation of the matter, as "River and Lake Improvements." You find it in one or two out of six different drafts, "River" still; but you find it in the later drafts, and in the Parliamentary Roll as it stands at present "Rivers." It stood, I think, for the last two or three drafts and at all events now stands in the Imperial Roll, just as it was first adopted by the London Conference, "Rivers and Lake Improvements."
All that can be said is to draw your Lordships' attention to the well known rule in the construction of statutes, which was put strongly by Sir William Richards when he said that when the legislature changed their phraseology it was to be assumed they changed it intentionally, and for some reason, whatever the reason was, we have got the words "Rivers and Lake Improvements." If there had not been the words, "And Lake Improvements," there would not have been any question; that is beyond doubt. If it had just stood that the following shall be the property of the Dominion, "Rivers and Lakes," there would have been no possibility of raising a question. Then can you conceive any reason as to why rivers should be given to the Dominion? The Dominion suggests that rivers were intentionally given to them; that so far as navigable rivers go they have entire control over trade and commerce. In the United States the control over rivers to a most unlimited extent, so far as the navigable character of them is concerned, is given to the Federal Government by virtue of trade and commerce, which is entrusted to them, although in a much more limited sense than it is entrusted to our Parliament. The Dominion Government say that "Trade and Commerce," "Navigation and Shipping," and still more "Fisheries," having been entrusted to them, and rivers being intimately connected with every one of these subjects, they were intended to have the property in rivers; and it was reasonable that it should be so. They point out, that so far as navigable rivers are concerned, with regard to navigation, and so far as fisheries are concerned and rivers running from one province into the other, navigable in one part and non-navigable in another, they have legislative jurisdiction and that it was desirable that the whole subject of rivers should be vested in one power, and placed under one control; they say, therefore, that there are valid and good reasons why the intention should have been to give rivers to them. And your Lordships will see there is nothing by any means either improbable or inconsistent with that. The beds of rivers are practically of little value, except for the purpose of the water which runs over them. Well, as is said in several American cases and English cases, it is of no importance who owns the bed of Lake Ontario in the middle, but questions may arise in which the ownership may become of importance as regards the duty of legislative action, and we want to have it settled. Then we say rivers belong to us.
Then we find "All canals." Your Lordships will find in that same third schedule, "Canals with lands and water power connected therewith." We get under that, all canals which constituted a part of the public works and property of any province at the time of the coming into force of the British North America Act.
Then we claim so much of any waters, whether salt or fresh, tidal or non-tidal, navigable or non-navigable, as were occupied by lighthouses and piers, forming part of the public works of any of the provinces at the time of the coming into force of the British North America Act, or were or are appurtenant to or necessary for the use and maintenance thereof. I should have thought that under the same schedule which gives us lighthouses and piers, and Sable Island, that we should certainly be entitled to that. And likewise so much of the waters of lakes of every description as were occupied by improvements forming part of the public works and property of any of the provinces at the time of the coming into force of the British North America Act, or as were or are appurtenant to or necessary for the use and maintenance of such improvements.
Then we claim the large fresh water lakes, more particularly the chain of great lakes from Lake Superior to the St. Lawrence River and waters of any description which have been in any way set apart for general public purposes in any of the provinces, and formed part of the property of any of the provinces at the time of the coming into force of the British North America Act. That again depends on the express words of item 10 of the third schedule, "Lands set apart for general public purposes." They are expressly given to the Dominion.
Then we claim the sea-coast, subject to any transfer made of it under 54 & 55 Vic. ch. 7. That depends a good, deal upon the same questions which govern the consideration of the right to the great lakes. So does the question of territorial waters, meaning the three mile zone. With regard particularly to that, your Lordships will remember that the jurisdiction of the Crown over the three mile zone has been established by innumerable decisions, and recognized by Imperial legislation as the law of England, mainly for the purposes of defence; and we say the Dominion having been given, among other things, exclusive control over defence they should have,—and it was intended to give them—the ownership of that part of the territory which can only be used for those purposes. It can only be used for navigation, and shipping, or defence. Those being, the only useful purposes for which it can be applied, and those being under the exclusive control of the Dominion, we say they are entitled to the ownership of the land, upon the same ground, and for the same reasons. I need not now go into any discussions about the difference between the American constitution and our own, all tending in our favour, on the principles on which their constitution is framed.
Then we claim, – "Waters on land reserved for Indians," in the same way. While the Indian title remains, and while the administration and control is vested in the Dominion Government, we say the property in Indian lands is vested in the Dominion Government.
Ordnance property is expressly given to the Dominion by item 9.
Then as to "Waters on any land or public property assumed by Canada for fortification or defence." By section 117 Canada may assume "such lands as she may require for the purposes of public defence." That of course would include land covered with water.
That is all I intend to say on the questions as to the right in the beds—that is to say. of the soil under the water—of the different waters of the Dominion. The next question is: "Is the Act of the Dominion Parliament, Revised Statutes of Canada, ch. 92, intituled 'An Act respecting certain works constructed in or over navigable waters,' an Act which the Dominion Parliament had jurisdiction to pass, either in whole or in part"? Now, on reading that statute it struck me that a doubt might well occur to any one whether it was really intended to relate to any works which did not themselves affect navigation, whether it was not essential to the jurisdiction which they assumed that the works should impede navigation, although I do not think that was the intention, because there are other clauses which require any person proposing to erect a work in any navigable water to submit the plan to the Dominion Government and get their assent before they proceed with the work. For example any bridge to which the Act applies, which is not approved by the Governor in Council, etc., may be lawfully removed under the authority of the Governor in Council. "No bridge., boom, etc., shall be constructed so as to interfere with navigation, unless the site thereof has been approved by the Governor in Council." See Queddy River Driving Boom Co. v. Davidson[6]; Pennsylvania v. The Wheeling Bridge Co.[7]; South Carolina v. Georgia[8]; Gibbons v. Ogden[9]; Gilman v. Philadelphia[10]; Story on the Constitution[11], sums up the whole thing.
In Gibbons v. Ogden (4), it is said:
"Power to regulate commerce comprehends the control for that purpose and to the extent necessary of all the rivers navigable in the United States, etc. This includes necessarily the power to keep these rivers open and free from any obstruction to their navigation, to remove obstructions where they exist, and to provide as they think proper against the occurrence of the evil, and the punishment of the offenders. For these reasons Congress possesses all the powers which existed in the States before the adoption of the national constitution, and which have always existed in the Parliament in England.''
It cannot be put more strongly than that. We claim precisely the same powers.
Question five must be answered in the affirmative. Six, seven and eight all practically concern the right given to the Dominion Parliament by virtue of their jurisdiction over sea-coast and inland fisheries; and the extent of that jurisdiction is perhaps the most important question to be determined. If I understand what was as really decided in The Queen v. Robertson[12], it was a necessary part of the decision, that the land had all been granted by the Crown to the particular company before confederation. It was thought when the case was brought before Mr. Justice Gwynne that there was a portion of the land which had not been granted, and therefore the question was asked, "What would have been the rights of the Federal Government if the land had not been granted and belonged to the provinces? What are the rights of the Federal Government over any of the lands which have been granted?"
What I propose to do I may say is to point out what has been decided in The Queen v. Robertson (1), what opinions have been indicated in that case on matters not decided and what is the position taken by the Dominion Government.
First, as to what The Queen v. Robertson (1), decided. As I have said when the case came before Mr. Justice Gwynne, it was thought a portion of the land had not been granted, and therefore the question was asked of him: "What would have been the rights of the Dominion Government to license if the land had not been granted, or on so much of it as was not granted?" He answered this question.
When the case came up in appeal Mr. Lash, who appeared for the Dominion, discovered that all the land had been granted, and he did not care to present that question again; nevertheless their Lordships expressed their opinions on that question, perhaps necessarily expressed them in order to explain clearly their views on other questions. It may have been necessary to express an opinion as to their rights on lands ungranted, in order to contrast with their opinions as to the rights on lands granted. But the real decision in The Queen v. Robertson[13], was simply no more than this: In the first place the lease was a lease of the land, and unless the Dominion Government owned the land they clearly had not the power to lease the land. In the next place, all the Dominion Government had assumed to do was to give their Minister power to grant fishing licenses where the exclusive right of fishing did not already exist by law. Whether they could have given him the right or power to grant a license for fishing over all lands, without reference to that, was not determined, and that is what we desire to have determined now. Then that being the only point really decided, which would not cover any question here, the courts did express their opinion, I think very plainly, to this extent, that where an individual had lands before confederation he had an exclusive right of fishing; therefore the Minister, under that clause of the statute, had no power to grant a license over that land. Question number nine is unnecessary if question number eight is answered in the negative.
Then question number 10: "Had the Dominion Parliament jurisdiction to pass section 4 of the Revised Statutes of Canada, chapter 95, intituled 'An Act respecting Fisheries and Fishing,' or any other of the provisions of the said Act, or any, and which of said several sections, or any and what parts thereof, respectively?"
That is rather a long statute, and it is a very wide question. All I desire to say with reference to the whole situation is that it deals practically with the entire question of fishing and there is no dispute as regards the regulation of fishing and everything connected with the time and manner of taking fish. Over that, it is conceded, we have the right of jurisdiction. If we have, then what are we doing under that Act that we have not the right to do, with the exception of this licensing question, which, guarded as it is, makes it difficult to say that it is not possible to pass it? We have taken a leaf out of the Ontario book in that respect, and have guarded ourselves in the same way.
Questions 10 and 11 may practically be bracketted together. Twelve is, I think, a question arising if our power is limited to regulations for the protection, improvement and preservation of fisheries, and so on; and according to The Queen v. Robertson [14] I suppose the court will answer that it is.
Then the next question is this: "Had the legislature of Ontario jurisdiction to enact section 47, of R. S. O. ch. 24 as to the sale and management of public lands?"
That is the section authorizing the legislature of Ontario to grant water lots. Your Lordships will remember, as was stated in the original statute, 23 Vic. ch. 2 sec. 35, that there had been doubts as to the rights exercised by the province to grant water lots in navigable waters. That Act provided that it was lawful for them to do so, and always had been lawful for them to do it. It is in that respect that the question becomes important. It is quite possible—though I do not believe it would happen—that the Dominion and the various provincial governments might exercise their rights in antagonism to each other, or with a view to interfere with each other's rights; and the right to grant water lots may be more or less valuable, depending on the nature of the control.
The question as to the legislature of Quebec having the jurisdiction to enact certain sections will, I think, be decided by the extent of the general jurisdiction.
I think all those questions will be answered when your Lordships define the general jurisdiction over fisheries.
The next question brings up an important matter, not only a question of some importance as bearing on this particular subject, but a question of great general importance as bearing upon the question of our constitution. The question reads: "Has a province jurisdiction to legislate in regard to providing fish ways in dams, slides and other constructions, and otherwise to regulate and protect fisheries within the province, subject to, and so far as they may consist with, any laws passed by the Dominion Parliament within its constitutional competence?"
They claim that until we legislate on this subject they can legislate upon it, as affecting property and civil rights. We say that is plainly not the case, and if we have the jurisdiction to regulate fisheries it must, under the terms of the British North America Act, be exclusive jurisdiction; that they cannot pass legislation upon the subject of fisheries until we take it up, any more than we can pass legislation upon the general property and civil rights until they take it up. Our powers differ from the powers in the United States, where concurrent legislation is admissible. Speaking as a rule, the States may legislate until Congress sees fit to legislate in the exercise of its power, but where we get a grant of legislative power it is exclusive. The province could not pass a compulsory bankruptcy law, for instance or a bank Act because we have exclusive jurisdiction over those subjects. I quite admit that there are a great many subjects according to the last decision of the Privy Council upon the question of insolvency, which involve what may be called an intermediate or middle zone of subjects, which may belong to several large subject matters of legislation, and the provincial legislatures may make a great many regulations which, until the Dominion has legislated, may be quite within their power. Take, for instance, the regulations which the provincial government make with regard to voluntary assignments, and so on; it has been held that although, until the Dominion Parliament chooses to legislate upon bankruptcy, they may regulate those matters as an incident of bankruptcy, yet the moment the Dominion Parliament proceeds to deal with the matter the provincial legislation is superseded; but that principle cannot be applied here, inasmuch as this legislation cannot be attributed to anything but fisheries. Whatever legislation we have a right to enact with regard to fisheries they have no right to enact.
Lefroy follows for the Dominion Government.
There are two points arising in the case on which i would like to say a few words. The first point is with reference to its being reasonable that the beds of such rivers as the St Lawrence—that is, the Crown interest in them—should vest rather in the Crown as represented by the Dominion Government than in the Crown as represented by the provincial governments; and I would ask your Lordships if there is any other principle, or any view except that one, upon which the property in the beds of those rivers can be held, under our constitution; and if that is the only theory or principle on which it can be so held, whether after all that would not apply as well to the large lakes as to the large rivers, such as the St. Lawrence, or any other river forming the boundary between the two nations? The question is perhaps more clearly put in this way: We are dealing with one Crown; and the only question is whether the Crown interest in the beds of these waters is to be administered and is to be controlled by the Dominion Government and Parliament, or by the provincial government and legislature. In other words, is it reasonable and right under the general scheme of the British North America Act, to attribute the jus regium in the beds of navigable waters and rivers like the St. Lawrence, even above the ebb and flow of the tide, to the Crown as forming a constituent part of the Dominion Parliament, or to the Crown as forming a constituent part of the provincial legislature? I submit that the former is more reasonable; and that the decisions have, after all, led us up to a point where we can scarcely take any further step without reaching that conclusion; because the decisions certainly point to this, that the executive power is co-extensive with the legislative power. Mr. Justice Ramsay says, in the case which was afterwards called the Bank of Toronto v. Lambe[15], that it has never been doubted that the British North America Act attributes plenary governmental powers over certain matters to both the Dominion Parliament, and to the provincial legislatures.
And in the case of The Queen v. St. Catharines Milling Company[16], Mr. Justice Patterson says:
"The administrative and legislative functions 1 take to be made co-extensive by the Act."
In the pardoning power case the principle is stated in the broadest way by the Chancellor of Ontario[17], that legislative power carries with it a corresponding executive power, though all executive powers may be of a prerogative character.
Mr. Justice Burton in the Court of Appeal also re-echoed these words[18]. When it came before this court, the appeal was decided on another ground and the court did not pass on that point. Then, my Lords, if we have reached that point, we have the jus regium in those lands which are peculiarly pertinent, or which have peculiar relation, to certain legislative powers. The principle upon which the Crown interest in the bed of the St. Lawrence pertains to the Crown as represented by the Dominion Government, is that the legislative power over defence and responsibility for enforcing all international relations and international treaties, the control over navigation and shipping, and over trade and commerce are all within the Dominion.
It seems to be a most anomalous thing, if the Dominion Government and Parliament have exclusive jurisdiction over all these subjects to which the ownership of the bed is pertinent—and to none other legislative powers can it be said in the same sense to be pertinent—that it should not be held to attach to the Crown as a constituent part of the Dominion Parliament. But I may perhaps call in aid an Imperial enactment, so far as the argument is based upon trade and commerce, sec. 7, ch. 62 of 29 & 30 Vic. 1 call it in aid of the argument so far as it rests on the possession by the Dominion Parliament of the exclusive power to legislate in respect to trade and commerce; because by this enactment it is provided that, "All rights of the Crown in the shore and bed of the sea, and of every channel, creek, bay, estuary, and of every navigable river of the United Kingdom, as far up as the tide flows (and which are here for brevity called the foreshore), except as in the Act provided, are transferred to the management of the Board of Trade."
I call it in aid simply to this extent; that the Imperial Parliament has vested the beds of all those waters in the Board of Trade, because the Imperial Board of Trade is the Department of the Government in Great Britain which regulates trade and commerce, the manner of erections in navigable waters, and just the very subjects which my learned leader has argued come under the Dominion Parliament by virtue of its control over trade and commerce. There is nothing in the Act, I think, which can be said to conflict with this view. It is true that under section 109 lands which belong to the different provinces, at the union, continue to belong to the provinces. But limiting words come at the end of that section, that this assignment of these lands is "subject to any interest other than that of the province in the same and though it may well have been, as I submit, that the ownership of the beds, at any rate, of the great lakes, did not appear to be a matter of so much importance as to need specific mention, still if your Lordships conclude that it is reasonable to attribute the jus regium in regard to this matter to the Parliament rather than to the legislatures, then I say that such conclusion is warranted by that section, by the gift of the lands of the province being subject to any interest other than that of the province in the same.
The other point is that, in reference to the last three questions, the provincial legislatures have no jurisdiction to legislate upon the subject of inland fisheries in their own waters. The Act has given to the Dominion Parliament the exclusive power over sea-coast and inland fisheries, and the proposition of the provinces seem to amount to this. "This is very true, but we may legislate for our own inland fisheries." Now, I think that the concluding words of section 91 "Any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature, comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces" may be said at last to have received an established construction, which is that the provinces may not legislate upon a subject coming within the enumeration of subjects in section 91, saying, "Oh, well, it is only a private matter, and we may legislate upon it." The dicta of the Privy Council have all pointed in this direction. In the case of L'Union St. Jacques de Montreal v. Belisle[19], their Lordships refer to that number 16 of sec. 92. They said the Act they were there considering was undoubtedly a local and private Act; and they added, "Now section 91 qualifies it, if it be within any of the classes therein enumerated, because of its concluding words."
They refer to it in Citizen's Insurance Company v. Parsons[20]. There they said: "Though the paragraph applies in its grammatical construction only to number sixteen of section ninety-two, it would seem to have been inserted with the view of providing for cases of apparent conflict." Then again in the same judgment they refer to it as, "This endeavour to give pre-eminence to the Dominion Parliament in cases of conflict of power."
In several of the arguments before their Lordships,—for example, in Hodge v. The Queen[21]—some discussion has taken place upon these concluding words; and it has appeared to be accepted by their Lordships that the meaning is just this, that the provinces may not say: "We can legislate upon this as a local and private matter, although it touches or affects some of the enumerated matters in section 91." And then, in the recent argument upon Prohibitory Liquor Laws, Lord Herschell, in the argument on the second day, at page 68, says of it: "That provision is that you cannot get under the words 'local and private nature,' anything which is in one of the enumerated classes of section 91."
Now, I submit that they are out of court, upon the decisions as they now exist. The question is: Do these words refer only to no. 16 of section 92? The Privy Council have said in the Citizen's Insurance Company v. Parsons [22] that, though they apply in their grammatical construction to number 16, they would seem to have been inserted with the object of preventing cases of apparent conflict. There is nothing to debar the argument, that when these concluding words of section 91 say "matters of a local or private nature," they are not referring only to matters merely "of a local or private nature."
i support the view taken by Mr. Justice Gwynne in the Prohibitory Liquor Laws case [23] and which I know has been taken by very many members of this court in different cases, that the reference is to all the subjects in section 92. The construction on the other point is clearly settled now, I take it, that it means that the provinces cannot defend a law as a matter of "local, or private nature," if it comes within the enumerated subjects of section 91. They cannot defend it under number 16. Can they defend it under any other? The concluding words of section 91 are not that it shall not be deemed to come within matters of "a merely local and private nature;" but that it shall not come within "the local and private matters comprised in the class of enumerated subjects assigned to the provinces." I submit that it looks upon all the subjects in section 92 as comprising one big generic class. It seems to me to be perfectly good English to say there is one generic class of local and private matters comprised in the sixteen enumerated classes. You can say with perfect propriety that the sixteen enumerated classes comprise within their united boundaries one generic class; and then the construction would be that a province cannot legislate upon any subject in section 92—and those are the only subjects on which they can legislate—that affects or deals with a subject in section 91, on account of those concluding words, and also, I submit, on account of the words in the earlier part of section 91, which says "that notwithstanding anything in this Act," the exclusive legislative authority of the Dominion Parliament extends to all matters coming within the classes of subjects there enumerated, which must mean that notwithstanding all the powers given to the provincial legislatures, the Parliament of Canada shall exclusively legislate on these subjects. The importance of those words has not been dwelt upon as much as one might expect; but Mr. Justice Gwynne refers emphatically to them in the City of Fredericton v. The Queen[24]:
"Notwithstanding anything, whether of a local or private nature, or any other character, the exclusive legislation of the Parliament of Canada extends to all matters mentioned in sec. 91."
The real meaning of the concluding words of section 91 is to repeat and make clearer than ever the effect of the words in the prior part of the section, "notwithstanding anything in this Act." The one states the same thing as the other conversely. The first says "Notwithstanding anything given to the provinces," Parliament shall exclusively legislate upon those subjects; and the other says to the same effect. The one says that the Dominion Parliament shall alone legislate upon those subjects, and the other says the provinces may not legislate on those subjects, notwithstanding anything that has been given to them. And therefore the provinces cannot legislate under any single head of section 92 upon subjects enumerated in section 91, and cannot claim the right to legislate for the regulation of their inland fisheries. The subject of the sea-coast and inland fisheries is of a different character from bankruptcy. Very great difficulty has been experienced in arriving at what was of the essence of legislation in reference to bankruptcy and insolvency, but there is not so much difficulty in arriving at what is the essence of legislation in respect of sea-coast and inland fisheries. At all events, there is no doubt that legislation on provincial inland fisheries is legislation on inland fisheries; and if that cannot be disputed, in view of the decisions, the last three questions must be decided in a way opposed to the constitutionality of the provincial Acts.
Longley, Attorney General, for the province of Nova Scotia.
Your Lordships will be good enough to bear in mind that, while the Dominion stands here as a unit, each province has the right of presenting its own views distinctly and that if any admission is made by one province it is not to bind another. I have divided the points as I desire to submit them into four general heads. The first, as to the ownership of beds of non-navigable waters; second, as to the right of the Dominion Government to lease or license fishing privileges in non-navigable waters; third, as to the right of the Dominion and provincial governments respectively to license fishing privileges in navigable waters; and fourth, as to the ownership of the beds and shores of navigable waters, harbours, tidal rivers, and the foreshores of the sea, comprising everything that the word "foreshore" can mean,—that is the extension from high-water mark out,—and all classes of waters whatever. I think all the questions resolve themselves into these four heads.
In regard to the first question submitted The Queen v. Robertson [25] has determined it and that case seems to me to be founded so completely upon principles which do not depend entirely upon the British North America Act, or upon the application of the plain and simple principles of that Act, that I do not feel inclined to discuss it here at all.
The ownership of the beds of non-navigable streams, or the fishing privileges which go with it, cannot be pretended to be in the Dominion. The Queen v. Robertson (1) determined that the Dominion had had no right to license fishing privileges in non-navigable waters, because in respect to private owners it was vested in the owners and became an absolute piece of property, and a right which could only be affected by that legislature which has control over property and civil rights.
Now, as to the question of the right of the Dominion or the provinces respectively to license or lease privileges in waters that are navigable. I do not know that it would be sound to adopt the exact narrow rule according to the common law of England that a navigable water means a tidal water and non-navigable water means one in which the tide does not flow. In the United States this rule has been considered inapplicable and we cannot find fault with that conclusion. In England this holding coincides with the fact, but it does not coincide here. It is not necessary for the purposes of this argument to limit the control of the Dominion over navigation.
The later decisions as to the British North America Act have adopted the safe principle of interpretation with relation to both powers, and of giving the Act that fair scope which, balancing the powers nicely, will work out in the main the safest and soundest principle, most in accordance with the spirit of the Act. "Property and Civil Rights" may be interfered with by legislation respecting "Trade and Commerce" and vice versa. The courts have been compelled to balance the respective rights and put them in certain categories giving in some cases the control to the provinces and in others to the Dominion. Using the words of the Judicial Committee of the Privy Council, they say that, for certain purposes and in certain aspects, the control is in one category, and for certain other purposes and aspects in the other.
With regard to "Fisheries" you can apply the same principle both in regard to navigable and non-navigable waters; and as the sea-coast and inland fisheries are in the Dominion, we must read that in the light of other powers which are given to the provinces, and limit the application in the same manner as courts have been compelled to limit the application of "Trade and Commerce" which now clearly means the general regulation of the trade of the country, whereas there are a thousand things pertaining to the minute features of the trade of the country—say, whether liquor should be sold or not—which are vested in the provinces. The same method may be adopted in respect to protecting fishing generally, provided nothing shall be done to interfere with the proper development of our great fishing industry from a national point of view. We must not interpret in such a way as will give the Dominion any property in the fish. It is not necessary to interpret it in that way, which in fact would lead to the greatest confusion, because it is not necessary for the proper exercise of their functions that the fish should be vested in them. i take it, that the proper meaning of "Sea-coast and Inland Fisheries" is that the control of the fisheries is a public national control, similar in its scope to "Trade and Commerce," but it does not touch "Property and Civil Rights"; and that in so far as any person has property or civil rights in the fishery, or the public have civil rights in respect to non-navigable waters, these rights cannot be affected by Dominion legislation. Then according to the common law of England in regard to fishing in navigable waters the courts have held that it is a common right which each individual member of the public has; and the judicial and fair interpretation in respect to this matter of the fisheries is that the national control of fisheries, the proper regulation of it, is vested in the central authority, but it does not necessarily involve property in the fish, or a right to say that a person shall not fish unless he gets their leave. Then the Dominion have nothing to do with licensing or leasing fisheries at all. They have a right to define seasons, or to lay down a close season, for certain purposes, but they have no right to say to any person who has a property in any public water, "you shall not exercise that right." Then if it appears that the control over the property is not vested in the Dominion, and that they have not the right to license, it also follows as a matter of course, that the licensing power is with the provinces; they may license generally for the purpose of revenue, and they can even license those things the control of which in general terms is vested in the Dominion. Control of a subject does not mean ownership. They have control over "Banks and Banking" as a system, but they do not own the banks. Neither does the fact that banks and the system of banking is vested in the Dominion prevent the provinces from licensing the bank itself in order to do business. That has been done. They have control over insurance, but the licensing of insurance companies, and also making certain regulations as to conducting insurance business, is also vested in the provincial legislatures. The contention of the province is that the Dominion cannot license or lease fisheries in any kind of waters whatever in the Dominion. They can control and develop fisheries from a national sense, but they do not own the fish or the right to fish, and consequently the provinces under the general power of licensing, have the right to issue those licenses for the purpose of revenue.
Now coming to the fourth and most important consideration, I must point out that Holman v. Green [26] only professes to take away a piece of the foreshore. I contend that the beds of the harbours did not vest in the Dominion, but only the works and such parts of the land as the works were on, and such as was necessary for the purposes of the harbour. We do not deny that the Dominion has control over harbours, those that exist now and those that they may create hereafter, and the right to their creation and preservation; everything that makes a harbour of value or necessarily pertains to proper management, manipulation, control and guidance of a harbour is with them without the slightest limitation whatever. But the ownership of the soil underneath the harbour is of no importance to them for the purpose of navigation and shipping, for which they have the harbour. Any undivided authority in regard to the land will lead to interminable difficulty. It is possible to get, under the British North America Act, an interpretation of the relative powers of the provincial and Dominion Governments in relation to foreshores and harbours and all waters bounding on land while will be simple and not in any conflict of authority, and I ask that principle to be applied as embodying justly and fairly the spirit of the Act.
There is no province taking advantage of 54 & 55 Vic. ch. 7, passed by the Dominion Parliament respecting the handing over of the harbour beds to the provinces. It is only an intimation that the Dominion recognized as a sound principle that the foreshores should be vested in the provinces. That is the only value of the Act itself. We claim that the beds belong to the provinces and to their grantees, although no grantee could drive a pile there that would interfere with navigation. The proper interpretation of the British North America Act is to give the provinces the land, and to give the Dominion the power of controlling navigation absolutely. If I want to build a wharf, I must get the land to build it on from the provincial authority and then go to the Dominion Government to get their approval of the structure I propose to erect. Any other interpretation would lead to serious results.
Now, as to the lands covered by water surrounding an entire province. Nova Scotia has such land all round it with the exception of a few miles on the Isthmus. Ordinary grants of land, and practically all lands granted on the coast, go to high-water mark. When the tide is out, there is of course a large section of land remaining between these lands and low-water mark. Undoubtedly that land must go to the province under section 109, unless something takes it away. I do not ask the court to overrule Holman v. Green[27], but I have a right to press the decision into the narrowest limits. Whatever public works, and property enumerated in the schedule of the Act, canals and lands and water powers connected therewith, belonged to the provinces, and whatever property the province had in them, passed, but that was all that passed; and the difficulty is in indicating where the line should be between the public harbours and the foreshores. For instance, if all land is vested in the provinces, unless expressly taken away by some form of words in the Act, then we still have the entire seashore round the provinces. In Holman v. Green (1), the question was as to an improved natural harbour. We are discussing powers, and whether the harbours vested in the provinces, or in commissioners, or in private companies, it would not change the position, because I concede to the Dominion the most absolute control of navigation; they can prevent obstructions in harbours, bridge them, deepen them, and for that purpose they have a right to go into the bed, that is not disputed. I am trying to get a fair broad scope of the British North America Act with regard to the powers of the two authorities respectively. The Dominion can have full control over the wharves, and can say what class can be built and what class not built, and how the approaches can be guarded, and levying tolls and so on, but all that can be done without their having of necessity any property in the land. In Holman v. Green (1), Fournier J. says: "It is also admitted that the 'Queen's Wharf' is a public wharf, built by the local government with the public money voted when necessary, in the same manner as most other wharves on the island; and that this wharf was built about the year 1840, and has ever since been used as a public wharf by the numerous vessels which frequent Summerside Harbour. These admissions show conclusively that the harbour at Summerside is a public harbour." He therefore held that, under sec. 108 of the British North America Act, it belonged to the Dominion.
The learned Chief Justice made a distinction between waters abutting on foreign countries and other waters. I do not think the ownership of the land under water is affected in the slightest degree by that consideration. The ownership of the beds affects nothing from a military point of view. In case of war any part of the water or the land or any part of the bed necessary for military purposes, could be taken without any question of affecting the British North America Act in any manner. The Dominion would of course have absolute control over the waters in respect to foreign countries, but the land goes to the provinces under section 109. It is not necessary that the ownership of the land should be vested in them for military purposes.
Irving Q. C. for the Province of Ontario. My learned friend the Attorney General for Nova Scotia was good enough to say that the views that might be put forward by any of the provinces would be only taken, or should only be taken, as the view of the province respectively as put forward by the counsel of the province. That must necessarily be so, because the point here is for your Lordships to determine what the law is under the British North America Act, not to be governed by what the particular view of any one province may or may not be. Your Lordships, no doubt, will determine what in your view is the proper construction to put upon the Act, however some of the provinces may differ from others. So my learned friends who presented the case on behalf of the Dominion in several instances based their arguments upon the reasonableness of the views they presented, but I need hardly say that no part of their argument can be listened to because of their view of what is reasonably convenient, or that if others were drawing the British North America Act it would be drawn in a different spirit or different view. Unreasonable as its provisions may be argued to be, that which I have no doubt will be enunciated by your Lordships will be the construction of the Act as enacted.
I shall make some brief references with regard to the view expressed that the Dominion, under its legislative powers, can draw to itself territorial rights in lands which I think have been invariably, and by all tribunals, accepted as vested in the provinces. Where there are exceptions these exceptions are defined, and I say your Lordships have never lost sight of the broad distinction between legislative jurisdiction on the one hand, as divided between the two legislating bodies, and the territorial rights as vested in either on the other hand; and that in both cases the subjects of grant have been expressed and are not to be implied. For instance, on the one hand we have section 109, in which it states "all lands, etc., shall belong to the several provinces," and section 117 specially declares that with the exception of the lands which have been transferred by section 108 to Canada, as public works and property enumerated in the third schedule of the British North America Act, the several provinces shall "retain all their respective public property not otherwise disposed of," etc. Your Lordships have recognized the value of that word "retain" in the judgments in Mercer v. The Attorney General of Ontario[28]; although perhaps some of the judgments were not supported in the Privy Council, the effect of the Act was discussed, and all united in giving the value to that particular section. We have all lands in the province, except such as there is right in Canada to assume under section 117, and that property which by force of section 108 is declared to be the property of Canada. We hear of the jus regium as supporting territorial right, an indefinite and somewhat, I think, inaccurate expression, standing by itself, as the books show that jus regium is often used to exemplify different classes of interests in some of which there is no property whatever, but counsel used the term as equivalent to property rights, and applicable to Crown lands in the bed of the rivers. The point is taken that by certain attributes of Dominion power, treaty obligations, or certain powers of legislation, the beds of rivers may pass to, and the titles thereof be vested in, the Dominion. To that I take exception and objection. The distribution of legislative power between the Dominion and the provinces may be compared very closely in the third schedule and the 117th clause, and I wish to point out that in the third schedule every item of property is specifically granted. Take them as we go along—military and naval services and defence, armouries, drill-sheds, and so forth, munitions of war, and lands set apart for general purposes—and we see that by the 117th section they are to take whatever they require. We see (sec. 91), beacons, buoys, lighthouses, and Sable Island. Then we see navigation and shipping and quarantine, and so on. We see with reference to those that the schedule conveys to them canals, with lands and water powers connected therewith, lighthouses and piers, and Sable Island. If light houses and Sable Island were by the section conveyed "absolutely, why was it thought necessary to put them here again? Then custom-houses are all appropriated; and we see that the Dominion has the equivalent, the regulation of trade and commerce, the raising of money by any mode or system of taxation. Wherever their legislative power necessarily required land to carry it out we find an absolute and express grant, either by the schedule, or by the schedule with section 108, or by section 117, whereby that was expressly secured. But we find no grant of land as connected with sea-coast and inland fisheries. Therefore it was never intended that anything in respect to that legislative right should carry any territorial right, or any territorial property; so also in respect to navigation and other matters that I have spoken of as cognate. No property is required to be vested in the Dominion except such as appears there by the schedule.
As to the item "5. Rivers and Lake Improvements" there is a discrepancy in the statute and in the Quebec resolutions to which I refer. The French version reads "Améliorations sur les lacs et rivières" The improvements govern the whole, and that is the way it is in the journals. Also see judgment per Gwynne J. in The Queen v. Robertson[29].
An American authority, Story, has been cited as holding the view that the fact of the legislative authority in Congress drew to the United States the territory over which that power was exercised. I find the contrary at sections 1274, 1275 (6th ed.):
"Congress may authorize the making of a canal, lighthouse" * * * "military roads" * * * "but in this and the like cases the general jurisdiction of the State over the soil subject only to the rights of the United States, is not excluded."
The fact that Congress can legislate in respect to commerce on the rivers, and with reference to bridges, in no way gives the estate, or changes the title in the estate.
As to the first question, the argument is that the term "navigable" is to be applied to all rivers, lakes and waters which are navigable in fact, and that the test in England of the ebb and flow of the tide has no applicability. I, however, presume that the common law applies to our navigable waters in the same way that it is understood to apply to navigable waters in England within the ebb and flow of the tide. The points decided in The Queen v. Robertson [30] were confined to a private non-navigable river, in which the land was vested in the riparian proprietor. It left untouched the question of the beds of ungranted rivers. i think there can be no distinction as to any river bed, whether it is in the individual or in the Crown in the right of the province ungranted. My argument with reference to lands in the beds of streams, is carried to all lands covered with water anywhere within the limits of the provinces, and there is no outer fringe, there is not room for any Dominion territorial property outside of the provinces on any ground whatever, not taking public harbours into consideration. With reference to the international line, the boundary line of this country, and of many other countries, consists of dry land; and there is no difficulty that can be suggested, or no reason why it should be in any way different, because instead of land there is water. More effect than necessary has been given to the position of the Parliament and Government of Canada with reference to the treaty powers, because they have, as I understand, no power to make a treaty. All that is vested in them is the power to carry out a treaty which is made by the Imperial Government
"The Parliament and Government of Canada shall have all powers necessary and proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries."British North America Act, sec. 138.
The address on the subject of the "Quebec Resolutions" is to be found in the Journals of the House of Assembly of Canada, of 14th March, 1865, pp. 202-209, volume 24 of the first series of 1865. There are two paragraphs to be considered, the one the translation of Sea-coast and Inland Fisheries which there appears: "Les Pêcheries des cotes de la mer et de l'inférieur;" and in the third schedule "Améliorations sur les lacs et rivières" The English text is, on the 14th March, 1865, Journals of the House of Assembly, page 208, "5. River and Lake Improvements."
The argument on the question of Public Harbours as presented by Ontario, recognizes the decision of this court and deals with it as a matter not open for us to argue, but respectfully questioned.
The objectionable passage in the Dominion statute, R.S.C. ch. 92, (subject of the second question and further questioned in the sixteenth,) is that no bridge, boom, dam or aboiteau, shall be constructed so as to interfere with navigation unless the site has been approved of. That is in section two. This is not legislation relating to "Navigation;" it interferes with civil rights in the sense that property and civil rights are within the province. The power of Parliament is limited to that which is "Navigation;" and it is by no means inconsistent with navigation that there should be some use of the bed of a navigable river by the riparian proprietor, who should be able to use all his river frontage, all the bank, so that he does not interfere with navigation. The right assumed by the Dominion to declare that any Act is an interference with navigation is an interference with a civil right. The condition of the law where it was all in the hands of one legislature, as in England, was that invariably the right for a public work had to be determined, and the right for any interference with the stream had to be determined, by issuing a writ of ad quod damnum; then upon that the Crown and parties were cited to see whether the work was an interference with navigation, or an interference with the highway or not; and if not, then the private right became perfected. Here two legislatures have the whole power; first, the power in respect to civil rights; then, the powers respecting navigation. The true exercise of the powers as to navigation is one thing, but this Act, because part of the territory may be applied or become subservient to navigation, has tied up the whole frontage of the rivers against riparian proprietors, and deprived them of their civil rights, without any defined tribunal dealing with the question of fact. The law is that any one can place any erection whatever, in a navigable river, at his own risk; and, after some cases overruled, the latest law recognized is The Queen v. Betts[31], the case of a bridge, subsequently commented upon by Malins V. C. in Attorney General v. Lonsdale[32]. We deny the Dominion the right to say beforehand that there shall be no bridges because they interfere with navigation. We say that there cannot be any wrong unless it amounts to a public nuisance. There is a great power given to the Dominion, but the point is that this question is not determined at any place; the riparian bank of the whole country is, as it were, put under a ban; there is no freedom; every right is taken away from the riparian proprietor. I refer to remarks by Lord Justice Blackburn in Orr Ewing v. Colquhoun [33] respecting the law of England as to the rights of owners of land covered with water. As to the third question, I contend that the grantee of land extending into a lake or river has the right to build thereon, subject to the work not interfering with navigation.
All that is important in the 17th question is involved under the head as to where is the property. Riparian proprietors had no exclusive right before confederation because our argument is that with these navigable waters the title absolute was in the Crown.
I pass the 6th and 7th questions because they are both involved in the question of proprietary right of fishing in non-navigable waters, which at present seems to be conceded to be within the provincial power.
For the purposes of the argument of the 8th question, I assume to be admitted the position of the provinces, which is that the beds of all navigable waters were by the British North America Act vested in the provinces; and therefore the question arises on that "To whom passes the right of property in the fisheries, or what is the right of property, or what is fishery within this particular item 'Sea-coast and Inland Fisheries'?" My contention is that those being navigable waters, the right to the fish therein stands upon the same footing as the rights of fishing in navigable waters in England in places where the tide ebbs and flows; and that, if these are navigable waters in fact, it must follow that the rule of law, as far as fisheries are concerned, should be the same as in tidal waters in England, which places those fisheries in the Crown only as in right of the public, who have the common right of fishing therein. Therefore, if my argument is valid so far as to say "here we have these large navigable waters, and they are the property of the province"—which, of course, is a subject of question—then it follows that, the beds being the property of the province, the right of fishery therein is in the public as of common right, and therefore within the provincial rights of legislation in so far as civil rights and property are concerned, and by force of section 109 within the territorial rights of the provinces. The provinces have entire power over the property, and the right of taking, provided they take subject to the laws enacted by the Dominion with reference to capture or close season, or any other legislative power within the Dominion, which does not and cannot affect the right of property in the provincial fisheries.
As to no. 9, a question with reference to licenses, I submit the decision in The Queen v. Halliday[34], and other cases mentioned in the Ontario factum, and the case of Fortier v. Lambe[35]. The latter case concludes that the provinc