In Re Employment of Aliens

In Re Employment of Aliens
Collection
Supreme Court Judgments
Date
1922-02-07
Report
(1922) 63 SCR 293
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile
On appeal from
British Columbia
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In Re Employment of Aliens, (1922) 63 S.C.R. 293
Date: 1922-02-07
In The Matter of The Authority of The Legislature of British Columbia to Pass "An act to Validate and Confirm Certain Orders in Council and Provisions Relating to The Employment of Persons on Crown Property"
1921: December. 15, 16; 1922: February. 7.
Present: Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.
REFERENCE BY THE GOVERNOR-GENERAL IN COUNCIL.
Constitutional law—Jurisdiction of legislature—Employment on provincial property—Exclusion of Japanese and Chinese—Imperial treaty with Japan—"B.N.A. Act" (1867) s. 91 s.s. 25: s. 92 s.s. 5; ss. 102, 106, 108, 109, 117, 126, 132, 146—"Japanese Treaty Act" (D.) 1918— 8 & 4 Geo. V. c. 27—(B.C.) 1921, 11 Geo. V. c. 49.
The legislature of British Columbia passed an Act in 1921 (11 Geo. V. c. 49) purporting to "validate and confirm (an) order in council" which provided that "in all contracts, leases and concessions "of whatsoever kind entered into, issued or made by the government, or on behalf of the government, provision be made that no "Chinese or Japanese shall be employed in connection therewith".
Held, that the legislature of British Columbia had not the authority to enact this legislation. Idington J. contra and Brodeur J. contra as to the part relating to Chinese.
The Japanese Treaty, made in 1911 between England and Japan, was "sanctioned and declared to have the force of law in Canada'' by a Dominion statute enacted under the powers conferred by s. 132 of the B.N.A. Act (3 & 4 Geo. V. c. 27). Paragraph 3 of article 1 of the treaty states that the subjects of the high contracting parties "shall in all that relates to the pursuit of their "industries, callings, professions, and educational studies be placed "in all respects on the same footing as the subjects of citizens "of the most favoured nation."
Per Davies C. J. and Duff and Brodeur JJ.—The provincial statute of 1921, as to its part relating to Japanese, is ultra vires of the legislature of the province as being in conflict with the Japanese Treaty. Idington J. contra and Anglin and Mignault JJ. expressing no opinion. REFERENCE by the Governor-General in Council of questions respecting the validity of chapter 49 of the Statutes of British Columbia, 1921, for hearing and consideration pursuant to section 60 of the "Supreme Court Act". The questions so submitted are as follows:—
A report of the committee of the privy council appointed by his excellency the governor-general-in-council, on the 12th november, 1921.
The Committee of the Privy Council have had before them a report dated 12th October, 1921, from the Minister of Justice, submitting that the Consul General of Japan, by letter of 4th of May, 1921, addressed to the Minister of Justice, suggested that Your Excellency should exercise the power of disallowance with regard to a statute of British Columbia, assented to April 2nd, 1921, entitled "An Act to "Validate and confirm certain Orders-in-Council and "provisions relating to the employment of persons "on Crown Property", being Chapter 49 of the volume of statutes for the current year; the Consul General alleging that the Act is ultra vires.
It is enacted by section 2 of this statute that two Orders of the Lieutenant Governor of British Columbia in Council, dated 28th of May, 1902, and 18th, June, 1902, respectively, copies of which are scheduled to the Act, are validated and confirmed, and that they shall for all purposes be deemed to have been valid and effectual from the respective dates of their approval. These Orders in Council were designed to give effect to a resolution of the Legislative Assembly of British Columbia passed on 15th of April, 1902, whereby it was resolved "that in all contracts, leases and concessions of whatsoever kind entered" "into, issued, or made by the government, or on be-"half of the government, provision be made that no "Chinese or Japanese shall be employed in connection "therewith".
Moreover, it is enacted by section 3 of the statute in question as follows:—
"3. (1) Where in any instrument referred to in the said Orders in Council, or in any instrument of a similar nature to any of those so referred to, issued by any minister or officer of any department of the government of the province, any provision has heretofore been inserted or is hereafter inserted relating to or restricting the employment of Chinese or Japanese, that provision shall be deemed to have been and to be valid and always to have had and to have the force of law according to its tenor.
(2) Every violation of or failure to observe any such provision on the part of any licensee or other person to whom the instrument is issued or delivered or with whom it is entered into, or who is entitled to any rights under it, whether the violation of failure has heretofore occurred or hereafter occurs, shall be sufficient ground for the cancellation of that instrument, and the Lieutenant Governor in Council may cancel that instrument accordingly".
Upon reference to the Attorney General of British Columbia he reports that his government maintains the constitutionality of the Act, and expresses his intention of taking proceedings which would bring the question before the courts.
As the validity of this statute depends upon the interpretation of the legislative powers of the province under the "British North America Act", and as the time for the disallowance will expire on the 18th of April 1922, one year after the date on which the authenticated copy of the Act was received by the Secretary of State, the Minister states that he considers it desirable that Your Excellency's Government should be advised as to the enacting authority of the province by the Supreme Court of Canada.
The Minister accordingly recommends that pursuant to the authority of Section 60 of the "Supreme Court Act" the following questions be referred to the Supreme Court of Canada for hearing and consideration, viz:
1. Had the legislature of British Columbia authority to enact Chapter 49 of its statutes of 1921, entitled "An Act to validate and confirm certain Orders-in "Council and provisions relating to the employment "of persons on crown property"?
2. If the said Act be in the opinion of the court ultra vires in part then in what particulars is it ultra vires ?
The Committee concur in the foregoing recommendation and submit the same for Your Excellency's approval.
(Signed) Rodolphe Boudreau.
Clerk of the Privy Council.
E. L. Newcombe K.C. for the Attorney-General for Canada.
Sir C. H. Tupper, K.C. for the Japanese Association
Charles Wilson, K.C. for the Shingle Manufacturers' Association of B.C. J. W. de B.Farris K.C., Attorney-General for British Columbia with J. A. Ritchie K.C
E. L. Newcombe K.C. for the Attorney-General for Canada:—The legislation is wholly ineffective: 1° because, by sect. 91 of the B.N.A. Act, it is within the exclusive legislative authority of the Dominion to make laws for the peace, order and good government of Canada with relation to any matter coming within the class of subjects described as "naturalization and aliens"; Union Colliery Co. of B.C. v. Bryden[1]; Cunningham v. Tomey Homma[2]; 2° because the legislation conflicts with the "Japanese Treaty Act, 1913", as the province attempts to discriminate and to place Japanese on a footing less favourable than the subjects or citizens of more favoured nations. There is only one Crown and the Crown cannot by its provincial legislation either directly or indirectly break the treaty engagement.
Sir C. H. Tupper, K.C. for the Japanese Association. The Crown is bound by a treaty to which it is a party; Theodore v. Duncan[3].
The provincial legislation has for its purpose the object of depriving the Chinese and Japanese of any opportunity of earning their living in the industrial development of the province.
Charles Wilson, K.C. for the Shingle Manufacturers' Association of B.C.
J. W. de B. Farris K.C., Attorney-General for British Columbia with J. A. Ritchie K.C—The Crown, while unquestionably one, whether in its executive or legislative capacity, has various aspects; but, within the legislative domain allotted to the provinces by the b.n.a. Act, the right of each province to make laws for its purpose is as full and absolute as the right of either the Imperial or Dominion Parliament to make laws for Imperial or Dominion purposes.
The interest of a province in its Crown lands and other property is as extensive as the interest of a private person in lands held by him in fee to his own use or in his own personal property; St. Catherine's Milling and Lumber Co. v. The Queen[4]; Smylie v. The Queen[5].
The province has the power to legislate as might be deemed best in its interest in regard to the management of its Crown lands of which the province, upon its entry into the Union in 1871, became seized of the "entire beneficial interest".
An Imperial treaty (except possibly a treaty of peace) or an Act of the Dominion Parliament cannot override an existing law of a self-governing province.
A treaty made in time of peace does not of itself without statutory authority extend so far as to alter the law either as regards individual rights in property, rights of action or as to personal liberty: The Parlement Belge[6]; Clements, Canadian Constitution, 3rd ed. 136; and if so, such treaty cannot do so in regard to the public rights of a self-governing province.
The cases of Union Colliery Co. of B.C. v. Bryden[7], Tomey Homma Case[8] and Quong-Wing v. The King[9] are not applicable; as this provincial legislation does not prohibit any Chinese or Japanese from being employed upon the Crown property, but it establishes only for the province a policy in regard to the management of a provincial property: this legislation being, in effect, a self-denying ordinance, limiting the own freedom of the province in the uses of its own property. The Chief Justice.—In the matter submitted by His Excellency The Governor General in Council for our hearing and consideration respecting the validity of chapter 49 of the statutes of British Columbia, 1921, two questions were asked:
1. Had the legislature of British Columbia authority to enact chapter 49 of its statutes of 1921, entitled "An Act to validate and confirm certain orders in council and provisions relating to the employment of persons on crown property?
2. If the said Act be in the opinion of the court ultra vires in part only, then in what particulars is it ultra vires?
The orders in council which are scheduled to the Act in question and are attempted to be validated thereby provide that "in all contracts, leases and concessions of whatsoever kind entered into, issued or made by the Government, or on behalf of the Government, provision be made that no Chinese or Japanese shall be employed in connection therewith." These general words "contracts, leases and concessions" are expressly defined in the statute referred to us to include the various instruments specified in the long enumeration contained in the order in council dated 28th June, 1902. Moreover, by the earlier order in council dated 28th May, 1902, set out in the schedule to the Act, "all tunnel and drain licenses issued by virtue of the powers conferred by section 58 of the 'Mineral Act' and section 48 of the 'Placer Mining Act'", and "all leases granted under the provisions of part 7 of the 'Placer Mining Act'" are to be read subject to the clause or prohibition in question. I am of the opinion that the description "leases, licenses, contracts and concessions", embodied in the orders in council attempted to be validated by the said Act is comprehensive enough to comprise substantially all instruments which may be issued by the provincial government in the administration of its assumed powers, except grants of land in fee, and that the object and intention of these orders in council clearly is to deprive the Chinese and Japanese of the opportunities which would otherwise be open to them of employment upon government works carried out by the holders of provincial leases, licenses, contracts or concessions.
By section 2 of the statute it is enacted that "the said orders in council shall, for all purposes, be deemed to be and to have been valid and efficient according to their tenor from the respective dates of their approval."
Section 3 sub-sec. (1) goes further and enacts: "Where in any instrument referred to in the said orders in council, or in any instrument of a similar nature to any of those referred to, issued by any minister or officer of any department of the government of the province, any provision has heretofore been inserted or is hereafter inserted relating to or restricting the employment of Chinese or Japanese, that provision shall be deemed to have been and to be valid and always to have had and to have the force of law according to its tenor."
In this manner the legislature attempts to legalize any prohibition or restriction of any employment of Chinese or Japanese upon works of or under the government or its lessees, licensees, or contractees which in the discretion of any minister or departmental officer might be embodied in the instrument. In my opinion this legislation is ultra vires the provincial legislature: (1) because, by section 91 of the "British North America Act", 1867, it is within the exclusive legislative authority of the Dominion, notwithstanding anything to the contrary in that Act, to make laws "for the peace, order and good government of Canada" with relation to any matters coming within the classes of subjects described in s.s. 25 of s. 91 as "naturalization and aliens."
This provision of the "British North America Act, 1867", was construed by the Judicial Committee of the Privy Council with relation to British Columbia legislation affecting Chinese and Japanese in two appeals to that Board: Union Colliery Co. v Bryden[10] and Cunningham v. Tomey Homma[11].
I confess it seems somewhat difficult to reconcile on all points the observations made by their Lordships who respectively delivered the judgments of the Judicial Committee in these cases. The interpretation of the Bryden decision given by the Lord Chancellor when delivering judgment of the Board in the Tomey Homma case must be accepted by all courts in Canada. He said page 157. "That case (the Bryden Case10) depended upon totally different grounds. This Board, dealing with the particular facts of that case, came to the conclusion that the regulations there impeached were not really aimed at the regulation of coal mines at all, but were in truth devised to deprive the Chinese, naturalized or not, of the ordinary rights of the inhabitants of British Columbia, and in effect, to prohibit their continued residence in that province, since it prohibited their earning their living in that province." His Lordship then observes "it is obvious that such a decision can have no relation to the question whether any naturalized person has an inherent right to the suffrage within the province in which he resides" (which was the question then before the Board).
I am of the opinion that the legislation now in question is of the character described by Lord Watson in the Bryden case, as not being within the competency of the Province. His Lordship says, page 587. ''Their Lordships see no reason to doubt that by virtue of section 91 s.s. 25, the legislature of the Dominion is invested with exclusive authority in all matters which directly concern the rights, privileges, and disabilities of the class of Chinamen who are resident in the provinces of Canada. They are also of opinion that the whole pith and substance of the enactments of s. 4 of the "Coal Mines Regulation Act", in so far as objected to by the appellant company, consists in establishing a statutory prohibition which affects aliens of naturalized subjects, and therefore trenches upon the exclusive authority of the Parliament of Canada."
(2) I am also of the opinion that the legislation in question conflicts with the Japanese Treaty Act, 1913, of the Dominion of Canada (3 & 4 Geo. V, c. 27). By this Act it is declared that the Japanese Treaty of 3rd April, 1911, set forth in the schedule to the Act "is hereby sanctioned and declared to have the force of law in Canada", with the exception of two provisions neither of which is pertinent in any way to the question now before us.
Paragraph 3 of Article 1 of the scheduled treaty states that the subjects of the high contracting parties "shall in all that relates to the pursuit of their industries, callings, professions, and educational studies be placed in all respects on the same footing as the subjects or citizens of the most favoured nation."
The Parliament of Canada derived the authority for the enactment of the Japanese Treaty from s. 132 of the "British North America Act, 1867", which provides that "the Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada or any province thereof, as part of the British Empire towards foreign countries, arising under treaties between the Empire and such foreign countries."
There is no general provincial prohibition or disqualification affecting the citizens of foreign nations other than those of Japan and China in British Columbia, and while the statute now in question is not expressed generally to prohibit or disqualify Japanese and Chinese from all employment, it does provide that "in all contracts, leases, licences and concessions entered into, issued or made" by or on behalf of the Crown as represented by the Government of British Columbia, "no Japanese or Chinese shall be employed in connection therewith".
Thus the province attempts to discriminate and to put the Japanese on a footing less favourable than that of the subjects of the most favoured nation.
This is contrary to the obligations of the treaty and in direct conflict with the Dominion statute which must prevail under the powers conferred by s. 132 of the b.n.a. Act above quoted.
I cannot doubt that the Japanese if employed upon the works which are by the statute in question prohibited to them would be so employed "in the pursuit of their industries, callings, professions". Certainly the words "industries, callings", would cover all manual labour, or other labour of a kindred character. Modern dictionaries define industry to include systematized labour or habitual employment, especially human exertion employed for the creation of value, labour.
There is only one Crown, although it may act "by and with the advice and consent of" the several parliaments or legislatures of the whole of the British Empire. The Crown which "by and with the consent and advice of the Lords and Commons of the United Kingdom" enacted the ''British North America Act, 1867", conferring upon itself acting "by and with the advice and consent of the Senate and the House of Commons of Canada" the power to sanction treaty obligations affecting the Dominion of Canada or a province thereof, is the same Crown which became in 1911, a party to the Japanese Treaty, the provisions of which declared that, "they (the Japanese) shall in all that relates to the pursuit of their industries, callings, professions, educational studies be placed in all respects on the same footing as the subjects or citizens of the most favoured nation." It is the same Crown which in 1913, "by and with the advice and consent of the Senate and the House of Commons of the Dominion of Canada" in execution of the powers conferred by s. 132 of the b.n.a. Act, 1867, sanctioned the Japanese Treaty and enacted that it should have "the force of law in Canada"; and it is the same Crown which in 1921, "by and with the advice and consent of the legislature of British Columbia" enacted the statute in question here. If this Act is intra vires it is in absolute conflict with the Treaty and the Dominion statute because it prohibits the employment of Japanese in the pursuit of their ''industries and callings" in British Columbia on all provincial government works, or on works on land held by leases, licences or concessions authorized by the legislature of British Columbia. Thus the Japanese are placed on a footing less favourable than that of the subjects or citizens of more favoured nations.
The Crown was undoubtedly bound by the force of the "Japanese Treaty Act" of 1913 to perform within Canada its treaty obligations, and, if so, I cannot understand how it can successfully be contended that the Crown can by force of enactments of a provincial legislature directly or indirectly break its treaty obligations.
For these reasons I am of the opinion that the legislature of British Columbia had not the authority necessary to enact chapter 49 of the 1921 statutes of British Columbia.
As my answer to the first question is in the negative, any answer to the second question submitted is unnecessary.
Idington J.—Under section 60 of the "Supreme Court Act" we are asked the following questions:—
1. Had the legislature of British Columbia authority to enact chapter 49 of its statutes of 1921, entitled "An Act to validate and confirm certain orders in council and provisions relating to the employment of persons on crown property?
2. If the said Act be in the opinion of the court ultra vires in part only then in what particulars is it ultra vires? The second section of the said Act declares certain orders in council set forth in a schedule to the Act to have been and to be valid and effectual.
Then section 3 of said Act in question herein reads as follows:—
"(1) Where in any instrument referred to in the said orders in council, or any instrument of a similar nature to any of those so referred to, issued by any minister or officer of any department of the government of the province, and provision has heretofore been inserted or is hereafter inserted relating to or restricting the employment of Chinese or Japanese that provision shall be deemed to have been and to be valid and always to have had and to have the force of law according to its tenor.
(2) Every violation of or failure to observe any such provision on the part of any licensee or other person to whom the instrument is issued or delivered or with whom it is entered into, or who is entitled to any rights under it, whether the violation or failure has heretofore occurred or hereafter occurs, shall be sufficient ground for the cancellation of that instrument, and the Lieutenant Governor in Council may cancel that instrument accordingly."
The schedule seems to me (save as to one item) to deal entirely with the crown lands, timber, coal and other minerals and mines and water the property of the Crown on behalf of the province of British Columbia.
That province was brought into the Canadian confederation by virtue of the 146th section of the B.N.A. Act, 1867, and pursuant to the several addresses therein provided for and by the order in council of the late Queen resting thereon also so provided for. The agreement evidenced thereby appears on pages LXXXV to CVII prefixed to the statutes of Canada for 1872.
The terms thereof render operative and effective as to the legislature of British Columbia the like powers enjoyed by the legislatures of the other provinces of Canada under section 92 of the said B.N.A. Act of 1867, and each of them contained in items 5, 10, 13, and 16, are of vital importance herein as are also other provisions of said Act such as section 109, which reads as follows:—
"109. All lands, mines, minerals, and royalties belonging to the several provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same."
Section 10 of the respective addresses which formed the basis of Union and of the order in council bringing the Union into effect, reads as follows:—
"10. The provisions of the "British North America Act, 1867", shall (except those parts thereof which are in terms made, or by reasonable intendment may be held to be, specially applicable to and only affect one and not the whole of the provinces now comprising the Dominion, and except so far as the same may be varied by this minute) be applicable to British Columbia in the same way and to the like extent as they apply to the other provinces of the Dominion, and as if the colony of British Columbia had been one of the provinces originally united by the said Act." That renders operative section 109 of the B.N.A. Act, 1867, and I submit, rendered all therein specified subject to the jurisdiction of the responsible government of British Columbia which thereby had power to enact such orders in council relative to the administration of all the said properties as the legislature of said province should see fit to support and so long as it so saw fit to support same.
The Act now in question of the legislature of British Columbia seems therefore well within the powers so assigned to it.
There being numerous acts of the legislature of British Columbia, such as "The Land Act"; "The Forest Act"; "The Mines Act"; and amendments thereto, each and all seeming to be expressly enacted relative to the administration of such crown properties by ministers respectively specified therein, it would not seem to require anything further than the orders in council made in course of such administration to give validity to any licences or contracts relative to the regulations of such properties of the crown.
Mr. Ritchie's argument on behalf of the Attorney General of British Columbia in taking this point seemed to me to suggest quite properly that the Acts now called in question are of minor consequence and that even the veto power if exercised would fall short of reaching the alleged evil complained of herein.
The mode of the administration of any of the properties in question seems as much subject to the will of the legislature as that of any private owner to the will of the owner thereof.
The conditions of the licences for operating upon same binding the licensees not to employ in doing so Chinese, Japanese or other orientals may be offensive to some minds and may economically speaking be very questionable, but how can it be contended that any private owner might not so stipulate in such a licence or other contract in relation to his own property?
Counsel for the Minister of Justice and for the company which challenged the right of the government of British Columbia to so stipulate, respectively admitted on argument that the private owner could so stipulate in relation to his own property despite the treaty hereinafter referred to but counsel for the Japanese Association relied upon an American decision laying down the doctrine that it would be against public policy to so contract.
The obvious answer is that the legislature in control of the subject matter is the power to create or dictate any such provincial public policy and that must be predominant unless and until the Dominion Parliament acting intra vires declares otherwise.
The decision in the case of Union Colliery v. Bryden[12] was presented in argument but not as decisive of the questions raised herein.
I may point out that it was a general regulation as applicable to a private mine which was in question therein and that the judgment seems to be rested upon item 25 of the 91st section of the B.N.A. Act of 1867—"Naturalization and Aliens"—and was followed by the decision in the case of Cunningham v. Tomey Homma[13] where the Lord Chancellor, in giving the judgment of the court above does not, at foot of page 56 and following page, seem to maintain the doctrine in the judgment in the former case to the full extent declared therein and as understood by the courts in British Columbia attempting to abide by it. Hence the judgments of these courts were reversed. I submit that the powers I have referred to above as given the legislature of British Columbia in relation to its control of the properties in question herein are quite as explicit as anything given it in relation to the franchise.
The disposition of the question raised in the Colliery Case,[14] however, does not end there, for in the case Quong-Wing v. The King[15] the question of discrimination against a Chinaman, in this instance a naturalized British subject, within the ambit of our Canadian "Naturalization Act", was again raised.
The majority of this court held that, despite what was held in the Colliery Case14 the legislature of Saskatchewan had the power to discriminate against him, in the same spirit as evident in relation to what is in question herein, and in the way that appears in that case.
An application on his behalf to the court above, for leave to appeal from such decision here, was refused.
And that although, as our "Naturalization Act" then stood by section 24 thereof, it provided as follows:—
"24. An alien to whom a certificate of naturalization is granted shall, within Canada, be entitled to all political and other rights, powers and privileges, and be subject to all obligations to which a natural born British subject is entitled or subject within Canada, with this qualification, that he shall not when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pursuance of a treaty or convention to that effect." The question most urgently pressed in the present case by way of challenging the validity of the Act now in question herein, was the Act of our Dominion Parliament, assented to on the 10th April, 1913, and known as the "Japanese Treaty Act, 1913", declaring the treaty to have the force of law in Canada.
Section 3 of Art. 1 of the said treaty seems to contain all that can be even plausibly relied upon in such a connection. It reads as follows:—
"3. They shall in all that relates to the pursuit of their industries, callings, professions and educational studies be placed in all respects on the same footing as the subjects or citizens of the most favoured nation."
Compare the forceful effect of the language used in the "Naturalization Act" above quoted and that just quoted from the treaty.
The former was turned down in this court and, in the court above, held not worthy of a hearing as against a provincial legislative enactment of the same tenor and purpose as that challenged herein.
I do not pretend that the aggregate consequences flowing from the Saskatchewan Act would be at all equal to those flowing from the policy of the legislature of British Columbia in doing as it pleased with its own, and complained of herein.
But I do pretend that the principle involved in the Saskatchewan Act, relative to a naturalized Chinaman, assured by our "Naturalization Act" of his right as such, in the terms above quoted, is of more serious import than anything contained in said section 3 of article 1 of the treaty above mentioned.
When we are asked to strain and positively wreck our constitution as outlined in the B.N.A. Act assuring provinces of such powers as challenged herein, I have no doubt what my answer should be to the questions submitted. I, before doing so, should observe that at one time in the course of the argument and consideration of the matters involved in item "n" of the schedule to the Act, which reads as follows:—"(n) Public works' contracts the terms of which are not prescribed by statute;" I was inclined to doubt if that article was maintainable.
On mature consideration I am, however, unable to discriminate between the rights of a property owner with which I have been dealing and the rights of a government executing a non-statutory contract such as covered by the last quotation.
Having considered all the supplemental factums presented in support of the argument at the hearing, I am tempted, with great respect, to suggest that the argument based upon the prerogative of the Crown, and obligations of the Crown, as if one and indivisible throughout the Empire, seems to overlook the many and varying limitations thereof brought in with the recognition of responsible government in Canada, over three-quarters of a century ago.
Even some forms of treaty must be read as being subject thereto.
I would, therefore, answer the first question in the affirmative which renders it unnecessary to answer the second.
I cannot, however, forbear asking what possible difference it can make so long as in these days of public ownership the government of British Columbia could, I submit, act directly and select its own workmen to clear its forests and exclude the Chinese and Japanese so long as public opinion would support them in doing so. Duff J.—The attack upon the provincial statute rests upon two principal grounds, 1st, that it is repugnant to the Dominion Act of 1913 declaring the accession of Canada to the Japanese Treaty and giving to the provisions of that treaty the force of law throughout the Dominion and 2nd, that the provincial legislation considered in itself, abstraction made from the operation of the Dominion Statute of 1913, is without legal force for the reason that it is an enactment "in pith and substance'' relating to the subject of aliens and naturalized subjects, and on the principle of Bryden's Case[16] is ultra vires.
To consider, first, the second of these grounds of attack. The provincial statute professes to attach to the leases, licences, contracts and concessions which are the subject of the scheduled orders in council a condition which contains a stipulation that no Chinese or Japanese shall be employed by any of these classes of licensees, lessees and concessionaires in the exercise of the rights granted and in the case of contracts by any contractor in connection with the public work to which his contract relates; and the condition also contains a provision authorizing the cancellation of the rights of any grantee or contractor who disregards the stipulation. The instruments to which this condition applies are of two classes, 1st, contracts under which the contractor's remuneration would, in the ordinary course, be a payment of money out of the public funds of the province, and 2nd, grants of rights in and in relation to the public property of the province but grants of limited and particular rights only of which a mining lease so called may be taken as typical. A single word of explanation may be convenient at the outset in relation to the water power certificates under the "Water Clauses Consolidation Act". These water power certificates were certificates granted to incorporated companies by the Lieutenant Governor in Council on certain specified terms and subject to such further terms as he in his discretion might see fit to exact, conferring a right upon the company receiving the certificate to apply for power purposes water power made available by authority of water records granted under the same Act and giving to the company in addition extensive compulsory powers for the construction, maintenance and operation of its works The precise point to be noted is that in the year 1892 the legislature of British Columbia, following legislation of a similar but much more elaborate character passed in the year 1890 by the Dominion Parliament relating to what was then known as the North West Territories, now the provinces of Alberta and Saskatchewan, declared that all unappropriated waters, that is to say, all water in the province not appropriated under statutory authority should be the property of the Crown in the right of the province; so that water power certificates authorizing the diversion and the application of unappropriated water for the purposes of the companies possessing such certificates are in effect conditional grants of special rights over and in relation to a subject which by the statute law of British Columbia is the property of the Crown.
The conclusion to which I have come is that the decision of the Lords of the Judicial Committee in Bryden's Case[17] does not in principle extend to provincial legislation attaching to contracts of the kind and to grants of public property of the character to which the statute relates a condition in the terms of that now under consideration.
It is most material, I think, first of all to notice the nature and extent of the control exercisable by the legislature of a province over its public assets. The B. N. A. Act provided for the distribution not only of power, legislative and other, between the Dominion and the provinces but for the distribution of responsibilities and assets as well. The responsibilities assumed by the provinces were onerous and extensive; administration of justice, including police, public health, charitable institutions, colonization, including highways, municipal institutions, local works, including intra provincial transport and above all, education. The responsibility in respect of agriculture and immigration was assumed jointly. In the sequel immigration has gradually become almost exclusively a Dominion matter while agriculture has been left very largely to the care of the provinces. The scheme of confederation necessarily involved a division of assets and an allotment of powers of taxation. The division of assets is the subject matter which concerns the sections of the Act numbered, 102 to 126 inclusive. By these sections the whole mass of the duties and revenues over which the provinces possessed the power of appropriation at the time of confederation is divided between the Dominion and the provinces. The sections in which their respective rights are defined being sections 102, 108, 109, 117 and 126.
Two characteristics of these provisions have often been judicially noted, 1st, they do not displace the title of the Crown in the public property. What is dealt with is the power of appropriation possessed by the provincial legislature at the time of Confederation (sec. 102); and 2nd, this power of appropriation is treated (secs. 108, 109, 117, 92 (5)) as equivalent to property. The interest of the Dominion as well as that of the provinces in the public property both in that assigned by the sections mentioned and that afterwards acquired as the result of taxation or from other sources of revenue is, as Lord Watson said in Maritime Bank v. Receiver General,[18] this right of appropriation; and as was said again by Lord Watson in the St. Catherines Milling Case,[19] this right of appropriation is equivalent to the entire beneficial interest of the Crown in such property. Ultimately in each case this power of appropriation rests with the Dominion or the provincial legislature as the case may be and that not by virtue alone of any special enactments of secs. 91 and 92 relating to property but in the case of the provinces by force of the provision giving the provinces control over the provincial constitution; and the legal effect of these provisions as Lord Watson said in the St. Catherines Milling Case19 is to exclude from Dominion control any power of appropriation over the subjects assigned to the provinces which are placed under the control of the provincial legislatures. As regards the provinces this control by the legislatures over the proceeds of taxation and over the property assigned to them by the ena