March 27, 1903

CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Does the right hon. gentleman consider that the statutes passed by the British Columbia legislature went beyond the provisions of the statutes which are now in force in other colonies, for example in the colony of Natal, and I think in some of the Australasian colonies ?

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The PRIME MINISTER.

Beyond its legislative powers.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Mr. Chairman, is there any really good reason why the province of British Columbia should not have the same rights in regard to legislation of that kind-I am speaking from the standpoint of the empire, not from the Canadian standpoint alone-is there any good reason why British Columbia should not exercise the same rights in regard to legislation of that kind as are at present exercised by the colony of Natal ? My right hon. friend is aware of course, that the Act which is enforced is printed in this report and I understand that it goes very far indeed towards the exclusion of immigration, even to the prohibition of Asiatic labour. I would like to understand, if this disallowance took place from the imperial standpoint, and I would gather that from the right hon. gentleman's remarks, why it is. that these imperial concerns more directly touch the province of British Columbia than they do the colony of Natal or the Australasian colonies, to which I have referred. I am as ready as my right hon. friend would be to give all due weight to imperial interests in regard to legislation of that kind, but I have been unable to understand why these Interests would more directly concern the province of British Columbia than the colony of Natal or the Australasian colonies.

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The PRIME MINISTER.

The reason seems to be a very obvious one. The action taken by the Canadian government in this matter was not dictated solely from the point of view of imperial interests, but solely from the point of view of Canadian interests. The geographical relation of Canada to Japan is very different from the geographical relsftiou of Japan to Natal. We intend to have a trade between Japan and Canada. We intend to bring about a development of the relations which exist between that progressive people and our own people. We have steamers plying to-day between this country and the orient, steamers which are subsidized by this government. We have at present in Japan exhibition commissioners who are trying to promote trade between Canada and Japan, un-

der such circumstances I ask my hon. friend (Mr. Borden, Halifax) whether it is not good policy to toy and promote friendly relations between Canada and Japan. The conditions would have been very much different if the Japanese government had not undertaken to act in a friendly manner towards the government of Canada. The Japanese government went out of their way to prohibit their own people coming to Canada. They did this as a friendly act towards Canada. They wanted to preserve the good relations that existed between us. Under these circumstances was it not good Canadian policy, not from considerations of imperial interest, but from considerations of Canadian interest, to take such action as was calculated to promote the best interests of Canada and not to irritate people who wanted to have friendly relations with us. What was the cause of irritation between us and Japan ? It was that there were Japanese subjects coming to Canada who were settling in British Columbia and working in competition with our own workingmen, where their presence is not welcome. They have undertaken to remove that cause of irritation by preventing their own people from coming into competition with our workingmen, and under such circumstances, it seems to me that the action of the British Columbia legislature was, to say the least, ill-advised, that it was not calculated to promote the best interests of Canada, or those friendly relations that ought to obtain between two neighbouring nations, such as Canada and Japan are, because, after all, we are neighbouring nations. For this reason we represented to the legislature of .British Columbia that if they were to restrict their action to Chinese immigration, that if they were to except Japanese immigrants from their legislation, we would not Interfere, leaving them to exercise their own will in regard to Chinese immigration. It did seem to us that it was an ill-advised action to still persist in giving a slap in tiie face to the imperial government of Japan by including Japanese labourers in their legislation. The action which we took was dictated not only from considerations of imperial interest but from considerations of Canadian interest.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

It almost seems to me that the right hon. gentleman, in the attitude which he has taken, was constituting this government as a court of appeal from the British Columbia legislature. Assuming as we have right to assume, that this legislation was within the competence of the legislature of the province of British Columbia, my right hon. friend, nevertheless. suggests that because they did not really understand their own affairs, this government has the right to reverse their legislation. Upon what ground ? Because Japan is a neigbouring nation, and because we may expect to have some trade with that country in the future. Well, I thought Sir WILFRID LAURIER.

that my hon. friend was a more pronounced champion of provincial rights than to adopt an attitude of that kind. Here is the province of British Columbia acting admittedly within its legislative rights.

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The MINISTER OF RAILWAYS AND CANALS.

That is not admitted.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I am dealing with the question in the light in which the Prime Minister has placed the matter before the committee. The ground that has been placed before the committee is that this legislation was properly disallowed, because it is ill-advised and not in the interests of Canada. 1 respectfully submit that the legislature of British Columbia is the judge of that, when it is acting within its jurisdiction. If we are to have another ground put forward, we will deal with that when it comes, but I am now dealing with the ground that has been taken up to the present time. If it is a good reason for disallowing such legislation that we are to have a trade with Japan that circumstance might also be a reason for asking the Japanese to revoke the restriction which they have made, and if the probability of trade is made a good ground for disallowing this legislation, why is it not a good ground for rejecting the legislation which the right hon. gentleman is introducing now, because,

I suppose we have as good reason for supposing that we will have a trade with China as with Japan ? I do not profess to be very familiar with trade questions in reference to these two countries, but I should imagine that perhaps we have as much trade with China as with Japan and possibly more. It does not seem, when looking at the question of the disallowance of the British Columbia legislation, that very valid reasons have been put forward by my right hon. friend. I would think that the considerations, if they are purely Canadian considerations, which lie has put forward, are not a sufficient justification for the action which he has taken, and if there are more than Canadian considerations, in questions, if there are imperial considerations in question, then, I repeat again, as I said before, that 1 know of no imperial interest which touches this legislation emanating from the province of British Columbia which does not equally touch the legislation which has been enacted in the colony of Natal and in certain of the Australasian colonies.

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The MINISTER OF JUSTICE.

I would like to draw the attention of my hon.-friend the leader of the opposition (Mr. Borden. Halifax) to the fact that the first disallowance of British Columbia legislation of this character, as far as I recollect, took place in 1884. and I would like to read an extract from the report made at that time by Sir Alexander Campbell, then Minister of Justice.

itARCII 27, 1903

Having reference to the condition of Canada at the time of the union with the province the undersigned is of opinion : That the authority given by the 95th section of the British North America Act is an authority to regulate and promote immigration into the provinces and not an authority to prohibit immigration.

A law which prevents the people of any country from coming into the province cannot be said to be of a local or private nature. On the contrary it is one involving Dominion, and possibly imperial interests.

The measure was then referred to the imperial authorities and the result was that the Act was disallowed. That principle laid down by Sir Alexander Campbell at that time has been followed ever since with respect to British Columbia legislation on the subject of Chinese emigration.

As regards the Natal Act, I have not it before me and I do not like to speak from memory regarding it because this is a matter of very considerable importance, and I do not like to discuss the question without having the documents so as to be able to speak with accuracy. But my recollection of the Natal Act is this : That the question at one time was considered as to whether or not, in British Columbia, it would be possible to adopt the Natal Act. The people of British Columbia said that the Natal Act did not go far enough. My hon. friend will bear in mind that the Natal Act has no reference to Chinese or Japanese immigration, but has reference to immigration generally. A person who cannot comply with certain conditions laid down in that Act with respect to the speaking of the English tongue and being able to read and write cannot settle in the colony of Natal. The Natal Act would be impossible of application here ; it would be impossible for us to allow the province of British Columbia to have such an Act governing immigration. It is necessary for us to have an Act which would be applicable to the whole of the Dominion of Canada and the Natal Act is impossible of application to the whole Dominion. I do not want to go any further at the present time. This question is one of considerable importance and it requires to be discussed with a present knowledge of all that has taken place. I say to my hon. friend, that the principle adopted, in so far as the disallowance of this Act is concerned by the Department of Justice on a recent date, is the principal laid down by Sir Alexander Campbell in 1884.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I would like to have some information before the resolution is adopted, as to whether or not, as has been alleged in the press of British Columbia, it was suggested by the imperial government that the very Act which was disallowed might be passed by that legislature and would be regarded as satisfactory. No papers have been brought down to this House on this subject. Substantially this has been asserted in the press of j British Columbia. I do not know as to |

the truth of that, but I would like to have some information on the subject.

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The PRIME MINISTER.

That despatch is in the report.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Could my right hon. friend refer me to the page.

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The PRIME MINISTER.

I cannot at the moment.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I understand that the position which my hon. friend tlie Minister of Justice takes is : That this Act was beyond the powers of the legislature of British Columbia and therefore was disallowed. I would like to ask the Minister of Justice, whether it is the practice of tlie Department of Justice to sit as a court of interpretation upon provincial statutes and deal with them all in that way ; disallowing all those that are possibly ultra vires-or is it the practice to leave that question to be determined by the courts in the usual way.

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The MINISTER OF JUSTICE.

When a question comes before the Department of Justice for the purpose of settling as to whether or not a law is ultra vires of the provincial parliament ; representations in the first place are invariably made to the provincial government asking that as, a doubt has arisen it may be set at rest by subsequent legislation. If subsequent legislation is not passed and if in the opinion of the Department of Justice the legislation is clearly ultra vires, then disallowance takes place. If there is a doubt as to whether legislation is ultra vires or not, it is left then to its operation and to be settled by the courts. The course to be pursued with respect to Acts passed by the provincial legislatures was settled by an Order in Council passed 8th June, 1808.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

What does my hon. friend mean by that ? Does he mean that in case the provincial authorities contend that their Act is within the competence of the povincial legislature, and the Department of Justice arrives at an opposite conclusion ; that in such case the department constitutes itself a judge instead of leaving the provincial authorities to have that question determined by the courts.

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The MINISTER OF JUSTICE.

There is a door open under the statutes. If the question is one on which the provincial authorities want to have the matter referred to the courts and will say that they will have a case stated for the courts ; then the Department of Justice is always ready to meet them half way. That question has now arisen in the province of Ontario with respect to the rights on the rivers, and will be disposed of in that way.

Mi-. BORDEN (Halifax). I would consider that a fair way of dealing with the subject. The provincial authorities adhere to their view that the Act is within the legis-

lative competence of tlie provincial legislature, and desire to have the question referred to the courts, and the Department of Justice expresses itself ready and willing to do so.

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The MINISTER OF JUSTICE.

Yes.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Was that option given to British Columbia in this case ?

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The MINISTER OF JUSTICE.

No. As I have said, Sir Alexander Campbell stated in his report that the law was ultra vires, and he said it was contrary to imperial interests and he said in addition to that, that it was contrary to the general interests of Canada. My hon. friend is well aware that an Act may be perfectly ultra vires of the powers of a province, but if that Act is contrary to the general interests of the Dominion of Canada that is sufficient cause for disallowance.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I know ; but let us not revert to the other ground.

I was dealing with that a moment ago and my hon. friend raised the question of ultra vires ; let us not mix up the two things.

I want to know from my hon. friend this- I want to know whether or not the option to which he refers was extended to the executive of British Columbia ; whether or not they had an opportunity of having this question referred to the courts and determined by the courts instead of having it referred to and determined by the Department of Justice.

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March 27, 1903