May 3, 1905

QUESTIONS.

MILITIA STAFFS OF OFFICERS.

CON

Mr. BERGERON asked :

Conservative (1867-1942)

1. Is it the intention of the government or of the Department of Militia to abolish or to reduce the staffs of officers in the militia (cadres de milice) established by His Excellency the Governor General in Council, on the 23rd February, 1904 ?

2. If so, why and when will that change be effected ?

3. What will be done with the officers and non-commissioned officers appointed to complete the staffs that were established on the 23rd February, 1904 ?

4. Is it the intention of the government or of the Department of Militia to create a reserve for each militia corps ?

5. If so, what regulations will govern such reserve ?

Topic:   QUESTIONS.
Subtopic:   MILITIA STAFFS OF OFFICERS.
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Hon. Sir FREDERICK BORDEN (Minister of Militia and Defence) :

1. It is not the intention to reduce the cadres of officers of the militia, but it is the intention to separate into two lists officers and non-commissioned officers actively employed and those whom it is proposed should, in the event of field operations, be detailed for work at the base or in raising reserve units.

Hon, Sir WILLIAM MULOCK (Postmaster General). This is a question concerning the Department of Trade and Commerce, and that department has sent me the following answer :

1. Strictly speaking, no ; as the present contract does not expire until December next, although an understanding has been arrived at for a continuation of the service on condition that during next season a new and larger boat is to be placed on the route.

2. Answered by No. 1.

3. Answered by No. 1.

4. Answered by No. 1.

Topic:   QUESTIONS.
Subtopic:   MILITIA STAFFS OF OFFICERS.
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DEATH OF HON. JAMES SUTHERLAND, M.P.

?

Rt. H@

I have to inform the House, Mr. Speaker, that I have just received a telegram informing me of the death of Mr. Sutherland, Minister of Public Works. I have to say to the House that personally in losing Mr. Sutherland I lose one of the truest friends I ever toad, and I know that the House loses one of its most valued members. I will meet, I am sure, the feelings of the House if I endeavour to say that the House should express its sympathy in its bereavement in some suitable manner, and I do not know that that can be done in any other way than by the House adjourning to attend his funeral. Therefore, I will move that when this House adjourns to-morrow it stands adjourned until Monday next, so as to permit members to attend the funeral of Mr. Sutherland.

Topic:   DEATH OF HON. JAMES SUTHERLAND, M.P.
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CON

MAT 3, 1905 531S

CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I rise, Mr. Speaker, ror the purpose of supporting the motion which my right hen. friend the Prime Minister has made. The emotion which the right hon. gentleman has displayed has indicated to the House more eloquently than even his eloquent words could have done the very great loss which he feels he has sustained on this occasion. Let me say on behalf of this side of the House that all of us join most sincerely in the deep sympathy which I know every gentleman on the other side feels for the family of Mr. Sutherland in their bereavement, and especially for the Prime Minister of this country, whose true and valued friend Mr. Sutherland has been so many years. I had the privilege of knowing that gentleman when I first came into parliament in 1896. He was then an old member of parliament and I a young and inexperienced member. I always met at his hands the greatest kindness and cordiality. Afterwards, in my later acquaintance with PuW'd life, I met him on many trying and difficult occasions, particularly the occasion when he and I were members of a committee two years ago, to which was entrusted the duty of making a redistribution of the seats in the province of Ontario. And although there was a certain feeling at that time which might have led to some display of temper on the one hand or the other, I can say, with grateful recollection, that Mr. Sutherland and I, at the conclusion of a very difficult and trying investigation, parted just as good friends as we were when that began. I repeat that on this side we extend our most cordial and heartfelt sympathy to the bereaved family of our late friend and to hon. gentlemen opposite, who, by his death, have sustained so great a loss. We on this side realize fully the loss which the House and the country have sustained. In. the death of Mr. Sutherland Canada has lost a public man. not only of great experience, but. as I have alwavs believed, of very great executive ability indeed. I feel that I have the hearty sympathy and support of every gentleman on this side of the House in the words I have uttered and in my support of the motion of the right hon. gentleman.

Topic:   MAT 3, 1905 531S
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Motion agreed to.


PROVINCIAL GOVERNMENT IN THE NORTHWEST.


House resumed adjourned debate on the proposed motion of Sir Wilfrid Laurier for the second reading of Bill (No. 69) to establish and provide for the government of the province of Alberta, and the amendment of Mr. R. L. Borden thereto.


LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Hon. CHARLES FITZPATRICK (Minister of Justice).

Mr. Speaker, much has been said and much more written since this Bill was first introduced which, in the interest of peace and harmony, aye, which, in the interest of truth and justice, might better have been left unsaid and unwritten. I hasten to add that, having followed closely the debate in this House and heard or read all the speeches, I must admit at once that, due allowance being made for the heat and exagerated language which appear to be inseparable from our political debates, with perhaps two or three exceptions, no speech has been made here which could offend the ears of even the most sensitive among us. I must of necessity, Mr. Speaker, take up at some length the attention of the House to discuss those things which, in my judgment, are material and important. I will therefore not waste any of your time or of mine in answering the idle vapourings of those who, for reasons which I have never been able to understand, invariably seize with avidity on every opportunity that offers to sow the seed and fan the flame of racial and religious discord in this country. Faithful to the best traditions of their party, some of the Conservative newspapers have been fair and just in their criticism of this Bill. Others, unmindful of their obligations to the public, and substituting personal abuse for argument, deliberately misrepresenting the purposes and object of this legislation. have not hesitated to appeal to the lowest and the vilest passions of our depraved human nature.

I shall not attempt to follow them in the path on which they have chosen to enter. Those of them who are worthy of consideration I will leave to the punishment which must inevitably come in the hours of calm reflection and sober second thought.

I will only say that the record of the Catholic Church and of its clergy is writ large on every page of the history of the world, and of the history of this country in particular, and so long as the spirit of loyalty to our institutions, and so long as the spirit of self-sacrifice and devotion ot duty are held in esteem among us, so long will the names of Catholic priests and prelates hold foremost places on the honour roll of Canada. It is not neces-I sary to go over the ground already covered by my eloquent friend from Labelle (Mr. Bourassa). but let me mention the names of Jogues, Lallemant and Brebeuf, French Canadian Catholic martyrs who, in the early days of cur history gave to the world examples of the noblest courage that ever steeled the heart of man, that of giving testimony unto death for the convictions of the soul.

As I listened a few days ago to the admirable speech of my friend for East Middlesex (Mr. Elson). when he told us that he was a native-born Canadian, that there was no portion of the earth in which he felt so much interest as in that which is bounded by the outer boundaries of Canada, that there were no people who lived and moved and had their being upon the face of the globe in

(a) Promote the prosperity of the Canadian peoipie and conduce to the advantage of the whoile empire if the Dominion of Canada were extended westward to the shores of the Pacific ocean.

And next.

(b) That the welfare of a sparse and widely scattered population of British subjects of European origin already inhabiting these remote and unorganized territories would be materially enhanced by the formation therein of political institutions bearing analogy as far as circumstances will admit to those which exist in the several provinces of the Dominion.

I attach much importance to that paragraph, contained in an address presented by the House of Commons of Canada under the terms of section 146 of the British North America Act, 1867, asking that these Territories should form part of our Dominion, and draw special attention to the fact that the imperial authorities are therein asked to cause these Territories to be joined to the Dominion, the Dominion undertaking on its side to give to them political institutions ' bearing analogy as far as circumstances will admit to those which exist in the several provinces of the Dominion.'

Then further on in the same address I find this paragraph :

And that we do most humbly pray that Your Majesty will he graciously pleased, by and with the advice of your most honourable Privy Council, to unite Rupert's Land and the Northwestern Territory with this Dominion and to grant to the parliament of Canada authority to legislate for their future welfare and good government.

As will bd seen by these addresses, the imperial authorities were moved to unite Rupert's Land and the northwestern territory by Order in Council to the Dominion of Canada.

These addresses were received in England by an intimation of Her Majesty's willingness to comply with their prayers and that intimation was coupled with a statement to this effect:

That the law officers of the Crown advise that the requisite power of government and legislation could not be transferred to Canada without an Act of parliament, on account of the existing charter of the Hudson bar. ,

The result was that the Rupert's Land Act, 1868, was passed to enable Her Majesty to do with respect to Rupert's Land what was in contemplation by virtue of the provisions of section 146 of the British North America Act, and I would like to point out here immediately that Manitoba did not come into confederation, as has been generally supposed by virtue of the provisions of section 146, but that it came in by virtue of the provisions of the Imperial Rupert's Land Act, 1868. There are two sections of that Act of 1868 which are deserving of consideration. The first is section 2 which provides that:

For the purposes of this Act the term ' Rupert's Land ' shall include the whole of the land and territory held or claimed to be held by the said governor and company.

That is to say, the governor and company of Hudson bay. It was intended that Rupert's Land ishould be held to include only what the company was supposed to be entitled to under and by virtue of the extraordinary charter to which I referred a moment ago, but Rupert's Land is defined here as meaning all that land which they held or pretended to hold ; hence the necessity for my referring, as I did a moment ago, to the license of 1821. Section 5 of the same Act (Rupert's Land Act, 1868) says that:

It shall be competent to Her Majesty, by any such Order or Orders in Council as aforesaid, on address from the Houses of the parliament of Canada, to declare that Rupert's Land shall, from a date to be therein mentioned, be admitted into- and become part of the Dominion of Canada ; and thereupon it shall be lawful for the parliament of Canada, from the date aforesaid, to make, ordain, and establish within the land and territory so admitted as aforesaid, all such laws,'institutions and ordinances.

Etc., as it may deem desirable.

The result was that in 1868. Sir George Cartier and Hon. Mr. McDougall were sent to England to carry on the negotiations which had been opened by the Colonial Secretary with the Hudson Bay Company for the acquisition of the territory to which I have just referred ; and in 1869, on the 21st May, new resolutions were passed by this House with respect to Rupert's Land and a new address was presented, so that you must in dealing with Rupert's Land and Manitoba look at the terms of the address of May 1869 and not at those of the first address. The Hud-Mr. FITZPATRICK.

son Bay Company having proposed to surrender their country to the Dominion of Canada this proposal was submitted to His Excellency the Governor General in Council on July 5th, 1869. and met with his approval. The result was that on November 19, 1869, a deed of surrender was signed, and on June 22, 1870, almost two years after the first address had been presented, the Rupert's Land Order in Council was passed. I wish to draw attention to the terms of that Order in Council which contains among others this provision :

It is hereby ordered and declared by Her Majesty, by and with the advice of the Privy Council, in pursuance and exercise of tlje powers vested in Her Majesty by the said Acts of parliament, that from and after the 15th day of July, 1870, the said Northwestern Territories shall be admitted Into and become part of the Dominion of Canada upon the terms and conditions set forth in the first hereinbefore cited address, and that -the parliament of Canada shall from the day aforesaid have full power and authority to legislate for the future welfare and good government of the said territory.

That provision of the Order in Council disposes of the Northwestern Territories and then it is further ordered :

And it is further ordered that without prejudice to any obligations arising from the aforesaid approved report, Rupert's Laud shall from and after the isaid date be admitted into and become part of the Dominion of Canada upon the following terms and conditions.

It is not material for my argument to refer to these terms and conditions, but it will be seen-and for the accuracy of debate it is important that we should understand ail that occurred up to the time these Territories and Rupert's Land came in- that Rupert's Land was dealt with under the terms of the second address of May, 1869, and that the Northwestern Territories were brought in under the terms of the first address of December, 1869.

In anticipation of the passage of this Order in Council of June, 1870, 32-33 Victoria, chapter 3 was passed in 1869 ; that is the Act which makes provision for the administration and government of Rupert's Land and the Northwest, and in 1870 on the 12th of May. 33 Victoria, chapter 3 was assented to, and that is the Manitoba Act. Doubts having been expressed as to whether or not certain provisions of that Act were within the sphere of the authority of the parliament of Canada it was decided to submit the Act for approval to the imperial authorities, and I desire to examine some of the provisions of that Act and also to see what were the doubts expressed at that time. Let me, in the first place, draw special attention to sections 2, 22 and 30 of the Manitoba Act.

Section 2 applies the provisions of the British North America Act to Manitoba, except so far as these provisions may be varied by that Act. Section 22 is what is

called the educational clause and contains provisions in some respects wider in their scope than section 93 of the British North-America Act. Section 30 has reference to the ungranted land which remained vested in the Crown. Now, Mr. Speaker, I have drawn the attention of this House especially to these three sections of the Manitoba Act, and I have drawn the attention of this House to those three sections because these section contain almost in terms those provisions of the Act now under consideration, which are especially attacked, and in connection with which the doubt has been expressed as to our power to constitutionally deal with this Bill. Let us look at the origin and history of these sections. Bear first in mind, that the Manitoba Act which contains the provisions I have just mentioned was drafted by Sir John Macdonald the father of confederation, then Attorney General of Canada, and it was introduced by him into this House and subsequently passed through the Senate at a time when the men who were most familiar with the scope of the provisions of the British North America Act, when the men who had discussed that Act section by section, line by line, word by word, were all either in this House or in the Senate. I have searched the debates of that day in vain for one word said in criticism of any of these three sections. There is not one word to suggest even that this parliament was not competent to pass such legislation. To set that question at rest, because it is of some importance, I have made an analysis of the debates which will be found in | Hansard ' of 1870, pages 1287 and following. If those who are interested in this question consult ' Hansard ' they will find that Sir John Macdonald introduced the Act, and he said among other things :

The proposition of the government is that the people of .the province shall be represented in the senate by two members until the province shall have a population at the decennial census of 50,000, &c.

Then Mr. Mackenzie spoke at page 1296, and he was followed by Cartier; then Mr. Macdougail intervened, then Mr. Ferguson, then the Hon. Joseph Howe, then again Sir John Macdonald, then Mr. Wood, then Mr. Harrison, then Mr. Mill's, then again Mr. Macdougail and then again Sir John Macdonald ; and it will be found that not one of these gentlemen ever referred to the question as to whether or not it was competent for this parliament to pass these sections. There was not a single voice in this House raised in protest against the action of the government at that time with respect to the Manitoba schools. I know it is said, that we cannot derive any advantage from an examination of the Manitoba Act because that Act was not in reality passed by this parliament. It ' is

said that, while it is admittedly true that such legislation was put through this House because of a doubt that had arisent it was found necessary to refer the Act to the imperial parliament, and it is said that consequently we have to examine it absolutely in the same way as if it had been an Imperial Act. Let us see what occurred in that connection. After the Act was passed here it was thought necessary to refer it, I admit. When it was referred, was any doubt suggested with respect to the right of this parliament to pass the three clauses in question? Those who are interested in this aspect of the case can see Sir John Macdonald's report

he was then Minister of Justice-printed at page 9 of Hodgins' collections. It will be there found that Sir John Macdonald said :

A question was raised as to the power of parliament to pass the Act and especially those of its provisions which give the right to the province to have representation in the Senate and House of Commons of the Dominion.

That was the only point with respect to which any question was raised as to the validity of the legislation. But, Sir John Macdonald goes on further and he says :

Under these circumstances, as a question as to the constitutionality of the Act of the Canadian parliament has been raised, and as a doubt may cause grave disquiet in the Territories which have been or may hereafter be added to the Dominion, and in order also to prevent the necessity of repeated applications to the Imperial parliament for legislation respecting the Dominion, the undersigned has the honour to recommend that the Earl of Kimberley be moved to submit .to the imperial parliament at its next session: first, confirming the Acts of the Canadian parliament, 33 Vic., chap. 3, the Manitoba Act, as if it had been an imperial statute and legalizing whatever may have been done under it according to its true intent. Second-

To this clause of the report I wish specially to draw the attention of the House :

Second, empowering the Dominion parliament from time to time to establish other provinces in the Northwestern Territories with such local government, legislature and constitution as the Dominion parliament may think proper, provided that no such local government or legislature shall have greater powers than those conferred on the local government and legislatures by the British North America Act, 1867; and also empowering it to grant such provinces representation in the parliament of the Dominion, the Act so constituting such provinces to have the same effect as if passed by the imperial parliament at the time of the union.

Now, Mr. Speaker, it has b*een said that no argument can be drawn from the Manitoba Act because the Manitoba Act was passed subject to a doubt which was expressed with respect to its validity, and that it was necessary to get a confirming Act from the imperial parliament. Let us see how far the doubts then expressed

532a

Trere well founded. When this Act -went to the imperial authorities it was necessary to introduce legislation ; it was necessary to introduce the Act of 1871, known as tihe doubt removing Act. And. when this Act of 1871-the British North America Amendment Act-was introduced it was necessary to explain its provisions', and it was necessary especially to explain why the imperial parliament was interfering. Bari Kimberley made that explanation on the second reading or the Bill-I quote from imperial ' Hansard of 1871, page 1171. He explained that the Act he was introducing :

Was intended to remove doubts which had been cast upon the validity of certain Acts of the Canadian parliament. The Act of the Confederation of the North American provinces gives power to the parliament of Canada to establish provinces and territories admitted or thereafter to be admitted into the Dominion of Canada, but an Order in Council was necessary.

Here is the point I want to make. The law officers of the Crown in England were naturally consulted about the Act, and what did they say ? The law officers of the Crown were of the opinion :

That these Acts '(the Manitoba Acts) were valid but doubts having been expressed the Canadian parliament has addressed the Crown for an Act of the imperial parliament confirming their validity.

There is the opinion of the law officers of the Crown in 1871. expressed at a time when the ink was scarcely dry on the Act of 1867. which had been passed by the same parliament. And who were these law officers ' They were Sir Robert Collier and Sir John Coleridge ; these were the men who in 1871 expressed the opinion that the parliament of Canada, even without the Act of 1871, had the power to pass sections 2 22 and 30 of the Manitoba Act. I think that I am fortified by that opinion and may fairly claim the right to set it up against some of the opinions that have been quoted against me in this House, and more especially by the editors of some newspapers who apparently profess to be so well versed in constitutional law.

Let me draw your attention to the tact that when section 22 of this Manitoba Act was enacted for the special protection of the minority in Manitoba, there was no word of criticism in this House or in the great newspapers of those days- then the ' Globe ' was edited by George Brown, no word raised against the action of the government which at that time was seeking to give to the minority of Manitoba the very guarantee with respect to education which we ' are now trying to give to the minority of the Northwest Territories. Surely it will not be argued that there was no word of protest raised at that time because it was then thought that Manitoba was to be a French preserve.

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LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

How are we to explain the difference between the spirit shown in those days and the spirit shown in these ? Was there any question then among the great men of Canada, the men who had made confederation, of manacles, of shackles, of invasion of provincial rights? Father Richot had been consulted; Archbishop Tache had been summoned from Rome. Was there at that time any denunciation or any suggestion of improper interference by the Roman Catholic hierarchy ? Why the contrast between those days and these ? Surely it will not be suggested, in this country of broad and tolerant men, in this age of enlightenment, in this twentieth century* when we hear on all sides advanced the doctrine of the universal brotherhood of man, that there are things which -Sir John Macdonald might do m in'd and which are not permitted to Sir Wilfrid Laurier in 1905. _ , . .

Now, without the Act of 1871 what position would we be in to-day ? Under the Order in Council of 1870 we were authorized to legislate for the future welfare and the good government of the territory. Could we to-day have given to that territory provincial status ? I say that it is not only doubtful, but it is almost certain that we could not. \Ve have 110 authority to deal with the Northwest, Territories as we dealt with Manitoba under the Act of 1868. That

Act was limited exclusively in its application to Rupert's Land. Could the King to-day, pass an Order in Council under the provisions of section 146 ? Undoubtedly not. A delegated power once exercised is exhausted; every lawyer knows that; and the right to legislate by Order in Council under the provisions of section 146 was a right delegated by the imperial parliament to Her Majesty, and once exercised that power was exhausted. Could we do it under the Order in Council of 1870 ? Undoubtedly not, because there is another principle of law which is equally certain with the one to which 1 have just referred: delegatus delegare non potest. Therefore, it is necesary for us to find authority for our action "in the present instance within the four corners of the Act of 1871. That Act in section 4 provides :

The parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included m any province.

It is under that section that we have legislated since 1871 for the Northwest Territories. These words, ' peace, order and good government,' have received a judicial construction by the highest court in this laud. They were construed against myself by the Privy Council in a case from which I will read an extract-the Reil case, which is reported in Appeal Cases, volume 10. page 078. Their Lordships of the Privy Council say:

The first point is that the Act itself under the petitioner was tried wTas ultra vires the Dominion parliament to enact. That parliament derived its authority for the passing of that statute from the imperial statutes, 34 and 3o Vic., e. 28, which enacted that the parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included in any province. It is not denied that the place in question was one in respect of which the parliament of Canada was authorized to make such provision, but it appears to be suggested.that any provision differing from the provisions which in this country have been made for administration, peace, order and good government cannot, as a matter of law, be provision for peace order, and good government in the Territories to which the statute relates, and further, that if a court of law should come to the conclusion that a particular enactment was not calculated as a matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to those objects, but which a court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion parliament to enact.

Their lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactments for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country have been authorized in Her 'Majesty's Indian empire. Forms of procedure unknown to the English common law-have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mischievous consequence.

Now, sir, we are not legislating at the present time under the provisions of section i of the Act of 1871. We are legislating under the provisions of section 2 of the same Act, where we find exactly the same words as are used in section 4. Section 2 reads :

The parliament of Canada may, from time to time, establish new provinces in any territories forming for the time being part of'the Dominion of Canada, but not included in any province thereof, and may at the time of such establishment, make provision for the constitution and administration of any such province, and for the passing of laws for the peace, order and good government of such province and for its representation in the said parliament.

These words, in the opinion of the law lords, absolutely authorize * the utmost discretion of enactment to quote the expression used by Lord Halsbury, the present Lord Chancellor. Let us look again at section 2 of the Act of 1871.

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CON
LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

I do not think that the law officers of the Crown in England begged the question in 1871-Sir Robert Collier and Sir John Coleridge. Let me say here that the construction of a statute is 169

no great secret. A statute is intended purely and simply to give effect to the intention of the legislature which enacts it; and as a rule the legislature uses ordinary plain English words in grammatical forni, and the words in a statute are to be construed in the same sense as they would be in ordinary conversation. That is the intent of the law. Let us read the section again and see what mystery there is in it:

The parliament of Canada may, from time to time establish new provinces . . . and may, at the time of such establishment, make provision for the constitution and administration of any such province.

Can words he clearer ? What is there ambiguous about these words ? I hold that section 2 expressly gives power to the parliament of Canada to establish new provinces in any of the Territories forming part of the Dominion, but not included in any province thereof, and for the passing of laws for the peace, order and good government of any such province, and its representation in parliament. Bear in mind that this Act was passed at the request of the Canadian government, and remember what I read a moment ago from the report of the late Sir John Macdonald, in which he asked that the Act be passed and said that it was the desire of the Canadian parliament to be empowered from time to time to establish other provinces in the Northwest Territories, with such local government, legislatures and constitutions as it might deem fit to give them. That was the request made by the Canadian parliament, and section 2 is one of the provisions of the law which was passed in answer to that request.

It seems to me that there is another argument to be drawn from this. The Act of 1871 not only contains the provision which I have just read-and bear in mind the circumstances under which it was passed-but it also contains a provision to confirm the Manitoba Act, that is to say to confirm an Act which contains these clauses of which I spoke a moment ago, among which are the educational clause and the clause with respect to the ownership of public lands. The imperial authorities, having had notice from the Canadian parliament that it construed its powers to mean that it had the right to deal with these two questions in the way in which it had dealt with them, confirm what the Canadian parliament did and give it power to g'o on legislating on similar lines in the future. It seems to me impossible to find a case in which the intention of the imperial parliament to give this parliament the power to do in a case like the present which is in all fours with the Manitoba case what was done by the Manitoba Act could be more dearly expressed.

This Act, the British North America Act of 1871, marks a long step in advance of the powers which the Dominion parliament

at that time enjoyed. The Act of 1867 provided only for the establishment of four provinces and their union into one under the name of the Dominion, and for the extension of the Dominion by admission into it of other parts of British North America. But by the Act of 1871 new powers are either granted or confirmed to the Dominion parliament: First, to administer the Northwest Territories as such without giving them the rights or the status of provinces ; second from time to time to establish new provinces and at the time of such establishment to make provision for the constitution and administration of such provinces. -Now, observe that the words of section 146 of the British North America Act of 1867 ' Subject to the provisions of this Act ' do not appear in section 2 of the Act of 1871. The words ' may make provision for the constitution and administration of any such province ' are not restricted or qualified by any thing in this section contained, and are as broad and comprehensive as words can be for the purpose of enabling this parliament to frame a 'constitution for any province it may deem expedient to establish. I am not unmindful that in the last paragraph of the Act of 1886 it Is said :

This Act and the British North America Act, 1S67, and the British North America Act, 1871, shall be construed together, and may be cited together as the British North America Acts, 1867 to 1886.

Does that mean that you are to give effect to clauses in any one of the Acts, that are obsolete ? Or does it mean more than this ? That you are to read all the Acts together, so as to give each section in each Act its full effect in order that it may have its complete operation ? These words in section 146 ' subject to the provisions of this Act ' have their meaning and their place in that section. What occurred with respect to that section ? The imperial parliament passed the British North America Act of 1867, not merely, as an Act is passed under ordinary circumstances, to give effect to the intention of the legislature, but to give effect likewise to a solemn compact entered into between three distinct and separate political entities ; and when that Act was passed, provision was made that by exceptional legislation-that is to say by Order in Council-Her Majesty was empowered to bring other provinces into confederation and to allow other provinces to be carved out of the Territories. Therefore it was of prime importance that in that provision authorizing Her Majesty to exercise these exceptional powers, under these exceptional circumstances, a restriction should be put upon the exercise of those powers, and that Her Majesty should be told: You can bring in new provinces, you can carve out new provinces in these Territories, but you shall do it subject to the Act we have

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LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

passed. There are reasons for these words in these circumstances ; but when the imperial parliament in 1871 delegates these powers to the Dominion parliament, to be exercised by that parliament absolutely and for all time, just as they would be by the imperial parliament, we are acting, not under the provisions of an Order in Council-but under the authority of an imperial Act.

I am not quite sure that there are many members In this House who have observed a subsection of section 2 of the Act of 1886, upon which I do not care to lay much stress, but upon which, if I had a weak case, if I had a case which was not superabundantly proved otherwise, 1 might lay considerable stress. Section 2 of the Act of 1886 contained this extraordinary provision :

It is hereby declared that any Act passed by the parliament of Canada, whether before or after the passing of this Act, for the purpose mentioned in this Act

The purpose was the representation of the province in the parliament of Canada.

____or for the purpose mentioned in the British

North America Act, 1871, has effect notwithstanding anything in the British North America Act of 1867.

That is to say, the imperial authorities in 1886 declared, in anticipation, that any Act passed under the authority of the Act of 1871 shall be valid and effective. What could be the object of such legislation ? I do not require to rely upon it ; but it seems to me, as I said a moment ago, that if I wanted to indulge in a little hair-splitting, I would find here all the comfort I require.

Chapter 16 of the statutes of 18 <1, and chapter 5 of the statutes of 1872, were passed to provide for the government of the Northwest Territories. And finally, in 1875, an Act was passed which may be very correctly described in my opinion, as the constitutional Act of the Northwest Territories. That Act was amended on several occasions and consolidated in 1880 and again consolidated in 1886. In 188S and in 1804 other Acts were passed which gave to the Territories practically local self-government and what is their position to-day ? In order that there may be no doubt about that I will read an extract from the letter written by Mr. Haultain to the Prime Minister (Sir Wilfrid Laurier) and published in the Ottawa ' Citizen ' of March 13th last:

The new territories have for a number of years been under one government and legislature performing most of the duties and exercising many of the very important powers oi provincial governments and legislatures. There has never been any suggestion that the territorial machinery was in any way inadequate for the purposes for which it was created.

In a word, It is admitted on all hands that at present time the Territories have already * been granted nearly all the legislative

powers that can be given under any other constitution-where they at present fall short may be briefly stated as follows :

1. Limitation of the power to amend the constitution to a power to deal with elections simply.

2. The withholding from the Territories the power to borrow money.

3. The retention of the power to deal with the public domain.

4. For the absence of authority to establish such public institutions as hospitals, asylums, &c.

5. No power being given to take, cognizance in any way whatever of public undertakings other than such as may be carried on by joint stock company.

6. The assumption by the Dominion of the

duty of administering criminal justice in the Territories. .

Now, Mr. Speaker, we are called upon to add the little that is necessary in order to give full autonomy to these Territories. The first question to be considered is : Has parliament the power to legislate for these new provinces in the manner proposed ? And the second question is : Are the provisions for the establishment of these new provinces fair and reasonable in view of the conditions now existing in those Territories ? I will not repeat what I have just said about the Act of 1871. But it has been suggested that the provisions of the British North America Act apply automatically to the new provinces. What that means, i must confess, I am somewhat at a loss to understand. 1 think I heard it suggested by some that our authority in this parliament is limited to the making of a declaration that the territory affected is a province, and then the provisions of the British North America Act would be applicable. Is that what is meant by saying that these provisions apply automatically ? This might be possible with respect to those provisions that apply to all the provinces. But what of the others ? There are provisions that apply to Quebec, there are provisions that apply to Ontario, there are provisions that apply to Ontario and Quebec, there are provisions that apply to New Brunswick, there are provisions that apply to New Brunswick and Nova Scotia ; and there are some provisions that apply to all the provinces. Which of these would apply here ?

Let me here again lawyer-like appeal to precedent. Those who drafted the British North America Act and who may be supposed to have best understood its provisions, were called upon, very shortly after they had drafted the British North America Act to draft the Manitoba Act. How did they proceed ? Section 2 of the Manitoba Act is practically section 2 of this Bill. That is to say, in the Manitoba Act you find a section declaring provisions of the British North America Act applicable to Manl-1091

toba. If these provisions apply automatically where is the necessity for thisi section? The same thing applies to Prince Edward Island and to British Columbia. When British Columbia came into confederation, in 1871, those who are curious enough to look into the details of this matter will find, in the Order in Council provision is made which is practically in terms identical with the section of this Bill. And the same thing applies to Prince Edward Island. In all these cases the terms of the British North America Act were applied to the new provinces, except so far as they may be varied or amended by the statute or the Order in Council.

Then it has been argued that the provisions of the British North America Act may be made applicable, but we have not the power to alter or vary the terms of the British North America Act. Here again I appeal to precedent. If we have no power to vary the British North America Act why did they insert in the Manitoba Act, in the Prince Edward Island Order in Council, and the British Columbia Order in Council, a provision that the sections of the British North America Act would be applicable to these provinces except in so far as they may be varied or altered by the Act or by the Order in Council ? If we are in error, it seems to me, we have ample precedent for our error. On that branch of my argument, the conclusion I come to is, that we have the power to give to these provinces such a constitution or administration as this parliament deems it expedient to give. But the most that can be said in favour of those who take the contrary view-and it has not been said so far as I am aware-is that inasmuch as the British North America Act, 1871, provides that the parliament of Canada may from time to time establish ' prdvinces,' the word ' provinces ' as so used must be interpreted having regard to the meaning of that word in the British North America Act, 1867, and therefore the province so established must be an institution corresponding generally with the provinces whose constitution is fixed in the British North America Act. Admitting, for the sake of argument, that that is so, it can only require that the new provinces shall be constituted, as to correspond in powers with the other provinces so far as, with regard to any subject or class of subjects the powers of all the provinces are the same. I might labour the point indefinitely and not get much further on In addition to the quotations from Sir John Thompson made by the leader of the opposition, I would refer to a further statement by that gentleman which will be found m ' Hansard ' of July 16th, 1894, page 6130. It will there be found that Sir John Thompson, one of the greatest constitutional lawyers among the many eminent men who have filled the position that I now occupy, held clearly and distinctly that the constitution

of the provinces which are now being created is to be settled by this parliament exclusively. That there may be no doubt on that" subject, perhaps I had better read an extract from the 'Debates.' Sir John Thompson said, in answer to Mr. McCarthy:

The hon. gentleman's argument, of course, was that if this system

That is to say the school system of the Territories.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

X think an explanation is due to the Minister of Justice.

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?

Some hon. MEMBERS

Sit down.

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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

If I am not permitted to make an explanation, if the hon. gentleman will not, out of courtesy, permit me to make an explanation, I will sit down.

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May 3, 1905