May 12, 1905

LIB

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

Liberal

Mr. FITZPATRICK.

I am afraid that it would interfere with the rights of the provinces.

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CON

Alfred Augustus Stockton

Conservative (1867-1942)

Mr. STOCKTON.

It is a pretty difficult matter to deal with. I remember that when we passed the Medical Act in New Brunswick, we provided that those who had been practising for a certain number of years should be on the register. The point of my hon. friend from Dufferin (Mr. Barr) is that these men are now on the register for the whole territory, but when this legislation is passed and there are two provinces they may find themselves curtailed of their rights in a par4 of the country where those rights are now unquestioned. On the other hand, I can see the difficulty raised by the Minister of Justice, that this is a matter that comes within the jurisdiction of the provinces themselves. It is a pretty difficult question to deal with, and it is doubtful whether the minister could deal with it in this Bill in the manner suggested. Another question might arise with respect -to the lawyers, who are not very well able to look after themselves, I suppose. When the two provinces come into existence under this Act, would persons be attorneys and barristers of both provinces because they are now attorneys and barristers of the Territories ?

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IND

Leighton Goldie McCarthy

Independent

Mr. L. G. MCCARTHY.

Not unless the local legislatures make them so.

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CON

Alfred Augustus Stockton

Conservative (1867-1942)

Mr. STOCKTON.

That being the case, it seems to me it is a matter to be dealt with by the local legislatures.

Mr. ^FITZPATRICK. I do not see any other way. I think we are going as far as we consistently can when we say that, so far as we are concerned, pending legislation by the -provinces, we continue the present state of things.

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CON

Alfred Augustus Stockton

Conservative (1867-1942)

Mr. STOCKTON.

I do not think you can go further.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

The language of this section seems to me to be rather curious :

Except as otherwise provided by this Act all laws (including the provision of the Northwest Territories Act and the amendments thereto, Mr. FITZPATRICK.

notwithstanding the repeal thereof by this Act)

And so on. You first repeal an Act and then bring its provisions into force until otherwise provided by the legislature.

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LIB

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

Liberal

Mr. FITZPATRICK.

That is the way it first strikes one, and that i-s the way it occurred to me. But it was pointed out to mo by the Deputy 'Minister of Justice that the intention was to repeal the Northwest Territories Act-to get rid of it absolutely, yet -at the -same time to -continue those provisions of it that were applicable to the Territories and not inconsistent with the provisions of the new Act.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

I understand the object quite' well, but it is the language I call attention to.

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LIB

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

Liberal

Mr. FITZPATRICK.

I must confess that it would naturally suggest a question. But I have accepted it, because I am acting as a client with his solicitor. I am advised by tlie officer of the department that the language is apt. And Mr. Newcombe, the deputy minister, as every one knows, is eminently well qualified as a draughtsman in a matter of this sort. It has just been suggested to me by an official of the department that this law will become like the imperial -statutes, some of which are in force in Canada at the present time. Or I might give an illustration which appeals more to me. Take the body of our law in Quebec, our code-while that is merely a statute it is considered, so far as we are concerned, as similar to the system of the common law in the English-speaking provinces.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Is there a precedent for an expression of this kind ?

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LIB

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

Liberal

Mr. FITZPATRICK.

I never saw it

before.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I am inclined to tliink that I have seen expressions like this in the imperial statutes-in some of the later consolidations.

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LIB

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

Liberal

Mr. FITZPATRICK.

I was going to make that observation. The deputy -minister is now engaged in the revision of our statutes, and I think that these words have been adopted from the consolidation of the imperial statutes, which he has before him. I -am not positive as to that. I questioned him as to the form in which the Act appears. He told me the intention, and I thought I could rely upon him to express that intention in apt words.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

The thing is necessarily somewhat involved, because we are dealing with a complicated subject ; but let us see if I understand the intention. Is it the intention to repeal the Northwest Territories Act and to legislate in this section, by reference, its provisions with respect to any matters that require to be provided for, and also to provide that such of

these matters as are confined within the bounds of provincial jurisdiction shall be subject to a repeal by the provincial legislature ?

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LIB

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

Liberal

Mr. FITZPATRICK.

I think ithat is practically what it is. Let me express it in my own way, that we may see whether my hon. friend (Mr. R. L. Borden) and I are at one in our understanding of the matter. The Northwest: Territories Act is a Dominion Act, and, as such, it can only be amended by us. If it is allowed to continue in operation it will form part of our consolidation of the -statutes. But the intention is to repeal that Act, but, at the same time, to incorporate the provisions of that Act, so far as they are not inconsistent with the provisions of this Act, into this Act for the -establishment of the province of Alberta, so that it will become their law instead of ours. It disappears from our statute-book, but it becomes part of the statute law of the new provinces.

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CON

Alfred Augustus Stockton

Conservative (1867-1942)

Mr. STOCKTON.

And liable to be changed by them ?

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LIB

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

Liberal

Mr. FITZPATRICK.

Absolutely - as much so as if it was their own statute. Do I make myself clear ?

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

The object is to repeal the Northwest Territories Act and to incorporate into this section the provisions of the Northwest Territories Act which are applicable to the newly constituted provinces ?

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LIB

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

Liberal

Mr. FITZPATRICK.

Yes.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

It seems to me that the danger of general words of that character is that you may get something into this new law that you do not intend to include such as I suggested with regard to section 5. Then there was the point which was mentioned by my hon. friend from South Simcoe (Mr. Lennox), which had occurred to me before he spoke. The Northwest Territories Act deals with a number of matters, which, under the constitution of the new provinces, are not to be the subject of provincial legislation. When you legislate by reference to the Northwest Territories Act you may embody something in the constitution of the new provinces which cannot be dealt with afterwards, either by the provincial legislature or by this parliament

the provincial legislature being unable to deal with it because the subject i-s not within the sphere of -the provincial authority, and this parliament not being able to deal with it, because, under the terms of the British Nroth America Act, 1871, we cannot amend legislation of this kind after we have once passed it. That is the difficulty in a general way as it presents itself to my mind. I do not know whether, upon examination of the Northwest Territories Act, any difficulty would be found, 18S

but it sems to me that he Northwest Territories Act should be very carefully scrutinized with that view. And it occurs to me that it might be found more expedient, if not absolutely necessary, to adopt another course ; that is to say, instead of incorporating the provisions of the Northwest Territories Act by a general reference, such as has been made in this section, to select -those sections of -the Northwest Territories Act which deal with matters necessary to provide for and to incorporate in this section these particular provisions by reference to the sections which contain them. I do not know whether I have succeeded in -making myself clear.

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May 12, 1905