May 12, 1905

LIB

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

Liberal

Mr. FITZPATRICK.

Quite so, I see the point. It seems to me in cases of this kind we ought as far as possible to make enactments of a general nature so as to avoid particularizing. I hate to get down to details in a matter of this description. It seems to me that we might bear this in mind : We are here creating a province, we are giving to that province certain powers, in these provinces of the Northwest Territories Act, which, shall remain part of their legislation ; those powers that would be matters of Dominion concern would not pass to them at all. The intention is to give out of the Northwest Territories Act to the province those powers which they might themselves create in the exercise of their provincial authority.

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CON

Alfred Augustus Stockton

Conservative (1867-1942)

Mr. STOCKTON.

Otherwise they would not have any law at all to govern them.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I appreciate the ai-gument of the minister. But looking at the provisions of section 15, omitting the immaterial words, you will observe this :

Except as otherwise provided by this Act, all laws, including the provisions of the Northwest Territories Act and amendments thereto existing immediately before the coming into force of this Act, shall continue as if this Act had not been passed, subject, nevertheless, to be repealed, abolished or altered by the parliament of Canada or by the legislature of said province, according to the authority of the parliament or of the said legislature under this Act.

Well, assuming that we have the power under the British North America Act of 1871, which the Minister of Justice suggests -I am adopting his premise for the purpose of discussion-does not that bring into force in the new province certain constitutional provisions which already exist in the Territories ? I think such will be found to be the case, upon an examination of the Act, and by the reservation which you have made of repeal by this parliament, can you really reserve to this parliament the right to repeal, having regard to the fact that under the Act of 1871 you cannot alter this constitutional Act after you have once created i\t ? There are certain constitutional provisions with regard to the Northwest

Territories at the present time. I have already mentioned the provisions with respect to the Lieutenant Governor with regard to other matters such as sessions of the legislative assembly, proceedings of the legislative assembly, &c., I do not observe that these are, in all cases at least, provided for otherwise by this Act we are now considering. Well, is there not some danger that you may incorporate something into this statute which will be afterwards found not very desirable, and which after all we cannot repeal ? Has the Minister of Justice or any officer of the department gone very carefully over all the provisions of the Northwest Territories Act in that view ? That is what I am anxious about. For example, we might take for illustration section 14 of the Northwest Territories Act as amended and consolidated in 1896 :

The legislative assembly shall pass all necessary ordinances with respect to education, but it shall therein always be provided that a majority ol the ratepayers

,

And so forth. Well, that is continued in terms by this, and I am putting aside for the moment the consideration of section 16, because at all events we do not want any conflict, we do hot want a provision which is inconsistent in any way with section 16. Eut putting to one side section 16, then do you not incorporate section 14 of the Northwest Territories Act as a constitutional provision of this new province, and if you do bring about that result, is it not equally true that this parliament could not afterwards repeal that provision ? I am mentioning that, not in a controversial spirit, but simply by way of illustration.

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LIB

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

Liberal

Mr. FITZPATRICK.

I take it that the Northw;est Territories Aot provides 'that there are some provisions of that Act which reserve to the Dominion government control over legislation, that is to say, the Dominion government legislates to some extent for the Northwest Territories. The Northwest assembly has also powers of legislation. Now, as I view it here, the body of the law which is under the control of the assembly is continued, and also that law, in so far as it is a matter of Dominion concern, is continued. That portion of the law which is under the control of the legislative assembly can be amended, altered or repealed by legislative enactments ; that part which is a matter of Dominion concern, remains under our control. Now there must be, of necessity, some matters under the control of the Dominion authorities in the Territories, as there are in all the provinces of the Dominion, and these laws remain subject to our legislative jurisdiction.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I appreciate that entirely. For example, there is the provision in that Northwest Territories Act with regard to the application of the criminal law of Canada. It goes without saying that Mr. STOCKTON.

so far as that is concerned there would be no difficulty. There are the two classes which the Minister of Justice has mentioned, there is the class of legislation which will hereafter belong to the province, and there is the class of legislation which belongs to the Dominion. But it seems to me that in addition there is another class of legislation, namely, certain provisions in the Northwest Territories Act which might be regarded as constitutional provisions, which do not deal with the Dominion as a whole, but deal with the constitution of the Northwest Territories ; and, as I said before, I thought it might be possible that under the very generous expressions which we are now employing, those constitutional provisions, not being inconsistent with any provision of this Act, and not being inconsistent with the general provisions of the British North America Act, which are brought into force by section 2, might be regarded as a part of the constitution of the province, and that somewhat unexpected results might be found to ensue from this general mode of legislation. The Minister of Justice will observe that the language is very general. When he spoke of it a little while ago. I noticed that he spoke of the effect of this legislation; he said what is no doubt very true, that the intention is to continue in force all such provisions as would be applicable to-the new provinces. But there are no words of that character in this clause so far as I have noticed, possibly they may have escaped my attention.

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LIB

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

Liberal

Mr. FITZPATRICK.

I gather that, from the use of the words 'inconsistent with the provisions of .this Act,' anything that would be inconsistent with the provisions of this Act is excluded.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

The expression is ' except as otherwise provided by this Act.' It might be worthy of consideration whether you should not insert some such expression as that which the Minister employed in explaining the legislation a moment ago.

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?

Mr. L. G.@

McCarthy. Is it not possible that there are more than two classes of legislation incorporated in the Northwest Territories Act, I mean one class within the power of the provincial legislature, the other class in the power of the federal legislature ? If there is not a third-class, then the suggestion which struck me most forcibly of the hon. leader of the opposition (Mr. R. L. Borden) is not effective because the provincial legislature having exclusive jurisdiction in one class, the federal power having jurisdiction in the other, if both of these classes are covered by both jurisdictions there cannot be any difficulty.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

There is no doubt about that, but my point was that there was a third class.

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IND
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Of a constitutional nature.

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IND

Leighton Goldie McCarthy

Independent

Mr. L. G. MCCARTHY.

We 'would have no jurisdiction over that at the present time. I cannot recall, and I have read very carefully, any constitutional provision which would remain applicable to the provinces in any Act.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I pointed one out a moment ago. There are some. If my hon. friend will look at the Territorial Act carefully he will find that there are such provisions. The Northwest Territories Act seems to embrace matters that will hereafter be the subject of provincial legislation, others that will be the subject of general Dominion legislation, and also certain constitutional provisions which I think might be continued in force by the provisions of this section in such a way that they could not be dealt with hereafter either by the provincial legislature or by this parliament.

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LIB

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

Liberal

Mr. FITZPATRICK.

I would be inclined to believe, if there was no section 16, that what my hon. friend has said about section 11 would apply.

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IND
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I was suggesting also a moment ago that there was a provision in this Act in regard to the appointment of an administrator of the government in the absence or illness of the lieutenant governor. There is nothing inconsistent in this Act with a provision of that kind nor is it inconsistent so far as I remember with the provisions of the British North America Act. Therefore you knight have that in the constitution of the province.

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IND

Leighton Goldie McCarthy

Independent

Mr. L. G. MCCARTHY.

It might appoint its own lieutenant governor.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

No, the provincial legislature would not have power to deal with a matter of that kind.

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?

Mr. L. G.@

McCarthy. Well then it would be inconsistent.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I do not mention this as a very serious matter, but only to illustrate what might occur in connection with more important matters under the general words which we are employing.

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May 12, 1905