June 26, 1908

CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

As a matter of fact, what is the modus operandi by which this is worked out ? There is an appeal to the minister and the minister makes his decision. What process takes place before ? I lsnd an idea that there might be provision made for a quick and inexpensive land court conducted by the inspector and one or two other officials, who are in the district and who, having local knowledge, could, in most cases, settle these disputes,

were they so empowered, subject, of course, to an appeal to the minister, I recognize that the thing to be done effectively ought to be done quickly, that there should be no delay and it just struck me while the minister was speaking that an authorized land court, consisting of officers on the spot, might be an inexpensive and speedy way of settling these disputes.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

That is practically what is done. The dispute comes immediately before the land agent. The land agent, not being clothed with authority to settle the dispute by the terms of the Act, reports it to the head office. The head office orders an inspection and report, if it is a question of fact with regard to the ground, and as soon as the homestead inspector's report is received a decision can be given and is given by the minister. There are, of course, cases in which it is not so much a question of fact upon the ground as in regard to other matters, and in such cases the reference by the minister may be to the laud agent. But, the ordinary case is a case of dispute as to the fact upon the ground and in regard to that the report of the homestead inspector is the deciding influence or evidence.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
L-C

John Herron

Liberal-Conservative

Mr. HERRON.

Could such a question as this not be dealt with on the ground better by the laws applying to ordinary arbitration? We know that the questions have to be settled by evidence taken, and in very many instances land agents, while I think they are generally fair in such cases, find it very difficult to get into possession of the facts in the same way as disinterested people i,n !the neighbourhood could. It seems to me that some form of arbitration might be adopted that would settle such disputes as are mentioned in this clause.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
CON
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

They are necessarily fairly frequent. In regard to the suggestion of ordinary arbitration, I do not know whether or not my hon. friend was ever concerned in an arbitration, but I think he will find that arbitration is a very expensive method of settling a dispute, especially if the dispute does not involve any large amount of actual money. The whole purpose of this Act and the purpose of the summary authority that is given to the minister is to put the man without means on the same footing as the man with means. With this end in view, summary authority is given in this way. The principle has been recognized in all Lands Acts that we look to the men of lesser means for the actual pioneer work throughout the country. Therefore, we have to provide that they shall have a fair opportunity of maintaining their rights irrespective of their financial means. Under the provisions of this Act as it has been and as it is, we are merely carrying forward that same principle that the man without means

lias exactly tlae same standing as the man with means. It is do reflection upon the administration of justice in Canada, it is simply a matter of fact, that under the expensive processes of law the man with means has a very considerable advantage over the man without means, and it is to get away from that idea that our predecessors, as well as ourselves, have undertaken to administer this question of disputes in a prompt and summary manner.

'Mr. R. L. BORDEN. I admit that there is a great deal of force in what the minister says as to settling in a summary manner disputes that are only trivial. The difficulty is that the words which give you power to bring that about give you power to deal with matters that are of very great moment and to deal with them as the minister or some official in his department may determine, both with respect to the result and with respect to the procedure by which that result is arrived at. Take, for example, the Griffiths case, brought up by the hon. member for Calgary (Mr. M. S. McCarthy) last year. One man had sold some cattle to another. He did not get paid. He made some pretense about having an interest or claim upon that man's homestead. He entered into possession of the lands and brought what lawyers call a suit for specific performance. The courts decided that he had no case. He brought his case to the attention of the department and the department reversed the decision of the court, holding that he had a lien upon the land, and told the actual owner of the land to get out or settle with the man for his cattle. I think that was a very high-handed course for the department to take after the question had been litigated between the parties, and after the man who had brought the action had been declared by the courts of the land to have no remedy. Then take the Blairmore townsite case. I am not alluding to that in any partisan sense, but there the department had power, and exercised it, involving land of an enormous value. Every citizen of this country is entitled to the ordinary remedies of the court, to avail himself of the ordinary law and procedure of the land under which he has the right to have his case heard, to cross-examine his opponent and his opponent's witnesses upon oath. But to substitute for that in respect of matters that may involve very large amounts of money the summary and, sometimes, rough methods of departmental inquiry is a very serious thing. You have the two difficulties, the necessity of dealing with trivial matters in a summary way and, on the other hand, of avoiding in cases of very great moment the putting aside of the regular law of the land, to which every one is entitled, and administering a different system of law and procedure.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

There is no doubt about what my hon. friend says that the form of Mr. OLIVER.

words which gives summary authority in a trivial case also gives summary authority in an important case. We are not introducing a new principle, we are simply carrying forward the principle that was adopted many years ago and that has been found, I am bound to say, in practice absolutely necessary. There were in the last three years 100,000 homestead entries in the western country. It is necessarily a fact that in that enormous number of homestead entries there must be some considerable proportion of disputes which require attention. Out of that enormous number of entries and the proportionate number of disputes, the number of cases of what you might call first-class importance, cases that would warrant the expenditure necessary for an appeal to the courts, is almost infinitesimal. So that while we admit the objection to placing matters of large financial moment at the summary disposition of the minister, as would appear to be done by the provisions of this section and by the sections which it amends, we are perfectly satisfied that to provide for the small number of large cases by causing delay and expense in the enormously large number of small cases would not be for the general well-being of the country or the better and more successful administration of the law.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

How would it do to add something like this, although -I am not suggesting these words as a form to be adopted :

And he may in respect of any dispute of difficulty or importance refer the question for determination to the courts.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

That is really a worse responsibility than the other, because it lays the responsibility upon the minister of saying whether the case is important enough to go to the courts or not. I would hardly like to be charged with that responsibility.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Of course, there is precedent for that idea. For example, in every country where a system of arbitration "is provided for, the arbitrators always have power to reserve any question of law for the determination of the courts, and if it is a difficult question they usually do reserve it. I really think that the minister has power to do it under the law as it is at present.

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

Of course, we have this advantage, that in any case of importance we have recourse to the advice of the Department of Justice. What my friend finds objectionable in this instance is the absolute discretion of the minister. If he will provide some form of words that will relieve the minister from the exercise of the discretion, I will be inclined to agree with him. But the proposal does not relieve the minister the exercise of discretion. It lays upon him the responsibility of exercising the

Topic:   DOMINION LANDS ACT-AMENDMENT.
Permalink

190B


discretion of referring the matter to another tribunal. That is from my point of view a more objectionable responsibility than the responsibility of actually giving the decision, when it is considered that we have the advantage of the advice of the Department of Justice in regard to any legal question that may arise.


CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

It does not strike me that it would increase the responsibility of the minister. Trivial disputes would as heretofore be settled by the minister offhand or upon the report of some official of the department. But in a matter of very serious moment the minister may hesitate as to whether he shall determine it himself or send it to the courts. If he decides to leave it to be adjudicated upon by the courts, I do not see how that increases his responsibility. It seems to me that it diminishes it.

* Mr. OLIVER. Of course, my hou. friend is aware that a demand from one of the parties for the opportunity of trying the matter out before the Exchequer Court is usually acceded to; but that is hardly the view of my hon. friend has expressed. Although that is a matter in the discretion of the minister, it becomes a matter of policy, By the demand of one of the parties to take the matter to the Exchequer Court, the minister is relieved of the responsibility of sending the parties there. I want to be relieved of the responsibility of sending people to court who do not want to go to court. That is quite a different matter from permitting people who want to go to court to go there. ,

Topic:   190B
Permalink
CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

Does it go to court if only one of the disputants asks that it may, or has there to be an agreement between them?

Topic:   190B
Permalink
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

I am speaking of a dispute between the government and an individual, which in the end is one between two individuals. That is to say, there is some interest that is in question between the government and a citizen. The rights of some third person probably depend on whether the rights of No. 1 are conceded or not. If No. 1 considers that his rights are being trespassed upon, and demands that the case go to the court, it is permitted to go to the court.

Topic:   190B
Permalink
LIB

William Erskine Knowles

Liberal

Mr. KNOWLES.

Is there any machinery by which the decisions may be enforced 1 I have in mind a case in which a decision was given against a party in possession of a homestead and he refused to vacate, and the party who was adjudged to be entitled to the homestead, though a man of small means, was put to a great deal of delay and expense in consequence. I was informed at that time that there was no provision in the former law for the enforcement of the decision. I would like the minister to consider the importance of having such machinery provided in this legislation.

Topic:   190B
Permalink
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

The responsbility of enforcing or upholding the rights of a homesteader hardly rests upon the government. The government gives the homesteader the right of possession and occupation, and it seems to me that it is for him to enforce that right in the ordinary manner, which his entry paper enables him to do. I am quite aware that there is the hardship that my hon. friend speaks of, that a homesteader without means is hardly in a position to take the necessary proceedings to procure an ejectment, and it might be right and proper for the government to take the responsibility of ejecting an intruder in such a case; but I would hardly like to take the responsibility of summary ejectment. It would be only right that ejectment should take place on the order of a court.

Topic:   190B
Permalink
LIB
LIB

Frank Oliver (Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. OLIVER.

It is, but we have granted to the homesteader the right of occupation and possession against all. the world, and the courts will uphold him in that right. We may assume the right over land which is government property or under government reservation; but having passed our right of occupation to another, it is for that individual to maintain his rights in the courts. If, however, we should see fit to assume any responsibility, I would be only in favour of doing that by process of the courts.

Topic:   190B
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I think the department perhaps is inclined to interfere too much. Griffith's case is an illustration. I would have applied for a writ of injunction against the official if I had been that man. If the law of the Northwest is like that of the eastern provinces with regard to the issuing of writs of injunction, any one in the department who would threaten to interfere with the man in possession of the land would probably find himself committed to jail.

Topic:   190B
Permalink

June 26, 1908