April 11, 1916

LIB

George Perry Graham

Liberal

Mr. GRAHAM:

We are dealing with one of the most vital matters in the Railway Act. Will this clause not have this effect in addition to what I have said? The powers that the Railway Committee have and that the minister has are taken away and given largely to the Board of Railway Commissioners. Therefore such a clause will be conducive to loose, slipshod action by the Railway Committee, because they will say: " Oh, we will give these people a charter; we will make good fellows of ourselves; the Board of Railway Commissioners will not let them build the railway." Suppose some member wants to please a friend. The Railway Committee will say: "All right, we will please him; we will give him a charter; the Board, of Railway Commissioners will stop the construction." Such a measure will be conducive-I cannot see how it will be otherwise-to carelessness on the part of the Railway Committee, because they will have no final say in railway legislation after this Bill is passed. A member may get a charter passed to build a railway through his constituency, and the Board of Railway Commissioners may decline to let the railway be built.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN:

How can he compel them under the present law to approve that railway?

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LIB

George Perry Graham

Liberal

Mr. GEAHAM:

Parliament has the matter in its own hands; it is now putting it out of its own. hands. This is largely a question of whether Parliament will allow the Board of Eailway Commissioners to decide matters of policy. A body of that kind is better constituted to decide details than even a minister is.

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CON

Richard Blain

Conservative (1867-1942)

Mt. BLAIN:

Was not the Board of Eailway Commissioners appointed for that very purpose?

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LIB

George Perry Graham

Liberal

Mr. GEAHAM:

It was not appointed to frame policies; it was appointed( to carry out the statutes passed by Parliament. Every session or two the board has been given wider powers as it has found them necessary, 'but the power to frame policies was never handed over to the board. The board could make recommendations, but they had to be embodied in a Bill which had to be passed by this House before they could be acted upon. The Board of Eailway Commissioners has no more power to go beyond the present scope of its powers than a judge sitting on the bench has power to give a judgment inconsistent with the statutes. You are going a long way in the direction of passing a statute that will allow the Board of Eailway Commissioners to override the powers of Parliament, and I think you are going too far in that particular clause. Parliament is trusting the Board of Eailway Commissioners further than Parliament has ever trusted a minister or a Government. I adhere to my original suggestion that this Bill ought to give the Board of Eailway Commissioners power to carry out in detail the policy that this House enacts in general. That is all I understood from the acting minister that he was doing in this Bill, namely, transferring to the Board of Eailway Commissioners the powers heretofore exercised by the minister; but he is, under this section, transferring more than that.

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Frederick William Borden

Sir EOBEET BOEDEN:

The section follows precisely the form which was submitted to Parliament in the Consolidated Eailway Bill of two years ago. My hon. friend, I think, is conjuring up some difficulties that are not likely to occur. As a matter of fact, the governing authorities of any country, if they acted to the extreme measure of their powers and in defiance of convention and public opinion, would ren-

der the government of the country absolutely unworkable. A great many illustrations could be given of that. As a matter of fact, the Eailway Act itself, as quoted by my hon. friend, would afford an illustration of it. The Minister of Bailways and Canals, by arbitrarily refusing approval, might defeat the intention of Parliament as expressed in any Act.

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LIB
?

Frederick William Borden

Sir EOBEET BOEDEN:

The Board of

Eailway Commissioners can do the same thing, because they must approve also; and, if they arbitrarily refuse approval, then, as a matter of fact, the project embodied in a private Act of Parliament for the construction of a railway could not be carried out. But we do not find that such bodies act in that arbitrary way, and the Board of Eailway Commissioners will be governed by conditions, and by public opinion in the exercise of the powers which are conferred upon it by this Bill, just as the minister and the Board of Eailway Commissioners have been governed by conditions, by public necessity, in exercising the powers which would still remain to them if this Bill were not passed. After all, it does not seem to me that the portion of the Bill to which my hon. friend objects really deals with more than what one might call a detail. The provision is this:

If the board deems that the construction of a railway upon the proposed location or upon any portion thereof is not in the public Interest it shall refuse approval of the whole or of such portion.

That necessarily would be their power, by arbitrary refusal of approval, to accomplish that very thing under present conditions. The provision goes on:

And in any case where the board deems It in the public interest it may, as to any portion of the proposed railway, make any order, or require the taking of any proceedings, provided for by subsection seven and eight of this section.

That is, they may insist upon the granting of running powers fipon some other railway located substantially in the same place, which will be able to perform not only the service that it has already undertaken, but the additional service which would be performed by the new railway if it were constructed. The purpose of the Bill is to avoid the duplication of railway lines and the construction of unnecessary lines, so far as that is consistent with affording a reasonable and necessary service to the public.

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IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN:

The reason for this measure is to be found in subsection 7, which says:

Where the proposed location of any new railway is close to or in the neighbourhood of an existing railway, and the board is of opinion that it is undesirable in the public interest to have the two separate rights of way in such vicinity, the board may, when it deems proper, upon the application of any company, municipality or person interested, or of its own motion, order that the company constructing such new railway shall take the proceedings provided for in section one hundred and seventy-six to such extent as the board deems necessary in order to avoid having such separate rights of way.

The experience of the country under the existing law is, that in narrow . sections there are too many railways, and the farms are unduly out up. Power is given to the Railway Commissioners by this Bill to compel joint use of existing lines. And, certainly, that is a good cure for unnecessary duplication, and prevents the unnecessary cutting up of the country. Of these matters, a parliamentary committee is not able to judge so well as the Board of Railway Commissioners, who can personally visit the spot or send their engineers to learn the exact circumstances and report. In this, as in other matters of progressive legislation, we are passing from the old order to the new, and in the change there is necessarily more or less of overriding, but the general tendency is right. I am convinced that it is time that the control of railway legislation should ,be largely given to a body of the nature of a court, like the Railway Commission, and, to that extent, taken from Parliament. From the experience I have had, and the information I have gained, I am absolutely convinced that the hon. member for West Lambton (Mr. Pardee) is right, that the incorporation of a new railway company should come from the Secretary of 'State and the Board of Railway Commissioners. Of course, if there be a great national railway scheme, which it is desired to put through, Parliament is still free to pass legislation, taking that particular railway proposition out of the hands of the commission and ordering its construction as Parliament may see fit. We are not taking away the powers of Parliament by this Bill, but there is a devolution of power in this case, which, however, can always be recalled.

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LIB

Edward Walter Nesbitt

Liberal

Mr. NESBITT:

So far as I am personally concerned I have no objection to subsection

7; I think it is quite wise legislation. But I would object to the Railway Board, or any other body appointed under authority of this Parliament overruling Parliament. Parliament should be supreme. We are supposed to be the representatives of the people, whether we actually fulfil our duties or not*. If we do not take our duties with regard to railways seriously, if members do not attend the Railway Committee and take an interest in the Bills that come before that committee, that is not the fault of the system, but of the individuals who are members of the Railway Committee. My right hon. friend (Sir Robert Borden) said that this was giving no more power to the Railway Board than is now held by the Minister of Railways'. But the position is very different, in my judgment. The Minister of Railways invariably attends the Railway Committee, and, as I said in my former remarks, I have never known that committee to overrule the wishes of the , Minister of Railways.

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CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Sir ROBERT BORDEN:

My hon. friend, perhaps, did not understand me. I was not speaking of what the minister was likely to do, or what the Board of Railway Commissioners was likely to do, but I was pointing out that if apprehension were felt in case the extreme measure of the power was exercised, that might be equally apprehended under the present law.

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LIB

Edward Walter Nesbitt

Liberal

Mr. NESBITT:

That is quite possible, but it is very unlikely that the Minister of Railways would change what he had already accepted in the Railway Committee, whereas the Railway Comissioners are not there and do not know the views of the Railway Committee except as those views may be reported to them. I notice that the word " may " is used except in one case, in subsection 3, line 6, where it is enacted that the Board " shall refuse." Why do we use the word "shall" instead of the word " may "?

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CON
LIB

Edward Walter Nesbitt

Liberal

Mr. NESBITT:

I think it makes a gTeat difference. We propose to enact that if they dc not approve of the location of a railway, they "shall" order that it must not be built. I would much rather have the word "may" because it gives them the right to judge. I quite agree with my hon. friend from South Renfrew (Mr. Graham) that we should leave to the Railway Board

instead of to the minister questions of detail; that is within their province, and I think this provision will woTk smoothly as has every provision giving power to the Railway Commission. But I do not think *we should take away from the representatives of the people the main right to say whether a railway shall or shall not he built. I am not referring to the instance that has arisen this session; I do not think we should make our laws in view of single instances, but should be moved by general considerations. This is the only case I know of in which there was practically a deadlock, to a large extent, on the Railway Committee, and I leave that out of consideration. I still think that that and every other railway Bill should be left to the representatives of the people for final decision. Taking this Bill generally, I strongly approve of it, especially that part which gives authority to prevent the duplication of lines. I agree with the hon. member for South York (Mr. W. F. Maclean) in that, except that I do not think we should give up powers that we now possess, but should retain superior rights to every commission appointed toy this Parliament. I also object to the use of the word "shall," to which I have referred.

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CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

I am not able to understand the position taken (by the hon. member for North Oxford (Mr. Nesbitt), which, indeed, is the same as that taken by the hon. member for South Renfrew (Mr. Graham), namely, they approve the Bill in the main, but .still they feel that only the details should be left to the jurisr diction of the Railway Commission, If the Bill does not pass at all; if the Bill is rejected by this House, the details are still left with the Railway Commission. If the Bill passes, not only the details but the general location of the line then comes under the Railway Commission. That is the effect of the Bill, and that is the whole effect. If we are in favour of the general location of the line coming under the Railway Commission and being removed from the minister, then we must pass this Bill. If we are in favour only of the details coming under the Railway Commission, we have that already without the Bill.

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LIB

George Perry Graham

Liberal

Mr. GRAHAM:

Is there not a good deal more power given to the board under this proposed amendment than the minister had under the statute as it stood before? If not, a great deal more language is used in trans-

ferring the power than was used to grant it under the old Act.

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CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

In my judgment, no more power is given; it is more specifically stated, that is all. If the old Act were worded in section 3 exactly as this Act is worded, no objection could be taken to the old Act then any more than can be taken to it now. The question we have to decide is this: should the general location of the line be subject to the Railway Board, or should it not?- If we decide that it should, we must give the Railway Board the right to refuse the whole general location. If we are only going to give them the right to refuse a part of it, we cannot give them the power to control the general location. If they must approve some, even though they disapprove the rest, then they have not the power at all; the Bill is worthless.

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LIB

George Perry Graham

Liberal

Mr. GRAHAM:

That is not the idea. To my mind that is not what the Bill means. It is meant to mean that, but it means far more.

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CON

Arthur Meighen (Solicitor General of Canada)

Conservative (1867-1942)

Mr. MEIGHEN:

I should like to get the excess; I cannot see it. What I am driving .at is this: unless the Railway BoaTd is to have the right to reject the whole general location as called for by subsection 1, it has no useful jurisdiction in regard to that general location.

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LIB

April 11, 1916