May 26, 1930

LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

I think the words of Mr. Amery which I have just quoted answer the question of my hon. friend, and I would refer him to them.

The merchant shipping legislation is a most important question, surrounded with many difficulties. It was the subject of a special reference by the Imperial conference of 1926, and was submitted to a special committee by the Imperial conference of 1929. A member of the Canadian delegation, Mr. Burchell, of Halifax, had the honour to be selected as chair-

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man of that committee and his work as such has received the commendation of all the members of the conference. That special committee presented a unanimous report, which also was adopted unanimously by the conference. May I briefly relate what the present position is with regard to this question?

The Merchant Shipping Act of 1894, that is the imperial act, is substantially so far as its application of Canada is concerned a re-enactment of the provisions of the 1854 act, which antedates the British North America Act by thirteen years. Under section 91 of the British North America Act the exclusive legislation authority of the parliament of Canada extended to all matters coming within the class of subjects enumerated therein, including navigation and shipping. At the Imperial conference of 1897 Sir Wilfrid Laurier claimed that under the constitution of Canada our powers to legislate over shipping were plenary and absolute and subject only to the powers of this house. It was practically a reiteration of the stand taken by Sir John Thompson as to the unlimited power of Canada in dealing with the subjects mentioned in section 9*1 of the British North America Act. It must, however, be admitted that the decisions in the court indicate, although not with absolute certainty, that their opinion is that imperial statutes passed before and after confederation in regard to such matters as shipping and navigation over-ride the legislation of the parliament of Canada. Since 1911 the practice has been established that enactments of the parliament of the United Kingdom in relation to merchant shipping have not been applicable to the Dominion, but even there this situation gives rise to a difficulty which I will note Under the legislation enacted by the parliament at Westminster Wore 1911, and it is by far the most important statute concerning the empire, Canada is dealt with as if it were still a crown colony. The legislation of 1854, which was made for the British possessions of that day, is substantially the legislation which is still applicable to Canada. Under these acts, combined with the operation of the Colonial Laws Validity Act, the legal position may be summarized as follows:

(a) The parliament of Canada, under the authority contained in section 735 of the Merchant Shipping Act 1894, may repeal any provision of that act other than those of the third part which relate to emigrant ships, and not to ships registered in the Dominion. The Dominion parliament is thus in a position to substitute its own laws, but the act provides that such repeal must be confirmed by His Majesty in council in the United Kingdom,

fMr. Lapointe.]

and it does not take effect until approval has been proclaimed in the Dominion. Under other sections of the 1894 act, if there is any conflict of laws on certain subjects, the case is to be governed by the provisions of the 1894 act, and not by the laws of the Dominion. The parliament of a dominion has no authority to-enact legislation repugnant to the legislation of the parliament of the United Kingdom relating to ships coming into the harbours or territorial waters of the dominion if such ships are registered in other parts of the British commonwealth or even are foreign ships.

The parliament of Canada under, another section of the Merchants Shipping Act of 1894, that is section 736, may enact legislation to-regulate the coasting trade of the Dominion. But in this case also such legislation must contain a suspending clause providing that the act shall not come into operation until His Majesty's pleasure thereon has been publicly signified in the Dominion. It is also enacted that such legislation treat all British ships in exactly the same manner as ships of such Dominion, and when His Majesty has agreed to grant rights and privileges in respect to the coasting trade to foreign states, those rights and privileges must be respected by the Dominion.

Further, the legal situation is still more confusing because of the fact, as I have already stated, that legislation of the parliament of the United Kingdom since 1911 was expressed not to extend to the dominions. The restrictions, however, imposed by the Merchants Shipping Act were not removed, and because of the Colonial Laws Validity Act. legislation passed by a Dominion parliament on the same subject may be held to be void and inoperative on the ground of repugnancy.

There have been international conventions relating to shipping. Indeed, the modern tendency is that laws and regulations concerning navigation and shipping should become as far as possible internationally uniform, and it has already been made so in various respects of maritime law. It is found, however, that if a dominion parliament desires to enact and enforce these regulations and laws, it may find it impossible to enact legislation to that effect a3 certain fields of jurisdiction appear to be reserved for the parliament of the United Kingdom. In Australia the situation is obviously the same, and may I quote the words of former Attorney General Latham, who was attorney general in the government of Premier Bruce-no better imperialist can be found anywhere-in a book he published

Shipping Legislation-Mr. Lapointe

entitled Australia and the British Commonwealth. At page 103, in the chapter dealing with the Merchant Shipping Act, he says:

The position in Australia with regard to merchant shipping and navigation is confused, obscure and radically unsatisfactory.

The concluding words of the chapter, speak-of sections 735 and 736 of the act, are as follows:

It is submitted that they belong to a past age and that their continuance serves no useful purpose.

It was unanimously agreed that the existing legal situation is no longer in accord with the constitutional status of the United Kingdom and the dominions. The recommendations which have been made are rather extensive in their character and are all described in the report which all members of the house have in their possession. I will merely state that the recommendations regarding the extraterritorial effect of dominion laws, the Colonial Laws Validity Act, reservation and disallowance. are all applicable to the constitutional position of legislation affecting merchant shipping. When these conclusions are given effect to, and the restrictions imposed by sections 735 and 736 of the Merchant Shipping Act are removed, the ground will be cleared for cooperation amongst the members of the British commonwealth in all matters which call for concerted action. The conference has indicated many subjects as to which agreement is recommended in the interests of all the various subjects relating mainly to common status, standards of safety, and uniform treatment of all British ocean going ships in the ports of the British commonwealth.

In that respect, may I call attention to the recommendation concerning the coasting trade. While it is recommended that the governments of the commonwealth might agree for a limited number of years to con-, tinue the present position under which ships of any part of the commonwealth are free to engage in the coasting trade of any other part, it is specifically stated that this will not affect the right of any part of the commonwealth to impose conditions of a general character on all ships engaged in its coasting trade, or to impose customs tariff duties on ships built in other parts of the commonwealth or outside it, or to give financial assistance as it thinks fit to its own ships.

There are also recommendations concerning internal discipline and agreements with the crew, certificates of competency and service, courts of inquiry, distressed seamen, mutual enforcement of law, forfeiture, and carriage of goods by sea. The report, I submit meets

the constitutional considerations in favour of freedom of action, and the business considerations in favour of substantial uniformity.

May I say that it has received favourable consideration on the -part of various shipping interests, and although there remains the question of detail of some difficulty, the whole subject will receive careful consideration by aill the .departments concerned and by the shipping interests before final action is taken.

Now I come to the Colonial Courts of Admiralty Act. The legal situation with reopect to admiralty jurisdiction is substantially the same as under the Merchant Shipping Act. At the present time admiralty courts in the dominions constituted under the provisions of the Colonial Courts of Admiralty Act, 1890, and their jurisdiction is the same as that of the high court in England under that act. Rules for regulating the procedure and practice can be made by a colonial court of admiralty, but they cannot come into operation until approved by His Majesty in council. Any colonial law which affects the 'jurisdiction or practice in the courts, must be reserved for the signification of His Majesty's pleasure.

A complicated situation arises by reason of a recent decision of the Privy Council to the effect, that the jurisdiction of an admiralty court in the dominions, is that of the high court of England as it was when the act was passed in 1890, and that all of the important additions made to the jurisdiction of the high .court since 1890, do not apply to the courts in the dominions.

The whole situation is certainly not in accord with the present constitutional status of the dominions, and the recommendations of the conference are, that each dominion shall have power to repeal the Colonial Courts of Admiralty Act if it so desires, and may establish courts under its own laws. It is, however, emphasized that as far as possible, there should be uniform jurisdiction and procedure in all admiralty courts in the British commonwealth of nations. In this as in other respects, while the principle of freedom and equality is being given effect to, the desirability of cooperation is expressed and the means of achieving it indicated.

The members of the conference approached their task in the spirit which inspired the framers of the declaration of 1926, and it is the result of their work which I now submit for the approval of the house. The British Empire of to-day is an association of states, each member of which possesses an international capacity, and in which there is no longer a single central power having exclusive initiative and control. This association

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has its origin in an agreement among autonomous nations which propose to obtain by common action certain common objects, each of them retaining its liberty and the full exercise of self-government, domestic and external, and subject only to the restrictions inherent in the very ideals of the association. We are giving to the world a demonstration of the fact that partnership and cooperation do not mean absorption, and that in our great association each nation has its own individuality and leads its own life. We are proving in a most convincing manner that the only true union among the democratic peoples lies in the unrestricted liberty both of their institutions and of their relations with each other and with the world, and that full freedom of action united by the powerful bond of the imperial crown, which is the keystone of the alliance between the dominion and the mother country, will permit pursuing in an unfettered manner the policies which best suit their needs, and the freedom which they enjoy and which will continue to be the strongest factor in the maintenance of harmonious and useful relations. If the legal bonds may appear to have been altered or diminished the real strength of the whole structure has effectively increased, because a community of self-governing nations can work together in peace and unity only through voluntary cooperation in unrestricted freedom. The more prosperous, the more contented and the more free the dominions are, the stronger, the better organized and the more united will be the commonwealth. May I quote the words used by Lord Balfour a few months ago in the House of Lords?

The commonwealth is held together far more effectually by broad loyalties and common feelings of interest and devotion to the great world ideals of peace and freedom than by anything else. A common interest in loyalty, in freedom, in ideals, that is the bond. If that is not enough, nothing else is enough.

At every stage of the constitutional development of the dominions there have been critics and reactionaries who have professed to see the coming dissolution of the empire; those prophets of disaster however have been consistently proved to be wrong. Self-government implies trust, confidence, reasonableness, and common sense on the part of those who enjoy it. Self-respect, self-confidence and selfcontrol are as necessary to nations as to individuals. The recommendation I have mentioned will be submitted to the Imperial conference to be held this year in the month of September. On two or three occasions my hon. friend, the leader of the opposition, has stated that the man who will represent Canada at that conference must receive a man-

date from the Canadian people. With this statement I heartily agree. I believe also however that this parliament should be given the opportunity to express its views on the important report which will be submitted to that Imperial conference. Certain statements which are disquieting and startling in their lack of appreciation of the present position of our country are sometimes made by responsible and public men. May I quote one statement as an illustration? A few weeks ago my hon. friend from South Wellington (Mr. Guthrie)-who is absent from the house, and for whose recovery from illness I express my hearty wishes-used the following words:

Since January. 1926, we have had representations in London at a peace parley. You would almost think it was a six power instead of a five power parley. We are gradually interfering in the affairs of Europe generally We are poring as a nation when we are not a nation at all.

This parliament and indeed the Canadian people must see to it that this shall not be the spirit of those who represent Canada at this momentous convention. Shall Canada speak in terms of a nation, or shall she speak in terms of a backwoods community in need of aid and control? I submit this resolution in order that parliament may unequivocally accept the principle which has been accepted by all the statesmen in the various parts of the commonwealth, and in order that the representatives of Canada, whoever they may be, may be able to convey to the conference our full cooperation in the doctrines laid down by the conference of 1926, and our conviction that the very foundation of the empire rests on the solid rock of liberty, autonomy, and equality of citizenship and nationhood.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. C. H. CAHAN (St. Lawrenee-St. George):

I think this house is to be congratulated upon the fact that at length some of the suggestions of the Imperial conference of 1926 have been presented to this parliament for its approval and confirmation. My hon. friend has referred to the mandate which he and those who represented Canada had received when they attended the meeting of the committee at London in 1929. They certainly have not sought and have not received a mandate from this House of Commons or from the Senate of Canada. Although suggestions contained in the Imperial conference resolutions of 1926 concerned not only this Dominion and its relations to the other dominions but, in most part, concerned also the intimate relations existing between this parliament and the legislatures of the several provinces, I have yet to learn that the several

Shipping Legislation-Mr. Cahan

provinces were ever officially notified of those resolutions or were ever asked to consider them or to give legislative sanction or even an official opinion in respect thereto. That,

I think, has been a very serious omission on the part of the government.

In recent discussions of the political relations of this dominion to the United Kingdom and to the other dominions, we have consistently maintained that those who desire the survival of that vast political entity, known as the British Empire, should constantly insist that all existing political machinery should be employed to develop common political ideals and to ensure the cordial cooperation of the government of the United Kingdom and the governments of the several dominions in carry- . ing their common ideals into full practical effect.

In considering the report of the Imperial conference of 1926, I have repeatedly directed attention to the fact that the ultimate solution of the problems presented by that report will affect every phase of our political, commercial and social life. Every man and woman, who is entitled to Canadian citizenship, whether by birth or naturalization, is interested in ascertaining what will be his rights, privileges, obligations and duties, whenever he passes beyond the frontiers of Canada, after the constitutional changes, which are now proposed, are brought into full effect.

Every Canadian shipowner ife concerned to know what will be the status of his ship, its officers and crew, on the high seas, or in British and foreign ports, when they are no longer subject to the Merchants Shipping Acts and to the jurisdiction of the Admiralty of the United Kingdom.

Every Canadian merchant, engaged in the foreign trade of Canada, is directly interested in the ultimate preservation of the manifold rights and privileges which appertain to British subjects in their commercial intercourse with foreign countries, under the terms of existing treaties between the government of the United Kingdom and the governments of foreign states.

The people of this Dominion desire, I am convinced, not merely the barren and futile right to enter into separate relations wiith foreign powers, but also the assurance, especially with regard to Shipping, that the whole weight of British diplomacy and of British authority should be on their side in case their vital interests are imperilled. In fact, existing imperial acts and treaties, applicable to Canada and to Canadians at home and abroad, affect our material interests in innumerable ways. If 2419-163

these are to be wiped out, their abrogation will involve the immense constructive work, on the part of the dominions, of devising a whole series of constitutional conventions and interimperial and international agreements and treaties which will clearly determine the relations of the dominions between themselves, as well as with foreign countries, if the empire shall hereafter remain a subsisting political entity and not merely a free association of independent sovereign states.

For myself, I am fully convinced that the complete breach of our continuous community of political relations and of political ideals would not only make for serious domestic dissensions, and perhaps induce even civil strife in Canada, but would seriously diminish the growing influence of this country upon world affairs; for no dominion is strong enough, even if it so desired, to afford the luxury of a completely independent political policy in respect of its external affairs. In discussing this subject in this house on the 29th of May, 1928, I made a statement, which I now repeat:

I have had occasion to look into the statutes of the parliament of Great Britain which still apply to us and, the longer I pursued my investigations, the more statutes and treaties I found which directly affect us. I would suggest to the government that when they come to consider the modification of these statutes they will find their ramifications so extensive as almost to appall them. Before the next imperial conference this government should make haste slowly, and, by such expert assistance as is available, should probe these matters to the bottom. They should do this not with a view to organizing some method of taking this dominion out of the commonwealth, but to devise ways and means by agreement and concurrent legislation, and, by new conventions where legislation is not necessary, for the purpose of keeping this Dominion within the British commonwealth. Let us keep Canada in the empire as a dominion fully conscious of its rights and privileges, but also conscious that we must play our parts, man for man and government for government, with those of the other dominions of the commonwealth, in maintaining the political unity of the empire to which we now belong.

Briefly, I am persuaded that it is in the best interests of Canada that the British commonwealth of nations, which is commonly known as the British Empire, should remain a subsisting political entity, and not merely a free association of independent states.

I frankly confess that in entering upon a study of the report of the recent London conference on the operation of dominion legislation, and particularly merchant shipping legislation, my opinions are doubtless coloured by such important considerations as those I have just mentioned. The assertion of

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" equality of status " as between the United Kingdom and the several dominions is utterly inadequate to define the whole of the political relations which should continue to subsist between the dominions to each other and to the United Kingdom. The London committee appear to have ignored all such other considerations.

Lord Milner, in his lifetime, fully recognized the necessity of an equal partnership between the United Kingdom and the dominions, but, he added:

Undoubtedly the working of it out in practice without bringing about a severance of relations between us and the dominions will be one of the most complicated tasks which statesmanship has ever faced.

The recent addresses of General Smuts in Canada contained a strong appeal in favour of the developing by constructive efforts of the continuous community of our interimperial relations.

The report of the recent London conference on the operation of dominion legislation and merchant shipping legislation is now before us. In the words of the London Post, the conference " has produced an obscure, pedantic and tedious report," and I may add concerning this report that prolix as it is, it is almost wholly lacking in intelligently directed constructive effort or effect.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

That is a good Tory

comment.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

That is a very intelligent comment. The report first considers the right of the crown, on the advice of the government of the United Kingdom, to disallow dominion acts, and the right of the Governor General to reserve dominion bills. The report alleges that there is no provision in our constitution, the British North America acts, "requiring" reservation. That is literally true, but there are provisions authorizing such reservation of dominion bills. The reservation by the Governor General of bills passed by the parliament of Canada is authorized by sections 55 and 57 of the British North America Act, 1867. The disallowance by the king in council, that is by the government of the United Kingdom, of statutes enacted by the parliament of Canada, within two years after copies of such statutes are received by the Secretary of State at London, is authorized by section 56 of the British North American Act, 1867.

These provisions of the British North America Act may only be amended or repealed by a new act of the parliament of

TMr Cahan.)

the United Kingdom, and, so far as Canada is concerned, the committee, after a verbose explanation, conclude that:

We desire to place on record our opinion that it would be in accord with constitutional practice that if so requested by the dominion concerned the government of the United Kingdom should ask parliament to pass the necessary legislation.

That is, for the repeal of these sections. This conclusion is evidently regarded by the committee as an expression of profound wisdom, although it might more aptly be described as trite and commonplace, except that the committee has ignored completely the right of the provinces to be heard in respect of such amendments to the British North America Acts, to which they became parties when admitted to this Dominion as provinces.

The committee points out that under the provisions of the Colonial Stock Act, 1900, the Treasury of the United Kingdom is authorized to prescribe the conditions under which a colonial stock, that is, the bonds or debentures of any colony, may be authorized as investments for trustees under the Trustee Act of 1893 of the United Kingdom. One condition so prescribed, as pointed out so clearly by the Minister of Justice, is that the British government may disallow dominion or colonial legislation which appears to the government of the United Kingdom to alter any of the provisions affecting the stock to the injury of stockholders resident in the United Kingdom, or which would involve a departure from the original contract in regard to such stock. The committe reported:

"the right of disallowance in respect of such legislation must remain and can properly be exercised.

There is to be no complete repeal of the disallowance exercised by the Imperial government under the British North America Act of 1867. Might I suggest that the Canadian members of that committee might have considered as an alternative that perhaps the time would soon arrive when the governments of the dominions and especially the government of Canada might very properly seek an agreement with the British treasury for the amending of the existing British treasury regulations governing the admission of dominion stocks to be inscribed as trustees' securities. We may no longer desire to procure such inscriptions by conceding to a British ministry the right to veto legislation which is intra vires of a Canadian parliament, and certainly the time has now arrived when the British treasury may rely upon the good faith

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of the Canadian parliament in carrying out such conventions and understandings as now exist concerning such inscriptions of dominion securities, without being placed under the penalty of having their legislation vetoed by a British ministry.

The minister discussed at length the extraterritorial operations of Dominion legislation, and he referred to certain resolutions passed in recent years by the parliament of Canada, but he failed to indicate to the house how seriously the subcommittee, of which he was a member, had departed from the views expressed by a previous resolution of this parliament. A joint address of the Senate and Commons of Canada to His Majesty was passed unanimously by the House of Commons on June 24, 1920, and by the Senate on June 26, 1920, requesting an amendment to section 91 of the British North America Act to provide:

Any enactment of the parliament of Canada otherwise within the legislative authority of the parliament shall operate and be deemed to have operated extraterritorially according to its intention in like manner and to the same extent as if enacted by the parliament of the United Kingdom.

That joint address, which was passed by the unanimous vote of this house, contained as one of its essential terms the principle that the enactments of the parliament of Canada, which were to have extraterritorial operations, were to be confined to such statutes as were within the legislative jurisdiction of parliament. That was a very important reservation. Subsequently, on July 17, 1924, this house passed an amended address to His Majesty, substituting the following words:

An enactment intra vires of the parliament of Canada, if expressed to operate extraterritorially, shall have and be deemed to have had that operation, if and in so far as it is a law for or ancillary to the peace, order and good government of Canada.

I believe that resolution was proposed to this house by the present Minister of Justice. When it was first introduced to the house the words "intra vires" were omitted, and it was only in the Senate that these words were introduced after considerable discussion and after objections had been voiced by the premiers of some of the provinces, particularly by the premier of Ontario. These two words were then introduced in the resolution by the Senate, and the resolution passed in the terms which I have just stated.

When the imperial conference met at London in 1926, the sole authority of the representatives of Canada at that imperial conference in regard to dealing with the question 2419-163J

of extraterritorial operation of Dominion laws was the resolution of July 17, 1924, giving extraterritorial effect exclusively to enactments otherwise intra vires of the parliament of Canada. The imperial conference recommended as follows:

That each dominion parliament should have power to give extraterritorial operation to its legislation in all cases where such operation is ancillary to the peace, order and good government of the dominion.

The Minister of Justice, behind the back of parliament and in total disregard of the previous instructions of parliament, eliminated the words "intra vires" from the proposal then made and recommended. The subcommittee of that conference has expressed the following opinion:

The introduction of a reference to legislation ancillary to the peace, order and good government of Canada is unnecessary, would add to the existing confusion on the matter, and might diminish the scope of the powers, the existence of which it is desired to recognize.

I think the Minister of Justice should tell us what powers that committee had in view which they so desired to recognize. He has failed to elucidate the object and intent of the Canadian representatives in agreeing to that recommendation, but I think the context affords an answer. The member of this government, who sat as representative in that committee, desired to recognize the complete severance of those political ties and reciprocal duties and obligations which bind the dominions to each other and to the United Kingdom. In utter disregard of the terms of the resolution of July 24, the committee recommended an imperial enactment by which it should be declared and enacted:

That the parliament of a dominion has full power to make laws having extraterritorial operation.

That is, they seek powers unrestricted on the one side by any interimperial obligations or relationships, or on the other, by any concern for the constitutional rights and interests of the several provinces of Canada.

Surely the proposed enactment should not confer unlimited powers, but should be restricted to such matters as are within the legislative jurisdiction of a dominion parliament. We certainly should not seek in this way by indirect means to wipe out all restrictions upon dominion legislation, particularly as each and every province is intimately, if not vitally, concerned in those existing restrictions being adhered to. I respectfully suggest

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that the clause should be drafted in some such form as this, before the house is asked to give complete approval of it:

It is hereby declared and enacted that the parliament of Canada, in respect of matters within its legislative jurisdiction, has full power to make laws having extraterritorial operation.

Otherwise you are infringing upon the rights and privileges of each and every province of Canada under the constitution as it at present exists, and I submit that this government, this house and parliament have no moral or constitutional right to change the constitution of Canada in vital respects without calling together the representatives of the provinces and obtaining their opinion in regard to the proposed changes.

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LIB

Joseph Thorarinn Thorson

Liberal

Mr. THORSON:

Surely my hon. friend

appreciates the fact that the jurisdiction of the provinces is absolutely unaffected by any recommendation contained in the report.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I will deal with that in a

moment. I do not agree with that at all. That is just where the crux of the whole matter arises in respect of extraterritorial legislation. It is true that the committee expressed the pious hope that hereafter each dominion should make provision for granting to the others the customary extraterritorial immunities with regard to internal discipline, which are usually conceded to and enjoyed by the armed forces of one government when present in the territory of another government with its consent. It is presumed that, despite the Kellogg peace pact, we may hereafter be involved in war and that military forces of this dominion may be sent abroad into some other dominion or into the United Kingdom by the dominion parliament and government. In any event, it is assumed that the relations between dominions, and between the dominions and the United Kingdom, shall hereafter be those which subsist between independent sovereign states. That is the whole gist and purport of these resolutions and of the report giving extraterritorial effect to the legislation of the parliament of Canada.

The extraterritorial legislation of a dominion is evidently intended to apply to acts committed beyond the territorial limits of the dominion, that is on the high seas or within foreign states or even within the territorial jurisdiction of the United Kingdom or of another dominion or some other colony or possession of the British Empire. But, to apply to acts committed by whom? Surely not to acts committed within the United Kingdom by Englishmen, Scotsmen or Irish-

men who are domiciled in the United Kingdom. Surely not to acts committed by Australians who are domiciled within the Commonwealth of Australia. It is true that sovereign states are deemed to have extraterritorial jurisdiction, as the Minister of Justice has pointed out, over their own nationals wherever they are, and the United States have gone one step beyond that and assumed that they have jurisdiction within their own territory over nationals of other countries for acts committed outside the territorial limits of the United States. But who are to be deemed Canadian nationals under the proposal made by the subcommittee? Who are to be deemed Australian nationals? Does a British subject who is bom in Canada and has been domiciled in Canada, who retains his British allegiance, remain a Canadian national when he crosses our southern border and takes up his residence in the United States? What class or classes of persons are to be subject to such extraterritorial legislation as the Dominion of Canada may hereafter enact? All British subjects now possess a common status throughout the empire and throughout the world, by virtue of the fact that they are British subjects. After this proposed legislation passes, in what respect will Canadian nationals be British subjects when outside of the territorial limits of Canada?

The preservation of our status, rights and privileges as British subjects is, I believe, the predominating political purpose of a large majority of the people of this Dominion, and any efforts made directly or indirectly to subvert and destroy that status will not receive the commendation of the Canadian people as a whole.

The London committee's report, it seems to me, does not disclose any intelligent effort to achieve that end and purpose to which I have referred. It is apparent that the committee have confined their efforts to ascertaining the practicability and most convenient method of dissolving existing political ties, but none whatever to the work, so eminently desirable, of evolving a new constitution or convention, by virtue of which the legislative and administrative autonomy of the dominions may be maintained, and by which the common status of British subjects and the common privileges of British citizenship may also be preserved for all time to all British peoples.

But the report says that the dominions are freely associated as members of the British commonwealth of nations, and upon that the Minister of Justice has to-day repeatedly

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rung the changes. So they are in fact freely associated as members of the League of Nations. But the British Empire is a political entity; the League of Nations is not. There are other grave differences. The British Empire is a legal person; the League of Nations is not. We enjoy throughout this empire an imperial citizenship, but there is no such thing as citizenship in the League of Nations. The writ of habeas corpus runs throughout the British Empire to its uttermost parts for the protection of the life and liberty of all who owe allegiance to the British crown. The prestige and power of the British Empire assure the liberty and safety of the British subject, in whatever dominion he may be domiciled, whenever and wherever he sails upon the high seas, and whenever and wherever he travels in foreign parts. But what definite measures are proposed in this committee's report to ensure the preservation of these liberties and privileges once the empire is disrupted into independent states? I submit that there are none whatever.

No intelligent study is made by the committee concerning the disintegrating effects of their proposals upon the unity of the empire, and the portentous and perilous results that will necessarily flow therefrom, if full effect be given to their recommendations for the repeal of existing statutes before new conventions and new agreements are devised in substitution for the unitary political system which now subsists.

My hon. friend has referred at length to the Colonial Laws Validity Act. The report approves of the enactment by the parliament of the United Kingdom of a statute in the form following:

(1) The Colonial Laws Validity Act, 1865, shall cease to apply to any law made by the parliament of a dominion.

(2) No law and no provision of any law hereafter made by the parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England or to the provisions of any existing or future act of parliament or to any order, rule or regulation made thereunder, and the powers of the parliament of a dominion shall include the power to repeal or amend any such act, order, rule or regulation in so far as the same is part of the law of the dominions.

Obviously, though not expressly stated, the reference to "the provisions of any existing or future act of parliament" refers to acts of the parliament of the United Kingdom; and it is equally obvious that the clause respecting "the powers of the parliament of a dominion" to repeal or amend any such imperial act, in express terms, authorizes the Dominion parliament to repeal or amend any present or

future acts of the parliament of the United Kingdom relating to any dominion, even including those acts by which any such dominion is constituted, since there is no doubt whatever that an act of parliament of the United Kingdom which constitutes a dominion is part of the law of the dominion.

The Minister of Justice would, if he had an opportunity, doubtless retort as did my hon. friend from Winnipeg South Centre (Mr. Thorson) that there is a subsequent provision in the proposed enactment that:

Nothing in this act shall be deemed to confer any power to repeal or alter the constitution acts of the Dominion of Canada otherwise than in accordance with the law and constitutional usage and practice heretofore existing-

I think that if my hon. friend had wished to protect the rights of the constituent provinces of the Dominion he could have found far more definite and specific terms to employ than those which I have just quoted. There is no law or constitutional usage or practice heretofore existing by which any such amendment or repeal of the British North America Act could be enacted by the parliament of Canada. Other dominions under their different constitutions have certain powers of amendment; we have none.

Surely the intention of the draftsman could be more clearly and definitely and less clumsily expressed than by first baldly declaring that the Dominion of Canada has full power to repeal or amend its constitution, and then intimating in a final clause at the close of the report that that object can only be effected in a way which does not at present exist.

Moreover, the committee's report clearly announces that our provincial "legislation will continue to be subject to the Colonial Laws Validity Act and to the legislative supremacy of the parliament of the United Kingdom." The report adds that:

It will be a matter for the proper authorities

in Canada to consider whether and to

what extent it is desired that the principles to be embodied in the new act of the parliament of the United Kingdom should be applied to. . . . provincial legislation.

One could not conceive of a proposition more half-baked, if I might use the term-

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

There is no word bad enough 1

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

It is sometimes difficult to find appropriate parliamentary terms. If the Colonial Laws Validity Act is to have no future application to Dominion legislation, why should it have any effect upon and curb and restrict the legislative jurisdiction of the various provinces of Canada? If the Colonial

25S2 COMMONS

Shipping Legislation-Mr. Cahan

Laws Validity Act is to be kept in force with respect to provincial legislation, why during the recess or why now does not the Prime Minister call together the representatives of the various provinces to ascertain what their views are, so that in dealing with this question we may not deal with it in an inadequate manner? If the Colonial Laws Validity Act is to be repealed in respect of Dominion legislation, a conference might ascertain now in what manner the repeal should be expressed so as to give to the provinces exactly the same jurisdiction in respect of matters within their legislative jurisdiction as is now to be given to the parliament of Canada?

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UFA

Edward Joseph Garland

United Farmers of Alberta

Mr. GARLAND (Bow River):

May I take it that the hon. gentleman is in favour of the repeal of the act with respect to the provinces?

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I think I have expressed my opinion very fully.

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UFA

Edward Joseph Garland

United Farmers of Alberta

Mr. GARLAND (Bow River):

Not quite fully, I think.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I shall before I am through, but I wish to do it consecutively and in a manner that comports with my own views.

This raises at once the broad question whether the government of this Dominion, even with the approval of this parliament, has the constitutional right to procure the enactment of an imperial act, in the terms now suggested, without first procuring the consent or approval of the governments and legislatures of the several provinces of Canada. I, for one, have very grave doubts as to the constitutional propriety of any such action. The government of this Dominion, in my opinion, has no moral or constitutional right to procure the enactment of the proposed legislation without first obtaining the formal consent of the several provinces.

I come now to another important phase of this report, the merchant shipping legislation The keynote of this part of the report is the declaration that:

The new position will be that each dominion will, amongst other powers, have full and complete legislative authority over all ships while within its territorial waters or engaged in coasting trade; and also over its own registered ships both intraterritorially and extraterritorial^.

To attain this end the committee advocates the repeal of all restrictions or limitations upon dominion legislation which are at present contained in the merchant shipping acts of the imperial parliament. Then, they say, the ground will be thus cleared for cooperation by the dominion and the United

Kingdom in respect of those shipping interests in which practical considerations call for concerted action; and they suggest that such concerted action should, as the Minister of Justice stated, take the form of agreements, for a term of years, which may hereafter be negotiated as to:

(a) Uniformity of laws throughout the British commonwealth;

(b) Reciprocal aid in the enforcement of laws in the jurisdictions of other members of the British commonwealth; and

(c) Limitations to be observed in the exercise of each dominion's legislative powers.

Although the committee recognize the difficulty of framing a complete list of subjects upon which uniformity is desirable, in respect of which, it seems to me, the whole British shipping world should be consulted, and certainly the shipping interests of Canada, before suioh approval is given, they enumerate several ithat occur in their minds.

They seek a common status, involving:

(a) Uniform . minimum qualifications for ownership to govern the registry of ships in [DOT]the United Kingdom and in all the dominions, and

(b) The establishment of such a common status for all dominion shipping as will entitle dominion ships to the same recognition as is mow aocorded to British ships.

But they fail utterly to suggest how this common status is to be achieved. They propose a Canadian registry for Canadian ships, which whether in Canadian waters or beyond the territorial limits of Canada, will remain under the exclusive jurisdiction of the parliament of Canada. The protection of such ships, the security of their trade, will then be the sole responsibility of the parliament and government of Canada. The government of the United Kingdom will then have no duty or responsibility in the premises. Their masters and owners, suffering unjust treatment in *foreign jurisdictions, can only appeal to the *Canadian government for relief and redress *of wrongs.

When that situation arises, I confidently predict that there will remain no ships of 'Canadian registry engaged in foreign trade, excepting those owned by the Canadian government; for Canadian shipowners, for their own protection, will transfer the registry *of their ships to London, Liverpool or some other port of the United Kingdom, and thus place their property and interests on the high seas and in foreign ports under the protection of the government and admiralty of the United Kingdom.

The committee recommend that uniform standards should be observed by all the

Shipping Legislation-Mr. Cahan

*dominions in all matters relating to the safety of dominion ships and those on board; and the general adoption of appropriate conventions to secure that end; or, at the least, that ea-ch dominion should inform the others -we are now getting back to the old principle of negotiation of treaties-of any substantial modifications proposed to be adopted, and the reasons therefor, in order that uniformity may be maintained.

Before destroying the existing imperial legislation in respect of British shipping, which ensures a common status for British ships throughout the world, and secures uniform [DOT]standards of safety, both in respect of ships and seamen, is it not most desirable that the *governments of the dominions should first *undertake the comprehensive yet onerous task of framing, by concerted action, such necessary conventions and agreements as the committee deem essential? It takes a thousand years *to develop a political system, a single hour may suffice for its complete destruction.

The committee recommend, not as precedent to but as subsequent to the repeal *of the existing imperial legislation, which applies to the ships of all the dominions, [DOT]that each dominion should now accept *the principle that legislation with extraterritorial effect, enacted by one dominion, should not be made to apply to the ships registered in another dominion, without such other dominion's consent. Why not now seek to obtain a general agreement *to that effect, before wiping out the existing [DOT]legislation which secures such desirable uniformity of action.

The committee also report that continued *uniformity of treatment is desirable for all ocean-going ships of each of the dominions in the ports of any other dominion. They

say:

Such uniformity of treatment is regarded as an asset of very considerable importance, especially for the negotiation with foreign governments who may seek to discriminate in favour of their own ships and against British commonwealth ships.

When we consider the vast ramifications of this subject of securing uniform treatment of dominion shipping throughout the wide world, and its paramount importance to every owner of shipping, who is domiciled in a dominion, this feeble and-I use another and more expressive word-almost infantile pronouncement of the committee appears by contrast to be utterly inadequate. No suggestion is made that the governments of the United Kingdom and the governments of the several dominions should first adopt an agreement or convention, whereby the power, authority and influence of the whole commonwealth would be utilized

to protect and safeguard the shipping interests of any dominion which is discriminated against or otherwise unjustly and unfairly treated by a foreign government. The committee merely recommends that the government of the United Kingdom and the governments of the several dominions "might"-note the word "might"-not "should" agree for a limited number of years to continue to permit the ships of the one to engage in the coasting trade of the other, and that no one part should give to foreign shipping more favourable treatment than to the ships of the other parts of the British commonwealth.

The committee also recommends agreements to the effect that the law of each member of the British commonwealth, in which a ship is registered, should apply to the ship and its crew in respect of all matters of internal discipline, and to all contracts with the crew; that certificates of competency granted to officers of ships by one dominion, or one part of the British commonwealth, should be recognized as valid in all other dominions or parts of the commonwealth; that the principles governing the constitution and procedure of courts for the investigation of casualties to ships should be uniform; and that the investigation should be held in that dominion or part, in which the ship is registered, no matter when the casualty takes place, if its governmental authority so desires. The committee also recommends reciprocal arrangements for the relief of distressed seamen, for the mutual enforcement of the law of the dominion or part in which the ship is registered, in respect of offences committed on such registered ships; but it fails to suggest any definite provisions to effect those ends.

It gives as an excuse for its utter inaction that:

The .position which obtains at present is only possible because the system of law which is applied is a unitary system, and, When that system comes to an end, a solution of the difficulties which arise will have to be sought in other directions.

Why not seek them now? Why did not the committee when in London sit down and draft at least a tentative agreement between the governments of the several dominions and Great Britain whereby these common interests would be hereafter conserved, leaving to each dominion in local matters to give legislative expression to its autonomy? This puerile pronouncement naively suggests that, when the legislation, which is now proposed, is enacted by the imperial parliament, even in respect to those all important matters in which all parts of the British commonwealth have common interests, the existing unitary system will be

Shipping Legislation-Mr. Cahan

completely destroyed, and moreover the committee confess their incompetence to suggest, at the present time, the terms of any convention or agreement whereby in the future concerted action of the United Kingdom and of the dominions may be ensured.

The committee recommend that each dominion should have power to repeal the Colonial Courts of Admiralty Act, 1890, which ensures uniformity of jurisdiction and procedure in all essentials in admiralty cases, and then expresses the pious thought:

We think it highly desirable to emphasize that so far as is possible there should be uniform jurisdiction and procedure in all admiralty courts in the British commonwealth of nations subject, of course, to 6uch variations as may be required in matters of purely local or domestic interest.

But they make no real effort to attain that most desirable end.

The committee have suggested that a new tribunal be established for the determination of justiciable disputes and differences between members of the British commonwealth. The hon. member for Laprairie-Napierville (Mr. Lanctot), in seconding the reply to the Address of His Excellency the Governor General, urged that such interimperial questions might well be submitted to the permanent court of international justice. The Minister of Justice did not dissent from that view. The hon. member for Labelle (Mr. Bourassa) urged also that such matters should not come under the jurisdiction of the Judicial Committee of the Privy Council but rather be relegated to some international body of jurists akin to the Hague tribual.

I personally entirely concur in the recent action of this government and of the governments of the United Kingdom and of the other dominions, when giving their adhesion to the Permanent Court of International Justice, in excepting from it jurisdiction disputes arising between themselves.

The governments and legislatures of the several provinces of Canada may be said in one sense to be sovereign within their respective jurisdictions; yet I conceive it would be destructive to all sense of dominion unity, if interprovincial and interdominion disputes were relegated to the decision of an international tribunal; and I trust the day is far distant when the British dominions will enter into a convention or agreement to submit such differences as may arise between them to any court external to the empire, and thus to permit rival foreign powers to determine what hereafter shall be the political relations of these dominions to one another.

The Judicial Committee of the Privy Council has already arbitrated, by agreement, between two dominions in the Labrador boundary case, between two provinces of Canada in another case, between two Australian states in another, and also between the government of the United Kingdom and the government of Northern Ireland, and for the present it appears to me that the governments of the dominions might well consider the advisability of agreeing to vest in that same judicial committee, reconstructed as it may be for the proper exercise of such jurisdiction, the right to arbitrate justiciable disputes hereafter arising between the several dominions of the commonwealth.

There is a wide range of matters of paramount interest to all parts of the British Empire, and in respect of these interests, which are common to all the parts, unity of action and uniformity of legislation can be secured only by coordinated enactments of the imperial and of the dominion parliaments, or by the negotiation of new conventions or agreements between all the parts of the British commonwealth. The committee have resolved that such unity of action and uniformity of legislation shall no longer be secured by imperial enactments; but it is clear to me that the abrogation of the legislative supremacy of the parliament of the United Kingdom will be conducive to harmonious and concerted action, if at all, only when the United Kingdom and the several dominions shall have previously agreed upon certain definite coordinated enactments or upon a series of constitutional and interimperial conventions or agreements, which shall clearly determine their future political relations inter se.

And here I may interject the opinion that the repeal of the Colonial Laws Validity Act and the argument of the Minister of Justice do not necessarily involve the complete renunciation of the paramount authority of the parliament of the United Kingdom to exist as a sovereign legislature, with legislative jurisdiction in matters of common imperial concern; and that the committee are un-doubtely mistaken in their assumption to the contrary.

They are undoubtedly mistaken, and from certain parts of their report it is evident that they do not assume that the paramount legislative authority of the imperial parliament or Ihe parliament of the United Kingdom is to be completely abrogated; for, at least, the Colonial Laws Validity Act is to be kept in full force and effect with regard to the legislation of the several provinces of Canada.

Shipping Legislation-Mr. Cahan

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

That is a common law principle.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Quite so. The fact that the peoples of all of the dominions are admittedly united in a common allegiance to the British throne implies that common interests undoubtedly exist, not only in relation to their external affairs with foreign countries, but also in respect to their interimperial relations; and within those two areas, however restricted they may be deemed to be, some means must be devised for preserving and facilitating their unity of legislative action.

The committee have in some respects gone far beyond and in others fallen far short of the reasonable implications of the resolutions of the Imperial conference of 1926. Am I mistaken in the suggestion that the absence of the restraining influence of the Prime Minister at this recent subconference enabled the Minister of Justice, who was present and one of its guiding spirits, to give free and full expression to certain separatist tendencies in respect of which the members of the government are not quite unanimous?

" Equality of status " among autonomous communities, in the mind of Lord Balfour, who drafted the resolutions of 1926, meant nothing more than the absence of the exercise of power or authority by one community over the other or others of them. To use Lord Balfour's felicitous phrase, they were-

In no way subordinate one to another in any aspect of their domestic or external affairs.

Or, in the words of Sir Cecil Hurst, who was one of the legal advisers of that conference, and who now sits as British representative on the Permanent Court of International Justice:

This equality of status is not inconsistent w'ith the continued existence of legal rights now vested in the parliament of Great Britain, or in the ministers of the crown in Great Britain, which are not vested in dominion parliaments or ministers, provided that those rights are only exercised in respect of any dominion, in accordance with the -wishes of the parliament or the people or the government of the dominion concerned.

It is this recognized principle that forms the basis of our existing imperial citizenship.

The status of a British subject throughout the empire and in all foreign countries depends now upon the legislation of the parliament of the United Kingdom, and it is now a matter of understanding between the governments of the United Kingdom and of the dominions that no change shall be made in this legislation, except after a new agreement, to which they shall all be parties, to substitute new amending legislation for the existing statutes. That is the principle which should

now govern proposed amendments to the Merchant Shipping Act. Uniformity in legislation affecting British shipping is of vital concern to all parts of the empire, and uniformity in the shipping laws of the empire can be preserved only by formal agreement between all autonomous parts of the empire to the effect that, before any repeal of existing legislation shall be effected, amending laws, which are to be substituted for the existing laws, shall first be devised and accepted by all of the dominions. That principle, which should be deemed imperishable if the political unity of the empire is to be preserved and maintained, is utterly disregarded in the recent report, to which the Minister of Justice is a signatory on behalf of Canada.

The report, in which the Minister of Justice concurs, advocates that power be vested in each dominion parliament to repeal in whole or in part the existing Merchant Shipping Acts. Each dominion is to act on its own initiative. The alternative, which I respectfully suggest, is that the existing merchant shipping acts should stand, until by concerted action the dominions have agreed in specific terms upon the new laws which are to be substituted therefor, so as to preserve uniformity of legislation in respect of all shipping interests which are of common concern, and so as to preclude any dominion from such premature and ill-considered action as may trench upon and destroy or prejudicially affect or discriminate against the substantial shipping interests of any other dominion.

In closing, I most insistently urge that parliamentary approval of these proposed radical and far-reaching constitutional changes should not be pressed during these closing days of this short and rather turbulent session, and if approved should not be deemed to represent the matured views of the very large shipping interests of Canada and should not be pressed as representing the considered opinions of the several provinces of Canada. The provinces should have been consulted in respect of the proposed increase of federal powers and the proposed extension of the federal legislative jurisdiction, which are embodied in this report, and in which are involved the power of this parliament to repeal imperial enactments.

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LIB

James Lorimer Ilsley

Liberal

Mr. ILSLEY:

It does not involve power to repeal the British North America Act.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Possibly it does not; I have discussed that point and have given my opinion with regard to it. I think that is very much in doubt, but it does expressly vest in the dominion parliaments the right to repeal a large number of acts of the parliament of the

Shipping Legislation-Mr. Cahan

United Kingdom which form the very basis of civil rights in each and every province of Canada, and I defy anyone successfully to contradict that statement.

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LIB
CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

My hon. friend can reply later on; he will have plenty of time then. The provinces have a right to be heard in respect of all proposed constitutional changes which concern their relations with the British crown, their relations with the government and parliament of this Dominion, the proposed extension of federal legislative jurisdiction, and the extent to which provincial legislation should hereafter have extraterritorial effect. It is certainly inexpedient and probably futile, in my opinion, to proceed further without the express approval of the several provinces and, therefore, before this parliament authorizes these constitutional changes, in my opinion, an interprovincial conference should be convened in Canada to consider their full effect, and to procure concerted action in relation thereto.

In the matter of the merchant shipping legislation, I think that the procedure proposed in this report will inevitably involve the dominions in serious difficulties and interminable disputes. Within certain limits, there should be uniform merchant shipping legislation for the whole empire, dealing with British shipping interests in general, and the sphere of independent dominion legislative action should be strictly defined by common agreement. To destroy by one sweeping blow the existing code of marine and shipping law, without any prior constructive effort to reach an agreement as to what elements of the existing system should be conserved in the best interest of all the constituent parts of the empire, appears to me futile and foolish.

We established a precedent in 1914 by framing and adopting the British Nationality and Status of Alien Acts, the terms of which were agreed upon by the representatives of the governments of the United Kingdom and of the dominions and then confirmed by imperial enactment as well as by the several dominion legislatures. That precedent might well be followed in the reform of the Merchant Shipping Acts.

The representatives of the several governments, which meet at the Imperial conference, before the enactment of the proposed amendments to our dominion constitutions, should sit in conference and, after hearing the expert evidence and representations of all British shipping interests in the dominions and elsewhere, should reach a common agreement with

[Mr. Cahan. 1

respect to the provisions of the new shipping law, which should have general application throughout the empire. The tentative provisions, so agreed upon, then should be embodied in coordinated enactments of the parliaments of the United Kingdom and of the dominions, under the clear understanding, as in the case of the Naturalization Acts, that they should not hereafter be amended except by common consent.

These constructive efforts should be fully achieved, and the enactment of these new conventions and agreements should be simultaneous with the repeal of the existing statutes. To proceed otherwise is as foolish as to dig up a mighty oak tree by the roots, in order that a few of its upper limbs may be pruned of their superfluous and mouldering branches.

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LIB

James Lorimer Ilsley

Liberal

Mr. J. L. ILSLEY (Hants-Kings):

Mr. Speaker, I wish first of all to congratulate the Minister of Justice (Mr. Lapointe) upon his very able presentation this afternoon. He has given the house and the country a comprehensive and indeed an eloquent account of the proceedings of the conference on the operation of dominion legislation and merchant shipping legislation which sat in London during the closing months of 1929. I also wish to compliment the hon. member for St. Lawrence-St. George (Mr. Cahan) upon the very exhaustive criticism of the report and of the minister's speech to which we have just listened.

I must say, Mr. Speaker, that I cannot agree with the hon. member for St. Lawrence-St. George in many of the remarks which he made and in many of the arguments which he advanced. He has denounced the draftsmanship of the report as clumsy; he has said that the language is prolix; he has termed the efforts of the conference as feeble and infantile and half-baked. I cannot agree with him in the application of those adjectives to the report of the committee. My reading of the report left me with the impression that it was expressed in very concise and very apposite language, and that it accomplished a great work which was in accordance with the findings of the Imperial conference of 1926, that conference the report of which was drafted by the very ablest statesmen of the British Empire. I could apply laudatory adjectives,

I suppose, to the report, but after all it does not make very much difference whether a member of this house uses uncomplimentary or complimentary adjectives; the people of the country will decide for themselves whether they approve of the step that has been taken and will express their view as to whether they consider it to be a forward step.

My criticism of the hon. member for St. Lawrence-St. George is this: His attitude is

Shipping Legislation-Mr. Ilsley

decidedly reactionary. I do not want to be thought to be using the language of party politics when P say that his attitude is conservative, the attitude of the person who opposes change, who talks about the many hundreds of years that it takes to build up institutions and the danger of shattering those institutions at a single blow. His criticism of this report is essentially that it is new. He says that the association of nations which constitute the British commonwealth of nations is not like anything that exists; it is not like the League of Nations; it is not a legal person; it is not a state. I admit that it is different from anything else which exists. It is a new form of association of nations but I am thankful to say that there are people in this country as well as in other countries who are not afraid to try something new.

A few of the arguments advanced by the hon. member for St. Lawrence-St. George I desire to answer very briefly, and then I should like to advance arguments of my own on the other side of the question. The hon. member pointed out that there were 115 imperial statutes which apply, either by express words or necessary intendment, to Canada. The hon. gentleman would almost lead us to believe that if we carried out this report we would be repealing the whole 115 statutes at one fell swoop. That is not the intention of the report at all; we are taking simply -the power to repeal or amend those acts so far as they extend to the Dominion of Canada. However, it is one thing to take power and another thing to exercise that power. Unless we possess that power it would be idle to talk about equality of status between this country and the motherland. Bu-t it is unnecessary for us to exercise that power if the retention of those acts upon the statute books of the mother country would be of advantage to this Dominion or to the British Empire as a whole.

The hon. member stated that the extension of extraterritorial powers to the Dominion of Canada would give the Dominion the power to encroach upon the powers of the provinces. When the proposed imperial act, which would give us the power to pass legislation having extraterritorial effect, is considered it will be seen that the Dominion of Canada receives no power as far as the provinces are concerned which is not given to it by section 91 of the British North America Act. The very provisions of the proposed act itself and the whole spirit and intent of the report make it abundantly clear that the British North America Act will be in no way affected by the legislation which it is recommended should be passed in pursuance of the report.

I think the hon. gentleman was compelled towards the end of his speech to admit that the British North America Act was not affected, and that the powers of the legislatures of the provinces were not being encroached upon. The hon. member stated that we should call -together the provinces and find out whether they wish to have the same power given to their legislatures, that is, the power to enact legislation conflicting with imperial legislation. Possibly that is a good suggestion, bu-t the old saying that Rome was not built in a day applies to it. This matter is not a vital one, and there will be plenty of time to take that step. If the provinces wish the repeal of the Colonial Laws Validity Act of 1865 so far as they are concerned, so that they will be enabled to pass legislation which conflicts with the legislation passed by the imperial parliament, there will be plenty of time to work tha-t out. This report does not propose to deal finally with everything at this moment, but it is a considerable step forward in doing what was started in 1926.

In dealing with the merchant shipping legislation, the hon. member seemed to think that we were about to wipe out-these are the words he used-the legislation upon the statute books of Great Britain. I think I have replied already to that argument. A great deal of the legislation which affects Canada undoubtedly will remain for many years to come; we simply take the power to do away with the anomalies and absurdities which are inherent in the present system of merchant shipping legislation as applied to the Dominion of Canada.

An ordinary Canadian reading the British North America Act and seeing that by section 91 the Dominion of Canada is given exclusive power to legislate on shipping and navigation, immediately would come to the conclusion that we have the power to control our own shipping, that is, ships registered in Canada, and that we have the power to control and regulate the shipping in our territorial waters of foreign countries and other parts of the British commonwealth. However, such is not the case. The Colonial Laws Validity Act of 1865 provides that if -the legislation of any British possession is repugnant to the provisions of any imperial act which applies to that possession, either by express words or by necessary intendment, the legislation of the possession in question is invalid, inoperative and void to the extent of such repugnancy. The merchant shipping acts of Great Britain extend back over a long period of years, but for our present pur-

25S8

Shipping Legislation-Mr. llsley

found the field preempted by imperial legislation. The imperial legislation that has been passed since 1910 has exempted the dominions from its operation. The problem was well summed up in the report of the conference, *and I should like to read a few sentences to the house:

What, therefore, the parliament of such a dominion as Canada or Australia is required to do since the year 1911, is by means of its own legislation, to endeavour to work into the existing shipping legislation of the parliament of the United Kingdom, applicable to such a dominion, certain modifications and additions embodied in international conventions to which the dominion may be a party, of which may otherwise be desired. This it must do, avoiding repugnancy to any legislation of the parliament of the United Kingdom, and avoiding also the field of legislation into which the parliament of a dominion cannot enter by reason of restrictive provisions in the Merchant Shipping Act, 1894, and in such acts as the Colonial Courts of Admiralty Act, 1890. This in some cases may be impossible. For instance, the Brussels International Maritime Conference of 1826 agreed upon certain rules of law relating to maritime mortgages and liens, and other rules relating to the limitations of the liability of owners of sea-going vessels. If a dominion parliament desired to confer upon its courts jurisdiction and authority to enforce these rules of law, it might find it impossible to enact legislation fully implementing the conference agreement in respect of foreign ships or ships registered outside the dominion, as these fields of jurisdiction appear to be partially, if not wholly, reserved for the parliament of the United Kingdom. In respect of mortgages and liens there may even be difficulty for the same reason in regard to ships registered in the dominion itself.

These are some of the principal objections to the system of merchant shipping legislation as it exists at the present time. It is all very well for the hon. member for St. Lawrence-St. George to point out the dangers that may exist in the future if we adopt this report, but it must not be lost sight of that the situation which exists to-dav is very, very bad, and it is worth taking some little risk to get rid of the present objectionable features.

What are the remedies for the evils described in the report?

(1) That the Colonial Laws Validity Act of 1S65 be repealed in so far as it applies to any dominion. This will enable Canada to pass valid shipping laws, instead of those which are invalid because they conflict with acts of the imperial parliament.

(2) That each dominion shall have the right to repeal imperial legislation extending to the dominion. This will enable us to go through the Merchant Shipping Act of 1894, and amending acts, and the Colonial Courts of Admiralty Act of 1890, and repeal those sections that are not suited to our conditions.

There are many sections which for the sake of ensuring uniformity in this country and the United Kingdom we may wish to leave there, at least for the time being; but there are other provisions which we shall probably wish to repeal at once, replacing them with enactments of our own.

(3) That each dominion shall have power to make laws having extra-territorial operation. That has been dealt with.

(4) That each dominion shall have full control over its own ships both extraterritorially and intraterritorially, and also full jurisdiction over all ships British or foreign which come into its harbours or territorial waters.

(5) That each dominion shall have full control over its own admirality courts.

If these recommendations are put into effect, most of our present troubles with shipping legislation will disappear. It will be said that the new plan has some disadvantages. The hon. member for St. Lawrence-St. George himself pointed out, however, that equality of status is not inconsistent with differentiation in function, and it may be advisable for many years to come to permit the imperial parliament to retain on its statute books legislation which applies to all the dominions, for the sake of preserving uniformity. The important point is that in all these respects in which repeal of that legislation and the passage of new legislation by ourselves should take place, it can take place. It does not follow that the present system must be entirely scrapped. We can retain the good and discard the bad, and do this all in a manner compatible with complete political equality between this country and Great Britain.

In conclusion, I want to say a few words about the broader aspects of the situation brought about by the Imperial conference of 1926 and the conference of 1929. After the war, Great Britain and her dominions were in their constitutional development confronted with three alternatives. They might remain as they were, stand still, preserve the status quo. Or they might move towards closer organic union along the lines laid out by Sir George Parkin in the early nineties, in his book on imperial federation. Or they might do as they have in fact done, establish perfect political equality between one another, while preserving the crown as the sole or main visible connecting link between them. The more the first two alternatives are considered, the more unwise, the more impracticable they appear. No one would argue to-day that either of these alternatives should be adopted or should have been adopted at the close of

Shipping Legislation-Mr. Woodsworth

the war. Had either been adopted there are many people who believe, and I agree with 1hem, that in all probability the British commonwealth of nations would not have held together. Believing as we do in the preservation of the British commonwealth of nations, we should have regarded such an eventuality as a misfortune to ourselves and a misfortune to the world. Happily, however, statesmanship found another way, a way that has led to these recommendations and to this resolution. What, after all, is the tie which binds the empire together? It is only the common sovereignty of the king? Or is it not also, as Professor Zimmern says, a common outlook upon public affairs, a common political philosophy, a common idealistic tradition? This outlook, this philosophy and this tradition have been and are based upon a deep love of liberty. It is because the recommendations which this resolution sanctions recognize the aspirations of the various parts of the British commonwealth of nations towards liberty, and reconcile these aspirations with some degree of organic unity, that they are highly worthy of support. Indeed, the work of the Imperial conference of 1926 and of the conference of 1929 on the operation of dominion legislation and merchant shipping legislation is a striking and notable proof of the political capacity, the genius for statesmanship, of the peoples of the British commonwealth of nations, and as such merits the approval of this house.

At six o'clock the house took recess.

After Recess

The house resumed at eight o'clock.

Topic:   DOMINION AND MERCHANT SHIPPING LEGISLATION
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LAB

James Shaver Woodsworth

Labour

Mr. J. S. WOODSWORTH (Winnipeg North Centre):

Mr. Speaker, I should like to congratulate the Minister of Justice (Mr. Lapointe) on his part in the preparation of this report. I have often had to differ from the hon. gentleman; therefore it gives me great pleasure to be able to commend his work in matters regarding dominion status. In a recent editorial on the pages of the Ottawa Citizen I was reproved because I had given very little credit to the Liberal government. Let me say at this time that while the Liberal government cannot boast of any great accomplishments in the matter of domestic policy, especially as regards labour, I do feel that it has done good work from the standpoint of international relations. Perhaps the viewpoint of labour should not remain unexpressed in connection with this matter, especially since there is a labour administration in Great Britain.

This subject is of a highly technical and legal nature. The report deals with many matters concerning which I frankly admit I am not competent to speak. It does however relate to a question of great public importance in regard to which everyone should entertain a more or less definite opinion. It seems to me the report is a clear-out dominion document; in it there are no modifying phrases such as "within the empire." The member for St. Lawrence-St. George (Mr. Cahan) regrets that the restraining opinion of the Prime Minister (Mr. Mackenzie King) had not, owing to his absence, been exercised upon the Minister of Justice.

I wish only that there had been an absence of the restraining sense of provincial rights; there it seems to me is one of the weaknesses of the report.

The member for St. Lawrence-St. George emphasizes the unity of empire. I am sure when we come to consider the matter we must agree that any unity must be founded on a living spiritual union rather than on musty legal documents. If legal bonds are necessary I submit that there is the same reason for such ties among the members of the League of Nations. After all we cannot stop at the small nation stage; we must go to the larger national unity. We cannot stop at the nation, we must go to the empire; we cannot stop at the empire, we must go to the world organization. To my mind the necessities of the case must ultimately drive us to the setting up of constitutional machinery for international relations. I do not intend to go into this phase of the matter at greater length. The member for Hants-Kings (Mr. Ilsley) gave us a very excellent quotation on this point from the words of Professor Zimmern. The quarrel of the hon. member for St. Lawrence-St. George is not with this report but rather with that which preceded it, the report of 1926.

There are definite points to which I might call the attention of members of the house. Provision is made for the succession to the throne, yet there is no provision whatever for the appointment of the governor general. It seems to me that when we were considering the heir to the throne we might very well have given some consideration to the appointment of the Governor General of the Dominion. If it is in perfect keeping with the spirit of the conference of 1926 that the appointment of the Governor General of the Dominion should be left to Canada; indeed, I should like to go further and suggest that the time is very soon coming when the Governor General of Canada should be a Canadian. Action along this line already has been

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Shipping Legislation-Mr. Woodsworth

taken by Australia, I understand, and now that we have here our own representative of the government of Great Britain, who is able to perform a very important function, I cannot see why, if the King of England is our King, we should not have a governor general who is in a peculiar sense our own representative.

Topic:   DOMINION AND MERCHANT SHIPPING LEGISLATION
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May 26, 1930