SIR HENRY DE VILLIERS

[Delivered by Lord Herschell. ]

The Governor-General of Canada by Order in Council referred to the Suprême Court of Canada for hearing and considération various questions relating to the property, rights and legislative jurisdiction of the Dominion of Canada and the Provinces respectively in relation to rivers, lakes, harbours, fisheries, and other cognate subjects.

The Suprême Court having answered some of the questions submitted adversely to the Dominion and some adversely to the Provinces, both parties hâve appealed.

Before approaching the particular questions submitted, their Lordships think it well to advert to certain general considérations which must be steadily kept in view, and which appear to hâve been lost sight of in some of the arguments presented to their Lordships.

It is unnecessary to détermine to what extent the rivers and lakes of Canada are vested in the Crown, or what public rights exist in respect of them. Whether a lake or river be vested in the Crown as represented by the Dominion, or as represented by the Province in which it is situate,

it is equally Crown property; and the rights of the public in respect of it, except in so far as they may be modified by législation, are precisely the saine. The answer, therefore, to such questions as those adverted to would not assist in determining whether in any particular case the property is vested in the Dominion or in the Province. It must also be borne in mind, that there is a broad distinction between proprietary rights and legislative jurisdiction. The fact that such jurisdiction in respect of a particular subject matter is conferred on the Dominion Législature, for example, affords no evidence that any proprietary rights with respect to it were transferred to the Dominion. There is no presumption that because legislative jurisdiction was vested in the Dominion Parliament, proprietary rights were transferred to it. The ‘Dominion of Canada was called into existence by the British North America Act, 1867. Whatever proprietary rights were at the time of the passing of that Act possessed by the Provinces remain vested in them, except such as are by any of its express enactments transferred to the Dominion of Canada.

With these preliminary observations their Lordships proceed to consider the questions submitted to them. The first of these is whether the beds of ail lakes, rivers, public harbours, and other waters, or any and which of them situate within the territorial limits of the several Provinces and not granted before Confédération, became, under the British North America Act, the property of the Dominion.

It is necessary to deal with the several subject matters referred to separately, though the answer as to each of them dépends mainly on the construction of the 3rd schedule to the British North America Act. By the 108th section of that Act it is provided that the public works and property of each Province enumerated in the schedule shall be the property of Canada. That schedule is headed “Provincial Public Works, and Property to be the property of Canada,” and contains an énumération of various subjects numbered 1 to 10. The fifth of these is “Rivers and Lake Improvements.” The word “rivers” obviously applies to nothing which was not vested in the Province. It is contended, on behalf of the Dominion, that under the words quoted the whole of the rivers so vested were transferred from the Province to the Dominion. It is contended, on the other hand, that nothing more was transferred than the improvements of the Provincial rivers ; that is to say, only public works which had been effected and not the entire beds of the rivers. If the words used had been “River and Lake Improvements” or if the word “lake” had been in the plural “lakes,” there could hâve been no doubt that the improvements only were transferred. Cogent arguments were adduced in support of each of the rival constructions ; upon the whole, their Lordships, after careful considération, hâve arrived at the

conclusion that the Court below was right, and that the improvements only were transferred to the Dominion. There can be no doubt that the subjects comprised in the schedule arè, for the most part, works or constructions which hâve resulted from the expenditure of public money, though there are exceptions. It is to be observed that ri vers and lake improvements are coupled together as one item. If the intention had been to transfer the en tire bed of the ri vers and only artificial works on lakes, one would not hâve expected to find them thus coupled together. Lake improvements might in that case more naturally hâve been found as a separate item or been coupled with canals. Moreover, it is impossible not to be impressed by the inconvenience which would arise if the entire rivers were transferred and only the improvements of lakes. How would it be possible in that case to define the limits of the Dominion and Provincial rights respectively. Divers flow into and out of lakes ; it would often be difficult to détermine where the river ended and the lake began. Reasons were adduced why the rivers should hâve been vested in the Dominion, but every one of these reasons seems equally applicable to lakes. The construction of the words as applicable to the improvements of rivers only is not an impossible one. It does no violence to the language employed. Their Lordships feel justified, therefore, in putting upon the language used the construction which seems to them to be more probably in accordance with the intention of the Législature.

With regard to public harbours their Lordships entertain no doubt that whatever is properly comprised in this term became vested in the Dominion of Canada. The words of the enactment in the 3rd schedule are précisé. It was contended, on behalf of the Provinces, that only those parts of what might ordinarily fall within the term “harbour”, on which public works had been executed, became vested in the Dominion, and that no part of the bed of the sea did so. Their Lordships are unable to adopt this view. The Suprême Court, in arriving at the same conclusion, founded their opinion on a previous decision in the same Court, in the case of Holman v. Green , where it was held that the foreshore between high and low water-mark on the margin of the harbour became the property of the Dominion as part of the harbour.

Their Lordships think it extremely inconvénient that a détermination should be sought of the abstract question, what falls within the description "public harbour.” They must décliné to attempt an exhaustive définition of the term applicable to ail cases. To do so would, in their judgment, be likely to prove misleading and dangerous. It must dépend to some extent, at ail events, upon the circumstanees of each particular harbour, what forais a part of that harbour. It is only possible to deal with definite issues which hâve been raised. It appears to hâve been thought by the Suprême Court, in the case of Holman v. Green, that

if more than the public works connectée! with the harbour passed under that word, and if it included any part of the bed of the sea, it followed that the foreshore between the high and low water-mark, being also Crown property, likewise passed to the Dominion.

Their Lordships are of opinion that it does not follow that, because the foreshore on the margin of a harbour is Crown property, it necessarily forms part of the harbour. It may or may not do so, according to circumstances. If, for example, it had actually been used for harbour purposes, such as anchoring ships or landing goods, it would, no doubt, form part of the harbour ; but there are other cases in which, in their Lordships’ opinion, it would be equally clear that it did not form part of it.

Their Lordships pass now to the question relating to fisheries and fishing rights.

Their Lordships are of opinion that the 91st section of the British North America Act did not convey to the Dominion of Canada any proprietary rights in relation to fisheries. Their Lordships hâve already noticed the distinction which must be borne in mind between rights of property and legislative jurisdiction. It was the latter only which wras conferred under the heading “See-coast and Inland Fisheries” in section 91. Whatever proprietary rights in relation to fisheries were previously vested in private individuals or in the Provinces respectively, remained untouched by that enaetment. Whatever grants might previously hâve been lawfully made by the Provinces in virtue of their proprietary rights could lawfully be made after that enaetment came into force. At the same time, it must be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent enable the Législature so empowered to affect proprietary rights. An enaetment, for example, prescribing the times of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose (which it was admitted the Dominion Législature was empowered to pass), might very seriously touch the exercise of proprietary rights, and the extent, character, and scope of such législation is left entirely to the Dominion Législature. The suggestion that the power might be abused so as to amount to a practical confiscation of property, does not warrant the imposition by the Courts of any limit upon the absolute power of législation conferred. The suprême legislative power in relation to any subject matter is always capable of abuse, but it is not to be assumed that it will be improperly used ; if it is, the only remedy is an appeal to those by whom the Législature is elected. If, however, the Législature purports to confer upon others proprietary rights, where it possesses none itself, that, in their Lordships’ opinion, is not an exercise of the legislative jurisdiction conferred by section 91. If the contrary were held it would follow that the Dominion might practically transfer to itself pro-

perty which has by the British North America Act been left to the Provinces and not vested in it.

In addition, however, to the legislative power conferred by the twelfth item of section 91, the fourth item of that section conféré upon the Parliament of Canada the power of raising money by any mode or System of taxation. Their Lordships think it is impossible to exclude, as not within this power, the provision imposing a tax by way of licence as a condition of the right to fish.

It is true that by virtue of section 92 the Provincial Législature may impose the obligation to obtain a licence, in order to raise a revenue for Provincial purposes ; but this cannot, in their Lordships’ opinion, derogate from the taxing power of the Dominion Parliament, to which they hâve already called attention.

Their Lordships are quite sensible of the possible inconveniences, to which attention was called in the course of the arguments, which might arise from the exercise of the right of imposing taxation in respect of the same subject matter and within the same area by different au thorities. They hâve no doubt, however, that these would be obviated in practice by the good sense of the Législatures concerned.

It follows from what has been said that in so far as section 4 of the Revised Statutes of Canada, chap. 95, empowers the grant of fishery leases, conferring an exclusive right to fish in property belonging not to the Dominion, but to the Provinces, it was not within the jurisdiction of the Dominion Parliament to pass it. This was the only section of the Act which was impeached in the course of the argument ; but the subsidiary provisions, in so far as they are intended to enforce a right which it was not competent for the Dominion to confer would, of course, fall with the principal enactment.

Their Lordships think that the Législature of Ontario had jurisdiction to enact the 47th section of the Revised Statutes of Ontario, chap. 24, except in so far as it relates to land in the harbours and canals, if any of the iatter be included in the words “other navigable waters of Ontario”. The reasons for this opinion hâve been already stated when dealing with the questions in whom the beds of harbours, rivers, and lakes were vested.

• The sections of the Ontario Act of 1892, entitled “An Act for the Protection of the Provincial Fisheries,” which are in question consist almost exclusively of provisions relating to the manner of fishing in Provincial waters. Régulations controlling the manner of fishing are undoubtedly within the compétence of the Dominion Parliament. The question is whether they can be the subject of Provincial législation, also in so far as it is not inconsistent with the Dominion législation.

By section 91 of the British North America Act the Parliament of the Dominion of Canada is empowered to make laws for the peace, order.

and good government of Canada in relation to ail matters not coming within the classes of subjects by that Act assigned exclusively to the Législatures of the Provinces "and for greater certainty, but not so as to restrict the generality of the foregoing ternis of this section,” it is declared that (notwithstanding anything in the Act) "the exclusive legislative authority of the Parliament of Canada extends to ail matters coming within the classes of subjects next thereinafter enumerated.” The twelfth of them is "Sea Coast and Inland Fisheries.”

The earlier pa;rt of this section, read in connection with the words beginning "and for greater certainty,” appears to amount to a legislative déclaration that any législation falling strictly within any of the classes specially enumerated in section 91 is not within the legislative compétence of the Provincial Législatures under section 92. In any view, the enactment is express that laws in relation to matters falling within any of the classes enumerated in section 91 are within the "exclusive” legislative authority of the Dominion Parliament. Whenever, therefore, a matter is within one of these specified classes, législation in relation to it by a Provincial Législature is, in their Lordships’ opinion, incompetent. It has been suggested, and this view has been adopted by some of the Judges of the Suprême Court, that although any Dominion législation dealing with the subject would override Provincial législation, the latter is nevertheless valid unless and until the Dominion Parliament so legislates. Their Lordships think that such a view does not give their due effect to the terms of section 91, and in particular to the word " exclusively.” It would authorise, for example, the enactment of a bankruptcy law or a copyright law in any of the Provinces unless and until the Dominion Parliament passed enactments dealing with those subjects. Their Lordships do not think this is consistent with the language and manifest intention of the British North America Act.

It is true that this Board held, in the case of The Attorney-General of Canada v. The Attorney-General of Ontario, that a law passed by a Provincial Législature which affected the assignments and property of insolvent persons was valid as falling within the heading "Property and Civil Rights,” although it was of such a nature that it would be a suitable ancillary provision to a bankruptcy law. But the ground of this decision was that the law in question did not fall within the class, "Bankruptcy and Insolvency,” in the sense in which those words were used in section

For these reasons their Lordships feel constrained to hold that the enactment of fishery régulations and restrictions is within the exclusive compétence of the Dominion Législature and is not within the legislative powers of Provincial Législatures.

But whilst, in their Lordships’ opinion, ail restrictions or limitations by which public rights of fishing are sought to be limited or controlled can be the subject of Dominion législation only, it does not follow that the législation of Provincial Législatures is incompetent merely because it may hâve relation to fisheries. For example, provisions prescribing the mode in which a private fishery is to be conveyed or otherwise disposed of, and the rights of succession in respect of it, would be properly treated as falling under the heading “Property and Civil Rights,” within section 92, and not as in the class “Fisheries” within the meaning of section 91. So, too, the terras and conditions upon which the fisheries which are the property of the Province may be granted, leased, or otherwise disposed of, and the rights which, consistently with any general régulations respecting fisheries enacted by the Dominion Parliament may be conferred therein, appear proper subjects for Provincial législation, either under class 5 of section 92, “The Management and Sale of Public Lands” or under the class “Property and Civil Rights.” Such législation deals directly with property, its disposai, and the rights to be enjoyed in respect of it, and was not, in their Lordships’ opinion, intended to be within the scope of the class “Fisheries,” as that word is used in section 92.

The various provisions of the Ontario Act of 1892 were not minutely discussed before their Lordships, nor hâve they the information before them which would enable them to give a definite and certain answer as to every one of the sections in question. The views, however, which they hâve expressed and the dividing line they hâve indicated will, they apprehend, afford the means of determining upon the validity of any particular provision or the limits within which its operation may be upheld ; for it is to be observed that section 1 of the Act limits its operation to “fishing in waters and to waters over or in respect of which the Législature of this Province has authority to legislate for the purposes of this Act.”

Sections 1375, 1376, and the lst sub-section of section 1377 of the Revised Statutes of Quebec afford good illustrations of législation such as their Lordships regard as within the functions of a Provincial Législature.

Their Lordships entertain no doubt that the Dominion Parliament had jurisdiction to pass the Act intituled “An Act respecting Certain Works constructed in or over navigable waters.” It is, in their opinion, clearly législation relating to “navigation.”

Their Lordships must décliné to answer the last question submitted as to the rights of riparian proprietors. These proprietors are not parties to this litigation or represented before their Lordships ; and accordingly, their Lordships do not think it proper, when determining the respective

rights and jurisdictions of the Dominion and Provincial Législatures, to

express an opinion upon the extent of the rights possessed by riparian proprietors.

The parties will, of course, bear their own costs of these proceedings.

[L. S.j AT THE COURT AT WINDSOR CASTLE The 18 th day of July, 1898.