SIR CHARLES SCOTT

Whereas there was this day read at the Board a Report from the Judicial Committee of the Privy Council, dated the 26th May, 1898. in the words folio wing, viz : —

“Your Majesty having been pleased by Your General Order in Council of the 27th November, 1896, to refer unto this Committee the matter of an Appeal from the Suprême Court of Canada between the Attorneys-General for the Provinces of Quebec and Nova Scotia, Appellants, and the Attorney-General for the Dominion of Canada, Respondent (in the matter of certain questions referred to the Suprême Court of Canada by two Orders of His Excellency the Governor-General of Canada in Council approved on the 23rd February, 1894, and the 23rd February, 1895, respectively), and likewise a hümble Pétition of the above-named Appellants, setting forth that by Orders in Council approved on the 23rd February, 1894, and the 23rd February, 1895, respectively, the Governor- General of Canada, pursuant to chap. 135 of the Revised Statutes of Canada, as amended by section 4 of the Act of the Dominion of Canada (54 and 55 Vie., chap. 25), referred to the Suprême Court of Canada for hearing and considération the following seventeen questions : —

“1. Did 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, become under the British North America Act the property of the Dominion, or the property of the Province in which the same respectively are situate ; and is there in that respect any and what distinction between the various classes of waters, whether sait waters or fresh waters, tidal or non-tidal, navigable or non-navigable, or between the so-called great lakes, such as Lakes Superior, Huron, Erie, etc., and other lakes, or the so-called great rivers, such as the St. Lawrence River, the Richelieu, the Ottawa, etc., and other rivers or between waters directly and immediately connected with the sea coast and waters not so connected, or between other waters and waters separating (and so far as they do separate) two or more Provinces of the Dominion from one another, or between other waters and waters separating (and so far as they do separate) the Dominion from the territory of a foreign nation ?

“2. Is the Act of the Dominion Parliament Revised Statutes of Canada, chap. 92, intituled “An Act respecting certain works constructed in or over navigable waters,” an Act which the Dominion Parliament had jurisdiction to pass, either in whole or in part ?

“3. If not, in case the bed and banks of a lake or navigable river belong to a Province and the Province makes a grant of land extending into the lake or river for the purpose of there being built thereon a wharf, warehouse, or the like, has the grantee a right to build thereon accordingly, subject to the work not interfering with the navigation of the lake or river ?

“4. In case the bed of a public harbour or any portion of the bed of a public harbour at the time of Confédération had not been granted by the Crown, has the Province a like jurisdiction in regard to the making a grant as and for the purpose in preceding paragraph stated, subject to not thereby interfering with navigation, or other full use of the harbour as a harbour, and subject to any Dominion législation within the compétence of the Dominion Parliament ?

“5. Had riparian proprietors before Confédération an exclusive right of fishing in non-navigable lakes, rivers, streams, and waters, the beds of which had been granted to them by the Crown ?

“6. Has the Dominion Parliament jurisdiction to authorise the giving by lease, licence, or otherwise, to lessees, licensees, or other grantees, the right of fishing in such waters as mentioned in the last question, or any and which of them ?

“7. Has the Dominion Parliament exclusive jurisdiction to authorise the giving by lease, licence, or otherwise, to lessees, licensees, or other grantees, the right of fishing in such waters as mentioned in the last question, or any and which of them ?

“8. Has the Dominion Parliament such jurisdiction as regards navigable or non-navigable waters, the beds and banks of which are assigned to the Provinces respectively, under the British North America Act, if any such are so assigned ?

“9. If the Dominion Parliament has such jurisdiction as mentioned in the preceding three questions, has a Provincial Législature jurisdiction for the purpose of Provincial revenue, or otherwise, to require the Dominion lessee, licensee, or other grantee to take out a Provincial licence also ?

“10. Has the Dominion Parliament jurisdiction to pass section 4 of the Revised Statutes of Canada, chap. 95, intituled ‘An Act respecting Fisheries and Fishing,’ or any other of the provisions of the said Act, or any and which of such several sections, or any and what parts thereof respectively ?

“11. Had the Dominion Parliament jurisdiction to pass section 4 of the Revised Statutes of Canada, chap. 95, intituled ‘An Act respecting Fisheries and Fishing,’ or any other of the provisions of the said Act, so far as these respectively relate to fishing in waters the beds of which do not belong to the Dominion, and are not Indian lands ?

“12. If not, has the Dominion Parliament any jurisdiction in respect of fisheries, exeept to pass general laws not derogating from the property in the lands, constituting the beds of such waters, as aforesaid, or from the rights incident to the ownership by the Provinces and others; but (subject. to such property and rights) providing, in the interests of the owners and the public, for the régulation, protection, improvement, and préservation of fisheries : as, for example, by forbidding fish to be taken at improper seasons, preventing the undue destruction of fish, by taking them in an improper manner or with improper engines, prohibiting obstructions in ascending rivers, and the like ?

“13. Had the Législature of Ontario jurisdiction to enact the 47th section of the Revised Statutes of Ontario, chap. 24, intituled ‘An Act respecting the Sale and Management of Public Lands,’ and sections 5 to 13, both inclusive, and sections 19 and 21, both inclusive, of the Ontario Act of 1892, intituled ‘An Act for the Protection of the Provincial Fisheries,’ or any and which of such several sections, or any and what parts thereof respectively ?

“14. Had the Législature of Quebec jurisdiction to enact sections 1375 to 1378 inclusive of the Revised Statutes of Quebec, or any and which of the said sections, or any and what parts thereof ?

“15. Has a Province jurisdiction to legislate in regard to providi ng fishways in dams, slides, and other constructions, and otherwise

to regulate and protect fisheries within the Province, subject. to and so far as may consist with any laws passed by the Dominion Parliament, within its constitutional compétence ?

“16. Has the Dominion Parliament power to déclaré what shall be deemed an interférence with navigation, and require its sanction to any work or érection in or filling up of navigable waters ?

“17. Had riparian proprietors, before Confédération, an exclusive right of fishing in navigable non-tidal lakes, rivers, streams, and waters, the beds of which had been granted to them by the Crown ?

“That the Appellants were heard upon the hearing of the said questions before the said Suprême Court, and the opinion of the Suprême Court was certified to the Governor-General, with the reasons therefor, on the 13th October, 1896 : that the Appellants, as representing their said Governments respectively, feeling themselves aggrieved by the Certificate or Judgment given on the 13th October, 1896, presented their humble Pétition to Your Majesty in Council, praying for spécial leave to appeal to Your Majesty in Council from so much of the said Judgment of the Suprême Court as decided that the soil of public harbours is vested in the Dominion of Canada, and that the Dominion has the power to regulate the érection of wharves, piers, bridges, and other works extending into navigable waters, built upon land covered with water, owned or granted by the Provincial Governments : that on the 26th February, 1897, Your Majesty in Council was pleased to order that the Appellants should be allowed to enter and prosecute their said Appeal against the said Judgment of the Suprême Court of Canada of the 13th October, 1896, and humbly praying that Your Majesty in Council will be pleased to take their sa d Appeal into considération and to order that so much of the said Judgment of the Suprême Court of the 13th October, 1896, as décidés that the soil of public harbours is vested in the Dominion, and that the Dominion has the power to regulate the érection of wharves, piers, bridges, and other works extending into navigable waters, built upon land covered with water, owned or granted by the Provincial Governments, may be reversed, altered, or varied, or for other relief in the premises.

“The Lords of the Committee, in obedience to Your Majesty’s said General Order of Reference, hâve taken the said humble Pétition and Appeal into considération, and, having heard Counsel for the parties on both sides, their Lordships do this day agréé humbly to report to Your Majesty, as their opinion, that the Judgment of the Suprême Court of Canada, of the 13th October, 1896, ought to be

discharged, and that the following answers ought to be given to the said seventeen questions hereinbefore set forth ; that is to say : —

“1. In answer to the first and fourth questions — That under the British North America Act, 1867, the improvements only in lakes and rivers within the Provinces became the property of the Dominion of Canada ; that under the same Act, whatever is properly comprised in the term 'public harbours’ became the property of the Dominion of Canada; and that the answer to the question, what is properly so comprised, must dépend, to some extent, upon the circumstances of each particular harbour.

“2. In answer to the second, third, and sixteenth questions — That the Act of the Dominion Parliament, Revised Statutes of Canada, chap. 92, intituled ‘An Act respecting Certain Works constructed in or over Navigable Waters/ is an Act which the said Dominion Parliament had juridiction to pass.

“3. In answer to the fifth and seventeenth questions — That the riparian proprietors are not parties to this litigation, and it is not proper to pronounce any opinion as to the extent of their rights.

“4. In answer to the sixth, seventh, and eighth questions — That under the British North America Act, 1867, the said Dominion Parliament has exclusive authority to enact fishery régulations and restrictions, and is empowered to deal with proprietary rights in fisheries, so far as may be necessary for the purpose of such régulations and restrictions, and that it has power to impose a licence duty on fishing for purposes of taxation.

“5. In answer to the ninth and fifteenth questions — That under the British North America Act, 1867, a Provincial Législature is not empowered to enact fishery régulations and restrictions, either generally or unless and until the Dominion Parliament sees fit to deal with the subject : that a Provincial Législature is empowered to deal with fisheries in so far as they fall within the description of ‘property and civil rights/ or within the description of any other subject assigned to Provincial Législatures : and that a Provincial Législature may impose a licence duty on fishing in order to raise a revenue for Provincial purposes.

“6. In answer to the tenth, eleventh, and twelfth questions — That the Dominion Parliament had not jurisdiction to pass

section 4 of the Revised Statutes of Canada, chap. 95, intituled ‘An Act respecting Fisheries and Fishing’ in so far as the said section purports to authorise the grant of fishery leases, conferring an exclusive right to fish in property belonging not to the Dominion, but to the Provinces, and that the subsidiary provisions of the said last-mentioned Act, in so far as they are intended to enforce rights which the Dominion Parliament was not empowered to confer, are of no effect.

“7. In answer to the thirteenth question — That the Législature of Ontario had jurisdiction to enact section 47 of the Revised Statutes of Ontario, chap. 24, intituled ‘An Act respecting the Sale and Management of Public Lands,’ and that the validity of the provisions of the Ontario Act of 1892, intituled ‘An Act for the Protection of the Provincial Fisheries,’ is to be determined in accordance with the general principles laid down in these answers.

“8. In answer to the fourteenth question— That the Législature of Quebec had jurisdiction to enact section 1375, section 1376, and sub-section 1 of section 1377 of the Revised Statutes of Quebec, and that the validity of sub-section 2 of section 1377 and section 1378 is to be determined in accordance with the general principles laid down in these answers.”

“And in case Your Majesty should be pleased to approve of this Report, then their Lordships do direct that the parties are to bear their own costs of this Appeal.”

Her Majesty having taken the said Report into considération, was pleased, by and with the advice of Her Privy Council, to approve thereof and to order, as it is hereby ordered, that the recommendations and directions therein contained be punctually observed and carried into effect in each and every particular. Whereof the Governor-General of the Dominion of Canada for the time being, and ail other persons whom it may concern, are to take notice and govern themselves accordingly.