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minion government withdrew, so that it went before their lordships only as affects the boundary between Ontario and Manitoba. At an early stage of the proceed. ings, their lordships decided that the award was not binding, inasmuch as no legislation had taken place to give effect to the same, but they found at the same time that "so much of the boundary lines laid down by that award as relates to the territory now in dispute between Ontario and Manitoba to be substantially correct." Accordingly they find "the true boundary between the western part of the province of Ontario and the southeastern part of the province of Manitoba to be so much of a line drawn to the Lake of the Woods, through the waters eastward of that lake and west of Long Lake, which divide British North America from the territory of the United States, and thence through the Lake of the Woods to the most northwestern point of that lake as runs northward from the United States boundary, and from the most northwestern point of the Lake of the Woods a line drawn due north, until it strikes the middle line of the course of the river discharging the waters of the lake called Lac Seul, or Lonely Lake, whether above or below its confluence with the stream flowing from the Lake of the Woods towards Lake Winnipeg; and their lordships find the true boundary between the same two provinces to the north of Ontario and to the south of Manitoba, proceeding eastward from the point at which the before-mentioned line strikes the middle line of the course of the river last aforesaid to be along the middle line of the course of the same river (whether called by the name of the English River or as to the part below the confluence by the name of the River Winnipeg) up

to Lac Seul, and thence along the middle line of Lac Seul to the head of that lake, and thence by a straight line to the nearest point of the middle line of the waters of Lake St. Joseph, and thence along that middle line until it reaches the foot or outlet of that lake, and thence along the middle line of the river by which the waters of Lake St. Joseph discharge themselves, until it reaches a line drawn due north from the confluence of the Rivers Mississippi and Ohio, which forms the boundary eastward of the province of Manitoba." Their lordships do not express an opinion "as to the sufficiency or otherwise of concurrent legislation of the provinces of Ontario and Manitoba, and of the dominion of Canada, but at the same time think it "desirable and most expedient that an imperial act of parliament should be passed to make this decision binding and effectual." From the foregoing decision it will be seen that it only affects the question between Ontario and Manitoba, and leaves the rest of the boundary to be still finally determined. The Ontario government has taken all the measures necessary to establish their jurisdiction in the territory given to them by the decision in question. The whole matter, however, rests in statu quo so far as the Dominion government is concerned. As we have already seen, the question they subsequently raised with respect to the title to the Indian lands in the disputed territory, has been decided by the Canadian courts in favour of Ontario.2

1L. N. 1884, pp. 281-282. See remarks of Mr. Blake, Can. Hans. 1885, pp. 17, 18; and of Sir J. A. Macdonald, ibid, p. 23. Also, April 13, 1888.

2 See supra, pp. 151–155.

CHAPTER XIV.

RULES OF CONSTRUCTION AND CONSTITUTIONAL PRINCIPLES DEDUCED FROM JUDICIAL DECISIONS.

The most important questions which have come before the privy council and the supreme court of Canada, have arisen upon the provisions of the British North America Act, relating to the distribution of legislative powers between the parliament of Canada and the legislatures of the provinces, and in the words of the privy council, "owing to the very general language in which some of these powers are described, the question is one of considerable difficulty." A learned judge of the supreme court observes that "in construing the act, no hard and fast canon or rule of construction can be laid down and adopted, by which all acts passed, as well by the parliament of Canada as by the local legislatures, upon all and every question that may arise, can be effectually tested as to their being or not being intra vires of the legislature passing them." The nearest approach to a rule of general application that has been attempted in the courts of Canada, with a view to reconcile the apparently conflicting legislative powers under the act, is

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with respect to property and civil rights, over which exclusive legislative authority is given to the local legislatures that, as there are many matters involving property and civil rights expressly reserved to the dominion parliament, the power of the local legislatures must, to a certain extent, be subject to the general and special legislative powers of the dominion. But while the legis‐ lative rights of the local legislatures are, in this sense, subordinate to the rights of the dominion parliament, these latter rights must be exercised, so far as may be, consistently with the rights of the local legislatures, and therefore the dominion parliament would only have the right to interfere with property and civil rights in so far as such interference may be necessary for the purpose of legislating generally and effectually in relation to matters confided to the parliament of Canada.1 On this same point the privy council appears to take a similar view: It is therefore to be presumed, indeed, it is a necessary implication, that the imperial statute, in assigning to the dominion parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure, within the province, so far as a general law relating to those subjects might affect them."

The judicial committee of the privy council have endeavoured to lay down certain principles which should guide those who are called upon to interpret the Union Act. The first step to be taken, with a view to test the

1 Ritchie, C. J., in The Queen v. Robertson, Can. Sup. Court R., vol. vi, pp. 110-11. Also Valin v. Langlois, vol. iii, p. 15; The Citizens Insurance Co. v. Parsons, vol. iv, p. 242.

2 Sir M. E. Smith in Cushing v. Dupuy, 5 App. Ca. 415.

validity of an act of a provincial legislature is to consider whether the subject-matter falls within any of the classes of subjects enumerated in section ninety-two, which states the legislative powers of the provincial legislatures. If it does not come within any of such classes, the provincial act is of no validity. If it does, these further questions may arise, viz., whether the subject of the act does not also fall within one of the enumerated classes of subjects in section ninety-one, which states the legislative powers of the dominion parliament, and whether the power of the provincial legislature is, or is not, thereby overborne.1

The same eminent authority has in another judgment 2 expressed the following opinion:

"That it must have been foreseen that some of the classes of subjects assigned to the provincial legislatures unavoidably ran into, and were embraced by, some of the enumerated classes of subjects in section ninety-one;

1 Dobie v. The Temporalities Board of the Presbyterian Church in Canada, 7 App. Cas., 136; Cartwright, 367. In Steadman v. Robertson (2 Pug. and Bur., 580) one of the judges of the supreme court of New Brunswick expressed the opinion: “The B. N. A. Act is distributive merely in respect to powers of legislation, exercisable by the dominion parliament and by the local legislatures respectively, and the dominion parliament may not intrench upon property and civil rights which are under the guardianship and subject to the power of the local legislatures, except to the extent that may be required to enable parliament to 'work out' the legislation upon the particular subjects specially delegated to it."

2 The Citizens & Queen Insurance Co., v. Parsons, Rep. 45, L. T. N. S. 721; Cartwright, 272, 273.

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