government. As it was considered of importance “that the course of local legislation should be interfered with as little as possible, and the power of disallowance exercised with great caution, and only in cases where the law and general interests of the dominion imperatively demanded it," the minister of justice in 1868 laid down certain principles of procedure, which have been generally followed up to the present time. On the receipt of the acts passed in any province, they are immediately referred. to the minister of justice. He thereupon reports those acts which he considers free from objection of any kind, and if his report is approved by the governor in council, such approval is forthwith communicated to the provincial government. He also makes separate reports on those acts which he may consider :— 1. As being altogether illegal or unconstitutional. 3. As, in cases of concurrent jurisdiction, clashing with the legislation of the general parliament. 4. As affecting the interests of the dominion generally. It has also been the practice, in the case of measures only partially defective, not to disallow the act in the first instance; but, if the general interests permit such a course, to give the local government an opportunity of considering the objections to such legislation and of remedying the defects therein.1 Perhaps no power conferred upon the general government is regarded with greater jealousy and restlessness than this power of disallowing provincial enactments. So far, this power has been exercised in relatively few cases 1 Report of Sir J. A. Macdonald, Can. Sess. P., 1870, No. 35, pp. 6-7. out of the large number of acts passed since confederation by the legislatures of the provinces. Nearly 8,000 acts have been passed from 1867 to 1887, inclusive, but not more than 45 altogether have been disallowed. This fact goes to show that the power has been exercised, on the whole, with caution and deliberation. A review, however, of the very voluminous papers relating to this question proves that, whilst but few acts have been disallowed, the legislation has been considered partially objectionable in many cases by the law officers of the dominion; but, in such cases generally, every oppor tunity has been given to the local governments to remove the objections pointed out by the minister of justice.1 Considerable discussion has arisen, however, in and out of parliament with respect to certain cases of disallowance. The first of these cases was in connection with “An Act for protecting the public interests in rivers and streams" (Ontario Stat., 1881). It appears that one McLaren, a lumberman, constructed certain works on non-floatable streams, of which he claimed to be seized in fee-simple, for the purpose of carrying his logs to their destination. One Caldwell, carrying on the same business higher up than the former, claimed the right to use these streams under the first section of chapter 115, R. S. O., as follows: "All persons may, during the spring, summer and autumn freshets, float saw-logs, and other lumber, rafts and craft down all streams." McLaren obtained an injunction from the court of chancery, restraining Caldwell from making 1 Can. Sess. P., 1882, No. 141, pp. 2-29; Ib. 1886, No. 81. 1 use of the improvements in question, on the ground that the words "all streams" only referred to those floatable in a state of nature, and that the streams in question were not navigable for saw-logs or other lumber without artificial improvements Subsequently, in 1881, the legislature of Ontario passed an act re-enacting the section cited above, and at the same time declaring that its provisions shall extend to all streams and all constructions and improvements thereon; and that all persons might make use of such improvements on paying a reasonable toll (to be fixed by the lieutenant-governor in council) to the person who has made these improvements on the streams. An appeal was made to the governor-general in council to disallow the act on the ground that it was unconstitutional, inasmuch as it deprived the petitioner of extensive and important private rights without providing adequate compensation, and as it embodied ex post facto legislation, contrary to all sound principles that should govern in such cases. The minister of justice advised, and the privy council concurred in the advice, that the act be disallowed for these reasons principally: "That the act seems to take away the use of the owner's property and give it to another, 1 The supreme court of Canada, in November, 1882, affirmed the decree of the court of chancery, and reversed the decision of the court of appeal of Ontario to the effect that the R. S. O., c. 115, s. 1, re-enacting C. S. U. C., c. 48, s. 15, made all streams, whether artificially or naturally floatable, public waterways. Can. Law Times, 1882, pp. 90-91. Ib., 1883, p. 346. In 1884 the privy council decided that the judgment of the supreme court should be reversed and that of the court of appeal restored. Leg. News, pp. 195, 203. forcing the owner practically to become a toll-keeper against his will, if he wished to get any compensation for being thus deprived of his rights. That the power of the local legislatures to take away the rights of one man and vest them in another, as is done in the act, is exceedingly doubtful; that, assuming such a right does in strictness exist, it devolves upon the dominion government to see that such power is not exercised in flagrant violation of private rights and natural justice, especially when, as in this case, in addition to interfering with private rights in the way alluded to, the act over-rides a decision of a court of competent jurisdiction by declaring retrospectively that the law always was, and is, different from that laid down by the court." To this decision strong objection was taken by the government of Ontario, in an elaborate state-paper, in which it is emphatically urged that the governor-general in council should not assume to review any of the provisions of an act passed by the provincial legislature on a subject within its competency under the British North America act.1 The legislature of Ontaria subsequently re-enacted the act of 1881, which was again disallowed by the government of the dominion. The act of the Manitoba legislature, incorporating the Winnipeg South-Eastern Railway Company, was disallowed because it conflicted with "the settled policy of the dominion, as evidenced by a clause in the contract with the Canadian Pacific Railway," which was ratified by parliament in the session of 1880-81; which clause is to the effect that "for twenty years from the date hereof 1 Can. Sess. P., 1882, No. 149a. Hans., pp. 876-926. no line of railway shall be authorized by the dominion parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west, nor to within fifteen miles of latitude 49." The government of Manitoba contended at the time that the act was "strictly within the jurisdiction of the legislature of the province." 1 1 These cases show the large power assumed by the dominion government under the law giving them the right of disallowing provincial enactments. The best 1 Can. Sess. P., 1882, No. 166. The government of Canada has also disallowed the acts of Manitoba to incorporate the Manitoba Tramway Co., to incorporate the Emerson and North-Western RR. Co., and to encourage the building of railways in Manitoba, on the ground also, that they were "in conflict with the settled policy of the dominion government in regard to the direction and limits of railway construction in the territories of the dominion." To this policy the government of the dominion has strictly adhered for years. In 1886 they disallowed the charters granted to the Manitoba Central Railway Company, and to the Rock Lake, Souris Valley & Brandon R.R. Company, and in 1887 those to the Winnipeg and Southern Railway Company and the Red River Valley R. R, in addition to the Emerson & N. W. R.R. Co. and the Manitoba Central R.R., previously disallowed. Can. Sess. P., 1886, No. 81. Can. Gazette, 1887. In 1883 the acts passed by the legislature of British Columbia "to incorporate the Fraser River Railway Company," and "to incorporate the New Westminster Southern Railway Company," were disallowed for the same reasons. Can. Sess. P., 1886, No. 29. Much irritation has been felt in Manitoba on account of this policy, and at this time of writing negotiations are in progress between the dominion and the provincial government on the subject, and it is understood a solution of the difficulty has been reached and the monopoly practically removed. |