Majority
CONSTITUTIONAL VALIDITY AND EFFECT OF *Nov. 25,26. SECTION 189 OF THE RAILWAY ACT IN ITS *Dec. 10. APPLICATION
TO
PROVINCIAL
CROWN LANDS.
REFERENCE BY THE GOVERNOR GENERAL IN COUNCIL
Judgment of the Court
J.-By order of the Governor General in Council of 11th June, 1925, the following questions were referred to this Court for hearing and consideration, under the authority of section 60 of the Supreme Court Act: The order proceeds upon a recital that there is pending an application of the Nipissing Central Railway for the consent of the Governor in Council, under the section mentioned, to take possession of, use and occupy Crown Lands of the province of Quebec for the purposes of a proposed extension of its Larder Lake branch into the Rouyn mining district, and that the Government of Quebec opposes such consent upon the grounds that the section applies only to Crown Lands of the Dominion, and that, if interpreted as applying to Provincial Crown Lands, it is ultra vires of Parliament, in so far as it is intended to affect them. The Nipissing Central Railway Company was incorporated by Act of the Dominion, c. 112 of 1907. The lines of railway which it is authorized to construct and operate are particularly described, and include a line extending from Latchford in the province of Ontario, through certain named townships, and thence, in a northerly direction, to a point on the line of the Grand Trunk Pacific Railway in the province of Quebec, at or near the Matagami River. Thus the work authorized to be constructed is of the class described in the 10th enumeration of s. 92 of the British North America Act, 1867, as a line of railway connecting one province with another, or extending beyond the limits of a province, and therefore within the exclusive legislative authority of the Parliament of Canada under the 29th enumeration of s. 91 of the last mentioned Act.
Section 189, the enactment with regard to which the questions are propounded, is the first of a group of sections comprised in the Railway Act, 1919, under the general title or description, " The taking and using of lands"; it is introduced under the special caption, "Restrictions-Crown Lands," and is expressed in the following words:
A few brief observations are necessary in order to bring out the setting or context. The Railway Act, 1919, is the general Railway Act of the Dominion, providing for the construction and working of railways, other than Government railways, and authorizing, subject to its provisions the compulsory taking and using of lands for railway purposes; it provides for the powers and regulation of railway companies, subject to the special or particular legislation. affecting them individually; it applies to Government railways only so far as specially provided; it provides also for a Board of Railway Commissioners for Canada, and this board exercises large powers and jurisdiction with relation to railways under the provisions of the Act.
Under the general powers conferred, a railway company may, by s. 162, for the purposes of its undertaking and subject to the provisions of its special Act:
It is provided by s. 166 that the company shall not commence the construction of its railway, or any section or portion thereof, until the general location shall have been approved by the Board of Railway Commissioners for Canada, nor until the plan, profile or book of reference of the railway shall have been sanctioned by the Board. Then by s. 167, it is enacted that the company shall prepare, and submit to the Board, a map showing the general location of the proposed line of the railway, the termini, and principal towns and places through which it is to pass, with some additional particulars which are specified, and such further or other information -as the Board may require. This map may be approved by the Board, subject to such changes and alterations as may be deemed expedient, and, when so approved, the company is, by s. 168, required to prepare a plan, profile and book of reference of the railway with precise particulars, showing, among other requirements, the areas, length and width of the lands proposed to be taken, giving the numbers of lots, and defining the portion of each lot proposed to be taken, and stating the names of the owners and occupiers, so far as they can be ascertained. By s. 170, the plan, profile and book of reference are to be submitted to the Board, which, if satisfied therewith, may sanction them, and by such sanctioning, the Board shall be deemed to have approved the location, grades and curves as shown; and, by s. 172, the plan profile and book of reference, when sanctioned, are to be deposited with the Board, and copies thereof are also to be deposited in the office of the registrars of deeds for the districts or counties within which the lands lie. The company may then proceed, subject to the provisions of the Act, to take, for the purposes of its railway, the lands so defined or ascertained; but, so far as concerns lands vested in the Crown, the requirements of s. 189 are interposed. We are informed that the Board of Railway Commissioners has approved the location map of the Nipissing Central Railway, and sanctioned the plan, profile and book of reference of that portion of it which lies between Larder Lake, in the province of Ontario, and Osisko Lake, in the province of Quebec, a distance of about thirty-seven miles; but, as the railway so located necessarily traverses Crown Lands of Quebec, the work is stayed in the absence of the Governor General's consent to the taking of the lands required.
The course of the legislation is important, because, as I shall show, the section now in question was, in an earlier form, both as to its interpretation and enacting authority, the subject of conclusive determination by decision of the Judicial Committee of the Privy Council which is directly binding upon this court.
And, first, it is pertinent to observe that the Railway Act of 1919 is a consolidation, with some amendments, of preceding legislation; s. 189 finds its prototype in the preunion consolidation of the statutes of the province of Canada in 1859, c. 66, s. 133, an Act which apparently has not been expressly repealed, either by the Parliament of Can- RWERENCE ada or by the legislature of Quebec, and which survived m n s8se the union of the province, subject to the provisions of s. ACr. 129 of the British North America Act, 1867.
3. No railway company shall take possession of, use or occupy any lands vested in Her Majesty, without the consent of the Governor in Council; but with such consent any such company may take and appropriate for the use of their railway and works, but not alienate, so much of the wild lands of the Crown lying on the route of the railway, as have not been granted or sold, and as may be necessary for such railway, as also so much of the public beach or of the land covered with the waters of any lake, river, stream or canal, or of their respective beds, as is necessary for making and completing and using their said railway and works, subject, however, to the exceptions contained in the next following subsection.
The exceptions are of no present consequence; they make special provision for lands reserved for naval or military purposes.
This provision agrees precisely in effect with s. 133 of the Railway Act as found in the Consolidated Statutes of Canada, 1859, except that the public beach is not mentioned in the Act of 1859, and the exceptions include Indian as well as Military or Naval Reserves. Eleven years later, Parliament enacted the Consolidated Railway Act, 1879, c. 9, and s. 7, ss. 3, of this Act reproduces in place and in terms the provision of 1868 last quoted.
Since the Act of 1879 there have been no less than five consolidations. When the Act of 1879 was consolidated in the general revision of the Public Statutes of 1886, c. 109, e. 7, as. 3, was reproduced, without any material change, 'by paragraph 17 of s. 6; but when that section reappeared in the consolidation of 1888, c. 29, s. 99, some changes and an addition were introduced, making the section read as follows:- 99. No company shall take possession of, use or occupy any lands vested in Her 'Majesty, without the consent of the Governor in Council; but with such consent, any such company may, upon such terms as the Governor in Council prescribes, take and appropriate, for the use of its railway and works, but not alienate, so much of the lands of the Crown lying on the route of the railway as have not been granted or sold, and as is necessary for such railway, as also so much of the public beach, or of the land covered with the waters of any lake, river, stream or canal, C. 29 of 1888 stood until the consolidation of 1903, c. 58, wherein it was reproduced as as. 1 of s. 134, under the heading " Taking or Using Lands "; but, in the latter section, the words " the Crown " were substituted for " Her Majesty," where they occurred in the provision of 1886, and the word " canal" was omitted in the mention of the lands covered with water, which, by the Act of 1888, the company was empowered to take. In the general consolidation and revision. of 1906, c. 37, the provision respecting the taking possession of, use or occupation of lands vested in the Crown appears as s. 172, and it differs in no respect from 1 of s. 134 of 1903, except that it is divided into four subsections with a view, I suppose, to simplify and improve its structure.
Section 172 of c. 37 of the Revised Statutes, 1906, is reproduced without material change in s. 189 of the Consolidation of 1919, the enactment which is now submitted for hearing and consideration.
Argument seems unnecessary to show that s. 189 is intended to apply to Provincial Crown Lands, or that it is, in relation to those lands, within the enacting authority of Parliament, if the previous corresponding enactments to which I have referred, and from which it is mediately or immediately derived, had that application, and were competently sanctioned.
Now s. 189 does not differ, as to its intention and legislative effect, from the original Dominion provision of 1868 in %ny particular material to the questions submitted. There can be no doubt of course that, in the Consolidated Act of 1859, the parent provision applied to all Crown Lands; the separate rights of the Crown in relation to the Dominion and the provinces had not then been created; neither can there be any doubt that in 1868, when the Parliament of Canada re-enacted the clause of 1859, that re-enactment was expressed in terms which, in one particular at least, did not fail to describe lands belonging to the provinces. It must be remembered that at that time the only provinces comprised in the union were the four original ones, Ontario and Quebec, previously united as the provinces of Canada, Nova Scotia and New
Brunswick; and, in these provinces, by s. 109 of the British North America Act, 1867, the public lands, including all S. which would be understood as comprised in the description
" wild lands of the Crown," were to belong to the several provinces in which they were situated. It was not until
1888, after the North West Territories had been incorporated in the Union, and after the constitution of the province of Manitoba, and after the provinces of British
Columbia and Prince Edward Island had joined the Union, that the expression, " wild lands of the Crown," gave way to the general and more comprehensive description, " lands of the Crown," as a more apt and enlarged definition of the lands to which the provision was to apply.
The legislative authority of Parliament to give effect to s. 189, in its application to Provincial Crown Lands, might, however, present some difficulties were it not already affirmed by ultimate authority; but, in view of the judgment of the Judicial Committee of the Privy Council in the Vancouver Case, Attorney General for British Columbia v. Canadian Pacific Railway Co. (1), neither the meaning of the section nor the power to enact it is questionable in this court. That case was tried in 1904; the action was by the Attorney General of the province for a declaration that the public had a right of access to the waters of Vancouver harbour through certain streets of the city of Vancouver.
The main line of the defendant company's railway extends from Calendar Station, near lake Nipissing, to Port Moodie, in British Columbia, and the company had constructed, under its statutory powers, a branch or extension of its railway from Port Moodie to Vancouver, the line of which ran along the foreshore on the south side of the harbour, crossing the ends of these streets, where the company had constructed yards and wharves which obstructed them. It was found that these streets were at the time public highways, extending to low water mark, and that the public right of passage over them to the waters of the harbour existed at the date of the admission of British Columbia into the Union. At the trial the action was dismissed; and, upon appeal to the Supreme Court of the province, sitting en banc, the question as to the authority of the company
I= under its statutory powers to take these lands for its railpREFEBECE way purposes, seeing that they belonged to the Provincial IN so,89. Crown, was very fully discussed, both at the hearing and Acr.
in the judgments of the learned judges who gave their NewcombeJ. reasons for dismissing the appeal. The authority of the company depended upon s. 7, ss. 3, of the Consolidated Railway Act, 1879, as modified or affected by the special legislation relating to the company, c. 1 of 1881. By ss. 17 and 18 (a) of the Company's Act of incorporation, which is embodied in a schedule to the Act last mentioned, it is provided that:- 17. "The Consolidated Railway Act, 1879," in so far as the provisions of the same are applicable to the undertaking authorized by this charter, and in so far as they are not inconsistent with or contrary to the provisions hereof, and save and except as hereinafter provided, is hereby incorporated herewith.
18. As respects the said railway, the seventh section of " The Consolidated Railway Act, 1879," relating to powers, and the eighth section thereof relating to plans and surveys, shall be subject to the following provisions:- (a) The company shall have the right to take, use and hold the beach and land below high water mark, in any stream, lake, navigable water, gulf or sea, in so far as the same shall be vested in the Crown and shall not be required by the Crown, to such extent as shall be required by the company for its railway and other works, and as shall be exhibited by a map or plan thereof deposited in the office of the Minister of Railways. But the provisions of this subsection shall not apply to any beach or land lying east of Lake Nipissing except with the approval of the Governor in Council.
The last four lines should not be overlooked; it is only with the approval of the Governor in Council that the provisions of the subsection apply to any beach or land lying east of Lake Nipissing, territory which could not be reached by the company save in the exercise of its very comprehensive powers to construct branches or extensions of its main line, as expressed in clause 14 of the contract, and in s. 15 of the Act of Incorporation, scheduled to c. 1 of 1881.
Ordinarily, therefore, ss. 3 of s. 7 of the Railway Act, 1879, is left to its unqualified operation east of Lake Nipissing; beyond Lake Nipissing it applies subject to the special modification enacted by a. 18 (a), c. 1 of 1881. It must follow that when the Crown is spoken of, both in the main provision of 1879 and in s. 18 (a) of 1881, to which the main provision is made subject, it is the same Crown in both cases that Parliament had in mind; the rule and its exception must operate with relation to a common subject matter; east or west of Lake Nipissing, the
Crown Lands which are provided for in subs. 3 of s. 7 of
1879, and in s. 18 (a) of 1881, include Crown Lands of the 8.189. province.
It is noticeable in perusing the judgments of the learned judges of the provincial court upon the appeal that the arguments and the authorities which had been submitted to them, and to which they gave careful consideration, embrace all those, except the cases subsequently decided, which were so forcibly presented at the hearing of this reference in opposition to an affirmative answer to the first question submitted. From the judgment of the provincial court, sitting en banc, there was an appeal direct to His
Majesty in Council, which was heard by Lord Macnaghten,
Lord Davey, Sir Ford North and Sir Arthur Wilson, the latter pronouncing the judgment on 27th February, 1906.
Their Lordships observe that the learned trial judge had found that the rights of way contended for existed when
British Colurmbia entered the Union, and when the railway company, by the construction of its works, interrupted the free access to the sea, and that the learned judges of the full court did not dissent from this finding, " rightly addressing their minds to the more important general questions arising in the case". Their Lordships state that they propose to follow a similar course, and they proceed to consider the two distinct grounds upon which it was urged at the argument that the Dominion Parliament had the right to legislate; and, first, it was held that under s. 108 and the third schedule of the British North America Act,
1867, the harbour of Vancouver was a public harbour at the time of the Union, and therefore became the property of Canada. Then they consider the second ground which is thus described in the judgment:
Upon this question they conclude that:
With regard to the suggestion that s. (a) of the Canadian Pacific Railway's Act of incorporation did not authorize the closing of public highways, their Lordships observe that the latter Act incorporated the Consolidated Railway Act, 1879, in so far as its provisions were not inconsistent with or contrary to the provisions of the Incorporating Act; that there was a variety of inconsistent provisions in the general Act, but that it was unnecessary to enquire whether these would or would not apply to the rights of way in question, and they concluded that: It follows, I think, from the judgment of their Lordships that, in relation to railways, the authority given to Parliament by s. 91 of the British North America Act, 1867, necessarily involves the power to take provincial 'lands for railway purposes. That, I think, is the effect of the Vancouver decision.
Their Lordships had before them the judgment of the provincial court in which the whole question of legislative power was elaborately considered; and, although the decision of either of the two more important general points before them might have been sufficient for the disposition of the case, these two questions were treated as of co-ordinate importance, and their Lordships emphasized the propriety of addressing their minds to the question of the legislative power, which they affirmed. It is impossible therefore to deny that the observations upon this branch of the case were strictly intended to form part of their judgment; New South Wales Taxation Commissioners v. Palmer (1); Membery v. Great Western Railway Coy. I think that this court ought to follow the decision of their Lordships. It was given nearly twenty years ago, and it has ever since been acted upon in practice. The provision which it upholds has, in the interval, been enacted and re-enacted by Parliament without any material change affecting the questions with which we are now concerned, and has thus become as firmly established in the legislation of the country as any statutory enactment, emanating from a legislature of limited powers, can possibly be.
It was said that s. 189 does not provide for adequate compensation, and is therefore ultra vires under the authority of the very recent decision of the Judicial Committee in the Montreal Harbour Commissioners Case (1).
There are several answers. In the first place, it may be said that s. 189, at least, does not fail in the provision for indemnity more than did the legislation which was under review in the Vancouver Case (2); and, to the extent to which ss. 4 is intended to provide for compensation, that provision is additional to anything contained in the statutes which were considered in the latter case. We are not asked expressly to determine the effect of this subsection; but, whatever its interpretation may be, it must certainly be upheld along with the preceding subsections which accompany it. Then, if, as is suggested, the section do not provide for indemnity to the provinces for their Crown lands, the use of which may be taken under its provisions, it could therefore be considered ultra vires only if the powers conferred upon
Parliament by ss. 91 and 92 (10) of the British North America Act with relation to railways are to be interpreted as subject to an implied condition or proviso to the effect that such lands are not to be taken or used thereunder without compensation; but there is not a word in the decision in the Harbour Commissioners Case to suggest that their
Lordships were disposed to interpret the Dominion railway powers, which are expressed in the most general terms, as subject to any implied restriction, and such an implication would be inconsistent with the conclusion in the Vancouver Case (2), of which their Lordships have not intimated any disapproval. It is true that in considering the general power conferred by s. 91 (10), as to navigation and shipping, in regard to legislation which, in the execution of that power, authorized the construction of an embankm ment and railway on the bank of the river, quays, a drydock and ship repairing plant, works the construction and use of which, could not, as their Lordships observe, be effected without an exclusive occupation of the soil equivalent to possession, it did not appear to their Lordships One must take it from this decision that, in the execution of the ancillary or incidental powers which are attendant upon the power of navigation and shipping, the Dominion may not authorize the taking of provincial property for the construction of railways without compensation; but different considerations arise when one is concerned with the powers derived from ss. 91 (29) and 92 (10).
Their Lordships particularly point out that the railway in question, which was a mere harbour adjunct or facility, was not governed by s. 92 (10), because it had not been declared by the Parliament to be a work for the general advantage of Canada. The powers which the Dominion may exercise with relation to works so declared, or with regard to railways, such as the Nipissing Central Railway, which connect one province with another or extend beyond the limits of a province, are not considered or expounded in the Harbour Commissioners Case. It is, of course, requisite to the effective working of the latter section that the Parliament of Canada, to which the exclusive power is committed in regard to that which is essentially the construction and working of a railway, and nothing else, shall have the power to bring about that construction. It was in that view I apprehend that the Judicial Committee considered in the Vancouver Case (1) that the power would be inadequate and incapable of execution in cases calling for its exercise, if it were held not to embrace authority for the taking of the land required for the use of the railway; and, whatever may be the view upon which their Lordships suggest a power in the Dominion to take lands for purposes incidental to a harbour which cannot be exercised without compensation for the taking, I do not find anything in the decision which conflicts with the judgment in the Vancouver Case (1).
That case I am sure did I R8 , not excepe consideration, and it is an authority which, I should think, would stand perfectly well along side of what is held in the Harbour Commissioners Case.
There remains the third question of the reference with regard to the obligation of the Governor in Council to give his consent. It is too well established to require argument or the citation of authority that there is nothing obligatory upon the Governor General in Council, giving rise co-relatively to a right on the part of the railway to require his consent upon any application which may be submitted. It was contended for the Nipissing Central Railway Company that it was nevertheless the duty of the Governor in Council to give his consent in what, for lack of more exact definition, was described as a proper case; but I think it became apparent in the course of the discussion that the question submitted was strictly a question of law, as distinguished from any question which sought to ascertain the limits within which, as a matter of just or fair and reasonable decision, the Governor in Council might be justified to withhold his consent, and that he had a discretion to refuse. The company is constituted and its powers are conferred by Parliament which, as a condition to the taking of Crown Lands, has required the consent of the Governor in Council, who thus, as the donee of Parliament, is entrusted with the power of consent, to be exercised as an incident of the good government of the country; there is a duty to consider and to exercise sound discretion, but it is a duty involving political rather than legal responsibility, and in respect to the execution of which the Governor in Council is not answerable to the judicial tribunals. It was said that the construction of the railway upon the statutory route makes necessary the occupation of provincial Crown Lands, and that therefore refusal of consent to the taking of any such lands would in effect defeat the intention of Parliament in authorizing the construction of the railway. No statement of the facts in this particular is submitted with the case; but the condition which requires consent imports
Statutes and regulations cited
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Supreme Court Act
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Unresolved citations
- SECTION 189
- s. 92 of the British North America Act, 1867
- s. 133 of the Railway Act
- s. 109 of the British North America Act, 1867
- s. 7 of the Railway Act, 1879
- s. 91 of the British North America Act, 1867