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PAPERS Relating to certain Acts passed by the Legislature Assembly of the Province of British Columbia… British Columbia. Legislative Assembly 1905

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 5 Ed. 7 Report on Certain Acts of 1903-04. F 15
PAPERS
Relating to certain Acts passed by the Legislative Assembly of the Province of British
Columbia during the Session 1903-4.
By Command.
FRED. J. FULTON,
Provincial Secretary's Office,
8th February, 1905.
Provincial Secretary.
Extract from a Report of the  Committee of the Honourable the Privy Council, approved by
the Governor-General on the 21st June, 1904-
The Committee of the Privy Council have had under consideration a Report, herewith,
dated 14th June, 1904, from the Minister of Justice, upon Chapter 54 of the Statutes of the
Province of British Columbia of 3 and 4 Edward VII., entitled " An Act to secure to certain
Pioneer Settlers within the Esquimalt and Nanaimo Railway Land Belt their surface and
under-surface rights."
The Committee have also had before them a petition presented by the Esquimalt and
Nanaimo Railway Company, praying for the disallowance of this Act on the ground that it is
an interference with the Company's rights in the lands contained in the Railway Belt, as assignee
of the Dominion Government.
The Minister of Justice for the reasons stated in his said Report, and being of opinion
that such legislation is not ultra vires of the Legislature, does not think that Your Excellency
would be warranted in disallowing- the Act merely because the Railway Company may be put
to some trouble and expense in the assertion or defence of its title.
The Committee concurring, submit the same for approval.
John J. McGee,
Clerk of the Privy Council.
His Honour the Lieutenant-Governar of the
Province of British  Columbia.
Depabtment op Justice, Canada,
Ottawa,  14th June, 1904.
To His Excellency the Governor-General in Council:
The undersigned has the honour to submit herewith his Report upon Chapter 54 of the
Statutes of the Province of British Columbia of 3 and 4 Edward VII., entitled "An Act to
secure to certain Pioneer Settlers within the Esquimalt and Nanaimo Railway Land Belt,
their surface and under-surface rights."
A petition has been presented to Your Excellency in Council by the Esquimalt and
Nanaimo Railway Company praying for the disallowance of this Act, on the ground that it is
an interference with the Company's rights in the lands contained in the Railway Belt, as
assignee of the Dominion Government. A copy of the petition is annexed to this Report.
This petition was communicated to the Lieutenant-Governor of British Columbia, with a
request that His Honour would furnish Your Excellency's Government with the observations
of his Ministers thereon; and there also is annexed to this Report a copy of a letter from the
Lieutenant-Governor to the Secretary of State, dated 27th May, 1904, and of the approved
report therein referred to, embodiyng the views of the British Columbia Government with
regard to the petition. F 16 Report on Certain Acts of 1903-04. 1905
It is unnecessary that the undersigned should enter minutely into the history of the
Railway Belt in question. It will be sufficient for present purposes to state that it was set
apart in pursuance of the Terms of Union with British Columbia, to be appropriated in
furtherance of the construction of the proposed railway to connect British Columbia with the
Eastern Provinces ; that by the Provincial Act, 47 Vic, Chapter 14, known as the Settlement
Act, it was granted to the Dominion Government for the purpose of constructing, and to aid
in the construction, of a railway between Esquimalt and Nanaimo, subject to certain exceptions,
and that the Esquimalt and Nanaimo Railway Company, the petitioners, are the assignees
and successors in title of the Dominion Government, as set forth in the petition.
Under these circumstances, if the British Columbia Act would have the effect, as the
Railway Company apparently fears, of divesting the Company of its title under the grant from
the Government of Canada in respect of any of the lands in the belt, the undersigned would
feel it to be his duty to recommend that Your Excellency should exercise his power of disallowance, in order to prevent the consummation of such an injustice. The undersigned,
however, is satisfied that the Act can have no such effect. Although it recites that under the
circumstances set forth in the preamble the settlers referred to therein are entitled to peaceable
and absolute possession of the lands occupied by them, and to a title thereto in fee simple, in
accordance with the Statutes of British Columbia existing at the time of their settlement, it
does not proceed to enact or to declare, by way of enactment, that the lands are or shall be
vested in them, but enacts only that upon the application of the settlers, and upon their
establishing certain facts, Crown grants of the fee simple shall be issued to them, free of charge,
in accordance with the provisions of the Land Act in force at the time when the land was first
occupied or improved, and that the rights granted to the settler under the Act shall be asserted
by and be defended at the expense of the Crown. Now a Crown grant issued pursuant to such
an Act can, in the opinion of the undersigned, convey to the grantee such title only as the
Province has in the lands which it purports to grant. In so far as it purports to grant lands,
or coal, or other minerals, which under the Settlement Act were granted to Canada, and under
grant from Canada have passed to the Company, it will be inoperative, but it is possible that
some of the land occupied, as set forth in the recitals to the Act, is covered by exceptions from
the grant to Canada and remains the property of the Province, and so far as that is the case
the Act may have effective operation.
Taking the view thus explained as to the effect of the Act, and being of opinion that such
legislation is not idtra vires of the Legislature, the undersigned does not think that Your
Excellency would be warranted in disallowing the Act merely because the Railway Company
may be put to some trouble and expense in the assertion or defence of its title.
Respectfully submitted.
(Signed)        C. Fitzpatbick,
Minister of Justice.
Depabtment of Justice, Ottawa,
29th October, 1904.
To His Excellency the Governor-General in Council:
The undersigned has the honour to submit his Report on the Statutes of the several
Provinces, passed at the last Sessions of the Legislatures thereof (1904), as follows :—
British Columbia, 3 and 4 Edward VII. ; received by the Secretary of State on the 4th
January, 1904.
These Acts may be left to such operation as they may have, except Chapter 15, intituled
" An Act respecting the Constitution, Practice and Procedure of the Supreme Court of British
Columbia, and for other purposes relating to the Administration of Justice."
Section 5 contains a provision that the persons to be appointed Judges of the Supreme
Court of British Columbia shall be Barristers-at-Law of not less than ten years' standing, of
which ten years they shall have been for five years actively engaged in practice at the Bar of
British Columbia.
This provision is, in the opinion of the undersigned, ultra vires, and ought not to be
allowed to stand ; a similar enactment by the Province of Nova Scotia was considered some
years ago by the Department of Justice, and the Minister recommended that it be disallowed 5 Ed. 7 Report on Certain Acts of 1903-04. F 17
unless repealed by the Legislature. See the Order in Council setting forth the reasons of the
Minister, approved by His Excellency the Governor-General on 19th November, 1896. (Provincial legislation, 1896-8, pages 12 to 14.)
For the, same reason the undersigned recommends that inquiry be made immediately of the
Lieutenant-Governor of British Columbia as to whether the clause in question will be repealed
within the time limited for disallowance. The Lieutenant-Governor's reply, when received,
should be referred to the undersigned for further consideration.
Chapter 17, intituled "An Act to consolidate and amend the law respecting the qualification and registration of Electors, the regulation of Elections of Members of the Provincial
Legislative Assembly, and the Trial of Controverted Elections,"
Chapter 26, intituled "An Act to regulate Immigration into British Columbia," and
Chapter 39, intituled " An Act to amend the Coal Mines Regulation Act,"   ,
are reserved for further report.
Chapter 54, intituled " An Act to secure to certain Pioneer Settlers within the Esquimalt
and Nanaimo Railway Land Belt their surface and under-surface rights," has been already
considered and left to its operation by Order-in-Council of 21st June last.
Chapter 62, intituled "An Act to amend the "Vancouver Incorporation Act, 1900."
There has been referred to the undersigned copy of the petition of the City of Vancouver
praying that this Act be disallowed on the grounds therein stated. The petitioners are
opposed to having a Board of Police Commissioners for the City and they allege that the Bill
was unduly hastened through the Legislature; also that the facts of the case were misrepresented, and that there was breach of faith.
These reasons, however, do not affect the validity or character of the legislation so far as
the capacity of the Legislature goes, and the undersigned considers that the grievance of the
City, if any exists, should be adjudged by the Legislature, which has authority to remedy it,
and that it would not be within the province of your Excellency's Government to take any
action based upon any view which it may hold as to the facts and reasons urged for disallowance.
The undersigned does not, therefore, recommend any interference with this Act, but he
recommends that the City of Vancouver be informed of the grounds of this report and the
conclusion of your Excellency's Government upon the petition.
Extract from a Report of the Committee of the Honourable the Privy Council, approved by
the Governor-General on the 29th December, 1901/..
The Committee of the Privy Council have had under consideration a Report, dated 16th
November, 1904, from the Minister of Justice with respect to Chapters 17 and 39 of the Acts
of British Columbia, passed at the last Session of the Legislature in 1904.
The Committee concurring in said Report submit the same for approval.
John J. McGee,
Clerk of the Privy Council.
His Honour the Lieutenant-Governor of British Columbia.
Department of Justice, Canada,
Ottawa, 16th November, 1904.
To His Excellency the Governor-General in Council:
The undersigned has the honour to Report that Chapter 17 of the Acts of British
Columbia, passed at the last Session of the Legislature (1904), intituled " An Act to Consolidate
and Amend the Law respecting the Qualification and Registration of Electors, the Regulation
of the Election of Members of the Provincial Legislative Assembly, and the Trial of Controverted Elections," provides, among other things, that every male of the full age of twenty-one,
not being disqualified by this Act, or by any other law in force in the Province, being entitled
within the Province to the privileges of a natural-born British subject, and being able to read F 18 Report on Certain Acts of 1903-04 1905
the Act, or any portion thereof, to the satisfaction of the Registrar if required so to do, having
resided in the Province for six months, and in the Electoral District in which he claims to vote
for one month, and being duly registered, shall be entitled to vote.
The general intention is apparently to extend the right to vote to male British subjects
of the age of twenty-one years resident in the Province. It is provided, however, that no
Chinaman, Japanese or Indian shall have his name placed on the Register of Voters for any
Electoral District, or be entitled to vote at any election; and by the interpretation clause the
words "Chinaman" and "Japanese" are defined to include any person of these races respectively, whether naturalized or not.
The Naturalization Act, R. S. C, chapter 113, section 15, provides that an alien to whom
a certificate of naturalization is granted, shall within Canada be entitled to all political and
other rights, powers and privileges, and be subject to all obligations to which a natural-born
British subject is entitled or subject within Canada.
The undersigned does not doubt that a Legislature may define the local franchise, but he
considers that Your Excellency's Government ought not to approve of the policy of a Legislature withholding from naturalized British subjects, merely because of their race or naturalization, rights or privileges conferred generally upon natural-born British subjects of the same class.
Parliament having exclusive authority with regard to naturalization and aliens, has, the undersigned apprehends, the right to declare what the effect of naturalization shall be; and local
legislation which is intended to interfere, or has the effect of interfering, with the apparent
policy of Parliament in the exercise of its powers with regard to any subject may, in the
opinion of the undersigned, even if it can be held to be intra vires of the Legislature, properly
be disallowed by Your Excellency. It appears to the undersigned to be quite undesirable in
the public interest that naturalized British subjects should be made subject to a disability or
exceptional treatment, having regard to the rights conferred upon British subjects generally;
and he understands that the view is expressed or implied in the section of the Naturalization
Act above referred to. The undersigned would, for that reason, recommend disallowance were
it not for the fact that the provisions in question are merely re-enactments of similar provisions
which have been standing in the British Columbia Election Acts for a number of years. The
disallowance of the present Statute would not, therefore, affect the law of British Columbia in
this particular.
The undersigned hopes, however, that this matter will be further considered by the
Provincial Legislature, and such amendments made as may be necessary to remove the
objections herein stated.
Chapter 39.—"An Act to amend the 'Coal Mines Regulation Act,'" contains only one
provision. It is in amendment of section 2 of the " Coal Mines Regulation Act," R. S. B. C.
(1897), Chapter 138, whereby it is enacted that "the words 'Chinamen and Chinese' shall
include any person or persons of the Chinese blood or race, whether born with the limits of the
Chinese Empire or its Dependencies or not, and shall not be affected by naturalization."
This is an interpretation clause, and of course has no effect except as defining the terms
mentioned therein where they appear elsewhere in the Act.
Referring to the amended Act, it is provided by section 4 that " no boy under the age of
twelve years, and no woman or girl of any age, and no Chinaman, shall be employed in or
allowed to be for the purpose of employment in any mine to which this Act applies below
ground."
By section 12 it is provided that any person who contravenes or fails to comply with any
provision of the Act with respect to the employment of Chinamen shall be guilty of an offence
against this Act, and by section 82, rule 34, no Chinaman shall occupy any position of trust
or responsibility in or about a mine whereby through his ignorance, carelessness or negligence he
might endanger the life or limb of any person therein employed. These, so far as the undersigned has discovered, are the only provisions of the amended Act expressly relating to Chinamen. Section 4, above quoted, was held ultra vires by the Judicial Committee of the Privy
Council in the case of the Union Colliery of British Columbia vs. Bryden, 1899, Appeal Cases,
p. 580, as legislation affecting naturalization and aliens. Upon the same principle the undersigned assumes that the other provisions of the amended Act to which he has called attention,
are ultra vires, and the question arises as to what can be the intention of the Legislature in
extending the meaning of the word " Chinaman " in this Act where it has been held by the
highest judicial authority incompetent to the Legislature to enact the provisions in which the
word occurs. 5 Ed. 7
Report on Certain Acts of 1903-04.
F 19
The amending Act is also objectionable, as apparently attempting to deprive naturalized
Chinamen, on account of their naturalization, of rights which they now have.
For these reasons it appears to the undersigned that this Act should be disallowed.
Before recommending such action to be taken, however, he considers that a copy of this Report,
if approved, should be transmitted to the Lieutenant-Governor of British Columbia for any
explanation or remarks which he may desire to offer, and that he be particularly requested to
inform Your Excellency's Government, as soon as possible, as to what object within the legislative capacity of the Assembly is intended to be accomplished by this Act. Upon receiving
a reply from the Lieutenant-Governor it should be referred to the undersigned for further
consideration.
Humbly submitted.
(Signed)        C. Fitzpateick,
Minister of Justice.
Extract from a Report of the Committee of the Honourable the Privy Council, approved by
His Excellency the Governor-General, 20th January, 1905.
The Committee of the Privy Council have had under consideration a Report, dated 16th
November, 1904, from the Minister of Justice with reference to Chapter 26 of the Acts of
British Columbia, passed at the last Session of the Legislature in 1904.
The Committee concurring in the said Report submit the same for approval.
His Honour the Lieutenant-Governor,
Province of British Columbia.
John J. McGee,
Clerk of the Privy Council.
Depabtment of Justice, Canada,
Ottawa, 16 th November, 1904.
To His Excellency the Governor-General in Council :
The undersigned has had under consideration Chapter 26 of the Acts of British Columbia,
passed at the last Session of the Legislature (1904), intituled " An Act to Regulate Immigration
into British Columbia."
This Act bears the same title and is essentially of the same effect as other Acts of the
Province which have during recent years been disallowed by Your Excellency. It prohibits
the immigration into British Columbia (subject to certain exceptions) of any person who when
asked to do so by an officer fails to write out at dictation in the characters of some language
of Europe, and sign, in the presence of the officer, a passage of fifty words in length in an
European language directed by the officer. Among other immigrants excepted from this
prohibition are those excepted by certificate in writing of the Minister charged with the
administration of the Act, or of any officer appointed to enforce its provisions. Power is conferred to prevent prohibited immigrants from entering the Province, and to deport those who
have entered; and masters of vessels arriving at ports in the Province with passengers are
required to submit their passenger lists and answer questions and assist the Provincial Officers
in the performance of their duties under the Act. Regulations may be made by the Lieutenant-
Governor in Council to empower officers to determine whether any person is a prohibited
immigrant, and to prescribe a tariff of fees to be paid by persons to cover any expenses which
may be incurred in determining whether such persons are or are not prohibited immigrants.
This Act, therefore, contains all the provisions which have been condemned in the British
Columbia Immigration Acts recently disallowed. The grounds of objection to these Acts have
been stated and reiterated on behalf of Your Excellency's Government. See particularly the
reports of the Minister of Justice of 5th January and 4th September, 1901, upon which the Act
to Regulate Immigration into British Columbia of 1900, was disallowed. F 20 Report on Certain Acts of 1903-04. 1905
The undersigned does not consider, in view of the past correspondence and action of Your
Excellency's Government having regard to such legislation, that any object is to be attained
by further communication with the local authorities, and he recommends following the decision
which was previously reached and the course adopted on previous occasions, that this Act be
disallowed.
He recommends, further, that a copy of this report, if approved, be transmitted to the
Lieutenant-Governor of British Columbia for the information of his Government.
Humbly submitted.
(Signed)        C. Fitzpatrick,
Minister of Justice.
AT THE GOVERNMENT HOUSE AT OTTAWA,
The 20th day of January, 1905.
Pbesent :
HIS EXCELLENCY THE GOVERNOR-GENERAL IN COUNCIL.
Whereas the Lieutenant-Governor of the Province of British Columbia, with the Legis
lative Assembly of that Province, did, on the 10th day of February, 1904, pass an Act which
has been transmitted, chaptered 26, and intituled " An Act to Regulate Immigration into
British Columbia " :
And whereas the said Act has been laid before the Governor-General in Council, together
with a report from the Minister of Justice, recommending that the same should be disallowed :
Therefore the Governor-General in Council has thereupon this day been pleased to declare
His Disallowance of the said Act, and the same is hereby disallowed accordingly.
Whereof the Lieutenant-Governor of the Province of British Columbia, and all other
persons whom it may concern, are to take notice and govern themselves accordingly.
John J. McGee,
Clerk of the Privy Council.
I, Sir Albert Henry George, Earl Grey, Governor-General of Canada, do hereby certify
that the Act passed by the Legislature of the Province of British Columbia, on the 10th day
of February, 1904, chaptered 26, and intituled " An Act to Regulate Immigration into British
Columbia," was received by the Governor-General of Canada on the 24th day of March, 1904.
Given under my Hand and Seal, at Ottawa, this 20th day of January, 1905.
[L. S.] Grey.
VICTORIA, B. C. :
Printed by Richard Wolpenben, I.S.O., V.D., Printer to the King's Most Excellent Majesty.
1905.

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