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PAPERS Relating to the Report of the Minister of Justice on certain Acts of British Columbia passed during… British Columbia. Legislative Assembly 1905

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 5 Ed. 7       Papers Relating to Report on Certain Acts of 1903-04. F 21
PAPERS
Relating to the Report of the Minister of Justice on certain Acts of British Columbia
passed during the Session of 1903-4.
By Command.
FRED. J. FULTON,
Provincial Secretary.
Provincial Secretary's Office,
14-th February, 1905.
Petition of Esquimalt Railway Company Re Vancouver Island
Settlers' Rights Act, 1904.
To His Excellency the Governor-General in Council, Ottawa :
The humble petition of the Esquimalt and Nanaimo Railway Company showeth unto
your Excellency as follows :—
1. On the 19th day of December, 1883, the Legislative Assembly of British Columbia
passed a Statute, No. 14 of Provincial Statutes of 1884, intituled "An Act relating to the
Island Railway, the Graving Dock, and Railway Lands in the Province."
2. By section 3 of the said Act, there was granted to the Dominion Government certain
lands for the purpose of constructing, and to aid in the construction of a railway between
Esquimalt and Nanaimo.
3. By section 8 it was enacted that such persons, hereinafter called the " Company," as
may be named by the Governor-General in Council, etc., shall be and are hereby constituted a
body corporate and politic by the name of " The Esquimalt and Nanaimo Railway Company."
4. By Order in Council dated the 12th April, 1884, His Excellency the Governor was
pleased to name Robert Dunsmuir, John Bryden, James Dunsmuir, Charles Crocker, Charles
F. Crocker, Leland Stanford and Collis P. Huntington, etc., as a body corporate and politic
by the name of "The Esquimalt and Nanaimo Railway Company," for the purposes of the
construction of the railway between Esquimalt and Nanaimo in accordance with the provisions
of aforesaid section 8 (See Canada Gazette 19th April, 1884).
5. On the 20th day of April, 1883, an agreement was entered into between Robert
Dunsmuir, James Dunsmuir, John Bryden, Charles Crocker, Charles F. Crocker, Leland
Stanford, and Collis P. Huntington, of the first part, and Her Majesty Queen Victoria, represented by the Minister of Railways and Canals, of the second part (section 4), for the purpose
of building a line of railway between Esquimalt and Nanaimo, and (15) the land grant to be
made and the land, in so far as the same shall be vested in Her Majesty and held by Her
Majesty for the purposes of the said railway, or the purposes of constructing or to aid in the
construction of the same, shall be conveyed to the contractors upon the completion of the
whole work to the entire satisfaction of the Governor in Council, etc., as set forth in said
section, and sections 23, 24, 25 and 26 of the Act of 19th December, 1883, are particulrrly
referred to.
6. The said agreement was approved and ratified by Act of Parliament of the Dominion
of Canada, Cap. 6 of 1884.
7. And by section 7 of the said Act the land was to be granted to the said Company,
subject to the exception therein set forth, inter alia sub-section 2, every bona fide squatter who
has continuously occupied and improved any of the lands within the tract of land to be acquired
by the Company from the Dominion Government, for a period of one year prior to the first
day of January, 1883, shall be entitled to a grant of the. freehold of the surface rights of the
said squatted land to the extent of 160 acres at the rate of one dollar per acre. F 22    Papers Relating to Report on Certain Acts of 1903-04.    1905
8. The Esquimalt and Nanaimo Railway Company completed the whole work to the
entire satisfaction of the Governor in Council, as is witnessed by the deed under the Great
Seal of Canada dated the 21st day of April, 1887, which granted, assigned and conveyed unto
the Esquimalt and Nanaimo Railway Company the lands mentioned in the said Act of the
Provincial Legislature, Chap. 14, 1884, and of the Dominion Parliament Chap. 6, 1884, subject to the terms and provisions affecting the same set forth in the said Acts.
9. Since the conveyance of the lands aforesaid to the said Company, the said Company
have administered the said lands according to the terms and conditions set forth in the said
Act, Chap. 14, 1884.
10. The squatters mentioned in section 23 of the Act of 1884, c. 14, and Dominion
Statutes, sub-section 2 of section 7 of c. 1884, became dissatisfied and claimed more extensive
rights than these accorded to them by the Statutes aforesaid, and the Dominion Government
on the 10th August, 1897, issued a commission to Mr. T. G. Rothwell to investigate the claims
set up by the settlers upon the tract of land which was conveyed to the Government of the
Dominion of Canada by the Province of British Columbia, and by the Dominion of Canada to
the Esquimalt and Nanaimo Railway as hereinbefore set out.
Mr. Rothwell in his report (which is published in the annual report of the Department
of the Interior, 1898), at folio 459, states, " The settlers mentioned are those who are referred to
as bona fide squatters in section 23 of the Provincial Act, c. 14, 1884, and in sub-section 2 of
section 7 of the Dominion Act, c. 6 of 1884," and states at folio 460, " When I have completed
this task I feel satisfied that I will have established the conclusion I have arrived at, that
although these settlers, speaking generally, have now no legal right to the coal and other
minerals under their lands, they, or those claiming from them, have a just claim for redress at
the hands of the Province in which they live, and a claim which that Province cannot honourably refuse to recognise and settle." And at folio 469, " I repeat, therefore, that I consider
it the duty of the Government of British Columbia to take such action as will promptly and
satisfactorily remove the injustice."
11. On the 12th day of October, 1900, the Provincial Government issued a Commission
to Mr. Eli Harrison, a Judge of the County Court of British Columbia, who, after a very
exhaustive enquiry, reported to the Provincial Government that the " squatters" could not
now acquire the coal or minerals, if any, under the lands squatted on, as such coal and
minerals had been conveyed to others. Mr. Harrison's report is published at folio 337 of the
Sessional Papers, B. C, 1901.
12. In the year 1903 the Local Legislature passed an Act, No. 26, intituled "Vancouver
Island Settlers' Rights Act, 1903."
13. In the year 1904 the Local Legislature passed an Act, chap. 42, intituled " Vancouver
Island Settlers' Rights Act, 1904."    This Act, by section 5, repeals chap. 26 aforesaid.
14. By sub-section (a) of section 2, "Railway Land Belt" shall mean the lands described
by section 3, of chapter 14 of 47 Victoria, being "An Act relating to the Island Railway, the
Graving Dock, and Railway Lands of the Province."
15. By sub-section (b) of section 2, a "settler" is described as a person who, prior to the
passing of the said Act, occupied or improved lands situate within the said railway land belt
with the bona, fide intention of living thereon.
16. Section 3 of the said Act is as follows:—"Upon application being made to the
Lieutenant-Governor in Council, within twelve months from the coming into "force of this
Act, showing that any settler occupied or improved land within said railway land belt prior to
the enactment of chapter 14 of 47 Victoria, with the bona fide intention of living on the said
land, accompanied by reasonable proof of such occupation or improvement and intention, a
Crown grant of the fee simple in such land shall be issued to him or his legal representative
free of charge and in accordance with the provisions of the Land Act in force at the time when
said land was first so occupied or improved by said settler."
17. Section 4 provides that "The rights granted to the settler under this Act shall be
asserted by and be defended at the Crown expense."
18. The definition of "settler," as set forth in chap. 42 of 1904, does away with the
definition of the term " squatter," as set out in chap. 14 of 1884, aforesaid, though he is one
and the same person.
19. Section 3 of the said Act gives to the squatter of section 23 of chap. 14, under the
title of settler, all the coal and mineral under the lands squatted on. 5 Ed. 7   Papers Relating to Report on Certain Acts of 1903-04.   F 23
20. The Esquimalt and Nanaimo Railway Company made their contract as aforesaid with
the Dominion Government, and upon the due completion thereof received a grant of the said
lands from the Dominion Government, upon the same terms and conditions they were granted
to the Dominion Government by the Provincial Government of British Columbia by chap. 14
of 1884.
21. The Esquimalt and Nanaimo Railway Company do not recognise the right of the
Provincial Legislature to interfere with the land grant, as the Company did not receive the
land from the Provincial Government, nor did they enter into any contract with the Provincial
Government.
22. The granting of the minerals under the lands of the squatters, as mentioned in section
23 of c. 14 of 1884, will be a great injury to the property of the Esquimalt and Nanaimo
Railway Company and an interference with the contract made between the Esquimalt and
Nanaimo Railway Company and Dominion Government.
Dated the day of March, A. D. 1904.
The Esquimalt and Nanaimo Railway Company therefore humbly pray Your Excellency
in Council to disallow the said Act, No. 42 of 1904, known as the "Vancouver Island Settlers' Rights Act, 1904," passed by the Provincial Legislature of the Province of British
Columbia.
[Seal.] (Signed)        James Dunsmuir,
President of the Esquimalt and Nanaimo Railway.
Monday, 21st March, 1904..
(Signed)        Chas. E. Pooley,
Secretary Esquimalt and Nanaimo Railway Company.
Copy of a Report of a Committee of the'Executive Council, approved by His Honour the
Lieutenant-Governor on the 26th May, 1904.
To His Honour the Lieutenant-Governor in Council:
The Committee of the Executive Council have had under consideration the Petition of the
Esquimalt and Nanaimo Railway Company, and beg respectfully to report as follows :—
The whole of the land claimed by the settlers as against the Esquimalt and Nanaimo
Railway Company was acquired before the 19th December, 1883, being the date of the passage
of what is commonly called the Settlement Act. By the Land Act of 1875, 38 Victoria,
chapter 5, sec. 3,  " any person being the head of a family * * * and a British
subject," after complying with the provisions of the section, might " record any tract of
unoccupied, unsurveyed and unreserved lands of the Crown, not being an Indian settlement."
The section then prescribes the acreage and other matters. By section 9 of that Act, it is
provided that, upon compliance by the applicant of the provisions hereinbefore contained, the
Commissioner " shall" record the land so sought to be recorded, etc.
It would appear, then, that the settler, upon complying with the provisions of sections 3
to 9, obtained an absolute right to have the land recorded in his favour. It was not an act of
grace on the part of the Crown, but was put even more forcibly than the right of the miner to
record his claim without any enquiry into the conditions precedent to his making his record,
which right has never been questioned in the history of the Province.
This was the condition of affairs at the date of the Settlement Act. The Settlement Act
did not interfere with the rights of the settler in any way, but, on the contrary, carefully
preserved them, and all other rights howsoever acquired. The Legislature went even further
than the preservation of the rights actually acquired, because it preserved, so far as the
surface rights were concerned, the rights of anyone who had " squatted," that is, located
without any colour of right, upon the land, the right to obtain a grant of the surface.
A number of persons, antecedent to the 19th of December, 1883, did all those things
necessary to entitle them to a record of the land under the "Land Act, 1875," but were
refused the right to perfect their title by the officer declining to make the record in favour of
the applicant, and declining also to give him the certificate required by sec. 9 of the said Act.
Three of those persons have attempted unsuccessfully to assert their rights as against the
Railway Company. F 24 Papers Relating to Report on Certain Acts of 1903-04. 1905
The Legislature by the Settlement Act did not convey to the Dominion, under which
Government the Esquimalt and Nanaimo Railway Company claim, any lands in the Railway
Belt as to which any other person had a lawful claim; and perhaps the only way in which the
rights of the settlers could be asserted is not by an action brought by themselves against the
Esquimalt and Nanaimo Railway Company, but by an action brought either by the Attorney-
General, on behalf of the Provice, or by giving the settlers a Provincial title and allowing them
to contest the matter themselves. This latter course was the one which commended itself to
Your Honour's advisers, hence the passage of the " Vancouver Island Settlers' Rights Act,
1904," chapter 54.
In making this Report, the Committee do not overlook one of the difficulties which may
arise in the course of the litigation, viz.: That the settler was bound to make his record upon
" unoccupied, unsurveyed and unreserved land of the Crown"; and in the British Columbia
Gazette of the 5th July, 1873, a reserve was placed upon a strip of land 20 miles in width
along the east coast of Vancouver Island between Seymour Narrows and the harbour of
Esquimalt. That reserve, by its recitals, is apparently founded upon incorrect premises. It
is founded upon the suggeston that Esquimalt in Vancouver Island was, by an Order of the
Privy Council of Canada, fixed as the terminus of the Canadian Pacific Railway, and that a
line of railway was to be located between the Harbour of Esquimalt and Seymour Narrows.
It was founded, further, upon the 11th paragraph of the Terms of Union, and the Terms of
Union distinctly preserved to settlers the right of pre-emption, and provided, as did the
Settlement Act, that lands be given in lieu of those which might have been pre-empted before
the transfer took place.
The Committee is, therefore, of opinion that those persons who had made application to
pre-empt lands antecedent to the 19th December, 1883, and who in good faith had occupied
and improved lands with a bona fide intention of living thereon, were entitled to receive grants
from the Crown, and for that reason recommended the Bill to the Legislature.
Mr. Rothwell, in his report, cited in the petition of the Esquimalt and Nanaimo Railway
Company to His Excellency, arrived at the conclusion that these settlers had not been fairly
treated, the same conclusion having been arrived at by Your Honour's advisers, the only
difference between Your Honour's Ministers and Mr. Rothwell being the mode of redress.
In conclusion, the Committee submit that the Act in question is fairly within the powers
of the Legislature, as dealing with property and civil rights, and in this connection they refer
with some degree of confidence to the opinion of Sir Oliver Mowat, stated in Lefroy's Legislative Power of Canada, at page 201, where he says :—
" I repudiate the notion of the petitioners that it is the office of the Dominion Government to sit in judgment on the right and justice of an Act of the Ontario Legislature relating
to property and civil rights. That is a question for the exclusive judgment of the Provincial
Legislature."
The Committee further beg to refer to the report of the Honourable David Mills, then
Minister of Justice, and afterwards a Judge of the Supreme Court of Canada, having reference to British Columbia legislation of the year 1901 (chapter 45, " An Act respecting certain
Land Grants,") wherein, after reciting that the gravamen of the objection was that royalties
were imposed upon the timber standing upon the lands granted to the Kaslo and Slocan Railway Company and the Nelson and Fort Sheppard Railway Company, by way of subsidy in
aid of the railways, and that thereby the value of the timber of the railway companies was
impaired, namely, that there was an interference with vested rights,
The Minister remarks as follows :—
" The undersigned does not deem it necessary to consider in detail the remarks of the
Attorney-General. He does not acquiesce in all of them, but the undersigned bases his
refusal to recommend disallowance upon the fact that the application proceeds upon grounds
affecting the substance of the Act, with regard to matters undoubtedly within the legislative
authority of the Province and not affecting any matter of Dominion policy. It is alleged
that the Statute affects pending litigation and rights existing under previous legislation and
grants from the Province. The undersigned considers that such legislation is objectionable in
principle and not justified unless in very exceptional circumstances, but Your Excellency's
Government is not in anywise responsible for the principle of the legislation, and as has
already been stated in this Report with regard to an Ontario Statute, the proper remedy in
such cases lies with the Legislature or its constitutional Judges." 5 Ed. 7       Papers Relating to Report on Certain Acts of 1903-04. F 25
It may be said that, after all, this Act is only an Act to provide a means for conferring
a title in certain proper cases where justice requires title to be conferred, and not from or out
of any property of the railway company, but out of lands reserved out of the grant made by
the Settlement Act, and in any event lands still vested in the Crown in the right of the
Province.
The Committee, therefore, respectfully submit that no good ground exists for the exercise
by His Excellency of the power of disallowance in respect of the Act in question.
The Committee advise that a copy of this Report, if approved, be forwarded to the
Honourable the Secretary of State of Canada.
Dated this 21st day of May, A.D. 1904.
Richard McBride,
Presiding Member of the Executive Council.
Approved 26th May, A.D. 1904.
Henri G. Joly de Lotbiniere,
Lieutenant-Governor.
Copy of a Report of a Committee of the Honourable the Executive Council, approved by His
Honour the Lieutenant-Governor on the 26th day of January, 1905.
To His Honour the Lieutenant-Governor in Council:
The undersigned has the honour to refer to Your Honour's letter of the 17th of January,
1905, to the Provincial Secretary, enclosing Report of the Minister of Justice to His Excellency
the Governor-General for the years 1903-04, being the "Provincial Elections Act," and the
" Coal Mines Regulation Act Amendment Act."
With regard to chapter 17, the provisions objected to are those contained in section 6,
which provides that no Chinaman, Japanese or Indian shall have his name placed upon the
Register of Voters. That section interpreted, as the Minister points out, includes not only
alien Chinese, but also persons of the Chinese race who, acting in conformity with the Dominion
Naturalisation Act, become British subjects. The position that Your Honour's Ministers and
the Legislature have assumed upon this subject is one of grave objection to anyone of the
class of persons mentioned in the section, being placed upon the voters' list.
The undersigned observes that the Minister expresses the hope " 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."
With respect to this, in view of the opinion that the undersigned has already expressed
and with the knowledge that Your Honour's Ministers have of the feeling throughout the
Province, and also the views of the majority of the Members of the Legislature, perhaps the
whole of them, Your Honour's Ministers cannot recommend, nor take the responsibility of
adopting, the suggestion of the Minister of Justice that the matter should be further considered by the Legislature. The only way in which Your Honour's Ministers would feel justified
in testing the views of the Legislature would be by bringing down the Report of the Minister
of Justice and asking for an expression of opinion, but the undersigned is quite certain as to
what the result would be, and hence it seems hardly proper to subject the views of the Minister
of Justice to such a severe test. The general concensus of opinion throughout the Province is
very strongly in support of the view that these persons should not be permitted to be on the
voters' list. As the Minister of Justice points out, disallowance would not change the law
upon the subject, and that the Province has the undoubted right to prohibit any person or set
of persons from being placed upon the voters' list has been determined by the Privy Council
in the case of Cunningham v. Tomey Homma, reported in Appeal Cases, 1903, page 151.
Chapter 39 is an Act to amend the " Coal Mines Regulation Act," and is intended for the
purpose of interpreting the words " Chinamen " and " Chinese " when used in connection with
the Act. . The words " Chinaman " and " Chinese " in the Province of British Columbia have
been used very largely to express the idea of race rather than nationality, and it was for the
purpose of obviating any doubt upon this subject that this short Act was passed.
The question of whether section 82, rule 34, is within the powers of the Provincial Legislature is one of the matters which are now pending before the Judicial Committee of the Privy
Council, therefore the undersigned hopes that the Act will not be disallowed but that all F 26 Papers Relating to Report on Certain Acts of 1903-04. 1905
questions as to its constitutionality may be left to be determined by the judicial tribunal at
present seised of the whole question.
The Minister of Justice will in due course be served with a copy of the proceedings, and
will have an opportunity, if desired, of appearing before the Privy Council, or of instructing
counsel in the matter.
Dated the 19th day of January, A. D. 1905.
(Signed)        Charles Wilson,
Attorney-General.
Approved this 19th day of January, A. D. 1905.
(Signed)        Richaed McBeide,
For Presiding Member, Executive Council.
Copy of a Report of a Committee of the  Honourable   the   Executive   Council, approved  by
His Honour the Lieutenant-Governor on the 26th day of January, 1905.
To His Honour the Lieutenant-Governor in Council :
The undersigned has the honour to refer to the letter of His Honour the Lieutenant-
Governor to the Provincial Secretary, dated 1st December, 1904, enclosing a copy of the
Report of the Minister of Justice upon Chapter 15 of the Statutes of British Columbia for
1903-1904, being the Supreme Court Act.
The absence of the undersigned attending the Judicial Committee of the Privy Council,
is the cause of the delay in the matter receiving the attention which it deserves.
The Act in question is an Act respecting the constitution, practice and procedure of the
Supreme Court of British Columbia, and is a consolidation and revision of all the Statutes on
the subject up to the time when it was passed. It was not treated as a controversial measure
in the House, and with one or two exceptions was practically assented to by all the Members
of the Legislature who took any interest in the subject.
The provision objected to is one contained in section 5, to the effect that persons appointed
to the position of Judges of the Supreme Court shall be Barristers of not less than ten years'
standing, five of which shall have been spent in actual practice at the Bar of this Province.
It is submitted, with the utmost confidence, that the provision is a reasonable one. It
was part of the Statute law of British Columbia from 1878 to 1899, when it was repealed for
party purposes. It appears in the Revised Statutes of Ontario, 1897, chapter 51, sec. 3,
sub-s. (6), except that ten years' actual practice at the Bar of Ontario is required, instead of
five as in the section under discussion.
The undersigned regrets that he cannot assent to the proposition of the Minister of Justice
that the section is ultra vires of the Province. Even if it were, it is submitted that that is no
reason for the disallowance of the measure, but that it should be left to its operation and the
determination of the Courts. If, however, the Minister of Justice proposes to recommend the
disallowance of the Act, as being contrary to the policy of the Dominion Government, then
that is a reason of a paramount character, and the undersigned has nothing further to say on
the subject.
In any event the Act is one of so great importance to this Province, and its disallowance
now and re-enactment next Session would possibly create so much trouble and perhaps litigation,
with consequent expense, there seems to be no course left to Your Honour's Ministers, in view
of the threat of disallowance, but to assent to the terms on which the Act will be allowed,
namely, a promise to repeal the section at the next Session of the Legislature.
Dated the 19th day of January, A. D., 1905.
(Signed)        Charles Wilson,
A ttorney-General.
Approved the 19th day of January, A. D. 1905.
(Signed)        F. Carter-Cotton,
Presiding Member of the Executive Council.
victoria, b. c.
Printed by Richard Wolfendek, I.S.O., V.D., Printer to the King's Most Excellent Majesty.
1905.

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