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Legislative Assembly","@language":"en"}],"DateAvailable":[{"@value":"2014-12-10","@language":"en"}],"DateIssued":[{"@value":"[1905]","@language":"en"}],"DigitalResourceOriginalRecord":[{"@value":"https:\/\/open.library.ubc.ca\/collections\/bcsessional\/items\/1.0064263\/source.json","@language":"en"}],"FileFormat":[{"@value":"application\/pdf","@language":"en"}],"FullText":[{"@value":" 5 Ed. 7       Papers Relating to Report on Certain Acts of 1903-04. F 21\nPAPERS\nRelating to the Report of the Minister of Justice on certain Acts of British Columbia\npassed during the Session of 1903-4.\nBy Command.\nFRED. J. FULTON,\nProvincial Secretary.\nProvincial Secretary's Office,\n14-th February, 1905.\nPetition of Esquimalt Railway Company Re Vancouver Island\nSettlers' Rights Act, 1904.\nTo His Excellency the Governor-General in Council, Ottawa :\nThe humble petition of the Esquimalt and Nanaimo Railway Company showeth unto\nyour Excellency as follows :\u2014\n1. On the 19th day of December, 1883, the Legislative Assembly of British Columbia\npassed a Statute, No. 14 of Provincial Statutes of 1884, intituled \"An Act relating to the\nIsland Railway, the Graving Dock, and Railway Lands in the Province.\"\n2. By section 3 of the said Act, there was granted to the Dominion Government certain\nlands for the purpose of constructing, and to aid in the construction of a railway between\nEsquimalt and Nanaimo.\n3. By section 8 it was enacted that such persons, hereinafter called the \" Company,\" as\nmay be named by the Governor-General in Council, etc., shall be and are hereby constituted a\nbody corporate and politic by the name of \" The Esquimalt and Nanaimo Railway Company.\"\n4. By Order in Council dated the 12th April, 1884, His Excellency the Governor was\npleased to name Robert Dunsmuir, John Bryden, James Dunsmuir, Charles Crocker, Charles\nF. Crocker, Leland Stanford and Collis P. Huntington, etc., as a body corporate and politic\nby the name of \"The Esquimalt and Nanaimo Railway Company,\" for the purposes of the\nconstruction of the railway between Esquimalt and Nanaimo in accordance with the provisions\nof aforesaid section 8 (See Canada Gazette 19th April, 1884).\n5. On the 20th day of April, 1883, an agreement was entered into between Robert\nDunsmuir, James Dunsmuir, John Bryden, Charles Crocker, Charles F. Crocker, Leland\nStanford, 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\nof building a line of railway between Esquimalt and Nanaimo, and (15) the land grant to be\nmade and the land, in so far as the same shall be vested in Her Majesty and held by Her\nMajesty for the purposes of the said railway, or the purposes of constructing or to aid in the\nconstruction of the same, shall be conveyed to the contractors upon the completion of the\nwhole work to the entire satisfaction of the Governor in Council, etc., as set forth in said\nsection, and sections 23, 24, 25 and 26 of the Act of 19th December, 1883, are particulrrly\nreferred to.\n6. The said agreement was approved and ratified by Act of Parliament of the Dominion\nof Canada, Cap. 6 of 1884.\n7. And by section 7 of the said Act the land was to be granted to the said Company,\nsubject to the exception therein set forth, inter alia sub-section 2, every bona fide squatter who\nhas continuously occupied and improved any of the lands within the tract of land to be acquired\nby the Company from the Dominion Government, for a period of one year prior to the first\nday of January, 1883, shall be entitled to a grant of the. freehold of the surface rights of the\nsaid 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\n8. The Esquimalt and Nanaimo Railway Company completed the whole work to the\nentire satisfaction of the Governor in Council, as is witnessed by the deed under the Great\nSeal of Canada dated the 21st day of April, 1887, which granted, assigned and conveyed unto\nthe Esquimalt and Nanaimo Railway Company the lands mentioned in the said Act of the\nProvincial 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.\n9. Since the conveyance of the lands aforesaid to the said Company, the said Company\nhave administered the said lands according to the terms and conditions set forth in the said\nAct, Chap. 14, 1884.\n10. The squatters mentioned in section 23 of the Act of 1884, c. 14, and Dominion\nStatutes, sub-section 2 of section 7 of c. 1884, became dissatisfied and claimed more extensive\nrights than these accorded to them by the Statutes aforesaid, and the Dominion Government\non the 10th August, 1897, issued a commission to Mr. T. G. Rothwell to investigate the claims\nset up by the settlers upon the tract of land which was conveyed to the Government of the\nDominion of Canada by the Province of British Columbia, and by the Dominion of Canada to\nthe Esquimalt and Nanaimo Railway as hereinbefore set out.\nMr. Rothwell in his report (which is published in the annual report of the Department\nof the Interior, 1898), at folio 459, states, \" The settlers mentioned are those who are referred to\nas bona fide squatters in section 23 of the Provincial Act, c. 14, 1884, and in sub-section 2 of\nsection 7 of the Dominion Act, c. 6 of 1884,\" and states at folio 460, \" When I have completed\nthis task I feel satisfied that I will have established the conclusion I have arrived at, that\nalthough these settlers, speaking generally, have now no legal right to the coal and other\nminerals under their lands, they, or those claiming from them, have a just claim for redress at\nthe 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\nit the duty of the Government of British Columbia to take such action as will promptly and\nsatisfactorily remove the injustice.\"\n11. On the 12th day of October, 1900, the Provincial Government issued a Commission\nto Mr. Eli Harrison, a Judge of the County Court of British Columbia, who, after a very\nexhaustive enquiry, reported to the Provincial Government that the \" squatters\" could not\nnow acquire the coal or minerals, if any, under the lands squatted on, as such coal and\nminerals had been conveyed to others. Mr. Harrison's report is published at folio 337 of the\nSessional Papers, B. C, 1901.\n12. In the year 1903 the Local Legislature passed an Act, No. 26, intituled \"Vancouver\nIsland Settlers' Rights Act, 1903.\"\n13. In the year 1904 the Local Legislature passed an Act, chap. 42, intituled \" Vancouver\nIsland Settlers' Rights Act, 1904.\"    This Act, by section 5, repeals chap. 26 aforesaid.\n14. By sub-section (a) of section 2, \"Railway Land Belt\" shall mean the lands described\nby section 3, of chapter 14 of 47 Victoria, being \"An Act relating to the Island Railway, the\nGraving Dock, and Railway Lands of the Province.\"\n15. By sub-section (b) of section 2, a \"settler\" is described as a person who, prior to the\npassing of the said Act, occupied or improved lands situate within the said railway land belt\nwith the bona, fide intention of living thereon.\n16. Section 3 of the said Act is as follows:\u2014\"Upon application being made to the\nLieutenant-Governor in Council, within twelve months from the coming into \"force of this\nAct, showing that any settler occupied or improved land within said railway land belt prior to\nthe enactment of chapter 14 of 47 Victoria, with the bona fide intention of living on the said\nland, accompanied by reasonable proof of such occupation or improvement and intention, a\nCrown grant of the fee simple in such land shall be issued to him or his legal representative\nfree of charge and in accordance with the provisions of the Land Act in force at the time when\nsaid land was first so occupied or improved by said settler.\"\n17. Section 4 provides that \"The rights granted to the settler under this Act shall be\nasserted by and be defended at the Crown expense.\"\n18. The definition of \"settler,\" as set forth in chap. 42 of 1904, does away with the\ndefinition of the term \" squatter,\" as set out in chap. 14 of 1884, aforesaid, though he is one\nand the same person.\n19. Section 3 of the said Act gives to the squatter of section 23 of chap. 14, under the\ntitle 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\n20. The Esquimalt and Nanaimo Railway Company made their contract as aforesaid with\nthe Dominion Government, and upon the due completion thereof received a grant of the said\nlands from the Dominion Government, upon the same terms and conditions they were granted\nto the Dominion Government by the Provincial Government of British Columbia by chap. 14\nof 1884.\n21. The Esquimalt and Nanaimo Railway Company do not recognise the right of the\nProvincial Legislature to interfere with the land grant, as the Company did not receive the\nland from the Provincial Government, nor did they enter into any contract with the Provincial\nGovernment.\n22. The granting of the minerals under the lands of the squatters, as mentioned in section\n23 of c. 14 of 1884, will be a great injury to the property of the Esquimalt and Nanaimo\nRailway Company and an interference with the contract made between the Esquimalt and\nNanaimo Railway Company and Dominion Government.\nDated the day of March, A. D. 1904.\nThe Esquimalt and Nanaimo Railway Company therefore humbly pray Your Excellency\nin 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\nColumbia.\n[Seal.] (Signed)        James Dunsmuir,\nPresident of the Esquimalt and Nanaimo Railway.\nMonday, 21st March, 1904..\n(Signed)        Chas. E. Pooley,\nSecretary Esquimalt and Nanaimo Railway Company.\nCopy of a Report of a Committee of the'Executive Council, approved by His Honour the\nLieutenant-Governor on the 26th May, 1904.\nTo His Honour the Lieutenant-Governor in Council:\nThe Committee of the Executive Council have had under consideration the Petition of the\nEsquimalt and Nanaimo Railway Company, and beg respectfully to report as follows :\u2014\nThe whole of the land claimed by the settlers as against the Esquimalt and Nanaimo\nRailway Company was acquired before the 19th December, 1883, being the date of the passage\nof what is commonly called the Settlement Act. By the Land Act of 1875, 38 Victoria,\nchapter 5, sec. 3,  \" any person being the head of a family * * * and a British\nsubject,\" after complying with the provisions of the section, might \" record any tract of\nunoccupied, unsurveyed and unreserved lands of the Crown, not being an Indian settlement.\"\nThe section then prescribes the acreage and other matters. By section 9 of that Act, it is\nprovided that, upon compliance by the applicant of the provisions hereinbefore contained, the\nCommissioner \" shall\" record the land so sought to be recorded, etc.\nIt would appear, then, that the settler, upon complying with the provisions of sections 3\nto 9, obtained an absolute right to have the land recorded in his favour. It was not an act of\ngrace on the part of the Crown, but was put even more forcibly than the right of the miner to\nrecord his claim without any enquiry into the conditions precedent to his making his record,\nwhich right has never been questioned in the history of the Province.\nThis was the condition of affairs at the date of the Settlement Act. The Settlement Act\ndid not interfere with the rights of the settler in any way, but, on the contrary, carefully\npreserved them, and all other rights howsoever acquired. The Legislature went even further\nthan the preservation of the rights actually acquired, because it preserved, so far as the\nsurface rights were concerned, the rights of anyone who had \" squatted,\" that is, located\nwithout any colour of right, upon the land, the right to obtain a grant of the surface.\nA number of persons, antecedent to the 19th of December, 1883, did all those things\nnecessary to entitle them to a record of the land under the \"Land Act, 1875,\" but were\nrefused the right to perfect their title by the officer declining to make the record in favour of\nthe applicant, and declining also to give him the certificate required by sec. 9 of the said Act.\nThree of those persons have attempted unsuccessfully to assert their rights as against the\nRailway Company. F 24 Papers Relating to Report on Certain Acts of 1903-04. 1905\nThe Legislature by the Settlement Act did not convey to the Dominion, under which\nGovernment the Esquimalt and Nanaimo Railway Company claim, any lands in the Railway\nBelt as to which any other person had a lawful claim; and perhaps the only way in which the\nrights of the settlers could be asserted is not by an action brought by themselves against the\nEsquimalt and Nanaimo Railway Company, but by an action brought either by the Attorney-\nGeneral, on behalf of the Provice, or by giving the settlers a Provincial title and allowing them\nto contest the matter themselves. This latter course was the one which commended itself to\nYour Honour's advisers, hence the passage of the \" Vancouver Island Settlers' Rights Act,\n1904,\" chapter 54.\nIn making this Report, the Committee do not overlook one of the difficulties which may\narise in the course of the litigation, viz.: That the settler was bound to make his record upon\n\" unoccupied, unsurveyed and unreserved land of the Crown\"; and in the British Columbia\nGazette of the 5th July, 1873, a reserve was placed upon a strip of land 20 miles in width\nalong the east coast of Vancouver Island between Seymour Narrows and the harbour of\nEsquimalt. That reserve, by its recitals, is apparently founded upon incorrect premises. It\nis founded upon the suggeston that Esquimalt in Vancouver Island was, by an Order of the\nPrivy Council of Canada, fixed as the terminus of the Canadian Pacific Railway, and that a\nline of railway was to be located between the Harbour of Esquimalt and Seymour Narrows.\nIt was founded, further, upon the 11th paragraph of the Terms of Union, and the Terms of\nUnion distinctly preserved to settlers the right of pre-emption, and provided, as did the\nSettlement Act, that lands be given in lieu of those which might have been pre-empted before\nthe transfer took place.\nThe Committee is, therefore, of opinion that those persons who had made application to\npre-empt lands antecedent to the 19th December, 1883, and who in good faith had occupied\nand improved lands with a bona fide intention of living thereon, were entitled to receive grants\nfrom the Crown, and for that reason recommended the Bill to the Legislature.\nMr. Rothwell, in his report, cited in the petition of the Esquimalt and Nanaimo Railway\nCompany to His Excellency, arrived at the conclusion that these settlers had not been fairly\ntreated, the same conclusion having been arrived at by Your Honour's advisers, the only\ndifference between Your Honour's Ministers and Mr. Rothwell being the mode of redress.\nIn conclusion, the Committee submit that the Act in question is fairly within the powers\nof the Legislature, as dealing with property and civil rights, and in this connection they refer\nwith 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 :\u2014\n\" 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\nto property and civil rights. That is a question for the exclusive judgment of the Provincial\nLegislature.\"\nThe Committee further beg to refer to the report of the Honourable David Mills, then\nMinister 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\nLand Grants,\") wherein, after reciting that the gravamen of the objection was that royalties\nwere 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\naid of the railways, and that thereby the value of the timber of the railway companies was\nimpaired, namely, that there was an interference with vested rights,\nThe Minister remarks as follows :\u2014\n\" The undersigned does not deem it necessary to consider in detail the remarks of the\nAttorney-General. He does not acquiesce in all of them, but the undersigned bases his\nrefusal to recommend disallowance upon the fact that the application proceeds upon grounds\naffecting the substance of the Act, with regard to matters undoubtedly within the legislative\nauthority of the Province and not affecting any matter of Dominion policy. It is alleged\nthat the Statute affects pending litigation and rights existing under previous legislation and\ngrants from the Province. The undersigned considers that such legislation is objectionable in\nprinciple and not justified unless in very exceptional circumstances, but Your Excellency's\nGovernment is not in anywise responsible for the principle of the legislation, and as has\nalready been stated in this Report with regard to an Ontario Statute, the proper remedy in\nsuch cases lies with the Legislature or its constitutional Judges.\" 5 Ed. 7       Papers Relating to Report on Certain Acts of 1903-04. F 25\nIt may be said that, after all, this Act is only an Act to provide a means for conferring\na title in certain proper cases where justice requires title to be conferred, and not from or out\nof any property of the railway company, but out of lands reserved out of the grant made by\nthe Settlement Act, and in any event lands still vested in the Crown in the right of the\nProvince.\nThe Committee, therefore, respectfully submit that no good ground exists for the exercise\nby His Excellency of the power of disallowance in respect of the Act in question.\nThe Committee advise that a copy of this Report, if approved, be forwarded to the\nHonourable the Secretary of State of Canada.\nDated this 21st day of May, A.D. 1904.\nRichard McBride,\nPresiding Member of the Executive Council.\nApproved 26th May, A.D. 1904.\nHenri G. Joly de Lotbiniere,\nLieutenant-Governor.\nCopy of a Report of a Committee of the Honourable the Executive Council, approved by His\nHonour the Lieutenant-Governor on the 26th day of January, 1905.\nTo His Honour the Lieutenant-Governor in Council:\nThe undersigned has the honour to refer to Your Honour's letter of the 17th of January,\n1905, to the Provincial Secretary, enclosing Report of the Minister of Justice to His Excellency\nthe Governor-General for the years 1903-04, being the \"Provincial Elections Act,\" and the\n\" Coal Mines Regulation Act Amendment Act.\"\nWith regard to chapter 17, the provisions objected to are those contained in section 6,\nwhich provides that no Chinaman, Japanese or Indian shall have his name placed upon the\nRegister of Voters. That section interpreted, as the Minister points out, includes not only\nalien Chinese, but also persons of the Chinese race who, acting in conformity with the Dominion\nNaturalisation Act, become British subjects. The position that Your Honour's Ministers and\nthe Legislature have assumed upon this subject is one of grave objection to anyone of the\nclass of persons mentioned in the section, being placed upon the voters' list.\nThe undersigned observes that the Minister expresses the hope \" that this matter will be\nfurther considered by the Provincial Legislature and such amendments made as may be necessary to remove the objections herein stated.\"\nWith respect to this, in view of the opinion that the undersigned has already expressed\nand with the knowledge that Your Honour's Ministers have of the feeling throughout the\nProvince, and also the views of the majority of the Members of the Legislature, perhaps the\nwhole of them, Your Honour's Ministers cannot recommend, nor take the responsibility of\nadopting, 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\nin testing the views of the Legislature would be by bringing down the Report of the Minister\nof Justice and asking for an expression of opinion, but the undersigned is quite certain as to\nwhat the result would be, and hence it seems hardly proper to subject the views of the Minister\nof Justice to such a severe test. The general concensus of opinion throughout the Province is\nvery strongly in support of the view that these persons should not be permitted to be on the\nvoters' list. As the Minister of Justice points out, disallowance would not change the law\nupon the subject, and that the Province has the undoubted right to prohibit any person or set\nof persons from being placed upon the voters' list has been determined by the Privy Council\nin the case of Cunningham v. Tomey Homma, reported in Appeal Cases, 1903, page 151.\nChapter 39 is an Act to amend the \" Coal Mines Regulation Act,\" and is intended for the\npurpose of interpreting the words \" Chinamen \" and \" Chinese \" when used in connection with\nthe Act. . The words \" Chinaman \" and \" Chinese \" in the Province of British Columbia have\nbeen used very largely to express the idea of race rather than nationality, and it was for the\npurpose of obviating any doubt upon this subject that this short Act was passed.\nThe 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\nCouncil, 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\nquestions as to its constitutionality may be left to be determined by the judicial tribunal at\npresent seised of the whole question.\nThe Minister of Justice will in due course be served with a copy of the proceedings, and\nwill have an opportunity, if desired, of appearing before the Privy Council, or of instructing\ncounsel in the matter.\nDated the 19th day of January, A. D. 1905.\n(Signed)        Charles Wilson,\nAttorney-General.\nApproved this 19th day of January, A. D. 1905.\n(Signed)        Richaed McBeide,\nFor Presiding Member, Executive Council.\nCopy of a Report of a Committee of the  Honourable   the   Executive   Council, approved  by\nHis Honour the Lieutenant-Governor on the 26th day of January, 1905.\nTo His Honour the Lieutenant-Governor in Council :\nThe undersigned has the honour to refer to the letter of His Honour the Lieutenant-\nGovernor to the Provincial Secretary, dated 1st December, 1904, enclosing a copy of the\nReport of the Minister of Justice upon Chapter 15 of the Statutes of British Columbia for\n1903-1904, being the Supreme Court Act.\nThe absence of the undersigned attending the Judicial Committee of the Privy Council,\nis the cause of the delay in the matter receiving the attention which it deserves.\nThe Act in question is an Act respecting the constitution, practice and procedure of the\nSupreme Court of British Columbia, and is a consolidation and revision of all the Statutes on\nthe subject up to the time when it was passed. It was not treated as a controversial measure\nin the House, and with one or two exceptions was practically assented to by all the Members\nof the Legislature who took any interest in the subject.\nThe provision objected to is one contained in section 5, to the effect that persons appointed\nto the position of Judges of the Supreme Court shall be Barristers of not less than ten years'\nstanding, five of which shall have been spent in actual practice at the Bar of this Province.\nIt is submitted, with the utmost confidence, that the provision is a reasonable one. It\nwas part of the Statute law of British Columbia from 1878 to 1899, when it was repealed for\nparty purposes. It appears in the Revised Statutes of Ontario, 1897, chapter 51, sec. 3,\nsub-s. (6), except that ten years' actual practice at the Bar of Ontario is required, instead of\nfive as in the section under discussion.\nThe undersigned regrets that he cannot assent to the proposition of the Minister of Justice\nthat the section is ultra vires of the Province. Even if it were, it is submitted that that is no\nreason for the disallowance of the measure, but that it should be left to its operation and the\ndetermination of the Courts. If, however, the Minister of Justice proposes to recommend the\ndisallowance of the Act, as being contrary to the policy of the Dominion Government, then\nthat is a reason of a paramount character, and the undersigned has nothing further to say on\nthe subject.\nIn any event the Act is one of so great importance to this Province, and its disallowance\nnow and re-enactment next Session would possibly create so much trouble and perhaps litigation,\nwith consequent expense, there seems to be no course left to Your Honour's Ministers, in view\nof the threat of disallowance, but to assent to the terms on which the Act will be allowed,\nnamely, a promise to repeal the section at the next Session of the Legislature.\nDated the 19th day of January, A. D., 1905.\n(Signed)        Charles Wilson,\nA ttorney-General.\nApproved the 19th day of January, A. D. 1905.\n(Signed)        F. Carter-Cotton,\nPresiding Member of the Executive Council.\nvictoria, b. c.\nPrinted by Richard Wolfendek, I.S.O., V.D., Printer to the King's Most Excellent Majesty.\n1905.","@language":"en"}],"Genre":[{"@value":"Legislative proceedings","@language":"en"}],"Identifier":[{"@value":"J110.L5 S7","@language":"en"},{"@value":"1905_09_F21_F26","@language":"en"}],"IsShownAt":[{"@value":"10.14288\/1.0064263","@language":"en"}],"Language":[{"@value":"English","@language":"en"}],"Provider":[{"@value":"Vancouver : University of British Columbia Library","@language":"en"}],"Publisher":[{"@value":"Victoria, BC : Government Printer","@language":"en"}],"Rights":[{"@value":"Images provided for research and reference use only. For permission to publish, copy or otherwise distribute these images please contact the Legislative Library of British Columbia","@language":"en"}],"SortDate":[{"@value":"1905-12-31 AD","@language":"en"},{"@value":"1905-12-31 AD","@language":"en"}],"Source":[{"@value":"Original Format: Legislative Assembly of British Columbia. Library. Sessional Papers of the Province of British Columbia","@language":"en"}],"Title":[{"@value":"PAPERS Relating to the Report of the Minister of Justice on certain Acts of British Columbia passed during the Session of 1903-4.","@language":"en"}],"Type":[{"@value":"Text","@language":"en"}],"Translation":[{"@value":"","@language":"en"}],"@id":"doi:10.14288\/1.0064263"}