Atty.-Gen'l for Canada v Ritchie Contracting and Supply Company and Att'y.-Gen'l for British Columbia

APPEAL by special leave from a judgment of the Supreme Court (February 18, 1913) answering questions referred for hearing and consideration.

Under an order made by the Governor-General in Council on June 29, 1910, the following questions were referred to the Supreme Court for hearing and consideration in pursuance of the Supreme Court Act (R. S. C., 1906, c. 139), s. 60:—

1. Is it competent to the Legislature of British Columbia to authorize the Government of the Province to grant by way of lease, licence, or otherwise the exclusive right to fish in any or what part or parts of the waters within the railway belt – (a) as to such waters as are tidal, and (b) as to such waters as, although not tidal, are in fact navigable?

2. Is it competent to the Legislature of British Columbia to authorize the Government of the Province to grant by way of lease, licence, or otherwise the exclusive right, or any right, to fish below low water mark in or in any or what part or parts of the open sea within a marine league of the coast of the Province?

3. Is there any and what difference between the open sea within a marine league of the coast of British Columbia and the gulfs, bays, channels, arms of the sea and estuaries of the rivers within the Province, or lying between the Province and the United States of America, so far as concerns the authority of the Legislature of British Columbia to authorize the Government of the Province to grant by way of lease, licence, or otherwise the exclusive right, or any right, to fish below low water mark in the said waters or any of them?

The material facts were as follows. By an Ordinance promulgated by the Governor of the Colony of British Columbia on November 19, 1858, in which year the Colony was established, the laws of England, criminal and civil, as they existed on that date were declared to be in force in the Colony “so far as the same are not from local circumstances inapplicable.” By an Ordinance in 1867 the Ordinance of 1858 was made applicable to the whole of the new Colony of British Columbia, including Vancouver, thereby constituted.

On May 16, 1871, the Colony of British Columbia was admitted into the Union of Provinces in pursuance of the British North America Act, 1867, s. 146. The Terms of Union under which this admission took place are annexed to the Order in Council of May 16, 1871, by which the admission was effected. By art. 5 of those terms it was agreed that the Dominion of Canada should assume and defray the charges for (inter alia) “the protection and encouragement of fisheries.” By art. 11 the Government of the Dominion undertook to secure the completion of a railway to connect the seaboard of British Columbia with the railway system of Canada, and the Government of British Columbia agreed to convey to the Government of the Dominion, in trust, to be appropriated in such manner as the latter might deem advisable in furtherance of the construction of the railway, a belt of public lands along the line of railway throughout its entire length in British Columbia, not to exceed twenty miles on each side of the line.

In pursuance of art. 11 the Government of British Columbia by an Act of the Legislative Assembly, 43 Vict. c. 11, amended by 47 Vict. c. 14, granted to the Dominion Government a strip of public lands now known as and referred to in the above questions as the railway belt.

The British North America Act, 1867, by s. 91 provides that the exclusive authority of the Parliament of Canada shall extend, amongst other matters, to the following:– (1.) Public debt and property; (10.) navigation and shipping; (12.) sea coast and inland fisheries; and by s. 92 that Act assigns to the Provincial Legislature exclusive legislative authority over, among other matters, (13.) property and civil rights in the Province.

The reference was heard by the Supreme Court on November 26 and 27, 1912. Pursuant to orders of that Court the Attorneys-General for the Provinces of British Columbia, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Prince Edward Island, and Alberta were notified of the hearing and were given liberty to appear, and, with the exception of the last two named, all the above named were represented at the hearing. The Attorneys-General for Ontario, Quebec, New Brunswick, and Manitoba were interveners in the present appeal.

On February 18, 1913, the Supreme Court pronounced its opinion upon the questions submitted as follows:—

“Treating the questions as relating only to rights of fishing as commonly understood this Court was of the opinion as follows:—

“As to the first question submitted, to answer the same in the negative.

“As to the second question, to answer the same in the negative in so far as it relates to the exclusive right to fish in the waters therein mentioned, but to refrain from answering the said question in so far as it relates to any right other than exclusive to fish in the waters therein mentioned.

“As to the third question, to answer the same in the negative in so far as it relates to the exclusive right to fish in the waters therein mentioned, but to refrain from answering the said question in so far as it relates to any right other than exclusive to fish in the waters therein mentioned.”

Duff J., with whose judgment the Chief Justice together with Davies and Brodeur JJ. agreed, was of opinion that questions 2 and 3 should be answered in the negative in so far as they referred to the grant of exclusive rights of fishing in tidal waters, on the ground that by the law of England the right of fishing in tidal waters is prima facie in the public; that this presumption was not inapplicable to the conditions in British Columbia and was therefore the law of British Columbia when the Province entered the confederation; that under the British North America Act, 1867, s. 91 (12.), these public rights could only be limited or controlled by the Dominion Parliament. With regard to question 1 the learned judge was of opinion that, in so far as it referred to non-tidal waters, it should be answered in the negative, on the ground that the ownership of the beds of navigable non-tidal waters within the railway belt passed as an ordinary profit of the soil unless at the date of the Union the title of the Crown was burdened with a public right of fishing which was only capable of being restricted or limited through the exercise of legislative authority, and that if such a public right did exist the Parliament of Canada alone had legislative authority to limit or restrict it. The learned judge further said that no suggestion had been made in the argument as to the character of any possible non-exclusive right, that he did not understand what point was intended to be raised by the reference to such a possible right in question 2, and that he treated that question as confined to exclusive rights.

Idington J. and Anglin J. each delivered judgments substantially to the same effect.