Supreme Court of Canada
Burrard Power Co. v. The King, (1910) 43 S.C.R. 27
Date: 1910-02-15
The Burrard Power Company and the Attorney-General for British Columbia (Defendants) Appellants;
and
His Majesty The King, on the Information of the Attorney-General of Canada (Plaintiff) Respondent.
1909: October 27, 28; 1910: February 15.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Constitutional law—Legislative jurisdiction—Crown lands—Terms of union B.C., art. 11—Railway aid—Provincial grant to Dominion —Intrusion—Provincial legislation—Water-records within "Railway Belt"—Construction of statute—B.N.A. Act, 1867, ss. 91, 109, 117, 146—Imperial O. C, 16th May, 1871—"Water Clauses Consolidation Act, 1897," R.S.B.C. c. 190.
While lands within the "Railway Belt" of British Columbia remain vested in the Government of Canada in virtue of the grant made to it by the Government of British Columbia pursuant to the eleventh article of the "Terms of Union" of that province with the Dominion, the Water Commissioners of the Province of British Columbia are not competent to make grants of water-records, under the provisions of the "Water Clauses Consolidation Act, 1897," R.S.B.C, ch. 190, which would, in the operation of the powers thereby conferred, interfere with the proprietary rights of the Dominion of Canada therein. Cf. The Queen v Farwell (14 Can. S.C.R. 392).
Judgment appealed from (12 Ex. C.R. 295) affirmed.
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APPEAL and CROSS-APPEAL from the judgment of the Exchequer Court of Canada whereby, with a variation of the findings of the e referee that the Lillooet River, in British Columbia, was a navigable river, the action was maintained with costs.
The action was by information filed by the Attorney-General of Canada, on behalf of His Majesty, whereby it was alleged:
"1. That pursuant to the agreement of the Government of British Columbia contained in article 11 of the "Terms of Union" upon which the Colony of British Columbia was admitted into the Dominion of Canada, the legislature of British Columbia by 'An Act to grant Public Lands on the Mainland to the Dominion in aid of the Canadian Pacific Railway, 1880' (43 Vict. ch. 11, as amended by 47 Vict. ch. 14), granted to the Dominion Government for the purpose of constructing, and to aid in the construction of, the portion of the Canadian Pacific Railway on the mainland of British Columbia, in trust to be appropriated as the Dominion Government might deem advisable, the public lands along the line of the railway before mentioned, as therein particularly mentioned, and which lands are hereinafter called the 'Railway Belt'.
"2. That both the Lillooet River, which is a tributary of the Pitt River, and the Lillooet Lakes, from which it rises, are wholly situate within the limits of the said 'Railway Belt.' The Lillooet River is about twelve miles long, and is a public and navigable stream.
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"3. That the defendant is an incorporated company, having its head office in the City of Vancouver, B.C.
"4. That on the 7th of April, 1906, upon the application of the defendant company, the Water Commissioner for the District of New Westminster, assuming to act under the "Water Clauses Consolidation Act, 1897," ch. 190, B.S.B.C., purported to grant the said company, at the annual rent and for the consideration therein mentioned, a record of 25,000 inches of water (subject to certain reservations) out of the said Lillooet Lakes and tributaries, and Lillooet River and its tributaries, such water to be used for generating electricity, for light, heat, and power, and for milling, manufacturing, industrial and mechanical purposes, at or near lot 404, New Westminster District, and to be diverted from its source at a point at or near the outlet of the lower Lillooet Lake and to be returned at a point at or near lot 404, group 1, New Westminster District, and to be stored or diverted by means of dams, pipes, flumes and ditches.
"5. That on the public lands forming part of the 'Railway Belt' and adjoining the said Lillooet Lakes and Lillooet River, is a large quantity of valuable timber, which is entitled of right to be floated down the said river, and the said alleged grant and the diversion thereby authorized will materially interfere with the said right.
"6. That the said alleged grant and the rights under the 'Water Clauses Consolidation Act' thereto attached will materially interfere with the rights of the Dominion Government in the 'Railway Belt.'
"7. That the capacity of the Lillooet River is about 25,000 inches, and the alleged grant and the proposed
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diversion thereby authorized will greatly diminish the quantity of water in the said river and materially interfere with the rights of the Dominion Government.
"8. That the alleged grant and the proposed diversion thereby authorized will materially interfere with the public right of navigation in the said river.
"9. That section 91 of the 'British North America Act, 1867,' provides that the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the following (amongst other) classes of subjects:
(1) The public debt and property.
(10) Navigation and shipping. "10. That sub-section (2) of section 131 of the 'Water Clauses Consolidation Act, 1897/ provides that the power conferred by the first sub-section, of entering and taking Crown Lands, shall not extend to lands which shall be expressly reserved by the Crown for any purpose whatever."
The claim was for (a) a declaration that the grant of the water-record was invalid and conveyed no interest to the company and that it should be cancelled; (5) a declaration that it was invalid as being an interference with property subject to the exclusive authority of the Dominion of Canada; (c) a declaration that it was invalid as being an interference with the public right of navigation and the right of floating timber down the said river; (d) a declaration that it was invalid and unauthorized by or under the provisions of the "Water Clauses Consolidation Act, 1897"; (e) and an injunction to restrain the company from applying under the provisions of the "Water Clauses Consolidation Act, 1897," for approval of its undertaking and from taking any further steps in regard thereto.
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The defence denied the allegations of the information, stated that it disclosed no cause of action, and that, in any event, the water-record or grant in question could not be declared invalid or cancelled except upon petition of the Attorney-General or other proper representative of the Province of British Columbia.
An order was made referring the determination of the issues of fact in the case to Mr. Justice Martin, a judge of the Supreme Court of British Columbia, and, by consent, the Attorney-General of British Columbia was added as a party defendant representing the interests of British Columbia, and appeared before the referee and took part in the proceedings. The referee made his report as follows:
"1. The allegations, founded upon certain statutes, contained in the first, ninth and tenth paragraphs of the information were not considered proper subjects of discussion before me under said order of reference.
"2. The allegations of fact contained in the third paragraph of said information were admitted.
"3. The allegations of fact contained in paragraph four of said information have been proved. It is to be explained that the given point of return of the water diverted from said lakes and rivers, i.e., 'at or near lot 404, group 1, New Westminster District,' is not on the Lillooet River, but on Kanaka Creek, which creek at its nearest point is distant from said river about two miles to the south, and said creek discharges into the Fraser River.
"4. The allegations of fact contained in the fifth paragraph of said information have been proved.
"5. The allegations of fact contained in the sixth and seventh paragraphs of said information have been
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proved, and the rights of the Dominion, which have been materially interfered with, include navigation, timber, and fisheries; the result of defendant's proposed undertaking upon the salmon (sockeye) spawning beds in the lake would be specially detrimental, not to speak of the harmful effect upon that fish and other kinds of salmon and trout caused by the reduction of the ordinary volume of water in the river, thereby curtailing the spawning area and probably entirely preventing fish from ascending to the upper reaches of the river at the proper season of the year.
"6. The allegations of fact contained in the eighth paragraph of said information have been proved.
"7. With respect to the second paragraph of said information the allegations of fact therein contained that both the Lillooet River, which is a tributary of the Pitt River, and the Lillooet Lakes, from which it rises, are wholly situate within the limits of the said 'Railway Belt,' have been proved. Counsel for the defence and for the Attorney-General of British Columbia adduced a considerable body of evidence to shew that the sources of supply of said lakes were to a large extent outside the said 'Railway Belt,' but I have not entered upon the consideration of that matter because in my opinion it is an immaterial issue which it would not be profitable to pursue.
"With respect to the allegation in the same paragraph that the Lillooet River is about twelve miles long, and is a public and navigable stream, the evidence establishes the fact that the river is a tidal one for between five and six miles and a navigable one for a distance of upwards of nine miles from its mouth (at Pitt River). Of said nine miles, nearly six miles,
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up to what is called the town-line bridge, are navigable for power craft of various sizes. Said bridge has prevented any evidence, based on actual experiment, being offered of the capacity of the stream above it for power craft, but the evidence points to the belief that a little and inexpensive work would enable such craft to go up another mile or so. Above the said bridge loggers' and other boats can go up for two or three miles, say about nine miles in all, nearly any time of the year. The balance of the river (which, as a whole, is probably nearer thirteen miles long than twelve, though there is no exact measurement) is for the most part of a different character, the stream becoming much swifter and narrower, and its use is made more difficult by riffles and rapids of varying depth and strength, and shallow and rocky places through which the channel makes its way with less or more facility according to the height of water. There are no falls in the river, and the rapids or shoals are not of a size or nature to prevent prospectors', fishermen's and loggers' loaded boats, of about twenty feet in length being labouriously poled or 'tracked' by line, following the more or less contracted channel, up to the lake during any part of the year, except at the top of freshets, which are of uncertain occurrence owing to their being largely caused by the varying rain or snow fall in the mountains surrounding the lakes.
"The river is not obstructed by ice, and is capable of being used to drive logs in a commercial sense for between eight or nine months in the year, the time for so doing depending upon the freshets, which do not as a rule occur in the latter part of June, or in July or August, or till the latter part of September. The river, as a whole, is not of so turbulent a nature as streams
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which are generally met with in the mountainous section of British Columbia, and it has more than the average natural facilities for driving logs.
"It is contended for the defence that the stream has no higher claim to be considered navigable than that portion of the Miramichi River above Price's Bend, which is described in the Queen v. Robertson, at page 129, and which was held not to be navigable, but in my opinion it is impossible to really compare the two streams in view of the somewhat meagre description given of the Miramichi. The fact that boats can only utilize a portion of a stream in the ascent thereof by resorting to more or less slow or labourious methods does not of itself determine its navigability any more than does the fact that the descent may be correspondingly swift and easy. In my opinion it comes to a question of degree, and regard must be had to the custom and nature of the country and the manner in which such streams are utilized by those experienced in their nature and peculiarities. The well-known navigation by steamboats of certain turbulent rivers in this province might well be regarded as an impossibility by those who had not the local knowledge and experience. I feel that the question is not an easy one to decide, but after giving due effect to the evidence and argument, I have been unable to reach any other conclusion than that this river is a navigable one."
The judgment appealed from (rendered on an appeal from the report of the referee), varied the referee's finding as to the river being navigable and declared the grant of the water-record invalid, (a) as being an interference with property subject to the exclusive authority of the Dominion of Canada; (b)
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because the diversion of water intended to be authorized thereunder will be a serious interference with the navigability of the river; (c) because the said record is not authorized by or under the provisions of the statute of British Columbia, the "Water Clauses Consolidation Act, 1897." The order was for the cancellation of the grant of the water-record and that the company should be restrained from applying under the "Water Clauses Consolidation Act, 1897," for approval of its undertaking and from taking any further steps in regard thereto.
Lafleur K.C. for the appellants and cross-respondents. The question, shortly stated, is: Has the Province of British Columbia lost its right to legislate over the "Railway Belt?" We contend that it has not lost that right, though it transferred the beneficial interest in the lands within the "Railway Belt" to the Dominion of Canada. It still has jurisdiction to pass laws with respect to the lands in the province, situate within that "Railway Belt," and the water-rights incident to such lands. No agreement between the Dominion and the province can have the effect of altering their respective legislative jurisdictions as established by the constitutional Acts. The Imperial Order in Council of 16th May, 1871, has the force and effect of Imperial legislation and is to be read with the "British North America Act, 1867," as part of the constitution of British Columbia. This leaves the provincial jurisdiction unimpaired. There has been no "carving out" of a portion of British Columbia as federal territory and investing the Dominion with legislative powers over the tract of lands in question.
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During the argument council discussed the decisions in The Queen v. Farwell; The Attorney- General of British Columbia v. The Attorney-General of Canada; and the following cases were cited: Keewatin Power Co. v. The Town of Kenora; McGregor v. The Esquimault and Nanaimo Railway Co.; The Esquimault Waterworks Co. v. The City of Victoria; Klondyke Government Concession v. Macdonald, per Duff J., at page 91; and Hartley v. Carson, per Gwynne J., at pages 654, 658, 659, 680, and 681.
Newcombe K.C. for the respondent and cross-appellant. The rights or powers which the company proposes to exercise depend solely upon the "Water Clauses Consolidation Act, 1897," of British Columbia, and it is impossible that the "Railway Belt," if part of the public property of Canada, can be affected by provincial legislation, since it is provided by section 91 of the "British North America Act, 1867," that the exclusive legislative authority of the Parliament of Canada extends, among other matters, to "(1) The public debt and property." The title of the Dominion to the "Railway Belt" is clear, and is assured by the "Terms of Union" and Act of the legislature.
We refer to The Queen v. Farwell, per Strong J., at page 425; Farwell v. The Queen, per King J., at pages 560, 561; Attorney-General of Ontario v. Mercer; Attorney-General of British Columbia v. Attorney-General
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of Canada , at pages 301-305; The St. Catherines Milling and Lumber Company v. The Queen, at pages 55-59; Ontario Mining Company v. Seybold; Attorney-General for Canada v. Attorney-General for Ontario, at pages 210-211; and McGregor v. Esquimault and Nanaimo Railway Co..
The diversion of the Lillooet River, whereby the riparian rights are destroyed and a useful waterway is converted into a dry river bed, and the building of dams, ditches, pipes and flumes for this purpose, all upon the property of the Crown, and without the consent or license of the Crown, are acts of interference which cannot be authorized except by legislation; and for such legislation the Parliament of Canada is the only competent authority.
It has been contended that the litigation was premature, as the grant to the company had not yet been approved by the Lieutenant-Governer in Council, or in so far as a right to an injunction was concerned. The company was taking the statutory steps. It had made its application, obtained its grant from the Water Commissioner, thus shewing its intention, and when this action was brought it insisted upon the validity of. the grant, and the power of the local authorities to authorize the works. It is still insisting upon the same thing. Presumably if this action had not been brought the works would have been already constructed and in operation. If an intention to do the act complained of can be shewn to exist, or if a man insists on his right to do, or begins to do, or
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threatens to do, or gives notice of his intention to do an act which must, in the opinion of the court, if completed, give a ground of action, there is a foundation for the exercise of this jurisdiction. Kerr on Injunctions (4 ed.), pages 13 and 14. It is not necessary that the breach in respect of which the interference of the court is sought should have been actually committed; it is enough that the defendant claims and insists on his right to do the act complained of, although he may not have actually done it. Kerr on Injunctions (4 ed.), page 358. The action has been commenced and the liability is denied at the bar, consequently, there is a right to claim indemnity by action. Hobbs v. Wayet, per Kekewich J.
The "Water Clauses Consolidation Act, 1897," must be construed as not intended to apply to the "Railway Belt," because of the incapacity of the local legislature to extend the provisions of the Act to the public property of Canada.
The grant and the works proposed to be executed thereunder are ultra vires of the local legislature to authorize as affecting navigation, which is under the exclusive legislative authority of the Parliament of Canada.
The referee finds that the Lillooet River is a navigable one, and this finding was only varied upon appeal by the declaration that it is a public and navigable river for a distance of upwards of nine miles from its mouth at Pitt River. Both the referee and the court appealed from hold that the proposed works would seriously interfere with the navigation. These findings are amply supported by the evidence.
The proposed works would destroy or interfere
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with the fisheries of the Lillooet River and also of the lakes, and, consequently, could only be authorized by Parliament, in virtue of its exclusive legislative authority with regard to "Seacoast and Inland Fisheries."
It is contended, on the cross-appeal, that there is no occasion or sufficient reason for varying the finding of the referee that the Lillooet River is navigable. This finding must be construed secundum subjectam materiam. The issue is as to whether the flow of water in the Lillooet River is such as to give the river the quality of navigability. The execution of the proposed works would divert the water from the river, and destroy navigation. It is properly found that the river is navigable, and that its character as a navigable river is not affected by the conditions of the stream at or immediately below its origin or outlet from the Lillooet Lakes.
Newcombe K.C. for the respondent and cross-appellant.
Lafleur K.C. for the appellants and cross-respondents.
The Chief Justice.—I agree in the opinion of Mr. Justice Duff. In view of the grounds upon which the majority of the court dispose of the main appeal, it is not considered necessary or desirable to deal with the cross-appeal.
Girouard J.—I think we are bound by the decision in The Queen v. Farwell, and, therefore, the appeal must be dismissed with costs.
Davies J. concurred with Duff J.
Idington J.—This appeal must be resolved by the meaning of the agreement between the Dominion and
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British Columbia. I do not see why, though I will presently refer thereto, the local legislation relative to the use of water, should be of any significance in arriving at a determination of what the parties concerned had agreed upon or set forth in writing as agreed upon.
Speaking in general terms, there existed in English law at the time of the formation of the contract in question, a clear and definite meaning of what the term land (when used in contracts relative thereto) implied, which seems inconsistent with the exceedingly restricted meaning sought to be attached to it in the contract in question.
As between two such British colonies as these concerned therein dealing with regard to lands, I submit the principles of the English law must be kept in view and the primary meaning of the words "public lands" must be what that law would impute to such a term. The instrument must be read, of course, in light of the surrounding circumstances and the nature of the business the parties thereto had in hand as well as what the terms and conditions expressed in regard thereto must reasonably imply.
The question raised is not such as the precious metals case involved for the terms owning or conveying land have so passed current as meaning that of an ownership thereof that implied the exclusion of that covered by the prerogative rights of the Crown in or over the royal metals. And for that reason the court held, having regard to the nature of the contract and the instrument in question in the precious metals case, that the terms "public lands" was used in this restricted sense.
It seems to me that case is rather against than for the appellant.
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If appellant's present contention that the right which passed to the Dominion must be not only subject to, but as a consequence limited by, what a British Columbia legislature, acting within its powers over civil rights, either had chosen or might choose to determine, is sound then there need never have been the trouble there was to decide that case.
Apart from that and before proceeding to consider the relation of such legislation to the land in question I would ask how can the term "public lands'' be in the ordinary use of language so restricted as to imply an absolute severance in title in or to the land from the title in or to the use of all that water which is needed to make the land valuable and the use of which in law usually goes with it?
Is it to be supposed that it was contemplated as competent for the party making such a concession of public lands, forty miles wide and hundreds of miles long, of its Own volition, so to drain therefrom the water thereon to serve other lands and uses on either side thereof as to leave this strip a barren waste?
It may be replied that the party granting was as deeply interested as the grantee in avoiding such a result. But it is as "a commercial transaction" the matter has to be considered in the first place, and next as a project of colonization.
The case in hand presents a good illustration of what a profitable use may be made of the water elsewhere and for other purposes and if uniformly persisted in how destructive of its commercial or settlement uses the exercise of such a power over the waters of and on the land may become.
Besides the land needing water for ordinary purposes, their irrigation may be a prime necessity to rendering
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them or any part of them worth anything for the purpose of settling them profitably or advantageously.
The grant is one of such magnitude that it would seem impossible for any one ever to have considered the acceptance thereof as something of value when undertaking to settle the lands without the water—the first necessity of the settler being in the power of the grantee assuming such a duty, either to give or assure the settler thereof or help him to develop its use.
To say that the province might do it better is evading the issue. We have not to approve or disapprove of what possibly neither party might with later experience dream of undertaking now.
The province, for example, might also lay out better roads, build bridges thereon, and do better all that which the doing so implies.
But this pre-eminently local concern of laying out roads or allowances therefor seems impliedly reserved for the Dominion, for the only restrictions the Act making the grant imposes in that regard is that it is not to
affect or prejudice the rights of the public with respect to common or public highways existing at the date (of the Act) within the limits of the lands intended to be conveyed.
This expression of the legislature's thought then seems in curious contrast with the new view presented, and especially so when we find the local law had provided, by the 46th section of the "Land Act, 1870," that unless otherwise specially noted at the time of sale all Crown lands shall be sold subject to such public rights of way as may be thereafter specified by the Chief Commissioner of Lands and to the right of the Crown to take therefrom without compensation, any stone,
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gravel or other material to be used in repairing the public roads and to such private right-of-way existing at the time of sale.
Are these locally useful reservations implied in the grant now in question? Clearly not and that because of the exclusive and comprehensive nature of the grant.
It is said ingeniously what use can be made of a right to the water along with these lands when immediately the Dominion grants any of them they must come under the local law which provides for a severance of the right to the water from that of the land.
I deny that it is so. I admit the land falls as do the rights of the owner within the legislative control of the province.
I admit the legislature has the power to expropriate the water on the land so soon as it passes out of the Dominion's control. It has not done so.
I admit it could expropriate the entire land as well as water so soon as it passes out of the Dominion's control, and that even without compensation. It has not done that either.
Here we have nothing to do with what it may or may not do, but only, if at all, the law as it exists.
The argument has in it more than one fallacy. But the chief one is assuming what is not in my view of the law correct. That is, that as a matter of course under the existing law of the legislature the waters on these lands, even if vested in the Dominion now, would, by the grant of the Dominion to another, ipso facto become the property of the Crown in right of the province.
No such thing happens. No such thing is provided for or expected.
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Even the present statute, "The Water Clauses Consolidation Act, 1897," further advanced, in the way of appropriating to the Crown control of all water, than any of its predecessors, fails to produce such result.
The unrecorded water is all it presumes to exercise jurisdiction over, and that is so defined as to exclude from its operation the water held under "a special grant by public or private Act."
If I am right in the meaning I attach to the words "public lands" in the agreement, and as a result in the statutes intended to carry out the agreement there is an end of the matter in these lands being thus excepted as a public grant.
But as so much importance seemed to be attached in argument to the bearing of the local legislation on the agreement, I may proceed and call attention to a few things overlooked in that view.
No legislation even in British Columbia has ever affirmed as an absolute proposition of law that unless expressed to the contrary we must in every case of a legislative" or contractual nature assume that the title to the land carries with it no interest in the water thereon.
On the contrary to the present time the right to the use of the water as it passes is still recognized as in the owner of the land" for domestic and stock supply."
True, it is in such reservations spoken of as the property of the Crown, but yet as if in respect of its use by the land owner "a general right thereto" existed. It is hard even for legislators having to solve problems such as the water question in British Columbia to think of the matter as if the dissolution of the tenure of land and use or right to water thereon had become absolute.
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The common law thought dominates, and rightly so unless something is clearly expressed to the contrary.
Not to go further back than 1870 the year before the agreement, we have to deal with a comprehensive land Act known as the Land Ordinance, 1870." In that Act for the purpose thereof "Crown lands" were defined to mean all lands of the colony held by the Crown in fee simple.
What did that mean? What did the holding of lands in "fee simple" mean? We have no explanation, and when we are seeking to find a basis for complete severance of title in the land from any right in the water we might expect something more explicit than such an ambiguous answer or interpretation of lands and especially of Crown lands.
We are not given any definition of the word "waters," What would seem to be enacted in this regard is not a disturbance of the ancient way of looking at land as associated with and carrying with it the title to the use of the water thereon, but a legislative provision which appears in section 30 of the Act providing for the diversion by a named class of any "unrecorded and unappropriated" water from
the natural channel of the stream or river adjacent to or passing through such land.
And in the same section, following this provision, is this declaration:
and no person shall have any exclusive right to the use of such water whether the same flow naturally through or over his land except such record shall have been made.
A similar provision applicable to water privileges for mining or other purposes appears in section 35,
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where the provision is made for the diversion of water” not otherwise lawfully appropriated."
I venture to think that up to the Act of 1870 and including that Act there was nothing in the legislation of British Columbia or otherwise to warrant the contention that in 1871, at the time of the agreement in question, there was any generally settled legal opinion that the phrase "Crown lands" or the phrase "public lands" meant more or less than the plain, ordinary meaning of these English words as they had been understood for ages previously.
I rather think the mining industry was what first induced the enactment of any such provision as looking to taking of the water from land possessed by the Crown or others. Some of the earlier provisions I am unable to find. Their publications ceased as they were repealed or replaced.
The earliest of these I have been able to see is in an Act of 1862, which provided for the sale of Crown lands and promoting settlement in the colony and in that Act appeared a provision in favour of miners and giving them the right of carrying water for mining purposes notwithstanding any recorded claim for the purchase of the land.
The phrases used to define what water might be taken are worth noting as well as the limited uses for which the taking or diverting was or ever has been permitted.
The words used in the "Land Ordinance" passed on 11th April, 1865, was "any unoccupied water" in section 44 thereof, which was the predecessor of the section 30 above referred to in the later Act of 1870.
The "Land Act of 1875" used the phrase:
so much and no more of any unrecorded and unappropriated water, etc.
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The "Land Act of 1884" used the same words as the preceding.
What was done in the way of legislation severing the right in, or to the use of, water from the land, consisted merely in the creation of a statutory easement, so to speak, and in each case in favour of cultivators of land and miners.
The ancient law otherwise remained and remains as it was before. In no sense can it be said that the land and the water were universally and uniformly supposed to depend upon separate rights of or in property.
The invasion of the common law doctrines in the province had not and has not yet gone so far as to interfere in any way therewith except in the case of, first, "unoccupied water," then, "unrecorded and unappropriated."
We are left to guess at or interpret what the word "unappropriated" means, there being no legislative interpretation assigned thereto.
Another thing worthy of notice is that the basic idea expressed in the agreement was to have
a similar extent of public lands along the line of railway as may be appropriated for the same purpose by the Dominion Government from the public lands of the North-West Territories and the Province of Manitoba.
And these were given
in trust to appropriate in such manner as the Dominion Government may deem advisable in furtherance of the construction of the said railway.
These things, to my mind, all point to what was, from a British Columbia point of view, an entirely exceptional agreement as to public lands beyond the ordinary right given by the province to those acquiring
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any of them in the ordinary way merely by virtue of the "Land Ordinance, 1870/' then in force or any succeeding "Land Ordinance."
Almost every term of the agreement is quite inconsistent with the encumbering purposes and policies of such Acts. The province substitutes by it another party, possessed of high, though not sovereign, power, for itself to deal with a large proportion of the Crown lands of the province, as it saw fit, unrestricted in any way except that it must bring or try to bring about their settlement.
The nature of the agreement is essentially in conflict with the idea that it must conform to the local policy of British Columbia in any other way than that of promoting settlement.
And so far from tending to restrict the primary meaning of the word "lands" all these things tend to emphasize it, and, if possible, magnify the importance of the rights given.
Another thing to be observed is that in none of these provisions or otherwise had the local Acts relied upon referred to the Crown or pretended in express terms to bind the Crown.
Waiving the question of the right of the Crown to make grants out of its rivers or lakes or in doing so to be guided by this method of procedure, there is no express enactment in that regard even in these Acts, though the Acts being specially for the administration of the Crown lands may furnish an irresistible inference that for that limited purpose the Crown is bound.
It is not intended and never could have been intended to apply to lands held by the Crown in right of the Dominion for other purposes, and which are not
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at all within the purview of the legislation in question such as "The Water Clauses Consolidation Act, 1897."
Hence it seems to me idle to maintain in face thereof that the grant to a settler by the Dominion would as of course bring such land within these enactments.
The objection was made that an injunction could not be granted, or should not be granted, until application had been made and passed upon by the Lieutenant-Governor in Council.
The jurisdiction asserted is the common one of preventing threatened trespass or waste, and depends not on anything beyond the reasonable apprehension thereof, which is in no way dependent on the action or possible abstention therefrom by another court or authority.
I have preferred to rest my opinion on the broad right of the Dominion to the use of the water and issue raised in regard to it which is no doubt what the parties concerned desire to have determined rather than upon the narrow one of the possible interference with navigation, which must depend on the facts. These once ascertained as shewing an interference with navigation the Dominion's right is undoubted.
I think the appeal should be dismissed with costs.
As to the cross-appeal, though seeing no ground to complain of the judgment in the court below, I would not, unless the parties feel the issue must be decided, think it wise to cumber this record or embarass any future issue by a needless and fruitless declaration of what on this evidence the proper measure is of navigability or how far the navigable nature of the river extends.
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Duff J.—The scheme of the "British North America Act, 1867/' for the distribution of the public property of the provinces held by them at the time of the passing of the Act has been several times explained in the judgments of the Judicial Committee of the Privy Council. In The Liquidators of the Maritime Bank v. The Receiver-General of New Brunswick, at pages 441 and 442, it was said by Lord Watson, speaking on behalf of the Board, that the object of the Act
was accomplished by distributing between the Dominion and the provinces, all powers, executive and legislative and all public property and revenues which had previously belonged to the provinces; so that the Dominion Government should be vested with such of these powers, property and revenues as were necessary for the due performance of its constitutional functions and that the remainder should be retained by the province for the purposes of the Provincial Government.
The design of the Act appears to have been that such of the property as by the Act was appropriated to the Dominion should be subject to the exclusive control of the Dominion Legislature, and such as was left in the provinces should be subject to the exclusive provincial control. Section 117 provides as follows:
117. The several provinces shall retain all their respective public property not otherwise disposed of in this Act, subject to the right of Canada to assume any lands or public property required for the fortifications or for the defence of the country;
and this appears to be the only provision in the principal Act authorizing the Dominion to take provincial property. There is no provision expressly authorizing a province to assume any property appropriated by the Act to the Dominion. At pages 57 and 58, Lord Watson, speaking for the Judicial Committee, said :
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The enactments of section 109 are, in the opinion of their Lordships, sufficient to give to each province, subject to the administration and control of its own legislature, the entire beneficial interest of the Crown in all lands within its boundaries, which at the time of the Union were vested in the Crown, with, the exception of such lands as the Dominion acquired right to under section 108 or might assume for the purposes specified in section 117.
The subjects of the legislative jurisdiction conferred upon the Dominion by sub-section 1 of section 91 are described in the words "the public debt and property," but these words obviously mean "the public debt and property" of the Dominion. The only express provision touching the power of the provinces to legislate in respect of the public property is section 29, subsection 5, and the powers there conferred are confined to the public lands of the provinces. In Attorney-General of Canada v. Attorney-General of Ontario, at page 713, Lord Herschell, speaking for the Judicial Committee (comprising the Lord Chancellor, Lord Herschell, Lord Watson, Lord Macnaghten, Lord Morris, Lord Shand, Lord Davey, and Sir Henry de-Villiers), after a full argument, in which all the provinces, as well as the Dominion participated, pointed out the distinction between proprietary rights and legislative jurisdiction; and after observing that the power to legislate in respect of a particular subject-matter would necessarily enable the legislature so empowered to affect proprietary rights, said:
If, however, the legislature purports to confer upon others proprietary rights where it possesses none itself, that in their Lordships' opinion is not an exercise of the legislative jurisdiction conferred by section 91. If the contrary were held, it would follow that the Dominion might practically transfer to itself property which has, by the "British North America Act," been left to the provinces and not vested in it.
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The reasoning upon which these decisions are based appears to involve the principle that except in the special case mentioned in section 117 the distribution of property between the Dominion and the provinces is not subject to be re-adjusted at the will of one of the parties without the consent of the others and consequently, that a province cannot take away either for the benefit of itself or for the benefit of another any of the property appropriated by the "British North America Act" to the Dominion.
The scheme of distribution found in the "British North America Act, 1867," was, as regards British Columbia, modified by the terms of union with that province. The eleventh article of the latter instrument provides for the transfer to the Dominion of a certain tract of land for aid in the building of a railway connecting the eastern provinces of Canada with the Pacific coast. In the Attorney-General of British Columbia v. Attorney-General of Canada, it was said that this article was only one term in a general statutory arrangement, of which the leading enactments were those bringing into force the general scheme of the "British North America Act" for the distribution of the provincial property and that the article constituted an exception to that scheme. Having regard to the principle upon which the Judicial Committee seems to have acted in the cases already referred to, it would seem that the true view of the eleventh article is that the power to deal with and manage the tract of land to be transferred to the Dominion thereunder was vested in the Dominion, and that as a consequence the province could neither assume any part of the land so vested in the Dominion
[Page 53]
for itself, nor dismember the Dominion's proprietary rights in it by conferring any such rights upon others. That, I think, is the view of the effect of the article expressed by the Judicial Committee in the case last mentioned.
That the carrying out of the plan of the power company would involve the dismemberment of the proprietary rights of the Dominion is too clear for discussion, and, indeed, I think is not disputed. The plan includes the occupation of the bed of the Lillooet River just below the embouchure of Lillooet Lake by a permanent clam, the raising of the surface of Lillooet Lake, the construction and maintaining of conduits and the permanent diversion of the waters of Lillooet River. If I am right in the views I have just expressed it is perfectly clear that the assumption of such rights by the province over the tract conveyed under the eleventh article either for its own benefit or for the purpose of conferring them upon others, is something which that article by necessary implication forbids. That the transfer to the Dominion of proprietary rights of the province in the tract in question had the effect of vesting in the Dominion all the rights of the province in waters of the lakes and streams within the tract incident to the ownership of the tract seems to me to be clear. It is true that at the time of the Union, as well as at the date of the Act of 1884, the law of British Columbia conferred upon landowners and others the right to obtain from the Provincial Government grants of the right to divert the waters of natural lakes and streams for certain purposes; and it is also true that the legislature must have contemplated that in the existing conditions of the country such grants, in many, if not in most cases, might prejudicially
[Page 54]
effect the Crown lands in respect of the flow of such waters through or past them.
It should seem, however, in view of the considerations mentioned above, the agreement contained in article 11 being carried out by the Act of 1884, the authority given to the provincial officers under the general legislation of the province to make such grants of water rights would ipso jure cease to apply to the tract thereby conveyed to the Dominion, while it remained the property of the Dominion.
Anglin J.—It was found by the learned judge to whom the issues of fact in this action were referred that the Lillooet River is navigable throughout its entire length. This finding was modified on appeal by the learned judge of the Exchequer Court, who held that this river is navigable in its lower reaches extending about nine miles up from its confluence with the Pitt River, but is not navigable in the upper reaches. The learned judge further finds that the navigability in fact of the river in its lower reaches does not depend on the flow of the tide. Against these findings of the Exchequer Court the defendants have not appealed.
The scheme of the company is to divert from the Lillooet River 25,000 inches of water flowing into it from the Lillooet Lakes, and to carry this water into Kanaka Creek and thence into the Fraser River. No part of the diverted water is to be returned to the Lillooet. The capacity of the Lillooet River at its exit from Lillooet Lake has been found to be about 25,000 inches, and from this finding there has been no appeal. It follows that, except in so far as it may be preserved by the flow of the tide, the proposed diversion will, if permitted, destroy the navigability of the Lillooet
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River. The influence of the tide is felt only in the lower six miles of the river. In this state of facts it is manifest that if carried out the diversion proposed by the appellants will seriously interfere with, if not destroy, the right of navigation.
By section 91 (10) of the "British North America Act, 1867," legislative jurisdiction over navigation is vested exclusively in the Dominion Parliament, and it has prohibited the erection of any dam which shall interfere with navigation. R.S.C. [1906] ch. 116, sec. 4. Because the carrying out of the scheme of the appellants will involve the construction of a dam which will interfere with navigation, I am of opinion that the judgment in appeal should be sustained.
No doubt this appeal might be disposed of on this ground alone, and, having regard to what has been said by the Judicial Committee in Citizens Ins. Co. of Canada v. Parsons at page 109, and approved of in later cases, I am not certain that it should not be so disposed of. But counsel expressed great anxiety that this court should determine the validity of the provincial grant of the water-power in question, apart from its undue interference with the rights of navigation. This is said to be a pressing question of general importance in British Columbia, and an expression of opinion upon it, though not necessary to the disposition of this appeal, may therefore be not improper. The Attorney-General for British Columbia v. The Canadian Pacific Railway Co., at page 208.
In the Precious Metals Case, at page 301, Lord Watson, speaking of the transfer to the Dominion of the lands comprised in the "Railway Belt," said:
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It seems clear that the only "conveyance" contemplated was a transfer to the Dominion of the provincial right to manage and settle the lands, and to appropriate their revenues. It was neither intended that the lands should be taken out of the province, nor that the Dominion Government should occupy the position of a freeholder within the province. The object of the Dominion Government was to recoup the cost of constructing the railway by selling the land to settlers. Whenever land is so disposed' of the interest of the Dominion comes to an end. The land then ceases to be public land, and reverts to the same position as if it had been settled by the Provincial Government in the ordinary course of its administration.
It was accordingly held in McGregor v. Esquimault Railway Co., that other land, the beneficial interest in which had been conveyed by the province to the Dominion for railway purposes, but which had subsequently ceased to be the property of the Dominion by a grant thereof to a local railway company, was subject to provincial legislative authority.
While in both these cases it appears to have been recognized that the extent of the legislative control of the province over such lands is not the same while they are held by the Dominion as it is after they have passed into other hands—
the land reverts to the same position as if it had been settled by the Provincial Government in the ordinary course of its administration—
to what extent provincial legislative jurisdiction over it, while held by the Dominion, is abrogated or curtailed is not defined.
In the Precious Metals Case it was held that while the jura regalia were not transferred to the Dominion, the beneficial interest in the Crown's territorial rights—their management, and the revenues derivable therefrom—was so transferred. Farwell v. The Queen, at page 560.
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Water-powers existing upon streams flowing through these lands are not jura regalia. So far as they were subject to provincial control or disposition while the lands were held by the province—at all events where they are found upon non-navigable streams—they were incidents of the adjacent property which would pass with other beneficial interests in the nature of territorial rights from the province to any purchaser of the lands upon either side of the stream, unless they were expressly excepted by the terms of the grant itself or were excepted from it by provincial legislation. They are not excepted in the statutory conveyance to the Dominion, and the only legislation of the province in force at the time of the transfer to the Dominion to which we have been referred, as stated by Mr. Justice Cassels, does not affect this case. It does not except unrecorded water-rights from the interest of the lawful occupant of pre-empted and cultivated lands; it merely imposes a condition upon the exercise of his right to divert such waters from their natural course. This is something quite different from so excepting the ordinary rights in such waters which appertain to riparian ownership that they might be bestowed upon some stranger without derogating from the lawful interests of the riparian owner. These rights, therefore, in my opinion, passed to the Dominion under the statutory conveyance with other incidents of the property.
These undeveloped water-powers might have been very valuable interests—they may still prove almost indispensable privileges—for the use of the transcontinental railway itself, whose construction the transfer of the lands comprised in the "Railway Belt" was designed to aid, should electrical energy be utilized as its motive power. Without derogating from its
[Page 58]
grant, made pursuant to the terms of union sanctioned by Imperial Order in Council having the force of an Act of the Imperial Parliament, the province could not assert in respect to the lands themselves legislative jurisdiction to sanction their expropriation; neither can it do so with regard to such an incident of the property as the water-power here in question.
In my opinion, while held by the Dominion these lands are not subject to such provincial legislative jurisdiction as the appellants invoke.
The appellants object that this action has been prematurely brought, because, although the Water Commissioners acting under the "Water Clauses Consolidation Act" (R.S.B.C. [1897] ch. 190), have granted to the appellants “a record of 25,000 inches of water, etc.," their scheme requires the sanction of the Lieutenant-Governor in Council before they can proceed with their works. Mr. Lafleur suggests that the scheme as propounded may never receive this sanction, and that until it is given the Attorney-General of Canada cannot maintain this action. I am unable to agree in this view. The appellants should not be heard to say that they may not carry out that which they have avowed it to be their intention to perform. Such an avowal has always been deemed a sufficient ground for preferring a claim for an injunction. Kerr on Injunctions (4 ed.), pages 13, 14, 358.
I would dismiss this appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Bowser, Reid & Wallbridge
Solicitor for the respondent: E. L. Newcombe.
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