Smith v. The King / Frooks v. The King, (1908) 40 SCR 258

Supreme Court of Canada

Smith v. The King / Frooks v. The King, (1908) 40 S.C.R. 258

Date: 1908-05-18

Edward Ward Smith (Suppliant) Appellant;

and

His Majesty The King Respondent.

Frederick Daniel Frooks (Suppliant) Appellant;

and

His Majesty The King Respondent.

1908: May 5, 6; 1908: May 18.

Present: Girouard, Davies, Idington, Maclennan and Duff JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Mines and minerals—Hydraulic regulations—Application for mining location—-Duties imposed on Minister of the Interior— Status of applicant—Vested rights—Contract binding on the Crown.

Under the hydraulic regulations for the disposal of mining locations in the Yukon Territory, enacted by the Governor-General in Council on 3rd December, 1898, as amended by subsequent regulations and by the order in council of 2nd February, 1904, the Minister of the Interior is charged with the duty not only of pronouncing on the question whether or not the locations applied for should be reserved for disposal under such hydraulic regulations, but also of determining the priority of rival claimants, the extent of the locations and the conditions of any lease to be granted.

Until the minister has given a decision favourable to an applicant, there can be no implied contract binding upon the Crown in respect to the location applied for, and the mere filing of an application for an hydraulic lease confers no status or prior rights on the applicant in respect to the ground therein described.

Appeal from the judgments (dated 7th January, 1908) of Burbidge J., in the Exchequer Court of Canada,

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dismissing the petitions of right filed by the suppliants.

His Lordship said in the judgments appealed from: "And now the state of my health prevents me from giving the case the consideration which it de-serves. However, it does appear to me to be important that the litigation should be advanced another stage and that it is in the interests of the parties themselves that it be put in a position where the questions in issue may be brought before the Supreme Court of Canada rather than that there should be a rehearing or reargument in this court. And for that I am not without a precedent. For in the case of The Attorney-General for British Columbia v. The Attorney-General for Canada[1], the decision of the Exchequer Court was taken by consent and without argument in order to facilitate the bringing of the case directly to the Supreme Court. It is true that in this case I have not the consent of the parties, but I think may take it for granted that they would consent to a course of procedure which appears to me to be so much in their interest. The main question it seems to me that I need to decide is as to the party upon whom the burden of bringing the appeal should be thrown, and in this case I think that burden should fall upon the suppliant."

The questions at issue on the appeals are stated in the judgments now reported.

T. Mayne Daly K.C. and J. Travers Lewis K.C. for the appellants.

Shepley K.C. for the respondent.

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Girouard J.—I concur in the opinion stated by Mr. Justice Duff.

Davies J.—I also concur with Mr. Justice Duff.

Idington J.—Each of these cases arises out of an application made under the mining regulations in force in the Yukon for a mining lease.

The first question that suggests itself in considering the appeal is: Can relief be given in an action taken by way of petition of right upon and for relief from the refusal of the Crown to comply with an application made under the said regulations?

Section 3 thereof, as amended on the 2nd March, 1900, is the basis of the claim and is as follows:—

To any person who files an application in the Department of the Interior at Ottawa for a location previously prospected by him or his authorized agent at the time the location was prospected, a lease will be issued provided he is the first qualified applicant therefor. Before the issue of any such lease there shall be filed in the Department of the Interior at Ottawa a report from the Gold Commissioner to the effect that it has been proved to his satisfaction that the applicant himself, or a person acting for him, was upon and actually prospected, prior to the date of the application, the ground included in the location, and that the ground included in the location is not being worked and is not suitable to be worked under the regulations governing placer mining.

That section standing alone might in the case of a suit brought upon the filing of an application (either rejected and refused so soon as filed or when supplemented by a compliance with the proviso of the section) raise some curious questions.

It is, however, not alone but is preceded and followed by sections that confer upon the Minister of the Interior, representing the Crown, powers and impose upon him duties in regard to the granting of such

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leases that give to the operation of the section or subject matter of its operation an instability, a want of uniformity and indefiniteness of possible results that render it quite impossible to say that a contract has been formed at any stage up to the last when the minister has directed the lease to issue in the form and for the quantity of land and upon the terms of rental that he in each such regard may have decided upon.

It seems impossible to find a completed contract until then.

It is suggested and pressed upon us that a duty has been created by these regulations, which have the force of a statute, rendering it possible for the Exchequer Court upon such petition of right as is before us to interfere, and to declare that the Crown is bound to issue a lease.

It is, if I understand counsel aright, only mildly claimed that such a suit might be maintained in case the Crown, immediately after the filing in priority to all others of such an application, refused to recognize it.

It is however stoutly maintained that upon the filing as required by the latter part of said section of the report therein mentioned, as was done here, there is duly established such a claim to a lease that the Exchequer Court can give relief in regard to it.

There is not created in that case any more than upon the mere filing of the application a contract or any tangible right that a court can enforce.

The case of Farmer v. Livingstone[2] presents similar features. There the applicant for a homestead presented all the statute required of such an applicant,

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and made his application therefor and paid the statutory fee of ten dollars, but did not get a receipt or anything to shew he had been granted a right of entry upon the land yet he went into actual possession. It was held he had no claim of which the court could take cognizance. I think the reasoning upon which this court reached its conclusions in that case leads to our being bound to pause before saying that there was in these cases any right in law which could be recognized.

We need not however go so far as that reasoning might carry one.

There the court seemed to accept without limitation the theory that statutes prescribing a duty for a public officer might be treated as directory and as conferring no right.

I express no opinion on that.

I prefer to point out that this regulation, which at all events prescribed certain things to be done and pointed out certain paths for an applicant to follow, imposed upon the minister of the Crown duties to be discharged and conferred powers to be exercised by him before the applicants could have any rights enure to them or either of them under the regulations.

The non-discharge of one of these duties of the minister seems to me, when considered in connection with the peculiar facts before us, quite clearly destructive of any claim each appellant makes here. That is set forth in the second regulation which is as follows:

Each alternate claim shall, until otherwise ordered by the Minister of the Interior, be reserved.

Now we find Frooks' claim preceded Smith's and the latter defined his as follows:

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Commencing at the lower end boundary of F. D. Frooks' application on Flat Creek, thence extending down a stream a distance of five miles, and in width from summit to summit.

The minister never decided that this Smith claim which I take it then became alternative to that of Frooks could be open to any one.

Until there was had such a necessary determination under the regulations he could have no right.

Then, as to Frooks, he later, by permission of the department, so amended his claim as to cover both sides of the creek, including thereby new territory.

I do not think that can be treated as such a decision of the questions raised by section 2 of the regulations as to enure to Smith's benefit for we have nothing to shew that his application was considered in that connection.

And as to this amendment of Frooks' claim, made as it was in 1903, I think it must be held as something done by him that brings him and his claim under the amended regulations of 19th May, 1902, which rendered it necessary to get the consent of the commissioner which never was given.

It seems almost impossible to render new territory, then clearly under the new regulations, subject to the administration of old and repealed regulations without at least some express declaration on the part of the Crown that such old regulations were to be held applicable thereto.

Indeed it would seem as if such a thing had by the repeal of the regulations become beyond the power of the minister to declare.

In any way one looks at the matter it is to be observed that the sanction of the minister was necessary to confer any right.

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It never was given. Nothing ever was granted. Nothing existed but uncompleted negotiations.

I think the appeal should be dismissed with costs.

Maclennan J.—I agree in the opinion stated by Mr. Justice Duff.

Duff J.—The appellant, Smith, applied on the 28th April, 1900, for a lease of a tract of mining land in the Yukon Territory under the regulations then in force,

for the disposal of mining locations to be worked by the hydraulic or other mining process,

(hereinafter referred to as the "hydraulic regulations").

On the 2nd day of February, 1904, an order was passed by the Governor-General in Council[3], by which,

the regulations for the disposal of mining locations in the Yukon Territory to be worked by the hydraulic mining process, established by the order-in-council of the 3rd of December, 1898, and amended by subsequent orders-in-council, were rescinded and the Minister of the Interior was authorized to deal in accordance with the provisions of the said regulations with all leases already issued and with all applications which have already been granted under the provisions thereof.

The Crown contends that, by this order-in-council, the power of the Minister of the Interior to issue leases of locations for hydraulic mining was abrogated (except in respect of "applications" which had "already been granted under the provisions" of the regulations referred to); and, therefore, that since the appellant's application was not one of those which had thus "already been granted" the minister was by the order-in-

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council deprived of authority to issue a lease in respect of it. The appellant attacks this position in two ways. He says, first, that before the order-in-counsel of February, 1904, was passed his application had been granted within the meaning of that instrument; and secondly, assuming that not to be so, he had by presenting his application merely, acquired a status respecting the land applied for, and that the order-in-council ought to be construed as not affecting that status to his prejudice.

The first of these contentions is based upon the following communication from the Secretary of the Department of the Interior to the appellant:—

Ottawa, 9th of April, 1901.

Sir:

I beg to acknowledge the receipt of your letter of the 27th of February last, addressed to the Deputy Minister, with respect to the application made by you for a lease for hydraulic mining purposes of a tract of land situated on Flat Creek, in the Yukon Territory, and in reply to inform you that the reports required by section 3 of the hydraulic mining regulations, have now been received in this Department, and you are given six months from this date within which to file in the office of the Gold Commissioner at Dawson, the returns of the survey of the location in question, upon the conditions, however, that the ground included in the location will be open to placer mining entry, up to the date upon which such returns are filed with the Gold Commissioner.

Your very obedient servant,

P. G. Keyes,

Secretary.

E. W. Smith, Esq.,

Comptroller's Office,

Dawson, Y.T.

This letter, the appellant argues, was an acceptance of his application. It seems to be very clear that it was a distinct notice to him that the application was not accepted and would not be accepted or acted upon before the returns referred to in it should be furnished.

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In order to appreciate fully the effect of this communication as touching the appellants' contention, it is necessary to notice the terms of the 13th clause of the hydraulic regulations. That clause directed that "when it is decided to hold any ground" with a view to disposing of it under those regulations, notice of that decision should be posted in the office of the mining recorder for the district; and it was further declared by the same clause that thereafter no claim professedly located under the Placer Mining Regulations within the area affected by such a notice should have any legal validity. The statement in the letter that the tract applied for would still be open to entry under the placer mining regulations conveyed a very obvious warning that no decision of the character referred to in the 13th clause of the hydraulic regulations had yet been arrived at; and consequently that the question was yet in abeyance whether that tract would (in the words of that clause) be

held for the purpose of being included in locations under the hydraulic regulations.

That upon any application for a lease under the hydraulic regulations there was always this preliminary question to be passed upon by the Minister of the Interior is made very clear by this clause; and indeed is, apart from this clause, manifest from the tenor of the regulations as a whole. As regards the area embraced within appellant's application, that question —thus expressly held open by the letter quoted— still remained an open question when the order-in-council of the 2nd February, 1904, was passed. In such circumstances it would appear to be beyond dispute that the appellant's application cannot be.

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brought within the category of "applications already granted" within the meaning of that instrument.

The second contention fails for substantially the same reasons. The appellant relies upon the language of the order-in-council of the 2nd of March, 1900, which is as follows:—

Whereas it is provided by clause 3 of the regulations for the disposal of mining locations in the Yukon Territory, to be worked by hydraulic or other mining process, made by order-in-council of 3rd December, 1898, as amended by order-in-council dated 24th October, 1899, that leases may be issued to applicants who can furnish evidence that they prospected the location applied for prior to December, 1898, and

Whereas it is now deemed that it would be in the public interest if the said regulations were amended so that in the future any person who files an application for a location may obtain a lease thereof, without competition, provided the location has been prospected prior to the date of his application:

Therefore His Excellency by and with the advice of the Queen's Privy Council for Canada, is pleased to order that clause 3 of the above mentioned regulations shall be and the same is hereby amended to read as follows:—

To any person who files an application in the Department of the Interior at Ottawa for a location previously prospected by him or his authorized agent at the time the location was prospected, a lease will be issued provided he is the first qualified applicant therefor. Before the issue of any such lease there shall be filed in the Department of the Interior, at Ottawa, a report from the Gold Commissioner to the effect that it has been proved to his satisfaction that the applicant himself, or a person acting for him, was upon and actually prospected prior to the date of the application the ground included in the location, and that the ground included in the location is not being worked and is not suitable to be worked under the regulations governing placer mining.

The contention is that this order-in-council constituted an offer to the world, upon the acceptance of which by the filing of an application alone, a present interest in, together with a right to a lease of, the ground applied for became vested in the appellant; and that—this interest being, as well as this right, "a right or privilege acquired, accrued or accruing" under

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the hydraulic regulations, within the meaning of sec. 19, sub-sec. (c) ch. 1, R.S.C. ("The Interpretation Act")— neither the interest nor the right could under the express terms of that enactment be affected by the revoking of those regulations.

I cannot accept this view for two reasons. First, the hydraulic regulations manifestly invested the minister with the responsibility not only of pronouncing upon the preliminary question already referred to —whether, that is to say, the lands applied for should be reserved for disposal under the hydraulic regulations,—but, in addition, assuming that question decided in favour of the applicant, the further duty of determining first of all the priorities among rival claimants and then the extent of the location and the conditions of the lease to be granted. In face of this, I do not see how it is possible to read the order-in-council of March, 1900, as bestowing upon an applicant in consequence of his application alone, any present interest in .the land; or as making the application in itself the basis of any claim of a character sufficiently definite to enable a court to take cognizance of it. Not until the application was accepted certainly,—and perhaps not until the parties had executed a lease or done what the law would regard as equivalent to the execution of a lease,—would any such right or interest come into existence. A status so indefinite—resting so largely in the discretionary policy of a public department,—cannot I think be fairly described as a right or privilege either "acquired" or "accrued" or "accruing."

Again the interpretations ordained by the "Interpretation Act" must always yield to an unmistakable expression of intention in the enactment to be construed;

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indeed these interpretations are by the express terms of the Act made non-applicable if "a contrary intention appears." Now the order-in-council of the 2nd February, 1904, dealt very explicitly with applications of the class to which the appellant's belonged, applications that is to say which were still under consideration when the order-in-council was passed; and it was in respect of those applications which at that date had been "already granted," and in respect of those only, that the minister was by the order-in-council authorized after that date to issue leases.

The intention was plainly manifested that save in pursuance of such an application leases should no longer be granted; as regards all other applications the powers of the minister were at once and wholly revoked. Where the law making authority has so unequivocally expressed its meaning there seems to be no room to apply the enactment of the "Interpretation Act."

The appeal should therefore be dismissed with costs.

These considerations apply also to Frooks' appeal in which, accordingly, the same order should be made.

Appeals dismissed with costs.

Solicitor for the appellants: T. Mayne Daly.

Solicitor for the respondent: George J. Shepley.