Reference re Saskatchewan Natural Resources, [1931] SCR 263

Supreme Court of Canada

Reference re Saskatchewan Natural Resources, [1931] S.C.R. 263

Date: 1931-02-03

In The Matter of a Reference Arising Out of The Transfer of The Natural Resources to The Province of Saskatchewan.

1930: October 14; 1931: February 3.

Present: Anglin C.J.C. and Duff, Newcombe, Rinfret, Lamont, Smith and Cannon JJ.

Constitutional law—Rights as between Dominion of Canada and Province of Saskatchewan, as to lands vested in the Crown at time of admission into Canada of Rupert’s Land and North-Western Territory and now within boundaries of Saskatchewan—B.N.A. Acts, 1867, 1871; Rupert’s Land Act, 1868; The Queen’s Order in Council of June 23, 1870; Saskatchewan Act (Can., 1905, c. 42).

Upon Rupert’s Land and the North-Western Territory being admitted into and becoming a part of the Dominion of Canada under the Queen’s Order in Council of June 23, 1870, all lands (“lands” including

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lands, mines, minerals and royalties incident thereto) then vested in the Crown and now lying within the boundaries of the province of Saskatchewan were vested in the Crown in the right of the Dominion of Canada; and not in the right of, or to be administered for, any province or provinces to be established within such area; nor to be administered for the benefit of the inhabitants from time to time of such area (otherwise than as sharing in any benefit which might accrue to them under the dispositions of Parliament); and the Dominion is under no obligation to account to the Province of Saskatchewan for any lands within its boundaries alienated by the Dominion prior to 1st September, 1905 (when the Saskatchewan Act, Dom., 1905, c. 42, came into force).

The B.N.A. Act, 1867 (especially ss. 146, 109, 91); Rupert’s Land Act, 1868, c. 105 (Imp.); The Queen’s Order in Council of June 23, 1870 (and the Addresses from the Houses of the Parliament of Canada therefor); the B.N.A. Act, 1871; the Saskatchewan Act (supra), and other statutes considered. The Queen v. Burah, 3 App. Cas. 889, at 904-5; Hodge v. The Queen, 9 App. Cas. 117, at 132; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437, at 441-3; Riel v. Regina, 10 App. Cas. 675, at 678-9; Att.-Gen. for Alberta v. Att.-Gen. for Canada, [1928] A.C. 475, at 484-6, and Ont. Mining Co. v. Seybold, [1903] A.C. 73, at 79, cited.

REFERENCE, by order of His Excellency the Governor General in Council, to the Supreme Court of Canada, pursuant to section 55 of the Supreme Court Act, of certain questions which arose in connection with the negotiations between the Government of the Dominion of Canada and the Government of the Province of Saskatchewan looking toward the conclusion of an agreement for the transfer to the Province of its natural resources. The questions referred to the Court were as follows:

1. Upon Rupert’s Land and the North-Western Territory being admitted into and becoming a part of the Dominion of Canada under Order in Council of June 23rd, 1870, were all lands then vested in the Crown and now lying within the boundaries of the Province of Saskatchewan vested in the Crown:—

(a) in the right of the Dominion of Canada, or

(b) in the right of any province or provinces to be established within such area, or

(c) to be administered for any province or provinces to be established within such area, or

(d) to be administered for the benefit of the inhabitants from time to time of such area?

2. Is the Dominion of Canada under obligation to account to the Province of Saskatchewan for any lands

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within its boundaries alienated by the Dominion of Canada prior to September 1st, 1905?

(By admission, throughout the said questions the term “lands” means and includes “lands, mines, minerals and royalties incident thereto”).

C. J. Doherty K.C. and A. E. Fripp K.C. for the Attorney General for Canada.

A. E. Bence K.C., G. H. Barr K.C. and M. A. MacPherson K.C. for the Attorney General for Saskatchewan.

J. F. Lymburn K.C. and W. S. Gray K.C. for the Attorney General for Alberta.

F. H. Chrysler K.C. for the Attorney General for Manitoba.

The judgment of the court was delivered by

Newcombe J.—The Governor General in Council, by a minute approved on 3rd May, 1930, submits two questions for hearing and consideration, upon the narrative set out in the Order in Council that

The Committee of the Privy Council have had before them a report, dated May 2, 1930, from the Minister of Justice, stating that, in connection with negotiations with the Government of the Province of Saskatchewan looking toward the conclusion of an agreement for the transfer to the Province of its natural resources, the said Government has raised the question of the liability of Canada to render to the Province an account of its dealings, prior to September 1, 1905, with lands lying within the provincial boundaries as now denned, and it is desirable, in order to permit of the execution of such an agreement, that this question should be determined by the reference to the Supreme Court of Canada of questions expressed in a form which the Government of the Province considers appropriate to obtain the judgment of the Court on the contention it has put forward.

The Minister further states that a submission in the form hereto attached has accordingly been prepared on behalf of the Government of the Province, such submission containing certain questions and certain admissions of fact to which it is desirable to agree.

The Minister, therefore, recommends that the said submission be referred to the Supreme Court of Canada pursuant to Section 55 of the Supreme Court Act for hearing and consideration, and in order to obtain answers to the questions in the said submission set forth.

For the purpose of the submission, the following facts are admitted:

(a) The area now lying within the boundaries of the Province of Saskatchewan formed a part of Rupert’s Land and the North-Western Territory which were admitted into and became a part of the Dominion of Canada under Order in Council of June 23rd, 1870.

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(b) From the coming into force of the said Order in Council until September 1st, 1905, portions of the said area were from time to time alienated by the Dominion of Canada.

(c) Throughout the following questions the term “lands” means and includes “lands, mines, minerals and royalties incident thereto.”

Following and subject to the admissions, the questions are stated as follows:—

1. Upon Rupert’s Land and the North-Western Territory being admitted into and becoming a part of the Dominion of Canada under Order in Council of June 23rd, 1870, were all lands then vested in the Crown and now lying within the boundaries of the Province of Saskatchewan vested in the Crown:—

(a) in the right of the Dominion of Canada, or

(b) in the right of any province or provinces to be established within such area, or

(c) to be administered for any province or provinces to be established within such area, or

(d) to be administered for the benefit of the inhabitants from time to time of such area?

2. Is the Dominion of Canada under obligation to account to the Province of Saskatchewan for any lands within its boundaries alienated by the Dominion of Canada prior to September 1st, 1905?

It was directed, by order of a Judge, in conformity with the practice, that the Attorneys General of all the provinces should be notified of the hearing, and should be at liberty to file factums of their respective arguments and to appear personally or by counsel.

At the hearing, counsel on behalf of the Attorney General of Saskatchewan submitted that question 1 (a) should be answered in the negative; that each of the alternatives of question 1 should be answered in the affirmative, and that question 2 should also be answered in the affirmative. The province of Alberta adopted and relied upon the argument submitted on behalf of Saskatchewan. But none of the other provinces appeared.

An Act of the Dominion, entitled An Act respecting the transfer of the Natural Resources of Saskatchewan, cap. 41 of 1930, was assented to on 30th May, 1930, approving an agreement set out in the schedule thereto, dated 20th March, 1930, between the Government of the Dominion and the Government of Saskatchewan; that agreement having previously been approved by the provincial legislature by cap. 87 of 1930, which received the Lieutenant Governor’s assent on 10th April. Subsequently, by Imperial Act, c. 26 of 1930, assented to on 10th July, the agreement was confirmed and declared to have the force of law.

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The reasons which led the province to advocate the above answers are to be gathered from the argument as set out in the provincial factum and in the recitals of the agreement of 20th March, 1930, to which Saskatchewan is a party. I shall not attempt to expound the meaning of these recitals otherwise than by quoting the text as follows:—

Whereas by section twenty-one of the Saskatchewan Act, being chapter forty-two of the four and five Edward the Seventh, it was provided that “All Crown lands, mines and minerals and royalties incident thereto, and the interest of the Crown in the waters within the Province under the North-west Irrigation Act, 1898, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, subject to the provisions of any Act of the Parliament of Canada with respect to road allowances and roads or trails in force immediately before the coming into force of this Act, which shall apply to the said Province with the substitution therein of the said Province for the North-west Territories;”

And whereas the Government of Canada desires that the Province should be placed in a position of equality with the other provinces of Confederation with respect to the administration and control of its natural resources as from its entry into Confederation in 1905;

And whereas the Government of the Province contends that, before the Province was constituted and entered into Confederation as aforesaid, the Parliament of Canada was not competent to enact that the natural resources within the area now included within the boundaries of the Province should vest in the Crown and be administered by the Government of Canada for the purposes of Canada and was not entitled to administer the said natural resources otherwise than for the benefit of the residents within the said area, and moreover that the Province is entitled to be and should be placed in a position of equality with the other Provinces of Confederation with respect to its natural resources as from the fifteenth day of July, 1870, when Rupert’s Land and the North-Western Territory were admitted into and became part of the Dominion of Canada;

And whereas it has been agreed between Canada and the said Province that the said section of the Saskatchewan Act should be modified and that provision should be made for the determination of the respective rights and obligations of Canada and the Province as herein set out.

The expression, “natural resources,” is not defined, but it is evidently thought to include the public lands within the province; and the controversy is concerned only with the lands, situate within the provincial boundaries, which belonged to the Crown when Rupert’s Land and the Northwestern Territory became part of the Dominion, and their proceeds or revenues.

In the case of a Reference as to the constitutional validity of sec. 17 of “The Alberta Act,”[1], I had occasion to

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outline the legislative steps by which the prairie province of Alberta was constituted and acquired its provincial status under the Alberta Act, c. 3 of the Dominion; 1905; and it would be mere repetition, and therefore unnecessary, to reproduce that narrative here, as the facts relating to Saskatchewan are identical. But I shall take the opportunity to rectify a slip which, unfortunately, has found its way into the report of my judgment in the Alberta case, whereby the date of the Order in Council, admitting these territories into the Dominion from and after 15th July, 1870, is printed as 23rd July, 1870, instead of the true date, which is one month earlier.

When the case was submitted, it appeared convenient to hear, at the opening, the argument on behalf of the province; and the Court, having taken the matter into consideration, find it unnecessary to hear the learned counsel who appeared for the Attorney-General of Canada.

The argument whereby it is sought to maintain the provincial answers is avowedly meant to support the pretensions set up by the factum of Saskatchewan, and I shall endeavour briefly to summarize it.

First, it is said that, when Rupert’s Land and the Northwestern Territories were admitted into the Union, they became, by express provision of sec. 146 of the British North America Act, 1867, “subject to the provisions of this Act”; and it is urged that, since, by sec. 109, the four original provinces retained their Crown Lands at the Union and had, by the fifth enumeration of sec. 92, exclusive legislative power for “The management and sale of the public lands belonging to the province and of the timber and wood thereon,” these provisions, upon the introduction of the Territories into the Dominion, had unavoidably the effect to appropriate to the Territories, or to exclusively territorial purposes, the Crown Lands comprised therein; and, consequently, that the Parliament of Canada never had the authority to administer these lands, and certainly not to administer them for Dominion purposes, as subsequently provided by the Dominion Lands Act, cap. 23 of 1872, and the succeeding Acts regulating the administration of Dominion lands which, as amended and revised, remain in operation to the present time.

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Secondly, it is said that the provisions of the British North America Act, 1871, cap. 28 of the United Kingdom, were necessary in order to validate the Manitoba Act, cap. 3 of the Dominion, 1870, and equally so for enabling the Parliament of Canada to enact the Saskatchewan and Alberta Acts of 1905; that the authority of the Dominion to constitute the province of Saskatchewan thus depends upon the Act of 1871, and, to quote the submission, that “There is nothing in the Act authorizing the Dominion to hold the public domain for the purposes of Canada.” It is recalled that there is a broad distinction between legislative jurisdiction and proprietary rights and that the conferring of the one affords no presumption of the transfer of the other; and it is suggested that the Crown, as represented by the Dominion, has no capacity to enjoy the beneficial interest in any of the public lands of the country, except, under sec. 117, for fortification or defence, and the property appropriated to Canada under the third schedule of the Act of 1867.

Thirdly, even if the Dominion, after the admission of the Territories into the Union, and after the enactment of the British North America Act, 1871, had power to legislate for the disposition of the Crown lands in the Territories, it is argued that, upon the passing of the Northwest Territories Acts, whereby the Parliament of Canada set up an elective assembly and provided for the government of the Territories, the Parliament, by so doing, became divested of any powers which it previously may have had for the administration of the territorial lands; and that by the operation of these Acts the public lands” were vested in the Crown in the right of the inhabitants of the area, until the province was created in 1905.”

These are the points relied upon by the province of Saskatchewan, and they are plainly in conflict with the terms of the Saskatchewan Act, c. 42 of 1905, as enacted. The statute proceeds upon two recitals, whereby the British North America Act, 1871, is invoked as the authority in the execution of which the Parliament of Canada may establish new provinces in the territories that form part of the Dominion, and make “provision for the constitution and administration of any such province, and for the passing of laws for the peace, order and good government of

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such province, and for its representation in the said Parliament of Canada”; and it is declared expedient to establish, as a province, the territory thereinafter described, and to make provision for the government and representation thereof. The territory comprised within the specified boundaries is accordingly constituted as a province of the Dominion, under the name of Saskatchewan; and it is declared, by sec. 3, that

The provisions of The British North America Acts, 1867 to 1886, shall apply to the province of Saskatchewan in the same way and to the like extent as they apply to the provinces heretofore comprised in the Dominion, as if the said province of Saskatchewan had been one of the provinces originally united, except in so far as varied by this Act and except such provisions as are in terms made, or by reasonable intendment may be held to be, specially applicable to or only to affect one or more and not the whole of the said provinces.

Follow provisions for the representation of the new province in the Senate and House of Commons; the constitution of the executive and the provincial legislature; the application of existing laws and official powers and functions; the continuance of the jurisdiction of the Supreme Court of the Northwest Territories until superseded by provincial legislation; special provisions with respect to societies, associations and joint stock companies incorporated by the authority of the legislature of the Northwest Territories; modifications of sec. 93 of the British North America Act, 1867, with respect to education; provincial subsidies; and, by secs. 20 and 21, it is provided as follows:

20. Inasmuch as the said province will not have the public land as a source of revenue, there shall be paid by Canada to the province by half-yearly payments, in advance, an annual sum based upon the population of the province as from time to time ascertained by the quinquennial census thereof, as follows:—

The population of the said province being assumed to be at present two hundred and fifty thousand, the sum payable until such population reaches four hundred thousand, shall be three hundred and seventy-five thousand dollars;

Thereafter, until such population reaches eight hundred thousand, the sum payable shall be five hundred and sixty-two thousand five hundred dollars;

Thereafter, until such population reaches one million two hundred thousand, the sum payable shall be seven hundred and fifty thousand dollars;

And thereafter the sum payable shall be one million one hundred and twenty-five thousand dollars.

2. As an additional allowance in lieu of public lands, there shall be paid by Canada to the province annually by half-yearly payments, in

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advance, for five years from the time this Act comes into force, to provide for the construction of necessary public buildings, the sum of ninety-three thousand seven hundred and fifty dollars.

21. All Crown Lands, mines and minerals and royalties incident thereto, and the interest of the Crown in the waters within the province under The North-west Irrigation Act, 1898, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, subject to the provisions of any Act of the Parliament of Canada with respect to road allowances and roads or trails in force immediately before the coming into force of this Act, which shall apply to the said province with the substitution therein of the said province for the Northwest Territories.

Then there is a clause regulating the division of assets and liabilities as between Saskatchewan and Alberta; a provision that nothing in the Act shall prejudice or affect the rights or properties of the Hudson’s Bay Company, as contained in the conditions under which that company surrendered Rupert’s Land to the Crown; and, by sec. 24, it is enacted that

The powers hereby granted to the said province shall be exercised subject to the provisions of section 16 of the contract set forth in the schedule to chapter 1 of the statutes of 1881, being an Act respecting the Canadian Pacific Railway Company.

The legislative intent as to the destination of the lands seems thus to be plainly enough expressed; and compensation has been provided and presumably paid, in lieu of the lands, which it is declared, by the constituting authority, that the province is not to have. It is admitted, and at the foundation of the whole case, that Rupert’s Land and the Northwestern Territory were, by the Queen’s order of 23rd June, 1870, admitted into and became part of the Dominion on 15th July of that year; by the express terms of the Order in Council, the Parliament of Canada had, from that day, full power and authority to legislate for the future welfare and good government of the Northwestern Territory; and, by the provisions of the Rupert’s Land Act, cap. 105 of the United Kingdom, 1868, and of the Order in Council, upon the admission of Rupert’s Land, which includes by the definition, the whole of the lands and territories held or claimed to be held by the Hudson’s Bay Company, it thereupon became lawful for the Parliament of Canada

from the date aforesaid, to make, ordain and establish within the land and territory so admitted as aforesaid, all such laws, institutions and ordinances, and to constitute such courts and officers as may be necessary for the peace, order and good government of Her Majesty’s subjects and others therein.

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Moreover, by secs. 91 and 146 of the British North America Act, 1867, it had been enacted that it should

be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces;

and that it should be lawful for the Queen by and with the advice of her Privy Council,

on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada, to admit Rupert’s Land and the Northwestern Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.

As to the nature and amplitude of the legislative powers conferred by the Imperial Parliament in the creation of subordinate governments of the Empire, it was explained in the Privy Council, by Lord Selborne, in The Queen v. Burah[2], that

The Indian legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.

To the like effect are the observations of Sir Barnes Peacock, in Hodge v. The Queen[3], with reference to the Canadian provinces. And these expressions were quoted with approval by Lord Watson in Liquidators of the Maritime

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Bank of Canada v. Receiver-General of New Brunswick[4].

In Riel v. Regina[5], the petitioner was tried and convicted of treason under the procedure enacted by the Northwest Territories Act, 1880, c. 25. S. 76 conferred upon the stipendiary magistrates in the Territories jurisdiction to hear and determine criminal offences, including treason, with the intervention of a jury of six. It was urged before the Board, upon application for special leave to appeal, that the Dominion Parliament had no power to deprive the petitioner of a right which he claimed to have under English law to trial before a judge with a jury of twelve; but Lord Halsbury, L.C., delivering the judgment, at pp. 678-9, said:

It appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order and good government cannot, as matters of law, be provisions for peace, order and good government in the territories to which the statute relates, and further that, if a court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order and good government, that they would be entitled to regard any statute directed to those objects, but which a court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion Parliament to enact.

Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country have been authorized in Her Majesty’s Indian Empire. Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mischievous consequence.

Giving due effect to the Dominion powers of legislation, as expounded by or resulting from these authorities, it is very difficult to discover any maintainable ground in the pretension that the province of Saskatchewan, whether on behalf of itself or for the inhabitants of those parts of the Northwest Territories which are embraced in the province, has constitutional rights which the Queen did not, either in Council or in Parliament, bestow upon the territories or upon the province, and which the Parliament of Canada, by the Saskatchewan Act, which operates irrevocably under the British North America Act, 1871, declared that the province should not possess.

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It will be observed that, while, by sec. 146 of the British North America Act, 1867, Rupert’s Land and the Northwestern Territories, or either of them, may be admitted into the Union on such terms and conditions in each case as are in the Addresses “expressed” and as the Queen thinks fit to approve, “subject to the provisions of this Act,” it is declared, by sec. 4 of the British North America Act, 1871, without any qualification, that the Parliament of Canada may, from time to time, make provision for the administration, peace, order and good government of any territory not for the time being included in any province; and, whether you consider one or the other, or both of these provisions, as applicable, there are no terms or conditions, expressed in the Addresses, or sanctioned by the terms of Union, with which the legislation of the Dominion conflicts, or is alleged to conflict.

As to the effect of sec. 3 of the Saskatchewan Act, the corresponding provision of the Alberta Act was considered by the Privy Council in Attorney-General for Alberta v. Attorney-General for Canada[6], where Lord Buckmaster, after reviewing the legislation, which differs in no material respect from that affecting Saskatchewan, including the fundamental provisions of sec. 3 of the Alberta Act, said that, reading the whole Act together, their Lordships

regard the effect of this section as placing the Province of Alberta in the same position as the other Provinces in regard to property, except as varied by the statute, either by express terms or reasonable implication. Sec. 21 is only sensible on this hypothesis, for unless it was assumed that it was required for the purpose of preserving the Crown rights in the property to which it relates, it would be meaningless, but if that be once assumed it follows that the property to which it does not relate is vested in the Crown, not for the purposes of Canada, but for the purposes of the Province of Alberta.

Other passages in Lord Buckmaster’s judgment are equally destructive of the argument which seeks to maintain the contention that there is some occult principle of law, not depending upon and indeed proof against legislation, whereby a province or territory of Canada or its inhabitants must have and enjoy, for its or their exclusive benefit, the waste lands of the Crown which lie within its borders. His Lordship said, referring to s. 109 of the British North America Act, 1867, a provision upon which the province puts much stress,

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The territory out of which the Province of Alberta is constituted was unaffected by this section, but on the admission of the North West Territories into the Dominion of Canada in 1870 and the passing of the British North America Act, 1871, became subject to the laws of the Parliament of Canada. It therefore followed that the Province could never, apart from statute, be in the position of owning lands, mines, minerals and royalties.

And it follows also that the legislation of the Dominion was paramount and unaffected by any powers granted to the legislature or the local government of the Territories, or any territorial exercise of those powers which might prove to be repugnant.

No doubt there is, as counsel for the province suggests, a distinction recognized between legislative powers and proprietary rights, and the Crown may, for one purpose, be represented by the Dominion, and, for the other purpose, by a province, as in the case of the Inland Fisheries or Indian Lands; but it is in perfect conformity with the Canadian system that Dominion rights of property should be subject to the legislative control of the Parliament; and it is expressly so with regard to what is described generally in the first enumeration of sec. 91 of the Act of 1867, as “the public debt and property.”

It is objected that, although the Territories were made part of the Dominion and became subject to its legislative control, there was no grant or conveyance of the lands by the Imperial Crown to the Dominion; but that was not requisite, nor was it the proper method of effecting the transaction. It is not by grant inter partes that Crown lands are passed from one branch to another of the King’s government; the transfer takes effect, in the absence of special provision, sometimes by Order in Council, sometimes by despatch. There is only one Crown, and the lands belonging to the Crown are and remain vested in it, notwithstanding that the administration of them and the exercise of their beneficial use may, from time to time, as competently authorized, be regulated upon the advice of different Ministers charged with the appropriate service. I will quote the words of Lord Davey in Ontario Mining Company v. Seybold[7], where his Lordship, referring to Lord Watson’s judgment in the St. Catherines Milling Case[8], said

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In delivering the judgment of the Board, Lord Watson observed that in construing the enactments of the British North America Act, 1867, “it must always be kept in view that wherever public land with its incidents is described as ‘the property of or as ‘belonging to’ the Dominion or a province, these expressions merely import that the right to its beneficial use or its proceeds has been appropriated to the Dominion or the province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Grown.” Their Lordships think that it should be added that the right of disposing of the land can only be exercised by the Crown under the advice of the Ministers of the Dominion or province, as the case may be, to which the beneficial use of the land or its proceeds has been appropriated, and by an instrument under the seal of the Dominion or the province.

The province has, in my opinion, failed to advance any substantial reason by which to justify the answers which it suggests.

I would, on the contrary, answer to question one, (a) “Yes”; (b) “No”; (c) “No.”; (d) “Not otherwise than as sharing in any benefit which might accrue to them under the dispositions of Parliament.” I would answer question two in the negative.

Questions answered accordingly.

Solicitor for the Attorney-General of Canada: W. Stuart Edwards.

Solicitor for the Attorney-General of Saskatchewan: L. P. Sherwood.

Solicitor for the Attorney-General of Alberta: W. S. Gray.