Québec (A.G.) v. Healy, [1987] 1 SCR 158

Québec (A.G.) v. Healy, [1987] 1 S.C.R. 158

 

Edouard Healey    Appellant

 

v.

 

Attorney General of the province of Quebec                                   Respondent

 

indexed as: quebec (attorney general) v. healey

 

File No.: 17862.

 

1986: October 28; 1987: March 5.

 

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

 

 

on appeal from the court of appeal for quebec

 

                   Civil law ‑‑ Ownership ‑‑ Three‑chain reserve ‑‑ Nature of right conferred on Crown by three‑chain reserve between 1884 and 1919 ‑‑ Whether reserve in full ownership or servitude for fishing purposes? ‑‑ Act to amend the Quebec fish and game laws, S.Q. 1919, c. 31, s. 1 ‑‑ Quebec Fisheries' Act, R.S.Q. 1909, s. 2252 ‑‑ Act respecting Fisheries and Fishing, S.Q. 1899, c. 23, ss. 1, 4.

 

                   Statutes ‑‑ Retroactivity ‑‑ No express reference ‑‑ Intention of legislator to make statute retroactive ‑‑ Statute declaratory and interpreting ‑‑ Act to amend the Quebec fish and game laws, S.Q. 1919, c. 31, s. 1.

 

                   The purpose of this appeal is to determine whether, between June 1, 1884 and March 17, 1919, the three‑chain reserve constituted a reserve in full ownership by the Crown or a servitude for fishing purposes. Before the Act to amend the Quebec fish and game laws of 1919, s. 2252 of the Revised Statutes, 1909, dealing with this reserve provided that "Sales and free grants of lands belonging to the Crown are and have been since the 1st of June, 1884, subject to a reserve, for fishing purposes, of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province". The 1919 Act amended this section by replacing the words "for fishing purposes" with the words "in full ownership by the Crown". In this petition for ejectment of appellant and possession of the land occupied by him, made in 1977 pursuant to s. 50 of the Lands and Forests Act, respondent alleged that the land belonged to the Crown because it was on the three‑chain reserve. Appellant's ultimate predecessor in title had acquired this land by location ticket in 1904 and by letters patent in 1907. The Superior Court held that the reserve was only a fishing servitude and dismissed respondent's petition. The trial judge ruled that the 1919 Act was not retroactive and was an interpreting, not a declaratory Act. The Court of Appeal reversed the judgment. The Court concluded that: (1) the three‑chain reserve "for fishing purposes" had preserved the Crown's right of ownership from the outset; and (2) the 1919 Act was both interpreting and declaratory legislation.

 

                   Held: The appeal should be dismissed.

 

                   The right conferred on the Crown was one of full ownership from the time the three‑chain reserve was created on June 1, 1884. Though the 1919 Act contains no express provision making it retroactive or giving retroactive effect to the amendment made to s. 2252 of the Revised Statutes, 1909, the legislator's intent to make it retroactive can be deduced from the purpose of the legislation, the circumstances in which it was adopted and the procedure employed by the legislator. It can also be inferred from the only possible interpretation which is likely to make sense of it. When the 1919 Act was adopted, the debate on the nature of the right deriving from the three‑chain reserve "for fishing purposes" was in progress. Two judgments of the Superior Court had rejected the government's claim that it had reserved the right of ownership, and held that the three‑chain reserve was merely a fishing servitude. The legislator thus acted to confirm the government's right of ownership and to resolve the debate. He did this by amending the Act which created the reserve and which took effect as of June 1, 1884. The legislator did not alter the date. He simply substituted the words "in full ownership by the Crown" for the words "for fishing purposes", without any other change. This suffices to indicate that it was the legislator's intent to clearly indicate the nature of this right ab initio. Otherwise, s. 2252 as amended would have created two positions: a fishing servitude between June 1, 1884 and March 17, 1919 and full ownership after the latter date. There is nothing in the 1919 Act to demonstrate such an intent and this would be making a distinction which the Act does not make.

 

Cases Cited

 

                   Referred to: MacLaren v. Attorney‑General for Quebec, [1914] A.C. 258, rev'g (1912), 46 S.C.R. 656, aff'g (1911), 21 Q.B. 42; Patenaude v. W. C. Edwards & Co. (1915), 21 R.L. n.s. 523; Pardo v. Bingham (1869), L.R. 4 Ch. App. 735; Acme Village School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47; Upper Canada College v. Smith (1920), 61 S.C.R. 413.

 

Statutes and Regulations Cited

 

Act respecting Fisheries and Fishing, S.Q. 1899, c. 23, ss. 1, 4.

 

Act to amend and consolidate the laws relating to fisheries, S.Q. 1888, c. XVII, ss. 1 [s. 1375 of R.S.Q. 1888; repl. 1899, c. 23, s. 1], 3.

 

Act to amend the Quebec fish and game laws, S.Q. 1919, c. 31, s. 1.

 

Civil Code, art. 406.

 

Fisheries Act, R.S.Q. 1964, c. 203, s. 7.

 

Lands and Forests Act, R.S.Q. 1964, c. 92, ss. 41a. [ad. 1969, c. 58, s. 83; now R.S.Q., c. T‑9, s. 39], 50 [now R.S.Q., c. T‑9, s. 48].

 

Lands and Forests Act, R.S.Q., c. T‑9, ss. 39, 48.

 

Quebec Fisheries' Act, R.S.Q. 1909, s. 2252 [am. 1919, c. 31, s. 1].

 

Quebec Fisheries Act, R.S.Q. 1925, c. 83, s. 7.

 

Quebec Fisheries Act, R.S.Q. 1941, c. 154, s. 7.

 

Wild‑life Conservation Act, S.Q. 1969, c. 58, s. 83.

 

 

Authors Cited

 

Craies on Statute Law, 7th ed. by S. G. G. Edgar. London: Sweet & Maxwell, 1971.

 

Lacasse, Jean‑Paul. "Réserve des trois chaînes et gestion du domaine public foncier au Québec" (1977), 8 R.G.D. 101.

 

Maxwell on the Interpretation of Statutes, 12th ed. by P. St. J. Langan. London: Sweet & Maxwell, 1969.

 

Pigeon, Louis‑Philippe. Rédaction et interprétation des lois. Québec: Imprimeur de la Reine, 1965.

 

 

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 573, reversing a judgment of the Superior Court, [1979] C.S. 286, dismissing respondent's petition for an order for the ejectment of appellant. Appeal dismissed.

 

                   Dominique Langis and Claude‑Henri Gendreau, for the appellant.

 

                   Monique Hamel and Pierre Cimon, for the respondent.

                   English version of the judgment delivered by

 

1.                The Court‑‑We adopt the reasons for judgment written and circulated by our late and much respected Justice Chouinard during the Fall Term. The reasons follow.

 

2.                This is a petition for the ejectment of appellant and possession of the land occupied by him. This land is located on the shoreline of lake number three (3) of the seven (7) lakes on lot seventeen (17), range three (3) of Fleuriault Township, county of Matapédia. This petition is made pursuant to s. 50 of the Lands and Forests Act, R.S.Q. 1964, c. 92 (now R.S.Q., c. T‑9, s. 48), which prescribes:

 

                   50. If any purchaser, lessee or other person refuse or neglect to deliver up possession of the land after revocation or cancellation of the sale, grant, location, lease or occupation license thereof, or if any person be wrongfully in possession of public lands and refuses to leave or deliver up possession thereof, the Attorney‑General may, by a petition duly served upon the occupant of the land with at least six full days' notice of the date of its presentation, apply to a judge of the Superior Court, having jurisdiction in the district in which the land lies, for an order in the nature of a writ of possession.

 

                   Such petition shall be heard summarily, in term or out of term, on the date fixed by the notice or on any other subsequent date, as close thereto as possible, to which the judge may adjourn the hearing.

 

                   The judge, upon proof to his satisfaction that the right or title of the person to hold such land has been revoked or cancelled as aforesaid, or that such person is wrongfully in possession of public land, shall grant an order upon the purchaser, lessee or person in possession to leave such land and deliver up possession of same to the Minister or person authorized by him to receive the same.

 

                   Such order shall have the same force as a writ of possession, and the sheriff, or any bailiff or person to whom the same may be entrusted by the Minister for execution, shall execute the same in like manner as he would execute such writ in an action of ejectment or in a possessory action.

 

                   Thirty days after the expiration of the delay for execution, all the constructions and improvements made on the land described in the order, as well as all moveable property therein, shall become the property of the Crown without compensation.

 

                   The proceedings contemplated in this section shall be deemed summary matters and the costs shall be those of a first class action in the District Magistrate's Court.

 

3.                Respondent alleged that the land occupied by appellant belongs to the Crown because it is on the three‑chain reserve.

 

4.                In an article titled "Réserve des trois chaînes et gestion du domaine public foncier au Québec" (1977), 8 R.G.D. 101, Jean‑Paul Lacasse defines the three‑chain reserve as follows (at p. 102):

 

[TRANSLATION]  When we speak of a "reserve", it refers to rights which the Crown or the government retains for itself when there is a concession or grant of a piece of land. The "chains" are surveyor's chains, that is, units of measurement. A chain is sixty‑six feet. The expression "three‑chain reserve", therefore, always used in connection with the sale or grant of a piece of land along a waterway, refers to a strip of land 198 feet deep (some 61 meters) which the Crown reserves at the time the land along the lot in question is conceded or granted.

 

5.                The land which is at issue was bought by appellant in 1976. His ultimate predecessor in title, Alexis Parent, acquired it by location ticket in 1904 and by letters patent in 1907.

 

6.                The case at bar raises, as the Superior Court judge put it, [TRANSLATION]  "the entire problem of the three‑chain reserve which for the last hundred years academic writers, and to a lesser extent the courts, have been and are still debating". 

 

7.                Bisson J.A. of the Court of Appeal wrote:

 

                   [TRANSLATION]  At the heart of this appeal is the following question: what is the nature of the rights conferred on the Crown in right of Quebec by the three‑chain reserve, during the thirty‑five years between June 1, 1884 and March 17, 1919?

 

8.                The three‑chain reserve appeared in Quebec legislation for the first time in 1888, in the Act to amend and consolidate the laws relating to fisheries, S.Q. 1888, c. XVII (hereinafter the 1888 Act), s. 1 of which, under the heading "Fishing Leases" provided in subs. 1:

 

                   1. A reserve of at least three chains in depth of the lands bordering on the rivers and lakes in the Province shall be made at the time of the sale or gratuitous grant of the lands belonging to the Crown, for fishing purposes.

 

9.                Section 1(2) of this Act authorized the government to lease the three‑chain reserve:

 

                   2. These lands, as well as those already reserved for that purpose, may be leased, for a period not exceeding ten consecutive years, to the highest bidder when relating to salmon river . . .

 

10.              The first paragraph of s. 3 set out the lessee's rights:

 

                   3. The lease confers upon the lessee, for the time therein determined, the right to take and retain exclusive possession of the lands therein described, subject to the regulations and restrictions which may be established, and gives him the right to fish in the waters adjacent to such lands . . . .

 

11.              Finally, the last paragraph of s. 3 conferred right of passage over the three‑chain reserve on the person whose grant was affected thereby:

 

                   The general right of passage to and from the water shall also be reserved in leases, in favor of the occupants, if any, under title from the Crown, of lands immediately in rear of those leased.

 

12.              In the revision also undertaken in 1888, subs. 1 of s. 1, supra, became s. 1375 of the Revised Statutes.

 

13.              In 1899 the Act respecting Fisheries and Fishing, S.Q. 1899, c. 23 (hereinafter the 1899 Act), was adopted. Section 1 replaced the section dealing with the three‑chain reserve in the Revised Statutes of 1888 with a new section. Section 1375 of the Revised Statutes, which corresponded to subs. 1 of s. 1, supra, of the 1888 Act, became s. 1379 of the Revised Statutes. Its first paragraph was to the same effect as s. 1375, which it replaced, and read as follows:

 

                   1379. Sales and gratuitous grants of lands belonging to the Crown are subject to a reserve, for fishing purposes, of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province.

 

14.              Section 4 of the 1899 Act expressly made the provision retroactive to June 1, 1884:

 

                   4. All sales and gratuitous grants of Crown lands, made since the 1st June, 1884, are declared to have been made subject to the reserve for fishing purposes of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province.

 

15.              In the 1909, revision s. 1379 of the Revised Statutes, introduced by the 1899 Act, was merged with s. 4 of the same Act and became s. 2252 of the Revised Statutes, 1909. The first paragraph of s. 2252 stated:

 

                   2252. Sales and free grants of lands belonging to the Crown are and have been since the 1st of June, 1884, subject to a reserve, for fishing purposes, of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province.

 

16.              It can be seen that the words "for fishing purposes" are still there.

 

17.              Section 2252 was then amended by the Act to amend the Quebec fish and game laws, S.Q. 1919, c. 31 (hereinafter the 1919 Act), the nature and effect of which was the primary focus of the debate in the case at bar.

 

18.              Section 1 of the 1919 Act provided:

 

                   1. Article 2252 of the Revised Statutes, 1909, is amended:

 

a.                By replacing the words: "for fishing                                                 purposes", in the third line thereof, by         the words: "in full ownership by the                                     Crown";

 

19.              Following the amendments introduced by s. 1 of the 1919 Act, the wording of s. 2252 of the Revised Statutes, 1909 became:

 

Sales and free grants of lands belonging to the Crown are and have been since the 1st of June, 1884, subject to a reserve, in full ownership by the Crown, of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province.

 

20.              This was substantially the form taken by the corresponding provision in the Revised Statutes, 1925, the Quebec Fisheries Act, c. 83, s. 7, the Revised Statutes, 1941, the Quebec Fisheries Act, c. 154, s. 7, the Revised Statutes, 1964, the Fisheries Act, c. 203, s. 7, and s. 41a. of the Lands and Forests Act, inserted by s. 83 of the Wild‑life Conservation Act, S.Q. 1969, c. 58. Section 41a. of the Lands and Forests Act was the section in force when this action was instituted. Section 39 of the Lands and Forests Act, R.S.Q. c. T‑9, is now replacing s. 41a.

 

21.              On the face of it, s. 2252, as it stood following the amendment made by the 1919 Act, leaves no doubt as to the nature of the right reserved, namely full ownership, nor does it leave any doubt as to its retroactive nature and its application to all grants made after June 1, 1884. However, the question then is whether the amendment made by the 1919 Act applies from June 1, 1884 onwards, like s. 2252 in which it was inserted. What did the legislator intend? Is the 1919 Act itself retroactive? Is it simply interpreting legislation or is it declaratory and so retroactive? ‑‑ or can some other indication be found of the legislator's intent to make it retroactive?

 

22.              In his text Rédaction et interprétation des lois (1965), Louis‑Philippe Pigeon, later a member of this Court, tells us at pp. 49‑50:

 

[TRANSLATION]

 

                                        THE DECLARATORY PROVISION

 

                   One way of giving legislation retroactive effect is to make a statute declaratory. The fact that a legislature enjoys absolute authority means that the courts must comply with what the Legislature declares provided it is sufficiently explicit. Unlike a body exercising delegated authority, non‑retroactivity is only a rule of interpretation so far as the Legislature is concerned. It is not a constitutional limitation as it is in the U.S. The legislator therefore does not have to observe this rule and if it expresses its intent with sufficient clarity the courts must comply, Tolfree v. Clark (1943), 3 D.L.R. 684.

 

                   I should mention that, as a consequence of section 50 of our Interpretation Act, wording a statute in the present tense will not suffice to make it declaratory: the intention to make it declaratory must be formally stated. Section 50 reads: "No provision of law shall be declaratory or have a retroactive effect, by reason alone of its being enacted in the present tense". In order to override the presumption that it is not retroactive, therefore, the presumption that the statute does not have a declaratory effect, there must be a clear statement.

 

                                                                    ...

 

                                        THE INTERPRETING PROVISION

 

                   The interpreting provision is similar to the declaratory provision. An interpreting provision is not actually a true interpretation, because the very principle of the separation of powers means that it is the function of the courts to interpret legislation and the Legislature to enact it. Accordingly, when the Legislature interprets legislation which it has enacted, in reality this is not interpretation but legislation. Lest anyone regard this as a mere subtlety, I should at once mention a consequence which results from this. It is that interpreting legislation does not have retroactive effect unless it is made in the form of a declaratory statute. If the Legislature "interprets" legislation it has passed, from the standpoint of the courts such "interpretation" is legislation and thus subject to the rule that the new statute is not retroactive. The courts will accordingly give effect to the legislative interpretation once the Legislature has enacted it, but in respect of past events will apply the statute according to their interpretation, even if this is contrary to the subsequent legislative "interpretation". If the Legislature intends the courts to be bound by the legislative interpretation as to past events, it must make the statute declaratory: it is not declaratory simply because it is interpreting. If it is to be interpreting and declaratory, it must contain an unambiguous statement of the intent to impose the new meaning "ab initio".

 

23.              In Craies on Statute Law (7th ed. 1971), it is stated at p. 58:

 

                   For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective.

 

                   The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes.

 

24.              In Maxwell on the Interpretation of Statutes (12th ed. 1969), it is stated at p. 215:

 

Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (West v. Gwynne [1911] 2 Ch. 1, per Kennedy L.J. Cf. Smith v. Callander [1901] A.C. 297; Re Snowdon Colliery Co. Ltd. (1925) 94 L.J. Ch. 305.)

 

25.              And at p. 216: 

 

                   One of the most well‑known statements of the rule regarding retrospectivity is contained in this passage from the judgment of R. S. Wright in Re Athlumney, [1898] 2 Q.B. 551, at pp. 551, 552: "Perhaps no rule of construction is more firmly established than this ‑‑ that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only".

 

26.              Maxwell further writes, at p. 216:

 

                   If, however, the language or the dominant intention of the enactment so demands, the Act must be construed so as to have a retrospective operation, for "the rule against the retrospective effect of statutes is not a rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject‑matter with which the statute is dealing." (Carson v. Carson [1964] 1 W.L.R. 511, per Scarman J. at p. 517.)

 

27.              In  Acme Village School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47, Lamont J. writes at p. 50:

 

                   If, however, any doubt as to the legislative intention exists after a perusal of the language of the Act, then, as Lord Hatherly [sic], L.C., said in Pardo v. Bingham (1869), 4 Ch. App. 735, at 740:

 

                   We must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated.

 

28.              In Upper Canada College v. Smith (1920), 61 S.C.R. 413, Duff J., as he then was, wrote at p. 419 regarding the intent of the legislator:

 

. . . that intention may be manifested by express language or may be ascertained from the necessary implications of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was passed may be of such a character as in themselves to rebut the presumption that it is intended only to be prospective in its operation. 

 

Superior Court Judgment

 

29.              At [1979] C.S. 286, the Superior Court judge drew an initial conclusion, namely that lake number 3 is non‑navigable and floatable.

 

30.              This conclusion is not at issue.

 

31.              After making certain comments which were not challenged, regarding the various provisions governing navigable and floatable lakes and waterways on the one hand and those which are non‑navigable and floatable on the other, the judge proceeded to review the legislative history of the three‑chain reserve. The judge noted the two most important stages, the 1899 and 1919 Acts mentioned above. She further properly observed that the entire controversy centers on the replacement by the 1919 Act of the words "for fishing purposes" in s. 2252 by the phrase "in full ownership by the Crown".

 

32.              The judge reviewed the decisions regarding the nature of the right conferred on the government by the three‑chain reserve, and in particular Mac‑ Laren v. Attorney‑General for Quebec, [1914] A.C. 258, and Patenaude v. W. C. Edwards & Co. (1915), 21 R.L. n.s. 523. In MacLaren, Champagne J. of the Superior Court considered that the three‑chain reserve was simply a fishing servitude and that the ownership was in the recipient of the grant. This judgment of May 30, 1910 has not been published, but the gist of it is contained in the Court of Appeal judgment (1911), 21 Q.B. 42, at pp. 42‑46. The judgment in Patenaude is to the same effect as the Superior Court judgment in MacLaren.

 

33.              The MacLaren judgment was set aside by the Court of Appeal. An appeal to this Court (1912), 46 S.C.R. 656, was dismissed, as the Court was equally divided. The case was appealed to the Privy Council, which restored the judgment of Champagne J. However, it is important to note that the main point at issue in the Privy Council judgment concerned the navigability and floatability of the Gatineau River. The three‑chain reserve was nowhere mentioned.

 

34.              The Superior Court judge then considered the question of the retroactivity of the 1919 Act or the application to grants made between 1884 and 1919 of the amendment introduced by the 1919 Act, which replaced the words "for fishing purposes" in s. 2252 by the words "in full ownership by the Crown". After a thorough analysis of the arguments made for and against by the various authors who have discussed the point, the judge concluded that the 1919 Act is not retroactive. In her view, that Act is an interpreting and not declaratory Act. Finally, the judge favoured the view that the Crown's right is only a fishing servitude, not an ownership right. The argument of appellant Healey, asserting his ownership right, was thus valid and the motion for ejectment and possession was accordingly dismissed. The judge wrote, inter alia, at p. 308:

 

                   [TRANSLATION]  It is clear that the 1919 Act makes no mention of its being retroactive, either expressly or otherwise. So far as the question before the Court is concerned, its only effect is to replace a phrase in an earlier statute. Some authors appear to have assumed that the 1919 Act contains the words "in 1884 . . . were and are in full ownership by the Crown". That is not the case.

 

                   However, before 1919 the reserve for fishing purposes which the Crown retained through its various Acts (1888 and 1899) was undoubtedly retroactive to 1884; but there is no specific reference in the 1919 Act.

 

35.              A little further on, at p. 309:

 

                   [TRANSLATION]  In the present circumstances, there is no question that this is an interpreting and not a declaratory Act. If the legislator disagreed with the courts' interpretation, he could submit this question clearly to the courts if, as the applicant contended, the question had never been decided by them except indirectly.

 

36.              Further, at p. 310:

 

                   [TRANSLATION]  The intent to legislate for the past is nowhere stated, and as the Act affects the vested rights of owners of the land in question, there is no doubt that its retroactivity cannot be presumed. If the 1919 Act were held to be retroactive, the Crown would in effect be expropriating without compensation a large number of owners who have vested rights in this strip of land 198 feet deep. In the view of the Court, this would have required a clear and unambiguous provision or the adoption of a declaratory Act. If that was the legislator's intent, he certainly has not said so.

 

37.              At page 311, the Superior Court judge concluded:

 

                   [TRANSLATION]  All these factors may explain why, as Bouffard said [Traité du domaine (1921)], if the legislator intended by the 1919 Act to vest in the Crown what it believed it always had but was being denied by the courts, it was nowhere so said in accordance with either the rules of interpretation or the theory of vested rights. It certainly is not the Court's function to redress this error now, if there was an error.

 

                   For all these reasons, the Court comes to the conclusion that applicant's petition, which assumes that the 1919 Act is retroactive, is without foundation.

 

Court of Appeal Judgment

 

38.              The Superior Court judgment was unanimously set aside by the five judges on the Court of Appeal, [1983] C.A. 573, for two reasons. First, the three‑chain reserve "for fishing purposes" has under the 1888 Act and the 1899 Act preserved the government's right of ownership from the outset. Second, the 1919 Act is both interpreting and declaratory legislation, and hence retroactive.

 

39.              Turgeon and Bisson JJ.A. wrote reasons concurred in by the other judges.

 

40.              Turgeon J.A. wrote at p. 591: 

 

                   [TRANSLATION]  I am convinced that the Crown did not only reserve the fishing rights, but the land as well.

 

41.              He further wrote, at p. 591:

 

                   [TRANSLATION]  Like my brother, I consider that the 1919 Act is interpreting and declaratory legislation.

 

42.              At page 590, Bisson J.A. wrote:

 

                   [TRANSLATION]  I conclude as follows:

 

1. In view of all the points I have mentioned regarding, the Privy Council judgment in MacLaren does not constitute a binding precedent in relation to the interpretation of the 1888 and 1899 Acts;

 

2. The decisions of the Quebec Superior Court in 1910 in MacLaren and 1915 in Patenaude were in error regarding the interpretation of these two statutes;

 

3. Under these Acts, the Crown in right of the province ‑‑ unless it indicates otherwise ‑‑ has always retained full ownership of a three‑chain reserve on grants made since June 1, 1884 of land along non‑navigable and non‑floatable waterways in Quebec;

 

4. The 1919 Act should not be regarded as an acceptance of the interpretation given to the 1888 legislation and that of 1899 by the Superior Court in MacLaren and Patenaude;

 

5. On the contrary the 1919 Act, which clarified the wording of the law, was a repudiation of that interpretation;

 

6. In view of the real meaning of the 1888 and 1899 Acts as to the nature of the three‑chain reserve, the 1919 Act operated as a declaratory and interpreting statute, as opposed to one which created new law.

 

43.              The Court of Appeal accordingly allowed the appeal and granted the petition of the Attorney General. It ordered a writ of possession to be issued against Healey and directed him to leave the property and deliver possession of it to the Minister of Lands and Forests or any person authorized by him to receive it.

 

Appellant's Position

 

44.              According to appellant, the questions raised by this appeal are as follows:

 

                   [TRANSLATION]  The legal issue turns essentially on the nature, extent and application of the three‑chain reserve on lands granted by the Crown in right of the province along non‑navigable and non‑floatable rivers and lakes in the province of Quebec between June 1, 1884 and March 17, 1919.

 

                   Within this general context, the specific points at issue are as follows:

 

Does the 1899 Act (the Act respecting Fisheries and Fishing, 62 Vict., c. XXIII) confer on the Crown in right of the province, for lands granted during the aforementioned period, a three‑chain reserve along non‑navigable and non‑floatable rivers and lakes in the province of Quebec for fishing purposes only or in full ownership?

 

Further, does the aforesaid decision of the Judicial Committee of the Privy Council in MacLaren, by restoring the trial judgment of the Superior Court of the province of Quebec which had defined the three‑chain reserve as a servitude for fishing purposes only, confirm that definition and constitute a binding precedent under the stare decisis principle?

 

Does the 1919 amendment (the Act to amend the Quebec fish and game laws, 9 Geo. V, c. 31, section 1) to the 1909 Act (Revised Statutes of the Province of Quebec, Section X, "Quebec Fisheries' Act", section 2252) have a declaratory or retroactive effect, or is it instead new legislation applicable only to the future and amending the existing provisions or the nature of the three‑chain reserve?

 

Do the general revisions of 1925, 1941 and 1964, as well as the replacement Act of 1968 and the general revision of 1977, by adopting on the one hand the retroactivity introduced by the 1899 Act (s. 4 of the Act respecting Fisheries and Fishing, 62 Vict., c. XXIII), for the reserve for fishing purposes, and on the other hand the 1919 amendment (s. 1 of the Act to amend the Quebec fish and game laws, 9 Geo. V, c. 31) finally establish a right of ownership for the Crown in right of the province over the three‑chain reserve on lands granted from June 1, 1884 to March 17, 1919, or is it possible to rely on s. 2252 of the 1909 Act (Revised Statutes of the province of Quebec, Section 10, "Quebec Fisheries' Act") since it has not to date been the subject of any amendment which could affect the ownership right of grantees of the Crown in right of the province over the three‑chain reserve for lands granted between June 1, 1884 and March 17, 1919?

 

45.              In the submission of appellant, the Court of Appeal judgment is vitiated by the following errors:

 

                   [TRANSLATION]  The Quebec Court of Appeal erred in law when it concluded that the decision of the Judicial Committee of the Privy Council in MacLaren v. Hanson and the Attorney‑General of the Province of Quebec, [1914] A.C. 258, did not rule on the three‑chain reserve.

 

                   The Quebec Court of Appeal erred in law when it held that the stare decisis rule is not applicable here.

 

                   The Quebec Court of Appeal erred in law by interpreting the Acts of 1888 (the Act to amend and consolidate the laws relating to fisheries, 51‑52 Vict., c. 17) and 1899 (the Act respecting Fisheries and Fishing, 62 Vict., c. 23) as creating in the Crown in right of the province a right of ownership over the three‑chain reserve along non‑navigable and non‑floatable waterways in the province of Quebec for grants which it made between June 1, 1884 and March 17, 1919.

 

                   Finally, the Quebec Court of Appeal erred in law in deciding that the 1919 amending legislation (section 1 of the Act to amend the Quebec fish and game laws, 9 Geo. V, c. 31) was declaratory of existing law and therefore in no way altered the existing legal provisions.

 

46.              Appellant analysed the 1888 and 1899 legislation. He submitted that the three‑chain reserve was only a servitude for fishing purposes. He argued that the right of grantees who obtained their title between June 1, 1884 and March 17, 1919 is a right of ownership. 

 

47.              In appellant's submission:

 

                   [TRANSLATION]  The words "for fishing purposes" have the effect of qualifying the reserve and limiting the Crown's [rights] to fishing rights.

 

48.              Concerning the MacLaren judgment, appellant wrote:

 

                   [TRANSLATION]  By restoring the judgment of Champagne J. and recognizing the MacLarens' full ownership over both banks and the bed of the Gatineau River, the Judicial Committee of the Privy Council, without saying so expressly, recognized that the three‑chain reserve does not constitute a right of ownership in favour of the Crown.

 

49.              On this point, I should say at once that I am not satisfied by appellant's argument. To conclude, merely because a judgment restores a trial judgment, that it decided a question which was not submitted to it would be a wholly novel way of determining the scope of a judgment. As I mentioned, what the Privy Council had to decide in MacLaren was whether the Gatineau River was navigable and floatable. The Privy Council did not rule on the question of the three‑chain reserve.

 

50.              Finally, appellant submitted that the 1919 Act is not declaratory and has no retroactive effect. He added that no legislation had subsequently been adopted that could affect his ownership right.

 

Respondent's Position

 

51.              Respondent relied on the Court of Appeal judgment, which held that the three‑chain reserve had always conferred full ownership on the government.

 

52.              Further, respondent submitted that s. 2252 of the Revised Statutes, 1909, as amended by the 1919 Act, is clearly declaratory and retroactive to June 1, 1884 and that the 1919 Act is retroactive in its effect.

 

53.              Finally, respondent relied on s. 41a. of the Lands and Forests Act, added by s. 83 of the Wild‑life Conservation Act, S.Q. 1969, c. 58.

 

54.              The first paragraph of s. 41a. provides:

 

                   41a. From and after the 1st of June 1884, the sales, concessions and free grants of public lands are subject to a reserve, in full ownership in favour of the public domain of the province of Québec, of three chains in depth of the land bordering on the non‑navigable rivers and lakes of the province of Québec.

 

55.              It can be seen that this section is essentially a repetition of s. 2252 of the Revised Statutes, 1909, as amended by the 1919 Act. As I have already indicated, this section is always to be found somewhere in Quebec legislation since that time.

 

56.              Respondent wrote that his right of ownership was based on s. 41a. He submitted:

 

                   [TRANSLATION]  Since section 41a. of the Lands and Forests Act clearly states that full ownership in favour of the public domain of Quebec has been the legal position of the reserve "from and after the 1st of June 1884", there is no need to refer to old statutes to determine the respective rights of the parties at the time the grant was made to appellant's predecessor in title in 1904.

 

57.              Respondent further wrote:

 

                   [TRANSLATION]  Section 41a. of the Lands and Forests Act in effect when the proceedings were brought was inserted in that Act by the Wild‑life Conservation Act (chapter 58 of the 1969 Statutes), but with a slight modification actually replaced section 7 of the Fisheries Act, which was chapter 203 of the 1964 Revised Statutes;

 

                   In the 1964 general revision the provision relating to the three‑chain reserve, namely section 7 of the Fisheries Act (chapter 203), read as follows:

 

"7. Sales and free grants of lands belonging to the Crown are and have been since the 1st of June, 1884, subject to a reserve, in full ownership by the Crown, of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province."

 

                   It should be noted that, like s. 41a. of the Lands and Forests Act, this provision creates a single legal position for the reserve affecting sales and free grants of public lands since 1884, namely "in full ownership by the public domain".

 

"When a general revision is enacted, old legislation is repealed and it is the revision which becomes the applicable law, which is binding."

 

             (Pigeon, Louis‑Philippe, Rédaction et interprétation des lois, Collection études juridiques, éditeur officiel du Québec, 1978, p. 67) 

 

58.              Respondent added:

 

                   [TRANSLATION]  Since the wording of this section clearly states the legal position of these grants, and there is no problem of interpretation, there is no justification for referring to old legislation to determine the intent of the legislator or the rights of appellant under the present Act.

 

59.              In view of my conclusion on the scope of the 1919 Act from which s. 41a. of the Lands and Forests Act originates, it is not necessary to discuss respondent's argument based on the latter provision.

 

60.              Though I realize that I may be avoiding the question which has been at the heart of the continuing controversy, and which has been most discussed by the many authors who have considered the matter, I nevertheless feel that the Court does not have to decide the question of whether the three‑chain reserve for fishing purposes, as originally worded in the applicable legislation, gave the government a right of ownership or simply a fishing servitude.

 

61.              In my view, the entire matter is settled by the 1919 Act.

 

62.              However, I would add that if the point had to be decided, I would be of the same opinion as the Court of Appeal because of the characteristics associated with this reserve, in particular the fact that a right is conferred on the government to lease the property. The right of disposal, which includes the right to lease, is an attribute of ownership (C.C., art. 406). Otherwise the conclusion would have to be that the government has the right to lease the property of another and to transfer exclusive possession of it to a third party. This is not inconceivable, but it would be to say the least unusual. Moreover, the 1899 Act gives the occupant of land located immediately behind the three‑chain reserve a right of passage over it. A servitude is a subdivision of the ownership. It is possible that the legislator chose to proceed in this way. However, it would be unusual to say the least for an owner to be granted a servitude over his own property. In short, I would concur in the opinion of the Court of Appeal on this point essentially for the following reasons given by Bisson J.A. at p. 587:

 

                   [TRANSLATION]  From all of this I draw the following conclusions:

 

                   1. What is reserved by the Crown is a strip 198 feet deep.

 

                   2. The phrase "for fishing purposes" only indicates the purpose for which the Crown has reserved the three chains, ownership of which it has retained.

 

                   3. A person who was granted land between June 1, 1884 and March 17, 1919 would not acquire ownership of the 198‑foot deep strip.

 

63.              I come to these conclusions for the following reasons:

 

                   1. It would be impossible to reconcile a grant including ownership of the three‑chain reserve with the following points:

 

(a) Under section 1383 of the 1899 Act, the lessee is the holder of the fishing lease.

 

                   Under subs. 4 of s. 1374a., supra, the lease is "the deed of lease of lands bordering on or enclosing non‑navigable waters, for the purpose of . . . fishing . . .".

 

                   This lease is conferred by the Commissioner of Lands, Forests and Fisheries along non‑navigable waters.

 

(b) The fact that the lessee's title confers on him "the right to take and retain exclusive possession of the lands therein described . . ." and "to prosecute in his own name any illegal possessor . . ." (s. 1383).

 

                   2. The 1899 Act gives the grantee of land a right of passage "to and from the water" to get to "lands immediately in rear of those leased" (final paragraph of 1383).

 

                   If the grantee of land had the ownership of the 198‑foot strip, why would he be given a right of passage over land belonging to him? This would be contrary to the well‑known legal principle that no one can have a servitude over his own property (499 C.C.)

 

                   3. If, under the third paragraph of section 1379 of the 1899 Act, lands reserved can be leased by the Commissioner, it is because the government has not divested itself of its ownership. Thus:

 

(a) there was a reserve at the time of the sale or free grant of the lands;

 

(b) that reserve consisted of three chains; and

 

(c) the Crown remained owner: if it did not have this status, it would be legally impossible for the Crown to lease land which it no longer owned.

 

                   4. If we assume that the reserve was only an occupancy servitude benefiting the Crown, it is surprising to find that neither the 1899 Act nor the 1888 Act indicated the specifics, the respective rights of the parties, the duration and how this servient property was to be returned to the party which was its owner.

 

64.              I now go back to the 1919 Act.

 

65.              For convenience's sake, I again reproduce s. 1 of the 1919 Act:

 

                   1. Article 2252 of the Revised Statutes, 1909, is amended:

 

a.                By replacing the words: "for fishing                                                 purposes", in the third line thereof, by         the words: "in full ownership by the                                     Crown";

 

66.              I also again reproduce s. 2252 of the Revised Statutes, 1909, as it read after the amendments mentioned:

 

                   2252. Sales and free grants of lands belonging to the Crown are and have been since the 1st of June, 1884, subject to a reserve, in full ownership by the Crown, of three chains in depth of the lands bordering on non‑navigable rivers and lakes in the Province.

 

67.              It is clear that the 1919 Act contains no express provision making it retroactive or giving retroactive effect to the amendment made to s. 2252 of the Revised Statutes, 1909.

 

68.              However, the legislator's intent can be deduced from the purpose of the legislation and the circumstances in which it was adopted. It can also be manifested by the procedure employed by the legislator. Finally, it may be inferred from the only possible interpretation which is likely to make sense of it.

 

69.              As Lord Hatherley L.C. wrote in Pardo v. Bingham (1869), L.R. 4 Ch. App. 735:

 

                   . . . we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated.

 

70.              And in the passage cited above from Upper Canada College v. Smith, Duff J. wrote:

 

                   . . . that intention may be manifested by express language or may be ascertained from the necessary implications of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was passed may be of such a character as in themselves to rebut the presumption that it is intended only to be prospective in its operation.

 

71.              When the 1919 Act was adopted, the debate on the nature of the right deriving from the three‑chain reserve "for fishing purposes" was in progress. Respondent wrote:

 

                   [TRANSLATION]  For several years there has been a question as to the legal nature of this reserve: was it a right of ownership or simply a servitude? The Act did not say clearly, and this really made it necessary to proceed by analysing the various sections of the Act to determine what the legislator's intent was.

 

72.              Two judgments of the Superior Court, MacLaren and Patenaude, had rejected the government's claim that it had reserved the right of ownership and held that the three‑chain reserve was merely a fishing servitude. The legislator acted to confirm the government's right of ownership. He did this by amending the Act which created the reserve and which took effect as of June 1, 1884. The legislator did not alter the date. He simply substituted the words "in full ownership by the Crown" for the words "for fishing purposes", without any other change. In my view this suffices to indicate that it was the legislator's intent to clearly indicate the nature of this right ab initio. Otherwise, the same s. 2252 as amended would create two legal positions, one before 1919 and the other after. There is nothing in the 1919 Act to indicate such an intent. Respondent submitted the following:

 

                   [TRANSLATION]  However, for a proper understanding of the meaning of this amendment one must look at the time immediately after it was adopted.

 

                   If the words "in full ownership by the Crown" were only to apply for the future, the wording would have no meaning immediately after the amendment came into effect, since the legal situation it appeared to be describing in clear terms was contrary to that of all the existing grants.

 

                   Why would the legislator keep the 1884 date in the provision which was the subject of the amendment in connection with the grant in full ownership and thereby grossly mislead the unwary reader?

 

                   Accordingly, the only possible conclusion must be that, as amended, s. 2252 is declaratory, since in it the legislator clearly states an intent to give this reserve the legal status of "full ownership" from June 1, 1884.

 

73.              Adopting the theory of two systems, a fishing servitude only between June 1, 1884 and March 17, 1919 and full ownership after the latter date, would be making a distinction which the Act does not make. The 1919 Act would have otherwise accomplished very little. The dispute which the legislator sought to resolve centered on the nature of the right conferred by the three‑chain reserve during the period prior to 1919. He would not have to proceed as he did if he had future grants only in mind. In my opinion the purpose of the 1919 Act was to resolve the debate, to declare unambiguously that the government's right was one of full ownership and that this was true from the time the three‑chain reserve was created on June 1, 1884.

 

74.              For these reasons I would dismiss the appeal, but without costs.

 

                   Appeal dismissed.

 

                   Solicitors for the appellant: Gendreau, Pelletier & Associés, Rimouski.

 

                   Solicitors for the respondent: Jolin, Boucher & Sheehan, Québec; Stein, Monast, Pratte & Marseille, Québec.