OF CANADA
SUPREME COURT
S.O.R
163
OF
REFERENCE AS TO THE
CONSTITUTIONAL VALIDITY AND EFFECT OF
SECTION 189 OF THE RAILWAY ACT IN ITS
CROWN
TO
PROVINCIAL
APPLICATION
THE MATTER
IN
1925
NOV.S
LANDS
GENERAL IN COUNCIL
BY THE GOVERNOR
REFERENCE
Act as 91
RailwayCrown LandsExpropriation-B.N.A
Section
189
Crown
of
Lands
the
the consent
consent
The
Canada
imports
Central
by
authorized
Canada
other
amongst
town
from the
further
of
of
order sanctioning
the
of 37 miles
distance
vested
Crown
in the
in Council for leave
Lands pursuant
to
which provides
No
the
of
province
Board
the
as the
Governor
Any
railway
route of
th.e
railway
and
works
of
river
said
of
railway
189
in the
of
the
to
of
province
passedl through
of
the
said
of
province
Governor
to the
applied
of
also
possession
the consent
may
muich
so
with
Crown
said
Act
Railway
of
much
so
is
such
of
granted
of the public
necessary
the
or sold
or
with
making
Council
such
upon
Crown
lands
any
in
terms
for
the
use
lying
on
the
appropriate
beach
covered
for
Governor
consent
and
the lands
the land so vested
as
of use or occupy
of the
take
have not been
or stream
The company
plan
etc
profile
right of the
possession
prescribes
which
and
stream or
lake
iCouncil
railway
railway
take
without
company
in
and
and which
in the
section
location
general
Rouyn
of
to take
shall
Crown
in
its
the
follows
as
company
vested
using
its
province
of
from
its
The company thereupon
Quebec
such
112
Larder Lake in Ontario
between
line
Quebec
or
the
the plan
township
such
incor
to construct
part
obtained
Osisko Lake in the
river
in
and through
into
an order approving
portion
for
the
Commissioners of Canada as required by the Rail
way Act
its
within
is
enact
things
Latchfordi
of
The company
Quebec
Railway
of
Lands and
possession
Company was
6-7
Ed VII
Railway
of
statute
Ontario northerly
lands
to
com
railway
take
to
in Council
to
of the Governor
grant or refuse
The condition which
requires
by said section
no more than an incidental
power of regulation
and was
and
Crown
Provincial
of
Oouncil
in
required
porated
of
Governor
discretion
Nipissing
railway
to
applies
enables
which
1919
the
the Parliament
of
within
is
of
the consent
competence
It
Railway Act
the
of
with
panies
as
bed
is
necessary
of
any lake
the waters
of
any
and
and compieting
and works
may
not
alienate
any such
lands so
taken
used
or
occupied
PEE5ENT
fret
JJ
Anglin
C.J.C and
Duff
Mignault
Newcombe
and
Bin-
SUPREME COURT OF CANADA
164
1925
RArIwAy
Whenever
any such lands are vested in the Crown for any special
money which the corn
purpose or subject to any trust the compensation
the Governor in Council
thereifor
shall
be
held
or
applied
by
pany pays
for
the
like
The
or trust
purpose
General
Attorney
objected
for and claimed
Crown
in the
He
province
lands
include
the
section
the
the
Quebec
of
province
vested
lands
expression
was
189
right of
asked
was
to lands
limited
that
Crown
in the
vested
in the
vested
Dominion and not
the
contended
further
in right of the
to
province
Parliament
of the
the
did
sec
of
provisions
Supreme Court Act R.S.C
following
referred
were
questions
in
any
of
the said lands
if
ultra vires
Thereupon pursuant
60 of the
tion
the
in question
Canada
of
that
in said section
Crown
the
of
Governor in Council giving the leave
to the
139
Supreme
the
to
Court
Is
within
it
of section
189
competence
the
Parliament
of
with
Railway Act 1919
the
of
to
the provisions
enact
regard to
Crown
provincial
lands
If
as
it
stands
Is
under
tended
K.C
Crown
of
said
section
to grant
said section
is
189
lands
Council
in
Governor
discretion
virtue
10
to
his
give
consent
any proper appli
upon
such
refuse
or
and
Canada
vested
as
with the
be constructed
rance
from the
was
tion
settled
of the
ronto
as he
consent
necessary
Railway
provincial
by
the
the
the
of
language
is
K.C
Act
of the
in
ques
Parliament
of
was
Parliament
consequence
fact
the
legislatures
Attorney
Pacific
relied on
that section
to be found
that
Corporation of the
Co
B.N.A
and
of the Judicial
judgments
Act
in the
ques
Commit
To
City of
Company
for the
Cen
Nipissing
the
same
189
had
cases
its
and
also
origin before
Substantially
Railway
the
General for Brit
Railway
and Parmenter
Company
emhasizecl
91 and
the railway
powers to enable the railway to
and operated without assistance or hind
Canadian
Tilley
Canada con
necessary
Bell Telephone
passing
92 B.N.A
of
29 of section
sole jurisdiction
Privy Council
Columbia
General
Attorney
of subsection
of section
was under the
tion
tral
the
for the
by
that
subsection
ish
the affirmative
see fit
Lafleur
tee
in
provincial
subsection
has he
or
therefor
to
upon
of
the provisions
cation
may
applicable
obligatory
it
be
to question
the answer
now
the
same
Act of 1868 31 Vict
68
1905 A.C 52
1906
A.C 204
SUPREME COURT OF CANADA
S.C.R
K.C
Lanctot
and
non K.C
Quebec contended
eral of
that
Act St Cat herines
Canadian
Dame
of Notre
The
Co
Co
and
others
The
ada
13
Dupuy
Co
and Corporation
14
of
in that
perty
Dominion under
of the
and was
also to
subject
Canadian
Railway
Pacific
The judgment
NEWCOMBE
Council of
within
it
189
section
of
1925
the
of
provisions
and
1919
General
in
were
questions
under
consideration
Supreme Court Act
Parliament
of
of the
by
Governor
following
60 of the
Act
was the pro
the B.N.A Act
delivered
the
for hearing
the competence
the Railway
was
of
Railway
Pacific
V.C
44
charter
order
of section
108
over-riding
court
June
11th
authority
Is
of
J.By
to this Court
referred
the
of the
Railway
of Attorney
decision
in question
section
the
Street
Canadian
harbour
the
Can
Pacific
the
also distinguished
case
another
11 Canadian
12 Cushing
Montreal
General of British Columbia
55
and
General for
Toronto
City of Montreal
They
Con
General for Quebec
Attorney
General for Quebec
Attorney
Ry Co
10
Chrome Case
General for
Ritchie
Canada
for
The
The King
Attorney
Attorney
General
Attorney
Star
Co
General for Canada
Co
and Supply
tracting
Co
Columbia
British
Burrard Power
Attorney
Case
Toronto
City of
Attorney General for Ontario
Canada
Queen
Fisheries
Canada
of
Ry
Pacific
Co
Ontario Mining
de Bonsecours
Telephone
Canadian
with
enact
to
regard to
the provisions
provincial
Crown
lands
the
If
189
as
it
Is
sent under
answer
now
to
obligatory
it
be
question
applicable
stands
upon
the provisions
A.O 46
A.C 700
A.C 367
of
the
to
the
in
affirmative
Crown
provincial
Governor
subsection
of
in
said
1899
1906
AC
AC
73
52
A.C 204
AC
87
is
said
section
to
give
upon
AC
1921
18801
his
con
any proper
A.C 571
10
11
12
13
14
section
lands
Council
14
18981
1925
189
Aer
Corporation of the Paiish
Corporation of the
Seybold
was
Attorneys General for On-
Scotia
Railway
Pacific
land in question
and Lumber
Milling
Quebec and Nova
tario
Gen-
Quebec under the B.N.A
of
General for Canada
Attorney
Attorney
for the
the
property of the province
public
Bell
Geoff
165
999
A.C 401
A.C 413
A.C 461
A.C 409
A.C 333
SUPREME COURT OF CANADA
166
1925
application
therefor
as he
see
may
The
IN
WAY
RAJL
an
order proceeds
consent
NewcombeJ
tioned
to take
of the
province
consent
that
recital
there
Central
Nipissing
is
pending
Railway
and occupy
of use
possession
the
for
men
Crown Lands
Quebec for the purposes of
proposed
of its Larder Lake branch into the Rouym mining
and that the Government of Quebec opposes such
extension
district
consent
grounds that
by Act
it
intended
is
only to
applies
if
interpreted
as
is
ultra
of
vires
them
to affect
Railway Company was incor
112 of 1907
The lines
Dominion
Central
Nipissing
of the
which
of railway
section
of the
in so faras
Parliament
the
Dominion and that
Crown Lands it
Provincial
to
applying
of
the
upon
Crown Lands
porated
such
refuse
or-
Governor in Council under the section
of the
The
to grant
discretion
upon
the
of
application
are
has he
or
fit
it
authorized
is
am
described
particularly
and operate
to construct
from Latchford in the province
include
extending
line
of Ontario
certain
through
and thence in
direction
northerly
line of the Grand Trunk Pacific Railway
named townships
on the
point
th-e
Quebec
of
province
Thus
work
the
described
in the
and
province
of
of
91
189
of the
propounded
are
questions
within the
last
the
is
the
exclusive
mentioned
Act
first
29th
the
which
to
regard
limits
legislative
under
with
class
British
connecting
beyond
Canada
of
enactment
the
of railway
or extending
therefore
of the
is
92 of the
of
line
in
Matagami River
near the
as
Parliament
the
enumeration
Section
1867
with another
one province
authority
Act
or
to be constructed
enumeration
10th
North America
of
at
authorized
to
the
group of sections
of
1919 under the general title
and using of lands it is in
caption RestrictionsCrown
comprised in the Railway Act
The
or description
under
troduced
Lands
and
No
189
lands
is
vested
the
special
in the
expressed
company
take
shall
words
following
of
possession
without
Crown
the
in
taking
the
consent
use
of
or
any
occupy
the
Governor
in
Council
Any
as
use
on
the
of
its
for
any lake
waters
of
completing
of
river
any such
and
Council
and
the
such
may
company
in
railway
the route
necessary
of
railway
Governor
works
or
using
and
stream
lake
its
much
so
which
railway
railway
river
said
with
such
or
or
of
have
also
of
the
not
the
land
stream
and
as
necessary
works
terms
or
for
lying
sold
beach
covered
the
for
Grown
the
-public
vested
so
is
of
granted
the
of
such
upon
appropriate
lands
been
much
so
railway
consent
and
take
prescribes
as
or
with
maicinig
is
bed
the
and
SUPREME COURT OF CANADA
S.C.R
The
may
company
not
any such
alienate
167
lands
so
used
taken
or occupied
.0
Whenever
the
in
company
Council
or
eat
suibj
lands
the
like
vested
are
Crown
the
in
any trust the compensation
to
therefor
pays
for
such
any
purpose
special
be
shall
or
purpose
few brief observations
held
any
which
money
the
by
applied
or
for
Governor
in order
are necessary
to bring
or context
setting
general
the
compulsory
poses
it
and
taking
companies subject to the
affecting them individually
ways only so far as
Board of Railway
board exercises
Under
may
the
by
or
the
of
into
and
and
do
all
other
It is provided
mence
the
acts
the
shall
167
it
is
the
166
without
such
such
lands
for
lying
in
examina
fixing
the
of
parts
license
previous
whomsoever
make surveys
person
and
on
the
lands
as
site
are
across
or
the lands
upon
of
any
railway
the construction
for
that
of
maintenance
line
been
profile
towns and places
additional
other
the
map
some
railway
book
by
company
and
shall
showing
which
which
are
the
com
section
have
or
been
for
Can
of reference
of the
Board
Then
the
shall
the
railway the
information as
any
Commissioners
or
through
particulars
or
location
sanctioned
of the
cipal
or
its
shall not
company
of Railway
plan
Board
the
general
enacted that
proposed
further
any
the railway
of
Board
have
submit to the
of the
company
and sub
railway
Act
railway
necessary
by
nor until the
by
relation
railway
construction
by
approved
railway
the
line
with
this
Act
lands
ascertain
thereof until the
portion
ada
and
place
or
and
Canada
the railway
of
operation
carry
the
of
arrangements
for
for
rail
also for
provides
jurisdiction
Orown
lands
of
out
set
the located
any
the
line
or
it
of the
of its special
upon
proper
make
on
person
or
legislation
Government
to
purposes of its undertaking
upon
necessary
railway
necessary
and
particular
conferred
powers
for the
route
other
or
the
general
into
intended
tions
and
pur
of railway
applies
Commissioners
for railway
regulation
provided
specially
provisions
enter
therefor
it
large powers
162
to the
ject
special or
under the provisions
to railways
of lands
using
powers and
for the
provides
PLwAy
ACT
trust
The Railway Act 1919 is the
Railway Act of the Dominion providing for the
and working of railways other than Govern
construction
ment railways and authorizing subject to its provisions
out the
1925
prepare
general
and
location
termini and prin
it
is
to
pass with
specified
and such
Board may require
Newcom
ci
SUPREME COURT OF CANADA
168
1925
REFERENCE
INRSl89
Ar
NewcombeJ
be approved
by the Board subject to such
and
alterations
as
changes
may be deemed expedient and
the
when so approved
168 required to
company is by
plan profile and book of reference of the railway
prepare
This
map may
with
precise
ments
the
areas length
be taken
to
names
of
the
giving
each
of
portion
showing among other require
and width of the lands proposed
numbers of lots and defining the
particulars
and occupiers
170
By
ascertained
plan
the
may
Board
shall
grades
and
curves
and book
file
pany may then proceed
to
Act
defined
in
take
the
the
approved
to
province
vince
of
but as
Lands
of
map
the
of
of
so located
railway
work
the
Generals
de
be
also to be
are
for
lands
lands
189 are
the
of
provisions
railway the
the
com
The
lie
of
the
so
vested
interposed
profile
lies
is
consent
Larder Lake
the
pro
miles
Crown
traverses
stayed in the
the
in
thirty-seven
necessarily
to
of refer
and book
between
about
Central
Nipissing
and Osisko Lake
distance
Quebec
Governor
of it which
Ontario
Quebec
pro
plan
are to
the Board of Railway Commissioners
location
portion
in the
the
location
the
so far as concerns
Railway and sanctioned the plan
ence of that
lands
requirements of
are informed that
has
the
of its
er
satisfied
deeds
of
registrars
subject
but
thereof
copies
the
purposes
or ascertained
Crown
the
We
for the
the
and by
172
when sanctioned
within which
or counties
districts
of
office
of ref
if
such sanctioning the
approved
shown
as
Board and
in the
deposited
have
to
of reference
the
with
posited
deemed
be
and book
Board which
them and by
sanction
the
stating
they can be
so far as
profile
ence are to be submitted to the
therewith
and
proposed to be taken
lot
owners
the
absence of the
taking
of
lands
the
required
The
shall
course
show
form both
the
Committee
first
of 1919 is
ceding
now
of conclusive
binding upon
And
legislation
section
is
important
and
because
in
enacting
an
authority
determination by decision
the
Privy Council which
as
earlier
is
of the
directly
court
this
it is
of
was
in question
as to its interpretation
subject
Judicial
of the
the
pertinent
consolidation
legislation
union consolidation
189
of the
to observe
that
the
Railway Act
with some amendments
finds
its
statutes
prototype
of the
in
province
of
the
pre
pre
of Can-
SUPREME COURT
S.C.R
in
adia
OF CANADA
169
133 an Act which apparently has not
either by the Parliament of Canlegislature of Quebec and which survived
1859
66
been expressly repealed
ada
by
or
the
union
the
129
of
of the
the
sponding
province
way Act 1868
No
Union by
the wild
or
and
beach
or
or canal
the
the
but
works
the
or
of
their
occupy
appro
so much of
such
covered
said
in
with
as
the waters
neces
is
as
and
railway
the next
have
as
railway
beds
respective
in
and
take
for
any
Governor
the railway
of
their
using
or
the
may
necessary
contained
exceptions
use
of
not alienate
route
the land
of
and
of
consent
company
may be
as
and completing
to
Par
Rail
68 of the
possession
on
lying
and
sold
corre- NewcombeJ
session of
first
of
ss
any such
railway
Crown
the public
of
however
subject
their
the
making
for
sary
consent
river stream
any lake
of
of
of
granted
much
so
such
the use
lands
not been
also
with
the
of
provisions
1867
as follows
reads
it
the
Act
at
shall
take
company
Her Majesty without
in
but
for
priate
enacted
railway
lands vested
Council
was
provision
liament after the
to
subject
North America
British
following
works
sub
section
The
exceptions
133
This
of
Statutes
not
the
of
lands
for
special provision
purposes
of no present
are
provision
Railway
Canada
1859
in the
mentioned
Eleven years
Act
Railway
in
that
with
Corsolidated
the
the
military
effect
beach
public
1859 and the exceptions
Military or Naval Reserves
1879
as
terms the
in
the
is
in
of
and
and
or
in
precisely
Parliament enacted
later
produces in place
for naval
found
as
except
Act
Indian as well as
clude
agrees
Act
they make
consequence
reserved
Consolidated
Act
re
of
1868
last
less
than
five
of
this
provision
quoted
Since
Act
the
the
general
revision
17
by paragraph
an
there
were
any
that
consolidated
of
1886
material
section
in
109
change
reappeared
99 some changes and
29
introduced
was
Statutes
without
1888
of
been no
of 1879
Public
but when
of
consolidation
addition
have
Act
the
of the
was reproduoed
sa
in the
1879
of
When
consolidations
making
the
section
read
as
follows
No
99
vested
in
but
cii
shall
take
company
Her Majesty without
with
the Governor
its
railway
lying
as
of
is
on
in
and
woiks
the land
for
covered
of
the
consent
of
or
the
occupy
any
Governor
in
lands
Coun
company
may upon such terms as
and appropriate
for the use of
but not alienate so much of the lands of the Crown
consent
Council
the route
nece.ssary
13526S
such
of use
possession
any
such
prescribes
the railway
such
railway
with
the
as
as
waters
take
have
also
of
not
so
any
ibeen
much
lake
of
granted
the
REFERENCE
or
public
river stream
sold
beach
or
and
or
canal
SUPREME COURT OF CANADA
of
1925
their
using
ih
RAILWAY
Acr
Her
railway
for
Majesty
pensation
beds as is necessary for making and completing
and
and works
and whenever
any such lands are vested
respective
said
its
29 of 1888
58 wherein
the
Majesty
where
as ss
the
i-n
was omitted
company was empowered to take
andrevision of 1906
37
In the
taking
Crown appears
in -the
from ss
four
of
s-
134
1903
of
provision
it
reproduced
to
suppose
vested
respect
into
simplify
and
of
37 of the
Revised
Statutes
material
change in
189
of
the
1919
which
-enactment
to
those
Parliament
within- the
lands
the
if
hav-e
and
and
that
189
does
is
is
of
to
mediately or
com
and were
not
in
is in
it
enactments
it
application
differ
as
to
its
from the original Dominion
effect
legislative
189
that
authority
enacting
from which
Now
sanct-ioned
petently
is
Con
now submitted
is
corresponding
previous
referred
immediately derived had
intention
1906
the
of
consideration
-and
hearing
-which-
respecting
no
Argument seems unnecessary to show t-hat
Crown Lands -or
tended to apply to Provincial
relation
consoli
divided
is
it
the
the
lands
in
differs
that
except
view
of
1886
of
1888
without
172
solidation
172 and
-s
of
general
or occupation
Her
of
structure
its
Section
as
with
subsections
improve
for
of use
possession
the
latter
for
mention
Act
the
under
the
in
provision
the
in
by
dation
the
but
or
1903
of
134
of
were substituted
occur-red
held
trust
or
consolidation
with water which
covered
be
shall
purpose
Lands
the Crown
they
like
the
Using
or-
canal
word
the
until
was reproduced
words
the
section
the
for
corn
trust the
any
therefor
pays
Council
stood
it
subject to
or
purpose
company
in
Taking
heading
and
the
by the Governor
applied
NewcombeJ
special
any
which
money
1868 in -n-y particular material to the ques
tions -submitted
There can be no doubt -of course that in
provision
of
Act
the -Consolidated
to
all
-Crown Lands
relation to the
been created
when
the
1859
that
that
the
to the
1859
the
neither
at
original
the
rights
of
provinces
of
least
-Canada
was
did
-It
provinces
ones
re-enacted
expressed
not
fail
to
-applied
Crown
the
the
1868
clause
in terms
deØcribe
in
which
comprised in the
and
Quebec
union
of
in
be
lands
must be remembered that
Ontario
in
had not then
can there be any dou-bt that
provinces
only
parent provision
separate
Dominion and
-re-enactment
time the
-four
the
Parliament
one particular
longing
of
at
were
previously
SUPREME COURT
SC.R
united
as the
Brunswick
and
Canada Nova
of
provinces
OF CANADA
by
in these provinces
the
of
109
New
and
Scotia
British
North
America
which
would.be understood as comprised in the description
wild
lands
vince
the
to the
in
189
the
by
ment
the
of
but
Committee of
nor the
That
Attorney General
the
public
was
of
had
right of
through
certain
The main
the
line
defendant
the
of
it
the
its
statutory
from Port
railway
the
ran along
crossing
the
constructed
was found
ways
right
ends
companys
existed
the
to
upon
en banc
appeal
the
At
to the
of
water
them
the
to
the
action
Supreme Court
question
as
to the
204
line
of
of
its
which
harbour
company had
obstructed
them It
time public high
and
of
that
of
the
public
harbour
the
British Columbia
was dismissed
the
authority
AC
135265
of
constructed
the
waters
admission
the trial the
extends
Port Moodie
side of the
at the
mark
Vancouver
extension
where
which
were
streets
low
over
date
into the Tjnion
streets
and wharves
these
passage
at
these
south
was by
railway
to
had
company
on the
in
of Vancouver
or
powers
Moodie to Vancouver the
of
yards
that
the
meaning
action
of
city
branch
foreshore
extending
of
and
Columbia
British
under
in
declartion that
from Calendar Station near lake Nipissing
in
the
waters
the
of
judg
questionable
is
for
the
to
streets
already
the
Privy Council
1904
province
access
not
of
neither
in
tried
the
to
effect
for British Columbia
enact
to
the
Lands might
it
view
in
Co
power
case
the
harbour
Cown
were
difficulties
Railway
Pacific
definition of
Parliament to give
of
Case Attorney General
section
court
way
lands
gave
apply
to
authority
Judicial
Canadian
was
to Provincial
some
ultimate
the Vancouver
of the
Union
the
Orown
pro
British
of
joined
and enlarged
apt
provision
present
affirmed
this
more
as
application
its
had
of the
incor
the
of
provinces
Island
until
been
constitution
the
lands
legislative authority
however
had
and more comprehenive description
which
to
The
wild
expression
Crown
lands
after
was not
province
of
the
R.CS
all
several
the
to
It
Territories
Edward
Prince
general
the
of
situated
after the
and
Manitoba
to belong
were
West
North
lands including
public
they were
Union and
the
in
of
Columbia and
that
Crown
of the
after the
porated
1867
in which
provinces
1888
Act
the
192
and
sitting
company
Act
NewcombeJ
OF CANADA
SUPREME COURT
172
1925
under
its
statutory
to
powers
take
lands
these
way purposes seeing that they belonged
Crown was very fully discussed both at
AcT
NewcombeJ
in
the
for dismissing
Act
Railway
18
the
in
The
and
same
in
so
provisions
are
far
18 As
thereof
the
he
the
company
or
said
for
the
as
railway
its
land
east
lying
in
The
last
with
the
of
four
Lake
the
mark
same
of
of
main
in
15
1881
1881
and
other
Nipissing
of
section
pro
by
this
provided
to
is
The Con
of
and
office
he
the
not
with
water
and
be
the
by
exhibited
Minister
apply
shall
required
shall
as
of
shall
Crown
shall
as
works
hold the beach
navigable
the
in
extent
except
to
Rail
of
beach
any
of
approval
not be overlooked
apply
the
powers
line
as
of the
to
in clause
is
must
the
left
to
beyond
follow
main
in both
14
Act of Incorporation
its
that
provision
cases
rule and its exception
that
must
Nipissing
enacted by
when
of 1879
of
operate
its
very
the
and
contract
the
of
to
Rail
the
of
operation
east
it
subject
applies
18
of
Crown
in
made subject
Parliament had
is
of
scheduled
of
ss
unqualified
Lake
not be
could
exercise
the
or land
branches or extensions
construct
expressed
only
is
any beach
to
in the
it
Council that
in
territory which
save
both in the main provision
Crown
hereinafter
vested
Governor
the
special modification
to which
the
as
or contrary
take use and
to
he
such
Ordinarily therefore
It
far
authorized
any stream lake
shall
subsection
the
way Act 1879
Lake Nipissing
to the
so
with
seventh
right
Lake Nipissing
comprehensive
of
is
it
powers and the eighth section
the following
shall
be subject to
in
to
reached by the company
of its
which
to
surveys
should
lines
approval
east
lying
ss 17
ICouncil
provisions
and
the
relating
in the
map or plan thereof deposited
But the provisions of this subsection
Governor
in
as
except
railway
Crown
the
by
required
and
have
shall
water
far
so
1879
inconsistent
not
are
save
plans and
to
in
they
1879
Act
relating
not
ways
By
herewith
respects
Railway
or sea
by
special
mentioned
last
the undertaking
to
applicable
and
provisions
The company
and land below hi.gh
gulf
Act
Act
Railway
as
hereof
incorporated
solidated
the
Act of incorporation
to the
schedule
Consolidated
the
of
herthy
company
Consolidated
by
1881
of
the
of
that
provided
charter
as
their
gave
authority
the
of
and
hearing
who
affected
or
Companys
of the
embodied
visions
1879
the
The
ss
Provincial
to the
judges
appeal
modified
relating to the
legislation
17
the
upon
depended
company
is
of
judgments
reasons
and
the learned
for its rail-
is
spoken
18
it
in
is
of
of
1881
the
sarn
mind
with relation to
the
corn-
mon
OF CANADA
SUPREME COURT
S.C.R
Lake Nipissing
in subs
of
matter east or west of
Lands which are provided for
subject
Crown
1879 and
in
18
1881
of
173
Crown Lands
include
the
of
of the
AcT
province
It
noticeable
is
of
judges
the
them and
brace
all
which
the
were
the
forcibly
in opposition
en banc
sit.ting
the
careful
cases
the
there
at
the
em
decided
hearing of
answer
an appeal
this
to the
of the
judgment
was
the
consideration
subsequntiy
presented
learned
that
appeal
had been submitted
which
to an affirmative
From
submitted
question
of the
judgments
upon
they gave
except
so
the
court
authorities
to which
those
reference
court
in perusing
provincial
and
arguments
to
first
provincial
direct
His
to
in Council which
was heard by Lord Macnaghten
Lord Davey Sir Ford North
and Sir Arthur Wilson the
latter pronouncing
the judgment
on 27th February 1906
Majesty
Their Lordships observe
found
that
the
free access
their
dressing
tions
the
to
the
way
contended
works
the
the
rail
interrupted
learned
judges
of
rightly ad
more important
to the
case
when
existed
and when
of its
and that
sea
judge had
trial
for
dissent from this finding
minds
arising in the
learned
Union
the
construction
the
court did not
full
that
entered
by
way company
the
of
rights
British Colunilbia
the
ques
general
Their Lordships state that
they
and they proceed to
propose
the
two
distinct
consider
grounds upon which it was urged
at the argument that the Dominion Parliament had the
108
right to legislate
and first it was held that under
to
and
the
1867
of
is
with
or
in the
contention
second
92
takings
of
the
ships
British
canals
any
clearly
applies
power
ships
this
to
of
the
Parliament
opinion
be
the
authority
with
is
Act which
telegraphs
province
right
question
any
in
and
upon
secured
other
other
or
to
of
respect
Par
Dominion
the
o.f
rested
beyond the limits of the province
the Canadian Pacific
RaiFway
question
construe
in
North America
legislative
connecting
of
support
the foreshore
railways
or extending
Upon
Act
judgment
in
exclusive
vinces
To
for
legislate
Parliament
other
America
of Vancouver
was
at
public harbour
Union and therefore became the property
Then they consider the second ground which
Canada
to
North
of the British
the
of
thus described
liament
similar course
harbour
the
The
ion
follow
third schedule
time
the
1925
others
Domin
the
lines
works
read
91
of
and
of
steam
under
the
description
pro
which
they conclude that
sections
over
inconsistent
now
provincial
with
in
such
Crown
the terms
manner
lands
of
as
would
the
to
in
sections
exclude
their
which
the
Lord
they
NewcombeJ
OF CANADA
SUPREME COURT
174
1925
REFERNC8E9
RAILWAY
Acr
have
to
with
the
Their
if
the
With
NewcombeJ
adian
observe
the
closing
that
the
with
consistent
or
Act
corporating
the
to
whether
It
must
in
clear
to
includes
mg
across
It
that
it
as
is
foreshore
91
general
the
British North
the
power
is
the
railway
it
exiØt
previously
take
to
is
court
power was
effect
in which
1867
lands
for
Van
the
of
them
before
the
whole ques
the
and
considered
elaborately
of either of the
Act
provincial
the
Par
to
given
America
Lordhips had
provincial
of
two more important
for
them might have been sufficient
these
two questions
were
the
case
co-ordinate
the
of the
branch
And
company
of
neces
before
.of
impossible
this
the
of their Lordships
authority
think
That
decision
points
emphasized
question
their
which
Act
to
passage
judgment
railways the
Their
the
of
as
Act
special
given
of
of
the
purposes
disposition
treated
rights
of
decision
although
any
the
Rail
Pacific
Railway
the power
to
of legislative
tion
that
the purposes
for
obstruct
to
with
inconsistent
think from the
relation
judgment
the Consolidated
of
opinion
necessarily involves
couver
not
Canadian
the
of
the language
that
over
right
liament by
railway
not apply to the
foreshore
that
in
was unnecessary
it
or would
say
follows
that
inconsistent
to
Lordships
the
that
In
the
of
of
variety
in
were not
question and they concluded that
the
appropriate
Consolidated
the
in
far
their
sity
these would
not
their Lordships
provisions
was
Act but
general
prevail
so
only
applies
is
enough
is
Act
way
way
the
Can
did
incorporation
far as its provisions
there
full
lands
the
of
highways
to
Crown
18
incorporated
contrary
in
enquire
so
that
provisions
rights of
in
had
Parliament
railway
of
public
Act
latter
Act 1870
Railway
of
hoard
this
of
provincial
that
suggestion
Railways Act
Pacific
authorize
the
to
regard
this
of
of
use
and
legislation
decisions
Dominion
the
the
the
of
purpose
previous
that
the purposes
for
company
the
authorize
to
fit
and
scope
in
upon
therefore
think
thought
it
whole
the
acted
principle
Lordships
power
by
with
construe
of addressing
propriety
legislative
therefore
of
and
importance
their minds
power which
to deny
to the
they affirmed
the observations
that
the case were strictly
their Lordships
It
upon
intended to form part
of
judgment New South Wales Taxation Commissioners
Great Western Railway
Coy
Palmer
Membery
their
think
that
this
It
of their Lordiships
A.C
179
at
court
was
1St
ought
given
to
follow
the
twenty
nearly
14
AC
179
decision
years
at
ago
187
SUPREME COURT OF CANADA
S.C.R
and
has
it
provision
which
and
acted
been
since
ever
acted
The
in practice
upon
in the
has
upholds
it
175
been
interval
en-
by Parliament without any material
change affecting the questions with which we are now conand has thus become as firmly established
cerned
in the
of
emanating
from
the
country
as
any
enactment
powers can pos
statutory
limited
legislature of
sibly be
was
said that
and
compensation
of the
ity
in the
considered
legislation
Case
to
in
the
interpretation
may
effect
may be
must
it
be taken
under
ultra
its
vires
do not
10
are not
to
condition
Lordships were
to any
Reporters
is
not
yet
conferred
Note
in
with the
to
is
by
case
true
91
Am
in
the
without
decision
that
the most general
and
such
conclusion
that
10
terms
in the
have
not
navigation
AC
rail
an implica
in considering
as to
in
their
Dominion
the
as
that
effect
suggest
their Lordships
It
This
reported
to the
be
upon
are to be interpreted
restriction
of which
mated any disapproval
power
therefore
British North
word
Case
which
of
conferred
powers
of the
not
Then
indemnity
use
could
it
or proviso
are expressed
implied
be inconsistent
couver Case
for
provide
to interpret
disposed
way powers which
expressly
be taken or used thereunder
compensation but there is
Harbour Commissioners
general
is
but whatever
be upheld along
lands the
the
if
the
tion would
in
ss
provision
are not asked
provisions
only
and 92
to an implied
as sub ject
which
to
that
certainly
Act with relation to railways
such lands
extent
review
which accompany it
Crown
for their
provinces
ject
for indemnity
was under
subsection
this
subsections
Parliament by ss 91
sub
of
suggested the section
considered
erica
We
latter case
the
with the preceding
the
the
to
There
be said that
anything contained in the statutes which were
its
to
and
Committee
may
it
provision
which
author
the
Case
to provide for compensation
determine
is
und
Judicial
place
in the
for adequate
provide
the
of
first
fail
not
the
to
if as
decision
In the
does
Vancouver
additional
not
therefore ultra vires
is
answers
intended
does
Harbour Commissioners
189 at least
more than did
is
189
very recent
Montreal
are several
the
RFERNcE
re-enacted
legislation
It
1925
204
Van
inti
the
and
ACT
NewbeJ
SUPREME COURT OF CANADA
176
1925
RZFERENCE
ACL
in regard
shipping
of that
to
power
ment and railway
dock
which
of
valent
the
body
the
an
as
must
execution
Dominion
take
ping
extends
so
and
to
property
provincial
out
compensation but
one
is
29
concerned
and
out that
the
or
to
the
decision
of
the
powers
Lordships
because
work
for the
which the Dominion
or with
declared
may
sidered
It
latter
section
exclusive
the
nothing else
cial
that
power
essentially
struction
requisite to
course
It
the
was
Committee
have
the
in th.at
considered
the
authority
railway
the
taking
and
for purposes
Nipissing
with another
province
are
effective
con
not
of
power
view
in the
incidental
the
the
that
that
Case
be the
in the
AC
con
the Judi
that
of execution
were held not to embrace
land required
to
is
railway and
apprehend
may
which
about that
and incapable
power
of
Vancouver
if it
of the
to bring
Case
to which
working
and working
whatever
their Lordships suggest
lands
The powers
as the
to
calling for its exercise
for
Canada
regard
power would he inadequate
in cases
10
92
by
Parliament of Canada
construction
shall
point
mere har
Parliament to be
the
province
committed in
is
91
ss
Harbour Commissioners
in the
or expounded
is of
when
arise
from
was
to railways such
regard
extend beyond the limits of
or
the
of
of
with
with relation to works so
exercise
Railway which connect one
Central
the
by
advantage
general
ship
particu1arly
which
the
taking
of railways
derived
of
which
and
the
in
works
in
powers
navigation
considerations
declared
property
that
authorize
in question
had not been
them to vest
permanent
it
bour adjunct or facility was not governed
it
be
equi
soil
occupy
upon
construction
Their
railway
of
incidental
different
with
10
92
the
right
erect
this
ancillary
for
and
observe
authorize
to
as
exchisive
an
upon the power
Dominion may not
the
dry
construction
occupation
attendant
are
embank
quays
river
their Lordships
from
it
the
of
the
execution
not appear to their Lordships
compensation
and railways
docks
quays
One
the
did
it
Commissioners
without
the province
such
of
right
like
as
exclusive
to possession
of
the
of an
plant works the
not
could
in
construction
bank
on the
without
effected
that
the
and ship repairing
NewcombeJ use
which
legislation
authorized
Dominion
harbour
204
for the
view upon
which
use
of
which
to take
cannot
S.C.R
SUPREME COURT OF CANADA
be exercised
without
ment
in the
not excepe
for the
compensation
find anything in the
which
decision
Vancouver
That
and
consideration
it
There
regard
obligation
his consent
or the
It
well established
citation of authority
Governor
the
upon
consent
upon any
was contended
was
it
the
nevertheless
in the
submitted was
from
any
in
the Governor
in
and
of
of
of
more
the
to ascertain
and
fair
cil
who thus
the
power
of consent
good government
sider
and
volving
is
not
the
rather
execution
construction
necessary
and that
such
the
therefore
lands
ment
of
would
of
case
of the
but the
the
upon
railway
in effect
the
the
defeat
the
construction
condition
to
Coun
the
con
to
in
and in re
in Council
was
said that
route
Crown Lands
the
of the
is
with
of
duty
taking
intention
particular
204
Crown
in
is
of any
of Parlia
railway
No
submitted with
which requires consent
AC
of
statutory
of provincial
of consent
facts in this
It
the
refuse
conferred
duty
it
Governor
tribunals
judicial
occupation
is
responsibility
legal
which
to
entrusted
is
but
with
to
justified
as an incident
there
discretion
than
refusal
in authorizing
statement
country
sound
answerable to the
makes
the
the
to be exercised
the
of
to exercise
political
to
spect
donee of Parliament
as the
limits
reasonable
Governor
of the
question
as distinguished
might be
consent
defini
became
it
the
that
the
It
Coun
in
exact
he had
discretion
The company is constituted and its powers are
by Parliament which as
condition to the taking
Lands has required
his
Company
think
that
law
just or
Council
co-rela
to require
Railway
discussion
sought
matter
hold his consent
Central
question
which
rise
may he submitted
proper ease but
of the
strictly
argument
nothing obligatory
railway
for lack
what
as
as
is
duty of The Governor
the
course
question
within which
decision
which
for the Nipissing
tion was described
apparent
the
with
reference
in Council to give
to require
there
of
part
the
REFERENCE
ACT
which
what NewcombeJ
side of
Council giving
in
application
to give his consent
cil
that
General
right on
tively to
that
too
is
of
Governor
of the
judg-
sure did
Case
remains the third question
to the
am
case
well along
held in the Harbour Commissioners
is
with the
an authority
is
should think would stand perfectly
do not
taking
conflicts
Case
177
imports
SUPREME COURT
178
1925
no more than an
not
be assumed
NewcombeJ
manner
in
power
ACT
tory project
court
the
by
The
ease
For these
to
what
or refuse
for
Solicitor
the
in
point
as he
Attorney
first
would answer
Governor
such consent
the
can
this
statu
in this
Lawrence
and
second
and to the third question sub
said
sent and that he has
of the
St
Champlain and
affirmative
the
execution
The King
would answer
have
upon
obligatory
Lake
the
it
exercise
appears to be governed
question
reasons
in the
questions
to frustrate
of
and
power of regulation
Government would
the
Co
Ship and Canal
ject
incidental
that
OF CANADA
that
in Council to give
of
may
General
law
see
of
is
not
his
con
it
dÆseretion to grant
fit
Canada
Stuart
Edwards
Solicitor
for the
Attorney
for the
Nipissing
General
of
Quebee
Charles
Lanctot
Solicitors
ston
Thomson
Central
Parmenter
Ry Co
Tilley
John