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LIBRARY FlSllERlES MID ocv.ANS \\\UL\O'fllf.Q\JE SH pf.ctw:.s E'f octi\NS 327.C3 P3 D - THE LIBRARY BEDFORD INSTITUTE OF ... OCEANOGRAPHY 12'?913 Box 1006 DARTMOUTH, N.s. 82Y 4A' ..,; TABLE OF CONTENTS Title Page - 1867-1898: Who Has Jurisdiction? •••••••••••••.••••••••••••••• 1 - The Fisheries Case, 1898 ..................................... 3 Delegation of Administrative Control of the Non-Tidal ... Fisheries to Ontario and Quebec ••••••••••••••••••••••••••••• 6 British Columbia - at the Turn of the Century ••••••••••••••••• 8 - The Federal-Provincial Conference of 1902 11 B.C. and the Modus Vivendi: A Parting of the Ways ••••••.•.••• 13 - A-G for the Province of B.C. v A-G for the Dominion of Canada . 14 .... The Non-Tidal Waters of Quebec - A Difference? •.••••••••••••.• 17 The Quebec Fisheries Reference 18 ~ Delegation of Administrative Control of the Tidal Waters to Quebec . 20 - The Magdalen Islands . 22 The Fish Hatcheries in Ontario . • • • • • • • • • • • • • • • • . • • • • • • . • • • • 22 - Manitoba, Saskatchewan and Alberta: The Natural Resources Transfer Act, 1930 • • • • • • • • . • • • • . • • • • . • • . • • • • • • • • • 24 B.C.: An Act Respecting the Transfer of the Railway - Belt and the Peace River Block, 1930 .••••••.•••••••••••••••• 27 - 1930-1949 . 28 Newfoundland . 30 - Recent Developments . 31 - Conclusion . 3 3 - .... - INTRODUCTION This report charts a chronological sequence of formal and informal agreements which have been entered into between the provincial governments and the Federal Parliament since the BNA Act of 1867. The study brings to light and attempts at times to analyze the events by which the authority to administer the fisheries in Canada has been delegated by the Dominion to the provinces of Alberta, British Columbia, Manitoba, Ontario, Quebec and Saskatchewan. As evidenced by the appendices to the brief, the materials upon which the report is based consist mainly of letters and memoranda which have been obtained from the Public Archives of Canada and from the current files of the Department of the Environment. Accordingly, much of the report is founded, not on formal documentation, but on materials which are at times unclear, vague and even contradictory. The author's reliance on such materials no doubt constitutes the most significant weakness of the report. In most cases, the records cannot be used as unquestionable sources of reference, and indeed, they often present a confusing picture. In certain instances, different sources reporting the same event have been found to have recorded completely contradictory facts. In such circumstances, a determination of the probable facts has rested merely upon the weighing of a balance of probabilities. I would like to thank Mr. Greg Morley of the Department of the Environment who has encouraged and supervised me in the development of this paper. I would also like to extend my appreciation to Mr. Joe Carton, the departmental solicitor who has provided me with a wealth of i knowledge in the area and to Mr. Henry Mitchell, head of the Records section of Fisheries whose assistance has been invaluable in locating and isolating those files and papers which have provided the factual basis upon which the report is submitted. I extend my thanks also to Mr. A.R. Lucas of the Department who has helped both with the drafting of the substantive and technical portions of the report. It should be noted at this time that the facts and opinions presented in this paper are those solely of the author. They are in no way to be taken as those of the Department of the Environment. :::· ~- .~.-- -·- 1867-1898: WHO HAS JURISDICTION? At the time of Confederation, it appears to have been under- stood that by the provisions of the BNA Act (Sec. 91 head 12) the jurisdiction over fisheries in the different provinces was transferred to the Federal government. This is evidenced by the fact that immediately following Confederation the latter assumed complete responsibility for and control over the fisheries of Canada. 1 A few years afterwards, however, when the government of Canada began to lease salmon angling privileges in the non-tidal waters of the provinces where the bordering land was privately owned, question arose as to whether exclusive juris- diction over fisheries had, in fact, been vested in the Dominion in 1867. The dispute resulted in a test case to the Exchequer Court from the decision of which an appeal was taken to the Supreme Court of Canada in 1882. This case2 was concerned with salmon angling privileges in a portion of the inland waters of the south-west Miramichi River, N.B., where the bed was owned by the Nova Scotia and New Brunswick Land Company. The company had given permission to certain persons to fish in waters covered by a federal lease to one Robertson. When Mr. Robertson prevented these persons from so acting, they brought an action against him for damages and won. He then brought suit against the Department of Marine and Fisheries for loss and damages. The decision in this case was, in brief, that the ownership of the soil or beds of freshwater rivers did not pass to the Federal Government under the BNA 1. Various memoranda and much of the correspondence recorded at the turn of the century conclusively indicate this to have been the situation in the years following Confederation. 2. Queen v Robertson, (1879-1882) 6 S.C.R. 52. - 2 - Act, but remained the property of the riparian proprietors. 3 As the provincial governments of that time owned practically all of the lands through which the inland portions of the rivers flowed, the leasing of the angling privileges in such waters was handed over to the New Brunswick Provincial Government immediately following the decision. The other provinces, however, do not appear to have been as eager in securing the leasing rights in their non-tidal waters from the Federal Government. The only other province to undertake this function was Quebec. 4 Certain pieces of correspondence indicate the existence of thriving salmon fisheries within the inland waters of New Brunswick at that time. 5 Quite possibly, the New Brunswick government saw in the leasing of angling privileges a highly profitable source of revenue. Whether or not this is the case, the provincial authorities in New Brunswick have been carrying out this function since then. 6 After the decision in Queen v Robertson, disputes continued between the Dominion and the provincial governments. Some of the provinces claimed proprietary rights in certain of the fisheries by virtue of Section 92 Head 13 of the BNA Act, which has given the legis- latures of the provinces authority to make laws in relation to "Property and Civil Rights." These conflicting claims as to the extent and character of respective fishing rights under the BNA Act developed so steadily that it at last became highly expedient to obtain some definitive finding on the subject. 3. IBID at pp. 68-69. 4. Appendix "A" No. 1 p. 2; Legislation, Jurisdiction of the Fisheries, Province of Nova Scotia File No. 721-8-8 Department of Fisheries Records 5. IBID p. l; 6. See Summary 'New Brunswick' - 3 - THE FISHERIES CASE, 1898 To this end, arrangements were made for the submission of a reference, in order that the decision of the Judicial Committee of the Privy Council should be secured. This resulted in the decision of 1898, of which the answers to the categorical questions put, and the judgment delivered by Lord Hershell are hereto appended. 7 Substantially, this decision secured to the Dominion Parliament the sole power to make regulations controlling the manner of fishing and held that the enactment of all fishery regulations and restrictions "is within the exclusive competence of the Dominion Legislature. 11 More importantly, however, the Court decided that all of the proprietary rights possessed by the provinces at the time of Confederation remained untouched by the ENA Act and that whatever grants which might have been lawfully made by them, could be lawfully made after the passing of that Act. Therefore, the provinces could legislate in respect to fisheries, as a consequence of their jurisdiction to legislate in relation to property and civil rights, e.g., prescribing the mode in which a private fishery is to be conveyed, or the rights of succession in respect of it; the terms and conditions upon which any fisheries owned by the provinces may be leased, etc. But, these proprietary rights could necessarily be affected to some extent by the Dominion 1 s power of regulation. At the same time the decision expressly recognized the right of the Parliament of Canada, not only to make regulations for the 7. A-G for the Dominion of Canada v A-G for the Provinces, (1898) A.C. 700, (P.C.) Appendix B, No. l; - 4- - protection and preservation of the fisheries, but also to impose a tax as a condition of the right to fish. In the judgment the following words are used: "In addition, however, to the legislative power conferred by the twelfth item of S.91, the fourth item of that section confers upon the Parliament of Canada the power of raising money by any mode or system of taxation. Their Lordships think it is impossible to exclude, as not within this power, the provision of imposing a tax by way of License as a condition of the right to fish. 118 The only part of the Canadian Fisheries Act which the above judgment declared to be beyond the powers of the Parliament of Canada was those sections by which Parliament empowered the Minister of the Department of Marine and Fisheries to grant licenses or leases con- ferring exclusive rights of fishing. The relevant words of the judgment read: "It follows, from what has been said, that insofar as S.4- of the Revised Statutes of Canada C.95 empowers the grant of fishery leases conferring an 0xclusive right to fish in property not belonging to the Dominion but, to the provinces, it was not within the jurisdiction of the Dominion Parliament to pass it.

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