738

PETITIONS TO LONDON BY PROVINCIAL GOVERNMENTS

The recent appeal of Western Australia to London has attracted considerable attention. This State, aggrieved at its treatment as a member of the Commonwealth, petitioned for restoration "to its former status as a separate and self-governing colony in the British Empire". The question of secession had been put to a referendum in 1933 and two-thirds of the votes had been cast in its favour. The rest of Australia, indeed, took the agitation very coolly. It did not fail to notice that the people who voted for secession had, on the same day, turned out of office Sir James Mitchell, a strong advocate of secession, and put in the labour party which was at best only lukewarm. A delegation from, Western Australia came to London late in 1934 and presented its petition to Parliament . A Joint Select Committee was appointed "to report whether the same is proper to be received", and this Committee made its report on May 22, 19.35. Neither the merits o£ the case of Western Australia, nor the accuracy of the facts alleged in the petition, were considered. Solely on constitutional grounds the decision was that, by a well established convention, "recognized and enforced in the Statute of Westminster", the Parliament of the United Kingdom will act only in response to a voice which represents a Dominion as a whole. The State of Western Australia as such had "no locus standi in asking for legislation ...... in regard to the Constitution of the Commonwealth", and its petition was, therefore, "not proper to be received". The Secretary of State for Dominion Affairs, Mr. J. H. Thomas, reinforced the report by stating in the House of Commons that the Dominion office would not "be drawn into a purely Australian controversy."' The result is somewhat paradoxical . The Commonwealth Parliament does not possess the power to enable a State to secede, because the Australian Constituiton created ',,an indis soluble federal Commonwealth". Secession can be effected only by an Imperial act. Yet the Imperial Parliament will exercise its power only at the request of the Commonwealth. What, in such circumstances, a State can gain by a direct appeal to London is hardly discernable.

'Parliamentary Debates, 5th Series, Vol. 304, p. 1046.

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Some of the Canadian have, at various times since 1867, appealed to London by address or petition. A brief history of these appeals is sketched in the following pages.

NOVA SCOTIA The efforts of Joseph Howe to keep out of Confederation are well known. In 1866 his protest had been futile. But Howe hoped that success in the coming elections, federal and provincial, might turn the tide. The decision of the electorate was, of course, all that he could . have hoped, and to most anti-confederates victory seemed just around the corner. They advised a prompt delegation to London while the press and the public were mindful of the powerful demon- stration of opinion in Nova Scotia. At first Howe held off. The complete futility of the delegation a year earlier had left a deep impression on his mind and he had become convinced that the leading men in Great Britain were sublimely indifferent to the fate of Nova Scotia. 2 But another delegation was arranged and in February 1868, Howe sailed for London. In London Howe became more hopefixl . He secured atten- tion in the English press and he thought that some of the public men who had voted for the Act because they wished to lighten the Imperial duties and-respon- sibilities of the British Parliament might be won over by holding out, as an alternative to Confederation, the old scheme of Maritime union. I But this was too obvious a makeshift and Howe could make no progress against the conviction of British statesmen that the quarrel between Nova Scotia and the ominion was no longer their affair-it was a domestic quarrel to be settled by the conciliatory efforts of the federal government. uckingham, the Colonial Secretary, stated that Imperial inter- vention was not to be expected and that Nova Scotia should look to Ottawa to "relax or modify any arrangements in those subjects which may prejudice the peculiar interests of Nova Scotia". '4 Thus this first appeal of a Canadian was

2 In a speech at Halifax, January 13, 1868, Howe said : ". As I stood at the bar of the House of Lords a winter ago and saw the sublime indifference with which they bargained away the rights of 350,000 Nova Scotians, I was appalled not so much at the injustice of the act as by the indifference which was displayed." Speeches and Public Letters (J. A. Chisholm, editor), II, p. 530. 3 Howe Papers (Public Archives of Canada), No., 9, letter to J: 'w. Cudlip, April 25, 1868. 4 Despatch of June 4, 1868, to the -General . Journals of the House of Assembly, Nova Scotia, 1868, Appendix 9, p. 4.

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abortive. Howe's disillusionment was complete,, and in a few months he capitulated to Sir John A. Macdonald.

BRITISH COLUMBIA In 1874 appealed to London, not indeed for secession, but about an alleged breach in the terms of union. In 1870 the Dominion had promised, by clause 11 of the terms, that the Pacific railway would be started within two years and completed within ten. The promise was not taken literally by anyone. It meant only that the railway would be finished "as soon as possible". s But the misleading promise went into the act of union, passed by the Dominion Parliament and by the Legislature of British Columbia, and it was to illustrate the danger of putting in a statute words which did not express the real intentions of the parties concerned. 7 Trouble arose very soon after Alexander MacKenzie became Prime Minister. Already the promise to start construction . of the railway within two years had been broken, but the govern ment of British Columbia had not protested because it recognized the reasons for the delay and it had confidence in the intentions of Sir John A. Macdonald. About MacKenzie and the Liberals it had serious doubts, and these grew into positive antagonism when MacKenzie made it clear that he intended to seek modifi- cation of the terms of union. Of course everyone was aware that some modification had to be made, but Walkem of British Columbia was not prepared to be reasonable. He repulsed the well-meant approaches of MacKenzie and declared that he would go to the Imperial Government for justice. $ s See Speeches and Public Letters, II, p. 545. Just when Howe seriously contemplated surrender can only be guessed . Tupper, invincibly optimistic about his powers of persuasion, believed as early as April 18, 1868, that he had won Howe over. Certainly his frequent meetings with Howe in London, and their games of shuffleboard and whist on the return voyage, were looked upon with suspicion by the other delegates . 6 See Scholefield and Hooray, British Columbia (Vancouver, 1914), Vol . II, p. 363. 7 This danger is the more serious because of the English practice which holds that the courts are not to seek for assistance from parliamentary debates in interpreting a statute . The obvious effect "is to bring the rules of legal inquiry into direct conflict with the methods of all rational investi- gation in the historical or scientific field. Sometimes it happens that the issues to be determined by the Courts are essentially historical in character, and decisions have been given in some of these cases which have made lawyers' history a term of derision among historians" . Smith, H. A., Interpretation in English and Continental Law, Journal of Comparative Legislation, 3rd Series, Vol. IX, Part IV, p. 156. 8 For a fuller account of the negotiations see Maxwell, J. A., Lord Dufferin and the Difficulties with British Columbia, 1874-77, Canadian Historic- al Review, December, 1931.

Nov. 1936] Petitions to London by Provincial Governments 741

There can be no doubt that at this time (June 15, 1874) Walkem had been so unreasonable as to impair his case, and that his manoeuvres contained an element of bluff. But his bluff was unexpectedly strengthened when Carnarvon,-the Colonial Secretary, decided without consulting the Dominion govern- ment to offer himself as arbitrator in the dispute. MacKenzie at first refused to accede, but finally on duly 23, 1874, after pressure from the Governor-General, Lord Dufferin, he consented. Carnarvon saw Walkem, who had gone to London, and he made a report which, in the main, absolved the Dominion from blame. If the Pacific railway were completed by December 31, 1890 (within twenty years instead of ten), and if the so-called Island railway from Esquimault to Na.naimo were built, British Columbia should be satisfied. 9 It seemed that this appeal to London was to yield, good results. But misfortune lay ahead. The bill which MacKenzie introduced to provide for construction of the Island railway passed the House of Commons, but at the very end of the session it was rejected by the Senate. Immediately the mistrust of British Columbia for the Liberals flared -up, and it soon appeared that this was justified. Many Liberals, with Blake as their leader, disliked the steps taken by MacKenzie to pacify British Columbia. Blake, not then a member ,of the Cabinet, had denounced the Carnarvon arbitration and had voted against the bill for the Island railway. These breaches of party discipline had strengthened his position with a wing of his party, and MacKenzie was anxious to restore harmony by bringing Blake back into the Cabinet. Before consenting Blake demanded modification of the policy toward British Columbia. In place of constructing the Island railway as a government work, the Dominion was to offer a subsidy of $750,000; and it was to declare that fulfilment of the Carnarvon terms was subject to the condition that there should be "no further increase of the rate of taxation". to To both of these conditions MacKenzie reluctantly consented. The Walkem government protested vehemently against this "violation" of the Carnarvon terms, and once more it appealed to London. Carnarvon was not unwilling to continue his arbi tration and he wrote. to Dufferin deprecating the new policy

, There were a number of other conditions in the Carnarvon terms. See Sessional Papers, British Columbia, 1875. 10 This curious provision dated back to a resolution passed by the House of Commons in 1871, and it was another instance of the misuse of words, because the condition was inherently unreasonable.

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of the Dominion. But this time MacKenzie, fortified by Blake, insisted both with force and heat that the further services of Carnarvon were unacceptable and that his government wanted to be let alone to settle its dispute with British Columbia. 11 Dufferin was not prepared to accept such a declaration. He clung to the idea of arbitration and the result was a sharp quarrel between the Governor-General and the Prime Minister in which the former spoke of his "honour" and of the "disgraceful" attitude of the government, and the latter countered by warning that "it was not well for the Colonial Secretary to be too ready in interfering with questions having no bearing on Imperial interests" and that Dufferin "had nothing to do with it [govern- ment policy] except as a constitutional governor". 12 Carnarvon and Dufferin could now only retreat. The Colonial Secretary wrote a letter for transmission to British Columbia which stated, in effect, that the protests of the pro vincial government were unreasonable and premature. 11 The plain fact was that the terms suggested by him two years earlier had been thrown overboard by the Dominion, but he could do nothing. His venture into the field of arbitration had been worse than useless.

PRINCE EDWARD ISLAND In the early years of confederation also felt that the Imperial government should stand between it and the Dominion. An early incident arose out of the Halifax fishery award. In 1877, $5,500,000 had been awarded to Great Britain as the excess value of the fishery privileges granted citizens of the United States over those of Great Britain by the Washington treaty. The British government turned over $1,000,000 of the award to"Newfoundland and the remainder to the Dominion. At once' the Maritimes and Quebec asked that this $4,500,000 be divided among them on the ground that the privileges for which the award had been made were their territorial rights. This contention the federal government refused to accept. Sir John A. Macdonald declared that the fisheries were a federal responsibility and that the award "constitutionally and of right" belonged to the Dominion. 14 "Letter Books of Alexander MacKenzie (Public Archives of Canada), No. 1, letter to Dufférin, May 17., 1876. 12 Letter Books of Alexander MacKenzie (Public Archives of Canada), No. 1, memorandum of interviews on November 16 and 18, 1876. 1a Sessional Papers, British Columbia, 1877, p. 381. 14 Debates of the House of Commons, 1880, p. 1187.

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The cage of Prince Edward Island differed somewhat from that of the other Maritimes and it was pushed more persistently. The Island government had ratified the fishery clauses of the Washington treaty on June 29, 1872-before entering into con- federation-and it therefore maintained that its position was like that of Newfoundland. The Dominion answered that, since the fishery clauses of the treaty did not comb into effect until July 1, 1873, after the Island had entered confederation, this special claim had no basis. - Against this decision the provincial government appealed by an address to the Queen. 11 But Kimberley, the Colonial Secretary, replied substantially as had the Dominion that the award was "based exclusively on the advantages derived by the United States during the Treaty term of twelve years, dating from the 1st July, 1873". Since the Island was then within Confederation the Imperial government could not "interfere and require the Dominion to apportion" the award . is The provincial government did not, however, lose faith in the efficacy of appeal to London. Five years later it handled another and more important grievance by the same method. When Prince Edward Island entered confederation in 1873, its terms of union contained a clause by which the Dominion undertook to establish and maintain an "efficient steam service for the conveyance of mails and passengers between the Island and the mainland of the Dominion, winter and summer, thus placing the Island in continuous communication with the Inter- colonial Railway and the railway system of the Dominion". Here again, as in clause 11 of the terms of union with British Columbia, were words in an important. statute which were inexcusable. What was meant by "continuous communication"? At the time nobody gave the words a literal interpretation, because nobody imagined that a boat could force itself through the ice of Northumberland Strait all winter. The general expectation was probably expressed by a committee of the Island House of Assembly in 1871 when, after investigation, it surmised that

15 April -24, 1880 . The course of the controversy can be traced in Journals of the House of Assembly, Prince Edward Island, 1880, pp. 257-64; 1881, Appendix M; 1883, Appendix H. 16 The provincial government also pressed a claim against the Imperial government itself. From July 24, 1871, to July 1, 1873, the Island fisheries had been opened at the request of the British government in anticipation of the treaty, and for these two years the provincial government asked compensation . Again it was refused on the ground that no "condition that special compensation" was expected had been made at the time .

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"a screw steamer of moderate size" might be able to run up to the middle of January. 17 After confederation this proposal was, in substance, put into effect by the Dominion, and not until 1881 was there any serious complaint. But then Premier Sullivan introduced resolu tions into the House of Assembly which, for bold exaggeration, could hardly be surpassed in a legislative document. "Continuous communication with the mainland" had been, so the resolutions stated, "one of the principal inducements held out to the province to enter Confederation" . The failure of the Dominion to keep this pledge had caused "a serious derangement of trade and an immense inconvenience to the entire community" . The demand was made that the Dominion should take "vigorous and immediate measures" to provide rectification for the future, as well as compensation, in the form of a payment to the provincial government, for non-fulfilment from 1873 to date. l$ The resolutions were factually and historically absurd. But Premier Sullivan hoped to start an agitation which might force the Dominion to give him "better terms" and to improve the transportation service across the Strait. For two years the government at Ottawa was apathetic and in 1884 the provincial government drew up a new set of resolutions. It protested at the "marked indifference" shown by the Dominion "not only for the welfare of Prince Edward Island, but also for the inviolability of its own obligations." Solicitude was, indeed, shown for British Columbia. The federal government to keep faith with it had contracted for the construction of over two thousand miles of railway at a cost of millions of dollars . Yet the fulfilment of the Terms of Union with Prince Edward Island, a Province of equal importance at least with 13ritish Columbia, by providing the means of communication over a Strait less than nine miles wide is postponed from year to year without any thought, as it would seem, that thereby a binding obligation is broken and an immense injury done to its people" Compensation of $5,000,000 was asked for past injury, as well as, prompt remedy for the future. Otherwise the provincial government would "invoke the interference of Her Majesty the Queen". Still the Dominion remained indifferent and early in 1886 Premier Sullivan and his Provincial Secretary, Donald Ferguson, went to London for redress. 17 Debates of the House of Assembly, Prince Edward Island, 1870, pp. 259-60. 2$ Journals of the House of Assembly, Prince Edward Island, 1881, p . 251. 19 Debates of the House of Assembly, Prince Edward Island, 1884, p. 432 .

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While the system of communication between Prince Edward Island and the mainland was hardly satisfactory, it had certainly been improved by the Dominion. Before Confederation during the four or five m.onths when ice blocked the Strait, mails and passengers had been carried across only in small open ice-boats. The Dominion put a better steamboat into operation and it planned development of two new ports. In 1883 it completed a branch line from the Island railway out of Cape Traverse. In New Brunswick there was then a gap of forty miles between Cape Tormentine and the main line of the Intercolonial, but the Dominion had subsidized a company to build this line and construction was half completed by the close of 1885. Clearly progress was being made and the provincial government had- overstated its case. It had hoped to bluff the Dominion into a grant of better terms. The Island delegates were received kindlyq:. by Granville, the Colonial Secretary, and they explained their grievances to him. But the Dominion also had taken care to be represented. Sir , the High Commissioner, acted as its counsel and he pointed out the steps taken since 1873 to improve communication-that the winter interruption to traffic was only "one-third of what it was previous to Union". After several meetings Granville made known his position in a letter of March 30, 1886, to the Governor-General : 20 I explained to them [Sullivan and Ferguson) that the Queen had no power either by statute or otherwise, under the constitution of Canada, to give any direction in the matter, and that therefore I should not be able to advise Her Majesty (,who had been pleased to receive the address very graciously) to take 'any action upon it, but that it would give me much satisfaction, if by the exercise of any friendly offices which I could tender, I should be able to contribute to the settlement of a question in which the Provincial Government were so much interested . This tender of "friendly offices"-never exercised-was the net outcome of another appeal to London .

BRITISH COLUMBIA AGAIN In 1906 at a Dominion-Provincial conference at Ottawa a general revision of "better terms" was approved by the delegates from every province except British Columbia. Premier McBride 20 Journals of the House of Assembly, Prince Edward Island, Appendix L, p. 39. Granville, abetted by Sir Charles Tupper, gave prominence to a -fantastic project which had an extraordinary vogue. This was that "continuous communication" be provided by building a "metallic subway" under the Strait .

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urged that his province should receive extra concessions, beyond its allotment under the general revision, because of its "special physical conditions" and its "excessive contributions" to the federal treasury. 11 He pleaded for appointment of a special commission to appraise the claims of British Columbia. Sir Wilfrid Laurier knew that any such step would mean delay and might tempt other provinces to raise new claims. But neither did he wish to break with McBride, because that would disturb the unanimity of the conference. Would it not be better, he suggested, if the case of British Columbia were examined by the provincial conference? The conference acted upon this suggestion. It declared that a commission was "inadvisable" and it expressed the opinion that "in view of the large area, geographical position and very exceptional physical features of the province", an extra subsidy of $100,000 a year for ten years should be given to British Columbia. But this McBride refused to accept, and he withdrew in anger political anger-from the conference. Soon, indeed, he relented and in a letter to Premier Gouin, the chairman of the conference, indicated that he was willing to modify his demands if the conference would modify its offer. But Gouin bluntly refused to reopen negotiations. One other feature of the subsidy scheme of 1906-7 must be kept in mind. Sir Wilfrid Laurier, hoping to put an end to the perennial scramble for larger subsidies, had inserted a new and stronger "finality" clause in the terms. This time there was to be a "final and unalterable settlement" of the subsidy question," and the subsidy revision, finality clause and all, was to be put into effect by formal amendment of the British North America Act. In this laudable aim Sir Wilfrid had over- looked-or perhaps underestimated-the force of two circum- stances : first, that finality clauses about subsidies had previously achieved less than nothing ; and second, that in British consti- tutional law no parliament can bind its successors . When McBride returned to British Columbia after adjourn- ment of the Dominion-Provincial conference, he found himself a hero . His tactics at Ottawa had appealed to the people and McBride proceeded to press his advantage. He went to London to contest the proposed amendment of the constitution and to urge that the case of his province should be considered by a commission of which one member would be named by the 21 Sessional Papers, Dominion, 1906-7, No. 29a, pp . 7-8. 22 See Maxwell, J. A., A Flexible Portion of the British North America Act (1933), 11 Can. Bar Rev. 149.

Nov. 19361 Petitions to London by Provincial Governments 747

Secretary of State for the Colonies, one by the Dominion, and one by British Columbia. 13 The bill for amendment of the British North America Act met with several. accidents at London. When it came before the House of Commons, Winston Churchill, Parliamentary Under secretary of State for the Colonies, explained that the finality clause contained in the Canadian act was now being omitted because the Imperial government, although without any know- ledge of the merits of the quarrel between the Dominion and British Columbia, did not want to appear to take the side of the federal government, against a province, and because the words "final and unalterable" were unsuitable for an act of parliament . 24 This step appears, to have been taken without consultation of the Dominion government and it may be that Churchill committed an indiscretion . But the thing was done and the bill went to the House of Lords. There, at the insistence of the Dominion, the finality clause was reinserted; but only as a schedule to the bill and not in the body of the measure. Lord Elgin, the Colonial Secretary, had, however, informed McBride that "he expressed no opinion upon the sufficiency or otherwise of the quantum of the extra contribution awarded to British Columbia", and that he would make no effort "to compel the reference of the question to arbitration" . Yet McBride claimed a victory and he returned home to receive the_ plaudits of his constituents . What was the substance of his victory? Study of the discussion in the British parliament will leave no doubt that the issues were quite unappreciated- by the Colonial office. Certainly the approach of - Elgin and Churchill was not that of McBride. McBride would have had no objection to the finality clause if he could have secured a more substantial increase in subsidy. Elgin and Churchill thought a finality clause inappro- priate in a statute, and while not willing to say that the extra. grant to British Columbia was adequate, they appreciated and were impressed by the unanimity of the Dominion and eight of the provinces about it. Moreover, the insertion of the finality clause would not have destroyed, and the deletion of the clause did not preserve, the right of British Columbia to press for better terms. The history of subsidies shows that . this right cannot be impaired by statutory prohibitions.

23 Sessional Papers, British Columbia, 1908, C1-18. 24 Parliamentary Debates, 4th Series, vol. 176, p. 754; vol. 175, p. 1617; vol. 178, pp. 467-8.

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This appeal to London has provided some curious problems for students of the Canadian constitution. The conclusion has been drawn that, in these negotiations, the Imperial government recognized the British North America Act as a compact ;25 that it rejected "the plea that the opposition of a single province could block a revision" ;26 that it did not defer "to the objection raised by British Columbia", but merely expressed the view that "no parliament can bind its successors"?" The last conclusion is, I believe, the safest which can be ventured. But it would be unwise to build upon so insecure a foundation . Elgin and Churchill were not and could not be aware that the whole effort of McBride verged on opera-boufé, and the observations which they made are so tenuous as to have little meaning.

CONCLUSION The incidents narrated above indicate the tendency of the provincial governments, especially in the early years of confedera- tion, to appeal to London for redress of grievances. Sometimes this was a carry-over from colonial practice-British Columbia, indeed, attained just before the act of union-and time had to elapse before the Dominion government could command loyalty and respect. Two of the appeals -British Columbia in 1874 and Prince Edward Island in 1886- involved an alleged breach in the terms of union, and if, as was often asserted, these were in the nature of a treaty, judgment could not be left in the hands of the Dominion as one of the contracting parties. 28 In neither instance was the outcome of the appeal such as to sustain this interpretation . In 1886 Granville told the Island delegates that "the Queen had no power either by statute or otherwise" to handle their grievance. In 1883, at the request of British Columbia, Carnarvon did offer himself as arbitrator and Lord Dufferin persuaded MacKenzie to accept him. Carnarvon had a dangerous knowledge of Canadian affairs and he was an ardent Imperialist; Dufferin interpreted the duties of the Governor-General very broadly. 25 KEITH, A. B., RESPONSIBLE GOVERNMENT IN THE DOMINIONS, p. 576, 586. 26 Special Committee on the British North America Act (Ottawa, 1935), p. 35, evidence of Dr. O. D. Skelton . 27 Ibid., p. 110, evidence of Professor N. McL. Rogers . 28 Sir John A. Macdonald in 1870 wrote to Governor Musgrave of British Columbia that "the true course for your advisers to pursue [about the terms of union] is to press the adoption of the whole as being a quasi treaty . " Macdonald Letter-Book, letter of December 3, 1870 ; and see also letter of September 20, 1870. There can, however, be no doubt that Sir John was thinking in terms of political strategy rather than of constitutional law .

Nov. 1936]. Petitions to London by Provincial Governments . 749

These circumstances counted for more in the intervention than did constitutional principles. In any event the arbitration of the Colonial Secretary was soon repudiated, and there can be no doubt that it aggravated the quarrel between British Columbia and the Dominion. In none of the appeals to London had a provincial govern- ment a strong case, because in every instance the appeal had an element of bluff. A provincial premier, who has- stirred up or responded to an agitation, cannot easily draw back when the response of the Dominion to his complaint is not favourable. The temptation is strong to try to frighten the Dominion by an appeal to London. But events indicate that such a _ move is bad tactics. The provincial governments have been thoroughly, if gently, rebuffed. A more favourable result could usually have been obtained by persistent pressure upon Ottawa.

J. A. MAXWELL. Clark University, Worcester, Mass.