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The following article is from:
Saskatoon Phenix March 17, 1905, pp. 1 and 10
"Territorial Premier Doubts the Necessity of Cutting Northwest Into Two Provinces---Criticizes the School Clause From a Constitutional Standpoint---Control of Irrigation and Public Lands---Provision for Appointing Judges.
"Ottawa, March 12 -- The following open letter has been sent to Sir Wilfred Laurier by Premier Haultain under the date of yesterday: --
"Sir, -- The somewhat hurried termination of the conference to which you were good enough to invite representatives of the Northwest Government, and the introduction of the Alberta and Saskatchewan bills, call for a final statement on the subject. In this statement I shall continue my remarks to some of the more important provisions of the bills, leaving a number of minor matters requiring consideration to less formal mention.
"The first question which suggests itself, is the one of necessity for the creation of two provinces instead of one. After careful consideration I am more convinced than ever that there is no necessity for dividing the country into two provinces, with the consequent duplication of the machinery and institutions. The provincial machinery is elaborate and expensive and is more suitable to large areas and large populations. The new Territories have for a number of years been under
and legislature, performing most of the duties and exercising many of the more important powers of provincial governments and legislatures.
"There has never been any suggestion that the territorial autonomy was in any was [sic] inadequate for the purposes for which it was created. Our laws and institutions are admittedly efficient and satisfactory. Under them the people of the Territories have acquired a political individuality and an identity as distinct as that of the people of any province. Up to the thirteenth of June next, this will continue to be the case and there does not seem to be any reason based on necessity, or convenience, why on the first day of July they should be suddenly divided in two, separated by a purely arbitrated line and obliged to do with two sets of machinery and institutions what they, to a great extent, have been doing quite satisfactorily and efficiently with one.
"I must, however, frankly state that this opinion is by no means unanimously shared in the Territories and that the proposed action of the government will not call forth much hostile criticism.
"I must take strong exception to the way in which the subject of education, has been treated, both in the conferences and in the bills. I must remind you of the fact that your proposition was not laid before my colleagues or myself until noon of the day upon which you introduced the bills. Up to that time the question had not received any attention, beyond a casual reference to it on the previous Friday, and I certainly believed that we should have had an opportunity of discussing your proposals before twelve o'clock on the day the bills received their first reading.
"No such opportunity, however, was afforded as, unfortunately, you were not able to be present at the session when this section was submitted; neither was Sir William Mulock. I feel sure you will acquit me of any felling in the matter other than that such an important subject should have been fully discussed before the bills dealing with it were laid before parliament.
"With regard to the question of education generally, you are no doubt aware that the position taken by us was that the provinces should be left to deal with the subject exclusively, subject to the provisions of the British North America Act, thus putting them on the same footing in this regard as all the other provinces in the Dominion except Ontario and Quebec. I submit that parliament is bound by the provisions of the British North America Act of 1867, in passing the legislation of this kind.
"The power of the King in council exercising in effect legislative functions of the parliament of the United Kingdom, under the authority of section 146 of the British North America Act in 1867, is restricted by the words: "Subject to the provisions of this act." This restriction must equally apply to parliament exercising the powers conferred upon it by the British North America Act, 1871, which by section 3 of the British North America Act, 1886, must be "construed together" with the British North America Act, 1867.
"If the King in council is bound by the provisions of the act, in admitting an independent, and consenting colony into the union, it can hardly be contended that parliament has the power to create an unwilling, inferior and imperfect organization. As was pointed out in June 1869, by the Honorable Edward Blake, in the House of Commons, in the discussion upon a proposal to re-arrange the terms of confederation with respect to Nova Scotia; it is perfectly clear on great and obvious principles, that the basis of union settled by the British North America Act is not capable of alteration by parliament. If the provincial jurisdiction can be invaded by positive federal legislation, such as is proposed in this case, what limit is there to the exercise of such a power? Similar restrictions might be imposed with respect to any or all of the matters in relation to which under the British North America Act, 1867, the provincial legislatures possess exclusive powers.
"The only jurisdictioo [sic] possessed by parliament in this respect is the remedial jurisdiction conferred by sub-section four of section 93 of the British North America Act 1867. The proposed attempts to legislate in advance on this subject is beyond the power of parliament and is an unwarrantable and unconstitutional anticipation of the remedical [sic] jurisdiction. It has, further the effect of petrifying the positive law of the Province with regard to a subject coming within its exclusive jurisdiction and necessitating requests for imperial legislation, whenever the rapidly changing conditions of a new country may require them.
"On the fifteenth of July, 1870, the Northwest Territories were "Admitted into the Union," in the express terms of section 146 of the British North America Act, 1867. To speak of the provinces of Alberta and Saskatchewan, then, being admitted into the union, on the first of July, 1905, is an improper and indefensible use of the expression. The territory included within the boundaries or these proposed provinces were, admitted into the union on July 15, 1870, and immediately upon the creation of these provinces the provisions of section 93 of the British North America Act, 1867, became as a matter of indefensible right, a part of their constitution. Tn [sic] the creation of provinces the term 'province' in that section, interprets itself, and the term 'union' bears the unmistakable meaning which is given to it with regard to the area included in the provinces by the actual language of section 146.
"The first sub-section of section 16 of the bills is drawn in direct contradiction of this principle. It is an attempt to create a province retroactively. It declares territorial school laws, passed under the restrictions imposed by the Northwest Territories Act to be provincial school laws. It clothes laws imposed by the federal parliament with all the attributes of laws voluntarily made by a new province. It ignores territorial limitations and conditions. It denies facts and abolishes time. It declares what was not to have been, and seeks to perpetuate as existing what never was nor is.
"I therefore most respectfully demand on behalf of the Territories that the same terms -- and no others -- imposed by the Queen in council on the admission of Price Edward Island and British Columbia, be prescribed in this instance. The draft bill I submitted more than three years ago contains the clause which will be found in the orders of council admitting those provinces. To impose more, or to prescribe less, would I submit be equally contrary to the law and constitution. The clause referred to is as follows:
"On, from, and after the said first day of January, 1903, the provisions of the British North America Act, 1867, except those parts thereof which are in terms made or by reasonable intendment may be held to be specially applicable to or to effect only one or more, but not the whole of the provinces under that act composing the Dominion, and except so far as the same may be varied by this act shall be applicable to the province of ---- in the same way and to the same extent as they apply to the several provinces of Canada; as if the province of ---- had been one of the provinces originally united by the said act.
"The fact that since the acquisition of the Northwest Territories, parliament has passed certain laws affecting those territories, does not involve the principle that these laws must be perpetuated in the constitution of the proposed provinces. In this respect laws relating to education do not differ from the laws relating to any other subject. To state that the law passed in 1875, with regard to education, must forever limit the power of the province with regard to a very important provincial right, involves the theory that parliament might practically take away all the jurisdiction of a province, shorn of every power which it is supposed to posses under the constitution.
"I wish to lay great stress on the fact that this a purely constitutional question, and is not concerned in any sense with the discussion of the relative merits of any system of education. The question is one of provincial rights. It is not the question of the rights of a religious minority, which must be properly, and may be safely, left to the provincial legislatures to be dealt with, subject to the general constitutional provisions in that regard. It is this question of the right of a minority of Canadians in the wider area of the Dominion, to the same rights and the same privileges, the same powers and the same constitution, as are enjoyed by the rest of his fellow citizens; and which they claim to be their inalienable possession under the one and only Canadian charter -- the British North America Act.
"The first observation I have to make upon sub-section 3, of section 16, is that it is a direct interference by parliament with the right of the province to do as it seems to it the best with its own. I would next call attention to the fact that sub-section three of section 25 of the Dominion Lands Act, which provides that certain revenues arising from the school lands fund, shall be paid annually to the government of the province or the territory within which such lands are situated, toward the support of public schools therein; and the money so paid shall be distributed for that purpose by the government of such province or territory, in such a manner as it deems expedient.
"This clause surely creates as inviolable a right in the solemn form of a trust as it is claimed was created by the adoption of section 14 of the Northwest Territories Act which deals with the question of education. Its language is definite and unmistakable. I gather then from history of this section that parliament defined and limited the scope of the section from time to time, always making it more definite and more restricted. In 1872 when the Dominion Lands Act was first enacted, section 22 of the act, provided that it was "Expedient to make provision in aid of education," and set aside certain scribing any particular course of lands for that purpose without pre-procedure in connection there with. When the act was consolidated in 1879, the clause providing for the trust fund was first enacted. It read as follows:
"Section 23 (3): Provided also that all moneys from time to time realized from the sale of school lands shall be invested in Dominion securities, and the interest arising therefrom after deducting the cost of management, shall be paid annually to the government of the province or territory within which such lands are situated towards the support of public schools therein -- the moneys so paid to be distributed with such view by the government of such province or territory in such manner as may be deemed most expedient.
"In the next consolidation of the act, that of 1883, this section was again amended to read as follows, the words added to the former section being italicized:
"Section 20, (4) sub-section 4: Provided also that all moneys from time to time realized from the sale of school lands shall be invested in Dominion securities to form a school fund and the interest arising there from, after deducting the cost of management, shall be paid annually to the government of the province or territory, within which such lands are situated, towards the support of public schools therein -- and the money so paid to be distributed for that purpose by the government of such province or territory, in such a manner as may by it be deemed most expedient.
"The changes made especially the introduction of the words 'by it,' show that parliament was evidently anxious to make it perfectly plain that the expenditure of the money resulting from this fund shall be left entirely in the discretion of the province. The broad general term 'education,' after being carried through the consolidations of 1879 and 1883 was left out in the revision of 1886; and there is no warrant for assuming that the words 'public schools' in the act, as it at present stands, mean or include any other schools.
"I therefore wish to express my most emphatic objection to the legislation in regard to this subject. I recognize no power in parliament to make laws for the new provinces in contravention of the letter and spirit of the British North America Act. Further, I recognize neither right nor justice in the attempt to dictate to the provinces of Alberta and Saskatchewan the manner in which they will conduct their own business.
"I very sincerely regret that it is necessary to give this turn to this discussion and I trust you will believe it is no sense from desire of my own to introduce an inharmonious note into these comments. The new provinces have their own futures to work out, and I deplore deeply the possibility that they may commence their careers torn with dissention upon such subjects as these. It seems to me that a great deal of trouble might have been avoided had we been afforded an opportunity of discussing these proposals, and I feel that I must place on record the fact that we are not responsible for the situation.
"Sections 13 and 20 provide that the public domain in each province shall be administered by the government of Canada for the purpose of Canada; an annual grant being made based upon certain varying rates of interest, upon the capitalization of 25,000,000 acres of land at $1.50 per acre. Here again I have to express my dissent from the action taken. By analogy and by the acknowledgement of the principle of compensation contained in section 19, we claim that the provinces are entitled to be recognized as the beneficial owners of the crown domain, and as such their right to administer their own property for themselves is one that should not be taken away without their consent.
"As to whether or not the terms offered are fair or sufficiently large I am not in a position to judge having no material at hand to enable an estimate to be formed. I have one fact in mind in this connection and it is contained in the statement of the Hon. Clifford Sifton, speaking as minister of the interior, when he said that in one portion of the west alone, the construction of the Grand Trunk Pacific Railway would make some 50,000,000 acres of land available for settlers the value of which was not less than $3 an acre, in which manner he pointed out that the whole cost of the construction of the road might be provided for. This was only in one section of the country. But I am not unwilling to admit that an immediate income, increasing with the population, and certain in amount, may in the long run prove quite as satisfactory as any profitable net income resulting from local administration of the public domain.
"I think a clerical error has been made by not inserting after the word 'census' the words 'or estimate.' I refer to the estimate between each census contemplated by section 17. There are also errors in the computation of the amounts payable under the last section of the first sub-section, and under the second sub-section. In these cases the first amount should be $1,125,000 and the second should be $92,750.
"The matter of irrigation, so closely related to the land question, in my opinion stand on a different footing; and I can see no reason why the section in my draft bill transferring the jurisdiction with regard to irrigation to the province, should not have been adopted by you. Irrigation is a local need in every sense of the word, and will confined to one portion of the Territories, and pecularily [sic] therefore, falls in local jurisdiction. The desirability and convenience of local administration in this regard has been already admitted by parliament, by a delegation of the administration of the Northwest Irrigation Act, to the territorial commissioner of public works. The retaining od [sic] the jurisdiction in this case by the federal government is a serious invasion of the provincial jurisdiction in matters of property and civil rights, and is bound to create both inconvenience and friction.
"The bill does not contain any provisions with regard to the selection of judges for the provincial courts. My draft bill contained the following clause, which is identical in principle with the clause on the same subject contained in the British North America Act: The judges of the courts of the province shall be selected from the bar bar [sic] of the province, or from the bar of some other province, in which the laws relative to property and civil rights, and the procedure of the courts are the same as the province of ----.
"As the conference has come to an end, and the government has expressed its own opinion publicly in the form of bills, the whole of this matter now has become a subject for public discussion, and I now propose to make this letter public at the very earliest opportunity and not to treat it as an official communication, only to be made public in the ordinary way.
"In concluding this letter, I beg to express on behalf of the Northwest Government, our high appreciation of the attentive and courteous consideration extended to us by yourself, and the other members of the sub-committee of the council throughout the whole conference.
"I have the honor to be, sir, your obedient servant,
"F. W. G. HAULTAIN."