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Draft Telegram to GOVERNOR, St. John's, Newfoundland.
Referring to my telegram of 10th October, having now consulted Law Officers of the Crown, His Majesty's Government have come to following conclusions:- First Right of United States fishermen to take fish under Convention of 1818 in bays, harbours and creeks between Quirpon Islands and Cape Ray and between Cape Ray and Rameau Islands is beyond question, but they have no right to prosecute fishery from shore, and your Ministers have the power, desired, to prevent inhabitants of Newfoundland from assisting them in the exercise of their fishery rights. Secondly: It is stretly in strictness within the power of your Ministers to refuse permission to purchase fish, whether for bait purposes or for export in bulk, to all United States vessels on any part of the coast of Newfoundland, but His Majesty's Government decline to be parties to any such action or to be responsible for any consequences in the way of retaliation by the United States which may result therefrom. They would further impress upon your Ministers extreme desirability of not resorting to power of seizure under Proclamation and indeed of confining any action for as possible to inhabitants of Colony.
[Subject to observations in our Report herewith.]
October 24, 1905.
R. B. F. E. C.
38779
SIR,
No. 18.
(WESTERN AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
[Validity of the Aborigines Act, 1897.]
Royal Courts of Justice,
October 30, 1905.
WE were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 10th instant, stating that he was directed by you to lay before us a despatch dated the 21st of August last from the Governor of Western Australia transmitting a communication from Mr. F. Lyon Weiss questioning the validity of the Aborigines Act, 1897, of Western Australia, together with a report by the Acting Attorney- General on the subject.
That Mr. Bertram Cox was to direct our attention to the following enact- ments, viz. :-5 and 6 Vict. Cap. 76 sec. 33, 13 and 14 Vict. Cap. 59 sec. 12, and 53 and 54 Vict. Cap. 26 section 2 (a) upon which Mr. Weiss based his contention that the Aborigines Act, 1897, had never had any force or authority in Western Australia, the Governor never having signified either by speech or message to the Legislature or by Proclamation, as required by 5 and 6 Vict. Cap. 76 sec. 33, that the Bill had been laid before Her late Majesty in Council, and that Her Majesty had been pleased to assent to the same.
That in this connection Mr. Bertram Cox was to point out that the words "and the Bills so reserved" which occur in section 12 of 13 and 14 Vict. Cap. 59 do not occur in section 2 (a) of 53 and 54 Vict. Cap. 26, and that it might, perhaps, be argued that by this omission it was intended that the provisions of 5 and 6 Vict. Cap. 76 section 33 concerning "the Bills so reserved" (including, inter alia, the provisions as to the signification of the Royal Assent thereto in the Colony) which were applied to Western Australia by 13 and 14 Vict. Cap. 59 sec. 12, should no longer apply to the Colony under 53 and 54 Vict. Cap. 26.
That it would be observed that the Acting Attorney-General, in his report, avoided any attempt to set up that 5 and 6 Vict. Cap. 76 sec. 33, no longer applied to Western Australia (whether on the grounds suggested in paragraph 3 of Mr. Cox's letter to us or on any other grounds) and, in fact, ignored the provisions of the Imperial Acts cited above, altogether, contenting himself with stating in graph 10 of his report that a proclamation of the Act was published in the Gazette for 1st April, 1898, in accordance with Section 13 thereof. That even this observa- tion was far from accurate as Mr. Weiss showed upon annexure E. (containing the text of the Proclamation) to his letter.
para-
That the Proclamation of 28th March, 1898, was couched in inaccurate and misleading terms, and that it could not, in your opinion, be contended that in view of the actual provisions of Section 13 of the Act, the mere issue of the Proclamation amounted, by necessary implication, to a signification of the Royal Assent, although, if Section 13 had been correctly recited in the preamble to the Proclamation so as to contain a mention of the Royal Assent, the Proclamation might have been held sufficient to satisfy 5 and 6 Vict. Cap. 76 sec. 33 and also sufficient evidence of the Royal Assent, within Section 6 of the Colonial Laws Validity Act, 1865, to prevent any question as to the validity of the Colonial Act arising.
That Mr. Bertram Cox was to say that, in view of the fact that the Aborigines Act, 1897, was deliberately approved by the then Secretary of State and assented to by Her late Majesty in Council, you were strongly of opinion that its effects should not be allowed to be undone by a technical informality with regard to the significa- tion of the Royal Assent in the Colony.
That Mr. Bertram Cox was, therefore, to request us to take his letter and its enclosures into our consideration and to report :-
1. Whether the provisions of 5 and 6 Viet. Cap. 76 sec. 33 as to the signifi- cation by the Governor of the Royal Assent to a reserved Bill were applied to Bills passed by the present Legislature of Western Australia by 53 and 54 Vict. Cap. 26 sec. 2 (a), and what significance (if any) is to be attached to the omission from the
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