PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
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"(2) Any sums payable by way of indemnity under the said Convention, and any expenses to be incurred in carrying it into effect shall be defrayed out of moneys provided by Parliament."
That it would be seen from the reference to our predecessors of the 23rd April, 1904, embodied in their opinion of the 26th April, 1904,* that the Bill of this Act. was drafted with the object of avoiding, as far as possible, the constitutional question of the power of the Crown to cede territory without the consent of Parliament.
That the effect of the Anglo-French Convention Act was not clear to your Lordship. Did it merely approve of His Majesty's ratifying the Convention, or did it also give legislative effect to the new regime as regards the French fishery, so far for example as to enable the Colony to enforce on French fishermen the laws and regulations as to close times and the improvement of the fisheries notwithstanding the preservation of the old French rights of fishery in the Marine and Fisheries Act, 1898, and to make it illegal for the Colony so to enforce the Bait Act as to deprive That French fishermen of the bait privilèges secured to them by the Convention? as possibly bearing on this question he was to point out that when Parliament con- firmed the North Sea Fisheries Convention, 1882, it provided as follows (46 and 47 Vict., c. 32, Section 2):-" The Convention set out in the first schedule to this Act (referred to in this Act as the Convention) is hereby confirmed, and the Articles thereof shall be of the same force as if they were enacted in the body of this Act."
That substantially the same provisions appeared in Section 1 of the Act 56 and 57 Vict., c. 17, which confirmed the North Sea Liquor Traffic Convention of 1887. That in the Act for giving effect to the Behring Sea Award, 57 Vict., c. 2, it was provided (see Section 1 (1)): "The provisions of the Behring Sea Arbitration Award set out in the first schedule to this Act shall have effect as if these provisions (in this Act referred to as the scheduled provisions) were enacted by this Act, and the acts directed by Articles 1 and 2 thereof to be forbidden were expressly forbidden by this Act."
That he was also to point out that the late Attorney-General (Sir R. Finlay) advised informally in May, 1904, before the Anglo-French Convention Act, 1904. was passed that the powers which it was proposed to confer on His Majesty by the Bill would not enable His Majesty to provide by Order in Council for the enforce ment of the Regulations for the policing of the joint Anglo-French fishery in New- foundland, contemplated in the last paragraph of Article 2 of the Convention, and that legislation by the Imperial Parliament or by the Colonial Legislature would be necessary for this purpose.
That in each of the three other Imperial Acts mentioned His Majesty was expressly given power to make regulations by Order in Council.
That he was to request that we would take his letter into our consideration and favour your Lordship with our opinion on the following questions :—
(1) What was the proper construction of the Anglo-French Convention Act. 1904, as regards the new rights of French citizens in Newfoundland waters. Did it give statutory effect to the provisions of the Convention in that respect, so as (a) to make French fishermen subject, after three months' notice, to the Colonial Regula tions as to close times and the improvement of the fisheries, notwithstanding that by Section 10 of the Marine and Fisheries Act, 1898, the French rights then existing were so to speak perpetuated; and (b) to make it illegal to deny to French citizens the bait privileges secured to them by the Convention of 1904, notwithstanding the fact that at the time when the Bait Act was passed they were not entitled de jure to those privileges?
(2) What were the nature and extent of the powers conferred on His Majesty by the Act? In particular could they be exercised to restrain the Colonial Government from infringing the Convention and, if so, in what form and manner should they be so exercised?
That his letter was based on the advice given in our report, but that in view of our statement that the application of the words "granted by Treaty" was not free from doubt, the accompanying memorandum, embodying some facts not before us when we expressed that opinion, had been prepared by your Lordship's direction and was submitted for our consideration.
No. 223 in Vol. VI.
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We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to
Report
That (1) the difficulty which arises in the construction of the Anglo-French Convention Act, 1904, on the points to which our attention is directed is owing to the fact that the ordinary form of words adopted in Acts of Parliament, where it is desired to give statutory effect to treaties, has not been used in the present case. Under that form it was expressly provided that the Treaty should be of the same force as if enacted in the body of the Act, but in the present case the Treaty is approved and the Act goes on to say that it shall be lawful for the King to do every- thing which appears to him necessary or proper for carrying the Convention into effect.
We are of opinion that these latter words, though somewhat unfortunately chosen for this purpose, are, upon a fair construction, the same in substance and effect as the older form of words. The Act declares that it shall be lawful for the King to carry the Treaty into effect and this can only mean that the provisions of the Treaty become part of the Imperial Law; otherwise it is difficult to see what practical effect can be given to the words at all. If this view be correct, the Con- vention Act, 1904 (which clearly extends to the Colony), over-rides any Colonial Act repugnant to it to the extent to which such repugnancy is apparent from the Convention.
We are unable to see what bearing the Marine and Fisheries Act, 1898, has upon the point raised. That Act did not affect the French Treaty rights at all, either by way of diminution or confirmation.
It follows that, in our opinion, it is illegal on the part of Newfoundland to deny to French citizens the bait privileges secured to them by the Convention of 1904.
(2) The nature and extent of the powers conferred on the King by the Act depend on what is necessary to give effect to the provisions of the Treaty. In our opinion such powers could be exercised to restrain the Colonial Government from infringing the Convention, and it would be for the Courts to say whether the force necessarily used in that behalf was legally used or not.
The Right Honourable
The Earl of Elgin, K.G.,
&c.,
&c.,
&c.
We have, &c.,
JOHN L. WALTON. W. S. ROBSON.