PUBLIC RECORD OFFICE
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Reference
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ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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passed on, the 22nd August last, and copies of it and of the principal Canadian Act are enclosed.
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6: It will be observed that the Canadian Acts re-enact certain sections of the Imperial Act, including Sections 1. 10, 11, 12, 13, 14, 15, 16, which deal with the definition of a natural-born British subject, the national status of married women, widows, and children, and the loss of British nationality, &c. As the sections of the Imperial Act are intended to have effect throughout the Empire, Mr. Bonar Law appreliends that the enactment of these sections by the Parliament of Canada is unnecessary and without effect, but he assumes that it is not open to any objection, and he does not, therefore, consider it necessary to ask you to comment on this point. 7. A further question arises as to whether the terms of the principal Canadian Act are sufficient in any case to adopt Part II. of the Imperial Act. It will be seen that Part II. of the Canadian Act does not include in express terms any adoption of the Imperial Act, but that in addition to re-enacting, with formal alterations to adapt them to Canada, Sections 2 to 7 of the Imperial Act, the Canadian Parliament has purported (in Section 8) to confer upon a Secretary of State in the United King- dom, and the Government of any British Possession, the same power to grant a certificate of naturalisation under or pursuant to the provisions of the British Nationality and Status of Aliens Act, 1914, as the Secretary of State of Canada has under the Canadian Act, and have provided that any certificate of naturalisation granted under this section" shall have the same effect as a certificate of naturali- sation granted by the Secretary of State of Canada under the Canadian Act.
8. It will be seen from the Governor-General's telegram of the 7th July, 1914, that this form of legislation has been adopted on constitutional grounds, but it appears to Mr. Bonar Law to be doubtful whether from the legal point of view the section in question is a sufficient adoption of the Imperial Act. As the power of the Parliament of Canada must be regarded as being confined to legislation effective within the territorial limits of the Dominion, it appears to Mr. Bonar Law that Section 8 (1) of the Canadian Act is, strictly speaking, of no effect and that it is not within the power of the Parliament of Canada to authorise the grant of cer- tificates of naturalisation by a Secretary of State in the United Kingdom or the Government of a British Possession. If this is the case, the question arises whether any effect can be given to sub-section 2 of Section 8, as that sub-section refers only to certificates of naturalisation granted "under this section." and would appear, therefore, to be of no effect, since the preceding sub-section is, it would seem, legally
itself of no effect.
9. On the other hand, it appears to be the view of the Canadian Government that the effect of the Canadian Act is to adopt Part II. of the Imperial Act, and this view appears to be supported by Section 9 of the Act, which is evidently based on the assumption that the Act itself is sufficient to adopt Part II. of the Imperial Act. It may be open to question whether or not that Act by itself did effectively adopt Part II, but it will be seen that the preamble to the amending Act of the 22nd August, 1914, contains an explicit declaration of the intention of the Par- liament of Canada to adopt Part II., and it is conceived that such a declaration would be referred to and would carry weight in the event of a Court being called upon to determine the true effect and scope of the Principal Act. It would, there- fore, appear that Section 8 (1) of the principal Act may be regarded as merely repeating the authority given by Clause 8 of the Imperial Act, and therefore as not being ultra cires, and Section 8 (2) would give certificates of naturalisation issued by a Secretary of State in the United Kingdom, or by the Governments of other British Possessions, full validity in Canada.
10.
A similar difficulty has arisen in the interpretation of the Newfoundland Naturalisation Act, a copy of which is enclosed; though in this case, the Act being in substance a consolidation of the two Canadian Acts, there is no declaration of intention to adopt the Imperial Act such as exists in the preamble to the amending Canadian Act.
11. Mr Bonar Law would be glad if you would take this letter and the enclosed papers into consideration and advise
(a) whether, having regard to the considerations set out in paragraphs 3, 6, 7, and 8 of this letter, the principal Canadian Act effectively adopts Part II of the Imperial British Nationality and Status of Aliens Act, 1914, within the meaning of Section 9 (1) of the latter Act;
(b) if not, whether the effect of the declaration in the preamble to the
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amending Act is sufficient to enable the Canadian laws to be construed as adopting Part II. of the Imperial Act;
(c) whether the Newfoundland Act effectively adopts Part II. of the Imperial
Act within the meaning of Section 9 (1) of the latter;
(d) If the answers to the above questions are in the negative, what amend
ments of the Canadian and Newfoundland Acts would be sufficient to meet the requirements of Section 9 (1) of the Imperial Act!
REPORT.
I am. &c.,
HENRY LAMBERT,
for the Under-Secretary of State.
(a) The principal Canadian Naturalisation Act of 1914 was passed before the British Nationality and Status of Aliens Act, 1914, had become law, and it incor- porated, with variations, some (but not all) of the provisions now found in Part II. of the British Act. The proviso to Section 8 (1) and Section 9 of the British Act are altogether onfitted from the Canadian Act; and the sections of the British Act which are incorporated in the Canadian Act are so incorporated with variations which alter their effect. In these circumstances, we should have difficulty in holding that the principal Canadian Act taken alone was an effective adoption of Part II. of the British Act.
(b) But the amending Canadian Act of 1914 recites that by the principal Act the Dominion of Canada had adopted Part II. of the British Act; and we think that this recital (even if in itself inaccurate) amounts to a legislative declaration by the Canadian Parliament of an intention that the British Act (which had then become law) should be adopted by the Dominion, and accordingly that the adoption is now effective.
(c) The Newfoundland Naturalisation Act of 1915 was passed after the British Act; but it is open to the other observations made in paragraph (a) as to the principal Canadian Act; and in this instance the defects are not cured by any legislative declaration. We therefore think it doubtful whether the British Act has been effectively adopted in Newfoundland.
(d) In view of the possibility of questions being raised hereafter in some part of His Majesty's dominions as to the effective adoption of the British Act, and of the importance to naturalised persons and their issue of leaving no doubt whatever upon the point, we think it desirable that an Act should be passed in Newfoundland expressly adopting Part II. of the British Act. and declaring (in order to prevent doubt) that the adoption shall have effect as from the passing of the existing Statute.
FREDERICK SMITH. GEO. CAVE.
Law Officers' Department, 8th January, 1916.
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