CO885-(11-13) — Page 140

PUBLIC RECORD OFFICE

Reference :-

mwimm

PLC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

No. 834.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE. We are honoured with your Lordship's commands signified in Mr. Holland's

Temple, June 24, 1873. letter of the 21st instant, stating that he was directed by your Lordship to transmit to us a copy of a Despatch of May 27, from the Governor General of Canada, together with enclosures, in which the Governor General requested instructions from Her Majesty's Government as to the course he should take with reference to the Resolution of the Canadian House of Commons urging the disallowance of certain acts passed by the New Brunswick Legislature with the view of legalising a series of assessments made under the Common Schools Act of 1871, and in amendment of that Act.

2. It would be in our recollection that the New Brunswick Schools Act of 1871, of which a copy was annexed for reference, was reported upon by us as being within the powers of the Provincial Legislature, and we had also given it as our opinion that the Parliament of Canada had no power of remedial legislation under the 4th sub-section of section 93, of the British North America Act, 1867 (30 Vict. c. 3.).

3. The history and character of the particular acts of the Provincial Legislature to which the Resolution of the Canadian House of Commons applied, were so fully detailed in the remonstrance addressed to Lord Dufferin by a delegation from the Government of New Brunswick, that it appeared unnecessary to do more than call our attention to the statements made in that remonstrance.

4. The first question that arose upon these papers was, whether these Acts of 1873 were within the powers of the New Brunswick Legislature, and as bearing upon this point, it was to be observed that by section 93 of the British North America Act, an exclusive power of legislation in relation to education was vested in the Provincial Legislatures, subject to certain provisions specified in that section.

5. If the Acts were not within the powers of the Provincial Legislature, it was appre- hended that the Governor General should be instructed to disallow them; and upon this point, he (Mr. Holland) was to refer us to the terms of Lord Granville's Despatch to the Governor General of the 8th May 1869, which was approved by the Law Officers of the Crown, and of which a copy was annexed.

6. But if they were within the powers of the Frovincial Legislature, a further and important question arose as to the proper course to be pursued by the Governor General in the circumstances stated in these papers.

7. The position and powers of the Governor General with respect to the Acts of the Provincial Legislature were defined by the British North America Act 1867, and it would appear upon a comparison of the provisions of section 90, with those of sections 55 and 56 of the Act, that the power to disallow was in terms vested in the Governor General, who was, as regards Provincial Acts, placed in the same position as the Queen holds with respect to the Acts of the Dominion Parliament.

8. In considering the question what instructions should be given to the Governor (ieneral it must be observed that if the Dominion Parliament and the Dominion Ministers were to advise the Governor General as to all Provincial Acts, though within the powers of the Provincial Legislature, and if the Governor General was to act upon such advice in the same manner as he would act upon their advice in regard to Acts of the Dominion Parliament, it would seem to follow that the Dominion Parliament would thus indirectly get the control of all matters of Provincial Legislation, whereas the British North America Act by section 91 expressly limited the powers of the Dominion Parliament to certain specified subjects; and the question therefore arose whether it was within the competency of the Dominion Parliament or Ministers to interfere in cases where a Provincial Act is within the powers vested in a Provincial Legislature.

9. In these circumstances, he (Mr. Holland) was to request us to favour your Lordship with our opinion upon the following questions which appear to be raised upon this Despatch and its enclosures :-

1. Whether these Acts of the New Brunswick Legislature arc, like the Act of 1871, within the powers of that Legislature?

2. If they are within those powers, whether the Canada House of Commons can constitutionally interfere with their operation by passing a Resolution such as that of the 14th May?

0 16278.-876. 25.--5.86.