CONMEE (Thunder Bay) moved for leave to introduce Bill (No. 150) to amend the Navigable Waters Protection Act, chapter 115. He said: When the Bill for the incorporation of the Ontario and Michigan Power Company was before the House for its second reading a short time ago, the leader of the House expressed the view that it would not be within the jurisdiction of a provincial legislature to incorporate a company with the powers that company was asking for. The hon. leader of the opposition expressed the view that a provincial legislature might incorporate such a company, but might not be able to confer upon it the power to carry out the objects proposed, but
it might obtain that power by making application under chapter 115. I am not going to pretend to decide which of these opinions is correct; that is not necessary to the purpose I have in view. But so far as my information goes, so far as I can interpret the statute, and so far as I can learn from legal gentlemen with whom I have discussed the question, it is at least doubtful if a company incorporated otherwise than by the Parliament of Canada could obtain under chapter 115 power to construct works of any kind in navigable waters. Sub-section 'a' of section 2 of that Act defines the works that may be so ratified. (2) In this part, unless the contract otherwise requires:
' Work ' includes any bridge, boom, dam, aboiteau, wharf, dock, pier or other structure, and the approaches or other works necessary or appurtenant thereto.
In section 3 of this Act, we find these words:-
Except so much of this part as relates t* rebuilding or repairing any lawful work, nothing hereinafter in this part contained shall apply to any work or structure under the authority of any Act of the parliament of Canada or of the legislature of the late province of Canada or of the legislature of any province of Canada, passed before such province became a part thereof.
That language, it would appear, excludes from the operation of part 1, chaper 114 (a) ' any works authorized by the parliament of Canada.' I assume that that is not to be construed to mean that the parliament of Canada could not pass a special Act to authorize that work, but that is the language of the section as it stands whatever interpretation may be put upon it; (b) ' any work authorized by the legislature of the late province of Canada or any work authorized by the legislature of any province now forming part of Canada, passed before such province became a part thereof.' I would submit that this does not exclude the rebuilding or repairing of any existing works, I assume that such works could be rebuilt or repaired under chapter 115. That section is well knowm to hon. gentlemen, and therefore I shall not take up time reading it. But section 7 of the first part, which is the question under review here, provides:-
The local authority, company or person proposing to construct any work in navigable waters, for which no sufficient sanction otherwise existed, may deposit plans thereof and a description of the proposed site with the Minister of Public Works, and a duplicate of each in the office of the registrar of the district, county or province in which such work is proposed to be constructed, and may apply to the Governor in Council for approval thereof.
The subsection provides for advertisement so that there may be public notice given. I submit that this provision goes no further Mr. CONMEE.
than the works specifically mentioned in subsection (a) of section 2, chapter 115, under the provisions of that Act the works I have mentioned, namely, any bridge, dam, wharf, dock, pier or other construction or approaches thereto. Beyond those specific works mentioned, there is no power in the Act giving the Minister of Public Works or the Governor in Council power to authorize other wrorks such as a diversion of navigable waters. I may say that a question in point has arisen in connection with the works proposed to be built on the Rainy river at Fort Frances. The company there had obtained from the province of Ontario a charter under letters patent to carry out certain works of development upon the river, under an agreement which they had entered into with the government of the province. They came here to get their plans approved, but the department would not approve of them because they had not the requisite legal authority. Section 1 of the Act provides with regard to the rebuilding authority, that the w'ork shall be a lawful one, and what constitutes a lawful work is defined by the Act, chapter 115:-
Lawrful work means any work not contrary to the law in force at the place of the construction thereof at the time of such construction.
It was held that they had no lawful authority to go on with the w'ork, and therefore could not get their plans approved. That was one reason, I presume, which caused them to ask for the Bill from this parliament, which they obtained in 1395. The provisions of the Act provide that the company shall, before commencing their work, submit plans and apply for the approval of the Governor in Council.
Pending the passage of the Act, a dispute arose between the municipality of Fort Frances and this company, and the municipality filed a petition. It appears there was a dispute about an agreement-that is, there were, it appears there were, tw7o agreements entered into. The first one was dated 17th March, 1904, but it appears another agreement was made, as alleged by the municipality without their knowledge, and dated the 19th of October, 1905. The municipality took exception to the ratification of the plans, but an Act w'as obtained from this parliament, giving authority to the company to get its plans ratified. It got them ratified by an order in council, and I want to point out that an amendment to the statute is necessary, first, to determine what class of works are to be covered by such orders in council that may be passed under the Act, chapter 115.
I am not very much in favour of legislation by order in council. I do not think it is the best form of legislation, and I be-
lieve that the question involved in this measure is sufficiently important to require some governing statute which would better protect the public interest
I need not take up the time of the House explaining the position but there is a very grave injustice to Fort Frances. The agreement between the company and themselves is dated 17th February, 1904. The other agreement was sought to be legalized by the Act which the company asked for from this parliament and which was refused. The Act, as it is in our statutes, makes no reference to the alleged agreement of 19th February, 1905, at all. It was refused owing to a compromise. The solicitors on behalf of the town and the company agreed that an Act should be passed, without giving validity to the agreement in dispute, because the town was advised that they could set it aside by action in the courts. Strange to say that agreement has found its way into the order in council ratifying the plans. It is recited in full, and is made one of the bases for granting the request for the ratification of those plans.
I do not pretend to say -what legal effect that will have, but the Act in question-I had occasion to refer to it a few days ago- had been set aside, so far as it is in the power of the provincial legislature to do so. They passed another Act declaring that the company was not bound by the restrictions contained in the Dominion Act. When the Department of Justice came to deal with this provincial Act in the report as to whether it was an Act that should or should not be vetoed-I will not take the time of the House in reading the report because it is quite lengthy-the view of the minister was that the Act was very questionable, that it was beyond the authority of the provincial legislature to pass, but-unfortunately, in my opinion he did not recommend the disallowance of the Act and stated that the matter might be determined by the courts. Here was a community that, to my certain knowledge, has spent several thousands of dollars trying to defend what was a natural water-power, a great water-power in their town, for five years, first in the legislature, and then here, and, in the end, after employing the best counsel this country could afford and taking every step they could take as a small community to protect their interests, they are now relegated to the courts to find out what their rights are. I submit that there should be something better than that to determine these interests. There are several instances where the present method is not as workable as it should be. The department gave, as another reason.^ in this instance, why they could not ratify the plans of the company that they were asking for power outside the enumerated powers in the
Dominion Act, formerly Chapter 92, now 115, they were asking for the diversion of a navigable stream. The Department of Justice,
I believe, was consulted upon that point at that time-I am speaking of the application previous to the passing of the Act by this House in 1905-and the Department of Justice, according to my recollection, pointed out that that particular character of work was not covered by the Act, that there was no power to ratify the plans to that extent, unless they were empowered to do so by Act of parliament. So, we have this condition, that, under the Act as it stands to-day, if we take the view that has been expressed here, no provincial legislature could legislate in regard to the construction of any work of that character in or upon navigable waters, and it is equally true, if the practice to which I have referred be correct, that this government, under the existing law, cannot, or, at least, should not, in view of the express provisions of the statute, ratify plans in regard to works of the character of diversions to which I have referred. I am not going to say that plans of that character have not heretofore been ratified. I happen to know that works have been established at the town of Sault Ste. Marie without the ratification of plans, on the assumntion that the provincial legislature had jurisdiction and that ratification was not necessary. Somewhat later, in dealing with its securities, the company found that to give stability to them, they must have legal power to maintain their works, and they came to this government to get that power. But, if I am not mistaken, they have not got it. because the power did not exist under the statute to enable the department to ratify works already constructed. The language of the statute is ' works proposed to be constructed '-not works constructed. If I am cor-rectlv informed. I assume that the company, in ordeT to get itself out of the dilemma, will have to obtain an Act of parliament, if they have not already obtained it. The same condition exists in regard to the Kam-inistiquia river, near the cities of Port Arthur and Fort William. The works have gone on there without submitting plans to the Dominion authority. Dams have been, built and a navigable stream diverted. and there is no authority whatever. I could enlarge on that question and show that both life and property are at stake in these transactions. There is the case of the Current river near Port Arthur. A waterpower was developed there and storage dam3 built holding back large bodies of water. Unfortunately one of these dams gave way and the torrent of water carried away structure after structure in its course, including the tracks and bridges of the Canadian Pacific railwav in the city. And we know that the result of that was that there was great loss of property and the loss of several lives.
And these works are in their infancy in our country. The same great danger hangs over the community in the riding I have the honour to represent owing to the works at the city of Fort Frances. There should be proper inspection during construction of such works. Therefore, I submit this Bill with a view to meeting the difficulty. The Bill is in tentative form, and I hope that the government will realize the importance of the question and will bring in legislation to protect the public interest better than it is protected under the Act as it stands at this time. I might say, in that connection, that I notice there is a Bill on the Order Paper, introduced by the Minister of Marine and Fisheries (Mr. Brodeur). I do not know its scope, but I hope it is in the same direction as this. I am not sure that this Bill will reach a second reading, and that is why I have taken so much time in making my remarks upon it now. I may say, in closing, that it is not my intention to press this Bill-which is in tentative form, and can, no doubt, be made to cover the points of danger to which I have referred.