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History of Saskatchewan and The Old North West
Chapter XL - The New Provincial Constitution


The School Situation in 1905—The Saskatchewan Act Introduced— Crown Lands to Remain Vested in the Federal Government —Financial Terms—Sir Wilfrid Laukier's Tribute to Separate Schools—Mr. Haultain's Letter—Dissentions Within the Parties—Mr. Borden's Amendment to the Educational Clause—Mr. Christopher Robinson on the Constitutional Controversy—The Compromise.—General Outlines of Saskatchewan Act—Unwritten Elements of the Constitution— The Provincial Cabinet System.

Meantime, Parliament had met on January 12th, and the Governor-General's speech had promised a bill for the conferring of autonomy on the Territories.

The population of the region which was to be organized into the new Provinces—Alberta, Assiniboia East, Assiniboia West and Saskatchewan— was, according to the census of 1901, 158,940, with an accession by immigration, up to May 1, 1905, of 264,182.

During the twenty years from 1884, when the existing school system was established in the Territories, 1,360 school districts had been erected, of which only sixteen were for separate schools, and two of these were Protestant. Only four separate schools had been organized since 1892, when Roman Catholic control and management of their separate school districts was abolished, though according to the 1901 census, twenty per cent of the population of the new Territories was of the Roman Catholic faith. However, the leaders of that church now stood firm for the maintenance of separate school privileges. The Bishops of St. Albert and Mackenzie, and Father Lacombe, all revered throughout the West, to the welfare of which they had devoted their lives, united in the following pronouncement: "From our standpoint there cannot be any compromise on this question. Our schools are not only places where children are taught (secular learning), but where they receive their religious training, and it should ever be so. This is the only advice we have given to all our people and it is this we have urged them to obtain." How effectively these views were urged was indicated, when on February 21, 1905, Sir Wilfrid Laurier introduced the long-looked-for Autonomy Bill.

The Premier commenced his speech by reviewing the history of the West from 1875, when the Mackenzie Administration gave it an "entirely independent government," by virtue of the charter under which its people had developed, and which had never been repealed, although provisions had been added from time to time. The Act of 1875 was the rock upon which had been reared the structure which was about to be crowned with complete and absolute autonomy. Sir Wilfrid called attention to the clause in this 1875 measure which introduced into the Territories the system of Separate Schools in force in the Province of Ontario. Discussing subsequent constitutional and administrative changes affecting the Territories, he reminded his hearers that in 1886 the North West was given representation in Parliament, and that two years later a local Legislature was created with an Advisory Council to deal with matters of finance. In 1891 additional powers had been given to the Legislature, and in 1897, by Federal enactment, an Executive Council, responsible to the members of the Legislature, was established.

The culmination of all this process was the measure now before the House. In framing this legislation, the main questions for settlement had been four in number: (1) The number of Provinces; (2) the ownership of the public lands; (3) the financial terms to be granted; (4) the school system to be introduced or continued.

As to the matter of size, he first gave certain comparative statistics upon the basis of which he drew the conclusion that a single Province of the extent advocated by Mr. Haultain would be too large for convenient and effective administration.

The ownership of the public lands was the next point dealt with. The plea of the Territorial leaders for Provincial ownership was based upon conditions in the four original Provinces of Canada, and upon the case of British Columbia, when, later on, she was admitted to the Union. The Premier claimed that the comparison was not a good one. All the Provinces indicated had had control of their Crown Lands prior to their entry into Confederation, but the Territories were in a very different situation. They never had the ownership of the lands. Those lands were bought from the Hudson's Bay Company by the Government of the Dominion and they had remained ever since the property of the Dominion Government. The main point, however, was one of policy, and upon this the Dominion Cabinet had decided to retain ownership and control, in the interests of the country's immigration propaganda. United States precedents were cited, and also the position of Manitoba lands, which still remain under Dominion control. Sir Wilfrid quoted, in this latter connection, an Order-in-Council of the Macdonald Government dated May 30, 1884, refusing the demands of Manitoba on the ground that Provincial control would seriously embarrass the immigration policy of the Federal authorities.

With regard to financial terms, the Premier pointed out that the compromises necessary to the creation of the Confederation in 1867 had planted in the Constitution of Canada the condition of subsidy payments bv the Dominion authorities to the Provinces for the carrying on of the latter's business. The government proposed in this case to grant a liberal provision. Last year there had been appropriated by the Dominion for Territorial purposes and, in a very small measure raised by local taxation, a total sum of $1,636,000, or an average of $818,000 for each of the regions now being made into new Provinces. It was now proposed to grant Alberta and Saskatchewan each $50,000 a year for civil government; $200,000 for capitation allowance upon a basis of 250,000 population, which would increase pro rata until the population reached 8,000,000 souls; a debt allowance of $405,375; and a compensation allowance, for retaining the public lands, of $375,000; making a total of $1,030,375. To this would be added in each case, for five years, an allowance of $62,500 per annum for the construction of buildings and public works.

Then came a prolonged consideration of the legislation of 1875 by which the Mackenzie Government had established Separate Schools in the new Territories of the West, for, as the Premier claimed, all time to come. In saying this he quoted George Brown again, as confirming this view in the Senate debates of that year. Sir Wilfrid's speech concluded with a much-discussed personal advocacy of Separate as opposed to Public Schools.

"I offer at this moment," said he, "No opinion at all upon Separate Schools as an abstract proposition, but I have no hesitation in saying that, if I were to speak my mind upon Separate Schools, I would say that I never could understand what objection there could be to a system of schools wherein, after secular matters had been attended to, the tenets of the religion of Christ, even with the divisions which exist among His followers, arc allowed to be taught. We live in a country where, in the seven Provinces that constitute our nation, either by the will or by the tolerance of the people, in every school Christian dogmas are taught to the youth of the country. We live by the side of a nation—a great nation, a nation for which I have the greatest admiration, but whose example I would not take in everything— in whose schools, for fear that Christian dogmas in which all do not believe might be taught, Christian morals alone are taught. When I compare these two countries; when I compare Canada with the United States: when I compare the status of the two nations; when I think upon their future; when I observe the social conditions in this country of ours—a total absence of lynchings, and an almost total absence of divorces and murders—for my part I thank Heaven that we are living in a country where the young children of the land arc taught Christian morals and Christian dogmas as well. Either the American system is right, or the Canadian system is right.

For my part, I say this without hesitation: Time will show that we are in the right. In this instance, as in many others, I have an abiding faith in the institutions of my own country."

The following was the provision in the Autonomy Bill as at first drafted relating to Separate Schools:

"The provision of section 93 of the British North America Act. 1867, shall apply to the said Provinces as if, at the date upon which this act comes into force, the territory comprised therein were already a Province, the expression 'the union' in the said section being taken to mean the said date.

"Subject to the provisions of said section 93 and in continuance of the principle heretofore sanctioned under the North West Territories Act, it is enacted that the Legislatures of the said Provinces shall pass all necessary laws in respect of education; and that it shall therein always be provided: "(a) That a majority of the ratepayers of any district or portion of said Provinces or of any portion or subdivision thereof, by whatever name the same is known, may establish such schools therein as they think fit, and make the necessary assessment and collection of rates therefor, and:

"(b) That the minority of the ratepayers therein, whether Protestant or Catholic, may establish Separate Schools therein and make the necessary assessments and collection of rates therefor, and:

"(c) That in such case the ratepayers establishing such Protestant or Roman Catholic Separate Schools shall be liable only to assessment of such rates as they impose upon themselves in respect thereof.

"In the appropriation of public moneys by the Legislature in aid of education, and in the distribution of any moneys paid to the Government of the Province arising from the School fund established by the Dominion Lands Act, there shall be no discrimination between the Public Schools and the Separate Schools, and such moneys shall be applied to the support of Public and Separate Schools in equitable shares or proportions."

At the conclusion of Sir Wilfrid's speech on the introduction of the Bill, Mr. Borden briefly and mildly commented on the absence of the Minister of the Interior. Referring to the School question, he expressed the hope that on both sides of the House no disposition would be shown to make this a party question in any sense. Following this brief speech an adjournment of the debate took place during which the country discussed the Premier's deliverance. On March 9, and the succeeding day, Mr. Borden again drew attention to Mr. Sifton's absence.

On March 12, as we have elsewhere noted, Mr. Haultain published an open letter of the greatest political importance, addressed to the Dominion Premier, It was of considerable length, but all readers interested in clearly understanding the details of a controversy involving such important and enduring results, will be interested in an analysis of Mr. Haultain's letter. It commenced as follows:

"To the Right Hon. Sir Wilfrid Laurier, K.C.M.G., President of the Privy Council, Ottawa.

"Sir:

"The somewhat hurried termination of the conference to which you were good enough to invite representatives of the North West Government, and the introduction of the Alberta and Saskatchewan bills, call for a final statement on the subject. In this statement I shall confine my remarks to some of the more important provisions of the Bill, leaving a number of minor matters requiring consideration to less formal mention.

"The first question which suggests itself is the question of the necessity for the creation of two provinces instead of one. After careful consideration I am more convinced than ever that there is no necessity for dividing the country into two provinces, with the consequent duplication of machinery and institutions."

Mr. Haultain argued that the machinery involved in provincial government was necessarily expensive, and suitable to the administration of public affairs over a large area with an extensive population. The Territories had for a number of years been under one Government and Legislature, exercising many of the most important powers of Provincial Governments and Legislatures, and there had never been any suggestion that the Territorial machinery was in any way inadequate for the purposes for which it was created.

"Our laws and institutions," said Mr. Haultain, "are admittedly efficient and satisfactory. Under them, the people of the Territories have acquired a political individuality and identity as distinct as that of the people of any Province. Up to the 13th of June next, this will continue to be the case, and there does not seem to be any reason, based on necessity or convenience, why on the first day of July they should be suddenly divided in two, separated by a purely arbitrary line, and obliged to do with two sets of machinery and institutions what they, to a great extent, have been doing quite satisfactorily and efficiently with one. I must, however, state that this opinion is by no means unanimously shared in the Territories, and that the proposed action of the Government will not call forth much hostile criticism. I must also state my opinion that the dividing line between the two provinces should have been placed at least seventy-five miles farther East.

"I must take strong exception to the way in which the subject of education has been treated both in the conferences and in the Bills. I must remind you of the fact that your proposition was not laid before my colleague or myself until noon of the day upon which you introduced the Bills. Up to that time the question had not received any attention beyond a casual reference to it 011 the previous Friday, and I certainly believed that we should have had an opportunity of discussing your proposals before twelve o'clock on the day the Bills received their first reading. No such opportunity, however, was afforded, as unfortunately you were unable to be present at the session when this section was submitted; neither was Mr. Mulock. I feel sure that you will acquit me of anv feeling in the matter other than that such an important subject should have been fully discussed before any

definite conclusion was arrived at by the Government and the Bills dealing with it were laid before Parliament.

"With regard to the question of education generally, you are no doubt aware that the position taken by us was that the Provinces were left to deal with the subject exclusively, subject to the provisions of the British North America Act, thus putting them on the same footing in this regard as all the other provinces in the Dominion except Ontario and Quebec."

Mr. Haultain submitted that Parliament is manifestly and necessarily bound by the provisions of the British North America Act, iS6j, in passing legislation of the kind involved in the Autonomy Bill. He argued at some length that the British North America Act gave no authority to Parliament to create, contrary to the wishes of the people directly connected, an inferior and imperfect provincial organization.

"If the Provincial jurisdiction can be invaded by positive Federal legislation such as is proposed in this case," Mr. Haulta'in inquired, "what limit is there to the exercise of such a power? Similar restrictions might be imposed with respect to any or all of the matters in relation to which, under the British North America Act, 1867, the Provincial Legislatures possess exclusive powers.

"The only jurisdiction possessed by Parliament in this respect is the remedial jurisdiction conferred by sub-section four of section ninety-three of the British North America Act, 1S67. The proposed attempt to legislate in advance on this subject is beyond the power of Parliament, and is an unwarrantable and unconstitutional anticipation of the remedial jurisdiction. (Section 15)—Pre-existing laws, orders and regulations not inconsistent with regard to a subject coming within its exclusive jurisdiction and necessitating requests for Imperial Legislation, whenever the rapidly changing conditions of a new country may require them. On the fifteenth of July, 1870, the North West Territories were 'admitted into the union,' in the express terms of section 146 of the British North America Act, 1S67."

To speak of the Provinces of Alberta and Saskatchewan being "admitted into union" on the 1st of July, 1905, was therefore an improper and indefensible use of the expression, in Mr. Haultain's opinion. The territory included within the boundaries of these proposed Provinces had been "admitted into the union" on July 15, 1870, and immediately upon creation of these Provinces, the provisions of section 93 of the British North America Act, 1867, would become, as a matter of indefeasible right, a part of their constitution.

The Autonomy Bill was framed, he said, in direct contradiction of this principle. It was an attempt to create a Province retroactively. It declared Territorial Schools and laws to be Provincial schools and laws; whereas, as a matter of fact the people of the Territories had never yet had an opportunity of expressing their wishes with regard to the maintenance or abolition of a Separate School System, as Territorial Laws passed hitherto in this connection had manifestly been shaped in accordance with Federal Legislation, which the Territories had been powerless to repeal. The North West Premier continued:

"I, therefore, most respectfully demand, on behalf of the Territories, that the same terms, and no others, imposed by the Queen in Council on the admission of Prince Edward Island and British Columbia, be prescribed in this instance. The draft bill 1 submitted more than three years ago contains the clause which will be found in the orders in Council admitting those Provinces. To impose more or to prescribe less would, I submit, be equally contrary to the law and the Constitution. The clause referred to is as follows:

" 'On, from and after the said first day of January, 1903, the provisions of the British North America Act, 1867, except those parts thereof which are in terms made or by reasonable intendment may be held to be especially applicable to or to affect only one or more, but not the whole of the Provinces under that Act composing the Dominion, and, except so far as the same may be varied by this Act, shall be applicable to the Province . . . in the same way and to the same extent as they apply to the several Provinces of Canada, and as if the Province had been one of the Provinces originally united by the said Act.'

"The fact that since the acquisition of the North West Territories, Parliament has passed certain laws affecting those Territories does not involve the principle that those laws must be perpetuated in the Constitution of the proposed Provinces. In this respect, laws relating to education do not differ from laws relating to any other subject. To state that the law passed in 1875 with regard to education must forever limit the power of the Province with regard to a very important Provincial right, involves the theory that Parliament might practically take away all the jurisdiction of a Province and leave it shorn of every power which it is supposed to possess under the Constitution.

"I wish to lay great stress 011 the fact that this is a purely Constitutional question and is not concerned in any sense with the discussion of the relative merits of any system of education. The question is one of Provincial rights. It is not a question of the rights of a religious minority, which must properly and may safely be left to the Provincial Legislatures to deal with, subject to the general Constitutional provisions in that regard. It is the question of the right of a minority of Canadians in the wider arena of the Dominion to the same rights and the same privileges, the same powers and the same Constitutions, as are enjoyed by the rest of their fellow-citizens, and which they claim to be their inalienable possession under the one and only Canadian Charter, the British North America Act."

Mr. Haultain then discussed at length the bearing the new measure would have on the existing law with regard to the reservation and sale of school lands under the Dominion Lands Act of 1872 (amended 1879. 1S83, 18S6). and closed his discussion of the educational clauses as follows:

"I, therefore, wish to express my most emphatic objections to the legislation in regard to this subject. I recognize 110 power in Parliament to make laws for the new Provinces in contravention of the letter and of the spirit of the British North America Act. Further. I recognize neither right nor justice in the attempt to dictate to the Provinces of Alberta and Saskatchewan the manner in which they shall conduct their own business. 1 very sincerely regret that it is necessary to give this turn to this discussion. I trust you will believe it is in no sense from any desire of my own to introduce an inharmonious note into these comments. The new Provinces have their own future to work out, and 1 deplore the possibility that they may commence their careers torn with dissention upon such subjects as these. It seems to me that a great deal of this trouble might have been avoided had we been afforded an opportunity of discussing these proposals, and 1 feel that I must place on record the fact that we are not responsible for the situation."

The Territorial Premier then proceeded to a criticism of the provisions of the Bill relating to the administration of public lands. The Bill provided that the public domain in each Province should be administered by the Government of Canada for the purposes of Canada, an annual grant being made, based upon certain varying rates of interest upon the capitalization of twenty-five million acres of land at $1.50 per acre. Here again Mr. Haultain found it necessary to express dissent. The Provinces were entitled to be recognized as the beneficial owners of the Crown Domain, and as such their right to administer their own property for themselves was one that should not be taken away without their consent.

A number of smaller matters in the Pill were also criticised and various suggestions were offered by Mr. Haultain, after which he closed the letter as follows:

"As the conference has come to an end and the Government has expressed its opinion publicly in the form of Bills, the whole of this matter now has become a subject for public discussion, and I propose to make this letter public at the very earliest opportunity, and not to treat it as an official communication, only to be made public in the ordinary way.

"In concluding this letter I beg to express. on behalf of the North West Government, our high appreciation of the attentive and courteous consideration extended to us by yourself and the other members of the sub-committee of the Council throughout the whole conference.

"1 have the honor to be, Sir.

"Your obedient servant,

"F. W. G. Haultain."

On March 15 the Opposition leader in the House of Commons once more raised the question of the measure being introduced and, in part, at least, prepared, in the absence of Mr. Sifton and Mr. Fielding—two most important members of the Cabinet, and both rumored to be in opposition to the school policy embodied in its clauses. He also discussed Mr. Premier Haultain's open letter to Sir Wilfrid Laurier, and deprecated the failure to consult that gentleman as to the Educational portion of the measure.

The Constitutional issue now before the country was great enough to overshadow ordinary political affiliations and prejudices and both Sir Wilfrid and Mr. R. L. Borden had to deal with defection and opposition among men who had hitherto been their strongest supporters. Mr. Borden's proposed amendment to the educational clause in the Autonomy Bill read as follows:

"That all the words after 'that' be left out, and the following substituted therefor: 'Upon the establishment of a Province in the North West Territories of Canada, as proposed by Bill Number 69, the Legislature of such Province, subject to, and in accordance with the provisions of the British North America Act, 1867 to 1886, is entitled to and should enjoy full powers of Provincial Government, including powers to exclusively make laws in relation to education.' "

Upon the constitutional aspect of the controversy a widely quoted opinion was given by the well known legal authority, Mr. Christopher Robinson, K.C. His decision was as follows:

"The right of the Dominion Parliament to impose restriction upon the Provinces about to be formed, dealing with the subject of education and separate schools, is, I think, not beyond question. This would require more consideration than I have yet been able to give it, and must ultimately be settled by judicial decision. I am asked, however, whether Parliament is constitutionally bound to impose any such restriction, or whether it exists otherwise, and I am of opinion in the negative. It must be borne in mind that I am concerned only with the question of legal obligation; what Parliament ought to do or should do in the exercise of any power which they may possess is not within the province of counsel.

"Such a restriction, I apprehend, must exist or may be imposed, if at all, under the provisions of Section 93 of the British North America Act, 1867, and on the ground of their application to the Provinces now to be formed. If that section applies, it would seem to require no enactment of our Parliament to give it effect, and if not, no such enactment, so far as I am aware, is otherwise made necessary.

"Upon the whole, I am of the opinion that Section 93 does not apply to the Provinces now about to be established. Its provisions would appear to me to be intended for and confined to the then Provinces and the union formed in 1867. There is not in any part of the North West Territories, as a Province, any right or privilege with respect to denominational schools possessed by any class of persons, created by the Province or existing at such union, and a right subsequently established by the Dominion in the part now about to be made a Province does not appear to me to come within the enactment."

It soon became evident that a compromise was essential, and on March 20, Sir Wilfrid Laurier gave notice of the amendments to the educational clauses of the Autonomy Bills, decided upon by the Cabinet in substitution for the educational clauses in these measures when first introduced. These amendments were as follows:

"Section 93 of the British North America Act, 1867, shall apply to the said Province with the substitution for sub-section one of said section of the following sub-section:

"'1. Nothing in any law shall prejudicially effect any law or privilege with respect to Separate Schools which any class of persons have at the date of passing this act, under the terms of Chapters 29 and 30 of the Ordinances of the North West Territories passed in the year 1901.

" '2. In the appropriation of the Legislature or distribution by the Government of the Province of any moneys for the support of schools organized and carried on in accordance with said Chapter 29, or any act passed in amendment thereof, or in substitution thereof, there shall be no discrimination against schools of any class described in the said Chapter 29.

" '3. Where the expression "by-law" is employed in Sub-section 3 of the said Section 93, it shall be held to mean the law as set out in said Chapters 29 and 30 and where the expression "at the union" is employed in Sub-section' 3, it shall be held to mean the date at which this Act comes into force.'"

After nearly a month of agitation, Sir Wilfrid Laurier, on March 22, proposed in the House of Commons the second reading of the Autonomy Bill.

Other speakers followed, including the Honourable W. Paterson and F. D. Monk. The latter, though one of Mr. Borden's prominent lieutenants in Quebec, deprecated the needless agitation and mischievous utterances in connection with this question; argued at length in favour of religious instruction in schools; illustrated his remarks by opinions regarding the alleged deplorable condition of the United States public schools; and differed generally from the stand taken by his leader.

Mr. Henry Bourassa dealt at length with the legislation as not granting adequate or just rights to the Catholic minority.

Indeed, as we have elsewhere remarked, the bill was now about equally objectionable to both the ultra-montanes and the Orangemen,—a fact which the majority of moderate men, who had neither time nor inclination to investigate the controversy deeply for themselves, interpreted as an evidence of reasonableness. Resolutions of protest continued to pour in from Protestant sources, and at Montmagny, Quebec, on September 18, Messrs. A. Lavergne, AI. P., and H. Bourassa, M. P. (Liberals), and Dr. Emile Paquet, M.P. (Conservative), denounced the Government for its surrender to the Orangemen of Ontario, and for its gross injustice to the minority in the West; and, in the words of Dr. Paquet, appealed to the people to "crush this perfidy."

Largely as a result of the contradictory extravagances of its opponents, the bill passed safely through Parliament and was accepted with reasonable equanimity by the citizens of the Territories.

Another act constituted the new North West Territories as comprising the region formerly known as Rupert's Land, and the North-Western Territory, with the exception of Manitoba, the new Provinces, Keewatin and the Yukon, and including also, all other unorganized British territories and possessions in Northern Canada, and all islands adjacent thereto with the exception of Newfoundland's dependency, Labrador.

As the Autonomy Bill of 1905,—or to call it by its official name, The Saskatchewan Act,—constitutes the chief written portion of the Constitution of the Province of Saskatchewan, it will be in place here to recapitulate its principal features, especially with a view to rendering its workings intelligible to persons not intimately familiar with responsible government as it exists in Canada. It recalls in its preamble the provisions of the British North America Act, empowering the Parliament of Canada to 'from time to time establish new provisions in any Territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof." The introductory sections define the territory henceforth to be known as the Province of Saskatchewan. Then follows the following important paragraph (Section 3) :

"The provisions of the British North America Act, 1867 to 1886, shall apply to the Province of Saskatchewan in the same wav and to the like extent as they apply to the Provinces heretofore comprised in the Dominion, as if the said Province of Saskatchewan had been one of the Provinces originally united, except-in-so .far as varied by this Act, and except such provisions are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more and not the whole of the said Provinces."

Section 4 provides for the representation of Saskatchewan in the Senate by four members and authorises the increase of this number to a maximum of six, by act of the Federal Parliament. Section 5 provides in like manner for the provincial representation in the House of Commons for the time being, and Section 6 guarantees that after the next following census this representation "shall forthwith he readjusted by the Parliament of Canada in such manner that there shall be assigned to the said Province such a number of members" as the principle of proportionate representation on the basis of population should require. In estimating this number Quebec, with a permanent representation of 65, constitutes the basis as regards all other Provinces of Canada. Under Section 7 the qualifications of voters in the election of Saskatchewan's representatives in the House of Commons are made the same as they had been in the Territories heretofore. In like manner the powers and duties of the Lieutenant-Governor of the North West Territories are transferred to the Lieutenant-Governor of the new Provinces. (Section 10)—"The Legislature of the Province shall consist of the Lieutenant-Governor and one House to be styled the Legislative Assembly of Saskatchewan." (Section 12)—And "until the said Legislature otherwise provides," the Legislative Assembly should be composed of twenty-five elected members. (Section 13)—Until otherwise provided by the Legislature "all provisions of the law with regard to the constitution of the Legislative Assembly of the North West Territories and the election of members thereof" should "apply mutatis mutandis to the Legislative Assembly of the said Province." (Section 14)—Writs for the first Provincial election were to be issued within six months of the forming of the Saskatchewan Act. (Section 15)—Pre-existing laws, orders and regulations not inconsistent with the Act were to remain in force subject to repeal by the Parliament of Canada, or the Legislature of Saskatchewan, according to their several authorities. Section 17 treats of education. It first refers to Section 93 of the British North America Act of 1867, which reads as follows:

"In and for each Province the Legislature may exclusively make laws in relation to education, subject and according to the following provisions:

"1. Nothing in any such law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any class of persons have by law in the Province of the union.

"2. All the powers, privileges and duties at the union by law conferred and imposed in Upper Canada on the Separate Schools and school trustees of the Queen's Roman Catholic subjects shall be, and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic subjects in Quebec.

"3. Where in any Province a system of Separate or Dissentient Schools exists by law at the union or is thereafter established by the Legislature of the Province, an appeal shall lie to the Governor-General in Council from any Act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education.

"4. In case any such Provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of the Governor-General in Council or any appeal under this section is not duly executed by the proper provincial authorities in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section and of any decision of the Governor-General in Council under this section."

The Saskatchewan Act provides that the foregoing section of the British North America Act shall apply to Saskatchewan except that for sub-section (i) of Section 93 the special provisions previously quoted in this chapter are to be substituted.

The provisions made for the financial interests of the Province are contained in Sections 18 to 20, but as these are of a technical and formidable character they are relegated to a footnote below.

"All Crown lands, mines and minerals, and royalties incidental thereto and the interest of the Crown in the waters within the Province under North West Irrigation Act of 1898 are to continue vested in the Crown and to be administered by the Federal Government as hitherto." Under Section 22 arrangements were made for an equitable division of Territorial Assets between the two new provinces. There are a number of other provisions of less general interest. Two of these protect the rights of the Hudson's Bay Company and the Canadian Pacific Railway Company.

3 18. The following amounts shall be allowed as an annual subsidy to the Province of Saskatchewan, and shall be paid by the Government of Canada, by half-yearly installments in advance, to the said province; that is to say:

(a) For the support of the Government and Legislature, fifty thousand dollars;

(b) On an estimated population of two hundred and fifty thousand, at eighty cents per head, two hundred thousand dollars, subject to be increased as hereinafter mentioned; that is to say: A census of the said Province shall be taken in every fifth year reckoning from the general census of one thousand nine hundred and one, and an approximate estimate of the population shall be made at equal intervals of time between each quinquennia] and decennial census; and whenever the population by any such census or estimate exceeds the two hundred and fifty thousand which shall be the minimum on which the said allowance shall be calculated, the amount of the said allowance shall be increased accordingly, and so on until the population has reached eight hundred thousand souls.

19. Inasmuch as the said Province is not in debt it shall be entitled to be paid and to receive from the Government of Canada, by half-yearly payments in advance, an annual sum of four hundred and five thousand, three hundred and seventy-five dollars, being the equivalent of interest at the rate of five per cent per annum on the sum of eight million one hundred and seven thousand, five hundred dollars.

20. Inasmuch as the said Province will not have the public land as a source of revenue, there shall be paid by Canada to the province by half-yearly payments in advance, an annual sum based upon the population of the province as from time to time ascertained by the quinquennial census thereof, as follows:

(1) The population of the said province being assumed to be at present two hundred and forty thousand, the sum payable until such population reaches four hundred thousand, shall be three hundred and seventy-live thousand dollars. Thereafter until such population reaches eight hundred thousand, the sum payable shall be five hundred and sixty-two thousand five hundred dollars. Thereafter, until such population reaches one million two hundred thousand, the sum payable shall be seven hundred and fifty thousand dollars, and thereafter the sum payable shall be one million one hundred and twenty-five thousand dollars.

(2) As an additional allowance in lieu of public lands there shall be paid by Canada to the province annually by half-yearly payments, in advance, for five years from the time this act comes into force, to provide for the construction of necessary public buildings, the sum of ninety thousand seven hundred and fifty dollars.

Readers unfamiliar with British institutions will, perhaps, be surprised to find such a superlatively important matter as the composition and duties of the Provincial Cabinet defined so summarily and indefinitely as they are by the Saskatchewan Act in Section 8. That paragraph reads as follows:

"The Executive Council of the said Province shall be composed of such persons, under such designations, as the Lieutenant-Governor from time to time thinks fit."

This, of course, simply relegates the whole matter to the realm of the unwritten usages and conventions which form the basis of Cabinet Government under the British Constitution. These tacit understandings have all the force and indeed more than the force of any written law, and their violation, if such violation may for the purposes of discussion be considered possible, would entail a revolution.

The unwritten Constitution requires that the King's representative, in any part of the British dominions under responsible government, shall select as head of his Executive Council, a member of the Legislature who commands the support and is the recognized leader of the majority of those elected by the people to seats in the Assembly or House of Commons, as the case may be. This important personage is popularly designated as the Premier or Prime Minister, and he is in point of fact for the time being the real ruler of the country despite the fact that his extraordinary rights and functions are all but entirely ignored in the written law of the land.

The Premier selects from among his supporters, generally upon consultation with the Governor or Lieutenant-Governor, those persons who, together with himself, are to constitute the Executive Council or Cabinet, as it is popularly called. Each of its members must already have a seat in the Legislature, or must forthwith secure one. As there is a salary attached to Cabinet appointments, and as the acceptance of any office of emolument under the Crown vacates a member's seat, Cabinet members are obliged to face a new election immediately after accepting office.

While the Constitution provides for the presence in the Executive Council of "members without portfolio," the essential body of the Executive Council is made up of the officials who are the responsible heads of the chief branches into which the administration of state affairs is divided. At the same time, they are of necessity the trusted political leaders of the majority of the popular representatives. They therefore control not only the executive business of the Government, but also its legislative functions. So soon as this control is lost, the Cabinet must resign in a body. The ministers must act as a unit in all matters of political importance so long as they are associated as members of the same Cabinet. Each member is in a special sense responsible for his own department, but he is also answerable to the House for the official acts of each of his colleagues and of the Cabinet in its corporate capacity. These are some of the familiar elementary rules under which British Government is administered in the Mother country and all her self-governing colonies.

Furthermore, it is to be remembered that where the written law assigns legislative and executive functions to a Governor or Lieutenant-Governor, in a community where responsible government has been established, it means the King's representative acting by and with the advice and consent of the Cabinet of the hour or the special member thereof whose department of public affairs is directly concerned. The Lieutenant-Governor of a Canadian Province, however, exercises a dual function. He must act not only in intimate cooperation with the Provincial Cabinet, but also as the representative appointed and paid by the Federal authorities. He holds his office "during the pleasure of the Governor-General"—that is, subject to the approval of that officer, acting as the mouthpiece of the Dominion Cabinet. However, he is not removable within five years "except for cause."

As indicated in Clause 3 of the Saskatchewan Act above quoted, the written Constitution of the Province includes those portions of the British North America Act bearing on Provincial administration which arc not definitely annulled by the Autonomy Act itself. Under the Canadian Federal system, all powers not specifically assigned to exclusive exercise by the Provincial Legislatures come within the jurisdiction of the Dominion Parliament. Those concerns in which the Federal Government cannot constitutionally interfere are set forth in Section 92 of the British North America Act, which is appended to this chapter. As regards agriculture and immigration, the Provincial Legislatures share with the Dominion the right to make laws, but "any law of the Legislature of a Province, relative to agriculture or immigration, shall have effect in and for the said Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada." It is to be understood that the Provincial Assembly has no legislative authority with regard to any class of matters not assigned to it by a Dominion statute, such as the Saskatchewan Act, or by the British North America Act itself.

Sections 53 to 57 of the British North America Act deal with money votes and royal assent in relation to the Dominion Parliament, and bv Section go these are made to apply mutatis mutandis to Provincial Legislatures. Accordingly, it would not be lawful for the Assembly to pass any vote involving the expenditure of money for any purpose not previously recommended by a message from the Lieutenant-Governor acting 011 the advice of the Provincial Cabinet. When any Bill passes the Assembly, the Lieutenant-Governor "shall declare, according to his discretion, but subject to the provisions" of the written Constitution and to his instructions from the Governor-General in Council, cither that in his representative capacity he assents to the Bill, refuses to assent to the Bill, or reserves it for the consideration of the Governor-General in Council. lie must transmit copies of all legislation to the Federal Government, which, upon the advice of the Attorney-General may, within one year, disallow any Act judged to be ultra vires. A Bill reserved for the signification of the Governor-General's pleasure remains invalid unless and until within one year the assent of the Governor-General-in-Council is officially announced.

Under the amendments to the British Xorth America Act passed in 1871, it is provided that "the Parliament of Canada may, from time to time, with the consent of the Legislature of any Province of the said Dominion, increase or diminish or otherwise alter the limits of such Province."

Section 92 of B. X. A. Act:

"In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say:

"(1) The amendment from time to time, notwithstanding anything in this act, of the constitution of the province, except as regards the office of lieutenant-governor.

"(2) Direct taxation within the province in order to the raising of a revenue for provincial purposes.

"(3) The borrowing of money on the sole credit of the province.

"(4) The establishment and tenure of provincial offices, and the appointment and payment of provincial officers.

"(5) The management and sale of the public lands belonging to the province, and of the timber and wood thereon.

"(6) The establishment, maintenance, and management of public and reformatory prisons in and for the province.

"(7) The establishment, maintenance, and management of hisoutaks, aslyums, charities and eleemosynary institutions in and for the province, other than marine hospitals.

"(8) Municipal institutions in the province.

"(9) " Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local, or municipal purposes.

"(10) Local works and undertakings other than such as are of the following classes:

"(a) Lines of steam or other ships, railways, canals, telegraphs and other works and undertakings connecting the province with any other or others of the provinces or extending beyond the limits of the province;

"(b) Lines of steamships between the province and any British or foreign country;

"(c) Such works as, although wholly situate within the province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces.

"(11) The incorporation of companies with provincial objects.

"(12) Solemnization of marriage in the province.

"(13) Property and civil rights in the province.

"(14) The administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts.

"(15) The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section.

"(16) Generally all matters of a merely local or private nature in the province."


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