House of Commons Debate (Rivers and Streams Bill, 1881)

Mr. McCarthy — #

When the House rose at six o’clock, I was proceeding to consider that part of the Bill which deals with compensation. Perhaps I might first be permitted to state, however, what I understand to be the meaning of the word “compensation,” when applied to the sovereign right of expropriation. Now, I do not pretend to dispute, and I am quite willing to admit in the amplest possible manner, so far as my judgement goes, that this Act of Parliament was, subject to one consideration, within the power of the Local Legislature. If the one consideration be overlooked there is power in the Local Legislature as in every other sovereign body–and the Local Legislature is sovereign so far as its jurisdiction extends–to expropriate property for public purposes. But, Sir, as I understand the doctrine of expropriation, as we call it, or as it is better known on the other side of the line, the exercise of its power of eminent domain, there are two limitations to the exercise of that power.

The first and most important is that it should be exercised only in the public interest. There is no right, in the exercise of the power of eminent domain, to take from one man his property and hand it over to another unless it be in the public interest.

The next important qualification in the doctrine–and perhaps it is more than the other, and at all events to the individual–is that the expropriation should be only on payment of full compensation.

Now, that compensation as you know, is always given where expropriation is exercised in the ordinary and familiar instances of railway companies or bridge companies. Under a Railway Act, before property can be taken for public purposes, the fair value of the property is to be given to the proprietor, and that fair value is arrived at in the manner pointed out by the Act by arbitrators selected, one by the company, one by the individual whose property is taken from him, and the third by one of the Courts of the land. But it is perfectly plain that where this doctrine is perhaps better understood than anywhere else, in the United States, no exercise of the power of eminent domain is legal or constitutional, according to their law, unless it is accompanied by compensation–payment in money at the time, not payment postponed to any future date.

Now, I am not unaware that there is no such limitation in our law; I am not unaware that, according to the doctrine of the British Parliament, the power we have and the power of the Local Legislatures have in their spheres comprehends the power, though not the right, to take away a man’s property without compensating him. But I challenge my hon. friends opposite to point out in the history of British legislation any instance in which the right of a person whose property is taken from him to receive compensation has been departed from. Although there is the absolute power, that power has been so exercised under our free form of government that it has not been found necessary to limit it as it is limited in the United States.

Now, I wish to point out another feature of this measure–that not merely, as I shall endeavour to show, is it an exercise of the power of eminent domain without adequate and proper compensation, but it is also an Act of Parliament relating peculiarly to past events. It is retroactive in its enacting clause; it does not speak merely for the future, but it legislates for the past and thus two principles of sound legislation–principles of paramount importance–have been violated.

First, property has been taken from an individual without adequate or proper compensation; and second, the Act is retroactive in its effect, and in point of fact, determined the litigation then existing between the parties, and which gave rise to this measure. The power of eminent domain is said to be the supreme right of property appertaining to the Sovereign–the power by which private property acquired by the citizens under the sovereign’s protection–may be taken, or its use controlled for the public benefit without regard for the wishes of the owner. The doctrine is thus stated by Judge Colley:

It is the rightful authority which must rest in every sovereignty to regulate and control these rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefits as the public safety, convenience, or necessity may demand.

The limit to that power is this:

That compensation shall be made therefore; and this compensation must be pecuniary in its character, because it is in the nature of a payment for a pecuniary purchase.

It is said by a learned Judge, in one case in which the matter was discussed, that:

This authority amounts to nothing more than a power to oblige a private individual to sell and convey while the public interests required it.

Mr. Chancellor Kent, in his able commentaries, thus speaks of it:

The settled and fundamental doctrine is that the Government has no right to take private property for public purposes without giving just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception concurrently in point of time with the actual right of eminent domain.

Again Judge Colley says:

While the owner is not to be disseized until compensation is provided; neither, on the other hand, when the public authorities have taken such steps as to finally settle upon the appropriation, ought to be left in a state of uncertainty to what for compensation until some future time when they may see fit to occupy it.

Well, Sir, to quote once more:

But, whatever be the necessity and however important to the public use, compensation must be made in money, and not in incidental benefits, in order to meet the true spirit of the constitutional provision upon that subject.

The general rule is clear, that although steps preliminary to expropriation may be taken without providing compensation:

Before any definite act be done towards the construction of improvement which is in the nature of the assertion of ownership, payment must be made or tendered or a certain and adequate remedy be provided, and unless that is done in the Act authorizing the work, the Statute is wholly unconstitutional and void.

I have troubled the House with these extracts because I think that they lay down correct principles of legislation. I do not mean to say, Sir–and I have carefully avoided, I think, stating–that these regulations apply to our legislation here; but what I do mean to say is, that the same spirit which regulates the written law on the other side has governed and always governs British legislation. I defy my hon. friends opposite to point, in all the Statute-books of British legislation, to an Act of this character, intended to deprive a man of his property without giving him adequate and suitable compensation.

Now, Sir, does this Act in any way come up to the terms of what I venture to say it should be, in order to bring it within the principles of sound legislation. The first section of the Act declares that notwithstanding any effect of the judgments of the Courts up to that time, all streams during the spring, summer and autumn freshets were open to everybody to float and transmit saw-logs and timber of other kinds. The second clause of the Act says: “that any person may go on the land and construct in any such rivers, creeks or streams any improvements he thinks proper, in order to facilitate the passage of timber.” The third provision says, that the rights therein given, and the provision therein made - contained in the foregoing sections 1st and 2nd - shall extend to and apply to all rivers, creeks and streams mentioned in the 1st section of the Act, that is to all rivers, creeks and streams which whether floatable or navigable in the state of nature, or not, have been made floatable or navigable by artificial means by any one; and the 4th section purports, or pretends to give compensation, and how does it read? The Lieutenant Governor may fix the amount which any person collecting tolls under this Act shall be at liberty to charge saw logs and different kinds of timber, or rafts, or crafts, and may from time to time, vary the same; and the Lieutenant-Governor in Council, in fixing such tolls, is to regard certain matters.

Now, how does this matter stand practically? This property is as I pointed out before Recess, when this Act of Parliament was passed, was the property of Mr. McLaren. On the passage of this Act, it ceased to be his private, and became public property. It ought not, every hon. Member, I think, will admit, to have been transferred to the public, unless the public had paid compensation for it, or unless there was certain and sure means pointed out by the Statute by which that compensation was to be recovered. I do not think that any hon. Member in this House or that any fair-minded man in this country will for one moment content, even supposing that the use of this river was all important in a public sense, even supposing that it was a great wrong on Mr. McLaren’s part to use it solely for his own purposes, and denying its use for everybody else, that it ought to have been taken from him for public purposes, without his being paid a compensation for his property and proprietary rights.

Well, Sir, what does this Act do? It says that tolls may be collected, and more, what has been done? Property which was McLaren’s today was tomorrow public property. It is worth so much money call it $100,000, or anything you like, whatever it may be; but where is he to get that money, the interest on that money, or the principal. It is said he may get it by tolls. But wherein is any person compelled to use that stream? Does it follow that this stream will be used by any person? Is there any certain, sure way, such as constitutional writers point out, by which this money, or the interest or the capital, or any other compensation will be given to him for depriving him of his property, which this Statute affects.

I think, Sir, it is perfectly plain that the pretence of giving him compensation is illusory. It is perfectly certain that, across the border, this State would be deemed unconstitutional and void. It is perfectly clear that the authorities say, if this law was enacted by any State of the Union, that it would be, according to their constitution–and it would be declared in the Courts in that country–void and of no effect. It is not here, because the British Parliament is omnipotent because the Legislature within its sphere, is omnipotent; because when the Act goes on the Statue-book, and is assented to by royal authority, it becomes the law of the land, no matter how unjust its provisions may be in depriving a man of his property and giving it up to public uses; but this is not according to the spirit of the constitution. It is not according to the way in which the laws are administered. It is not according to what is believed to be right and honest between man and man, that for public or any other purposes, a person should be despoiled of his estate.

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Mr. Blake — #

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I will tell you, Sir, what the hon. Gentleman proposed. This is his proposition, Mr. Speaker. He says that under the Constitution, things, which it would be impossible for the Local Legislature effectually to deprive the subject of his property except under certain conditions and with certain restrictions, existed which did not exist here. I admit that under the Constitution of Canada and the Provinces, the Local Legislatures have the power to deprive the subject of his property under these conditions; but I say that if we import into our Constitution, into the Constitution of Confederation a restriction upon that power and declare it as a majority in this House propose this night to declare, we will declare it to be the right and duty of the Government wherever that power, which he admits exists, is to be exercised, to nullify its exercise by disallowing such Acts.

The hon. Gentleman says that you find this in the Constitution. Why? You do not find it in the Constitution. The hon. Gentleman says that this spirit of the Constitution shall be violated; that the assent of the Constitution shall be broken, and that a new clause shall be inserted in the Constitution, giving you not the certainty of a Court on the point, but the discrete determination of a political body trying a case without hearing the other side, as to whether it comes within their competence, what the United States Constitution would forbid, and upon their arguments to decide that the law should be nullified.

No, Sir, I am a friend to the preservation of the rights of property, not, perhaps, after the form of the hon. Gentleman, and many of the hon. Gentleman on the other side, but I believe in the subordination of those rights to the public good.

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Well, what other remedy would he have? I know that the hon. Gentleman is aware that the remedy would be wholly inadequate. As to Mr. McLaren getting a remedy by appealing to the whole Dominion on the question whether the Government was right or wrong in disallowing this measure in his private interest, that would be quite hopeless. Therefore, this remedy, if hopeless in the Province is hopeless in the Dominion. I deny that the people of my Province are insensible to or careless about the true principles of legislation. I believe they are thoroughly alive to them, and I am content that my rights of property, humble though they are, and those of my children, shall belong to the Legislature of my country to be disposed of subject to the good sense and right feeling of that Legislature and the good sense and right feeling of the people of that Province.

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