File:Canadian forest industries 1901-1902 (1902) (20498345796).jpg

Title: Canadian forest industries 1901-1902
Identifier: canadianforest190102donm (find matches)
Year: 1902 (1900s)
Authors:
Subjects: Lumbering; Forests and forestry; Forest products; Wood-pulp industry; Wood-using industries
Publisher: Don Mills, Ont. : Southam Business Publications
Contributing Library: Fisher - University of Toronto
Digitizing Sponsor: University of Toronto

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May, 1900 9 TIMBER LEGISLATION AGAIN SUSTAINED. The Court of Appeal at Toronto has sustained the judgment of the Trial Court in the famous timber case, in which certain Michigan lum- bermen sued for the right to export saw logs cut on Crown lands. The judgment is unanimously in favor of the Crown, the law requiring saw logs to be sawn in Canada being upheld. Following is a review of the judgment : Smylie v. the Queen.—Judgment on appeal by sup- pliants from judgment of Street, J., dismissing a petition of right with costs, and on motion for leave to amend the petition so as to claim relief by way of damages as well as specific performance. The rights claimed by the sup- pliants have their origin in three licenses to cut timber upon certain public roads of the Province of Ontario, the first dated April, 1873, and e other two dated Octob<i crown, upon a contract for perpetual renewal of the yearly license so long as they complied with the regulations in force at the time they purchased, and that in the absence of the clearest provisions to that effect in the writings form- ing their contract, it would be unreasonable to hold their right to be subject to alterations from year to year to their prejudice by orders-in-council made without their con- sent. The court below found that the suppliants and their predecessors had periodically accepted renewals of the licenses with additional conditions ; that the right of re- newal conferred by the regulation of 1869 must be taken to be a right of renewal upon the conditions in force at the time of renewal, that is, that persons desiring to obtain timber licenses are notified by statute, by conditions of sale, and by the form of license, that they can only obtain licenses upon the understanding that the conditions may from time to time be altered at the discretion of the Crown, and that as their sole protection against wrong they may relv upon the " infallible justice of the Crown. ' so term- the commerce of the Dominion of Canada and foreign countries, it comes within the principles laid down by the Privy Council in Parsons v. Citizens ' Insuance Company, 7 App., Cas. 553. Held, that the licenses in question are for 12 months only, and there is nothing in them to show a right to a continuance or reissue. The rights of the suppliants depend upon statutory enact- ments with regard to timber upon the unpatented lands of the province, which regulate the powers of the Commissioner of Crown Lands. These enactments make it clear that the rights of licenses are limited to the period of the license, and do not empower the commission to give a right of renewal to a purchaser of timber limits, and the regulations should be construed as not intending to enlarge the rights of persons dealing in respect of timber beyond such as the statute authorizes. The term "renewal" is not an accurate description, what takes place is really a new grant, which bears no necessary relation to the preceding license. The manufacturing condition applies to all licenses issued after 30th of April,
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Product of Ontario Forest and Lumberman's Axe. (From the Ontario Forestry Report.) 1888, and issued under the authority of certain statutes and orders-in-council by the Commissioner of Crown Lands. The licenses were renewed from time to time under the regulations at such times in force, and in 1895 a new form of license was adopted by order in-council, and in this form these license were issued to the suppliants, the Can- adian Bank of Commerce, who then and for some time before held them. The "Act Respecting the Manufacture of Pine Cut on the Crown Domain," 61 Vict. (O.)ch. 9, was passed in January, 1898, and provided that licenses there- after issued shall be subject to the condition set out in the first regulation of schedule A of the act called "The Manufacturing Condition," and come into force on 29th April, 1898. This condition provided that pine cut into logs or otherwise under a license shall, except as therein provided, be manufactured into sawn lumber in Canada. After 29th April, 1898, the snppliants applied to the Com- missioner of Crown Lands for a renewal of their license for the year 1898-9 without the insertion of the manufacturing condition. They based their claim to such a renewal upon the ground that they or their predecessors had pur- chased the right to the timber upon the limits from the ed by Esten, V. C, in Craig v. Templeton, (i860), 8 Gr., 483 ; that under 61, Vict., (O.), ch. 9, the manufacturing condition is properly inserted in that renewal, the statute not being ex post facto legislation, but a simple applica- tion to the undoubted rights of the suppliants of the un- doubted rights of the Crown, and that such act was not ultra vires of the Legislature. It was contended that it is found that the suppliants are entitled to renewal sub- ject to variations in the conditions, but that such condi- tions must be within the meaning of the contract. The manufacturing condition is not so, it has nothing to do with the property or the way in which the suppliants are to deal with it, but merely to their disposition of logs which have been cut and become absolutey their property. Apart from the statute such a regulation is not within the power of the Lieutenant-Governor-in-Council to pass or enforce, as not being within the purview of the contract, and, if so, even the statute does not validate it. The statute should be construed to deal solely with limits sold subsequent to its passing. At all events the statute is ultra vires because it interferes with the trade and com- merce, and on the evidence, which shows that it affects 1898, whether the berths were or were not the subject of previous license. The terms of the statute, 61 Vict., ch.9, assented to on 17th January, 1898, are clear. Nor is the Act ultra vires. The subject with which it is concerned is within the powers of the Legislature, and the language is effective, and the statute deals only with the property of the province, and dictates the terms upon which it may become the property of private persons or corporations. Though trade and commerce may be incidentally affected the Act does not in any way purport to regulate them. In disposing of its own property the Legislature to which is adjudged by sec. 92 (5), of the B.N.A. Act, exclusive jurisdiction over public lands of the province and the tim- ber thereon, must necessarily have power to impose the terms upon which such lands and timbers may be acquired. Appeal dismissed with costs. The application made at the trial to amend the petition, which was renewed quia timet on the hearing of the appeal, appears to have been acceded to by the trial judge and ought now to be allowed quantum valeat. H. J. Scott, Q.C., for suppliants; S. H. Blake, Q.C., and Walter Gow for the Crown.

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