VOL. XVII.] . EXQHEQUER COURT REPORTS.,' . 329 THE KING UPON THE .INFORMATION OF THE AT- 1914 TORRNEY-GENERAL OF CANADA, May 30. . Plaintiff; AND THE VANCOUVER LUMBER COMPANY, De f endânt: Public lands—Deadman'a Inland—Lease Authority of Minister. Deadman's Island, in the harbour of Vancouver, is , the property of the Crown in the right of the Dominion of Canada. An Order in Council authorizing the Minister of Militia and Defence to lease that, island for a term of years does not carry with it thé authority to vary its terms by providing for 'a right of perpetual renewal. in the absence of an Order-in-Council authorizing such variation, the action of the Minister in doing so is null and of no effect. A CTION to set aside a lease of Deadman's Island. Tried before the Honourable Mr. Justice Cassels, at Ottawa, May 27, 1914. , The. facts are stated in the reasons for judgment. E: L. Newcombe, K.C., and H. Côwan, K.C., .for • plaintiff. I. F. H ellmuth, .K.C., and R. S. Lennie, for de fendant. CASSELS, J., (May 30, 1914) delivered judgment. Deadman's Island, in the Harbour of Vancouver, is the property of ' the Crown, represented by the Dominion of Canada. At the time of the passage of the Confederation Act, it was owned by the. Crown represented by the Imperial. Government. . Subsequent to Confederation it was transferred to the". Dominion of Canada.
330 EXCHEQUER COURT REPORTS. [VOL. XVII. 1914 The facts relating to the title to this island are THE KING ,. fully set out in the reports of the case of Attorney- V L A u N a C t OUV ER ase Co. General of British Columbia v. Ludgate &Attorney- . Reasons for General of the Dominion of Canada. The reasons Judgment. for judgment in that case are to be found reported in 8 B.C.R. p. 242 (at trial), 11 B.C.R. 258 (Court of Appeal, and [1906] A.C. 552 (Privy Council). An Order-in-Council was passed by Her Majesty's Privy Council of the Dominion of Canada, and was subsequently approved of by His Excellency the Governor-General of Canada. The Order-in-Council is as follows: "P.C. 276. "Certified copy of a Report of the Committee of "the Privy Council approved by His Excellency "the Governor-General on the 16th February, "1899. "On a memorandum, dated 10th February, "1899, from the Minister of Militia and De-"fence, recommending that authority be given "him to lease Deadman's Island, situated. in "Coal Harbour, Burrard Inlet, British Col-"umbia, to the Vancouver Lumber Company,'of "Vancouver City, British Columbia, for a term • "of twenty-five years, at 'an annual rental of "five hundred dollars. "The Committee submit the same for Your Ex-" cellency's approval. " (Sgd.) Rodolphe Boudreau, "Clerk of the Privy Council." (Seal). Pursuant to this Order-in-Council, on February 14th, 1899, a lease of this island, a copy of which is set out in the information and admitted by the defendant, was executed by the then Minister of Mi-
VOL. XVII.] EXCHEQUER COURT REPORTS. 331 litia and Defence; Sir Frederick Borden, purport- ' 19 14 ing to lease 'to the defendant' companÿ the island in ~n8 Krxc. question for a term of 25 years. It is open to ques vexcfEu x II $c° . tion whether this lease is effective and whether, it 8easonsfor Judgment. 'does not contain 'provisions in excess of the powers conferred by the Order-in-Council. The plaintiff in the action before me does not raise any question attacking 'the validity of this lease. On April. 14th, 1900, the then Minister of Militia and Defence, Sir Frederick Borden, purport- ed to vary the terms` of the lease of February 14th, 1899, in very important particulars. Among other changes one amendment would provide for , a right- of "perpetual renewal to the lessee instead of a lease for 25 years, as authorized. This information is filed to have it declared that the variation of the terms of the lease was unauthor- • ized and that the document in question signed 'by Sir 'Frederick Borden is null and of no effect. I am of the opinion that the contention of the Crown is well' founded. It has been proved before me that no Order-in-Council was passed authorizing such a .variation as that made by the subsequent • document dated April 14th, 1900. I expressed my view at the trial that the evidence of Mr. Macdonell taken on commission was almost wholly inadmis- sible and irrelevant, and that part of it reciting the statements of Sir Frederick Borden that an Order- in-Council had' been passed authorizing the execu- tion of this. document wf s wholly inadmissible to prove *such fact. Sir Frederick Borden was not called as a witness. The plea of res judicata which I allowed the de- fendant 'to set up by amended defence in order not " to deprive it of any defence if a higher Court were
332 EXCHEQUER COURT REPORTS. [VOL. XVII. 1914 to take a different view from that entertained by THE 7KING. me, in my opinion hardly merits any consideration. VANCOUVER LUMBER CO. It lacks every essential element of a valid defence of _ J Bensons tar res judicata. • Judgment. I think the plaintiff is entitled to judgment declaring that the document of April 14th, 1900, varying the terms of the lease of February 14th, 1899, is void and of no effect, and if the plaintiff so desires it should be delivered up and cancelled. The defendant must pay the costs of the plaintiff in this action. Judgment for plaintif .* Solicitor for plaintiff : E. L. Newcombe. Solicitors for defendant : Pringle, Thompson, Burgess & Coté. *Affirmed on appeal to Supreme Court or Canada, December 4th, 1914.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.