BONA VACANTIA.

The decision of the Judicial Committee of the Privy Council in Rex ex rel. Attorney-General for Canada v. Attorney-General for British Columbia, confirms the judgment rendered last year by the Supreme Court of Canada. The question at issue was whether the Crown in right of the Dominion or the Crown in right of the Province of British Columbia was entitled to certain monies, which were admitted by the parties to be bona vacantia; and the decisions of the Courts mentioned were in favour of the claim of the Province. It was made clear by their Lordships of the Privy Council, and equally so by certain of the judges of the highest Court in the Dominion, that this result was the logical conclusion to be drawn from certain earlier decisions of the Board.

It might fairly be inferred that the law as regards the prerogative right to bona vacantia in Canada is now settled. It is understood, however, that the view is held in certain quarters that the decision may not be altogether conclusive so far as the newer provinces of the West are concerned.

The facts of the case may be stated very briefly. The monies in question were collected and held in British Columbia by one R. P. Rithet, the Agent of the Liquidator of a Company which was dissolved sixteen years ago. The Liquidator himself died a number of years ago. There being no person or company to whom he could pay the money, the agent notified the Governments of the Dominion and the Province of the situation. The Attorney-General for Canada brought the matter into court by an action commenced in the Exchequer Court, naming as defendants the agent Rithet and the AttorneyGeneral for British Columbia; and the judgment of the Court of first instance was in favour of the Dominion. This decision was reversed by the Supreme Court of Canada, the Chief Justice (Sir Louis Davies) dissenting. As stated, the Judicial Committee agreed with the result reached by the majority of the Supreme Court.

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The earlier decisions of the Privy Council which (with all respect. for the learned judges who took a different view) rendered the present decision inevitable, may be shortly noted:

1

[1923]. 3 W. W. R.. 1252: [19231, 4 D. L. R., 690.

217 Exch. C. R. 109: 40 D. L. R. 670.

$63 S. C. R. 622; (1922) 3 W. W. R. 269; 68 D. L. R. 106.

1. Dyke v. Walford, was a case decided in 1846 by the Privy Council on appeal from the Chancery Court at York. It related to the personal property of an intestate bastard, who died domiciled in the County Palatine of the Duchy of Lancaster. The contending parties were Her Majesty in virtue of Her prerogative as Queen of England, and Her Majesty in right of Her Duchy of Lancaster. The case was decided in favour of Her Majesty in the latter right, the decision turning on the interpretation of a Royal Charter of 1377, and other Charters and Statutes. It was held that the right to bona vacantia was, in law, a jus regale, or royal prerogative right, but that in the case of the Duchy of Lancaster this right had been effectually granted by the Sovereign to the Duke. It was held, further, that the right had since become effectually vested in the Sovereign by a title separate and distinct from Her right and title as Queen of England. The importance of the decision lies in its recognition that the right to ownerless goods is one of the jura regalia. "It stands on the same footing as the right to escheats, to the land between high and low water mark, to felons' goods, to treasure trove, and other analogous rights." While the quotation is from the argument of counsel, it has been fully adopted by the Board in the Mercer case (about to be noted), and in the recent case of Rithet, as an expression of what was decided by their Lordships in 1846, and what is still the law.

2. Attorney-General of Ontario v. Mercer, was a case decided in 1883 by the Privy Council on appeal from the Supreme Court of Canada. It was held that lands in Ontario which fall to the Crown for want of heirs belong to the Province and not to the Dominion; in other words, that the jus regale of escheat is one of the royalties reserved to the Province by the B. N. A. Act. The decision turned largely on the meaning of the word "royalties" in s. 109 of that Act, which provides that:

"All lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick, at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same."

It was held that the word "royalties," in this section, extends at least to all such royalties as are connected with "lands, mines and minerals." For the purposes of the case it was not necessary to go further

5 Moo. P. C. 434.

9 App. Cas., 767; 52 L. J. P. C., 84.

in defining the expression; but it was remarked in the course of the judgment that:

6.

It is a sound maxim of law, that every word ought, prima facie, to be construed in its primary and natural sense, unless a secondary or more limited sense is required by the subject or the context. In its primary and natural sense "royalties" is merely the English translation or equivalent of "regalitates," "jura regalia," "jura regia.”

3. In the Precious Metals case, Attorney-General of British Columbia v. Attorney-General of Canada," an appeal from the Supreme Court of Canada, the Judicial Committee had again (in 1889) to consider the effect of the words " lands, mines, minerals and royalties occurring in the same section of the B. N. A. Act. It was held that deposits of the precious metals were reserved to the Province of British Columbia, not as being "mines and minerals," but as "royalties," and that a conveyance by the Province to the Dominion of public lands had not the effect of vesting in the Dominion the precious metals in, upon and under such lands.

In the case now decided by the Privy Council (Viscount Haldane, Lords Buckmaster, Atkinson, Shaw, and Sumner, the last-mentioned delivering the judgment), it was held that the royalty of bona vacantia, like the royalty of escheats and the royalty of gold and silver mines, falls within the scope of the word "royalties" in sec. 109 above quoted, and therefore belongs to the Province. Their Lordships say:

"It is not easy to see where the line is to be drawn between precious metals, which it is now decided fall to the Crown in right of the Province as being royalties' when in the ground, and the same metals when no longer in the ground, whether worked up or not, which in any other collocation of words would be royalties, that is jura regalia, also. It should also be noted how closely analogous to bona vacantia is the case of escheats, which also pass under section 109 as royalties. Except for the difference between a right to lands, the title to which is ultimately in the Crown, and a right to personalty, which is complete in a private person, if there be a private person entitled, the principle on which bona vacantia and escheats fall to the Crown is the same, that is, that there being no private person entitled, the Crown takes."

Their Lordships rejected the argument that the ejusdem generis rule or the rule "noscitur a sociis" should be applied to the words "all lands, mines, minerals and royalties." They held that these words constitute a simple enumeration, that the word "all" applies

14 App. Cas.. 295: 58 L. J. P. C., 88.

equally to all four nouns, and that it is in no case limited, except by the words "belonging to" the several provinces; and that the words might equally well have been "all royalties, lands, mines and minerals" or "all royalties, all lands, all mines and all minerals."

"The other argument, that the word 'royalties' here means royalties—jura regalia having something to do with lands or minerals, and so noscitur a sociis, appears to beg the question. It was held that precious metals, though not minerals, fall to the Crown in right of the Province, not because they are like minerals, for, except in a legal sense they are minerals already, but because they are covered by jura regalia. If the Legislature, in giving effect to a division between Dominion and provinces of that complex of rights, which before the union belonged to the Crown in the right of the various provinces existing in British North America, chose to enumerate a catalogue of particular rights, which were reserved to the provinces then included or subsequently to be included under the Dominion, out of the total of the duties or revenues' which were to form the one consolidated revenue fund to be appropriated for the public service of Canada, it is not for any Court of construction to speculate as to the reasons for this policy so far as to attribute to that, which is expressed as a catalogue, limiting attributes which would convert it into a classification. by genus and species. Their Lordships must take the words of sec. 109 as they stand, and, as they stand, they enumerate certain Crown rights the benefit of which is to be enjoyed by the provinces, then existing or under appropriate legislation thereafter brought within the ambit of that benefit, as British Columbia has been. By that enumeration their Lordships, like other Courts, are bound."

But the Judicial Committee were careful, however, for reasons stated, to confine their actual decision to bona vacantia, the case in hand, and to leave undecided the question whether jura regalia such as flotsam and jetsam, deodands, swans and sturgeons, bona et catella felonum and other royal rights, fall to the Province or to the Dominion.

There was clearly no occasion for seeking to apply the ejusdem generis rule of construction to the words "all lands, mines, minerals and royalties belonging to the several provinces." Misapprehension as to the true nature and applicability of that rule (or presumption) will no doubt be removed to some extent as a result of the dicta of the highest Courts in the present case. In addition to the remarks of Lord Sumner in delivering the judgment of the Board, reference may be made to the statements in the judgments of the Supreme Court

of Canada on the subject. Mr. Justice Anglin, for example, approves, to some extent at least, the warning of Rigby, L.J., in Smelting Company of Australia v. Commissioners of Inland Revenue:

"The rule of construction, which is called the ejusdem generis doctrine, or sometimes the doctrine noscitur a sociis,' is one which, I think, ought to be applied with great caution, because it implies a departure from the natural meaning of words in order to give them a meaning which may or may not have been the intention of the legislature."

The House of Lords considered the ejusdem generis rule in Stoomvaart Maatschappij Sophie H. v. Merchants' Marine Insurance Company, Limited."

As mention has been made above of the Mercer case, holding that land in Ontario (and no doubt in all the oldest provinces) escheats to the Crown in right of the province in which it is situated, it is right to recall that the Supreme Court of Canada has held, by a majority of three to two, that a different situation exists in Alberta, and that land in that province escheats to the Crown in right of the Dominion. Trusts and Guarantee Company V. the King.10

The basis of the decision was sec. 21 of the Alberta Act (4 and 5 Edw. VII., ch. 3), which provides that:

"All Crown lands, mines and minerals and royalties incident thereto. . . shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada.”

It will be noted, however, that the only royalties so reserved to the Dominion are royalties incident to Crown lands, mines and minerals, nothing being said about such a royalty as bona vacantia, which has no connection with lands, mines, or minerals.

As the question of the constitutional right to bona vacantia in the newer provinces is likely to be before the Courts in the near future, we withhold comment in the meantime on the question whether the law is settled as regards these provinces in common with the other

763 S. C. R. at p. 638.

[1897] 1 Q. B. 175 at p. 182.

(1920), 89 L. J. K. B., 834, a case relating to a marine insurance policy. Viscount Haldane said:

"In accordance with well-known principles of construction, the rule of ejusdem generis is applied in cases in which an intention is to be collected that the rule should apply. One judges of that intention from the words. and it vields to any expression which seems to exclude it, but the rule is broadly this: Where you have an enumeration which is obviously an enumeration of species falling within a genus, the general words following upon the enumeration are held not to exclude the genus, but only to cover further species which belong to the genus. The rule, as I have said, may yield to intention, but it is the rule which is prima facie to be applied in the construction of such documents."

The Lord Chancellor (Lord Birkenhead), Lord Dunedin and Lord Buckmaster also commented on the applicability of the rule.

10 54 S. C. R., 107; 32 D. L. R., 469; (1917) 1 W. W. R., 358.