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A Suitable Population: British
Columbia’s Japanese Treaty Act
Litigation, 1920-1923
Gib van Ert*

In the early 1920s, the courts of British Columbia, the Supreme Court of Canada and the
Judicial Committee of the Privy Council considered a series of constitutional challenges
to a British Columbia law requiring the provincial government to discriminate against
Japanese and Chinese persons in the making of government contracts. The attack on
this racially-motivated law was founded on the 1911 Treaty of Commerce and
Navigation between the United Kingdom and Japan, under which Canada was bound
to respect the right of the Japanese Empire’s subjects “equally with native [British]
subjects, to carry on their commerce and manufacture, and to trade in all kinds of
merchandise of lawful commerce”. Some of British Columbia and Canada’s best-known
advocates argued these cases. The decisions they produced addressed important and still
relevant questions about the relationship between international and domestic law,
the Crown’s treaty power and Canadian federalism. These cases are remarkable early
instances of Canada’s international obligations being invoked by litigants to challenge
domestic law.

*

Executive Legal Officer, Supreme Court of Canada. I gratefully
acknowledge the research assistance of the Supreme Court of Canada’s
library staff, in particular Michel-Adrien Sheppard and Allison Harrison,
in preparing this article.

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van Ert, British Columbia’s Japanese Treaty Act Litigation, 1920-1923

I.

“Asiatic” Discrimination and the 1894 treaty

II.

The Japanese Treaty of 1911

III.

The Treaty Act at the British Columbia Court of Appeal

IV.

The Treaty Act at the Supreme Court of Canada

V.

The Treaty Act at the Privy Council

VI.

Conclusion

F

or nearly four years, from November 1920 to October 1923,
the courts of British Columbia, the Supreme Court of Canada
and the Judicial Committee of the Privy Council considered a series
of constitutional challenges to a BC law requiring the provincial
government to discriminate against Japanese and Chinese persons in the
making of government contracts. The challenge was founded in large
part on promises of non-discrimination set out in a treaty between the
British and Japanese empires. Some of British Columbia and Canada’s
best-known advocates argued these cases. They raised important and
still relevant questions about the relationship between international and
domestic law, the Crown’s treaty power and Canadian federalism. They
are also a grim reminder of the history of anti-Asian discrimination in
British Columbia.

I.

“Asiatic” Discrimination and the 1894 treaty

On 16 July 1894 the Earl of Kimberley, for Great Britain, and Viscount
Aoki, for Japan, signed a treaty of commerce and navigation in London
(“1894 treaty”).1 Five weeks later, the parties exchanged ratifications in
Tokyo. With the conclusion of this agreement, the era of unequal treaties
between Britain and Japan came to a close. Unlike the notoriously
one-sided Ansei treaties between Western and Asian powers earlier in
the century, the 1894 agreement was authentically reciprocal. In the
following two years, the United States and other Western nations also
1.

Anglo-Japanese Treaty of Commerce and Navigation, 16 July 1894, UKTS
No 23 (entered into force 17 July 1899) [Anglo-Japanese Treaty].

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concluded reciprocal treaties with Japan.2 In 1902, Britain and Japan
entered into a formal alliance.3
Britain’s recognition of Japan as an equal in international relations
was in marked contrast to growing efforts to exclude and discriminate
against Japanese nationals and other “Asiatic” immigrants by legislation in
British colonies. At the Colonial Conference of June, 1897, the Secretary
of State for the Colonies, Joseph Chamberlain, addressed the issue in a
remarkable speech to the prime ministers of Canada, Newfoundland,
New Zealand, the several Australian colonies, the Cape Colony and
Natal.4 “I wish to direct your attention to certain legislation which is
in process of consideration, or which has been passed by some of the
Colonies, in regard to the immigration of aliens, and particularly of
Asiatics”,5 Chamberlain began:
I have seen these Bills, and they differ in some respects one from the other,
but there is no one of them, except perhaps the Bill which comes to us from
Natal, to which we can look with satisfaction. I wish to say that Her Majesty’s
Government thoroughly appreciate the object and the needs of the Colonies
in dealing with this matter. We quite sympathise with the determination of the
white inhabitants of these Colonies which are in comparatively close proximity
to millions and hundreds of millions of Asiatics that there shall not be an
influx of people alien in civilization, alien in religion, alien in customs, whose
influx, moreover, would most seriously interfere with the legitimate rights of
the existing labour population. An immigration of that kind must, I quite
understand, in the interest of the Colonies, be prevented at all hazards, and we
shall not offer any opposition to the proposals intended with that object …6

From here, Chamberlain’s comments took a different turn:
… but we ask you also to bear in mind the traditions of the Empire, which
2.

3.

4.

5.
6.

See generally Michael Auslin, Negotiating with Imperialism: The Unequal
Treaties and the Culture of Japanese Diplomacy (Cambridge, MA: Harvard
University Press, 2004).
Agreement Between the United Kingdom and Japan Relative to China and
Korea, 30 January 1902, UKTS No 3 (entered into force 30 January
1902).
Proceedings of a Conference between the Secretary of State for the
Colonies and the Premiers of the Self-Governing Colonies, at the Colonial
Office, London, June and July 1897, PP (1897) (ch 8596), LIX at 13-14.
Ibid.
Ibid.

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makes no distinction in favour of, or against race or colour; and to exclude,
by reason of their colour, or by reason of their race, all Her Majesty’s Indian
subjects, or even all Asiatics, would be an act so offensive to those peoples
that it would be most painful, I am quite certain, to Her Majesty to have
to sanction it. Consider what has been brought to your notice during your
visit to this country. The United Kingdom owns as its brightest and greatest
dependency that enormous Empire of India, with 300,000,000 of subjects,
who are as loyal to the Crown as you are yourselves, and among them there
are hundreds of thousands of men who are every whit as civilized as we are
ourselves, who are, if that is anything, better born in the sense that they have
older traditions and older families, who are men of wealth, men of cultivation,
men of distinguished valour, men who have brought whole armies and placed
them at the service of the Queen, and have in times of great difficulty and
trouble, such for instance as on the occasion of the Indian Mutiny, saved the
empire by their loyalty. I say, you, who have seen all this, cannot be willing to
put upon those men a slight which I think is absolutely unnecessary for your
purpose, and which would be calculated to provoke ill-feeling, discontent,
irritation and would be most unpalatable to the feelings not only of Her
Majesty the Queen, but of all her people.7

This note, with its plea for tolerance and even respect of differences of
race and colour, immediately soured with Chamberlain’s next words:
[w]hat I venture to think you have to deal with is the character of the
immigration. It is not because a man is of a different colour from ourselves
that he is necessarily an undesirable immigrant, but it is because he is dirty, or
he is immoral, or he is a pauper, or he has some other objection which can be
defined in an Act of Parliament, and by which the exclusion can be managed
with regard to all those whom you really desire to exclude. Well, gentlemen,
this is a matter I am sure for friendly consideration between us.8

Chamberlain concluded his remarks by praising legislation recently
brought in Natal, whereby exclusion of Asiatics was effected not by
overt racial discrimination but by the administration of a language test
that new immigrants could not hope to pass. This disguised form of
discrimination was, Chamberlain explained, “absolutely satisfactory”
to Natal and would “avoid hurting the feelings of any of Her Majesty’s
subjects”.9
Overtly discriminatory legislation risked more than hurt feelings,
however. Article I of the 1894 treaty between Britain and Japan granted
7.
8.
9.

Ibid.
Ibid.
Ibid.

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each state’s subjects “full liberty to enter, travel and reside in any part
of the dominions and possessions of the other Contracting Party”.10
Colonial measures to exclude or discriminate against Japanese immigrants
were therefore potentially contrary to international law. The breach was
only potential because Article XIX provided that the treaty’s stipulations
were not applicable to the Dominion of Canada and other specified
British possessions unless Britain so notified Japan within two years of
ratification.11 The reason for delaying the operation of the 1894 treaty in
self-governing British possessions was that the imperial authorities could
not live up to promises of freedom of movement to Japanese subjects
without first ensuring the colonies would enact conforming measures in

10.
11.

Anglo-Japanese Treaty, supra note 1, art I.
Ibid, art XIX.

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van Ert, British Columbia’s Japanese Treaty Act Litigation, 1920-1923

their jurisdictions.12, 13
Opposition to Japanese immigration, particularly into British
Columbia, was a serious obstacle to Canadian adherence to the 1894
treaty.14 By order in council of 6 August 1895, Canada’s federal government
demanded “a stipulation with respect to Japanese immigration” before
12.

13.

14.

The 1894 Treaty’s delayed operation in Canada and other British
territories is remarkable. Today we tend to assume that Great Britain
wholly controlled Canadian foreign affairs until the Statute of
Westminster 1931 (UK) 22 Geo V c 4, reprinted in RSC 1985 App II
No 27. The truth is subtler. While Whitehall had the necessary legal
authority as a matter of international law to bind Canada and its other
possessions unilaterally, it lacked (in self-governing territories) the internal
legislative power to perform the international obligations without colonial
cooperation. The constitutional requirement that treaties be implemented
in domestic law to take direct legal effect (see generally Gib van Ert, Using
International Law in Canadian Courts, 2d (Toronto: Irwin Law, 2008) at
234-55) had the practical consequence of giving colonial jurisdictions a
role, however limited, in the conduct of imperial foreign relations. Percy
E Corbett and Herbert A Smith, Canada and World Politics: A Study of the
Constitutional and International Relations of the British Empire (Toronto:
Macmillan, 1928) at 57 note that one of the earliest British treaties to
provide for non-application to British possessions until their desire to
accede was established was the Convention for the Protection of Submarine
Telegraph Cables 1884, 14 March 1884, 75 UKFS 356, and that the
Canadian delegate at the Paris conference that gave rise to this treaty, Sir
Charles Tupper (discussed below) claimed in his memoirs to have taken
a stand contrary to that of the British representative on a point, with a
consequent change in the draft agreement. Corbett and Smith also relate
that the practice of exempting British dominions from the operation of
imperial treaties until they indicated their desire to adhere was established
by the time of the 1894 treaty between Britain and Japan.
The British imperial predicament is strikingly similar to that faced
regularly by the Canadian federal government since 1937: while it has
an acknowledged power to conclude treaties with foreign states, it must
rely on the provinces to perform those treaties if their subject matters fall
within provincial legislative jurisdiction.
See generally Patricia Roy, A White Man’s Province: British Columbia
Politicians and Chinese and Japanese Immigrants, 1858-1914 (Vancouver:
UBC Press, 1989), especially ch 5.

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adhering.15 Even after this matter was agreed to by Japan in February
1896, however, Canada declined to consent, now citing concerns about
the treaty’s most favoured nation provisions.16 It was not until 1905 –
long past the treaty’s deadline for adherence by British possessions – that
Canada finally promulgated an order in council declaring its willingness
to adhere to the treaty “absolutely and without reserve”.17 In 1906
Britain and Japan concluded a supplementary convention to extend the
1894 treaty to Canada,18 and in January 1907 the federal Parliament
implemented the 1894 treaty in Canadian law by means of the Japanese
Treaty Act, 1906.19

II.

The Japanese Treaty of 1911

The 1894 treaty’s guarantee to Japanese subjects of full liberty to enter,
travel and reside in Canada was now federal law. Yet it was not long before
the federal government sought ways to undo it. There were estimated to
be about 7,500 Japanese in Canada in January 1907, mostly in British
Columbia. In the following ten months, another 4,429 entered.20 In
September 1907, three days of anti-Asian rioting broke out in Vancouver
and the Steveston area of Richmond, BC. The rioters targeted Chinese and
Japanese people and businesses.21 Despite Canada’s having just adhered
to the 1894 treaty and implemented it by statute, the federal government
now moved quickly to negotiate a variation on the treaty’s freedom of
movement provisions. In December 1907, the Japanese foreign minister,
15.
16.
17.
18.

19.
20.
21.

Immigration of Japanese Labourers to British Colonies, PC 1895-0929 J.
Raymond Buell, “Treatment of Japanese by Other Countries” (1924)
World Peace Foundation Pamphlet Series 332 at 335.
Treaty of Commerce and Navigation between Great Britain and Japan, 25
September 1905, PC 1905-0677 (entered into force 25 September 1905).
Convention Between the United Kingdom and Japan Respecting Commercial
Relations between Canada and Japan, 31 January 1906, UKTS No 13
(entered into force 31 January 1906).
1906 SC 1907 c 50 (6-7 Edw VII).
Buell, supra note 16 at 336.
Roy, supra note 14 at 185-226. See also James Walker, “Race,” Rights and
the Law in the Supreme Court of Canada: Historical Case Studies (Osgoode
Society for Canadian Legal History, 1997) at 68-69.

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Tadasu Hayashi, advised the Canadian minister of labour, Rodolphe
Lemieux, that Japan would not insist upon its rights under the treaty and
would in fact act to restrict Japanese emigration to Canada.22 This socalled Gentlemen’s Agreement continued in place, with added strictures
from time to time, well into the 1920s.
Meanwhile, relations between Britain and Japan continued to
develop. In 1911, the two empires concluded a new treaty of commerce
and navigation (“Japanese Treaty”).23 Like the previous agreement,
this one provided (at Article XXVI) that it would not apply to British
dominions and other territories unless notice of their adhesion was given
within two years of the treaty’s ratification. The new agreement also
reaffirmed (at Article I) the “full liberty” of each state’s subjects “to enter,
travel and reside in the territories of the other”. A further guarantee was
added at Article I(2), namely that subjects of each of the parties shall
have “the right, equally with native subjects, to carry on their commerce
and manufacture, and to trade in all kinds of merchandise of lawful
commerce”.
This time it did not take Canada eleven years to adhere to the
Japanese Treaty. The Dominion’s main concern, it seems, was to ensure
that implementing the agreement in federal law would not prejudice the
power Parliament had granted the Governor-General in the Immigration
Act of 1910,24 to “prohibit for a stated period, or permanently, the
landing in Canada … of immigrants belonging to any race deemed
unsuited to the climate or requirements of Canada, or of immigrants of
any specified class, occupation or character”.25 The federal government
corresponded with Japan’s consul general in Ottawa on the point, who
advised that Japan would not object as the 1910 Act was “applicable
… to the immigration of aliens into the Dominion of Canada from all
countries” and thus involved no discrimination against Japanese subjects

22.
23.
24.
25.

Buell, supra note 16 at 336. See also Roy, ibid at 208-209.
Treaty of Commerce and Navigation Between the United Kingdom and
Japan, 3 April 1911, UKTS No 15 (entered into force 3 April 1911).
1910 SC c 27.
Ibid, s 38(c).

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particularly.26 With both the Dominion and Japan content to settle for
this dodge, in April 1913 Parliament enacted An Act respecting a certain
Treaty of Commerce and Navigation between His Majesty the King and His
Majesty the Emperor of Japan27 (“Japanese Treaty Act”). The Japanese Treaty
Act sanctioned the new treaty and declared it to have the force of law in
Canada, provided that nothing in either the treaty or the Act shall be
deemed to repeal or affect any of the provisions of the Immigration Act.28
British officials in Tokyo gave Japan notice of Canada’s adhesion to the
new treaty on 1 May 1913.29
Canada was now bound to observe and perform all the Japanese
Treaty’s obligations. Ironically, the stipulation that became the subject of
litigation in British Columbia, taking the province to the Privy Council
with stops at the Supreme Court of Canada on the way, was not about
freedom of movement but freedom of contract. As noted, Article I(2) of
the new treaty required each party to guarantee the other party’s subjects
“the right, equally with native subjects, to carry on their commerce
and manufacture, and to trade in all kinds of merchandise of lawful
commerce”. This requirement was clearly at odds with a British Columbia
legislative resolution of 15 April 1902 that “in all contracts, leases and
concessions of whatsoever kind entered into, issued, or made by the
Government, or on behalf of the Government, provision be made that no
Chinese or Japanese shall be employed in connection therewith”.30 The
British Columbia government gave legal effect to this resolution on 18
June 1902 by promulgating an order in council that “a clause embodying
the provisions of the resolution be inserted in all instruments issued by
officers of the Government for the various purposes above quoted”,31 and
proceeded regularly to insert the discriminatory provision in a variety of
26.
27.
28.
29.
30.
31.

Buell, supra note 16 at 337.
1913 SC c 27 (3 and 4 Geo V) [Japanese Treaty Act].
Ibid, s 2.
In re the Japanese Treaty Act, 1913 (1920) 29 BCR 136 at 137 [Re Japanese
Treaty Act (BCCA)].
Reproduced in the Schedule to the Oriental Orders in Council Validation
Act, SBC 1921 c 49 [Validation Act].
Ibid.

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government contracts concerning public works and lands. The provision
was one of over one hundred similarly discriminatory enactments
adopted in British Columbia in the late nineteenth and early twentieth
centuries.32

III.

The Treaty Act at the British Columbia Court of
Appeal

Anti-Asian agitation in British Columbia was briefly suspended during
the First World War, in which Japan was a British ally. At the war’s end,
however, the old fears revived.33 In 1920, the Lieutenant Governor
of British Columbia referred four questions to the Court of Appeal
concerning the lawfulness of the discriminatory, pre-war provisions. The
first two questions asked whether the federal Japanese Treaty Act or its
underlying Japanese Treaty limited the legislative jurisdiction of BC’s
Legislative Assembly. The third and fourth questions were whether it was
competent to the Legislature to authorize the BC government to insert
the discriminatory terms into contracts for public works and public lands.
Some of British Columbia’s leading counsel presented the argument
in the Court of Appeal for British Columbia in Victoria over a three
day period in June 1920. The province’s Attorney General, J.W. De B.
Farris KC, appeared for the province. He later became a senator and was
described in his 1970 obituary as “the Father of the British Columbia
Bar”.34 His name lives on today in the leading Vancouver firm of Farris,
Vaughn, Wills, & Murphy LLP. Sir Charles Tupper KC, son of the famous
Nova Scotia father of Confederation and a remarkable person in his own
right, represented the Canadian Japanese Association. Tupper was both
a physician and a lawyer, served as a cabinet minister under Sir John
A. Macdonald and other Conservative prime ministers, and continued
as the Member of Parliament for Pictou, Nova Scotia for seven years
32.

33.
34.

See Bruce Ryder, “Racism and the Constitution: the Constitutional Fate
of British Columbia Anti-Asian Immigration Legislation, 1884-1909”
(1991) 29 Osgoode Hall Law Journal 619 at 621.
Roy, supra note 14 at 265.
(1970) 28 The Advocate 168 at 168.

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after his move to British Columbia in 1897. Like Farris, Tupper’s name
lived on, until very recently,35 in the well-known Vancouver firm of Bull,
Housser & Tupper LLP. Appearing for the federal Minister of Justice was
A.P. Luxton KC, while C. Wilson KC appeared for a trade association
of roof shingle manufacturers (the shingle business being one in which
many Chinese and Japanese were employed).36 Luxton and Wilson were
well acquainted, having been jointly appointed in 1910 to revise the
British Columbia statutes.37
The Court of Appeal gave its opinion on the reference questions,
after deliberation, on 16 November 1920. It sided against the province.
Macdonald CJ (with whom Galliher JA agreed) began by observing that
neither the Japanese Treaty Act nor its underlying treaty strictly applied
to limit the power of the provincial legislature “in relation to the rights,
duties and disabilities in pursuit of their callings in this province of
subjects of his Majesty the Emperor of Japan” for the simple reason that
the provincial legislature had no such power in the first place.38 This, in
Macdonald CJ’s view, was the effect of the Privy Council’s decision in
Union Colliery of BC v Bryden39 (“Bryden”) where, in a case about a BC
law prohibiting “Chinamen” in underground coal mines, their Lordships
held that in all matters directly concerning aliens and naturalized
persons resident in Canada, legislative authority was exclusively vested
in the Dominion Parliament by section 91(25) of the 1867 British North
America Act40 (“BNA Act”). “Neither the Treaty nor the Treaty Act can”,
said Macdonald CJ, “limit or affect that which has no existence”.41
Turning to the third and fourth questions (concerning the legislature’s
35.

36.
37.
38.
39.
40.
41.

Bull Housser announced a merger with Norton Rose Fulbright LLP on
12 September 2016 (Bull, Housser and Tupper LLP, News Release, “Bull
Housser Combines with Global Law Firm Norton Rose Fulbright” (12
September 2016) online: < www.bht.com/our-firm/firm-news-pressreleases/2016/09/bull-housser-combines-global-law-firm-norton-rose>.
Roy, supra note 14 at 251.
(1910) 30 Canada Law Times 177 at 181.
Re Japanese Treaty Act (BCCA), supra note 29 at 141-42.
[1899] AC 580 (PC) [Bryden].
30 & 31 Vict, c 3 [BNA Act].
Bryden, supra note 39 at 142.

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van Ert, British Columbia’s Japanese Treaty Act Litigation, 1920-1923

competence to authorize the government to insert discriminatory terms
into contracts for public works and public lands), Macdonald CJ gave
the same answer but added that if section 91(25) did not preclude such
laws:
then as the Treaty Act has made the Treaty the law of Canada, in so far as
the subjects embraced in it are within the legislative powers of Parliament,
any Act or resolution of the provincial Legislature repugnant thereto would be
contrary to the Dominion Statute and therefore, beyond the competence of
the provincial Legislature to enact or pass.42

Mr. Justice McPhillips gave his own, longer reasons concurring with the
majority. He could not agree with Mr. Farris that the Japanese Treaty Act
was passed in exercise of Parliament’s trade and commerce power (section
91(2)) rather than its treaty implementation power (section 132). In the
learned judge’s view:
[t]he sovereign Parliament of Canada in the full exercise of its powers – as
extensive as the Imperial Parliament in such matters – has by statutory
enactment given its adhesion to, and imposed upon Canada and all the
provinces, the Treaty obligations as contained in the Japanese Treaty.43

His Lordship noted that the Japanese Treaty Act provided that the treaty
should “have the force of law in Canada” and therefore “must be held
to be destructive of all that has gone before … Nothing may be done in
derogation of this statute law to the end that the Treaty obligations may
be conformed to by Canada and the Provinces”.44 Turning specifically
to the province’s 1902 resolution and order in council requiring
discrimination against Chinese and Japanese in government contracts,
McPhillips JA held that the order in council could no longer have the
force of law in British Columbia – “if it, at any time, had the force of
law” – in view of the Japanese Treaty Act and section 132 of the BNA Act
for the Lieutenant-Governor-in-Council “must perform the obligations
of the province as contained in the Japanese Treaty given the force of law

42.
43.
44.

Re Japanese Treaty Act (BCCA), supra note 29 at 142-43.
Ibid at 144.
Ibid.

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throughout Canada” by the 1913 Act.45
After some consideration of Union Colliery and other authorities
concerning Parliament’s jurisdiction over aliens and naturalized persons,
in which he reached a similar conclusion to the majority, McPhillips JA
returned to the effect of the Japanese Treaty Act. He concluded that while
there was no need for any specific answers to questions 1 and 2:
it may be said that [the treaty] has the force of law in Canada and throughout
the Provinces of Canada and any legislation, which, in its terms, is in conflict
with, or repugnant to the Japanese Treaty, as validated by The Japanese Treaty
Act, 1913, must be held to be repealed by necessary implication, and any
future legislation, limiting the privileges guaranteed by the Japanese Treaty
during the life of the Japanese Treaty, would be ultra vires legislation in that the
Treaty, as long as it is existent, has the effect of inhibiting legislation, Federal
or Provincial, which would be in conflict with the terms of the Treaty, i.e. to
that extent the powers of the Parliament of Canada and the Parliaments of the
Provinces of Canada, as conferred by The B.N.A. Act, 1867, are curtailed.46

It is remarkable how broadly McPhillips JA is willing to cast the effect
of the Japanese Treaty and its implementing Act: not only is provincial
legislation predating the implemented treaty ultra vires, but subsequent
laws (both federal and provincial) are ‘inhibited’ for the life of the treaty.
Most likely, McPhillips JA would have made an exception for federal
legislation repealing the Japanese Treaty Act, or expressly derogating from
it. Short of that, however, his Lordship’s view appears to have been that
the courts must ensure Canada’s performance of its treaty obligations.
The strong opinions expressed by the Court of Appeal in this
reference might have been expected to end the matter. But they proved
to be only a prelude to the main litigation.

45.

46.

Ibid at 146. This passage bears a resemblance to the observation of LeBel J
in GreCon Dimter Inc v J R Normand Inc, 2005 SCC 46 at para 39 to the
effect that both Canada and Quebec have “international commitments”.
The orthodoxy is that Canada as a state under international law can have
international obligations, but its provinces and other organs do not.
Re Japanese Treaty Act (BCCA), ibid at 151.

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IV.

The Treaty Act at the Supreme Court of Canada

The British Columbia legislature responded to the Court of Appeal’s
opinion with defiance. On 2 April 1921, the Lieutenant Governor
assented to what became chapter 49 of the 1921 statutes, the Oriental
Orders in Council Validation Act (“Validation Act”).47 The law approved
the discriminatory June 1902 order in council and purported to validate
“any provision … relating to or restricting the employment of Chinese
or Japanese” – despite the Court of Appeal’s ruling.48 This extraordinary
turn of events prompted the Consul General of Japan to write the federal
Minister of Justice, suggesting that the Governor General in Council
disallow the Validation Act pursuant to sections 56 and 90 of the BNA Act.
After all, the Court of Appeal’s decision had held that the new law was ultra
vires the provincial legislature. A report on the matter by a committee of
Canada’s Privy Council recorded that the BC government “maintains the
constitutionality of the Act”.49 The same report recommended a reference
to the Supreme Court of Canada to resolve the issue.50
Meanwhile, in the fall of 1921, the result of the BC Court of Appeal
decision in the 1920 reference was applied by Murphy J of the Supreme
Court of British Columbia in a claim by a BC timber licensee, BrooksBidlake & Whittall Ltd., for declaratory and injunctive relief to protect
the company’s right to employ Chinese and Japanese on its timber
lands notwithstanding the discriminatory clause in its licence and the
legislature’s passage of the Validation Act. Mr. Justice Murphy held that
the Court of Appeal’s decision in the 1920 reference bound him. He
granted the injunction.51 That decision was then appealed by consent
directly to the Supreme Court of Canada (a procedure known as a per
47.
48.
49.
50.
51.

Validation Act, supra note 30.
Ibid, s 3(1).
Quoted in In re Employment of Aliens (1922), 63 SCR 293 at 295-96
[Employment of Aliens].
Ibid.
The decision was not reported but a transcript of the decision and
counsels’ submissions – both models of brevity – are found at pp 8-9 of
the Case on Appeal document filed in the Registry of the Supreme Court
of Canada.

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saltum appeal).52 The Brooks-Bidlake case was heard together with the
federal government’s reference on the constitutionality of the Validation
Act over two days in December 1921.
At the Supreme Court, the Dominion’s case against the Validation
Act in the reference was put by E.L. Newcombe KC, the much-admired
and long-serving Deputy Minister of Justice, who later became a judge of
the Supreme Court of Canada.53 Tupper appeared again for the Japanese
Association, Wilson appeared again for the shingle manufacturers, and
Farris appeared again for the Province, this time together with J.A.
Ritchie KC. Ritchie, the son of Canada’s second chief justice, Sir William
J. Ritchie, was an Ottawa Crown Attorney to whom the aphorism “The
Crown never wins; the Crown never loses” is ascribed.54 He was also a
poet and playwright. His verse, “The wholesome sea is at her gates/Her
gates both east and west”, which he appears to have written at about the
time of the Supreme Court hearings, is carved over the main doorway
of Parliament’s Centre Block.55 The report of the Brooks-Bidlake case in
the Supreme Court Reports indicates that in that appeal Ritchie alone was
counsel for the Province, while Wilson and Tupper acted for the timber
company and Newcombe for the federal attorney-general.
The Supreme Court of Canada gave judgment in the two cases on
7 February 1922. The Validation Act reference prompted longer reasons
than the Brooks-Bidlake appeal. Chief Justice Davies began by noting:
the object and intention of these orders in council clearly is to deprive the
Chinese and Japanese of the opportunities which would otherwise be open to
them of employment upon government works carried out by the holders of
provincial leases, licenses, contracts or concessions.56

52.
53.

54.
55.

56.

See, today, Supreme Court Act RSC 1985 c S-26, s 38.
Newcombe was deputy from 1893 until his appointment to the bench in
1924. See “The Late Honourable Edmund Leslie Newcombe, C.M.G.”
(1931) 9 CBR 737.
“The Crown Attorney”, The Ottawa Evening Citizen, (3 April 1933) at 20.
Christopher Moore, “That’s History: From Bar to Bard: the Poet
Lawyers”, Law Times (14 April 2008) online: <www.lawtimesnews.
com/200804142474/commentary/thats-history-from-bar-to-bard-thepoet-lawyers>.
Employment of Aliens, supra note 49 at 300.

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In a succinct but thorough judgment, he explained that the Validation
Act was ultra vires the provincial legislature, both for being a matter
of exclusive federal jurisdiction under sections 91(25) of the BNA Act
(naturalization and aliens) and for being in conflict with the Japanese
Treaty Act, 1913. On the aliens point, Chief Justice Davies applied the
Privy Council’s decision in Bryden, as explained in Cunningham v Tomey
Homma57 (“Tomey Homma”), to the effect that the Validation Act was not
really aimed at the regulation of industry but was “devised to deprive the
Chinese, naturalized or not, of the ordinary rights of the inhabitants of
British Columbia, and in effect, to prohibit their continued residence in
that province”.58 As for the Japanese Treaty Act, Davies CJ noted that it
sanctioned and gave the force of law in Canada to the Japanese Treaty,
and that Article 3(1) of the Treaty states that subjects of the parties “shall
in all that relates to the pursuit of their industries, callings, professions,
and educational studies be placed in all respects on the same footing
as the subjects or citizens of the most favoured nation”. Parliament’s
authority to implement the Japanese Treaty was found in section 132 of
the BNA Act, which granted the “Parliament and Government of Canada
all powers necessary or proper for performing the obligations of Canada
or any province thereof, as part of the British Empire towards foreign
countries, arising under treaties between the Empire and such foreign
countries”. The Validation Act’s attempt to discriminate against Japanese
was “contrary to the obligations of the treaty and in direct conflict with
the Dominion statute which must prevail”.59 The Chief Justice noted that
even if the Validation Act were intra vires the province in other respects
it was “in absolute conflict with the Treaty and the Dominion statute”.60
He concluded:
[t]he Crown was undoubtedly bound by the force of the “Japanese Treaty Act”
of 1913 to perform within Canada its treaty obligations, and, if so, I cannot
understand how it can successfully be contended that the Crown can by force
of enactments of a provincial legislature directly or indirectly break its treaty

57.
58.
59.
60.

[1903] AC 151 (PC) [Tomey Homma].
Ibid at 157, quoted in Employment of Aliens, supra note 49 at 301.
Employment of Aliens, ibid at 302-303.
Ibid at 304.

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obligations.61

Mr. Justice Idington, dissenting, would have upheld the Validation Act
entirely. His reasoning was premised on the right of private persons
to conclude racially discriminatory contracts with each other – a right
later abolished in anti-discrimination laws throughout the country and
much of the world but still in place in 1922.62 Given that private owners
remained free to discriminate in contracts concerning their properties,
and given BC’s ownership of lands, mines, minerals and royalties as
assured by section 109 of the BNA Act read together with section 10 of
the British Columbia Terms of Union,63 Idington J concluded that “the
responsible government of British Columbia …had power to enact such
orders in council relative to the administration of all the said properties”.64
As for the effect of the Japanese Treaty Act, Idington J’s answer is hard to
follow but suggested that to permit that statute to override the Validation
Act would “strain and positively wreck our constitution”.65
The long and, at points, difficult reasons of Mr. Justice Duff (as
he then was) concluded that the Validation Act did not encroach upon
Parliament’s exclusive jurisdiction over naturalization and aliens. Unlike
the legislation at issue in Bryden’s case, the Validation Act did not directly
61.
62.

63.

64.
65.

Ibid at 305.
See Re Drummond Wren [1945] OR 778 (HCJ), in which Mackay J
invalidated a racially discriminatory covenant in a deed of land on the
ground of public policy, citing such post-1922 developments as the Racial
Discrimination Act, 1944 (Ontario Statutes 1944 c 51), the Charter of the
United Nations, 26 June 1945, CanTS No 7 and the Atlantic Charter, 14
August 1941, reproduced in (1942) UNTS No 5.
Order of Her Majesty in Council admitting British Columbia into the
Union, dated the 16th day of May, 1871, reproduced in Appendix to
RSBC 1871.
Employment of Aliens, supra note 49 at 308.
Ibid at 311. His worry seems to be the same one that animated the Privy
Council, in the Labour Conventions case, to limit the application of s 132
to Empire treaties. To do otherwise, said Lord Atkin, would permit the
Dominion to “clothe itself with legislative authority inconsistent with the
constitution that gave it birth”: Attorney-General for Canada v Attorney
General for Ontario and others [1937] AC 326 (PC) at 352.

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prohibit Chinese and Japanese people from pursuing their occupation:
the legislature has not by the Act of 1921 attempted to deny the Chinese
and Japanese the right to dispose of their labour in the province nor has it
attempted to prohibit generally the employment of Chinese and Japanese by
grantees of rights in the public lands of the province.66

Mr. Justice Duff went on to explain:
[i]n some of the provinces perhaps the most important responsibility resting
upon the legislature was the responsibility of making provision for settlement
by a suitable population …. I find it difficult to affirm that a province in
framing its measures for and determining the conditions under which private
individuals should be entitled to exploit the territorial resources of the province
is passing beyond its sphere in taking steps to encourage settlement by settlers
of a class who are likely to become permanently (themselves and their families)
residents of the province.67

But while the Validation Act was not void on division of powers grounds,
it was nevertheless, in Duff J’s view, invalid for inconsistency with
the Japanese Treaty Act. The learned judge began his analysis with an
admirable explanation of the nature of treaties in both international and
Canadian law:
[a] treaty is an agreement between states. It is desirable, I think, in order
to clear away a certain amount of confusion which appeared to beset the
argument to emphasize this point that a treaty is a compact between states
and internationally or diplomatically binding upon states. The treaty making
power, to use an American phrase, is one of the prerogatives of the Crown
under the British constitution[.] That is to say, the Crown, under the British
constitution, possesses authority to enter into obligations towards foreign
states diplomatically binding and, indirectly, such treaties may obviously very
greatly affect the rights of individuals. But it is no part of the prerogative of
the Crown by treaty in time of peace to effect directly a change in the law
governing the rights of private individuals, nor is it any part of the prerogative
of the Crown to grant away, without the consent of parliament, the public
monies or to impose a tax or to alter the laws of trade and navigation and it
is at least open to the gravest doubt whether the prerogative includes power
to control the exercise by a colonial government or legislature of the right of
appropriation over public property given by such a statute as the B.N.A. Act.
All these require legislation.68

66.
67.
68.

Employment of Aliens, supra note 49 at 324, 326.
Ibid at 326-27.
Ibid at 328-29.

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As to whether the authority given by section 132 was broad enough to
support the Japanese Treaty Act, Duff J was satisfied it was:
[t]he treaty validated by statute of 1913 deals with subjects which are ordinary
subject matters of international convention: with precisely the kind of thing
which must have been in the contemplation of those who framed this section
[132]. The effect of the Act of 1913 is, in my opinion, at least this: that with
respect to the right to dispose of their labour, the Japanese are to be in the same
position before the law as the subjects of the most favoured nation. Equality
in the eye of the law in respect of these matters is what I think the legislation
establishes. Does the Act of 1921 in its true construction infringe these rights
of Japanese subjects? In my opinion it does. It excludes them from employment
in certain definite cases. It is not, I think, material that the province in passing
the Act is engaged in administering its own corporate economic affairs. If it
goes into effect, it goes into effect (as a law of the province) abrogating rights
guaranteed by the treaty. It is thus not only a law passed against the good faith
of the treaty but it is, in my opinion, a law repugnant to the treaty and as such
I think it cannot prevail.69

Of course the Japanese Treaty offered no protection to people of Chinese
descent. Despite this, Duff J took the view that the Validation Act “must
be treated as inoperative in toto”.70
The reasons of Mr. Justice Brodeur were similar in thrust to those
of Duff J but more briefly put. He noted that the question of restricting
the employment of Chinese and Japanese labour had been a subject
of legislative discussion in BC, and diplomatic discussion between the
interested countries, for years.71 After referring to the Tomey Homma case
and the Supreme Court of Canada’s decision in Quong Wing v The King,72
in which the Court upheld a Saskatchewan law prohibiting a naturalized
Canadian of Chinese origin from employing “any white woman or girl”
in his restaurant, Brodeur J concluded that the Validation Act would
be intra vires were it not for the Japanese Treaty. On the effect of the
treaty, Brodeur J cited Walker v Baird73 for the proposition that “[i]f the
treaty had not been adhered to [i.e., implemented] by the Dominion
parliament, it could be contended with force that a Canadian province
69.
70.
71.
72.
73.

Ibid at 330-31.
Ibid at 331.
Ibid at 336.
[1914] SCR 440.
[1892] AC 491 (PC).

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was not bound to obey the provisions of this treaty”. The learned judge
explained:
[t]he King has the power to make a treaty, but if such a treaty imposes a charge
upon the people or changes the law of the land it is somewhat doubtful if
private rights can be sacrificed without the sanction of Parliament. The bill of
rights[74] having declared illegal the suspending or dispensing with laws without
the consent of parliament, the Crown could not in time of peace make a treaty
which would restrict the freedom of parliament.
In the United States a different rule prevails. Under the United States
constitution the making of a treaty becomes at once the law of the whole
country and of every state. In our country such a treaty affecting private rights
should surely become effective only after proper legislation would have been
passed by the Dominion parliament under section 132 B.N.A. Act.75

The necessary implementing legislation having been adopted, the Japanese
Treaty “becomes binding for all Canadians and for all the provinces”.76
British Columbia could not, consistent with the Japanese Treaty, give the
Japanese treatment different than that given to other foreigners, and so
the Validation Act was illegal “as far as the Japanese are concerned”.77 Here
Brodeur J differed from Duff J, concluding that the legislation remained
valid in respect of Chinese.
Finally, Mr. Justice Mignault briefly held that the Validation Act
“comes well within the rule of the Bryden Case as explained in the Tomey
Homma Case, and therefore the statute and the orders in council are
ultra vires”.78 Having so concluded, Mignault J found it unnecessary
to consider whether the Japanese Treaty furnished a further ground of
nullity.79
The Court’s short judgment in the Brooks-Bidlake companion appeal
was unanimous in the result but varied in its reasoning.80 Recall that
the issue here was whether the BC Supreme Court was right to grant
74.
75.
76.
77.
78.
79.
80.

That is, the Bill of Rights 1689 1 William & Mary sess 2 c 2.
Employment of Aliens, supra note 49 at 339.
Ibid at 339.
Ibid at 339-40.
Ibid at 341.
Ibid at 340-41.
Attorney-General for British Columbia and the Minister of Lands v BrooksBidlake and Whitall, Ltd (1922), 63 SCR 466 [Brooks-Bidlake].

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declaratory and injunctive relief to the timber licensee to protect its right
to employ Chinese and Japanese despite the licence’s express requirement
(inserted pursuant to the discriminatory June 1902 order in council) that
it not do so. Mr. Justice Idington again emphasized the right of an owner
to impose limitations or conditions upon grants such as the right to cut
provincial timber under licence. As for the Japanese Treaty, the learned
judge blithely concluded that it was “certainly never intended to deprive
the owners of property, whether private citizens or provinces, of their
inherent rights, much less to destroy a contract made before the Act in
question”.81 He would have allowed the appeal.
Mr. Justice Duff, for his part, was prepared to assume that the
Japanese Treaty Act did make the June 1902 order in council inoperative.
But it did not follow that the licensee was entitled to have its licence
renewed, for it had failed to observe a condition precedent of the licence,
namely that it not employ Japanese and Chinese on its timber lands.82
In the most succinct of reasons, Mr. Justice Anglin explained that the
licensee’s claim was bound to fail whether the discriminatory provision
in the licence was valid or not, for “[i]f the condition was good, the
plaintiffs have no grievance; if it was bad, the licence I think fails with the
result that the plaintiffs have no status as licensees”.83
Mr. Justice Mignault, with whom Chief Justice Davies agreed,
reached the same conclusion. He quoted Anson’s Law of Contract:
[w]here there is one promise made upon several considerations, some of which
are bad and some good, the promise would seem to be void, for you cannot say
whether the legal or illegal portion of the consideration most affected the mind
of the promisor and induced his promise.84

Thus, if the discriminatory clause in the licence were bad, the entire
licence was bad and the company could not sustain or renew it. The
constitutional issue did not require a decision.85 The province’s appeal was
81.
82.
83.
84.
85.

Ibid at 473.
Ibid at 477-78.
Ibid at 478-79.
Ibid at 480.
Curiously, Brodeur J did not take part in this judgment, despite having
heard and decided the companion appeal.

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allowed and the injunction granted by the BC Supreme Court vacated.

V.

The Treaty Act at the Privy Council

As a result of the Supreme Court of Canada’s opinion in the reference,
on 31 March 1922 the Governor-General in Council disallowed the
Validation Act.86 Meanwhile the timber company sought and was granted
leave to appeal to the Judicial Committee of the Privy Council from
Brooks-Bidlake. Local counsel were instructed. Sir Malcolm Macnaghten
KC, later a judge in the King’s Bench Division, appeared for the company
together with Hugh Bischoff. The Attorney General of British Columbia
was represented by Sir John Simon KC, a future Lord Chancellor, and
Geoffrey Lawrence, later Lord Oaksey and the presiding judge at the
International Military Tribunal at Nuremburg. In a judgment of 13
February 1923, Viscount Cave (with Viscount Haldane and Lords
Dunedin, Shaw and Carson) dismissed the appeal.
Viscount Cave began with an account of the facts that included
this unusual (and perfectly fair) remonstration of the BC legislature for
enacting the Validation Act in the first place:
It is not easy to understand why it was considered worth while to pass this
enactment, for if (as the Court of Appeal had held) the stipulation was void as
conflicting with Imperial or Dominion statutes, no provincial legislation could
give it validity.87

Viscount Cave was also gently critical of the Supreme Court of Canada,
observing that the result of its varied reasons in the reference was “to leave
the law in some doubt”.88 Rather than attempt a clarification, however,
Viscount Cave’s reasons in Brooks-Bidlake sidestep the Japanese Treaty
and its implementing Act, resolving the case instead on conventional
federalism lines. Viscount Cave explained that while section 91(25) of
the BNA Act reserves to Parliament the general right to legislate as to the
rights and disabilities of aliens and naturalized persons, “the Dominion
86.
87.
88.

See Attorney-General of British Columbia v Attorney-General of Canada
[1923] 3 WWR 945 at 945 (headnote).
Brooks-Bidlake & Whittall Ltd v Attorney General of British Columbia
[1923] AC 450 (PC) at 455 [Brooks-Bidlake (PC)].
Ibid at 456.

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is not empowered by that section to regulate the management of the
public property of the province, or to determine whether a grantee
or licensee of that property shall or shall not be permitted to employ
persons of a particular race”.89 His Lordship distinguished Bryden as
being on the ground that the enactment there “was in truth devised to
prevent Chinamen from earning their living in the province”, whereas
the present case more resembled In re Provincial Fisheries,90 in which
the Board held that Parliament’s jurisdiction to legislate as to the sea
coast and inland fisheries did not prevent the provinces from imposing
their own conditions on fishing rights.91 The licence having been found
valid on this (fishy) basis, the only remaining question was whether the
company had complied with its terms. Of course it never claimed to
have done so; the company admitted having employed both Chinese and
Japanese labour. The licence’s stipulation against doing so having been
broken, Viscount Cave concluded that the company could claim no right
to renew the licence, endorsing Mr. Justice Brodeur’s reasons in the court
below.92 The point raised on the Japanese Treaty Act did not, therefore,
arise and their Lordships found it unnecessary to deal with it – for now.
An appeal to the Board from the Supreme Court of Canada’s decision
in the Validation Act reference came later in 1923.93 This time Canadian
counsel appeared. Newcombe KC argued the respondents’ position with
T. Mathew. The Attorney General of British Columbia, appellant, was
represented by Sir John Simon KC and Mr. Lawrence (BC’s counsel in
Brooks-Bidlake) together with the attorney general himself, Farris KC. The
Board consisted of Viscount Haldane and Lords Buckmaster, Atkinson,
Shaw (also a judge in Brooks-Bidlake) and Sumner. Viscount Haldane
delivered the judgment.
After reviewing the facts and litigation history, Viscount Haldane
noted that the Brooks-Bidlake case had been brought on appeal to the
89.
90.
91.
92.
93.

Ibid at 457.
(1896) 26 SCR 444.
Brooks-Bidlake (PC), supra note 87 at 457.
Ibid at 458.
I have been unable to determine why the two appeals were not heard
together.

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Privy Council but the Board had found no need to deal with the Japanese
Treaty Act point as the appeal was resolved on the basis of the company’s
licence having been breached. “On the present occasion”, Viscount
Haldane explained, “a wholly different question presents itself ”,94 namely
the constitutionality of the Validation Act generally. On this point their
Lordships “entertain no doubt [that] … the provincial statute violated
the principle laid down in” the Japanese Treaty Act and:
if re-enacted in any form will have … to be re-enacted in terms which do not
strike at the principle in the Treaty that the subjects of the Emperor of Japan
are to be in all that relates to their industries and callings in all respects on the
same footing as the subjects or citizens of the most favoured nation.95

In conclusion, Viscount Haldane suggested that it “may not be necessary
to enact [the Validation Act] in a fresh form” but reiterated that “if this
is to be done it may be possible so to redraft it as to exclude from the
operation of its principle all subjects of the Japanese Emperor and also to
avoid the risk of conflict with sec. 91 (25) of The B.N.A. Act”.96

VI.

Conclusion

Aside from its historical interest as a chapter in British Columbia race
relations, the Japanese Treaty Act litigation is important as an early
instance of Canada’s international obligations being invoked by litigants
to challenge domestic law. However unfamiliar the subject matter today,
the legal and constitutional questions raised, directly or indirectly, in
these cases remain relevant: What use can be made of an international
agreement in domestic proceedings? What are the implications of such
agreements for Canadian federalism? Why do such agreements require
implementation by legislation, and what are the domestic effects of
such implementing laws? How should courts balance the location of the
treaty-making power in the Crown (whether imperial, as then, or federal,
as today) with the self-government rights of provincial jurisdictions?
How do treaty-making entities (the imperial government at the time, the
94.
95.
96.

Attorney-General of British Columbia v Attorney-General of Canada [1924]
AC 203 (PC) at 211.
Ibid at 212.
Ibid.

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federal government today) avoid incurring responsibility for breaches of
international law by provincial executives and legislatures? All of these
questions are raised, and in some respects left unanswered, in the Japanese
Treaty Act cases.
While the outcome of the Japanese Treaty Act litigation was ultimately
a victory (however partial) for those opposing BC’s discriminatory labour
practices, it certainly did not bring about racial harmony in the province.
The result only applied to Japanese in BC, there being no BritainChina friendship treaty for Chinese nationals to rely on against BC’s
discriminatory laws. Even for the Japanese, the litigation was at best a
minor advance. In particular, it did nothing to prevent the internment
of Japanese nationals and Canadians of Japanese descent during the
Second World War. Despite this brief setback to its discriminatory policy,
the governments of British Columbia and Canada continued, in the
euphemistic words of Duff J, to “[make] provision for settlement by a
suitable population” in British Columbia for many years to come.