Lord Atkin:-

This is an appeal from the Supreme Court on a reference by the Governor-General in Council dated 5th November 1935, raising the question whether the Natural Products Marketing Act 1934, as amended by the Natural Products Marketing Act Amendment Act 1935, is ultra vires of the Parliament of Canada. The Supreme Court unanimously answered the question in the affirmative. The Act consists of two parts. The first provides for the establishment of a Dominion Marketing Board whose powers include powers to regulate the time and place at which and the agency through which natural products to which an approved scheme relates shall be marketed and to determine the manner of distribution and the quantity, quality, grade or class of the product that shall be marketed by any person at any time and to prohibit the marketing of any of the regulated products of any grade, quality or class.

There are other regulatory powers which need not be further specified. A scheme to regulate the marketing of a natural product is initiated by a representative number of persons engaged in the production or marketing of the natural product.

It can be referred by the appropriate Minister to the Board, and if they approve the scheme as submitted or amended by them, and it is further approved by the Minister, the Governor-General in Council may approve the scheme. It is essential that the Governor-General in Council shall be satisfied either that the principal market for the natural product is outside the province of production or that some part of the product produced may be exported. The latter provision makes it clear that the regulation may apply to marketing transactions in natural products which have nothing to do with foreign export or inter-provincial trade. If the Minister is satisfied that trade and commerce in a natural product are injuriously affected by the absence of a scheme prepared as above, he may himself propose a scheme for approval of the Governor in Council. The Governor in Council is given power by order or regulation to regulate or restrict importation into Canada of a natural product which enters Canada in competition with a regulated product: and to regulate or restrict the exportation from Canada of any natural product. Part. 2 contains provision for the appointment by the Minister of a Committee who may be entrusted with the duty of investigating all matters connected with the production or marketing of natural or regulated products for the purpose of ascertaining the charges made in distribution of a natural or regulated product. The receipt against the interest of the public of an excessive charge is made an indictable offence and there are provisions for the trial of such offences.

There can be no doubt that the provisions of the Act cover transactions in any natural product which are complete within the province, and have no connection with inter-provincial or export trade. It is therefore plain that the Act purports to affect property and civil rights in the province, and if not brought within one of the enumerated classes of subjects in S. 91 must be beyond the competence of the Dominion Legislature. It was sought to bring the Act within Cl. (2), S. 91. namely, the Regulation of Trade and Commerce. Emphasis was laid upon those parts of the Act which deal with inter-provincial and export trade. But the regulation of trade and commerce does not permit the regulation of individual forms of trade or commerce confined to the province. In his judgment the Chief Justice says :

The enactments in question, therefore, in so far as they relate to matters which are in substance local and provincial are beyond the jurisdiction of Parliament. Parliament cannot acquire jurisdiction to deal in the sweeping way in which these enactments operate with such local and provincial matters by legislating at the same time respecting external and interprovincial trade and committing the regulation of external and interprovincial trade and the re