A Suitable Population: British Columbia's Japanese Treaty Act Litigation, 1920-1923

• Author: Gib van Ert
• Position: Executive Legal Officer, Supreme Court of Canada
• Pages: 133-157

133

(2017) 3(1) CJCCL

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. e 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. e 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. ese cases are remarkable early

instances of Canada’s international obligations being invoked by litigants to challenge

domestic law.

* Executive Legal Ocer, Supreme Court of Canada. I gratefully

acknowledge the research assistance of the Supreme Court of Canada’s

library sta, in particular Michel-Adrien Sheppard and Allison Harrison,

in preparing this article.

134

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

I. “A” D    

II. T J T  

III. T treAty ACt   B C C  A

IV. T treAty ACt   S C  C

V. T treAty ACt   P C

VI. C

For 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. e 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. ey raised important and

still relevant questions about the relationship between international and

domestic law, the Crown’s treaty power and Canadian federalism. ey

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 ratications 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].