1911-05-16

QUEBEC SAVINGS BANK ACT.

[Stage Direction]
Mr. FIELDING moved for leave to introduce Bill (No. 219) to amend the Quebec Savings Bank Act. He said:	The purpose is to extend the terms of these two savings banks in Quebec for another year just as we are doing with the General Banking Act.
Motion agreed to, and Bill read the first time.

[Stage Direction]
Bill (No. 218) for the relief of George Mackay Sutherland.

Mr. HERRON.: Before the orders of the day are called, would the hon. the Minister of Finance tell the House definitely when parliament is going to adjourn? I ask this because it is sometimes very difficult to get Pullman accommodation at this time of the year, and it takes a week's notice to secure Pullman passage from here to the west. The distance is too far to travel without sleepers and the government should be prepared to give some intimation as to when the House will adjourn.


Mr. FIELDING.: I quite appreciate the reason given by my hon. friend for desiring to know more definitely when the adjournment will take place. The date fixed, as stated by my right hon. friend the Prime Minister, was the 23rd, but the wish was generally expressed that we might possibly adjourn on Friday, the 19th, rather than on Tuesday, the 23rd. I would be very glad, and so would my colleagues, to facilitate adjournment on the 19th, but there are some matters of urgency which we ought to get through before adjournment. We still hope to be able to adjourn on the 19th provided we can have the co-operation of hon. gentlemen opposite in bringing about such a desirable resiilt.


Mr. BORDEN (Halifax).: What are the matters of urgency?


William Stevens Fielding: There are various matters on the Order Paper which had better be disposed of before recess, and we ought to make some further progress in Supply.


Mr. CURRIE (Simcoe).: The answer concerning matters of urgency is exceedingly vague. Will the hon. gentlemen kindly tell the opposition what measures the government wish the House to deal with as matters of urgency?


William Stevens Fielding: I am very unfortunate in not being able to satisfy my hon. friend. We indicated yesterday some things which we desire to bring on to-day, and to-morrow I shall make another statement as to what we wish to forward as quickly as possible.



THE ' NIOBE ' AND ' RAINBOW '.

Mr. CROSBY.: Will the hon. minister give the names of the officers of the 'Niobe' and 'Rainbow' who have been selected to attend the coronation?


William Stevens Fielding: When the Minister of the Naval Department is present I shall call his attention to the hon. gentleman's question and endeavour to have him furnish the information.



PETAWAWA MILITARY CAMP.

Mr. WHITE (Renfrew).: Has the government any information regarding the ex-



tent of damage caused by the fire at Peta-wawa a few days ago, and is it the intention to proceed immediately with the reconstruction of the buildings which were damaged?


William Stevens Fielding: I cannot give the information at the moment, but will give it later on when the acting minister is present.



INTERNATIONAL WATERWAYS TREATY.

[Stage Direction]
Mr. PUGSLEY moved second reading of Bill (No. 36) relating to the establishment and expenses of the International and Joint Commission under the Waterways Treaty of January 11, 1909. He said: This matter was so fully discussed when the resolution was under consideration by the House in Committee of the Whole that I do not think it necessary at present to go at any lengh into the subject. Hon. gentlemen will find the discussion in ' Hansard ' on pages 890 to 945, 6th of December last.
After the Bill was introduced it was thought desirable, after consultation with the Minister of Justice, that provision should be made in it for the summoning of witnesses and also for giving the subjects of the United States the right to bring actions in Canadian courts for the recovery of damages, the United States giving the same right to British subjects. In the United States it has not been deemed necessary to pass legislation upon the subject because under its constitution a treaty becomes the supreme law and supersedes all state laws. But in Canada the constitution is different, and in the opinion of my hon. colleague, the Minister of Justice, it is desirable that provision should be made so as to make it clear beyond doubt that our courts will have power to summon witnesses to give evidence under oath, and also that the right of action shall be clearly granted.
Mr. SPROULE.: As I understand it, this is a federal law. Do not the several states still claim to exercise their right on boundary waters?


Mr. PUGSLEY.: Not where they are subject to a treaty. Under the constitution of the United States a treaty precedes all statutes of either Congress or of the several states.


Morley Currie: Which clause of the constitution?


William Pugsley: I read the clause when the resolution was before the committee; hon. members will see it in the ' Hansard ' report of the remarks I made on that occasion and to which I have already referred. Therefore, I propose, when the House goes into committee on the Bill, to Mr. WHITE
amend it as shown by the printed amended Bill which I have had distributed among some hon. members who are taking more special interest in this matter. Other hon. members who desire copies can, of course, obtain them by sending to the proper office. I propose asking the committee to add five sections


Mr. FOSTER.: Before the minister (Mr. Pugsley) goes on I would like to be sure with reference to his general statement that in all cases a United States treaty overrides state Tights. It seems to me that that is not the genius of the United States constitution. I am not an authority on that document, but there is one case which, as I recollect it, seems to me in point. Difficulties arose in California over the school rights and privileges of the Japanese in that state. Japan contended that the treaty guaranteed to the subjects of either country in the other, equality of rights with the subjects of the country. I remember well there was a very strong line of correspondence between President Roosevelt and the authorities in California, occasioned by the fact that a law was contemplated to be passed by the California legislature which, the president contended, would be in contravention of the treaty rights. My recollection of the affair is that California got its back up, and kept it up, and was constitutionally able to keep it up. But milder counsels prevailed and, in some way or other, an arrangement was made. But as I recall the correspondence, President Roosevelt expressed the fear that California, by persistence in its action-which, as I understood, the federal authorities could not control-would render the relations between Japan and the United States otherwise than friendly. I may be wrong, but it seems to me the statement of the Minister of Public Works went too far.


William Pugsley: I do not remember very clearly the controversy to which my hon. friend (Mr. Foster) refers, but I will read the article of the constitution of the United States of which I have spoken, and which hon. gentlemen will find at page 902 of ' Hansard.' It is article 6 of the constitution and it provides as follows:
That this constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.	-
I think it would be impossible to find language which more clearly provides that a treaty shall be the supreme law of the land.


George Eulas Foster: Another case comes to my mind, a case between the United States and the Italian government with reference to redress sought by the government of Italy for citizens of that country of Italy who, in some of the states of the American union, were deprived of their privileges and who claimed damages. Now, the demand made at that time, as I recollect it, was that the United States was not in a position to confirm these privileges of the citizens of Italy because of the powers of the states.


William Pugsley: I think my hon. friend (Mr. Foster) will not question my construction of this article. I think it is clear beyond any possibility of doubt. That is the view taken by the Attorney General of the United States who has not the slightest doubt upon the point and is acting accordingly. They, by their legislation, are providing for the expenses of the commission. The Attorney General's opinion is, just as, I think, any one reading article 6 of the constitution will see, that there is no question whatever that the treaty has become the supreme law of the land, and that it supersedes all state law bearing upon the subject.


Morley Currie: May I ask the hon. minister (Mr. Pugsley) a question? I understood that another clause of the constitution of the United States modified the clause he has quoted. I have not the document 'before me, but where the difficulty arises over this question of construction is where treaty rights interfere with private rights. There is a clause in the constitution which says that private rights shall be observed and shall be supreme, and that the United States of America or any of the states cannot perform any confiscatory act without redress. All this trouble over treaty rights has arisen where private rights are affected. Take the case of the Ste. Marie river, for instance. One of the problems in the discussion with reference to this waterway arose out of the private rights of the owners at Sault Ste. Marie. I should think that the hon. gentleman (Mr. Pugsley) could quote some precedents or judicial expressions of opinion by the United States Supreme Court on this point before asking us to swallow his dictum holus bolus. Because, if I mistake not, the view always taken by the judges of the Supreme Court of the United States is that where matters of private rights are involved they are supreme over treaty rights.


William Pugsley: I thought the hon. gentleman (Mr. Currie) wished to ask me a question. If he purposes going beyond that, I think it would be well to await the conclusion of the very brief statement I 287}
wish to make. However, I may just remark with reference to the hon. gentleman's suggestion, there is a clause in the constitution of the United States providing that private rights	cannot be
taken away except with compensation. But I do not think that affects the matter at all. As to the case of the Ste. Marie river, where the rights of the American citizens at Sault Ste. Marie are concerned, that is a question between the United States government and its own citizens. And the United States, after the passing of this treaty acquired the rights of its citizens, becoming the riparian owner; and, therefore, all questions, so far as private rights in that locality are concerned, have been settled. I cannot see how the question is at all pertinent to the consideration of this Bill. Now, I propose-


Morley Currie: I do not wish to be asking questions, but I understand the hon. gentleman (Mr. Pugsley) has an amendment to this Act which gives American citizens the right to sue in Canadian courts for damages sustained through this treaty.


William Pugsley: Quite so.


Morley Currie: Carrying out the doctrine he has laid down, if there is any damage, the authority which is responsible for that damage should be the United States government, and there should be no occasion for suing in Canadian courts for damages.


William Pugsley: The amendments I propose to suggest to the committee are simply for the purpose of carrying out the provisions of the treaty. Perhaps, as hon. gentlemen may not have copies of the amendments, it might be well for me to read the five sections which contain the amendments I propose. They are as follows:-
1.	The treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States made between His Majesty and the said United States, signed at Washington the eleventh day of January, one thousand nine hundred and nine, and the protocol of the fifth day of May, one thousand nine hundred and ten, in the Schedule of this Act, are hereby confirmed and sanctioned.
2.	The laws of Canada and of the several provinces thereof are hereby amended and altered so as to permit, authorize and sanction the performance of the obligations undertaken by His Majesty in and under the said treaty; and so as to sanction, confer and impose the various rights, duties and disabilities intended by the said treaty to be conferred or imposed or to exist within Canada.
3.	Any interference with or diversion from their natural channel of any waters in Canada which in their natural channels would flow across the boundary between Canada and the

United States or into boundary waters (as defined in the said treaty) resulting in any injury on the United States side of the boundary, shall give the same rights and entitle the injured parties to the same legal remedies as if such injury took place in that part of Canada where such diversion or interference occurs, but this section shall not apply to cases existing on the eleventh day of January, one thousand nine hundred and nine, or to cases expressly covered by special agreement between His Majesty and the government of the United 'States.
4.	The Exchequer Court of Canada shall have jurisdiction at the suit of any injured party or person claiming under this Act in all cases in which it is sought to enforce or determine as against any person any right or obligation arising or claimed under or by virtue of this Act.
5.	The International Joint Commission, when appointed and constituted pursuant to the said treaty shall have power, when holding joint sessions in Canada, to take evidence on oath and to compel the attendance of witnesses by application to a judge of a superior court of the province within which such session is held, and such judge is hereby authorized and directed to make all orders and issue all processes necessary and appropriate to that end.
Those five sections are the new sections. The remaining sections of the amended Bill remain the same as they are in the Bill now before the House. If hon. gentlemen will compare these sections with the provisions of the treaty which are to be found in the schedule to the amended Bill, it will be seen that they simply carry out the provisions of the treaty, and are inserted because, in the opinion of the Minister of Justice, they are necessary to enable the courts of Canada to have jurisdiction, and in order that the provisions of the treaty may be effectually carried out.


Mr. EMMERSON.: I desire to ask if there are similar provisions in the legislation of the United States giving the same rights to Canadian citizens in reference to wrongs committed by United States citizens?


William Pugsley: Yes. I may sav to my hon. friend that the opinion of the Attorney General of the United States is, and in that opinion the Minister of Justice concurs, that the treaty iself confers all those rights upon Canadian subjects in the courts of the United States.


Morley Currie: The hon. gentleman has Teferred several times to the opinion of the Attorney General of the United States, given on this question. Is that document available to the House?


William Pugsley: I hold in my hands a copy of a despatch from the British Ambassador at Washington, which justifies me in making the statement I make to the House. In his despatch of April 21, 1911, addressed to His Excellency the Governor General, he says:-


William Pugsley: My Lord,-I have the honour to transmit herewith that clause of the Appropriation Act passed at the termination of the first congress which provides the legislation required by the last paragraph of Article XII. of the treaty on boundary waters and boundary questions.
It will be observed that the powers conferred on the commission by this legislation are those specified in the article above mentioned. There was at one time some question as to whether legislation would not be required in order to give the Canadian complainants access to the United States courts in injuries inflicted on them in Canadian territory as provided in paragraph 1 of Article 11. But after taking legal opinion it was decided that the treaty was sufficient in itself to effect this.
I assume that the legal opinion would be that of the Attorney General of the United States, who is the legal adviser of the United States government. He proceeds as follows:-
The United States government are, I understand, anxious to arrange for an early convention of the commission as there are several urgent and important questions awaiting reference to it. The appointment of the United States commissioners was recently reported to Your Excellency.
I have the honour to be, My Lord,
Yours most obedient, humble servant JAMES BRYCE. His Excellency, The Rt. Hon.
The Earl Grey, G.C.M.G., etc., etc., etc.
Now, in that opinion, as I have said, the Minister of Justice concurs. His opinion is that Article 6 of the constitution of the treaty gives effectually all the rights to Canadian subjects which could be conferred by an Act of Congress. I may read Article 2 of the treaty which provides for that:
Each of the High Contracting Parties reserves to itself, or to the several state governments on the one side and the Dominion or provincial governments on the other, as the case may be, subject to any treaty provisions now existing with respect thereto, the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of all waters -on its own side of the line which in their natural channels would flow across the boundary or into boundary waters; but it is agreed that any interference with or diversion from their natural channel of such waters on either side of the boundary resulting in any injury on the other side of the boundary shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or to cases expressly covered by special agreement between the parties hereto.
It will be seen that the amended sections of this Bill provide exactly in the terms of that article.
MA? 16, 1911


Henry Robert Emmerson: Does that give jurisdiction in their courts?


William Pugsley: Yes. Now, Mr. Speaker,
I do not know that I need to say anything more at present. I move the 'second reading of the Bill.


Mr. MIDDLEBRO.: Do the state governments claim the right of jurisdiction with respect to the several matters over which the federal government assumes the right?


William Pugsley: I am not aware that they have made any such claim. I would be surprised to learn that they make any claim that is in contravention of the terms of the treaty, so far as respects boundary waters.
I cannot see how it would be possible for them to make such a contention in face of the express provisions of Article 6 of the constitution. I understand that it is well recognized in the United States that a treaty overrides all state laws bearing upon the subject to which the treaty relates.


Morley Currie: Just one word more before the hon. gentleman leaves this discussion. I observe that in clause 4 provision is made for the Exchequer Court of Canada to have jurisdiction in cases of this kind. As I understand it, when a foreign citizen desires to bring an action, against the government of any British country, he approaches the matter by petition and the authority, either His Excellency the Governor General or the King, or w.hoever is acting, will issue a fiat and write across that petition ' let justice be done.' The matter is referred to the courts in the ordinary way, so that there is no necessity for this clause 4, in a sense, at all. Provision has always been made under the British constitution for a foreigner to sue for any injury or damages which may have been occasioned by the government or an individual in a British country. But, as far as I can ascertain, there is no remedy or machinery provided in the United States for bringing an action of this kind. In all civil matters, as I understand, the states have jurisdiction and the states have refused to allow a foreigner the right to sue for any damages caused either by the United States government or by a corporation within their jurisdiction. If an injury occurs to a person in the state of New York, a foreign citizen, unless he has property within the state, has no right to any recourse by way of suit. A case arose not very long ago where a young lady was killed on the Lehigh Valley railway in the state of Pennsylvania. Action was brought and when the action had proceeded a certain length the railway company took refuge behind a claim that the party injured had no property within the state and consequently had no right to sue. There was no recourse and the case
was dismissed by the United States court. Is the hon. gentleman assured that machinery is provided and if so, what is the machinery provided, under the authority of the federal courts whereby a citizen of Can-i ada can sue? We ought to know that. Ma-'chinery is already provided by us even without passing this clause. What machinery is provided in the United States? It is all well enough to say that by the treaty you can do a certain thing, but although you had the treaty you might not have the machmeiy of the courts provided in order to carry out your treaty. You might find yourself damaged in the United States, you might go into the United States and try to bring suit but you would find there was no court before which you could bring suit. You would find that there is no means by which you could approach the court by petition or in any other way to bring this suit, and there is no court provided to give justice except perhaps a state court and a state court will take the most narrow and restricted view possible in your case. I think the minister in charge of the Bill should clearly explain to the House what procedure a citizen of this country can follow in carrying out this clause of the Act, ox under this treaty. Suppose a citizen of Canada has land flooded by the action of the American government or an American corporation, and he desires to bring suit in the United States courts. Let the minister in charge of the Bill clearly explain to the House whether proper machinery is provided whereby an action can be brought and sustained in the courts of the Unjted States. I think it is necessary that the House should know what that machinery is.


William Pugsley: My hon. friend's statement certainly surprises me, and I am sure it would surprise every lawyer m the House when he says that if a party in one of the United States suffers m.iury that fiarty can have no redress in the courts of the state in which he happens to own property.


Mr CURRIE (Simcoe).: I said a foreign citizen Do not let the hon. gentleman put any words into my mouth that are not true.


Mr PUGSLEY.: A foreign citizen. I am satisfied that there is no such law.


Morley Currie: I am satisfied that there is.


Mr PUGSLEY.: And until my hon. friend calls my attention to the statute which so declares I am sure he will forgive me if I hesitate to accept his statement. Possibly he might have to do just as foreigners have to do in this country; he might have to give security for the payment of costs m case he should lose his suit.


Morley Currie: That suit must be brought by the executors or trustees of

the party's estate, or by himself, and if he has no property he must be represented by a trust company.


Henry Robert Emmerson: He could not hold property in the state of New York if he were a foreign citizen.	<


Morley Currie: You mean real property?


Henry Robert Emmerson: I am speaking of real property.


Morley Currie: But he must have property of some kind; he must either have money or be represented by a trust company.


Mr. SPEAKER.: I think these details had better be discussed in committee.


William Pugsley: Yes, Mr. Speaker, it would be better. I was just going to say a word in answer to my hon. friend from Simeoe (Mr. Currie). The words of the treaty are that in case of any injury caused by diversion of waters from their natural channel on either side of the boundary resulting in any injury on the other side of the boundary this shall give rise to the same rights and entitle the injured parties to the same legal remedies as if the injury took place in the country where such diversion or interference oocurs. In case that injury took place in one of the United States, the party whose property was injured would have a legal remedy. He would have the right to go into the courts of the state and recover damages.


Morley Currie: The state courts?


William Pugsley: The state courts.


Morley Currie: Not the federal courts?
Public Works (Mr. Pugsley) tjhat a treaty made by the federal government in the United States would supersede any rights of the state legislature, I may say that the minister knows that there was a treaty made between Great Britain and the United States commonly known as the Ashburton treaty with reference to certain rights in boundary waters between the two countries. The state of New York does not agree with the statement made by the Minister of Public Works. The state of New York claims that it has the right to build a dam across the St. Lawrence river irrespective of the Ashburton treaty.


William Pugsley: Not to interfere with navigation.


Mr. REID (Grenville).: They only admit that the federal government are to say what interferes with navigation or something of that kind. The Ashburton treaty stipulates that nothing shall he done to interfere with the natural flow of the river.


William Pugsley: The words of the treaty are that the subjects of each country shall have the same right of navigation as the subjects of the other country. In other words it shall be equally free and open to navigation to the citizens of both countries.


John Dowsley Reid: It means that the river was to remain free and open. In the evidence taken in the United States the representative of this great corporation said:
My position is that the people of the state of New York through their legislative body and government in the passage of this Bill have passed upon the question absolutely as to whether it is in the interests of navigation or not.	-
M.r. PUGSLEY. Possibly not the federal courts. I am not sure as to the line of distinction between them, but it does not make any difference, because that there is a legal remedy under the treaty is beyond question. What this treaty does is to give to a Canadian subject who has suffered injury upon this side of the boundary line the same rights and remedies as if his property were on the American side of the boundary and as if it were injured by the act of the United States government or of an American citizen.
The representative in the state legislature claims the right to dispose of half the power irrespective of the federal government, notwithstanding that it is boundary waters. You can see that a different view is taken of the treaty than that taken by the Minister of Public Works. I agree that there should be a commission of some kind to look after our interests, but I want to see everything done that can be done to protect our rights not only on the St. Lawrence but in other parts of the Dominion.


Mr. HAGGART (Lanark).: Suppose the consent of the Interstate Commission was given to the erection of the work that had caused the damage, would he then have anv right of action?	y


William Pugsley: Yes, he would still have the same right of action.
n,^ri ^ID (Grenville). With reference to the statement made by the hon. Minister of Mr. CURRIE (Simeoe).


William Pugsley: Hear, hear.


John Dowsley Reid: I have prepared a clause which I think will have the effect of safeguarding our rights, and which will leave any future question of damming the St. Lawrence with this parliament, where the Prime Minister promised it should be left. My amendment reads.


William Pugsley: Would it not be better to bring it up in committee?


John Dowsley Reid: Very -well, we can discuss the matter then.


Mr. C. A. MAGRATH (Medicine Hat).: Early in December the Minister of Public Works had a resolution before this House bearing on the treaty recently entered into between the United States and Canada dealing with international waters and now known as the Waterways Treaty. That resolution was the forerunner of this Bill, and although I believe I made my position perfectly clear on that occasion in connection with the matter, I shall take this opportunity to discuss some features of that treaty. The treaty consists of two main features, first, it undertakes to divide between the two countries certain specific boundary waters as well as certain waters which flow across the boundary; and, second, it provides machinery for the investigation of future water questions which may arise along the boundary and in the settlement of which it enunciates at least one principle. The Minister of Public Works on the occasion to which I have referred was most insistent that the settlement which has been made as to tlm division of certain boundary waters is eminently fair to this country, and, he was equally positive that the _ principle which is to be applied in future cases was sound and just. It does not require any stretch of imagination to see that if we have an eminently sound settlement it can only be obtained through the application of sound and just principles and I purpose showing to this House that we have in that treaty the enunciation of a sound and just and fair principle and side by side with it a settlement provided in article 6 of the treaty which undertakes to divide the waters of the St. Mary's and Milk rivers and their tributaries between Montana and Alberta, a settlement I repeat in which that principle was over-ridden in a roughshod manner. In May, 1909, I undertook to discuss some features of this treaty. I do not now purpose going over the same ground in detail, but I shall recite some of my findings on that occasion and then pass on to other features of the treaty. We know that in June, 1902, the Congress of the United States invited Canada, through Great Britain, to participate in the investigation of our international waters; we know that this country was somewhat tardy in accepting that invitation, but finally decided in April of the following year to accept it; we know that the United States selected the three members of the then proposed International Joint Waterways Commission in October, 1903. We also know that this country didi not complete the Canadian section until practically two years thereafter, and there, it seems to me, the United States scored point number one. We know that President Roosevelt in going afield to secure two engineers to act upon the American section obtained the services of men who had previous technical training in water questions, men who had actually been engaged in investigating work on the Great Lakes which supply the water that creates Niagara Falls; the division of its waters being one of the principal questions that was afterwards dealt with by the Joint Commission. Now, while I have nothing to say against the character or ability of the two engineers first selected 'by our government, I do say that there is not an atom of evidence that can be produced to show that these men had any large experience in that branch of their profession in which they were to be engaged in looking after the interests of the people of this country. It appears to me that in that respect-and I state that without any desire to belittle the ability of these men-the United States again scored. But probably the feature that is most astonishing in connection with the completion of the Canadian section is the appointment of Mr. Mabee who was selected in May, 1905, and to use the language of the right hon. gentleman was 'elevated' to the bench in November of that year. Now, Mr. Speaker, I hold the doctrine that water is the most valuable asset this country possesses, and holding that doctrine I cannot conceive it is possible to 'elevate' any man from the position then held by Mr. Mabee to any other in the gift of the people or of the government.
I claim that the government had no proper conception of the character of the work that was to be conducted by the Joint Commission, and that it had no conception of the great services: the Canadian section would be called, upon to render this country, and I claim that the moot of that is in the government's method of procedure in using a seat on the Canadian section as a resting place on the road to the judiciary. I am aware ^ that Jua0e Mabee has since rendered signal service to this countrv; that he is engaged in very important work at the present time in the interests of the people, but I claim that it cannot be of the same character of importance as that in which he was first selected by our government.
It is true that the full importance of work in connection with our international waters may not be recognized by the present generation, but the time will come, in my judgment, when our people will properly measure, and appreciate our asset in those waters.

The correspondence which both sections had with the respective governments, justifies me in stating that as soon as the Canadian section was completed, its colleague, the American section, brought forward the Niagara river situation, and pressed it into reaching an early conclusion as to the division of waters at that point. I claim that the Canadian section had to rely upon the American engineering data. I do not, for an instant, suggest that that information was not correct in every, detail, but I do say that intelligent people in this age do not go into questions of such _ great importance without securing their own technical information to guide them in reaching their conclusions. I claim that the division of water at Niagara Falls is a division practically suggested by the American! section. I, therefore, think the foregoing summary of facts, which were presented to the House by me in May, 1909, fully justifies the charge that our government utterly failed in its duty to the people at that time.
Turning now to article 6 of the treaty, which undertakes to divide the waters of the St. Mary's and Milk rivers, between Canada and the United States, to the detriment of this country, and especially with great injury to my constituency, heTe again, I claim, the division is one that was practically suggested by American representatives. What is the use of carrying on negotiations if one side is to do all the negotiating?
As I am intimately familiar with the features of the controversy over the waters in question, I propose dealing with the matter at considerable length,. It will, therefore, be necessary to give a brief synopsis of the situation. The St. Mary's lakes, two in number, of a total length ol 22 miles, are to be found within the eastern base of the Rocky mountains in Montana. Out of them flows the St. Mary's river in a northerly direction, reaching our boundary at a distance of about nine miles. The stream continues its northward course, and becomes part of the Saskatchewan river system, and its waters eventually discharge into Hudson bay. It is an important mountain stream.
The Milk river, likewise, arises in Mon tana, out m the foot hills, about twenty-live -miles east of the St. Mary's river II crosses over into Canada, and for over' one hundred miles flows eastward through my constituency, then, returning to Montana its waters become part of the Mississippi river -system, -and empty into the Gulf oi It is an unimportant stream.
At the time the negotiations were on between, the two countries regarding the division of the waters of those streams, what were the commitments against them!1 In other words, what were their respon-Mr. MAGRATH
sibilities? Turning first to the St. Mary's river, within its nine mile course in Montana, it is walled in by two prominent foot-hill ridges which extend practically up to the Canadian border, and within the valley so formed, there is practically not an acre susceptible to development by irrigation. There is no settlement in the valley outside of ftw;o tor three ranches which front along the stream. In other words, it practically was, and still is a foot-hill wildem-e-ss. The situation,, however, changes as the stream enters Canada. The valley broadens out, and there are several hundred thousand acres of land capable of developing by irrigation from the waters of that river. As early as 1894, the Canadian government conducted investigations, looking to the development of irrigation from the St. Mary's river, and in 1897, a company was formed with that object in view. The first question that arose was as to the feasibility of diverting water from the stream in Montana, and the decision reached was, that it would not be commercially practicable to do so. Of course no one thought the United States would ask Canada for the use of the Milk river channel, down which it would carrv water diverted from St. Mary's river. The Canadian company received authority from this government to carry on its development work, it received authority to divert all the available low water flow of St. Mary's river, and up to two thousand cubic feet per second of high water, -and under the irrigation laws of this country was given by our government fifteen or seventeen years within which to carry out its plans. At the time negotiations were in progress, it had developed its canal system to take care of some 800 cubic feet per second.
Turning now to Milk river, I am aware that for some years the total normal available flow was in use for the irrigation of certain areas within the valifey of the stream in eastern Montana, to be more exact, in the neighbourhood of Harlem, on the Great Northern railway, where a large quantity of hay is grown by means of irrigation. It has been stated that the rights of the various users of water in eastern Montana were adjudicated upon, and those total Tights fixed- at somewhere about 350 cubic feet per second. Whether that statement is correct or not, I am prepared to admit that the total normal flow during the summer was appropriated, and was being used. I am also aware of the fact that 350 -cubic feet is a great deal more water than the stream carries, except at certain periods in the spring. I have seen the stream carrying -not more than ten to fifteen feet per second in the month of August.
Turning briefly to the policy of the United
States government for the reclamation of

its arid lands, an Act of Congress was passed in 1902 wherein it was provided that lands capable of development by irrigation could be set apart; that the government would provide the necessary moneys to construct the irrigation system, and that the lands would be sold at a figure which would recoup the government its expenditure in connection with the work of bringing the water to the land. That Act brought into existence a corps of engineers, known as the Reclamation Service, and those engineers, in going through Montana, located about 200,000 acres of land within the Milk River valley in eastern Montana which could be easily irrigated from the stream, provided there was sufficient water available for the purpose. They found, however, that the available water was fully appropriated so they had to look elsewhere for water with which to reclaim the lands three methods of taking water from the St. Mary's River valley and made extensive surveys. The result of these indicated three methods of taking water from the St. Mary's river in Montana for the use of the reserved lands. Two of those schemes involved immense outlays in building canal systems entirely in Montana, but owing to the great cost, they were impracticable. The third scheme was to throw the water into the Milk river in Montana by a diversion canal some 25 miles in length and to allow the water to run down through Canada for one hundred miles within the St. Mary's river channel and upon its return to that state to carry it to the reserved lands.
Now, what is the settlement that is provided in article six of the treaty? Namely that two streams running in opposite directions, the important one having its waters discharged in Hudson bay, the other running southward to 1he Gulf of Mexico, are to be considered as one stream. That is a very excellent declaration so far as our neighbours are concerned, as it allows them to break through a sound principle affecting important streams, that principle being that waters diverted from such streams for irrigation or power purposes should be allowed to return to the same stream in order to permit it to fulfil to the fullest extent its functions or the functions which it may be called upon to fulfill as the country settles up through which the stream flows. The principal function to which I refer is that of navigation. The importance of that declaration, so far as our neighbours are concerned, is fully realized, when we understand that half the waters of St. Mary's river-the important stream-which has for ages past been flowing into Hudson bay will upon the completion of the United States Diversion canal, be carried into the Milk river to supplement the Mississippi river
system, and aid in development work in the United States.
The next feature of the article is that the waters of the two streams are to be equally divided. With a prior right, during certain summer months, to Canada of 500 cubic feet per second or so much of such an amount as constitutes three-quarters of the natural flow of St. Mary's river and a similar right in favour of the United States for a similar period as against the flow of the Milk river. There, then is how Canada with about 600,000 acres capable of development, with important vested rights equal to 2,000 feet (cubic) per second against the principal stream-the St. Mary's river are offsetted by vested rights in Montana against the Milk river, which I understand have been adjudicated upon and fixed at 350 cubic feet per second. There then is how Canada's rights, amounting to 2,000 cubic feet per second, and with a canal system capable of taking care of 800 cubic feet per second, are to a considerable extent being destroyed, not for the protection of any vested rights against the St. Mary's river in Montana, but foT the creation of rights in an entirely different water system and fully three hundred miles from the source of supply. And now comes the feature of that article which makes the project of the United States feasible. Canada is to allow the undisturbed right of use of the Milk river channel, for over one hundred miles in Canada down which the United States government will transport its half share of the St. Mary's river for use in eastern Montana. That feature has brought the American project out of the clouds of visionary imagination down into the Tealm of a practical project.
Now about that principle, which is referred to in my opening remarks, and which is to be applied in dealing with future water questions along our boundary, we find that article 2 of the treaty dealing with streams flowing across the boundary consists of four features. 1st. It provides that each government shall absolutely control the waters within its own boundaries, notwithstanding the fact that they may flow into or from the adjoining country. 2nd. That interests which may be injured on one side of the boundary through the diversion of a stream on the other, that the injured interests may cross over into the other country and seek redTess in its courts. In short, that vested rights on one side must be honoured on the other. That is the opinion of the Minister of Public Works who in dealing with this resolution stated page 898 of the unrevised * Hansard :
Mr. MAGRAffiH. One more question. I understood the minister's opinion is that under that article, vested rights against a stream on one side of the boundary must be honoured on the other side?


William Pugsley: Exactly, that is the spirit of the treaty, that is what it is intended to provide, and it is giving an absolutely new-right to subjects of the two countries.
Now it appears to me that that is a fair and just principle which will permit vested rights to seek redress in the country where the damage has been done. The underlying principles of irrigation in the appropriation of water for irrigation is the same in all countries. In Canada a right was obtained under the irrigation laws of this country to take from St. Mary's river certain specific waters. That right still exists and the Canadian company which has the right has been developing its canal system with due diligence. Yet that right, a right which would be honoured under the irrigation laws of Montana was, to a large extent, destroyed by the settlement arrived at in article 6.
I cannot understand the view point of the honourable Minister of Public Works who on the occasion referred to, page 894, unrevised ' Hansard,' said:


William Pugsley: 
George Eulas Foster: Then, the hon. gentleman (Mr. Magrath) contends that there are no other instances outside the Milk and St. Mary's rivers which physically allow the principle to be applied?


Charles Alexander Magrath: I do. I say that in any other streams that cross the international boundary that, in a'il human probability there will not be an instance in which the interests on one side can be injured through the diversion of the stream on the other side.


Robert Laird Borden: I would like to understand. The hon. gentleman's argument is that a perfectly fair and just principle is laid down?


Charles Alexander Magrath: Certainly.


Robert Laird Borden: Then, in respect of the largest, indeed the only cases to which that principle would be appli-. cable, the principle is entirely departed from by an exception engrafted on the treaty?


Charles Alexander Magrath: Yes. I say 1 cannot conceive how the Canadian representatives could have failed to recognize the true situation. I repeat that if we wish to deal fairly with our neighbours and to be dealt fairly with by them, there is no reason why Alberta interests in Canada could not have been permitted to take advantage of the principle that is to apply in future cases. If this were done there would be no criticism from me. Now, I previously stated-or intended to state-that this settlement is a settlement suggested by the American representatives. If hon. members will look at a return brought down at the instance o'f the leader of the opposition they will find there a copy of the letter addressed by Secretary of State Root to the then British Ambassador at Washington, dated January 15, 1907, in which a suggestion is made as to the division of the waters and that suggestion is substantially the settlement arranged in article 6 of the treaty. That is, the suggestion was made by Mr. Root two years before the treaty was negotiated. I stated also in explaining article 2 of the treaty that the fourth feature deals with navigable streams. I have seen steamers operating on the south Saskatchewan river; I have seen steamers operating on the Missouri. They are not to be .found on either stream to-day. But that is no Teason why they should not be found there in the future. I am aware that the South Saskatchewan river is near the vanishing point in regard to navigation. I believe that by the withdrawal of half the waters of the St. Mary's river which enters that stream, that stream will pass out of the class of navigable streams into that of unnavigable streams. I would 'like to know to what extent the Canadian Commission- ' ers considered that feature, because if they did, and if my contention is right, then the St. Mary's river should not be disturbed, because it is one of the principal sources of supply of a stream which is today navigable. Now, the right hon. gentleman is not here. In discussing this matter in May, 1909, he spoke at considerable length, and I am quoting from him now at greater length, on account of his absence, than I really require to do in order to avoid any charge of attempting to garble his *statements. On ' Hansard ' 6640 of 1909, we find the right hon. gentleman saying:
The St. Mary's river is not a large stream comparatively, but is much larger than the Milk river. This treaty, if it comes into force, will join them, that is, power is given under the treaty to join the two rivers into one Steam which will flow together in the bed of the Milk river and enter the United States. My hon. friend (Mr. Magrath) has asked why we should have agreed to such a disposition as that, why we should have permitted a stream that flows into Canada to be made to flow into the United States? The reason is such that I am surprised that my hon. friend does not appreciate it; I was more than surprised, was more than sorry, I was even astonished at the criticism he made of that disposition.
Well, Mr. Speaker, I do not think that those remarks require any statement from me. As a sample of rhetoric they appear all right; otherwise they are absolutely wrong. The right hon. gentleman went on to say:
The United 'States reclamation service have undertaken large works upon these waters, and they contemplate still larger works. They contemplate first to tap St. _ Mary s lake through which the St. iMary's river flows and to divert it into their own country. If this had been to the injury of a river flowing into Canada we would have protested against anything of the kind being undertaken.
Well, it appears this is the psychological moment for me to express some surprise and regret that any one should be found in this country possessed of so little appreciation of the value of water as to suggest that by the withdrawal of one half the

water from the St. Mary's river, which has been flowing into Canada for all past ages, the same would not be to the injury of the river and of the interests along it in this country. The right hon. gentleman went on to say:
Whether we would have protested successfully is a matter as to which I am not quite sure, because the United 'States claim that they have the right to divert any river, even if the river flows into Canada or into a foreign country, so long as they tap it within their own territory. They assert that their sovereignty with regard to a flowing stream is absolute, even though that stream flows into a neighbouring country. I am not quite sure that as a matter of international law the position is well taken. .My view, on the contrary, is that the principle of civil law would apply to international law, and that there is a strong authority for that contention, but whilst it is a contention, the Americans have held to a different construction, and they assert that they have the right to exercise sovereign power so long as the work in question is within their own territory, even though the water flows a foreign country. There was a source of difficulty.
Well, I was pleased to hear the right hon. gentleman state that he felt that we had some rights under international law. It would have been much more agreeable to me if we had some evidence that he had called in the services of legal experts who have _ been dealing with inter-state water questions, and a great number have existed in the western states. I am also awaTe of the claim made by some of our American friends to their sovereign power over waters within their own territories. I know this, that we have sovereign rights over the St. Mary's river in Canada, and we need not give them up unless we get what we think is fair and reasonable compensation. The right hon. gentleman continued:
But, putting that aside, the Americans contemplate establishing at the head of these streams large reclamation works, that is to say, putting up an immense reservoir to store the waters and keep them for the whole season. Under the present conditions my hon. friend stated this afternoon that with a committment of two thousand feet of water they never could develop more than eight hundred.
I fear the right hon. gentleman misunderstood me, because that is not what I intended to say. I intended to say what I have said to-day, that the Canadian company, while having a right to two thousand cubic feet of water at the time the negotiations were in progress, it developed its right to the extent of 800 cubic feet per second. The right hon. gentleman further said:	[DOT]
Wihy ? I speak under correction, because I bave to get my information from other sources, and I am not familiar with the country. But I understand that in a very short time.in that section of the country the spring waters are Mr. MAGEATH
exhausted, and that in the summer they have a very small amount of water, whereas, if they had these immense reclamation work* which are contemplated by the American reclamation service the water would be stored and would be available during the whole summer, and, therefore, my hon. friend from Alberta and his constituents would have the benefit of the storage of that water all summer. I know that I speak with absolute certainty when I say that the reclamation service cannot join these two streams into one, as contemplated under this treaty, unless they construct these immense reclamation works which are now proposed. Therefore, these reclamation works being established, Canadians will have the benefit of them, and will have a store of water to draw from all the long summer, whereas at the present time they can only have it in the spring and fall months.
I draw attention to the next clause:
That is the reason we have agreed to this diversion of the St. Mary's river into the Milk river.
There then is the price that this country was to pay to the United States for performing certain services for us. That country was to establish immense reclamation works in Montana so as to conserve the total flow of the St. Mary's river; to hold back the winter flow, and to control the spring freshets, and allow Canada's share of water so stored up to pass down, in the language of the right hon. gentleman : ' to my constituents during the long summer months.' Now I come to an astonishing letter which is disclosed in the return laid on the table of this House.


George Eulas Foster: Would the hon. gentleman make a little more clear the position taken by the Prime Minister, that is, as to its lack of basis.


Charles Alexander Magrath: I will later on. I will quote an extract from a letter from Mr. Knox, Secretary of State, dated Washington, January 10, 1910, and addressed to the Right Hon. James Bryce:
Dear Mr. Bryce,-Referring to your note of the 25th ulto. and the memorandum inclosed therewith relative to the Boundary Waterway's Treaty of January 11, 1909, which is now awaiting ratification, there seems to have been some misunderstanding on the part of the Canadian government as to the purposes for which the United States intends to construct the dam at the outlet of St. Mary's lake and the canal between that lake and Milk river in Northern Montana in connection with the use of the waters apportioned between the United States and Canada under the provision of article 6 of the treaty. An examination of that article will show that it provides merely for an equal division between the two countries of the waters of the St. Mary's and Milk rivers, with certain prior appropriations of the natural flow apportioned to each side. There is no requirement that the United States shall store any waters for the use of Canada, in fact, no mention is made of the storage of waters, and

the waters which the United States proposes to store are to be taken from its half share of the natural flow, and are intended for use on its own side of the boundary. The proposed storage of waters, therefore, by the United States will in no way diminish or interfere with the half share of the natural flow to which Canada is entitled under the treaty * *.
Here, we have a statement from the Secretary of the Interior of the United States, clearly showing that no such intention existed, that the language of the treaty does not attempt to bear out the view point of our government, and that it is not the intention of the United States to do any storage of waters in the St. Mary's lakes that would be of any service to my constituents during the long summer months. I say, it is a most astonishing situation, and evidently is indicative of the character of the work which we performed in connection with the negotiation of that treaty. I say it is enough to make any Canadian blush to think that we so signally failed to look after the interests of our own people. The Minister of Public Works understood the situation very well, though he has since recanted, and has told us that the treaty is quite fair to this country. I am not placing any particular significance upon his change of front, but we find in the correspondence a letter from the Minister of Public Works to the right hon. the leader of the government, dated January 20, 1910, from which the following extracts have been taken:	_
There seems to be a misapprehension on the part of the United States authorities in reference to the mode in which Canada would expect to derive any advantage from the construction of such storage works.
I have not yet discovered that there was any misapprehension on the part of the United States. It appears to have been on our part.
The principal benefit which would be derived by Canada from the construction of these works would be the securing of an increased and regular supply of water for irrigation purposes by means of the St. Mary's river. . . .
The hon. gentleman goes on to say:
-but this object would be defeated if the dam were so constructed as to only provide for carrying the water stored thereby to the Milk river by means of the proposed car.al. For this reason, I regard it as essential to an equally beneficial division of the waters of both rivers that provision should be made for a due proportion of the stored waters of the St. Mary's river being allowed, under direction of the commissioners, to pass down the St. Mary's river into Canadian territory, instead of all stored waters being diverted to the Milk river.	.
If the United States authorities take this view and give an assurance that in the construction of the dam, provision will be made
for the passing of the stored waters down both the St. Mary's and the Milk rivers, in order that they, as well as the natural flow, may be divided in accordance with the spirit of the treaty, I am of the opinion that such assurance will be satisfactory, and remove a ground for serious criticism which would otherwise be made against the treaty by those interested in irrigation projects upon and in the vicinity of the St. Mary's river in Alberta.
Well, the United States certainly did not give any assurance along the lines suggested by the Minister of Public Works. The treaty was accepted in March, 1910, without the change of one line in the document as it was before this House in May, 1909. I am not here to criticise it on behalf of any special interest in Alberta. I am here to criticise it in behalf of the people I represent in this House, people who realize the value of water, who realize that they require every drop of water for development purposes in that country, and it is astonishing to think that our government should treat this matter in such a haphazard way as to yield such unfortunate results to us. The treaty professes to recognize prior rights both in Canada and the United States. It is a mere profession so far as this country is concerned. Under conditions which might arise at any time during a dry season in southern Alberta, there are men to-day who are using water and doing it beneficially who will find themselves deprived of some of that water on account, of its having been given to the United States for the benefit of lands that are absolutely unsettled at this moment. We must realize that any impairment of the authority granted under the laws of this country, which would stand good under the laws of any other country, where irrigation is in operation that any impairment of the authority granted to a Canadian company, for the diversion of water for development purposes in southern Alberta especially, if that impairment has been aided and abetted by this government which granted that authority, is in effect a breach of faith with the Canadian company and is a wilful disregard of the interests of the people I represent in this House.


William Pugsley: My hon. friend speaks of it being a breach of faith with the Canadian company. Is he aware that the Canadian company has recommended the agreement with respect to this treaty P


Charles Alexander Magrath: No, I was not at all aware of it.


Mr PUGSLEY.: The hon. gentleman will see on the file a letter from Sir Thomas Shaughnessy and another from Mr. Dennis both recommending it.


John Dowsley Reid: They did not understand the situation.


Charles Alexander Magrath: I would now like to trace the evolution in the plana of the United States Reclamation Service for the diversion of water from the St. Mary's river. The Annual Report of the Reclamation Service for 1902 submits complete plans in detail. It was the intention of that service at that time to ibuild a dam fifty feet in height across the St. Mary's river, a short distance below the point where it leaves the lakes. The report, a copy of which is to be found in the library of parliament, shows that a number of borings were taken at various points across the valley of the river to determine the character of the foundations of the dam, and the borings so obtained justified those reputable engineers who have been investing millions of money elsewhere in the United States in connection with similar works, justified them in suggesting a dam of the height named, and which would impound in the reservoir so created in the St. Mary's lakes about 25,000 acre of water. The American canal was to be taken out of the reservoir at practically the river level, or about the bottom of the dam. I am aware from personal observation, that that proposed canal encountered some very heavy side hill cutting during the first seven miles in getting away from the St. Mary's river valley. I am aware that the Reclamation officers were most insistent in those days that that was the only proper way to conserve the waters of St. Mary's river. That they were positive in their statements that Canada had no such opportunities to conserve the total flow of the stream. And, in that I believe they were absolutely correct, because there are no lake areas through which the river flows on the Canadian side and which might be converted into reservoirs.
Possibly, through indifference on the part of our government, the United States became less ambitious to do all the conserving of the waters of the St. Mary's river, and concluded to look after No. 1 only. They changed their plans. They decided to raise the level of their canal some twenty-five feet in order to_ escape the heavy side hill cutting to which I have just referred. That would necessitate that building of a dam twenty-five feet high in order to raise the level of the river to their canal. They then,
' 9!on'c^ded store half the waters of the St. Mary's river, which necessitated carrying their dam some fifteen feet higher-those are the plans so far as they are known at the present time.
Then the Reclamation officers set about to demonstrate that Canada had excellent opportunities to store water within her territory- We find on page 72 of the Return the following extract in a letter from Secretary Bate, dated Washington, February 9,
Mr. REID (Grenville)
The natural conditions north of the International boundary in Canada are more favourable for water storage at reduced cost and with great assurance of permanency and safety of the structure.
It is regrettable to think that Canada did not appear to have any one sufficiently acquainted with this matter to have pointed out to our American friends the position taken by their own reputable engineers a few years previously, and I say. that it is humiliating to be told by a prominent engineer in the United States, an engineer who has not been in any way connected with the Canadian government case, that the trouble with Canada in this controversy was, that she had no one connected' with the case who had any knowledge of irrigation. The engineer who made that statement to me did not know that Mr. G. G. Anderson had been called in, and to whom, I propose referring very briefly in a few moments.	-
Why did our government not insist upon the price being paid which the Right Honourable gentleman referred to in addressing the House in May, 1909? He told us that when we were giving the use of the Milk river channel through Canada to the United States which made the American project feasible, we were given that right because we were going to havfe immense reclamation works established by the United States which would be a benefit to my constituents during the long summer months. Evidently some reason appeared in the horizon of the government between May, 1909, and that well known month of March, 1910, when the American surtax was likely to be put into effect against this country on the 31st day of that month, and all on account of some treaty-making jaunts to Europe wherein seme European countries have special privileges in trading in toilet soaps in Canada. We all remember how our friends opposite appeared so pleased when the Honourable Minister of Finance reached a settlement with the executive of the United States in connection with the matter. When it was announced that commercial interests of this country were not to ibe penalized in the markets of the United States because the Honourable Minister of Finance gave that country some privileges in the matter of trading in peanuts and a few other minor articles in this country. I am disposed to think that we were told on that occasion that the slate had better 'be cleaned and the outstanding questions between the two countries settled. _ If my view is right in that respect,
I am disposed to think that Southern Alberta is paying pretty dearly for the privileges that Canada has of securing cheap European soap. Now, as to the methods pursued by our government in this

matter, the return that has been brought down to this House makes most interesting reading. It shows that the government secured the services of George G. Anderson, a prominent Consulting Irrigation Engineer of Denver, Colorado. The government is to be commended for that because Mr. Anderson is one of the first men in the irrigation profession in America. That, I am aware, is a mere statement, but it can be verified by any one who wishes to write to any financial institution in the State of Colorado. Mr. Anderson was well qualified to deal with the matter because he had been the consulting engineer of the three large Canadian Irrigation enterprises, first, the Alberta Irrigation Company, second, the Canadian Pacific railway irrigation project, and lastly, with the Southern Alberta Land Company, which is operating in the neighbourhood of Medicine Hat. The Return shows that Mr. Anderson submitted an extensive and valuable re. port, dated 22nd April, 1908, giving in detail the history of the questions involved in reference to the division of the waters of the St. Mary's and Milk rivers, and suggested a division that would yield the greatest good to the greatest area, Tegardless of the International" boundary, a principle that I believe should be applied between friendly people and we have heard considerable recently of how friendly we are with our neighbour in this and other questions. We have no evidence that his views were in any way put forward before the American representatives. Then the Treaty was negotiated in the following January, and we had a discussion in this House in May, 1909. It had to pass into the Senate of the United States and a representative of the people there felt that the interests of the people he represented were not being properly protected, and he had a rider attached to the treaty which necessitated its being sent to our government for acceptance. For some reason, not disclosed in the correspondence, Mr. Anderson's services were again brought into commission, and we find a report from him, dated at Denver, 18th September, 1909, in which he criticises the settlement as arranged in article 6. The opening paragraph of his report is as follows:
Thorough and careful consideration of the provisions of the treaty.
It is a pity, Sir, that our representative did not treat the subject in the same way.
Thorough and careful consideration of the treaty with the United States relating to boundary waters and questions arising along the boundary between Canada and the United States signed at Washington, January 11, 1909, so far as the provisions affect the waters of the St. Mary and Milk rivers and their tributaries compels the conviction that they are greatly unjust to the interests of Canada, and for the following reasons.
Now, I do not propose to indulge in any technical discussion of this subject, nor to follow Mr. Anderson in his report beyond making a couple of references thereto.


George Eulas Foster: Are these Teasons lengthy?


Charles Alexander Magrath: Oh, yes, they cover many pages. The return shows an extraordinary situation for which 1 question if any parallel is to be found in any business organization. Here, we had secured the services of an expert in irrigation to deal with a purely irrigation question, and that expert submitted a lengthy and able report. In the return which has been brought down we find an undated memorandum addressed to the Minister of the Interior by a representative of our government, evidently prepared between the end of 1909 and March, 1910, and in this undated memorandum, Mr. Anderson's views are pulled to pieces by the people who employed him as an expert, instead of throwing Mr. Anderson's opinions and views up against those on the other side of the controversy and following them up by sound argument of our own. I repeat that I question if it is possible to find a parallel for action of that character in any business institution in the wide world It might not be out of place to state here, that the negotiations so far as the United States is concerned, were either conducted by the Technical Officers of the Reclamation Service who were familiar with every foot of the ground, through which these streams run, or when not conducted by them, one or more of those men were at the elbow of those who were in charge of the negotiations. I challenge the government to produce any evidence to show that that was the situation so far as Canada is concerned. Why there was not an expert within one thousand miles of the gentlemen who conducted the negotiations for us. It is true that the Minister of Public Works, when his resolution was before the House, undertook to certify two gentlemen as Irrigation Experts. I am aware that those gentlemen are experts in certain lines, but they would be the last to say that they were in any way expert in water questions, and the minister in attempting to manufacture them into Irrigation Experts simply exposed the weakness of this feature of the case, which I have been largely criticising, and instead of elevating the gentlemen in question into the sphere of Irrigation Experts, he had shown to the country at large his methods of looking after the interests of the people of this country.
At one o'clock, House took recess.
House resumed at three o'clock.


Charles Alexander Magrath: Mr. Speaker, before resuming my argument which was broken off

owing to the House adjourning for lunch, I would like to revert for a moment to a feature that I may not have made absolutely clear this morning, and that is that while article two enunciates that sound principle that in the case of streams flowing across the boundary, vested rights on one side must be honoured on the other; that owing to the rider which does, not allow that feature to be applied in the only existing case, that case had to be settled by special arrangement, and which was done in article six. I merely wish to point out how that sound principle was totally disregarded by the negotiators in article six, wherein the Canadian company, with a canal taking 800 cubic feet per second from the St. Mary's river, with legal rights up to 2,000 cubic feet per second, was only given a prior right of 500 cubic feet per second against the St. Mary's river, and not even that, because when the stream falls so that three-fourths of it will not produce 500 feet, then the Canadian canal will only be entitled to what that three-fourths of the stream amounts to. On the other hand, the charges against the Milk river in Montana, adjudicated at 350 cubic feet, are given a prior right of 500 cubic feet per second against that stream, though, of course, I know it is not capable of producing that amount in normal years during the irrigation season.
Returning now to that undated memorandum which I was dealing with when the House adjourned, the only question which Mr. Anderson raised which appears to have been seriously considered by our government, was his criticism that the United States need not build immense reclamation works whereby Canada would be served therefrom; but our representative disposes of even that view on page 80 of the return, in which he says:
Therefore, it will not be necessary for the United States, Mr. Anderson says, to provide any storage on St. Mary's river. The flaw in this argument is in the fact that Mr. Anderson deals with average flows.
And elsewhere on page 82, he says:
It is probable, therefore, that the dam will be built.
I think Secretary Ballinger's letter, of which a portion already has been read, indicates that there was not very much flaw in Mr. Anderson's argument. Elsewhere, it appears that Mr. Anderson referred to a very important feature which appeared in a communication made by the late John Hay, then Secretary of State, to the British ambassador, dated at Washington, February, 8, 1903, as follows:
It is proposed to deal with this matter in strict conformity with the laws concerning the right to the use of water as recognized by the Mr. MAGRATH.
courts of the arid region, both on this side of the international boundary and on the other. The principle may be stated in the language of section 8 of the Reclamation Act: that the right to use of water shall be appurtenant to the lands, irrigated and beneficial use shall be the basis, the measure and limit of the right.
Mr. Anderson pointed out that that statement substantially meant that the Canadian company should be protected in its legal appropriation against the St. Mary's river. That statement of Secretary Hay is the sound and just principle of allowing vested rights to be protected, but our government's representative, in criticism on that point on page 75 of the return, uses the followinig language:
I do not think there is much force in this argument. The United States would probably say in reply that if they are bound by Mr. Hay's words they are bound only in the sense in which he personally intended them.
It is rather an astonishing admission that Mr. Hay's own views were not used against his country in discussing this question. It appears to me that it would be more in the interest of Canada if we had theorized less, and had dealt in a practical way with a practical question, which, however, of course could only have been done by practical men. Finally, on page 83 of the return, we find the following statement from our representative:
It is suggested in the note that storage on the Canadian side of the boundary could be secured at less cost and with greater assurance of permanence than at the outlake of the St. Mary's lake. This is corroborated by Mr. J. S. Dennis of the Canadian Pacific railway, who has a thorough knowledge of the engineering questions involved. While in the government service about fifteen years ago, he surveyed the whole of that region for the very purpose of ascertaining the possibilities of irrigation by water diverted from St. Mary's river. His view is that by utilizing the storage facilities of the northern slope of Milk river ridge, Canada can store all her share of the water, and that the storage in the basin of the St. Mary's lake would be of little or no service to her.
There are three features in the foregoing statement worthy of some attention. First, we have the statement of American authorities endorsed, namely: that storage facilities in Canada are better than in the United States. It is not a question of permanence of structures, because the United States is committed to the construction of a dam some forty feet in height, which will probably hold behind it 200,000 feet of wateT. It is a question of putting two holes in the bottom of that dam, one for the use of Canada, the other for the use of the United States. That of course, would involve the building of the American canal as originally located, and involve

that country in greater expense. Instead of that, however, there is to be one hole in that dam twenty-five feet above the river level, out of which the American share of the water will be taken, and the Canadian share of the water will go down the valley uncontrolled.
Then, we have the opinion of Mr. Dennis, that by using the storage facilities of the northern slope of the Milk river, Canada can store all her share of water. That statement is absolutely incorrect. The storage facilities of Canada are situated many miles from the St. Mary's river. They can only be connected by earthen canals with the river. Those cana'ls can only be operated in normal years, about seven months in each year. We must realize that earthen canals must be closed down in order to allow them to dry out, so that teams can be placed in them to do the necessary repairs before the frost sets in. Any child in these northern latitudes knows that water cannot be carried in such canals during the winter months. Then, what happens to the flow of the stream for what, I may term, the five winter months? It is true that water will run longer than seven months, but I have already explained that the canals have to be closed down, and my 'experience in operating canals, is that they have never operated more than about seven months per year. So that at once disposes of that question. Then the other statement is that the storage in the basin of the St. Mary's lake would be of little or no service to Canada. All I have to say in connection with that is that the storage in the basin of the St. Mary's lake, is good enough for the United States, and, looking carefully over the entire treaty, and the success which has attended the efforts of the United States in its negotiations. I am disposed to think that what is good enough for that country, should be good enough for this.
Sir, when this question was before the House in May, 1909, the right hon. the Prime Minister (Sir Wilfrid Laurier) criticised me rather severely for importing, as he said, political bias into this debate. I absolutely deny the charge, Sir. I was not sent here to throw platitudes at anv one in this House. I came here to look after what I regard as the interests of the people of this country. I went into the western country over thirty years ago, without any very great appreciation of the value of either water or timber. I settled on the plains of western Canada, and it gradually came to me the great value of these two natural advantages. I was connected with development work in southern Alberta, and I say that any man who has an interest in this country 288
should be glad to take part in making two blades of grass grow where one grew before I realize the necessity, as the people in that country to-day realize the necessity of every drop of water we are entitled to. We know that we have not sufficient water for our needs; and when the government allows water to be taken from us to which we are legally entitled, I have every right to come here to criticise the government. More than that, Sir, we are not doing what I consider we should do in the development of the water resources of that country. We have vast bodies of water going down towards Hudson bay, and doing little or no good. The government should carry on careful investigations to see to what extent the water can be put to beneficial use. Nothing is now being done in that direction beyond the measurement of some streams. But, before we can attempt the development of our water resources other things need to be done. We have certain gentlemen north of Lethbridge asking that water should be taken out of the Belly river for use in that country. They are not in a position to say whether that is or is not feasible from an engineering point of view. The government ought to go to their aid and tell them to what extent it is feasible.
Now, a few words dealing more closely with the Bill before us-that is in reference to the appointment of the three gentlemen who will be associated with the three appointees of the United States for operating the Waterways Treaty. I understand that the three representatives of the United States were selected several weeks ago and that ex-Senator Carter, of Montana, is one of them. Senator Carter was most active and aggressive in pushing forward Montana's claims during negotiation of the treaty.
I consider that our government has a great opportunity to render a signal service to Canada in the selection of the three Canadian representatives. In my opinion, it is not a question of obtaining gentlemen with legal lore, as the questions which will be involved are engineering questions. We know that continental Europe has been forced through circumstances to reduce transportation to a science. She has been forced to bring her water routes-the very cheapest-to the highest point of development. She has developed energy for industrial purposes in the same way, and in doing so, has made use of electricity for the transmission of power produced from water. Irrigation with her has likewise been brought to the highest point of efficiency, therefore, her engineers have had greater opportunity than has yet been offered in young America, but America is being forced in the same direction, through keen competition. Then, it appears to me that this is



the time for Canada to hunt for a man who stands pre-eminent in that branch of the engineering profession, which this commission will be called upon to deal with, namely, water questions. L'et us get that man, regardless of price or where he comes from,as we need a man with such a reputation that when he speaks he will be listened to throughout Europe as well as America. Having secured such a man, let our government place a copy of the treaty in his hands with instructions to carry on investigations along the international boundary, so that when the five-year period for which the treaty was made comes- to an end, he will be able to point out all the weak places so far as Canada is concerned. Place before him a map of Canada and draw his attention to the vast bodies of water possessed by this country, with streams flowing in almost every direction; point out to him the strategic position this country possesses in the world of commerce, and the vast quantities of raw materials we possess. Tell him to study Canada's problems of industrial development so as to be able to lay down a policy of water-power development and water transportation that will permit this country to get its products into the markets of the world at the lowest possible figure. Then, Sir, every link that we lay down in our transportation system will be -a link in that enlarged plan of'our ultimate aim in the matter of transportation which will enable Canada to be a great country with a prosperous people.


Hon. FRANK OLIVER (Minister of the Interior).: I am sure the House has listened very attentively to my hon. friend from Medicine Hat (Mr. Magrath). No member of the House is better qualified to speak on the general question of the rights to water and the uses of water, and nobody is better qualified to speak on the question dealt with in article 6 of the treaty, than is my hon. friend. Therefore, it is right, first that he should give every attention to the matter, and next that the House should give every attention to him. He has marshalled his arguments and his facts very well. The only criticism that I would have to offer is that my hon. friend has proved too much. He has proved, in his opinion, that the government has been absolutely derelict in its duty, has paid no attention to- the rights of the people, has ignored the facts, and generally has thrown away an opportunity to protect the interests particularly of the constituency he represents. I am sure the House will forgive me if I do not agree in that extreme view. I shall not endeavour to follow my hon. friend through the technicalities of the subject, and I have no fault to find with the way in which he has presented the facts. What I criticise is his deductions from these facts, and I think I Mr. MAGRATH.
can show the House, from the hon. gentleman's own figures, that his deductions are not by any means warranted.
The position with regard to the matters dealt with in article six is exactly as he has stated. There are two rivers which take their rise in the United States, and flow into Canada. The smaller flows out of Canada back into the United States, and the larger remains in Canada, and flows into Hudson bay. The arrangement whereby Canada has granted three-quarters of the flow of these rivers in low water and one-half in high water, he condemns as an improvident one. I admit at once that, as compared with an arrangement which would secure to Canada the whole flow of both streams, it would be an improvident arrangement. But that was not the alternative. Let me put the alternative as I understand it, and as the House will understand it from what my hon. friend has said. The alternative was not between securing one-half of the water of the two streams and all the water, but between securing one-half of the water of the two and none of it, speaking of their low water flow. If the House has followed my hon. friend's statement, it will recollect that the proposition of the United States government, and the Reclamation Commission was to divert the whole of the low water flow, and some part of the high water flow of the St. Mary's river from its natural channel, out of its -own drainage basin, into the drainage basin of the Milk river.


Robert Laird Borden: But what right had they to do anything of the kind? That is an international stream, taking its (rise in the United 'States and flowing through Canadian territory into Hudson bay. I have yet to find any authority for the proposition that the United States had the right to do anything of the kind.


Frank Oliver: I take exactly the same view as my hon. friend, but I think he will agree with me that, if they had not the right, beyond question they had the power to do it, and that was what was in question.


Morley Currie: My hon. friend says they have the power to do it. They have diverted the St. Mary's river into the Milk river south of the boundary line.


Frank Oliver: They have not done so, but propose doing so.


Morley Currie: Well, there is nothing to prevent this government diverting the water of the Milk river into the St. Mary's.


Mr. LENNOX.: I understand the hon. minister to say that undoubtedly the Unit-

ed States had not the right to divert this water.


Frank Oliver: In my opinion they had not.


Haughton Lennox: But they had the power. In what way had they the power? Was it by force?


Frank Oliver: They had the power because the water originated within their territory and they were able to make a diversion of it within their own territory; and as a sovereign power, not governed at that time by any treaty, there is no doubt that whatever the right may be, the power absolutely lay with them to make that diversion and take the whole low water flow of the St. Mary's out of the drainage basin of the St. Mary's, and thereby leave all my hon. friend's constituents high and dry, so far as the low water flow of the St. Mary's was concerned, he will not dispute that statement.


Morley Currie: Why did you not offer a counter proposition?


Frank Oliver: This is a counter proposition, but I wish to deal further with the suggestion of my hon. friend from North Simcoe. The proposition of the United States government was to divert the water of the St. Mary's into the Milk river, and then use the Milk river as a channel whereby that water could be taken around to Montana, and then used on the lands contiguous to the Milk river.


Morley Currie: That would pass through miles of Canadian territory.


Frank Oliver: Precisely, we all agree as to the facts. This Milk river passes for 100 miles through Canadian territory, and the level was such that it was possible for Canada to tap that Milk river within Canadian territory and thereby take from it the water that would be taken out of the St. Mary's. As a matter of fact a ditch was dug for that purpose, but it would not take the water onto the land owned by the settlers in whose behalf my hon. friend (Mr. Ma-grath) was speaking.


Charles Alexander Magrath: Yes, it would. The hon. minister will pardon me for contradicting him. I gave the contract for the portion of the Milk river ditch, and must know something about it. The water could be brought to Raymond and northward.


Frank Oliver: I would not care to enter into a controversy with my hon. friend on an engineering question.


Charles Alexander Magrath: The hon. minister will find in his department plans which show
288}
that the water taken from the Milk river in Canada can be carried out into the other canal system on to the lands that are being supplied direct from the St. Mary's river.


Frank Oliver: Could it be secured to the town named after my hon. friend?


Charles Alexander Magrath: No, there is very little water distributed there.


Frank Oliver: My hon. friend says that, so far as a large part of the lands occupied by his constituents is concerned, this wateT could be taken out of the Milk river and distributed along that land, but to a part of that land it could not. My excuse for assuming that the water could not be brought from the Milk river into the St. Mary's direct is because at present if, flows from the St. Mary's direct into the Milk river. While the possibility exists to take out of the Milk river what might have been taken out of the St. Mary's, and put into it by the United States, there is the further possibility that the United States did not need to do that. They could have carried the water of the St. Mary's river past the Milk river into another river which did not flow through Canada, and could thereby have defeated the purpose that was in the mind of the hon. member for Simcoe when he said that if they put the water into the Milk riveT we could take it out again. Thev did not need to put the water into the Milk river, they could have put it into another river, and could have used the water of that river. True, that would not have been an economical proposition, it would have cost more than it was worth. But it is an engineering fact that it could have been done, and, it is a financial fact that the United States has money enough to do it. Speaking from my place in parliament, I would not like to go further and suggest that sometimes it has appeared to me that the United States is not always governed by economical considerations in dealing with a neighbouring country. At any Tate, I have placed the situation before the House. The choice was not between getting half the water and all the water, it was between getting half the water and none at all, therefore, the government of Canada took the course that is laid down in the treaty as being in the best interests of the people concerned. We were not in a position absolutely to protect their interests, therefore, we believe that we were well advised in protecting them as far as we were able. That this action of ours was well taken I am convinced from the fact that we have an assurance from the head of the responsible company which to-day owns the irrigation rights that my hon. friend has spoken about, that is to say, the residuary rights which have not yet been disposed

of, and the head of this company advised the government that the company was satisfied with the arrangement that was then about to be made. Under these circumstances, while I am free to admit that the arrangement was not such as we would have liked to make, and that perhaps we might have made a more favourable arrangement with our neighbours, still it was such an arrangement as commended itself, under all the circumstances, to the people who were most directly financially interested, as well as to the government, in dealing with what was a very, very difficult question. I just wish to sav that I think my hon. friend was not justified in the conclusions that he drew from the very accurate statement of facts that he made. I do not think the government have slighted the interests of the people affected, and are not to be blamed, but rather they are entitled to credit for having done all that could have been done, under the difficult circumstances, to protect those interests.


Mr. C. J. DOHERTY (Montreal, St. Anne).: In this Bill there seems to be a very material change from the provisions of the Bill when it was originally introduced. The Minister of Public Works told us this morning, if I followed him correctly, that he had introduced some new sections for the purpose of making it clear that there should be a jurisdiction in the courts of this country to try actions contemplated by the treaty brought by persons residing in the United States. It seems to me that the first section of this amended Act modifies materially the case, and puts this House, as towards this Bill, in a_. very different position from that which it occupied at the time the Bill was originally introduced. By the first section of the amended Act this Bill purports to confirm, and sanction the treaty that was made. Now if I understand the situation, when the Bill was originally introduced, the treaty was considered as being absolutely in force and binding upon us, and what parliament was asked to do was to provide for the officers to be named under the treaty, for their appointment, and for their fees. The Bill now seems to proceed upon the principle that the treaty requires some confirmation, or some sanction from this House; because I do not suppose that the government is asking us to go through a performance which is absolutely unnecessary, which can have no effect. It would appear now that the government must be under some impression that this parliament has power to deal with the treaty in the shape of ratifying it, and I suppose that if we can ratify we would likewise have the right to refuse our ratification. Perhaps the_ minister will say whether he understands by this clause of the Bill that a Mr. OLIVER
confirmation of this treaty by parliament is necessary.


William Pugsley: I thought I had made it clear that it is the opinion of the Department of Justice that, in order to give authority to a court to subpoena witnesses and to have them sworn before giving their testimony, an Act of this parliament is necessary; also, that legislation is required in order to give a right to American citizens to proceed in the courts of this country pursuant to the terms of the treaty. That 's the object of introducing the legislation. Of course, in doing that it is desirable that we should ratify the whole treaty, because these clauses are essential parts of it.


Charles Joseph Doherty: I can understand that the sections following section 1 do make provisions for the machinery to enforce the yights that are created under the treaty. But section 1 purports purely, and simply to sanction and confirm the treaty. Now it seems to me that one of two things must be true ; either the treaty requires a sanction and ratification by this parliament, and we have power to sanction and ratify it, which also implies that we have power to refuse to sanction or ratify it; or the treaty requires no sanction or confirmation on our part, and we have no power to confirm or to refuse to confirm. Now, if the latter is the case, the government is asking this parliament to put itself into a position where it subjects itself to the criticism that it is undertaking to deal with a matter with which it has no possible concern.	,
What would be the effect upon this treaty if parliament refused to pass this Bill? Surely the first inference would be that the treaty was not binding upon it, and it seems to me that we ought to be very careful before we undertake to break into a matter with which we have no right to deal. I have understood up to the present that the position that the government took was that this treaty was completely binding upon us as soon as it was passed, and that we had no further power in the matter than to provide machinery to carry it out. The introduction of this section raises a very important question. If I understand it rightly, the treaty-making power is vested in the Crown, and it seems to me that if this be a treaty which can be made by the Crown without any intervention of any other authority, it is nothing short of a piece of impertinence on our part to take it upon ourselves to sanction or confirm it. If, on the other hand, this be a treaty which can only become binding upon its ratification by parliament, then I entirely fail to see how this parliament comes to be the proper body which ought to pronounce that ratification. I do not want to go into a discussion of this matter in detail of whether ratifica-

tion is necessary or not, but it seems to me that if it be a case *where ratification is necessary this parliament is without power to deal with this question of ratification. I understand there are treaties which are recognized as requiring legislative action to make them perfectly and completely binding, and that among treaties of that kind are those which have the effect of modifying or altering the private rights of individuals which require legislative action to make them binding upon those individuals. But, in that view, so long as the treaty-making power is exercised by His Majesty, not as forming any part of the parliament of Canada, but His Majesty as being the King of Great Britain and Ireland, and, therefore, Sovereign of the empire, it seems to me that the only legislative body, which, under these circumstances if we assume ratification to be necessary to this treaty, could take upon itself, or would be the body, to exercise that power would be the imperial parliament and not this parliament here at all. I do not know that the British North America Act gives us any treaty-making power of any kind, and if ratification is essential to this treaty then the pronouncement of the ratification is a part of the making of the treaty. I quite understand that it might have been a part of the treaty that it should be subject to ratification by this parliament, and if that had been so then I quite understand that it would be within the purview of this parliament to pronounce upon it and say whether it would confirm and ratify it or not. But. there is nothing of the kind in the treaty; so that, it seems to me that by this first section the government is asldng parliament to do a something which it has absolutely no power, or no quality, or no function to do. I do not know whether the answer would be that even if it is none of our business it would not do any harm if we should do this. I do not think that is a very conclusive answer because I do think that this parliament ought to guard itself against laying itself open to the accusation of stepping in where it has no power to ratify or refuse to ratify What His Majesty, in the exercise of his prerogative powers, has done, because stepping in to r.aitify does imply that it lies with us, if we choose, to refuse to ratify this treaty. Now, if it be assumed-and I suppose we must assume it, inasmuch as the government asks us to ratify this treaty-that we have some power in the matter, and that it is open to us to refuse to ratify this treaty if we choose, then, it seems to me the question arises- and I believe it is a very important question-as to whether we ought to ratify this treaty. I think that my hon. friend from Medicine Hat (Mr. Magrath) made out a strong case this morning in regard to one
feature indicating that we should refuse to ratify the treaty. An important clause of 'the Bid] is that Which purports to grant the right of action 'against individuals in this country for damages resulting from diversions iof streams running 'through this fcountry, and that ultimately pass into the United States. In that regard it seems to me that the government, by this treaty, has undertaken to create rights, of action against individuals in the different provinces and then, because it has taken upon itself to create these rights of action, follows it up in this measure by withdrawing the individuals who may be responsible for such diversions, and who are consequently subjected to the rights of action the treaty purports to create, from their natural jurisdiction before . the provincial courts and making them amenable to the Exchequer Court and liable to be brought away from their homes and the jurisdiction of their courts 'which are constitutionally charged with the administration of the civil law to answer for what after all is on their part a violation of the civil law, or the common law, as the case may be, giving rise to action in damages on the part of persons who have suffered by it. The provision of the treaty is this. It is agreed that:
Any interference with or diversion from their natural channel of any waters in Canada, which in their natural channels would flow across the boundary between Canada and the United States or into boundary waters (as defined in the said treaty) resulting in any injury on the United States side of the boundary, shall give the same rights and entitle the injured parties to the same legal remedies as if such injury took place in that part of Canada where such diversion or interference occurs, but this section shall not apply to eases existing on the eleventh day of January, one thousand nine hundred and nine, or to cases expressly covered by special agreement between His Majesty and the government of the United States.
I understand that the purpose _of this article is to give to persons in the United States suffering from the diversions of streams that take place in this country the same right of action which a person living in this country would have against a person who is responsible for the diversion. If that is correct, the right of action that is created or recognized in favour of this outsider is a right of action that is governed bv the'law of the province in which the diversion takes place. It does not appear to be intended to give an outsider any greater right of action than exists already in the country in which the diversion takes place as between the person responsible for that diversion and the person who has suffered damage. The right of action, therefore, is a right of action which results from the common law or the civil law, as the case may be, in the particular province in which the


Robert Laird Borden: One or two words before the treaty passes. In the first place I desire to extend my congratulations to the hon. member for Medicine Hat for the very able and lucid address he has gjiven to the House to-day, in which he has set forth very distinctly the practical effect of this treaty, from his standpoint, upon the conditions in the province of Alberta and more particularly in connection with the waters of the St. Mary's river and the Milk river. The hon. member (Mr. Magrath) has gone into the matter with very great thoroughness. He has reviewed the situation from beginning to end in a very fair and convincing manner and in my opinion he has demonstrated very completely that the government, in negotiating this treaty, have not taken the best means of safeguarding the interests of the people of Canada, and have not adequately safeguarded these interests. T would like to say to the Minister of Public Works who has charge of the Bill, that during the period which has intervened between the signing of this treaty and the present time the situation has been to some extent altered if we may judge by what has recently been to the fore in the way of negotiations between the government of Great Britain and the government of the United States for a general arbitration treaty.
I do not think that the President of the United States can be too highly commended

for the position he has taken in that respect, and I would like to quote to the House the language he used in what has been called his inspired deliverance before the peace and arbitration society in New York on the 22nd March, 1910. He said:
Personally I do not see any more reason why matters of national honour should not be referred to a court of arbitration than matters of property or of national proprietorship. I know that is going farther than most men are willing to go, but I do not see why questions of honour may not be submitted to a tribunal composed of men of honour who understand questions of national honour, to abide by their decision as well as any other question of difference arising between nations.
We all know that up to the present time treaties of arbitration between the nations [DOT]of the earth have excepted matters (which concern the national honour, or the vital interests of either country. President Taft took a memorable step in advance when he used these words I have cited. The policy which he then expressed himself as willing to follow will make his presidency memorable in the history fof the United States, and in the history of the world. But he did something more than that. On the 17th day of December, 1910, he delivered an address at the banquet of the American Society for the Judicial Settlement of International Disputes. [DOT]There iare la great many peace societies in the United States, and the society which I have just named is one which has done most excellent work in the cause of peace throughout the world. In the course of his address on that occasion President Taft went one step further. He said this:
If, now, we can negotiate and put through a positive agreement with some'great nation to abide the ajudicaltion of an international arbitral court in every issue which oan not be settled by negotiation, no matter what it involves, whether honour, territory or money, we shall have made a long step forward by demonstrating that it is possible for two nations at least to establish as between them the same system of due process of law that exists between individuals under a government.
After the two speeches of Mr. Taft, from which I have briefly quoted, it was generally recognized, I think, throughout tth-e world, ittua/t .the .address delivered iby jhim on December 17 last, was practically an invitation or suggestion to Great Britain that the United States would be willing to enter into a treaty of arbitration along those lines with the British Empire.
On the 28th day of April last, a notable gathering assembled at the Guildhall, when the Prime Minister of Great Britain, and the Right Hon. A. J. Balfour, the leader of the opposition in the imperial House of [DOT]Commons, both spoke on this question. I
do not intend to quote from them at any length. Just one or two words from the address of Mr. Asquith on that occasion:
Arbitration for the settlement of disputes between nations is already familiar to us, but hitherto points of national honour of vital importance have been reserved and have not been referred to courts of arbitration. Now, whatever the magnitude of the interest may be, whatever poignancy of feeling may be involved, war will be absolutely abandoned.
Then he went on to say further:
It is the privilege of great natipns as well as of great men not only to follow but to acknowledge precedents. If the United States and Great Britain make this compact it will be an immeasurable step in the progress of humanity.
Mr. Balfour spoke entirely along the same lines, and in precisely the same spirit.
It is understood that negotiations have been going on for some time between the government of the United States, and the government of His Britannic Majesty along these lines. Of course, it is yet a diplomatic secret as to how far these negotiations may have been advanced. But if they are in good progress, and we have every reason to believe that such is the case, may they not in effect supersede a treaty of this kind, which deals with only one kind of possible dispute between the United States, and a portion of the British Empire alone. I do not, of course, deny that the tribunal would be differently constituted. 'There would be a greater and a stronger itri'bunal under the general arbitration [DOT]treaty now contemplated than the tribunal constituted by this commission; but we 'have nothing to fear, I hope, from that. [DOT]Therefore, it would -be well for us to pause [DOT]for a moment to .consider whether everything that this treaty accomplishes, and a great deal more besides, may not he accomplished by the .arbitration1 treaty that iwe hope will be consummated before veTy Jong. /Besides, isomeithing can. be said for the position that it would be better for Canada to stand in line with the rest of the empire in respect of such a matter than to have its own particular arbitration treaty dealing with its special differences with the United States. It would seem to me that there could not be any possible objection on the part of the United States to that outcome, and certainly there ought not to be any objection on the part (of Canada.
My hoin. friend from St. Anne (Mr. iDoherty) has .spoken of the complete change in this Bill. It is completely changed from the form in which it was presented to parliament in the first instance, because it is now proposed by the first section to ratify the treaty, and by the second sec-

tion to alter anl amend the laws of Canada, and of the several provinces of Canada, so far as may be necessary to carry out and perform the obligations of this treaty. In speaking upon this question in this House on the 14th day of May, 1909, I argued, and I have seen no reason since to change my views, that this treaty should have been made subject to ratification by the Canadian parliament. After examining this question, as discussed in the most recent and authoritative text books I arrived at the conclusion that treaties of the following character should be made subject to the approval of parliament:	First,
those imposing any burden on the people; second, those involving any change in the law of the land; third, those requiring legislative action to make them effective, or which affect the free exercise of the legislative nower; fourth, those affecting territorial rights. I pointed out also that Anson, in his work upon the British constitution, referred in the edition of 1896 to the Heligoland Treaty between Great Britain and Germany as creating an unfortunate 'precedent. In that case Great Britain, having ceded the Island of Heligoland, subject to the approval of parliament, came to parliament for ratification of the treaty. It was at that time apparently the view of the British government that any treaty involving the cession of territory ought to 'be made subject to the approval of parliament. Anson, in his edition of 1896, criticised this as an unfortunate precedent. In his edition of 1908 he withdraws that criticism and says this:
We seem to be drawn to this conclusion, that apart from precedents relating to Indian territory, it has of recent years been thought desirable, if not necessary, that the consent of parliament should be given to the cession of territory in time of peace.
I pointed out also that Lowell, in his recent work on the government of England, at page 22 of volume 1, used this language:
The Crown has power to declare war, make peace and conclude treaties, save that, without the sanction of parliament, a treaty cannot impose a charge upon the people or change the law of the land, and it is doubtful how far without that sanction private rights can be sacrificed or territory ceded.
Then there are a great many recent treaties between Great Britain and foreign countries which have been made subject to the ratification of the British parliament.
I need not go over these again. It appears now that the Minister of Justice (Sir Allen Aylesworth), according to the Minister of Public Works (Mr. Pugsley), has come to the conclusion that this treaty must be ratified by parliament. That is (perfectly obvious, as I pointed out most (distinctly in May, 1909, but could not then Mr. BORDEN (Halifax). '
find any one on the treasury 'benches -wfill-*ing to agree with me. I then said:
This treaty must have the effect of altering the law of the land if carried into effect. Y^ou must have new laws in regard to actions brought by people in Canada against people residing in the United States, or by people in the United States against people domiciled in Canada.
And I argued, as I claim to-day, that it cannot be carried into effect without the ratification of parliament. My hon. friend the member for St. Anne division (Mr. Doherty), has shown the singular situation into which the matter has been brought by the action of the government. They did not make this treaty subject to the ratification of any parliament. They took the ground, contrary to all British precedents in the last twenty years, that this treaty need not be made subject to the ratification of parliament, but still they come to-day, and ask parliament to ratify it. In taking that step they are, therefore, departing from the position they took in the first instance. Inasmuch as this treaty was not made subject to the ratification of any parliament, what has this parliament to do with ratifying it to-day? In the absence of any provision in the treaty itself, there is strong ground for the argument which my hon. friend from St. Anne-has presented, that the proner parliament tp ratify it is the British parliament. That the Crown has the right to make a treaty and insert in it a stipulation that it shall ;not go1 into effect until ratified by the parliament of Canada, of that there can be no doubt. But if the Crown sees fit to make a treaty without inserting any such stipulation, there is strong ground for the argument of the hon. member for St. Anne that the proper, the only parliament which has the right to say it shall or shall not be ratified, is the parliament of Great Britain. That is the position in which the government finds itself to-day.
This treaty goes on, in the second place,, to amend in a general, and comprehensive way, the laws of Canada, and of every province in Canada. It provides, as my hon. friend from St. Anne division (Mr Doherty), has pointed out, a new tribunal for the determination of questions, which, according to my view, would have been determined formerly by the courts of the-various provinces. That brings me to the point Which my hon. friend, the Minister of the Interior (Mr. Oliver), made, namely that we _ were absolutely in the power of the United States with respect to this matter. I shall not go into the argument made by my hon. friend from Medicine Hat (Mr. Magrath), except to this extent, that I do not at all agree with the view which the Minister of the Interior has puit forward. 'What was the minister's.
9:37

argument? He said that he agreed entirely in the position which I advanced, and fortified by authority when this matter was discussed on the 6tli of December last, namely, that it was not competent, under the principles of international law for the United States to divert within its own territory the waters of a river which ran through the territory into Canada. I shall pot quote in full ithe authorities which J tread dn December last upon that point. I rtsook a text book recognized as an authority upon this question. The author is Professor Oppenheim. This gentleman is lecturer in Public International Law at the London School of Economies and Political Science (University of London), and a imember of the Faculty of Economics and (Political Science of (the University of Lon-idon, and he was formerly Professor Ordin-arius of Law in (the University of Baslfe, (Switzerland. He is a well -recognized (authority in international law. In the (preface of the work which I quoted, the (author says:
I have nearly always taken pains to put other opinions, if any, before my readers. I have been careful to avoid pronouncing rules as established which are not yet settled. My book is intended to present international law as it is, not as it ought to be.
And this opinion, - expressed in a few words, is as follows:
A state is, in spite of its territorial supremacy, not allowed to alter the natural condition of its own territory to the disadvantage of the natural condition of a neighbouring state, for instance, to stop or divert the flow of a river which runs from its own territory into a neighbouring territory.
We could not have anything more directly to the point than that statement of international law. But what -is the position taken by the Minister of the Interior? It is that we were absolutely within the power of the United States, because the United States were capable of authorizing within their own territory the erection of works which would divert that river. He might just as well have said that, because /the Uxuited States might -pass a law (authorizing its officers to (confiscate -all British shipping that came within its ports, we were absolutely within, the power of the United States in that regard. That would be just as reasonable a conclusion to draw. But we were not within the power of the United States, because they could not divert the waters of this river, according to the principle of international law, except at the risk of committing an unfriendly act against a friendly power, an act which would be quite as unjustifiable, in my opinion, as the act of confiscation to which I have just alluded. My hon. friend might as well say that if the United States came and occupied 30 or
40 miles of the territory of Alberta or Saskatchewan, they were entitled to do so, because they had the power, and, therefore, we should make the best of the situation, bad as it was.
. We were, I submit, entitled to have onr rights determined according to the principles of international law, and I deny absolutely, that we were in the power of the United States. Under these circumstances the. government made a treaty which in this particular respect, will have the consequences pointed- out by my hon. friend from Medicine Hat (Mr. Magrath). Under the conditions which he has outlined, and with the results he has pointed out, is thi-s a good or a bad treaty frfom the Canadian standpoint? I have no hesitation in coming to the conclusion that it is not an advantageous treaty to Canada, and that if the government had been properly advised, if they had taken advantage of the opinion of the experts whom they employed, if they had gone into this question with the care, and thoroughness which marked every step taken by the United States, we either would not have had a treaty at all, or a treaty very much more to our advantage. I regret, therefore, that a treaty has been entered, into which will have the consequences we have pointed out. I regret that the government have seen fit to depart from the view which the Minister of Public Works (Mr. Pugsley), expressed in the letter over his own hand, which has been quoted to-day. I regret that the government has seen fit to disregard the views of the only expert, and a very able expert, I believe, he was, whom they employed on this matter.
In speaking in that way I do not wish to oast any discredit upon Mr. King or any of the other gentlemen who were concerned in this matter. But Mr. King has not had the experience in these matters which would justify us in calling him an expert in the same sense of the word that he would call Mr. Anderson an expert. He is not |an 'expert of the same class as those fwh-o surround the men who- were negotiating on the part of the United States. The only answer to all this seems to be the reply already made by the Minister of the Interior (Mr. Oliver)-that the manager of the great irrigation company which is controlled by the Canadian Pacific is satisfied with the treaty so far as his company is concerned, and the Canadian Pacific, which controls that irrigation company, is also satisfied with the treaty so far as it is concerned. Still, that does not by any means settle the question so far as the people of Canada are concerned. The treaty may be satisfactory to these gentlemen, but these gentlemen may be deceived. But, even if they are not deceived, it does not necessarily follow that everything that is in the

interest of this great irrigation company would be absolutely in the interest of the people of Canada. There are the rates for water to be charged to the people in the future which we must consider; there are a dozen different considerations to which we must have regard. And I respectfully decline to be governed in my appreciation of the conditions and the results by the argument which has been made in that regard by the Minister of the Interior.


William Pugsley: If no other hon. gentleman desires to speak on this subject, I would like to make a few-observations in reply to some remarks made by my hon. friend from Medicine Hat (Mr. Magrath), land by some other hon. gentlemen who (hawe spoken. In the first place, I (think the Minister of the ^Interior put jthe matter very fairly when he said (that he personally would very much have preferred to have an arrangement by which Canada could have got all the water of the St. Mary's river and the Milk river. But it was not a question of getting all the water or half of it, but a question of getting even half the water or the possibility of being deprived of all of it. I think the remark of my hon. friend from Medicine /H'at 'that the water of the Milk river could be diverted to Raymond, which is a flourishing town in the province of Alberta, and distributed over a considerable stretch of country there is a very important point in that connection, because it indicates very clearly that, as a result of this treaty, when these commissioners are appointed to distribute the water of these two rivers equally to both countries, they may be able to allow a portion of that extra water which is turned into the Milk river and which for a hundred miles will then flow through Canadian territory, and will be available for (the irrigation of that vast .section of (Alberta, to be diverted ito the north land used for irrigating the large section of the country of which the town of Raymond is the centre. At the present time, as has been forcibly said, there is not a large flow of water in the Milk river. But when the stored waters of the St. Mary's river are turned into the Milk river there will be water available not only for a large portion of Montana upon the eastern waters of the Milk river, but a considerable quantity of water will be available which can be turned to the north and can be used, as I have stated, to irrigate a considerable section of country around Raymond. My hon. friend from Medicine Hat has said-and in this he has been followed by the leader of the opposition (Mr. Borden, Halifax)-that it is not a fair treaty so far as the distribution of the waters of these two Tivers is concerned. But has he shown you, Mr. Speaker, in Mr. BORDEN (Halifax).
what respect it is not fair? He starts out (with the theory "that the Alberta Railway and Irrigation Company has a vested right in 2,000 cubic inches of water per second. Who gave them that vested right? The government of the United States? Not at all. The only vested right they have is a license from the government of this country to utilize water if it is available, up to 2,000 cubic feet per second. That is not a vested right against the government and people of the United States. The hon. gentleman said also that this company have a canal system which enables them to utilize at least 800 cubic feet of water per second. Well, that gives them no vested right. The theory of this right, so far as irrigation purposes are concerned, is a right as between different subjects of the same country, who in the courts of that country can enforce their rights. But, as between the citizens of Canada and the citizens of the United States, there can be no vested right unless that right is given by treaty. If my hon. friend had been correct in his statement that the Alberta Railway and Irrigation Company had a vested right as against the United States to 2,000 cubic inches per second there might have been force in his argument. But, as I have said they have no such right.


Morley Currie: I desire to ask a question just for information. The hon. minister stated a moment ago that the people of Canada would be entitled to a large quantity of water from the Milk river, that is to say, water diverted from the St. Mary's river.


William Pugsley: Yes.


Morley Currie: I do not read the treaty that way, and I do not think the hon. gentleman (Mr. Pugsley) can have read it. It states that the United States can use the Milk river as the channel for conveyance of their water, but that does not say that they are going to convey any water for our purpose, and I distinctly understood the hon. member from Medicine Hat to state that we could look at that water but we could not use any of it.


William Pugsley: The hon. gentleman is wrong in that. It rests entirely with the commissioners to treat all the flow of these two rivers as one, and to apportion the waters of the two rivers equally between the inhabitants of the two countries, giving more of the water of one river and less of the other to one country, or vice versa, as they deem most advantageous to the people of both countries. That is the duty imposed upon the commissioners; and, if, for the purposes of irrigation they found it desirable to give more of the St. Mary's river to Canada than to the people of the United States, they could do so. In that case they

*would give less of the flow of the Milk river, and vice versa, always keeping in mind that the total flow of these two rivers is to be distributed equally between the people of the two countries. There is another important fact which my hon. friend from Medicine Hat forgot. As you go_ eastward beyond the point where the Milk river turns again into Montana there are a large number of tributaries rising in Canadian territory, and the waters of which all flow down into the Milk river, upon the United States side of the boundary. The commissioners will be obliged to take the waters of these tributaries into consideration, and when they come to the United States., as they necessarily will, then, in the exercise of the power and in the performance of the duty vested in them by this treaty, they must keep in mind the waters of the various tributaries flowing from Canadian territory into the United States, and make allowance for them in the division of the total flow.


Charles Alexander Magrath: Might I ask a question? Will not these streams which the hon. gentleman referred to-which after all will not use much water-be divided now equally between the two countries? Whereas now we get all that water.


William Pugsley: They will form part of the whole. These waters flowing into the Milk river in American territory must be deducted from the whole water of the St. Mary's and the Milk, and in that way we shall be entitled to a larger flow of the water that comes from the westward, and so the people of Canada will secure a greater advantage. Now, as I have said, the whole argument of my hon. friend from Medicine Hat rests upon the theory that the people of Alberta, and more particularly the irrigation company and other citizens out there, cannot be interfered with in their rights to the extent implied by the granting of this license. They have no right which can be enforced as a legal right ordinarily can be enforced. If the citizens of the United States, or the United States government, were to divert every inch of the water of the St. Mary's river, and every inch of the water of the Milk river before it comes into Canadian territory, neither could this company nor the people of Alberta bring any suit against anybody for doing that. There is no court into which they could go. They might appeal to the government of the United States; but what has been the attitude of that government in the past? My hon. friend the leader of the opposition speaks of the principles of international law. What are they, Mr. Speaker? They are those principles that govern nations m their dealings with each other. You can have no principle of international law unless it is recognized by the nations of "the
world as being a correct principle which is binding upon the nations of the world. Now, when you find the predominant sovereign country on this hemisphere taking an entirely different view, claiming as it does claim, that each nation is sovereign within its own country, claiming to divert waters for the purposes of irrigation and for domestic purposes just as it pleases, and no other nation has the right to question its doing so, can you say that it is within the principles of international law that should refuse to allow any such diversion of water within their own country?


Morley Currie: When did they enunciate that doctrine?


William Pugsley: There is a notable instance in which the United States government has taken the ground that within its own territory it has the sovereign right to do as it pleases so far as the streams in its own country are concerned. It is true that the principles of navigation enter into the question with regard to large rivers; and it is possible, I am inclined to think it is the case, that Professor Oppenheim was referring to a navigable river in the article which the leader of the opposition has quoted. But we can learn the attitude of the United States by referring to what they did in a dispute with Mexico which came up for consideration as late as 1895.


Morley Currie: Before the hon. gentleman reads that-did not this water commission decide that according to international law and custom the tributary waters of the Rainy river which flow down to the boundary could not be diverted southward to Duluth?


William Pugsley: What was proposed on that occasion was to divert a portion of a river which flows into the Rainy river into another stream which flows down into Lake Superior to the southward of Duluth. It was alleged that that would interfere with the navigation of the Rainy river. But let me say to my hon. friend that since that time the United States Minister of War has granted a license to a company to divert the waters of that stream, to take them out of their natural flow into the Rainy river, and to divert them southward, always of course providing that the interests of navigation shall not be affected. Well, so far as the report of the commissioners is concerned, my hon. friend surely is aware that Secretary Root declined to accept that ruling of the commissioners, and as I have said, subsequent to that, a license was issued by the Minister of War to a company to divert that stream. The Minister of Justice informs me that it was put distinctly on the ground that a refusal to allow that diversion would be inconsistent

with the sovereign right of the States. Now the case to which I rmerred a moment ago, which arose in 1895, was a ease between Mexico and the United States. A large and very fertile section of country in the vicinity of El Paso on the Rio Grande had been irrigated by waters from that river, and a very fertile country had been developed. For its fertility and development the waters of the Rio Grande were absolutely essential for irrigation. Further up the river in the United States, irrigation works were constructed and ditches were dug out, the effect of which was to divert a large portion of the riveT for the purposes of irrigation for the benefit of United States citizens, and the result was to render absolutely arid a large section in Mexico, and to bring great distress upon the people in that section of Mexico. The Mexican government appealed to the government of the United States alleging that they had the right, under the principles of international law, to have that river flow down into their own country where it might be utilized by them. The question was submitted to the Attorney General for his opinion. My hon. friend will find his opinion in volume 21 of the Opinions of the Attorney's General of the United States, beginning on page 281 from which I will quote:
The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory. Of the nature and scope of sovereignty with respect to judicial jurisdiction, which is one of its elements, Chief Justice Mai shall said (Schooner Exchange v. Mc-Faddon, 7 Cranch, p. 1361:
I may say that Chief Justice Marshall was, as my hon. friend knows, one of the most distinguished lawyers who ever occupied a seat upon the bench of the United States, or even upon the bench of any country.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the iull and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
So in order to settle this question according to the principle of international law, as my hon. friend desires, he must have the United States, which, as I have said, is the dominant sovereignty upon the American continent, recognize that as a Mr. PUGSLEY.
principle of international law, but which they have refused to recognize.


Robert Laird Borden: How far does the hon. gentleman think that principle of Chief Justice Marshall would extend?


William Pugsley: It would extend to the right to legislate with respect to everything that is within its own country.


Robert Laird Borden: Of course the point involved is whether the United States or any other country has the right to do something within its own territory which would be an absolute and positive detriment to the adjoining country. If you divert the water of a stream why cannot you discharge cannon from the territory of another country on the principle enunciated by Chief Justice Marshall that a country has an absolute right of sovereignty to do within its own territory whatever it sees fit?


William Pugsley: I do not think-my hon. friend would even persuade himself that he would be very successful in combating the opinions of Chief Justice Marshall on questions of international law.


Robert Laird Borden: I am not combatting them, and I do not want the minister to misrepresent me. I am pointing out that Chief Justice Marshall could not have had any such idea in his mind when he used that language.


William Pugsley: Then the Attorney General proceeds:
If would be entirely useless to multiply authorities. So strongly is the principle of general and absolute sovereignty maintained that it has even been asserted by high authority tlh&t admitted international servitudes cease when they conflict with the necessities of the servient state. (Bluntschli, p. 212; see criticism by Creasy, p. 258). Whether this be true or not, its assertion serves to emphasize the truth that self-preservation is one of the first laws of nations. No believer in the doctrine of natural servitudes has ever suggested one which would interfere with the enjoyment by a nation within its own territory of whatever was necessary to the development of its resources or the comfort of its people.
The immediate as well as the possible consequences of the right asserted by Mexico shew that its recognition is entirely in-c<rsistent with the sovereignty of the United States over its national domain. Apart from the sum demanded by way of indemnity for the past, the claim involves not only the arrest of further settlement and development of large regions of country, but the abandonment, in great measure at least, of what has already been accomplished.
It is well known that the clearing and settlement of a wooded country affects the flow of streams, making it not only generally less, but also subjecting it to more sudden fluctuations between greater extremes thereby exposing inhabitants on their banks

to increase of the double danger of drought and flood. The principle now asserted might lead to consequences in other cases which need only be suggested.
That was the opinion of the Attorney General of the United States, and the opinion upon which that government acted in the case of Mexico, although the circumstances there were certainly very hard upon a large number of people in Mexico.


George Eulas Foster: Did Mexico get any redress?


William Pugsley: Mexico got no redress so far as I am aware.


George Eulas Foster: Because she was the weaker power.


William Pugsley: What is the view which Great Britain takes of the rights of a country to deal with waters in its own territory? I have only to call attention to what took place in my own province some forty or fifty years ago. There was a river called the Allegash flowing from a lake called Chamberlain lake through a portion of the United States into the river St. John. About forty years ago the people in the state of Maine under the authority of the legislature of that state erected a dam at the foot of Chamberlain lake the result of which was to turn back the waters of the watershed from the St. John river to the Penobscot, and so send the waters down through the state of Maine into the Atlantic ocean in the vicinity I think, of Bangor. The result of that was to enable the lumbermen of that section of country, instead of sending the logs down the Allegash to the St. John and thereby to the city of St. John and other towns on the river St. John for manufacturing, to turn them down the Penobscot, an American river entirely, and manufacture them in their own country. The government of New Brunswick sent a protest through the British Ambassador to the British government. We protested year after year. Some of those interested in lumbering on the upper waters of the Allegash, and I think that upon one occasion they blew up the dam, but it was restored again by those who had erected it. There came pretty nearly being bloodshed as the result of what was deemed to be an infringement of the rights of the people along the St. John river. After confederation protests were again made.


John Graham Haggart: Is any part of the Allegash in our territory?


William Pugsley: No.


John Graham Haggart: It is all in Maine?


William Pugsley: All in the United States, but it flows into the St. John river, which
is a boundary river between the two countries. The water of the Allegash, in a state of nature, flows first into the St. John where it is the boundary, and a certain distance below that it is wholly within New Brunswick territory. Therefore, it was water which, in its natural state, flowed into Canadian waters. After confederation protests were again put in by the New Brunswick government. These protests were sent to His Excellency the Governor General here who transmitted them to the British Ambassador at Washington, and they were transmitted by the British Ambassador to the British government. Although these complaints had been made, and although these protests were vigorously supported during the long time which has elapsed, forty years, the British government have never felt that this was a case in which they could take issue with the United States, but they have recognized that the government of the state of Maine, with the permission of the federal government, were exercising the right of sovereignty within their own country.


George Eulas Foster: They are our neighbours.


Haughton Lennox: Yes, they are our dearest friends.


William Pugsley: If the British government, for whose opinions, or course of action, we have the greatest possible respect acquiesced in that view of the sovereign rights of the people of the United States I am inclined to think that we would hesitate before we would be inclined to say that they were wrong.


George Eulas Foster: Have they acquiesced?


William Pugsley: Certainly, because they have allowed that to be done for forty years without taking any effective measures to prevent them from continuing it.


Robert Laird Borden: Have the British government ever made any protest?


William Pugsley: As far as I am aware, no. The diversion still continues just as it was created forty or fifty years ago. In that case it might be urged- too, that it has interfered with the driving of logs which, of course, is a species of navigation, so that it would be a stronger case than the diversion of water merely for the purpose of irrigation or domestic use. I might also say, I think fairly, that not only have the British government acquiesced, but the Canadian government, during all these years have acquiesced. We felt in the province of New Brunswick that the Dominion government, during all the time that the 'hon. member for North Toronto (Mr. Foster) was a member of that government, acquiesced, because we could get no re-I dress. Our representations, in so far as we

could understand, were simply pigeonholed. I cannot remember any Teply being received except a mere acknowledgment of our protests, and no effective steps were taken to prevent this diversion from being continued.


Robert Laird Borden: The Dominion government did not acquiesce if it sent the protests forward to the British government, and asked that the protests be given effect to, as my hon. friend said was done.


William Pugsley: I cannot imagine any more effective acquiescence than to send a protest forward, and then let the matter slumber for years and years until another protest comes from New Brunswick, then to send that protest forward and allow t'he question to slumber for years and years again.


Haughton Lennox: What about the present administration ?


William Pugsley: The present administration has been no more successful than its predecessor.


John Dowsley Reid: Have you tried?


William Pugsley: Yes, we have tried, representations have been sent forward, but that is the end of it. My own view is that the British government acquiesce in the view of the American government that the United States were simply exercising their sovereign rights in their own country when they allowed this diversion to take place.


George Eulas Foster: At what date did the present Dominion government forward the protest with reference to the Allevash river?


William Pugsley: When I was Attorney General of New Brunswick I forwarded my protest to this government, and I believe there was no result.


Haughton Lennox: They acquiesced and sent it forward.


John Dowsley Reid: Did you insist on it going forward again since you became a. minister here?


William Pugsley: I am inclined to think, judging from the action of the British government, that it is not much use to do so.


George Eulas Foster: And you are now arguing that that is the correct thing?


William Pugsley: I am stating that the argument of the United States is that in the exercise of their sovereign rights they can do this, and they have already done it with the acquiescence of the British government, and I am inclined to think that the British government takes the same view that they do. In the course of the. duty I had to perform in connection with this treaty, I would necessarily be brought somewhat in contact with the British ambassa-Mr PUGSLEY.
dor, and I know that his view was that the British government would not be likely to dispute the allegation on the part of the United States that if they diverted water for irrigation purposes they would be .acting in the exercise of their right of sovereignty. Let me ask my hon. friends what would have been the result in all human probability if we refused to enter into this arrangement for the diversion of these waters? In the case of the waters which arise wholly in the neighbouring country and which would be required for irrigation, an agreement under which these waters should be equally divided between the people of the two countries, would seem to the ordinary mind to be a very equitable arrangement, and that is the way it was viewed by the government of the United States. Suppose we had refused to enter into negatiations on that basis, do you think that the United States government, requiring a portion of those waters in eastern Montana for irrigation, would have hesitated very long to have built a canal to draw the waters of the St. Mary's lake wholly through their own country down to the Marias river and thence on by the Missouri river system to where the water was required for irrigation. The hon. member (Mr. Magrath) says it would not be commercially a profitable undertaking.


Charles Alexander Magrath: Does the minister know the height of the dam they would have to build to get to the Marias river?


William Pugsley: I do not suppose it would be higher than the dam they have to build now.


Charles Alexander Magrath: It would be 180 feet high according to the reports of their own engineers.


William Pugsley: My hon. frien'd may be right in that, but the estimated cq$t is three or four rqillion dollars, and if a government so powerful and so wealthy as that of the United States felt that they were not being treated as a friendly nation ought to treat them I do not think they would hesitate to spend that sum of money to build an irrigation ditch to carry these waters down the Marias river to where they were needed for irrigation. And had they done that, what could we do? My hon. friend (Mr. Magrath) says they would be taking away our legal rights, but how would he propose to enforce these alleged legal rights? It would be by representations to the British government, and in view of their attitude in respect to the Allegash river, they would be very apt to say: We think the United States have a perfect right to do what they have done. They would certainly say, I should think: The United States made you a veijy fair offer under which you can have half the waters of these rivers, to be divided under the direction of a commission and we are

not disposed to interfere and make trouble with the United States. That would have been the answer of the British government, and I would like to know what comfort it would have been to the Alberta Railway and Irrigation Company and to the people whose very existence depends on a regular supply of water during the dry season, to be told that we would be able to protest year after year to the British government, and that we would have a grievance against the government of the United States. That would be but poor satisfaction to the company whose shareholders would have been Turned and to the people who were living in what was formerly a fertile country, but which had been rendered barren by reason of the source of its fertility . We took these matters into consideration, and we came to the conclusion that it would be better to make this arrangement in order to avoid these difficulties which had been rising between the two governments in that western country, and which were likely to be a source of very great irritation in the future. The hon. member for Medicine Hat (Mr. Magratli) says we did not take the advice of Mr. Anderson. Well, we did not act wholly upon Mr. Anderson's advice; I am not sure that we acted upon it at all, but I can say to my hon. friend that we gave it the most careful consideration; we submitted it to our own experts. We submitted it to Dr. King, who, although he is not specially engaged in irrigation work, is a gentleman of great ability and large experience and one who has made a special study of that western country in connection with the settlement of that question. We conferred with Mr. Campbell of the Interior Department, who is in charge of the Forestry Branch, and I think the Irrigation Branch also. I was called upon on two occasions to go to Washington in connection with the question, and Mr. Campbell and Mr. King were present, and we gave the question the closest study possible. I think my hon. friend from Medicine Hat will agree that Mr. Anderson was speaking upon the theory that the waters of the river were to be divided, and that no prior right was being secured to the people of Canada. I regard that as of great importance, and I fear the importance of it was overlooked by my hon. friend (Mr. Ma-grath).


Charles Alexander Magrath: When Mr. Anderson made his report the treaty was as it is today. That is to say, he was called in after the treaty had been signed at Washington, so that it has not been altered through any suggestion made by him.


William Pugsley: I thought Mr. Anderson made the report in 1908 when this provision was not in article 6.


Charles Alexander Magrath: That is quite correct. I thought the minister was referring to Mr. Anderson's criticism of the treaty.


William Pugsley: I was referring to his report of 1908. We have secured by article 6 what I think is of the greatest possible importance to the people of that section of Alberta. We provide that, during the dry season when the people want the water, our people shall have a prior Tight to the extent of 500 cubic inches per second if it is not more than three-fourths of the flow, but at all events, during the dry season, at least three-fourths of the entire flow of the St. Mary's river is allotted to us, and that is a matter of great importance. In the flood season the waters flow in vast quantities, and can be stored if our people want to store them. But in the dry season the United States government must not hold back the water so as to prevent our people getting the 500 cubic feet per second, or at least three-fourths of the whole natural flow of the St. Mary's river. These are the words of the treaty, which I think are of extreme importance, and their importance has been overlooked by my hon. friend. Article 6 is as follows:
The high contracting parties agree that the St. Mary's and Milk rivers and their tributaries (in the state of Montana and the provinces of Alberta and Saskatchewan) are to be treated as one stream for the purposes of irrigation and power, and the waters thereof shall be apportioned equally between the two countries, but in making such equal apportionment more than half may be taken from one river and less than half from the other by either country so as to afford a more beneficial use to each. It is further agreed that in the division of such waters during the irrigation season, between the 1st of April and 31st of Gctdben inclusive, annually!, the United States is entitled to a prior appropriation of 500 cubic feet per second of the waters of the Milk river, or so much of such amount as constitutes three-fourths of its natural fle w, and that Canada is entitled to a prior appropriation of 500 cubic feet per second of the flow pf St. Mary's river, or so much of such amount as constitutes three-fourths of its natural flow.
Now, can you conceive of a better arrangement for the people of Alberta, who are interested in this irrigation question, than is made in that provision? That provision was not in the suggestion of the American government made by Secretary Root. It was put into the treaty after lengthy negotiations, after our representatives and myself had urged upon those representing the United States, that it would not be fair to our people unless we could secure a prior right to appropriate a certain quantity of the water of the St. MaTy's river; and after these negotiations the United States agreed to this demand, which is of infinite value to the people

of that section of the province of Alberta. And yet my hon. friend deals with the matter just as if this provision were of no importance. I say it is of enormous importance, because no matter whether the flow of water is great or small, no matter whether the season is exceptionally dry or not, no matter whether little water may be left to the United States or not, we during the irrigation season have up to 500 cubic feet per second, or at least up to three-fourths of the natural flow of the St. Mary's river.


Charles Alexander Magrath: Did I understand the hon. minister to say some time ago that Canada could have the use of some of the diverted waters of the St. Mary's river after they had been turned into the channel of the Milk river?


William Pugsley: What I said was this: that is a matter that rests wholly with the commissioners. It is the duty and power of the commissioners to divide all the waters of both rivers, and of all their tributaries equally between the people of the two countries. They can give more of one river to one country and vice versa in respect of the other river; and if in the judgment of the commissioners it would be better to give to the people of Canada a greater portion of the flow of the Milk river, and less of the St. Mary's river, they would have a perfect right to do that. The treaty imposes upon them the duty of dividing the waters of both rivers, treating them as one stream, equally between the people of the two countries, and gives them the power of so distributing the waters as to make the distribution as beneficial as possible to the people of both countries.
Something has been said by my hon. friend with reference to a letter which I wrote to the Prime Minister to be forwarded to Washington, urging that the United States government should undertake to build a dam upon the St. Mary's river for the joint benefit of both countries. I am free to admit that when I wrote that letter I was strongly impressed with the desirability of securing some such arrangement if I could do so. I do not think it will be improperly disclosing any secret if I say that the Canadian government were prepared to pay a portion of the cost of erecting that dam upon American territory; but the government of the United States said, and we cannot perhaps wonder at their saying so, that they would hesitate to accept a contribution from another government for the erection of works in their country, even though they might be irrigation works that would be for the benefit of both countries. But the strong argument they made, as will appear from the correspondence, was that until they had erected a dam, and had some experience whe-Mr. PUGSLEY.
ther or not it would stand in the bed of the St. Mary's river, it would not be desirable to enter into such an arrangement. It will also appear from the correspondence that they argued that it was not practicable to take water from the bed of the river, but that it would have to be taken from a height of about 30 feet above the bed, and therefore, it would not be possible to store more than one-half the water of the river. That was their view. We were not able to make an answer to that, and after careful inquiry we came to the conclusion that on the Canadian side of the line there were opportunities to store the water off St. Mary's river as good as, if not superior, to those on the American side. We gave a great deal of thought to this question of article 6. A good many months intervened before wre finally agreed to the treaty, even after it had been ratified by the United States Senate, We weTe making inquiry with regard to the effect of article 6, looking at it from every possible standpoint, and conferring with those who had a knowledge of the subject. As a result of all this inquiry, we came to the conclusion that it would be in the interest of Canada to sign this treaty, and that on the whole article 6 would be just to the people of Alberta. We did not act upon the judgment of our own experts alone. My hon. friend has stated that the making of this treaty was a breach of faith with the Alberta Railway and Irrigation Company. He made a strong point of that. Well, Sir, when I tell you that the Alberta Railway and Irrigation Company, through Sir Thomas Shaughnessy, the president of the Canadian Pacific Railway Company, which controls more than 60 per cent of the stock of that irrigation company, approved and expressed to us their approval of the execution of this treaty, I think you will hardly be disposed to agree with my hon. friend from Medicine Hat that there was any breach of faith towards that company. They expressly advised us that it would be not only in the interest of that portion of the western country, but in their own interest, because they were anxious to have permanence in the supply of water for their irrigation works, and they thought it would be better to have a certain quantity secured to them than to have the matter, remain in the unsettled state in which it had been for years. We conferred not only with Sir Thomas Shaughnessy, but with Mr. J. S. Dennis of the irrigation department of the Canadian Pacific railway, a gentleman of large experience in irrigation work. I doubt if there is a man in Canada, or in America, whose judgment might be better relied upon in irrigation matters than that of Mr. J. S. Dennis.


John Dowsley Reid: How do you know?


William Pugsley: I know because Mr. Dennis has had charge of the expenditure of many millions of dollars for the Canadian Pacific railway on irrigation works on the eastern slope of the Rocky mountains, and these works are exceedingly successful. The reputation of Mr. Dennis throughout our western country is of the very highest.


Mr. CROCKET.: Does that view agree with Mr. Anderson's?


William Pugsley: Mr. Dennis' views
agrees with our view, that it is a good arrangement.


John Dowsley Reid: Does it agree with Mr. Anderson's view?


William Pugsley: No, Mr. Dennis' view is that it would be better to agree to this equal division such as we propose. I had verbal interviews with Mr. Dennis., went into the matter very fully with him, and he was clearly of the opinion that it would be in the interests, not only of their company, but in the interests of western Canada that this treaty should go into effect. I have a letter from Sir Thomas Shaughnessy which appears in the return under date of March 4, 1910. It is as follows:
Canadian. Pacific Railway Company,
Montreal, March 4, 1910.
Dear Mr. Pugsley,-Mr. J. S. Dennis, who is our Superintendent of Irrigation, wrote mo from Ottawa, February 16, as follows:
With reference to the interview had this morning with the honourable Mr. Pugsley and Dr. King, Boundary Commissioner, regarding the matter of diversion of international waters, and to my telephonic communication to you through Mr. Beatty, I send you herewith a copy of article 6 of the treaty, together with map of Alberta and a portion of Montana.
As you are aware, I know the local situation very thoroughly, not only on our own side of the line, but also on the other, and after very full and careful consideration of the subject, I am quite decided that the division of the waters of the St. Mary's and Milk rivers, provided for by article 6 of the tr<aty is perfectly fair and amply protects Canadian interests, as a whole and the Al-beita Railway and Irrigation Company particularly . . . and that we are in a position to store at suitable points in the St. Mary's river ridge such portion of the high water and flood and flood discharge of the St. Mary's and Milk rivers as must be passed to us by the American authorities under the picvisions of section 6 of the treaty.
There is no question whatever in my mind, that the treaty provides for a division of the waters of these two streams on a thoroughly equitable basis, and amply protects our interests in as far as they are concerned with the Alberta Railway and Irrigation Company.
Mr. Pugsley asked that I would write him a letter to that effect, but I said that I would of course, desire to consult you before doing so. I am now advising him that he will hear 289	i :
from you direct with reference to the matter, or through Mr. Creelman.
It is probable that Mr Dennis intended to refer to the Milk river ridge instead of the St. Mary's ridge, hut I am giving the exact language of his letter.
Personally' I am not sufficiently familiar with the situation, nor have I the requisite technical knowledge, to confirm Mr. Dennis' report, but I would accept it without hesitation if it were made with direct reference to any irrigation work or water supply in which this company was interested.
Yours very truly,
(Sgd.) T. G. SHAUGHNESSY, President.
Honourable Wm. Pugsley,
Minister of Public Works,
Ottawa.
Now, Mr. Speaker, my hon. friend had that letter before him, because it is in the return from which he quoted, and yet in face of that positive statement on behalf of the railway and irrigation company he makes a strong plea that the agreeing to this treaty is a breach of faith with the irrigation company, which company says that the provision of the agreement with respect to the division of the waters is on a fair, and equitable basis, and that it would be better that we should enter into it not only in the interests of the people of that section of the country, but in the interests of the irrigation company as well.
I think, Mr. Speaker, that I can now very well pass away from the St. Mary's and Milk rivers, and I will make one or two remarks with regard to what was said by my hon. friend from Montreal, St. Anne (Mr. Doherty), with reference to the Bill itself. He says that he is inclined to think that we have no right to ask this House to confirm and sanction, as section 1 proposes to do, the treaty which has been entered into. I think that we have a clear right to do so. That right is contained in article 12 of the treaty which provides that:
The commission shall have power to administer oaths to witnesses and to take evidence on oath whenever deemed necessary in any proceeding or inquiry, or matter within the jurisdiction under this treaty, and all parties interested therein shall be given convenient opportunity to he heard, and the high contracting parties agree to adopt such legislation as may be appropriate and necessary to give the commission the powers above mentioned on each side of the boundary, and to provide for the issue of subpoenas and for con polling the attendance of witnesses in proceedings before the commission.
I am sure that the hon. member for Montreal, St. Anne, could not have been aware of that provision in article 12. That provision gives us power, and this is the only legislature by which that power can be given to make provision as required by the treaty for the purpose of compelling the attendance of witnesses, and of having



them sworn before giving their evidence. Also, it gives us power to make this provision with regard to a citizen of the United States claiming redress in the courts of our own country for any wrong which he mav have suffered by reason of the diversion of water where the injury takes place upon the other side of the line. Therefore, it is clear that it is not only the right, but it is our duty to make those provisions which are contained in the first five paragraphs of the amended Bill. Hon. gentlemen might say that when I introduced the Bill in the first place I should have thought of these things, and had the sections in. I am quite prepared to say that if I had had an opportunity of conferring personally with my Ihon. .friend the Minister of Justice (Sir Allen Ayles-worth), before the Bill was introduced, and talking the matter over with him. it is not at all unlikely that the Bill as introduced would have contained these sections which we are now asking to be placed in the Bill. But, it is absolutely clear that it is our duty to put them. in the Bill in order to give complete effect to the treaty, in so far as the enforcement of rights, and the granting of remedies is concerned as well as the subpoenaing and swearing of witnesses.
Now, Mr. Speaker, I apologize for taking up so much of the time of the House. The matter is one of a good deal of importance, and I thought it not undesirable that I should reply to the observations which, have been made in criticism of this treaty, which I think is one which is not only just to the pejople whose interest* arel affected by the treaty, and more particularly to those who are living in the province of Alberta, but which is a great step forward in the establishment of permanent peace between Great Britain and the United States. My hon. friend, the leader of the opposition, has referred to the proposed general treaty of arbitration which is now pending between the United' State.s and Great Britain. We all sincerely trust that that treaty will be signed, and will become effective and that for all time to conje it will ensure peace between these gregi nations, but I desire to say that in a smaller way the treaty that this House is now called upon to consider is a great step forward in that direction. When we entered upon these negotiations theTe were irritating questions especially between the people of the west with regard to boundary waters. In our western country people living in the vicinity of the town of Raymond connected with the irrigation company had started upon the construction of some works for the diversion of the waters of the Milk river. The United States government had started in upon certain works for the diversion of the waters of the St. Mary's river. There was ground for ill-Hr. PUGSLEY.
feeling, and it is difficult to say what might have been the result if these negotiations had not been entered upon. This treaty makes provision for all questions relating to boundary waters, all questions arising along the boundary, and all questions of whatever kind, and description which may arise between the government of Canada and the government of the United States being referred to a commission. When the larger treaty goes into force it is possible that it may supersede, and take the place of the present one, but this treaty is. for five years, and only for five years, subject, of course, to its being continued, and we trust it will be continued for all time, unless it be superseded by the larger arbitration treaty between the two countries. If that treaty should come into effect, and should take the place of this one no harm can possibly be done by enacting the present treaty. It is necessary that it shall be brought into force, and brought into force at as early a date as possible. There are many questions which are arising from day to day, and which ought to come before a tribunal such as this will be.
! Motion agreed to, Bill read the second jtime on division, and House went into committee thereon.


William Pugsley: With the consent of the committee, I would suggest that the amended Bill be taken up and read by the Chairman. The present Bill consists of the last two.


Mr. DEPUTY SPEAKER.: Is it the desire of the committee to take the Bill as proposed to be amended into consideration?


John Graham Haggart: Has it been distributed?


William Pugsley: I may say the Bills were printed on Saturday. I asked the law clerk if it had been distributed, and he said they were ready for distribution. I do not know why they were not distributed. I sent half a dozen to some hon. members on the other side. I will let my hon. friend (Mr. Haggart, Lanark) have my copy, if he desires.


John Graham Haggart: No, thanks.


Gilbert Howard McIntyre: Section 1 of the Bill as in the members' hands, reads as follows:
The International Joint Commission, when appointed and constituted pursuant to the treaty of January the eleventh, nineteen hundred and nine, between His Majesty and the United States of America, shall have power, when holding joint sessions in Canada, to compel the attendance of witnesses by application to a judge of a superior court of the province within which such session is held, and such judge is hereby authorized and directed to make all orders and issue
M\Y 16, 1911
all processes necessary and appropriate to that end.


John Dowsley Reid: I understood the Minister of Public Works to say, Mr. Chairman, that you were going to take the amended Bill.


Gilbert Howard McIntyre: I proposed to read the amended Bill, but unless I get authority


Morley Currie: The objection taken that this Bill has not been distributed should have force. The best thing we can do is to have the committee rise, have the Bill distributed, and then bring it up again. This is not the time to distribute a Bill of this character for immediate consideration. There are a number of members of the House who are not here this afternoon, and they might desire to say something about it. This Bill touches many interests, both public and private, from one end of the country to the other, and involves many propositions which are of a vital character to the country. I think it only fair and right


William Pugsley: May I be allowed to state that the amended Bill has been distributed. The hon. gentleman will find it on his file. I find that it is on mine.


Robert Laird Borden: When?


William Pugsley: It must have been distributed certainly early yesterday morning. It was printed either Friday or Saturday.


Robert Laird Borden: I know, but


William Pugsley: The page tells me that it was distributed this morning.


Robert Laird Borden: 
William Pugsley: Will the hon. member (Mr. Borden, Halifax) pardon me a moment? How would it do to begin with section 5 of the new Bill, which was section 1 of the old Bill?	'


Morley Currie: But it is so absurd to ask this House to consider this Bill 289i
now, for it is entirely different from the former Bill. Of course, some things contained in the original Bill are contained in this one, but this Bill as it stands now actually never had its first reading. A Bill has just been read the second time, but I think we are establishing a very bad precedent. As the leader of the oppositipn has said, it leaves it open for the government to bring in a Bill at any time, a Bill of a very simple character, and then, at the tail end of the session, bring in an amended Bill in an empty House and try to force it through. I cannot see, since the objection is raised, how we can go on. I understand that, under the rules, a Bill must be distributed in plenty of time for eveyy member to have an opportunity to see it. i do not-


Gilbert Howard McIntyre: There is only one Bill before the committee, and in the hands of the Chairman, and that is Bill (No. 36) which has passed its first and second readings. The proposed amendments can only be considered as they are moved from time to time, as amendments to the original Bill.


Sir ALLEN AYLESWORTH.: With regard to this section and the second Ise'ction iof the Bill, as it is now proposed for consideration before the committee, it occurs to me to point out the reasons, or some of the reasons, which led to the clauses being drafted in the language in which they now appear. The treaty, of course, had become entirely operative by the interchange of ratifications and formal ratification of it nearly a year before this

	-


Morley Currie: I rise to a point Ipf order. The horn, gentleman (Sir Allen iAylesworth) is speaiking to matters which (are not before this committee, as you, Mr. KThiairman, ruled a moment ago.


Gilbert Howard McIntyre: I think I shall have to rule that the only Bill that is before the committee is the Bill as originally printed. I cannot accept the Bill as it is proposed to be amended as the ope that I am to submit to the committee. Any changes in the original Bill may be moved, and the Bill may ultimately be changed into exactly the form of the proposed Bill.


William Pugsley: I move that the present section 1 of this Bill be made section 5 and that section 1 be as follows:
1. The treaty relating to the boundary waters* and to questions arising along the boundary between Canada and the United States made between His Majesty and the said United States, signed at Washington the eleventh day of January, one thousand nine hundred and nine, and the protocol of the fifth day of May, one thousand nine hundred and ten, in the schedule to this Act are hereby confirmed and sanctioned.


Gilbert Howard McIntyre: I think I can '.accept that motion.


Allen Bristol Aylesworth: 
Morley Currie: This treaty -which we have before us is a portion of a matter that has been subject to negotiations and treaty-making on previous occasions. The principle laid down by the Canadian negotiators for many years was that in making treaties with the United States of America, all questions should be included within the walls of one treaty; that is 'to say, that questions involving navigation, fisheries, waterways and trade were dealt with in one treaty. By dealing with all these questions in one treaty, the negotiators were able to set off one thing against another, enabling this country, as for instance in the treaty of Washington, to secure something as a set-off against things that were demanded by the United States. Unfortunately for this country, we have now an ambassador at Washington who is very strongly pro-American. This country suffered at one time very severely from another ambassador who was pro-American, I refer to Lord Ashburton, previously Mr. Baring, who was the British ambassador in the negotiations that resulted in the famous Ashburton treaty. Now the house of Baring had large pecuniary connections in the United States. It must be evident now to any one reading cold history, that the associations and connections by marriage, and business, and otherwise, which Mr. Baring, or Lord Ashburton, had at that time with the United States, must largely have influenced

9Ifla.
him in his actions. It was indeed a dangerous thing to have appointed him as ambassador to make a treaty between Great Britain and the United States respecting Canada. We all know how this country has suffered from the Ashburton treaty; and without question those of us who have given the matter any study, even the school children in Canada, now ascribe that treaty and the troubles we have had under it, to the fact that Lord Ashburton had large American connections and was more American than British. We have now at Washington another ambassador who is also, I may say, tainted to a large extent in the same way. We know that Mr. Bryce, who has negotiated this treaty, and who seems intent upon negotiating a treaty at every turn of the road, and on every day in the weeli, is the great historian of the United States, and his book on the American Commonwealth is a text book in nearly all the universities of that country. It has a very large sale in the United States, and therefore he is dependent on the goodwill of the Americans both for his fame and for his profits. Now by a very skilful diplomatic process, within recent years we find that the points upon which there has been any difficulty between the United States and Great Britain have been separated, and a distinct treaty has been negotiated to meet each case. We have had a separate treaty dealing with the fisheries, with some other things; we have had a separate treaty dealing with trade. Now a strange thing has occurred with reference to this treaty and that is the fact, as pointed out by the hon. member for St. Anne (Mr. Doherty), that this treaty requires to be ratified by this House.
To my mind every treaty made for and on behalf of Canada should be submitted to this House before it is ratified or confirmed. The question is a very serious one, and one which has been debated in the mother of parliaments whether the government have the right to make a treaty of this kind, and to come to this House and say: We have pledged the honour of the country, the House must accept this treaty, or whether they have the power to make a treaty without any ratification by parliament whatsoever, which is the principle enunciated by the Minister of Public Works here to-day. It was the original intention to pass this treaty without any reference to parliament whatsoever in the matter. The reference was simply to be made to this House to provide the money for these commissioners, and no such thing as the ratification of the treaty was deemed necessary. But, a change has come over the spirit of their dream, and the treaty is submitted to this House in the form of a schedule. Let us see what has occurred, and what is the practice. In the early
days, in the history of the mother country,, previous to the discovery of America, the rule was, when kings were absolute and' parliament had not attained to any strength* or power, such as it has to-day, that the-king made all the treaties and that these-treaties had the force of law. The question,-was fought out on several occasions, but after the revolution a different rule obtained and from the time of William III. on until the early part of this century, no treaty was undertaken by the government of Great Britain without first receiving the sanction of parliament. It has been held by the most eminent authorities that it is. a sound constitutional rule that all treaties should be first passed upon by parliament before they become law. If such were the case, Mr. Chairman, we would not have the spectacle here of the Minister of Finance coming to this House and declaring that the agreement that he made, with the United States, which is purely a convention, has the absolute force of law, that the honour of this House is pledged and that it must become law whether this parliament so desires or not. Mr. Bagehot, who is a well-known constitutional authority. takes the trouble to discuss this question of treaty making in one of his books, and he says this:
Treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty is prima facie ludicrous. In the older forms of the English constitution this may have been quite right; the power was then really lodged in the Crown, and because parliament met very seldom, and for other reasons, it was then necessary that, on a multitude of points, the Crown-should have much more power than is amply sufficient for it at present. But now the real power is not in the Sovereign, it is in the Prime Minister and in the cabinet-that is,, in the hands of a committee appointed by parliament, and of the chairman of that committee. Now, beforehand, no one would have-ventured to suggest that a committee of parliament on foreign relations should be able to-commit the country to the greatest international obligations without consulting either parliament or the country. No other select committee has any comparable power; and considering how carefully we have fettered and limited the powers of all other subordinate authorities, our allowing so much discretionary power on matters peculiarly dangerous and peculiarity delicate to rest in the sole charge of one secret committee is exceedingly strange. No doubt it may be beneficial; many seeming anomalies are so, but at first sight it does not look right.
Proceeding, be goes on to say:
It certainly would be in many ways advantageous to change it. If we require that in some the assent of parliament shall be given to such treaties, we should have a real dis-



WAY 16, 1911 91G6

[Stage Direction]
ment would not be competent to give rise to any treaty whatsoever. The Earl, the Secretary of State, must at some time have been familiar with the debate between Mirabeau and Barnave, in the French Assembly, soon after 1789, as to where the power of making treaties should be vested. Mirabeau, on that point, an advocate of monarchy, contended that the power should be vested in the Sovereign. Barnave-the organ of the more popular idea -that it should be consigned to the Assembly. Mirabeau prevailed; the power resided in the Crown; but the veto of the legislative body was universally admitted-the initiative of the Crown and the veto of the legislative body were seen at once to be compatible. The prerogative would only suffer if treaties were allowed to emanate from any other origin. But it is just to go beyond that statement. When questions are irrevocably settled by negotiators at a blow, Sovereigns can have no voice in their conclusion.
Now, Sir, treaties of this kind aire made [DOT]purely by the negotiators, but these men are always ready to invoke the sovereign power, the royal prerogative, and while Ordinary every-day ministers making the [DOT]treaty they are always prepared to throw the cloak /of royalty around their shoulders *and tflius protect themselves from the con-csequences of their errors and failures.
At six o'clock, House took recess.
After Recess.
House resumed at eight o'clock.

[Stage Direction]
REVILLON FRERES TRADING company:
House in committee on Bill (No. 158) to incorporate the Revillon Freres Trading Company, Limited.-Mr. Devlin.
On section 10,
William Stevens Fielding: I think the hon. member for Hamilton (Mr. Barker) suggested that this clause should stand over for consideration. I understand that the solicitor of the company has seen that hon. gentleman, and that the amended clause as prepared by the law clerk of the House is satisfactory to him.


Morley Currie: Does he say that there is no objection to directors voting by proxy?


William Stevens Fielding: This is practically a foreign company, the chief controllers of which will be in France. The case is exceptional, and in this case, according to those who have studied the Bill, there is no objection.


Morley Currie: It is an unheard-of principle of law in any portion of the British Empire to allow a director to vote by proxy. A director is a trustee for
the shareholders, and, if so, how can he delegate his trusteeship to another? The thing is absurd. I think the Bill had better stand.


William Pugsley: The solicitor of the company explained the matter to me, and unless this authority is given the actual owners of the company would have no voice in its management. They live in Paris, and they carry on a very large business in many parts of the world. While this provision is exceptional, the circumstances are exceptional, and I cannot see that any harm would come from giving them this power, because they are the shareholders as well as constituting two of the directors.


Thomas Simpson Sproule: I think that the chief objection is that it would be establishing a bad precedent. Probably next session some one or more companies will come and ask the same thing, and you cannot well deny it to them when you have given it to another. It ik by such unfortunate means that we get into our awxward plights in regard to the powers that we give to companies.


Mr. HENDERSON.: I am afraid that it might be taken as a precedent; yet it might be very convenient at times for members of parliament who are directors of companies to be able to send a proxy to a friend to vote at meetings of directors. I could never make up my mind that it was regular. I think we had better have the opinion of some men who are better informed than we are, than I am at least, as to the legality of it, and as to the propriety of it. Can any precedent be furnished? I do not like it myself.


William Pugsley: There is no question about the legality of it if we choose to make it legal.


David Henderson: Possibly I may be wrong in questioning the legality of it, because what the Dominion parliament says is law, even though it should be a reciprocity pact; but it is not always right. 1 would like to have a little more light on this.


William Stevens Fielding: The hon. member in charge of this Bill, in some observations yesterday, stated with regard to this clause:
We hare tried to follow as closely as possible the wording of section 9 of the Act to incorporate the Alberta Railway and Coal Company.
I would infer from that remark that he had a precedent for it. However, the hon. gentleman is not here, and I have no desire to see the Bill pressed if there is any doubt about it.


David Henderson: I think it would he well to let the Bill stand over. It will come

up again on Friday, and in the meantime let some one look up that Bill and see if that is the case.


William Stevens Fielding: There are naturally objections to directors voting by proxy. The other side of the question is that in an exceptional case like this, if it is desirable to encourage foreign capita], we must sometimes adapt ourselves to the conditions under which it is offered. Of course, an exceptional case would have to be shown to justify exceptional treatment.


Morley Currie: My objection is that if we continue this, we may have the Standard Oil Company coming here asking for a charter to be allowed to carry on their business over long-distance phone, and that sort of thing. This company is not entitled to any privileges more than any other company. It is simply a great big fur combine, and it chooses to do business in Canada, but it is not any more entitled to do business in Canada than any ordinary trader. The business it carries on in Canada it carries on in competition with Canadians. It carries on a general grocery and dry goods and every other kind of business in opposition to Canadians. If this company wants to do business in this country, let them come here and do it.
Progress repeated.



SAULT ST. LOUIS LIGHT AND POWER COMPANY.

[Stage Direction]
House went into committee on Bill (No. 214) respecting the Sault St. Louis Light and Power Company.-Mr. Bickerdike.
On section 1,
Mr. BICKERDIKE.: This is simply the extension of a charter granted years ago. There was some doubt as to whether the money expended on engineering entitled the company to be still in existence, and we are asking to have its powers continued another term.


Mr. SHARPE (Ontario).: Are they operating under a public franchise?


Robert Bickerdike: No, they have not started yet. They get their water-power from the Lachine rapids. They cannot begin work until the Governor in Council approves their plans.


Samuel Simpson Sharpe: Nobody is seized with the facts connected with this Bill. It seems to be an important measure, and we should have an opportunity to look into it.


Robert Bickerdike: The only thing we ask is to continue the old charter.


Samuel Simpson Sharpe: It may not be in the public interest to continue the old charter on the same conditions?
Mr. HENDERSON


Robert Bickerdike: The Bill came from the Senate, and was on the Order Paper yesterday, and the day before. At this late day, my hon. friend should not try to block it. It was threshed out in the Senate the last two weeks, and he has had ample time to examine it.


Morley Currie: Does this Bill go from this committee to the Private Bills
Committee?


Robert Bickerdike: It has been through that stage.


Samuel Simpson Sharpe: I have no desire to block it, but want some information.
I would like to see the original Act. If my point is well taken, I desire to object to the Bill being proceeded with, because it is not on to-day's Order Paper.


Gilbert Howard McIntyre: By order of the House we are in committee on the Bill and consequently the point is taken too late.


Thomas Simpson Sproule: A motion was made that it be put on the orders to-day, as recommended by the Private Bills Committee.


William Stevens Fielding: That is exactly how the matter stands.


Robert Bickerdike: I would like to have the Bill assented to before we leave on Friday.


David Henderson: Are we going to leave on Friday?


Robert Bickerdike: I cannot answer for the leader of the House, but I hope so.


Morley Currie: Was any objection taken to the Bill before the Senate committee, or the Committee of the House by any one?


Robert Bickerdike: It passed unanimously without amendment anywhere.


William Pugsley: I have the statute of 1903 and I think that section 7 is the important section, because it is the one that gives the powers to the company. It is as follows:
7. The company may:
(a) Manufacture, use, supply and dispose of electricity, water and gas, and water, hydraulic, compressed air, or other power, by means of poles, wires, cables, pipes, conduits, machinery or other appliances; and construct, ' maintain and operate works, machinery and plant for the production, sale and distribution thereof, and for the purposes aforesaid may acquire lands by purchase, lease or otherwise; construct, acquire, use, maintain and operate canals, water-courses, raceways and water-powers in or adjacent to the Lachine rapids, in and upon lie au Heron, lie au Diable, and adjacent islands in the St. Lawrence river; and construct dams, wing-dams, 6luices, conduits and buildings in connection therewith; and connect by bridge or bridges the island
9:69

known as lie an Heron with the north and south shores of the St. Lawrence river and lie au Liable with the south shore of the said river: Provided, that the works hereby authorized shall not be commenced until the plans thereof have first been submitted to and approved of by the Governor in Council.
Now I think that my hon. friend (Mr. Bickerdike) ought to inform the committee as to the location of ' lie au Heron and lie au Diable and adjacent islands in the St. Lawrence,' and what would be involved in the power to construct dams in that locality. I am not sufficiently familiar with the St. Lawrence at that point to know the facts.


Robert Bickerdike: The hon. member for Jacques Cartier (Mr. Monk) can explain the Bill better than any of us. lie au Heron is a small island near the north shore near the channel where the Lachine power is at the present time. The same company owns the island, and they simply want to construct works there. Also they have taken power to build a bridge subject to the approval of the Governor in Council. This is in the Lachine rapids on the north shore and does not interfere in any way with the channel.


Mr. MONK.: I am sorry I am here, because I would like for my part to advance a Bill tlrat is in the hands* of my hon. friend (Mr. Bickerdike). But I must confess that I am not very favourably impressed with what I have just heard read This is the most valuable water-power within a short distance of Montreal, as my hon. friend knows, and this charter is one without conditions, with' none of the safeguards which within the last few years we have found it necessary to provide. There is nothing about rates, but there are powers to build dams there; and what I heard the minister read from the statute is very, very grave indeed. I really would like to ask my hon. friend to delay this Bill so that we may take cognizance of these powers that we are renewing. For my part it seems to me that the interests of the city of Montreal in this matter are sufficiently great that we should examine carefully every section of this Bill before we pass it.


Robert Bickerdike: The reason I mentioned the name of the hon. member for Jacques Cartier (Mr. Monk) is that he scrutinized the sections very closely when the Bill was going _ through, and raised quite a number of objections, and every one was struck out. He must remember the circumstance.


Frederick Debartzch Monk: In 1903?	'


Robert Bickerdike: And the question here is merely whether the company should get an extension of powers. We are giving it every day to other companies. The company is not asking for new powers.


Mr TAYLOR (Leeds).: Perhaps you got too many as it is?


Robert Bickerdike: Then, why give them to anybody else?


Frederick Debartzch Monk: In that connection, the powers that this parliament granted to the Lachine Hydraulic Company whose works are on this side of the island were altogether exorbitant. They would not be listened to for five minutes in the House to-day. I do not know when that charter was granted. I believe it was under the previous government. But we have progressed since then. At the last sitting of the Conservation Commission in Quebec we sanctioned certain principles which, I think, would meet with the approval of the House if we could get to the Bill which consecrates the principle. But we, in this instance, are asked to place in a private Bill what amounts to a violation of the principles enunciated by the Conservation Commission and ' almost,, one might say, sanctioned by the government. I have no idea of blocking the Bill or of interfering with my hon. friend (Mr. Bickerdike) as he knows. But here we are in Montreal threatened with a great electric monopoly. We welcome a company such as the hon. gentleman is trying to bring into existence, but we cannot surround the prolongation of the powers of this company with too much care. We must act with the greatest care if we do not want to make Montreal the most expensive citv electrically in Canada, notwithstanding that we are surrounded with water-powers on all sides.


Samuel Simpson Sharpe: I do not think the promoter of this Bill should proceed with it without referring it back to the Standing Committee to have the usual safeguard inserted. The Bill is not on the Order Paper to-day and consequently escaped the attention of hon. members. It is a very dangerous Bill. Clause 1 repeals section 14 of the existing Act, and section 14 sets a time limit within which the works must be completed. The effect of this repeal would be to give the company a perpetual charter. It is a most dangerous niece of legislation, yet it would have gone through the House in two or three minutes had not members on this side taken ob-iection. I have my views as to whether the House should grant such a charter or renew the rights under the Act. If they have not proceeded with the work in time, thev should forfeit their rights and this water-power should revert to the public. But, in any case the usual safeguards should be nut in the Bill for the protection of the public. I would suggest that the promoter should ask that the committee rise, r inert progress and ask leave to sit again, that the Bill may be referred to the Standing Committee. It is a most remarkable thing that the Minister of Public

Works has not had cognizance of these matters, for, as 1 understand, this will interfere with navigation and that surely should be brought to his attention. He should not allow a Bill of this kind to reach this stage without at least the ordinary safeguards.


Robert Bickerdike: I have no objection to the Bill being left over, but I want to say to my hon. friend (Mr. Sharpe, Ontario) that there is no navigation any where near the place referred to in this Bill.


Haughton Lennox: The navigation is in getting the Bill through.


Mr BICKERDIKE.: Yes. As the hon. member for Jacques Cartier (Mr. Monk) has asked it, I have no objection to allowing the Bill to stand over. I do not want anything that is not given to others. At the same time, I do not think that hon. members should pick on this Bill, simply because I am introducing it, and try to block it. Everybody else can come here and get extensions of time-which we give them every day, and the hon. member (Mr. Sharpe, Ontario) knows it and supports it. I move that the committee rise, report progress and ask leave to sit again.


John Dowsley Reid: As I understand the location, the purpose is to run a dam from one island to another, and probably to the main shore. The government, of course, control the water. Will the company be subject to any charge by the government for the use of the water-power?


Robert Bickerdike: This parliament has no rights there. The Quebec legislature has control of what is known as the water rights, and we shall have to buy from the Quebec government.


John Dowsley Reid: I understood from the Minister of Public Works in a previous discussion that the bed of the river belonged to the province, but that the water belonged to the government; they control the waters of the St. Lawrence river. Does the Minister of Public Works admit that the Quebec government control both the bed of the river and the water that runs in it in the province of Quebec?


William Pugsley: I think under our present legislation known as the Navigable Waters Protection Act, before any, works can be constructed in any part of tile St. Lawrence river the plans must be filed with the Minister of Public Works and anproval of them be obtained. I do not think, because there happens to be a rapid in a navigable river, which is navigable water both above and below the rapid, that just at that particular point the river ceases to be navigable water. I think under the Navigable Waters Protection Act this government would have control. But these are matters Mr. SHARPE (Ontariol
which might very well be considered in committee. I understand that the promoter of the Bill intends, when Mr. Speaker is in the Ghair, to move that it be referred to the Committee on Private Bills.


Samuel Simpson Sharpe: Is it the policy of the government to allow important water-rights to be alienated without some compensation, some charge for the use of the hcrse-power? This is practically reviving an old charter. Our conception of these rights has entirely changed the last few years, and surely a company should not receive important rights of this kind to develop an enormous horse-power for the purpose of merchandise, without compensating the government, as they do in the United States. Has the government any policy in connection with this matter?


Mr. NESBITT.: I do not like to interfere in the discussion, but there is a motion that the committee rise and report progress.


[Stage Direction]
Motion agreed to, and progress reported.
Robert Bickerdike: I move that the Bill be referred to the Private Bills Committee for further consideration.


Morley Currie: I move in amendment that it be referred to Die Committee on Railways, Canals and Telegraph Lines. This Bill really deals with waters that are involved in canal privileges, and in my opinion a Bill of this nature, dealing with a public franchise in water, should go to the Railway Committee.


Robert Bickerdike: If it is the desire of the House that it should go to the Railway Committee I have no objection, but it came from the Private Bills Committee, I move that it be referred to the Standing Committee on Railways, Canals and Telegraph Lines.


[Stage Direction]
Motion agreed to.

[Stage Direction]
Bill (No. 215) for the relief of Wm. Francis Currie.-Mr. Pardee.

[Stage Direction]
House resumed consideration of Bill (No. 36) relating to the establishment and expenses of the International Joint Commission under the Waterways Treaty of January 11, 1909.
Morley Currie: When the House rose at six o'clock I was engaged in reading some remarks by Lord Campbell on the question whether treaties should be laid before parliament before they are ratified by the ambassadors. Unfortunately it is rather dull for the House to listen to extracts of this kind, but in order to support my argument I think it essential that these should

be placed upon ' Hansard/ as we may have occasion to discuss this matter again. I will now continue:
So long as they are forced to wait for parliamentary adhesion, a salutary influence may often be asserted by a Sovereign, informed on foreign policy and anxious for the honour of the country. By what goes on at present, courts and parliaments are simultaneously mocked. The last fear of scruple, it may be, perhaps, essential to remove, is connected with a view that flagrant innovation is demanded. Innovation as to detail there might be; but there would not, in point of fact, be any as to principle. The principle was long ago conceded. There is no class of treaties which it is more critical and delicate to expose to parliamentary discussion than those by which a war is ended. They give rise to passions the most various, and debates the most entangled. It may become necessary, with a view to justify the terms, to explain the decline of credit, the dissipation of resources, the misconduct of allies, the rottenness of vessels, and bring forward many other topics which prudence would avoid, and dignity, in some degree, recoil from. Much stronger argument may be advanced against parliamentary revision of treaties which lead to peace, than of those which pave the way for arbitration. But on treaties which conclude a war, since 1688, what has been the method usually adopted? As regards the first, that of Ryswick, the records are too scanty to determine. On that of Utrecht, which succeeds, materials are only too abundant. Lord Bolingbrooke, its celebrated author, has left undying pages on the subject. Preliminary articles were brought before both Houses, and so important was it deemed to gain the concurrence of this House that a dozen Peers were called into existence to secure it-this part of history can scarcely have escaped Her Majesty's government. The Peace of 1748 does not appear to have been conducted in this manner. Complaints were made in parliament about it. It was allowed to be the ignominious end of an unnecessary contest. The peace which followed the Seven Years' War in 1761-2, was brought with every possible solemnity before the Houses of that period. Lord Chatham, at that time Mr. Pitt, who had resigned, left a sick bed on purpose to oppose it. He took that course, it may be well supposed, not to execute a medical injunction, or to raise his credit as an orator, but, in the m'dst of pain and risk, to induce the House of Commons, if he could, to reject the preliminary articles. The Peace of 1783, which closed the struggle with America, was no less formally submitted to the legislature. Not only did debates occur-not only were they followed by divisions, but the government of Lord Shelburne was outvoted, and another set of public men required to negotiate. The beginning of the century was marked by the Peace of Amiens. Preliminary articles were brought before the Houses, against which Mr. Windham took the opportunity of delivering a speech, with which his face is, in a great degree, identified. The same process was repeated in 1814 and 1815. I am forced to hurry over it, that I may not exhaust the patience of the House. But the abilities of such men as Sir lames MacKintosh and Mr. Hormer
were brought to bear on criticism of the treaties before, not after they were sanctioned. In 1856, after the Crimean War, I readily admit that parliament was not consulted in that method, but that circumstance can hardly be accepted as an argument against the present motion. It merely indicates a tendency to overlook and to encroach on the authority which parliament enjoyed down to 1815, and which your Lordships are invited to restore as regards the class of treaties most in want of vigilant solicitude at present.
About the same time a motion was brought forward by Mr. Sinclair Aytoun in the House of Commons as follows:
In the opinion of this House, all treaties with foreign powers ought to be made conditionally on the approval of parliament, as was done in the case of the commercial treaty with France in 1860.
Mr._ Aytoun then proceeds to discuss the question, and asked what is the practice. I may say that this applies to this government now that this government has undertaken to make treaties, the line of action outlined in Mr. Aytoun's speech is the identical line followed, by our government here. Mr. Aytoun said:
What was the practice always followed by the government in making a treaty? No information was given to the House with regard to these treaty obligations until after they were settled. When a question was asked in the House, they were told that they should wait until the treaty was concluded, and then express their opinion as to the conduct of the government. In accordance with this practice, the Under Secretary for the Colonies declined, a session or so ago, to lay on the table a treaty with Holland before it had been ratified. Then, however, it was too late either to reject a treaty or to obtain any modification of its terms. He maintained that this practice was inconsistent with one of the well-ascertained rights of the people of this country. One of the best known provisions of the Bill of Rights was that all taxation by prerogative was illegal; and it followed that the practice which allowed the government to enter into engagements which would have the effect of imposing an immense amount of taxation on people must be unconstitutional. They were told that the House did maintain its control over foreign treaties, because the ministers were responsible to it; but cases might occur in which it would be impossible for the House to interfere until after a treaty was concluded and ratified. A government which had a large majority in parliament on a domestic question, might not be in harmony with the opinion of the country on questions of foreign policy. They had also had cases where a government did not actually possess a majority of the House; and it was, therefore, possible for a government not having a majority and not supported by the public, to enter into engagements during the recess of the gravest character. The safeguard of ministerial responsibility was perfectly illusory. They were told that the effect of such a change as that which he proposed would be

to take the conduct of foreign negotiations out of the hands of Her Majesty's government.
I might add in this connection a schedule of the treaties since that period. The following treaties between Great Britain and foreign powers since 1815, contained articles, the execution of which was [DOT]made contingent upon their confirmation by the British parliament:	On May 19,
1815, a treatv with Russia relating to payment of dividend of Russian-Dutch loan; November 17,	1823, a convention with
Austria about loan; November 16, 1831, a convention with Russia about Russian-Dutch loan-continuance of payment; May 7, 1832, the convention with France and Russia relating to Greek loan; August 2, 1839, a convention with France dealing with channel fisheries; May 28, 1852, a convention with France about extradition; January 25, 1855, convention with Sardinia about loan guarantee; June 27, 1855, convention with France and Turkey, relative to guarantee raised by the Sultan; June 3, 1855, a convention with Sardinia relating to loan; January 14, 1857, convention with France about Newfoundland fisheries; March 5, 1864, convention with Prussia relating to the subject of extradition; March 29, 1864, a treaty with France, Russia and Greece relating to Greek loan and pension to the King of the Hellenes; April 30, 1868, convention of Austria, Italy, Turkey, Prussia and France to guarantee loan to complete works on the Danube. There was no special article in the treaty of March 29, 1864, stating the sanction of parliament would be required for its execution, but an Act was passed for that purpose; and in the cases of the convention of May 28, 1852, the convention with France in January, 1857, and the convention with Russia in 1864, parliament exercised its powers and rejected the provisions which were submitted to it.
You will see that in all cases where there is involved a question of territory or war, or the guaranteeing of money, or anything in which taxation is involved in any shape, that very article is always inserted in the treaty, namely, that it requires the affirmation of parliament or parliamentary sanction. In this case we have no such articles, and I think with my hon. leader (Mr. Borden, Halifax), that this treaty, instead of being ratified by the Dominion parliament, should first be, ratified by the imperial parliament.
I cannot leave this subject without touching upon another one which, to my mind, is of very serious import. In the old country, in the mother of parliaments, the idea underlying treaty making is altogether different from that which underlies treaty making in any other country. For instance Great Britain has nothing to give in the way of trade privileges or rights, Mr. CURRIE (Simcoe).
and everything to obtain. Conseouently when she asks a treaty, she desires to get all the concessions possible whilst she has none to give, because of her free trade policy.
The idea underlying the principles of parliamentary government in the mother of parliaments, is that parliament does not represent the people; the people have the privilege of sending representatives to parliament, but the principle of representative government does not hold in Britain, and it is entirely an American idea. It is the principle on which the American revolution was fought, and I may say that it prevails in Canada, where we have fought elections on the principle of representative government. In view of the principle of representative government which prevails in Canada, the government of the day have violated that great principle when they sent ambassadors recently to Washington to bring about a trade treaty with the United States. Not only that, but the very men who violated that principle had the hardihood to come into this House and maintain that when they made that treaty they were invested with the royal prerogative and could pledge not only the honour of the cabinet but the honour of the country, and the honour of the British Crown to what they did. They told the House that not a line, or letter or figure in that treaty could be changed.	-


Mr. KING.: What treaty has the hon. gentleman reference to?


Morley Currie: I am dealing with treaties generally, and I am pointing out that this government on every occasion it has taken part in treaty-making, especially with the United States, not only violated the principles of representative government, but betrayed the interests of the people.


George Gerald King: I was wondering whether the hon. gentleman was referring to the recent trade agreement as a treaty, or whether he was speaking of something else.


Morley Currie: What is the difference between a treaty and a convention?


George Gerald King: If the hon. gentleman is referring to the recent trade agreement as a treaty, he is entirely mistaken, and he knows it.


Morley Currie: The recent trade agreement is a treaty in every sense of the term. It was made subject to concurrent legislation; it was negotiated between representatives of both countries; the President of the United States signed it on behalf of the United States, and I say it is most shameful that this parliament should be wasting its time

	.


William Stevens Fielding: Hear, hear.

Mr. CURRIE (Simcoe)-Yes, wasting its time because the two ministers that were sent to Washington did not know anything about treaty-making, and they were humbugged by the President of the United States and buncoed into making a treaty which is no good and which they do not intend to put through, and which is making them the laughing stock of the whole country.


William Pugsley: We are now discussing the Waterways Treaty, and I would ask you, Mr. Chairman, to confine the hon. gentleman to that question.


Gilbert Howard McIntyre: If the hon. gentleman was- referring to the trade agreement and the matter of reciprocity as an illustratioin of the principle * of making treaties it was in order, but I would ask the hon. gentleman not to carry it further than that.


Morley Currie: I am illustrating the manner in which the business of this country has been conducted by our treaty negotiators. In this treaty before us the Hon. Mr. Bryce was the negotiator, and the Minister of Public Works told us that he represented this country as its attorney. There has not been a single occasion when these treaties with the United States come up but what the fear was paramount in the mind of the Canadian negotiators, as one of them said this afternoon, that the United States was the dominant power on this continent. When did the United States become the dominant power on this continent? I tell these gentlemen opposite that the United States never was the dominant power on this continent, and that Great Britain has as many rights on this continent as the United States has.


Mr. MACDONALD (Pictou).: The hon. gentleman who used that expression spoke of the dominant sovereignty of the United States in this matter.


Morley Currie: The United States is not a sovereignty, but a republic, and they w-ould be the first to repudiate that they are a sovereignty. He said that the United States were the dominant power on this continent, and he said they could do anything they liked here, and he intimated that they could force an unjust principle upon us, and the leader of the House sat there and listened to him. If ever there was an example of members of the Canadian government holding a brief for a foreign country it was to be seen in the House this afternoon. The leader of the government sat silent when that statement was made, and he clearly showed the views of the members of this government that when they go into treaty making with the United States they go in with fear anti trembling, they think that Canada is only a
small, isolated power and that at any moment the United States can come in and capture this country the same as they are endeavouring to do with Mexico this very minute. I repudiate this idea. Canada is a part of the British Empire, and Britain has ever been ready to take part in her defence as occasion demanded. Great Britain is always ready to see that justice will be done between Canada and the United States or any other country. I said that when these two gentlemen went to Washington to make this trade treaty their knee3 were shaking under them. When they went down to Albany last spring, and the big stick was held up by the President of the United States, and he threatened the surtax against us, then it was that this Waterways Treaty was forced upon us, and that the rights of Canadian citizens were violated. I claim that this treaty is a violation of the rights of Canadians. Why should not the same just rule prevail as to water rights between two countries side by side, as would prevail as between two private individuals? But here we have gentlemen opposite rising in their seats tonight, evidently holding a brief for the United States in relation to every international question that comes up in this House, and asserting that we have to give away our rights in this matter. Objection was taken to the diversion of the waters of the Rainy river, and the minister interrupted, and' said that the commission refused to divert that water, but that the Secretary of War of the United States had given permission to divert all the waters on the American side flowing into the Rainy river, and keep them in American territory. There you have an example of what can be done by the United States. If firm ground had been taken by the Canadian government; if they placed their confidence in the mother country as they should have done, instead of continually endeavouring to break up the confederation of this country, as the leader of the government to-day in this House has done on every occasion, we would have less giving away of Canadian rights. Why, in a few years a Canadian dare not eat his breakfast unless^ he consults a joint international commission. Every sovereign right which Canada has on this continent will be invaded through the treaty making mania of hon. gentlemen opposite and especially the proxy premier who is the chief offender, and who leads the House to-night.
He is the leading man in trying to get the United States to edge into our affairs. We have a joint commission on waterways, and a joint commission on fisheries; we shall soon have a joint commission on railways. The next thing will be a joint commission on farming, and no one will be able to grow wheat in the Northwest

unless he gets the permission of that joint commission. For the first time in a British country, a foreign country has been allowed to interfere with our rights of taxation. Pitt laid down the principle that if you allow a foreign parliament to interfere with your rights of taxation you have allowed it to enter the citadel, and all hope of' your country is gone. We have allowed the United States to dictate to us in matters of taxation, and we are allowing it to dictate to us in regard to our water-powers. The Niagara river is dealt with here. At one time the only thing about the Niagara Falls was the scenery and some land, and when a division was made under the old treaty, the United States took all they could take, which was the land. They took all the islands in the river that were worth anything, and they left to us the Horseshoe Fall, which they did not think was valuable; but just as the water becomes valuable, we find them seeking to put this treaty through so that they will get more than their fair share of the water. The House will understand that the Niagara Falls were surveyed by their surveyor, named Hunter, and -then they had the gall to come to this commission and say, we have not been able to find that old survey, so we will make a new survey, and we will try to divide the water equally so that we will get more of it than we have now. They first got the islands and the land, and now they want the water as well. You find them acting in the same way in regard to everything. The Americans have never made a treaty with any country that they have kept unless it has been to their advantage. Where did the name reciprocity first occur? They made a treaty with France in the early part of the last century with reference to trading rights in Louisiana, and no sooner had they made it than they tried to hedge and not carry out its provisions. Take the Bulwer-Clayton treaty with regard to ships on the lakes-they are not keeping that. Another treaty said that they could not fortify the Panama canal, and they are not keeping that, but are going to fortify the canal. As a man of war I am a great believer in peace. Every one who knows anything about war must recognize its terrible horrors. None of the gentlemen have ever encountered war or seen anything of its horrors. But, whenever I see any country beginning to preach peace, I have a very strong idea that before long that country is going to be engaged in a great war. Who was the first and principal mover in founding the peace establishment at the Hague? The Czar of Bussia; and inside of a year he was involved in the greatest and most sanguinary war in the history of the world-the war with Japan.


Morley Currie: 


William Pugsley: I risq to a point of order, but before stating the point, I would like to know whether it would be easier to let the hon. gentleman go on or to stop him. I think he should come down to a discussion of this Bill. Our time is precious, we are approaching the time when we want to adjourn, and the hon. gentleman will surely see the propriety of discussing the merits of this Bill.


Gilbert Howard McIntyre: The section before the House is to confirm a certain treaty which is in the schedule. I think the hon. gentleman's remarks, while very broad, are entirely, along the line of the treaty and treaty-making, and I have not felt that he has transgressed'the rule.


Morley Currie: Of course, this is not a matter that the Minister of Public Works likes to have any reference made to; but I was referring to the subject of peace in order to point out that the United States at the present moment, while talking of a peace treaty with every other country, has a large army on the borders of Mexico ready to jump the line on ten minutes'-notice; and I have no hesitation in saying that if the circumstances do not change in the next few months, there will be a great war between the United States and Mexico, perhaps the greatest war that has ever taken place on this continent. Hon. gentlemen opposite, in making their treaty, have shown themselves afraid of the United States, the dominant power. They know that the United States can take all these water-powers from them. They have gone down on their knees on every occasion when they have had a treaty to make with that country. On every occasion that they have had anything to give away to the United States, they have given it away. If they go on making treaties very much longer, we shall not have any of this country left. Some fine morning we may be told that negotiators have gone to Washington, and have turned over Canada or some of its provinces to the United States, and according to the principle laid down by the government of the day, they have a right to do that, and then come down to this House and say, we have made this treaty, we have given away Alberta and Saskatchewan and Manitoba to the United States, and you have no right to question that, because your ambassadors have pledged the honour of the country that that should be done, and this parliament of Canada has no right to change a letter in that agreement; the only thing it can do is put the government out of office. Carrying out what I said in my opening remarks, I think that before any treaty or bargain of any kind is made with the United States, preliminary articles relative to what is intended to be done should be

laid on the table of this House, so that the members of this parliament could discuss them, and give the government of the day the advantage of the knowledge of how it will affect the various constituencies represented here, in order that when the treaty is made, it can be brought to this House, and there will be no objection or opposition to it. I claim that in the pact recently made this country has been betrayed again and again in that respect. Parliament has been made the laughing stock .of this whole country. We are kept here for months discussing a treaty of which there is no possible solution. It is a bargain which the Americans, judging by the action of their Senate, have no apparent intention of carrying through. If this government desired to act in a dignified manner, they would have told the United States government that before this country proceeded with any treaty of that character it would be necessary for Congress first to adopt it. We have a precedent in this very treaty, which the United States Congress has already passed before it is submitted to us. For that reason I think this tariff treaty should be dealt with in a similar manner.


Gilbert Howard McIntyre: Order. I think the hon. gentleman is now referring to the tariff treaty in a manner not warranted by the circumstances. He may draw an illustration from the tariff arrangement and apply it to this section, but I think he is now reversing that.


Morley Currie: I have no intention to transgress the rules, but I wish merely to point out that this treaty, which we are now asked to pass, was passed by the United States Senate and Congress, as will be seen on page 11 of the Bill:
The above treaty was approved by the United States Senate on the 3rd March, 1909, with the following resolution:	_
Resolved, that the Senate advise and consent to the ratification of the treaty between the United States and Great Britain, providing for the settlement of international differences between the United States and Canada, signed on the 11th day of January, 1909.
I claim that that should have been taken as a precedent, and that this House should not have wasted' three or four months uselessly discussing a reciprocity treaty which I do not think the United States have any intention of passing. Whenever we go to make any treaties with the United States again, I would suggest that this procedure be followed. If the government desires to maintain its dignity, and the honour of this country, it should proceed at once to withdraw this proposed reciprocity treaty, and follow the procedure given in this Bill.


Gilbert Howard McIntyre: The hon. gentleman is again using an argument which
I ruled out of order. He has no right to discuss the reciprocity pact on this measure.


Morley Currie: Then I shall reverse the argument and say that we are wrong in carrying out this treaty now, that it should not be brought before the House in this manner, but that it should have been passed by this House before it was submitted to the United States Congress. That shows the absurdity of the whole thing. This House, and the whole of Canada has been made a laughing stock by the United States government in order to advance the interests of a vote-seeking President, and a political party whose cause seems to be pretty nearly lost.


John Dowsley Reid: I was very much surprised when this Bill was presented by the hon. the Minister of Pubic Works (Mr. Pugsley). If I remember rightly, when the matter was up before in this House, the hon. the Minister of Finance (Mr. Fielding) who is now leading the House, took the ground that it was not necessary for this House to ratify this treaty. I see him smiling. I suppose he has changed his mind.


William Stevens Fielding: Will my hon. friend be good enough to quote the passage.


John Dowsley Reid: I shall look it up in a few minutes. The Minister of Finance has a bad memory sometimes when it suits him. Who made this treaty?


William Stevens Fielding: The hon. gentleman can have all the information he can desire about this treaty from my hon. colleague the Minister of Public Works.


John Dowsley Reid: The Minister of Finance who is leading the House should give more information.


William Stevens Fielding: The Minister of Finance takes a different view.


John Dowsley Reid: It is rather strange that the moment we ask for any information from the Minister of Finance, who is leading the House, he gets wrathy. I ask him who made this treaty? Surely some Canadian representative made it? Was it the hon. minister?


William Stevens Fielding: The Minister of Public Works is dealiing with this treaty and will be very happy to answer any questions of a proper character.


John Dowsley Reid: The leader of the House should answer these questions.


William Stevens Fielding: He thinks differently.


William Pugsley: Why does my hon. friend not want to ask me?


John Dowsley Reid: I have no objection since the Minister of Finance will not

reply. I would like to know what minister of the government had charge of this treaty when it was being negotiated at Washington.


William Pugsley: The interests of the Canadian government were looked after by Mr. Gibbons, the chairman of the International Waterways Commission, who was constantly in conference with the Britisli ambassador, and who was assisted by Dr. King and Mr. Campbell, both of the Department of the Interior. On different occasions I went to Washington to render w'hat assistance I could, and the Minister of Justice (Sir Allen Aylesworth) also went to render assistance at one stage in the negotiations.


John Dowsley Reid: So that the negotiations were practically in the hands of the Minister of Public Works.


William Pugsley: If my hon. friend wants to draw that inference, he is at liberty to do so.


John Dowsley Reid: I want to understand what took place.


William Pugsley: I have stated exactly what took place.


John Dowsley Reid: As I understand it, the Minister of Public Works and the Minister of Justice are really the two government representatives who had charge of this Bill at Washington. There must have been some one to assume the responsibility because the International Waterways Commission surely would not have the power to negotiate a treaty. If thev did negotiate it up to a certain point, the Minister of Public Works and the Minister of Justice assumed the responsibility. Am I right?


William Pugsley: I have stated exactly what took place.


John Dowsley Reid: I think that the attitude of these two gentlemen is most unfair; and if they want this Bill to go through they will have to change their tactics.


William Pugsley: How could I make the matter plainer? I stated who negotiated the treaty, I made reference to the services of the British ambassador in that connection, I stated the part the Minister of Justice and I performed. That is all the information I can give my hon. friend, and on reflection he will see that is all he could ask me to give. I intended no discourtesy, but answered fullv and frankly.


John Dowsley Reid: Did the government as a whole delegate the Minister of Public Works and the Minister of Justice to negotiate this treaty?


William Pugsley: The Minister of Justice, when he went to Washington, and I, when Mr. REID (Grenville)
I went there, went with the authority of the government.


John Dowsley Reid: Then the negotiation of this treatv was practically delegated to the Minister of Public Works and the Minister of Justice on behalf of Canada, and they are responsible for the treaty being in its present shape.


William Pugsley: The whole government is responsible.


John Dowsley Reid: The government assumed the work done by these two gentlemen. What I was trying to find out was whether this treaty, as it now stands, is in the same form as was arranged between the Minister of Public Works and the Minister of Justice on behalf of the Canadian government. Will the Minister of Public Works reply?


William Pugsley: I do not think I can give my hon. friend any more information.
Mr. REID (Grenville) What I am surprised at is this: This Bill has been before the House some time. I think the original Bill was Bill (No. 36) with only three clauses in it, and at that time the point was raised as to whether the commission would have power to decide certain questions regarding water-powers on the St. Lawrence. There was also a question as to the ratification of this treaty by parliament. The ground was then taken that the treaty did not require to be ratified by this parliament; yet to-day, just when the minister wishes to pass this Bill, down it comes m a different shape altogether. There are men not now in this House who were here a few days ago and very anxious about this Bill, but they took _ it for granted that the Bill submitted originally was the only one that would come before this House. They have no opportunity of studying this Bill, and the effect of the changes that have been made in it. This is practically a new Bill, and the government ought not to ask this parliament to ratify it without giving the members an opportunity of seeing what effect these changes will have. I think the Minister of Public Works took the ground that the United States, if they wished, could divert a stream through thfeir own territory into another channel altogether, and we could not interfere.


William Pugsley: Always excepting any diversion which would interfere with the navigability of a river.


John Dowsley Reid: Take the point at the Long Sault rapids, what effect would it have, supposing they dammed the St. Lawrence river on American territory?


William Pugsley: I may say that this treaty would give no authority whatever to dam the St. Lawrence at the Long Sault

or anywhere else. The words of this treaty are simply prohibitory, they are not permissive; and in addition to 'getting the authority of this parliament to construct a dam in the river, the plans would also have to be approved by the Boundary Waters Commission. It does not take away the necessity of first obtaining the authority of parliament.


John Dowsley Reid: On the American side they take a different view. The Bill was up in Congress during the last session when the representative of the New York legislature claimed that the New York legislature had the right to dam the St. Lawrence. The House of Representatives passed the Bill, and if it had not been so late in the session the chances are that the Senate would have passed' it too. Now what confidence can we have that the United States government will keep faith with Canada in regard to this treaty? If the Bill had passed, how could we have prevented them going on and building the dam on the St. Lawrence? There would have been a Bill passed by the New York legislature, who own the bed of the river and they would have got the Washington Congress to pass a Bill of the same nature. If they had started to build that dam we could not have prevented it unless we had gone to war. Now, what confidence can we have that Washington will keep faith when we make treaties with them? As my hon. friend from Simcoe (Mr. Currie), has shown, they have violated treaties in other cases. As I mentioned the other night, they have violated a treaty in placing war vessels on the Great Lakes, and when there was trouble they simply got the consent of the State government to allow them to go through the canals. This government never objected. During all these years the United States have compelled vessels going from Ottawa to New York to unload on the frontier, while vessels from New York could come right straight through to Ottawa. But as soon as this reciprocity agreement came up, and the fisheries treaty, and the waterways treaty, then the United States government allowed these vessels to go through the canals. I mention these facts to show that the United States government have not in the past kept good faith with us. Now, this treaty, when it is passed, will be entirely in their favour, and Canada will get the worst of it.


William Pugsley: In what respect is it in their favour?


John Dowsley Reid: Why, it is in their favour if they can dam the St. Lawrence.


William Pugsley: There is a big 'if' in your suggestion.


John Dowsley Reid: The Minister of Public Works was the first man to give it to them.


William Pugsley: No, he was not.


John Dowsley Reid: The Minister of Public Works stated in this House,that he was considering it, and that he would protect Canada's interest by charging some rate, and that the New York State government was to charge $35,000 per annum.


William Pugsley: I said nothing of the kind.


John Dowsley Reid: The Minister of Public Works knows he did refer to the way he was safe-guarding Canada's interests.


William Pugsley: He did not state at all what the hon. gentleman has just said.


John Dowsley Reid: The Minister of Public Works was considering the advisability of letting this great work go through. Why is the Minister of Public Works so awfully anxious to protect navigation from the Long Sault rapids? The whole navigation east of that is in Canada, there is no part of the St. Lawrence river on the American side from the Long Sault rapids down, it is all in Canada. Now if this treaty goes through, it only requires one of our Canadian commissioners to agree with three American commissioners in order to carry through any proposition that is made in these great waters between Canada and the United States. I have consulted lawyers on this question, and they differ from the Minister of Public Works.
They say they believe that, if this treaty goes through, this International Waterways Commission will have the right to decide. All I want to do is to protect Canadian interests so that they will be beyond dispute. Let us see the position we should be in if they assumed the right and this work went on. In the first place, if a dam were built at the Long Sault rapids, these commissioners agreeing to it, the private corporation would have absolute control of that great work. They build locks there. It is true, they are willing to put in a Bill that the government can control these locks. But then the United States government and the Canadian government jointly control them. If trouble should arise between Canada and the United States, or between Great Britain and the United States, the treaty comes to an end, and, as the locks are on the American side of the river we should not have the control of the navigation that we now have. Or if the dam should break or anything of that kind occur, our canal system would not be in proper shape to take vessels through, because the effect of damming the St. Law-



rence would be to raise the water at the head of the Cornwall canal and so our canal system would have to be changed to meet the new conditions. I object to this work going on at the Long Sault rapids because I believe it is going to divert tradfe to American seaports. For instance, you place the foot of navigation for the Americans down at the Long Sault or at Massena. The distance to Portland is not very great, so that grain trade and other trade could be diverted from Montreal. Again, I object to the whole water-power that might be developed there getting into the hands of a private corporation and practically into the United States. For vested interests will arise, and once these privileges have been given we cannot possibly destroy them. If this treaty were sufficiently protected, if nothing could be done there without this parliament having to agree to it-that is so far as placing any obstruction or dam across the St. Lawrence or alter it in any way-it would certainly remove my objection to the treaty to a very great extent.


William Pugsley: I may say to my hon. friend, he may not take my word for it- that it is made absolutely clear by the treaty that it must be by consent of the Dominion of Canada, and that means the parliament of Canada. Read article 3.


John Dowsley Reid: That is the one I had in mind:
It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the parties hereto, no further or other uses or obstructions or diver-sit ns, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural flow level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.


William Pugsley: So, you must have the double approval, first of the Dominion of Canada and then of the commission.


John Dowsley Reid: I have had two or three leading lawyers examine that clause, and they tell me that it might be construed directly opposite to what the Minister of Public Works says.


William Pugsley: How did they say it might be construed?


John Dowsley Reid: That the commission could decide that.


William Pugsley: But does it not say: * The Dominion of Canada '? That does not mean the commission. It adds ' and the commission.'


John Dowsley Reid: 


John Dowsley Reid: It does not say that the sanction shall be of this parliament, but of the Dominion of Canada, and this commission that we are appointing will represent the Dominion of Canada.


William Pugsley: Oh, no.


John Dowsley Reid: In other words, it will represent the minister. Certainly I would like to see the clause a little plainer. My attention is called to this clause which reads:	' Shall not be made except by the
authorities of the United States or the Dominion of Canada.' The minister said we would have to have the consent of the United States, and the Dominion o>f Canada. But it says ' or,' and not ' and.'


William Pugsley: 'Within their respective jurisdictions.'


John Dowsley Reid: But this is practically all in the United States. If you have the consent of one or the other


William Pugsley: If my hon. friend will pardon me I may be able to make clear my own view. I think it is absolutely clear that the United States cannot do anything which will alter the actual level or flow of boundary waters on the Canadian side except with the authority of the Dominion of Canada, and the approval of the Joint Commission; and Canada can do nothing to alter the actual level or flow of boundary waters on the United States side without the consent of the United States, and of the commission also. So that, so far as the countries are concerned, you must have the two things-you must have the consent of that country and you must have the approval of the Joint Commission.


John Dowsley Reid: I will have to leave that to be argued by some person who is better qualified than I am, or by some lawyer who would understand the cause better, but I have heard it argued by lawyers who express a different opinion from that of the Minister of Public Works and who claim that the clause is not clear and that if the Joint Commission did agree to this it would be impossible for us to dispute it. If the minister wishes this to be thoroughly understood, to protect the rights of Canada, and to carry out the promise made by the Prime Minister and the Minister of Public Works himself that they would guarantee that this work would not be carried out without first coming to parliament, then I \yould suggest that he put in another clause


William Pugsley: What is that?


John Dowsley Reid: Something like this:
Nothing in this Act nor in the appointment of the commissioners to be appointed by His Majesty pursuant to the said treaty and under

this Act shall empower or he interpreted as empowering the commissioners so to be appointed, or the said commission to assent to authorize or approve of the erection or maintenance of any dams, locks or other obstructions in any or all of the channels of the St. Lawrence rh er mentioned in section 7 of the treaty made between Great Britain and the United States, dated August 9, A.D. 1842, upon either side of the boundary line for any purpose whatsoever, nor shall the said commissioners or said commission be empowered to pass upon or determine nor pass upon or determine the question as to whether or not any proposed dams or locks or other obstructions at said place will or will not either impair or improve navigation.
The minister can see the object of that section.


William Pugsley: I regret that I cannot
see it in face of the express words of the treaty.


John Dowsley Reid: This would be a clause in this Bill. It does not alter the treaty but it expressly tells the commission that in so far as that clause in the Ashburton treaty is concerned, there shall be no misunderstanding between this parliament and these men that we are now appointing. We cannot change the treaty here without going back to Washington. They would have to agree to any change that is made in the wording of the treaty, but this would place beyond doubt what the wishes of parliament are if such a case should come before the commission. Where you find a difference of opinion between leading lawyers in Canada, in so far as the construction which can be placed upon clause 3 is concerned, I cannot see why the Minister of Public Works should object to something being placed in the Bill on the lines I suggest in order to keep this matter perfectly right, and in order that the promise that the Prime Minister and the Minister of Public Works made to this House should be carried out. This question may not come up before the commission within a few months, or if, at any future time, there was a change in the positions of the gentlemen who have given us this promise, this project might go through and we could have no recourse. At all events, I cannot see whv the Minister of Public Works should object to placing this parliament in a position that there can be no possible chance of a misunderstanding of that kind occurring. This great work at the Long Sault rapids is not being done for the improvement of navigation. That issue was raised at Washington and those who are proposing this work state that water-power is the first consideration, not navigation. That being the case, why should we interfere with navigation or place it in a secondary position? There is no doubt that the trip down the St. Lawrence and through the rapids is a very 2901
important part of our navigation system.. It attracts a gr6at many persons, we liku to see them and it advertises Canada. la so far as it being necessary to furnish power for the frontier is concerned, I may say that has been taken up by the Hydro-Electric Commission and, as I understand, they, are offering a very cheap rate for power along the frontier. Therefore, I think that the objection from the frontier is being-overcome.


William Pugsley: Does my hon. friend1 know where they are going to get the-power?


John Dowsley Reid: I understood from; the minister who has charge of the Power-Commission that there are two, I think three sources. There is one power company that, I think, could supply Kingston at any time and they are trying to negotiate with them now. That is the Seymour Power Company of Trenton. I think that-they would come down further if there was a sufficient consumption of power to guarantee the enterprise. There is another large power about to be developed at a place called Calabogie back of Kingston.


William Pugsley: I have seen something in the papers about getting power from Waddington.


John Dowsley Reid: There is that source too.	*


William Pugsley: What would be the effect on the canals of the development of power there?


John Dowsley Reid: None whatever. It would not affect the river at all.


Mr. GRAHAM.: The hon. member from Dundas (Mr. Broder) asked me two or three weeks ago to lay on the table of the House a report which had been ordered some-weeks before with regard to this matter. In my absence it was laid on the table of the House, and I have only had an opportunity of casually looking it over, but the opinion seemed to be very strong that it would affect the Morrisburg canal very-much if they developed as much power there as they are talking about.


John Dowsley Reid: Of course, the Minister of Railways and Canals knows-that section well. The only way it could affect it, I suppose, would be that it would1 make more water.


William Pugsley: It would increase the discharge and draw more water away from>
the other part of the river.


John Dowsley Reid: I would like to-know how it could affect it.


George Perry Graham: I remember discussing this question with the engineer. He calculates that it would reduce the water on the sill at the head of the Morrisburg canal'



'9191 COMMONS

[Stage Direction]
*one inch for every thousand horse-power developed at Waddington. It is a low head and they would have to make their dams in a way that would draw off a great volume of water from the main channel into the little river in order to develop power and this would decrease the depth on the sili. I do not know anything about it person-[DOT]ally.
William Pugsley: Who is the principal *owner of the power at Waddington?


John Dowsley Reid: Mr. Allison.


William Pugsley: He is the gentleman who appeared in New York in opposition 'to the other one?


John Dowsley Reid: He is the gentle-*man who appeared in New York. I was under the impression it would raise the water at the head of the canal because it would dam it back. However, I am not going to argue against the engineer.


George Perry Graham: Look at the report; I do mot know anything about it personally.


John Dowsley Reid: But it strikes me that it would have a very decided effect. That being so, if the dam were built at the Long Sault rapids it would take the water away from the Cornwall canal altogether.


William Pugsley: It depends altogether *on your flume and upon the depth to which you can draw the water.


John Dowsley Reid: If it acts that way at Waddington it will have the same effect at the Cornwall canal and draw the water from the head of that canal, and our canal system at Cornwall, on which we spent so much money, will be spoiled. We can now run a steamer from Kingston to Montreal altogether in Canadian waters, but if these locks are built we will be going through the American lock, and while there is no objection to that so long as everything is all right, yet you cannot tell when something will happen, and then there will be trouble. I urge strongly that the consent of parliament shall be obtained before anything is done in this matter.


William Pugsley: That is the law now; no such plan can be approved without the authority of parliament.


John Dowsley Reid: When other gentlemen of high legal repute give an opinion to the contrary, is it not well to make it sure?


William Pugsley: What legal gentleman has given a contrary opinion?


John Dowsley Reid: I do not wish to mention names, but there are able lawyers in Canada who hold that the clause is not clear, and that if the commission decided to place a dam there it would be difficult Mr. GRAHAM.
for the government to interfere. I do not belittle the opinion of the Minister of Justice or the Minister of Public Works, but lawyers, like doctors, differ. What objection can there be to the clause I suggest?


William Pugsley: Will the hon. gentleman send it over to me?


John Dowsley Reid: If the opinion of the Minister of Public Works is right, the insertion of this clause can do no harm, and it will remove any doubt there may arise in the mind of the commission. The promoters of this great scheme will no doubt be back here for legislation, and it is this parliament which should decide whether they will proceed with the work or not. This clause simply gives effect to the understanding announced by the Prime Minister and by the Minister of Public Works in this House.


William Pugsley: I would like to oblige my hon. friend, but I would not like to put ourselves on record as doing a very foolish and very unnecessary thing.


Robert Laird Borden: You do that often.


William Pugsley: The less we do of it the better.


Robert Laird Borden: You do it so often that really it does not make much difference.


William Pugsley: The clause my hon. friend wants inserted is as follows:
Nothing in this Act nor in the appointment of the commissioners to be appointed by His Majesty pursuant to the said treaty and under this Act shall empower or be interpreted as empowering the commissioners so to be appointed, or the said commission to assent to authorize or approve of the erection or maintenance of any dams, locks or other obstructions in any or all of the channels of the St. Lawrence river mentioned in section 7 of the treaty made between Great Britain and the United States, dated August 9, A.D. 1842, upon either side of the boundary line for any purpose whatsoever, nor shall the said commissioners or said commission be empowered to pass upon or determine nor pass upon or determine the question as to whether or not any proposed dams or locks or other obstructions at said place will or will not either impair or improve navigation.
If the latter part of that clause were adopted the commissioners would be absolutely powerless to approve or disapprove even if parliament had granted the necessary authority to erect any works in boundary water. Anyway the clause is entirely unnecessary because at last session of parliament, to make assurance doubly sure, even after the Prime Minister had made the statement that the government would not consent to any plans for the obstruction of the St. Lawrence river by erecting a dam

therein without first having the approval of parliament, section 12, chapter 166, 1910, was enacted.


Charles Joseph Doherty: That is exclusively
with regard to the authorizing of works upon our side of the river. It has nothing to do with works upon the American side.


William Pugsley: Quite so. As to works on the American side of the river, we have, of course, no authority outside of the authority given by this treaty, and in this treaty is the safeguard.


Charles Joseph Doherty: What in the opinion of the hon. minister is the safeguard?


William Pugsley: So far as Canada is concerned, we have the absolute provision that no works by way of dams, or other obstructions shall be erected in the St. Lawrence without the plans being first submitted to, and approved of by parliament. As to anything that may be done on the American side of the line, as it might affect the rights of the other country, article 3 provides:
It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for hy special agreement between the parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.
I cannot conceive of language which would be more prohibitory than that. In other words, these two countries agree that there shall be no obstructions of any kind or description placed in these boundary waters which will affect the natural level, or flow of the water upon the other side of the line without the consent of the country in which such natural level or flow would be affected, or without the approval of this International Joint Commission. Under these circumstances, I could not ask the committee, with any reason, to accept the amendment which my hon. friend proposes It is not necessary, as all interests are safeguarded by the treaty.


Mr. MACDONELL (South Toronto).: I think there can be no two opinions as to the meaning of article 3. The effect of it and of the whole treaty, as I interpret it, is this. The boundary waters are waters in common. The waters that flow on the American side of the boundary line are in American territory, and those that flow on the Canadian side are in Canadian territory. Each party has an easement in the waters of the other for the treaty
purposes. What article 3 says is simply this: no uses, obstructions or diversions of water shall take place on either side of the river without the consent, first, of the country in which such uses, obstructions or diversions are to be created, or without also the consent of the commission. According to the minister's interpretation, it would not be necessary to get the consent of the country in which the use or obstruction or diversion takes place.


William Pugsley: Article 3 proceeds on the theory that each country, so far as its own territory is concerned, can legislate, but it also expressly provides that neither country shall authorize the construction of works in its territory which would alter the flow or level of the water in the adjoining country without the consent of that country, or without the consent also of the International Joint Commission. That is clear. He who runs may read and understand that and there cannot be any doubt.


Angus Claude Macdonell: It is quite obvious that article (3) does not require the consent of both countries, the consent of one is sufficient provided the commission also gives its consent. Suppose an .obstruction be created on the American side


William Pugsley: It must be a work authorized by that country.


Angus Claude Macdonell: Then the consent of that country is the only consent needed, since article (3) only requires the consent of one country.


William Pugsley: You get the consent of the country in which the water level is being altered.


Angus Claude Macdonell: You must have the authority of the United States or of the Dominion of Canada and the consent of the commission, so that if the minister be right, the consent of the country on whose side the obstruction is to be created would not require to be secured. That is obviously absurd. There is no provision requiring the consent of both countries. If the minister be right in saying that you must have the consent of the country on whose side the water is raised, you do not require the consent of the country on whose side the.-obstruction is being created.


Charles Joseph Doherty: There is absolutely no doubt that the interpretation of my hon. friend from Toronto (Mr. Macdonell) is the only one possible of this section. I feel perfectly warranted in saying this because I can cite the express declaration of a lawyer for whose opinion, I am sure, the Minister of Public Works will have much greater respect than he can possibly haver
*^195

for mine or that of my hon. friend, I refer ' to the Minister of Justice. On the 2nd of February, page 2970, the Minister of Justice said:
Surely both can well stand together, the Ashburton treaty securing equal freedom for purposes of navigation-that is, freedom equally do the inhabitants of one country and those of :the other country-in the river which constitutes the boundary, and the recent treaty providing that no new obstruction shall be put anywhere along that river on either side of the line which will have the effect of raising the level on the other side of the line, except: *First, with the authority of the government [DOT] of the country in which the obstruction is to be placed, and, second, with the approval of "the International Joint Commission. Now, that language, I say, implies that the government of each country has the right to authorize, if it sees fit, such an obstruction as will alter the level on the other side of the line, and that obstruction, when it has been authorized by the proper government, must also receive the approval of the International Joint Commission before it can be permitted -the two things must concur. The language implies that there is a right, without any infraction of treaty obligations, on the part of either Canada or the United State9 to authorize such obstruction as may affect the level on the other side of the boundary if, in the judgment of the legislature of Canada or the United States, such obstruction is desirable. Now, we have a proposition in the Congress of the United States to authorize such an obstruction. It is entirely within their legal right; they are not infringing upon any treaty obligation by entertaining that proposition. But, if they see fit to authorize it, then, if it will affect the level on the Canadian side of the boundary, it must receive the approval of the International Joint Commission before it can be permitted. That is an additional safeguard which we have secured by entering into this recent treaty.
I asked the Minister of Public Works [DOT]what was the safeguard which the treaty gave us, and I understood him to say our safeguard was that our parliament had to authorize the creation of an obstruction on the American side. Evidently he and the Minister of Justice do not agree. The only safeguard we can have is that which the treaty gives us, and I do not think it gives us that which the Minister of Public Works says it does. The only safeguard it does give, in cases where it does apply, is the [DOT]consent of the International Commission *which must be obtained after the country on whose side the obstruction is created authorizes that obstruction. So that the country on whose side the level of the water is altered by the obstruction created on the opposite side has no voice in the matter but has to depend on the ruling of the Joint Commission. If anything more is wanted than the words of the first paragraph of the section, we need only read the second paragraph which makes it clear that if there be no interference with the Mr. DOHERTY.	,
flow of water on the other side, either country may go on and construct whatever works it thinks necessary for the improvement of navigation or other purposes mentioned in that section without the consent of the commission. The Joint Commission therefore has only warrant to interfere in cases when the obstruction created on the one side alters the level of the water on the other. But there is absolutely nothing to entitle the parliament of Canada to be consulted and required to authorize works to be built on the American side. The wording of the section leaves no possible doubt:
It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions.
That is to say, if you are going to make any use or obstruction, the United States must authorize those that are made within its jurisdiction and Canada must authorize those that are made within its jurisdiction. That is, the agreement of the United States with Canada is that it shall be made by the United States and not by the state of New York or any other authority. We undertake on our side that nothing shall be done by any authority other than that of the Dominion of Canada. And the protection of either party so far as the level of the water is concerned, is in the Joint Commission. But, if there be any possible doubt as to what the first paragraph means, the second paragraph makes it absolutely clear:
The foregoing provisions are not intended to limit or interfere with the existing rights of the government of the United States, on the one side, and the government of the Dominion of Canada, on the other, to undertake and carry on governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbours, and other governmental works for the benefit of commerce and navigation, provided that such works are wholly on its own side of the line and do not materially affect the level or flow of the boundary waters on the other, nor are such provisions intended to interfere with the ordinary use of such waters for domestic and sanitary purposes.
It seems to me that makes it absolutely clear that, as regards this question of damming the "channels at the Long Sault, in the first place it is absolutely untenable to say that that clause has one word which requires authorization by this parliament of constructions in any of these portions of the channels that are on the American side- and the two channels which are governed

by the Ashburton treaty are practically entirely on the American side;-and, in the second place, that it is absolutely untenable to say that this Waterways Commission has one word to say about it unless the level of the water on our side is affected, but that if that water could be dammed in these two channels and these two channels blocked without altering the level of the water on the Canadian side, not even the commission would have a word to say about it, and, so far as this treaty is concerned, the American government might do just as it pleased. But, as I understand him, tlje hon. minister contends that this treaty requires both the assent of our parliament and the assent of the Waterways Commission, and provides that with these two things this damming operation could be carried on lawfully by the United States. It seems to me that, even if that interpretation be erroneous, as I think with all due respect it is in so far as attributing any right in our parliament to speak in opposition to doing that, and even if it be not sound to say that in that case apart from the question of affecting the level of the water, the consent of the Waterways Commission would be required, and, being given, would be sufficient,-yet because that interpretation is put upon it, it behooves this parliament which is called upon to ratify this treaty, to say whether or not it is willing to enact the legislation without repudiating that interpretation-Now I understand, the minister says, that the enactment of this amendment may be a useless and foolish thing. There might be a great deal of force in that if the minister were not asking us if that interpretation be clearly right or clearly wrong to do the useless and foolish thing of ratifying the treaty, over which we have no power. The treaty is in force, and has been in force for two years, as the Minister of Justice told us; and yet parliament is seriously sitting here to-night to ratify, sanction and approve it. It seems to me that that is at least as foolish and useless a thing as putting in this proviso, which is only useless and foolish if it has no effect. Now, to my mind, this treaty does not give to the Waterways Commission, which is created under it, any powers whatever to consent to the damming of these two channels. The government which is presenting this Bill to us tells us that it does, and we are asked to ratify and confirm it.


William Pugsley: Surely my hon. friend is in error. I never made such a statement, that the treaty gives the commission power to authorize the obstruction of the river. I said it must be by the ' authority of parliament and the commission.


Charles Joseph Doherty: If the Minister of Public Works (Mr. Pugsley) should happen to be wrong and the Minister of Justice (Sir
Allen Aylesworth) should happen to be right


William Pugsley: If the hon. member will pardon me: The minister and my hon. friend (Mr. Doherty) both, I think, agree that, at all events, so far as the Canadian side is concerned as to any obstructions being placed in the river, that must be with the consent of parliament.


Charles Joseph Doherty: Undoubtedly. But we are not in danger, at present at all events, of obstruction on our side of the river. That is not the question which presents itself.


William Pugsley: That is the question brought up by the member for Grenville (Mr. Reid).


Charles Joseph Doherty: I understood that hon. member to say that what he was anxious about was the proposed damming of the two channels referred to in the Ashburton treaty; and the amendment makes that dear, because it nrovides that nothing in this Act or in the appointment of these men, shall be interpreted as affecting the rights of Canada under the Ashburton Treaty.', The rights of Canada under the Ashburton Treaty are rights in channels on the American side-we do not need the Ashburton treaty to give us rights on our own side. What we want to preserve is the rights, such as they may be, which we have in these two channels, and what the hon. member for Grenville (Mr. Reid) seeks to do by his amendment is to make it absolutely clear, that, at all events so far as this legislation is concerned, it is not intended to modify those rights nor affect them in any way. Now, one of two things is true: Either this new waterways treaty has wiped out our rights under the Ashburton treaty and substituted these provisions for the Ashburton treaty, or it has not produced that effect. If it does produce that effect, and if under this treaty the assent of the commission is sufficient to authorize and make binding on Canada works constructed by the authority of the American government in these channels, of course we cannot alter the situation, and the amendment of the hon. member for Grenville does not undertake to alter that. But what it undertakes to do is to provide that this legislation which we are passing now, shall not alter that situation.
Now, I think, in view of the interpretation put upon the treaty by the minister, of Justice the desirability of that amendment becomes perfectly clear, unless parliament wishes by this legislation to enact that the commission should have power to bind Canada, by recognizing the right of the American government to authorize the blocking of these two channels, so far as they are in American waters, and they are practically

altogether in American waters. The purpose of the amendment is to guard against the effect being attributed to our ratification of this treaty, and our ratification of this treaty coming on top of the opinion of the Minister of Justice, that under this treaty the proposed damming of these two channel's, if assented to by this Waterways Commission, would be binding on Canada, It is to guard ourselves against the effect of such ah interpretation as given by the Minister of Justice. We have ratified the treaty but we do not intend that this ratification should be invoked in support of the contention that that is a proper interpretation, and that these commissioners have this authority. The purpose of the amendment is to make perfectly clear that the power of the commissioners should be just exactly what it would be under the treaty, but nothing additional should come to them by reason of the enactment of this statute. It is a measure of precaution. But at the same time, the interpretation that has been put upon the treaty, and our proceeding in face of that interpretation, without a word of explanation, t'o ratify it, would put a strong argument in the mouth of those who would have an interest in urging that by this legislation, and by the appointment of the commissioners to be made under it, we were confiding to them in toto all the voice that Canada may ever have with regard to damming these two channels. If the interpretation of the minister should happen to be wrong, the amendment will at least serve this purpose, it will make clear that parliament, in enacting this ratification, does not intend to adopt the opinion of the Minister of Justice and give it statutory effect, and is not handing over this particular matter to this commission, and giving them the whole power to speak for Canada. If the opinion of the Minister of Justice be the correct interpretation, notwithstanding that amendment to the statute, these gentlemen will have that power under the treaty. For my part it does not seem to me that the treaty itself gives to these gentlemen of the commission any power to deal with the question of the obstruction of these two channels. The purpose of the control that is given to these gentlemen is to put them in a position to prevent works on one side of the river which raise the level of water on the other side; that is their entire function. What is in view in conferring this power, I think, is the protection of the country on the side of the river opposite to that where the obstructions are made, from alterations in the level of the water. There is no purpose of protecting the rights of the country on the other side in the navigation of the channels. Manifestly the power of the commissioners is limited Mr. DOHERTY.
to judging cases where the level of the water opposite the side where the obstruction has been created, is altered, and does not extend to determining to what extent the rights of navigation on the part of one party may be affected by the construction made upon the other side. This is made clear by the preamble of this treaty which says what the purpose of the treaty itself is. [DOT] The purpose of the treaty is clearly not to alter any situations which are settled and fixed by previous treaties. I need not say that there is no safer guide to correct interpretation than that which is set forth in the preamble of the Bill. What is the purpose of this treaty? The preamble tells us that.
His Majesty, the King and the United States of America, being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United Stales and the Dominion of Canada involving f he rights, obligations, or interests of either in relation to the other or to the inhabitants cf the other along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise, have resolved to conclude a treaty in furtherance of these ends.
That is to regulate the uses of the water and to determine all questions- which are now pending between the two countries. It cannot be contended that at the time of the enactment of this treaty there was any pending question with regard to the free and open navigation of these two channels. That question had been absolutely settled and concluded by the terms of the Ashburton treaty which dealt expressly and specifically with these two particular channels and created the rights of Canada in them. So, I say it is clear that there are limitations put upon the power of these commissioners under which that power is to be exercised only in cases where the flow of water is affected and clear, from the purposes for which this treaty was entered into, that the treaty was not intended to and does not alter the express provisions in the Ashburton treaty in regard to navigation; and not so altering them it clearly does not place the determination of any questions arising under the Ashburton treaty under the jurisdiction of these commissioners.
There is another reason which I think can be advanced in support of my proposition. I do not think I am making any mistake in saying fyhat in interpreting these treaties and determining the effect of them, one upCon the other, we ,are perfectly justified in applying the rules that are applied as regards the interpretation of laws and the effect of one upon another when it is a question of how far a subsequent law repeals a previous one. We-

would be justified, when construing these two treaties between these countries, in applying the rules that govern the interpretation of contracts. I urge without fear of serious contradiction that it cannot be denied that when you have made a special, particular and specific law to deal with one particular specific instance, the subsequent enactment of general provisions does not override that law. In the system under which 1 was brought up that simple rule as expressed, declared that throughout the whole law 'in toto jure' the special rule derogates from the general rule.


William Pugsley: I do not think anybody will deny that.


Charles Joseph Doherty: Here then we have the determination of a specific case by the Ashburton treaty.


William Pugsley: What does my hon. friend want *the amendment of my hon. friend from Grenville for?


Charles Joseph Doherty: I want it because this government stands before this parliament interpreting this treaty as governing this case and giving power to these commissioners to assent to any works which the American government might erect on that side, and because, if we pass this legislation in the face of that authoritative interpretation and without any reserve or qualification, we will be furnishing a very powerful argument to our adversaries in this matter which they will not fail to invoke when they come to claim that because they have the assent of these commissioners our parliament has absolutely nothing to do with it. I am free to confess that our position has been far from ameliorated by the terms of this treaty as expressed, but I want to, at least, as far as it is in my power, bring about the result that this particular legislation shall not make our position worse than it _ is from my point of view. Perhaps the Minister of Public Works, seeing that the Minister of Justice has disagreed with him in the interpretation, that I have not been able to agree entirely with either of them, and that the hon. member for South Toronto is in the same position, will at least admit that there may be room for doubt as to the interpretation of this clause. If that be the case surely it is not intended that this legislation should be enacted for the purposes of serving as a means of enabling an interpretation to be put upon this treaty. If we pass it purely and simply we are building up a very strong argument in -support of the interpretation put upon this treaty by the Minister of Justice, and we are placing our adversaries, if we should come to have adversaries, or if we should come to take an adverse position to that
of the government of the United States and it was to their interest to say that all they had to do was to get the assent of the commissioners under this treaty in order to bind Canada, in possession- of an additional argument in favour of such a contention. I have no very great hope of producing conviction in the mind of the Minister of Public Works, but I must say that it does seem to me tihat I am arguing in support of a most eminently reasonable position, because, if the view of those who desire to propose this amendment to this section in respect to which there are disputed interpretations should prove to be wrong, then the amendment will have done absolutely no harm; whereas, if, in the face of this clause, susceptible of different interpretations, the amendment should be accepted, it will do this much good that it will leave that section absolutely to be interpreted as it ought to be interpreted according to the proper rules of interpretation without that internretation being affected in the slightest degree by this legislation. * Unless it is intended 'by this legislation that parliament should intervene for the purpose of interpreting this treaty and interpreting it in a sense favourable towards those with whom we made this bargain, unless it is desired that we should add to this treaty and to its terms an authoritative interpretation favourable to the persons with whom we are dealing in the event of there coming up a difference of opinion between us, it seems to me that there can be no reasonable objection to adopting this amendment proposed by my hen. friend from Grenville, and which, I think, is a valuable section as, at all events, insuring this country against the action we are taking now being interpreted as impairing in any way its rights such as they actually are under this treaty, or as, I believe, they are under the Ashburton treaty.


William Pugsley: I would not for a moment think of setting up my views against the opinion of the Minister of Justice which no doubt is the correct one. On the point that this treaty does not give any right to the commissioner to interfere with navigation, there is no doubt. My hon. friend (Mr. Doherty) who has made a very able argument takes that ground.


Charles Joseph Doherty: The minister does not.


William Pugsley: I did not understand the Minister of Justice to argue that this treaty in any way interferes with the Ashburton treaty. Article I of this _ treaty clearly preserves the right of navigation in substantially the language of the Ashburton treaty. Either country can make improvements, but these improvements

must always be aids and improvements to navigation, and the commissioners would have no power to give any consent to any obstruction which would interfere with the free navigation of that part of the St. Lawrence. This makes it absolutely clear that the amendment of my hon. friend (Mr. Reid) is not required. Then in section 12 of the Act of last session it is provided that no plans, no proposition, no application to the British government even to alter the terms of the Ashburton treaty can be made without the approval of the parliament of Canada. The amendment of the hon. gentleman could not safeguard the rights of our people better than they are safeguarded now.


John Dowsley Reid: The Minister of Public Works stated that the language of this treaty was exactly the same as the language*of the Ashburton treaty.


William Pugsley: I said it was substantially the same. -


John Dowsley Reid: Article 7 of the Ashburton treaty says that channels in the River St. Lawrence on both sides of the Long Sault and Barnhart Island shall be equally free to the ships of both nations.


William Pugsley: And this says boundary waters.


John Dowsley Reid: The clause in this treaty means free passage through the canals when they are built.


William Pugsley: Is not that the same as the Ashburton treaty?


John Dowsley Reid: If this dam is built there will be only one channel where there are two now, because the north channel which is the main channel now on the downward route, will be spoiled. When this Bill was before Congress there was strong opposition to that feature, from amongst others the city of Montreal, the Board of Trade, the Chambre de Commerce, the Harbour Commissioners, the Canadian Manufacturers' Association, the Citizens' Association, the Canadian Shipping Federation, the Montreal Transportation Company, the Richelieu and Ontario Navigation Company, the town of Morrisburg and the city of Toronto. Here we have able lawyers disagreeing on the construction of that clause and yet the Minister of Public Works refuses to insert a clause which makes the meaning plain beyond doubt.
If the Minister of Public Works wants to protect the interests of the people of Canada, he will surely put in that clause. This whole scheme with regard to the Long Sault is sure to come up again, and I think it is dangerous to leave it where there is a possible chance of doubt. I think he should not object to that clause being added, and Mr. PUGSLEY.
then the Bill would go along, and we would be able to hurry the business through. Surely the minister cannot think that in asking that there is any obstruction; the object is simply to make plain the clause. On the other side of the line, when this Bill was before Congress, Mr. Maltby, the gentleman acting for the company that was trying to get the Bill through, was asked at the end of the hearing by Chairman Burton of the special committee, if it was contemplated to go on with the construction of the dam without the consent of the government of Canada, and he admitted that it was. So evidently they do not intend to carry out the treaty, and I think the minister should consider that. Now, I want to correct one thing that the minister stated in the early part of this discussion, when he denied that he had said that he would protect Canada by collecting from the company $30,000 or $35,000 a year for the privilege. 'Here is what happened, on page 917 of ' Hansard ':


John Dowsley Reid: When we raised the question of damming the St. Lawrence the hon. minister made the statement that he was protecting the interests of Canada because we were going to get $30,000 a yean of revenue from that, similar to what the United States was getting.
_ Mr. PUGSLEY. What I stated was that if parliament should hereafter grant any authority to dam the St. Lawrence and I were Minister of Publio Works at the time, I would see that any company getting the power would pay as much as was to be paid to the state of New York, which I understood was to be $30,000 a year.


William Pugsley: That is, if parliament was hereafter to grant the right. What the hon. gentleman said was that I was in favour of granting the right subject to a rental of so much a year. I said that I had made no such statement, and what the hon. gentleman has read absolutely confirms what I said.


Mr. GOODEVE.: I would like to ask, for information, if we pass this Bill confirming the treaty, could a company or an individual, under Article 3, get the right from the United States government to dam the St. Lawrence, and then only require to get the consent of this Joint Commission to go on with the work, regardless of whether it altered the level of the water or not? If we pass this Bill, then under clause (3) of the treaty any company or individual getting the right from the United States government to dam the St. Lawrence could go on and do so, and if that dam altered the level of the water on the other side, the consent of the Joipt Commission would have to be obtained.


William Pugsley: As regards the construction of works on the United States

side which would in any way affect the level of the waters on the Canadian side, this treaty does not apply at all. In respect of the St. Lawrence, the Ashburton treaty still exists; and it is provided by that treaty and also by article (1) of this treaty that there must be free navigation preserved to the people of both countries.


Arthur Samuel Goodeve: I only use the St. Lawrence as an illustration. I want the interpretation of the government on clause (3). As I understand that clause, parties desiring to construct works in either country must get the consent of the parliament of the country in which the works are to be constructed; but if the work affects the boundary waters in the other country, the parties must get in addition the consent of the Joint Commission.


William Pugsley: Yes.


Arthur Samuel Goodeve: And no further consent? '


William Pugsley: If they affect navigation, the works could not be constructed at all under article (1). That article provides that navigation of all boundary waters must be kept free.


Arthur Samuel Goodeve: But if a company got the consent of its own government to construct a dam which might interfere with the flow of water on the other side of the boundary, they would have to get this consent of the Joint Commission.


William Pugsley: You mean on the other side of the line?


Arthur Samuel Goodeve: Suppose a company desires to construct a dam on the American side, they would naturally get the consent of their own government. But if that dam would affect the level of the water on our side, they would have also to get the consent of the Joint Commission, and that would be all they would require.


William Pugsley: Subject always to article (1) which provides that all boundary waters shall be kept open to navigation freely to the people of both countries.


Angus Claude Macdonell: The treaty and more especially the Bill deal very largely with the public domain of the provinces, especially of Ontario, and the provincial laws are to be apparently abrogated or overridden wherever they interfere with the operation of this treaty. Has the government conferred in any way with the province of Ontario, both as regards the appropriation of public waterways and the overriding of provincial laws, and has the province of Ontario given its consent to this measure? As has been pointed out to-night, although this Bill has been on the. Order Paper for a considerable length of time, the treaty has been over two years
in operation. Only the other day a Bill was brought down by the Minister of Public Works (Mr. Pugsley) for the purpose of putting into operation this treaty and providing machinery including a very large expenditure of ways and means. That Bill went to the public but it has since been very largely amended.


William Pugsley: All those sections remain just as they were.


Angus Claude Macdonell: As regards the overriding of provincial laws, I think that section of the Bill is entirely new, and I do not know if the provinces are aware of this change.


William Pugsley: None of the provinces were consulted in the framing of the treaty. All that section (2) of the Bill provides is that, so far as may be necessary to carry out the provisions of the treaty, all Dominion and provincial law's shall be altered. The only respect in which they can be altered would be as to the remedies given to people in the adjoining country to bring actions in the Exchequer Court for damages on account of injuries sustained by reason of the diversion of the water. Provision is made for the issuing of subpoena and the taking of evidence under oath. Any effect which this Bill would have upon provincial laws would be only such as is necessary to put in force the provisions of this treaty. The limitation is contained in clause (2).


Angus Claude Macdonell: That contains no limit whatever.
The section is as follows:
The laws of Canada and of the several provinces thereof are hereby amended and altered so as to permit, authorize and sanction the performance of the obligations undertaken by His Majesty in and under the said treaty; and so as to sanction, confer and impose the various rights, duties and disabilities intended by the said treaty to be conferred or imposed or to exist within Canada.


William Pugsley: Limited wholly to the necessary connection with the treaty.


Angus Claude Macdonell: At one fell swoop it is proposed to amend all the law's of all the provinces so as to permit this treaty to have full operation and effect.


William Pugsley: That is so.


Angus Claude Macdonell: Having regard to the public domain, surely the minister does not consider that because waters are international or boundary waters, they cease to be provincial waters. I do not think there is legal authority for any such proposition. In as much as this treaty proposes not only to deal with international or boundary waters, but to extend its operation to waters very remote from the boundary or international waters-waters that are notoriously

920S
provincial waters-it seems to me that when we come to the wide power given by section 2, you simply propose (if you have the right to pass that section 2) that for treaty purposes and Dominion purposes, the domain of the various provinces where it comes in contact with this treaty, shall be included under the Act. I will just point out the far-reaching effect of the language used. Take, for instance, article 1. Therein we find these waters defined, and they not only include boundary waters but waters connected with boundary waters, and also, by the preliminary article, ' all bays, arms and inlets thereof, &c.' So, we take the boundary waters of the Great Lakes and by the operation of the preliminary article and article 1 you include in boundary waters all the bays, arms and inlets of the boundary waters which are tributary to or form part of the Great Lakes. This would include the Georgian bay and all the waters tributary to it. I believe the Minister of Public Works himself was authority for the statement this afternoon that because a river in Maine, flowing entirely in the state of Maine, entered the St. John river, it also was a boundary water, and included in the treaty.


William Pugsley: It is not a boundary water, but one that flows into a boundary water.


Angus Claude Macdonell: Yes, and therefore comes under the operation of the treaty. If that be so, having reference to the geographical aspect of the watershed of the Great Lakes and the. watershed of the Georgian bay, all the streams that flow into the Great Lakes and Georgian Bay from the north-and almost all that flow into the Great Lakes, except the Rainy river, flow in from the north, that, from Canadian territory-according to this definition, at one fell swoop


William Pugsley: The hon. gentleman has not read it. It expressly excludes all tributary waters.


Angus Claude Macdonell: Then, why did the minister include the river of which he spoke?


William Pugsley: That is different. I was speaking with reference to what was done as to the Allegash.


Angus Claude Macdonell: Then, it either is or is not a boundary water. And take section 2 of article 1. It extends not only to natural bodies of water, but ' to all canals connecting boundary waters and now existing or which may hereafter be constructed on either side of the line.' The effect of this- speaking subject to correction and simply as a matter of common reading of English- that if we construct the Georgian Bay canal, forming part of the Ottawa river, that tribu-Mr. MACDONELL.
tary for 300 or 400 miles will be held under the treaty in common. So, by this joint commission we submit to the joint supervision of the United States and ourselves all the inland waters and canals belonging to the Dominion of Canada.


William Pugsley: Where did the hon. gentleman find that in the treaty, it must be a canal connecting boundary waters.


Angus Claude Macdonell: I am glad the hon. gentleman has mentioned that. Lake Huron is a boundary water, and Georgian bay, by the preliminary article, is a part of a boundary water, because it is a bay that is included in ' all bays, arms and inlets thereof.' So the Georgian bay canal, which goes to the Georgian bay, which is part of the boundary waters-


William Pugsley: And joins the St. Lawrence where it has ceased to be boundary water.


Angus Claude Macdonell: It flows from boundary waters, and it joins boundary waters.


William Pugsley: No, it joins the St. Lawrence below where it is a boundary water.


Angus Claude Macdonell: The St. Lawrence is a boundary stream.


William Pugsley: Only to a certain point.


Angus Claude Macdonell: You will find that our American friends will claim the whole length.


William Pugsley: No.


Angus Claude Macdonell: There is the fact staring you in the face. It seems to me that the rights of the provinces have been overlooked, and that there has been no attempt to safeguard those rights or consult the provinces in the confiscation or disposal of their rights. The minister is well aware of the decision in the fishery case in the Privy Council. It is common knowledge that it was decided' that the Dominion government has no right in the waters except where they have been improved in rivers, harbours, or canals, but that public waters and land under public waters, in the old province of Canada, belong either to the province of Ontario or to the province of Quebec. And you will find nowhere in the British North America Act any authority to divest the province of Ontario of its domain in these waters or under them. Yet this measure proposes to deal with them without even consulting the provinces. Then you have the additional feature that, as I have said, at one fell swoop, you wipe out provincial legislation that is in conflict with the operation of this treaty. Every lawyer knows-the Minister of Justice (Sir Allen Aylesworth), is not here, but if he were here I am sure he would agree with me-

that of all legislation, legislation by inference or reference is the most obnoxious. To declare generally that all law in conflict with what is here laid down shall be amended, altered, or repealed, is the most objectionable kind of legislation, because you have to go to court every time you want to find out what the rights of the individual are, and to what extent these laws are altered, amended, or require to be altered, amended, or repealed, to be in conformity with the treaty. So, both the contents of the Bill, and the manner in which it is brought down-without consultation with the parties vitally interested -are objectionable. It does seem to me that the objection raised by the hon. member for Grenville (Mr. Reid), has been well taken. The amendment can do no harm if inserted. I might point out here that in the case before the committee of the Senate of the United States with regard to the erection of an obstruction in the St. Lawrence it was there openly stated that the effect of allowing that legislation to go through would be to entirely abrogate those clauses in the Ashburton treaty which require the River St. Lawrence to be forever free and clear. If the Minister of Public Works should accept the amendment of the member for Grenville, as 1 have said, its presence in the Bill would do no harm, whereas it would wonderfully safeguard the rights of the people of this country, and make plain, and unequivocal the position which we all, the minister included, agree should be taken, namely, that it is not in any way intended or desired to interfere with the freedom of the river which has been guaranteed by the provisions of the Ashburton treaty. 1 think the minister would do well to consider whether he should not accept that amendment. The minister has made some remarks about not making headway with the Bill. That is his own fault- in not bringing down this impprtiant measure until practically on the eve of adjournment. If this Bill had been brought down long ago, it could have had more consideration.


William Pugsley: I have delayed it frequently at the special request of hon. gentlemen opposite who were desirous of being present. However, I do not complain.


Angus Claude Macdonell: This treaty has been in operation now for more than two years. The provision for financing the commission is a matter that can go on. In answer to a question I put the government, I was informed that the government has spent already $218,329 on the Waterways Commission.


William Pugsley: Not this commission, that is under the old treaty.


Angus Claude Macdonell: It is the same men and the same work. However, there has been a large amount expended already. If this Bill were not passed the expenditure could go on. In the meantime the minister would do well to let this measure stand for further mature consideration until after the adjournment. We find the Minister of Public Works holding one view, and the Minister of Justice another view, but the Bill goes on all the same. I think it would be in the interests of the country to let this measure stand, and let the government consult with the provinces who are affected by it. The rights of the provinces are being impaired by this Bill, both in regard to their public domain, and to their public law. It would be better for the government to wait awhile, and come to some arrangement with the provinces for taking joint action.


John Dowsley Reid: If the Americans got a Bill through at Washington giving them power to dam the South Sault, then all they would want would be the consent of the Joint Commission. Would the Minister of Public Works take that position?


William Pugsley: What I have said already is that this treaty gives no right whatever to dam the St. Lawrence river, or any other river; on the contrary, it preserves every right of navigation. Article 1 declares that the navigation of all navigable boundary waters shall forever continue free and open for the purpose of commerce to the inhabitants of both countries, safeguarding to the fullest extent the right of navigation:	In the case my
hon. friend put of the United States Congress giving authority to place a dam upon their own side of the boundary, this treaty gives no such power. That is a power which they have at the present time, but this treaty contains a prohibitive clause which says that they shall not do that, if the effect is to raise the water level upon the Canadian side, without the consent of the International Joint Commission. While Canada might erect works on its own side, if the effect was to alter the level of the water on the other side of the boundary, there must be the consent of the International Joint Commission. This treaty gives no power to place an obstruction of any kind or description in a boundary water; on the contrary, it limits the right which exists at the present time. It preserves every right of navigation, and provides also that if the parliament of either country should authorize the construction of any works, they must be subject to every right of navigation, and must always be subject to the approval of the International Joint Commission, if the level of the water on the other side of the boundary is affected.


Thomas Simpson Sproule: This treaty has been in operation for over a year, and why is it that we have had so much trouble this winter trying to prevent the Long Sault (Company from1 interfering with the St. Lawrence? We have made representations from this House over and over again, the city of Montreal has been much exercised over it, and representations have been made to Washington, and the attention of the commission has been drawn to it, notwithstanding the fact that under this treaty they could not interfere with it in any way.


John Dowsley Reid: The minister knows that at Washington they have been fighting all winter, and Congress did not hesitate to say they had the right. But, as I understand it from what the Minister of Public Works said, they can erect a dam in the South Sault, and all they want is the consent of the Joint Commission.


William Pugsley: Before this treaty was negotiated Congress could authorize, the same as the Canadian parliament could authorize works, each upon its own side of the boundary. This treaty limits that right because it makes all subject to free navigation.


John Dowsley Reid: They probably could if it had not been for the Ashburton treaty which provides that the channels on both sides, the Long Sault and Barnhart Island, should remain free and open. These are the two channels mentioned there.


William Pugsley: Does not my hon. friend understand clearly, as the hon. member for Montreal, Ste. Anne said, that the Ashburton treaty is in no way affected by this treaty. It remains as it is and as it will always remain providing for the free and unobstructed navigation of these channels. This treaty goes even farther and says that in all the boundary waters there shall be that free right of navigation.


John Dowsley Reid: I cannot see it in that light.


William Pugsley: If my hon. friend will not take my view he might take the view of the hon. member for Montreal, Ste. Anne.


John Dowsley Reid: The minister made the statement a few minutes ago that he had delayed this Bill at the request of members on this side of the House and he said that on one occasion I asked him to hold it over from Friday to Monday. I plead guilty to that.


William Pugsley: I would be very glad to hold it over at any time for hon. members.


John Dowsley Reid: That is the only time that I remember.


William Pugsley: 


William Pugsley: The hon. member for Medicine Hat (Mr. Magrath) also requested me to hold it over.


John Dowsley Reid: This Bill in its changed form was only handed around this morning and I would ask the minister if he would allow it to stand over until tomorrow in order that we may really understand it and then it can go through.


William Pugsley: I think the hon. members clearly understand the Bill.


John Dowsley Reid: I am not quite sure of that. I think it is only fair to ask that it be allowed to stand over. There are other members who have not been here and who have not seen this Bill. They should have an opportunity of seeing it and the minister should not desire to force it through.


William Pugsley: These new clauses are all unimportant.


Charles Alexander Magrath: It is not a matter of any consequence, hut I would like to know from the minister when I asked him to hold this Bill over.


William Pugsley: I do not think my hon. friend did it personally but an hon. member of the House said that the hon. member for Medicine Hat was desirous of speaking on the Bill.


Charles Alexander Magrath: I wished to know when it was coming up.


William Pugsley: I think the hon. member was away.


Angus Claude Macdonell: Can the minister tell us to what extent the Chicago Drainage canal will reduce the depth of water in the lakes? There is an enlargement and it is said to be drawing more water from Lake Michigan at 10,000 cubic feet per second, which was supposed to be the amount they should be allowed to take under the arrangement made by the commission.


William Pugsley: I am not able to give my hon. friend definite information on that point. I understood they had the right to draw 10,000 cubic feet per second. I have not heard that that has been increased.


Charles Alexander Magrath: Has that been settled by any treaty arrangement?


William Pugsley: No, it is by an understanding. Of course, all the cities bordering on the lakes are just as much interested in it as we are. There is no clause relating to this in the treaty.


Charles Alexander Magrath: They cannot take more than 10,000 cubic feet per second without the consent of the commission provided for in this treaty?


William Pugsley: I am not prepared to


Mr. MAODONELL.: Can the minister inform the committee whether it is intended to make a further abstraction of water from Lake Erie by. the enlargement of the Erie canal?


William Pugsley: I have not heard of anything of the kind. Of course, there is work going on now with the view of deepening the Erie canal. I may say to my hon. friend that the water that is used for filling a canal is not very likely to appreciably alter the level of the great lakes. We should not raise that question at all events. What might more seriously alter the levels would be the deepening of the canal through the St. Clair Flats, although that is for the joint benefit of both countries.
-Mr. REID (Grenville). Suppose the Long Sault were to be dammed what effect would it have on the lakes on the eastern side of it? The River St. Lawrence goes into a lake east of the town of Cornwall; and what would be the result if this commission should grant power to dam the St. Lawrence.


William Pugsley: This commission cannot grant power to dam the St. Lawrence.


John Dowsley Reid: Well there is a difference of opinion.


William Pugsley: This treaty does not give power to dam the St. Lawrence.
On section 4: Exchequer Court jurisdiction.


Charles Joseph Doherty: I would like to ask the minister why it is considered necessary to give this jurisdiction to the Exchequer Court? In our own province of Quebec, if a man diverted the waters of a stream running in the province of Quebec, and crossing the boundary, and thereby did damage to a man in the state of Maine, he would, under the treaty, become liable towards that man in the state of Maine just precisely to the same extent as he would under the law of the province of Quebec be liable to his next door neighbour for a like diversion of the same stream. In other words the liability of the party guilty of the offence which gives rise to the damage is to be governed by the law of the province of Quebec. The province has created courts for the administration of justice, and I can see no reason why you should take the party defendant before a court which as a general rule has no jurisdiction to administer the law of the province. I am not attempting to reflect in the slightest degree upon the gentleman who is now judge of the Exchequer Court, but in the province of Quebec it is known that we have a distinct system of law, under which the obligations of the man who diverts the stream as well as the rights of the man injured will be governed. The
provincial courts are especially created for the administration of that law, are presided over by men trained in that law, and you will draw these cases from their jurisdiction and give them to a tribunal which as a rale is not concerned with the administration of that law. Then in that province you will very probably have the language question. I am not now making any personal reference, but it will likely happen that the judge of the Exchequer Court will not be familiar with the French and English languages, and in Quebec the two languages are official, and the people attach considerable importance to their right to be heard in their own tongue. Apart from sentimental consideration those who have experience in these courts know how exceedingly important it is in the interests of justice that the witnesses should be heard by a judge who understands both languages. In the province of Quebec, in nine cases out of every ten, the bulk of the cases are in the French language, and it is rare to have a case in which both parties, and the counsel, and the witnesses speak only English. I am at a loss to see why you should create this exceptional jurisdiction to deal with cases of this kind which affect civil Tights that belong to the jurisdiction of the province. I urge upon the consideration of the government that justice would probably be much more satisfactorily attained by leaving the adjudication of these cases to the courts to which they naturally belong.


William Pugsley: I do not think it is of very great importance what court a suppliant may enter in order to get redress, the important thing being to let him know what court he has a right to go to, and be assured that that court has jurisdiction. I suppose that one reason for providing the Exchequer Court would be that all actions taken under this treaty would be of the same character, and it would be desirable that one tribunal should deal with them.


Charles Joseph Doherty: If the liability for diverting a stream should be different in one province under the law of that province from what it would be in another province, the cases would not be of the same kind or under the same law.


William Pugsley: At all events, they will all be cases of damages in relation to watercourses and boundary waters. In the province of Quebec, I imagine, there will not be many cases, and the present judge of the Exchequer Court speaks both languages, as I apprehend any judge would who would be likely to be appointed. I know that Mr. Justice Burbidge spoke French very well, having studied it after he became a judge, and Mr. Justice Cassels speaks French

very well. The judge of the Exchequer Court travels about from one place to another, and would be willing to go to any town or city where the parties lived to try the cases. The Exchequer Court would perhaps be the best court to which to give jurisdiction in the cases provided for under this treaty. If after practical experience it is found desirable to make a change, it can he made in the future. I trust that my hon. friend will not press for a change, but allow the section to go through as it is.


Charles Joseph Doherty: I do not wish to press unduly; but while section 132 of the British North America Act makes it clear that this parliament has power to pass any law to give effect in any province to any rights created under the treaty, it seems to me that in the exercise of that power we ought to try to interfere as little as possible with the rights of the provinces. This is a part of the administration of justice in the provinces, even though it results from a law that we pass. It is not the treaty that makes the law of Quebec what previously was not the law of Quebec, but it is in virtue of this enactment that it becomes law. Why depart from the application of the general rule that the administration of justice belongs to the province? As a matter of principle, it seems to me that we ought, under section 132 of the British North America Act, to confine ourselves to doing what it provides we shall do, that is, enact the laws which are necessary to give effect to these rights that we create, and then leave the administration of those laws to the provinces. It is not at all necessary, in order to give effect to these rights, that we should create a special court for this privileged class of plaintiffs. I accept the statement of the hon. member in regard to the two judges of the Exchequer Court speaking both languages; I do not want to make any personal observations about any judge, past or present; but I think lawyers front the province of Quebec will bear me out in saying that there have been cases in which it was the subject of serious complaint that before the tribunal mentioned the parties were not in a position to be heard in their own language. When you have an entirely organized system that meets a desire, and a not unreasonable desire, on the part of persons speaking a particular language to be given a court where their language would be official, a court which would without doubt be qualified to hear and understand testimony if it should be given in that language, it is at least remarkable that you should provide a court 'which may possibly be in a position where it would be necessary to interpret all this testimony. Moreover, the procedure in these cases will be governed by the Code of Civil Procedure in the province of Quebec. I see no provision to Mr. PUGSLEY.
the contrary in the Bill. It does seem to me that all these considerations ought to weigh against something which is a departure from general rules, and in support of which I have not heard any very substantial reasons. It seems to me that if we say to the foreigner, you shall have the .game recourse as any citizen of Canada, and have it before the same court, we shall be implementing our obligations under the treaty to the full, and leaving him in no doubt as to what court he should go before.


William Pugsley: This section was drafted by the Justice Department, and the matter does not seem to me to be Of sufficient importance to make a change in it.


Charles Joseph Doherty: Perhaps I might take the liberty of asking the Solicitor General whether these considerations which I have ventured to offer were thought of before this was enacted.


William Pugsley: It came from the Deputy Minister of Justice.


Charles Joseph Doherty: I do not know that it would be any reflection on the department to suggest that possibly these matters nad not been thought of, and it would be more satisfactory if when one has grounds for suggesting a change he should have the gratification of feeling that the author of the Act had given them some consideration. It is an unfortunate condition, when one urges reasons before the minister who is responsible for the Bill, to be told that this has been decided by somebody else who is not here to listen to you and to whom possibly these considerations did not occur.


John Graham Haggart: I would like to ask the minister whether the commission to be anpointed under this Act will [DOT]have any jurisdiction on the St. Lawrence from the boundary line at Cornwall down to Montreal?


William Pugsley: I think not. That is wholly in Canadian waters, and the commission is limited to boundary waters.


John Graham Haggart: Then we have the sole jurisdiction over the canal from the Georgian bay to Montreal, and the United States would not be entitled to the user?


William Pugsley: No.


John Graham Haggart: Although they have the right to navigate the St. Lawrence by treaty, that onlv applies from boundary waters to boundary waters?


William Pugsley: Perfectly correct.


John Dowsley Reid: This only gives power to navigate jointly as far as Cornwall?


William Pugsley: This treaty is confined to boundary waters.

On section 5,
The International Joint Commission, when appointed and constituted pursuant to the said treaty, shall have power, when holding joint sessions in Canada, to take evidence on oath and to compel the attendance of witnesses by application to a judge of a superior court of the province within which such session is held, and such judge is hereby authorized and directed to make all orders and issue all processes necessary and appropriate to that end.


Morley Currie: Is there provision made for the payment of fees to witnesses?


William Pugsley: Yes, these would be included in the expenses of the commission.
On section 6,
The Governor in Council may appropriate annually, out of the Consolidated Revenue Fund, a sum not exceeding seventy-five thousand dollars, toward the payment of the salaries of the commissioners to be appointed by His Majesty on the recommendation of the Governor in Council, as well as the salaries of the secretary and other officers and employees, and also all other expenses which may be incurred by such commissioners with the approval of the Minister of Public Works, together with one-half share of all reasonable and necessary joint expenses of the said commission incurred by it and, under the terms of the said treaty, required to be paid in equal moieties by the High Contracting Parties.


Morley Currie: It seems to me that we are doing many things which are not correct. Our salary list is subject every year to discussion in Committee of Supply, and we have no right to fix the salaries in. a Bill of this kind.


William Pugsley: In the case of the Board of Railway Commissioners, their salaries are fixed by statute. In appointing gentlemen to a very important position such as this, particularly when the treaty runs for a term of years they would naturally want to know what their salaries would be. I thought that parliament would prefer that a limit should be put on the salaries.


Morley Currie: This parliament has no right to bind another parliament. The principle that obtains in matters of that kind is for parliament from year to year to fix the expenditure.


William Pugsley: The judges' salaries are fixed by statute, and not by vote from year to year.	,


John Graham Haggart: It may be Teasonble to fix the judges' salaries, _ but it is a wrong principle to embody in a statute payments that ought to be voted by this House.
On section 7,
Each of the said commissioners who is appointed by His Majesty shall receive as compensation for his services an amount to be fixed by the Governor in Council but not in excess of the sum paid by the government of the United States to each of its commissioners, and not in any case to exceed the sum of seventy-five hundred dollars per annum. The secretary appointed by the Canadian section of the commission under the provisions of tile said treaty shall receive as compensation for his services a sum not exceeding three thousand dollars per annum.


Mr. JAMESON.: I think that these words, * not in excess of the sum paid by the government of the United States ' should be struck out. I can see no reason why the salaries of these commissioners should be governed by any allowances the United. States may make.- We ought to be able to determine ourselves what their services are worth, and we should pay what they are worth.


William Pugsley: In the appropriation Act passed at Washington, it is provided that the salaries to be paid the commissioners in the United States shall not be greater than those paid by the government of Canada. It is very desirable that both countries should pay the same salaries as these commissioners are sitting together and doing the same work. The idea is that the commissioners on both sides be paid the same salaries.


Morley Currie: When do the governments of the two countries get together to fix what the sum is to be?


William Pugsley: When this statute is passed, in the ordinary course we would get together and fix the salaries.


Morley Currie: Are the ministers going to have another mission to Washington to get that settled? I suppose it will be arranged that the Canadian Commissioner is to have the same bill of fare as the American.


George Perry Graham: Ought to have better.


Morley Currie: How would the Minister of Railways (Mr. Graham) like to have the same rule applied to his department? If it were applied he would be giving the chief of the management of the Intercolonial railway $50,000 a year.


George Perry Graham: That is a comparison of salaries, one paid by a private company and the other by a government road, but in this other case both are working for governments.


Morley Currie: That is a nice way to put it. It seems to- me that the governments take the position: * After you



S219 COMMONS

[Stage Direction]
my dear Alfonse,' ' After you my dear Gaston.' The result will be that you will have to have another Joint Commission to fix the salaries of these gentlemen. I think it is childish to put such a provision in a Bill dealing with an international question.
John Graham Haggart: This is a very serious innovation. The reason a statutory allowance is given the judges is to provide against their removal except by impeachment. If you could stop a judge's sakiry you would in effect dismiss him from office without impeaching him. But statutory allowances are only given to judges, railway commissioners and a few others who are appointed during good behaviour and cannot be removed except for good reason.


Mr. BUREAU.: What about the penitentiary officials. Their salaries are regulated by statute. You cannot exceed the amount mentioned in the statute.


John Graham Haggart: But their salaries as I understand, are voted every year. The principle applies only to parties who are removable by impeachment. The minister (Mr. Pugsley) refers to the United States. But the United States will never commit the folly of passing a statute fixing the salaries of these parties; they will vote the salaries every year. Why do not we do the same, so that the House of Commons can control them?


William Pugsley: I am willing to take the suggestion of my hon. friend from Digby (Mr. Jameson), and strike out the words ' but not in excess of the sum paid by the government of the United States.' I move that these words be struck out.


Clarence Jameson: Will the commissioners be expected to devote their whole time to the service of the commission?


William Pugsley: That has not yet been decided. My own opinion is that if they receive the maximum salary provided for in the section, they ought to devote their whole time to the work of the commission. Of course, it may be desirable to engage the services of some gentleman who might have other work to do, and who would be paid by the day or paid a smaller sum than that fixed by this Bill. But, in case the salary should be the same, or nearly the same as is provided in the Bill, I think they should give their whole time to the work of the commission.


Clarence Jameson: What are the salaries ' now paid to the commissioners?


William Pugsley: The chairman gets $50 a day, and the other commissioners $25 a day, for the time actually engaged in the work of the commission.


Morley Currie: 


Morley Currie: I think that the point raised by the hon. member for Lanark (Mr. Haggart) is well taken. The minister knows that there are two kinds of appointments under the Crown, one continuing as long as the appointee's conduct is proper. Such appointee is not removable except by impeachment, really at the bar of this House. But other appointments are during pleasure, and I understand that the salaries of these appointees simply appear in the Supply Bill. I do not think the principle here proposed should be embodied in legislation pertaining to a treaty. It is only for five years; it is not a life appointment. The whole thing could be adjusted without such an enactment. It involves a vicious principle.


John Graham Haggart: The amount is not fixed, and the Governor in Council is to fix it. But once he exercises that power I doubt very much if he can reduce it-it becomes a statutory enactment under which they are entitled to their pay.


William Pugsley: I think undoubtedly-that is so.
Amendment (Mr. Pugsley) agreed to, and section 7 as amended agreed to.


William Pugsley: Next we -come to the schedule and protocols. I think every hon. member has read this because it has been before parliament


John Dowsley Reid: Before that is taken up, I wish to move as section 8 the amendment which I submitted before.
Amendment negatived.
Bill reported, read the third time, and passed.



PENNY BANKS.

[Stage Direction]
Mr. FIELDING moved that the House go into Committee of the Whole to consider the following proposed resolution:
Resolved, that it is expedient to amend chapter 31, Revised Statutes, The Penny Bank Act, and by such amendment authorize the Minister of Finance to fijx and determine the rate of interest that shall be allowed and credited half-yearly on the amounts from time to time at the credit of the accounts of penny banks, incorporated under the provisions of that Act, in the government savings bank or post office savings bank, the rate so fixed and determined not to exceed one per centum in advance of the rate then payable to depositors in the government savings bank or post office savings bank.
He said: This resolution is to enable us to increase the allowance to Penny Banks by one-half per cent. Several public spirited gentlemen in Toronto, a few years ago, initiated a movement f.or the encouragement of thrift by establishing what is

called the Penny Bank. Since that time another bank of similar character has been established at Chicoutimi in the province of Quebec. All the money that is collected is placed in the government savings bank, except a very small amount as working capital which remains in the hands of the Penny Bank. We have been allowing them three and a half per cent, while they allow the depositors three per cent. In order to assist them with the expenses of management we propose to increase the allowance to one per cent above the savings bank rate instead of a half per cent. At present it represents an increased allowance of about $780 per annum. It is to help them with the expenses of management. At the beginning the expenses were borne by some public spirited citizens, but since then some of these have dropped off. As we think the movement is deserving of encouragement, we propose to give them one per cent instead of a half per cent.
Morley Currie: This work for the Penny Banks is done largely by the school teachers of the city of Toronto. They do not get anything for that work.


William Stevens Fielding: No, I do not think the school teachers get anything. Experience has shown that it is a very desirable thing. The gentlemen who are promoting it are public spirited citizens who put their own money into it to a considerable degree.


[Stage Direction]
Motion agreed to, and House went into Committee on the Resolution.
Resolution reported, read the second time and agreed to.
Mr. FIELDING moved for leave to introduce Bill (No. 221) to amend the Penny Bank Act.
Motion agreed to, Bill read the first and second time, considered in committee, reported, read the third time, and passed.

[Stage Direction]
Mr. FIELDING moved the second reading of Bill (No. 213) to amend the Bank Act. He said: This is a Bill which continues the bank charters for one year. The Schedule attached to the Bill includes the names not only of all'the banks that are actually engaged in business, but also includes the names of several banks which are going out of business, for the reason that, acting upon the advice of the Department of Justice, it has been thought well to include them all in the schedule for the coming year.
Haughton Lennox: Does this include banks which have actually failed?


William Stevens Fielding: It includes them only for the purpose of the,ir being dosed up. It does not give them any new powers.


Haughton Lennox: I understand it does include some banks which have actually failed.


William Stevens Fielding: It does include them for the purpose of their being wound up.


[Stage Direction]
Motion agreed to, Bill read the second time, and House went into committee thereon.
On section 2,
Charles Joseph Doherty: I notice that this Bill does not deal with the saving banks in Quebec.


William Stevens Fielding: I have a separate Bill in relation to those, which is now passing through the House, and I will be very happy to move it to-morrow.
On the preamble,


David Henderson: If the minister will agree to allow the third reading to stand over-I have no objection to this Bill, but I want an opportunity of reading it.


William Stevens Fielding: I am quite content to accept my hon. friend's suggestion.
Bill reported.



CANADIAN NORTHERN ONTARIO


[Stage Direction]
Bill (No. 211) respecting aid towards the construction of the Canadian Northern Ontario Railway-Mr. Graham-read the second time, and House went into committee thereon.
George Perry Graham: This Bill is identical with the resolution that we discussed the other day, and to which we made one amendment at the suggestion of the hon. leader of the opposition (Mr. Borden, Halifax). In a Bill of this kind there cannot be much diversion from the original resolution. I do not want to press it unduly, but it is identical in its terms with the resolution we passed the other day. If we could take a few minutes and uo through a portion of it, we would be able to give it to the Senate before they adjourn.


John Graham Haggart: The minister was to give some explanation of the securities on that part of the road from Montreal to the Niagara river.


George Perry Graham: My information is that they are allowed to issue $30,000 'a mile. With respect to the securities between Montreal and a point opposite Hawkesbury there was a subsidy voted by this parliament, but it has not as yet been paid or earned. There was a land grant asked for from the province of Quebec, and I think voted, but the time lapsed, and it will have to be voted again if they ever get it. The branches in Ontario that have

been acquired by the Canadian Northern will come under the second mortgage, but they will remain branch lines. That piece of road which will form part of the main line is to be reconstructed up to standard.


Morley Currie: This Bill has been advanced an important stage to-night and in the absence of the leader of the opposition, I move that the committee rise.


George Perry Graham: There is no need to move that. I said that if any one objected when we got to the second reading we would not proceed. It is an important Bill, but if we are going to get through as hon. gentlemen want, we will have to work hard, and sit late.


Morley Currie: We have been fourteen hours at it to-day, and the Minister of Labour is trying to get through an eight hour Bill.
Progress reported.
Mr. FIELDING moved the adjournment of the House.


Mr. PERLEY.: What business will be taken up at the next sitting?


William Stevens Fielding: The Canadian Northern Bill, the Railway Act, the resolutions respecting trade with Japan, and we would like to have the Grain Bill advanced a stage.


Morley Currie: Is that all, do you want the whole Order Paper?


William Stevens Fielding: I would not like to except anything on the Order Paper, but if we make reasonable progress with these Bills we would like to go into Committee of Supply for the purpose of voting items that are of an urgent character. Irrespective of the proportion of Supply which will be taken later, there are some items which apply to services for which the entire vote is needed at an early stage, and we expect to deal with these items to-morrow, if possible.


John Graham Haggart: What items?


William Stevens Fielding: We will select the urgent items from the various departments.


George Halsey Perley: Would the minister give the leader of the oppositon a list of these items?


William Stevens Fielding: I am now speaking only for to-morrow's business, and I think the programme I have mentioned ought to make a fair day's work.


Morley Currie: Is it the intention to continue Supply right along or is it the intention to conclude before Friday?


William Stevens Fielding: If all goes well, we will plan our programme with the hope of adjourning on Friday, though I cannot Mr. GRAHAM.
speak more definitely than that at present. We will ask votes for the whole year for the particular items which for reasons that will be explained, we think should, with advantage to the public service, be voted. Then, later, we will ask for the proportionate vote according to agreement. We hope to reach the Supply for the particular services I have mentioned to-morrow after the measures I have referred to are dealt with.


George Halsey Perley: I referred to the_ special votes which the government is desirous of obtaining for the whole' year, and I wish that a list of them should be sent to the leader of the opposition.


William Stevens Fielding: I will endeavour to see if we cannot arrange about that some time during the day to-morrow.


Morley Currie: A list of the Bills to be dealt with might also be furnished so that we will not waste the whole day with a Bill like we had to-day.


Some hon. MEMBERS: That is your fault.


William Stevens Fielding: The items I have mentioned will, I think, make a fair day's work for to-morrow, and some time during the day we will make a statement as to the balance of the business.


David Henderson: I hope the minister does not expect to get the Grain Bill through before adjournment.


William Stevens Fielding: We would like to.


David Henderson: It is a very important Bill.


William Stevens Fielding: Yes, but I was given to understand it was not controversial.


David Henderson: I remember attending eleven sittings on one Grain Act and I fear this will be the same.


William Stevens Fielding: It ought to be in perfect condition if so much time was spent over it.


David Henderson: This was years ago, about another Bill.


[Stage Direction]
Motion agreed to, and House adjourned at 1.05 a.m., Wednesday.
[Stage Direction]
Wednesday, May IT, 1911.