Page images
PDF
EPUB

be analogous to that of an ejectment or trespass suit in which the locus in quo, though completely covered by one building. consists of two pieces of land, the titles to which are derived from two different sources. We have therefore in this supposed case practically the case before us. What is for all practical purposes one continuous dam across the river is approved of in two sections on the one application.

The few supposititious cases following, taken from a number which suggest themselves, will further illustrate the absurdity which would result from the acceptance of the construction which the first objection calls for:

1. A vessel sinks in boundary waters, is abandoned, and lies on the bottom across the boundary line. If the objection is well founded the Commission has no jurisdiction over the whole or any portion of the vessel, as the vessel is an obstruction situate in and affecting the flow on both sides. of the boundary line.

2. Two wing dams, such as I have supposed, are built in a boundary stream. They extend to and meet in the centre but have no organic connection or community of object, or purpose. There is necessarily a seam between the two. We unquestionably have jurisdiction over each dam. Why should we not have jurisdiction over the work if the piers were structurally or organically connected? The only difference is that in the one case there might be a leak or flow of water through the dam which would not exist in the other. Surely it could not be seriously contended that it would be necessary to invoke the sovereign powers of Great Britain. and the United States to stop the leak.

3. A bridge of solid crib work is built across a boundary river. Such a structure, if the objection is good, is not within our jurisdiction, but if a waterway however narrow, is cut through it on the boundary line the remaining portions are thereby brought within the jurisdiction of the Commission.

4. A pier which permits the passage of water on either side and interferes with the level and flow on both sides, is erected on the dividing line of a boundary river. If the objection is well taken, we would not have jurisdiction, but if the pier should be displaced so that it became contiguous to the boundary line, but wholly on one side of it. it would require our approval.

5. An embankment is constructed from the Canadian side to the boundary line of the river, but no farther; it is certainly within our jurisdiction. But if the owner desires to place himself outside of our jurisdiction, he need only, if such objection is well taken, extend his work an appreciable distance on the other side of the boundary line, and his purpose is accomplished.

The argumentum ad absurdum might be pushed even further. The language of Article III. of the Treaty with respect to obstructions is "on either side of the line," and the language with respect to disturbances of level and flow is "on the other side of the line."

If the words "on either side of the line" when applied to obstructions exclude an obstruction which is part of a structure extending to the other side of the line, why should the words "on the other side of the line" when applied to a disturbance of the level or flow of the water not be confined to cases where the disturbance is exclusively on the other side of the line? There is no conceivable reason why the limitation of the words should not be made in the case of disturbances or effects, if it is made in the case of the obstructions or causes. As a matter of fact, obstructions on one side affecting the level or flow on the other side of a stream unavoidably affect the level or flow on the same side of the stream, and if this limitation is made, the result would be that the Commission would have no jurisdiction at all in respect to obstructions of the level or flow of streams.

So multitudinous are the absurd results which would flow from this construction were it adopted, that the Treaty, which is a wise and statesmanlike contrivance admirably designed to afford a simple, inexpensive and expeditious means of adjusting disputes which might engender illfeeling between the two countries, would become, to use the quotation made by Lord Denman in the celebrated O'Connell case, "a mockery, a delusion and a snare."

It was also argued before the Commission that we have no jurisdiction since the applicant had not obtained authority from Canada to build the dam across the river, or even in Canadian waters. The answer to this argument is three-fold. In the first place, this objection, íf valid, would only extend to that portion of the dam situated in Canadian waters, and not affect our jurisdiction so far as the portion in the United States waters is concerned. It was suggested that to

authorize only half or some other fractional portion of the dam would be an act of folly never contemplated by the Treaty. If it be conceded that such an authorization would be an act of folly, it can not reasonably be argued that this "folly" in the applicant's case would deprive the Commission of the jurisdiction to adjudicate upon it, however certain it might be that we would decide against the application. In the second place, the authority of Canada is not (as will appear by reference to Article III.) a condition precedent to jurisdiction; it is only a requirement to be observed before the work is completely legalized, and could be obtained either before or after the giving of our approval. Prudent applicants in ordinary cases would obtain such authority before applying to the Commission, and the Commission might require that such authority be first obtained. The Commission might also follow the course frequently pursued by Courts of Equity in analogous cases and make its approval conditional on the applicant's receiving such authority. However much the absence of such authority should influence the Commission in refusing to exercise its power it cannot denude the Commission of its jurisdiction. In the third place it is scarcely open to those opposing the application to say that Canada has not authorized the work when they are putting forward as a separate contention the claim that Canada has authorized the work and that the authorization goes to the extent of a "special agree

ment."

It was also argued before the Commission that inasmuch as the proposed dam stretches across the whole Kettle River, the United States and Canada respectively would, even in giving authority under Article III. for the construction of the portions of such work situate in their respective territories, necessarily assent to and give authority for the construction of the work as a whole; that all international questions respecting it would be settled by the giving of such authority by each; and that the dam would not be within the jurisdiction of the Commission. There is a subtle fallacy lurking in this contention which comes to the front when Article III. is construed in connection with Article XIII.

Taking these sections together, the situation with respect to the authority necessary to erect obstructions in boundary. waters may be stated in three propositions:

1. By the second paragraph of Article III. either country has absolute authority to erect wholly in the waters on its own side of the boundary certain structures connected with commerce and navigation, provided they do not affect the flow or level of the waters on the other side of the boundary line.

2. By the first paragraph of Article III. either contracting party has authority to permit any obstruction whatever to be erected in the waters on its own side of the boundary line which so affects the waters on the other side of the boundary line; but such authority is not absolute; it 1 conditional on the approval by the Commission of the obstruction.

3. By Article XIII. and the first paragraph of Article III. the High Contracting Parties have power to take any obstruction falling within No. 2 out of the jurisdiction of the Commission, and have absolute authority by a "special agreement" between them to legalize the obstruction, but this "special agreement" must be either a "direct agreement" or a "mutual arrangement" as provided in Article XIII.

It would be a difficult task to define the expression, "by authority of the United States or of the Dominion of Canada" used in Article III. Fortunately it is unnecessary to do so, for this much is clear, the "authority" spoken of in that Article is not the authority which takes an obstruction out of the jurisdiction of the Commission. This last, is the "special agreement" referred to in Article XIII., and is derived either from a "direct agreement" between the High Contracting Parties, or from a "mutual agreement" between them, expressed by legislation as provided in that Article.

So careful is the treaty in safeguarding the jurisdiction of the Commission that unless and until the requirements of a "special agreement" are observed in any "authority" purporting to be given by Canada and the United States, individually or jointly, that "authority" must be taken as given subject to the approval of the Commission. Such "authority" is tantamount to the authority which would be given by either country or both countries by saying "we are perfectly willing that the proposed work should be done and we authorize it to be done, provided the Commission, which has been constituted for the very purpose of considering such matters, approves of its construction." The High Contracting Parties however, have not finally abdicated their powers, and if they

think investigation by the Commission is not necessary, or for any other reason they see fit to take a matter out of the jurisdiction of the Commission and themselves give authority to construct the wok they can do so; but this authority must, by Articles III. and XIII. be given in and evidenced by a "special agreement," and a "special agreement” only, such as therein provided.

No person who appeared before the Commission had the temerity to argue that there was any "direct agreement" between the High Contracting Parties. Reliance was placed upon the existence of a "mutual arrangement." As this "mutual arrangement" must necessarily be discussed in treating of the second objection, I will pass on to the consideration of that objection.

Objection No. 2 rests upon Articles III. and XIII. of the Treaty, upon a Statute of Canada, and a Statute of the United States.

Article XIII. of the Treaty reads as follows:

"In all cases where special agreements between the High Contracting Parties hereto are referred to in the foregoing articles, such agreements are understood and intended to include not only direct agreements between the High Contracting Parties, but also any mutual arrangement between the United States and the Dominion of Canada expressed by concurrent or reciprocal legislation on the part of Congress and the Parliament of the Dominion."

The Dominion Statute is as follows:

"Whereas the Ontario and Minnesota Power Company, Limited, has by its petition represented that it was incorporated by Letters Patent under the Great Seal of the Province of Ontario dated the thirteenth day of January, one thousand nine hundred and five, under "The Ontario Companies Act," being Chapter 191 of the Revised Statutes of Ontario, 1897; and whereas the said Company has prayed that it be enacted as hereinaftter set forth, and it is expedient to grant the prayer of the said petition: Therefore His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. The Company may construct, develop, acquire, own, use and operate the water power now or hereafter existing on the Rainy River, in the Province of Ontario, and construct, develop, operate and maintain works, canals, raceways, water-courses, dams, piers, booms, dykes, sluices, conduits

« PreviousContinue »