THE INTERNATIONAL WATERWAYS TREATY.
An Address by Sir George C. Gibbons, K.C., Chairman of the Canadian Section, at the annual Dinner of the Empire Club of Canada, Toronto, on April 6, 1911.
Mr. President and Gentlemen:
In the year 1904 the United States asked our Government to join in the appointing, of a joint Comthission -to be known as the International Waterways Commission--to deal with the matter of the use of boundary waters, to be composed of three Canadians and three Americans. Mr. Justice Mabee was the (first Chairman of the Canadian Section. He retired about a year after the formation of the Commission to take a seat upon the Bench, and I had the honour of succeeding him. Dr. King, Dominion Chief Astronomer, and Mr. Louis Coste, C.E., were the other Canadian members of this Commission. Mr. W. J. Stewart, of Ottawa, has since taken Dr. King's place. The American Section consisted of Brigadier-General Ernst of Washington, Mr. George Clinton of Buffalo, a leading lawyer and grandson of the celebrated Governor Clinton of that State, and Professor Wismer of Detroit, who had been connected with the Lake Survey and held important official positions in connection with the Federal Government. Mr. Wismer died, and his place was taken by Professor Haskell of Cornell University.
This Commission, as I have told you, was formed for the purpose of dealing with the boundary waters of that great lake system twelve hundred miles in length, extending from the Pigeon River on the north to where the St. Lawrence ceases to be an international boundary-the greatest inland water system in the world; a system upon which more shipping passes than upon any other system in the world; a system absolutely essential to the development of the great Northwest, both in the United States and Canada, and more particularly necessary to us. The wonderful advances that we have had in our Canadian Northwest would have been impossible if the grain had required to be carried to the sea by rail, as vessels can profitably carry freight for about one-fifth the cost of land transportation. The question of maintaining the level of this great system in its integrity is all-important. There were two pressing questions that lead the United States to suggest the formation of this Commission
First-The necessity of some arrangement between the two countries with regard to boundary waters which would prevent further injury to navigation interests. Diversions already authorized at Chicago had injuriously affected the lake level.
Second-The necessity of dealing with the diversion of surplus waters along the boundary which could be used for power purposes.
It is estimated that the capitalized value of the water power of this system would be at least $500,000,000, worth at least $25,000,000 a year, at $5 per horse power. Everywhere corporations were seeking to control these great public utilities. At Niagara Falls charters innumerable had been granted and were being applied for. On our side three companies had already commenced operation. Upon the American side two companies had commenced operation, and many other charters had been granted and more applied for. On our side we were equally zealous. One company sought to use the Chippewa River and carry the water to the escarpment at St. Davids. Another influential company sought to take water direct from Lake Erie and throw it over the escarpment at Jordan; 10,000 cubic feet per second was what this company wanted, which meant another five or six inches off the level of Lake Erie. These matters being pressing, the United States Government asked for the formation of this Commission. It was, as you will notice, composed of three Canadians and three Americans.
It was a permanent board to deal with all questions. It was essential, I think, that our representatives should be Canadian. I think it is important and in the interest of real Imperialism that Canada should do her own work as part of the Empire, and I think it is her own work to attend to her own affairs. I think it is most desirable in dealing with our neighbours, in matters relating to our special interest, that we should assume responsibility, and deal with them ourselves and not call upon the Mother Country to do so, and I think that we can do very much better for ourselves than anybody else can do for us.
I do not think the Americans will ever respect us if we do not attend to our own business. The Government of the Mother Country is and always will be handicapped in attempting to carry on the affairs of this country by reason of her great Imperial interests, and I think we understand the Americans better than the Mother Country representatives would. While self-respect demands in the first place that we should attend to our own business, by doing so we get not only better results, but I think we are also getting the greater respect of the Mother Country.
Now, there were more difficulties than perhaps would suggest themselves to you. You would say it was a very easy matter to get an equitable arrangement. It was not very difficult to get the Commission 2o agree that we should preserve navigation interests. The whole Lake Carriers' Association, representing $1,000,000,000 invested capital, were absolutely determined that there should be no further interference at Chicago or any place else with the integrity of the Lake levels-that the paramount right of the use of these waters was for the right of navigation--at Providence had placed this great system for the purposes of carrying shipping to the sea and they were just as insistent as we could be in saying to the people of Chicago: "You must stop, you must find some other way of carrying off your sewage other than taking the waters of Lake Michigan."
But the people of Chicago said: "What business have you Canadians with the waters of Lake Michigan, these waters are our waters, they are wholly within our State territory, what business has the Federal Government, much less you Canadians, with these waters?" We held our meeting in Chicago to hear what they had to say, and our answer to their question, "Why should you interfere with these waters?" was: "Lake Michigan cannot be separated from the rest of the Great Lakes System, you cannot divert the waters from Lake Michigan without interfering with the whole levels below--you have no right to take these waters to the injury of public interests in Canada or the United States"; and the Commission unanimously agreed to report that no further permit should be granted to ,the people of Chicago to take the waters of Lake Michigan for sewage purposes. That report was approved of by the Secretary of War of the United States, and further permission was refused.
The Commission agreed without much difficulty upon the general principle that navigation interests must be paramount and that no diversion for ,power, irrigation or sewage purposes should be permitted to the injury of that paramount right, but where it was possible (as in the rapids in the St. Mary River, at Niagara Falls and on the St. Lawrence) to develop power without injury to the interests of navigation, the important question arose as to how the surplus water so available was to be distributed as between the two countries. Was the proportion of water which flowed on each side to govern, and, if so, at what particular point was such proportion to be settled. There was no uniformity of flow. The proportions altered continually, although the water was the same. At the rapids in the St. Mary River at Sault Ste. Marie possibly sixty-five percent of the flow is upon the American side, while a mile above the International Bridge;the waters are about evenly divided. In the Niagara River at the Falls themselves possibly seven-eighths of the flow is upon the Canadian side, while a mile above the crest of the rapids the larger flow is upon the American side. In the St. Lawrence River at Barnhardt's Island itself possibly ninety percent of the flow is upon the American side. The Canadian Commissioners took their stand upon the principle of equal division everywhere.
One of the greatest difficulties of the Commission was to have fixed principles of international law agreed upon. The American Commissioners felt at first that they had not jurisdiction to settle general principles but were only authorized to deal with regard to specific cases referred to them. The Canadian members of the Commission felt that it was absolutely essential in our interests that definite principles should be agreed upon which would apply everywhere and be enforced by a permanent joint Board. International law is largely merely the opinion of text-writers which nations accept when such opinion is favourable and dispute when it does not accord with their interests. There is no principle of international law which permits one country to grant riparian rights in restriction of the rights of citizens of other countries; in other words, no country can, by grants to .its own citizens, control the right of the other country within its own territory to deal as it pleases with its own waters.
In the absence of some regulation there was nothing to prevent the United States or Canada yin the St. Mary River or in the Niagara or St. Lawrence Rivers, within their own territory, taking all the water they could get as long as they did not interfere with the public right of use for navigation purposes. It would never do, however, to have each country grabbing these waters to the injury of interests do the other, and it was absolutely essential, therefore, that international law should be made governing these conditions as between the United States and Canada, and the Commission finally succeeded in coming to an agreement as to boundary waters-fixing the order of precedence in which the same should be used as follows
(1) Domestic purposes.
(2) Uses for navigation, including navigation interests.
(3) Power and irrigation purposes.
And they further agreed on the principle that each nation was entitled to an equal division of all the surplus boundary waters available for power or irrigation purposes.
At Niagara Falls an exception was made, not because entitled to more than one-half-because I do not think we were, but the interests of navigation did not come into play at Niagara Falls. Nobody but a lunatic would attempt to navigate the river at that point--(laughter)--and, therefore, you could take all the river without interfering with navigation. The Americans were exceedingly anxious to preserve the scenic beauty, and we thought that pit would be exceedingly foolish to run foul of that feeling, at least until there was great necessity for our doing so--but as we could use more water at Niagara Falls without interfering with navigation than they could--it was agreed that we should take 36,000 cubic feet per second as against their 20,000. 36,000 cubic feet per second means 440,000 h.p., four times our present demand.
It would be exceedingly impolitic to consent that during the term of this Treaty-which is made for five years -(and continues until terminated by notice thereafter) there should be any further development, because on our side any further development in the meantime would mean further export to United States. Our Section of the Commission was very strongly of the view that no development for power purposes should hereafter be permitted in this country for export-that we should preserve the privilege of our own people for their own use-as if power is permitted to be exported at all, it will be found exceedingly difficult to get it back again when wanted. We have above Niagara Falls all the power that we will need for years, and there can be further larger development in the river below if necessary, If the time comes that what we now have, together with what is available below the Falls, will not suffice, it may be necessary for both countries to sacrifice Niagara Falls, but that question can be left to be decided when the necessity arises.
I am not going to go on dealing with all the details of the various matters. To attempt to deal with the whole work of the Commission would be impossible at a time like this. All that it had accomplished would have been unavailing without a Treaty giving effect to its recommendations. I had the honour to act with Mr. George Clinton of Buffalo in preparing the first draft of the Treaty. I am not going to attempt, nor would it be wise, or politic to discuss what occurred later at Washington. Negotiations were continued for a considerable time before an agreement could be reached so that the Treaty should give effect to the principles suggested in the reports of the Commission. We knew well that it was vital t4 our interests that this should be done and that if any attempt was made to deal with specific cases without this protection, it meant endless trouble everywhere along the boundary. Our view was that with principles once established and a permanent Commission appointed to apply them, all difficulties could be worked out satisfactorily and almost automatically, but if it was left open to any Commission to say what ought to be done here, or what ought to be done there, without rules of international law controlling its decisions, endless trouble would ensue and consequent friction of a most irritating character would result between the two countries. The insistent demands of wealthy corporations backed by local influence, would be a source of embarrassment to the authorities in each country, as it would be easy for these interests to inflame the passions of the people to serve their own ends. The Treaty as it finally passed, adopted in substance the principles suggested in the original draft. The first provision is, to my mind, of exceeding importance-under the Webster-Ashburton Treaty there is this provision, and it is the only provision dealing with the boundary from the head of Lake Superior to the St. Lawrence
Article VII.: "It is further agreed that the channels in the River St. Lawrence on both sides of the Long Sault Islands and of Barnhart Island; the channels in the River Detroit on both sides of the island Bois Blanc, and between that Island and both the American and Canadian shores; and all the several channels and passages between the various islands lying near the junction of the River St. Clair with the lake of that name; shall be equally free and open to the ships, vessels and boats of both countries."
These particular channels were the places where at that time it was essential that this privilege should be given so that the people of each country could have in the waters of the other the right to navigate. But navigation has changed entirely since then, and no provision had been made with regard to new channels since created and now essential to the use of these -waters. Since the Treaty of 1842 giving the special rights above referred to the channels in use have been greatly altered by artificial improvements, nearly entirely by the United States Government within their own territory, notably the Hay Lake Channel and the Neebish Channel in the St. Mary River near Sault Ste. Marie, whereby they have opened up a new line of travel eleven miles shorter and four feet deeper than that previously available and one which can be navigated at night with a reasonable degree of safety. The United Stares are now creating what is known as the New Livingstone Channel in the Detroit River and are proceeding to build a new lock at Sault Ste. Marie. By the, preliminary Article of the Treaty "boundary waters" are defined as:
"The waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, Including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary."
By Article 1 of the Treaty it is agreed:
"That the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels and boats of both countries equally."
It will be noticed that this provision is much broader and removes any doubt as to the right of each country with regard to the use of all boundary waters for the purposes of navigation. There is a further provision that during the term of the Treaty our vessels have the same right of navigation as vessels of the United States in Lake Michigan, that is to say, during the term of the Treaty the Union Jack can pass through the Straits of Mackinaw as freely as the Stars and Stripes. (Applause.) The Treaty adopts the principles suggested by the Commission and provides further that there can be no interference with the level on one side of the boundary by diversions or obstructions on the other without the consent of the International Joint Commission, so that there can be no dam in the St. Lawrence or elsewhere without the consent of the Commission, and without the consent as well of each Government within its own territory. The Treaty deals with streams crossing the international boundary and prevents obstruction in one country to the injury of private or public interests in the other. It also provides against the pollution of boundary waters and of streams crossing the boundary.
* * *
In dealing with diversions in one country of waters which in their natural course, would flow into the other, the Treaty adopts a new principle. While fully protecting public interests of navigation, it allows each country to permit diversions within its own territory, although the effect would be to injure private interests in the other country, but it makes special provision by which such private interests are as fully indemnified as if they were in the country where the diversion took place. It might be a very dangerous thing to say in any other country: "You shall not be able to make use of your wafers because some injury may .be done to private interests in the other country." Under this Treaty each country treats the citizens of the other just as it treats the citizens of its own, and all are fully protected. The result will, I think, be that you will find -that there will not be many such diversions. But -the most important provision in all the Treaty, in my opinion, is Article IX.:
"The thigh contracting parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred.
"The International Joint Commission is authorized in each ease so referred to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference.
"Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted, either on the facts or the law, and shall in no way have the character of an arbitral award.
"The Commission shall make a joint report to both Governments in all cases, in which all or a majority of the Commissioners agree, and in case of disagreement the minority may make a joint report to both Governments, or separate reports to their respective Governments.
"In case the Commission is evenly divided upon any question or matter referred to it for report, separate reports shall be made by the Commissioners on each side to their own Government."
The next article, No. X., provides that by consent of both countries the Commission shall act as a court of final judgment do all cases submitted to it by consent of both countries. I doubt if there is existing between any two countries so far-reaching a provision in the cause of peace as Article IX. of this treaty. Twenty years ago I had the honour of attending a Colonial dinner at London, England. Several eminent Canadians there spoke eloquently of their loyalty to the Mother Country, but unnecessarily, as I thought, made unfriendly references to the United States. Lord Knutsford, the then Colonial Secretary, replied, and after speaking of the responsibilities of the great Motherland at home and abroad, and her great colonial system, and of the menaces, then as real as now, thanked the Canadian speakers for what they had said, but added, with great solemnity, that he felt it his duty to say that the very best service a Canadian citizen could render to the Empire was to be rendered by assisting in removing all possibility of conflict between Great Britain and the United States.
All the members of the American Commission are capable, upright men, and have never sought to obtain any advantage over us. I think, moreover, the American statesmen generally are now honestly seeking to establish upon a permanent basis such friendly relations. At the Hague Tribunal the other day the Argentine Minister, one of the five Arbitrators, agreed with the American contention as to the limitation of our bays. Judge Gray, the United States representative on the Commmission, instead of joining in a minority report, joined with the majority in settling forever this vexed question against the interests of 'his own country, deeming it more important, no doubt, to have it finally settled than that dissatisfaction and irritation should result by doubt being cast upon the correctness of the decision.
Now you have President Taft proposing a treaty with Great Britain by which all manner of questions, even those involving honour and vital interest, shall be referred to arbitration. The statesmen of Great Britain, both sides of politics, have cheerfully intimated their willingness to enter into such an arrangement. If the statesmen of Great Britain, on whom the responsibility of Empire rests, find it politic and desirable to remove all possible chance of conflict, we assuredly can safely follow their lead. I think it is a fortunate thing for us and for the world that the leading statesmen of the United States, big men like the President, Mr. Taft, that very able man, the Honourable Elihu Root, Mr. Knox, the present Secretary of State, the Honourable Theodore Burton, Mr. Bacon, the former Secretary of State, -and the lame President Mr. Roosevelt, and others, are all working heartily towards the establishment of a Permanent Court at the Hague. It is proposed that all the nations who join in the formation of this Court shall agree to abide by its decrees themselves and to enforce them if necessary as against all the world by their armies and navies. I beg to prophesy to you that within five years such Court will be established, and that Great Britain and the United States 41 be the first to join in establishing it. Might I prophesy to you that before long Germany also will be forced to join the other nations in the most practical effort that ever has been made to ensure peace on earth.
It is said that this is Canada's century, but I tell you another thing, that it is the common people's century. General education, the press, cheap books, and consequently a well informed public have altered conditions. The peasant of Germany has no quarrel with the agricultural labourer in England, and he as well as the labouring classes generally, have learned that the burden of -war in the end must be borne by them. All the trades unions of Great Britain, France and Germany are in favour of peace, and those in Germany are going to say to their Emperor: "We can have no quarrel with England that a permanent Court cannot settle." But even if this Court is not established, and even if Germany is as great a menace as some think, that is all the more reason why we should not have another enemy in a great nation like the United States. With these two nations working in accord there is little to fear.
The Mother Country can and will maintain her supremacy on the sea. Our duty to her is to build up on the right foundation a country which its people shall love. The best and easiest way to make good Imperialists is to make good Canadians first. You can appeal to all classes of people in this country to join in building up a united Canada. If you make good -Canadians out of them, they will be good enough Imperialists in the end. If they love their own country, they will never give it up to join another. They will learn to love British institutions because they afford more liberty than is given under any other flag on earth, and because our laws are better and are better administered. I think the almost general consensus of opinion in Canada now is that we have evolved into what was essential-a position of practical independence--while retaining what we all desire to retain the position of a sister nation within the Empire owing allegiance to A common King.