May 7, 1909

CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

I accept the hon. gentleman's statement. I stated what was

5961 MAY 7, 1909 5962

contained in the memorandum furnished to me. Mr. CONMEE. Is it not a fact that that company had a contract with the Ontario Niagara Park Commission which is an international commission, and which might give them some authority which no other company could obtain except at Niagara Falls? Mr. LENNOX. I do not know as to that. I understand that under the powers obtained from the local legislature they are exporting power. I have no instructions as to the statement made by the hon. gentleman. Now, there is objection entered to this company being granted expropriation powers over lands which the Ontario government have reserved along the Nipigon river. The Prime Minister will remember that the Bill has been cut down in its scope so that so far as the Nipigon river is concerned they only ask expropriation powers for the purpose of erecting transmission wires. They have abandoned as I understand the provision enabling them to generate power along the river. Mr. CONMEE. In so far as this Bill is concerned they have abandoned any power of expropriation with regard to the Nipigon river or with respect to any of the lands to which reference is made. The transmission lines would not touch the reserve; the company do not mean a transmission line in that sense. If they submitted plans for any such line they would not be approved and there is no danger of a clash between the company and the provincial authorities in that respect. Mr. LENNOX. It would seem as if there was necessity for guarding against the granting of the power asked, and subsection 5 of section 15 it is suggested should be in this form: The expropriation powers hereby conferred upon the company shall not be exercised by it until the plans mentioned in section 18 of this Act shall have received the approval therein provided for, and with respect to any lands upon the Nipigon river shall not be exercised except as to such land as may be required for the purpose of these transmission lines. The section of the Bill as now proposed does not exclude the lands reserved by the government of Ontario, and so, if it is thought advisable to pass this Bill at all -and I am going to leave the responsibility for its passage upon the Prime Minister-it will be necessary to word that section in such a way as to place it beyond doubt that we do not intend in this parliament to grant power by which one government shall vest in a private individual the right to expropriate the lands of another government in the Dominion of Canada. If my hon. friend (Mr. Conmee) is content now to have it worded in such a way as to remove this objection there will be no necessity for referring to that point further. Mr. CONMEE. I would be quite prepared to exclude the chain reserve to which the hon. gentleman makes reference. The clause was drawn up by Mr. Ritchie of this city who I believe to be a very careful lawyer, and I also spoke to the Minister of Justice about that point, and there is no power in the Bill to take land along the river. At all events that is not the intention. The provision is that the transmission wires may come to the Nipigon river but there is no intention of going on to the chain reserve. Mr. LENNOX. If my hon. friend does not want to consent we will have to argue it. To my mind this clause, without question, allows expropriation for the purpose of erecting poles anywhere along the Nipigon river. The expression 'lands upon the Nipigon river ' means land adjoining that river, and the right would be exercisable upon that chain, or two chains in some oases, which the government has reserved. We will strenuously oppose anything which will give the right of expropriating on the reserve of the Ontario government. Mr. CONMEE. Will it satisfy the hon. gentleman to state: But not within the one-chain or two-chain reserve along the said river. Mr. LENNOX. What will satisfy us is anything that will make it clear that we are not interfering in any way with the lands owned or reserved by the province. Mr. CONMEE. My hon. friend is speaking of the chain reserve only. Mr. LENNOX. I am not speaking of anything technical. What we contend is, that it will be very unwise and very unfair to grant to a private speculative company the right to take by force land belonging to or reserved by a province. The province of Ontario or the province of Manitoba or any other province represents the Crown just as effectually and fully in its sphere as the Dominion parliament, and it would surely be a most unseemly thing if this parliament should, at the instance of a private speculative company, wrest the rights of a province from it against the will of that province. This is the right of eminent domain, which rests in the Crown. For the purposes of this parliament it rests in this parliament. For matters under the jurisdiction of the province of Ontario it rests in the Ontario government. Should it happen that the federal head will, at the instance of an individual, grant to that

individual that eminent domain which the province desires to retain for itself ? In 'that paragraph there is another clause to Which I wish to call the Prime Minister's attention, as to the formal policy of the Ontario government with reference to the development of power. This clause is concluded in these words :

The province desires to retain this river in its integrity for purposes of its own.

When it says for purposes of its own, it has made it manifest by its action that these are for the purposes of the people of the province of Ontario, by lightening the taxes on them. They have entered on that policy vigorously, and have brought it already into successful operation.

It forms an important factor in the general policy of the government of the province of Ontario in connection with the generation of electrical power, and the parliament of Canada should not, it is submitted, interfere with it.

I think I am right in saying that the First Minister .was impressed in the very early discussion of this Bill with the importance of that aspect of the case, and I hope that as the discussion has gone on, it has not served to eliminate that impression from his mind, but that he has become more impressed with the importance of letting not only the province of Ontario but all the provinces act on the line, of developing as far as possible all the resources within their control for the benefit of their people. There is no doubt in any part of Canada about the wisdom of the policy the Ontario government has so successfully initiated in this regard. Probably a brief expression from the Prime Minister might facilitate dealing with this Bill in whatever way it is to be dealt with. I will, if necessary, call the attention of the Prime Minister later to other matters that arise in connection with the Waterways and Boundary Commission. That commission a few years ago dealt with a matter very similar to the one now before us. A company called the Minnesota Canal and Power Company, or having a similar name, applied a few years ago for powers in connection with the waters that flow into the Rainy river, the Lake of the Woods and on to the Hudson bay. The matter of diverting those waters southward and emptying them into Lake Superior at Duluth has been taken up by that commission and referred to this government. That matter has not been settled, but as far as it has gone I understand that the government and the commission have recognized that it rests upon certain treaty rights defined and governed by. the Webs-ter-Ashburton treaty, and neither the parliament of Canada nor the parliament of the United States, but the Waterways Commission, ought to deal with it in the first instance, and that until a satisfactory Mr. LENNOX.

arrangement has been come to between the two governments, no private right should be granted. I need not dwell on that aspect of the case; probably the Prime Minister is familiar with it.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

What is its connection with this question?

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

In that case the Minnesota Power and Canal Company applied to the United States legislature to grant them the power to dam up the waters of certain lakes, so that instead of allowing them to flow into the Rainy river and its tributaries, contributing to the volume of water flowing into the Lake of the Woods, the government of the United States represented that they should not be allowed to do so, because by reason of treaty rights between the Canadian government and the United States, those rivers oh that chain of lakes were made an international boundary, and neither the Dominion of Canada nor the province of Ontario alone had successful jurisdiction over the matter, and so it has been left in abeyance. In the same way, in the case of the Pigeon river, which is a part of the same chain of boundary waters, this parliament should not attempt to deal with the matters as a private matter at all. These rights between the two countries should be ascertained and defined, either directly or through the commission to which I have referred, before we grant any rights to private companies.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

I do not see any parity at all between the case in hand and the case to which my hon. friend has alluded. He states rightly that a certain company has obtained permission from the state of Minnesota to divert some waters which flow into the Rainy river, and cause them to flow into Lake Superior at Duluth. These are altogether within the state of Minnesota. But the commission to which my hon. friend has referred has objected to this as being contrary to the provisions of the Webster-Ashburton treaty. In this case power is sought simply to develop water power on the Pigeon river. It is admitted on all sides that this power could not be exercised unless there were concurrent legislation on the other side of the river, either by Minnesota or by the United States; and therefore the exercise of this power would be on/ a parity with the exercise of the power of which my hon. friend has just spoken, which according to the Waterways Commission, could not be exercised except by the joint authority of Canada and the United States. But I think it would bg well in this matter to proceed regularly, and decide whether the preamble of this Bill should be accepted or not. This involves a question of jurisdiction, and I shall say no morel on that

point. It is a vexed one and probably will have to be settled finally by judicial authority. My hon. colleague, the Minister of Justice, has given his opinion that this parliament alone has the power to incorporate this Bill and therefore, so far as this parliament is concerned, I take that view and accept it. Later on, if thought advisable, it may be finally tested by judicial authority. I think therefore we should adopt the preamble of the Bill. Then we come to the real point of contention, which is the expropriation power. To some extent, I sympathize with the view taken by my hon. friend, but would not express any opinion on it.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

My right hon. friend thinks that this parliament has exclusive jurisdiction, and I presume he means that opinion to apply to the Pigeon river. I understand that he does not claim that we have jurisdiction over the Nipigon river.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

In my opinion the jurisdiction of this parliament arises from the fact that this is an international waterway.

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Mr. A. C. MACDONELL .@

I cannot agree to let the preamble go without putting myself on record as opposed to it. The last time this Bill came before this committee, its discussion was adjourned for the purpose of ascertaining the views of the government of Ontario. We now have the opinion of that government, which my hon. friend from Simcoe (Mr. Lennox) has read, and that opinion is distinctly against legislation by this House. It may be that there is concurrent jurisdiction, but that would be no reason why this House should, against the express wish of the province, grant this legislation. Even if the matter be one under Dominion control, and with which the province has nothing to do, would it be wise and proper for us to pass this Bill? Suppose the powers are confined to the Pigeon river, which is an international waterway, and suppose that this government has the sole right to grant the power to generate electricity^ on that river, would it be proper for this parliament to give to private promoters the right to generate and dispose of this electricity without any compensation or regulation? Surely we ought to be consistent, if nothing else. As recently as the present year, this government became a party to the North America Conservation Conference, composed of representatives from Canada, the United States, and I think also Mexico, the object of which was to consider the best means of conserving the natural resources of this continent. That conference met at Washington and was attended by no less than two representatives of this government, the Minister of Agriculture (Mr. Fisher) and the hon. member

for Brandon (Mr. Sifton), who signed their names to the report of that conference. I find that report in sessional paper No. 9 of this year, and in that report, I find this paragraph:

We regard the monopoly of waters, especially of water-powers, as peculiarly threatening. No rights to the use of water-powers and streams should hereafter be granted in perpetuity. Each grant should he conditioned upon prompt development, continued beneficial use, and the payment of proper compensation to the public for the rights enjoyed, and should be for a definite period only, such period should be no longer than is required for reasonable safety of investment. The public authorities should retain the right to readjust at stated periods the compensation to the public and to regulate the rates charged, to the end that undue profit or extortion may be prevented.

That was assented to only within a month or two, and is signed by the hon. Minister of Agriculture (Mr. Fisher) and the hon. member for Brandon (Mr. Sifton), representing this government. Yet in open defiance of almost every line of that paragraph, this government, even assuming it is right on the question of jurisdiction- proposes to hand over one of our international water-powers to private parties for their own private gain. Surely some weight should be attached to that report. Admitting that the jurisdiction is here, is it wise or just, in the interests of the people of this country, to pass this Bill? If we expect our neighbours to live up to the terms of this arrangement, it is only just to all concerned that this government should not commit breaches of it. The protest of the premier of Ontario is very explicit. It is to the effect that there should be no entering upon the public land of the province. It states that the Ontario government has a policy with regard to this particular Nipigon river, that it has reserved, in some places one and in some places two, chains along both banks its entire length, but that power cannot be exercised if this company be given the right to place its works across the public domain of that province. What we ask is that nothing should be done, but that this Bill should be relegated to the proper tribunal, which is the province of Ontario:. As regards the right hon. gentleman's statement about the necessity of obtaining legislation from the State of Minnesota, short of treaty obligations- and I assume the right hon. gentleman has in his mind the recent treaty regarding international waterways-there is no necessity to go to the State of Minnesota or United States authorities of any kind to create works on this side of the river so long as they do not interfere with the extent of water flowing through it. When the Niagara river was exploited in the

early nineties by the Ontario government, which was done under the authority of the province of Ontario, they did not necessarily go to the State of New York, but used the waters on the Canadian side. In like manner, if this company should obtain the charter it asks, it will be able, unless it contravenes the provisions of a treaty which we have not the opportunity of discussing in this House, to utilize these waters and be under no necessity to go to the State of Minnesota for legislation.

They can do what the earlier Ontario companies did on the Canadian side of the riveT at Niagara Palls. There are two main questions involved here. The first is that the province of Ontario, which has the rights in this matter, has been given an opportunity of expressing its views; those views have been expressed, and I submit they should be listened to by this House. In the second place, the province of Ontario is the only province that is interested, and this government should not, in open defiance of the articles it has subscribed to in the conservation conference and of public opinion, give this power to these private parties.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

I have only a word to add to what I said the other day. I appreciate what the Prime Minister (Sir Wilfrid Laurier) say; about there being a jursdiction in the Dominion of Canada in international waters. But I submit- and I am confirmed in my opinion since I stated it the other day-that this jurisdiction is a limited one. The question now before us does not invoke that jurisdiction.. So far as the plea that this is a navigable stream is concerned, it is not necessary to come to this House. I understand the Prime Minister does not dissent from that. His point is that this is an international river, and, therefore, there is jurisdiction in this parliament. I admit that jurisdiction, with the limit I have stated, but I contend that it must be used sensibly and properly for the purposes for which the Dominion needs to exercise that jurisdiction internationally. A mere matter of commerce, the establishment of a corporation, is not an international matter per se. It= works, of course, may become international or may not. But merely because that company is to be instituted on the shores, or even over the waters up to the boundary line, of an international stream does not call for the interference of the Dominion. Only as you bring in some attributes of a really international character is there any need to assert this jurisdiction relating to international affairs. It is said here that the state of Minnesota can give all the jurisdiction on the other side. In the same v ay the province could give it on our side. The 3tate and the province own the land up to the international boundary

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Mr. A. C. MACDONELL .@

which, I assume in this case, runs along the centre of the stream. I do not know whether that point is conceded, but I do not see how it can be denied. As we are seeking to incorporate a company that the province could incorporate; we are interfering with provincial rights. So, while there is undoubtedly a jurisdiction in the Dominion parliament

and I want to be quite clear about that in view of what the Prime Minister has said-it is a jurisdiction requiring to be exercised only for international purposes, and is not intended to exclude the jurisdiction of the province as owners of the land. There is nothing asked for in this charter that the province of Ontario cannot grant. I speak from local knowledge of one living near the Niagara river and knowing of the operations of the Canadian Niagara Power Company which is doing all that this Bill proposes to authorize this company to do, and carrying on a successful business wholly under provincial charter. It seems to me we ought not to interfere. In full view of the reasons given by the promoters of this Bill, or suggested by the Prime Minister, I am confirmed in my opinion that my duty is to vote against the preamble.

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CON

Samuel Simpson Sharpe

Conservative (1867-1942)

Mr. SAMUEL SHARPE.

There are two objections to this Bill, even admitting that the Dominion has jurisdiction. The first is that we are alienating a valuable public asset to a private company in perpetuity without providing for any compensation. The second is that, as I understand the hon. member for Thunder Bay and Rainy River (Mr. Conmee), he wishes to construct a dam across a navigable stream and so to impede navigation. For these reasons I purpose voting against the preamble of the Bill. I think also that the administration should give due weight and grave consideration to the communication received from the province of Ontario. I think the province of Ontario has a broad, comprehensive policy in connection with the conservation of natural resources and the development of water-powers, and I do not think this parliament should interfere with the carrying out of that policy. Under the circumstances, I consider it my duty not to give a silent vote, but to place myself on record on this subject.

On section 8,

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

What is the meaning of this phrase in paragraph (a) 'By any means of application?'

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LIB

James Conmee

Liberal

Mr. CONMEE.

It means that they may operate their mills by cable or electrical power or water or compressed air or any other means by which power can be applied. There may be new inventions that we know nothing of just now.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

They do not come in at the right place. If these words were in

connection with 'acquire, develop and improve,' if they were confined to operating water-powers, then ' by any means of application' would have some sense. But when they follow 'supply and sell water-power for any purpose' they are not in their proper place.

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LIB

James Conmee

Liberal

Mr. CONMEE.

The hon. gentleman does not know what means of operation may be employed.

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Mr. A. C. MACDONELL .@

I do not think we should allow such ample power to export. Subsection (a) provides that the company may supply and sell electrical energy for use in any manner at any place in Canada or the United States. That means any mode of dealing with it at all, as to the amount, or terms, or otherwise. I do not think we should allow this company to deprive us of our natural heritage by giving them power to make an unlimited sale in the United States.

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LIB

James Conmee

Liberal

Mr. CONMEE.

By an amendment, power to expropriate electricity is taken away except under the Electrical Expropriation Act.

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Mr. A. C. MACDONELL .@

I am aware that the electrical Exportation Act is intended to apply to the operation of this c;ompa(ny. But where you give express powers to do something, as you do here, you override an Act of general application. I do not think this general and unlimited power should be permitted to the company.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

These words were put in at a time when we were giving much larger powers than we propose to give now, and they are inconsistent with the limited power that is afterwards given under the amendments now proposed. The present . proposition is that this company shall be controlled by the Electricity and Fluid Expropriation Act. That defines the manner, and this is inconsistent with it.

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LIB

James Conmee

Liberal

Mr. CONMEE.

What words would the hon. member strike out?

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

'Supply and sell the same for use in any manner at,' I would strike out the words ' in any manner.'

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May 7, 1909