May 31, 1921

L LIB
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

There is an agreement to the effect that the right to control the flow shall cease on thirty days' notice, and it was because of that agreement that there

was at first a great deal of fear regarding the Winnipeg interest question. It was thought that the owners of the dam could give thirty days' notice and do away with control rights. In my judgment, that Is not correct. The Ontario Government, irrespective of that agreement, had its statutory rights over that dam, and recently, as cited by the last speaker, when the lease was given to Mr. Backus on the White Dog, a clause was inserted to give the Ontario Government, for all time to come, the control of the flow, not only at the White Dog rapids, but at the Norman dam. To prove my contention that, even with that agreement for the thirty days' notice, the Ontario Government's rights are not ousted, I would call the attention of hon. members, especially of legal gentlemen, to the River and Streams Act of Ontario. There are two Acts in Ontario that affect this question so far as that province wholly is concerned. One is the Rivers and Streams Act, chapter 130, scetion 27, which gives power of regulating the use of waters by owners of power, and also by owners of timber leases; and that is irrespective of the agreement I have mentioned. Then there is another Act, passed the following year, the Rivers and Streams Act, chapter 15 of George V. Section 7 reads:

Where improvements have heretofore been constructed under The Timber Slide Companies Act, or under the authority of any other general or special Act, or it is proposed to construct further improvements upon any river, and the minister deems that it is expedient in the public interest that the U9e of the water of the river should be regulated so that all persons entitled

Section 8 reads:

Where it appears expedient in the public interest, or where any conflict or dilspute arises between persons having a right to use the river or any works, or other improvements thereon, for lumbering or other purposes, the minister may appoint an officer or officers with such powers and duties as may be deemed1 expedient to be in charge of the river or improvements or other works, who shall have power to regulate the use of the river, or any works or improvements thereon in such a manner as shall seem beat calculated to afford (to persons having diverse interests on the river or in the works or improvements, a fair and reasonable use of the waters of the rivers.

And here is an important proviso:

Provided that where any alteration of the level of international boundary waters is involved, such regulation, powers and duties shall oonfonm to any order or recommendation Which

the International Joint Commission may make under the terms and authority of the International Boundary Waters Treaty between Great Britain and the United States.

So that, so far as Ontario is concerned, that province has endeavoured to legislate to give authority, through her proper officials, to regulate the waters at tbis point.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Arthur Meighen (Prime Minister; Secretary of State for External Affairs)

Unionist

Mr. MEIGHEN:

The hon. gentleman

may not know that the clause he has just read has been deemed ultra vires by the Attorney General of Ontario.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

I understood that the Attorney General of Ontario, prior to the difference between the two provinces, did take the ground that this section did not give the authority which it was heretofore always supposed to have been given. That was his obiter dictum on the matter, but lawyers differ from the Attorney General of Ontario on this, as on many other questions.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Arthur Meighen (Prime Minister; Secretary of State for External Affairs)

Unionist

Mr. MEIGHEN:

Does the hon. gentleman differ from him on the question?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

I think, under that Act, the province of Ontario has power to make an order, with regard to any dam that affects international waters, comply with any International Joint Commission's report.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Arthur Meighen (Prime Minister; Secretary of State for External Affairs)

Unionist

Mr. MEIGHEN:

Is that Act itself intra vires?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

In so far as it does not conflict with navigable waters. It cannot divest the Federal Government of its jurisdiction over international waters, nor can the Federal Government, under the guise of navigation, attempt to divest the Ontario Government of its jurisdiction over its own waters, and. that has been the complaint of my people up to the present time in this matter.

Now, as to the history of the matter, there has never been any difficulty in regard to regulations up to date. The International Commission was requested to look into the whole problem and make a report, and that report has been referred to. I differ from the right hon. the Prime Minister in regard to what he has been instructed was intended by the commission in their report. I may be wrong, hut he gave me the impression that the commission, in their report, stated that for the purposes of navigation the regulation of the dependable flow was necessary within the figures he gave.

Now the International report, at page 71, reads as follows:

The primary object of the recommended supervision and eontrol would be to protect the Interests of riparian owners in both countries during seasons of excessive flood inflow Into the reservoirs and to protect the interests of navigation against loss and damage due to excessive draft upon the stored water toward the end of a series of dry years, while at the same time permitting the advantageous use of the waters flowing from the reservoirs for power purposes;

That is the important part I think we should note.

Leaving to the owners of all dams and other works in these waters the right, subject to the limitations of the proposed International control, to use the same under their respective local Governmental jurisdiction for the purposes for which they were intended.

The International Joint Commission never intended in any way that its findings were to have any influence upon the manipulation of the waters within the area where the local rights were to be maintained. Only when the situation got to a dangerous point was the commission to step in. Might I point out that if we could once get this report adopted by the United States in treaty form, then undoubtedly this question would solve itself and the only legislation necessary by this Government would be that for the purpose of implementing the treaty. In the meantime I think we are getting the cart before the horse. We are only creating the impression that we are going-under that report which has not yet been accepted by the United States-to take the high water which we have no right to do. We have no legal right to that to-day. It is against the interests of the riparian owners of the United States and for the sole benefit of Canada, and I hardly think we are acting in a wise way to get confirmation of the agreement by the United States.

The trouble in this whole problem has been over the term " dependable flow". It is not a question of control; everybody wants control. There must be control, and there should be control, and my people of Kenora want control. They are afraid now, owing to the course that has been pursued by Dominion Government officials in never consulting them and only consulting the Manitoba interests, to leave that control in the hands of those officials. They want Government control. But they want control by the Ontario Government as well as by the Dominion-that is the situation so far as they are concerned.

So let no one say that anybody opposes control.

Now then what else? It appears that the name of Backus is thrown into this discussion. It is like a red flag to a bull -everybody sees red. In many cases people lose their heads and many misstatements are made in consequence thereof. I have never acted for Backus in my life or transacted any business for him. I have never received any instructions from him regarding this Bill, nor heard from him in any way at all about it-I am acting solely from a sense of justice which I think is being violated in this matter. But even if it be the case that Mr. Backus is actuated by unworthy motives in this matter it is not in accordance with the principles of British law to condemn him until he has been found guilty. Any criminal is entitled td* just the same careful, evenhanded justice as the highest man in the land; and I think we ought not to let the name of Mr. Backus be interjected into this discussion all the time. So far as the Federal Government is concerned they have been using Norman dam for the past two years and manipulating it as they saw fit without any objection on his part. Now what has happened? Let us look and see.

First of all how did Backus get this Norman dam? It was built twenty-six years ago and he purchased it along with their holdings from the owners four years since. For two years, up to the time of joint action the two governments have been operating it. It is a dam which, until some power works are built there, merely controls the level of that lake. The dam holds the water up in the lake and regulates and controls it. So it is not a case of getting rid of the dam to regulate the power. Under this legislation it is sought to regulate "the dependable flow." There is the whole trouble. True that expression was in the original Act that was to be passed by the province of Ontario. The province made the same mistake that the Dominion Government made in not consulting the people that were interested. They only consulted the people down the river; they did not consult the people of Kenora who are vitally affected by this legislation. The people of Kenora have been in hard times for the last few years. Their industries have been closed down and their saw-mills removed. Yet they have timber all around them, and they were reaching out to try and get some industry to establish itself there. They have water-power and

they induced this man Backus, who has a very large plant at Fort Frances, to come over there and enter into some agreement with them. They were like drowning people catching at a straw; they were ready almost to give their whole town away to any industry that would locate and put them on their feet. He entered into an agreement with them and also with the Ontario Government. He got timber concessions, agreed to build a pulp-mill and took over their local water-power, formerly operated by the town of Kenora, and which is on the eastern outlet. No sooner was that agreement entered into than difficulty arose with Winnipeg. My people claim-whether rightly or wrongly is another thing-that the Winnipeg interests are desirous of preventing this industry getting started. They feel that they also should have been consulted when negotiations were taking place. I was- at one meeting where all interests concerned were represented. I happened to be in my own home town last summer and received a message from the mayor of Kenora asking me if I would not go to the meeting in Winnipeg. I went to that meeting. The Backus interests were represented by their engineers and lawyers; the Winnipeg interests were also represented, and the little town of Kenora was acting as a sort of peacemaker trying to bring the different interests together. Thqre was perfect harmony at that meeting until we struck one question and that was the question of the cost of the flowage from raising the water on the upper lake. Now, let me explain that. On Rainy lake a big industry was established some years ago at International Falls. They built another dam higher up, and spent large sums of money, but they have not acquired the title to the flowage or the lands submerged. Those interests want the flowage question considered by the interests down the river, but the latter say "It does not concern us. You went in there, we are independent of you, and when the time comes it is necessary to expropriate additional property we will talk about it." The minute they struck that there was a divergence of opinion. The meeting broke up and since that the various interests have never been brought together again. Instead of that the Winnipeg interests have attempted to approach Ottawa to control the matter. Now, what is the situation? They want to get the dependable flow out of the lake of the Woods, but they do not want to pay for the dependable flow out of Rainy lake. That is the bone of contention, and that is a power dispute between several companies.

Now, the Dominion Government is trustee, of course, of the powers on the Winnipeg river for the province of Manitoba, but is also trustee for the province of Ontario, and1 in addition she is Manitoba's executive officer as to water-powers. The powers down the river do not need at the present any extra storage on that upper lake. They are benefited by it to-day. I do not want to take up an undue length of time on this matter, and therefore I will quote briefly the report at page 66:

The more the inflow into the Lake of the Woods

That necessarily comes from Rainy lake.

-is equalized the more readily can; the recommended level be maintained within a small fluctuation, and the greater is the dependable outflow that can be secured from any given extreme range in level of the Lake of the Woods.

Naturally if you control the storage of the Rainy lake which in turn controls the storage of the lake of the Woods, you get a more dependable flow down the Winnipeg river than if you only control the storage of the lake of the Woods.

That was the bone of contention between them. Then what happens? The Winnipeg interests come down to Ottawa, and eventually an arrangement is made, without the people up there knowing about it, between the province of Ontario and the Federal Government, by which it was agreed that joint legislation should be passed by both governments. If the joint legislation had been

passed there might have been no difficulty. But immediately my own people, the parties affected, heard of this proposed joint legislation they went to the Ontario Government and fought for their life as they considered it, and they fought successfully. The question is asked: Why did the Ontario Government not pass that joint legislation? Simply because of the representations of the people of Kenora district. Then we have this legislation introduced. My people are opposed to it just as strongly as they were opposed to the former legislation.

But in a sense the Federal Government has power to do all that it is seeking under this legislation with the exception of control of the English river. Under the Dominion Rivers and Streams Act unauthorized obstructions already built in any river can be taken out, and any existing dam can be removed if it is an obstruction; also before any new dam can be built permission must be obtained from the Federal Government. What happened? Mr. MAY 31, 1921

Backus had bought the little power plant located at one outlet, which was at the town of Kenora, and he was proposing to enlarge that outlet so as to (build his works there and not at the Norman dam. He was proceeding without any authority, and therefore illegally. Whether he knew or not-

Topic:   REVISED EDITION. COMMONS
Permalink
?

Some hon. MEMBERS:

Ha, ha.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

Some hon. gentlemen say "Ha, ha". They seem to think that everything must be presumed to be wrongly done in this world; I would rather presume things to he rightly done. When the illegality was brought to his attention he filed his application for approval of his plans and for the consent of the Federal Government through the Minister of Public Works. That application is to-day standing, and I have telegrams from the people of Kenora hoping that the work will not be blocked, that 150 men or more would be thrown out of employment and entreating that something be done to let the work proceed. The Federal Government to-day has power in its own hands to impose whatever conditions it sees fit upon the building of that dam, or outlet, or improvement; or it can refuse the application, in which event the work cannot be proceeded with, the water will still flow down, and things will be as they have been during the past few years. 'll

But instead of acting under its present statutory powers, waiting till next session and meanwhile getting unanimity, the Federal Government has been advised to pass this legislation. I think it is unwise and unjust in the last dying hours of this session, when my people have no opportunity of coming here and opposing it, and unless there are paramount reasons for the measure being proceeded with I urge that it should be withdrawn. This morning I received telegrams from my people on the English river protesting most strongly against the English river being included within the scope of this Bill. The English river has nothing to do with the lake of the Woods, in fact, it does not flow into the lake of the Woods, and Backus is not concerned in it.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Arthur Meighen (Prime Minister; Secretary of State for External Affairs)

Unionist

Mr. MEIGHEN:

Has the hon. gentleman any objection to reading those telegrams?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

I received a telegram

from Sioux Lookout protesting against the English river being included.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Arthur Meighen (Prime Minister; Secretary of State for External Affairs)

Unionist

Mr. MEIGHEN:

I have a telegram from the mayor of Sioux Lookout, but it does not

do what the hon. gentleman says his telegram does.

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

This is the telegram the Prime Minister hands me: Sioux Lockout is a divisional point on the English river. There is a little sawmill at present, and it expects to develop into quite a considerable town.

Sioux Lookout, Ontario, May 30, U9I2H. Hon. Premier Meighen,

Ottawa, Ont.

We herewith petition you respecting Bill now before House referring to control of Lac Seul waters.

Lac Seul is the source of the English river.

We petition that the natural rights of our town in Pelican Falla water power on the English river be protected by an amendment to the Bill to restrict the raising of Lac Seul to a level which would destroy any portion of the present horsepower development available at this point.

The Bill proposes to give power to the board to regulate and hold the waters up there, which would affect the present horse power. The first Bill which was introduced had to be amended when the Prime Minister's attention was called to the same, to make it a little fairer to these people. It even purported to give the right to shut off the flow of the English river entirely.

Should Bill now under consideration pass in its present stage and commission appointed raise level of Lac Seul sufficient to deteriorate Pelican Falls, it would be a serious handicap to our present and future industrial development, which development is an essential necessity for the proper financial assistance to our town to assist in supplying finances for our educational and other municipal requirements, which assistance is urgently needed.

There is development under way there and they hope to bring in population which will help them to maintain their schools.

Topic:   REVISED EDITION. COMMONS
Permalink
L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

Do I understand that they decrease the head of the other falls?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

No. Pelican Falls is below the river, and if the waters are held back at Lac Seul you necessarily affect the flow of the English river. The Pelican falls situated thereon.

Topic:   REVISED EDITION. COMMONS
Permalink
LIB

James Hamilton Ross

Liberal

Mr. ROSS:

How far is Lac Seul from the junction of the English river and the Winnipeg river?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

I should say 150 miles or more. Supposing we were dealing with the Ottawa river, it would be similar to attempting to regulate the Gatineau river and the Blue Sea and other lakes thereon through the Federal Government.

Under the conditions referred to and the representations which our member, P. H. Keefer, will no doubt make to you.

I only got their telegram this morning. They are acting of their own motion.

We ask that our petition be granted fullest consideration and our interests protected as asked for. Thanking you in anticipation of same.

John Macleod,

Mayor.

Now, these people are quite anxious about this matter. They do not understand the necessity for the proposed action, and unless it is of paramount importance I think it would be wiser not to press this Bill through, Is it necessary that we should proceed in this way? The proposal can hardly be justified on the ground of fulfilling international obligations. In fact, we are violating international obligations because we have raised the level three feet and we are holding it there without authority. If we can get the United States to adopt the report of the International Joint Commission, that would be a different matter. In that case the report itself will be sufficient authority for legislation of this kind, because it recommends two boards of control, one international and the other domestic. In the meantime we are proceeding, at the request of the interests down the river, to pass legislation to control the water-powers above.

The Bill is based upon the principle of "the most dependable flow." Now, that is a technical term; let us understand the difference between dependable flow and natural flow. The natural flow of a river is that which takes place when there are no obstructions; you will have high water in the spring and low water in the middle of the summer. The dependable flow is brought about by placing artificial obstructions in the river, raising the minimum flow up and thus at certain periods securing more water, and taking away the increased flow naturally resulting from spring freshets and holding it for use during the summer when it may be most needed. That is a very proper thing to do, but it is an artificial state of affairs. Under the common law a man is entitled to the use of the water in its natural condition as its flows by, so long as he does not obstruct it or, by holding it up, prevent the people below from using it. But this legislation sweeps away that common law right and makes everybody take the dependable flow. If the Winnipeg powers would take up the question of dependable

flow out of both lakes there would be no difficulty, but here they are taking up only the question of dependable flow out of the one lower lake but not out of the upper. The time will come-and it is not very far off-when all the waters in the Winnipeg river will be needed for power purposes, and everything that can be done to increase the flow of water there is desirable. Then will come the time when there will be a desire to expropriate the flowage on the upper lake, to raise, as the commission's report suggests, the waters in the upper lake still higher. If that action is deferred the cost will be much greater than if it were done now and the cost should be apportioned among these different interests in the ratio of the benefit therefrom. But Winnipeg says: "No; we have nothing to do with that. You built in this upper place for your own benefit. You have increased storage there. We will benefit by that but will pay nothing towards it and when the time comes that we want some more we will take this thing up together." Here we find the origin of the dispute-and I am simply trying to give the facts to the committee so that every hon. gentleman will be able to vote intelligently in the matter.

By using these words "dependable flow" you affect the rights of any person having a power plant on the Winnipeg river who finds it advantageous to use the natural flow. In the case of some plants it is advantageous to use the natural flow; in the case of others, it is not. I can understand a street railway or an electric lighting plant wanting to have dependable flow, because they are running all the time. I can understand that some other large industry might want to use the spring waters, having them go through their wheels instead of being wasted through sluice-gates. There are such problems involved in industrial operations, and you strike at the rights of these people when you use these words "dependable flow," unless there is some agreement or else provision for compensation, and nothing of that kind is contemplated in the present Bill.

Now, what are the facts about dependable flow? If hon. members will refer to plate 125 in the book of plates of the International Joint Commission they will see that for 75 per cent of the time under natural conditions more water than the dependable flow comes down the river and that for 25 per cent of the time less water than the dependable flow comes down the

river-the dependable flow being estimated at 11,500 cubic feet per second. I am not speaking now for any one in particular;

I speak merely from a sense of justice.

If any person who owns a power plant on that river wants to use the water in its natural condition, are you willing by arbitrary legislation to force him to take the dependable flow? The man above should not be allowed to interfere with the man below in any wrongful way. The old common law maxim is absolutely true: "So use thine, own as not to injure another." But does not that apply with equal force to the people down the river? Why should they be entitled to say: "We want to use our own to the detriment of you who are up above " Why, they could establish a little auxiliary steam plant if they wanted to, under ordinary flow conditions, and get more power during the 75 per cent period than the dependable flow. The point I want to make is that the fight in this case has been between these rival power interests on that word "dependable flow." The rival powers of Winnipeg want to get the benefit of private capital that has been invested in the Rainy lake by getting the resulting dependable flow without paying for it, and yet on the lake of the Woods force the greatest dependable flow with or without concurrence. To me that is not fair. I hold no brief for Mr. Backus in bringing out the situation.

Topic:   REVISED EDITION. COMMONS
Permalink
UNI L

Thomas Alexander Crerar

Unionist (Liberal)

Mr. CRERAR:

If the hon. gentleman

will permit me, who are the rival power interests in the matter?

Topic:   REVISED EDITION. COMMONS
Permalink
UNION

Francis Henry Keefer

Unionist

Mr. KEEFER:

I will try to explain

the power developments all the way down the river. First, there is a very large power plant of the paper making company at International Falls of which Mr. Backus is the head or manager. I do not recall its exact name. There are then no more power plants until you get to Kenora, where there is the Lake of the Woods Milling Company. These people also want control. They were in favour of the former Bill for joint control by Ontario and Canada. Then there is the Norman dam, with no power plant at all. Then there is the little town of Kenora with its power plant. As you get down the river there are the White Dog rapids, a power which is not yet developed. When you get into Manitoba territory there are several power plants, Winnipeg companies, including that of the street railway-I do not know the names. There are two or three of them.

Topic:   REVISED EDITION. COMMONS
Permalink

May 31, 1921