Right Hon. W. L. MACKENZIE KING (Prime Minister):
My hon. friend the member for Davenport (Mr. MacNieol) asked a question yesterday concerning the matter of diversions of water above Niagara. I was not in a position to give him an exact answer at the moment, and my hon. friend said he would bring the question up again, possibly on going into committee of supply. But as the Speaker leaves the chair without question being put, on going into supply both to-day and to-morrow, I have thought I should give my hon. friend immediately the information he desires and thus perhaps avoid the necessity for debate. I will summarize first the facts relating to diversions [DOT] and then discuss procedure.
In article V of the Boundary Waters treaty of 1909, Canada and the United States agreed not to divert more than a specified amount of water from the Niagara river above the
falls. There was no change in the amount of diversion until November, 1940, when, by an exchange of notes, the United States agreed not to object to an additional temporary diversion at Niagara by Ontario of water equivalent to diversions which Ontario was to make into the great lakes basin from the Albany river basin. This exchange of notes was tabled in the House of Commons on November 12, 1940.
The Great Lakes-St. Lawrence basin agreement signed on March 19, 1940, which is expressly subject to approval by the parliament of Canada and the United States congress, has two provisions affecting diversions at Niagara.
Article VIII of that agreement authorizes each country to use for power purposes any water diverted by it into the great lakes system. Article IX provides for the construction of remedial works at Niagara and for the subsequent additional diversion by each country of 5,000 cubic feet per second in excess of the amount specified in the Boundary Waters Treaty. These articles are, of course, not yet in force.
The exchange of notes signed on May 20, 1941, which was tabled in this house on May 29, provides, as a temporary measure in view of the present emergency, for an immediate additional diversion of 5,000 cubic feet per second by the United States and for an immediate additional diversion of 3,000 cubic feet per second by Canada. The temporary nature of this arrangement is made clear by provisions in the notes. The arrangement is expressed to be for the duration of the national defence emergency and, in all events, is subject to reconsideration by both governments on October 1, 1942. Furthermore, it is provided that the arrangement will be subject to the provisions of article IX of the Great Lakes-St. Lawrence basin agreement when that agreement comes into force.
The reasons for this emergency arrangement were explained in full by the hon. the Minister of Mines and Resources when he tabled the notes on May 29. It is not necessary to repeat these reasons, which lead to the conclusion that war needs make the increased diversion essential. As explained on May 29, the advisers of the Canadian government and representatives of Ontario and Quebec are satisfied that the increased diversions will not be detrimental or harmful to Canadian interests.
Turning now to the constitutional question of the proper procedure to be followed in
Diversion oj Water
such cases, as indicated in my reply of yesterday, under the British and Canadian constitutions, the crown enjoys the sole right of conducting all foreign relations, which includes the making and, if necessary, the ratifying, of international agreements of all kinds.
In the United Kingdom, it is a rare thing for the government to ask the approval of parliament or of the House of Commons before making or ratifying treaties, even formal and important ones.
In Canada, without derogating from the legal rights of the crown, a custom has developed different from that in the United Kingdom. On June 21, 1926, this house adopted a resolution which I moved, the final paragraph of which reads that the house considers that:
. . . before His Majesty's Canadian ministers advise ratification of a treaty or convention affecting Canada, or signify acceptance of any treaty, convention or agreement involving military or economic sanctions, the approval of the parliament of Canada should be secured.
On April 12, 1928, in the course of the debate on the International Sanitary Convention in this house, I said:
I submit that the day has passed when any government or executive should feel that they should take it upon themselves without the approval of parliament, to commit a country to obligations involving any considerable financial outlays or active undertakings. In all cases where obligations of such a character are being assumed internationally, parliament itself should be assured of having the full right of approving what is done before binding commitments are made. I would not confine parliamentary approval only to those matters which involve military sanctions and the like. I feel parliamentary approval should apply where there are involved matters of large expenditure or political considerations of a far-reaching character.
Since 1928 the custom in Canada, both under the government of Mr. Bennett and under the present government, has moved even farther away from the United Kingdom practice in the direction of more parliamentary control of international agreements. The present practice is that, except in the case of very unimportant agreements or in the case of great urgency, the Senate and House of Commons are asked to approve formal treaties, conventions and agreements, before they are ratified by or in respect of Canada.
However, while the practice has developed in this way in the case of formal agreements requiring ratification, it has never been the practice in Canada to ask parliament or the House of Commons to approve agreements which are in the form of exchange of notes. Generally speaking, agreements are made in the form of an exchange of notes either
because they are too unimportant for a formal agreement, or because they are intended to be of a temporary character.
In the opinion of the government, it would be a mistake to change the custom still further by asking parliament or the House of Commons to approve exchange of notes.
Following the principles which I have outlined, parliament was not asked to approve the exchange of notes of November, 1940, which authorized a temporary additional diversion at Niagara by the province of Ontario. So far as the question of procedure is concerned, there is no ground for distinction between that exchange of notes and the one signed on May 20, 1941. There was no reason to follow any different procedure on this occasion.
It might be pointed out that neither of these two exchanges of notes requires legislation in order to give them effect in Canada. The only thing which the Canadian government has promised to do in the notes of May 20 is to refrain from objecting to an additional diversion of water by the United States.
The United States government for its part desired to have the approval of the United States Senate before being bound by the latest exchange of notes. It would not be appropriate for me to attempt to explain the reasons for this decision. The constitutional provisions and practice of the United States in the matter of international agreements is, as I have said, not the same as that of Canada. It would not seem desirable that Canada's treaty procedure should be altered solely because the United States Senate is being asked by the United States government to approve this particular exchange of notes.
While it is not the practice in Canada to ask for parliamentary approval of exchange of notes, it is customary and desirable to table any such which are of importance or interest. The purpose of tabling them is not merely to inform the house, but' also to provide a basis for debate, if so desired, at the appropriate time.