March 2, 1911 (11th Parliament, 3rd Session)


Clarence Jameson

Conservative (1867-1942)

Mr. C. JAMESON (Digby).

A few days ago, a resolution standing in my name, call-

ing for the bringing down of certain correspondence which led up to the settlement of the North Atlantic Fisheries case for reference to the Hague Tribunal, was passed. I do not think it should have been necessary for a member to ask for the bringing down of this correspondence, because, it seems to me, the subject matter of that case was of sufficient importance for the government to have laid before the House all the information in their possession. So far the only information which they have brought down, printed and distributed is contained in a book issued a few days ago containing the award and some fishery regulations recently based on the award.
The Hague Award, when published on September 7, 1910, was hailed with a great deal of satisfaction by the government of Great Britain and the government of Canada, and was considered of sufficient importance to be made the subject of a reference in the speeches from the Throne at the opening of parliament in Canada, the opening of parliament in England and the opening of the legislature in the province of Nova Scotia. It was also considered of so much importance that the hon. Minister of Justice (Sir Allen Ayles-worth) has made sundry journeys up and down the country for the purpose of enlarging upon its virtues and expatiating upon its merits. One important feature in connection with this award, however, is that it does not apply to the Bay of Fundy, probably the largest bay in the western hemisphere and certainly, from the standpoint of the fisheries, the most important. Although the award makes a very important declaration respecting international law with regard to bays, the Canadian fishermen find themselves debarred from the benefit of that declaration with respect to the Bay of Fundy.
I may be permitted, Sir, to trace very briefly the history, leading up to the submission of this question by Great Britain and the United States to the international court of arbitration at The Hague. In 1908 an arbitration convention ot treaty was entered into between Great Britain and the United States of America. That was signed at Washington on April 4, 1908, and ratified on the 4th of June in the same year. The first article of the convention provided that differences which might arise relating to the interpretation of treaties existing between the two contracting parties, and which it had not been possible to settle by diplomacy, should be referred to the permanent court of arbitration at The Hague. The second article provided that in the case of a reference to The Hague a special agreement defining clearly the matter in dispute and the scope of the powers of the arbitrators should be entered into and the same rrticle goes on to state:
That His Majesty s government reserving the right before concluding a special agreement ill any matter affecting the interests of a selfgoverning dominion of the British Empire to obtain the concurrence therein of the government of that dominion.
And it also provides that no such special agreement shall be binding until confirmed by an exchange of notes between the two contracting parties. The third article merely relates to the ratification of the treaty, and the fourth and last article provides that this convention is concluded for a period of five years, in other words, until June 4, 1913.
On January 27, 1909, the special agreement under which the reference regarding the North Atlantic fisheries was made, was entered into between Great Britain and the United States, and signed at Washington on the date which I have mentioned, by Mr. Bryce, the British Ambassador, on behalf of Great Britain, and Mr. Root, Secretary of State for the United States, on behalf of the United States. Question 5, of the questions which were to be submitted to The Hague Tribunal under this special agreement, reads as follows :
From where must be measured the 'three marine miles of any of the coasts, bays, creeks, or harbours' referred to in the said article.
The article referred to was article 1 of the old convention, or treaty of 1818, between Great Britain and the United States with reference to the fisheries. The feature particularly referred to in article 1 was contained in the following words:
And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America not included within the above-mentioned limits.
' The above mentioned limits,' were in treaty waters, and did not affect the Bay of Fundy.
Under this question 5, referred to the court of arbitration at The Hague, one would have supposed that the exclusive rights of British subjects in the Bay of Fundy were to be settled. The question as fwi 11 be seen, embraced all bays: no bays were excluded from its scope, and it would be reasonable to suppose that the question as to all bays on the Atlantic coast in His Majesty's North American possessions would be settled, with regard to fisheries.
Section 4, on page 20, of the award of the tribunal, relates to the extraordinary contention of the United States with respect to these bays. It reads:
4. It has been further contended by the United States that the renunciation applies

only to bays six miles or less in width 'inter fauces terrae,' those bays only being territorial bays, because the three mile rule is. as shown by this treaty, as principle of international law applicable to coasts and should bo strictly and systematically applied to bays.
But the tribunal did not concur in that View. It went on to state in its answer to that question what 1 shall now read:
But the tribunal is unable to agree with this contention.
(a) Because admittedly the geographical character of a bay contains conditions which ccncern the interests of the territorial sovereign to a more intimate and important extent than do those connected with the open coast. Thus conditions of national and territorial integrity, of defence, of commerce and of industry are all vitally concerned and with thr control of the bays penetrating the national coast line. This interest varies, speaking generally in proportion to the penetration inland of the bay; but as no principle of international law recognizes any specified relation between the concavity of the bay and tho requirements for control by the territorial sovereignty, this tribunal is unable to qualify by the application of any new principle its interpretation of the treaty of 1818 as excluding bays in general from the strict and systematic application of the three mile rule; nor can this tribunal take cognizance ill this connection of other principles concerning the territorial sovereignty over bays such as ten mile or twelve mile limits of exclusion based on international acts subsequent to the treaty of 1818 and relating to ccasts of a different configuration and conditions of a different character;
(b) Because the opinion of jurists and publicists quoted in the proceedings conduce to tin opinion that speaking generally the three mile rule should not be strictly and systematically applied to bays;
(c) Because the treaties referring to these coasts, antedating the treaty of 1818, made special provisions as to bays, such as the treaties of 1686 and 1713 between Great Britain and France, and especially the treaty of 1778 between the United States and France. Likewise Jay's treaty of 1791, Art. 25, distinguished bays from the space ' within cannon-shot of the coast ' in regard to the right of seizure in times of war. If the proposed treaty of 1806 and the treaty of 1818 contained no disposition to that effect, the explanation may be found in the fact that they first extended the marginal belt to five miles, and also in the circumstance that the American proposition of 1818 in that respect was not limited to 'bays,' but extended to 'chambers formed by headlands' and to 'five marine miles from a right line from one headland to another,' a proposition which in the times of the Napoleonic wars would have affected to a very large extent the operations of the British navy;
(d) Because it has not been shown by the documents and correspondence in evidence here that the application of the three mile rule to bays was present to the minds of the negotiators in 1818 and they could not reasonably have been expected either to presume it or to provide against its presumption:
(e) Because it is difficult to explain tho Mr. JAMESON.
words in Art. Ill of the treaty under interpretation ' country . . . together -with its bays, harbours and creeks ' otherwise than that all bays without distinction as to their width were, in the opinion of the negotiators, part of the territory;
(f) Because from the information before this tribunal it is evident that the three mile rule is not applied to bays strictly or systematically either by the United States or by any other power;
(g) It has been recognized by the United Slates that bays stand apart, and that in respect of them territorial jurisdiction may be exercised farther than the marginal belt in the case of Delaware bay by the report of the United States Attorney General of May 19, 1793, and the letter of Mr. Jefferson to Mr. Genet, of November 8, 1793, declares the bays of the United States generally to be, ' as being landlocked, within the body of the United States.'
Now, Sir, if this doctrine had been applied to the Bay of Fundy it would have been declared territorial waters with exclusive rights to Canadian fishermen, and this doctrine would have applied to it, but for the so called understanding by which the Bay of Fundy was shut out. I read from the report of the award of the tribunal, the last clause in answer to question 5:
It is understood that nothing in these rules refers either Jo the Bay of Fundy considered as a whole apart from its bays and creeks or as to the innocent passage through the Gut of Canso, which were excluded by the agreement made by exchange of notes between Mr. Bacon and Mr. Bryce, dated February 21, 1909, and March 4, 1909; or to Conception bay, which was provided for by the decision of the privy council in the case of the Direct United States Cable Company vs. the Anglo-American Telegraph Company, in which decision the United States have acquiesced.
Here suddenly we find that the whole situation had been changed and instead of the Bay of Fundy being dealt with under question 5, it was expressly excluded toy some understanding or some mysterious subsidiary agreement which was entered into. I would like to ask the minister how it was that this was done, and why it was done? At whose instance and upon whose advice was it done, and who is it that is going to take the responsibility for the exclusion of the Bay of Fundy from the operation of this award? At this particular moment, and before I proceed further, I would ask the minister to give an answer to that question.

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