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


Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)



I tried to explain when addressing the House on this subject on the 2nd December last, the position with regard to the Bay of Fundy, as fully as I was able to. When the difficulties first arose between the United States and Nova Scotia in regard to this treaty as early as 1840, or before that year, the principal subject of the difficulty seemed to be the fishing by United States fishermen in the Bay of Fundy. The legislature of Nova Scotia insisting that the Bay of Fundy was, notwithstanding its size, within the renunciation made by the United States in the treaty of 1818, addressed the imperial authorities upon that subject. The matter was referred to the law officers of the Crown in England and they supported the contention of the Attorney General of Nova Scotia and delivered their opinion that the Bay of Fundy had been renounced by the treaty of 1818. The matter continued to be one of much agitation diplomatically between the United States and Great Britain and finally it was closed in the year 1845, I think in the month of March, by a despatch from Lord Aberdeen the foreign secretary, to the United States minister at the Court of St. James, in which Lord Aberdeen stated that while maintaining the legal right of Great Britain to exclude United States fishermen from the Bay of Fundy they would relax their right so far as that bay was concerned. Ever since then the bay has been treated as open to the fishermen of the United States, and it has been so treated by both parties. When the arrangement for submitting these difficulties to arbitration at the Hague was under verbal discussion at Washington in January, 1909, Mr. Root as representing the United States said as though it were a matter of course-and I think using these very words: Of course nothing in this
submission is to affect one way or the other the position of the Bay of Fundy, or of what was termed ' Innocent Passage through the Gut of Canso.' That was made a sine qua non of the reference to the arbi-145}
tration of the Hague at all. The contention was: The question of the Bay of
Fundy has been settled between ourselves and Great Britain now more than 60 years ago, and there is no question of reopening it. It was at one time proposed that a clause to that effect should be inserted in the agreement of submission to arbitration, but it was thought better-indeed I think it was my own suggestion-that instead of putting it upon the face of the agreement to arbitrate, informal notes stating the understanding in that respect should be exchanged between Mr. Bryce and Mr. Root. Such letters were exchanged in either Fobruary or March of 1909 . They were before the tribunal, and it is the circumstance of their having been so exchanged that leads to the tribunal making the observation in the award which the hon. gentleman has read, that it is understood that nothing in the rules which they were then suggesting should be taken to refer either to the Bay of Fundy or to the Gut of Canso, which were excluded by these notes of the 21st February and the 4th of March, 1909.

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