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


Clarence Jameson

Conservative (1867-1942)


The minister has given a pTetfy lengthy answer to my question, and I may say with all deference, that it is very unfortunate that he should express this view, as also the view he expressed on the 2nd December last, upon this same subject. I do not think, in the first place, that the correspondence that took place between Lord Aberdeen and Mr. Everett in 1845 can possibly bear out the extreme construction placed upon it, and the extreme claim founded upon it by the United States.
I also think that the treaty of 1908 between Great Britain and the United States made special provision for a settlement of matters in dispute, or on which there was any doubt, in regard to subjects1 of this kind. The minister himself, on the 27th of January, 1909, when this case was ..being settled, says he suggested that there should be an interchange of correspondence, and in that correspondence the reservation of . the rights of both parties and the contentions of both parties were made. It seems to me, under these circumstances, that it was clearly a subject which should have been arbitrated. If there were no rights there on the part of Great Britain and Canada, what rights were being reserved? If there were rights, why should they not have been arbitrated? But, Sir, the statement which the minister has made, which has gone on record, is unfortunate, because he has taken almost the extreme view that the United States has taken, and in future negotiations it will very seriously militate against this country. I am goinv to refer to the correspondence between Lord Aberdeen and Mr. Everett. The letter, to

-which reference was made by the Minister of Justice, was dated March 10, 1845, and the clause which has particular relation to the subject matteT now under discussion, and which is to be found at page .141 of the appendix to the British case, reads as follows:
The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which Her Majesty s government have come to relax
Observe the word, Mr. Speaker.

relax in favour of the United States fishermen, that right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow, henceforward, to allow the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any hay on the coast of Nova Scotia or New Brunswick.
That was the offer of Lord Aberdeen to Mr. Everett, and it was an offer which clearly contained a condition. Here is the reply of Mr. Everett, or the important part of it, which will be found on page 142 of the same volume, under date of March 25, 1845. After acknowledging the receipt of Lord Aberdeen's letter, Mr. Everett goes on to say:
While he desires, however, without reserve, to express his sense of the amicable disposition evinced by Her Majesty's government on this occasion in relaxing in favour of the United States

Again observe the word, Mr. Speaker.
-the exercise of what, after deliberate reconsideration, fortified by high legal authority, is deemed an unquestioned right of Her Majesty's government, the undersigned would he unfaithful to his duty did he omit to remark to Lord Aberdeen that no arguments have at any time been adduced to shake the [DOT]confidence of the government of the United States in their own construction of the treaty.
At this point, just let me say that the [DOT]contention which the United States were putting forward then, which they always *thereafter put forward, and which they put forward at the hearing of this case before the Hague Tribunal-the same extreme contention with respect to bays, that was made *with respect to the Bay of Fundy in this -correspondence-was made on behalf of every other bay, when the matter came to he arbitrated in 1910 at the Hague. Mr. Everett's letter continues:
While they have ever been prepared to admit, that in the letter of one expression of that instrument there is some reason for claiming a right to exclude United States fishermen from the Bay of Fundy (it being Mr. JAMESON.
difficult to deny to that arm of the sea the name of ' bay ' which long geographical usage has assigned to it), they have ever strenuously maintained that it is only on heir own construction of the entire article that its known design in reference to the regulation of the fisheries admits of being carried into effect.
The undersigned does not make this obser vation for the sake of detracting from the liberality evinced by Her Majesty's government in relaxing

The word ' relaxing ' is again used

-from what they have regarded as their right: but would be placing his own government in a false position to accept as mere favour that for which they have so long and stienuonsly contended as due to them under the convention.
Here we have the conditional offer of Lord Aberdeen to Mr. Everett, spurned by the representative of the United States, who mid in effect: You are giving us nothing; you are merely offering to us what we already have, and therefore, we will not, on our part, meet the conditions which you have imposed. They did not permanently change anything by that correspondence, and no concession was ever made after that. It was a relaxation for a time only and conditional at that. There was a finality attached to it, and that finality was brought about by certain actions on the part of the government of Canada with the assent of the British authorities.
Now, I may say that there were several reasons in addition to the reason I have just given, why this should not be considered as more than a temporary relaxation. For instance, during the hearing of the Halifax Fishery Awa-rd Argument, it was declared by Mr. Thompson, in
arguing the case on behalf of Great Britain, that it was only a relaxation, and a temporary relaxation. The United States did not contend at that time, that this relaxation of Lord Aberdeen's gave them rights in the Bay of Fundy. They were then founding their alleged rights, not upon that chiefly but rather upon the award of Mr. Bates, in connection with the arbitration with reference to the Schooner ' Washington, an American vessel, which had been seized for fishing within what was then known as the three-mile limit in the Bay of Fundy, that is outside of the Grand Manan islands. The matter was referred to a tribunal of three, Mr. Bates being the umpire, and giving a decision adverse to Great Britain, and the sum of $3,000 damages was paid. The United States claimed under that chiefly, rather than under Lord Aberdeen's letter.
In 1870 the Hon. Peter Mitchell, then Minister of Marine and Fisheries, placed certain restrictions upon American fishermen with regard to the fishery regulations of this country, and Lord Grenville sent a despatch

to Mr. Mitchell in which he said that ' Her Majesty's government hopes that the United States fishermen will not, for the present, be prevented from fishing except within three miles of land or in bays which are less than six miles broad at the mouth.' So that on that occasion, there was a clear illustration of the view that the Canadian authorities held that this did not operate in any way as giving a permanent Tight to the Americans in that bay and the British authorities when they used the expression ' for the present ' regarded the relaxation of the enforcement of their exclusive rights in all bays more than six miles broad at the mouth, as being a temporary relaxation only.
Again in 1886 the parliament of Canada passed an Act respecting Foreign Fishing Vessels. That Act did not meet with the approval of our friends in the United States, and consequently an interchange of correspondence took place between Mr. Phelps, then representative of the United States at the Court of St. James, and .the Marquis of Salisbury. Here is an extract from a letter, dated January 25, 1887,
from Mr. Phelps to Lord Salisbury referring to this Act of 1886, which was passed by the parliament of Canada. Mr. Phelps says:
Since the receipt of Lord Iddesleigh's note, the United States government has learned with grave regret that Her Majesty's assent has been given to an Act of the parliament of Canada, passed at its late session, intituled: ' An Act further to amend the Act respecting Fishing by Foreign Vessels/ which has been the subject of observation in the previous correspondence on the subject between the government of the United States and of Great Biitain.
Mr. Phelps goes on to state:
It has been pointed out in my note to Lord Iddesleigh above mentioned that the three-mile limit referred to in this Act is claimed bv the Canadian government to include considerable portions of the high seas, such as the Bay of Fundy, the Bay of Chaleurs and similar waters, by drawing the line from headlands to headlands. And that American fishermen have been excluded from those waters accordingly.
So that there is no foundation for the assertion that since 1845, the date of the interchange of correspondence between Lord Aberdeen and Mr. Everett, the United States had the privilege of the fisheries in the Bay of Fundy without any objection on the part of Great Britain or Canada. I say that that citation which I have made-a citation from the letter of the representative of the United States at the Court of St. James-is the strongest evidence of the fact that the British and Canadian authorities considered that the
United States had no rights in these waters, and that when Her Majesty's assent was given the Act-and the assent of the Governor General of Canada was withheld pending the sanction by the imperial authorities of that Act-it is evident that the British authorities claimed that the Bay of Fundy was British territorial waters.
Now, Sir, to return again to the arbitra- [DOT] by the Hague Tribunal.
In April, 1909, a document was brought down in the imperial parliament which contained the special agreement entered into at Washington cn the 27th January, 1909, and embodied the correspondence between Mr. Bryce and Mr. Bacon of 6th February, 1909. There is nothing, however, in this document to indicate that any arrangement had been made to exclude the Bay of Fundy from the scope of the arbitration which was to be undertaken under this agreement.
Again in September, 1909, we find that another document was printed and presented to both houses of parliament in Great Britain. This contains the special agreement entered into on the 27th January, 1909, at Washington, and also two notes interchanged between Mr. Bryce and Mr. Bacon, who had succeeded Mr. Root as Secretary of State for the United States. The first is from Mr. Bryce to Mr. Bacon:
British Embassy,
Washington, March 4, 1909.
Sir,-I have the honour to acknowledge the receipt of your note informing me that the Senate of the United States has approved the special agreement for the reference to arbitration of the questions relating to the fisheries on the North Atlantic coast and of the terms of the resolution in which that approval was given.
It is now my duty to inform you that the government of His Britannic Majesty confirms the special agreement aforesaid, and in doing so confirms also the understanding arrived at by us that question 5 of the series of questions submitted for arbitration-namely, from where must be measured the ' 3 marine miles of any of the coasts, hays, creeks, or harbours ' referred to in the said article-is submitted in its present form with the agreed understanding that no question as to the Bay of Fundy, considered as a whole, apart from its hays or creeks, or as to innocent passage through the Gut of Canso, is included in this question as one to be raised in the present arbitration, it being the intention of the parties that their respective views or contentions on either subject shall be in no wise prejudiced by anything in the present arbitration.
This understanding is that which -was embodied in notes exchanged between your predecessor and myself on the 27th January, and is that expressed in the above-mentioned resolution of the Senate of the United States.
I have, &c.,

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