May 31, 1921 (13th Parliament, 5th Session)

UNI L

Frederick Forsyth Pardee

Unionist (Liberal)

Mr. PARDEE:

The Protection of Navigable Waters Act, Part 1, section 4, says: No bridge, boom, dam or aboiteau shall be constructed so as to interfere with navigation, unless the site thereof has been approved by the Governor in Council, nor unless such bridge, boom, dam or aboiteau is built and maintained in accordance with plans approved by the Gov-, ernor in Council.
Now, Sir, I continue the reading of this telegram. It says:
In view of the results and of fact that we can expect no further co-operation from your Government-
In view of the correspondence which passed surely the Prime Minister could not reasonably say that he could hope for no further co-operation. Every line and every syllable of the correspondence so far as the province of Ontario is concerned indicates
a willingness to co-operate in the fullest possible manner.
-now that the Ontario Legislature has prorogued, it is impossible to understand what useful purpose could have been served by further consultation on the present situation. Your concluding observation that my telegram was lacking in frankness is sufficiently surprising in itself. It is the more so in that its context discloses a complete misconception of tihe nature of the international obligations here involved-Under the existing Treaty of January 11, 1909, the Dominion has obligations in respect of freedom of navigation, maintenance of levels, and the prevention of injury on the other side of boundary waters. That is a responsibility solely of Dominion and purpose of present Bill is to make it quite certain that Dominion Government shall not be powerless to exercise that responsibility. In this and other respects We have proceeded throughout on the advice of law officers of the Crown. In the circumstances %ve have no other course than to proceed with the Bill which invades no rights of the province and which is essential to adequate exercise of Dominion jurisdiction.
Arthur Mbighen.
I leave this phase of the matter, Mr. Chairman, at that; I do not propose to labour it further. But in this connection I wish to read the following paragraph from the report of the International Joint Commission:
The average controlled level of the lake of the Woods between 1892 and 1916 was 1,059.82. The average level which would have prevailed during the same period of years, if the outlets had remained as in a state of nature is 1,056.77 or practically 3 feet lower. Ordinary high water from the viewpoint of the rights of the riparian owners, is dependent upon the level which prevails during the planting, growing and harvesting season. For the purpose of this report, we have adopted the mean of all levels above the average summer level prevailing between June 1 and'September 30 as mean or ordinary high water. On the basis of comparison of ordinary high water the recommended level of 1,061.25 is 2.23 feet higher than the computed natural leve1 of the lake.
It will be seen, therefore, from the report itself that the level of the lake has not been so interfered with as to prejudice international rights in any way; the navigation of these waters has not been prejudiced in the slightest. I repeat again that all these matters have been amply and satisfactorily handled.
I had commenced, when asked a question, to give a slight resume of the Hudson report. As I understand the matter, the Hon. Mr. Hudson, at the request of Manitoba, came to Ottawa to represent that province on the hearing of this case. Subsequently Mr. Hudson sent in a report. I do not propose to read it all, but he says this:
The question on which I anticipated the most difficulty was the casting vote on the

Board. The Ontario people felt that they Should have predominance to deal with waterpowers within the province.
I quote that only to show that the people of Ontario have at all times stoutly maintained that those water-powers were theirs and theirs alone.
Let me for a few minutes deal with one or two legal aspects of this Bill. I want to draw the attention of the committee to clause 2, which reads:
All dams, structures and other works of whatsoever description which have heretofore been or may hereafter be constructed in, upon, over, about or across-
I contend that that clause is not good because it is not specific. Any legislation brought down toy the Government in regard to this matter should show what dams are to toe constructed and what water-powers are to be affected by those dams. It must show specifically just what the Dominion Government propose to do. They have no right to put in an omnibus clause allowing them to have jurisdiction wherever they may desire. Only last week the British Columbia Electric case
4 p.m. was being argued in the Supreme Court, and the judges, although they had not given their decision, were inclined to pay considerable attention to the fact that there was involved in that case the very point that I am to-day arguing. One of the counsels said that it was a guessing contest, and the judges seemed to agree with that. I, therefore, say, first, that this clause is not good because it is not specific. Further, I doubt if the Dominion Government have any jurisdiction except over the actual physical structures that may be put up. They may have the right to say what is the height or width of a dam, where it may be located and so forth, but the fact that they may have the right to do that does not give them the right to control the waters of the province of Ontario. It is a moot point, even in the matter of navigation, whether they can go any further than that or not.
To show what widespread interest there is in the matter; to show how deeply the people of that section of the country are interested in this legislation; to show with how much fear they regard any such legislation, I want to read just one or two clauses from " an open letter to the Right Hon. Arthur Meighen, M.P., P.C. and to the hon. members of Parliament for Ontario constituencies," which I find in the Toronto Mail and Empire, of April 25,1921. The letter reads:
The people of Kenora district and of northwestern Ontario respectfully urge thalt you defer further action on the Bill designed to transfer the rights of the province of Ontario over her water powers to the province of Manitoba.
If the Bill becomes law, the waterpowers in this part of Ontario will be seriously curtailed and industrial and commercial development severely handicapped.
Divorced of legal phraseology, the position as we see it is:
The electrical power interests of the city of Winnipeg aim to secure the primary right to control the regulation of all the waters in the English and Winnipeg rivers in Ontario.
They do not need this "privilege" in order to furnish power to their customers.
But, in order to give that impression, and to divert attention from the fact that they propose to waste about one-fourth their utilizable waterpower, they have used the phrase "dependable flow"-
I have not gone into the question of " dependable flow," because I shall leave that for others, but it is a question that might well be argued before this committee.
-and are seeking to encroach upon Ontario's waterpowers and to blind the public and their elected representatives to tihe real results.
Efficient development of the waterpowers along the Winnipeg river will Obviate any necessity for preventing the full use of Ontario's resources.
Exactly what I have said, that if the province of Manitoba and the city of Winnipeg are willing to develop their own water-powers and to spend the money that is necessary for such development, there is no need whatever to interfere in any way with the vested rights of the province of Ontario. Let me read only this one more clause:
If the Dominion Parliament bows to the will of the Winnipeg electrical power interests and the Bill becomes law, a direct hindrance to northwestern Ontario industrial growth will be achieved and a dangerous precedent established in permitting one province to encroach upon the rights of another.

Topic:   LAKE OF THE WOODS AND OTHER WATERS
Full View