May 16, 1911

LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

Not where they are subject to a treaty. Under the constitution of the United States a treaty precedes all statutes of either Congress or of the several states.

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LIB
LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

I read the clause when the resolution was before the committee; hon. members will see it in the ' Hansard ' report of the remarks I made on that occasion and to which I have already referred. Therefore, I propose, when the House goes into committee on the Bill, to Mr. WHITE

amend it as shown by the printed amended Bill which I have had distributed among some hon. members who are taking more special interest in this matter. Other hon. members who desire copies can, of course, obtain them by sending to the proper office. I propose asking the committee to add five sections

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CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

Before the minister (Mr. Pugsley) goes on I would like to be sure with reference to his general statement that in all cases a United States treaty overrides state Tights. It seems to me that that is not the genius of the United States constitution. I am not an authority on that document, but there is one case which, as I recollect it, seems to me in point. Difficulties arose in California over the school rights and privileges of the Japanese in that state. Japan contended that the treaty guaranteed to the subjects of either country in the other, equality of rights with the subjects of the country. I remember well there was a very strong line of correspondence between President Roosevelt and the authorities in California, occasioned by the fact that a law was contemplated to be passed by the California legislature which, the president contended, would be in contravention of the treaty rights. My recollection of the affair is that California got its back up, and kept it up, and was constitutionally able to keep it up. But milder counsels prevailed and, in some way or other, an arrangement was made. But as I recall the correspondence, President Roosevelt expressed the fear that California, by persistence in its action-which, as I understood, the federal authorities could not control-would render the relations between Japan and the United States otherwise than friendly. I may be wrong, but it seems to me the statement of the Minister of Public Works went too far.

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

I do not remember very clearly the controversy to which my hon. friend (Mr. Foster) refers, but I will read the article of the constitution of the United States of which I have spoken, and which hon. gentlemen will find at page 902 of ' Hansard.' It is article 6 of the constitution and it provides as follows:

That this constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. -

I think it would be impossible to find language which more clearly provides that a treaty shall be the supreme law of the land.

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CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

Another case comes to my mind, a case between the United States and the Italian government with reference to redress sought by the government of Italy for citizens of that country of Italy who, in some of the states of the American union, were deprived of their privileges and who claimed damages. Now, the demand made at that time, as I recollect it, was that the United States was not in a position to confirm these privileges of the citizens of Italy because of the powers of the states.

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

I think my hon. friend (Mr. Foster) will not question my construction of this article. I think it is clear beyond any possibility of doubt. That is the view taken by the Attorney General of the United States who has not the slightest doubt upon the point and is acting accordingly. They, by their legislation, are providing for the expenses of the commission. The Attorney General's opinion is, just as, I think, any one reading article 6 of the constitution will see, that there is no question whatever that the treaty has become the supreme law of the land, and that it supersedes all state law bearing upon the subject.

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LIB

Morley Currie

Liberal

Mr. CURRIE (Simcoe).

May I ask the hon. minister (Mr. Pugsley) a question? I understood that another clause of the constitution of the United States modified the clause he has quoted. I have not the document 'before me, but where the difficulty arises over this question of construction is where treaty rights interfere with private rights. There is a clause in the constitution which says that private rights shall be observed and shall be supreme, and that the United States of America or any of the states cannot perform any confiscatory act without redress. All this trouble over treaty rights has arisen where private rights are affected. Take the case of the Ste. Marie river, for instance. One of the problems in the discussion with reference to this waterway arose out of the private rights of the owners at Sault Ste. Marie. I should think that the hon. gentleman (Mr. Pugsley) could quote some precedents or judicial expressions of opinion by the United States Supreme Court on this point before asking us to swallow his dictum holus bolus. Because, if I mistake not, the view always taken by the judges of the Supreme Court of the United States is that where matters of private rights are involved they are supreme over treaty rights.

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

I thought the hon. gentleman (Mr. Currie) wished to ask me a question. If he purposes going beyond that, I think it would be well to await the conclusion of the very brief statement I 287}

wish to make. However, I may just remark with reference to the hon. gentleman's suggestion, there is a clause in the constitution of the United States providing that private rights cannot be

taken away except with compensation. But I do not think that affects the matter at all. As to the case of the Ste. Marie river, where the rights of the American citizens at Sault Ste. Marie are concerned, that is a question between the United States government and its own citizens. And the United States, after the passing of this treaty acquired the rights of its citizens, becoming the riparian owner; and, therefore, all questions, so far as private rights in that locality are concerned, have been settled. I cannot see how the question is at all pertinent to the consideration of this Bill. Now, I propose-

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LIB

Morley Currie

Liberal

Mr. CURRIE (Simcoe).

I do not wish to be asking questions, but I understand the hon. gentleman (Mr. Pugsley) has an amendment to this Act which gives American citizens the right to sue in Canadian courts for damages sustained through this treaty.

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LIB
LIB

Morley Currie

Liberal

Mr. CURRIE (Simcoe).

Carrying out the doctrine he has laid down, if there is any damage, the authority which is responsible for that damage should be the United States government, and there should be no occasion for suing in Canadian courts for damages.

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

The amendments I propose to suggest to the committee are simply for the purpose of carrying out the provisions of the treaty. Perhaps, as hon. gentlemen may not have copies of the amendments, it might be well for me to read the five sections which contain the amendments I propose. They are as follows:-

1. The treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States made between His Majesty and the said United States, signed at Washington the eleventh day of January, one thousand nine hundred and nine, and the protocol of the fifth day of May, one thousand nine hundred and ten, in the Schedule of this Act, are hereby confirmed and sanctioned.

2. The laws of Canada and of the several provinces thereof are hereby amended and altered so as to permit, authorize and sanction the performance of the obligations undertaken by His Majesty in and under the said treaty; and so as to sanction, confer and impose the various rights, duties and disabilities intended by the said treaty to be conferred or imposed or to exist within Canada.

3. Any interference with or diversion from their natural channel of any waters in Canada which in their natural channels would flow across the boundary between Canada and the

United States or into boundary waters (as defined in the said treaty) resulting in any injury on the United States side of the boundary, shall give the same rights and entitle the injured parties to the same legal remedies as if such injury took place in that part of Canada where such diversion or interference occurs, but this section shall not apply to cases existing on the eleventh day of January, one thousand nine hundred and nine, or to cases expressly covered by special agreement between His Majesty and the government of the United 'States.

4. The Exchequer Court of Canada shall have jurisdiction at the suit of any injured party or person claiming under this Act in all cases in which it is sought to enforce or determine as against any person any right or obligation arising or claimed under or by virtue of this Act.

5. The International Joint Commission, when appointed and constituted pursuant to the said treaty shall have power, when holding joint sessions in Canada, to take evidence on oath and to compel the attendance of witnesses by application to a judge of a superior court of the province within which such session is held, and such judge is hereby authorized and directed to make all orders and issue all processes necessary and appropriate to that end.

Those five sections are the new sections. The remaining sections of the amended Bill remain the same as they are in the Bill now before the House. If hon. gentlemen will compare these sections with the provisions of the treaty which are to be found in the schedule to the amended Bill, it will be seen that they simply carry out the provisions of the treaty, and are inserted because, in the opinion of the Minister of Justice, they are necessary to enable the courts of Canada to have jurisdiction, and in order that the provisions of the treaty may be effectually carried out.

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LIB

Henry Robert Emmerson

Liberal

Mr. EMMERSON.

I desire to ask if there are similar provisions in the legislation of the United States giving the same rights to Canadian citizens in reference to wrongs committed by United States citizens?

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

Yes. I may sav to my hon. friend that the opinion of the Attorney General of the United States is, and in that opinion the Minister of Justice concurs, that the treaty iself confers all those rights upon Canadian subjects in the courts of the United States.

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LIB

Morley Currie

Liberal

Mr. CURRIE (Simooe).

The hon. gentleman has Teferred several times to the opinion of the Attorney General of the United States, given on this question. Is that document available to the House?

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

I hold in my hands a copy of a despatch from the British Ambassador at Washington, which justifies me in making the statement I make to the House. In his despatch of April 21, 1911, addressed to His Excellency the Governor General, he says:-

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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

My Lord,-I have the honour to transmit herewith that clause of the Appropriation Act passed at the termination of the first congress which provides the legislation required by the last paragraph of Article XII. of the treaty on boundary waters and boundary questions.

It will be observed that the powers conferred on the commission by this legislation are those specified in the article above mentioned. There was at one time some question as to whether legislation would not be required in order to give the Canadian complainants access to the United States courts in injuries inflicted on them in Canadian territory as provided in paragraph 1 of Article 11. But after taking legal opinion it was decided that the treaty was sufficient in itself to effect this.

I assume that the legal opinion would be that of the Attorney General of the United States, who is the legal adviser of the United States government. He proceeds as follows:-

The United States government are, I understand, anxious to arrange for an early convention of the commission as there are several urgent and important questions awaiting reference to it. The appointment of the United States commissioners was recently reported to Your Excellency.

I have the honour to be, My Lord,

Yours most obedient, humble servant JAMES BRYCE. His Excellency, The Rt. Hon.

The Earl Grey, G.C.M.G., etc., etc., etc.

Now, in that opinion, as I have said, the Minister of Justice concurs. His opinion is that Article 6 of the constitution of the treaty gives effectually all the rights to Canadian subjects which could be conferred by an Act of Congress. I may read Article 2 of the treaty which provides for that:

Each of the High Contracting Parties reserves to itself, or to the several state governments on the one side and the Dominion or provincial governments on the other, as the case may be, subject to any treaty provisions now existing with respect thereto, the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of all waters -on its own side of the line which in their natural channels would flow across the boundary or into boundary waters; but it is agreed that any interference with or diversion from their natural channel of such waters on either side of the boundary resulting in any injury on the other side of the boundary shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or to cases expressly covered by special agreement between the parties hereto.

It will be seen that the amended sections of this Bill provide exactly in the terms of that article.

MA? 16, 1911

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LIB
LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

Yes. Now, Mr. Speaker,

I do not know that I need to say anything more at present. I move the 'second reading of the Bill.

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May 16, 1911