May 16, 1911

CON

William Sora Middlebro

Conservative (1867-1942)

Mr. MIDDLEBRO.

Do the state governments claim the right of jurisdiction with respect to the several matters over which the federal government assumes the right?

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

I am not aware that they have made any such claim. I would be surprised to learn that they make any claim that is in contravention of the terms of the treaty, so far as respects boundary waters.

I cannot see how it would be possible for them to make such a contention in face of the express provisions of Article 6 of the constitution. I understand that it is well recognized in the United States that a treaty overrides all state laws bearing upon the subject to which the treaty relates.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

Morley Currie

Liberal

Mr. CURRIE (Simcoe).

Just one word more before the hon. gentleman leaves this discussion. I observe that in clause 4 provision is made for the Exchequer Court of Canada to have jurisdiction in cases of this kind. As I understand it, when a foreign citizen desires to bring an action, against the government of any British country, he approaches the matter by petition and the authority, either His Excellency the Governor General or the King, or w.hoever is acting, will issue a fiat and write across that petition ' let justice be done.' The matter is referred to the courts in the ordinary way, so that there is no necessity for this clause 4, in a sense, at all. Provision has always been made under the British constitution for a foreigner to sue for any injury or damages which may have been occasioned by the government or an individual in a British country. But, as far as I can ascertain, there is no remedy or machinery provided in the United States for bringing an action of this kind. In all civil matters, as I understand, the states have jurisdiction and the states have refused to allow a foreigner the right to sue for any damages caused either by the United States government or by a corporation within their jurisdiction. If an injury occurs to a person in the state of New York, a foreign citizen, unless he has property within the state, has no right to any recourse by way of suit. A case arose not very long ago where a young lady was killed on the Lehigh Valley railway in the state of Pennsylvania. Action was brought and when the action had proceeded a certain length the railway company took refuge behind a claim that the party injured had no property within the state and consequently had no right to sue. There was no recourse and the case

was dismissed by the United States court. Is the hon. gentleman assured that machinery is provided and if so, what is the machinery provided, under the authority of the federal courts whereby a citizen of Can-i ada can sue? We ought to know that. Ma-'chinery is already provided by us even without passing this clause. What machinery is provided in the United States? It is all well enough to say that by the treaty you can do a certain thing, but although you had the treaty you might not have the machmeiy of the courts provided in order to carry out your treaty. You might find yourself damaged in the United States, you might go into the United States and try to bring suit but you would find there was no court before which you could bring suit. You would find that there is no means by which you could approach the court by petition or in any other way to bring this suit, and there is no court provided to give justice except perhaps a state court and a state court will take the most narrow and restricted view possible in your case. I think the minister in charge of the Bill should clearly explain to the House what procedure a citizen of this country can follow in carrying out this clause of the Act, ox under this treaty. Suppose a citizen of Canada has land flooded by the action of the American government or an American corporation, and he desires to bring suit in the United States courts. Let the minister in charge of the Bill clearly explain to the House whether proper machinery is provided whereby an action can be brought and sustained in the courts of the Unjted States. I think it is necessary that the House should know what that machinery is.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

My hon. friend's statement certainly surprises me, and I am sure it would surprise every lawyer m the House when he says that if a party in one of the United States suffers m.iury that fiarty can have no redress in the courts of the state in which he happens to own property.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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?

Mr CURRIE (Simcoe).

I said a foreign citizen Do not let the hon. gentleman put any words into my mouth that are not true.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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?

Mr PUGSLEY.

A foreign citizen. I am satisfied that there is no such law.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB
?

Mr PUGSLEY.

And until my hon. friend calls my attention to the statute which so declares I am sure he will forgive me if I hesitate to accept his statement. Possibly he might have to do just as foreigners have to do in this country; he might have to give security for the payment of costs m case he should lose his suit.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

Morley Currie

Liberal

Mr. CURRIE (Simcoe).

That suit must be brought by the executors or trustees of

the party's estate, or by himself, and if he has no property he must be represented by a trust company.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

Henry Robert Emmerson

Liberal

Mr. EMMEESON.

He could not hold property in the state of New York if he were a foreign citizen. <

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB
LIB
LIB

Morley Currie

Liberal

Mr. CURRIE (Simeoe).

But he must have property of some kind; he must either have money or be represented by a trust company.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

James Kirkpatrick Kerr (Speaker of the Senate)

Liberal

Mr. SPEAKER.

I think these details had better be discussed in committee.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

Yes, Mr. Speaker, it would be better. I was just going to say a word in answer to my hon. friend from Simeoe (Mr. Currie). The words of the treaty are that in case of any injury caused by diversion of waters from their natural channel on either side of the boundary resulting in any injury on the other side of the boundary this shall give rise to the same rights and entitle the injured parties to the same legal remedies as if the injury took place in the country where such diversion or interference oocurs. In case that injury took place in one of the United States, the party whose property was injured would have a legal remedy. He would have the right to go into the courts of the state and recover damages.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB
LIB
LIB

Morley Currie

Liberal

Mr. CURRIE (Simeoe).

Not the federal courts?

Public Works (Mr. Pugsley) tjhat a treaty made by the federal government in the United States would supersede any rights of the state legislature, I may say that the minister knows that there was a treaty made between Great Britain and the United States commonly known as the Ashburton treaty with reference to certain rights in boundary waters between the two countries. The state of New York does not agree with the statement made by the Minister of Public Works. The state of New York claims that it has the right to build a dam across the St. Lawrence river irrespective of the Ashburton treaty.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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LIB

William Pugsley (Minister of Public Works)

Liberal

Mr. PUGSLEY.

Not to interfere with navigation.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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CON

John Dowsley Reid

Conservative (1867-1942)

Mr. REID (Grenville).

They only admit that the federal government are to say what interferes with navigation or something of that kind. The Ashburton treaty stipulates that nothing shall he done to interfere with the natural flow of the river.

Topic:   INTERNATIONAL WATERWAYS TREATY.
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May 16, 1911