The St. Lawrence Question

Who says Sir John A. Macdonald safeguarded Canadas waterway rights in Washington Treaty

B. K. SANDWELL June 15 1929

The St. Lawrence Question

Who says Sir John A. Macdonald safeguarded Canadas waterway rights in Washington Treaty

B. K. SANDWELL June 15 1929

The St. Lawrence Question

Who says Sir John A. Macdonald safeguarded Canadas waterway rights in Washington Treaty

B. K. SANDWELL

ARTICLE SEVEN : A REPLY TO MR. DRURY

NO INTELLIGENT discussion of the international aspects of the St. Lawrence Waterway project is possible that is not based on a full appreciation of the difference that exists between the relative position of the two countries in the waterway above Cornwall and their relative position in the portion below Cornwall and extending down to the present head of ocean navigation at Montreal.

The waterway above Cornwall, from that city all the way to the top of Lake Superior, is “boundary waters,” and is common for purposes of navigation to the commerce of both nations, not only by a perpetual clause in the Treaty of 1909, but also by the general usage of international law, which that treaty merely formulates and makes workable.

The waterway below Cornwall, down to Montreal, is entirely in Canadian territory, is not “boundary waters,” is not governed by the Treaty of 1909, and is affected at present only by one treaty limitation upon the absolute sovereign power of the Dominion of Canada to which it belongs. There are, it is true, certain well recognized principles of international law which are susceptible of being applied to it, and which will be discussed briefly at a later point in this article;

but they are principles which can only be applied by means of a formal treaty for that purpose, and the United States has never proposed the execution of any such treaty. The principles in question are not in effect, and cannot be invoked, as regards the St. Lawrence between Cornwall and Montreal at the present time.

Failure to realize the correct nature of the situation in the Cornwall-Montreal stretch of the river leads inevitably to misunderstanding and sometimes to absurdity in the discussion of this subject.

An eminent senator of the United States, Hon. Thomas J. Walsh, of Montana, recently made a long speech in the Senate in criticism of the views expressed in some Canadian quarters as to the extent of Canadian

and American rights in the Cornwall-Montreal section. In the course of this speech he referred to the “claim”—it is somewhat more than that, being a bald statement of fact, concurred in on at least one occasion by the State Department of the United States Government—that “though the Treaty of Washington grants to the United States the full right to the navigation of the St. Lawrence ‘ascending and descend-

ing,’ it gives no right to the United States to pass through any canals adjacent to and fed by the river making its navigation economically feasible.” This “claim,” which is merely an abbreviated statement of the contents of the navigation clauses of the Treaty of Washington—the one existing treaty limitation upon Canadian sovereignty in the CornwallMontreal stretch, already referred to—does not suit Senator Walsh; and he declares that he has legal advice, and even Canadian legal advice, to the effect that “not only does it (the treaty) give the United States the right upon the same terms as those imposed upon Canadian citizens to use the canals constructed by their (the Canadian) Government, but probably gives the right to enter upon Canadian soil to make what-

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ever improvements may be necessary to render useful and valuable the easement to navigate the river.”

This astounding assertion means that in Senator Walsh’s opinion and that of his legal advisers the United States “probably” possesses, as a result of the Treaty of Washington, the right to “enter upon” the Lachine Rapids, five miles from Montreal and about twenty-six miles from the nearest American soil, and there, without asking any further consent of the Canadian Government, “make whatever improvements may be necessary to render useful and valuable the easement to navigate the river.”

TF THIS were true there would obI viously be little left in the way of sovereignty rights in the Cornwall-Montreal stretch that the Americans need covet or the Canadians need bother about defending. But let us examine briefly, first the text of the Treaty of Washington, and second the explanation of the reasons why that text was so drafted, as set down at the time by the man who did the drafting—our own Sir John Macdonald. Readers of MacLean’s have already been given a summary of the first of the two navigation clauses by the Hon. Mr. Drury, but it will do no harm to give them the full text in so important a matter. The second of the two clauses, and from the standpoint of Canadian rights by far the more important of them, was very summarily dealt with by Mr. Drury, and is deserving of much more attention than he gave it; while the motives which led Sir John to insist upon its insertion (against tremendous opposition from his British fellow negotiators) will certainly be more clearly understood from his own writings than from Mr. Drury’s ingenious surmises.

The navigation clauses of the Treaty are as follows:

“XXVI. The navigation of the River St. Lawrence, ascending and descending from the 45th parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall for ever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain or of the Dominion of Canada, not inconsistent with such privilege of free navigation.

“The navigation of the Rivers Yukon, Porcupine and Stikine, ascending and descending from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of Her Britannic Majesty and to the citizens of the United States, subject to any laws and regulations of either country within its own territory, not inconsistent with such privilege of free navigation.

“XXVII. The Government of Her Britannic Majesty engages to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion; and the Government of the United States engages that the subjects of Her Britannic Majesty shall enjoy the use of the St. Clair Flats Canal on terms of equality with the inhabitants of the United States, and further engages to urge upon the State Governments to secure to the subjects of Her Britannic Majesty the use of the several State canals connected with the navigation of the lakes or rivers traversed by or contiguous to the boundary line between the possessions of the High Contracting Parties on terms of equality with the inhabitants of the United States.”

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IT IS evident that the first of these two clauses, if it stood by itself, would be susceptible of the interpretation that it confers the right to use the canals by which alone, to use Senator Walsh’s phrase, the navigation of the river is made “economically feasible.” Sir John Macdonald was very much alive to the prospect of that interpretation being attached to it, and it was simply in order to head off that prospect, and to make that interpretation impossible, that he insisted on the insertion of the second of the navigation clauses, which sets up a different method of dealing with the canals and thus by inference withdraws them from the operation of the first clause. The whole series of his letters, written to Dr. (later Sir Charles) Tupper at this time, should be read for its account of the terrific pressure under which the British plenipotentiaries found themselves owing to the evident willingness of the Americans to go to war if they did not get all that they were after, and owing to the fact that any treaty which they concluded must secure the support of two-thirds of the members of the United States Senate or fail of ratification, thereby making war practically inevitable. Space allows no more quotation here than a few sentences from the letter of April 27, 1871, written immediately after the final draft of the Treaty had been approved by the plenipotentiaries. All the letters may be found in the second volume of Pope’s “Memoirs of Sir John Macdonald.”

Sir John is explaining to Tupper that his first thought was to resign his commission as plenipotentiary of the British Government, but after a night of thinking itover he decided to remain and participate in the last session. “It was fortunate that I did so, else the Articles would be much worse than they are.” In the matter of navigation:

“Had I not been present, the article about the St. Lawrence would have been settled in a manner altogether disadvantageous to us. The U.S. Commissioners pressed most persistently from the beginning for the free navigation of the river and canals. They returned again and again to it, and used the argument which had an overpowering effect on my colleagues, that without such grant the Western Senators would never vote for the Alabama settlement. They (the British Commissioners) were just as urgent with me to assent, but, of course, I refused to do so. The instructions from England, however, were positive to consent to the free navigation of the St. Lawrence, the Government holding apparently that by international law, as now understood, the Americans had really a right to its navigation to the mouth, and the two secretaries of the Commission had settled a clause for that purpose.

“I protested most loudly against the concession. I had to admit that the river up to Montreal was already open to American commerce, as it was to the trade of any other friendly nation, and that it was specially so by the Commercial Convention existing between the two nations; and that, as the river was not navigable from Montreal up to the point where the United States owned the southern bank, we were, in fact, giving them no practical advantage. But I argued that England had finally refused the right in 1828—and the fact that the Americans had no right to it was recognized by the Reciprocity Treaty—and now it was too late for them to urge it, and we were not getting anything for it, etc.

“The reply was that England had finally made up her mind on the point, and would yield to the request as a reasonable and proper one.

“I then objected to the words of the clause, which gives the right of navigation ascending and descending, and argued that, as it was known no vessels could ascend the river by its natural

channel, the grant of such navigation would give the Americans the opportunity of arguing that the treaty conferred the right to use our canals, as being the only mode by which the river could be ascended at the time the treaty was made. Professor Bernard had to admit that it was a point capable of argument. The trouble was, however, how to prevent the argument being raised, and, as Mr. Fish was specially anxious that some hope should be held out in the treaty of getting the use of the canals, in order to please the Western Senators, I suggested that both objects might be accomplished by putting in an article similar to that in the Reciprocity Treaty regarding the State canals. By looking back to item No. 10 you will see that the Queen engages to urge the Government of Canada to secure to the U.S. citizens the use of the Welland, St. Lawrence, and other canals, and the United States agrees to do the same thing with respect to its State canals. This article shows expressly that the canals are not a portion of the St. Lawrence, but are within the sole control of Canada.”

"K/fR. DRURY is hardly fair either to •*-*-* Sir John’s patriotism or to his astuteness in representing these tactics as nothing more than a matter of reserving a “club” with which to extort some future reciprocity agreement from an unwilling Republic—and a club which “we could not use without administering a shrewd rap to our own pate.” The plain truth is that the Americans used the Alabama Claims and the threat of war to extort from Great Britain an unconditional and perpetual right of navigation in a purely Canadian stretch of the St. Lawrence to which they had no title in international law; and what Sir John did was to make a brilliantly dexterous use of a principle of the American constitution (that of the incapacity of the federal government to bargain away, even by treaty, any rights in State property) to extricate the canals in the purely. Canadian stretch from the effects of that act of extortion, and thereby to limit the extorted right to an illusory privilege of navigating a natural channel which cannot be navigated at all in an upward direction and only to a limited extent in a downward one. The “Western Senators” had to be satisfied with this illusory privilege (and the fine-sounding but meaningless undertaking to “urge” the granting of the more real and effectual privilege of using the canals) because they could not in reason ask the British (Imperial) Government to exercise a greater authority over its dependent Dominions than their own Government was allowed to exercise over its member States.

The result of Sir John’s astuteness is that the United States does not possess today what it very nearly came to possess and would have possessed but for his intervention, namely, a perpetual and unconditional right of navigation in the artificial, as distinct from the natural, link between the St. Lawrence above Cornwall and the ocean waterway below Montreal, namely, the Soulanges and Lachine Canals. Our unimpaired possession of that vital link in the great chain of water connections into the very heart of the continent may perhaps be described as a “club,” but that is not its only aspect. It is perhaps capable of being used as a club. It is equally capable of being used as an entirely legitimate “piece,” and a very valuable one, in the great diplomatic chess game which, in all friendliness and in all good-feeling, will continue so long as there are two nations to divide the territory, the resources, the commercial routes and the productive population of this vast and splendid continent. Sir John Macdonald set great value on it, and went to much trouble to preserve it for us. He is dead, and his letters are evidently not much read, and his astuteness apparently not much respected by

some of his successors. We Canadians of today have it in our power, if we have it in our hearts, to throw away this particular part of the heritage which he preserved for us; but it will not be thrown away without an effort on the part of some of us to remind our fellow-Canadians of the struggles by which, in 1871, it was preserved.

There are, fortunately, Canadians in high places who are not ready, even for the sake of hastening a great power-andnavigation project, to throw away anything of what Sir John preserved. The report of the National Advisory Committee on the St. Lawrence Waterway does not, it is true, make any effort to define the present limits of American rights in the Cornwall-Montreal stretch; they are on record in the treaty, and to do so would have been beyond the scope of the Committee. But it does declare in categorical language that “in the event of a new treaty being negotiated the United States should not be given any greater rights than obtain in existing treaties.” If Canadians in general acquaint themselves with the nature of the rights that “obtain in existing treaties” and then proceed to follow the advice of the Advisory Committee no damage will be done; nor does it at all follow that the progress of the project will be seriously hampered.

ONE word more on the subject of the general principles of international law which might be invoked by the United States in respect of this stretch of waterway (its artificial elements included) if its Government cared to do so. They are, as Mr. Drury has pointed out, the principles which were worked out in Europe after the conclusion of the Napoleonic wars. Their nature has been examined at great length by a leading authority, P. M. Ogilvie, an American, whose “International Waterways” (New York, 1920) is among the best works on the subject. His conclusion is that a state enjoying riparian rights on the upper reaches of a navigable river is entitled to a conditional freedom of navigation in the lower reaches, but that such freedom of navigation “exists by virtue of the voluntary modification by the riverain states of the fullest enjoyment of their jurisdictional rights,” and that “as a necessary preliminary, therefore, the interests and security of the riverain states must be vouchsafed by the execution of treaties or other appropriate instruments, sanctioned by all foreign states which seek to engage in such inland transportation.”

This is very far from the idea which seems to have possessed the minds of Sir John’s British colleagues in 1871, that the United States as an upper riparian state had a right to unconditional and perpetual navigation of the lower and purely Canadian stretch of the St. Law-

rence. It means no more than that if the United States were to approach Canada with a proposal for an exchange of navigation rights, not in the St. Lawrence alone but in any water route, natural or artificial, which now touches or may hereafter touch the territory of the two countries, and with an offer of stipulations amply safeguarding the “interests and security” of Canada in the channels under her sovereignty, we should have no moral right to refuse. The United States has not made any such approach. It is not likely to. Its federal government, somewhat unique among the national governments of the world, does not possess the full authority which would be necessary for the carrying out of such stipulations. It cannot, for instance, offer us any guarantee that the whole volume of water naturally moving toward the Canadian St. Lawrence will be allowed to reach that stretch of river; for it is not certain that it possesses the power to prevent any single state frorh diverting portions of that water. Yet this is one of the first and mœt elemental safeguards that we should ask for in such a treaty, and one that we could, and should most willingly, accord in regard to any water flowing from Canada into the United States. It is even doubtful whether some of the stipulations which it has already entered into toward us in the Boundary Waters Treaty of 1909, are not beyond its power to execute; at any rate the State of New York entered suit some years ago to restrain the execution of some of them, and only desisted because it was convinced that no immediate invasion of its rights was threatened. In 1854 and in 1871 the federal government held itself to be unable to grant even a right of navigation in canals constructed by individual States; it is possible that it would not now be so modest, for its powers with regard to navigation have been largely extended by later interpretations of the constitution, but the whole question is still wrapped in obscurity. It will be many years before the principles of the Congress of Vienna will be invoked on the North American continent by a United States Government. Outside of those principles there is no international law granting to the United States any right in the Cornwall-Montreal stretch of the St. Lawrence that is not specifically set forth in the Treaty of 1871. Nor does it seem necessary, either in the interests of international friendship or in the interests of cheap water carriage, for Canada to surrender any right in the CornwallMontreal stretch, except for very valid consideration and for a strictly limited period of time.

Editor’s Note: Hon. E. C. Drury will present his rebuttal to the argument advanced by Mr. Sandwell and Mr. J. Lambert Payne in an early issue of MacLean’s.”