71 



APPENDIX III 



Argument of Hon. Hugh Guthrie,* Solicitor General for the 

 Dominion of Canada 



Hon. Mr. Guthrie: Representing the Government of Canada 

 in this matter, there is not, in my opinion, very much between us 

 upon the facts, and my submission is that, upon the admitted facts, 

 upon the statement of the case which has been put in by the appHcant 

 company, there is no power in the International Joint Commission 

 to approve this order; and, if there were such power, I do not think 

 in their discretion they should approve it. 



We rely, of course, in that position, in the first place, upon what 

 we consider our absolute treaty rights. The Treaty of 1842, com- 

 monly known as the Ashburton Treaty, is still a treaty in full force 

 and efifect. It is the treaty which delimits the boundary lines 

 between Canada and the United States. Of its very nature it is a 

 permanent and binding arrangement, and was reached after a long 

 discussion by the two countries. It is an arrangement which was 

 come to upon consideration — valuable consideration. The preamble 

 of the treaty itself recites that it is an arrangement made with such 

 equivalents and compensations as are deemed just and reasonable. 

 Where Canada yields a point in a particular instance, the United 

 States yields a point in another instance. It is founded, therefore, 

 upon equivalents and compensation. A treaty of that nature must 

 be looked on as a very sacred international bargain which cannot 

 lightly be broken, varied or altered. 



Now, Article VII of the Treaty is very explicit in regard to the 

 channel of the St. Lawrence at Long Sault island. Those terms 

 which apply to the Long Sault channels read as follows: 



"It is further agreed, that the channels in the river St. Lawrence, 

 on both sides of the Long Sault islands, * * * shall be equally 

 free and open to the ships, vessels, and boats of both parties." 



There are three requirements of that section with regard to both 

 of those channels. The first is that they shall be equal, that is, the 

 usage of them. Next, they shall be free, and, next, they shall be open. 

 It is interesting to note just a point in regard to the use of that word 

 "equally." There has been some comment on the use of the word. 

 If I understand rightly the contention of my learned friend, Mr. 

 Koonce, when the matter was before this Commission at Atlantic 

 City, he sought to argue that "equally" meant merely that there 

 shall be no discrimination; that the South branch of the Long Sault 

 might be closed so long as it was closed against all parties, because 

 then there would be an equality of non-user which would satisly the 

 language of the treaty. I am unable to agree with any such \iew ol 

 plain language, and I am satisfied it would be nothing short of a 



•Argument of Hon. U. Guthrie on behalf of the Dominion of Cannila at the HeurinK lieforc Uie 

 International Joint Commission of the application of tlio St. Lawrence River Power Company, Mon- 

 treal, August 29, 1918. 



