74 



Now, it has been suggested that that treaty has, in some way, 

 been superseded by the subsequent treaty under which the Inter- 

 national Joint Commission has been estabhshed. 



Mr. MiGN'EAULT: There was a treaty of Washington in, I think, 

 1871, which refers to the right of navigation. 



Mr. Guthrie: There is some reference to it but not as affecting 

 this portion of the river. 



Mr. Powell: What section of the treaty of 1871 appUes to the 

 navigation of the St. Lawrence river? 



Mr. Koonce: Article XXVI. 



Mr. Guthrie : That applies to navigation below Cornwall. It does 

 not affect this matter at all. Now, the treaty of 1909 was a treaty, 

 as stated in the preamble, made between the United States of America 

 and the King of Great Britain — " to prevent disputes regarding the 

 use of boundary waters and to settle all questions which are now 

 pending between the United States and the Dominion of Canada 

 involving the rights, obligations, or interests of either in relation to 

 the other or to the inhabitants of the other, along their common 

 frontier, and to make provision for the adjustment and settlement 

 of all such questions as may hereafter arise." 



Under that treaty this Commission, under Article VII, was 

 established, and, by Article VIII, the jurisdiction of this Commission 

 was also established. There is nothing in the treaty of 1909 to confer 

 jurisdiction upon this body save what is set out in Article VIII. It 

 is the only article which confers jurisdiction. Article VII being the 

 article which constitutes the body. Article VIII says: 



"This International Joint Commission shall have jurisdiction 

 over and shall pass upon all cases involving the use or obstruction or 

 diversion of the waters with respect to which under Articles III and 

 IV of this treaty the approval of this Commission is required, and in 

 passing upon such cases the Commission shall be governed by the 

 following rules and principles * * * 



Now, there are only two classes of cases which would come before 

 this Commission brought here by private parties. I do not refer to 

 those cases which may be referred to by the Governments. It is clear 

 that this case does not come under Article IV or have any bearing 

 upon Article IV, because that applies only to waters flowing out of 

 national waters. So it must come under Article III if it comes at all. 

 Article III reads as follows: 



" It is agreed that, in addition to the uses, obstructions, and 

 diversions heretofore permitted or hereafter provided for by special 

 agreement between the Parties hereto, no further or other uses or 

 obstructions or diversions, whether temporary or pemianent, of 

 boundary waters on either side of the line, affecting the natural level 

 or flow of boundary waters on the other side of the line, shall be made 

 except by authority of the United States or the Dominion of Canada 

 within their respective jurisdictions and with the approval, as here- 

 inafter provided, of a joint commission, to be known as the Interna- 

 tional Joint Commission." 



That, I take it, means — and I submit that this is a correct 

 meaning of the sentence — that if, in any case, the United States or 

 the Dominion of Canada seeks to make any change in its own water 



