86 



In pursuance of this proposal two members of the Government 

 proceeded to Washington and presented the position in greater detail 

 to the Secretary- of State of the United States. It may be added here 

 that the proposal was not at that time accepted, nor has it since been 

 accepted ; in fact, no reply thereto has yet been received from the 

 United States Government. 



Subsequently, on the 14th September, 1918, the International 

 Joint Commission reached a decision on the application and delivered 

 an order, copy of which is appended hereto, [Appendix IV], approving 

 the construction of the proposed works on certain conditions therein 

 set forth. At the same time, the order reserves for further considera- 

 tion the question whether under the terms of existing treaties, the 

 Commission has power to approve the proposed structure. It should 

 be added that the Canadian Government, through its counsel, had 

 already, before the issuance of the order, acquainted the Commission 

 with the terms of the order in council of the 2nd September, 1918, 

 setting forth its view that the Commission was without power to 

 make such an order. 



It is worthy of note that the Commission, in issuing the order, 

 expressly declines to decide whether it actually has power to do so. 

 In exercising authority it leaves for future determination the con- 

 trolling question as to whether it possesses any such authority. How- 

 ever, it cannot be doubted that the issuance of the order is in itself an 

 assumption of such authority. 



Thus confronted with an assumption of power on the part of the 

 International Joint Commission, which, in the opinion of the law 

 officers of the Crown, was entirely unwarranted, it is necessary to 

 determine at once the course of the Government. A conclusion as 

 to the course to be pursued under such conditions is not without diffi- 

 culty. It is pertinent, however, to recall that, in a former case, 

 presenting a similar situation, the Government of the United States 

 refused to recognize the jurisdiction of the International Joint Com- 

 mission. In the matter of the division of the waters of the St. Mary 

 and Milk rivers, then pending before the Commission, it appears, 

 from a despatch from His Majesty's Ambassador at Washington, 

 dated November 13th, 1917, that the United States Secretary of 

 State, by letter dated November 8th, 1917, informed the Ambassador 

 that, since the Commission had under consideration the question of 

 its authority to interpret or construe Article VI of the Treaty of 

 January 11th, 1909, and since, in the view of his Government, the 

 Commission had no such authority in the then state of the case, he 

 had deemed it proper to inform the Commission that whatever 

 conclusion was reached by the Commission could not be regarded as 

 binding upon his Government in so far as it undertook to construe 

 the Article in question. 



In view of the foregoing, the Minister recommends that the 

 Government of the United States be informed that this Government 

 feels bound to repeat its view that, for the reasons already indicated, 

 the International Joint Commission was without authority to approve 

 the application of the St. Lawrence River Power Company, and that 



