c'r'

SIR GEORGE C. GIBBONS 7
AND THE BOUNDARY WATERS TREATY OF
1909

Thesis for the Degree of Ph. D.
MICHIGAN STATE UNIVERSITY
HARRIET E WHITNEY
1968

  

This is to certify that the

thesis entitled

SIR GEORGE C. GIBBONS AND THE
BOUNDARY WATERS TREATY
OF 1909

p eeeee ted by
Harriet E. Whitney

has been accepted towards fulfillment
of the requirements for

I degree in my

Age/mm

/

Date/5 ANN //I§/

 
     
   

LIBRARY 6"-
Michigan State
University

Wt vprofessof/

 

ABSTRACT

SIR GEORGE C. GIBBONS AND THE BOUNDARY
WATERS TREATY OF 1909

By
Harriet E. Whitney

George C. Gibbons (1848-1918) was the main insti-
gator of the Boundary Waters Treaty of 1909. The Treaty
provided for the International Joint Commission and cer-
tain principles on priority of use and equitable diver-
sion by which the Commission was to govern water disposi-
tion between the United States and Canada. Gibbons served
as a Canadian diplomat, with the assistance of British Am-
bassador James Bryce, in conferences with United States
representatives (1907-1909), and was the indispensable
person in the achievement of the Treaty.

Growing conflicts on the Great Lakes and boundary
waters over navigation, diversion for electric power, canals,
irrigation, and sanitary uses, led to the first meeting of
the temporary International Waterways Commission in May, 1905,
to report on these problems. George C. Gibbons, appointed
Chairman of the Canadian Section of the Commission in Novem-
ber, worked to get a treaty establishing a permanent Joint
commission and principles. Delegated by the Canadian Gov-
ernment in January of 1907 to discuss with the United States

concurrent legislation on these matters, Gibbons drafted a

treaty with a fellow commissioner (George Clinton on the
American Section). This treaty was rejected by Secretary
of State Elihu Root, who wanted special commissions or a
permanent commission of inquiry. Gibbons, supported by
Prime Minister Wilfrid Laurier, continued to press for a
treaty along the same general lines of the first draft
treaty.

By making concessions on diversion for irrigation
and on a Minnesota water power project, Gibbons succeeded
in negotiating the Boundary Waters Treaty with Chandler P.
Anderson, Special Counsel of the United States Department
of State on Canadian matters. The Treaty was signed Janu-
ary 11, 1909, and was approved two months later by the
United States Senate, with the additional Smith Resolution
protecting private riparian rights in the Sault Rapids be-
tween Lakes Superior and Huron.

Gibbons urged the reluctant Laurier to accept the
Treaty. He did so one year later, after United States con-
demnation of private prOperty in the Sault Rapids and after
assurances were received in Ottawa, both from Washington and
western Canada, that the special agreements on water diver-
sion were not injurious to Canadian interests. The Treaty
was achieved largely because of the efforts of the persua-
sive and persistent Gibbons who convinced Root to see the

merit of principles and a strong permanent commission to en-
force them. This study is based on research in the personal
papers of Gibbons, Anderson, Root, Laurier, and in govern-

ment papers of Canada and the United States.

SIR GEORGE C. GIBBONS AND
THE BOUNDARY WATERS TREATY OF
1909

a \
B ~
yaafl

\
Harriet E. Whitney

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY
Department of History

1968

I" \I

(1" \‘e I

Copyright by
Harriet Eleanor Whitney

1969

ACKNOWLEDGMENTS

In the preparation of this thesis, I am indebted to
more persons than I can name. my deepest gratitude goes to
Dean Paul A. Varg and Professor Alvin C. Gluek, whose exam-
ples as teachers and as writers remain a continuing influ-
ence in my life. Without the encouragement of Dean Varg,

this thesis would never have been, and any merit it may

have is due to the wise counsel of Professor Gluek, who
understands Canadian-American relations far better than I
do. I wish to thank the library staff at the New York
State University College at Brockport who have helped me

in so many ways, Miss Elizabeth Spicer of the London Public
Library, and Miss Anne Woolever at the University of Toron-
to. I am grateful to the staffs of the Public Archives of
Canada, the National Archives, and the Library of Congress,
particularly the twenty-four-hour availability of the Otta-
wa Archives -- what a boon for a traveling researcher:

Last of all, my thanks go to my husband who gave me the

freedom to study history.

11

TABLE OF CONTENTS

fl

ACKNOWLEDGMENTS . . . . . . . . .

INTR ODUCT I ON 0 e O 0 o e o o c 0

Chapter

I.

II.

III.

VI.

PRELIMINARIES: PART I . .
The Great Lakes and the

PRELIMINARIES: PART II o .

International Relations

Some Boundary Water Problems
Gibbons as Special Commissioner

TREATY NEGOTIATIONS: FIRST STAGE 0

Misunderstood Instructions
The Gibbons-Clinton Draft Treaty
The Root (Anderson) Draft Treaty

TREATY NEGOTIATIONS: SECOND STAGE

Root and Canadian Firmness
sThe Gibbons-Anderson Draft Treaty

DEBATE o o o e o c o e o e

The Senate and the Smith Amendment

Canada and the Treaty
THE BOUNDARY WATERS TREATY.
Eulogy and Reality

111

International
Waterways Commission

George C. Gibbons and Principles

Preservation of Niagara Falls

. lOl

iv

VII. APPENDICES O O O O O O O O O O O O O O O O O .110
A. Report of Louis Coste and George Wisner.110

B. Draft Forwarded by George Clinton , , ,112.~
C. Rules of O. H. Ernst . . . . . . . . . .114

D. .Draft Report on Sault Ste. Marie , , . .116
E. Report of Canadian Section . . . . . . .120

F. I. W. C. Report on Niagara Falls . . . .122
G. I. W. C. Report on Sault Ste. Marie . .124
H. Recommendations of Canadian Section . .125
I. I. W. C. Recommendations . . . . . . . .126
J. The Gibbons-Clinton Draft Treaty . . . .129
K. The Root (Anderson) Draft Treaty . . . .154
L. The Boundary Waters Treaty of 1909 . . .137

VIII. BIBLIOGRAPHY . O O O O O O O O O O O O O O O .146

INTRODUCTION

The boundary between the United States and Canada

extends over fifteen hundred miles through four of the
Great Lakes f- Lakes Ontario, Erie, Huron, and Superior.
These four, together with Lake Michigan, comprise the lar-
gest freshwater reservoirs in the world.1 Important in the
development of regional resources since the French fur-
traders, they in themselves are the greatest resource of all.
The peaceful sharing of the lakes and their connecting rivers
has been achieved through treaties; chief of these is the
Boundary Waters Treaty of 1909, negotiated while Canada was
represented in international affairs by Great Britain. It
established principles on boundary water use and provided

for their implementation by a permanent international joint
commission.

This study reviews the work of the man primarily re-
sponsible for the treaty, Sir George Christie Gibbons, whose
only venture into diplomacy brought him little fame and many
headaches. Chairman of the Canadian Section of the temporary

‘ ’ t
1Chirakaikaran Joseph Chacko, The International Join
Commission between the United States ofTAmerica and the
_2m n on 0 Canada (New York, 1932), 44.

1

¥

2
International waterways Commission, he saw the need for
permanent principles to govern water development along the
border and struggled for four years to negotiate the treaty.
Canadians owe much to his wisdom in bringing their powerful
neighbors to terms on the equal use of the boundary waters
for electric power and irrigation, while preserving the

rights of navigation. His patience, persistence, and faith
in mankind enabled him to withstand the selfish designs of

those on both sides of the border who were not so far-sighted

as he. A special niche in North American history is reserved

for this Canadian-American.2

 

2This study is confined to those events leading to
the_Boundary Waters Treaty. It relates the work of the Inter-

national Waterways Commission only as it concerns the begin-

nings of this treaty.

I. PRELIMINARIES: PART I
The Great Lakes and the International Waterways Commission

Economic growth in the late nineteenth century
brought prosperity to Great Lakes shipowners. Cargoes of
iron ore and wheat passing through the channels at Sault Ste.
Marie between Lakes Superior and Huron increased at the an-
nual rate of two million tons by the end of the century."5
The sailing fleets had been replaced by iron-hull freighters
whose owners gauged profits according to the length of each
shipping season and the depths of the channels between the
lakes. Seasonal and cyclical variations in water levels de-
termined the weight of cargoes that could be maneuvered
through the shallow channels and could mean a yearly loss of

hundreds of thousands of dollars.4

 

3International Waterways Commission (I.W.C.), 1905-
1915, File 1202, Box 1, Record Group 76, United States Ar-
chives (R.G. 76, N.A.). Also see "Freight Traffice on the
Sault Ste. Marie Canals,” United States, Bureau of the Cen-
-sus, Historical Statistics of the United States, Colonial
lTimes to 1957 (Washington, 1960), 454. In 1896 net tonnage
was 16, 239, 061 tons; in 1905 total was 44, 270, 680 tons.
Sessional Paper No.19a (C. S.P.), XLVII, No. 12 (1913), Part
I 270.
’ 4Annua1 loss was estimated to be $1, 500,000. or $3, 600.
for a single vessel per season for each six inches water
surface was lowered. I. W. C. Third Progress Report Dec. 1,

1907 (Washington, 1907), 25- 24.
5

4 .~

By 1900, shipowners were apprehensive about projects
for water diversion which threatened to lower water levels
permanently. That year, Chicago, with a population of over
one and one-half million people, began operation of a sewage
canal, draining Lake Michigan into the Mississippi River sys-

tem.5 At Niagara Falls diversion of water for electric power

6

was increasing. And in Lake Erie plans were underway for

the construction of a submerged dam at the eastern outlet

which would affect the water levels of Lake Ontario and the

St. Lawrence River.7

Such projects infringed on navigation rights pro-
tected by treaties dating back to the eighteenth century.
Jay's Treaty in 1794 had provided that the citizens of the
two countries and the Indians were "freely to pass and re-

pass by land or inland navigation," and later on, "to navi-

‘

gate all the lakes, rivers and water thereof, and freely to

carry on trade and cemmerce with each other."8 The

5The Chicago Drainage Canal, C.S.P., XLVII, No. 12
(1913), Part I, 526.

6Rapid expansion of electric power plants occurred
at this time with the development of alternating current and
generators. High-tension transmission of electric current
from Niagara Falls to Buffalo began November, 1896, and
electrolytic manufacturing plants were soon built. Merrill
Denison, The Peoples Power: A History of Ontario (Toronto,
1960), 18. ‘

7Regulations of Lake Erie, C.S.P., XLVII, No. 12
(1913), Part II, 959.

BWilliam M. Malloy et al, (eds.), Treaties, Conven-
tions, International Acts, Protocols, and Agreements between
the United States ofLAmerica and Other Powers (Washington,
1910), I, 612-20.

 

5
Webster-Ashburton Treaty of 1842 stated that the channels in
the lower St. Lawrence, the Detroit, and the St. Clair
Rivers "shall be equally free and open to the ships, vessels
and boats of both parties.9 The St. John River on the Maine

and New Brunswick boundary was declared "free and open to

both Parties and shall in no way be obstructed by either."10

The portages to the Lake of the Woods "as now actually used,

shall be free and open to the use of the citizens and sub-
jects of both countries."11 The Treaty of Washington in 1871
added the St. Lawrence River from the forty-fifthparallel

to the sea, declaring it to be "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 privileges of free na-
vigation."12

However, navigation rights would be subordinated to

industrial uses if matters were allowed to drift, and the
eight states on the southern shores of the Great Lakes and

the Province of Ontario on the northern shores continued to

sell shore property with riparian rights. Shipping and

 

_ 9David Hunter Miller (ed.), Treaties and Other
International Acts 2£_the United States’6f_America (Washing-
ton, 1931-487, IV, 567.

1°1bid., see.

11Ibid., 369.

12Treaties and Conventions Concluded by the United

States of America and Other Powers Since July 4, 1776 (Wash-
ington, 1889), 488-89.

6

electric power interests would clash over federal versus
state or provincial control of boundary waters, exacerbating
tensions already present between the two peoples on the Alas-
kan boundary question.13

There was interest on both sides of the boundary in
problems connected with common waters. In 1895 a National
Irrigation Congress met in New Mexico and adopted a resolu-
tion for the appointment of an international commission to
adjudicate with Mexico and Canada ”the conflicting rights
which have arisen or may hereafter arise on streams of an
international character."14 The Canadian government tried
to arrange such a meeting on navigation in the Great Lakes
through diplomatic channels but the American Secretary of
State insisted that preliminary conditions be met.15 How-

ever, United States Congressmen were concerned about the
protection of commerce on the Great Lakes. An army engineer

report in 1900 recommending, among other-things, an under-

water dam in Lake Erie to maintain the water level, led the

 

15The attempt to settle this controversy over the
eastern boundary in the Alaskan panhandle by a Joint High
Commission failed in 1898; in 1903 President Theodore Roose-
velt used pressure on the British representative on a six-
member tribunal to get a settlement favorable to the United
States; the verdict was greatly resented by Canadians.

14Mr. Warren, "An Address to the Peeple of the
United States," Sept., 1895. United States, 54th Congress,
1st Session, Senate Document No. 253.

15Sir Julian Pauncefote to Secretary Richard Olney,
Sept. 23, 1895; Olney to Pauncefote, Sept. 27, 1895, Papers
Relating to the Foreign Relations of the United States
(Egreign Relations) (Washington, 1895), 718-19.

 

7
Senate to pass a resolution for a temporary international

commission "to examine and report upon the diversion of the
waters that are the boundaries of the two countries."16 It
disappeared in a House committee, but two years later a sim-
ilar resolution was insured success by its inclusion in the

River and Harbor Bill, a popular appropriation measure and

sure to be passed.17

’By the terms of Section Four of this bill an inter-
national commission was to be appointed of three members
from the United States, who would serve under the Secretary
of War, and three:

Who shall represent the interests of the Dominion of
Canada, whose duty it shall be to investigate and
report upon the conditions and uses of the waters
adjacent to the boundary lines between the United
States and Canada, including all of the waters of
the lakes and rivers whose natural outlet is by the
River Saint Lawrence to the Atlantic Ocean, also
upon the maintenance and regulation of suitable lev-
els, and the structures thereon, and upon the inter-
ests of navigation by reason of the diversion of
these waters from or change in their natural flow;
and, further, to report upon the necessary measures
to regulate such diversion, and to make such recom-
mendations for improvements and regulations as shall
best subserve the interests of navigation in said
waters.18

 

16U. 8., Congressional Record, 33, 56th Cong., lst
Sess. U. 8., Senate Report No. 461, 56th Cong., lst Sess.

 

17v. 3., Statutes at Large, xxxrr, 373. In a letter
to Secretary of War Elihu Root, the Army Chief of Engineers
recommended that the commission not be made permanent but
only report on "important hydraulic and riparian questions,"
Feb. 28, 1902, U. 8., Sen. Report No. 658, 57th Cong., lst

Sess.

 

180. 3., Statutes at Large, XXXII, 373.

8

Further instructions were to look into the ”advisability of
locating a dam at the outlet of Lake Erie. . . Emil make rec-

ommendations. . . to an agreement or treaty which shall pro—

vide for the construction of the same."19
The three American Commissioners were appointed by

0
late 1903.2 After the appointment of one Canadian commis-

sioner, a delay of over one year occurred before the other
two Canadian appointments were made.21 This delay was ex-
plained by Canada's Prime Minister, Sir Wilfrid Laurier, as
due to the illness of the Minister of Public Works, who had

22

the responsibility for the appointments. However, the un-

popular Alaskan boundary settlement may have made Canadians

reluctant to enter into further negotiations with the

 

19Ibid.

 

20The American Commissioners were Colonel O. H. Ernst,
Chairman of the American Section, an army engineer who had
worked on the Chicago Drainage Canal, as well as the Galves-
ton Harbor project and the Isthmian Canal Commission; George
Clinton, a Buffalo lawyer who had served in the New York
Assembly as chairman of a canal committee; and Gardner S.
Williams, found to have a conflict of interests in his di-
rectorship of the Edison Sault Water Power Company and who
resigned May 26, 1905. George Wisner, a Detroit civil engi-
neer with experience in Great Lakes surveying, was then ap-
pointed. The Secretary of the American Section, L. C. Sabin,
a Great Lakes hydraulic engineer, was appointed in August,
1905.

21The Canadian Commissioner was Dr. William King,
Dominion Chief Astronomer and a.man with.much experience, in-
cluding service on the Boundary Commission of 1872 and the
Commission of 1893 on the determination of the Passamaquoddy
Bay boundary line.

22First Progress Report of the Canadian Members of the
I.W.C., 1905, C.S.P., XLVII, No. 12 (1913), Part I, 6. Domi-
nion of Canada, I ParliamentarygDebates (1906), 6.

Americans.

Canadian hesitation was overcome by the pressure of
problems on the joint use of boundary waters. New Brunswick
lumbermen had been complaining for some time about Maine
lumbermen placing obstructions in the St. John River, making
it too shallow for floating logs.25 Channels along the St.
Marys River between Lake Superior and Lake Huron were being
used for electric poWer; further projects contemplated by
Canadian and American companies threatened to lower water
19V913024 'In Minnesota, an electric power project might end
navigation in the Lake of the Woods.25 The effects of diver-
sion of water by the Chicago Drainage Canal from the Great
Lakes to the Mississippi River was still being debated.26

In January of 1905, Prime Minister Laurier, in the
House of Commons, referred to the St. John River as one of
the problems to be investigated by the commission.28 But a

month later, John Hay, the United States Secretary of State,

 

25R. W. Scott to Governor, General, Feb. 1, 1905,C.S.P.,
'ibid., 26.

‘24Report on the Conditions Existing at Sault Ste.
Marie, ibid., 341‘480

25F. B. Loomis to H. M. Durand, Jan. 25, 1995, ibid.,
213.

26The Chica o Drainage Canal ibid., 520. This is a
reference to the ChIef of Engineers eports of 1900, 1903,
and 1904.

27First Progress Report of the Canadian Members,
ibid., 4, 8, 9. ‘

281bid., 7.

10
restricted the investigation to streams tributary to, and
the Great Lakes system itself.29 This interpretation elimi-
nated the St. John River which emptied into the Atlantic
Ocean, also the Minnesota electric power project, as the
Lake of the Woods drained into the Hudson Bay. Canadian
leaders tried to get the commission's powers enlarged to
include all boundary waters. A lengthy diplomatic corres-
pondence was carried on through the circuitous route re-
quired by the colonial status of Canada; the Canadian
Governor-General wrote to the British Colonial Secretary who,
after due deliberation within the British Government, then
correSponded with the American Secretary of State; the re-
verse procedure further delayed decisive action. But all of

these efforts were to no avail. The only concession gained

was the promise to submit the question to Congress at the

next session. And on this understanding Laurier permitted

the Canadian commissioners to proceed with their investiga-

tions.50 (In a meeting in early June, the commission went

over the problems for investigation.51 Public hearings were

29John Hay to Durand, Feb. 24, 1905, ibid., 27.
soLaurier to T. date, June 5, 1905, ibid., 8. The
Canadian Commissioners were James Pitt Mabee, K.C., Chairman
of the Canadian Section; and Louis Coste, a civil engineer
in the Dominion Dept. of Public Works. The Secretary for
the Canadian Section was Thomas CGth, a journalist for La
Presse, an important liberal newspaper in Montreal. '_—

31First Progress Report of the Canadian Members,
C.S.P., XLVII, No. 12 (1913), Part I, 8.

11
held during the next four months in several cities to give all
interested parties opportunity for presentation of views.
Two meetings were then held to determine commission action

but differences of opinion delayed final decision.32

George C. Gibbons and Principles

 

George C. Gibbons was appointed Chairman of the Ca-

nadian Section in mid-November of 1905.35 He had practiced

law in London, Ontario, since 1869.54

Prospering with the
economic growth of the area, he had become a Queen's Counsel
in 1880 and a Bencher of the Law Society in 1896. Wellknown
for his analyses of trade and tariff questions, he was con-

sidered a leading financial lawyer in the dominion.35 A man

of action, he exhibited human qualities of friendliness,

 

32Minutes of Meetings, Oct. 1905-March 1906, George
C. Gibbons papers, Public Archives of Canada, Ottawa (Gibbons

Bapers, P.A.C.), Vol. 10. Cote to Gibbons, Nov. 25, 1905,
ibid., Vol. I.

33Mabee was elevated to the Ontario Supreme Court on
Nov. 21, 1905. Extract from a report of the Comm. of the
Privy Council, C.S.P., XLVII, No. 12 (1913), Part I, 218.

34Born in 1848 of Irish and English parents, Gibbons
was educated in private and public schools in St. Catharines,
Upper Canada College in Toronto, and in the law offices of
prominent Queen's Counsels. His education instilled in him
an awareness of social reSponsibility. Alexander Fraser, A
History of Ontario: Its Resources and Develgpment (TorontD,
1907), 1026; George Maclean Rose (ed.), A Cyclopaedia of
Canadian Biography (Toronto, 1886), 292-93.

35Jesse Edgar Middleton and Fred Landon, The Province
2? Ontario--A History 1615-1927 (London, 1927), III, 57-58.

 

 

 

'12
warmth, enthusiasm, impulsiveness, and a verve for living
which endeared him to his associates. Active in numerous
community charities, his fervent Canadianism led him, also,
to take a vigorous role in the Liberal Party, where he was

known as one of the Big Four in London.36 In the political

campaign of Charles Hyman, Gibbons gave dynamic speeches
which conveyed his beliefs on liberty and Canada's future,
such as the following:

I love the British Crown because as I study her
history I see a nation that has fought its way
slowly but steadily for the principles of liberty;
and one of the bulwarks of liberty is to trade free-
ly, is the right that there should be no monopolists,
no combinists.

O O O O O O O O O O O O O O O O O O O O O O O 0 O 0

Canada will hold her own when you give her freedom
to use her natural resources, but she can never
reach her position handicapped by the bondages of
protection.37

His aspirations for Canada called for a more inde-
pendent status in relationship to the Mother Country. Canada's
need to be on friendly terms with the United States led him
to view anyone who created trouble between the two countries
as guilty of a great crime. He understood Canada's depen—
dence on private investors for the development of its re-
sources and the need for companies to get a fair return on

risk investment. Yet he also urged his friend Laurier to

56Henry James Morgan, The Canpdian Men and Women of
the Times (Toronto, 1912), 443. The Big Four were Charles

Hyman, George M. Reid, James C. Duffield, and Gibbons.

37Undated newspaper clipping in Scrapbook of Eliza-
beth Campbell Gibbons, London Public Library. She collected
newspaper articles on her husband's career.

13
impose government regulations so that companies with public
franchises would carry out their obligations to charge rea-

sonable ratSS-58 He revered Laurier, calling him the great—

est Canadian who ever lived. When the time came to choose a
successor to Mabee, it was natural that this loyal supporter
was selected to become Chairman of the Canadian Section. He
had always refused to stand for political office, yet his
convictions on Canadian representatives dealing directly
with the Americans induced him to undertake his chairmanship
with characteristic vigor.

Upon his appointment Gibbons studied the previous
work of the commission. He found that the commissioners had
attempted to formulate principles upon which to base their
decisions. In October of 1905, an Engineering Subcommittee,
composed of George Wiener from Detroit and Louis Costs from
Ottawa, had submitted seven principles in a report on condi-
tions in St. Marys River.59 In brief, these stated that the
federal governments should have control over boundary waters,
that navigation rights were paramount over all other rights,
that both countries should have equal rights to the use of
one-half of the water less the amount needed for navigation,
that water levels had to be maintained, that only channels

for commercial use should be undertaken, and that St. Marys

u

58Gibbons to Laurier, Jan. 22, 1907. Gibbons Papers,
Vol. 8, P.A.C.

59Meetings, Sept. Oct. Nov. 1905, R.G. 76, N.A.
See Appendix A for these principles of Costs and Wisner.

14

River was an international river where riparian owners had
to get permits from both governments before diverting, with
permits for water use to be revoked upon violations. Al-
though these principles were not approved by the full com—
mission, they were referred for revision to a Judicial Com-
mittee, composed of the two lawyers, James Mabee and George
Clinton.40

Clinton rephrased these principles and added the pro-
visions that plans should be adopted by the two governments
in common and that regulations should be enforced by "some
authority to be created by international agreement."41 Al-
though Mabee submitted principles for discussion in a com-
mission meeting, no record of them was kept. Colonel Ernst,
Chairman of the American Section, prOposed nine rules for
discussion in a public hearing on the St. Marys River. Pri-
marily regulatory, they provided for the issuance of five-
year permits by the American Secretary of War and the Cana-
dian Minister of Public Works, equal sharing of water not
needed for navigation, and a limitation on the amount of
water to be reserved for navigation use, with the additional
stipulation that the riparian rights of corporations already

in existence would not be affected by these reghlations.42

 

4OIbid.

41Paper No. 12b, Draft forwarded by Clinton, Gibbons
Papers, Vol. 14, P.A.C. See Appendix B for these rules.
42
First Progress Report of the Canadian Members,
C.S.P., XLVII, No. 12 (1913), Part I, 138-39. See Appendix
C or these rules.

(I)

15

In the commission meeting following the public hear-
ing, Ernst urged the adoption of his rules. When the vote
split three to three by nationality, he declared them passed

by virtue of his authority as chairman of the meeting. James

Mabee, Chairman of the Canadian Section at that time, was
unwilling to agree to the equal sharing of the waters not

needed for navigation until he had studied each locality.
He pointed out that Canadians would give up far more at Niag-
ara Falls than they would get in the St. Marys River. It

was then agreed to strike the vote from the minutes and work

on a revision.43 After several hours of discussion, a list

was formally adopted. Clinton agreed to oversee the typing
of the final copy, make minor corrections, and circulate it

for the signatures of the commissioners. It was then to be

sent by the Secretaries to their respective governments.44

Clinton failed to send the copy around as he had
promised to do. Upon inquiry from the Canadian Section,

Ernst replied that he had decided that another meeting
should be called to approve the list of principles.45 And

yet he was unwilling to have another meeting until Congress
acted on the recommendation of the Secretary of War that the

"status of the present commission as a permanent executive

4506t€ to Gibbons, Nov. 25, 1905, Gibbons Papers,
Vol. 1, P.A.C. Also see Minutes of Meeting of Can.Sect.,
Dec. 1, 2, 1905, ibid., Vol. 14.

44Ibid.

45Ibid. Also see letter of Sabin to Gibbons, Nov.
20, 1905, ibid., Vol. 5.

16
board be defined or a new board created,“ and that the juris-

diction of the Commission be clarified.46

Gibbons, as the new Chairman of the Canadian Section,
was eager to help to get an enlargement of the powers of the
Commission. He wanted a commission meeting to be held in
Washington between Christmas and New Year's "with a view to
influencing Congress or ascertaining what action Congress
will take with reference to the future of the commission."47

But Ernst was definite in his refusal:

The only business which the Commission is prepared
to discuss at this time, so far as I know, is the
question of Regulations at the Sault. Is that cor-
rect? As the final adaption of those Regulations is
dependent upon the existence of a permanent inter—
national board, - that is, upon further legislation
by Congress, - I cannot see that there is any neces-
sity for meeting soon to discuss that subject.48

Gibbons had to be content with secondhand reports of what

was going on in Washington.

Preservation of Niagara Falls

 

The Canadian Section met several times during the
winter. The primary topic of discussion was water diversion
at Niagara Falls. Initially not a subject for consideration

by thesgommission, it had been brought to their attention in

 

46u. 8., Secretary of War, Annual Report of the War
Depato’ I, 59th 00118., 1813 3688., 50-520

47Quoted in letter of Ernst to Gibbons, Dec. 20, 1905,
Gibbons Papers, Vol. 5, P.A.C.

48
Ibid.

17

the PPGViOUS June.49 By December, Gibbons was Spending so
much time discussing the use of the falls for electric power
Thomas Gate, the Canadian Secretary, accused him of having
only that question on his mind.50

Gibbons feared that all the power generated on the
Canadian side would be exported and controlled by business-
men in New York State before Canadian industrialists acted.
In the Progress Report of the Canadian Section made at this
time, it was predicted that:

A very large portion of the power generated on our
side of the river at Niagara will, unless some more
effectual restrictions are placed upon its removal,
soon be permanently diverted to the building up of
American factories and the running of American rail-
ways.51

The position taken by the Canadian Section was op-
posite to the one taken earlier under the chairmanship of
Mabee. He had not wanted the adoption of the principle of
equitable division of water in the Great Lakes -- Gibbons
did. Also for the first time it was recommended that "some
treaty arrangement between the two countries" regarding ri-
parian rights on navigable boundary streams be made after the

settlement of federal control over these waters.52 It was

implied that such a treaty would be based on the principles

_—

49First Progress Report of the Canadian Members,
C.S.P., XLVII, No. 12 (1913), Part I, 39.

P 5003té to Gibbons, n.d., Gibbons Papers, Vol. 12,
.A.C.
' 51First Progress Report, C.S.P., Part I, 16.

521bid..

18
implicit in a charter granted by the Secretary of War to the
Michigan Lake Superior Power Company in 1902. These were:
(1) levels must be maintained, (2) navigation must be pro-
tected, (3) the public must reserve the right to use any

portion or all of the natural flow in the future.55

In addition to the fear that all facilities for elec-
tric power at the falls would be under the control of busi-
nessmen in the United States was the apprehension that public
clamor for preservation of the falls would end any future
development. The greatest influence against further eXploi-
tation was the large and powerful American Civic Association
in the United States. It undertook a campaign to protect
the scenic beauty of the falls with members circulating
petitions, writing newspaper articles, and making speeches.
Acting on a suggestion of President Theodore Roosevelt, the
Association distributed leaflets on "The Impending Destruc-
tion of Niagara Falls."54 Roosevelt, in his annual message
to Congress, stressed the need to preserve the falls and re-
commended that New York State turn them over to the national

government to facilitate cooperative action with Canada.55

He later wrote to Secretary of State Elihu Root, urging the

 

551bid., 12. These also appeared in the First In-
terim Report of the American Section in 1905 but without ref-
erence to a treaty. Ibid., 528.

54Copy of leaflet, Gibbons Papers, Vol. 1, P.A.C.

55James D. Richardson, Compilation of the Messages

ggd Papers of the Presidents (Washington, 1911), XVI, 73§3.

19
continuation of negotiations with the British Ambassador for
a treaty along these lines, as "there is no more worthy ob-

ject before the people at this time."56

Public pressure resulted in a congressional resolu-
tion for a report from the International Waterways Commission
on what is "necessary and desirable to prevent the further
de-pletion of water flowing over Niagara Falls" and "for the

preservation of the said Niagara Falls in their natural con-

dition."57 The American fommissioners who had postponed

meeting for over three months now wanted an immediate recom-
mendation by the Commission to "cancel all charters" at Niag-
ara Falls, except where "works had been constructed."58

It was now the Canadian Cbmmissioners who took their
turn at procrastination. Although they had been preparing a
policy on Niagara Falls for many months they were not yet
ready to act. A Dominion Cabinet Subcommittee of Charles
Hyman, Ministerof Public Works, Charles Fithatrick, Minis-
ter of Justice, and Allen B. Aylesworth, the Postmaster-
General, was formed in January to consider what "steps shall
be taken in accordance with the reports of the Commission to

definitely settle the whole question of jurisdiction, both as

 

56Roosevelt to Root, Feb. 14, 1906, Elting E. Morison

et al (eds.), The Letters of Theodore Roosevelt (Harvard, 1951)
V, 154.

_ 57U. 3., Senate Document No. 242, 59th Cong., lst
Sess., March 15, 1906.

58Second Interim Report of the Canadian Section of

the I.W.C., April 25, 1906, C.S.P., XLVII, No. 12 (1915),
Part I, 534. “"“"

9

20
to inter-national and inter-provincial power," but it had
done little more than to advise Gibbons to gain Ontario
Premier James Whitney's assent to the handling of this inter—

national issue by Dominion leaders.59 Apparently Laurier

was waiting for recommendations from the Canadian Section of
the Commission.60

Clinton's revision of the rules, as agreed upon in
the November meeting of the full Commission, had finally

been forwarded to the Canadian Section in February.61 Am-

biguously worded and applicable only to the St. Marys River
except on federal control of water beds and shores of the
Great Lakes, this list of principles was too limited to sa-
tisfy the Canadians. There was a definite split between the
two sections at this time on development of electric power
at Niagara Falls. The Americans wanted to put an end to
development -- the Canadians wanted to increase develOpment.
A misunderstanding between Gibbons and Clinton occurred when
Clinton received an unsigned letter, which he presumed to be
from Gibbons, complaining that the Americans were pressing
for a treaty to preserve Niagara Falls while they refused to

yield on the investigation of all problems along the boundary.52

 

59 '
HYman to Gibbons, Jan. 30, 1906, Gibbons Papers,

Vol. 5, P.A.C. Whitney did agree to this.
600666 to Gibbons, Feb. 19, 1906, ibid., Vol. 1,

61Clinton to cote, Feb. 9, 1905, ibid., Vol. 10. See
Appendix D for this revision.

6gclinton to Gibbons, April 9: 1905: ibid., Vol. 5.

21
Louis Costs in the Canadian Section sent this letter -- not

Gibbons. An exchange of telegrams clarified the situationfi:5

Gibbons worked out a set of principles which provided
for a treaty upholding the primary right of navigation in
the Great Lakes, with diversion for domestic purposes and
for the service of locks in navigation canals, a limitation
on diversion at Chicago and at Niagara Falls, equal diversion
elsewhere of waters not needed for navigation, no action in
cross boundary waters to injuriously affect navigation in
either country, and a permanent joint commission to apply
these principles. He also made reference to a future report
on the detrimental effect of a Lake Erie underwater dam.
These principles were approved by the Canadian government
and incorporated in a report of the Canadian Section.64

But the American Section had already recommended
legislation forbidding further diversion at Niagara Falls,

this to be made permanent by a treaty.65 Both sections had

to accept a compromise in order to get a joint report. The
Canadians were unwilling to negotiate a treaty on Niagara

Falls alone. The Americans were unwilling to endorse

 

. 63Clinton to Gibbons, April 11, 1906, ibid. The
letter was mistakenly identified as having been written by
Gibbons in an article by Alan 0. Gibbons, "Sir George Gibbons
and the Boundary Waters Treaty of 1909," Canadian Historical
Review, XXXIV (1955), 124-58. Gibbons no doubt had similar
views.

54Seoond Interim Report of the Canadian Section,
C.S.P., XLVII, No. 12 (1915), Part I, 554. See Appendix E.

65Report of the American Members of the I.W.C., Re-
garding the Preservation of Niagara Falls, March 19, 1906,
ibid., 440.

22
principles applicable to all boundary waters. The solution
was a reservation by the American Section to the principles

listed in the Joint Report, and the Canadian endorsement of

them as a basis for a treaty.66

The Joint Report on the St. Marys River followed

Clinton's earlier report-57 Its significance lay in it en-

dorsement by the Secretary of War as a basis for treaty ne-

68

gotiations. The Department of State in its acknowledgment

suggested that such negotiations wait upon reports of the

Commission on the several matters then under investigations.69

Another consequence of the work of the Commission was the
passage of the Burton Bill by Congress. This curtailed fur-
ther diversion of water at Niagara Falls pending treaty ne-
gotiations within a three year period.'70 The Canadian gov-
ernment was not successful in its attempt at legislation and
had to withdraw a bill to license exportation of electricity

on its third reading. Premier Whitney was opposed to its

—*

66Joint Report of the Commission on the Conditions
Existing at Niagara Falls, with Recommendations, May 5, 1906,
ibid., 559-40. See Appendix F.

67Report on the Conditions Existing at Sault Ste.
Marie, with Rules for the Control of the Same, Recommended
by the I.W.C., May 5, 1906, ibid., 541-51. See Appendix G.

68William Taft to Secretary of State, May 14, 1906,
Gibbons Papers, Vol. 5, P.A.C.

69Robert Bacon to Secretary of War, July 17, 1906,
C.S.P., XLVII, No. 12 (1915), Part I, 405-404.

7OU. s., statutes at Large, XXXIV, 626-28.

 

25
exclusion of companies in operation at the time:71

Gibbons had served on thetaommission for a little
over seven months. He could relish the part that he had
played in the progress toward the establishment of princi-
ples to be administered by a permanent Joint commission.
Although he was not alone in his conviction that principles
should govern boundary water disposition, he was the most
persistent Commissioner in pursuit of this goal. It seemed
as if a successful culmination to his efforts for attreaty
was not far off. But ten months of frustration and delay
lay ahead before any treaty negotiations would be started --
and these would end in failure. Four years lay between him

and the final treaty ratification.

 

VlDominion of Canada, I Parliamentary Debates (1907),
1292-96. The debate on this bill on the third reading was
interesting, particularly Premier Whitney's objection to an
amendment, referred to in the debate. Dominion of Canada,
III Parliamentary Debates (1906), 4055.

 

 

II. PRELIMINARIES: PART II

International Relations

 

International relations had a bearing on the pro-
gress made towards the Boundary Waters Treaty. Great Britain,
from the extreme isolation of 1896, sought firm friendships
with several nations, among them, the United States. Various
acts indicated British policy: the Venezuelan boundary was
settled at the behest of the United States; American inter-
vention in the Cuban rebellion was tacitly accepted; coopera-
tive action on keeping the Chinese market open was offered in
1898; in 1905 the British representative on the Alaskan Boun-
dary Tribunal supported the American position. It was evi-
dent that Britain wanted the friendship of this rising world
power.

But future Anglo-American relations were endangered
by Canadian resentment over the Alaskan boundary settlement.
If such feelings continued there was bound to be friction.
Important in the improvement of these relations was the ap-
pointment, in late 1904, of Earl Grey as Governor-General.
Friendlier than his predecessor towards Canada's neighbor,
his influence helped to smooth over suspicions and hostile
attitudes. Sir Edward Grey, British Foreign Secretary, also
helped in the improvement of relations.

24

25

The United States was also interested in promoting a
policy of friendship across the border. Early in 1906 Presi-
dent Roosevelt wrote to Governor-General Grey that he was
anxious to do all he could to "increase the good feeling be-
tween Canada and the united States."1 One of the first acts
of the new Secretary of State Root in mid-1905 was a trip to
Newfoundland to study the Atlantic fisheries problem at first-
hand. That fall he engaged Chandler P. Anderson, a New York
lawyer with experience on the Joint High Commission in 1898,
as Special Counsel on Canadian issues.2 Root wanted to over-
come Canadian resentment over his service on the Alaskan tri-
bunal. In the spring he gave a noteworthy speech on mutual
institutions and goals of the two countries.3 Grey was great-
1y impressed by his remarks and found, in a later conference
with Root and the British Ambassador, interest in negotiating
a treaty or series of treaties on all outstanding issues be-

tween Canada and the United States.4 He thereupon urged the

 

lRoosevelt to Grey, Jan. 19, 1906, Laurier Papers,
Vol. 751, P.A.C.

2Anderson was a Harvard Law School Graduate who was
admitted to the New York Bar in March, 1890. He served as
Secretary for the United States on the Bering Sea Claims Com-
mission 1896-1897 and on the Joint High Commission 1898-1899,
and as Associate Counsel for the Alaskan Boundary Arbitration.

sGiven at the Pilgrims Day Dinner held in New York
City March 51, 1906 in honor of Governor-General Earl Grey.
Robert Bacon and James Brown Scott (eds.), Miscellaneous
Addresses (Harvard University Press, 1917), 152-60.

4Grey to Laurier, April 4, 1906, Laurier Papers, Vol.
731, P.A.C.

 

26
British Foreign Secretary to send a Canadian expert to Wash-
ington to help the British Ambassador in his negotiations with
Root, since he thought there was an opportunity to clean the
slate of all controversial issues; even the Atlantic fisheries
problem stood a good chance of being "buried forever."5 But

he thought "paralysis will result" if the Democrats took over
the Presidential office.

There is no doubt that the situation at Niagara Falls
played an important part in the desire in the United States

to settle outstanding differences between the two countries.6

Grey noted that the President and Root had that subject ”very

near to their hearts."7 Roosevelt dashed off a note to Root,

suggesting that in "this Niagara Falls business" the United

States appoint a Special ambassador:

Who will negotiate in Canada with a representative of
the Canadian Government. Of course this means a re-
versal of the policy that would have to obtain were
England's control of Canada absolute, and all we could
do would be to appoint a special ambassador and say
we would be delighted to have him conduct the nego-
tiations on Canadian soil. Of course in this event

Canada would do the rest and would endeavour to se-

cure the appointment of a8 ambassador that would look
after Canada's interests.

Although this idea was not carried out, Roosevelt

may'have had some influence on the change in British

5Grey to Lord Elgin, April 5, 1906, ibid.
6 "

Grey to Laurier, April 14, 1906, ibid.
7Ibid.

8MB 1 1906 Chandler P. Anderson Pa ers
Manuscript gavis ’ p ’

Box 68,
ion, Library of Congress.

27

ambassadors, since his disrespect for Ambassador Mortimer
Durand was one obstacle to improved Anglo-American relations.
Roosevelt wrote to the United States Ambassador in London
that Durand, "though a highrminded, honest fellow, is simply
entirely incompetent for any work of delicacy and importance."
The French and German Ambassadors, as well as Root, agreed
with him, he continued, and "not one dreams of talking over
anything with him save as you might recapitulate it to an
ordinary dispatch agent."9

Durand was unable to understand wherein he had failed
in washington.10 But by year's end, arrangements had been
made for a new British Ambassador, James Bryce, a notable
authority on American government.11 Bryce fitted into the
Washington scene easily. In addition to his scholarly en-
thusiasm for the United States government, his personal zeal
for travel endeared him to Americans. He could not see a
hill without wanting to climb it. In the several years that
he was the British Ambassador in Washington, Americans watched
the travels of a near septuagenarian who crisscrossed the
country several times to make speeches and welcomed the chal-

lenge of fitting his appearances into complex railroad and

9T0 Whitelaw Reid, April 28, 1906, Morison, 251.
lOEsme Howard, Theatre of Life (Boston, 1956), 107.

 

11Bryce to "Carnegie", Dec. 24, 1906, Elihu Root
Papers, Container 44, Manuscript Division, Library of Congress.

28
steamship connections. Bryce was "empowered to do all his

best to settle outstanding questions between the two coun-

tries."12

The only recalcitrant in the group was Prime Minister
Laurier. Although he saw friendly relations between the
United States and Britain as "a necessity of nature," he was
reluctant to take any step closer to the leaders in Washington.
Suspicious of Roosevelt and aware of the increasing indepen-
dence of the dominions within the British Empire, his reser-
vations about a satisfactory outcome for Canada in any nego-
tiations counterbalanced the optimism of British and United
States leaders. His reluctance was based on past experience.
He refused to open formal discussions on a treaty until as-
sured that agreement could be reached on all major issues.15

After Root presented possible topics for discussion, Laurier

delayed three months before submitting his list.14

Some Boundary Water Problems

 

Both Laurier and Root considered the use of inter-
national waters as a topic for discussion, as well as logging

booms in the St. John River.15 But Laurier wanted the first

 

12John C. Hopkins et al (eds.), Canadian Annual Re-
giew of Public Affairs (Toronto, 1902-1958), 1907, 599-40 .

13Ibid. Also see letter of Grey to Lord Elgin, April
14, 1906, Laurier Papers, Vol. 751, P.A.C.
14Laurier to Grey, Sept. 25, 1906, ibid.

15Ibid.

29

matter to wait upon the final report of the International
Waterways Commission. As for the latter, he suggested that
a special commission be set up to handle the St. John River
matter since it had been ruled outside the commission's area
of investigation.16

Neither list of topics included a problem which had
figured in diplomatic correspondence for over a year, the
application of the Minnesota Canal and Power Company.17 This
was a proposal to divert some of the water from Birch Lake and
Rainy River in Minnesota which drained into the Lake of the
Woods and eventually into Hudson Bay; instead, the diverted
water would drain into Lake Superior and furnish electric
power at Duluth. Such diversion would lower water levels in
the Lake of the Woods and boundary rivers so that a Canadian
steamship company could not operate its boats. Technically
outside the restricted investigatory powers of the Commission,
this problem had nevertheless been considered within its scope
by both Canadian and United States authorities. And in May
of 1906 Root himself referred this problem to the Commissioners

"for an expression of their views."18

16James Callahan, American Foreign Policy in Canadian
figlations (New York, 1957), 494, 457.

1'7Inrra, 9. See also Brief submitted by 0. H. Simonds
June 15, 1906, Gibbons Papers, Vol. 12, P.A.C. and letter of
F. B. Loomis to M. Durand, Jan. 25, 1905, C.S.P., XLVII, No.
12 (1913), Part I, 215. "“

18Root to Secretary of War, May 14, 1906, ibid., 450.

50

Here was an opportunity for Gibbons to elaborate on
principles to govern questions of boundary water use, regard-
less of which country was the injured party. The issue was
similar to that in the St. John River; that is, citizens in
one country affected a river's flow into another country so
that injury was done to that country's citizens. It might
very well set a precedent for settlement of all such ques-

tions.19

Gibbons and Clinton were delegated at a commission
meeting to make a report on the application; before two weeks

had passed, Gibbons forwarded two draft reports to Clinton,

20

pressing for quick action. Clinton acted as a drag anchor

to this impetuosity, explaining that the adoption of princi-
ples contrary to the former position of the United States on
waters within one country affecting water use in another coun—
try necessitated careful consideration of drafts by all com-
missioners so that unanimous agreement could be reached.21
Gibbons was loath to have draft copies circulated to
the other commissioners, possibly because he feared consoli-
dation of opinions along national lines.22 His fears had

some foundation as there is evidence that Clinton was

19Hyman to Gibbons, June 8, 1906, Gibbons Papers, Vol
5, P.A.C.

20Gibbons to Clinton, June 18, June 21, 1906, ibid.

21Clinton to Gibbons, July 9, 1906, Aug. 51, 1906,
ibid. The death of George Wisner July 5rd and the appoint-
ment of his successor, Eugene E. Haskell, on July 24th also
caused some delay. Haskell was a Cornell University Pro-

fessor of Civil Engineering.

0

22Clinton to Gibbons, Sept. 26, 1906, ibid.

C)

(3

51

influenced by Ernst and was willing to compromise on princi-
ples he had earlier supported.23 He now suggested approval

of the application, provided that the company carry out cer-

tain remedial works to be set by the Canadian Section.24

Gibbons held firm for the establishment of principles by con-
current action of both countries to cover all cases irrespec-
tive of individual circumstances. The final report, reject-
ing the application, marked the success of his efforts.25

The American Section's compliance on this report was
tied in with another application in which the United States
might be the injured party. A Canadian company wanted to
build regulating works on the Richelieu River within Canada
which would affect the water levels of Lake Champlain and
possibly cause flooding on the lake shores in New York and
Vermont.26 This application could not be rejected without
rejecting the application of the Minnesota Company. In both

cases it was decided that a treaty was needed to "define the

‘

Zasee principles of Clinton in Appendix B, especially
No. 8.

24Clinton to Gibbons, Oct. 9, 1906, Gibbons Papers,
Vol. 5, P:A.C.

25Joint Report on the Application of the Minnesota
Canal and Power Company of Duluth, Minnesota, for Permission
to Divert Certain Waters in the State of Minnesota from the
Boundary Waters Between the United States and Canada, 1906,
C.S.P., XLVII, No. 12 (1915), Part I, 562-65. See also cats
to Gibbons, Nov. 17, 1906, Gibbons Papers, Vol. 2, P.A.C.

26Joint Report on the Application of the International
Development Company for Permission to Construct Regulating
Works on the Richelieu River, No. 15, 1906, C.S.P., XLVII,
No. 12 (1913), Part I, 551-55.

972..

52

uses to which international waters may be put by either coun-
try without the necessity of adjustment in each instance.27
Gibbons confided to Bryce that the Richelieu River report was
instrumental in getting the adoption of the principle that
~"neither country was at liberty to obstruct the flow of waters
which cross the boundary to the injury of public or private
interests in the other State."28

The final report on the Minnesota Canal and Power
Company application also stressed the need for a permanent
commission to decide upon diversions other than for navigation
and navigation locks or for domestic and sanitary purposes.29
This was the first report to recognize the permanent use of
waters at Chicago for sanitary purposes. Although an earlier
report had recommended the limitation of the diversion at
Chicago to a maximum of 19,000 cubic feet per second, the
Canadian Section now accepted the diversion without a set
maximum since Gibbons believed that the United States would
not allow excessive diversion. Commissioner William King and
Secretary CGté disagreed but Gibbons was convinced that navi-

gation interests in Lake Michigan would assert their rights.
He also thought that diversion in Lake Michigan was not the

¥

27Canadian Annual Review, 1906, 650.

28Gibbons to Bryce, March 19, 1907, Gibbons Papers,
Vol. 8, P.A.C.

29Joint Report on the Application of the Minnesota
Canal and Power Company, C.S.P., XLVII, No. 12 (1915), Part
I, 565. See Appendix I.

33

concern of Canada even though the lake was an integral part

Of the Great Lakes system.30 He was more confident than many
“Americans that special interests would block each other's ex—
ploitation of the country's resources.

,The use of water by each country for domestic purposes
was established through practice, as exemplified in the case
of Buffalo. Chairman Ernst wrote to Gibbons that only an Act
of Congress was required for approval of Buffalo's application
to get its water supply from Lake Erie. According to Ernst,
the Commission Resolution giving its consent to the construc-
tion of a needed tunnel and inlet pier, partly in Canadian
waters, "if such could be built without injury to navigation
or other public interest," was only to avoid delay on the for-
mal application of the Buffalo Mayor to the Canadian Govern-

merit.:51

But the greatest significance of the report lay in
two new interpretations. Cne concerned the Treaty of 1842 on
binational rights of navigation from Lake Superior to the Lake
of the Woods. A previous interpretation had defined the phrase,
"as now actually used," to mean protection of the mode of trans-

portation then used, i.e., canoe travel.52 The Cbmmission now

g

BORecommendations Agreed Upon by the Canadian Sec-
tion Nov. 9, 1906, Gibbons Papers, Vol. 10, P.A.C. These
were incorporated into the I.W.C. report on the Chicago
Drainage Canal, C.S.P., XLVII, No. 12 (1915), Part I, 515-75.
See Appendix H.

51Ernst to Gibbons, July 5, 1906, Gibbons Papers, Vol.

5,aP.A.C
52Infra, 3. Anderson's Report on Minn. Canal and
Power Co., Decimal Files, Dept. of State, 1718/28.

54

saw that phrase as a description of the portage route at the
time of the treaty and argued that the entire sentence pro-
tected the rights of navigation by citizens of both countries,
thus prohibiting any diversion which would lower waters in
the Lake of the Woods so that it could not be used by steam-
boats.

The other interpretation was equally important. It
set up international comity to govern streams flowing from
one country to another. This interpretation contravened the
Harmon Opinion given by the United States Attorney General
in 1895. 21 Op. 274. According to this opinion, a nation ex-
ercised absolute sovereignty over waters within its own terri-
tory and could use them regardless of the injury inflicted on
another nation's citizens.53 It was now proposed that "the
sovereign power should not be exercised to the injury of a

friendly nation or of its citizens or subjects, without the
consent of that nation." And it was recommended that common

law principles "so far as they are founded in justice and

equity, ought, where practicable, to be applied by nations
acting in their sovereign capacity."54 It was stated that
if there was a breach of comity the country whose citizens

were injured could retaliate by engaging in a reciprocal

 

action.
Another problem engaged the attention of the Canadian
55Joint Report, C.S.P., XLVII, No. 12 (1915), Part I,
564.

54Ibid., 565.

55

Parliament in early 1907. This was how to force Canadian
electric power companies to provide sufficient electricity to
meet Canadian needs before exporting to the larger United
States market. The earlier attempt to regulate by license
requirements had been dropped when existing companies were
exempted.35 The new bill, brought in January 11th for its)
first reading, levied export duties on those companies fail-
ing to comply with the conditions of the license to supply
power needs in Canada, these duties to be imposed at the dis-

cretion of the Governor in Council.56

There were members of Parliament who viewed this bill
as facilitating the exportation of power to the United States
and who wanted to prohibit all exportation, or limit it to one-
half of all power generated in Canada. The amendments sup-
porting these views were defeated, as was the amendment to
transfer the licensing authority to the Board of Railway Com-
missioners. The bill was passed as first proposed by the new
Minister of Justice, Allen B. Aylesworth, after consultation
with Gibbons.57

During these months Gibbons sought to present a pic-
ture of a harmonious, smoothly functioning section to encour-

age sentiment for a permanent commission. This was difficult,

as there was a difference among Canadian members over the

n;

55Dom. of Canada, I Parliamentary Debates (1907),

 

1295.
56Ibid.

57Telegram, Aylesworth to Gibbons, Dec. 1, 1906,
Gibbons Papers, Vol. 5, P.A.C.

 

56

Chicago diversion. Commissioner King and Secretary 06th went
to see Minister Hyman but he supported Gibbons.38 There was
also criticism of the Lake Erie Dam investigation by the new
acting Minister of Public Works, Sydney Fisher, who failed to
understand why time should be spent on a project so clearly
damaging to Canadian interests.59 Later in the spring, Gibbons
talked to the Cabinet about the International Waterways Com-
mission as members did not understand its function.40

Ever present was the constant friction between Gibbons
and Secretary Cfité, a man who presumed authority while fail-
ing to carry out the routine duties of his office. Cété had
a newsman's nose for ferreting out information, as well as a
tendency to divulge commission business to cabinet members and
others. He wrote reports without authorization and gave ad-
vice freely; it did not help that it was usually right. Most
irritating were his frequent absences from the office to work

on the liberal journal La Presse in Montreal. His expectation

 

of pay for these days compounded the frustration of the scrupu-

lously honest Gibbons. The hopes Gibbons had of getting his

 

5808te to Gibbons, Oct. 26, 1906, ibid., Vol. 2. King
gave up his seat on the commission Feb. 5, 1957, without let-
ting Gibbons know, indicative of poor communication between
the two. Cdte to Gibbons, Feb. 18, 1907, ibid., Vol. 5; Gibbons
to Cate, Feb. 20, 1907, ibid., Vol. 8; Gibbons to Ernst, Nov.
1, 1907, ibid., Vol. 8. William J. Stewart, Chief Hydrogra-
pher of Canada, was appointed April 6, 1907.

59Fisher to Laurier, Feb. 4, 1907, ibid., Vol. 5.
Hyman was ill for several months before his resignation Aug.
29, 1907. Hyman to Gibbons, May 22, 1907, ibid., Vol. 5.

4OGibbons to Fisher, April 19, 1907, ibid., Vol. 8;
Gibbons to Howard, May 2, 1907, ibid., Vol. 5.

57
resignation were never realized -- the political value to

Laurier of the Montreal journalist outweighed the annoyance

he caused Gibbons.4l

The Commission by late spring was considering two
Canadian projects which might interfere with navigation in
the United States. But they are outside the scope of this
paper, as Gibbons was by then involved in conferences prelim-
inary to treaty negotiations. This study of his work on the
Boundary Waters Treaty must accordingly turn to a review of

his efforts as a special commissioner for the Canadian Govern-

ment.

Gibbons as Special Commissioner

In late January of 190? Gibbons :received special au-
thority by an Order in Council to confer with Washington
authorities about a permanent joint commission and the esta-
blishment of principles to govern water disposition along the
boundary. Gibbons was Optimistic that he could achieve some
satisfactory arrangement with United States leaders on the
use of boundary waters. This confidence arose out of his be-
lief that Canadians had suffered in earlier settlements with

the United States because they had_not controlled negotiations.

4lcete to Gibbons, Feb. 2,1906; Feb. 9, 1906; Feb. 19
1906;Feb. 22,1906, March 27,1996;C6te to Hyman, April 50,
1906; Gate to Gibbons, May 7, 1906; May 8, 1906; May 19,1906;
May 25, 1906; May 29,1906; June 15, 1906; July 12, 1906; Sept.
17,1906; Oct.26, 1906;Nov. 17, 1906; Nov. 25,1906; Nov. 24,
1906; Nov. 50, 1906; Dec. 19, 1906; Dec. 21, 1906; Dec. 25,
1906, Gibbons Papers, Vols. 1-2, P.A.C.

58
His own experience in dealing with his southern neighbors had

shown him that they would be fair if he never asked for more
then what Canada was entitled to aminever took less than what

Canada should receive.42

Upon receiving the Order in Council he requested the
Chairman of the American Section, 0. H. Ernst, to make appoint-
ments for him with the Secretary of War and possibly the Sec-
retary of State.45 He later complied with\Root's suggestion,
forwarded by Ernst, that he get in touch with the British Em-
bassy "in order that diplomatic courtesies be observed."44
In the first meeting with Secretary Root, Secretary of War
William Taft, and Assistant Secretary of State Robert Bacon,
Gibbons formed an unfavorable first impression of Root r- "the
shrewd American who wants all he can get without being parti-
cular about the manner of getting it."45 On the other hand,

-he liked Taft. Perhaps this initial reaction was due to Root's
rejection of Gibbons' cherished principles and Taft's acceptance
of them. Root, of course, was the abler diplomat and undoubtedr

ly chose the course more advantageous for the United States.

*

42Gibbons to Fisher, April 19, 1997, ibid., Vol. 8.

45Gibbons to Ernst, Jan. 24, 1907, ibid. The I.W.C. waS‘
under the Secretary of War who had jurisdiction over boundary

waters. 44Ernst to Gibbons, Jan. 51, 1907, ibid., Vol. 5;
Gibbons to Howard, Feb. 2, 1907, ibid., Vol. 8; Howard to
Gibbons, Feb. 4, 1907, ibid., Vol. 5.

45Gibbons to Laurier, Feb. 15, 1907, ibid., Vol. 8.

59
As was characteristic of him, he had done preparatory work,
having had Special Counsel Anderson write a memorandum on the

effect of the principles on the national intereSt.46

Anderson pointed out disadvantages that could obtain
if the United States were restricted: Equal diversion for
irrigation would prevent carrying out a project in the St.
Mary and Milk Rivers in Montana; the United States had a
greater amount of water in the Great Lakes on its side of the
boundary which Should warrant special consideration in any
division of the waters; there would be loss of control over
navigable waters entirely within national boundaries; no at-
tention was given to the adverse effects of raising water lev-
els; and no guarantee was given to the Chicago diversion.47
Root, therefore, was disinclined to assent to principles
which would limit his bargaining position in future negotia-
tions. The decision of the conference was that Gibbons meet
with Ambassador Bryce, soon to arrive in Washington, and then
confer again with the two American Secretaries. In the meet-
ing with Bryce, Gibbons found him to be "alive and keen and
with an astonishing knowledge of Canadian affairs."48 Bryce

was a willing listener since he knew that the British Colonial

 

45300t to Anderson, Dec. 24, 1906, Anderson Papers,
Box 68.

47 Anderson to Root, Dec. 28,1906,ibid. This is a memo-
'randum on the seven principles suggested by the Can. Section

to govern a treaty. 82* A*np:».i L. ~

48Gibbons to Laurier, March 19, 1907, Gibbons Papers,
Vol. 8, P.A.C.

40
Office and Foreign Office wanted "to ascertain the wishes of
Canada, and that every posSible regard will be shown to what
those needs and desires are."49

Both Secretary Root and Ambassador Bryce visited Canada

that spring, proof of the importance attached by both Great
Britain and the United States to bringing about a change in
Canadian attitudes.50 In a speech to the Canadian Club in
Ottawa, Root dwelt on common elements in the heritage of the
two countries.51 Despite some adverse press reports on his
visit, the general impression was that the United States was
coming closer to Great Britain, appreciated the importance of
Canadian friendship, and that better relations were very prob-

able.52

Throughout the spring Gibbons continued to press for
principles "which out both ways."5:5 Although he spoke in Jan-
uary of obtaining these by reciprocal legislation, he thought
even then that only a treaty could settle the controversy over

54

federal versus state control of boundary waters. He thought

of legislation as temporary. Characterizing special commissions

 

49Canadian Annual Review, 1907, 402. From a speech by
Foreign Secretary Grey in the House of Commons on March 26th.

 

50Ibid., 598-402.

51Robert Bacon and James Scott (eds.), Miscellaneous
Addresses, 157-61.

5ZCanadian Annual Review, 1907, 599.

53Gibbons to Aylesworth, Jan. 14, 1907, Gibbons Papers,
Vol. 8, P.A.C.

54Ibid.

 

41

as partisan and unsatisfactory, he was determined to get a
permanent joint commission.55 In addition, he argued that
such a commission need not confine itself to questions on
boundary waters but could be an advisory body on all new mat-
ters and "might act in a judicial capacity in giving effect to
agreements entered into by the two countries."56 0n matters
of difficulty between the two countries, the commission could
"ascertain and report upon the facts and recommend action."57

From the beginning, Gibbons thought of Clinton as the
person in the American Section with whom he could work. No
doubt his choice was due to Clinton's legal training, since he
saw no use in discussing some questions with engineers.58
Gibbons had hoped that Clinton would attend his first meeting
with Root.59 He had invited Clinton to go to Washington and
suggested to Ernst that Clinton be at his meeting with the Sec-
retaries of War and State.60 Nothing came of this suggestion
but in May Gibbons again indicated his desire to work with
Clinton, this time through official channels.61 Root took up

this idea and the stage was set for their conferences.62

 

55Gibbons to Fisher, April 19, 1997,‘£ppg.

56Gibbons to Bryce, March 19, 1907, gggg.

5'7Gibbons to Fisher, May 2, 1907, 1219,

59521g. Two letters were written to Fisher on this date.

59Gibbons to Clinton, Jan. 24, 1907, ibid., Vol. 8.
60Gibbons to Ernst, Jan. 24, 1907, ibid.

61Gibbons to Cartwright, May 5, 1997, ibid.

62

Root to Clinton, May 17, 1907, Dept. of State,
4954/1A.

42

On the second May of his tenure as Chairman of the
Canadian Section Gibbons had made remarkable progress in in-
creasing Canadian power over boundary waters. Now questions
were being referred to the International Waterways Commission
for investigation and report; the United States had accepted
the necessity for a continuous commission; the reports of the
commission were being upheld by both countries. And Gibbons
had played an important part in a matter very dear to him, a
bill for the control of the exportation of electricity which
at the same time permitted Canadian capital to sell surplus

power in the American market.

III. TREATY NEGOTIATIONS: FIRST STAGE

Misunderstood Instructions

 

The purpose of the meetings of the two Cbmmissioners
was obscured by vague instructions, was changed as ideas ma-
tured, and was misinterpreted by busy government officials.
Whether Gibbons and Clinton were supposed to prepare a re-
port on enlarging the powers of the commission for the fur-
ther study of that body or to prepare a draft treaty is un-
clear. Out of the confusion created by the interchange of
ideas among the personnel of the three governments emerged
the Gibbons-Clinton draft treaty, due largely to the efforts
of Gibbons who was convinced that a treaty was the only way
in which Canada could obtain equal justice with its more pow-
erful neighbor.

Gibbons did have official instructions to proceed to
Washington to "endeavour to facilitate some arrangement to
carry into effect the recommendations of our Commission and
to establish a permanent joint commission."l He did not have

specific instructions to negotiate a treaty.2 Prime Minister

 

1Gibbons to Howard, April 15, 1907, Gibbons Papers,
Vol. 8, P.A.C.

2The Order in Council stated: "The Minister recom-
mends that Mr. George C. Gibbons. . . be authorized to go to
Washington and confer with the United States Government as to
whether arrangements can be made for legislation on the part
of the United States reciprocal with similar legislation legis-
lation of Canada, providing so far as each country is concerned

43

44
Laurier, willing to let events shape most decisions, left in
April for the Colonial Conference in England and left behind
him acting Prime Minister Sir Richard Cartwright, a man who
knew little about the Commission. Gibbons took advantage of
this break in leadership and wrote to Cartwright that the
Order in Council directed him:

To negotiate with the authorities at Washington with
the view to confirming the principles agreed upon by
our joint Commission by a treaty or legislation and
to create a permanent Commission to give effect to
these recommendations and also as I understand it to
give this permanent Commission jurisdiction of an ad-
visory character as to all matters of contention be-
tween the two countries which hereafter might arise
as to the use of international or boundary waters.

Gibbons went on to eXplain why a treaty was desired.
It would need only Senate confirmation; legislation could
easily be reversed later on. When Aylesworth advised Gibbons
that the Privy Council had authorized him only to prepare

legislation, he replied: "Everyone in Washington agrees that

«4

a treaty is better. Aylesworth did not raise the point

again.

Ambassador Bryce's eagerness to cooperate with Cana-
dians may have led to further confusion. He was enthusiastic
about all the proposals made by Gibbons at their first meeting

and later wrote an ambiguous letter which, on hurried reading,

for giving legislative effect to these recommendations, and that
Mr. Gibbons shall report to your Excellency's Government the re-
sult of such conference and what arrangements can be made with
the Government of the United States for carrying out the said
recommendations." Record Group 2, Series I, Vol. 1026, P.C. 55,
Jan. 14, 1907.

5Gibbons to Cartwright, May 5, 1907, ibid., V01. 8.

4Ay1esworth to Gibbons, July 15, 1907, ibid., Vol. 5.
Gibbons to Aylesworth, July 15, 1907, ibid., V01. 8.

45

seemed to connect the boundary waters discussion with two
treaties about to be submitted to the Senate.5 This may
have led Gibbons to count on the.‘mbassador's full support
for a treaty. But, in reality, Bryce himself was not sure

as to the procedure to be followed by Gibbons. Months later,
he wrote that he thought the Gibbons-Clinton draft treaty

was to have been "reviewed by all members of the commission,"
before submission to the two governments.6 By that time,

however, the Commission had been bypassed and Bryce was un-

 

 

concerned about the fact.

Bryce was faithful in reporting to Canada on his
conversations with Root. But these diplomatic dispatches
referred to many matters; without a Minister of External Af-
fairs to handle them, they turned up in various departments.
Gibbons was furious when Cate learned about his meetings
with Clinton through the careless handling of this diploma-
tic correspondence.7

Root continued to change his ideas on how the en-
largement of the commission's duties could best be accom-
plished. At first he thought that the commission itself
should study and report "what powers might be vested in a

commission for dealing with international waters."8 By

5Bryce to Privy Council, No. 56, May l7,1907,ibid.
Vol.14
' .6Bryce to Gibbons, Dee. 6,1907,.ibid., Vol. 5. ' -

706te to Gibbons, June 16, 1907, ibid., Vol. 2;

Gibbons to Aylesworth, June 17, June 20, June 24,1907,
ibid., Vol.8.

8Enclosure in Bryce to Privy Council, No. 56, May
17. 1907, ibid., Vol. 14.

46
mid-May, Root decided that the commission had no power to en-
gage in such discussions and swung over to the view Gibbons
had had for many months. This was that Gibbons and Clinton
should enter into initial discussions and submit their con-
clusions to their respective governments.9
In elaborating on this idea Root envisaged the two

men as considering I"the scope of the duties of the Commis- 1
sion, the degree of finality which its conclusions are to re-

ceive, the extent to which we shall endeavor to lay down the

 

 

Ll)
principles upon which it is to act."10 At this time he was ‘

not sure whether concurrent legislation or a treaty would be
better to put these ends into effect. But at no time did he
view these meetings as anything more than very informal talks.ll
In order to transfer the new commission with broader powers

into the Department of State, where it seemed to belong be-
cause of its diplomatic character, Root proposed to Bryce

that there be two commissions; the old one reporting to the
Secretary of War, the new one to the Secretary of State. To
further obfuscate matters, he advised that the members of the
two commissions be the same.12

Upon being invited to meet with Gibbons, Clinton con-

fessed immediately that he was "wholly in the dark regarding

 

9Ibid.
lORoot to Clinton, May 17, 1907, Dept. of State, 5954/1A.

llRoot to Clinton, May 25, 1907, ibid., 5954/2.

l2Enclosure, Laurier to Gibbons, April 25, 1907, Gibbons
Papers, Vol. 5, P.A.C.

47
general purposes of the treaty and the extent of jurisdiction
of the commission."15 Nevertheless he had some opinions. He
wanted a treaty rather than legislation. And he thought that
the new commission should have more lawyers on it than the
old commission did.14 But he assured Root that he was eager
for more detailed instructions.15 Gibbons remained determined
to get a treaty with principles which would apply to all sit-
uations in boundary waters and a permanent commission to en-

force them which would also serve as an advisory board on all
16

 

 

issues arising between the two countries.

The Gibbons-Clinton Draft Treaty

 

Clinton and Gibbons were unable to get together until
mid-June; but the sanguine Gibbons wrote several times to
Clinton, suggested their meeting in Washington to confer with
"all concerned," and sent him a memorandum on what they were
to do.17 In turn, Clinton criticized the memorandum for the
narrow jurisdiction given the commission, went to Washington
to get Root's advice, and presented Gibbons with "Proposed

Treaty Clauses" at their first meeting.18

 

15

Clinton to Root, May 24, 1907, Dept. of State,
5954/5. 14

Clinton to Root, May 19, 1907, ibid., 5954/2.

15Clinton to Root, May 27, 1907, ibid., 5954/4.

16Gibbons to Fisher, May 2, 1907, Gibbons Papers,
Vol. 8, P.A.C.

l7Gibbons to Clinton, May 20, 25 (2 letters on this
date), 27, 1907, ibid.

18Clinton to Gibbons, May 24, May 28, 1907, ibid.,
Vol. 5.

48
Gibbons saw Root's hand in these clauses: A commis-
sion of four members, two from each country, would immediate-
ly choose a permanent arbitrator to settle any difference
which might arise; all questions referred to the commission
would be settled on the "particular circumstances which may
arise in each case"; and these decisions could only be en-

forced through concurrent legislation.19

The jurisdiction
of the commission would cover boundary waters, streams flowing
from one country to the other and tributaries of both, with
the St. John River specifically excepted. Free navigation
for citizens of both countries on all the Great Lakes and
the St. Lawrence River "from its source to the ocean" was to
be allowed. There would be no diversion or obstruction of
boundary waters or waters flowing from one country into the
other without just compensation as determined by the com-
mission; the paramount right to divert water for domestic and
Sanitary purposes and for service of locks for navigation was
recognized; in case of diversion for the generation of power,
there was to be equal division between the two countries.
And, finally, the commission was to make its reports to the
Secretary of State and a corresponding Canadian officia1.2O
Gibbons saw that the selection of a standing umpire

would defeat the whole object of a joint commission; it would

 

19First Draft of Treaty, ibid., Vol. 14. Clinton did
not submit this to Root before presenting it to Gibbons.

20Ibid.

 

 

 

49

encourage reliance upon an umpire.21 However, he was hopeful
of getting his oWn way quietly if some issue did not arise
"which would set the heather on fire."22 He submitted his
treaty clauses to Aylesworth and Cartwright for suggestions
before forwarding them to Clinton.25 He eventually managed
to discuss them with the peripatetic Bryce, then enroute from
Oklahoma to England.24

These clauses did not seem to differ much from Clin-
ton's and often used the same phraseology. Yet the minute
differences were fundamental ones. There was to be a six-
member commission which would call upon an arbitrator or ar-
bitrators only if a commission majority could not reach an
agreement; the maximum amount of water to be diverted by each
country from Niagara River was specified; the consent of both
countries would be necessary for diversion or obstruction of
boundary waters or rivers crossing the border; and the com-
mission was given power to delineate the boundary line through
the lakes. Where irrigation diversion was permitted, the
rights of each country and of its citizens "must be equitably
Protected."25 Waters could not be polluted to the injury of
health or property in the other country, and the boundary

21To Clinton, July 15, 1907, ibid., Vol. 5.

22Gibbons to Aylesworth, June 20, 1907, ibid.

23Gibbons to Cartwright, June 27, 1907, ibid.

24Howard to Gibbons, July 4, July 10, July 24, 1907;
E. Marion Bryce to Gibbons, Aug. 15, 1907, ibid., Vol. 5.

25Gibbons' revision of Proposed Treaty Clauses for-
warded to Clinton, Aug. 50, 1907, ibid., Vol. 14.

 

 

50
waters included the Columbia River, as well as the bodies of
water enumerated by Clinton. In early September Gibbons
added a final article which gave the commission power to
render advisory reports on all matters of difference between
the governments. The St. John River was not mentioned be-

cause Gibbons thought that the diplomats could settle that

issue 1ater.26

Clinton objected to "certain fixed principles. . .
which will become the rigid law of the two countries."27
He thought that this procedure left no scope:

For the adjustment of differences by the commission,
and will deprive it of all power to adjust the rights
and interests of parties concerned, to the particular
circumstances which may arise in any case, for the
commission will have nothing to do but to apply the
fixed rules laid down without regard to circumstances
which may make them inapplicable.28

Yet he did not want to "vest the Commission with too
great powers" and in his version he made Congressional action
necessary to enforce commission decisions although he saw such
legislation "forthcoming, almost as a matter of course."29
It appears that his objection to Gibbons' draft concerned the
freedom of the commission to act without any restriction by

Congress. In the final draft, reached in one more meeting,

Gibbons accepted concurrent legislation for the police powers

¥

26Gibbons to Clinton, Sept. 5, 1907, ibid., Vol. 8.
27Clinton to Gibbons, Aug. 14, 1907, ibid., Vol. 5.
28Ibid.

29Gibbons-Clinton Draft Treaty, ibid., Vol. 14.
See Appendix J.

 

 

 

51
of the commission."SO This was the only change from Gibbons'
version.
Gibbons, pleased with the draft treaty, wrote to

Laurier that he had not surrendered on any material point.51
It is not surprising that he and Clinton reached a compromise
so easily. They were accustomed to discussing commission L
matters objectively within a framework of common legal termi-
nology and arriving at conclusions acceptable to both sections.

Each respected the other's opinions and viewed the draft trea-

 

 

ty as a tentative proposal to be further developed. They con-
tinued to exchange ideas and later submitted amendments. There
was a mutual consideration of public interest by both men and
kindred beliefs about social responsibility.

Astute Canadian leaders made two suggestions. Laurier
saw the danger in defining the St. Lawrence River from the
forty-fifth parallel to the sea as a "boundary water.“52 And
Bryce took exception to the overlapping of this treaty with
the Delimitation of Boundaries Treaty.55 There was also
strong pressure in both countries to develop power in Niagara

River below the falls; Gibbons thought it politic "not to pre-

clude ourselves from further development there if it should be

 

50Ibid.

51Gibbons to Laurier, Sept. 24, 1907, ibid., Vol. 8.

52Laurier to Gibbons, Sept. 26, 1997, ibid., Vol. 5.

53Gibbons to Clinton, Nov. 26, 1907, ibid., Vol. 8.
The Delimitation of Boundaries Treaty on a survey of the en-

tire boundary was sent to Ottawa in May. Aylesworth to Gib-
bons, July 15, 1907, ibid., Vol. 5.

52
found advisable."34 These changes were incorporated in amend-
ments and sent to the two governments.35
Gibbons hurried to Washington in December to get quick
acceptance of the treaty but ran into opposition. He found
that Root had not given up the idea of special commissions for
specific problems although, as Gibbons put it, "No one knows
better than Root knows that special Commissions are a fraud."56
He characterized Root as "keen, agressive (gig and not over
scrupulous," a man who wanted "all the advantages he can get."5'7
Another person took an unfavorable attitude towards
the treaty. This was Special Counsel Anderson who, up to now,
had drafted all Rootfs treaties and memoranda relating to
Canada. Requested to evaluate the draft, he turned in a
generally negative report.58 He noted that banks, shores,
and tributary streams of boundary waters were not generally
thought to be under international law. He questioned whether
Gibbons' principles furnished any guidance on the use of waters

tributary to boundary waters or of streams crossing the bound-

ary, leaving the commissioners "free to adopt their own ideas

 

34Gibbons to Bryce, Dec. 2, 1907, ibid., Vol. 8.

55011nton to Root, Dec. 5, 1907, Dept. of State,
5954/10.

36Gibbons to Laurier, Dec. 16, 1907, Gibbons Papers,
Vol. 8, P.A.C.

571b1d.

38Report on the Draft Treaty Relating to International
Boundary Waters Proposed by George Clinton and George Gibbons,
transmitted to Root Dec. 9, 1907, Anderson Papers, Box 68.

‘11)"

Pl:

 

 

 

55
of justice and equity in the decision of questions arising
thereon which practically amounts to a power to legislate."
As he saw it, the principles "tend rather to raise questions
than to settle them" and failed to set priority in water
uses.

Anderson also pointed out that the consent of both
countries would still be required for other diversions;
hence the need for special agreements was not eliminated.
There was no provision made for the enactment of Special
legislation and he doubted whether the Senate would approve
a treaty which conferred unprecedented powers on another body.
He thought that federal and state laws were adequate in all
cases except where waters were divided by the boundary. He
could see no reason to permit Canadians free navigation on
Lake Michigan without a Similar concession from them. And
there was no provision for possible injury resulting from
elevation of water levels by dams. It was his conclusion
that the commission Should be given jurisdiction only over
contiguous boundary waters, based upon specific principles
decided upon by the two governments, with a stipulated pri-
ority among these plus allowance for local conditions.59
He later suggested that at Niagara, the United States

should not permit an export tax to be imposed by Canada on

any power generated in boundary waters.4O

_

39Ib1d.

40Anderson to Root, Jan. 30, 1908, Dept. of State,
5954/15-17.

 

 

 

54

The Canadians were adamant in wanting "principles
which shall govern everywhere."4=l Root had no doubt foreseen
this trend and had tried in June to get Canadian approval of
an irrigation project in Montana. At that time he had handed
a fourteen-point paper to Bryce to be used as a basis for agree-
ment. The project proposed the diversion of water from the St.
Mary River in Montana into the Milk River, which also began
in Montana, flowed into Canada, and then returned to the United
States, at which point the water was to be used for irrigation.
The gist of the paper was that Canada would not use the water
diverted into the Milk River while it flowed through Canada.42

Even earlier, Bryce had commented, in reference to
this project: "It would be a pity. . . to prejudice in any
way such action as a reconstituted Commission might take in
the case of the river."43 He made no official comment on it
in June. Now in December Laurier questioned Gibbons why all
such boundary irrigation projects could not be handled by the
commission.44 Gibbons replied that they could, and so could
boundary delineation through the lakes. But, he added, "The

matter will fiddle along month after month, if left to the

 

41Giobons to Laurier, Jan. 8, 1908, Gibbons Papers,
Vol. 8, P.A.C.

42NO. as, June 15, 1907, Dept. of State, 5150/1-2.
43
14, P.A.C.

Bryce, No. 134, June 7, 1907, Gibbons Papers, Vol.

44Laurier to Gibbons, Dec. 9, 1907, ibid., Vol. 3.

 

 

55

British Ambassador, and I very much doubt even then of his
being able to accomplish anything."45 He was convinced that
Canadians Should meet with Americans without the intervention
of Englishmen.46

Laurier modified these ideas. He proposed to Bryce
that, instead of six separate commissions proposed in the
three treaties under negotiation, there be only one, the per-
manent Waterways Commission, which could supervise the Milk
River project, and the marking of the boundary through the
Great Lakes, as provided in the Delimitation of Boundaries

Treaty.47

Laurier did not agree with Gibbons on direct nego-
tiations with the United States leaders without British help.
Yet he did want a Canadian to enter into the formal talks.

In his letter to Bryce, he praised the "active and energetic”
Gibbons who, "familiar with all the aspects of the question
and {witfi} his thorough knowledge of all local conditions,"
would be of great assistance to Bryce in clinching matters

to a prompt and definite issue.48 Bryce included Gibbons in

his next visit with Root.

 

y'. .. -__.-____.. ...,.___ ,- -...... -...---.... - -.—- e...‘ —.—. _. . -.._.. .. _‘¢. .. - ~..-._.-._. ~—
._ -.——u Ina—r -' —-——

45Gibbons to Laurier, Deco 21, 1907, ibid,, Vol. 8.

46Gibbons to Laurier, Jan. 8, 1908, 321%.

47Laurier to Bryce, Dec. 249 1997, ibiQf’ V01- 3-

48mm.

 

 

The Root (Anderson) Drafthreaty

 

Early in January, Gibbons and Laurier knew that the
Gibbons-Clinton draft treaty was not going to be sent to the
United States Senate.49 Root saw no possibility of its being
passed in its present form. No one knew better than he what
would be acceptable to the Senate. Since 1905 he had had an
invitation to attend the weekly sessions of the Committee on t
Foreign Relations.50

Canadians hoped that the amendments which Root pro-
mised would improve the treaty's chances of approval.51
These amendments proved to be an entirely new draft treaty.
The work of Special Counsel Anderson, it provided for a joint
commission of inquiry of Six members who, after taking oaths
to "carefully and impartially examine all questions," were
to investigate all matters of difference along the common
frontier referred to it by the two governments, conduct hear-
ings, and turn in majority, minority, or separate reports,

according to the sentiment of the members. These reports

and recommendations were not to be regarded as final deci-

 

sions or as arbitral awards.52

 

_-.. _ .- - _..._—

49Grey to Laurier, Jan. 8, 1908, Laurier Papers, Vol.
735, P.A.C.

5OPhilip C. Jessup, Elihgwflgot (New York, 1958), I,

544-45.
51Gibbons to Bryce, Jan. 6, 1908, Gibbons Papers,
Vol. 8, P.A.C.

52Dept. of State, 5954/18a.

 

57

Bryce, representing Canadian wishes in negotiations
with the United States, gave Root arguments for the strong
and impartial permanent commission of the Gibbons-Clinton
draft. Such a commission, he argued, would either handle
arbitrations based on principles or "in a give and take spirit
having regard to local circumstances."55 But Root did not
think the time was ripe for setting up principles, as he saw
many uneXplored questions which had great Significance for
water disposition. Bryce at least wanted to get the duties
of the proposed commission of inquiry enlarged to all ques-
tions needing arbitration between the two governments; also,
if minority reports were prepared, that all commissioners
would see these. Root agreed to both points. His concur-
rence supported Bryce‘s feeling that, if it were not for the
"practically irrepressible" Senate, he could dispose of all

outstanding negotiations in a week with Root and the Presi-

dent.55
On his scheduled trip to Canada, Bryce hoped to get

a final draft of the Treaty acceptable to all parties. In

February, still hoping to get the two sides to agree on some

compromise, he telegraphed Gibbons to come to Washington.

Gibbons dropped everything and hurried once more to that city,

.. ,..--.—. ‘..-. e _-

“a. o I

55Bryoe Report, Feb. 5, 1908, Dept. of State,
5934/78—80.

54Ioiq.

55Grey to Laurier, Jan. 8, 1908, Laurier Papers, Vol.
753’ P.A.C.

 

 

58
determined that it would not be through any neglect on his
part that negotiations railed.56 He promised Laurier that
he would hold firm to only two conditions -- principles and
a permanent board. On his anrival he found out that the new
draft treaty omitted principlLs and made the commission an

ineffective advisory body, with no powers of final decision L

and enforcement.

2L4

Gibbons met twice with Root and Bacon, one of these

times without Bryce. Root had returned "to his old idols."57

 

 

II’”
I—.

“How petty he can be," was Gibbons' reaction to Root's argu-
ment that Canada had departed from the principle of equal di-
version at Niagara.58 But he allowed no personal feelings

to mar the accord he had worked so hard to build. Root had
conceded the marking of the boundary line through the Great
Lakes by the commission. And he had included all matters
along the common frontier.59 Gibbons argued persuasively
that the only way to remove boundary waters from politics on
both sides of the border was to establish principles and a
permanent commission with power to make decisions. His own
convictions were reinforced when Assistant Secretary Robert
Bacon supported him.60 On the principle of injury to another

country's private and public interest by stream diversion,

.—__g

56Gibbons to Laurier, Jan. 51, 1908, Gibbons Papers,
Vol. 8, P.A.C.

571bid.
581bid.

59Gibbons to Laurier, Feb. 11, 1908, ibid.

60Ibid.

59

Gibbons made the point that it did not matter how it was
settled, whether each country diverted to the injury of the
other country, or the reverse, as long as the principle was
uniformly applied. When he left Washington this time, he
was sure that Root understood the Canadian determination to
stand firm for their rights. He asked Laurier if he thought
Canada should accept the half-loaf offered by Root.61 Op-

timistically, he added that he thought they were "nearer

than ever before to a proper understanding."52

 

*.

61Gibbons to Laurier, Feb. 11, 1908, _i_p__i_d__._
62

 

 

Ibid.

su-c Dumb..-

 

IV. TREATY NEGOTIATIONS: SECOND STAGE

Root and Canadian Firmness

 

As Secretary of State, Root saw the main object of
diplomacy, "To keep the country out of trouble. . . in the
right way.”1 In pursuit of the national interest, he was
logical in his ideas, disciplined in eXpression, controlled

2 A

in actions, and never showed excitement or annoyance.
meticulous worker with perfectionist goals, he spent long
hours of preparation, often to the point of physical and
mental exhaustion.5 As a result of his labors, his mastery
of diplomatic issues was superb. Typical was his first meet-
ing with James Bryce as the new British Ambassador, when his
resumé of the position of both countries was so thorough that

Bryce realized his own understanding of his country's policy

was inferior to that of Root's.4

 

1Philip C. Jessup, Elihpmfipgt (New York, 1958), II, 4.

2This is based on a description of Root given by EsmS
Howard in Theatrempf_§gfg_(Boston, 1956), 139, which is quoted
by Jessup in Root, II, 86.

4Ibid., II, 85-86.

60

61

The settlement of issues with Canada was an adminis-
trative policy carried out mainly by Root. It is impossible
to determine whether he was following President Roosevelt's
wishes or his own, as the two men worked in close collabora-
tion during this period. Root went over every important speech
made by Roosevelt between 1901 and 1909, yet gave credit for
all policies to his superior.5 But Root's attitude through-
out their association remained that of a more mature person
towards a man who was thirteen years younger than himself and
often needed counsel.6 I

Roosevelt wanted good relations with the Canadians and
yet managed to offend Laurier in early 1908 with what Laurier
called a "smart Yankee trick."7 As a result, Laurier was re-
luctant to concede anything to Americans, whom he viewed as

"selfish, selféseeking and as caring only for Canada in so far
as it may serve their own purpose to be friendly."8 This atti-
tude slowed up progress towards a treaty when time was running

out.

 

 

5Ibid., I, 470.
6Ibid., I, 191.

7Laurier sent William Lyon Mackenzie King to Washington,
at Roosevelt's request, on the problem of Oriental immigration.
He was furious when Roosevelt's letter acknowledging the visit
twisted the reQuest and a pr0posed mission to Britain so that
the initiative appeared to come from Canada, along with other
mistakes. This necessitated a third visit by King to get this
letter marked 'private and confidential' so hat t could not
be used in any future parliamentary investigation. R. Macgregor
Dawson:.flillism-§xsa.Mssksasislfiips (Toronto, 1958), 155» 158-

. 8King recorded these views of Laurier's in his Diary,
ibid., 154.

62
Influential American senators were becoming impatient
about the delay in the approval of the application of the
Minnesota Canal and Power Company, the St. Mary and Milk
Rivers project in Montana, and other matters.9 And Root saw
a chance to resign the Secretaryship when Roosevelt would leave
office in 1909.10 So chances for ratification of a treaty

might be less favorable after that. Nevertheless, time had

a,_

to be spent in reassessment of positions and in working out
acceptable solutions to the outstanding issues.

Laurier made sure that irrigation problems in cross-
boundary waters were considered within the domain of the com-
mission by both the Canadian and American sections.ll There
also arose a difference of opinion between the British and
the Canadians on powers of the commission. Chargé d'affaires
Esmé Howard wrote to Grey that a commission to settle all fu-
ture questions was impossible of attainment but he predicted

that a Canadian head of any kind of commission would naturally

 

 

 

--.- eu-nu ”.‘..4

For example, Senator Knute Nelson of Minnesota wrote
to Root about the damage done in his state by the Canadian
dam in the Roseau River. Root to Anderson, Jan. 7, 1908,
Anderson Papers.

10The social obligations had proved too onerous for
his wife and he himself had spent several weeks in a sani-
tarium the preceding summer. Jessup, Root, II, 138; I, 505.
11

Laurier to Gibbons, Jan. 27, 1908, Gibbons Papers,
Vol.15, P. A. 0.; Gibbons to Laurier, Jan. 51, 1908 (two

letters of this date), ibid., Vol.8.

65
become important as an adviser on Canadian questions to the
British Embassy in Washington.12 The Canadians made no reply
to this.
Root tested the unity of the Canadians and the British
when he sent Bryce a memorandum, stating that he was going to

approve the Minnesota application, as the company's proposed

'1 ‘3'. -P

t

remedial works removed any cause for objections}:5 As Root

pointed out, the company would take a year to work out its

 

 

preliminary plans; in that time the two countries, either to- éJ
gether or separately, could continue study of a general im- I
provement plan for Rainy River.14
Bryce protested. Overruling the decision of the Com-
mission on this matter "would tend to prejudice the prompt and
easy settlement of other boundary questions between the two
countries."15 He pointed out that the year's grace would not
be that in fact, since the company would thus be given sup-
port for its plan. Root did not go ahead with approval but
the company attorney kept reminding him of the application.16
It was apparent that, despite differences over the type of

commission needed, the Canadians and British were in close

 

12Howard to Grey, Feb. 28, 1908, Laurier Papers, Vol.
753, P.A.C.

15Root to Bryce, Jan. 15, 1908, Dept. of State,
1718/54-55.
14Ibid.

158ryoe to Root, Jan. 21, 1908, ibid., 1718/38.

160. H. Simonds to Root, April 8, 1908, ibid.,
1718/42; May 50, 1908, ip;g,, 1718/45.

64
agreement.

The Canadians, through Howard, let the State Depart-
ment officials know that, if the tables were reversed, the
United States would want to know the nature of the proposal.17
The answer was that such an inquiry should be asked for for-
mally. A communication was drafted by Gibbons and Aylesworth

on the subject of boundary waters and, after a delay in

 

Ottawa, was finally sent on to Washington in late March.18

It was immediately forwarded to Anderson who, in turn,

 

 

drafted Root's formal reply which was not sent to Bryce until ,J
the summer.19
Canadians again stated their support of principles
applicable all along the boundary with a permanent commission
to enforce them, with the added provision that, if the United
States could not accept the suggested principles. they should
submit their own,20 Anderson defined the essential difference

between the two draft treaties as one of the commission's

final authority. He objected to a commission deciding policy,

 

_~.--‘MOI-" -~~- ---.-- .- -———-.—~.—.—-. --~“— '~ -~- WC" --- - —- ...—... < a. .. -——-........u- a...— r... . “a”

lvHoward to Grey, Jan. 28, 1908, Laurier Papers, Vol.
735, P.A.C.

18Gibbons to Aylesworth, March 15, 1908, Gibbons
Papers, Vol. 8, P.A.C.; Aylesworth to Gibbons, March 17,
1908, ibid., Vol° 6.

19Draft of proposed note to British Ambassador,
Anderson Papers, Box 68.

20Grey to Bryce, n.d., sent with minor changes to
Root, March 25, 1908. The first memo is in the Gibbons
Papers, Vol. 14, P.A.C.; the second is in §EE;.DOC° no, 118,
85th Cong., 2nd Sess. '—w~”~”-*___“

 

65
making concessions, and using discretion in such matters,
since these were part of treaty—making powers belonging to
the President.
Anderson contended that principles Should distinguish

between national rights in boundary waters and in tributary
waters, as well as in waters flowing across the boundary.

There Should be a distinction, he thought, between temporary

and permanent diversions and a determination of priority in

 

water use for navigation, canals, sanitation, irrigation,
power and domestic demands, dependent upon local conditions.
In addition, there should be a limitation set on the total
amount to be diverted on each side of the boundary, and con-
ditions should also be established on miscellaneous matters,

such as raising water levels, constructing remedial works,
and storing water. The justification given for the suggested
commission of inquiry was that it would find out what prin-
ciples should be established by reviewing a number of cases.21

In February, Root submitted a tentative treaty deal-
ing with Niagara diversion alone, indicative of its signifi-
cance.22 This draft treaty gave the United States a larger

amount of water than heretofore, plus the use, export tax-free,

of one-half of the power generated by Canada on the amount

.u-.... -a.-. ._.... ‘1 ~,...._...“, -V.,~““,, m.» , ,_ .. u _ - ‘- . )- -..— .- . -.-r.~--—v--.-~ -v u -r-‘ —— —. un—o.-~-‘.—~u -~ .v- -_o .,_,

21Draft of pr0posed note to British Ambassador,
Anderson Papers, Box 68. This note was sent by Root to
Bryce in June, 1908.

22Root to Bryce, Feb. 15, 1908, ibig. Enclosure,
Memorandum for the Provisions of 8 Convention for the Pre-
servation of the Falls and the Rapids of Niagara River.

 

66

in excess of the United States total. No Canadian comment
was made officially on this draft treaty. Gibbons faced ano-
ther old problem when a bill was intrahmed in the House of
Representatives to grant permanent water rights in the Sault
Rapids to a Michigan electric company.25 He asked 0. H. Ernst,
Chairman of the American Section, to speak to Congressman
Theodore Burton on the matter.24

In May, Laurier inquired of Gibbons, ”Anything new?"2’5
Bryce also felt the tension of inaction and raised the ques-
tion of formal discussions on a treaty with Root.26 Root was
agreeable but little progress could be made as neither Bryce
nor Root had anything new to offer. Root reiterated his po-
sition; the Senate would not accept principles which had not
been develOped out of cases examined by a commission of in-
quiry. Bryce, in his reports to Governor-General Grey, also
supported a commission of inquiry, arguing that eventually
it would become very effective in the settlement of disputes.27
But he was powerless to proceed along these lines without a

new directive from Ottawa. None was forthcoming.

“a. w...»- ”Mm-umI-‘n "~-~. __ __

25N. W. Rowell to Gibbons, March 19, 1908, Gibbons
Papers, Vol. 6, P.A.C.

2

 

4Gibbons to Ernst, March 24, 1908,-ipid., Vol. 8.

25May 6, 1908, ibid., Vol. 3.

---._

26Bryce to Root, May 5, 1908, Dept. of State, 5954/21.

2'7Grey to Laurier, July 25, 1908, Laurier Papers,
Vol. 755, P.A.C.

 

 

67
After several fruitless meetings, Root welcomed the

suggestion that Gibbons enter the discussions.28

Bryce hoped
that Gibbons could come up with a solution to the Minnesota
matter. Laurier had complete confidence in Gibbons in this
"most delicate matter," and Bryce left Washington on a sched-
uled trip through the Great Lakes.29

The Canadian position on the adoption of principles
was as strong as ever. Aylesworth advised Gibbons that he
should not accept half-way suggestions. Gibbons was confi-
dent of success "if we have the nerve and self-respect to
maintain our position."30 To Bryce he wrote: "They have got
to be taught to play the game fairly,"31 Gibbons still saw
Root as a "clever quibbler” who sought advantage by keeping
matters in "an indefinite shape" while placing the blame on
the "wicked Senate."52

This meeting of Gibbons with Root, Assistant Secre-
tary Bacon, and Special Counsel Anderson was successful. It
was agreed that principles to be applied by a joint commis-

sion should be adopted, with the exact arrangement to be

 

 

28Bryce to Gibbons, May 22, 1908, June 8, 1908,
Gibbons Papers, Vol. 5.

 

29Laurier to Gibbons, June 9, 1908, ibid.; Bryce to
Gibbons, June 8, 1908, ibid.

soGibbons to Laurier, June 15, 1908, ibid., Vol. 8.

31Gibbons to Bryce, June 15, 1908, ibid.

52Gibbons to Laurier, June 15, 1908, ibid.

 

 

68

worked out by Anderson and Gibbonsfi:5

It may have been the
concessions of Gibbons in a preliminary memorandum which
moved the discussion to this point.:54 In his memorandum he
specifically exempted irrigation cases from the principle of
equal diversion, and was willing to change his previous opin-

ion on the Treaty of 1842.35 He also proposed that the trea-

ty be subject to termination on one year's notice. On the

~yvrfl"

problems of obstructions and diversion in cross-boundary

 

 

streams, he suggested that charters be obtained from each h!
government in order to protect public and private interests
in both.:56 Lake Michigan and Georgian Bay were to be included
in the Great Lakes waters open to navigation by both countries.
And the commission would investigate and report upon all mat—
ters referred to it.
Gibbons argued that unless the commission was given
"governing principles and power to make final decisions," it

would "become a farce."57 Applicants turned down by the

 

 

__ -y..-..... . o—u—o— m”. o - A. .... _.,._—........ -

BSGibbons to Laurier, June 22, 1908, gbgg.

54Memoranda for Mr. Root, Dept. of State, 5934/31.
Received by the Secretary of State June 18, 1908.

5513333, 33-34.

56Unknown to Gibbons, Anderson had written to Root
June 2nd that a solution to this problem might be to treat

any damage in the other country caused by diversion of a
cross-boundary stream as if it occurred within the country

where the diversion took place. Anderson Papers, Box 68.

57Memoranda for Mr. Root, Dept. of State, 5934/31.

69

commission would only put pressure on their own governments.
He argued that the two countries would have to work together
to control use of the water. He gave an example. The Cana-
dian Section had recently rejected an application of a Canadian
company to divert water from Lake Erie across Canada to Lake

Ontario. And he asked what the consequences might be if the L

"112'!

two countries did not work together on such problems. The

ah!-

‘. .
-

warning was clear to anyone familiar with shallow Lake Erie

 

and its importance in the Great Lakes system.

‘I 4":

us

But the conference was a strain on the patriotic
Gibbons who had to listen to a long harangue by Root "about
the unfriendly attitude the Canadians had assumed towards the

Americans for many years in Parliament and through the public
press.":58 In writing to Laurier, Gibbons elaborated:

He broke out and talked for fifteen minutes about
the unfriendly attitude that had been displayed by
Canadians generally towards the United States for
many years, not only in the Press, but on the floor
of the House and at public banquets. He said that
one party seemed to vie with the other in saying
nasty things and all seemed to imply that the Ameri-
can people had always over-reached them heretofore

and were lying in wait to do so again.

He spoke about the freedom with which people,
who had not resumed "responsibilities" of a nation,
were able to talk. He said that it was unbearable;
denied that we had been put to any unfair disadvan—
tage by the Alaska award or by the Webster-Ashburton

Treaty.
He was quite excited through the whole of his

harangue and had evidently prepared this speech for
my benefit and to be delivered in the presence of

' .‘o--- o.— _ ov-nq-uq .—-__— _-. “—1-. ,_. M. .n-n- a“ .

5831bbons to Bryce, July 5, 1908, Gibbons Papers, Vol.
8, P.A.C.

70
Mr. Bacon and the others who were there.39

Gibbons did not reply in kind but told Root that
what he said showed that irritation did exist -- which was

only another reason why a different‘ course of action should
be adopted. Root agreed and plans were then made for Ander-
son and Gibbons to work together on this.40 To Laurier's
inquiry as to the seriousness of Root's attack, Gibbons

wrote that it was real enough, caused by his having "to recog-

nize the existence of another power on this continent having
equal rights," and that it was hard fer Root to accept our
"joint control of the Great Lakes system for all time to
come.”41

Both Bryce and Howard advised Canadian leaders to
accept a commission of inquiry at the time when Gibbons per-
suaded Root to agree to principles and a permanent board to
enforce them, as well as other concessions, such as opening
Lake Michigan to navigation by the Canadians.42 Thus Gibbons
proved his point that Canadians should represent Canada in

international affairs.

 

,_ __ , __,.- .— ---—._.—c—.~—_~- ~—-..«~——i--- .- vc “r- ~-r --
. _\—-. ‘w-..—.m.-m.—.. - —

39Ju1y o, 1908, $212-

 

4OIbid.

41Laurier to Gibbons, July 8, 1908, iéfido, V01- 5;
Gibbons to Laurier, July 9, 1908, ibid., Vol. 87

42Gibbons to Howard, July 50, 1908, ibid., Vol. 8;
Grey to Laurier, July 25, 1908, Laurier Papers, Vol. 753,
P.A.C.; Howard to Gibbons, July 26, 1908, Gibbons Papers,
Vol. 3, P.A.C.

71

The Gi bb OHS: Andersen..Pi‘afiiiiaaiyi

-m —- *n ”a v..-

New York was the scene of the first meeting of
Gibbons and Anderson in late August.43 Gibbons was jubilant
in his report of the treaty discussed by the two. It will
establish "our position as a nation more effectually than
anything that has been."44 He wrote that, although the
treaty was very broad in its terms, it was sure of passage
through the Senate since Root was virtually a member of the
Committee on Foreign Relations -- according to Anderson.
Laurier agreed that such a treaty "would be the greatest

benefit ever bestowed on Canada during the last fifteen

45

years," but that it would have to be turned down. He had

just received Root's diapatch rejecting principles and a
treaty would not be acceptable in Canada without them. He
asked Gibbons to draft a reply to Root's paper.46

It was up to Gibbons to clear up the matter, to ex-

plain to Laurier that his interview with Root in which an

 

4:SGibbons called on Anderson in New York City in
late July when Anderson was on vacation. Anderson to
Gibbons, July 51, 1908, ibid., Vol. 6.

44Gibbons to Laurier, Aug. 25, 1908, ibid., Vol. 8.
45Laurier to Gibbons, Aug. 28, 1908, ibid., Vol. 3.

46Ibid.

72
agreement on principles had been reached, had come after
Root sent the letter in which he rejected principles.47
Gibbons advised not responding to this since, as he eXpressed
it, "It is a good deal better to let him come down easily

than to attempt to force him off his perch,"48 Laurier

agreed that silence on the matter was best.49

Meanwhile Root had received Anderson's draft treaty
but thought it necessary "to talk with some of the Senators
about it before we take any steps towards committing our-
selves."50 Root‘s request meant that Anderson had to write
to Gibbons that he was “unexpectedly delayed in completing
the draft," and later, that the delay was caused by Root's
slowness in approving the draft.51 Gibbons saw no danger in
this delay. His elation sang through his letters. The
treaty was "the greatest advance ever made by diplomacy” and
would prevent these two peoples from getting:

Up a decent sized row if they wanted. The Court
would suppress all natural desires in this regard.

 

7
Gibbons to Laurier, Aug. Bl, 1908 (5 letters of
this date), ibid., Vol. 8.

48Ibid.

49Laurier to Gibbons, Sept. 12, 1908, ibid., Vol. 3.
50Root to Anderson, Sept. 2, 1908, Anderson Papers,
Box 68.

51
Anderson to Gibbons, Sept. 4, Sept. 9, 1908,
Gibbons Papers, Vol. 5, P.A.C.

75

Its advantage to us is unlimited. The United

States is big enough to be honest. If they accept

this proposal it will mean that they are willing

to renounce the advantage which their size gives

them and accept the better and more chivalrous po-

sition of fair dealing.52

He saw a permanent board removing from the realm of
diplomacy "a lot of comparatively trivial matters which,
small as they are, without such machinery would be constant
causes of friction."5"5 And he now saw Root as "a man of
great ability. . . . With a stupid man there would have been
no hope, but a clever one must come to the conclusion which
we desire."54 His Optimism declined when he heard nothing
from Anderson for over a month. In November, to Bryce’s
inquiry, preliminary to his discussion with Root, on treaty
negotiations, Gibbons had to admit ignorance about the points
which were holding up progress, since he thought agreement
had been reached on all major ones.55

In Washington, the draft treaty was being scrutinized
and analyzed by several persons. On record is the praise of
Third Assistant Secretary of State Alvey A. Adee for the care,
thought, and research it showed, and for its practicality,

along with a recommendation for the clarification of some

 

52Gibbons to Howard, Sept. 10, 1908, ibid., Vol. 8.

5szibbons to Howard, Sept. 22, 1908, ibid.

54Ibid.

55Gibbons to Bryce, Nov. 2, 1908, ibid.

74

vague phrases by the department solicitor.56 Also, Ernst
was questioned about the maximum diversion permitted at
Chicago and whether any other diversion was possible in the
Great Lakes system which would materially affect water

levels.57

The answer to the first question was that the

Chicago diversion was set at 553 l/S cubic feet per second
for 100,000 people; therefore, it could be increased with
population growth, i.e., 20,000 c.f.s. for a population of

six million, and so on. The answer to the second question,
in essence, was that two other possible diversions would

affect levels: across the Niagara peninsula in Canada, and
diverting those waters naturally tributary to Lake Superior

into Hudson Bay.58

Gibbons finally received a telegram from Anderson
on November 8th, forwarding draft provisions on Niagara,
and a few days later, the draft treaty itself.59 The pro-
posed treaty followed Anderson's ideas as stated in his

60

memorandum. Boundary waters were defined as waters

through which the international boundary passes and "the

 

56A. A. Adee to Root, Oct. 9, 1908, Dept. of State,
5934/44-45. .
57Anderson to Ernst, Oct. 50, 1908, Anderson Papers,
Box 68.

58Ernst to Anderson, Nov. 3, 1908, ibid.

59Telegram, Anderson to Gibbons, Dept. of State,
593i/56A; Anderson to Gibbons, Nov. 12, 1908, Gibbons Papers,
V010 3, P.A.C.

60Infra, 65.

75

navigation of all such waters shall forever remain free and
open." The right of navigation was extended to Lake Michigan
and canals connecting boundary waters "as long as this treaty
shall remain in force."61

Article II reserved to each country exclusive juris-
diction and control over the use and diversion of waters in
its own territory which flowed across the boundary or into
boundary waters. Any damage done through interference with
or diversion from these waters was to be handled as if such
injury or damage took place within the same country as the

diversion.

The International Waterways Commission was to have
six members, three to be appointed by the President, by and
with the advice and consent of the Senate and one of these
was to be a lawyer and one an engineer. The manner of Ca-
nadian appointment was left blank. Outside of government
works for the improvement of navigation, no diversion or ob-
struction of boundary waters was to be made unless approved
by the commission, which was to be governed by the rules of
"equal and similar rights" in the following order of priority,
subject to special agreements and local conditions:

(1) Uses for necessary domestic and sanitary purposes.

 

61The United States claimed to have terminated Cana-
dian right of navigation on Lake Michigan, based on Article
XXVIII of the Treaty of 1871,by the Special Message of Presi-
dent Harrison to Congress Feb. 2, 1893, Richardson, Messages,
XIII, 5770-781.

 

76
(2) Uses for navigation, including the service of
canals for the purposes of navigation.
(5) Uses for irrigation and for power purposes; and
among the latter uses, those involving temporary di-
versions shall have precedence over those involving
permanent diversions of such waters. 62
There was to be no pollution on either side to the
injury of health or property in the other country; remedial
works were to be under the supervision of the commission }
with protection and indemnity of interests. Majority re-

ports, or separate if necessary, were to be made, and the a

two governments would adjust any matters of difference and

 

 

then write a protocol for the commission to carry out.
Questions along the frontier could be referred by the gov-

ernments for reports. Miscellaneous matters, such as meet—
ing place, oaths, salaries, and public hearings were also

provided for. Special agreements on Niagara, St. Mary and

Milk Rivers, and the Chicago Drainage Canal were to be in-

cluded in separate articles.

This draft treaty showed Anderson's ability to
draft international proposals, based on his years of eXpe-
rience and study of international law. It was closely rea-
soned and admirably written. The treaty followed the gen-
eral lines of the Gibbons—Clinton draft but the changes were
significant. The jurisdiction of the commission was re-
stricted to boundary waters and to future uses of cross-

boundary waters. Principles to be applied by the commission

 

62Draft, International Waterways Treaty, Anderson
Papers, Box 68.

77

to boundary waters could be superseded by special agreements.
By designating Lake Michigan as a tributary water, it was
excluded from the authority of the commission. He balanced
free navigation by the Canadians there with the United States
use of the Welland Canal. In setting up priority in water
use, he put domestic and sanitary uses before navigation,

based on use by the greatest number of people. He equated :

-|.-_

TFJ'Zgoe-'
l _ -

irrigation and power uses; but (as he eXplained to Root)

boundary waters were not being used for irrigation, so this
65

 

 

provision meant little. No provision was made for the
commission to submit their disagreements to arbitrators or
to report upon matters in diSpute between the two countries.
There is no evidence that Gibbons saw that the treaty re-
moved obstructions in the upper St. John River in Maine from
the jurisdiction of the commission. He had already agreed
to drop any objection to the Minnesota Canal and Power Com-
pany's project.64
Gibbons wrote to Anderson that the draft was in
"good shape" but apprehension caused by the unnecessary
delay may have caused him to add: "For either side to ob-
tain advantages would not in the and be to its gain.“65

He sent copies to Aylesworth and Laurier with the comment,

 

63Anderson to Root, Aug. 26, 1908, ibid.

64Ibid.

65Gibbons to Anderson, Nov. 14, 1908, Gibbons
Papers, Vol. 8, P.A.C.

78

"They have yielded to our every contention."66 In line with
his earlier thinking, he soon suggested the commission serv-
ing as a board of arbitration on any matter in dispute and
this was added to the draft.67

Hastening to New York City at Anderson's request for
a conference, Gibbons arrived with a severe cold and had to L
wait over Thanksgiving Day as he had overlooked that national
holiday in the United States. During the weekend he managed

to go over the treaty with Anderson, later with Bryce, and 5

 

 

Ar
ll

then made the long train ride back to London. Within a few
weeks, in answer to Bryce's solicitous inquiry about his
health, he replied that he was "all right again and will not
delay the completion of my portion of the work an instant."68
The next few weeks were precious ones. Root was urg-
ing the rapid signing of the treaty so that it could be sub-
mitted to the Senate the first part of January. Bryce re-
minded Gibbons that the treaty had to be approved by the Eng-
lish government before it could go to the Senate, although
he anticipated no delay in London since the Foreign Office

was disposed to approve whatever Canada wanted.69

 

66Gibbons to Laurier, Nov. 16, 1908, ibid., Vol. 3.

67Gibbons to Anderson, Nov. 24, 1908, Anderson
Papers, Box 68.

68Bryce to Gibbons, Dec. 11, 1908, Gibbons Papers,
Vol. 6, P.A.C.; Gibbons to Bryce, Dec. 14, 1908, ibid., Vol.

69Bryce to Gibbons, Dec. 11, 1908, ibid., Vol. 6.

 

79

But Gibbons himself not with a "little hitch in the Washington

business," as he explained to Laurier.70 He could not accept

the drafts of Article II on cross-boundary waters nor the one
on Niagara River. He found, as Bryce predicted, that any
problem connected with cross-boundary waters always made Root
most difficult.71 Gibbons from the beginning had insisted on
an additional clause in Article II to protect navigation rights

in each country. First he had suggested:

The foregoing provision shall not be construed as an
agreement authorizing diversions on either Side which
in their effect would be productive of material in-
jury to the navigation interests on the other Side.72

 

 

Anderson thcnnflfi3this renewed a difficulty which they had been
trying to avoid in regard to the Chicago Drainage Canal and
so he omitted it in his next draft. But he suggested that

, Gibbons might be able to suggest another solution.75 Gibbons

then,proposed:

thhing in this Article is intended to authorize di-
versions in one country which will seriously inter-
fere with public rights of navigation in boundary
waters or in waters at a lower level than the bound-
ary in rivers flowing across the boundary; and while
each of the High Contracting Parties reserves its
sovereign right of dealing with such diversion, each
recognizes that it is desirable that such right

 

7OGibbons to Laurier, Dec. 10, 1908, ibid, Vol. 3.

718nyce to Gibbons, Nov. 6, 1908, ibid.

72Fevised draft of Art II, Dec. 2, 1908, Anderson
Papers, Box 68.

73Anderson to Gibbons, Dec. 5, 1908, ibid.

 

80
should not be unnecessarily exercised to the injury

of public interests in such boundary waters or in
waters at a lower level than the boundary in rivers

flowing across the boundary.74

And he added, in a referenn to the Chicago diversion, "It
will be a little hard to eXplain to our people why we should

not be permitted to obstruct if you are permitted to divert."

Hewever, he continued, he was quite content "to waive this

 

 

very important point for the sake of the general treaty and

because I feel that, as a whole, Mr. Root is dealing with

the matter fairly and in a broad spirit."
Anderson then suggested an acceptable sentence:
It is understood, however, that neither Government
intends by the foregoing provision to surrender any
right, which it may have, to object to any diversion
of waters on the other side of the boundary the ef-
fect of which would be productive of material injury
to the navigation interests on its own side of the

boundary.
Gibbons explained to Laurier that Article II was a

compromise and was aimed at the protection of private inter-
76 His insistence

ests while maintaining public interests.
he wrote to Premier Whitney, was to

on an additional clause,
control further diversions, as at Chicago.'7I7 Another diffi-

culty arose over the clause on the Chicago diversion.

 

74Gibbons to Anderson, Dec. 10, 1908, Gibbons Papers,

1908, ibid., Vol. 3.

VOJ. 8, P.A.C.
754nderson to Gibbons, Dec. 14,
7§Giobons to Laurier, Dec. 16, iaoe,.£p;g., Vol. 8.
Jan. 22, 1909, igig,

7WGibbons to James Whitney,

81
Gibbons proposed the following:

It is hereby agreed that, so long as this treaty re-
mains in force, the amount of water which shall be
taken from Lake Michigan for the Chicago Drainage
Canal shall not exceed the average rate of 10,000
cubic feet per second.78

This suggestion did not meet with Root's approval, and Ander-
son submitted: 1

It is agreed on the part of the United States that
the permanent diversion of water from Lake Michigan
for the Chicago drainage canal shall be limited to
an amount which shall not lower the level of the
Great Lakes System more than (8) inches below the
normal mean low water level during the portion of
the year when navigation is open. 9

 

Root was dissatisfied with both clauses and Gibbons agreed
to omit the article entirely, no doubt following his earlier
thinking on this matter.80 The greatest trouble came over
Niagara River. At first Root tried to get control over Ca-
nadian eXportation of electric power but Gibbons refused to
allow the United States to dictate Canadian relations with
private corporations.81 Anderson's next draft at first

82

seemed satisfactory to Gibbons. He wrote to Bryce that

Anderson had dropped the objectionable clauses.83 But when

 

78Gibbons draft, Nov. 24, 1908, ibid., Vol. 14.

79Proposal to Root, Nov. 24, 1908, Anderson Papers,

Box 68.
80Infra, 32.

81Gibbons to Laurier, Dec. 16, 1908, Gibbons Papers,
Vol. 8, P.A.C.

82Gibbons to Anderson, Dec. 10, 1908, Anderson Papers,

Box 68.

85Gibbons to Bryce, Dec. 14, 1908, Gibbons Papers,
Vol. 8, P.A.C.

82
he read the draft carefully he was amazed to find that new
figures had been used, giving the United States a great ad-

vantage below the Falls.84

Nor could he see why the way was
left open for further diversion after two years when the com-
mission was to allow modifications or additions at govern-

ment request; if the other government did not disapprove with- t

in three months, these changes were to become permanent.85

He explained once more that the greater amount allotted to

 

the Canadians above the Falls was only an apparent advantage #
since it allowed for the Chicago diversion and was made nec-

essary by the greater flow over the Canadian Falls. He ad-

mitted that he hated to haggle over these matters and settled

the matter with his proposal to omit any reference to diver-

sion below the Falls, thus relying upon the general principle

of equal division.86

The article on the St. Mary and Milk Rivers project

was settled in a conference with former commissioner William
King, who had been working on this problem for several months
with F. H. Newell of the United States Department of the In-

terior. King and two members of Parliament agreed that one

of two drafts would be satisfactory.87 These provided for

_‘

84Gibbons to Anderson, Dec. 15, 1908, ibid.

85Ibid. Also Draft of Provisions for the Preserva-
tion of the Falls and Rapids of Niagara River, Art. V,
Anderson Papers, Box 68.

86Gibbons to Anderson, Dec. 16, 1908, Gibbons Papers,
V01. 8, P.A.C.

87
Gibbons to Aylesworth, Jan. 8, 1908, ibid.

85
an equal division of the combined waters of the two rivers.

Laurier wanted the water in each river to be divided equally

but accepted Gibbons' explanation that such a division was

impossible.88

Gibbons, upset by this snag and parliamentary criti-
cisms, confided to Aylesworth that he thought he had been

treated "most abominably," since he had communicated all ¥
F

along just what he was doing and had gotten a treaty which

was to Canada's advantage.89 It rankled, when all he seemed ffi

 

 

to get for his efforts was disapproval. Perhaps the strain (j

of keeping up with his own legal business plus another hur-

ried trip to Washington and last-minute changes in the trea-

ty led to this outburst. Perhaps his realization that he

had donated his services without pay also grated.90
But Gibbons rejoiced in putting Canada "in the posi-

tion of a nation and giv Eng] her, for the first time in

her history, fair play in her dealings with the American

people."91 There were expressions of appreciation from many.

Grey wrote that he regarded the signature of the treaty as a

 

88Ibid.
89Ibid.

90According to his own account, he spent four weeks,
all together, in Washington in 1907-08 which cost him an
amount of money equal to what the government paid him for
his services and travel eXpenses. This was $50.00 and $7.50
a day, respectively. Gibbons to Hon. Wm. Harty, M.P., June
27, 1908, ibid., Vol. 8. I have a record of 15 visits made
by Gibbons to Washington or New York City from February 1907
through March 1909. It is interesting to note that Anderson
did not visit Canada in connection with these treaty nego-
tiations.

91Ibid.

 

 

 

84

great personal triumph for Laurier and his ramrod Gibbons.92
And he thought of its possible rejection as a national calam-
ity. Laurier offered Gibbons his "sincere gratitude for the
labour, energy and hard work which you have given us for the
last three years."93 Bryce also praised him, especially for
his great service in the early stages of the treaty.94 The
treaty was approved in the Canadian Privy Council January
9th.95 Root and Bryce officially signed the treaty January

llth. It was presented to the United States Senate on the

 

 

following day.96

92Grey to Laurier, Jan. 12, 1909, Laurier Papers,
V01. 734, P.A.C.

93Laurier to Gibbons, Jan. 12, 1909, Gibbons Papers,
V01. 3, P.A.C.

94Bryce to Gibbons, Jan. 20, 1909, ibid., Vol. 5.

95Telegram, Gibbons to Bryce, Jan. 9, 1909, Gibbons
Papers, Vol. 5, P.A.C. The Colonial Office made several

minor chan es. Grey to Laurier, Jan. 8, 1909, Laurier
Papers, Vo . 754, P.A.C.

96Confidential Executive Message, 60th Cong., 2nd
Sess., Anderson Papers, Box 69.

 

V. DEBATE

The Senate and the Smith Amendment

 

The second session of the 60th Congress after Christ-
mas to March, 1909, was chaotic, with the Republicans split-
ting into conservative and progressive factions. Discord was
the order of the day and no major legislation was passed. It
was hardly a propitious time to present a treaty; but, early
in January, both Secretary Root and Special Counsel Anderson
hoped that there would be no serious objections to the Bound-
ary Waters Treaty.l Senator Lodge, who was a close friend
of both Root and President Roosevelt and who sometimes served
as acting chairman of the Committee on Foreign Relations, pro-
mised to do his best to get senate approval of the treaty.

The Special agreements in the treaty had been made
with senatorial support in mind. Article V on Niagara Falls
allowed for future diversion below the falls while the omis-
sion of any reference to the Chicago diversion permitted fu-

ture increases there.2 Both of these arrangements were

 

1Anderson to Gibbons, Jan. 14, 1909, Gibbons Papers,
Vol. 5, P.A.C.

2Infra, 80-81.
85

 

 

86

satisfactory to local interests. Article VI provided for
the sharing of the waters of the St. Mary and Milk Rivers
as originally proposed in the irrigation project of several
years' planning.3 And, finally, the Minnesota Canal and
Power Company, under the provisions of Article II, would be
able to get approval of its application.4 The State Depart-
ment had worked since 1904 to get Canadians to agree to this
diversion project.5 In December, Anderson had drafted a
note for the British Ambassador to transmit to Root on the
signature of the treaty.6 It precluded any future British
objection to the diversion:

His Majesty's Government will not further urge the

objection heretofore raised against the diversion

of waters in the State of Minnesota, tributary to

the boundary waters between the state and Canada,

on the ground that such diversion is in contraven-

tion of Article II of the Treaty of August 97 1842

between Great Britain and the United States.

Anderson tried to get a similar statement from the Canadian

 

5Inrra, 82-83. Appendix L, Art. VI.
4Infra, 65. Appendix L, Art. II.

5Gibbons must have questioned the reason for the
companyfs continued reapplications after rejections by the
Minnesota Supreme Court, the War Department, the Canadian
Government, and the I.W.C. His explanation to Laurier was
that the company, unable to meet interest payments on its
bonds, blamed its financial shortcomings on the War Depart-
ment's rejection of its application. In order to exonerate
the administration of any responsibility, according to Gib-
bons, the State Dept. now wanted the permit to be granted.
giibgns to Laurier, Feb. 25, 1909, Gibbons Papers, Vol. 8,

6Anderson to Bacon, Dec. 20, 1908, Dept. of State,
1718/49-50.

71bid.

87

government but failed. Gibbons, in a telegram to Anderson,
did waive Canadian right to object to the Minnesota diver-
sion.8 But he could not get Laurier to agree to such a wai-
ver. The Prime Minister refused to bind his government to
any secret agreement on Article II.9 No special agreement
covered the Sault Rapids between Lake Superior and Lake Huron.
A report by the International Waterways Commission in the
spring of 1906 had recommended equal division of surplus
waters for power purposes there.10

In January, 1909, when the Senate Committee on For-
eign Relations began executive hearings on the treaty,
Senator William Alden Smith from Michigan objected to equal
division in the Sault Rapids. A Michigan concern, the Chand-
ler Dunbar Electric Company, had constructed works in the
bed of the stream at a point where the major portion of the
water flowed on the United States side of the boundary. It
was obvious that Smith was interested in protecting the com-
pany's riparian rights. The revelation that the greater flow

of water on the Michigan side of the boundary was caused by

a recently constructed bridge caused the initial support

8Gibbons to Anderson, Jan. 10, 1909, Anderson Papers,
Box 69. Telegram reads: "Distinctly understood all right
to object Minnesota waved [Big save as protected by article
two.You can rely will never hear of contention again."

9Laurier to Gibbons, Feb. 15, 1909, Gibbons Papers,
Vol. 3, P.A.C.

10See Appendix G, No. 4.

88

given him by his colleagues to dwindle away.ll

Smith then found a vulnerable spot for attack --
states rights. He argued that the treaty overrode Michigan's
territorial rights in the St. Marys River. With this argu-
ment he convinced two southern Democrats on the committee,
Augustus Bacon from Georgia and Hernando Money from Mississippi,
that such was the case. Anderson telegraphed Gibbons about
the possibility of division of the waters at the Sault Rapids
"on the basis of territorial ownership," but Gibbons held out
for equal division.12

Smith turned to a personal attack on Anderson, ac-
cusing him of working for and protecting the interests of
William Vanderbilt in a Niagara electric power company.
Anderson wrote a denial to Secretary of State Robert Bacon,
whereupon Smith threatened to reveal Vanderbilt's connections
with a Niagara power company if this letter were read to the

Senate.13 During this incident, Lodge and Smith nearly came

 

llErnst to Anderson, Feb. 2, 1909, ibid. Also Brief
Outline of the Situation, Anderson Papers, Box 20.

l2Telegram, Gibbons to Anderson, Feb. 1, 1909, ibid.,
Box 69; Gibbons to Laurier, Feb. 1, 1909, Gibbons Papers,
Vol. 8, P.A.C. Anderson appeared before the committee Jan.

50th to answer questions on the brief he had prepared as Root
left the State Dept. Jan. 27th to enter the Senate.

 

lsThe accusation was entirely without foundation;
Anderson's father, dead some twelve years, had worked for
Vanderbilt but Chandler Anderson had never met Vanderbilt,
nor had he had anything to do with the original allocation
of water at Niagara Falls. The matter was settled when Smith
gave a retraction to the press. Anderson to Lodge, Feb. 17,
1909, Anderson Papers, Box 20; Anderson to C. B. Warren, Feb.
15, 1909, ibid.; Statement in Washington Herald, Feb. 16, 1909,
ibid., Box I.

89
to blows.

The treaty was in trouble unless some concession
could be made to Smith and his supporters. At the request of
Secretary Bacon, Anderson prepared an interpretive provision
on riparian rights in the Sault Rapids which might meet
Smith's demands.l4 This resolution, to be inserted in the
resolution of ratification, confirmed riparian rights in the
rapids, subject to navigation requirements. The following
note was agreed upon in a meeting of Secretary Bacon,
Ambassador Bryce, Anderson, and Smith:

Resolved (two-thirds of the Senators present con-
curring therein) that the Senate advise and consent
to the ratification of the treaty between the United
States and Great Britain, providing for the settle-
ment of international differences between the United
States and Canada signed on the llth day of January
1909.

Resolved further as a part of this ratification
that the United States approves of this treaty with
the understanding that nothing in this treaty shall
be construed as affecting or changing any existing
rights of the owners of lands under water, on either
side of the international boundary at the rapids of
the St. Mary's River at Sault Ste. Marie, in the use
of the waters flowing over such lands, subject to
the requirements of navigation in boundary waters
and of navigation canals and further, that nothing
in this treaty shall be construed to interfere with
the drainage of wet swamp and overflowed lands into
streams flowing into boundary waters, and that this
interpretation will be mentioned in the ratification
of this treaty as conveying the true meaning of the
treaty, and will, in effect, form part of the treaty.15

l4Brief Outline of the Situation, ibid., Box 20.

15The meeting was held Feb. 20th. Secretary Bacon,
in a letter to Gibbons, explained that the resolution in no
way changed riparian rights, as already agreed to. These
were the same as before the treaty, provided that riparian
owners did not interfere with navigation by changing the

90

Bryce wanted to insure Canadian rights and arranged
a meeting for Gibbons, Anderson, Root and himself on Febru-
ary 26th.l6 At this meeting the following phrase was in-
‘serted after “navigation canals":

And without prejudice to the right of Canada to

take within its own territory not exceeding one-half

of the total amount of the waters flowing from Lake

Superior into the St. Mary's River available for

power purposes. '

Gibbons agreed to the treaty going through "in the
best shape possible," counting on a letter of clarification
from the Secretary of State to the British AmbaSsador "re-
serving our right to use of half the water."18 The resolu-
tion, as amended in the meeting Gibbons attended, had been
handed to Smith on February 28th. It was returned to Secre-
tary Bacon March lst in the following form:

Without prejudice to the existing rights of Canada

and the United States each to use the waters of the

St. Marys River within its own territory.19

Anderson wired Gibbons that the change was "very

exasperating but regarded here as wholly immaterial and not

changing meaning of form previously proposed.20 Root admitted

 

l3vel of the water. 86‘a1so*rererrea*to*the'statenent‘on‘""
draining swamps as "perfectly harmless," and only inserted to
insure the support of Sen. Knute Nelson of Minnesota. Bacon

to Gibbons, Feb. 20, 1909, Gibbons Papers, Vol. 5, P.A.C.
15Telegram, Bryce to Gibbons, Feb. 20, 1909, ibid.

17Draft Resolution as Modified, Anderson Papers, Box 69.

. 18Telegram, Gibbons to Anderson, March 1, 1909, ibid.;
'Telegram, Gibbons to Root, March 2, 1909, Gibbons Papers, Vol.

3 P.A.C
, i9Draft Res. as Modified, Anderson Papers, Box 69.

20Anderson to Gibbons, March 1, 1909, ibid.

 

91
that any rewording of the amendment would arouse the suspi-
cions of the very large private interests involved.21 As he
saw the alternatives, it was better to have the treaty ap-
proved with the resolution than to try to get Senate approval
slater, therely chancing a public discussion and new difficul—

tiBSo22 ' }

The Senate advised ratification of the treaty with

Ll
' K on '3‘ ‘

Smith's last'revision of the resolution March 5rd.2'3 Gibbons,

who did not know about the latest change in the resolution,

 

. 1"

had already asked Bryce to get the letter of clarification on
equal division of the waters in the Sault Rapids from Secre-
tary Bacon.24 This proved to be impossible with the change
of administrations. However, Bryce drew up a memorandum of
his conversation with Bacon and Root, held the day after
Bacon left office. According to this memorandum, approved by
Root, the resolution did not give a private company the right

to change the flow of water in a navigable channel, so Canada

 

 

21Root to Bryce, March 2, 1909, ibid.

22Bryce to Gibbons, March 5, 1909. Gibbons Papers.
Vol. 5, P.A.C.

25Treaty Series, No. 548 (Washington, 1910). Some
senators had been upset by Canadian press releases on the
possible charging of export taxes on electric power to the
United States but Canadians promised that no changes would
be made during the life of the treaty. Anderson to Lodge,
Feb. 6, 1909, Anderson Papers; Anderson to Gibbons, Feb. 6,
1909, Gibbons Papers, Vol. 5, P.A.C.

24Gibbons to Bryce, March 2, 1909, ibid.

 

 

9 2

retained all its previous rights.25

The new administration's Secretary of State, Philan-
der Knox, acknowledged the obscurity of the Smith Resolution
and suggested resubmitting the treaty to the Senate to get
the resolution rescinded?6 Misgivings over the wisdom of
this action prevailed since it was obvious that the resolu- }
tion actually did not alter Article 111.27 Gibbons wrote to

Laurier that he "never intended to give up our absolute right

 

to the use of one—half of the water in the St. Marys River,”

k",

 

since.this was the first principle agreed upon by Clinton
and himself.28 In April, he and the Minister of Justice,
Allen B. Aylesworth, went to Washington to confer with
Attorney-General George W. Wickersham on the Opinion to be

given on the Smith Resolution.29 This opinion confirmed

-,- ,,, . ._, .-..—‘r-a! __ -- .. ..-.._,‘-,

 

 

25Memorandum, $213., Vol. 14. This was enclosed in
a letter of Bryce to Gibbons, March 6, 1909, ibid,, Vol. 5.

26Gibbons to Innes, March 9, 1909, ibid., Vol. 8.

27Root prepared a list of eleven points on the use
of boundary waters which stated the "equal and similar rights"
of each country to build works in its own territory, if there
was no interference with water use on the other side of the

boundary. Memorandum written by Secretary Root in his own
handwriting in March, 1909, Anderson Papers, Box 69.

28Gibbons to Laurier, March 15, 1909, Gibbons Papers,
Vol. 8, P.A.C.

29Ops. Atty. Gen 295 (1909); Anderson to Wickersham,
Anderson Papers, Box 69. Gibbons originally had not fore-
seen the possibility of either country using the water on its
side of the boundary in the Sault Rapids without constructing
a dam and thus affecting water levels on the other side.
Gibbons to Anderson, Feb. 22, 1909, Anderson Papers, Box 69.‘

 

95
equality of use by the two countries above and below the
Sault Rapids and riparian rights in the rapids, subject to

navigation rights. Congress already had provided for con-

 

demnation of private property in the rapids.30
Canada and the Treaty L
Prime Minister Laurier had hesitations about the 1)

treaty almost as soon as he agreed to it.31 He cautioned

 

 

Gibbons that"we must make sure of our ground before we
commit ourselves.“52 He disliked the fact that the commis-
sion had not been given jurisdiction over the St. Mary and
Milk Rivers -- he had not wanted a special agreement.33

From the beginning Laurier had also felt uneasy
about.Article II in the treaty.34 The Smith Resolution con-
firmed his suspicions that in some way the treaty was contrary

to Canadian interests and he telegraphed Bryce that Canada

 

50U. S., Statutes at Large, XXXV, 820. The clause
read: "The right'to the flow of water and riparian, water
power, and other rights, now or hereafter owned by the
United States in the St. Marys River in Michigan shall be
forever conserved for the benefit of the Government of the
United States, primarily for the purposes of navigation and
incidentally for the purpose of having the water power de-
velOped. . .”

51Telegram, Laurier to Gibbons, Dec. 21, 1908,
Gibbons Papers, Vol. 5, P.A.C.

szGibbons to Laurier, Jan. 2, 1909, 133g.
33Ibid.
34Laurier to Gibbons, Jan. 12, 1909, ibid.

 

 

94

would need time for consideration of the effect of the new
interpretation.55 He had previously questioned why the com-
mission's powers had not been extended to diversion of cross-
boundary waters in Article II and he worried about how he
would defend this article in the House of Commons.36 He
thought of it as a surrender of public interests, and argued
that "running waters cannot be diverted to the detriment of
the country into which they flow."57 But Gibbons assured him
that there had been no surrender of public interests; the only
change was that, in case of diversion of streams, compensa-
tion should be made to private individuals, according to the
laws of the state or province where the diversion was made."58

The overworked Gibbons appealed to his friend across
the border, George Clinton, for a brief on the treaty and
16831 bOOkSo59 Sending only advice and books, Clinton
pointed out that Great Britain had insisted on "sovereign
control over waters wholly within its territory," in the nego-

tiations relating to the lower St. Lawrence.40 And he

 

55Laurier to Bryce, March 5, 1909, Anderson Papers,

Box 69.
36Laurier to Gibbons, Jan.

Papers, Vol. 5, P.A.C.
37Laurier to Gibbons, Jan. 27, 1909, ibid.
ibid., Vol. 8.

l2 and 14, 1909, Gibbons

58Gibbons to Laurier, Jan. 28, 1909,
59Gibbons to Clinton, Jan. 26, 1909, ibid.

40Clinton to Gibbons, Jan. 29, 1909, ibid., Vol. 6.

95

explained:

The exercise of sovereign power may produce injury
to the citizens of a friendly nation and, whether

or not the causing of such injury would give the
other nation a right to redress by war or reprisal,
it is quite clear that comity and national justice
should prevent the Exercising of the sovereign power
in such cases. . .4 ‘

Gibbons_used this argument but Laurier continued to
refer to Article II as a weak part of the treaty, "a very
serious source of trouble."42 He worried about the emphasis
Washington leaders put on Canadian abrogation of Article II
in the Treaty of 1842.45 Gibbons, on the other hand, felt
bound by his promise that Canada would no longer insist that
this article protected navigation rights in the water passage
to the Lake of the Woods.44 He argued that "the whole thing
is a shadow from which we have nothing to fear."45 In one

letter to Laurier he flared up:

Between all the fires I am distraught. When I was
asked to undertake the negotiation of this treaty

I was told that our then position was helpless; that
the Americans simply did as they pleased, and that
unless some arrangement was made would continue to
do so.

After describing the concessions made by both sides to arrive

a-o. v“.-I--I.~. m

—-——- -u-——.. ,

 

.”~—--m.-.— v...” ——- un-gu

~_~-._—.-_i-._‘v“-o “~~-- our. our

41Ibid.

42Laurier to
1909, ibid., Vol. 5.

43Laurier to Gibbons, Feb. 15, 1909, £921-

Gibbons, Feb. 9, 1909, ibid.; April 20,

44Infra, 68.

45Gibbons to Laurier, Feb.
46Gibbons to Laurier, Feb. 18, 1909, 123g.

25, 1909, ibid., Vol. 8.

96

at Article II, he concluded:

Am I to understand you now as repudiating my arrange-
ment? If so, of course, I must communicate it to

the other side and that will end the treaty. Tre-
mendous pressure has been brought on their side in
opposition to this Article Two.47

Laurier replied calmly that he did not care whether the
Treaty of 1842 was in or out, only that "it should be done
in the light of day."48 And he viewed the United States
decision to retain the clause, "subject to any treaty pro-
visions now existing with respect thereto," as a reversal of
their former position. "You will agree with me that we
would be in a singular position if, whilst the Treaty of

1842 was not interfered with by the new arrangement that we

were not to make use of it," he continued.49

Gibbons was eager to eXplain the treaty to Canadians

in the face of newspaper articles, often critical, about the

50 Laurier's letter advising

n the

——-

United States Senate hearings.

against a speech before a Canadian Club was dated 0

4'7Ibid.

 

48Laurier to Gibbons, Feb. 19, 1909, ibid., Vol. 5.

49Ibid. In the same paragraph in the treaty is this
provision: "But this provision shall not apply to cases al-

d by special agree-
read existing or to cases expressly covere
mentybetween the parties thereto,” which is a restriction on

the earlier phrase. d 1
50 Jan. 14 1909; The (Londo lmes,
Ottawa Citiqgn, 3 ___
Jan. 28, 1909{“Fhe Toronto Evening_Telegr§m, Jan. QBE‘IgUEfie
The Canadian newspaper articles had a negative effec on

Senate hearings, Bryce to Gibbons, Feb. 5, 1909, ibid., Vol. 6.

 

97

same day that Gibbons spoke to the Toronto Canadian Club.51

Since the treaty had not yet been sent to Canada, his talk
was premature and added to the opposition's criticism of the
publicity given to the treaty before its approval by the

British Government.52 Laurier did approve of Gibbons' ap-

pearance before the Ontario Cabinet, where all members fa- ;
vored the treaty except M.P. Adam Beck "who grouched away w
again."5;5

Laurier had been facing parliamentary demands to

 

bring in the treaty since it had first been presented to
the United States Senate.54 He asked for and received per-
mission from the British Government to lay the treaty before

55

the House of Commons at an early date. This took place

on March 15th.56 The debate on May 14th found many members

 

 

._

51Laurier to Gibbons, Feb. 22, 1909, ibid., Vol. 5.
5
2The Globe, Feb. 25, 1909, l. The topic was brought
up in the House of Commons Feb. 25th and May 14th, 1909.
Dom. of Canada, I Parl. Debates (1909), 1563; IV Parl. De-
bates (1909), 6590.

 

 

55Gibbons to Laurier, Feb. 6, 1909, Gibbons Papers,
Vol. 8. Beck, Chairman of the Hydro-Electric Power Commis-
sion in Ontario, wanted Canada to keep its electric power for
its own use and he tried to get public pressure against exporta-
tion. Gibbons knew that the Canadian market needed only 80,000
h.p. while Canadian companies could supply 440,000 h.p. Beck
also urged diversion of water from Lake Erie to the Jordan
River across the Niagara peninsula which Gibbons said would
lower Lake Erie 6 inches. Gibbons to J. J. Foy, Toronto Bar-
rister, Jan. 50, 1909, ibid.

54House of Commons, Jan. 25, 26, 29, Feb. 2, 4, 5, 17,
25, March 5, 10, 1909. Dom. of Canada, Parl. Debatgg.

55Laurier to Gibbons, Feb. 11, 18, 1909, Gibbons Papers,
Vol. 6, P.A.C.
56Journal, House of Commons, XLIV, 1909, 162.

 

98

from the Canadian ridings affected by the special agreements
speaking against the.treaty. They were critical of the de-
lay in the original appointments of commissioners, possible
patronage appointments, the cursory attention given by the
commission to power development at Niagara Falls, exporta-
tion of electric power, adoption of United States engineer- .
ing figures on Niagara Falls, and Gibbons"lack of diplomatic fi
57 ,

experience.

Laurier in his Speech stressed the importance of a

 

joint commission to preserve and regulate the use of boundary
waters as he thought that, without a commission, Canadian
objections to diversion would be ignored. He again voiced
his reservations about the exercise of absolute national
soVereignty over a cross-boundary stream to the detriment
of another country. And he declined to commit himself on
the Smith Resolution and whether he would "advise His Majes-
ty the King to ratify this treaty."58

Robert Borden, leader of the opposition, brought up
the question of whether legislation required by the treaty
should be passed by dominion or provincial parliaments. It
was his contention that the Canadian and not the British
Parliament should have the responsibility of treaty approval
in contrast to Laurier's view that the treaty-making power

for the dominions rightly rested in the Crown, except for

 

57bom. of Canada, IV Parl. Debates (1909). 6583-6650.
581bid.

 

99
treaties of commerce and those affecting the revenue.59
Meanwhile, Gibbons was anxiously awaiting approval of
the treaty by the Canadian Government. He knew that Bryce,
Aylesworth, and the Governor-General viewed the treaty favor-
ably as putting Canada in a better position than heretofore.60
It was Laurier who hesitated, now because of the special agree-
ment on the St. Mary and Milk Rivers. Western Canadians who
had large irrigation projects were disturbed by the treaty.
Part of their opposition arose out of confusion as to the
consequences of the American diversion of the St. Mary River
in Montana into the Milk River. The amount of water to be
diverted and the division of the waters during different sea-
sons of the year was complex. Dr. William King presented a
memorandum in the fall of 1909 which changed the definition
of the Milk River to include all tributaries but this led to

61

further confusion. In December, a delegation, consisting of

the British Ambassador, the Minister of Public Works, and King,

called at the United States Department of State to find out

about the construction of reservoirs, as had been promised,
on the headwaters of the St. Mary River, and the Rainy River

in Minnesota, as well as an investigation for a similar

59Ibid., 1, 640.

60Grey to Gibbons, April 17, 1909, Gibbons Papers,
Vol. 6, P.A.C.

No. 10 (1910), 64-65.

100
project on the St. John River in Maine.62 Anderson called on

Ambassador Bryce to confirm these projects verbally.63 Sec-
retary of State Knox followed this up with a letter to Bryce,

assuring him that the United States intended to follow through

64

on its promises. King continued to study the United States

proposal and its effect on Canadian projects.65 Finally,
in the spring, the Canadian Government heard from the West

that the ultimate effect of the St. Mary and Milk Rivers

project would not be injurious to Canadian interests.66

The treaty was ratified by Great Britain March 31,
1910 and by the United States April 1, 1910 with an exchange
of ratifications May 5th and the official proclamation of

the treaty May 13th.

w---.—”~ —-.r- c- ~w~sw¢h~m - .- c n -. — y.” cu -—----- - .-o - — -- -- —» c-v--———.-.-r.a—_-o-—.- - ...- o. .“

62Memorandum, Dept. of State, 5964/95.

53Bryoe to Grey, Dec. 15, 1909, C.S.P., XLIV, No.
10 (1910), 64-65.

64Jan. 5, 1910, Dept. of State, 5150/15.
550.S.gg, XLIV, No. 10 (1910), 81-82.

66T. G. Shaughnessy to Pugsley, March 4, 1910, ibid.,
85-84. ‘"“

 

VI. THE BOUNDARY WATERS TREATY

Eulosi_and 8921131

 

The Boundary Waters Treaty was hailed in both coun-

tries. The United States Secretary of State called it "one

of those fortunate arrangements which is equally advantageous

to both parties."1 The Governor-General saw the treaty as a

triumph for Gibbons personally and for Canadian diplomacy.2

Root hoped that the International Joint Commission would set

an example to the world of what a judicial board could accom-

plish, in contrast to a diplomatic one, and thus do away with

the need for a Hague tribunal.3 His statement, two decades

later, that
of peaceful
and Canada,

The

the commission was the reason for the continuance
and friendly relations between the United States
is a testament to its success.4

treaty solved a difficulty Canadians had faced

 

1

Knox to Bryce, March 50, 1910, Dept. of State,

711.42155/103.

2Grey to Laurier, Jan. 8, 1909, Laurier Papers, Vol.

734, P.A.C.

5Gibbons to Laurier, Aug. 25, 1908, Gibbons Papers,
Vol. 8, P.A.C.

4Root to Anderson, Sept. 9, 1955, Anderson Papers,

Box 101.

101

 

 

102
in the Alaskan boundary settlement -- that the British were
reluctant to jeopardize their relations with the United States
in representing Canadian interests. Canadians realized it was
not to their advantage to create friction between the two na-
tions. Canada's security depended as much upon the mutual
amicable relations of the United States and Britain as it did
upon her own relations with each of them. Canadians would suf~
fer if a conflict over water division in the Great Lakes led
to international tension -- the treaty prevented this possi-
bility.

Furthermore, it was an important step in the evolution
of Canadian national status. That Canadians could meet with
representatives of the United States, albeit with British
assistance, and work out a sensible course for future relations
was important in the development of national consciousness.
The eventual achievement of Commonwealth status came from such
advances. Important in this evolution was the establishment
of the Department of External Affairs in the spring of 1909.5
Gibbons played a part in publicizing the delays and blunders
of the dominion departments in handling diplomatic correspon-

dence which led to the new department.6

 

.‘ I _ *-.__-e-- "no—c .35.... ~ v- e» .. -. .--,‘._..-_-

5James anrs, "The Origins of Canada's Department of
External Affairs," in ThEMGrowthgofwganadianrPolicies in Exter-
nal Affairs by Hugh L. Keenleyside et al (Duke Univ.,l960),

 

6Gibbons, in his talk to the Canadian Club of Toronto
in February, described the circuitous route of diplomatic com—
munication, as told him by Root. This was quoted in an arti-
cle in The Globe Feb. 25rd, and read in the House of Commons
May 14, 1909. Dom. of Canada, IV Parl, Debates (1909), 6590.

 

103
A precedent on international cooperation in water
power development was set by the treaty. Gibbons described

how the Canadians had approached the problem:

The Canadian contention during the whole of the nego-

tiations was that there was no right of property but

a common right of use of these waters, and that the

only satisfactory way to deal with the question was

to adopt the principle of equal division without re-
gard to the volume of flow on either Side of the
boundary line at any particular point.

Equal division of waters shared in common was a fun-
damental principle. Implementation of impartial principles
by a permanent commission provided for changes in their in-
terpretation as industrial development brought new problems.
A joint commission to supervise projects insured equitable
adjustment to local conditions. The treaty set up a practi-
cal procedure for discussion of issues and their resolution
on a level proportional to their importance, thus preventing
minor controversies from becoming major ones.

Most important to the successful operation of the
commission was the willingness of both Canadians and Ameri-
cans to share the common waters for their mutual profit.

The realization by most North Americans that exploitation of
boundary water resources by either country would result in
disadvantage to both was fundamental to the success of the

treaty. The public interest required observance of inter-

national comity and consideration by the fommission of all

 

—
”*9

7Address of Gibbons at the 1916 Meeting of the Ca-
nadian Bar Association, Gibbons Paper, Vol. 14, P.A.C.

 

 

"II" 'I'..I_ 4'5"

 

104
protests regardless of nationality. Indifference to the ad-
vantages of cooperative development would have meant the
eventual failure of the sommission.

Gibbons led in this development of North American
cooperation. Of all those connected with the events leading
to the final Boundary Waters Treaty, it was he who showed the
greatest dedication to the adoption of principles to govern
water use in a treaty with a permanent joint commission to
apply them. Enthusiastic about Canadian development, confi-
dent that the treaty would benefit Canada, he energetically
pursued his goal of a treaty without allowing obstacles to
weaken his determination. The part he played from late 1905
to mid-1910 was significant in making the treaty a reality.
It was due to his persistence that discussions were continued
in 1908, after a stalemate; his memoranda to Root with the
necessary concessions enabled the two sides to reach an under-
standing. In the final United States Senate hearings, it
was his telegram approving passage of the treaty with the
Smith Resolution that influenced members of the State Depart-
ment to continue their support of the treaty. Although he
was not an experienced diplomat, his comprehension of Cana-
dian needs enabled him to visualize the far-reaching effects
of a permanent commission and to accept the changes necessary
to accomplish this.

His was the best diplomatic couse possible in the

circumstances of March, 1909 -- to rely upon the assurances

 

105
of Root and others that riparian rights would not be asserted
by the United States and to agree to the treaty as approved
by the Senate. And his perseverance was instrumental in
bringing the cautious Laurier to accept the treaty. It was
his firm conviction that the adoption of principles was the
only way in which the two countries could Share common waters.
The years have proved him right.

The-service Gibbons performed for Canada and Britain

 

 

 

was recognized byKnighthood in early 1911. Governor-General Lg
Grey congratulated him personally for "bringing these vexed
and dangerous questions to so satisfactory an issue."8
Bryce wrote enthusiastically of "the work they had done to
promote peace and good relations between Canada and the United
States."9 Root praised his "personal ability and force of
character."10 Anderson expressed his appreciation of ”your
unfailing courtesy and fairness in all our dealings” and
thought they were entitled to congratulate themselves.11

He did find fault later, in a letter to a friend,
that Gibbons was getting all the credit for the treaty in

Canada. As he eXpressed it:

 

~ 4...... . w..-—.~—.- .a- a. 5.

8Grey to Gibbons, April 17, 1909, ibid., v61. 6.

 

9Bryce to Gibbons, April, 1915, ibid., Vol. 5.

10Root to Gibbons, May 16, 1910, ibid.

llAnderson to Gibbons, Jan. 14, 1909, £221-

106

The original treaty was prepared by me without con-
sultation with Gibbons, and after being submitted
to Root was forwarded to Gibbons without change.,
Since then the only changes which were made in it
were in phraseology, in the omission of one article,
and in the addition of another article relating to
the St. Mary and Milk Rivers in Montana, except
that the article relating to Niagara Falls was
adopted from a draft of another treaty prepared by
Root and myself and previously proposed, which re-
lated wholly to the situation at Niagara Falls.12 P

I!
I
Commissioner Clinton took a different view. He .i

wrote to Gibbons that he viewed the Boundary Waters Treaty

 

 

 

as a "revision of the draft we prepared," which he thought J
Should be called the Gibbons-Clinton Treaty, since Gibbons
had made the greatest contribution to it.13 The record of

the 1908 negotiations, carried on by Gibbons and Anderson,
clearly Show that Anderson was responsible for the first
draft. However, it must be remembered that Anderson had
evaluated the Gibbons-Clinton Draft Treaty before that. And,
even earlier, he had written a memorandum on the principles
listed in the report of the Canadian Section under the chair-
manship of Gibbons.l4 Some of these principles had previous-
ly appeared in a sub-committee report of two engineers, one

from Canada and one from the United States. To accept one

man's authorship of the treaty is impossible when so many

“c-”

 

.. u-‘<- won-o v-- -o *I— -0~-:--o -‘.——-...-- -. c. .n-.. »-..—o—‘.-.- . o—uo-a-v—o- .—.—....-.~. -~ . . -- - —.

 

.-

12Anderson to Charles H. Butler, May 9, 1910, Ander-
son Papers, Box 69.

15011nton to Gibbons, Jan. 50, 1909, Gibbons Papers,
Vol. 6, P.A.C.

14Anderson to Root, Dec. 28, l906, Anderson Papers,
Box 68.

107
different men contributed lists of principles and draft

treaties.

Several writers have reviewed the achievements of
the International Joint Commission since its inception. A
Secretary of the Commission, Lawrence J. Burpee, has des-
cribed it as "the closest possible union consistent with
political independence."15 He wrote that, if such a commis-
sion had existed between Austria and Serbia, World War I
might have been avoided.

A political scientist, Robert A. MacKay, was more
realistic in his evaluation of the commission's effective-
ness. He saw merit in the permanent tenure of the commission
which facilitated the development of an E§RR¥P-dSN£9§B$ and
a spirit of independence from contemporary governmental policy,
making the commissioners more like judges on an international
court. He also praised the simplicity and directness of the
procedures to handle disputes. Private parties could present
their cases through counsel in public hearings; yet provision
was made for action by the two governments and for legal

activities by the commission members. He pointed out that,

 

’ van... ‘O we- . - ...-

15Lawrence J. Burpee, "An International Experiment,"
The Dalhousie Review, 5, 165-179.

 

 

108
up to 1928, only four investigations had been carried out
under Article IX, and that the Commission had never operated
under Article X, Which nevertheless, may have served as a
safety valve. He attributed the success of the Commission
to its continuous supervision of cases with the opportunity

to change decisions according to circumstances.16

C. Joseph Chacko wrote a detailed study of the Inter-
national Joint Commission in 1952, in which he analyzed the
,authority of the commission. His account of the beginnings
of the Commission is short and based on printed sources, as
he did not have access to the papers of Gibbons, Anderson,
and Root; nor did he refer to government papers in Canada. Ac-
cording to Chacko, the Boundary Waters Treaty was the result
of the efforts of Root and Bryce with the assistance of five
others, last of whom is Gibbons.17 James Simsarian wrote an
article on the diversion of waters and gave primarily one
side of the negotiations leading to the treaty, as he did his
research in the Anderson papers. He regarded Andersons as

the person responsible for the treaty.18 On the other hand,

Alan 0. Gibbons utilized the papers of Gibbons and presented

h.-

 

16Robert A. MacKay, "The International Joint Commis-
sion Between the United States and Canada," American
ggurnal of International Law, 22 (1928), 292-518.

'7
l C. Joseph Chacko, The International Joint Commis—

w.~-—.-—.

 

sion Between the United States ofwAmeriCa and the Dominion
of Canada (New York, 1952).

 

 

 

18JamesaSimsarian, "The Diversion of Waters Affecting
the United States and Canada," American Journal of Interna-

us”...

tional Law 52 (1958), 488-518.

 

 

109
a Canadian perspective on the negotiations. But he did not

study these closely enough to find out who was the main mo-
tivator for the treaty.19

In this study from the first investigation of the
problems of boundary waters in 1900 to the ratification of
the Boundary Waters Treaty, I have attempted to clarify the
actions of the various participants. At the turn of the
Century problems in boundary waters led to the temporary

International Waterways Commission. George C. Gibbons
recognized the significance of water resources in Canadian

development. As Chairman of the Canadian Section, he sought

to insure equal treatment for both Canada and the United
States in the Great Lakes system and boundary streams.
Delegated by Prime Minister Laurier to confer with Washington

authorities on a permanent joint commission and the imple-

mentation of principles to govern water use, he negotiated

a treaty which was rejected by Secretary of State Root.
Gibbons refused to accept special commissions or a permament
commission of inquiry, as advocated by Root. By making con-
cessions on irrigation waters and on a Minnesota water power
project, Gibbons got the Boundary Waters Treaty of 1909. As
the first Canadian diplomat of this century his indomitable
and generous spirit set an example for future Canadians -- who

can serve his country better?

_~‘.~... a; --—.~...-..,.._'....o. .n - - mw- a *-—-— ---¢—-- — .- - -- ‘0- a... so - “-fi-” -‘ 0-

19Alan 0. Gibbons, "Sir George Gibbons and the Bound-
ary Waters Treaty of 1909, " Canadian Historical Review, XXXIV
(1955), 124-158.

 

APPENDIX A

Report of Louis Coste and George Wisner1

‘91...- an.-. “us-5‘. ... n— “A-I—n. M”... .. .. -.,~,._ - d.“

 

Gentlemen:

YOur Engineering Committee appointed June 14, 1905,
to collect all data and information affecting matters at
Sault Ste. Marie and on the St. Marys River within the scope
of the Commission, and to report as early as practicable,
and Big has the honor to report as follows:

I
_GENERAL PRINCIPLES INVOLVED

The general principles involved in making an equitable
division of the waters of the international rivers, and which
are made the basis of this reports, are:

I. That Article II and Article VII of the Convention
of 1842 between the United States and Great Britain, better
known as the Webster-Ashburton Treaty, and Articles XXVI and
XXVII of the Treaty of Washington 1871, show that it was the
intention of the two governments that the whole of the St.
Lawrence System of Waterways should be common to ships, ves-
sels and boats of the two countries, and that in a general
way the people of the United States and the people of the
Dominion of Canada are co-partners in that part of the St,
Lawrence and Great Lakes System which is along or contiguous
to the boundary line between the two countries, and that both
for navigation and commercial purposes they have equal rights
to the uses of the waters of the system.

2. That the St. Marys River being an International
river and "in law" a navigable river, the bed of the river
and the control of the water are vested in the two govern-
ments of the United States and the Dominion of Canada and
therefore the riparian owners have no right to use or divert
water from the river without a grant confirmed by Joint action
of the two governments.

3. That the governments of the United States and
Canada have a right to regulate the level of the International
Lakes and Waterways at and between such elevations as are best

1Presented‘at Meeting of I.W.C. at Buffalo, Oct. 27th
and 28th, 1905. Gibbons Papers, Vol. 12, P.A.C.

110

lll
adapted for the interests of navigation and that companies
using the water for any purpose must so construct their works
that such levels can be maintained.

4. That inasmuch as to all intents and purposes the
two countries, the United States and the Dominion of Canada,
have under various clauses of the Treaties of Ghent 1814,
Webster-Ashburton 1842 and Washington 1871, equal rights of
navigation and commerce upon the St. Lawrence and Great Lakes
System, that on all boundary rivers of the system the water
shall belong in equal shares to the two countries.

5. That the government of either country shall not
grant permits for the use of the water of the International
Waterways for any purpose in excess of one-half the natural
flow, less the amount needed for navigation purposes. That
the use of water for the benefit of navigation is paramount
to that of any other interest, except for domestic supply.

6. That in the interests of navigation it is important
that the levels of the lakes and rivers forming the Interna-
tional System of the St. Lawrence and Great Lakes be main-
tained at proper elevations and that inasmuch as the deepen-
ing through the shoal parts of the International Waterway
will lower the said levels, only such channels as are abso-
lutely required for the commerce of the two countries be
undertaken in the best possible location, irrespective of
whether these channels are in the United States or in Canada,
and that in every case these channels shall be free to all
ships, vessels or boats of the two countries.

7. That the different‘ companies claiming vested rights
to the use of water of the International System of Waterways,
must settle all disputes as to ownership before permits to
take water from the channels are granted, and any attempt to
take more water than rightfully belongs to the country in
which the works are located, should constitute ample reason for
revoking the permits of all companies involved in such an
attempt.

 

 

 

112

APPENDIX B

To the International Waterways Commission:1

Your Committee appointed to prepare a more formal
expression of the principles ennunciating (gig in the first
division of the report of the Subcommittee on Conditions at
Sault Ste. Marie, and the reasons for the adoption of such
principles by this Commission, and further to report sug-
gestions as to the form of the rules and regulations contained
in the fifth division of said report, would respectfully
report and recommend the adoption of the following:

I
GENERAL PRINCIPLES

The history of diplomatic action of the Governments
of Great Britain and the Uhited States, included in treaties
and otherwise, of the Dominion of Canada, that the waters of
the Great Lakes, Lawrence river, together with such channels
and canals as have been and may be constructed, shall be
free to navigation and commerce of the United States and
Canada; this policy recognizing the right of both countries
to the use of these waters. From this, and from equitable
and Just principles which should govern the action of both
countries, it follows that:

1. Plans should be adopted in common for the improve-
ment of the waterways described, in the interests of naviga-
tion, whether the improvements involve the construction of
channels, the regulation of speed of vessels, the maintenance
of lights and buoys, the protection of the shores, the di-
version of water from natural courses, the use of water for
power or other purposes, the construction of bridges cross-
ing the waterways or the erection of works in the said water-
ways by either Government or by individuals.

2. In carrying out such plans each country should
perform its portion of the work at its own expense.

3. No person should be permitted to erect structures
in the narrow waterways without the consent of both countries.

4. No waters necessary for navigation of the water-
ways, in their present condition or as they may exist here-
after, should be diverted or impeded, or their flow accelerated,
by any individual except with the consent of both countries.

,~
4

lpaper'No.-12b, Draft forwarded by‘George Clinton,
Nov. 8, 1905, Gibbons Papers, Vol. 14, P.A.C.

 

 

115

5. All surplus waters, that is waters not needed at
present, or in the future, for navigation purposes, should
be equally divided between both countries, and the use
thereof by residents of either country should be governed by
regulations adopted internationally and promptly enforcible
by some authority to be created by international agreement.

6. The interests of navigation upon said waterways
are paramount to all other interests and should be carefully
preserved, and to avoid international complications, and to
enable the United States and Canada to fully carry out,
without hindrance and with promptness, the principles herein
enunciated, the beds of all waters connecting the Great
Lakes and of the Saint Lawrence should be, and should be
kept under the control of the respective countries, to the
exclusion of the exercise of common law riparian rights
without their consent.

7. No permits or grants, of land under water, fran-
chises, easements, rights to use water or to erect struc-
tures in the waterways should be made by either country where
they might by any possibility conflict with the enforcement
of the principles herein laid down.

8. The right of the two countries to maintain, regu-
late and raise the levels of the international waterways in
the interests of navigation is incontestable, but no work
should be undertaken without mutual consultation and agree-
ment by the two countries nor should any work be undertaken
which will not be for the benefit of both.

9. Canals and channels aiding or improving the navi-
gation of the waterways, constructed by either country,
should be free in all respects for navigation by the resi-
dents of both countries, and all tributary waters and canals
within or constructed by the Provinces of the Dominion of
Canada or the States of the United States should also be free
except so far as customary internal regulations, customs
laws, port regulations, and internal policy may make it nec-
essary to regulate the use of such tributaries and canals,
and no burden affecting their use should be imposed upon the
residents of one country which are not imposed upon the other
otherwise than as may be necessary for the purpose of enforc-
ing internal laws and regulations.

In enunciating these principles the committee uses the
words "individual" and "persons" as including not only natural
persons but all corporations, associations and partnerships.

DRAFT FORWARDED BY MR. CLINTON:

114

APPENDIX C

Public Hearing of I.W.C. held at Buffalo, N.Y., Nov. 10,
1905 as regards the uses and conditions of the waters of
St. Marys River.l

Chairman Ernst. . . ."We have drawn up a series of rules and

regulations, more to give a starting point for the discussion

than anything else. These are not authoritative in any sense,

they have not been adopted by anybody. They are presented

to this meeting for discussion, and they read as follows:--
RULES

1. Neither the government of the United States nor
the government of Canada shall grant permits for the use of
the water of St. Mary river in excess of one-half the natural
flow less the amount needed for navigation purposes.

2. The amount needed for navigation purposes shall
for the present be assumed at 4,000 cubic feet per second,
but neither government shall permanently alienate its right
to increase that amount indefinitely.

5. The level of Lake Superior shall be maintained as
nearly as possible between the elevation 601.5 and 603.0
feet above mean tide at New York, as established and under-
stood at this date by the United States Lake Survey Office
at Detroit, Michigan.

4. Hereafter no corporation or person shall be per-
mitted to divert water from the St. Marys river, or excavate
any channel or erect any structure therein, without the joint
approval of the Secretary of War of the United States, and
the Minister of Public Works of Canada; and such approval
shall not be given until said corporation or person shall
have submitted full plans of all their works to the Inter-
national Commission, and until said commission shall have
reported thereon. PROVIDED, That until such plans can be
submitted and reported on, the Michigan Lake Superior Power
Company, now operating power works at Sault Ste. Marie,
Michigan, may use 8,500 cubic feet per second, and no more,
and the Chandler-Dunbar Company, at the same place, may use
4,000 cubic feet per second, and no more, and the Lake Superior
Power Company, at Sault Ste. Marie, Ontario, may use 7,000
cubic feet per second, and no more, all under the same rules
and conditions as those under which they have heretofore ex-
ercised these privileges; and PROVIDED FURTHER, That this

 

lC.S.P. XLVII, No. 12 (1913), Part I, 138-159.

115

rule shall not apply to contracts now in force for the ex-
cavation of channels by either government for the benefit
of navigation.

5. Plans for the diversion of water must include
such remedial and controlling works in the bed of the stream
as may be necessary to maintain level, and must provide a
suitable passage for logs over the rapids.

6. Before a permit to use or divert water be granted,
the corporation or person seeking said permit shall, by a
proper instrument, bind itself or himself to abide by the
regulations hereafter prescribed and by any reasonable mo-
dification thereof which may from time to time be recommended
by the International Commission and approved by the Secre-
tary of War of the Uhited States and the Minister of Public
Works of Canada.

7. Permits to divert water for power purposes shall
be for a period not exceeding five years, and at the end of
that period shall lapse unless renewed.

8. Nothing herein contained shall be held to affect
any existing riparian or other rights of any person or corpo-
ration, or the existing remedies therefor, or any action at
law or equity now pending. All remedies herein provided
shall be cumulative, and shall be without prejudice to any
other remedies, either of the United States or Canada, or
of individuals, for failure of the power companies to main-
tain the levels for navigation purposes.

9. Corporations or persons using the water of St.
Marys river for power purposes shall operate them under the
following

REGULATIONS

 

116

APPENDIX D

Report upon the Conditions Existing at Sault Ste. Marie,
with Rules and Regulations for the Control of the Samei
Recommended by the International Waterways Commission.

Upon the organization of the Commission it found the
most pressing matter coming within its jurisdiction under the
broad provisions of the Act of Congress which provides for
its creation, was the regulation of the use by private corpo-
rations of the waters of St. Mary's River in connection with
the control of those waters for the protection of navigation
at present and in the future. The commission, therefore,
proceeded to an investigation of the local conditions by
special committees and the study of all data obtainable.
After thorough consideration of all the information which
could be obtained, and after hearing all parties interested
in the use of the waters at Sault Ste. Marie, including navi—
gation interests, the Commission is satisfied that the rules
and regulations recommended herein, governing the use, or in-
terference with the natural flow, of those waters, will do
entire justice to private interests and, at the same time,
fully protect commerce and navigation.

It is the opinion of the Commission that the Great
Lakes must be regarded as inland seas. This is not only the
tenor of the decision of the Courts in this country, but the
character of the lakes themselves, and of the immense commerce
which passes over them, gives them all the essential attri—
butes of the sea so far as commerce is concerned. From the
fact that the lakes are all connected by natural navigable
channels, except Lakes Erie and Ontario, which are connected
by a canal, it is apparent that they are physically and com-
mercially interdependent and should be regarded as constituting
a physical and commercial entity. The channels connecting
the Great Lakes, including the St. Marys River, while commonly
called "rivers" are not properly so named, but are in fact
"straits" having all the characteristics of ocean straits,
physically and from the point of view of navigation. These
considerations lead the Commission, when examining into condi-
tions in one locality, to keep in view, and to endeavor to
conserve, the public interests involved in the navigation of
all the Great Lakes and their connecting and tributary waters.

The extent of the commerce on the Great Lakes is well

 

lSent by Clinton to ceté Feb. 9, 1906. Infra, 20.
Gibbons Papers, Vol. 14, P.A.C.

117

illustrated by the statement of fact that the amount of
freight carried upon Lake Superior, which passed the locks

Page 12
RECOMMENDATIONS

The Commission would respectfully recOmmend:

1. That no permits should be granted for the use of
the waters of the Great Lakes or connecting channels, or
for the erection of structures in, under or over, or the
occupation in any manner of, the said waters until plans
have been submitted to the Commission for its investigations
and recommendations: and that no further permits for the use
of the waters of St. Marys River be granted before compliance
with the rules and regulations hereinafter recommended.

2. That steps be taken to increase the lockage fa-
cilities at the Sault Ste. Marie by the Government of the
United States or the Dominion of Canada, or both, without
unnecessary delay.

5. The Commission further recommends that no grants,
‘permits or concessions should be made, which directly or by
operation of law may, in any manner, affect the right of the
United States or of Canada to control the beds and adjacent
shores of the Great Lakes or their connecting waters, and
especially that none should be made which, legally or equitably,
may be the means of adding to the expense of acquiring lands
or rights for the purpose of making improvements in aid of
navigation, or which may give an equitable right to compen-
sation in case of the removal of structures in any navigable
waters.

4. As the Commission regards the interests of the
United States and of Canada in the preservation of the lake
levels, and in the improvement of the channels and the con-
servation of the water supply for purposes of navigation,
as identical and as incapable of efficient protection without
joint and harmonious action on the part of both Governments,
it recommends that the rules and regulations which may be
adopted be given the force and effect of law, and that some
joint body be created which will have power to enforce and
change them, and which will also have power to make further
recommendations and rules and regulations, generally, gov-
erning the use and diversion of the waters of the Great Lakes,
their connecting and tributary waters, by private individuals
or corporations, with power to enforce and change the same,
or that such powers be vested in the existing International
Waterways Commission, subject to such restrictions and reser-
vations as may be deemed advisable.

The Commission has adopted unanimously the following
resolutions:
RESOLVED:
That this Commission recommends to the Secretary of
War of the United States and the Minister of Public Works of

 

118

Canada, the following Rules and Regulations to govern the
use of water at the Sault Ste. Marie.

1. No person shall place any structure in, over or
under the St. Marys River, nor shall any person place any
obstruction in said river or make any excavation in the bed
thereof, or divert water therefrom, until plans for the work
shall have been submitted to the International Waterways
Commission, nor until consent shall have been given by the
Secretary of War of the United States and the Minister of
Public Works of Canada. All work must be done in accordance
with the plans approved by the Commission and subject to its
supervision and inspection; and no water shall be used or
diverted until the completed work shall have been approved
by the Commission.

2. Permits granted by the Secretary of War and by
the Minister of Public Works, shall be revocable upon the
recommendation of said CommissiOn whenever the Commission
shall deem revocation necessary in the interests of naviga-
tion; and persons own expense, abolish, or add thereto, or
construct other works for the protection of navigation in-
terests whenever the said Commission shall order the same to
be done; and said works and the plans therefor shall be subject
to the approval of said Commission. fermits to use or divert
water shall be granted by the Commission in its discretion,
shall be revocable at its will, and shall be for terms not
exceeding twenty years.

5. Persons now using or diverting the waters of St.
Marys River shall forthwith submit complete plans of all
their works existing and proposed, and until such plans have
been approved by the Commission they shall not use or divert
that waters of said river in excess of the amount now actually
used or diverted by them.

4. Plans for work contemplating the use or diversion
of water, must include such remedial and controlling works
as may be necessary to maintain levels, Such works must pro-
vide for (l), compensation equal to the amount oi water to
be used or diverted, (2), complete stoppage of flow through
canals and works, (5), passage of the amount of water naturally
flowing through the section occupied by the remedial works,
(4), passage of logs over the rapids.

5. The level of St. Marys River above the rapids, shall
be maintained between the elevations 601.7 and 605.2 feet
above mean tide at New York according to the system of levels
established by the U.S. Government in 1903, and the approval
of plans of works by the Commission and the consent of the
Secretary of War and Minister of Public Works to construct
works or to use or divert water shall in no way relieve the
owners and persons operating such works from the duty of main—
taining said level.

6. Nothing herein contained shall be held to affect
any existing riparian or other rights of any person or govern-
ment, or the existing remedies therefor, or any action at law

119

or in equity now pending.
All remedies herein provided shall be cumulative, and

shall be without prejudice to any other remedies, either of
persons or governments, for failure of persons operating under
permits, to maintain the levels for navigation purposes.

Nothing herein contained shall be held to affect the
exercise of the right of any executive officer of either the
United States or Canada, acting under the laws of his respective
country, to prevent the placing or cause the removal of any
obstructions in St. Marys River, or to otherwise preserve or

restore the navigability of any part thereof.
7. Persons using or diverting the water of St. Marys

River shall operate under the following:
REGULATIONS

120

APPENDIX E

From Second Interim Report of the Canadian Section of the
International Waterways Commission April 25, 1906.1

Whereas, in the opinion of this commission it is
desirable that the whole question of the uses and diversions
of the waters adjacent to the boundary line between the
United States and Canada, and the uses and diversions of all
streams which cross the international boundary between the
said countries should be settled by treaty.

Therefore, this commission recommend that a treaty
be had between the United States and Great Britain, in fram-
ing which it should be recognized, that:

1. In all navigable waters the use for navigation
purposes is of primary and paramount right, and therefore di-
versions should not be permitted which interfere with such
use 0

2. The Great Lakes system, on the boundary between
the United States and Canada, and finding its outlet by the
St. Lawrence to the sea, should be maintained in its inte-
grity, and no diversions of water tributary to such streams
should be permitted by either country, except as hereinafter
provided.

5. Permanent or complete diversions of such waters
are wrong in principle and should hereafter be absolutely
prohibited. The diversions by the Chicago drainage canal
should be limited to the use of not more than 10,000 cubic
feet per second.

4. Diversions of international waters elsewhere than
at Niagara river or the Niagara peninsula should only be
permitted,

(a) For domestic purposes and for the service of
locks in navigation canals.

(b) Temporary diversions, where the water taken is
returned again, only on the recommendation of a
joint commission; such diversions not to interfere
in any way with the interests of navigation and to
be allotted in equal proportions to each country and
so that each may have a like benefit.

5. It should be declared to be a principle with

 

lc.s.P., XLVII, No. 12 (1915), Part I, 538-59.

121

relation to the use of all navigable rivers and streams
crossing the international boundary that no obstruction or
diversion should be permitted, either on such rivers or their
tributary streams, which will interfere with navigation in

either country. ,
6. As to the diversions from Niagara river and on

the Niagara peninsula:
(a) In the opinion of this commission it would be

a sacrilege to destroy the scenic effect of
Niagara falls unless and until the public needs
are so imperative as to compel and justify the sa-
orifice.

(b) It is possible to preserve its beauty and yet
permit the development on the Canadian side of the
Niagara river itself and elsewhere by diversions
on the Niagara peninsula to Lake Ontario of water
for power purposes to the extent of not more than
56,000 cubic feet per second, exclusive of water
required for domestic uses, and for the service of
locks in navigation canals.

(c) It is likewise possible to allow the diversion
of waters for power purposes on the American side
to the extent of 18,500 cubic feet per second,
exclusive of the amount required for domestic uses,
and for looks in navigation canals, without serious
injury to the scenic aspect of the falls.

(d) Your commission are of opinion, therefore, that
for the present the diversions should be limited

to the quantities mentioned in subsections b and c.

(e) This would give an apparent advantage to Cana-
dian interests, but, as the diversion is not of

serious injury to the falls and does not materially
affect the interests of navigation, it is more than
counterbalanced by the complete diversion of 10,000
cubic feet by way of the Chicago drainage canal to
the Mississippi river.

7. Magnificent as are the scenic effects of the falls
of Niagara, the commercial value of the power which its waters
can produce is so very great, and the future need may be so
pressing, that, in the opinion of your commission, it will be
sufficient that a treaty with regard to the diversions there
should be limited to the period of twenty-five or thirty years.

8. As to non-navigable streams flowing in either di-
rection across the international boundary line, diversion
for irrigation or other than 'innocent uses,’ be allowed so
that each country shall have an equal benefit from such diver-
sions and that a joint commission shall have power to deal with
and regulate such uses.

Suggestions have been made that the mean level of Lake
Erie can be raised by the erection of a dam at the mouth of the
Niagara river, but to this course strong objection is made by
the parties in interest at Montreal and elsewhere who apprehend

122

APPENDIX F

Joint Report of the Commission on the Conditions Existing at
Niagara Falls with Recommendations May 5, 19061

The Honourable, the Minister of Public Works of Canada, and
the Honourable, the Secretary of War of the United States:

The International Waterways Commission has the honour
to submit the following report upon the preservation of
Niagara falls:-

The commission has made a thorough investigation of
the conditions existing at Niagara falls, and the two sections
have presented reports to their respective governments setting
forth these conditions, to which attention is invited. The
following views and recommendations are based upon a careful
study of the facts and conditions set forth in these reports:

1. In the opinion of the commission, it would be a
sacrilege to destroy the scenic effect of Niagara Falls.

2. While the commission are not fully agreed as to
the effect of diversions of water from Niagara falls, all
are of the opinion that more than 56,000 cubic feet per
second on the Canadian side of the Niagara river or on the
Niagara peninsula, and 18,500 cubic feet per second on the
American side of the Niagara river, including diversions for
power purposes on the Erie canal, cannot be diverted without
injury to Niagara falls as a whole.

5. The commission, therefore, recommend that such
diversions, exclusive of water required for domestic use or
the service of locks in navigation canals, be limited on
the Canadian side to 56,000 cubic feet per second, and on the
United States side to 18,500 cubic feet per second (and in
addition thereto, a diversion for sanitary purposes not to
exceed 10,000 cubic feet per second, be authorized for the
Chicago Drainage canal), and that a treaty or legislation be
had limiting these diversions to the quantities mentioned.

The effect of the diversion of water by the Chicago
Drainage canal upon the general navigation interests of the
Great Lakes system will be considered in a separate report.

The Canadian section, while assenting to the above
conclusions, did so upon the understanding that in connection

 

lC.S.P., XLVII, No. 12 (1915), Part I, 559-40.

 

125

therewith should be expressed their view that any treaty or
arrangement as to the preservation of Niagara falls should
be limited to the term of twenty-five years and should also

establish the principles applicable to all diversions or uses
of waters adjacent to the international boundary, and of all

streams which flow across the boundary.

The following principles are suggested:

1. In all navigable waters the use for navigation
purposes is of primary and paramount right. The Great Lakes
system on the boundary between the United States and Canada
and finding its outlet by the St. Lawrence to the sea should
be maintained in its integrity.

2. Permanent or complete diversions of navigable waters
or their tributary streams, should only be permitted for domes-
tic purposes and for the use of locks in navigation canals.

5. Diversions can be permitted of a temporary character,
where the water is taken and returned back, when such diversions
do not interfere in any way with the interests of navigation.
In such cases each country is to have a right to diversion in
equal quantities.

4. No obstruction or diversion shall be permitted in
or upon any navigable water crossing the boundary or in or
from streams tributary thereto, which would injuriously af—
fect navigation in either country.

5. Each country shall have the right of diversion or
irrigation or extraordinary purposes in equal quantities of the
waters of non-navigable streams crossing the international
boundary.

6. A permanent joint commission can deal much more
satisfactorily with the settlement of all disputes arising as
to the application of these principles, and should be appointed.

The American members are of opinion that the enunciation
of principles to govern the making of a general treaty is not
within the scope of their function; moreover the jurisdiction
of the American members is restricted to the Great Lakes system.

Signatures of the Commission

 

124

APPENDIX G

From Report on the Conditions Existing at Sault Ste. Marie,
with Rules for the Control of the same, recommended by the
I.W.C. May 5, 19061

O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O

The commission would respectfully recommend:

1. That no permits shall be granted for the use of
the waters of the St. Marys river, or for the erection of
structures in, under or over, or the occupation in any man-
ner of the said waters until plans have been submitted to

‘3‘ commission for its investigation and recommendation;
and the use of the waters under such permits shall not be

allowed except upon compliance with the rules hereinafter

recommended.

2. The commission further recommends that no grants,
permits or concessions should be made, which directly or by
Operation of law, may, in any manner affect the right of the
United States or of Canada, to control the bed of the St.
Marys river, below high water mark, and especially that none
should be made which, legally or equitably, may be the means
of adding to the expense of acquiring lands or rights for
the purpose of making improvements in aid of navigation, or
which may give an equitable right to compensation in case of
the removal of structures in said river.

5. That steps shall be taken to increase the lockage
facilities at Sault Ste. Marie without unnecessary delay.

4. That the governments of the United States and
Canada reserve all water necessary for navigation purposes,
at present or in the future, and the surplus shall be di-
vided equally between the two countries for power purposes.

5. As the commission regards the interests of the

United States and Canada in the preservation of the lake
levels, and in the improvement of the channels and the con-
servation of the water supply for purposes of navigation as
identical and as incapable of efficient protection without
joint and harmonious action on the part of the two governments,
it recommends that the rules hereinafter set forth be adopted,
and that a joint commission be created to supervise their en-
forcement, or that such powers be vested in the existing In-
ternational Waterways Commission, subject to such restrictions
and reservations as may be deemed advisable.

lC.S.P., XLVII, No. 12 (1915), Part I, 548-49.

125

APPENDIX H
Recommendationsagreed upon by Canadian Section Nov. 8, 19061

The waters of Lake Michigan in the United States, as
the waters of Georgian Bay in Canada, and the waters of Lake
Superior partly in the United States and partly in Canada,
all form sources of supply of the Great Lakes System, finding
their way by the Saint Lawrence to the sea.

The right of navigation of these waters is common to
both nations, and even as to the portion of the Saint Law-
rence River which lies wholly within Canadian territory the
right is given by Article XXVI of the Treaty of 1871 to the
citizens of the United States in common with the citizens of
Great Britain. It is therein declared that such river ”where
it ceases to form the boundary between the two countries
from, to, and into the sea shall forever remain free and
open for the purposes of commerce to the citizens of the United
States.

In the opinion of your commission, therefore, the
interests of navigation in these waters are paramount subject
only to the right of use for domestic purposes.

Your Commission concede the right to the Sanitary
District of Chicago to use the waters of the said Lake only
in so far as it is absolutely essential that they should do
so for domestic uses, including the right to preserve the
health of the city by a drainage canal if other means cannot
be provided.

The preservation of the levels of the Great Lakes
System is in the opinion of your Commission of the utmost
importanbee, and the Federal Governments controlling naviga-
tion should so regulate diversions as to limit the same to
the domestic uses aforesaid.

The Canadian Members of this Commission feel in deal-
ing with diversion from Lake Michigan, that they are not
called upon, nor would it be within their province to limit
such uses or to suggest, much less dictate what system should
be adopted by the Sanitary District of Chicago with a view to
minimise the amount of water which the are to divert. They
are of the opinion that it must be lef to the Federal Govern-
ment of the United States to protect the interests of naviga-
tion.

 

lGibbons Papers, Vol. 10, P.A.C.

126

APPENDIX I
From Joint Report on the Application of the Minnesota Canal
and Power Company, of Duluth, Minnesota, for Permission to
Divert Certain Waters in the State of Minnesota from the
Boundary Waters between the United States and Canada, 19061

Nov. 15, 1906

. O O . O I O O O C O O 0 O O O O O O O O O O O O O O O O 0

Conclusions

The commission has arrived at the following conclu-
sions:

1. While the work proposed by the applicant will be
of great advantage to the interests served, it will inter-
fere with public and private interests in Canada, and the
commission see no public necessity for it.

2. The proposed diversion will injure the interests
of various classes of persons, namely residents of the United
States having property rights in the State of Minnesota,
residents of the United States having property rights and
interests in Canada and in the boundary waters, residents of
Canada having property rights and interests in Canada, and
municipalities in the Dominion of Canada. The rights and
interests which will be affected are divisible into two
classes, namely, those which depend upon navigation directly
or indirectly and those which depend upon the use of waters
of the various streams and lakes for power purposes.

5. The proposed diversion will affect injuriously
navigation upon the boundary waters between the United States
and Canada, above mentioned, and upon navigable waters in
Canada connecting said boundary waters; but,

4. So far as water-power interests on the international
boundary or in Canada are concerned, which depend upon the
supply from the Birch lake drainage area, although remedial
works at locations above Rainy lake may be constructed, the
total amount of water can be stored and used for power pur-
poses upon the boundary and connecting waters located wholly
in Canada, will be diminished.

5. The applicant, the Minnesota Canal and Power Company
of Duluth, Minnesota, under the decision of the Supreme Court
of Minnesota, above cited, apparently has not the power to
utilize the permit it seeks to obtain, but possibly may acquire

__L

lC.S.P., XLVII, No. 12 (1915), Part I, 567-68.... “

Ul'\- ...\A

127

that power. It would seem, therefore, that the permit which
the applicant seeks, ought not in any case to be granted
before it secures authority under the laws of Minnesota to
utilize it.

6. That the rights and interests of the residents
of Minnesota which may be affected by the proposed diversion,
are of so much less importance than the interests which will
be promoted by the prOposed works of the applicant, that they
do not furnish a sufficient reason for refusing the permit
sought, inasmuch as full compensation must be made to such
persons under the laws of Minnesota.

7. Neither the State of Minnesota nor the United
States can provide the adequate means by which money com-
pensation can be ascertained and made to the owners of the
interests in Canada which may be injured, and it follows
that individuals sustaining injury would be relegated to
litigation. This is a violation of the principle of law
that private property shall not be taken for public use,
unless provision for compensation can be made without liti-
gation and its attendant delays and expense.

8. So far as remedial works are concerned, it is
sufficient to say that there is no jurisdiction in the
United States or in the State of Minnesota to provide for
or permit the erection of the necessary remedial works in
Canada.

9. That although it might be advisable to grant the
permit applied for, in case the applicant should acquire the
powers necessary to utilize it, if objections arising from
international relations did not exist, treaty provisions,
international comity and the impossibility of providing just
means of assuring adequate compensation for injury to inter-
ests in Canada, or of preserving navigation unimpaired on
the boundary streams, without concurrent action of both
governments concerned, lead us to the conclusion that the
permit should not be granted unless the full protection of
all interests not cared for by the laws of Minnesota be
secured by concurrent action of the United States and Canada.

RECOMMENDATIONS
l. The commission would, therefore, recommend that
the permit applied for be not granted without the concurrence

of the Canadian government.
2. As questions involving the same principles and

difficulties, liable to create friction, hostile feelings and
reprisals, are liable to arise between the two countries,
affecting waters on or crossing the boundary line, the com—
mission would recommend that a treaty be entered into which
shall settle the rules and principles upon which all such
questions may be peacefully and satisfactorily determined
as they arise.

5. The commission would recommend that any treaty
which may be entered into should define the uses to which

128

international waters may be put by either country without
the necessity of adjustment in each instance, and would
respectfully suggest that such uses should be declared to be:

(a) Use for necessary domestic and sanitary purposes.

(b) Service of locks used for navigation purposes.

(c) The right to navigate.

4. The commission would also respectfully suggest
that the treaty should prohibit the permanent diversion of
navigable streams which cross the international boundary or
which form a part thereof, except upon adjustment of the
rights of all parties concerned by a permanent commission,
and with its consent.

Signatures of the Commission

 

129

APPENDIX J

Gibbons-Clinton Draft Treaty submitted to the Secretary of
State and the Prime Minister September 24, 1907

PROPOSED TREATY CLAUSES
Article I

Whereas questions have arisen and may hereafter arise
involving the use and diversion of the boundary waters of the
United States and Canada, and in relation to the protection
of the fisheries therein, the improvement of navigable chan-
nels for navigation, the improvement and maintenance of the
levels therein, and the protection of the banks and shores of
such waters; and whereas it is desirable that the rules of
navigation upon navigable waters forming a part of the bound-
ary between the United States and the Dominion of Canada, and
the use of signal lights of vessels navigating said waters
should be uniform, and whereas the use of joint rules of the
United States and the Dominion of Canada, and such rules must
be enforced by joint action of said countries; and whereas it
is deemed wise by the high contracting parties, in order to
settle all such questions now existing, or which may hereafter
arise, and to dispose of all other matters above mentioned,
that a permanent international commission be appointed with
full powers in the premises; therefore the high contracting
parties agree that all such questions and matters as they may
arise shall be referred by them to a commission to consist of
six commissioners, three to be appointed by the President of
the United States, and three by His Britannic Majesty; and
the high contracting parties agree to appoint the commissioners
as soon after the ratification hereof as may be convenient. In
case of the death, absence or incapacity of a commissioner, or
in the event of a commissioner omitting or ceasing to act as
such, the President of the United States or His Britannic
Majesty, respectively, shall name another person to act as
commissioner in the place or stead of the Commissioner originally
named.

Article II
The Commissioners shall meet in Washington at the ear-
liest convenient time after they shall have been named, and

 

lGibbons Papers, Vol. 14, P.A.C.

150

shall, before proceeding to do any business, make and sub-
scribe a solemn declaration that they will impartially and
carefully examine and decide, to the best of their judgment
and according to justice and equity, without feeling, favor
or affection to their country, upon all such matters as shall
be laid before them on the part of the governments of the
United States and of His Britannic Majesty, respectively,

and such declaration shall be entered on the record of their
proceedings.

After having organized the commissioners may meet
at such times and places as they may appoint. They shall
give all parties interested in matters which come before
them, convenient opportunity to be heard, and may take evi-
dence on oath when deemed necessary. They may adopt such
rules of procedure as may be in accordance with justice and
equity and may make such examinations in person and through
agents, or employees, as they may deem advisable.

The majority of the commission shall have power to
render a decision, but in case a majority do not agree, the
Commission shall select an arbitrator or arbitrators to whom
the matters in difference may be referred and whose decision
shall be final

The Commission may employ secretaries, engineers and
other assistants, from time to time as it may deem advisable.
The salaries and personal expenses of the Commissioners
shall be paid by their respective governments, and all other
expenses, including the pay of arbitrators, shall be paid
equally by the high contracting parties, who shall make
proper provision therefor.

Article III
The Commission shall have power to consider and
determine all questions and matters related to the subject
specified in Article I which may be referred to it by the
High Contracting Parties.

The decision of the Commission upon ang matters sub-
mitted to it shall be enforced by the High Con racting

Parties; and for the purpose of enforcing any rules and
regulations, which may be adopted by the Commission, pursuant
to the powers conferred upon it by this treaty, the Commis-
sion may exercise such police powers as may be vested in it
by concurrent legislation of the United States and Dominion
of Canada.

Article IV
It is agreed as follows:--
1. The expression "boundary waters" as used in this
treaty includes the following described waters, to wit:
Lake Superior, Michigan, Huron including Georgian Bay, St.
Clair, Erie, and Ontario: the connecting and tributary
waters of said lakes, the river St. Lawrence from its source

 

151

to the ocean; the Columbia River and all rivers and streams
which cross the boundary line between the Dominion of Canada
and the United States, and their tributaries.

2. All navigable boundary waters, and all canals and
channels connecting the same or aiding in their navigation,
now existing or which may hereafter be constructed are and
shall be forever free for navigation by the citizens and
subjects of both countries, ascending and descending, sub-
ject to such just rules and regulations as either of the High
Contracting Parties may, within its own territory, impose,
provided that such rules and regulations shall not discrimi-
nate between the citizens or subjects of the High Contracting
Parties.

5. The right to use said waters for navigation is
paramount to all other rights, except that of use for neces-
sary domestic and sanitary purposes and the service of canals
for purposes of navigation.

4. Where diversions of water are permitted for the
purpose of generating power, upon waters along the line of
the international boundary, the interests of navigation must'
be fully protected, and, as far as possible, the right to use
one half of surplus waters available for power purposes shall
be preserved to each country, its citizens or subjects.

5. Where diversion for irrigation is permitted the
paramount right of navigation must be preserved and the rights
of each country affected and of its citizens or subjects must
be equitably protected.

6. The said waters must not be polluted in one country
to the injury of health or property in the other.

7. No water shall be diverted from the Niagara River
or from Lake Erie by way of the Niagara Peninsula in excess
of 18,500 cubic feet per second in the United States, and
56,000 cubic feet per second in the Dominion of Canada, ex-
cept for necessary domestic and sanitary uses, and for ser-
vice of canals for purposes of navigation.

8. Solely for the purposes of this treaty, the ex-
pression "Navigable boundary waters" shall be taken to mean
all such boundary waters as are subject to public use for
the transportation of property, in accordance with the common
law as recognized in the Dominion of Canada and in the United
States: and the Commission is authorized and empowered to
determine the navigability of streams, as matter of fact, when
it becomes necessary to do so in matters referred to it.

9. No diversion or obstruction of boundary waters in,
or by, either country, which shall materially interfere with
the natural flow thereof, to the injury of the other country,
or of its citizens or subjects shall be permitted without
the consent of such other country.

10. The words "citizens" and "subjects“ as used in
this treaty shall be deemed to include individuals, corpo-
rations, joint stock companies, associations and partnerships.

 

152

Article V

The Commission is hereby empowered and directed to
ascertain the boundary line between the United States and the
Dominion of Canada through lakes Ontario, Erie, St. Clair, and
Huron, and the waters connecting the same as laid down by the
Commissioners appointed under the treaty of Ghent, as nearly
as possible, and to delineate the same upon modern charts and
to describe it in writing, and, so far as practical, by refer-
ence to fixed monuments which the Commission may locate and
erect and which shall be described that they can be readily
found.

The Commission shall by report, signed by the Commis-
sioners, designate the boundary line so ascertained by it and
shall cause to be prepared proper maps delineating the same.
They shall file their report together with such maps, in dupli-
cate with the Secretary of State of the United States and with
the Minister of Public Works of the Dominion of Canada.

The boundary line as ascertained and reported by the
Commission shall be the boundary line between the United States
of America and the Dominion of Canada, through the waters last
above mentioned.

In case a majority of the commission shall not be able
to agree on the location of the boundary line through the waters
last above mentioned, in whole or in any part, they shall make
joint or several reports in duplicate, to the government of His
Britannic Majesty and to that of the United States, stating in
detail the points on which they differ.

Article VI

AND WHEREAS it is desirable that the said Commission,
when formed, should have authority to deal with all other mat-
ters, which shall, by consent of both the contracting parties,
be submitted to it for decision or which shall with such con-
sent, be referred to it with a view to having the said Commis-
sion consider and report thereon with such recommendations as
they may think advisable.

NOW THEREFORE the High Contracting Parties agree that
the said Commission shall, as to all matters so referred to
them for decision, have the same powers as are given to them
with respect to the subjects mentioned in Article I of this
treaty.

As to such matters as are not referred to them for
decision the said commission shall consider and report upon
the facts, with such recommendations as they may see fit.

In case a majority of the Commission cannot, in matters
so referred to them for decision, agree upon findings, they
shall appoint one or more arbitrators as provided in Article
I, but as to all other subjects referred to them if the ma-
jority cannot agree upon conclusions, the views of the members
shall be embodied in separate reports to be submitted to both
the High Contracting Parties.

155

Article VII

The Commission with all its powers conferred and duties
imposed by this treaty shall continue during the pleasure of
both of the high contracting parties; but if either of the
parties desires to terminate this treaty it shall give to the
other at least one year's notice in writing before doing so.
For all the purposes of these articles the Dominion of Canada
shall be deemed to represent His Britannic Majesty.

All reports and communications of the Commission are to
be made to the Secretary of State of the United States and to

the Prime Minister of the Dominion of Canada.

154

APPENDIX K

The Root (Anderson) Draft Treaty1

Draft of Proposed Treaty for the Appointment of a Joint Com- .
mission of Inquiry with Respect to Questions Arising Between
the United States and Canada Along Their Common Frontier

The United States of America and His Majesty Edward
the Seventh of the United Kingdom of Great Britain and Ire-
land and of the British Dominions beyond the Seas, King and
Emperor of India, being equally desirous that provision may
be made for an impartial and expert examination under their
joint direction, whenever desired on either side, with re-
spect to questions or matters of difference affecting the
mutual relations of the United States and the Dominion of
Canada and arising along their common frontier, with a view
to securing harmonious and mutually acceptable action on

both sides in dealing with such questions or matter, have
resolved to conclude a treaty in furtherence of these ends,
and for that purpose have appointed their respective pleni-
potentiaries as follows:
The President of the United States of America,
Elihu Root, Secretary of State of the United States
and
His Britannic Majesty, the Right Honorable James
Bryce, O. M., His Britannic Majesty's Ambassador
Extraordinary and Plenipotentiary;
who, after an exchange of their full powers, which were
found to be in good and due form, have agreed upon and con-

cluded the following articles:

Article I

A Joint Commission of Inquiry, composed of six Com-

missioners, three on the part of the United States and three
on the part of Great Britain, shall be referred from time

to time for examination and report any questions or matters
of difference arising between the United States and the
Dominion of Canada involving inhabitants of the other along
their common frontier, whenever either the Government of the
United States or the Government of the Dominion of Canada
shall request that such questions or matters of difference
be so referred.

 

1
Anderson Papers, Box 69.

 

 

 

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‘III I!‘

155

The Joint Commission of Inquiry hereby constituted
is authorized in each case so referred to examine into and
report upon the facts and circumstances of the particular
questions and matters referred, together with such conclu-
sions and recommendations as may be appropriate if called for,
subject, however, to any restrictions or exceptions which
may be imposed with respect thereto by the terms of the ref-
erence.

The reports of the Commission shall not be regarded
as decisions of the questions or matters submitted either on
the facts or the law, and shall in no way have the character
of an arbitral award.

Article II

The three Commissioners on the part of the United
States shall be appointed by the President of the United
States, by and with the advice and consent of the Senate,
and in case of the death, resignation, or incapacity to act
of any of such Commissioners, or their successors, the va-
cancy thus caused shall be filled in like manner.

The three Commissioners on the part of Great Britain
shall be appointed by _______ and in case of the
death, resignation, or incapacity to act of any of such Com-
missioners, or their successors, the vacancy thus caused
shall be filled in like manner.

It is the desire of the High Contracting Parties
that, so far as may be convenient, one of the commissioners
appointed on each side shall be a lawyer of experience in
questions of international and riparian law, and one an
engineer well versed in the hydraulics of the Great Lakes.

It is further agreed that the Commissioners on each
side shall be appointed as soon as may be after the ratifi-
cation of this treaty.

Article III

The Commission shall hold the first meeting and org-
anize at such time and place as may be required by the ref-
erence to it of any questions or matters for examinations
and report, as above provided, and when organized the Com-
mission may fix the times and places for its meetings, sub-
ject to special call or direction by the two Governments.
Each Commissioner, upon the first joint meeting of the Com—
mission after his appointment, shall, before proceeding with
the work of the Commission, make and subscribe an oath or
declaration in writing that he will carefulLyand impartially
examine and report upon all questions and matters referred
to the Commission as provided by this treaty, and such oath
or declaration shall form part of the permanent records of
the Commission.

156
Article IV

The Commission may employ secretaries, engineers,
and other-assistants from time to time as it may deem advis-
able. The salaries and personal expenses of the Commissioners
shall be paid by their respective Governments, and all other
expenses shall be paid in equal moieties by the High Con-
tracting Parties.

Article V

The Commission shall give all parties interested in
questions and matters which come before it convenient Oppor-
tunity to be heard, and may take evidence bn oath when
deemed necessary. The Commission may adopt such rules of
procedure as shall be in accordance with justice and equity,
and may make such examination in person and through agents
or employees as may be deemed advisable.

Article VI

The Commission shall make a joint report to both Gov-
ernments in all cases in which all or a majority of the Com-
missioners agree, and in case of disagreement the minority
may make a joint report to both Governments, or separate
reports, each to his own Government.

In case the Commission is evenly divided upon any
question or matter referred to it for report, separate re-
ports shall be made by the Commissioners on each side to
their own Government.

Article VII

All reports and communications of the Commission
shall be made to the Secretary of State of the United States
and to the (?) Prime Minister of the Dominion of Canada.

Article VIII

This treaty shall remain in force for years after
its date and thereafter until terminated by a twelve months'
written notice, given by either High Contracting Party to
the other.

137

APPENDIX L

The Boundary Waters Treatyl

 

 

Treaty Between the United Kingdom and the United States of
America Relating to Boundary Waters and Questions Arising
Along the Boundary Between Canada and the United States.
Signed at Washington, January ll, 1909
(Ratifications exchanged at Washington, May 5, 1910)

His Majesty the King of the United Kingdom of Great
Britain and Ireland and of the British Dominions beyond the
Seas, Emperor of India, and the United States of America,
being equally desirous 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 here-
after arise, have resolved to conclude a Treaty in further-
ance of these ends, and for that purpose have appointed as
their respective Plenipotentiaries.

His Britannic Majesty, the Right Honourable James
Bryce, O.M., his Ambassador Extraordinary and Plenipotentiary
at Washington; and

The President of the United States of America, Elihu
Root, Secretary of State of the United States;

Who, after having communicated to one another their
full powers, found in good and due form, have agreed upon the
following articles:

PRELIMINARY ARTICLE

For the purposes of this Treaty boundary waters are
defined as the waters from main shore to main shore of the
lakes and rivers and connecting waterways, or the portions
thereof, along which the international boundary between the
United States and the Dominion of Canada passes, including
all bays, arms, and inlets thereof, but not including tri-
butary waters which in their natural channels would flow
into such lakes, rivers, and waterways, or waters flowing

 

.Q—o—ov,-"'”’-“- U '—

 

lRobert Borden, Treaties and Agreements Affecting
Canada in Force Between His Majesty and the United States

m--

of America 1814-lglé (Ottawa, 1915), 185-195.

 

 

 

 

 

158

from such lakes, rivers, and waterways, or the waters of
rivers flowing across the boundary.

Article I

The High Contracting Parties agree that the naviga-
tion of all navigable boundary waters shall for ever continue
free and open for the purposes of commerce to the inhabitants
and to the ships, vessels, and boats of both countries equally,
subject, however, to any laws and regulations of either coun-
try, within its own territory, not inconsistent with such
privilege of free navigation, and applying equally and with—
out discrimination to the inhabitants, ships, vessels, and
boats of both countries.

It is further agreed that so long as this Treaty
shall remain in force, this same right of navigation shall
extend to the waters of Lake Michigan and to all canals con-
necting boundary waters, and now existing or which may here-
after be constructed on either side of the line. Either of
the High Contracting Parties may adOpt rules and regulations
governing the use of such canals within its own territory,
and may charge tolls for the use thereof, but all such rules
and regulations and all tolls charged shall apply alike to
the subjects or citizens of the High Contracting Parties and
the ships, vessels, and boats of both of the High Contract-
ing Parties, and they shall be placed on terms of equality
in the use thereof.

Article II

Each of the High Contracting Parties reserves to it-
self or to the several State Governments on the one side and
the Dominion or Provincial Governments on the other, as the
case may be, subject to any treaty provisions now existing
with respect thereto, the exclusive jurisdiction and control
over the use and diversion, whether temporary or permanent,
of all waters on its own side of the line which in their
natural channels would flow across the boundary or into bound-
ary waters; but it is agreed that any interference with or
diversion from their natural channel of such waters on either
side of the boundary, resulting in any injury on the other
side of the boundary, shall giye rise to the same rights and
entitle the injured parties to the same legal remedies as if
such injury took place in the country where such diversion
or interference occurs; but this provision shall not apply
to cases already existing or to cases eXpressly covered by
special agreement between the parties hereto.

It is understood, however, that neither of the High
Contracting Parties intends by the foregoing provision to
surrender any right which it may have to object to any inter-
ference with or diversions of waters on the other side of the
boundary the effect of which would be productive of material
injury to the navigation interests on its own side of the
boundary.

159
Article III

It is agreed that, in addition to the uses, obstruc-
tions, and diversions heretofore permitted or hereafter pro-
vided for by special agreement between the Parties hereto, no
further or other uses or obstructions or diversions, whether
temporary or permanent, of boundary waters on either side of
the line, affecting the natural level or flow of boundary wa-
ters on the other side of the line, shall be made except by
authority of the United States or the Dominion of Canada with-
in their respective jurisdictions and with the approval, as
hereinafter provided, of a joint commission, to be known as
the International Joint Commission.

The foregoing provisions are not intended to limit or
interfere with the existing rights of the Government of the
United States on the one side and the Government of the Domi-
nion of Canada on the other, to undertake and carry on gov-
ernmental works in boundary waters for the deepening of chan-
nels, the construction of breakwaters, the improvement of
harbours, and other governmental works for the benefit of
commerce and navigation, provided that such works are wholly
on its own side of the line and do not materially affect the
level or flow of the boundary waters on the other, nor are

such provisions intended to interfere with the ordinary use
of such waters for domestic and sanitary purposes.

Article IV

The High Contracting Parties agree that, except in
cases provided for by special agreement between them, they
will not permit the construction or maintenance on their
respective sides of the boundary of any remedial or protective
works or any dams or other obstructions in waters flowing
from boundary waters or in waters at a lower level than the
boundary in rivers flowing across the boundary, the effect
of which is to raise the natural level of waters on the other
side of the boundary unless the construction or maintenance
thereof is approved by the aforesaid International Joint Com-
mission.

It is further agreed that the waters herein defined
as boundary waters and waters flowing across the boundary
shall not be polluted on either side to the injury of health
or property on the other.

Article V

The High Contracting Parties agree that it is eXpedi-
ent to limit the diversion of waters from the Niagara River
so that the level of Lake Erie and the flow of the stream
shall not be appreciably affected. It is the desire of both
Parties to accomplish this object with the least possible
injury to investments which have already been made in the

140

construction of power plants on the United States' side of
the river under grants of authority from the State of New
YOrk, and on the Canadian side of the river under licenses
authorized by the Dominion of Canada and the Province of On-
tario. .

So long as this Treaty shall remain in force, no di-
version of the waters of the Niagara River above the Falls
from the natural course and stream thereof shall be permitted
except for the purposes and to the extent hereinafter pro-
'vided.

The United States may authorize and permit the diver-
sion within the State of New York of the waters of said river
above the Falls of Niagara, for power purposes, not exceeding
in the aggregate a daily diversion at the rate of twenty thou-
sand cubic feet of water per second.

The United Kingdom, by the Dominion of Canadm or the
Province of Ontario, may authorize and permit the diversion
within the Province of Ontario of the waters of said river
above the Falls of Niagara for power purposes, not exceeding
in the aggregate a daily diversion at the rate of thirty-six
thousand cubic feet of water per second.

The prohibitions of this article shall not apply to
the diversion of water for sanitary or domestic purposes, or
for the service of canals for the purposes of navigation.

Article VI

The High Contracting Parties agree that the St. Mary
and Milk Rivers and their tributaries (in the State of Montana
and the Provinces of Alberta and Saskatchewan) are to be
treated as one stream for the purposes of irrigation and power,
and the waters thereof shall be apportioned equally between
the two countries, but in making such equal apportionment
more than half may be taken from one river and less than half
from the other by either country so as to afford a more bene-
ficial use to each. It is further agreed that in the division
of such waters during the irrigation season, between the lst
of April and Slst of October inclusive, annually, the United
States is entitled to a prior appropriation of 500 cubic feet
per second of the waters of the Milk River, or so much of
such amount as constitutes three-fourths of its natural flow,
and that Canada is entitled to a prior appropriation of 500
cubic feet parsecond of the flow of St. Mary River, or so
much of such amount as constitutes three-fourthes of its
natural flow.

The channel of the Milk River in Canada may be used
at the convenience of the United States for the conveyance,
while passing through Canadian territory, of waters diverted
from the St. Mary River. The provisions of Article II of
this Treaty shall apply to any injury resulting to property
in Canada from the conveyance of such waters through the Milk
River 0.

141

The measurement and apportionment of the water to be

used by each country shall from time to time be made jointly
by the properly-constituted reclamation officers of the United
States and the properly-constituted irrigation officers of

His Majesty under the direction of the International Joint
Commission.

Article VII

The High Contracting Parties agree to establish and
maintain an International Joint Commission of the United
States and Canada composed of six commissioners, three on
the part of the United States appointed by the President
thereof, and three on the part of the United Kingdom ap-
pointed by His Majesty on the recommendation of the Governor
in Council of the Dominion of Canada.

Article VIII

This International Joint Commission shall have juris-
diction over and shall pass upon all cases involving the
use cr'obstruction or diversion of the waters with reSpect
to which under Articles III and IV of this Treaty the appro-
val of this Commission is required, and in passing upon such
cases the Commission shall be governed by the following rules
and principles which are adOpted by the High Contracting
Parties for this purpose.

The high Contracting Parties shall have, each on its
own side of the Boundary, equal and similar rights in the
use of the waters hereinbefore defined as boundary waters.

The following order of precedence shall be observed
among the various uses enumerated hereinafter for these
waters, and no use shall be permitted which tends materially
to conflict with or restrain any other use which is given
preference over it in this order of precedence:

(1) Uses for domestic and sanitary purposes;

(2) Uses for navigation, including the service of

canals for the purposes of navigation;

(3) Uses for power and for irrigation purposes.

The foregoing provisions shall not apply to or dis-
turb any existing uses of boundary waters on either side of
the boundary.

The requirement for an equal division may in the
discretion of the Commission be suspended in cases of tempo-
rary diversions along boundary waters at points where such
equal division can not be made advantageously on account of
local conditions, and where such diversion does not diminish
elsewhere the amount available for use on the other side.

The Commission in its discretion may make its appro-
val in any case conditional upon the construction of remed-
ial or protective works to compensate so far as possible
for the particular use or diversion proposed, and in such

 

142

cases may require that suitable and adequate provision, ap-
proved by the Commission, be made for the protection and in-
demnity against injury of any interests on either side of
the boundary.

In cases involving the elevation of the natural level
of waters on either side of the line as a result of the con-
struction or maintenance on the other side of remedial or
protective works or dams or other obstructions in boundary
waters or in waters flowing therefrom or in waters below the
boundary in rivers flowing across the boundary, the Commis-
sion shall require, as a condition of its approval thereof,
that suitable and adequate provision, approved by it, be made
for the protection and indemnity of all interests on the other
side of the line which may be injured thereby.

The majority of the Commissioners shall have power to
render a decision. In case the Commission is evenly divided
upon any question or matter presented to it for decision,
separate reports shall be made by the Commissioners on each
side to their own Government. The High Contracting Parties
shall thereupon endeavour to agree upon an adjustment of the
question or matter of difference, and if an agreement is
reached between them, it shall be reduced to writing in the
form of a protocol, and shall be communicated to the Commis-
sioners, who shall take such further proceedings as may be
necessary to carry out such agreement.

Article IX

The High Contracting Parties further agree that any
other questions or matters of difference arising between them
involving the rights, obligations, or interests of either in
relation to the other or to the inhabitants of the other,
along the common frontier between the United States and the
Dominion of Canada, shall be referred from time to time to
the International Joint Commission for examination and report,
whenever either the Government of the United States or the
Government of the Dominion of Canada shall request that such
questions or matters of difference be so referred.

The International Joint Commission is authorized in
each case so referred to examine into and report upon the
facts and circumstances of the particular questions and mat-
ters referred, together with such conclusions and recom-
mendations as may be appropriate, subject, however, to any
restrictions or exceptions which may be imposed with respect
thereto by the terms of the reference.

Such reports of the Commission shall not be regarded
as decisions of the questions or matters so submitted either
on the facts or the law, and shall in no way have the char-
acter of an arbitral award.

The Commission shall make a joint report to both
Governments in all cases in which all or a majority of the
Commissioners agree, and in case of disagreement the

 

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III. fill 1'1
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145

minority may make a joint report to both Governments, or
separate reports to their respective Governments.

In case the Commission is evenly divided upon any
question or matter referred to it for report, separate re-
ports shall be made by the Commissioners on each side to
their own Government.

Article X

Any questions or matters of difference arising be-
tween the High Contracting Parties involving the rights,

obligations, or interests of the united States or of the
Dominion of Canada either in relation to each other or to

their respective inhabitants, may be referred for decision
to the International Joint Commission by the consent of the
two Parties, it being understood that on the part of the
United States any such action, will be by and with the ad-
vice and consent of the Senate, and on the part of His Majes-
ty's Government with the consent of the Governor General in
Council. In each case so referred, upon the facts and cir-
cumstances of the particular questions and matters referred,
together with such conclusions and recommendations as may be
appropriate, subject, however, to any restrictions or excep-
tions which may be imposed with respect thereto by the terms
of the reference.

A majority of the said Commission shall have power
to render a decision or finding upon any of the questions or
matters so referred.

If the said Commission is equally divided or other-
wise unable to render a decision or finding as to any ques-
tions or matters so referred, it shall be the duty of the
Commissioners to make a joint report to both Governments, or
separate reports to their respective Governments, showing the
different conclusions arrived at with regard to the matters
or questions so referred, which questions or matters shall
thereupon be referred for decision by the High Contracting
Parties to an umpire chosen in accordance with the procedure
prescribed in the fourth, fifth, and sixth paragraphs of
Article XLV of The Hague Convention for the pacific settle-
ment of international disputes, dated October 18, 1907.

Such umpire shall have power to render a final decision with
respect to those matters and questions so referred on which
the Commission failed to agree.

Article XI

A duplicate original of all decisions rendered and
joint reports made by the Commission shall be transmitted to
and filed with the Secretary of State of the United States
and the Governor General of the Dominion of Canada, and to
whom shall be addressed all communications of the Commission.

144
Article XII

The International Joint Commission shall meet and
organize at Washington promptly after the members thereof
are appointed, and when organized the Commission may fix
such times and places for its meetings as may be necessary.
subject at all times to special call or direction by the two
Governments. Each Commissioner, upon the first joint meeting
of the Commission after his appointment, shall, before pro-
ceeding with the work of the Commission, make and subscribe
a solemn declaration in writing that he will faithfully and
impartially perform the duties imposed upon him under this
Treaty, and such declaration shall be entered on the records
of the proceedings of the Commission.

The United States and Canadian sections of the Com-
mission may each appoint a secretary, and these shall act as
joint secretaries of the Commission at its joint sessions,
and the Commission may employ engineers and clerical assist-
ants from time to time as it may deem advisable. The salap
Iies and personal eXpenses of the Commission and of the secre-
taries shall be paid by their respective Governments, and
all reasonable and necessary joint eXpenses of the Commis-
sion, incurred by it, shall be paid in equal moieties by
the High Contracting Parties.

The Commission shall have power to administer oaths
to witnesses, and to take evidence on oath whenever deemed
necessary in any proceeding, or inquiry, or matter within
its jurisdiction under this Treaty, and all parties inter-
ested therein shall be given convenient opportunity to be
heard, and the High Contracting Parties agree to adOpt such
legislation as may be appropriate and necessary to give the
Commission the powers above mentioned on each side of the
boundary, and to provide for the issue of subpoenas and for
compelling the attendance of witnesses in proceedings before
the Commission. The Commission may adopt such rules of pro-
cedure as shall be in accordance with justice and equity, and
may make such examination in person and through agents or
employees as may be deemed advisable.

Article XIII

In all cases where special agreements between the
High Contracting Parties hereto are referred to in the fore-
going articles, such agreements are understood and intended
to include not only direct agreements between the High Con-
tracting Parties, but also any mutual arrangement between
the United States and the Dominion of Canada expressed by
concurrent or reciprocal legislation on the part of Congress
and the Parliament of the Dominion.

Article XIV

The present Treaty shall be ratified by His

 

 

145

Britannic Majesty and by the President of the United States
of America, by and with the advice and consent of the Senate
thereof. The ratifications shall be exchanged at Washington
as soon as possible, and the Treaty shall take effect on the
date of the exchange of its ratifications. It shall remain
in force for five years, dating from the day of exchange of
ratifications, and thereafter until terminated by twelve
months' written notice given by either High Contracting
Party to the other.

In faith whereof the respective plenipotentiaries
have signed this Treaty in duplicate and have hereunto
affixed their seals.

Done at Washington the llth day of January, in the

year of our Lord one thousand nine hundred and nine.

James Bryce.
Elihu Root

 

‘hm . “-0.

PROTOCOL OF EXCHANGE*

 

On proceeding to the exchange of the ratifications
of the treaty signed at Washington on January 11, 1909,
between Great Britain and the United States, relating to
boundary waters and questions arising along the boundary
between the United States and the Dominion of Canada, the
undersigned plenipotentiaries, duly authorized thereto by
their respective Governments, hereby declare that nothing
in this treaty shall be construed as affecting, or changing,
any existing territorial, or riparian rights in the water,
or rights of the owners of lands under water, on either side
of the international boundary at the rapids of the St. Mary's
River at Sault Ste. Marie, in the use of the waters flowing
over such lands, subject to the requirements of navigation
in boundary waters and of navigation canals, and without
prejudice to the existing right of the United fates and
Canada, each to use the waters of the St. Mary’s River,
within its own territory; and further, that nothing in this
treaty shall be construed to interfere with the drainage
of wet, swamp, and overflowed lands into streams flowing
into boundary waters, and also that this declaration shall
be deemed to have equal force and effect as the treaty it-
self and to form an integral part thereof.

The exchange of ratifications then took place in the

usual form.
In witness whereof, they have signed the present

Protocol of Exchange and have affixed their seals thereto.
Done at Washington this 5th day of May, one thousand
nine hundred and ten.
James Bryce
Philander C. Knox.
*The British Ratification of this further Instrument was
deposited with the United States Government on July 25, 1910.

 

 

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