Arrow River & Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd., [1932] SCR 495

Supreme Court of Canada

Arrow River & Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd., [1932] S.C.R. 495

Date: 1932-03-15

In the Matter of an Application by Arrow River & Tributaries Slide & Boom Company, Limited, Pursuant to Section 53 of The Lakes and Rivers Improvement Act, Chapter 43 of Revised Statutes of Ontario, 1927, to Approve of Tolls Proposed to be Charged by Said Company upon all Timber Passing Over Certain Improvements Alleged to Have Been Made by it on Pigeon River, for the Purpose of Improving the Navigability of Said River for River Driving Purposes.

Arrow River & Tributaries Slide & Boom Company, Ltd. (Plaintiff) Appellant;

and

Pigeon Timber Company, Limited (Defendant) Respondent.

1931: November 25; 1932: March 15.

Present: Anglin C.J.C. and Rinfret, Lamont, Smith and Cannon JJ.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.

Waters and watercourses—Timber—Lakes and Rivers Improvement Act, R.S.O., 1927, c. 43, ss. 32, 52—Authorization for construction of works in river and charging tolls on timber passing through—Application of Act to international boundary streams—Application to Pigeon River—Validity of legislation—Construction, application and effect of provision in clause 2 of Ashburton Treaty.

Secs. 32 and 52 of the Lakes and Rivers Improvement Act, R.S.O., 1927, c. 43, providing for incorporation of companies for “acquiring or constructing and maintaining and operating works upon any lake or river in Ontario,” and for charging tolls upon timber passing through such works, apply with respect to the Ontario side or part of boundary streams between Ontario and the United States, including the Pigeon River. Appellant company, incorporated under the Ontario Companies Act, R.S.O., 1914, c. 178, for the purpose (inter alia) of constructing works on that part of said river which is within Ontario, was held entitled to charge tolls, under the provisions of the Lakes and Rivers Improvement Act, upon all timber passing through such works. The Ontario legislation aforesaid, authorizing such powers, is intra vires.

Judgment of the Appellate Division, Ont., 66 Ont. L.R. 577, reversed.

Per Anglin C.J.C., Rinfret and Smith JJ.: The legislation, so construed as applicable to said river, is not in conflict with the provision in Article 2 of the Ashburton Treaty (between Great Britain and the United States, August 9, 1842), that “all the water-communications, and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage from the shore of Lake Superior

[Page 496]

to the Pigeon River, as now actually used, shall be free and open to the use of the subjects and citizens of both countries.”

Per Anglin C.J.C: By that provision in the Treaty it was intended merely to ensure to the citizens of both countries equality of rights in regard to the water communications, portages, etc., and not to prevent either party from imposing tolls on its citizens for the use of improvements lawfully to be made, or from imposing like tolls (but none greater) on citizens of the other country for the use of such improvements.

Per Rinfret and Smith JJ.: That provision in the Treaty does not apply to the non‑navigable part of Pigeon River in which the works in question are situated, as that part of the river was not, at the time of the Treaty, “actually used” for water communication, Grand Portage being used to carry traffic round the high falls and rapids in that part of the river. The words “as now actually used” applied, not only to Grand Portage, but also to “all the water‑communications,” etc.

Per Lamont and Cannon JJ.: The words “as now actually used,” in the provision in the Treaty, referred only to Grand Portage and not to all water communications and usual portages. Pigeon River from its mouth along both sides of the boundary line forms part of the “water-communications” which were to be “free and open.” The words “free and open” are not consistent with the imposition of tolls for the use of improvements erected in the river; they mean that the citizens of both countries are to be at liberty, as a matter of right, to travel these waters on both sides of the fixed boundary line without let or hindrance from anyone or having to pay anything for so doing. Therefore, s. 52 of the Lakes and Rivers Improvement Act, in so far as it authorizes the imposition of tolls for the use of improvements erected in the Pigeon River, is at variance with the provisions of the Treaty. But this does not make it invalid as a legislative enactment. The existence of the Treaty of itself does not impose a limitation upon the provincial legislative power. The provision in the Treaty, in the absence of any legislation, Imperial or Canadian, implementing or sanctioning it, has only the force of a contract between Great Britain and the United States, which is ineffectual to impose any limitation upon the legislative power exclusively bestowed by the Imperial Parliament upon the legislature of a province; and, in the absence of affirming legislation, the provision in the Treaty cannot be enforced by our courts.

APPEAL from the judgment of the Appellate Division of the Supreme Court of Ontario[1] allowing the present respondent’s appeal from the judgment of Wright J.[2], dismissing its application for an order prohibiting His Honour Judge McKay, Junior Judge of the District of Thunder Bay, from approving any schedule of tolls proposed to be charged by the present appellant for alleged improvements made by it on the Pigeon River, and from hearing any further evidence on the application for approval of the proposed tolls.

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The said application by respondent before wright J. was made on the following grounds:

1. That the said Judge has no jurisdiction to approve of tolls proposed to be charged by said Company for the use of alleged improvements made on said River by it for river driving purposes, such river being an international stream, and under the terms of the treaty between Great Britain and the United States, commonly known as the Ashburton Treaty, being free and open to the use of the subjects and citizens of both Canada and the United States.

2. That Part V of the Lakes and Rivers Improvement Act in so far as it purports to authorize the said Company to charge and collect tolls for the use of any improvements for river driving made or to be made in the said Pigeon River is ultra vires the Ontario Legislature and null and void.

3. That the said Company has no legislative authority to exact tolls or other charges for the use of any improvements for river driving made or to be made by it in said Pigeon River.

The Appellate Division[3] directed that an order go prohibiting the Junior Judge of the District of Thunder Bay from approving any schedule of tolls proposed to be charged by the present appellant for alleged improvements made by it on the Pigeon River.

The present appellant was granted, by the Appellate Division, special leave to appeal to the Supreme Court of Canada.

The material facts of the case and the questions raised are sufficiently stated in the judgments now reported. The appeal to this Court was allowed, and the order of Wright J. restored.

Sir William Hearst K.C. and W.I. Hearst for the appellant.

H.F. Parkinson K.C. for the respondent.

E. Bayly K.C. for the Attorney-General for Ontario.

ANGLIN C.J.C.—I agree in the allowance of this appeal largely for the reasons stated by my brothers Rinfret and Smith. I should, however, have preferred it had the majority of the court seen its way clear to base its decision upon a holding that, upon the true construction of the clause of the Ashburton Treaty—

It being understood that all the water-communications, and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the subjects and citizens of both countries,

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it was merely meant to ensure to the citizens of both countries equality of rights in regard to the water communications, portages, etc., and that it never was intended thereby to provide that in no event should either party to the Treaty be at liberty, as regards citizens of its own nationality, to impose tolls for the use of improvements lawfully to be made thereon. In other words, where either party to the Treaty saw fit to impose tolls upon its own citizens, in regard to such improvements, it should be at liberty to impose like tolls (but none greater) on citizens of the other country for the use of the improvements so made. Otherwise, it would follow that neither country could impose any tolls whatsoever upon its own citizens, because that would interfere with the water communications, portages, etc., being “free and open” to the use of the subjects and citizens of both countries.

The judgment of Rinfret and Smith JJ. was delivered by

SMITH J.—The appellant is a company incorporated by letters patent dated 26th September, 1922, under the Ontario Companies Act, chapter 178, R.S.O., 1914, now chapter 218, R.S.O., 1927, for the purposes and objects following:

Subject to the provisions of The Timber Slide Companies Act, to acquire or construct and maintain any dam, slide, pier, boom or other work necessary to facilitate the transmission of timber down the Arrow River and its tributaries and that part of the Pigeon River which is within the Province of Ontario and to blast rocks or dredge or remove shoals or other impediments or otherwise improve the navigation of the said Arrow River and its tributaries and the said Pigeon River within the Province of Ontario.

A company with the same shareholders and directors and with similar objects had been incorporated in 1899, the existence of which was limited to 21 years, and at the expiration of this period the works constructed by it in the Arrow and Pigeon rivers became the property of His Majesty pursuant to the provisions of the Timber Slide Companies Act, R.S.O., 1914, ch. 181.

Upon the incorporation of the appellant company, the Crown conveyed to it for $100 all the works that had been constructed by the former company and, thereupon, the appellant company proceeded, as authorized by the letters patent, to improve and extend these works for the purpose of improving the floatability of the Arrow River and part of the Pigeon River in Ontario.

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The appellant made the application in question to the District Judge for approval of tolls to be charged for the use of these works, and the respondent applied for an injunction order, restraining the District Judge from acting on appellant’s application, on the ground that, the Pigeon River being an international stream, its use, under the Ashburton Treaty, is free and open to the use of the citizens of both Canada and the United States, and that Part V of the Lakes and Rivers Improvement Act, in so far as it purports to authorize the appellant company to charge tolls for use of improvements on that river, is ultra vires of the Ontario Legislature.

This injunction was refused by Wright J., on the ground that, in British countries, treaties to which Great Britain is a party are not as such binding on the individual subject in the absence of legislation.

The Appellate Division agrees with this and, apparently, would have upheld the decision of Wright J., had there been, in their Lordships’ view, legislation in Ontario that authorized the construction of the works in question.

The appellant claims that these works were authorized by section 32 of the Lakes and Rivers Improvement Act, which reads as follows:

A company may be incorporated under The Companies Act for the purpose of acquiring or constructing and maintaining and operating works upon any lake or river in Ontario, and every such company shall thereupon become subject to all the provisions of this Part.

The Appellate Division holds that this section applies only to lakes and rivers that are wholly within the province of Ontario, and the Pigeon River, being a boundary stream, is only partly in Ontario and the section, therefore, did not authorize the acquisition, construction, maintenance and operation of these works in that river.

The reason given for thus construing section 32, put shortly, is that the court ought not to impute to the legislature an intent, by this section, to authorize a violation of the terms of the treaty, if the section is capable of a construction not having that effect.

This reasoning is, of course, based on the assumption (unwarranted, as I think) that the construction of these works under legislative authority would be a violation of the treaty.

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It seems to me, however, that, looking at the statute as a whole, section 32 has not the restricted application assigned to it by the Appellate Division. So interpreted, the section would also have no application to boundary streams between provinces, such as the Ottawa River, and all works in that and other boundary rivers and streams, unless otherwise authorized, would, in consequence, be without legal sanction.

Moreover, section 14 of the Act has special provisions in relation to works in international streams, and the works there referred to are, I think, unquestionably works authorized by the Act itself, that is by section 32.

I am, therefore, of opinion that section 32 has application to the Pigeon River and, as already intimated, am further of opinion that it is not in conflict with the terms of the treaty.

The precise provision of the treaty, with which it is argued that section 32, applied to the Pigeon River, is in conflict, is as follows:

It being understood that all the water-communications, and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the subjects and citizens of both countries.

The part of the Pigeon River, in which the works in question are situated, is not stated in the affidavit, filed by respondent, to have been in actual use at the time of the treaty for water communication and the map filed as an exhibit to the affidavit indicates, as the terms of the treaty also indicate, that what was in actual use at that time was the Grand Portage which carried traffic round and past the obstruction of the high falls and rapids that rendered the part of the Pigeon River in question non‑navigable for traffic then carried on.

It appears that some of these falls are 120 feet in height, and that the total drop in this part of the river is 620 feet. All the waters of these streams that were navigable were in use for transportation at the time of the treaty, and at the parts of the river not navigable the portages were used. In my opinion, the right preserved by the passage of the treaty quoted was the right to continue to use the water communication and portages then in use. I am unable to agree with the view expressed by the Circuit Court of

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Appeals, Eighth Circuit, in Clark v. Pigeon River Improvement Slide & Boom Co.[4], namely, that the words “as now actually used” apply only to Grand Portage. This decision would imply that the right given to use the other portages is unlimited.

There could, so far as I can see, have been no reason for preserving a right to use Grand Portage that would not apply to other portages, and the language as used appears to apply to all, and to the water communications, and I think should be so construed. What was being dealt with, and what was in the contemplation of the parties, was travel and transportation over the water communications and portages as then used, and there was, in my opinion, no thought or intention of dealing with the use of these non‑navigable rapids and falls that were not in use and could not be used, the passing of which was provided for by the portages. Both navigable and non-navigable waters are covered by the subsequent treaty in relation to boundary waters.

Article 1 of that treaty provides that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants of both countries.

Other articles make provision for an International Joint Commission, and give to that Commission control over uses, obstructions or diversions of all boundary waters on either side of the line not theretofore or thereafter provided for by agreement between the parties.

In my opinion, the passage of the Ashburton Treaty quoted above does not apply to the non‑navigable part of Pigeon River in which the works in question are situated.

The International Boundary Waters Treaty, however, does apply, but section 14 of the Lakes and Rivers Improvement Act already referred to makes provision that everything to be done under the Act must conform to any orders or recommendation which the International Joint Commission may make under the International Boundary Waters Treaty, so that there is no conflict with that treaty.

It may be noted that part of the works in question is the dam extending all the way across the river. The part in

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the United States apparently was authorized by the State of Minnesota, which also authorized collection of tolls.

So far as the rights of the Dominion in connection with navigation are concerned, the provincial jurisdiction to improve the flotability of the non-navigable part of an international stream within the province, except as modified by treaty, does not seem to be different from the jurisdiction to make such improvements in a non-navigable stream wholly within the province.

It is argued, on behalf of the respondent, that the works in question are of no advantage to them in the floating of their cordwood ties and pulpwood; but this is a matter to be submitted to the District Judge in connection with the fixing of tolls.

The appeal should be allowed, and the order of Wright J. restored, with costs here and in the Appellate Division.

The judgment of Lamont and Cannon JJ. was delivered by

LAMONT J.—The Arrow River and Tributaries Slide & Boom Co., Limited, was, on September 7, 1922, incorporated under the Ontario Companies Act pursuant to what is now section 32 of the Lakes and Rivers Improvement Act, being R.S.O., 1927, ch. 43, for the following purposes and objects as stated in its letters patent, namely:—

Subject to the provisions of The Timber Slide Companies Act, to acquire or construct and maintain any dam, slide, pier, boom or other work necessary to facilitate the transmission of timber down the Arrow River and its tributaries and that part of the Pigeon River which is within the Province of Ontario.

Section 1 (g) of the Lakes and Rivers Improvement Act defines “timber” as including saw logs, posts, ties, cordwood and pulpwood.

Section 32 of the Act reads:—

32. A company may be incorporated under The Companies Act for the purpose of acquiring or constructing and maintaining and operating works upon any lake or river in Ontario, and every such company shall thereupon become subject to all the provisions of this Part.

“Works” includes a dam, slide, pier, boom or other work constructed in a lake or river to facilitate the floating of timber down such lake or river.

By section 51 the owner or occupier of the works is designated “operator.”

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Section 52 reads:—

The operator may demand and receive the lawful tolls upon all timber passing through or over such works, and shall have free access to such timber for the purpose of measuring or counting it.

Before tolls can be collected the amounts thereof must be approved by a judge of the County or District Court after notice published in a newspaper once a week for four successive weeks stating the proposed tolls and the day and the hour on which an application is to be made to the judge for his approval thereof (s. 53).

The appellants acquired certain works already erected on the Pigeon River and constructed others, and, on March 28, 1930, made an application to His Honour Judge McKay, the junior judge of the District of Thunder Bay, to approve of the tolls of which due notice had been given. His Honour took some evidence and adjourned the application. The respondents then made an application to Mr. Justice Wright in chambers for an order prohibiting His Honour Judge McKay from approving of any schedule of tolls proposed to be charged by the appellants for the alleged improvements made by them on Pigeon River. The grounds upon which prohibition was sought were stated as follows:

1. That the said Judge has no jurisdiction to approve of tolls proposed to be charged by said Company for the use of alleged improvements made on said river by it for river driving purposes, such river being an international stream, and under the terms of the treaty between Great Britain and the United States, commonly known as the Ashburton Treaty, being free and open to the use of the subjects and citizens of both Canada and the United States.

2. That Part V of the Lakes and Rivers Improvement Act in so far as it purports to authorize the said Company to charge and collect tolls for the use of any improvements for river driving made or to be made in the said Pigeon River is ultra vires the Ontario Legislature and null and void.

The learned chambers judge dismissed the application. On appeal, the Second Divisional Court set aside the order of the chambers judge and made an order granting the application for prohibition. It is from this latter order that this appeal is brought.

The first question requiring consideration is: Does the imposition of tolls by the appellants, under section 52 above quoted, for the use of improvements made by them on Pigeon River, conflict with the provisions of the treaty made between His Majesty and the United States of

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America signed at Washington, August 9, 1842, and commonly known as the Ashburton‑Webster Treaty.

The treaty had for its object, inter alia, the settling and defining of the undetermined boundary line between Canada and the United States.

The material part of article 2, as applicable to the case before us, is as follows:—

It is moreover agreed, that * * * the line shall run * * * to the mouth of Pigeon River, and up the said river to and through the north and south Fowl Lakes, to the lakes of the height of land between Lake Superior and the Lake of the Woods; * * * It being understood that all the water‑communications, and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the subjects and citizens of both countries.

The Pigeon River thus forms part of the boundary line between Canada and the United States as well as between the Province of Ontario and the State of Minnesota. The appellants have acquired or constructed a dam across that part of the river extending from the Canadian shore to the international boundary line, and have established slides to facilitate the passage of timber down the river. The shareholders of the appellant company, according to the affidavit of A.L. Johnston, have become incorporated in the State of Minnesota under the name of “The Pigeon River Improvement Slide and Boom Company,” which company claims to own the improvements made on the American side of the river and is claiming the right to charge tolls for the use of its improvements there. No person, therefore, can use the river to float down timber without using the improvements on one side or the other. The respondents own pulpwood and cutting rights both in the State of Minnesota and the Province of Ontario on the upper reaches of the Pigeon River. Their wood from both sides must of necessity be floated down the river in order to reach its market. They contend that the improvements made in the river, while possibly useful in floating down saw logs or large timbers, are of no value whatever to them, as their cordwood, pulpwood and ties could, just as satisfactorily, be floated down the river in its natural state. This, however, is disputed by the appellants in their factum, but there is nothing in the material before us by which the question can be determined, if its determination be

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material. Neither is there anything in the record, as the chambers judge points out, shewing whether or not the river is a navigable stream at the point where the appellants made their improvements, although the argument proceeded on the assumption that it was not navigable for boats and even canoes.

The contentions advanced by the appellant are:—

1. That Pigeon River from its mouth to Fort Charlotte is not a water communication within the meaning of the last clause of article 2, nor was it at the time of the making of the treaty “actually used” as such.

2. That the words “free and open” in the clause do not mean free from tolls or charges for the use of improvements to navigation, lawfully constructed, but mean “available,” “accessible,” “thrown open to the use and enjoyment of the citizens of both countries on equal terms,” or, in other words: “without discrimination.”

1. For the purposes of this judgment I shall assume the facts to be as the appellants state in their factum: that, between its mouth and Fort Charlotte, Pigeon River is, for the greater part of the way, a rapid and turbulent stream interrupted by numerous falls and rapids and that, to avoid these, traders and voyageurs, at the date of the treaty, were accustomed to sail up Lake Superior five miles west of the mouth of Pigeon River, debark at Grand Portage and transport their goods and belongings a distance of nine miles to Fort Charlotte on the Pigeon River above the last of the falls. Here they reloaded their boats and canoes and proceeded westward, while those coming from the west also went overland from Fort Charlotte to Grand Portage.

I shall also assume as true the statements in the historical works to which we were referred, that, although the communication westward to the Lake of the Woods was by water, it was necessary from time to time to make a portage to avoid the rapids existing in the river and that, notwithstanding these difficulties, a very considerable trade was carried on between the east and the west.

In Baker’s Historical Collections there is the following entry:—

Henry records that he met 40 canoes on the Pigeon River loaded with furs from Athabasca Lake and bound for Grand Portage.

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In view of these facts, what is the meaning to be given to “water-communications” in the last clause of article 2? These are to be kept “free and open” for the use of the subjects of both countries, as are also the usual portages “along the line,” as well as Grand Portage, which is not along the line but is wholly in United States territory.

In construing the treaty we have to determine the intentions of the framers thereof as expressed in the words used. Did they intend that the whole river should come within the term “water-communications,” or only those parts of it between portages over which boats could pass at the date of the treaty? In order to understand these words it is material to inquire what was the subject matter with respect to which they were used, and the object the framers of the treaty had in view? The subject matter to which they were applied was the waters of the Pigeon River, and other rivers, streams and lakes up which the boundary line from Lake Superior to the Lake, of the Woods was being run. The object of the provision was to secure to the subjects of both countries the free and untrammelled right to use these water stretches irrespective of whether they were on one side of the boundary line or the other.

Although at the date of the treaty the chief purpose for which these water communications were being used was the transportation by boat or canoe of persons and goods, the clause in question places no limit on the purposes for which they might be used. They are to be “free and open” to the people of both countries for whatever purpose they may desire to use them as a water communication. If, therefore, they could be used for any purpose which did not necessitate the making of a portage to get past a point of danger, I see nothing in the clause, or in any other part of the treaty, which would compel the use of the portage in order to have a free passage. To hold that water communications should be limited to those portions of the river navigable by boats at the time the treaty was signed, would, in my opinion, be to give too narrow a construction to the language used, and to impute a want of vision to the framers of the treaty.

Furthermore, such a construction would lead to the result that certain portions of the river around which portages had to be made at the date of the treaty owing to low water,

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would not constitute a water communication at another season when boats could pass over them with ease and safety.

In Kewatin Power Company v. Town of Kenora[5], my Lord the Chief Justice (then Anglin J.) held that, where a river is navigable in its general character, natural interruptions to navigation at some parts of it which can be readily overcome do not prevent it from being deemed a navigable river at such parts.

In Economy Light & Power Co. v. United States[6], the Supreme Court of the United States, in referring to the question of the navigability of a river, said:—

Navigability, in the sense of the law, is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages; nor need the navigation be open at all seasons of the year, or at all stages of the water.

If a river may properly be called navigable notwithstanding that it is necessary to make use of portages at certain points, it would seem equally appropriate to designate it as a “water‑communication.”

It was contended by the appellant that the term “water-communications” referred to in the last paragraph of article 2, was limited by the words “as now actually used” in the last line but one thereof. This same argument was presented to the Circuit Court of Appeals of Minnesota in the case of Clark v. Pigeon River Improvement Slide & Boom Co.[7], where, at page 556, the court dealt with it as follows:—

As a matter of grammatical construction, an argument might be made that the term “as now actually used” applies to all the water connections and usual portages and not merely to Grand Portage, but it appears from the record that Grand Portage alone of all the portages is not “along the line,” and we think therefore the words, “as now actually used,” refer only to Grand Portage. Any other theory would give the treaty a narrow and apparently distorted construction.

In addition there was another and a practical reason why a route which was to be “free and open” between Grand Portage and Fort Charlotte should be limited to that actually in use at the time of the treaty, which did not apply to the portages along the river. These portages were taken to get around some parts of the river over which it was impossible or dangerous to take boats. Practical

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traders had, long before the treaty, found the most advantageous portage around these obstacles and such would always be taken owing to its practical advantage; while between Grand Portage and Fort Charlotte there was a land trip of nine miles over which possibly several routes, one as good as another, might have been established. Unless, therefore, the United States were to have more than one route across Minnesota territory kept free and open for traffic, it was desirable that the route agreed upon should be specifically defined. This was done by limiting such route to the one then “actually used.” I am, therefore, of opinion that Pigeon River from its mouth along both sides of the boundary line, forms part of the “water-communications” which were to be free and open.

2. I cannot agree with the appellants’ contention that the words “free and open” in the last clause of article 2 are consistent with the imposition of tolls for the use of improvements erected in the river. In my opinion, the meaning of these words in the clause is that the citizens of both countries are to be at liberty, as a matter of right, to travel these waters on both sides of the fixed boundary line without let or hindrance from anyone, or having to pay anything for so doing. This seems to me to be the natural and ordinary meaning of the words and the meaning which, at the time of the treaty, the subjects of both countries would place upon them. That this is the meaning the words were intended to bear seems to me to be indicated also by article 7 of the treaty, which reads:

VII. It is further agreed,, that the channels in the River St. Lawrence on both sides of the Long Sault Islands and of Barnhart Island, the channels in the River Detroit, on both sides of the Island Bois Blanc, and between that island and both the Canadian and American shores, and all the several channels and passages between the various islands lying near the junction of the River St. Clair with the lake of that name, shall be equally free and open to the ships, vessels, and boats of both parties.

If we give effect to the appellants’ interpretation of the words “free and open” it would entitle either of the contracting parties who improved the navigation of any of the channels on its own side of these waters to levy a toll on every vessel making use of such channel. I cannot believe such to have been the intention of the parties. As Riddell, J.A., pointed out in his judgment below, the appellants here by building upon the bed of the river have interfered

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with the enjoyment of the free and open use of it by the citizens of the United States. This, as I read it, is contrary to the treaty. The result, therefore is, that in my opinion, section 52 of the Lakes and Rivers Improvement Act, in so far as it authorizes the imposition of tolls for the use of improvements erected in the Pigeon River, is at variance with the provisions of the treaty.

The next question is: Does the fact that section 52 is repugnant to the provisions of the treaty make the section invalid as a legislative enactment?

The Second Divisional Court thought that because a former Sovereign had been a party to the treaty and His Majesty was in honour bound to uphold it, and, as the Act in question was passed in His Majesty’s name, it should not be given a construction inconsistent with the terms of the treaty if it could fairly be otherwise interpreted. The Court referred to section 32 of the Act for the purpose of shewing that the company was incorporated only for the “acquiring or constructing and maintaining and operating works upon any lake or river in Ontario,” and held that as Pigeon River was only partly in Ontario the Act was not intended to apply to that river.

That Pigeon River is only in part in the Province of Ontario does not, in my opinion, render the Act inapplicable to that part, for provincial legislative enactments, unless restricted as to the area to which they shall apply, effectively operate throughout the whole province.

Had the Legislature intended to exclude international boundary rivers from the operation of the Act, I think it would have said so in express terms and not have left the matter to inference, particularly when the inference can only be drawn by giving an unusual construction to the language used. The view that the Act was intended to apply to international boundary waters in so far as they were in Ontario is, I think, supported by the reference to such waters in section 14. The Act being applicable to boundary waters, was it, in other respects within the competence of the Legislature to enact?

It has long been well settled by the Privy Council that within the provincial area and the ambit of the classes of subjects enumerated in section 92 of the British North America Act, 1867, the legislative competence of a pro-

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vincial legislature is as plenary and as ample as the Imperial Parliament in the plentitude of its power possessed, and could bestow. That the subject matter of the Act in question falls within the enumerated heads of section 92 is not disputed nor indeed could it well be. Caldwell v. McLaren[8]. The Act must, therefore, be held to be valid unless the existence of the treaty of itself imposes a limitation upon the provincial legislative power. In my opinion, the treaty alone cannot be considered as having that effect. The treaty in itself is not equivalent to an Imperial Act and, without the sanction of Parliament, the Crown cannot alter the existing law by entering into a contract with a foreign power. For a breach of a treaty a nation is responsible only to the other contracting nation and its own sense of right and justice. Where, as here, a treaty provides that certain rights or privileges are to be enjoyed by the subjects of both contracting parties, these rights and privileges are, under our law, enforceable by the courts only where the treaty has been implemented or sanctioned by legislation rendering it binding upon the subject. Upon this point I agree with the view expressed by both courts below:

that, in British countries, treaties to which Great Britain is a party are not as such binding upon the individual subjects, but are only contracts binding in honour upon the contracting States.

In this respect our law would seem to differ from that prevailing in the United States where, by an express provision of the constitution, treaties duly made are “the supreme law of the land” equally with Acts of Congress duly passed. They are thus cognizable in both the federal and state courts. In the case before us it is not suggested that any legislation, Imperial or Canadian, was ever passed implementing or sanctioning the provision of the treaty that the water communications above referred to should be free and open to the subjects of both countries. That provision, therefore, has only the force of a contract between Great Britain and the United States which is ineffectual to impose any limitation upon the legislative power exclusively bestowed by the Imperial Parliament upon the legislature of a province. In the absence of affirming legislation this provision of the treaty cannot be enforced by any of our

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courts whose authority is derived from municipal law. Walker v. Baird[9]; In re The Carter Medicine Co’s Trade Mark[10]; United States v. Schooner “Peggy”[11]; The Chinese Exclusion Case[12]; Oppenheim’s International Law, 4th ed., 733-4.

I am, therefore, of opinion that section 52, in question in this appeal, must be considered to be a valid enactment until the treaty is implemented by Imperial or Dominion legislation.

The appeal should be allowed with costs and the order of Wright J. restored.

Appeal allowed with costs.

Solicitor for the appellant: W.F. Langworthy.

Solicitors for the respondent: McComber & McComber.