Ontario. Legislative Assembly.

Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 64 of 86)
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iothenif "The surrender of the Bay anV Stteighte aforesiM has been madeaoooHfing tothetenour of the
thtt^f, ritfleatein sAch m&nnAr thiit the 0<BDiMnr ad^tdeaoe thef^in, and have n^ine to objaot dir desire
further on that head.** (H. B. Qa*s M«noSrorX71$, Book Arb. Do<5s., ^^^



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368 ARGUMENT OF ME. MONK BEFOKE THE ARBITRATORS, 1878 :



Bladen maintaining his position as far as these limits are concerned. The limits, as con-
tained in these instructions, are a line 'Mrawn from the south-western point of the Island
of Grimington, or Cape Perdrix (so as to include the same within the limits of the Bay),
to the Great Lake Miscosinke, alias Mistoveny, diyiding the said lake into parts (as in
the map to be delivered to you) ; and that where the said line shall cut the 49th d^pree
of northern latitude, another line shall begin and be extended westward froD& the said
lake, upon the 49th degree of northern latitude, over which said line, so to be described
as above mentioned, the French, and all persons by them employed, shall be prohibited
to pass to the northward of the said 49th degree of latitude." There can be no doubt
whatever that at that time the 49th parallel seemed settled upon as corresponding about
with the height of land. Further on in the instructions of the commissary are these
words : " But you are to take especial care in wording such articles as shall be agreed on
wii^ the commissary of His Most Christian Majesty upon this head, that the said boun-
daries be understood to regard the trade of the Hudson's Bay Company only," clearly
recognizing in these instructions to their commissary that the charter of the Hudson's
Bay Company, such as it had been granted to them, according to their interpretation and
recognition of the charter, extended down to the 49th degree of latitude.

Chief-Justice Harrison — For the purposes of trade only.

Mr, Monk — I would respectfully submit that their charter for the purposes of tarade
did not extend farther than their territorial right went. In 1719 a memoir on the sub-
ject of the limits of the Hudson's Bay was sent to the English commissioners through
Lord Stair to the Marquis D'Estr^s, one of the French commissaries. It states: — *'The
commissaries named by His Britannic Majesty demand that the said limits may be
defined hi the following manner, viz. : That the limits shall commence from the north
eape of Davis Bay, in latitude 56 degrees 30 minutes, which shall serve as limits between
the English and the French on the coast of Labrador." It then describes the coast of
Labrador and the 49th parallel as being the limits on which the English commissaries
would insist ; and proceeds to state that these limits were to be insisted on solely as
regards the trade, and that His Britannic Majesty did not thereby accede to the right of
the French to any lands in America in the said boundaries. I submit that this was an
act on the part of His Majesty's Government clearly showing that in 1719 the interpre-
tation of the Hudson's Bay Charter, and the limits as understood then, were the 49tli
parallel, or what was corresponding to it, the height of land, as understood at that time.
I will not detain the Commissioners anv longer on this portion of the case.

If there is any difficulty as to whether this northward line should be drawn due
north from the confluence of the Ohio and the Mississippi, or should follow the course of
the Mississippi, I would refer the Commissioners most particularly to the judgment, a
very exhaustive one, which was rendered by Chief Justice Sewell and his colleagues upoli
the motion on arrest of judgment in the De Beinhardt case which I have above referred
to. It iB not reported in full in the Ontario Documents, and is very imperfect as an
extract The point was a most important one, the life of a fellow-being depended on it,
and the gentlemen on the bench to whom was entrusted the decision were men of the
highest reputation and standing in the legal world.

Chi^ Justice Harrison — Notwithstanding the adjudication, the point supposed to be
adjudicated upon seems to have been considered so doubtful that the sentence was never
acted upon.

Mr. Monk — But the reason I lay some stress upon this is that my learned friend
seemed to think that this, question at the trial had simply come up incidentally. The
fact is that it was argued at great length on the motion for arrest of judgment, and a
decision come to after mature consideration of all the documents and treaties, and lifter
as much historical research as was possible Chief Ju^jbice Sewell says : " We have been
compelled to give a decision upon the question, not from any wish on oar part^ but
because it has been brought before us and we had no way of evading it." '^ It is impos-
sible for us to do otherwise ; it is a fixed and certain boundary (speaking of the due north
line from the confluence of the Ohio and Mississippi), and according to the statute we
have to the best of our knowledge decided it. In the decision we have made we are
supported by the authority of Lord Hardwicke in the disputes between Penn and Balti-



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THE ATTORNEY-GENERAL OF ONTARIO BEFORE THE ARBITRATORS IN REPLY. 86&



more ** — ^where a similar difficulty arose. I have the case at length, but there is no use
in detaining the Commissioners any longer upon it, if I may be allowed to leave this
book with them. The discussion about this northward line is very amply shown in these
notes whidh I hold ; much more so than in the Ontario Documents. I do not know from
what report that extract was taken. The book I have contains every point brought up
and adjudicated upon, and every argument used in feivour of the pretension which my
friends are urging, that the Mississippi should be the boundary line.

The Attornby-Genebal op Ontario in Reply.

The AUomey-Genercd in reply said : — Most of the arguments of my learned friends
which are not covered by the observations that 1 addressed to the Arbitrators in my
opening, have been already considered and answered in Mr. Mills' report, and the docu-
ments of which the Arbitrators have been put in possession ; and, to avoid prolonging
the present discussion, I shaU confine my reply to the estoppel which my learned friend
Mr. MacMahon finds in the settlement made by the Dominion with the Hudson's Bay
Company^ and in the Imperial Act under which the settlement was effected. My learned
fnend has pointed out that an individual who with full knowledge acquiesces by his
silence in what is done by others to his prejudice, cannot afterwards hold the thing so
done to have been as against him illegal or void. I do not desire to hold the transaction
between the Company and the Dominion to have been illegal or void. It was the
pressure from the people of Upper Canada that brought it about; but when all the
Company's claims became vested in the Dominion, both those claims that there is a
question about and those that there is no question about were expected to enure,
and I submit did clearly enure, for the benefit of whatever portions of the Dominion
were really entitled thereto as against the Company. The Dominion was acting
in the settlement as trustee for all the Provinces which constituted the Dominion*
The new territory not within any of the Provinces is in the common interest to
be divided into provinces as it becomes settled. Ontario did not suppose that any
statute obtained from the Imperial Parliament, or anything done by the representa-
tives of the Dominion, was to estop her from claiming what belonged to her as a Prov-
ince. But there is no proof that Ontario as a Province even knew anything about the
matters which are said to estop her, before these matters were finally concluded. In
fact, they all took place without any reference to the Local Government. The Dominion
Government was imderstood to be acting for all in good faith, and without prejudice to
the rights of the Provinces among themselves ; and the Province of Ontario had a right
to assume that the Dominion, after settling with the Company, would take the same view
of the boundary question which the Dominion had always previously taken, namely, that
Canada, and therefore Ontario, extends to the Eocky Mountains on the west and far
north cd the height of land, no intimation to the contrary having been given to the Pro-
vincial Government until long after the acquisition of the Company's claims. The Com-
pany had some^ territory in regard to which there was no dispute ; it really did belong to
the Hudson's Bay Company ; it was thought important that Canada should acquire this
territory ; and it was desired also to get a clear and undisputed title to both that which
the Hudson's Bay Company certainly had, and the further territory in regard to which
there was the dispute. The settlement with the Company was not on the assumption
Uiat the whole belonged to the Company ; the ^£300,000 paid to the Company would
have been a mere bagatelle as purchase money for all that the Company pretended to
daim ; it would have required several millions to buy all if their title had been clear ;
bat there was a controversy about the title, and it was thought worth while to give that
amount of money and certain other advantages to the Company, for the purpose of
getting all doubt removed without further delay. The arrangement was a compromise^
tod understood to be so.

Chief JtuHce Harrison — Tou were acquiring, in fact, a quit claim.

The Attorney '6 e7ii»ral — ^That was all. There is another point with reference to my
learned friend's estoppel. He says that we stood by and concealed our rights from the
Dominion Ministera But, on the contrary, they knew our rights better, perhaps, than



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976 AWARD OF THE ARBITRATOBS, 1878.



the new Provincial Ministers did. It was Dominion Ministers who had been stating onr
•case against the Company ; everything they had stated against the Company was in
favour of Upper Canada ; whatever they claimed to the north and west as belonging to
Canada was in fact a claim for Ontario. Some of these Ministers had indeed been the
very a^nts through whom the facts in our favour had been bi*ought to light and pressed,
officially and otherwise, upon public attention. In consequence and by means of this
contention they got the surrender from the Company for a comparatively small sum, and
they prevented the Province from negotiating on its own account with the Company. If
there is any estoppel in the case, it is the Dominion that is estopped from resisting our
•claim, instead of the Province being estopped from making the claim.

AWAKD OF THE ARBITRATORS.*

To ALL TO WHOM THB8B PrBSBNTS SHALL COMB:

The undersigned having been appointed by the Governments of Canada and Ontario
^3 arbitrators to determine the northerly and westerly boundaries of the Province of
Ontario, do hereby determine and decide that the following are and shall be such bonn-
<laries ; that is to say : —

Commencing at a point on the southern shore of Hudson's Bay, commonly c&lle<l
James' Bay, where a line produced due north from the head of Lake Temiscaming would
/strike the said south shore ; thenoe along the said south shore westerly to the mouth of
the Albany River ; thenoe up the middle of the said Albany River, and of the lakes
thereon, to the source of the said river at the head of Lake St. Joseph ; thence I^ the
line to the easterly end of Lac Seul, being the head waters of the Englisli River ; ^enci'
westerly through the middle of Lac Seul and the said English River to a point where the
same will be intersected by a true meridional line drawn northerly from the international
monument placed to mark the most north-westerly angle of the Lake of the Woods by
the recent Boundary Commission ; and thence due south, following the said meridionnl
line to the said international monument ; thence southerly and easterly following upon
the international boundary line, between the British possessions and the United States of
America, into Lake Superior.

But if a true meridional line drawn northerly from the said international boundary
at the said most north-westerly angle of the Lake of the Woods, shall be found to pass
to the west of where the English River empties into the Winnipeg River, then, and 'in
such case, the northerly boundary of Ontario shall continue down tiie middle of the said
English River to where the same empties into the Winnipeg River, and shall oontinne
thenoe on a line drawn due west from the confluence of the said English River with the
said Winnipeg River, until the same will intersect the meridian alK)ve described ; and
thence due south, following the said meridional line to the said international monument :
thenoe southerly and easterly, following upon the international boundary line« between
the British possessions and the United States of America, into Lake Superior.

Given under our hands, at Ottawa, in the Province of Ontario, this third day of
August, 1878.

RoBT. A. Habbison.
Edwd. Thobntok.

Signed and published in the presence of F. Hinokb.

E. C. Monk.
Thomas Hodoins.

• Seas. Papers, Ont., 1882. No. 23. B^K>rt of Prooeedings before the Arbitrators, p. 67 ; Bepoit Ho.
I'oms. Committee, 1880, p. 480.

# [For the orders of reference by the respective Groyernments, 12th November, 1874, see ante, pp.246, 9(7
and 249. For the orders dated aist July, 1878, see anU, p. 266. The latter Orders were for giviiw effect
to arraogements, long before mad^ for substituting Chief Justice Harrison for Ghi^ Justice Richaras, iHin
had resigned ; and Sir Francis Hincks for Hon. X. A. Wilmot, who had died ; und for appointing Sir
Edward Thornton as third arbitrator. The three arbitrators had been communicated with aocordincly.
lon^ before the^ met in Ottawa to hear counsel, and the papers and documents bearing on the question dm
from time to tune been sent to them, for perusal and consideration, as they were got ready. When th*
arbitrators assembled in Ottawa by appointment to hear counsel, tiie formal Orders of 31st July, 1878b ^f^^
made.— G.E.L.]



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CORRESPONDENCE RESPECTING LEGISLATION TO GIVE EFFECT TO AWARD, 1878. 37l



The Pbovincial Secbetabt to thb Secretary of State.*

Toronto, 81st December, 1878.

Sir, — I am directed by His Honour the LieuteQant-Govemor to intimate that a
measure will be introduced during the approaching session of the Legislature to give
effect, by way of declaratory enactment and otherwise, to the award made by the arbi-
trators appointed by the Governments of Canada and Ontario to determine the northerly
and westerly boundaries of the Province of Ontario. The Act, I presume, may be in
substance the same as E. 8. 0., chapter 4, with the variations necessary in consequenjce
of the award having now been made. No proclamation was issued, as had been con-
templated, when the Act was passed. See section 8.

1 am further directed respectfully to remind the Government of Canada that the
territory which was in dispute before the award was made, extends on the easterly side
of Ontario from, say, the Bocky Mountains to a line drawn due north from the confluence
of the Ohio and Mississippi, and extends on the northerly side from, say, the height of
land to the most northerly limit of Canada ; that the award assigns part of this territory
to the Dominion, and part to Ontario, and tJiat the administration of justice will continue
to be surrounded with difficulties and uncertainties, especially in the matter of jurisdic-
tion, until the award is confirmed by express legislation at Ottawa and here; and that the
subject assumes unusual importance in view of the construction of public works within
the territory and the consequent influx of an unsettled and migratory population.

His Honour the Lieutenant-Governor will be glad to learn that such legislation as
may be necessary to give effect to the award will be had at Ottawa at the next session of
the Parliament of Canada ; as the legislation should, it is respectfully submitted, be as
nearly as possible simultaneous and identical

His Honour will be glad to receive and consider any suggestions in connection with
this object, and also to receive as soon as possible the maps, field notes, etc., eta, relative
to so much of the territory assigned to Ontario as had been surveyed under the authority
of the Dominion.

1 have the honour to be, Sir,

Your obedient servant,

Arthur S. Hardy,

iSecreiary.
Hon. J. C. Aikins, Secretary of State, etc., etc.,
Ottawa. .



The XJndbr-Sbcrbtart of State to the Provincial Secretary.*

Department of the Sbcrbtart of State,

Ottawa, 8th January, 1879.

Sir, — I have the honour to acknowledge the receipt of your letter of the 31st
Deeetnber last, addressed to the Honourable the Secretary-of State, respecting legislative
enactoient to give effect to Award made by the Arbitrators to determine the northerly
and westerly boundaries of the ]^ovince of Ontario, and am directed to state that the
same will not faxL to receive all due consideration.

I have the honour t^ be, Sir,

Your most obedient servant,

Edouard J. Langevin,

Under-Secretary of Staie.
The Honourable A. S. Hardy,

I^vineial Secretfliry, Toronta



Sess. Papers, Ont., 1879, No. 80.

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372 ONTARIO ACT RESPECTING NORTHERLY AND WESTERLY BOUNDARIES, 1879^



Extract from the Speech of His Honour the Libutbnant-Goternor of Ontario^
ON THE Opening of the Legislature, 9th January, 1879.*

It is also my pleasing duty to call your attention to the settlement by arbitration
of the northern and western boundaries of Ontario, since you last assembled. The
decision of the Arbitrators declares the boundaries of the Province to extend to the waters
of Hudson's Bay on the north, and to the north-west angle of the Lake of the Woods on
the west, these limits embracing an area of many thousand square miles beyond the limits
to which the claim of the Dominion since 1871 would have confined us. You will be
invited to approve of a measure having for its object the preservation of order, the
administration of justice, and the encouragement of settlement and enterprise in this
territory. I have reason to believe that the outlay necessary to secure these objects will
be more than compensated by the revenue to be derived from the country.



An Act respecting the Northerly and Westerly Boundaries of Ontario.!

Whereas the northerly and westerly boundaries of the Province of Ontario were
not determined until lately ;

And whereas pending the determination thereof certain provisional lines^ which for
certain purposes were to be regarded as such boundary lines, were agreed to by the
Governments of the Dominion and the Province ;

And whereas it was agreed by the Governments of the Dominion of Canada and the
Province of Ontario that the true boundaries should be determined by reference to
arbitration ;

And whereas one of the arbitrators named in the Revised Statutes of Ontario,
chapter four, died, and the other resigned without having made any award ;

And whereas the Governor-General of Canada in Council afterwards named as
arbitrator the Honourable Sir Francis Hincks, of the City of Montreal, E night, and the
Lieutenant-Governor in Council of this Province named as arbitrator the Honourable
Bobert Alexander Harrison, Chief Justice of Ontario ;

And whereas the two Governments further agreed that the Right Honourable Sir
Edward Thornton, Knight, should be the third arbitrator, and that tibe determination of
the award of the said arbitrators or a majority of them in the matter of the said bound-
aries should be taken as final and conclusive ;

And whereas on the third day of August, in the year of our Lord one thousand eight
hundred and seventy- eight, the said arbitrators made tueir award in writing, in the words
following : — [Here is given the text of the Award, which see in order of date 3rd August,
1878, ante p. 370.]

And whereas the effect of the said award is to give to this Province less territory
than had been claimed on behalf of the Province, and more territory than the Government
of Canada had contended to be within the limits of the Province, or than was contained
within the provisional boundary lines afore£^d ;

And whereas by chapter twenty-eight of the Acts of the Ptetrliament of the United
Kingdom of Great Britain and Ireland, passed in the session held in the thirty-fourth and
thirty-fifth years of Her Majesty's reign, and intituled *^ An Act respecting the estaUisli-
ment of Provinces in the Dominion of Canada,'' it is enacted that the Parliament of
Canada may, from time to time, with the consent of the Legislature of any Province in
the Dominion, increase, diminish, or otherwise alter the limits of such Province upon such
terms and conditions as may be agreed to by the said Legislature, and may with the like
consent, make provision respecting the effect and operation of any such increase, or
diminution, or alteration of territory in relation to any Province affected thereby ;

And whereas it is proper that the boundaries determined by the said award be
adopted and confirmed ;

m

# Journals Leg. Ass., 1879, Vol. 12, p. 2.

t Ontario Stotutes, 42 Vic, cap. 2. Assented to tlth March, 1879.



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TRANSMISSION OF BOUNDARY DOCUMENTS TO DOM. GOVERNMENT, 1879. 373



Therefore Her Majesty, by and with the advice and consent of the Legislative
Assembly of the Province of Ontario, enacts as follows : —

1. The Legislature of the Province of Ontario consents that the Parliament of
Canada may declare that the boundaries which by the award of the arbitrators aforesaid
were decided to be the northerly and westerly boundaries, respectively, of this Province,
shall be and are the northerly and westerly boundaries thereof, whether the same
increase, diminish, or otherwise alter the true northerly and westerly limits of the
Provinca



The Assistant Provincial Secretary to the Secretary of State.*

Toronto, 2nd May, 1879.

Sir, — As in the report of the proceedings in the House of Commons of 1st instant*
appearing in the newspapers, it is stated that the papers relating to the North-West
boundary question have been mislaid, I am instructed, in order that no time may be lost
in introducing the legislation necessary to set at rest any doubts as to the boundaries of
Ontario, to forward to you the following documents : —

1st. A copy of the printed collection of Statutes, Documents and Papers bearing on
the question.

2nd. Printed statement of the Case of the Grovemment of Canada.

3rd. Printed statement of the Case of the Province of Ontario.

4th. A manuscript copy of the Order in Council of the Lieutenant-Governor of
Ontario with reference to the appointment of arbitrators.

5th. A manuscript copy of the Award.

6th. Printed copy of correspondence between the Secretary of State of Canada and
tBe Secretary of this Province respecting legislation with reference to the Award.

I am further desired to say, that in order to facilitate the consideration of this matter,
copies of the printed documents above mentioned have been forwarded to each member
of the Dominion Government.

I have the honour to be. Sir,

Your obedient servant,

L R. ECKART,

Assistant Secretary.
The Honourable the Secretary of State (Canada),
Ottawa.



The Assistant Provincial Secretary to the Secretary op State!

Toronto, 23rd September, 1879.

Sir, — I am directed by His Honour the Lieutenant-Governor to call the attention
of the Government of Canada to my despatch dated 31st December last, respecting the
legislation needed to put beyond dispute, in civil and criminal cases, any question as to
the western and northern limits of Ontario.

The measure therein referred to as intended to be submitted to the Legislature of
Ontario was, as you are aware, passed at its last session ; but no like Act was passed by
the Parliament of Canada at its recent session.

I am to remind you that a report on the subject, by a Committee of the Honourable
the Privy Council, was approved by BAa Excellency the Governor-General in Council on
the 12th November, 1874, and that in this report it was set forth that, in a memoran-

• 8698. Papers, Ont., 1880, No. 46, p. 2. ilhid., p. 3.

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374 COBRESPONDENCE RESPECTINO LEGISLATION TO GIVE EFFECT TO AWARD, 1879 1



dam dated on that day, the Premier of the Dominion recommended ooncurrenM in a
proposition made by the Government of Ontario, to determine, by means of a relereiioe,



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 64 of 86)