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 65 of 86)
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the northern and western boundaries of that Province relatively to the rest of the
Dominion ; that the Ontario Government having named the Honourable William BueU
Richards, Chief Justice of Ontario, as one of the referees, the Premier submitted the
name of the Honourable Lemuel Allan Wilmot, formerly Lieutenant-Governor of th&
Province of New Brunswick, to act in conjunction with him, and advised that auth<Hrity
should be given them to agree upon a third person, not being a resident of Canada, and
that the determination of a majority of such three referees should be final and con-
clusive upon the limits to be taken as and for such boundaries respectively, and by the
report of the Committee of the Privy Council it was recommended that the Dominion
should agree to concurrent action with the Province of Ontario, in obtaining such legis-
lation as might be necessary for giving binding effect to the conclusion which should be
arrived at, and for establishing the northern and western boundaries of the Province of
(Ontario in accordance with the award.

A further report of a Committee of the Honourable the Privy Council was approved
by His Excellency the Governor-General in Council on the 31st July, 1878, whereby it
was stated that the Committee of Council had under consideration the subject of th&
northern and western boundaries of the Province of Ontario, which under previous
Orders in Council had been referred to the Honourable W. B. Richards, then Chief
Justice of Ontario, named as referee on behalf of that Province, but who was subse-
quently replaced by the then Chief Justice, the Honourable R. A- Harrison, and to tho
Honourable Sir Francis Hincks, who had been named on behalf of the Dominion, aud
that subsequently to the action taken under the Order in Council of 12th November,
1874, it had been mutually agreed between the Governments of the Dominion and
Ontario that the Right Honourable Sir Edward Thornton should be selected as third
referee, and the Committee recommended that such selection should be confirmed by
Minute of Council, and that the determination of such three referees should be final and
conclusive upon the limits to be taken as and for such boundaries respectively.

Corresponding Orders in Council were made by this Province.

I am directed to respectfully suggest that an award having, on the 3rd August,.
1878, been duly made in pursuance of the reference, it it is just that there should be na
further delay in formally recognizing the award as having definitely settled the matters.
Hubmitted to the arbitrators.

The Government of Ontario, on its part, acquiesced in the award, not because it was.
believed to have accorded to this Province all that was claimed on its behalf, or all iiiat
the Province might within its strict legal rights have had awarded to it, but because the
tribunal appointed jointly by the two Governments was one to whose competency and
character no^one could take exception, and because according to the judgment of the^
people of Ontario neither party to the arbitration could consistently with good faith
refuse to abide by the decision.

The Government of Ontario does not doubt that the Government and Parliament of
C'anada will ultimately take the same view, and I have respectfully to represent that tha
delay in announcing the acquiescence of the Dominion authorities, and in giving full
effect otherwise to the award, has been embarrassing and injurious.

The present Government of Canada has already been made aware that before the
arbitnaors met an exhaustive collection had been made by the Governments of Canada
aiid Ontario, severaUy, of all the facts, documents and evidence bearing upon the con-
troversy ; that everything material had been printed, and in a form which facilitated to
the greatest practical degree the full and prompt examination of the question at issue ;
that cases had been prepared on both sides, containing a summary of the respectiTe
claims and the reasons therefor ; that these cases also had been printed ; and that the
whole matter had been argued before the arbitrators by counsel.

With respect to the arbitrators it is manifest that no three persons could have been
seleoied whose judgment would be entitled, in such a case, to more unqualified respect
than that of the three arbitrators appointed. Sir Francis Hincks, as a Canadwm
publicist and statesman, is acknowledged to have few equals in shrewdness, industry or



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OROUNDS OF ONTARIO'S CLAIM TO THE LIMITS OF THE AWARD. S75



ripe experience ; the late Chief Justice Harrifion was a lawyer of the first rank, and a
jttdge whose method of reasoning was always distinguished for its practical and commou
sense character; and Sir Edward Thornton, Her Majesty's Minister at Washington,
brought to the consideration of the case, not only the aid of the very high abilities, bui
the abadutely independent judgment of one who could have no partialities or indina
ticMis in &vour of either side.

If the merits of the award have been considered by the Government of Oanadii
they will have observed certain {Mreliminary things in connection with the question which
vrere and are beyond controversy. Amongst these are the facts that Ontario is entitled
to the same limits as Upper Canada had, whatever these were; that these limits embrace-
so much of the British territory, west of the division line between Ontario and Quebec,
as belonged to France before the cession of 1763, and (what is the saiiEie thing) so mucli
as belon^d to the Province of Canada before Confederation, or (in other words) so mucli
as belonged to the Dominion before its purchase of the rights of the Hudson's Bay Com-
pany, and that the single question which the arbitrators had to consider was, what terri-
tory Canada had on the Ontario side of the division line before the recent purchase from
the Hudson's Bay Company had been made.

It must further have been noticed that the territory awarded to Ontario is considei-
ably less than had been officially claimed and insisted upon by the Province of Canada
before Confederation, and by the Dominion afterwards, and considerably less, on the west^
ehan, according to the legal opinion of Chief Justice Draper in 1857, Canada was clearly
tntitled to.

Farther, the territory so awarded to Ontario is less than was comprised in Upper
Canada, according to the true intent and meaning of the Quebec Act (1774), as shown
by its recitals, and by its known objects, and its history, including the proceedings thereon
in the House of Commons, as reported in '* Cavendish's Debates," and as set forth in
the letter of the Right Honourable Edmund Burke, dated 2nd August, 1774, to his con-
stituents, the Province of New York, whose agent he was at the time. All these
documents are to be found amongst the printed documents already mentioned.

The terms of the Royal Commissions assigning or defining the boundaries of Canada
and Upper Canada respectively, appear in the same book ; and a reference to them will
have shown to the Government of Canada that the territory awarded to Ontario is less
than was given to the Province by the express terms of the Royal Commission (27th
December, 1774,) which, immediately after the passing of the Quebec Act, was issued to
Sir Guy Carleton, as Captain-General and Govemor-in-Chief of the Province ; and also
by the express terms of the Commission to his successor, Sir Frederick Haldimand ; that
the Commission to Sir Guy Carleton, after the Treaty of Paris of 1783, expressly gives
as one of the boundaries of the Province a line to the Lake of the Woods, thence
through said lake to the most north-western point thereof (as the Arbitrators have done),
and from thence in a due west course to the River Mississippi. The Arbitrators have
not given to the Province any territory west of the Lake of the Woods.

The Gtovemment of Canada must also have observed that a paper was presented to
Parliament previous to the passing of the Constitutional Act of 1791, describing the line
which it was proposed to draw in order to divide the then Province of Quebec into two
Provinces ; that this line is described as drawn from the head of Lake Temiscaming due
north until it should strike the boundary line of Hudson's Bay, including, as the paper
stated, all the territory to the westward and southward of the said line to the extent of the
countiy commonly known by the name of Canada ; that on the 24th August, 1791, an
Order in Council referred to this paper, and divided the Province accordingly ; that the
subsequent Proclamation of G^neiul Clarke, in the same year, contained a description in
tbe same words; that the Royal Commissions to Lord Dorchester and subsequent
Governors-General, to and including the Commission to Lord Gosford in 1835, described
the division line between Upper and Lower Canada in the same way, as extending to the
boundary line of Hudson's Bay ; and that the Commissions, from that to the Earl of
Durham in 1838, to the Commission to Lord Elgin in 1846, as well as various other
Itoyal Commissions, described the line of division as striking the shore of Hudson's
Bay.



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376 COERESPONDENCE RESPECTING LEGISLATION TO GIVE EFFECT TO AWARD, 1879.



It is also undenied and undeniable that the Provinee of Upper Canada, for a peried
long antecedent to its union with Lower Canada, acted whenever there was occasion on
the assumption that the boundaries of the Province were those so assigned by the Royal
Cooimissions, and issued writs into the territory west of the line 89* 9^' (which was the
line insisted on by the Dominion after the purchase from the Hudson's Bay Company).

It is another significant fact of the same kind that the Province of Canada, as far
back as 1850, procured from the Indians the surrender of their rights in the same terri-
tory west of that line, and from time to time thereafter made grant^ in the Queen's name,
of land west of the same line.

In truth, so far as the western boundary is concerned, it was proved to demonstra-
tion that the north-west angle of the Lake of the Woods was the most easterly limit that
could be assigned io the Province under any interpretation of the evidence.

There is an old decision of a Court in Lower Canada in what is called the De Beinhardt
case, in favour of a more easterly line, viz., 89° 9 J' (the meridian of the confluence of
the Ohio and Mississippi Eivers), but on an examination of the case, of which a fall
report is in print and accessible, it will be found that the decision was come to without
the Court being aware of the terms of the Koyal Commissions to the Governors herein-
before mentioned, and without attention having been called to the historical facts which
are referred to in the recitals of the Quebec Act, and which give significance to those
recitals as bearing on the question of boundary ; nor was the Court in possession of the
evidence of intention which is aflforded by the debate on the Bill and by other means
now known and relied upon as demonstrating the other construction. De Keinhardt,
though clearly guilty, was not executed, and the only known or supposed reason for
pardoning him is that the British Government were advised that the conclusion of the
Court on the point in question was not maintainable. This is stated in an official paper
^n the part of the late Province of Canada.

Only one of the Koyal Commissions hereinbefore mentioned, so far as is known, was
in print before the recent investigations, and when copies of these Commissions were
procured and examined for the purposes of the arbitration it became apparent that these
Commissions alone set at rest all possible question that the westerly boundary of the
Province included the Lake of the Woods ; and that the northerly boundary extended to
the shore of Hudson's Bay on the east, and to or beyend the most north-west angle of the
Lake of the Woods on the west How far north of these points our northerly boundary
was to be found was a fair subject of controversy, but the territory north of these two
points is of comparatively little value. It is to be observed that the line of the English
and Albany Rivers, which was fixed upon by the Arbitrators as the northerly boundary,
is not far north of a straight line connecting the two points mentioned, and has the
advantage of presenting an almost iinbroken waterline ; that it is thus a natural and con-
venient boundary ; and that it gives to Ontario a less aggregate quantity of territory in
the north than is assigned to Canada in some of the maps of the Hudson's Bay Company
itself; and gives to the Province a less northerly boundary than the Company in 1701,
thirty years after the Charter, was content with and unsuccessfully endeavoured to
restrict Canada to.

But if it were far less clear than it is that the award does not give Ontario more
territory than the Province was entitled to, and if the reasons which justify the conclu-
sions of the Arbitrators were far less clear and strong than they are, it is respectfully
submitted that the award demands the active acquiescence and recognition of the parties
to the reference. The question of boundaries was in controversy, it was referred by
mutual consent to the distinguished gentlemen named, they have made their award, and
the fact is conclusive in regard to all questioi^s on the subject.

I am further to remind the Government of Canada that the settlement of the
controversy, as well as the explorations for railway and other purposes, have drawn
public attention to the territory north and west of Lake Superior, that settlement therein
is proceeding, that various enterprises are establishing themselves, that speculation is
likely to be directed to this region, and that various causes are at work favourable to an
influx of population, both of a settled and floating character.

In view of these considerations the Government of Ontario trusts that the Govem-



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COBBESPONDENCE RESPECTINQ LEGISLATION TO GIVE EFFECT TO AWARD, 1879. 377



meat of Canada will recognize the propriety of announcing without further delay their
intention to submit to Parliament, next session, a Bill declaring the boundary established
by the Arbitrators to be the true northerly and westerly boundaries of Ontario, and to
UBe the influence of the Government to have the measure accepted by both Houses, and
assented to by His Excellency the Governor-General

I am to renew the request contained in a former despatch that the Government of
Canada would be pleased at once to forward to this Government the maps, field notes,
etc., eta, relative to so much of the territory assigned to Ontario as has been surveyed
under the authority of the Dominion.

I have the honour to be. Sir,

Your obedient servant,

I. K ECKART,

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



The UndertSrcretart op State to the Provincial Secretary.*

Department op the Secretary of State,

Ottawa, 25th September, 1879.

Sir, — I have the honour to acknowledge the receipt of your communication of the
23rd inst, with reference to the question as to the northern and western limits of the
Province of Ontario; and to inform you that the subject will be submitted to His
Excellency the Governor-General.

I have the honour to be, Sir,

Your most obedient servant,

Edouard J. Langevin,

Under-Secretary of State,
The Honourable the Provincial Secretary of Ontario,
Toronto.



The Provincial Secretary to the Secretary op State.!

Provincial Secretary's Ofpice, Ontario,

Toronto, 19th December, 1879.

Sir, — I have the honour to call your attention to my despatch bearing date the 31st
day of December, 1878, and to intimate that the Government of Ontario have not yet
been favoured with the reply of your Government to the suggestions made and infor-
mation sought by my communication. I beg further to intimate that the Arbitrators
having made their award, the Government of the Province understand that the pro-
visional arrangement theretofore in force between the Province and the Dominion,
having reference to the boundary and the north-west portion of the Province is at an
end, the award having " definitely settled" the boundaries between the Province and the
Dominion.

I have the honour to be, Sir,

Your obedient servant,

Arthur S. Hardy,

Provincial Secretary,
Hon. J. C. AiKiNs,

Secretary of State, Ottawa.

♦ Seas. Papers, Ont, 1880, No. 4«, p. 6. t iWct, pi 2.

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878 RETORT OF MINISTER OF JUSTICE, 1880 :



EmULM* 9R0K THB SPBBOH OF HiS HoiTOUR THE LlEaTBNANT-€k>VBRNOR OF OmTAHO,

oir THB OPBMTiKa OF THB Lboislaturb, 8th Januart, 1880.'*'

Some oonrdspondenoe has taken place between my Gk>vemment and the Govenment
of Canada respecting the award of the bonndarj Arbitrators. I trust that at the
approaching session of the Dominion Parliament the award will receive from that body
legialatiTe recognition.



Report op the Minister of Justice.!

Dbpartmbnt op Justice,

Ottawa, 20th January, 1880.

I have the honour to report : — That an Act was passed by the Legislature of the
Province of Ontario, at its last session, intituled (chapter 19) ''An Act respecting the
Administration of Justice in the Northerly and Westerly parts of Ontario."

This Act is apparently based upon the assumption that the conclusion come to by the
Right Honourable Sir Edward Thornton, the Honourable Sir Francis Hincks, and the late
Chief Justice Hiarrison, respecting the northerly and westerly boundaries of Ontario
settled such boundaries.

I would call attention, however, to the fact that, as the Parliament of Canada have
not yet legislated upon the subject, the question of the boundaries still remains, as a
matter of law, unsettled. If the Parliament of Canada thinks proper to pe^ss the nece^
sary Act dechuring the boundaries to be those decided upon by the gentlemen referred to,
the Act under consideration would not in this point of view be objectionable.

I append a memorandum (marked '' A ") prepared by the Deputy of the Minister
of the Interior respecting the provisional boundary agreed upon by the Governments of
Canada and Ontario in the year 1874, together with a plan showing the territory included
in the description in sections 1, 2, 3 and 8 of the Act now under consideration.

I submit for the consideration of Council the question whether, pending action by
the Parliament of Canada with respect to the boundaries of Ontario, this Act should bio
left to its operation. It was received by this Government on Ihe 26th day of March,
1879, so that the year within which the power of disallowance must be exercised will
expire on the 25th of March, 1880. Assuming that it is concluded not to disallow the
Act in connection with the boundary question, there are questions arising upon it which
require serious consideration.

The 96th section of the British North America Act, 1867, provides that the Gov-
ernor-General shall appoint the judges of the Superior, District, and County Courts in
each Province, except those of the Courts of Probate in Nova Scotia and New Bruns-
wick ; and by the 100th section, the salaries, allowances, and pensions of the judges of
the Superior District and County Courts are to be fixed and provided by the Parliament
of Canada.

By the 92nd section the Provincial Legislatures are empowered to make laws for the
constitution, maintenance and organization of Provincial Courts, both official and criminal
jurisdiction, and including procedure in civil matters in those courts.

Several of the Provinces of Canada have, since Confederation, provided for the
appointment of officers called Magistrates, Stipendiary Magistrates, Commissioners, etc.,
and have given to those officers certain judicial functions. Till lately their powers have
been confined to matters in which small amounts only have been in dispute, ranging from
$100 and less.

In 1877 the Legislature of British Columbia passed a Bill respecting the Gold Com-
missioner's Court in that Province. This Bill gave to the Gold Commissioner, who was a
local officer appointed by the Lieutenant-Governor, very extended jurisdiction in civil

* Jouraals, Legislative Assembly, 1880, Vol. 18, p. 5.
t Seas. Papers, Ont., 1881, No. 30, p. a



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DISALLOWANCE OF ACT MS AfiMINISTRATIOK OF JUSTICE IN DISPUTED TERR'Y. Sf9



matlen. It wms reaerved for the signification of the pleasure of His Exoellencj the
Govermor-Gleneral there<Mi. It was not assented to. I append an extract (marked " B ")
from the approved report to Council from this Department upon the Bill.

In 1877 an Act was passed bj the ProTince of Ontario intituled ^< An Act respect-
ing the Territorial and Temporary Judicial Districts of the Province and the Provisional
Countj of Haliburton.''

This Act gave to stipendiary magistrates referred to therein, and to the Division
Court of the District of Algoma, certain extended jurisdiction.

The Act was left to its operation, but not without the attention of Council being
called to its provisions. I append an extract (marked '' ") from the approved report of
the Department to Council respecting the same.

The Act now under consideration goes a step further, and practically provides for
the whole administration of civil justice, for some time to come, within the territory
referred to in the Act, by a court, the judge of which is appointed by the Lieutenant-
Governor, and the salary and allowances of whom are fixed by the Provincial Legislature.

The 6th section gives to this court, in the District of Algoma, the following
jurisdiction: —

1. In all personal actions where the amount claimed does not exceed $400.

2. In all actions and suits relating to debt, covenant and contract, where the amount
or balance claimed does not exceed $800.

Provided always, as to the additional jurisdiction so hereby conferred, that the con-
tract was made within Algoma, or the cause of action arose therein, or the 'defendant
resides ther^.

3. For the recovery of the possession of real estate in the said District.

4. " In replevin, where the value of the goods, or other property or effects distrained,
taken or detained, does not exceed the sum of $400, and the goods, property, or effects
to be replevied are in the said» District."

Previous to the Act its jurisdiction was confined to personal actions wh^re the debt
or damages claimed did not exceed $100 (see Revised Statutes of Ontario, chapter 90,
section 16), except by consent of the parties, when the stipendiary magistrate could, on
their written consent, try cases to the extent of $800.

Section 8 gives to the stipendiary magistrate holding courts in certain remote dis-
tricts therein mentioned the following jurisdiction : —

1. In all personal actions where the amount claimed does not exceed $100 (except as
in the next section excepted).

2. '' In all cases and suits relating to debt, contract, and covenant, where the amount
or balance claimed does not exceed $200, or if the amount is ascertained by the signa-
ture of the defendant to the sum of $400.

** Provided always that the contract or covenant was made within the said portion
of the District of Thunder Bay or Nipissing in which the court is held, or the cause of
action arose therein, or the defendant resides therein.

3. " In certain actions for the recovery of the possession of lands or other corporeal
hereditaments situated in the said portion of the District aforesaid in which the court is
held, and the yearly value of which lands or hereditaments, or the rent payable in respect
whereof, does not exceed $100, that is to say : —

(a) ** Where the term and interest of the tenant of any such corporeal hereditaments
has expired or has been determined by the landlord or the tenant by a legal notice to quit,

{b) ** Where the rent of any such corporeal hereditaments is sixty days in arrear,
and the landlord has the right by law to re-enter for non-payment thereof.

'< And in respect to such actions the said courts shall have and exercise the same
powers as belong to and may be exercised by the Superior Court of Common Law, in and
in req)ect to actions of ejectment.

4. " In replevin, where it is made to appear that the value of the goods or other
property or effects distrained, taken, or detained, does not exceed the sum of $100, and
the goods, property or effects to be replevied are in the said portion of the District in
whidi the court is held."

Section 10 provides for the appointment of an officer for the District of Algoma, to



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 65 of 86)