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 80 of 86)
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the Privy Council is to proceed.

The undersigned has pointed out some of the evils of the existing state of things.
He cannot conceal from himself that further evils to this Province may be created by
prolonged delay. Even uncertainty as to the proper authority hoth. makes government
more or less difficult, and retards settlement. Settlers cannot feel sure of their title to
their lands, or to the improvements which they make. Some men rather like a
state of lawlessness, and run all risks ; but many do not ; and these are deterred by
the uncertainty from remaining in the country or having transactions in it Again, if
the practical effect of Federal measures should be Ontario's temporary withdrawal from
the territory, the danger is not to be overlooked that the territory may permanently drift
away from Ontario. The population will get accustomed to the laws of Manitoba ; will
come to consider themselves as not belonging to Ontario ; and the lands and limits which
they occupy will have, for title, grants, licenses, contracts, or permits from another Govern-
ment. To change the jurisdiction over the territory after its principal accessible parts
have become populated under such circumstances, may be found to be most inconvenient,
and even to involve insuperable complications and difficulties. Should these results not
follow, we cannot conceal from ourselves that it has been proved by long experience that
a Government on this continent cannot, if it would, ignore occupants of Crown Lands,
though they may be occupants without title ; and that (generally speaking) the occupancy
is ultimately clothed with the title, either without compensation, or on terms different
from those which might properly be imposed if the possession were vacant. A fortiori
might this be found to be the case in the present instance, as respects occupants who
should receive grants or licenses from the Government of the Dominion or of Manitoba.



# Debates, House of CommonB, 1881, page 1452.

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SUGGESTION OF CONFERENCE WITH DOMINION GOVERNMENT. 461



Dominion Ministers, speaking £or the Dominion Govemmeiit, said and shewed that the
Hudson's Bay Company were mere " squatters ** on the lands they occupied ;* and yet
the Dominion found it expedient afterwards to pay to the Company a considerable com-
pensation to get rid of their claims, though the compensation was small as compared with
value of the territory. In the present case the obtaining of damages against the Dominion
would be no adequate compensation to this Province for wrongs done by Federal legisla-
tion, or by the acts of the Federal Government. Such damages would come principally
out of the pockets of Ontario taxpayers, as being the chief contributors to the revenue of
the Dominion ; and any indemnity we could receive would practically be paid to a large
extent with our own money.

An appeal to the electors of the Dominion for the rights of the Province has been
suggested. Such an appeal may not be practicable in time to prevent irremediable evils
resulting from delay ; the first general election for the Dominion may not take place until
the autumn of 1883 ; and at this election, whenever it occurs, the question as to the
territory in dispute may be overshadowed by other issues which in Dominion politics
divide parties, and with which the Legislature and Qovemment of Ontario have nothing
to do.

Notwithstanding that the Federal Oovernment, since the award, has repeatedly
declined to discuss suggestions made by this Government for an adequate provisional
arrangement to be acted upon pending the dispute, and has proposed no other provisional
arrangement, and has made no officieJ communication whatever as to any mode of deter-
mining the question of right, still, in view of all the circumstances, and especially of the
very serious evils, present and prospective, which liie course of the Federal Government
has created, and of the absence of any means of peaceably preventing such evils, — the
undersigned ventures to recommend that he may receive authority from Tour Honour in
Council to endeavour once more, by personal conference or otherwise as may be found
expedient or useful, to ascertain for the information and action of this Gk>vemment, and
of the Legislature of Ontario at its next session, whether the Federal Government and
the Government of Manitoba can now be induced to concur in any mode of accomplishing
a permanent settlement in relation to the disputed territory, in connection with adequate
and pr(^>w provisional arrangements ; and if so, what the b^t terms appear to be to which
those Governments may be prevailed upon to accede.

All which is respectfully submitted.

O. MOWAT.

November Ist^ 1881.



The Lirutbnakt-Govsrvor to the Sboretary op State.!

govbrkmbnt housb,

Toronto, 31st December, 1881,

Sir, — I beg to call your attention to the unfortunate condition of that large portion
of this Province to which the Federal authorities dispute our right. I desire specially
to refer to that part of the disputed territory, comprising about 39,000 square miles,
which lies on the westerly side of this Province, and to which, by the Act of last session
for the ext^ision of the boundaries of the Province of Manitoba (44 Vic, cap. 14), the
Federal Parliament transferred to that Province the claim of the Dominion, so ^r as
relates to the Provincial jurisdiction therein.

I beg to remind you that the importuice of having settled without further delay all
questions in regard to the boundaries of the Province was repeatedly stated, and even
insisted upon, by your Government as long ago as the year 1872. Thus in an Order
in Council, approved by His Excellency the Governor-General on the 9th April, 1872, it
was affirmed to be " of the greatest consequence to the peace and well-being of the



* Letter to Sir F. Rogers, 16th Januaiy, 1869, Book Arb. Doc., p. 324. [Printed wUe, p. 148.]
tSees. Papers, Ont., 1882. No. 38.



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462 DESPATCH OF THE LIEUT.-GOV. RESPECTING THE QUESTIONS IN DISPUTE, 1881:



country in the vicinity of the dividing line, that no question as to jurisdiction, or the
means of prevention or punishment of crime, should arise or be allowed to continue;"
and it was not doubted "that both Governments would feel it their duty to settle,
without further delay, upon some proper mode of determining, in an auUuHitative
manner, the true position of such boundary."

On the 1st of May in the same year, Sir John A. Macdonald, the Premier, and then
Minister of Justice, made a report, which was approved by Order in Council, in which
report it was stated, in reference to the disputed territory, that " it was very material
that crime should not be unpunished or unpre vented ; ** and in this view it was suggested
that '* the Government of Ontario be invited to concur in a statement of the case for
immediate reference to the Judicial Committee of the Privy Council of England." It was
further stated that "the mineral wealth of the North- West country is likely to attract a
large immigration into those parts ; and with a view to its development, as well as to pre-
vent the confusion and strife that is certain to arise among the miners and other setUers
so long as the uncertainty as to boundary exists," it was recommended that a course of
joint action should meanwhile be ad(^ted by the Dominion and the Province <'in regard
to the grants of lands and of issuing licenses, reservation of royalties, etc."

By another Order in Coundl^ approved on the 7 th of November, 1872, His
Excellency the Govempr-General's Federal advisers obtained the sanction of the Crown
to the statement that " the importance of obtaining an authoritative d6<H8ion as to the
limits to the north and to the west of the Province of Ontario had already been af&rmed
by a Minute in Council," and that ** the establishment of criminal and civil jurisdictioo,
and the necessity of meeting the demands of settlers and miners for the acquisition of
titles to land, combined to render such a decision indispensable."

On the 26th of June, 1874, a provisional arrangement was made for the sale of lands
in the disputed territory, which arrangement was in force from its date until 3rd August,
1878, when the award was made. By the award so much of the territory theretofore
in dispute as was situate east of the meridian of the most north-western angle <^ the
Lake of the Woods (say longitude 95"" W 38" W.), was awarded to Ontario, and the chum
theretofore made on behalf of this section of Canada to the territory beyond that
meridian, to either the White Earth River or the Rocky Mountains, was negatived by
the Arbitrators.

I beg to remind you that from that day to this the Federal Government has made
no official communication to the Government of this Province of their intuition to reject
the award, but my Government has been left to gather this intention from the omission
of the Federal Government for the first two sessions of Parliament to bring in anj
measure for the recognition or confirmation of the award ; and from the speeches made
in Parliament by Ministers during the last two sessions ; and more distinctly from the
transfer made last session to Manitoba by the Act already mentioned, and which Act,
passed notwithstanding the remonstrances of this €k>vemment, had the effect of putting
it out of the power of the Dominion to confirm the award without the concurrence of
that Province.

My €k>vemment cannot doubt that the Federal authorities are aware, and will admit,
that the jHrogress of the country in the last nine years, and the realization during this
period of the condition of things which in 1872 was only anticipated, have immenselj
increased the duty then perceived and expressed by your Goverment, that ^* no question
as to jurisdiction or the means of prevention or punishment of crime cdiould be allowed to
continue ;" and that there is a " necessity of meeting the demands of settlers and miners
for the acquisition of titles to lands." Immigrants and others have, as anticipated, been
attractad to the territory in dispute, in common with the rest of the North-West Terri-
tories ; numerous settlers, miners and luniberers have now gone into the territoiy ; &
large floating population is there ; also a considerable number of persons who desire to be
settlers ; and the lands, mines and timber of the territory are in active demand.

With respect to the timber, enormous quantities of it are being cut and removed
by trespassers and others. Some of those engaged in the work assert that they have
licenses, permits, or the like, from the Federal Government ; and this Government has»
in consequence, applied to your Government for information as to how far their pro-



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CONDITION OF THE DISPUTED TBRRTTORY. ' 463



oeedings have had the sanction of the Dominion Government ; but the information has
not been given, nor has any notice been taken of the application for it.

A communication from our stipendiary magistrate in the territory (a copy of which,
or of its material part, was transmitted to you on the 8th March, 1881,) shows — what
also appears from other quarters — that the explorers and miners on the Lake of the
Woods had suffered great disappointments and losses from the continuance of the
territorial dispute ; that some of them had expended all their money in exploring and
surveys, expecting an early return for their investments and toil, but that nothing could
be done with mining capitalists because a sure title to lands could not be procured ; that
the delay of another year would ruin many ; that many would be driven from the locality
never to return, causing loss to merchants and others who had made advances to them ;
that the people of the locality were suffering in many ways from the unsettled condition
of a&irs, there being no civil court of acknowledged jurisdiction to collect debts, no land
agent to locate settlers, no registry office to record deeds, and no disinterested timber
agent to protect the forests ; that all was uncertainty and confusion ; that the claims to
mineral lands had become so mixed that those who claimed locations would soon be
unable to recognize their own property; that some places had been surveyed several times,
the surveys covering each other; that the magistrate had no doubt there would be
fighting, and perhaps murder, over these claims ; that some persons were then armed to
defend their supposed or assumed rights against wealthier claimants ; and that whiskey-
sellers were plying their illicit calling with great success, and much to the injury of the
district. Since the date of this communication, the Manitoba Act referred to has intro-
duced new elements of confusion and disorder. Two sets of Provincial laws, and two
sets of Provincial officers, distract the inhabitaztts of both the unorganized and the
organized parts of the territory.

As regards the organized portions, which lie south and east of the Height of Land
— and where, up to the time of Confederation, and for many years before, the authority
of the laws, courts and officers of Upper Canada had always been assumed, by the
Government and the population, without dispute or question, and where, since Confedera-
tion, the authority of Ontario had continued to be assumed in the same manner — the
unfortunate position of the inhabitants now, was, (in the debate on the Manitoba Bill),
pointed out by the leader of the Government to be this ; ''The people of Prince Arthur's
Landing may resist the processes of law; they may say to the Sheriff that he is
committing an illegality. A man may say to another who bring a suit against him,
* This is the process of an Ontario Court, and Ontario laws do not extend here, because
we are not part of that Province.' " The same things may be said in respect of the
officers and courts of Manitoba in the same territory.

I have further to remind you that since the award was made, the Government of
Ontario have repeatedly called the attention of your Government to the serious practical
evils which were attending the dispute, and to the importance and duty of not delaying
a settlement of the question, or of making adequate provisional arrangements if the
award was not to be recognized by the Federal authorities ; but no measure has ever
been recommended to Parliam^it to remove or alleviate, with reference to civil rights
or the trial of civil matters, the evils thus arising from varying laws and disputed
jurisdiction.-

Li criminal matters only has something of a provisional kind been done, namely, by
the Dominion Statute 43 Vic., cap. 46, continued until the end of next session by 44
Yic, cap. 15 ; and this legislation is so defective that no magistrate or justice of the
peace acting in this disputed territory can feel any assurance that his jurisdiction will
not be disputed, or his officers set at defiance or sued in trespass.

An authoritative determination of the right might be accomplished at once, by the
Parliament of Canada and the Legislature of Manitoba passing Acts for this purpose,
under the authority of the ImperiaJ Act 34 and 35 Yic., cap. 28 ; and otherwise. But
my Government are aware that the policy of the present Federal Government and
Parliament forbids any expectation of that course being adopted.

In 1872 your Government proposed an immediate reference to the Judicial Com-
mittee of the Privy Council ; and it was suggested in a communication to the Government



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464 DESPATCH OF THE LIEUT.-GOV. RESPECTING THE QUESTIONS IN DISPUTE, 1881 :



of Ontario that *' no other tribunal than that of the Qaeen in Council would be Batiflac-
tory to the other Provinces of the Dominion, in a decision of questions in which they
have a large interest, the importance of which is by current events being constantly and
repeatedly augmented." My Government have observed also that in the debate in the
Senate on the Manitoba Bill last session, Sir Alexander Campbell, speaking for the
Government, said : ** The boundaiy line will have to be settled. It will be settled, I
suppose, by some reference to the Judicial Committee of the Privy Council of England,
or some other tribunal. No particular burden will be thrown on Manitoba to procure a
settlement." Speaking of the boundary line, the same Minister further observed : ** Its
location is a matter of dispute ; and all we can do is to endeavour to get Ontario to agree
to some tribunal by which it can be settled."

In the House of Commons' debate on the same Bill, at a subsequent time, Uie
Premier said, speaking of his predecessors : " The Government were peculiarly bound to
see that the question was left to a tribunal that could speak authoritatively ; and I do not
see, unless they were afraid of their case, why they [the Ontario Government] should
have objected to the Imperial tribunal, to which it must go finaUy. That is the only way
of settling the case. AH must submit to that, the highest tribunal in the Empire."

Having reference to ^ese observations, and remembering that the award of the
distinguished gentlemen who were chosen by the two Governments as Arbitrators, and
whose ability and impartiality have always been acknowledged, has not been satisfactory
to the Federal authorities, I do not suppose that any tribunal constituted by agreement
of the parties would, under all the circumstances, be proper or satisfactory.

A reference to the Judicial Committee of the Privy Council, or to any other
tribunal, would involve much loss ot time ; and meanwhile the advices received from
the territory indicate that the timber therein is being destroyed; that enormous quan-
tities of it are being practically lost to the Province ; and that the development of the
territory is arrested, to the permanent injuiy of this Province, by the continued absence
of undisputed authority to enforoe order, administer justice, and grant titles. The evils
arising from this state of things are so great, and are increasing so rapidly, and it is so
important that the Province should without further delay secure peaceable possession of
whatever limits it is entitled to, that my Government would be willing, with the con>
currence of the Legislature, to submit the matter to the Privy Council, on condition of
consent being given by the Dominion Government and that of Manitoba, and by the
Parliament of Canada and the Legislature of Manitoba, to just arrangements for the
government of the territory in the meantime.

Without such provisional arrangements, this Province may as well wait for the
confirmation of the award, which (so far as concerns the rights and powers still remain-
ing to the Dominion) my Government confidently expect from another Parliament, as go
to the expense, and have the unavoidable delay of a second litigation.

From the time that it became manifest that the Dominion Government did not
contemplate an early recognition of the award, provisional arrangements have from
time to time been suggested by this Government, and by the Attorney-Goneral on its
behalf. I beg to refer you to the communications containing these suggestions ; and I
may add that your Government has not hitherto made any of them the subject of com-
munication to this Government; nor have any counter propositions hitherto been
suggested.

It may be convenient here to state the substance of these suggestions :

(1) By reason of the award, and of its accordance with the contentions of the
Province and Dominion of Canada up to 1870, the prima facie title to the territory must
be admitted to be in the Province of Ontario; and it was therefore proposed Uiat,
pending the dispute, this Province should have the authority of the Dominion to deal
with the lands and timber (as in the other parts of the Province), subject to an account
if the title is ultimately dedded to be in the Dominion, and not in the Province.

(2) As (witJiout a state of practical anarchy) there cannot continue to be two
systems of law in this great territory of 39,000 square miles, the law of Ontario should,
by proper legislation, be declared to govern in regard to matters which, by the British



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DOMINION ASKED FOB TERMS OF SETTLEMENT OF DISPUTED BOUNDARY. 465^



North America Act, are within Provincial jurisdiction. This, or anj other arrangement
with regard to these matters, will now require legislation by Manitoba.

(3) It was further proposed that, pending the dispute, the jurisdiction o£ our
Courts and officers should be recognized and confirmed; and that the jurisdiction of
our stipendiary magistrates in the disputed territory should be increased to the extent
<x}ntemplated by the disallowed Act, 42 Vie, cap. 19, Ont This extended jurisdiction,
it may be observed, would not be so great as the jurisdiction which has been conferred
by Dominion Statutes upon similar magistrates in the territories of the Dominion.
To prevent doubts, there should be legislation by the Federal Parliament, and by the
Legislatures of both Manitoba and Ontario.

The Manitoba Act of the last session of Parliament has rendered necessary the
concurrence of the Government and Legislature of Manitoba in the provisional arrange-
ments referred to.* But it is presumed that such concurrence would, if now desired or
approved by the Federal Government, be given gladly ; for it is not to be supposed that
that Province— with its small revenue, and with the enormous additional demands upon
it for the government and development of its undisputed tenitory, increased by the same
Act from 13,464 to upwards of 100,000 square miles — can desire to have the further
expense and responsibility of the temporary government of 39,000 square miles of
disputed territory, which may never be theirs, and to which such of the people of Manitoba
as may take the trouble to learn the facts, must feel it not improbable that Ontario has
the right ; since such was in e£Eect the view taken and acted upon in every way by the
successive Governments of Canada up to 1870 ; and since such highly competent referees
as the Right Honourable Sir Edward Thornton, then Her Majesty's Ambassador at
Washington, and now her Ambassador to the Court of St. Petersburg, the late Honour-
able Chief Justice Harrison, and the Honourable Sir Francis Hincks, K.O.M.G.» declared
and awarded the disputed territory to be within the boundaries of this Province.

1 have called the Ontario Legislature to meet for the dispatch of business on the
12th of January. I perceive that the Parliament of Canada is to meet in the following
month, and I would respectfully urge the great importance of my being officially informed,
before the meeting of our Legislature, whether the Dominion Government is now willing,
with the concurrence of the Legislature of Manitoba, so far as such concurrence is
necessary, to agree to the arrangements which have been suggested, and to obtain from
Parliament at its approaching session the Dominion legislation necessary to give effect
to such arrangements. Or, if the Dominion Government is not willing to agree to the
arrangements suggested, my Government would be glad to be informed wjbiat the best
terms are to which your Government is prepared to agree, for the final settlement of the
question of right, and for the provisional government of the territory in the meantime.
I beg to remind you once more that since the award, no terms have ever been proposed
to this Government with reference to either matter, unless it may be in the informal,
and so far nugatory, negotiations which have recently taken place with the Attorney-
General.

I beg also to renew the request made in a former despatch, but not hitherto noticed
by your Government, for information as to the transactions of your Government with
respect to the disputed territory since the date of the award. What my Government
desire to have is, information of all transactions with respect to the timber and lands
respectively, including copies of all grants, licenses, permits, regulations, instructions,
letters, documents and papers of every kihd relating to the same. This information my
Oovemment submit that they are entitled to receive, whether there is to be a provisional
arrangement or not.

It has recently been stated in the public journals that the Federal Government had
assumed authority to grant to the Pacific Railway Company land for their line of road
through the disputed territory, and for timber purposes, a breadth of twenty miles on
each side of this road throughout its whole length. No communication on the subject



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 80 of 86)