Testimony. in Re the Livingstone Channel

INTERNATIONAL JOINT COMMISSION TESTIMONY. IN RE THE LIVINGSTONE CHANNEL ON THE REFERENCEOF THE GOVERNMENTSOF THE UNITED STATES AND THE DOMINION OF CANADA UNDER ARTICLE IX OF THE TREATY OF FAY 5, 1910 WASHINGTON GOVERNMENT PRINTING OFFICE 1913 INTERNATIONAL JOINT COMMISSION. UNITEDSTATES. CANADA. 3AMES A. TAWNEY, Chairman. TH. CHASE CASGRAIN?Chairman. FRANK S. STREETER. HENRY A. POWELL. GEORGE TURNER. CHARLES A. MAGRATH. L. WHITEBVSBEY, Secretary. LAWRENCEJ. BURPEE,Secretary. 2 QUESTIONS REFERRED, “1. Under all the circumstances and conditions surrounding the navigation and other uses of the Livingstone and other channels in the Detroit River on either side of the international boundary, is the erection of any dike or other compensatory work deemed necessary or desirable for the improvement or safety of navlgation at or in the vicinityof Bois Blanc Island inconnection with rock excavation and dredg- ing in Livingstone Channel authorized by the rivers and harbors act of June 25,1910 (36 Stats., 655), and described in House Document No. 676, Sixty-first Congress, second session, sundry civil actof June 25, 1910 (36 Stats., 729), sundry civil actof March 4, 1911 (36 Stats., 1405), of the United States, andnow being carried out by theGovern- mytof the United States? 2. If in answer to question 1 any dike or other compensatory works are found to be necessary or desirable, will the work or works proposed by the United States and provided for in therivers and harbors actofJune 25,1910 (36 Stats., 655),and located 80 as to connect thenorth end of Bois Blanc Island to the southeast end of the existing cofferdam on the east side of Livingstone Channel o posite and below Stoney Island, be sufficient for the purpose; and if not what adgtional or other dikes or compensatory works should be constructed and where should they be located in order to serve most advantageously the interests involved on both sides of the international boundary? ” 3 THE LIVINGSTONE CHANNEL. The commission met in the Federal Court Building, cityof Detroit, at 10 o'clock a. m., February 17, 1913. Present: James A. Tawney (presidin ) ; Th. Chase Cas ah, I(. C: Frank S. Streeter; Henry A. Powell, Z! C.; Charles A. &path, and George Turner. L. WhlteBusbey and Lawrence J. Burpee, secre taries. APPEARANCES. Forthe United States: Reeves P. Strickland,assistant to the Attorney General of the United States. For Canada: W. R. White, K. C.; Charles S. MacInnes, K. C. For the Province of Ontario: G. Lynch Staunton, K.C. For the town of Amherstbur : F. A. Hou h. For the Windsor & Detroit Egerr Co.: A. 53 . Bartlett. For the count of Essex: F. D. savis For the towns1 ip of Malden: J. H. Rddd. For the DominionMarine Association andshipping interests of Canada : Francis King. STATEMENT BY TEE CHAIRMAN. Mr. TAWNEY(chairman). Beforeproceeding withthe business before the commission at thismeetin it may be of interest,and ospibly instructive, to briefly state tge origin and purpose of the fnternationalJoint Commission, andthe scope of Its power and jurisdiction. ' The people inhabitingthis continent have the same common fountain of law,the same traditions, and similar institutions of government, but they live under two distinct and separate govern- mentaljurisdictions. They are responsible and owe allegiance to twoseparate and distinct sovereignties-Great Britainand the United States. The line that marks the boundarybetween these two governmental 'urisdictions extends across the continent, from the Atlantic to the bacific, a distance of more than 3,500 miles. At least 2,000 miles of this boundary is marked by navigable and nonnavigable waters, with anaggregate population inhabiting the shores of thesewaters of , a proximately six and a half millions of . These waters are tR e common property of the people of bot !rplecountries. The right to their use for sanitation and domestic purposes, for navigation and irrigation, for power purposes, or for any other lawful purpose is a right which the inhabitants of the two countries enjoy in common. In the exercise of this common propepty right, or in the use of this 5 6 THE LIVINGSTONE CHANNEL. common property, controversies between theinhabitants of the United States and Canada have arisen in the past, are now and as the demand for usethe of these boundary waterspending,or these purposes increases with the increaseof population along the boundary, these controversies will continue to arise and increase innumber. Then, too, other questions of difference between these two Govern- ments, due to the close industrial and commercial relations existing between them may, and naturally will, occasion controversies of a more or less serious character with no othermeans for their peaceable settlement than that afforded by the ordinary diplomatic channels which experience, during the last century has proved dilatory and unsatisfactory,and in thesettlement of these controversies the inhabitants of neither country have had an opportunity to person- ally appear and resent their side of the controversy. Actuated by tE at spirit of pro ress, that sense of fair dealing, and the desire to peaceably settle as" 1 international controversies which hascharacterized the Anglo-Saxon race formore than a centur , Great Britain and the United States negotiated andproclaimed t e treaty of January 11, 1909, for thepurpose of creating aninter- z nationaltribunal before which boththe Governments and the inhabitants of the two countries might a pear and make a plication for the ap roval by this international tnpb una1 of conternpf ated pro- jects for t {e use of these boundary waters; affording also to those on the other side of the line affected in'unously or otherwise by such proposed use, the right to appear andi) e heard withreference to such roposed a proval. To carry out this purpose and to make the tri- {una1 an e% cient international organization for the settlementof such controversies as I have referred to, the two Governmentsby this treaty clothed this tribunal with judicialpower and ha1jurisdiction in certain cases, andwith investigative jurisdiction only, in other ide this commission as well as the inhabitants of both cases.countries, To t 8"e treaty not only defines the jurisdiction of the commission but also defines what are boundary waters, as follows: For the purpose of this treat boundary waters are defined as the waters from the main shore to main shore of tie lakes and rivers and connecting, waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary. Recognizing that water is probably the greatest asset possessed by any country; that the important chain of watersthus defined as boundary waters are the common pro erty of both Canada and the United States, and that the right to tff eir use is a right enjoyed in common by the inhabitants thereof, and that the hghest form of development cannot be had in either country without the full and pro er cooperation of the other, the two Governments in Article I11 of t!i is treaty have a that no further obstruction or diversion of thesewaters should except upon authoritythe of the UnitedStates or of of Canadawithin theirrespective jurisdictions, and then only with the approval of this International Joint Commission, which commission does not represent either the Government or the people on either side of the boundary alone, but represents both Governmonts and the people of both Governments THE LIVINGSTONE UHANNEL. 7 as such.The first paragraph of thearticle referred to reads as follows: It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the partieshereto, no further or other uses or obstructions or diversions, whether temporary or perma- nent, of the boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the otherside of the line, shall be made except by author- ity of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission. The two Governments, recognizing their independent jurisdictions within their own territorial limits and the right of either to permlt the construction and maintenance within theirrespective jurisdlctlons of any remedialor protective works or any dams or other obstructions . of waters flowing from boundary waters or in waters at a lower level than the boundary in riversflowin across the boundary, which might raise the level of waters on the ot er side of the boundary, expressly provided by Article IV of the treatya thatsuch remedial or protective works or dams should notbe permitted on either side of the line without the a proval of the International Joint Commission, and for that, pur ose t!i ey agreed to Article IV, the first paragraph of which reads as Pollows: The High Contracting Parties agree that, except in cases provided for by special agreement between them, they will not permit the construction or maintenance on their respective sides of the boundar of any remedial or protective works or any dams or other obstructions in waters lowing from boundary waters or in waters at a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless the construction or maintenance theroof is approved by the aforesaid International Joint Commission. In order that the questions raised under Articles I11 and IV might be finally and conclusively dis oscd of by the International Joint Commission, the treaty provi cpes that t,he commission shall have jurisdiction over and pass upon allcases involving the use, obstruction, or diversion of the waters with respect to which under Articles I11 and IV of the treaty the approval of the commission is requlred, and that a.

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