From Chicago to the Sea

(By Canadian Consent)

BY BERNARD K. SANDWELL

THE current discussions of the proposed St. Lawrence route from the Great Lakes to the sea make it imperative for Americans to take account of the Canadian attitude toward this problem. Of that attitude this paper aims to give an unbiased expression.

I

The construction of a twenty-sevenfoot waterway from the harbor of Montreal, the present head of ocean navigation in the St. Lawrence, to the great inland water system of Lakes Superior, Michigan, and Huron is an undertaking which seems to offer a prospect of reduced shipping costs between the Atlantic Ocean and a very large area of inland North America, and which therefore is of the greatest interest both to the United States and to Canada. For certain sufficiently obvious reasons, its immediate interest is much greater to the United States than to Canada. The population, wealth, and commerce of the territory which would be affected are much greater in the United States; the existing railways which might, for a time at least, be detrimentally affected by water competition are much less able to stand that competition (being much more dependent on a large volume of through traffic) in Canada, and one of them is actually owned by the Canadian people, who have to make up its deficits out of taxation; and among the people of Western Canada at least there is a belief that the Dominion possesses an alternative outlet to the Atlantic in the shape of the Hudson Bay route which would perform for the West the same service as the St. Lawrence waterway, almost as efficiently, and at a vastly lower capital cost.

The West is determined to have the Hudson Bay route tried out, and progress in that direction is going on, slowly but steadily. Until it has proved a failure (if such it is destined to be), it will be difficult to get the West profoundly interested in the St. Lawrence proposals. The East does not believe in the Hudson Bay route, on climatic grounds, and is therefore more open to consider the St. Lawrence proposals with a friendly eye; but the question in both Ontario and Quebec is complicated by hydroelectric power developments which, on a vast scale, are an inevitable part of the navigation improvement scheme.

The cheapest part of the available power is in that portion of the river which lies between Ontario and the State of New York, each of which would be entitled to one half of the power produced. New York could easily absorb this power as soon as the turbines are installed; Ontario could probably absorb her share with a little manipulation. But the more expensive part of the available power belongs wholly to the Province of Quebec, and there is no desire for its early development, there being no serious shortage of power in the province at present and several other and cheaper sources being still unutilized, while power is actually being exported on a considerable scale to Ontario. Add to this that a large number of lake harbors in Ontario cherish the dream of becoming ocean ports like those of Quebec as soon as the waterway improvements are completed, and it is not surprising that there is much more favorable opinion about the proposals in the inland province than in the one which is already situated on a great ocean highway. In both provinces there is some apprehension lest, as a result of the constitutional situation later to be described, the control of these immense quantities of power should be exercised by the Dominion Government, instead of the provincial governments to which they would unquestionably belong if they were not mixed up with a navigation enterprise.

There is thus in Canada very little that could be described as an actual demand for the early construction of the proposed deep waterway from Montreal to the Upper Lakes. There is, on the other hand, no desire to place unreasonable obstructions in the way of the United States if it desires to effect this improvement, which one of its political parties holds out as an important means of remedying the position of the American agriculturist, and on which the candidate of the other political party professes an open mind. The improvement cannot be effected without Canada’s consent, for part of the channel to be improved is international between the countries and part is wholly Canadian. The prevalent Canadian attitude may be quite accurately described as a willingness to coöperate in the work, provided that the terms agreed upon are satisfactory. There is, however, among thinking Canadians a distinct apprehension lest, when the actual terms come to be discussed, Canada may find herself regarded in the United States as being simply obstructionist, when in her own opinion she is doing no more than insisting upon points which she considers essential to her national interests. Up to the present time there has been no discussion of terms, except that the International Joint Commission has adumbrated certain principles as to the distribution of costs; but the distribution of costs is not the subject upon which difficulty is likely to arise.

II

The first of the possible subjects of difficulty is as to the nature and tenure of the rights which the United States is to enjoy in those portions of the waterway which are purely Canadian. For while politically the waterway consists of two entirely separate portions, one international and one Canadian, it is impossible to regard it economically as anything but a single unit. From Montreal to the vicinity of Cornwall (Canadian side) and St. Regis (American side), the river is in Canadian territory; from St. Regis to Lake Ontario it runs between Canada and the United States. A deep waterway from Lake Ontario to St. Regis is a physical and political possibility, but economically it is meaningless. To have any economic value it must continue from St. Regis to Montreal; and the ships of both the nations which use it from Lake Ontario to St. Regis must have the right to use it from St. Regis to Montreal, or it will have no economic value to the nation whose ships are stopped at St. Regis. Now the St. Lawrence River is by treaty open for commerce to the shipping and citizens of the United States in perpetuity; and many people appear to believe that this ancient treaty (of Washington, 1871) is all that is needed for the situation that will arise in connection with a joint canalization of the river.

But this is not quite so clear. The St. Lawrence cannot be navigated in an upward direction without the aid of canals, in both the Canadian and the international portions. The perpetual rights of the United States do not extend to these canals in Canadian territory, which are dealt with by a separate clause of the Washington Treaty, and are subject merely to an agreement by the British Government to ‘urge’ upon the Canadian Government the admission of American shipping and citizens on equal terms with those of Canada. This admission on equal terms has been, in fact, granted ever since the Washington Treaty was signed, and one regulation imposed by the Canadian Government was withdrawn (under some pressure) because the United States Government represented that it was contrary to this equality, although the Canadian Government maintained that it was not. But at no time has it ever been suggested that this admission of American shipping to Canadian canals was obligatory upon Canada; and in the controversy over the regulation just mentioned it was explicitly claimed by Canada and admitted by the United States that it was not. The United States therefore enjoys no perpetual right of access except to the St. Lawrence itself, excluding its canals, without which it is not navigable except in a downward direction and at some risk. The present admission of American shipping to the Canadian canals is dependent on the good pleasure of Canada, and could be suspended without any other consequence than the suspension by the United States of Canadian access to the canals owned by the various states adjacent to the river and the Great Lakes.

Any treaty, therefore, which, in consideration of American participation in the task of improving the waterway, should grant to American shipping and citizens any right to navigate the newly canalized main channel and the new and deeper side canals of the St. Lawrence under Canadian sovereignty would be establishing a new and most important servitude over a portion of Canada’s territory. The feeling of the Canadian people upon this subject is forcibly expressed in both the majority and the minority reports of the Canadian National Advisory Committee, issued in January of this year. The former declares in set terms that ‘in the event of a new treaty being negotiated, the United States should not be given any greater rights than obtain in existing treaties’; while the latter, assuming that a treaty will be necessary, says that ‘this treaty, as regards the international navigation features of this project, should extend no further or greater rights than those now assured to the United States under existing treaties.’

Yet it is somewhat difficult to see how the United States can be expected to spend a large sum on the improvement of the waterway, and to build up a system of deep harbors and the equipment for a huge commerce in its Lake ports, with no guaranty that the essential link between this inland system and the ocean will be left open to it in perpetuity.

The Canadian people are undoubtedly reluctant to accept the establishment of this new servitude over their own national waterway between St. Regis and Montreal. But, despite the protests of their National Advisory Committee, they would probably be willing to accept it if they could obtain in return certain equally perpetual or durable guaranties from the United States on certain other heads. Unfortunately the subject upon which they most need guaranties is one which it is beyond the constitutional power of the United States to deal with. Unlike the central government of the Dominion of Canada, which is vested with special power to legislate for the implementing of any treaty, whether the subject matter of the legislation be otherwise within the competence of the Dominion or not, the Government of the United States cannot override the sovereign powers of the individual states even for the purposes of implementing a treaty. The United States can make a treaty, but unless the subject matter of that treaty be within the scope of the federal power, it cannot legislate to carry it out. Canada can make a treaty, and the legislation necessary to carry it out becomes within the scope of the federal power because it is a treaty.

The country which negotiates a treaty with the United States is somewhat in the position of a man who, as the stock market puts it, buys into a lawsuit. It does not know what its rights are going to be until the Supreme Court of the United States has told it. There is, for instance, a strong body of legal opinion which holds that some of the powers conferred on the International Joint Commission by the United States Government under the Treaty of 1909 are in violation of the rights of the sovereign states, and therefore invalid; in other words, that in making that treaty the United States bit off more than it was constitutionally empowered to chew. The question has not yet been officially raised; but it is an open question, which may be raised at any time in the shape of a refusal by some state to obey the orders of the Commission; and until it is raised and settled, the value to the other contracting party (Canada) of the obligations undertaken by the United States necessarily remains somewhat uncertain.

III

The points upon which Canada most urgently needs guaranties from the United States are those which relate to the more extreme forms of exercise of the sovereign power by states adjoining the international boundary. The diversion of water from the Great Lakes watershed, while it may or may not have been a serious detriment to Canadian navigation, is obviously capable of becoming so. But it is practised by the sovereign State of Illinois, with which Canada can have no diplomatic relations; and the power of the United States Government to control it (if any) rests entirely upon the accidental circumstance that it affects American navigation.

There is grave fear in Canada that this principle of state sovereignty will be found to prevent the effective fulfillment by the United States of some of the obligations which it may undertake under the proposed new St. Lawrence Treaty. The power plants in connection with the waterway, for instance, will be some of them in Canada and some in the State of New York. If they are in Canada, there is no question of the authority of the Dominion Government to do with them whatever it has undertaken to do by its treaty with the United States. If they are in the State of New York, it is highly doubtful whether the United States Government can do anything about them whatever; for they have nothing to do with navigation, and water power is a state subject. It is perhaps not even certain whether the United States can guarantee to Canada the enjoyment of her half of the electric power developed in the International Section; for if the turbines producing the power are mainly in the State of New York, and more than one half of the power is thus produced in that state’s territory, it is readily conceivable that the state might forbid its export and the United States be unable to override the prohibition.

The situation of the Canadian provinces toward their central government and any power with which it may make a treaty is the precise opposite of this. The American states run no risks in any treaty negotiations by their central government; if that government goes beyond its rights and promises what it cannot deliver, it is not they, but the foreign power, which loses. The Canadian provinces, on the other hand, may in the making of a treaty find themselves deprived of large areas of authority which under any other circumstances would be definitely theirs under the constitution. The Province of Ontario is strongly committed to public ownership in the development of water powers; the Province of Quebec is equally strongly committed to private ownership. Both provinces are determined to maintain their control of water-power development in their own territories and to exercise that control after their own fashion; and both would bitterly resent any assumption by the Dominion Government of authority to determine when and how the St. Lawrence power shall be developed. Yet because of its close association with navigation problems, and because of the essentially international character of those problems, it will be necessary for the Dominion Government to exercise some authority in this sphere. It will have no difficulty in obtaining that authority, but it will obtain it at the expense of the provinces, and a certain amount of friction is practically inevitable. The two provinces, it must be remembered, contain between them nearly two thirds of the population of the Dominion.

If the United States finds it necessary to ask that Canada shall concede any new rights concerning navigation in the canals of the Canadian portion of the St. Lawrence, it would help materially in winning over Canadian opinion if this concession could be represented in any other light than as being purchased for cash — that is, as a consideration for American expenditure on the improvement of the route. There is something particularly undignified about the sale of portions of the national sovereignty for a mess of pottage.

There is talk of the United States constructing a navigable channel from the Gulf of Mexico to the Upper Lakes by way of the Mississippi and the Chicago Drainage Canal. In its international political character, this canal would not differ from the improved St. Lawrence.

The St. Lawrence is an essentially artificial waterway from the ocean to an inland international water system, through a stretch of purely national water — the St. Lawrence and its canals between Montreal and St. Regis. The Mississippi-Great Lakes route would be an artificial waterway from the ocean to the same inland international water system through a stretch of purely national water — the Mississippi and the Chicago Canal. The only difference between the two is that in the St. Lawrence the national stretch is shorter (which is obviously of no importance) and the task of artificial improvement is not confined to the national stretch, but extends to part of the international water. In international law the two situations are identical. If a formula could be devised by which the admission of American commerce to the national Canadian canals would appear as being due, not to the cash expended by the United States on certain stretches of navigation which are also open to Canadians, but rather to a general principle which would admit Canadian commerce to the Mississippi-Great Lakes route if and when it is opened (on terms of a reasonable and proportional contribution for the use of it), the cash-and-carry aspect of the transaction would be much modified. This would be no more than the mutual acceptance by the United States and Canada of the principle of freedom of navigation of international waterways laid down by the Congress of Vienna, as expounded by an American authority.¹ Canada would certainly be willing to accept this principle if the United States would do the same.

1. P. M. Ogilvie, International Waterways, New York, 1920, page 156: ‘Improvements which extend the navigable course of a river, wholly within the jurisdiction of one state, into the domain of an adjacent state will warrant the establishment of international rights, notwithstanding the indisputable national character of the river before the improvements were completed. The claim of international rights on an inland waterway may arise or lapse at any time.’↩