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REPORT

OF THE

SELECT COMMITTEE

OY THB

BOUNDARIES

BETWEEN THE PROVINCE OF ONTARIO AND THE UNORGANIZED

TERRITORIES OF THE DOMINION,

WITH APPENDIX.

ORDER OF REFERENCE.

HOUSE OF COMMONS,

THURSDAY, 19th Feb., 1880. Resolved,—That a Select Committee, mposed of

Mr. Dawson,
« Robinson,
" Geoffrion,
• DeCosmos,
« Brecken,
“ Royal,
66 Trow,

Mousseau,

Caron,
" McDonald (Cape Breton), and

« Weldon, be appointed to enquire into, and report to this House upon all matters connected with the boundaries between the Province of Ontario and the unorganized territories of the Dominion, with power to send for persons and papers, and that the quorum of the said Committee do consist of five members.

Attest.

A. PATRICK,

Clerk of the House.

MONDAY, 1st March, 1880. Ordered, That the said Committee have leave to employ a short-hand writer to take evidence before said Committee.

Attest.

A. PATRICK,

Clerk of the House.

WEDNESDAY, 10th March, 1880. Ordered, That Messrs. Ross (Middlesex) and Ouimet bo added to the said Committee.

Attest.

A. PATRICK

Clerk of the House.

REPORT.

The Select Committee appointed by your Honorable House to enquire into all matters connected with the Boundaries between the Province of Ontario and the unorganized Territories of the Dominion, beg leave to submit as their

FIRST REPORT.

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That in as far as their other Parliamentary duties would permit they have carefully investigated the matters reforred to them, and, notwithstanding that the subject is a very wide one, requiring much historical research and consideration, they believe that the documents which they herewith submit, together with the evidence which thuy bave been able to obtain, will serve to convoy to your Honorable House a large amount of valuable information not hitherto brought to general notice.

In the matter of evidence, your Committee only called on those who, from their previous experience and known acquaintance with the subject, were the most likely to give usoful information, and it will be seen that, by means of interrogatories put to the witnesses, the question has been sifted from almost every possible point of viow, and opinions obtained which, coming as they do from eminent Judges of the higher courts, from professional experts in matters of territorial boundaries and counsel learned in the law, will, your Committee feel assured, command attention.

The following were the witnesses examined, namely :1. Lieut.-Col. J. S, Dennis, Deputy Mioister of the Interior, formerly Surveyor

General 2. Mr. Lindsay Russell, Surveyor-General. 3. Hon. David Mills, M.P. 4. Hon. D. A. Smith, M.P., formerly Governor of the Honorable Hudson's Bay

Company's Territories. 5. Professor Robert Bell, of the Geological Survey. 6. Hon. F. G. Johnson, Judge of the Superior Court of Quebec, at one time

Recorder of Rupert's Land and Governor of Assiniboia. 7. Thomas Hodgins, Q.C., Counsel for Ontario. 8. Hon, T. K. Ramsay, Judge of the Court of Queen's Bench, Quebec. 9. Hon. J. D. Armour, Judge of the Court of Queen's Bench, Ontario. 10. Mr. W. Murdoch, Civil Engineer. 11. Mr. P. L. Morin, of the Crown Lands Department, uebec. 12. Hon. William McDougall, C.B. 13. Mr. William McD. Dawson, of Three Rivers, formerly Superintendent Woods

and Forests, for the United Provinces. In considering this question it is necessary to have in view the Act, 14 Geo. 3rd, cap. 83, commonly known as the Quebec Act, 1774*; the Act 31 Goo. 3rd, cap. 31, called the Constitutional Act, 17917; the Act 43 Geo. 3rd, cap. 138, for exiending the jurisdiction of the Canadian Courts to the Indian Territories (see appendix), together with other Acts and commissions, treaties and instructions to Governors, which will be found in sequence according to date from pp. 13 to 27 of the evidence, or in the appendix.

On reference to the evidence, it will be seen that, as regards the western and northern boundaries of Ontario, Judge Ramsay of the Quebec Court of Queen's * Page 15 of Evidence. † Page 18 of Evidence.

Bench, and Judge Johnson of the Superior Court of Quebec, holt that the prolongation of a line drawn due north from the point of ju vetion of the Ohio an i Mississippi forms the western limitary line, and the lleight of Land or the St. Lurrence water-shed, the northern boundary. Judyo Armour inclines to the belief that the Height of Land forms both the western and northern boundaries, but sys in reference to the decision of the Court of King's Bench in tho de Reinbardt case, no doubt about "it, it is a clear decision, and were I deciding it judicially, I would be bound to follow " that decision." The decision to which he refers is in the following words:

FRIDAY, 29th May, 1818. “Chief Justice Sewell. --The Court are most distinctly of opinion, on referring “both to the Act of 1791 and that of 1174, that the argument on the defence must fail. “What was the object of each Act? Amongst others, that of 1774 was to enlarge the “ Province of Quebec, which had been created in 1763. That of 1791 way to separate " or divide the Province of Quebec into two Frovinces, to be denominated Upper and " Lower Canada, and make each respectively independent of the other by giving a " Legislature to each respectively, but still retaining between or within the two Pro"vinces, the same exteni of country, the same space as the one Province contained. "What is the Act? What is its object, its avowed object? To repeal certain parts of “the Act of 1774; and what is the part repealed ? It is that part of it which gives “ authority to the Council of the Province of Quebec; and what is the reason assigned "for so doing? Why, that His Majesty had signified it to be his royal will and pleasure “to divide his Province of Quebec. To assert that he intended by this that the limits “ of the Province should be extended by the separation appears to me repugnant to the “plainest principles of common sense, and therefore I cannot assent to it. The short

history of the Act of 1791 is briefly this: The King signities to Parliament his royal “intention of dividing his Province of Quebec, and he calls on the Legislature to “provide for this alteration by granting an Act adapted to the change. The Legislature pass an Act providing for the due government of the lwo Provinces, and under “the authority of this Act, and the Rɔyal Proclamation, the Province of Quebec was “accordingly divided, the Royal Proclamation being an exercise of sovereign authority. “His Majesty in that Act, by and with the consent of his Privy Council, declared what “ should be the line of separation between Upper and Lower Canada, and how much “of the former Province of Quebec shall belong to the one, and how much to the other. " The object of the Act and the object of the Royal Proclamation are so clearly " expressed that we cannot for a moment doubt upon the subject. What says the Act ? “ His Majesty having been pleased to signify his royal will and pleasure to separate “ and divide the Province of Quebec.' What says the Proclamation? Why, tbe very

same words. To divide the Province of Quebec, not to add to it, any more than to “take away from it. Therefore, Upper Canada, in the purview, could include only " that part of the Province so divided as was not contained in Lower Canada; but it " could not extend beyond these limits which constituted the Province of Quebec, “otherwise it would certainly have been an Act to enlarge, rather than an Act to “ divide. In delivering this opinion I am speaking our unanimous sentiment, for we " have consulted our brother Perrault upon the subject and he clearly concurs with us. “According to our understanding of the Act and the Royal Proclamation, we are bound “ to say that we consider the argument of the gentlemen concerned for the prisoner, “ though presented with great ability and ingenuity, must, fail, because tho western “ boundary of the Province of Upper Canada is a line drawn due north from the confluence of the Ohio and Mississippi Rivers till it strikes the boundary territory “ line of Hudson's Bay.'

“The question of fact will remain with the Jury. It is they who are to say, “ whether this place, the Dalles IS OR IS NOT to the west of the line which we now " declare to be the western boundary of His Majesty's Province of Upper Canala. If they " are of opinion that it is within, or to the east of this western line, then it is in the “ Province of Upper Canada and not within our jurisdiction ; but, if they are of opinion

60

o that it is to the west of this line, then, I am giving you our unanimous opinion when “ I declare that the Dalles are in the Indian Territory, and not within the limits of the Proo vince of Upper or Louer Canada, but clearly within the jurisdiction of this Court, by “ the Act of the 43rd of the King, chapter 138, which extends our power to the trial o and punishment of persons guilty of offences within certain parts of North America.'"

Among the witnesses examined were Lieut.-Col. Dennis, Deputy Minister of the Interior, formerly Surveyor-General, and Mr. Russell, the present Surveyor-General of Dominion Lands, whose opinions, as experts in dealing with matters of territorial boundaries, the Committee considered it desirable to have. Col. Dennis handed in an elaborate paper, which will be found with his evidence annexed, in which he argues that the western boundary of Ontario is the prolongation of a line drawn due north from the junction of the Ohio and Mississippi, and that the height of land forms the northern boundary. Serveyor-General Russell gare the following evidence:

By the Chairman : “17. Having regard to the Act of 1774, commonly known as the Quebec Act, and “ looking at the different rivers and boundary lines as set down on the map recently “issued by the Government of Ontario, entitled “Map of part of North America, “ designed to illustrate the official roports and discussions relating to the boundarios of “the Province of Ontario,” where would you consider the western boundary of the “ Province of Quebec, as constituted by that Act, to have been ?

“ In interpreting the clause of the Quebec Act, which describes the boundary, I " consider that there are two points of view from which the subject may be treated: “first, wbat the describer intended to do; second, what he has actually done.

"From the limited number of possibilities in this case, to select that intention “ which is most probable, is a matter of judgment; what has been done in the descrip" tion is a matter of fact.

“The effect of the description is to make the western boundary of Ontario a line “ duo north from the confluence of the Ohio and Mississippi Rivers.

“The word “northward,” though seemingly lacking in precision, is not really “ indefinite, and admits of no choice in its interpretation; for corresponding to the " assumption of any direction to one side of north, there is an equal and opposite possi

bility on the other side thereof, and the two are mutually destructive. Therefore, by “exhaustive process, “northward,” taken by itself, that is, without other conditioning " or qualifying word or phrase, can mean nothing else than north. In the description “ " under consideration, it stands unconditioned and unqualified.

“If I were asked my opinion as to the intention of the describer, to affirm what he “ intended to do, not what he has done, I should still say that he meant due north. “When it is question of his intent, I consider that, in endeavoring to i nterpret any

i “ certain word or expressiou used by him, due regard should be had to his own phrase“ology and use of words in the rest of the description; further, to the greater or less “ precision of thought, indicated throughout in his dealing with the various circum“stances and conditions of the boundary described.

“ Had it been his intention to define the boundary as extending northward along “the banks of the Mississippi, that idea, I have no doubt, would have been clearly

conveyed, for, in the several instances occurring previously in the description, where “ the same condition had to be expressed, there is no mistiness of definition. For “example he uses the words “thence along the eastern and south-eastern boundary of “Lake Erie.” Again, the words, "following the same bank;" further on, immediately “ before using the word “northward," on the application of which so much turns, ho "employs, when speaking of the Ohio, tho expression, " along the bank of the said “ river, westward;" this last affirmation being one to express a similar condition, with "but a difference of direction, to that which would have obtained had he intended to say," along the bank of the Mississippi northward."

That he should in one sentence so clearly state the special condition under which “ the boundary was to go "westward," and in the very next sentence, while intending

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“ to define an equally restrictive and equally important similar condition, should omit “to use the least word or phrase to specify how the same boundary was to proceed "northward,' I cannot conceive. I am therefore obliged to hold that by northward he " meant north.

“18. Mr. Trow asked whether the word “north ward" might not be held to apply " to the extension generally of the territory in a northerly direction from its southern “ boundary, throughout its entire length in an eastern and western direction ?-Such a “ word can be correctly used in surveying or geographical description, to imply the “ general extension in area, in any given direction from any given limit or boundary, " all along such boundary, but in the case in point, the difficulty would still remain as “ to what should constitute the western limit of such general northerly extension.

“ 19. Mr. De Cosmos asked-Am I to understand that you consider the boundary “ laid down on this map (pointing to a certain line on the map of the Province of “Ontario on the table) the wostera boundary of Ontario ? -I do, if that line is correctly " drawn as the direct prolongation of a line due north from the confluenco of the Ohio " and Mississippi Rivers."

Another expert, Mr. Win. Murdoch, Civil Engineer, was examined and he gave evidence to the samo purport as that of Col. Dennis and Mr. Rissel. (pigo 114). He handed in a document shewing that the Anglican Bishops of Raport's Land have, since 1845, held letters patent, from the Queen, appointing them to the Soe of Ripert's Lund, the southern territorial bɔun larg of which was, in their view, the Height of Land, up to which limit they exercis d ecclesiastical jurisdiction.

Mr. Murdoch also submitted a Proclamation issued by Sir John Coape Sherbrooke in 1816, which was given to him by an Indian Chief who had preserved it carefully.

This Proclamation was issued under the authority of the Act 43 Geo. III, cap. 138, for extending the jurisdiction of the courts of justice in the Provinces of Lower and Upper Canada to the Indian Territories.

And it is of value as shewing that the country to the west of the St. Lawrence water shed, where a sort of private war was then in progress between the adherents of the North-West Company and the Hudson Bay Company's employees, was at that time treated as Indian territory. The Hon. Donald A. Smith, formerly Gevernor of the Hon. Hudson Bay Company's territorios, 19stified that the Height of Land or St Lawrence water-shed was the southern boundary of the territories granted by King Charles II, in 1670, to the merchant adventurors of England trading into Hudson's Bay, and he handed in a copy of the Rɔyal Grant, together with the opinions of eminent counsel, both of the past century and the present, as to the validity of the charter and the territories which it covered, all of which will be found with bis evidence.

Both Mr. Smith and Judgo Johnson gave important evidence in respect to the colony of Assiniboia, which will be noticed further on.

Mr. McMahon, Q.C., who at one time acted as counsel for the Dominion, was not examined because his engagements in important cases before the courts would not admit of his attendance, but his statement of the case and his argument will be found in the Appendix. In these documents he holds that the due north line already referred to, forms the western boundary of Ontario, and the Height of Land the northern boundary.

The Hon. David Mills, M.P., in the concluding paragraph of his work to which he has referred the Committee, defines the boundaries of Ontario as follows:

“The limits of the Province of Ontario, then, are the International Boundary upon the south, westward to the Rocky Mountains; the Rocky Mountains from the “ International Boundary northward to the most north-westerly sources of the Saskat“ chewan; the northern water-shed of the Saskatchwan eastward until it intersects the “ boundary line midway between Lake Winnipeg and Port Nelson, at the mouth of " Nelson River; and upon the north-east, the line already indicated drawn midway “ between the posts held by England and France just before Canada was ceded to

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