The LORD PRESIDENT.-That is provided in the agreement. They reserve their rights. Sir MONTAGUE SMITH.-So that it cannot affect the relations of Ontario with the Dominion. The question before us is simply between the two provinces. Mr. MCCARTHY.- I do not so understand it. If your Lordships fix the boundary, it does fix the boundary of Ontario for the purposes of the Dominion as well as for the purposes of the Province. Sir MONTAGUE SMITH.-I did not understand that. Mr. MCCARTHY.-Oh, yes, my Lord, we are all agreed about that I think. Sir BARNES PEACOCK.-I think it is stated somewhere that no question between Ontario and the Dominion shall be affected by our decision here. Mr. Mc CARTHY.-That is in the agreement between the two provinces. The two provinces came to a certain arrangement, and in order to prevent there being any question about it, we put in a clause stating that it was not to be presumed that the agreement between us was to affect any questions between the Dominion and Ontario, and reserving the rights of Ontario as to the same. The LORD CHANCELLOR.-Then is it agreed between you both, that both are to be bound by our decision? Mr. MOWAT.-Yes, both have agreed to be bound by your Lordships' decision. Is it your Lordships' wish that I should now address myself to the point whether Sir BARNES PEACOCK.-The point whether the award is conclusive. Mr. MOWAT. If your Lordship pleases. The LORD CHANCELLOR.-But is it convenient at this point to hear the learned counsel for the Dominion? Mr. MOWAT.--One question put to your Lordships is whether the award is valid? The LORD CHANCELLOR.-Quite so; but if the counsel for the Dominion wants to add anything, of course this is the right time. We have intimated however, that until we hear something on the other side, there is a prima facie case made out to shew that legislation was necessary in order to make the award binding. Mr. ROBINSON.-I do not know that I have anything to add. I think it will be waste of time after the intimation your Lordships have given. Mr. MOWAT. It seems to me, my Lords, that there is a good deal to be said in favour of an opposite view. The LORD CHANCELLOR.—Then we will now hear it. Mr. MOWAT.-Very well, my Lord. I think I can satisfy your Lordships, independently of any statutory enactment, that provinces situated as these provinces are have a right to enter into an agreement for settling boundaries between them, and that such an agreement is binding without any legislative action. The LORD CHANCELLOR.-But here, first of all, the question is not independent of any statutory enactment, and, secondly, in determining whether the award, as it has been made, binds, we must see what the agreement was. Mr. MOWAT. Of course. Then, my Lord, perhaps I may address myself to the point, first, as to what the agreement really was-whether it was that the award should be binding, if the Governments had the power to make it so, without legislative sanction; or whether, though the two governments may have had this power, it was not intended to exercise it, and the award to be binding was to require legislative sanction. Addressing myself to the former point, I ask your Lordships' attention to the terms of the two Orders in Council. The Order in Council passed in the Dominion and the Order in Council passed in the Province are identical, Now, what is it that these Orders in Council agree to? I assume at present that the two governments had the power of referring the matter to arbitration, the legal power of referring it if they chose to do so, and I will say something subsequently, if your Lordships permit me, to prove that they had the legal power. Assuming now that they had power to bind both governments, and I say that that is the effect of what they did, what is the agreement between them as it is expressed in these Orders in Council;* as it is expressed, first of all, in the Order in Council at page 7, and expressed also in the subsequent Orders? The LORD PRESIDENT.-The one at page 7 is a report. Mr. MOWAT.-Yes, but that is the form in which our Orders in Council are always drawn-a report to the Council, approved by the Committee of Council, and by the Governor. Lord ABERDARE.-There are Orders in Council given on the next page. page 8. Sir MONTAGUE SMITH.-That at page 7 is the report. Mr. MOWAT.-Your Lordships may take it in this way. First there is the report, and then there is the Order in Council adopting the report. In effect therefore when a report of this kind is made and it is adopted by an order, then the recommendation so adopted becomes the Order in Council. What is it then that the Province and the Dominion agree to? It is that"The determination "—that is the word used-" the determination of a majority of such referees should be final and conclusive upon the limits to be taken as and for such. boundaries as aforesaid respectively." I say that by the interpretation which my learned friends place upon this. language, the award is not "final and conclusive;" the award is to be no. determination;" it is not a "determination " in the slightest degree. The LORD CHANCELLOR.-But you must read that with the next sentence. "The undersigned recommends that the Province agree to concurrent action with the. Dominion in obtaining such legislation as may be necessary for giving binding effect to the conclusion which may be arrived at, and for establishing the northern and western boundaries of the Province of Ontario in accordance therewith.” What that sentence was intended to provide was in addition to what had been agreed to by the previous sentence. By the previous sentence the award is to be final and conclusive, and by the following sentence any legislation that may be necessary for giving to the award binding effect is to take place. Observe the language: "The undersigned recommends that the Province agree." It was the Government-the Lieutenant-Governor in Council-that was agreeing, and "the Province" means the whole people through its representatives in the Government. The agreement I submit to your Lordships to have been, that by this Order there was a binding obligation on the Province to concurrent legislation with the Dominion, as on the other hand, according to the Orders in Council of the Dominion, there was a binding obligation on the Dominion to concurrent legislation with the Province. The LORD CHANCELLOR.-But what of the words "for giving binding effect to the conclusion." The Orders referred to are:-Report of Hon. Adam Crooks, 10th November, 1874, cited ante, p. 7; Order in Council (Ont.,) 25th November, 1874, referred to ante, p. 8; Order in Council (Can.,) 12th November, 1874, cited ante, p. 8; and the subsequent Orders in Council of the Province and Dominion respectively, dated 31st July, 1878, printed ante, p. 10, notes † and ‡. Mr. MOWAT. That expression was used because it was matter of dispute whether governments had the power of acting in such a manner without legislation. I have to satisfy your Lordships that the governments intended that the award should be final and conclusive if they could make it so. It was a question whether they could make it so or not, or whether without legislation the award might not be binding upon the governments, and yet perhaps not binding for all purposes without legislation; whether the award, for some purposes, might not require legislation by the Dominion and Ontario Parliaments, or by the Imperial Parliament. There had been a controversy as to the boundary between the Province of Canada and the Province of New Brunswick many years ago; and in that case an Imperial Act had been passed to give effect to an award made on a reference by the two provincial governments. There being that question, both governments in the present case did all they could by their agreement to make the award final. It would have been a perfectly idle thing, in a great controversy like this, to leave the question to arbitrators if the award was to have no binding character at all. The arbitration in that case would be perfectly nugatory. An arbitration would not advance us one single step towards a settlement. Everybody must at the time have seen that, and everybody must see it now. The LORD Chancellor.-The reasonable intention of this clause about legislation was that the legislation should take place before the award was known, was it not? Mr. MOWAT.-My own notion was, that that would be the better course, and I manifested that opinion afterwards by getting an Act passed by the provincial legislature in advance of the award, but the Dominion did not take the same view. The LORD CHANCELLOR.-Have you evidence that attempts were made to get legislation when it might have been a matter of common consent? Mr. MOWAT.-No such evidence appears. The extent of territory which was then in question was very large. The Dominion had been claiming as part of Ontario, before the settlement with the Hudson's Bay Company, nearly one million square miles instead of the 100,000 which the arbitrators have given us. The LORD CHANCELLOR.-Both parties seem to have been willing to take their chance, and when that happens it is very natural that each should be willing afterwards to use his power to recede from the agreement if he could. Mr. MOWAT. That I hope is not the legal effect of the language employed, for it certainly was not what was intended by the two governments at the time. There has since been a change of government in the Dominion, and different views are entertained by the present government from those which were entertained by the government in power when the agreement was made. We did not at all suppose that the effect of the reference to future legislation was anything more than to make it as obligatory as the governments could possibly make it that the award should be conclusive. In the first place they agree in so many words that it shall be final and conclusive; they do not say that any legislation shall be necessary, and there is no provision for any legislation beyond what is absolutely "necessary." Whatever could be shewn to be necessary was to be done. The language is this: "The province agrees to concurrent action in obtaining such legistion as may be necessary, for giving binding effect;" but if no legislation was necessary for giving binding effect, neither, under this stipulation, could ask for legislation. It was only if it should appear that legislation was necessary that legislation should be had. By the terms of the agreement, "the Province” and “the Dominion" were agreeing to be bound; not merely the governments. By the Ontario Order in Council, so far as the government could bind, the Province was to be bound; by the Dominion Order in Council the Dominion government was to be bound. What I urge upon your Lordships is that the agreement about legislation is an additional stipulation, and not a qualifying stipulation. Sir MONTAGUE SMITH.-Do you argue that legislation was not necessary? The LORD CHANCELLOR.-It is difficult to separate the two arguments, as to. what they intended to do, and what they could do. Your proposition is that the Governor in Council could alienate the territory of Ontario, or of Canada? Mr. MOWAT.-No, my Lord, I do not go so far as that. The LORD CHANCELLOR.-Surely it is necessary for you to say so. Mr. MOWAT. That is the way the Dominion government argues against us. in one of the printed despatches. The LORD CHANCELLOR.-And without even an Act of the provincial legislature? Mr. MOWAT.-But I think I have authority against that view. If your Lordship will permit me to say so, I think I have direct authority that a settlement of boundaries between provinces is not to be regarded as an alienating of territory by the one to the other; that if two provincial governments enter into an agreement for settling boundaries, it is no answer to the binding character of that agreement to suggest that it may involve an alienating of part of the land: it is the Crown in the one case and the other. The LORD CHANCELLOR.-How does the Governor in Council get his power? Mr. MOWAT.-My authority for it is the case of Penn v. Lord Baltimore. The LORD CHANCELLOR.-I know the case. There were two individual proprietors, under grant from the Crown, of two provinces in North America, and they made a private contract between themselves as to boundaries, and there the English Court of Chancery did have jurisdiction. Mr. MOWAT. Yes, my Lord. In the Appendix we have printed in full the charters under which Lord Baltimore and Mr. Penn and their associates acted and entered into that agreement. The LORD CHANCELLOR.-But there it was a mere question of private rights. The whole of the territory was under charter. Mr. MOWAT. But it was not a mere question of the ownership of land; it was a question whether the territory was within the one province or the other. The LORD CHANCELLOR.-How could the English Court of Chancery have. any jurisdiction as to the matter except upon the footing of private rights? Is it not quite clear that it was only on that footing that the court assumed jurisdiction? Mr. MOWAT. That court assumed jurisdiction in a matter that involved. government, and legislation as well. The LORD CHANCELLOR.-You may say that that was the consequence of what. the court did; but if you cite this as an authority you must take it as you find it. Lord Hardwicke as Lord Chancellor of England, in a suit in the Court of Chancery, treated the agreement as a contract between private persons to be enforced by the Court of Chancery on the principle of compelling people to act conscientiously in the fulfilment of their contracts-upon the principle that the court acted in personam and not in rem. Mr. MOWAT.-Yes, my Lord; and it was in that way the court was able to. give effect to the agreement, but the first thing that had to be done was to consider whether the agreement was a binding agreement or not. The LORD CHANCELLOR.-But you cannot take this as a public authority. Mr. MOWAT.-The case of proprietary governments I submit bears a very strong analogy to the present. Lord ABERDARE.-You say you are going to prove that two provinces. can settle their own disputes without the interference of the Dominion parliament? Mr. MOWAT.-Yes, my Lord. Lord ABERDARE.-But is that the question here? Is not the question here whether these two provinces can appropriate certain terri tory that belongs to the Dominion, and does not belong to either of them? Mr. MOWAT.-No, my Lord; we claimed that this territory was ours-was Ontario's and that was the question for the arbitrators. Lord ABERDARE.-The Dominion claims that it is its own. How can you deal with territory claimed by the Dominion on the plea that two provinces with recognized boundaries, and recognized existences, are dealing with each other's territory? Mr. MOWAT.-I spoke of "provinces" in a general way. The question before the arbitrators was not between Manitoba and Ontario, but between the Dominion and Ontario. Sir MONTAGUE SMITH.-That makes it still more difficult, supposing it is an alienation. Mr. MOWAT. But, my Lord, I claim it is not alienation. What the province is seeking is not to alienate from the Dominion. It is as to who shall have provincial jurisdiction-whether the territory shall belong to Ontario or to another province; and it is the Crown in both cases. But the Dominion may itself assign this territory away for that purpose. The LORD CHANCELLOR.-But it seems to me that you are an immense way from your point. That case of Lord Baltimore's I have always understood to rest upon private rights, and it is plainly inapplicable to anything of this kind. The Court of Chancery of England would never have dreamt of assuming jurisdiction to enforce an award of this kind, whether it be properly made or not, and you have to press not merely that the provinces could settle among themselves their boundaries and so on, but that the executive government of a particular Province and the executive government of the Dominion could do it. Mr. MOWAT.--I have to press that no doubt, ànd I certainly think that upon that point Penn v. Lord Baltimore goes a great way as an authority for it. The LORD CHANCELLOR.--And you have to do that in the face of an Imperial Act* expressly saying that they had to do this thing by legislation. Mr. MOWAT. That is going to another point, my Lord. I thought that that Imperial Act* made no difficulty in my way, for this reason. It provides for * IMP. ACT, 34 & 35 VICT., CAP. 28.-THE BRITISH NORTH AMERICA ACT, 1871. An Act respecting the establishment of Provinces in the Dominion of Canada. Whereas doubts have been entertained respecting the powers of the Parliament of Canada to establish Provinces in territories admitted, or which may hereafter be admitted, into the Dominion of Canada, and to provide for the representation of such Provinces in the said Parliament, and it is expedient to remove such doubts, and to vest such powers in the said Parliament : Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act may be cited for all purposes as "The British North America Act, 1871." 2. The Parliament of Canada may, from time to time, establish new Provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order, and good government of such Province, and for its representation in the said Parliament. 3. The Parliament of Canada may, from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby. 4. The Parliament of Canada may, from time to time, make provision for the adminstration, pesce, order, and good government of any territory not for the time being included in any Province. 5. The following Acts passed by the said Parliament of Canada, and intituled respectively, "An Act for the temporary government of Rupert's Land and the North-Western Territory when united with Canada," and "An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to |