Arrow River & Tributaries Slide & Boom Company Ltd v Pigeon Timber Company Ltd,

• Judge: Smith J.,Lamont J.,Anglin C.J.C.
• Date: 15 March 1932
• Docket Number: Case No. 2
• Court: Supreme Court (Canada)

Canada, Supreme Court.

Case No. 2

Re Arrow River & Tributaries Slide & Boom Co. Ltd.

Plea of Non-Discrimination — Operation of Treaties.

Treaties — Operation of — Non-Discrimination against Aliens.

Treaties — Interpretation of — Miscellaneous — Meaning of the Expression “Free and Open.”

International Law — Relation to Municipal Law — Effect of Treaties which have not been made Part of Municipal Law — Rights of Individuals under Treaties — Construction of the Ashburton Treaty of 1842 between Great Britain and the United States — Interpretation of the Term “Free and Open”— Non-Discrimination against Aliens (Note).

The Facts.—The appellants, a company incorporated in Ontario, had constructed certain works for facilitating the passage of timber in the Pigeon River, which is a boundary river of Canada and the United States. By Article 2 of the Ashburton Treaty of 1842, which fixed the boundary line, it was provided “that all the water communications, and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the citizens and subjects of both countries.” The Treaty had never been made part of an Imperial or Canadian statute.

The Company constructed in the Canadian half of the Pigeon River certain works designed to facilitate the floating of timber, and applied to a judge in Ontario, in accordance with Section 52 of the Lakes and Rivers Improvement Act of that Province, to approve a scheme of tolls for the use of these works. The respondents, who were engaged in the timber industry on both sides of the frontier, denied that any tolls could be levied and maintained that Section 52, being contrary to the Treaty, was invalid.

Held, reversing the decision of the Supreme Court of Ontario and restoring the decision of the Judge in Chambers: that Section 52 of the Act, although running contrary to the provisions of the Treaty, was valid. The Court said (per Lamont, J.): “In my opinion the treaty alone cannot be considered as having that effect. The treaty in itself is not equivalent to an Imperial Act and, without the sanction of Parliament, the Crown cannot alter the existing law by entering into a contract with a foreign power. For a breach of a treaty a nation is responsible only to the other contracting nation and its own sense of right and justice. Where, as here, a treaty provides that certain...