Agreement made this third day of December, A.D. 1951,
The Government of Canada, herein represented by the Right Honourable Louis S. St. Laurent, Prime Minister, and the Honourable Lionel Chevrier, Minister of Transport, hereinafter referred to as Canada,
of the First Part,
The Government of Ontario, herein represented by the Honourable Leslie M. Frost, Premier, and the Honourable George H. Challies, Acting Provincial Secretary, hereinafter referred to as Ontario,
of the Second Part;
Whereas the development of the power resources in the International Rapids Section of the St. Lawrence River is urgently required;
Whereas it is intended that the Canadian share of the power to be developed therefrom would be available to Ontario;
Whereas Ontario is desirous of undertaking such development concurrently with the undertaking of a complementary development by an appropriate authority in the United States of America;
And Whereas, by the Boundary Waters Treaty binding upon Canada and the United States of America, it is agreed that further uses of or obstructions or diversions of boundary waters on either side of the line affecting the natural level or flow of boundary waters on the other side of the line may not be made except by authority of the United States or Canada within their respective jurisdictions and with the approval of the International Joint Commission constituted by the Treaty;
And Whereas the Treaty provides with respect to boundary waters:—
“The following order of precedence shall be observed amount the various uses enumerated hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence:
1 Uses for domestic and sanitary purposes;
2 Uses for navigation, including the service of canals for the purposes of navigation;
3 Uses for power and for irrigation purposes.”
And Whereas it is desirable that an agreement should be made between Canada and Ontario concerning the construction, maintenance and operation of works for the development of power in the International Rapids Section subject to and in accordance with Canada’s obligations under the Boundary Waters Treaty.
Now Therefore this Agreement witnesseth that the parties hereto agree as follows:—
For the purposes of this Agreement, unless the context otherwise requires, the expression:—
(a) deep waterway means adequate provision for navigation requiring a controlling channel depth of twenty-seven feet with a depth of thirty feet over lock sills in general accordance with the specifications set forth in the Report of the Joint Board of Engineers, dated November 16, 1926;
(b) International Rapids Section means that part of the International Section which extends from Chimney Point to the village of St. Regis;
(c) International Section means that part of the St. Lawrence River through which the International boundary line runs;
(d) St. Lawrence River includes the river channels and the lakes forming parts of the river channels from the outlet of Lake Ontario to the sea; and
(e) the works means the works described in Article II to be undertaken and carried out by Ontario.
Canada will do all in its power, consistently with its obligations under the Boundary Waters Treaty of 1909 aforementioned and the preservation of the interests of others in the St. Lawrence River, to obtain the approval of the International Joint Commission established under the said Boundary Waters Treaty pursuant to an application to be made by Ontario in a form approved by Canada, of works to develop the power resources of the International Rapids Section of the St. Lawrence River to be undertaken by Ontario concurrently with the undertaking of complementary works by an appropriate authority in the United States of America, in accordance with the plan known as the “Controlled Single Stage Project (238-242)”, containing the features described in the Annex to this Agreement with such modifications as may be agreed upon herein or by Canada and Ontario.
Articles IV to XVI of this Agreement shall not come into operation until the making of an order by His Excellency the Governor General in Council of Canada signifying on behalf of Canada that
(a) the terms upon which the International Joint Commission has approved the works mentioned in Article II of this Agreement for the development of the power resources of the International Rapids Section, including the works to be undertaken by Ontario, under Article III of the Boundary Waters Treaty of 1909 are satisfactory to Canada; and
(b) Ontario has satisfied Canada that it will, concurrently with complementary operations by an appropriate authority in the United States, undertake the construction, maintenance and operation of the works.
Canada and Ontario will cause to be enacted such legislation as may be agreed upon between them as being necessary to authorize and provide fully for the construction, maintenance and operation of the works.
(1) Subject to paragraph two of this Article, Canada will transfer to Ontario the administration of such lands belonging to Canada as are required for the works and such lands shall belong to Ontario.
(2) Ontario will compensate Canada for all lands the administration of which is transferred to Ontario pursuant to paragraph one of this Article other than the lands or property forming part of the existing canal system in the International Rapids Section.
(3) Upon completion of the necessary works to permit the continuance of fourteen-foot navigation on the Canadian side around the control dam and from the pool above Long Sault Dam to connect with the existing Cornwall Canal, as provided in paragraph seven of the Annex hereto, Ontario will transfer to Canada the administration of such works, the sites thereof and such lands belonging to Ontario as are required for the operation thereof, and such works, sites and lands shall belong to Canada.
(4) Ontario will indemnify and save Canada harmless in respect of all claims of third parties in any way arising out of the construction, maintenance or operation of the works, it being understood by the parties hereto that no damages can so arise west of a line drawn due north and south through the most westerly point of Spencer Island and it is agreed that this indemnity clause shall not apply to any claim for any such damages alleged to have been sustained west of the said line.
(1) Ontario will, to the full extent of its ability, concurrently with complementary operations by an appropriate authority in the United States of America, construct, maintain and operate the works in accordance with the terms of this Agreement, and in that respect will carry out and give full force and effect to all or any conditions, provisions or orders imposed or made by or under the authority of the International Joint Commission or by the Governor General in Council of Canada for the protection of navigation or to regulate and control the use of the water of the St. Lawrence River for the works, for the protection of others engaged in the production of power outside the Province of Ontario, and, in the case of any default on the part of Ontario, Canada may, by notice in writing specifying the particulars of the alleged default, require full and complete compliance, within a period or periods named in the notice, by Ontario with its obligations hereunder in respect of which default is alleged, and if the notice is not complied with within the time or any of the respective times so specified, Canada may, subject to paragraph two of this Article, take over or undertake the operation of the works or any part of the works or any construct, maintain and carry out the works, and in any such event the works shall vest in and belong to Canada.
(2) If any dispute arises between the parties hereto as to whether Ontario is carrying out her obligations hereunder or otherwise in any way under this clause, such dispute shall be referred to an arbitral tribunal constituted as provided in Article XIV of this Agreement and, pending disposition by the tribunal of such dispute, Ontario may carry on the construction, maintenance or operation of the works and Canada shall not take over or undertake the operation of the works or any part thereof or the construction, maintenance and carrying out thereof as provided in paragraph one.
Ontario will, at such times and in such manner and form and upon such ratings as may be prescribed by Canada or authorized representatives of Canada,
(a) take and keep records of the flow and water levels in the International Rapids Section and furnish certified copies thereof to Canada;
(b) calibrate or cause to be calibrated its turbines, penstocks, sluices or other water passages forming part of the works.
Canada or authorized representatives of Canada will at all times be empowered
(a) to have free access to the works;
(b) to measure the discharge of the various sluices, turbines, penstocks or other water passages forming part of the works.
Ontario will furnish to Canada such plans, drawings or other information relating to the works as Canada may request from time to time.
Ontario may provide for the enjoyment and exercise by The Hydro-Electric Power Commission of Ontario of any of Ontario’s rights and benefits under this Agreement.
(1) Subject to the provisions of this Article, Ontario will transfer to Canada the administration of any such lands belonging to Ontario as are specified by Canada as being required for the sites of locks and works to carry a deep waterway through the International Rapids Section or for the construction, maintenance and operation thereof and such lands shall belong to Canada.
(2) Canada will compensate Ontario for all lands the administration of which is transferred to Canada pursuant to paragraph one of this Article, other than lands or property of Ontario forming part of or acquired and held by Ontario for the purposes of the works.
(3) Subject to paragraph four of this Article, Ontario will not be entitled to any compensation for lands or property of Ontario forming part of or acquired and held by Ontario for the purposes of the works, the administration of which is required to be transferred by Ontario to Canada pursuant to paragraph one of this Article, and Ontario will not be entitled to claim any compensation for loss or expenses incurred with respect to the works or the maintenance or operation thereof or the distribution of power therefrom arising out of the construction by Canada of the locks or works required for the said deep waterway.
(4) Where Ontario has, before constructing any part of the works, given notice to Canada of the location of that part of the works, if Canada did not before commencement of the construction thereof give notice to Ontario that the lands upon which that part of the works was to be located might be required for the purposes of the said deep waterway and if Canada thereafter requires Ontario to transfer the administration of those lands to Canada pursuant to paragraph one of this Article, Ontario will be entitled to compensation for those lands and the said part of the works and for all loss or expense incurred with respect to the works or the maintenance or operation thereof or the distribution of power therefrom arising by reason of Canada requiring Ontario to transfer the said lands and said part of the works to Canada.
(5) Canada will indemnify and save Ontario harmless in respect of all claims of third parties in any way arising out of the construction, maintenance or operation of a deep waterway through the International Rapids Section.
If the construction by Canada of the locks and works mentioned in Article XI renders unnecessary the construction by Ontario of the works required to permit the continuance of fourteen-foot navigation as described in paragraph seven of the Annex to this Agreement, Ontario will pay to Canada a part of the cost of such locks and works equivalent to the cost of the works that would have been required to be constructed by Ontario to permit the continuance of such fourteen-foot navigation.
Ontario will furnish at cost such power as may from time to time be required by Canada for the operation of the navigation works and for other purposes of navigation in the International Rapids Section.
(1) In the event of Canada and Ontario failing to agree on the interpretation of any part of this Agreement or any matter arising therefrom, either party shall have the right to refer the matter to an arbitral tribunal.
(2) Each arbitral tribunal shall consist of one person chosen by Canada, one person chosen by Ontario and one person chosen by agreement between Canada and Ontario. If they fail to agree, the third member of the tribunal shall be chosen by the Chief Justice of Canada.
(3) Both parties agree to facilitate the constitution and functioning of arbitral tribunals and to accept their decisions.
(4) The procedure in any arbitration under the provisions of this Article will be determined by Agreement between the parties hereto.
Ontario will establish a Commission to supervise the execution of such works as may be appropriate, consistently with the execution of the works, to safeguard and enhance the scenic beauty of and historic associations with the International Rapids Section.
Where by the terms of this Agreement any notice or request is to be given or made by or on behalf of Canada, such notice or request shall be deemed, for the purposes of this Agreement, to be effectively given or made if given or made by the Minister of Transport of Canada to the Provincial Secretary of Ontario, and where by the terms of this Agreement any notice or request is to be given or made by or on behalf of Ontario, such notice or request shall be deemed for the purposes of this Agreement, to be effectively given or made if given or made to the Minister of Transport by the Provincial Secretary or a person authorized by him in that behalf, notice of whose authority has been given to the Minister of Transport by the Provincial Secretary.
This Agreement is made subject to its approval by the Parliament of Canada and by the Legislature of the Province of Ontario. If, however, approval of the works by the International Joint Commission is not obtained within three years from the date of this Agreement either party hereto may, by written notice to the other, forthwith cancel this Agreement.
In Witness Whereof the Right Honourable Louis S. St. Laurent, Prime Minister, and the Honourable Lionel Chevrier, Minister of Transport, have hereunto set their hands on behalf of Canada and the Honourable Leslie M. Frost, Premier, and the Honourable George H. Challies, Acting Provincial Secretary, have hereunto set their hands on behalf of Ontatrio; both upon the third day of December 1951.
- (Sgd.)LOUIS S. ST. LAURENT
- “LIONEL CHEVRIER
- “LESLIE M. FROST
- “GEO. H. CHALLIES
The main features of the Controlled Single Stage Project (238-242) subject to modification pursuant to Article II, are as follows:—
- (1)A control dam in the vicinity of Iroquois Point.
- (2)A dam in the Long Sault Rapids at the head of Barnhart Island and two powerhouses, one on either side of the international boundary, at the foot of Barnhart Island.
- (3)Dykes, where necessary, on the United States and Canadian sides of the international boundary, to retain the pool level above the Long Sault Dam.
- (4)Channel enlargement from above Chimney Point to below Lotus Island designed to give a maximum mean velocity in any cross section of the channel which will ultimately be used for navigation not exceeding four feet per second at any time and between Lotus Island and the control dam and from above Point Three Point to below Ogden Island designed to give a maximum mean velocity in any cross section not exceeding two and one-quarter feet per second with the flow and at the stage to be permitted on the first of January of any year, under regulation of outflow and levels of Lake Ontario in accordance with Regulation Method No. 5, as prepared by the General Engineering Branch, Department of Transport, Canada, dated Ottawa, September 1940.
- (5)Channel enlargement in the channels north and south of Cornwall Island equivalent in volume to that proposed in Features 33 and 34 as described in the Final Report on the St. Lawrence River Project by the Chief of Engineers, U.S. Army, dated April 1942, and shown in outline on Drawing CC-R-1/1, Appendix III-O(1), to the Final Report referred to above.
- (6)The necessary railroad and highway modifications on either side of the international boundary.
- (7)The necessary works to permit the continuance of fourteen-foot navigation on the Canadian side around the control dam and from the pool above the Long Sault Dam to connect with the existing Cornwall Canal.
- (8)The rehabilitation of the Towns of Iroquois and Morrisburg, Ontario.
All the works in the pool below the control dam shall be designed to provide for full Lake Ontario level but initially the pool shall be operated at maximum elevation 238-0.
- 1951 (2nd Sess.), c. 13, Sch
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