CO885-(15-16) — Page 576

PUBLIC RECORD OFFICE

Reference :-

TELEC.O.885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

16 PUBLIC RECORD OFFICE, LONDON

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a fund for maintenance and repairs. There is no right to receive anything when there is no such balance, and there is no right given to them over the tramroad or the undertaking.

(2) Even if the Cipero tramroad were private property, the owner's right to compensation is to be calculated, not according to its original cost, but according to its present value to the owner.

(3) If compensation were paid to the Commissioners, they would be bound to spend the money on the objects specified in Section 53 according to the order there given, and in that case the owner of the estates would be entitled to be repaid before anything is given to the general benefit of the ward or wards. The Ordinance of 1856 gives the Commissioners no power of parting with the tramroad and does not deal with the winding-up of the undertaking except in Section 51, which has no application to the present state of affairs, but, on general principles, compensation money, if there were any payable, should be spent in the same way as the annual balances would be spent if there were any.

(4) We think it would certainly be equitable, having regard to the somewhat peculiar circumstances of the case, that the Legislative Council-in passing an Ordinance whereby the tramroad, or so much of it as might be required, would be absorbed in the railway system of the Colonial Government should provide for the payment of some compensation. In settling the amount, weight should be given to the following considerations, viz.: (1) that the right of the estates owners to repayment is dependent on the existence of a balance, and the chance of a balance seems small; and (2) that the rates hitherto prevailing may possibly have been too low and so have conferred benefits on the owners in the nature of a partial repay- ment. If provision could be made for securing to the owners the continuance of the present rates of charges and of the exemptions now allowed, they could have no ground of complaint even if they received no other pecuniary compensation.

Generally. We think it would be expedient to secure the consent of the owners who have made such substantial contributions to the cost of the line, and to make all reasonable concessions to them in the matter of charges and traffic facilities in order to secure their concurrence. The change should be effected by an Ordinance embodying, if possible, an agreement with the estates owners.

The Right Honourable

The Earl of Crewe, K.G.,

&c., &c., &c.

We have, &c.,

W. S. ROBSON. S. T. EVANS.

41395

No. 126.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE.

[Fishery rights in Ilecate Strait.]

Royal Courts of Justice, MY LORD,

22nd December, 1909. We were honoured with your Lordship's commands signified to us in Sir Francis Hopwood's letter of the 6th November last, stating that he was directed by your Lordship to transmit to us for our consideration a copy of a memorandum from the United States Ambassador, in which he called attention on behalf of his Government to the question of fishery rights in Hecate Strait, together with a despatch on the subject from the Governor-General of Canada.

That it would be observed that the Canadian Government contended that "the line of demarcation" mentioned in Article III. of the Anglo-Russian Treaty of 1825 and determined by the Award of the Arbitration Tribunal of 1903 must be interpreted as a line of territorial demarcation, and that, as a consequence, Canada claimed exclusive jurisdiction over the whole of Hecate Strait.

That Sir Francis Hopwood was to enclose a copy of Mr. Whitelaw Reid's note of 8th July, 1908, asking for permission on behalf of his Government to lay a cable through Hecate Strait and Dixon Entrance, to which reference was made in the minute of the Canadian Privy Council.

That Sir Francis Hopwood was to request us to take the papers into our consideration and report whether in our opinion the claim of the Canadian Govern- ment could properly be supported by His Majesty's Government, having regard to the special and peculiar considerations on which it was based.

We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report

That we have carefully considered the claim by the Canadian Government to the exclusive right of fishing in Dixon Entrance and Hecate Strait, and although that claim may well be supported by many cogent arguments we are, on the whole, of opinion that it cannot be justified either by international law or by treaty rights. We are also of opinion that, notwithstanding the admission of the claim to British jurisdiction over those waters contained in Mr. Whitelaw Reid's despatch of the 8th July, 1908, there has been nothing in the conduct of the Governments or com- munities concerned to prevent the United States Government from now disputing the claim. So far as the general principles of international law are concerned, we think that any international tribunal would certainly hold that the great spaces of water intervening on the north and east between Queen Charlotte Island and the nearest land are open sea, over which neither the United States nor Great Britain or Canada can claim exclusive jurisdiction; but it is suggested in the report of the 6th July, 1909, of the Canadian Privy Council that there are special circum- stances which justify such a claim in this case. By the Treaty of 1825 between Great Britain and Russia, which settles the boundary between Canada and Alaska, it is laid down (Article I) that the respective subjects of the contracting parties should have free right of fishing in any part of the Pacific Ocean. By Article III. of the same Treaty, together with the Award, under the Treaty of 1903, "the line of demarcation between the possessions of the high contracting parties upon the coast of the continent and the islands of, North America to the north-west directed to be drawn so as to pass over sea as well as land, and it is contended in the Report to which we have referred, that the effect of this demarcation was to assign the sea as well as the islands and mainland lying north and south of that line to the high contracting parties respectively. That is not the construction which would be given to the Treaty if due regard be had to the well-known rule of inter- national law as to the freedom of the open sea and to Article I of the Treaty.

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is

The line was intended to delimit the territorial possessions of England and Russia on either side, and this would include territorial waters, but it would not purport to make waters territorial which, by international law, should properly be

(15833-2.) Wt. 06-322. 25. 1,19. DK S.

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