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LEGAL

13. United States Claims Arising Out of the Construction and Operation of Gut Dam

Legal Division: Although it was clearly understood in advance that the public hearings of the International Joint Commission, at Rochester on November 17 and at Hamilton on November 18, were to be concerned with the cause and effects of high water levels in Lake Ontario with specific reference to the proposed power works in the International Rapids Section of the St. Lawrence River, there was every reason to believe that some reference would be made to Gut Dam and to the injury which property owners on the south shore have attributed to the Dam. At the hearing in Rochester, the references to Gut Dam were noisy and bitter; the Dam was represented as being the cause of all past troubles and as a warning against the future construction of works in the St. Lawrence without adequate assurance and protection against property damage.

Although most of what was said by spokesmen for the property owners -- notably Representatives Keating and Ostertag, and Walter Forsyth, attorney for the Lake Ontario Land Development and Beach Protection Association Inc. -- had been heard before, a number of interesting facts were revealed during the course of the public discussion and in private conversations between representatives of the Association and of the Department:

(a) The directors of the Association appeared to be not opposed to the Canadian proposals, as set forth in the draft of July 10, for arbitration by an international tribunal. The directors have been led to believe, however, that it will be difficult, if not impossible, to obtain the necessary Congressional action for the establishment of such a tribunal. The President of the Association, Mr. Norman Atterby, proposed to seek clarification on this point from the State Department.

(b) The directors of the Association appeared not anxious to pursue their lawsuits against Canada in the United States courts. Their reluctance stems from their opinion that Canadian legal arguments on sovereign immunity and on insufficiency of service are likely to prevail; and from a shortage of funds with which to finance protracted litigation. Nevertheless, in desperation and in order to satisfy the many disgruntled claimants, the directors might be tempted to pursue the litigation.

(c) The Association is receiving conflicting advice from its lawyers. There is also dissension among the ranks of the directors. It is therefore difficult to predict the future course of events.

(d) The spokesmen for the Association are still not aware of the complexities of the engineering evidence needed to substantiate their claims. They seem prepared to accept the "state of nature" as the basis for their rights with respect to water levels but, with respect to Gut Dam, they tend to oversimplify the casual connection between its effect on water levels and the injury sustained by the property owners.

(e) The Canadian contention of sovereign immunity has been misrepresented among the claimants. An attempt was made at the Rochester hearing to create the impression that Canada had refused to submit to the United States courts because "The King can do no wrong". These remarks were calculated to stir up the spirit of 1776 and to some extent this end was achieved. This indicates that in future public pronouncements on the immunity issue Canada should emphasize that the principle of sovereign immunity is well recognized by all sovereign states, republics and monarchies alike; and that the principle stems from the sovereignty of the state rather than from the status of the head of state.

The hearing in Hamilton was conducted in a much more dignified manner than the one in Rochester. There was very little talk of compensation for past injury and the references to Gut Dam were few and lacking in conviction.

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