Viscount Finlay :-

The question in this case is whether the writ of summons in the action was properly set aside. The action is one which raises questions as to the right to use the water of the Niagara River for the purpose of generating electricity.

By a treaty made in 1909 between His Majesty and the United States, which was confirmed by the Dominion of Canada Act of 1 and 2 Geo. 5, c. 23, an arrangement was made to limit the diversion of water from the Niagara River, and it was agreed that the United States might divert on their side water above the falls for power purposes not exceeding in the aggregate a daily diversion at the rate of 20,000 cubic feet of water per second, and that the United Kingdom (by the Dominion of Canada and the Province of Ontario) might do this on the other side to an amount not exceeding a daily diversion at the rate of 36,000 cubic feet of water per second.

In 1887 a body called the Commissioners of the Queen Victoria Niagara Falls Park was incorporated by the Ontario Statute 50 Vict. c. 13. The Park extended someway above and below the falls on the Canadian side, and it is under the charge of these Commissioners on behalf of the Ontario Government. I