In the Privy Council.
IN THE MATTER of the BOUNDARY between
the DOMINION of CANADA and the
COLONY of NEWFOUNDLAND in the
THE DOMINION OF CANADA - - - - OF THE ONE PART
THE COLONY OF NEWFOUNDLAND - OF THE OTHER PART
DOMINION OF CANADA.
1. In pursuance of the agreement between the governments of Canada and Newfoundland, the Dominion of Canada delivers the following counter-case, accompanied by certain additional documents.
THE COLONY'S CONTENTION.
2. The Colony of Newfoundland in its Case submits that the correct answer to the question referred to the Judicial Committee for decision is "that the boundary should be a line drawn due north from Ance Sablon as far as the 52nd degree of north latitude and should be traced from thence northwards to Cape Chidley along the crest of the watershed of the rivers flowing into the Atlantic Ocean."
The Colony adds that this line or boundary is shown coloured blue on a map marked "A," which is produced with the Case, and stated to form part of it.
Reading the description of the line claimed as explained by that shown on the map, the Colony's contention appears to be that the southern boundary of the territory claimed by the Colony is the 52nd parallel of north latitude, from the point where a line drawn due north from the bay or harbour of Ance Sablon (Blanc Sablon), on the strait of Belleisle, meets that parallel to a point between the 65th and 66th meridians of west longitude, and that from this last-mentioned point to Cape Chidley the western and north-western boundary of the territory so claimed follows the crest of the watershed of the rivers flowing into the Atlantic ocean.
3. The line so shown, coloured blue on the map, embraces an area of approximately 111,300 square miles—in other words, territory greater in extent by some 22,300 square miles than the whole of England, Wales and Scotland combined (88,745 sq. m.) and almost three times as large as the island of Newfoundland itself (40,200 sq. m.). The distance in a straight line from the Atlantic seashore of this vast region to the watershed at its farthest point, is approximately 490 miles. Embraced within this territory is one of the most important river systems of the Peninsula, namely, that of the great Hamilton River which has a length, from the point of its discharge into the Hamilton Inlet to its most distant source (Lake Ashuanipi), of about 680 miles, being thus three times the length of the River Thames (228 m.) and nearly half as long again as the River Seine (482 m.). Its drainage-basin comprises a wide area of country extending from the head of the Hamilton Inlet westward to longitude 68º or nearly half way across the Peninsula. Such is the extent of the territory now claimed by the Colony of Newfoundland as subject to its jurisdiction and control under its title to exercise care and inspection over a fishing "coast."
4. The claim so made is, in par. 2 of the Case, alleged to be justified by the three classes of evidence
particularly specified therein, but the Colony's final submission, in par. 39 of the Case, that the boundary north of the 52nd parallel of north latitude should be defined as "the line of the crest of the watershed, which is the height of land," is made to rest upon six reasons therein enumerated. This submission and the reasons so enumerated related only to the "watershed" portion of the boundary line claimed by the Colony. The Colony's contention in regard to the definition of the 52nd parallel of north latitude, as part of the boundary line claimed by it, is apparently founded upon the allegations set forth in par. 20 of the Case (p. 18, lines 25-38), but no enumerations of reasons is made in support of this contention. It will be convenient, accordingly, for the purpose of making such observations in reply to the Colony's Case as seem to be desirable, to deal separately with the two distinct portions of the boundary line claimed by the Colony, viz. (I) the "watershed" line, and (II) the line of the 52nd parallel of north latitude.
PRELIMINARY OBSERVATIONS ON THE COLONY'S CONTENTION.
5. In view of the grounds on which the Colony, in its Case, seeks to justify its contention, it appears to Canada to be desirable, at the outset, to call attention to the question actually at issue, to its true scope and nature, and the nature of the evidence that is relevant and admissible for its determination. The explicit terms of the stated question referred by the Order of His Majesty in Council, dated 24 th July, 1925, to the Judicial Committee of His Privy Council, for decision, leave no room for discussion as to the issue that question presents; that issue is solely the question, what is the boundary between Canada and Newfoundland in the Labrador peninsula, under the Statutes, Orders-in-Council and Proclamations?—i.e. the boundary established by those legislative enactments, and no other. The terms of those enactments make the determination of that issue depend entirely upon the meaning of the word "coast" as used in them. Read with the context and the evidence indicated or afforded by
it, the word presents, as Canada has submitted, no ambiguity. The facts invoked by the Colony, if proved, would throw no light upon the intention of the legislator as expressed in the words used by him. For these reasons, evidence of such facts is, it is respectfully submitted, inadmissible. That evidence, moreover, even if admissible, does not, it is submitted, in any material respect, affect the soundness of Canada's contention as set forth in her Case.
The Colony, in its Case, seems to lose sight of the settled rules governing construction, and seeks to introduce a controlling principle, which the tribunal is asked to give effect to, not, in Canada's submission, by putting on the language employed any construction of which it is shown to be capable, but rather by disregarding such language altogether.
The purpose of the present Counter-Case is to show the unsoundness of the Colony's main contention and the ineffectiveness of the evidence by which it is sought to be supported.
I. — THE "WATERSHED" LINE.
6. The principal contention of the Colony is, as above stated, that the boundary, north of the 52nd parallel of north latitude, should be located and defined as the line of the crest of the watershed of the rivers that fall into the Atlantic ocean—in effect, that that height-of-land line constitutes the western and northwestern boundary of the portion of "coast" subject to its authority. Which in particular of the three classes of evidence enumerated in the second paragraph of the Colony's Case are considered to justify this contention does not very clearly appear. On the other hand, the six reasons which close the Case are all of them invoked as supporting it. It is proposed, accordingly, to examine briefly those six reasons.
REASON 1: Because the expression "coast" at all times material for the purposes of the present enquiry was understood to include and connote the whole area between the sea and the height-of land.
7. The affirmation contained in this "Reason," whereby a meaning different from the ordinary meaning of the word "coast" is sought to be attached to that word as used in the Statutes, Orders-in-Council and Proclamations, Canada submits is unsupported by any evidence to be found in the Colony's Case or in any of the documents produced with or referred to by it. It is to be noted that what the legislator understood, what he meant by the word "coast," when he used it in the enactments on which Newfoundland's rights rest, is alone material. The terms of the "Reason" suggest that there is more than one time material for the purposes of the present enquiry. And yet the basis of the Colony's claim, as set forth in the body of its Case, makes the year 1763—as Canada contends it is—the only time material to be considered for the purpose of identifying the extent of the territory now subject to the Colony's authority. The territory which the Colony now claims as subject to its jurisdiction, is claimed, on its own allegations, by virtue of the alleged effect of the Royal Proclamation of the 7th October, 1763 (Nfld. Case, p. 10, lines 21-27; p. 8, lines 1-2). The subsequent pertinent Statutes, Orders-in-Council and Proclamations are referred to in the Colony's Case, but it is not alleged that any of them had effect to increase the area of the "coast" referred to in the said Royal Proclamation, although it is conceded that the British North America (Seignorial Rights) Act, 1825, did have effect to reduce that area. The Commission of the 25th April, 1763, to Captain Thomas Graves, and not the Royal Proclamation as alleged by the Colony, is, however, "the source of Newfoundland's original jurisdiction on the Labrador" (Nfld. Case, par. 35 (b) p. 30, lines 12-13). The Proclamation, as Canada has pointed out in its case, was declaratory only of the effect of what the Crown had already done by the issue of the Commission to Captain Thomas Graves. The true position is, that these two instruments, the Commission to Graves and the Royal Proclamation, are to be read together as correlative documents and as explanatory of each other, and, so read, govern the definition of the area of "coast" that is to-day subject to the Colony's authority, subject