C.—The Charter of the Hudson's Bay Co., 1670, and the Treaty of Utrecht, 1713.
During the latter half of the sixteenth century Frobisher saw Hudson's Straits, and Davis crossed the mouth of the Straits and sailed down the coast of Labrador to the fifty-second degree of North latitude, landing at what are now known as Davis and Hamilton Inlets. In 1610 Hudson sailed into Hudson's Bay.
In 1670 the Hudson's Bay Co. obtained from Charles II. a royal charter giving them sole rights of trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds in whatsoever latitude they should be, that lie within the entrance of Hudson's Straits, together with all the lands and territories upon the countries, coasts, and confines of the seas, etc., as aforesaid, that were not actually possessed by or granted to any of His Majesty's subjects or possessed by the subjects of any other Christian Prince or State. The Company were also granted the proprietorship of the territories so described and the full right and power to govern such territories.
It is unnecessary to trace in detail the history of the conflicts which followed between the British established under the authority of this Charter on the shores of Hudson's Bay and the French who were making their way north to Hudson's Bay from New France. In 1697, by the Treaty of Ryswick, the French obtained from Great Britain a cession of the territories bordering on Hudson's Bay. But war soon broke out again, and in 1713, by the Treaty of Utrecht, Article X, France restored to Great Britain to be possessed in full right for ever the Bay and Straits of Hudson, together with all lands, seas, sea-coast, rivers and places situate in the said Bay and Straits, and which belonged thereunto, no tracts of land or of sea being excepted, which were then possessed by the subjects of France. The Article went on to provide that it was agreed on both sides to determine by Commissaries to be forthwith named by each party the limits which were to be fixed between the said Bay of Hudson and the places appertaining to the French, which limits both the British and French subjects should
be wholly forbidden to pass over or thereby to go to each other by sea or by land. The same Commissaries were also to have orders to describe and settle in like manner the boundaries between the other British and French colonies in those parts. Commissaries were duly appointed and proposals and counter-proposals were made, but no definite decision was ever reached. The French proposal would have included in New France the territory south-east of a line form Cape Chidley to a point half-way between the French post at Lake Nemiskau and Fort Rupert; by the British proposal the dividing line would be drawn from Cape Grimington to the middle of Lake Mistassini and thence south-west to the forty-ninth degree of North latitude.
The Treaty of Utrecht further declared Newfoundland to belong in exclusive sovereignty to Great Britain, but reserved fishing rights to the French between Cape Bonavista and Cape Riche.
D.—The Position in Newfoundland and on the Labrador Peninsula in 1763.
The Labrador peninsula connotes all the area, some 420,000 square miles in all, east of a line joining St. James' Bay and the River St. Lawrence. No further modifications in the position between France and Great Britain in Newfoundland or Canada or on the Labrador peninsula were made by Treaty between 1713 and 1763, and accordingly though the war which was concluded by the Treaty of Paris involved the capture of Quebec by the British in 1759 after the battle of the Heights of Abraham, and the capture in 1762 of St. John's Carbonear and Trinity by the French and their recapture in the same year by Lord Colville, yet the situation which The Treaty of Paris was designed to modify was that established as a result of the Treaty of Utrecht. That position was that the island of Newfoundland itself was subject to the British Crown, but that the only territories on the Labrador peninsula subject to the British Crown were those granted to or acquired by the Hudson's Bay Company under their Charter of 1670, and that though the boundaries of those territories of the Hudson's Bay Company were not definitely ascer-
tained, they did not extended anywhere (save possibly in respect of the area between Cape Chidley and Cape Grimington) further into the interior than the height of land, which formed their boundary in 1857. (See the map attached to the Report of the Select Committee of the House of Commons appointed in that year to consider the state of the British possessions in North America under that Company's control.) It is indeed probable that those responsible for the Royal Proclamation of the 7th October, 1763, accepted as the Southern Boundary of the Hudson's Bay Company's territories the line shown on the small map inset in Mitchell's Map (1755) of the British Colonies in North America, which represents the British proposal after the Treaty of Utrecht.
5. Before considering the words of the Proclamation under the Treaty of Paris, it will be convenient to state shortly the circumstances in relation to which those words have to be construed.
In 1763 the Labrador peninsula was regarded as of importance almost solely on account of the fisheries carried on, on the north shore of the Gulf of St. Lawrence, mainly for whale, sea-cow (walrus), and seals, in the straits of Belle Isle, and each year a little further north of those straits, principally for cod, and on the rivers along all the extend of coast mentioned for salmon. Before the Treaty of Paris, 1763, the French had made grants of territory along the northern shore of the Gulf of St. Lawrence to French subjects; few, if any, of such grants extended more than four leagues into the interior, and none of them seems to have extended further east than Blanc Sablon. Traffic with the native inhabitants in fur and hunting in the interior were interests not wholly overlooked by the French and English, but they were of very subsidiary importance compared with the fishing. The interior of the country was bleak and uninviting, swampy and unsuitable for cultivation, and was inaccessible except from the sea shore. The native population as small and migratory, and in the area no claimed by the Newfoundland Government no Europeans were settled, Even to-day the interior country is largely unknown, and between the River Saguenay and
Cape Chidley there are no settlements out of sight of sea or river water, which even in the western part of Canadian Labrador, between Natashquan and the Saguenay, apart from the most rudimentary agriculture and a pulp mill established some ten years ago and Seven Islands, there is no industry except fishing and furring.
6. The aboriginal inhabitants of the Labrador Peninsula have altered very little, either in numbers or otherwise, since 1763. They may be roughly divided into three tribes: First the Esquimaux, to be found along the coast, particularly north of the Straits of Belle Isle (there are now no Esquimaux south of the Hamilton Inlet); next the Mountaineers, living further inland than the Esquimaux, and principally south of the Hamilton River, with their main hunting-grounds near the North West River, though they hunted on both sides of the height of land; and thirdly, the Nascopies, occupying the central portion of the area south of the Hudson's Straits. The number of these native inhabitants varied probably between two thousand and four thousand in all. These Indians (apart from the Esquimaux who depended principally upon fishing) lived by hunting and trafficking in furs. The Mountaineers and Nascopies (particularly the latter who had a large admixture of Red Indian blood) had had but little connection with the white men.
7. By virtue of the Royal Proclamation issued under the Treaty of Paris on the 7th October, 1763: -
(a) The Government of Quebec was bounded on the Labrador Coast by the River St. John, and from thence by a line drawn from the head of that river, through the Lake St. John, to the South end of the Lake Nipissim; from whence the said line crossing the River St. Lawrence and the Lake Champlain in 45 degrees of North Latitude, passes along the high lands which divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the sea, and also along the north coast of the Baye des Chaleurs, and the
coast of the Gulf of St. Lawrence to Cape Rosières, and from thence crossing the mouth of the River St. Lawrence by the West end of the Island of Anticosti, terminates at the aforesaid River St. John.
(b) All the Coast of Labrador from the River St. John to Hudson' Straits, together with the Islands of Anticosti and the Magdalen and all smaller islands lying upon the said coast, was put under the care and inspection of the Governor of Newfoundland.
(c) There was reserved to the Crown, "for the use of the Indians, all the lands and territories not included within the limits of our said three new Governments,"(i.e., E. and W. Florida and Quebec), or within the limits of the territory "granted to the Hudson's Bay Company; as also the lands and territories lying to the westward of the sources of the rivers which fall into the sea" (i.e., the Atlantic Ocean) "from the West and North West."
The effect of the Proclamation according to the submission of the Colony of Newfoundland, as to place under the Government of Quebec the area coloured blue, and under the Governor of Newfoundland the area as coloured green and red on the map marked "A," which will be found in the pocket of this Case.
8. The eighteenth and nineteenth century maps show that it was generally believed at the material dates between 1763 and 1825, that the River St. John had its source of the River Romaine, i.e., at or near the 52nd degree of north latitude. There were good reasons to account for the choice of the River St. John as the boundary; for west of it it was desirable both by reason of the French grants of land made before the Treaty, and on account of the nature of the fishery carried on there, that a "sedentary fishery," i.e., a fishery based upon established settlements, should be created, whereas east of the river the opportunity could be seized to create another nursery for seamen from the west