The Labrador Boundary


Privy Council Documents


Volume I
Contents




JOINT APPENDIX.

Page 39
sponsored by
Dr. David Graham,
St. John's, NL

Page 40
sponsored by
the Labrador Institute,
Happy Valley - Goose Bay, NL

Page 41
sponsored by
Dr. Evan Simpson,
St. John's, NL

Page 43
sponsored by
Tanya Saunders,
Conception Bay South, NL



In the Privy Council.


IN THE MATTER of the BOUNDARY between
      the   DOMINION   of   CANADA   and   the
      COLONY  of   NEWFOUNDLAND  in  the
      LABRADOR   PENINSULA.




BETWEEN

THE DOMINION OF CANADA -   -    -   -  OF THE ONE PART

AND

THE COLONY OF NEWFOUNDLAND - OF THE OTHER PART



CASE

OF THE

DOMINION OF CANADA.



I.
THE QUESTION.

  1. The Government of the Dominion of Canada and the Government of the Colony of Newfoundland having agreed to petition His Majesty the King to refer to the Judicial Committee of His Privy Council, under the Judicial Committee Act 3-4 Wm. IV. (Imp.), chap. 41, sec. 4, the question:

  "What is the location and definition of the boundary as between Canada and Newfoundland in the Labrador Peninsula, under the Statutes, Orders-in-Council and Proclamations?"

the following case, setting forth the contention of the Government of Canada upon the question, is delivered pursuant to the agreement dated the 11th

p. 40

day of November, 1920, made between the two governments, as varied by the agreement dated the 2nd day of November, 1922.

  The Labrador Peninsula referred to in the question is that portion of the British dominions in North America bounded by the waters of the River and Gulf of St. Lawrence and the Strait of Belleisle on the south and south-east, the North Atlantic Ocean on the east and north-east, Hudson's Strait and Hudson and James Bays on the north and north-west, and joined to the rest of Canada on the south-west by the isthmus which lies between James Bay and the St. Lawrence.

EXPLANATORY.

  2. During the French occupation of Canada, there were conflicting claims between France and Great Britain as to the limits of their respective territories in the Peninsula; these were never settled. By the Treaty of Utrecht concluded in 1713, France restored to Great Britain, to be possessed in full right forever, "la baye et le détroit d'Hudson avec toutes les terres, mers, rivages, fleuves et lieux qui en dépendent et qui y sont situés." It was also agreed to determine within a year, by a commission to be named for that purpose, the limits which were to be fixed between Hudson's Bay and the places appertaining to the French, but although the Commission was appointed, its negotiations led to no result.

  Under the Treaty of Paris of the 10th February, 1763, France ceded to Great Britain in the most ample form and without restriction, Canada with all its dependencies as well as the Island of Cape Breton and all the other islands and coasts in the Gulf and River of St. Lawrence, and in general, everything that depends on the said countries, lands, islands and coasts. The territory so ceded included the whole of the peninsula of Labrador except the portion which, by the Treaty of Utrecht, 1713, had been restored to Great Britain and belonged to the Hudson's Bay Company.

  It is not in controversy, or open to controversy that:—

  (i) In 1809, immediately before the passing of the Newfoundland Act, 1809, 49 Geo. III., chap. 27

p. 41

(Imperial), Newfoundland had no rights in or over any part of the Labrador Peninsula, and the extent of territory affected by that Act was then embodied in, and formed part of, the Provincial Territory of Lower Canada as constituted under and in pursuance of the provisions of the Clergy Endowments Canada Act, 1791, also known as the Constitutional Act, of 1791, 31 Geo. III., c. 31 (Imperial).

  (ii) The provincial territory of Lower Canada as so constituted, subject to any rights lawfully created since by competent authority—and the only legislation which purports to create such rights is the Newfoundland Act, 1809, above cited—forms to-day by virtue of the British North America Act, 1840, 3 & 4 Vict. c. 35 (Imperial), and the British North America Act, 1867, 30 & 31 Vict. c. 3 (Imperial), part of the Dominion of Canada, and is subject, as such, to the exclusive governmental and legislative authority of the Dominion of Canada and of the Province of Quebec in which it lies.

  (iii) All that portion of the Labrador Peninsula which formed part of the Hudson's Bay Company's territory by virtue of the Royal Charter from King Charles of the 2nd May, 1670, conferring on that Company—

  "The sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly called Hudson's Straits, together with all the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks and sounds aforesaid, that are not already actually possessed by or granted to any of our subjects or possessed by the subjects of any other Christian Prince or State . . . and that the said land be from henceforth reckoned and reputed as one of our Plantations or Colonies in America, called 'Rupert's Land'"

was embodied in the Dominion of Canada by the Imperial Order-in-Council of the 23rd June, 1870, made under the authority conferred by sec. 146 of the British North America Act, 1867 and the Rupert's Land Act, 1868, 31-32 Vict. chap. 105 (Imperial).

p. 42

  (iv) On the 1st September 1880 all British territories and possessions in North America, not already included within the Dominion of Canada, and all islands adjacent to such territories and possessions (with the exception of the Colony of Newfoundland and its dependencies) were, by Imperial Order-in-Council of the 31st July, 1880, annexed to and made part of the Dominion of Canada and subject to the laws of Canada. The Colonial Boundaries Act, 1895 (58-59 Vict. (Imp.), chap. 34), puts beyond question the validity of this exercise of authority by the Crown.

  It follows that the question to be submitted for decision reduces itself to this:— Over what portion, if any, of the Labrador Peninsula did Newfoundland, by the Act of 1809 above referred to, acquire any rights? That the whole Peninsula forms part of the Dominion of Canada, subject only to such rights as Newfoundland has so acquired, is beyond question. The extent of territory over which Newfoundland so acquired rights must be determined by examination, and interpretation—so far as that may be needful—of the different legislative enactments cited and discussed below. While such rights must, of course, rest upon the operative effect of the Newfoundland Act, 1809, the terms of that enactment make it necessary, for the definition of the extent of territory affected by such rights, to refer to the earlier measures cited below.

II.
LEGISLATION.

  3. The pertinent legislation, cited in chronological order, is the following:—

  (i) By Commission, dated 25th April, 1763, passed under the Great Seal of Great Britain, His Majesty appointed Captain Thomas Graves to be,—

  "Our Governor and Commander in Chief in and over Our said Island of Newfoundland and all the Coasts of Labradore, from the Entrance of Hudson's Streights to the River St. Johns which discharges itself into the sea, nearly opposite the west end of the Island of Anticosti including that Island with any other small Islands on the

p. 43

said Coast of Labradore and also the Islands of Madelaine in the Gulf of St. Lawrence as also all our Forts and Garrisons erected and established, or that shall be erected and established in Our said Islands of Newfoundland Anticosti and Madelaines or on the Coast of Labradore within the Limits aforesaid."

  The powers and authority conferred upon the Governor by this Commission were subject to the following proviso:—

  "Provided neither you nor they" (i.e., officers whom he was authorized to appoint) "do any thing by Virtue of this Commission or the Powers hereby granted contrary or roppugnant to the Act for encouraging the Trade to Newfoundland passed in the 10th and 11th years of the reign of King William the third" (the Newfoundland Fishery Act) "nor any way obstruct the Powers thereby given and granted to the Admirals of Harbours or Captains of Our Ships of War or any other matter or thing either prescribed by the said Act or by such instructions as you shall receive from Us as aforesaid."

  (ii) By the Royal Proclamation of the th October, 1763, His Majesty announced the provisions made for the government of the territories in America secured to the Crown by the Treaty of Paris of 1763, and the action which he had taken by the Commission, just cited, in respect of the coast of Labrador. That Proclamation is, in part, as follows:—

  "WHEREAS We have taken into Our Royal Consideration the extensive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace, concluded at Paris, the 10th day of February last; and being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail themselves with all convenient speed, of the great Benefits and Advantages which must accrue therefrom to their Commerce, Manufactures, and Navigation, We have thought fit, with the Advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish and declare to all our loving

[1927 lab]


 

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