the westward of a line to be drawn due north
and south from the bay or harbour of Ance Sablon, inclusive, as far as the fifty-second degree
of north latitude, with the island of Anticosti, and all other islands adjacent to such part as
last aforesaid of the coast of Labrador, shall be and the same are hereby re-annexed to and made
a part of the said province of Lower Canada, and shall henceforward be subject to the laws of the
said province, and to none other; . . . ."
4. Canada submits, as the basis of her contention,
the two following propositions :—
1. The extent of territory within the peninsula of Labrador to-day subject to the authority of Newfoundland is the "coast" which, by the Commission of the 25th April, 1763, hereinabove recited, was, as declared by the Royal Proclamation of the 7th October of that year, put under "the care and inspection" of the Governor of Newfoundland, less the portion thereof re-annexed to the Province of Lower Canada by the British North America
(Seignorial Rights) Acts, 1825, 6 Geo. IV., chap. 59 (Imperial).
2. That the "coast," so described, is a strip of maritime territory, extending from Cape Chidley, at the entrance to Hudson Strait, to the eastern headland of the bay or harbour of Blanc Sablon on the Strait of Belleisle, and comprising, in its depth inland, only so much of the land immediately abutting on the sea, above low-water mark, as was accessible and useful to the British fishermen annually resorting to that coast, in the ordinary conduct of their fishing operations, for the purposes of "the open and free fishery" extended to that coast by the Royal Proclamation and carried on there, and for those purpose only.
These two propositions are, it is submitted,
respectively established by the reasons set forth below.
5. The Newfoundland Act, 1809, 49 Geo. III.,
chap. 27, sec. 14 (Imperial), constitutes Newfoundland's title to whatever rights within
the Labrador Peninsula she to-day possesses, but the title which it confers is a title
by relation—a title by relation to the Royal Proclamation of 1763 which, with the antecedent
Commission, above cited, gives the definition of the extent of territory affected.
This is made indisputably clear by the terms of that Act. By it, such parts of the coast of
Labrador as His Majesty by His Royal Proclamation of the 7th October, 1763, had been pleased
to declare he had put under the care and inspection of the Governor of Newfoundland,
were re-annexed to the Government of that island.
The parts of the coast affected by this
disposition are not otherwise described or defined by the Act than by recital of,
and reference to, the Royal Proclamation of 1763. They are, in the words of the
enacting clause of the statute, "such parts of the coast of Labrador from the River Saint John to the Hudson's Streights," etc.... "so annexed to the Government of Newfoundland by the said Proclamation," i.e., of 1763—a limitation which explicitly
throws the interpreter back upon the language of the Royal Proclamation.
That Proclamation and the Commission of the 25th April, 1763, of which it proclaimed
the effect, are, for the purpose of identifying and defining such parts of the coast,
Newfoundland's title. Her rights extend over precisely the extent of coast described
in those instruments, less, of course, the part which the British North America
(Seignorial Rights) Act, 1825 (6 Geo. IV., chap. 59), withdrew and embodied in the Province
of Lower Canada. The Newfoundland Act, 1809, dealt solely with the extent of coast
(neither increased nor diminished), which the legislation of 1763 had put under the care and
inspection of the Governor of Newfoundland.
These conclusions are fully borne out,
it is submitted, by the terms of the Commission and Proclamation and of the Acts cited.
6. The length of the extent of coast now under the
authority conferred on the Government of Newfoundland is certain and not a matter of dispute.
It originally extended from the mouth of the
River St. John, which empties into the Gulf of St. Lawrence nearly opposite the west end
of the Island of Anticosti, to Cape Chidley at the entrance from the Atlantic Ocean to
The British North America (Seignorial Rights)
Act, 1825, withdrew from Newfoundland's authority and re-annexed to the Province of
Lower Canada, the part of the coast extending from mouth of the River St. John to the
Bay of Blanc Sablon at the inner entrance to the Strait of Belleisle, including that bay,
or as the statute describes it, "so much of the coast as lies to the westward of a line to be drawn due north and south from the bay or harbour of Ance Sablon inclusive, as far as the fifty-second degree of north latitude."
The landward depth of this coast is the matter
in dispute, the boundary line between it and the main or inland territory never having
7. The word "coast" as defined by lexicographers
from the time Dr. Johnson's great work was first published in 1755 down to the present day,
means, "The edge or margin of the land next to the sea, the shore." "It is not used,"
Johnson's work adds, "for the banks of less waters," e.g.,
of rivers or lakes. "Sea-shore" is defined as, "The coast of the sea." The words "coast,"
"sea-shore," and "sea-coast," accordingly, mean and designate the same thing. Such is the
primary and natural meaning of the word "coast" when used in its geographical sense;
and that is the meaning which the term has invariably been given by the Courts both in England,
Canada and the Uniter States. (Esquimalt and Nanaimo Railway
v. Treat, 121 L.T.R. (P.C.) 657, 658, affirming judgment of
the Court of Appeal (B.C.), 1918, 3 W.W.R. 685; The King
v. Forty-nine Casks of Brandy, 3 Hagg. Adm.
257; 275, Gammell v. Commissioners of Woods
and Forests, 3 Macq. A.C. 419, 460; Regina
v. Cox (1859), 1 P.E.I. 170; Soult
v. l'Africaine (1804), Bee's Adm. Rep. 204;
United States v. The James Morrison, 1 Newb. Adm. Fep. 241, 253;
United States v. The William Pope,
ib., 256, 259; Ravesies
v. U.S. (1884), 35 Fed. Rep. 917, 919). There can, therefore,
be no presumption or other reason for construing the term "coast," as used in the Comission and
Proclamation of 1763 and in the Acts cited, in any larger sense than is strictly required for the
full attainment of the object which the legislator had in view.
8. Canada submits that the true meaning of the
term "coast" as used in these instruments—i.e.,
its meaning as applied to the subject-matter with regard to which it was used, and for
the object the legislator had in view—is correctly stated in the second of the above
propositions. The precise terms fixing the length of the coast, the declared purpose of
the enactments, the description of the power in respect of the coast conferred on the Governor,
the nature of his functions and of the power he exercised in Newfoundland itself,
the conditions prevailing in that Island, and the purposes and policy of its Government;
all these unite to show that the term "coast" was used in that sense.
9. The precision with which the Commission to Graves
fixed the terminal points of the length of that coast restricts its depth well within the limits
assigned to by the Dominion's contention. The Commission defines the "coast" as extending
"from the entrance of Hudson's Streights" to "the River St. John, which discharges itself into the sea, nearly opposite the west end of the Island of Anticosti." That definition is of
a line of "coast" extending from one point to another point; its terms exclude the idea of depth
of land upon the coast of Hudson Strait at the one end, or upon the banks of the River St. John
at the other.
10. In the Royal Proclamation of 1763, the object which
the Crown, as legislator, had in view
when it included the coast of Labrador in the Commission to
the Governor of Newfoundland, cited above, is explicitly declared in the following words, viz.,
"to the end that the open and free fishery of our subjects may be extended to and carried on upon the coast of Labrador and the adjacent islands." It was "that coast"—a "coast" upon which
it was physically possible to carry on the operations of the fishery, the coast available and useful
for that purpose, that His Majesty was pleased to declare he had put under the "care and inspection"
of the Governor of Newfoundland. The purpose so declared is the measure of the depth of that coast.
It, that coast, comprises clearly the whole of the coastal area used or susceptible of use for the
purposes of fishery referred to, but is as clearly restricted to that area.
11. What was that fishery and what was the extent of coast
to which it could be extended and upon which it could be carried on? From the terms of the Commission
to Graves above cited, and many other State documents, it is abundantly clear that the fishery described
as "the open and free fishery of our subjects" in the Proclamation of 1763 was the free British fishery
then carried on upon the coasts of Newfoundland under the rules and regulations of the Newfoundland
Fishery Act (10 & 11 Wm. III., chap. 25 (1699), (Imperial)). It is essential, in order to form a clear
conception of the nature of this fishery, to advert to the peculiar conditions attaching to the Island of
Newfoundland and to the maritime policy with which that fishery was identified.
From its first discovery (Cabot, 1497-98) under Henry VII.,
Newfoundland became, and has ever since remained, the seat of a great cod fishery. The early annals of
the Island are largely concerned with the struggles and vicissitudes of two contending interests in the
Newfoundland trade: the one, that of the planters and inhabitants who, being settled there, needed the
protection of a government and police, with the administration of justice; the other, that of the English
adventurers and merchants who, carrying on the fishery from England and visiting the Island only for the