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no such protection for themselves and were opposed to its being afforded to others because of the encouragement it would give to the forming of settlements which would, they believed, involve interference with their operations. The controversy which grew out of these conflicting interests early presented for decision the question whether the Island should be allowed, by countenancing settlement, to become a colony, or whether it should be maintained solely and simply as a station for the convenience of English fishermen. The decision finally arrived at by the King in Council, not without some vacillation, was that there should be no colony, and, accordingly, it became the settled policy of the British Government to discourage and even to prevent, colonization of the Island and to treat it solely as a station for its fishery, which was regarded, of course, for its merchantable value but principally as a training ground for seamen and the source from which the Navy drew its best recruits. The Act of 10 & 11 Wm. III., C. 25, was founded upon this policy, and was little more than an enactment, with some alterations, of the regulations which had been theretofore prescribed by the King in Council. The policy of this measure was pursued and strengthened by several later Acts (viz., 15 Geo. III. (1775, chap. 31); 26 Geo. III. (1786, chap. 26); 29 Geo. III. (1789, chap. 53)), and was not abolished before the enactment of the Imperial Act 5 Geo. IV. (1824, chap. 51).

   12. The fishery promoted and carried on under the regulations of the Act of 10 & 11 Wm. III., c. 25, was a deep-sea cod fishery, including the right to take bait. All British subjects, in general, were free to engage in this sea fishery, but the right to use the shore and the land contiguous thereto for the purposes of the fishery was reserved exclusively for British subjects going out to fish there in ships annually fitted out from some port in Great Britain. The coast of Labrador was put under the Governor of Newfoundland, because it was evidently thought that, as a fishery, it would form a natural appendage to this Newfoundland fishery.

   13. Unlike the fishermen engaged in the sea fishing in the waters surrounding Great Britain,

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where they had not, at common law, any right to use the land above high-water mark, the British fishermen who came out annually to Newfoundland were, under the Act of 10 & 11 Wm., c. 25, granted

   "liberty to go on shore . . . for the curing, salting, drying and husbanding of their Fish, and for making of Oil, and to cut down Woods and Trees there for building and making or repairing of Stages, Ship-rooms, Trainfats, Hurdles, Ships, Boats, and other Necessaries for themselves and their Servants, Seamen, and Fishermen, and all other Things which may be useful or advantageous to their Fishing Trade."

   For the purposes so specified, but none other, the fishermen were at liberty to use the sea-shore and the contiguous land, on the coasts of Newfoundland, and likewise on the coast of Labrador when that fishery was, in 1763, made a part of the Newfoundland fishery.

   The depth of the coast above high-water mark that can be used for these purposes can be determined, it is submitted, only upon evidence of the extent of coast which has been used in connection with this and other like fisheries, and of what, in the judgment of experienced persons, can be used for such purposes. There will be found in the Joint Appendix to this case evidence of both classes, which, it is confidently submitted, affords convincing proof that the "coast" is nothing more than the limited strip of maritime territory defined in the second of the above propositions; and furthermore, that that "coast," having regarding to the maximum area required for the free and full pursuit of the fishery and for every possible economic use of the coast in connection with the fishery, can have, at the utmost, a depth from the high-water mark on the sea-shore of one mile.

   14. The terms used in the Proclamation of 1763 to describe the authority conferred on the Governor of Newfoundland further confirm the Dominion's contention with regard to the depth of the coast. The Proclamation declares that the King had put that coast and the adjacent islands "under the care and . . . "

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" . . . inspection" of the Governor of Newfoundland. These words are most apt as descriptive of supervision, to be given from the ocean to a strip of coast adjoining it, by a naval officer with his seat of government—so far as his functions can be called government—upon board a man-of-war. They are singularly ill-chosen, if there was any intention to make provision for the government of a vast Province, extending inland many miles from the sea. The inference to be drawn from these terms—indeed, he inference which they impose—finds striking confirmation not only in what has been said in the preceding paragraphs, but in what is stated in the next paragraph in regard to the nature of the Governor's authority and functions at Newfoundland itself, the conditions prevailing in that Island, and the peculiar maritime policy pursued by the Mother Country, before and throughout the whole period of the legislation (1763-1825) in regard to that Island and its government.

   15. The Commission of Governor of the Island was invariably given, at the request of the Admiralty, to the naval officer chosen by the Admiralty to command the King's ships on that station. His most important functions were the supervision and control of the fishery. He came out every year at the opening of the fishing season and left at its close. He had no power to make laws, neither was he authorised to make grants of land. He was given certain powers in regard to the administration of justice, but these were required to be exercised in subservience to the due execution of the fishery laws, and were, in truth, simply those necessary for the maintenance of order in the fishery. As a contemporary writer expressed it, in an elaborate treatise prepared in 1752 for the use of Pelham, the First Lord of the Treasury, and Granville, the President of the Council, "the object of that government relates to a kind of police amongst fisher men and to them only." That, indeed, was the entire object of his government. Official documents and contemporary statesmen and publicists speak of Newfoundland itself as a great ship, provisioned and outfitted by the Mother Country, and moored near the banks during the fishing season

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for the convenience of English fishermen; and of its government, as a floating government. Edmund Burke, speaking in the House of Commons, described the Governor as "A military officer living on board a man-of-war." He neither possessed nor exercised the powers essential for the civil government of any territory. He was equipped for the care and inspection of a fishery, but nothing more.

   Newfoundland, as has been stated, was not considered to be a colony, such as the other Provinces in America were. The entire policy pursued with regard to the Island, was to maintain it solely and simply as a fishing station for the use and benefit of the fishermen from England and of the trade of the merchants in that country who employed and supplied them. It was essentially a nautical policy, founded upon the principle that a temporary of transitory fishery provided the best nursery for able and experienced seamen to man the Royal Navy. That end was constantly kept in view, and anything in the nature of settlement in the Island was frowned upon and discouraged as tending to defeat it. Conditions on the Island were such as the policy indicated would naturally produce. Newfoundland was a temporary fishery, and nothing more. The Labrador coast was to be a temporary fishery, and nothing more. In neither was any permanent residence or settlement intended, and therefore no civil government was either necessary or could be established in such places. Both were to be preserved as temporary fisheries, "under such regulations and such administration of justice" as the Lords of Trade stated in their report of the 8th July, 1763, "as is best suited to that end." The care and inspection that was sufficient for the one was sufficient for the other. These were the reasons, as the Lords of Trade stated, which induced His Majesty to put the coast of Labrador, as a fishery, under the supervision of the Governor of Newfoundland.

   16. Newfoundland itself has consistently followed out the policy of dealing with the coast of Labrador as a fishing coast and nothing more. She was not, at the time that coast was first confided to the care and inspection of her Governor, and has never since

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been, equipped or in a position effectively to extend her government to the extensive inland territory of the Peninsula. It may without exaggeration be said that she has never attempted or pretended to do so. Her entire action—till within very recent years when she seems to have been tempted to reach out to appropriate the timber wealth of the interior—may be invoked as demonstrating that her own comprehension of the extent of the coast under her care and inspection was that which Canada herein contends it to be.

   17. Canada submits that its contention with regard to the meaning of the term "coast" as used in the Statutes, Orders-in-Council and Proclamations, is fully established by the reasons stated above, and that this is the precise and unambiguous meaning of the term which the language of those instruments with the evidence afforded or indicated by them, does itself declare. Though, in view of this conclusion, it is not necessary to refer to other evidence for the purpose of elucidating the intention of the legislator, there will be found in the Joint Appendix a series of documents which show that the contemporaneous interpretation of the legislation, so far as the same can be found in the words and actions of those concerned or charged with their enactment or execution, is not only consistent with, but abundantly confirms, the meaning which Canada has given to the term "coast" as being the meaning which the legislator himself attached to that term.

   The effect of this evidence is set forth in the form of an historical narrative in an Annex set out hereafter. It is thought that such a narrative may serve as a guide to the examination of the documents contained in the Joint Appendix, so far as much examination may be considered necessary.

   18. The "coast" to which Newfoundland's rights extend being essentially limited to the narrow margin of land immediately bordering on the sea-coast of the Peninsula useful for purposes connected with the fishery—that is, the coast, as an adjunct of the sea and the sea fishery—it follows, as a logical corollary, that wherever rivers cut the coastline throughout its length from Blanc Sablon to Cape

[1927lab]


 

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