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In the Privy Council.

      the   DOMINION   of   CANADA   and   the
      COLONY  of   NEWFOUNDLAND  in  the




   1. The Colony of Newfoundland submits that the Canadian Case affords no answer to the claim presented in the Newfoundland Case, and does not contain valid grounds for fixing any precise interior boundary line other than the line claimed by Newfoundland.

   2. Newfoundland concedes the first proposition advanced in the Canadian Case, namely that 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, 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) Act, 1825. But Newfoundland submits that the Canadian Case lays too much stress on the use of the expression "care and inspection" in a purely declaratory recital in the Royal Proclamation of the 7th October, 1763, while, on the other hand, it pays insufficient regard to the plain words of the Commission to Governor

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Graves, and the Acts of 1774, 1809, and 1825, which made changes in the Government of the Area in question. The Proclamations of the 7th October, 1763, though it created and established four new governments, including the Government of Quebec, did not profess to effect any change in the provision already made in reference to "all that coast" (i.e., of Labrador) "from the River St. John to Hudson's Streights." By the Commission to Governor Graves of Newfoundland, dated the 25th April, 1763, that area had been added to his government. The words "care and inspection," do not occur in the Commission or in the Acts of 1774, 1809, or 1825 already referred to. The Quebec Act of 1774 treated the Commission to Governor Graves as having "made" the area in question "part of the Government of Newfoundland," while the Newfoundland Act, 1809, described the same area as having been "annexed to the Government of Newfoundland." Newfoundland submits that the interpretation thus given by the statutes is the natural meaning of the language of the Commission.

   3. Canada's second proposition is that the "coast" is a strip of maritime territory 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 purposes only. Canada seeks to establish that proposition by reliance upon:—

   (a) The precise terms fixing the length of the coast;
   (b) The declared purpose of the enactments;
   (c) The description of the power in respect of the coast conferred on the Governor;
   (d) The nature of his functions and of the power which he exercised in Newfoundland itself;
   (e) The conditions prevailing in that island and the purposes and policy of its Government.
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   4. As to the first of these grounds, Newfoundland contends that in any event the fixation of termini does not exclude the idea of depth of land at either end or in the intervening area. In the Commission to Governor Graves dated the 25th April, 1763, the Proclamation of the 7th October, 1763, and the Newfoundland Act, 1809, one of the termini was the River Saint John, some 120 miles in length, as it was then understood to run. In the same way in the British North America (Seignorial Rights) Act, 1825, one of the termini was a line some 40 miles in length down the North and South from the bay or harbour of Blanc Sablon inclusive, as far as the 52nd degree of North latitude. Accordingly it is submitted that the precise terms fixing the length of the coast, so far from establishing, are not consistent with, Canada's second proposition.


   5. Canada seeks to limit the depth of the coast under the jurisdiction of Newfoundland to the area used or susceptible of use for the purposes of the cod-fishery, on the ground that the declared object of the Crown as legislator was that such a fishery should be extended to and carried on upon the Coast of Labrador and the adjacent islands. Newfoundland submits that the words declaring this object, which occur not in any of the instruments making new provision for the "coast of Labrador," but in the passage already mentioned in the Royal Proclamation, do not in any way limit the depth of the area annexed to the Government of Newfoundland by the relevant Commission and Statutes. In the island of Newfoundland itself the law regarded the interest of the cod-fishery only and forbade colonization, and the purpose of the Government was the development of the cod-fishery; nor was any substantial interest taken in the interior land:

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yet no one would suggest that the Governor was not Governor of every part of the island. In the same way in the dependency of the island the mere fact that the purpose of the annexation was the same, viz., the development of the cod-fishery, did not prevent the Governor from being the Governor of the whole of the Coast of Labrador. Nor does the expressed purpose in the one case any more than in the other limit the depth of the area put under his Government.

   6. Moreover as in Newfoundland, so on the Coast of Labrador, though the cod-fishery was always the main, it was never the exclusive object of the Government's interest. There was not from the first any attempt to prevent fishermen from fishing for salmon in the rivers or from hunting or trapping for fur. Nor was there at any time a rigid enforcement of Statutes or regulations prohibiting settlement. In 1679 1,700 persons were resident in Newfoundland. In 1765 Governor Palliser reported 16,000 as the number of men remaining in Newfoundland during the winter. In the Commission to Governor Graves dated the 25th April, 1763, reference is made to "all such Justices of the Peace and their inferior officers and ministers whom you or they shall appoint among the Planters or inhabitants resident and abiding there," so that at the very time when the coast was being annexed to the Government of Newfoundland, the existence of the resident population in the island of Newfoundland was present to the minds of the Home Government, who contemplated not endeavouring to remove these residents altogether, but using them for the purposes of administering justice. Between the years 1763 and 1809 the resident population of Newfoundland increased, and by the 24th April, 1817, had risen to between 40,000 and 50,000.

   And this body of inhabitants—considerable throughout in numbers—subsisted, when the summer cod fishing was over, largely on salmon fishing and furring. Salmon fishing in Newfoundland had begun by 1720 and a Mr. Skeffington, who had the salmon fishing in two or three rivers, cleared lands of wood 40 miles inland; he obtained, within 30 years of the Newfoundland Act, 1699, a sole right of salmon

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fishing for 21 years and leave to cut timber so long as he did not do so within six miles of the shore. Not only were those pursuits, whether in Newfoundland itself or in its dependency, not objected to by the authorities at home, but they were made the subject of special in structions to the successive Governors. The instructions given to Governor Graves dated the 29th March, 1763, included the encouragement of certain Newfoundland salmon fisheries and of the whale and sea-cow fishery in the Gulf of St. Lawrence on the Labrador Coast. He was further to inquire and report to the Commissioners of Trade and Plantations as to what establishments and forts were necessary in Newfoundland or the other islands and territories under his Government either for the protection of the fishery, the security of the country, or the establishment and carrying on of commerce with the Indians residing in or resorting to the said islands or inhabiting the coast of Labrador. He was further to report as to whether any trade was carried on for beaver or other furs by the Inhabitants or by any others who remained in the country and whether they had any traffic with the Indians. By the Admiralty Instructions given to the same Governor on the 2nd May, 1763 (Article 7), he was directed to encourage and support the Whale Fishery in the Straits of Belle Isle and more particularly the fishery in York Harbour and on the other parts of the coasts of Labrador, to prevent trade by persons other than British subjects with the inhabitants of that country, and to protect the salmon and seal fishery along the coasts. Similar instructions were given to Governor Palliser and his successors. And Governor Palliser rightly refers in his letter to the Lords Commissioners for Trade and Plantations), dated the 22nd April, 1766, to "my commission as Governor of the country" (i.e. the coast of Labrador) "and . . . my instructions . . . relative to every branch of fishery and trade within the limits of my Government."

   7. The activities of the Governors of Newfoundland (and particularly of Governor Palliser) between 1763 and 1774 on the coast of Labrador and the establishment by the pioneers of the fur



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