The Labrador Boundary


Privy Council Documents


Volume I
Contents




JOINT APPENDIX.


p. 94

trade and salmon fisheries of the earliest settlements there are described in paragraphs 9 to 11 of the Newfoundland Case, and show that from the beginning no kind of restriction of interest to the cod fishery was sought to be imposed. It is plain from the manner in which the Reports of Governor Palliser and the Petitions of George Cartwright and Noble and Pinson were received by the authorities in England that there was no disposition on the part of the Government to discourage enterprise in the salmon or furring business or to compel settlers of the type of Coghlan, Cartwright, or Pinson to cease to reside on the coast of Labrador, where they began to be established in or about the year 1770.

  8. In these circumstances, though the main object of annexing the coast of Labrador to the Government of Newfoundland was undoubtedly to foster the development of the cod-fishery, there is no valid reason for construing the relevant instruments as limiting the grant of jurisdiction so as to exclude areas which would be useful for salmon fishing, furring and trading with the native inhabitants. As has been pointed out above, in the island of Newfoundland itself salmon fisheries and fur trading had become, to the knowledge of the Government, ancillary to the main cod-fishery as offering winter occupation to the crews. It is hard to suggest any reason why adventurers on the coast of Labrador should be confined within any arbitrary distance from the seashore and prohibited from exploring the possibilities of the unknown rivers on that coast for salmon and of the surrounding country for fur. It may confidently be asserted in the light of the instructions to the early Governors and their activities approved by the authorities at home, that nothing would have astonished the Home Government, the Governors, or the merchant adventurers (not to mention the planters) more than a suggestion, had it been made in 1763 or the succeeding years, that the jurisdiction and consequently the activities of the Governor of Newfoundland were restricted and confined to an area bounded by a line drawn one mile from high-water mark.

p. 95

  9. Newfoundland accordingly submits that the declared purpose of the enactments does not in any way tend to establish the second Canadian proposition. Nevertheless apart from showing (as pointed out in paragraph 33 of the Newfoundland Case) the depth of the area inland must be measured from the sinuosities of the coast line as the basis for the establishment of the fishery, the declared purpose of the enactments does afford valuable assistance in this case. For a grant of governmental come over an area of coast "to the end that the one and free fishery of all subjects may be extended and carried on upon the coast of Labrador," when made by the Crown of England, would naturally understood to embrace any area where the public right of fishery subsisted. And by English Law a public right of fishery extends to all tidal waters. "Jus piscandi omnibus commune est in portu et in fluminibus." The public right of fishery in waters influenced by tide is co-extensive with the public right to fish in the sea. Accordingly, since it is conceded in the Canadian Case that Lake Melville is tidal, it cannot be doubted, quite apart from any question as to the depth of the hinterland comprised in the expression "coast," that the whole of Hamilton Inlet (including Lake Melville) was included within the jurisdiction of the Governor of Newfoundland.

(c) AS  TO THE DESCRIPTION OF THE POWER  IN RESPECT OF THE COAST  CONFERRED  ON THE GOVERNOR.

  10. It is next submitted that no inference can be drawn, as suggested in paragraph 14 of the Canadian Case, from the description of the power conferred on the Governor. The words "care and inspection" relied on for this purpose do not occur (as has already been pointed out) in any of the three instruments effecting changes in the Governmental control of the area in question; in the Newfoundland Act, 1809, the operative effect of which admittedly determined the rights of Newfoundland, the terms used are "annexed" and "re-annexed."

p. 96

(d) AS  TO  THE NATURE OF THE GOVERNOR'S FUNCTIONS AND OF THE
POWER WHICH HE EXERCISED IN NEWFOUNDLAND  ITSELF.

  11. Newfoundland further submits that the area of the coast of Labrador is not affected by the nature of the Governor's functions or of the power which he exercised in Newfoundland itself. The mere fact that he could not make grants of land or sanction settlement did not prevent him from governing or controlling an area of land on the coast of Labrador any more than in the island of Newfoundland. It is true that the system of Government was designed for the cod-fishery, but in the hands of such men as Governor Palliser it could readily be adapted to do what was necessary for a very sparsely populated hinterland. It was of course known that as in Newfoundland, so on the coast of Labrador, the vast preponderance of interest, business and population would be centred on the margin of the sea, but that did not afford any reason to limit the ordinary effect of the grant of a "coast" which, it is submitted, is correctly stated in the Newfoundland Case, as including the area back to the crest of the water-shed. It was realised that little governmental action would be necessary in the hinterland and the government selected was therefore chosen with a view primarily to the cod-fishery. It is not without importance to observe in this connection that before 1763, as after that year, the enterprises of the Hudson's Bay Co. for trading and administrative purposes were based on settlements established at the water side from which the trade of the interior was conducted. These adventurers trading into Hudson's Bay were granted in 1670 the trade and commerce of all the seas, straits, bays, rivers, lakes, creeks, and sounds, within the entrance of Hudson's Straits "together with" (showing that what follows was an adjunct of what has gone before) "all the lands, countries and territories upon the coasts and confines of the seas, bays, lakes," etc., "aforesaid." Nevertheless though in 1763 (and indeed with trifling exceptions at all times material for the purposes of this case) the posts of the Company were along the edge of the sea, yet the accepted boundaries of the Company

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were based on the crest of the water-shed. This point gains added significance from the fact that in the Proclamation and the Acts that follow, the Company is treated for jurisdiction purposes as though it were a separate Government under the Crown on a par with the Governments created by the Proclamation.

(e) AS TO THE CONDITIONS PREVAILING IN THE ISLAND OF NEWFOUNDLAND AND THE PURPOSES AND POLICY OF ITS GOVERNMENT.

  12. It is further contended that having regard to the matters hereinbefore set out the second proposition in the Canadian Case is not established or supported by the conditions prevailing in the island of Newfoundland and the purposes and policy of its Government. Such conditions, purposes, and policy did not limit the area over which the Governor exercised jurisdiction in the island, nor ought it to be held to have such an effect on the coast of Labrador.

  13. For the reasons already advanced the Government of Newfoundland contends that the grounds indicated in paragraph 8 of the Canadian Case are wholly insufficient to establish the contention presented in paragraphs 4 (2) and 13 of the Canadian Case that the area connoted by the expression coast of Labrador in the Statutes, Orders-in-Council, and Proclamations is a strip of maritime territory limited to a depth of one mile from the high-watermark on the sea-shore. In ascertaining the meaning to be attached to the word "coast" in the expression "coast of Labrador" in the Statutes, Orders-in-Council, and Proclamations, which have to be construed in this Reference, it is convenient next to consider the propositions advanced in paragraph 7 of the Canadian Case to the effect (a) that the words "coast," "sea-shore," and "sea-coast" mean and designate the same thing, namely "the edge or margin of the land next to the sea"; (b) that "coast" is not used for the banks of, e.g., rivers or lakes; (c) that the term has invariably been used in the Courts of England, Canada and the U.S.A. with the meaning indicated

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in (a); and (d) that accordingly there can be no presumption or other reason for construing the term "coast," as used in the Commission or Proclamation of 1763 or 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.

  14. It can hardly be disputed that the word "coast" is capable of very varying significance in accordance with the context in which it is found. (See Corpus Juris (New York: 1917), Vol. XI, pp. 935-6.) Originally, it meant "side" and was thereafter used for "side of the land." (See Murray's New Oxford Dictionary tit. Coast.) In the language of the Authorised Version of the Bible the word "coasts" is sometimes used to designate a neighbouring "or surrounding country" without any necessary connection with the sea-shore, as, for instance, in Deut. xi, 24, and in the expression "the coasts of Tyre and Sidon," Mark vii, 31. "Bethlehem and all the coasts thereof," in Matt. ii, 16, and Acts xiii, 50, where "the Jews . . . raised persecution against Paul and Barnabas and expelled them out of their coasts." And even in cases where the word is used in connection with the sea-shore, it is not confined to the edge of the sea in any narrow or limited sense, cf., the Gold Coast, Guinea Coast, West Coast of Africa, Coromandel Coast, Ivory Coast, and the lisiere, which was the subject of dispute in the Alaska Boundary dispute, e.g., at p. 71, in the British Case, "strip of coast not exceeding 10 marine leagues in width," and the letter from Sir C. Bagot to Canning in the British Appendix I, p. 67, "a line of coast extending 10 marine leagues into the interior." In the same dispute, see also United States Appendix, p. 167, Count Nesselrode to Admiral Mordvinoff, "the width of the coast line necessary for the safe existence and consolidation of our colonies . . . still form subjects of negotiation." In the Charter of the Hudson's Bay Co., 1670, a grant of exclusive trading privileges is given to the Company "to and with all the natives and people inhabiting or which shall inhabit within the territories, limits and places aforesaid, and to and with all other nations inhabiting any of the coasts adjacent to the said . . ."

[1927lab]


 

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