Mr. GEOFFRION : May it please your Lordships, I had reached 1826. I suggest that until 1826, subject to what I said with regard to the fishery and fur trade and Moravians, there is nothing in any Newfoundland action that can be suggested as bearing on the question. I gave my reasons why neither of these aspects were of any help to Newfoundland. 1826 is pretty far away from 1763, sixty–three years after. We found one thing. Would your Lordships refer to Volume III, at pages 1406 and 1412 ? All the Newfoundland possession is contained in Volume III.
Lord WARRINGTON : This is a complaint about a salmon fishery ?
Mr. GEOFFRION : We have it that he was recently appointed by the Newfoundland Governor as a Judge under some recent legislation providing for the better administration of justice on that coast.
Lord WARRINGTON : This is the salmon fishery in Rigolet.
Mr. GEOFFRION : Yes ; it is litigation about the Kinnamon Brook salmon fishery. We find there, my Lord, that the Honourable William Paterson of the Royal Navy has been made a Judge. I wish to dwell upon that. It is suggestive of the sort of jurisdiction. This Naval Officer was made a Judge, and so the Court must chiefly have sat in ships, although not exclusively. The fact against us suggested is that he is applied to by Brunet of Quebec through their partner, Tourzeon, which is a well known French name, who resides at Rigolet. He wants to sue Joseph Bird of Sturminster, England, by his agent Timothy Craze of Tub Harbour in this Bay (Tub Harbour is in the bay outside of Rigolet) about the trespass of some sort upon the salmon fishery in Kinnamon Brook. In 1826 we find this Naval gentleman being a Judge, authorising the suit, and on page 1412 we find him visiting the property. Beyond that the thing ends ; he never gives judgment apparently.
Sir JOHN SIMON : I called attention to a passage where Judgment is recorded.
Mr. GEOFFRION : I am sorry ; I must have missed that. I am under the impression that there is none. If I am mistaken, I apologise to your Lordships, but I do not think there is any. At all events, my learned friend will correct me if I am wrong. It is not very material, because that is not my point. It is not part of my argument whether he did or not. I am instructed that he did not give Judgment in this case. My argument is this : Brunet is one of the several Canadians who were in Lake Melville long before the Newfoundland Government knew it existed and had been there very shortly after the conquest. He has a fishery there, and some gentleman who lives in England and who apparently has a fishery on the coast proper at Tub Harbour, where he has an agent is guilty of trespass on that river. It is the most natural thing in the world that Brunet's agent living at Rigolet should apply to a Judge who happens to come for the first time, and who has jurisdiction over Tub Harbour on the coast, where the Defendant trespasser has property, and ask him to adjudicate. I do not exactly see what use a suit in Quebec would have been to Brunet against Mr. Bird living in Sturminster, England, and having an agent at Tub Harbour on the Newfoundland Labrador coast. It is a case where the plaintiff, trespassed upon in his property (I do not care where it was) applies to the first Judge he finds coming from Newfoundland, to get his remedy out of the property of the Defendant which is all, in my submission on the Newfoundland–Labrador Coast. I do not think that there is any significance in that particular point.
Then, my Lords, that is the judicial function that we find. My learned friends will find reports of that Judge in that year going round visiting various places.
The LORD CHANCELLOR : I do not think, Sir John, that you gave us the reference. I have got a note of your argument at that point, and I find these pages noted up to page 1412, and then my record ceases.
Sir JOHN SIMON : I very much regret it if I failed to do so, my Lord, but I know that there is such a passage. Very possibly my memory has taken the place of my words.
Lord SUMNER : There is another judge, several years afterwards, who deals with the case.
Sir JOHN SIMON : Certainly. I am certain that I read that to your Lordships.
Mr. GEOFFRION : But that is 60 years afterwards, in 1880, and it is another Judge and another suit. That is something else. I
am going to deal with that point later on, but I am speaking of the incident of 1826 and not the 1880 incident.
The LORD CHANCELLOR : The Court was abolished in 1834.
Mr. GEOFFRION : Yes, my Lord. That is another Court entirely.
The LORD CHANCELLOR : It was abolished in 1834, and it was set up again in 1863.
Mr. GEOFFRION : Yes, my Lord. I have seen elsewhere in this record, information about the visits of Captain Paterson to various place, and his staying at various places, but I have not noticed that he has suggested having exercised any jurisdiction or done anything in respect of what we claim is not the coast.
I might point out to your Lordships that we are not interested in challenging acts of jurisdiction upon what we admit to be the coast. I am willing to admit that there is here a suggestion of Rigolet on the coast, and I am willing to admit that it is, in so far as it goes, a microscopic argument in favour of Newfoundland's jurisdiction of Rigolet proper, because this Captain apparently moored his ship in Rigolet harbour, heard the complaints of this Rigolet resident against the Tub Harbour resident, which we admit is on the coast, and possibly he did something in his judicial capacity whilst at Rigolet. No doubt he was on board his ship and not in the most uncomfortable houses there ; but at all events, this was insignificant and it is not worth while dwelling upon it. I do not see that it is a great affirmation of jurisdiction to Newfoundland that, being asked to adjudicate in respect of a trespass committed in Canada, he would go and visit the scene of the trespass. That is all that there is there. Otherwise, I do not deny that you can find passages where this gentleman says that he went to many places ; but I do not see that he has done anything anywhere except this, and we do not hear of him any more.
Now, my Lords, I should not like to take your Lordships through every point which was mentioned by my learned friend, and I can only give my general answer, answering individually only those points referred to by my learned friend which seem to me to be of the most significance. I suggest that, with regard to this period round about 1826, this is the biggest point that can be made against me. Even if it involved Rigolet slightly, it certainly involved nothing else ; and there is a debatable question as to whether Rigolet is still on the coast or within the margin of the coast, and so on. Rigolet is one of the most doubtful points, certainly.
I will not take up your Lordships' time by dealing with an incident in 1863, when a certain doctor on a ship went in and vaccinated the Indians at the head of Lake Melville. I take it that humanity, and not the assertion of jurisdiction, would be involved in that.
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Then I do not think that I need concern myself much with what happened after the year 1890. In 1888 Judge Pinsent was warned by an objection to jurisdiction taken about a murder. Your Lordships no doubt remember the passage, and the dispute upon the question, and the correspondence which took place, which has been read to your Lordships, and which I will not refer to again. Sir John Macdonald asserted Canada's position. A few years afterwards they met at the Halifax conference, where the question was made open; and anything that happens after 1890, I venture to suggest, cannot be very illustrative. I am always trying to reduce the question to essential proportions.
Previous to the year 1880, I have dealt with the vaccination incident and the Kinnamish River incident. I do not think I need deal much with the argument which was put forward by my learned friend, Sir John Simon, based upon a lot of affidavits about residents on the coast who say that they go and trap inland. To what extent is that an assertion of jurisdiction, or an opinion upon political limits from anybody ? Gradually, through the Hudson's Bay posts and otherwise, people have, without grants from anybody at all, settled in these wild coasts. When the winter comes, they go and earn their living as they see the Indians doing, by going trapping and furring. It might be the United States or it might be China or anywhere else. Is the fact that these men go trapping inland, an assertion of jurisdiction by Newfoundland ? Is it a recognition of jurisdiction in Canada ? Is it the opinion of these gentlemen as to where the jurisdiction of Newfoundland stops ? And even if it were, what would it be worth ? I suggest that that group of facts does not bring us anywhere. But I have found two documents, or at any rate one, which I think will be very helpful upon another aspect of the matter.
Sir JOHN SIMON : Will your Lordships allow me now to give the reference that I had in my mind ? I think I did read it. Lord Sumner's memory about it was quite right. It was a separate and later judge. The passage that I had in my mind, and which I thought that I had read, is at the top of page 1486. It has reference to a judicial officer of the name of Berteau in the year 1881. He says : “ I performed magisterial duties where necessary. I remember determining a dispute between Fortesque, chief factor of the Hudson's Ray Company, and MacLean, in relation to the alleged barring by the latter of the River Kinnamish against Salmon.” That is the passage I had in my mind, and I thought that I had read it.
Mr. GEOFFRION : I had that in mind, and I was going to answer it, but I maintain what I have already said, that it has no conceivable relation to the matter of 1826 of Judge Paterson, which was never disposed of
Sir JOHN SIMON : I thought my learned friend said that there had been no judicial determination of the matter.
Mr. GEOFFRION : Upon that point.
The LORD CHANCELLOR : It cannot have been a judgment in that suit.
Sir JOHN SIMON : I did not mean to say so, my Lord. All I said was that it was not correct to say that it had never been judicially determined.
Mr. GEOFFRION : I did not say that. I said that that case had never been determined. Those people were dead, and other litigants arose. It is not the sanie people who are fighting this trespass here. It was not the trespass previous to 1826 which was under consideration here.
Now, my Lords, it may be that perhaps in an over–zealous endeavour to save time, I had skipped this exercise of jurisdiction, which, as your Lordships will see, is from 1881 to 1890. We do not know when, but it is 9 years from 1881. I think it is so very close to the material period that its significance is extremely slight, and I thought that I might not refer to it ; but at all events, the arguments that I have given as regards the first apply to the second : and I cannot deny that there has been some exercise, or some claim, of jurisdiction on Rigolet. My claim is that the maximum of Newfoundland's claim to possession consists of isolated and very spasmodic exercises of jurisdiction on Rigolet, and it stops there.
With regard to the two documents to which I was going to refer your Lordships—
Viscount HALDANE : Upon what point is this ?
Mr. GEOFFRION : I am trying to dispose in bulk of all the affidavits, by saying that they deal with hunters generally, and that they are opinions, and that they are too late. But I want to ask your Lordships to look at page 1559, the affidavit of Thomas Blake, which gives your Lordships something which I suggest, and when it is put with what I will read later on upon the Indian question, is very illuminating. He says, at line 33 on page 1559: “ I never heard of any claim of Canada until four or five years ago, when there was a dispute between some of the trappers amongst our people and the Indians residing in the interior in connection with the fur ground which the Indians claimed to have been their fathers and grandfathers and they now wish to exclude us.” That is an indication of the Indian tradition that this hinterland was traditionally from ancient times their hunting ground. That is all that I want to make out upon that point. Alone, it does not amount to much, but it will link up with what I will read to your Lordships later on at page 1475 in the same volume, Volume III, and what is interesting there is the description of these Indians. I am going to emphasise the Frenchified—if I may use such an expression—and Catholicised character of these Indians, as being one of the