In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Friday, 5th November, 1926.
THE RT. HON. THE LORD CHANCELLOR (VISCOUNT CAVE),
THE RT. HON. VISCOUNT HALDANE,
THE RT. HON. VISCOUNT FINLAY,
THE RT. HON. LORD SUMNER, and
THE RT. HON. LORD WARRINGTON.
IN THE MATTER of the BOUNDARY between the DOMINION of CANADA and the COLONY ofNEWFOUNDLAND in the LABRADOR PENINSULA
THE DOMINION OF CANADA (of the one part)
THE COLONY OF NEWFOUNDLAND (of the other part).
[Transcript of the Shorthand Notes of MARTEN, MEREDITH & CO.,
8, New Court, Carey Street, London, W.C. 2, and CHERER & CO.,
2, New Court, Carey Street, London, W.C. 2.]
Counsel for the Colony of Newfoundland :—The Rt. Hon. Sir JOHN SIMON, K.C., Mr. F. T. BARRINGTON–WARD, K.C., The Hon. W. J. HIGGINS, K.C. (of the Newfoundland Bar), Mr. W. T. MONCKTON and Mr. C. H. PEARSON, instructed by Messrs. BURN &BERRIDGE.
Counsel for the Dominion of Canada :—The Rt. Hon. H. P. MACMILLAN, K.C. (of the Scottish Bar), The Rt. Hon. C. J. DOHERTY, K.C. (of the Canadian Bar), Mr. AIMÉ GEOFFRION, K.C. (of the Canadian Bar), Mr. MAURICE ALEXANDER, K.C. (of the Canadian Bar), Mr. H. STUART MOORE and Mr. C. P. PLAXTON (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
Mr. GEOFFRION : May it please your Lordships, I feel much inclined to apologise for inflicting another address upon your Lordships after all this time ; but the case is so extremely complicated with all sorts of facts and from all sorts of angles that I hope I shall be pardoned for believing that I can still offer some useful suggestions to your Lordships. I will, however, offer your Lordships one small consolation : your Lordships' Order provides for a third address on the part of Quebec. There will not be any third address. It may be that that is because my observations to your Lordships will be in the nature of a merger of the junior Dominion brief and the Quebec brief—because I was retained by Quebec specially—and also because I cannot see, and none of us can see, that there is the slightest difference between the cases. The question is whether the piece of territory that is in dispute falls into Canada or not ; and the reasons why it should fall into Canada, may and should all be given by Canada.
The LORD CHANCELLOR : It was not put to us in that way when we were asked to give leave for a third speech ; but no doubt you have reconsidered the matter since then.
Mr. GEOFFRION : If your Lordship pleases, I will cover whatever there is to be said both as Junior for Canada and in the name of Quebec ; and therefore I am instructed on behalf of Quebec to waive any privilege in that respect.
Now may it please your Lordships, my suggestion, which I think is admitted, is that this is primarily, and one might almost say exclusively, a question of construction of the relevant documents of 1763, in the light of the then existing circumstances, and with the aid, the interpretative aid, of contemporaneous interpretation ; and therefore this case must be decided upon the meaning of the words used in the proclamation, contemporaneous utterances from the King, with (to a certain extent although to a lesser degree) the interpretation given to it immediately
afterwards and in the three subsequent Statutes of 1774, 1809 and 1825.
I suggest that all the rest is, if not entirely, almost completely irrelevant. Your Lordships have frequently had before you what I would suggest to you is an analogous ease. Over and over again your Lordships have had to pass upon the construction of the British North America Act, as to where the Dominion had a provincial jurisdiction, and your Lordships have never been embarrassed by the construction put in Canada, or construction put by the Legislature, upon it. There are many instances where what has been confirmed and claimed by the Dominion, and acquiesced in by the Provinces for years and years, has
afterwards been declared, upon the proper construction of the British North America Act, to be Federal, jurisdiction. I could give many examples of your Lordships holding, and unquestionably—it is impertinent for me to say “ properly ”; but your Lordships have held that you were there to construe a will superior to that of the Parliament, namely, the Imperial will.
Now, my Lords, if that is right as to the construction of an Imperial Act as to the divion of legislative jurisdiction between Dominion and Province, is not the reasoning equally sound as regards the construction of Imperial proclamations and Statutes with regard to the territorial division between Canada and Newfoundland ?
I therefore suggest to your Lordships that the question is necessarily (and, as I say, almost exclusively) the question of what was meant in 1763, chiefly by the Proclamation (which I will come to in a moment) and, of course, what light is added by contemporaneous exposition and what light is added by subsequent Imperial legislation. If that is the case, then 90 per cent. at least of the argument of my learned friend Sir John Simon becomes irrelevant. He almost admitted it.
The LORD CHANCELLOR : I hope you are not addressing that observation also to Mr.Macmillan.
Mr. GEOFFRION : I am in a difficult position my Lords, because he did what I myself shall have to do, that is to say, not assume that the points that I have made have been accepted by your Lordships, and go on answering the argument which we suggest is irrelevant. We do suggest that this is irrelevant, but we are going to answer it all the same.
Now, my Lord, if that is the case, it is important to come first of all to the Proclamation. I wish to emphasise the Proclamation, notwithstanding the interesting debate as to whether the commission is the germ, or whether the Proclamation is the germ, and for this reason, even if we do not have any decided view upon the question as to whether the germ or origin of the Newfoundland jurisdiction is the Commission or the Proclamation, I do not think it makes much difference or needs to be decided. There is one thing that is certain, and that is that the paragraph in the Proclamation is more than a mere recital : it is the first authoritative Proclamation by the King to his subjects of what he has done. There is a big difference, I suggest to your Lordships, between the recitals of what has already been promulgated, as in the preamble to a Statute referring to previous Statutes, and the first announcement by the King to his subjects that he has done something. This is his authoritative and well–considered definition of what he has done; it is his announcement to his subjects of what they should understand that he has done ; and, therefore, these words stand at least as high, if not higher, than the words of the Commission, regardless of the question of where, on the metaphysical aspect, we decide that the germ of the Newfoundland jurisdiction is to be found.
4 S 2
Now, my Lords, if that is the case, then I will come to the next point, and that is as to the proper way of construing the paragraph on page 154 of Volume I, which has been so often read to your Lordships, at about line 13 or line 14. I have to apologise for the fact that I shall have to ask your Lordships to look at this text, and the text on the following page again in a few moments, although your Lordships have unquestionably looked at them often before. I suggest that the germ, and perhaps the answer to the whole question, is there. My suggestion to your Lordships is that we must in that Proclamation contrast all the time, for the purpose of construction, what the King says at page 154, line 14 : “ and to the end that the open and free fishery of our subjects,” and so on (which I will read in a moment) with what the King says on page 156 at line 23, namely, the clause respecting the Labrador coast and the clause respecting the Indian reserve ; because in this document the King says what he gave to Newfoundland and he says what he reserved to himself. We cannot easily presume that there is a conflict. Surely, what he gave he did not reserve, and what he reserved he did not give. Therefore I suggest to your Lordships that the proper atmosphere in which to approach this question is to contrast primarily—I will not say exclusively—the paragraph at line 13 on page 154, with the paragraph at line 23 on page 156. It is by contrasting those two paragraphs that we can get at the meaning of each of them. Each of them is on the same footing. One has quite as much importance as the other, and each must be construed by the other ; because what the King gave he did not reserve, and what he reserved he did not give.
Now, with your Lordships' permission, I will read, perhaps for the twentieth time, the passage on page 154 at line 14. It says this : “ And 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, we have thought fit, with the advice of our said Privy Council, to put all that coast”—I desire to emphasise the word “ that ” for the moment ; I will come to it later—“ from the River St. John to Hudson's Streights, together with the islands of Anticosti and the Madelaine, and all other smaller islands lying upon the said coast, under the care and inspection of our Governor of Newfoundland.” Now, my Lords, the first point that strikes one is that the word “ coast ” is used. The case on behalf of Newfoundland may be stated, brutally, in this way : “ Coast means watershed.” That must be their case, upon the main point.
The first suggestion that occurs to one is : “ Why did not they say ‘ watershed ’ ? ” Nobody will deny that the word “ coast ” is an ambiguous word. Why did they not say “ watershed,” which was so easy for them to say ? A little earlier in the Commission they refer to the height of land, and I should suggest to your Lordships that this is rather an illustrative argument. If your Lordships will look at page 153, line 25, your Lordships will see that in giving the limits of Quebec, just a few lines before this, they say “ from whence the said line, crossing the River St. Lawrence, and the
Lake Champlain in forty–five degrees of north latitude, passes along the high lands which divide the rivers that empty themselves into the said River St. Lawrence, from those which fall into the sea.” There is one thing that is noticeable. There is “ high land ” there. In the Gaspe Peninsula you have the highest land of the Province of Quebec ; you have a well known chain of mountains, a well known geographical feature, supplying a convenient political division. The Appalachian Mountains start in the Gaspe Peninsula, and they go down into South Carolina ; and there the King took the height of land as the watershed. I protest against the idea that your Lordships can find anywhere the suggestion that the watershed is the universal boundary, or the implied boundary. The watershed is the boundary when it is the convenient boundary ; a river is the boundary when it is convenient ; and when neither the watershed nor a river is convenient, they take a geographical line, as a rule. But here they take the watershed, because there was a well–marked watershed present in Gaspe, and I would point out that when they chose to take a watershed as the boundary, they said so. It seems to me to be fair to suggest that if they intended to put the watershed under the control of the Governor of Newfoundland, they might have used the expression here, namely, “ the coast from the River St. John to Hudson's Straits, or the high land that divides the rivers emptying themselves,” and so on. I would not mind the use of the word “ coast.” In the proper context you can give a meaning to the word “ coast ” ; you can give it the meaning that you want. Here the context is against my learned friend, and it narrows the meaning of the word “ coast ” instead of broadening it. I will come back later on to the meaning of the word “ coast ” ; but I would now like your Lordships to turn to the words that I desire to contrast, and to which I attach importance, on page 156, at line 23.
A good deal has been said by my learned friend, Sir John Simon, about the lakes, and things of that sort, and about the noble Iroquois, the noble Redskins, and things of that kind ; but very little has been said about the precise and special wording of this paragraph. I suggest that, logically speaking, the first thing to look at in order to find out what the King intended to reserve to himself, is what he said. Just let us see it : “ And we do further declare it to be our Royal will and pleasure, for the present as aforesaid ”—your Lordship will note that it is a temporary measure—“ to reserve under our sovereignty, protection, and dominion ”—therefore not in Newfoundland—“ for the use of the said Indians ”—we will see what they were in a moment, my Lords ; we see by the previous paragraph that they were Indians—“ all the land and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson's Bay Company.”
Now, my Lords, I pause there, because I consider that the rest of it is immaterial. Your Lordships will note that, contrasting with the putting of a certain coast on which a fishery could be carried on under the care and inspection of an Admiral of a ship who is there for six months and who is made Governor, you have here the giving for the