Mr. GEOFFRION : But I am dealing with the meaning of the words “ River St. John ” in the boundary of the Newfoundland jurisdiction. My learned friend's argument consists in transferring the meaning of the “ River St. John ” in the Quebec boundary to the place where the “ River St. John ” is referred to in the Newfoundland boundary.
The LORD CHANCELLOR : We have got this point, I think. You said you were going to deal With the historical point, and I am very much interested in that. I do not want to curtail your argument in any way, but the historical point does interest me.
Mr. GEOFFRTON : I was only intending to say a few words on other points, and I will do it as briefly as I can, my Lord. Of course I will not dwell on the words “ care and inspection.” I suggest that while they do really involve annexation in the sense that it is put under jurisdiction, nevertheless it is an indication of the limited character of it in the intention of the grantor. I want your Lordships now to contrast two grants. I am really trying to answer a remark made by Lord Sumner when he asked whether a grant could be found anywhere with no limit specified. I want to refer your Lordships to two grants which I wish to try and demonstrate are applicable to this point. One of those grants is the grant to the Hudson's Bay Company. The other one is the Treaty respecting the French shore. As regards the Hudson's Bay Company may I suggest it supplies in my humble view an answer to the objection, and a formidable argument against my learned friend with regard to the meaning of the word “ coast.” If my friend is right when he said they were given the coast of Hudson's Bay and Strait, and stop there, particularly as they were given it in full property, particularly as it included governmental authority most ample, and given it for the purposes of trade and commerce—if the putting under the care and inspection of the Governor of Newfoundland of a coast fit for a publie and free fishery involves the hinterland, the Governor having only vary limited fishing control powers, how much more would the giving of the coast of Hudson's Bay and Strait to the Hudson's Bay Company, who were to be full proprietors with full power of government and for the purpose of doing not fishing but trade and commerce, carry with it the hinterland Nevertheless they ware so little satisfied that they had a page of description added, which shows how completely insnfticient the word “ coast ” is. Your Lordships will find the grant in Volume II, page 368. I suggest that there is there a contrast, if you consider the words used. There is a broader jurisdiction given to the Hudson's Bay Company than to the Governor of Newfoundland, and the purpose is for trade and commerce, and not for fishery. The words are : “ Do give, grant and confirm, unto the said Governor and Company, and their successors, the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsocver latitude they shall be, that lie within the entrance
of the straits, commonly called Hudson's Straits, together with all the lands and territories upon the countries, coasts and confines of the seas, bays, hikes, rivers, creeks, and sounds aforesaid.”
Viscount FINLAY : But it is a tradeable land.
Mr. GEOFFRION : Your Lordship will see they are given first the sole trade and commerce of all these territories including the land and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, and so on ; and they are to be lords and proprietors of all the said territories places and limits ; and then later they are given governmental powers of a vast character. They were a plantation. Here is a grant where the word “ coast ” is not found sufficient, although it is for trade and commerce, and not only for fishing, and although they are to have full governmental powers and not merely incidental governing powers are given. In answer to Lord Summer's difficulty, no limit was given there, and it was a grant. So that there is nothing so unheard of in that, after all. In fact I would ask my friend to indicate a grant of the coast pure and simple, or for fishing purposes, that has ever been carried by interpretation to the watershed. Your Lordship will bear in mind that notwithstanding all these words the idea of the height of land being the limit of the Hudson's Bay grant arose only in 1815 when the beauty of the north–west territory from the trading point of view had been discovered, and. also when Mr. Munroe, President of the United States, first suggested in the Louisiana, fight that the watershed was a good theory for the solution of international problems, but not in the year 1763.
When we come to the French coast point, I quite appreciate that that is a Treaty, but it is more important there should be a definite limit in the grant by Treaty by the King of England to the King of France of the subjects and rights on the coasts because, when once that is done, it is irrevocable. That is a Treaty binding by international law and conscience, and it is very much more important to settle the jurisdiction than when you are dealing with the King's own property, the fishing industry on the shore and an impenetrable wilderness behind. Your Lordships have appreciated what sort of impenetrable wilderness that was from the Atlantic. The Indians never came to the coast on account of the Esqutmaux. There was a war of hatred between them, and a difference of climate on the way. But beyond that there were only the missionaries, and very few of them managed to go there. It was most important, it seems to me, that there should be something definite as to the extent of the territory to which the subjects of France had an easement, if I might call it so, by the Treaty of Paris for fishing. Is not the analogy very close ? This is the grant of the use of a coast for fishing purposes, and it is of great importance that its extent he defined. But they are content to leave it at “ coast,” and thus restric it to a very narrow margin. Here we have a grant of very limited jurisdiction for fishing purposes only, on a coast. Why should they not be content to leave it undefined ?
Lord Sumner has put another idea into my head which may possibly be useful. His Lordship has said there are tremendous difficulties in marking out jurisdiction. There might be judicial, civil or criminal, or fiscal duties to perform. I might first answer by saying the same problem arises for the French shore. It was a very important administrative point to keep the French at a certain distante. Can I, then, suggest this problem did not exist ? In those days it was the definite policy under statute to keep settlers away, but it did not succeed. Squatters came in and no grants were made. Those squatters were evaders of the law, but they were tolerated. A few miles from the coast it was practically impossible for any white man to live long. It was the domain of the Indians. The Indians did not come to the coast, and the Esquimaux did not go inland through mutual fear of each other. What the Governor was supposed to do was to come on his ship during the summer season to see that peace was maintained among the fishermen in the boats, or when they landed on shore for fishing purposes. If a criminal escaped from the coast and went inland he could be safely left to come back, or die there. There was no jurisdiction for the Governor to take his marines off the ship, and go and hunt for that man in the wilds. The man was gone. So that no difficulty arose in that way in those days.
Now I want to say a few words about the Act of 1774. Yesterday something was said about the use of the words “ territories, islands and countries ” as applied to what had been annexed to Newfoundland. I think Lord Warrington will remember that difficulty being raised. The words occur at line 15, page 159.
Lord WARRINGTON : You mean these words : “ All such territories, islands, and countries, which have, since the tenth of February 1763, been made part of the Government of Newfoundland, be and they are hereby, during his Majesty's pleasure, annexed to, and made part and parcel of, the Province of Quebec.”
Mr. GEOFFRION : Those are the words. I want to deal with the words “ territories, islands. and countries.” Your Lordship will see it is a formula repeated throughout the Act. It has not originated in that place. It is to be found at line 9, page 158, and then again at line 26, page 158. The only point I want to make is that there was this expression running through the Act, and therefore it can be of very slight importance in deciding what happened in 1774 from what was intended in 1763.
That brings me to the Act of 1825. I have very little to say on this point. The reference is to be found on pages 210 and 211. I will not repeat what my learned friend has so ably argued on this point. It is sixty years after. They were not then in a very much better position to know what was meant in 1763 than we are, and they do not purport to construe or alter. They expressly purport not to change.
Then there is the point made by my learned friend, that this is merely a landmark and stops short of the indefinite north, because as
your Lordships will readily see it would giving, nearly all the Atlantic coast to Quebec if you produced the line further.
The LORD CHANCELLOR : That is the point Mr. Macmillan made.
Mr. GEOFFRION : Yes, I suggest, alternatively, my Lord, this : Assuming for the present everything my friend Sir John Simon claims, what does it show ? Assuming that this is a depth line, it does not show that Parliament was then of the opinion that the coast did go deeper. It only shows that Parliament's opinion was that it might go deeper. In other words, that Parliament was having some of the difficulties which we are unmistakably having to–day, of construing, 62 years afterwards, what was the meaning of the word “ coast,” where it went to at a time when the watershed idea had become a well known idea, and therefore whether the watershed—which was not thought of in 1763 I suggest—was being thought of there. We can assume that if they had the slightest doubt as to the possibility of that going to the watershed, they professed not to decide it, but to leave it open. They simply re–annexed all the coast, leaving, as Lord Haldane said, it to mean what it meant in 1763. But they said, if perchance that coast goes north to the 52nd parallel we stop you there. That does not advance the matter at all. It leaves your Lordships a point to settle which they did not professionally intend to settle.
In view of your Lordship's suggestion I have just taken the most important points, and this brings me to my last point, the point of possession. There are three branches of that subject. I have devoted considerable thought to trying to make them as short as possible.
Viscount HALDANE : You mean the point of possessory title ?
Mr. GEOFFRION : Yes. But nevertheless I must deal with the Newfoundland possession, the French regime possession, which is very important on the Indian question, and the Canadian subsequent possession. I will begin with the Newfoundland possession. May I suggest first that except for the possession by Newfoundland contemporaneous practically with 1763, the rest is of a very doubtful relevancy. The fact that Newfoundland may have claimed a jurisdiction—I will go further and say the fact that Canada might not have challenged that jurisdiction—could not really alter the Imperial will. Contemporaneously it is an indication of how those who lived then understood what had been said, and it throws light on what they meant. But afterwards, I suggest, it becomes irrelevant.
The LORD CHANCELLOR : The act of possession has always been accepted as some evidence of title. That is why I think this chapter may be of use.
Mr. GEOFFRION : I am prepared to meet it entirely. The question is purposely drafted so as not to let the construction of the
legal document be influenced by anything of that sort. Your Lordship will read the question as drafted. It is expressly limited. It is not, What is the title of Newfoundland on the Labrador coast ? But it is : “ What is the location and definition of the boundary as between Canada and Newfoundland in the Labrador Peninsula under the statutes, orders–in–council and proclamations ? ” It was decidedly not limited, because there was no intention to let in possession.
The LORD CHANCELLOR : Is that common ground. Ought we not to look at Acts ?
Mr. GEOFFRION : Contemporaneous ones are quite different. Your Lordships have the form of suggestion.
Viscount HALDANE : The suggestion put by you is that it is very long usage.
Mr. GEOFFRION : And very intense usage. Could I put it in this way— ?
The LORD CHANCELLOR : Lord Warrington points out the special provision in paragraph 7 on page 127, which seems to give greater latitude than you suggest.
Mr. GEOFFRION : That is what the Board may look after, but the question they must decide is the formal question. In so far as possession may be a good help to the construing of these documents, I concede it. My point is it must be only such possession as is relevant to the intention of the documents.
Viscount HALDANE : Of course, you cannot by admission put into the Statute, but you may by very long possession and usage put a conventional interpretation, and it is taken to be the original meaning of the Statute. There is a case in the House of Lords in which it was laid down what amount of usage would suffice to ascertain the construction of an Act of Parliament.
Mr. MACMILLAN : The matter was discussed in Laird v. The Clyde Navigation Truslees. That is a leading case. There was a very interesting case of that sort in connection with the Caledonian Canal, where there was an early statute.
Viscount HALDANE : Do any of those cases lay down the proposition of the length of time it takes ? It takes a long time.
Mr. MACMILLAN : It is generally recognised that the usage must be definite and prolonged.