Viscount HALDANE : Simple admissions will not do against the statute.
Mr. MACMILLAN : No. It must be in relation to an ancient document, and it must be contemporary.
Viscount HALDANE : Where is the case of Laird v. The Clyde Navigation Trustees reported?
Sir JOHN SIMON : It is in 8 Appeal Cases. It is a matter for consideration whether, in an inquiry of this sort, a rather wider rule may not be applied.
Viscount FINLAY : The words are : “ What is the location and definition under the Statutes, Orders in Council, and Proclamations ” ; but that does not mean that you cannot hear as legitimate evidence any evidence of possession which may throw light upon the question. Paragraph 7 is on the same lines. I should have thought that they could have had long continued possession, being a possession under the Statutes, Orders in Council, and Proclamations.
Lord WARRINGTON : Paragraph 7 is very wide : reference may be made to any evidence of which judicial notice may be taken or which (having regard to the nature of the case and the parties to it) the Judicial Committee may think material and proper to be considered.”
Viscount FINLAY : That is merely to exclude the idea that they are only to look at printed papers, if by oral testimony any fact could be added which might throw light en that question and what the definition was.
The LORD CHANCELLOR : Lord Watson said this : “ When there are ambiguous expressions in an Act passed one or two centuries ago it may be legitimate to refer to the construction put upon these expressions throughout a long course of years by the unanimous consent of all parties interested, as evidence of what must presumably have been the intention of the Legislature at that remote period.”
Mr. GEOFFRION : I do not challenge that at all. My point is not that you cannot look at possession. I did not mean to make it a big point. You have only one thing to do, and that is to construe these documents. Your Lordships can construe them by all the tests that the law recognises for their construction. That is my point, my Lord.
Viscount FINLAY : If you are dealing with documents which lead you to a conclusion inconsistent with the long continued practice of parties professing to act under those documents, you would find it very
difficult indeed, I should think, to establish such a construction which would vary with the acts of the parties.
Mr. GEOFFRION : Your Lordships have been doing that with the Act of 1857 for Canada as regards the distribution of powers in the provinces. The Confederation started with the idea that all the powers were in Ottawa, and the provinces had hardly anything. A big fight began many years ago and an appeal to this Board gained for the provinces quite a number of powers which, there was obvious evidence in the legislation of Canada, had never been dreamed of, either by the Dominion or the Provinces, for the first 20 years of the Confederation. Now, my Lord, I made that as an opening point. I intended to discuss possession, and I hope to satisfy your Lordships that it might have been a very happy result if your Lordships decided that we do not need to. As regards the contemporaneous Acts of 1763 by Newfoundland, may I sum them up. Curiously enough the Government did not succeed in getting control of the narrow margin within the Straits of Belle Isle. The Canadian position was so well established that your Lordship will see as regards the margin from the Straits of Belle Isle towards the River St. John the Government of Newfoundland practically never got its foot in, which, according to the Statute, it should have. The lessees of the Canadian Government continued, and the Indians who came down from there from the far away hinterland continued to trade with those Canadians beyond any Newfoundland control. The Newfoundland control being essential, there would be no sedentary fishery there outside the Belle Isle Straits. There are some things which are all absolutely consistent with the narrow margin of the sea as an incident of the fishery. It is an open and free fishery which is referred to. Nobody would suggest that cod fishing would cause acts of possession as far as the hinterland. Cod is being fished, as it has always been fished, and they need a very narrow margin to dry their fish, and occasionally to cut trees.
Viscount FINLAY : I suppose that margin may vary from time to time. The fishery may develop. The more fish there is, the more there is to be done on the margin at a particular point.
Mr. GEOFFRION : The margin would extend in length more than in depth.
Viscount FINLAY : It seems to me it may extend in depth also.
Mr. GEOFFRION : Very little, my Lord.
Viscount FINLAY : Little or much does not matter ; the question is the principle, whether the margin is to be taken as definitely fixed in point of depth.
Mr. GEOFFRION : The margin should be ascertained by what would be needed by any prosperous cod fishery.
Viscount FINLAY : Yes. In some years the fishery is prosperous ; in others it is not.
Mr. GEOFFRION : I quite appreciate that the margin must be fixed, on our view—
Viscount FINLAY : If you have a run of good years the margin may become wider.
Mr. GEOFFRION : The margin must be fixed for the maximum prosperous fishery of cod. Whale and seal will not carry my learned friend very far inland. The salmon fishery, which is not mentioned in the instructions but appears in correspondence very shortly after, is apparently an afterthought that arose very soon ; but salmon fishery does not carry my learned friend any further. The salmon fisher is not a sportsman fishing with a fly and rod in the upper streams cf the rivers ; salmon fishery is the netting of fish at the entrance to the river. They might cast their nets a little higher or a little lower, but the condition of the country as well as the chief interests of the men there would compel them to put their salmon nets right at the entrance, because they were cod fishermen conducting a cod or whale or seal fishery, and going to the salmon fishery as an incident, and this salmon fishery would be where they had their seal fishery. The seamen, who were seafaring men coming over from Devonshire and other coasts, were not likely to go inland ; the forbidding character of the inland would keep them near the shore.
My learned friend spoke of the fur trade. It is important that your Lordships should have in your present memory the distinction between the fur trade and trapping. The fur trade is the buying of furs from those who trap ; trapping is what the Indians did, and what some Canadians started to do much later. Reference to the fur trade means meeting the Indians on the coast, because that is where the trade is always done.
Viscount FINLAY : The trade is disposing of the article which has been produced by trapping.
Mr. GEOFFRION : Here the fur trade for the white people was exchanging European produce for the furs of the Indians, but the taking of the furs was the Indians' work inland. The fur trade was done on the coast. I do not see anything else that is even suggested at that date. I have looked, and nothing else is suggested, except shortly after the Moravian Missions were established. The Moravian Missions open a chapter upon which I shall have to add a few words. May I point out to your Lordships a few additional points in respect of the
4 Z 2
Moravian Missions ? One of the grants, the later one, which you will find on page 1347, Volume III, contains no area whatever. They are told to settle on the coast. The two other grants on pages 1321 and 1331 mention areas of 100,000 acres. There are three such grants, and the grant on page 1331 gives two areas of 100,000 acres north and south of the Hamilton River. As a matter of fact, they did not settle there ; they settled further north. These areas marked on these maps have no warrant whatever in the Imperial grant, and I doubt if they have any justification in possession ; I will come to that in a minute.
Viscount HALDANE : Will you give me the references.
Mr. GEOFFRION : Pages 1321 and 1331 and 1347. I do not like to take your Lordships through them. I have read them carefully and I find no area in one of them, and 100,000 acres as to three areas in two of them.
Sir JOHN SIMON : I think that is right.
Viscount HALDANE : What did the grant say ? Did it grant them property ?
Mr. GEOFFRION : I will give your Lordships the wording.
Viscount FINLAY : Will you take one typical grant ?
Mr. GEOFFRION : The operative part is on page 1323: “ His Majesty taking the same Report into Consideration was pleased with the advice of his privy Council to approve thereof and accordingly doth hereby permit and allow ” the gentlemen whose names are set out “ In Trust for the Unitas Fratrum and its Society for the furtherance of the Gospel, to Occupy and possess during his Majesty's pleasure one hundred thousand Acres of Land in such part of Esquemaux Bay on the Coast of Labrador as they shall find most Suitable to their purpose.” That is one with an area.
The LORD CHANCELLOR : Then he directs the Governor of Newfoundland.
Mr. GEOFFRION: I am now dealing with the area, my Lord. I will give a reason why it has to be that, it could not be otherwise. I want first to point out that they were to go on the coast.
Viscount HALDANE : You notice they have pitched upon Esquimaux Bay and pray for the grant of an area of 12 square miles. It is very curious thing. There is no grant to these people, but they have authority to possess and occupy there during His Majesty's pleasure. That, of course, would be perfectly intelligible if the Indian lands had been reserved. It is on Esquimaux Bay.
Mr. GEOFFRION : On the coast. We consider that Esquimaux Bay is the coast.
The LORD CHANCELLOR : If you spread out 100,000 acres into a one–mile strip it would be a very long one.
Mr. GEOFFRION : Your Lordship will see that they did not go inland ; they built along the coast. There are four parcels in all.
Viscount FINLAY : The buildings would be scattered.
Mr. GEOFFRION : I do not think any sensible mission would have taken that square, because under the conditions it would have been absurd.
The LORD CHANCELLOR : Would any sensible mission have extended 100,000 acres into a long strip along the coast ?
Mr. GEOFFRION : For the Esquimaux that is just it. The picture is lacking. For the Esquimaux it was the only way of doing it.
Viscount HALDANE : Is Esquimaux Bay a very large bay ?
Mr. GEOFFRION : Yes, my Lord, it is Hamilton Inlet.
Lord WARRINGTON : What they asked for was this : “ They have pitched upon Esquimaux Bay and praying for a grant on that spot of one hundred thousand acres of land, or about twelve miles square.”
Mr. GEOFFRION : Yes, my Lord.
Lord WARRINGTON : That seems to have been granted to them, but not in those terms. The actual grant was that they might “ occupy and possess during His Majesty's pleasure one hundred thousand acres of land in such part of Esquimaux Bay on the coast of Labrador as they shall find most suitable to their purpose.”
Mr. GEOFFRION : I am trying to demonstrate that 12 miles square does not mean a square of 12 miles, for good reasons. I am trying to get to the operative part of the grant. We have in the third grant no area at all. The two first grants involve three areas of 100,000 acres which in one phrase is called 12 miles square, which is a mathematical calculation.
The LORD CHANCELLOR : It is 200,000 acres in one grant.
Mr. GEOFFRION : That is why there are three areas and two grants. There are four areas in all, although there are three