In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Thursday, 21 October, 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. SIR THOMAS WARRINGTON.
IN THE MATTER OF THE BOUNDARY BETWEEN THE DOMINION OF CANADA AND THE COLONY OF NEWFOUNDLAND 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. PLAXTOX (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
Sir JOHN SIMON: My Lords, in this matter I have the honour to appear before your Lordships on behalf of the Colony of Newfoundland, the oldest Colony under the British Crown. With me, in presenting the case for the Colony of Newfoundland, I have my learned friends Mr. Higgins, who is Attorney-General of the Colony, Mr. Barrington Ward, Mr. Monckton and Mr. Pearson. For the Dominion of Canada there appear my learned friends, Mr. Macmillan, Mr. Doherty, formerly Minister of Justice in the Dominion, Mr. Geoffrion, Mr. Alexander, Mr. Stuart Moore and Mr. Plaxton.
Your Lordships will perhaps have noticed that there is another name at the end of the Case for the Dominion of Canada, Mr. Lanctot. The Dominion have unfortunately had to forego his services because, as your Lordships know, after he arrived here he was summoned home owing to a domestic bereavement.
The LORD CHANCELLOR: We all heard of that with the deepest regret.
Sir JOHN SIMON: I am sure, my Lord, all of us at the Bar deeply regret his absence and the cause of it.
My Lords, this matter is one which my friends and I have been at pains to try to prepare so that it may be presented in the most convenient form, because the volumes before your Lordships, one red bound volume and I think seven green volumes, have a very formidable aspect.
The LORD CHANCELLOR: I think I have eight volumes besides the red one.
Sir JOHN SIMON: The eighth is an index. There will be more than these materials, I am afraid, before we finish. but we must begin at any rate with the eight. The first of them, Volume I, which is distinguished by being hound in a red cover, contains the Cases and Counter Cases, and also some of the principal documentary matter which has to be considered. The volumes which follow deal with various aspects of the controversy. The matter has been arranged in parts and sections rather from the point of view of subject matter than from the point of view of chronology, but I think it will be much the most convenient course for the Board, and it is the course which I have prepared myself to follow, if, at any rate in the first instance, I endeavour to present the case for the Colony of Newfoundland preserving a chronological order, tracing it from what perhaps is the most important date in the story and introducing from time to time some of the supplementary matter, but still all the time endeavouring to pass along in chronological fashion.
The first thing. of course, that your Lordships will want to see, will be the Terms of Reference under which the Board is sitting. If your Lordships will turn to page 125 in the red volume, you will there find printed as the first document in the Joint Appendix, the Terms of
Reference to the Judicial Committee. There were, as a matter of fact, two documents which together constitute the Terms of Reference. The second agreement varied, in some respects, the language of the first. The Terms of Reference, as printed at page 125 and following, combine the two documents and present to the Board the actual effect of that combination.
The reference is, as your Lordships no doubt realise, under Section 4 of the Judicial Committee Act of 1833, that very wide section which has more than once been used, though never, I think, in circumstances quite like the present, the section which provides “That it shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit, and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid.”
Viscount HALDANE: How was the 1884 boundary difference dealt with? Was it under that section?
Sir JOHN SIMON: The Ontario-Manitoba dispute, your Lordship means? I think it was under that section. The reason I said that the circumstances were not quite the same, was this. That was a reference of a matter in controversy between two Provinces of the Dominion of Canada.
Viscount HALDANE: Of the Dominion itself?
Sir JOHN SIMON: Yes. It all arose inside the admitted boundary of the Dominion of Canada, whereas in the present case—and this is what I think makes it of particularly striking importance—your Lordships are undertaking the very important duty of deciding a matter which is in controversy between two quite separate units under the British Crown, the Dominion of Canada on the one hand, which of course does not include Newfoundland at all, and the Colony of Newfoundland on the other. I do not think that particular situation has arisen under Section 4 before.
Now if I may just ask your Lordships' attention to what is material in the Terms of Reference, that will, I think, be the proper way to begin. The original agreement, your Lordships notice, was entered into on the 11th November, 1920, and the amendment to which I have referred was made by supplemental agreement two years later. “In the matter of the boundary between the Dominion of Canada and the Colony of Newfoundland in the Labrador Peninsula: The government of the Dominion of Canada and the government of the Colony of Newfoundland having mutually agreed to submit for reference by His Majesty to the Judicial Committee of His Majesty's Privy Council, for their decision, the following question, viz: '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?'” Then what follows has to do with procedure.
Of course, your Lordships will at once observe two matters about the language of these Terms of Reference. One perhaps is a mere linguistic difficulty; the other is a very important matter of substance. Taking the more important one first: the character of the question which the Judicial Committee has to determine is the ascertainment of a boundary as defined by existing documents, statutes, orders-in-council and proclamations. In other words, this is not a case in which the Board of Arbitration (if I may so call it for a moment) is invited to settle such boundary as seems to them in all the circumstances to be good. Their task is the different task, whether easier or not time will show, of determining what the boundary is. I think it is necessary to bear that in mind, because it obviously has a bearing on some parts of the testimony and material here. I will not ask leave to discuss it in any detail; 1 only indicate the point in opening. Obviously the really important thing is to examine what is the effect of the statutes, orders-in-council and proclamations, and though no doubt how the two parties may have acted in questions of administration, occupation, and the like, will have a very proper place in the investigation as helping to throw light upon the interpretation to be adopted, still, of course, that plays a secondary part. I do not say that in any way because I think the putting of such matters in the second place is necessarily to the advantage of the Colony of Newfoundland, but it is only right to help the Tribunal as far as I can at once by pointing out that primarily the question is a question of construing and applying certain documents which are here on record.
The other matter, which I have no doubt has now suggested itself to your Lordships, is, why does the question talk about “location” and “definition,” and what is the relation between these two different substantives. Perhaps as we go on it will not be found to be very important. My friend, Mr. Macmillan, may have a very clear view as to what is the exact distinction between these two things. It is very easy to suggest a distinction. but in the end I am quite confident your Lordships will find that the conclusion as to which His Majesty is seeking the advice of the Board will be the single conclusion as to where the boundary is to be found though no doubt your Lordships will indicate your view of the answer to that question by reference to some matters of principle. Your Lordships are not required, I apprehend, to visit the Labrador Peninsula and delimit the boundary for this extensive territory. But I make the point at once, because in my submission it is a matter of extreme importance throughout to remember that this boundary, wherever it runs, has to be settled on some principle. It is not a mere arbitrary thing to be arrived at by sitting down and thinking of a number and saying that will do. It has to be settled on some principle. We put forward what we conceive to be the right principle. The representatives of Canada do not accept our view, and suggest that what Newfoundland would be receiving if the answer was justly given would be a selvedge of one mile from the water's edge without even penetrating the land in places where there are inlets—as there are on
this coast. Where anybody derives the figure of one mile, and why on earth that should be supposed to be what the statutes, orders-in-council and proclamations say, will be one of the most serious questions for the Tribunal.
Viscount HALIDANE: Supposing the Judicial Committee was to make a declaration of the boundary, how would that have validity? You are not asking us to advise as to the exercise of the prerogative; you are asking us to give a judicial definition. Is the Colonial Boundaries Act, 1895, enough to give that the effect of law? Perhaps it is.
Sir JOHN SIMON: At any rate in addition to the jurisdiction which your Lordships are about to exercise on commission from His Majesty. you also have an agreement between the Dominion of Canada of the one part and the Colony of Newfoundland of the other that they will accept the conclusion.
Viscount HALDANE: An executory agreement. What is the force of the Colonial Boundaries Act for this purpose? According to my recollection it says that when the Sovereign has laid something down in an order-in-council or other declaration it has a statutory effect.
Sir JOHN SIMON: It had not occurred to me that it would be because of the operation of that statute. It would seem to me that the Dominion of Canada and the Colony of Newfoundland having agreed together that this decision should bind, any necessary adjustment would follow automatically. The Colonial Boundaries Act is printed in this same volume, and it is quite useful to look at it now. It will be found at page 245. There is one purpose for which I am very glad to refer to it at once, though I may have to return to it later on. The Colonial Boundaries Act, 1895 (58 and 59 Victoria, Cap. 34), is, of course, a statute of the Imperial Parliament. Section 1 says : “Where the boundaries of a Colony have, either before or after the passing of this Act, been altered by Her Majesty the Queen by Order in Council or Letters Patent, the boundaries as so altered shall be, and be deemed to have been from the date of the alteration, the boundaries of the Colony.”
The LORD CHANCELLOR: There is no question of altering the boundaries here.
Sir JOHN SIMON: None at all. I would ask attention to Section 2 because in another connection, which I am afraid I shall not reach for a day or two, I shall have something to say about it. Section 2 says: “Provided that the consent of a self-governing Colony shall be required for the alteration of the boundaries thereof.” You will notice that the Schedule includes, as you would suppose, both Canada and Newfoundland. I will anticipate by saying it follows, of course, that assuming