and useful to know whether he bought it from the Government of Newfoundland.
Sir JOHN SIMON: I am going to show your Lordship that the Newfoundland Government had been making grants of public land.
Sir THOMAS WARRINGTON: He did not say from whom he bought it.
Sir JOHN SIMON: He does not in fact; but I can show it. The Newfoundland Government to-day is drawing a substantial revenue from the rent of timber limits in this area.
Sir THOMAS WARRINGTON: Was it doing so before the dispute arose?
Sir JOHN SIMON: Yes, my Lord. I do not say it was as large an amount as now.
Mr. MACMILLAN: The statement which my learned friend makes with such confidence we traverse with equal confidence.
Sir JOHN SIMON: Yes, but I happen to have the material.
Mr. MACMILLAN: So have I.
Sir JOHN SIMON: I was reading the affidavit of Mr. Parsons. “I then went to North West River and after that to Cartwright for four years. After that I went to the Ungava section of the Peninsula for nine years, being for two years of that time travelling at intervals from Quebec to St. Augustine's. Then I resided at St. John's, Newfoundland, and travelled in the Canadian and Newfoundland Labrador district which covers an area between Blanc Sablon and Port Harrison in Hudson Bay. During the last four or five years I have also travelled in the territory east of Montreal. I was at North West River for the three years 1905–7. The permanent settlers, who subsist principally on furring in the winter, used constantly to go inland hunting and trapping 150 miles or more, and often as far as height of land. There were some 200 or 300 Montagnais Indians definitely attached to North West River and they also travelled far into the interior on their hunting expeditions. Goods supplied to the settlers and Indians round North West River Post were brought up via Hamilton Inlet and duty was paid on such goods to the Newfoundland Government. The Newfoundland Game Laws were enforced against the settlers, and I remember a man residing on the Labrador Coast being fined $100 for killing animals out of season. When I was at North West River lumbermen operating there used to work as far inland as Mud Lake, 40 miles from Sandy Point, the entrance to Goose Bay, and cruisers went much further up
I myself travelled up the Nascopie or North West River about 40 miles from the Settlement and also went up Goose Bay and some 20 miles along the Hamilton River. In addition I went some 5 or 6 miles up the Kinamon. I should estimate that there were about 1,000 settlers in Hamilton Inlet when I was there. In the fall of the year the tide at North West River was very strong, and the water gets brackish.” Lord Sumner will notice that; it has a bearing upon something he said to me.
Then would your Lordship just take two references in Volume II, which are of a similar sort, and then I will pass on.
In Volume II, page 384, there is an affidavit of Mr. William Ernest Swaffield, who apparently is now in Montreal. He is Manager of the Hudson's Bay Company's Fur Warehouse at Montreal. He says in paragraph 1: “I was for 29 years in the service of the Hudson's Bay Company on Labrador. I went to Davis Inlet in 1891 as Post Manager. After 9 years there I went to Cartwright for 5 years in the same capacity. I then went to Rigolet for 7 years and to Cartwright again for 8. During those last 10 years of my service on Labrador I was District Manager of the Labrador District consisting of 4 posts, viz.:—Cartwright, North West River, Davis Inlet and Rigolet.” By “4 posts” he means, of course, four Hudson's Bay Company's posts. Paragraph 2: “As District Manager I visited North West River once a year for inspection. I recall that C. S. Porter & Company of New York established a fur trading post at Cartwright in 1916 at North West River in 1917, and at Rigolet in 1919, and that the Revillon Company”—I think that is a company which one knows of by repute as the place where ladies get furs in London—“established a post at North West River over 20 years ago, which they still maintain.” Paragraph 3: “I always paid duties to the Newfoundland Government for each of the Hudson's Bay Company's posts in my District, and so to the best of my knowledge, information and belief, did my predecessor. I base this belief on my recollection of the Company's books and the fact that when I took over there was no suggestion that the duties had not been or ought not to be paid. The annual payment for the District ranged between 2,000 dollars and 5,000 dollars.” Mr. Donald Smith was a very good business man, but whatever his protest may have been, the duty was paid. Paragraph 4: “About 1911 a census was taken for the Newfoundland Government and a little later I took a rough census of the two Bays, Sandwich and Eskimo, for the Canadian Government. To the best of my recollection there were about 350 people in Sandwich Bay and about 700 in Eskimo Bay.” 1911 is after the controversy arose. When I said just now there was really no evidence of Canadian activity in this area, I had in mind the possibility it might be said: “Oh, yes, we took a census.” Paragraph 5: “I used to send stores to Mud Lake, a sub-post of North West River, about eighteen miles further up the Bay situate at the entrance of Grand River. Mud Lake is about the end of Salt Water. When the tides come up it ‘backs up’ the River there in its flow outward.” Paragraph 6: “The Indians used regularly to come to Davis Inlet from the interior. Sometimes considerable
numbers of them, amounting to not less than about 100, came from Ungava Bay, and I often did 5,000 dollars of trade with them in one season.” Paragraph 7: “Indians used also to come out to North West River every Summer and Winter. In the Summer they would camp there for weeks, make their canoes, dress their deer skins, and do other work, and in the Winter they would come out to trade. We opened accounts for many of them and made them advances every Fall against their Winter's catch of fur, and the number of them coming out is increasing in recent years. Our Company has recently bought the Revillon Company post at North West River and that Company had withdrawn from Labrador altogether.” Paragraph 8: “During all the time I was on Labrador the Newfoundland Government always prohibited the cutting of timber within a three-mile limit from the sea”—of course, if the Canadians' case is right, that is going three times further inland than they had any right to go—“and forbade the Summer fishermen, the permanent settlers, the Eskimos or the Indians to trap for fur out of season.” Paragraph 9: “The permanent residents, who numbered on the average some 3,000, always subsisted on furring in the Winter. Men, women, and children took part in it, and their hunting took many of them as far as the height of land.” Paragraph 10: “At North West River the tide in the Fall of the year is brackish and the water too salt to be drinkable.” Paragraph 11: “My Company was frequently called upon to relieve distress, and when this happened used to recover the money from the Newfoundland Government. Such relief was given not only to the white settlers but also to the Eskimos when required.” Paragraph 12: “The whole of the Hamilton Inlet as far as Goose Bay is navigable by steamers.” Goose Bay is, I think, at the extreme west. It is navigable by quite big steamers; I have the soundings to show to your Lordships. “The Newfoundland Government's mail steamers regularly go to North West River.” I think for the present purposes that really indicates what I want to indicate on that sort of point.
Now I should like to tell your Lordships how the present controversy arose and what is the area and what are the circumstances in which this suggestion that we had been wrong in our view comes up. Let me first get rid of a point which does not on analysis hurt me at all. In 1880, as your Lordships remember, there was an Order in Council (you will find it in the red volume at page 244) which annexes to Canada all British North America except Newfoundland and its Dependencies. “Imperial Order in Council of 31st July, 1880, annexing all British Territories in North America (except Newfoundland and its Dependencies) to Canada.” Now it does not carry the matter a step further. I, of course, concede that I am not entitled to succeed in the present contention merely by saying this is No Man's Land, and I should have some of it. If it is No Man's Land it is not my land. But on the other hand, if the construction for which I am contending of the Statutes and Orders in Council is correct, neither does this Order in Council of July, 1880, reduce my rights by one bit. So that neither anything which has been done under the Order in Council—and may I
add, and I do it with intention—nor anything that could be done by Canadian legislation, will reduce the area which is annexed to Newfoundland at all. I mention the possibility of Canadian legislation because after this controversy arose, when it was at an acute stage, the Dominion Parliament thought fit to pass legislation in which it purports to define the boundaries of Quebec in terms which I submit obviously invade my area. All I say about it is that in so far as it has done so it is perfectly nugatory and therefore we are ultimately thrown back to the question of what the Imperial Acts of Parliament and Grants effected.
The present controversy may be said to begin in 1888. When I say the present controversy I do not for one moment mean any controversy between the Dominion and Newfoundland. That did not arise until much later. The first thing that happened was that Mr. Justice Pinsent, who I rather think was the son of Judge Pinsent, whose name you have seen, thought it desirable to point out that it was just as well to have this thing cleared up; and if your Lordships will look in Volume II, at page 341, you will see that Mr. Justice Pinsent (the son, not the father) is writing to Governor Blake. It is really a Newfoundland Judge writing to the Newfoundland Governor. He is saying that it would be desirable to have this thing made quite clear. “Sir, I have the honour to bring under your Excellency's notice a matter of no little importance touching the territorial limits of Labrador as a dependency of this colony. Some years ago I submitted the point to Governor Sir John Glover, but either his illness or his removal about that time prevented his giving it much consideration. The matter is one not without importance in its general bearing upon the rights of government, but it comes to be of practical and essential significance when questions of either civil or criminal jurisdiction arise, and they may at any time arise, particularly on the northern circuit of the Supreme Court where I so frequently preside. The case in which the difficulty first became prominent was upon the trial in St. John's of an Eskimo Indian for the murder of his wife on the coast of Labrador. The question of the jurisdiction of the Supreme Court was then raised on behalf of the accused, and not without much force, but the locality of the offence was so near the coast that the court overruled the objection. The extent of the jurisdiction of the Government of Newfoundland in Labrador is thus defined by letters patent of the 28th March, 1876.” Then he appends the extract from the letters patent which were then current. Then he says: “For the purpose of illustrating the matter clearly, I enclose portion of a map of the Dominion of Canada, published by Canadian official authority, in which all that part of the peninsula of Labrador coloured white is, as it were, allowed to belong to this Government, but if that area is compared with the description taken from the royal letters patent constituting the office of Governor and Commander-in-Chief of the island of Newfoundland and its dependencies, it will be seen that the territorial extent of (Newfoundland) Labrador represents a vast deal more than would be ordinarily intended by the term ‘coast,’ and,
moreover, extends inland and west of the line drawn due north and south from Anse Sablon eight to nine degrees. This Canadian topography is, I think, quite correct so far as the limits of the Dominion territory are concerned, and the remainder of the coast of Labrador would thus quite naturally belong to this Government, but they are not so described and defined in the letters patent or commission of the Governor of this colony, and indeed the description falls very short of covering the whole ground, and when questions of jurisdiction arise the court has to determine in every case whether the particular locality is upon the coast of Labrador or not. The fact is, there are some settlements of importance far inland, e.g., notably in Hamilton Inlet, over 150 miles from the sea coast. The geographical reasons for the division given in the Canadian map are clear enough, as the north-western portion of Labrador, or that which drains into Hudson's Bay and Hudson's Straits, now forms the north-east territory of the Dominion of Canada, and the southern portion, draining into the Gulf of St. Lawrence, is incorporated with the Province of Quebec. At the same time the Canadian authorities are not certain or precise as to their boundary lines, and they are marked, as your Excellency will perceive, ‘supposed boundary,’ and possibly the course of the North West River, so far as it runs from the 52nd parallel, would, regarded naturally, be the more
consistent and definite dividing line. The publication by Canadian official authority of the map in question or some such other may be useful as a definition of the rights of the Dominion of Canada, but it would not have the effect of conveying to Newfoundland British territory not included in its own, and which might, from not being by Imperial authority embraced in either, he a sort of ‘no man's land,’ over which neither of the colonies could exercise government nor their courts jurisdiction. I have therefore to submit to your Excellency and to Her Majesty's Government the desirability of so defining the territorial boundaries of that part of Labrador intended to be attached to Newfoundland as a dependency of its Government, that no doubt may be left as to the jurisdiction of its courts and the authority of its officers.”
Viscount HALDANE: I think that is a very practical letter.
Sir JOHN SIMON: Quite, and his attention has been called to it because he has been trying an Eskimo, and the defence, having nothing to say on the merits, I suppose, took exception to the jurisdiction.
Mr. MACMILLAN: With much force.
Sir JOHN SIMON: Certainly with much force; it is sure to be forcible when you are defending a gentleman charged with an offence of that kind.
The LORD CHANCELLOR: I do not see what he means by the North West River running from the 52nd parallel.