The Labrador Boundary

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22 Oct., 1926.

Sir John Simon.

Sir Thomas Warrington.

22 Oct., 1926.

Sir John Simon.

Viscount Haldane.

Sir John Simon.

22 Oct., 1926.

Sir John Simon.

Viscount Haldane.

Sir John Simon.

Viscount Haldane.

Sir John Simon.

22 Oct., 1926.

Sir John Simon.

Viscount Haldane.

Sir John Simon.

Viscount Haldane.

Sir John Simon.

22 Oct., 1926.

Sir John Simon.

p. 94

aneous Statute of 1825, imply a view that “the said Coasts of Labrador,” between whatever termini the jurisdiction of the Governor of Newfoundland for the time being may be measured, is a thickness of land, a depth of land, which at any rate is not exceeded at Anse Sablon by going back to the 52nd degree of north latitude. That is the only point. Perhaps it is convenient just to observe what is common with these Commissions, that on the next page, page 719, in line 5, you find the words “and our will and pleasure is that there shall henceforward be a Council within our said Islands and Territories.”


Sir JOHN SIMON: It is in the 6th line on page 719. “Territories” is a word that is constantly used for this mainland, your Lordships will find—“Islands and Territories.” In the same way, at line 31, you find the words “to take the usual oath for the due execution of the office and trust of our Governor and Commander in Chief in and over our said Islands and territories, and for the due and impartial administration of Justice.” In the same way at page 720, at line 7, “and give to all Judges, Justices of the Peace, Sheriffs, and other persons holding any Civil Offices or places of trust or emolument within the said Islands and territories.” On the same page, near the bottom, at line 36, you will find: “And it is our further will and pleasure that you shall and may keep and use the Public Seal of our said Island of Newfoundland and its dependencies for sealing all things whatsoever that pass the Seal of our said Island and its dependencies.” You will remember that the dependency of Newfoundland is an expression that you find again and again. Then at line 40 you find “Islands and territories.” On the next page, page 721, at line 10, there is: “And we do hereby give and grant unto the said Sir Thomas John Cochrane full power and authority by and with the advice and consent of our said Council to erect and appoint or set apart convenient Court Houses for the holding the Supreme Court and Circuit Courts within the said Islands and territories.” It cannot possibly have been that the Supreme Court was going to sit on the sands of the seashore. In the same way there are provisions about appointing to benefices in the territories, and so on.
It is perfectly fair to say, in answer to that, where the language used in formal documents may often be large, it may have very little practical application to some portions of the area indicated, and that is quite true.

Sir THOMAS WARRINGTON: There is another passage at the bottom of page 721: “And we do hereby likewise give and grant unto you full power and authority with the advice and consent of our said Council to settle and agree with the Inhabitants of our said Islands and territories, for such lands, tenements and hereditaments as are now or hereafter shall be in our power to dispose of.”

The LORD CHANCELLOR: And just above that there is power to build cities and boroughs.

p. 95

Sir JOHN SIMON: It would become quite a populous place if all this happened. I am not in the least, I hope, exaggerating this. I quite recognise that in the formal document you may get rather widespreading language which, when it comes to the practical business of administration, may come to very little. It was a wild and almost uninhabited place. The number of people who were there might, I dare say, have been counted by hundreds. As a matter of fact, during the last century, for very considerable periods, the actual administration of justice on the mainland has been by Newfoundland, at one time by a Judge of the High Court, and at other times by other judicial officers. It is true that the actual administration has not gone very far inland. It has gone as far as the very inmost end of Hamilton Inlet, for example, which is 120 miles in from the general trend of the Coast. In the same way, when it comes to administration, no doubt it is true that the suppression of crime and the arrest of offenders, and all that, in the nature of things has been very limited, and the area in which it has happened has been comparatively small. That is not the point. The point is that when you examine, as you are required by His Majesty to examine, the Statutes, Orders in Council, and Proclamations, is not the true inference in point of construction that if the occasion arises when jurisdiction has to be exercised in this hinterland, which was at that time quite wild and uninhabited, the authority given to exercise it is given to the Governor of Newfoundland? That is really the point. I think it would be convenient to complete this sketch. I am afraid in some ways it must still be regarded as a sketch, the details of which must be filled up by chronology. I had got to 1825. Your Lordships will be glad to know that whatever has happened since 1825, there has been no further attempt either to enlarge or to diminish by statutory enactment the areas attributed either to Newfoundland or to the Canadian authorities.

Viscount HALDANE: How far can you make use of usage there? If there is a clear expression in a Statute, you cannot merely deal with what they have done on the map.

Sir JOHN SIMON: I do not think you can. My own view, which I submit most humbly to the Board, is that what one has finally to do is to take the language of the formal documents, and that what has been done under them, though no doubt matters which your Lordships will carefully consider, is an entirely subordinate question. It is quite possible that it has been done in error or misunderstanding. In so far as it has been done by common consent on both sides, and still more in so far as it has been conceded by one side to the other, probably your Lordships would think that a fact of rather more significance; but in the end we come back to the question as to what under the Statutes, Orders in Council, and Proclamations, in the area which is indicated by 45 the words used. All I am anxious to emphasise, even at the risk of much repetition, is that it is no answer to my case to say; Oh, but the

p. 96

thing that people were interested in was a fishery, and they were only bothering themselves about a few ships. That has nothing to do with it. It is an elementary proposition that the particular reason why you pass a particular piece of legislation, or exercise the prerogative—the motive, in other words, of what is done—may be a useful indication, but it does not cut down the proper meaning of the language used; for it may very well be that in an Act of Parliament, though your immediate purpose is addressed to a comparatively limited area, yet with the object of effecting your purpose you do as a matter of fact carve out a larger area, a fortiori in the case where the back land was regarded at the time and for many years afterwards as perfectly worthless. The alternative will have to be considered as to whether really there is any other indication of a narrower sort which the Tribunal can adopt and decide, always remembering that they are not invited to say what they think would be a convenient, or a reasonable, or an average boundary; they are invited to say what these documents say the boundary is.
Let us take shortly the remaining chronology. In 1840, as your Lordships know very well, the Imperial Statute 3 & 4 Victoria, Chapter 35, was passed, which reunited the two Provinces of Canada, Upper Canada and Lower Canada, after Lord Durham's report. I rather fancy, going through the earlier history, I did not happen to mention the year in which the Province of Quebec was divided into two, but the year, as your Lordships probably recall, was, as a matter of fact, 1791.

Viscount HALDANE: Then came the reunion and representative government, and finally I think Lord Aitken brought in a responsible government in the 'forties.

Sir JOHN SIMON: That is so. It is a point which is very often misunderstood. The passage from representative to responsible government, that all-important stage in dominion development, is not due to an Act of Parliament at all, but it is due to the decision that the composition of the Executive Council, which advises the King's representative, shall be of one political colour on the recommendation of the chief adviser, and shall continue as long as it is able to command parliamentary support.

Viscount HALDANE: That is so; but that apparently simple proposition took years to work out under Lord Durham, who was a very remarkable man, and had great tenacity of purpose, and it was not until about 1847 that a responsible government was established.

Sir JOHN SIMON: Your Lordship is quite right. Perhaps one may say that Lord Grey of Reform Bill fame, had as much to do with it as anybody. There is a remarkable book called “Lord Grey's Colonial Policy.” He sent to a very large number of His Majesty's Governors the despatches that directed them in choosing their advisers to choose from the body which was able to secure parliamentary support. In the case

p. 97

of Newfoundland you may take it that self-government in that sense began about 1855.

Viscount HALDANE: Will you just tell me this, with regard to the status of Newfoundland? It is described as a colony; but in what way is it short of a dominion? It has responsible as well as representative government.

Sir JOHN SIMON: It is a dominion, but I have been careful to use language which I believe is approved by Newfoundland opinion. Newfoundland takes great pride in calling itself the oldest Colony under the British Flag, and in no way resent, but rather applauds, the description of it as the Colony of Newfoundland. You will see this case is described as presented by the Colony of Newfoundland.

Viscount HALDANE: It is really a dominion. It first called itself a colony.

Sir JOHN SIMON: Its Prime Minister at this moment is attending the Conference of Dominion Premiers here.

Viscount HALDANE: Is there any technical distinction between a dominion and a colony?

Sir JOHN SIMON: No, my Lord; none.

Viscount HALDANE: Not that I know of.

Sir JOHN SIMON: In statutory language there are many instances of the sort, such as the Colonial Boundaries Act, or the Colonial Laws Validity Act, where you have a schedule which shows which are the areas under His Majesty the King which are being dealt with.

Viscount HALDANE: It is a constitutional difference.

Sir JOHN SIMON: That is it. I was saying that in 1840 was the reunion of Quebec and Ontario in the United Province of Canada. You may take it that 1855 is about the year when self-government, not merely representative but responsible government, began in Newfoundland.

Viscount HALDANE: Do you happen to remember what was the name of the Governor before Lord Aitken? He was a well-known man who had great difficulties to contend with.

Sir JOHN SIMON: I will let your Lordship have the name shortly. Then, my Lord, perhaps you will take note of this date. In 1857 there was a Select Committee of the House of Commons on the Hudson's Bay Company's administration.

p. 98

Viscount HALDANE: I think Mr. Gladstone sat on that Committee.

Sir JOHN SIMON: He did, my Lord. It was in that connection, you will remember, that the Arrow smith map was produced which is numbered 26 in the book. It is the one with the very big green area. As your Lordships are good enough to turn to it, I may perhaps tell you one rather interesting and significant fact which came out in the course of the Committee's deliberations. Would your Lordships find on Map 26, just beyond the green, and in Labrador, a place called Naskopi, it is just over the border. One of the things that happened in the House of Commons Committee in 1857 was this. There were people who very hotly criticised the way in which the Hudson's Bay Company had administered their affairs. Mr. Roebuck was, I think you may say, the leader of the critics. You will see the significance of my asking the place to be identified in a moment. The House of Commons Committee behaved, as such Committees not unnaturally do, in this way: that they demanded to have all sorts of explanations from the Hudson's Bay officials as to why this, that, or the other, did not go better; and one of the witnesses they had before them was a very distinguished man whose name is known, not only in connection with Hudson's Bay, but also in connection with British Columbia, namely Sir George Simpson. He was Governor of the Company of Hudson's Bay at the time. One of the things about which he was very much challenged was the failure—so it was alleged—of the Hudson's Bay administration properly to punish a man who was said to have maltreated (I rather think to have killed) a native at Naskopi; and his answer again and again was: “Naskopi is not in Hudson's Bay jurisdiction; it is in the jurisdiction of Newfoundland.” What Sir George Simpson said is not evidence, but it is an interesting circumstance that, in 1857, that was one of the matters which came out, and Naskopi acquired considerable importance in the Committee for that reason.

The LORD CHANCELLOR: It did not matter to him whether it was in the jurisdiction of Newfoundland or Quebec, I suppose?

Sir JOHN SIMON: It did not, of course.

The LORD CHANCELLOR: The point was that it was not within the Hudson's Bay territory.

Sir JOHN SIMON: It is rather this: nobody suggested at the time that it could be anything else. He did insist that it was in Newfoundland. I am not attaching importance to it, but it does fit in, that in 1857, when that map was printed by the House of Commons as the result of the Hudson's Bay Inquiry (and it is rather interesting to notice), there was confirmation that that is where you get the dividing line. Lake Naskopi is the head of the waters that are running down. As a


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