of the former possession in relation to the latter or to the Colony of Newfoundland.”
Viscount HALDANE: I think you must read this, it is very interesting, but I cannot see how it can bear on the construction of the Statute.
Sir JOHN SIMON: My Lord, I think I have made that concession in very plain terms, and I hope I am not thought to be doing more than I should.
Viscount HALDANE: No.
Sir JOHN SIMON: I am quite prepared to accept the view that it is interesting rather than directly probative, but the interesting thing is that what is going to be enclosed is the actual report made to and by the Privy Council of Canada on this matter. That is the interesting thing; it is rather like the maps, in a way. Then he says: “A map showing the exact boundary on the coast and the assumed boundary in the interior, is also enclosed.” Then the enclosure is a Despatch from Lord Dufferin, that is at the bottom of page 2294: “With reference to your despatch of June 20th, and to subsequent correspondence making an inquiry on the part of the United States Government as to the position of Labrador in relation to the Dominion of Canada or Newfoundland, I have the honour to enclose, for the information of Mr. Fish, a copy of an Order of the Privy Council which contains the views of my Government on the subjects.” That puts it very justly, I think. It is only the views of the Government in 1874; it is not in any way estoppel. Then he says that appended is a map. I can show your Lordships the map; I have it.
Now this is what, after deliberation, in 1874 the Canadian Privy Council had got to say. They recite the despatch and then they say at line 10, on page 2295: “The Honourable the Secretary of State to whom this despatch, with enclosures, has been referred, reports that the boundary line between the Dominion of Canada and Labrador is a line drawn due north and south from the Bay or Harbor of Ance au Blanc Sablon, near the Straits of Belle Isle as far as the 52nd degree of north latitude; that Labrador eastward and northward from that point to Hudson's Straits.”
The LORD CHANCELLOR: I do not understand that.
Sir JOHN SIMON: I think it must be “Labrador lies eastward and northward.”
Sir THOMAS WARRINGTON: There is a line of something left out there.
Sir JOHN SIMON: I will have that checked. Then: “That the division-line in the interior separating Labrador from the Dominion of Canada has only been defined as far north as the 52nd degree of north latitude, but it has been assumed that the boundary line in the interior would have taken the direction laid down on the accompanying map, which follows the height of land.”
Viscount HALDANE: That might be interesting, because there is a statement that there is a map which follows the height of the land.
Sir JOHN SIMON: I am going to show your Lordships the map. “That Labrador, with the islands adjacent thereto, is annexed to Newfoundland, and under the Government of that Island.” What is significant—I will not say anything more—is that this is what the Dominion of Canada says: “Attached to the Report of the Secretary of State are extracts from the Imperial Statute bearing on the question, and a map showing the exact boundary on the coast and the assumed boundary in the interior. The Committee recommend that a copy of this Minute with map and extracts from the Imperial Statute, above alluded to, be transmitted to Sir Edward Thornton for the information of the United States Government.”
I cannot help thinking, therefore, that “assumed boundary,” perhaps even “supposed boundary,” may possibly be understood rather as indicating that people did not know where on the ground the height of land exactly was, as distinguished from throwing doubt upon the question as to whether or not it would be a boundary ascertained by reference to the height of land.
Lord SUMNER: Is this a possible alternative? The Crown being entitled to the whole Peninsula of Labrador, however acquired, has at some time or other so dealt with it as that the whole of it is now territory of Canada or of Newfoundland and none remains unappropriated by the Crown, but the Crown has not yet directed what boundary between the two is to be drawn, and that may remain to be delimited possibly as a matter of legal inference from what has been done or possibly under some Act of State yet to be determined.
Sir JOHN SIMON: I think your Lordship is quite right.
Lord SUMNER: In the latter case we might delimit it.
Sir JOHN SIMON: No doubt it would be a short cut, though probably at this time of day there would be some difficulty.
The LORD CHANCELLOR: What does the map refer to?
Sir JOHN SIMON: I will show your Lordship in a moment; may I just finish my reading? What Lord Sumner says is, however, important, and indeed it is a point which I am anxious to make. May I
anticipate by saying that it is important for me to show, if I can, that in the disputable area you do get a distribution of the area as between these two. On the other hand, it would be a matter in my friend's favour, and I admit it quite frankly, if he was able to establish that there is a tertium quid in Labrador. The importance of this to me is not merely that the Dominion of Canada took the view that the height of land settled it, but that the Dominion of Canada, the Government here at home and everybody else said: “and that exhausts Labrador.” The reason why that was the point was that if it did exhaust Labrador the Treaty of Washington of 1871 would not have been of any use. The Treaty of Washington did not say that for 15 years products of the British Empire should pass in free.
May I just give your Lordships the section; I have it here in the Collection of Treaties. The Treaty, which is the Treaty of 8th May, 1871, dealing with the Alabama Claims and with fisheries and with all sorts of things, contains two clauses. One clause is Clause 32. It says it is agreed by the provisions and stipulations that the operation of these articles, including Article 21, shall extend to the Colony of Newfoundland; and when you go to Article 21, it is agreed for the term of years mentioned in Article 33, that was for 15 years, that fish-oil, fish of all kinds, and a number of other things, being the produce of the Fisheries of the Dominion of Canada or of Prince Edward Island or the United States, shall be admitted into each country respectively free of duty. The point of the inquiry made by the Secretary of State for the United States was this: “Is there not a tertium quid? These things from Labrador; that does net tell me that they come either from the Dominion of Canada or from the Colony of Newfoundland, and if there is a No Man's Land, I shall still have to consider whether there is not duty to be paid.” Therefore, as Lord Sumner truly says, it was not material for this purpose to determine exactly where the boundary lay. The important thing was to ascertain: Did the boundary on the one side of it give you Canada and on the other side of it give you Newfoundland? You will find that is the precise thing that Lord Derby, writing from the Foreign Office here after communication with Canada, says is the fact.
My Lords, may I just finish my reference to page 2295? The Minute of the Canadian Privy Council annexed or enclosed extracts from Statutes, including the Statute of 1825. Then at the bottom of page 2297, Lord Carnarvon is sending to Lord Dufferin, who was the Governor-General of Canada at the time, that is to say, the Colonial Secretary was sending to the Governor-General of Canada at the time, for his information, despatches. I need not trouble about those two pages. Then on page 2299, Sir Edward Thornton, reporting to Lord Derby, writing to the Foreign Office, says: “My Lord, in the 19th June last Mr. Fish addressed me a note enquiring whether Labrador formed part of the Dominion of Canada, although he was under the impression that it was politically atached to Newfoundland. He also asked whether any part of Labrador was separated either from the Dominion of Canada or from Newfoundland. Without knowing what might be the precise object
of this enquiry, I forwarded it to the Governor-General of Canada. During His Excellency's absence from Ottawa, Mr. Watson, H.M. Chargé d'Affaires, received on the 11th of July a telegram” and so on. Then he says he had a further note. Then at line 30 he says: “The latter then at once communicated to Mr. Fish the contents of Mr. Scott's above mentioned telegram informing him at the same time that he would also convey to him the contents of a Despatch which he expected from Lord Dufferin as soon as he received it.” Then he describes that there was some delay, and at the bottom of the page says: “It was only on my arrival at Washington that I learned from Mr. Cadwalader that these enquiries had reference to cargoes of fish which were arriving from Labrador and with respect to which the Treasury Department doubted whether they could be admitted free of duty under the Treaty of May 8, 1871”—that is the Treaty of Washington—“as coming either from the Dominion of Canada or the Colony of Newfoundland.” Then the last paragraph: “Fortunately Lord Dufferin yesterday paid a visit of a few hours to Washington, when I stated the case to him. In reply His Excellency authorized me to inform Mr. Fish that Labrador is under the jurisdiction of Newfoundland and is included and forms part of that Colony.”
Your Lordships see that was not quite accurate, and the very accurate officials of the Foreign Office observed the inaccuracy and corrected it. It was not true that it was all Newfoundland, because there was this distribution between Quebec and Newfoundland. If your Lordships will now observe the language of the document on page 2301, you will see it is most carefully stated and most accuratey stated, from the Colonial Office to the Foreign Office: “I am directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the 10th instant enclosing a copy of a Despatch from the British Minister at Washington respecting a question raised by the United States Government,” and so on. “It appears from Sir E. Thornton's despatch that on the authority of the Governor-General of Canada he has informed the United States Secretary of State that Labrador is under the jurisdiction of Newfoundland and is included in and forms part of that Colony, but I am to point out for the Earl of Derby's information, said to have been given by Lord Dufferin (as it would seem in conversation and without having referred to his Government), does not appear to be altogether correct.” That ought to be: “but I am to point out for the Earl of Derby's information that the information said to have been given by Lord Dufferin.” Then: “The Act 6 Geo. IV. Cap. 59 settles the boundaries between Newfoundland and Canada, on the Labrador Coast, and Lord Derby will perceive on reference to the 9th sect. of the Act, a copy of which I am to enclose, that part only of Labrador belongs to Newfoundland and the rest to Canada. Lord Carnarvon apprehends, however, that the inaccuracy in Lord Dufferin's alleged statement is of no practical consequence so far as regards the particular question at issue, inasmuch as the whole of Labrador belongs either to Newfoundland or to Canada, and the produce
of the fisheries both of Canada and of Newfoundland are entitled to be admitted free into the United States under the 21st and 32nd Articles of the Treaty of Washington.”
Now let me at once make the point: I make it both to help the Tribunal and because I do not want to be thought not to have observed it. Inasmuch as we are dealing with cargoes of fish, it is not a very extravagant assumption that the fish would come from either Newfoundland, Labrador or Canadian Labrador; I mean, you cannot get fish from a spruce forest. But at the same time it is really a very striking fact, exactly the same as these maps, there can be no doubt whatever about it, that after the most formal and careful and thorough consideration by all the authorities concerned who might be supposed to have had any possible temptation the other way, they asserted that all the rest of this is Newfoundland. Newfoundland takes no part in the discussion, but the Canadian Government, the Canadian Privy Council, the Colonial Office, the Foreign Office, all do.
Now the map that your Lordship asked about is to be found in our Atlas at No. 32a; there is a No. 32 and also a No. 32a.
The LORD CHANCELLOR: Is this the one?
Sir JOHN SIMON: This is the very one.
The LORD CHANCELLOR: It says in your Case that it has not been possible to trace it.
Sir JOHN SIMON: It has been traced since, my Lord. We have had the great advantage of the assistance of Mr. Hardy, of the Record Office, and he has found this map actually attached to the Despatch in the Record Office—I mean the thing from which this is reproduced. I can see at once that it may be said: “Well, but it is not quite right.” That, of course, is a perfectly fair comment to make, but it is a most curious thing that, at any rate, whether you should draw the line, as Lord Warrington vas rather disposed to draw the line, along the 52nd parallel without allowing that bulge, or whether you should allow the bulge in order to try to get back to the height of land, there cannot be any doubt at all that this is drawn on the principle that the Labrador Coast is between Cape Chidley and Anse Sablon, that is the green thing, and that the additional piece of the Labrador Coast which has been re-annexed to Canada, to the Province of Quebec as it was, in 1825, is the pink bit, and then Rupert's Land. On the map itself you will see “Land” over the yellow. That is the termination of the inscription “Rupert's Land.” if you took the whole map.
The LORD CHANCELLOR: “Rupert's” is written in the margin.
Sir JOHN SIMON: Yes, in the way it is done for convenience sometimes to show how it is. Rupert's Land is this other area. It is a very interesting and curious thing.