In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Monday, 25th 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 ofNEWFOUNDLAND 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. PLAXTON (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
The LORD CHANCELLOR: I presume, Sir John, you have completed your preliminary sketch.
Sir JOHN SIMON: Yes. I have covered a good deal of ground. and I hope it may save time now and later on. I think it would be convenient if I were to indicate now the compartments which I have to trouble your Lordships with in rather more detail. This is a case where I believe at this stage it is very easy to move from one branch of the case to another, but it might be convenient if I indicated the compartments I considered I should have to deal with.
I should like first of all to take up the question of the area of the Hudson's Bay territory a little more fully. I have had in mind one or two observations which the Lord Chancellor and others have made about the boundary indicated in the maps, and I think I am now in a position to deal with the remainder of that matter and dispose of it. It is a very important part of the case, I think. Then there is a thing which may, I am afraid, seem a little wearisome, hut it is really necessary. It will be necessary in another compartment to take the early and crucial document—the Commission to Thomas Graves in 1763—and in addition to the Commission itself to read some portions of the instructions which accompanied it, and also to read the documents which are on record and which were drawn up at the time, showing how the Lords of Trade and Plantations, as they were called—the predecessors of the Colonial Office—who looked after both trade affairs and what were called colonial affairs, approached and discussed the question of the redistribution of British land in America. There is a very important series of documents passing between the Secretary of State and the Lords of Trade and Plantations which show that questions like the new boundary for the Province of Quebec, and other things of that sort, were all being carefully discussed before this formal document appeared. A good deal of reliance is placed upon passages in this document by the other side, and I must call attention to them. Then the third compartment of the case, which also arises directly out of that, is the problem of the Indian lands.
I indicate those three large heads—the Hudson's Bay Company matter, the contemporary documents associated with the formal grants and definitions of 1763, and the Indian lands. I think those three heads will all be found to be of some importance.
I will take the Hudson's Bay Company matter first. Your Lordships have already a very clear view of the Hudson's Bay part of the case in hgoutline, and a number of things have already been noted in the course of the argument. But what is a little important to appreciate is this. The Hudson's Bay Company by their original charter of 1670 had, as
we know, no interior line actually laid down by metes and bounds. That is not to say that the area of the Hudson's Bay Company is not one which by the terms of the definition could be ascertained, and my case is that the Hudson's Bay territory really was a territory that ran up to the height of land, and that there is a great deal which confirms that when one looks rather more closely at the documents. You will find that at a later stage the Hudson's Bay Company itself expounded its view as carrying up to the height of land, and that that view is acceded to by the British Government; and it is very important for me to show that this horse-shoe shaped piece of land round Hudson's Bay coloured green in the Arrowsmith map of 1857 is really defined by some such method, because, of course, it at once gives me a natural boundary at any rate at the Cape Chidley end.
The LORD CHANCELLOR: What number is that map?
Sir JOHN SIMON: The Arrowsmith map is No. 26 in the Newfoundland Atlas. This is the map which your Lordships will remember was ordered by the House of Commons to be printed in 1857 at the time when there was this Parliamentary inquiry. If your Lordships will examine the green area from the point of view of the height of land, you will see that on the eastern side it is plainly so indicated. There is no doubt at all that the green on the eastern side where it marches side by side with the pink of Labrador or with the pink of Canada East or Canada West is drawn in that way.
The LORD CHANCELLOR: Does it say so anywhere on the map?
Sir JOHN SIMON: No; but examining the indications of the rivers, you will see that at every point the rivers determine the colour, green or pink, which is used.
The LORD CHANCELLOR: I see what you mean.
Sir JOHN SIMON: That is not so entirely on the western side. It is to some extent, but it might perhaps be said that there are some exceptions. I am not quite sure that they are very material.
Sir THOMAS WARRINGTON: It is so with reference to the Chesterfield Inlet and the stream running into it. That seems to be pretty clear.
Sir JOHN SIMON: Yes, I think so.
Sir THOMAS WARRINGTON: It looks like it there.
Sir JOHN SIMON: Then, when you come a little lower down, there is a large lake, Wollaston Lake. Whether rightly or wrongly, I think it is indicated that there is a draining away from that height of water to
the Great Slave Lake in the north-west. My Lord is beating the bounds for the purpose of seeing why the boundary is put there. Then if you come a little further down between the letters “N” and “O” of the word “North” in “British North America,” you see there is an uncoloured space which indicates apparently a big lake. and I think it looks as though that was draining north-west through the Slave River into the Great Slave Lake.
Sir THOMAS WARRINGTON: Wollaston Lake seems to have two outlets. It seems to have one on the north and one at the middle of the eastern side.
Sir JOHN SIMON: Yes. It is what I had in mind the other day when Lord Finlay said to me that there were places in North America where you get very near to that sort of thing.
Viscount FINLAY: The case I referred to was in South America.
Sir JOHN SIMON: In British Guiana.
Viscount FINLAY: Yes, in British Guiana.
Sir JOHN SIMON: I thought I answered that by saying that there were apparently instances of that here too. When you trace it along between the green and pink, coming down nearer the Rocky Mountains, the same thing seems to be true until you come to the Rocky Mountains, and then it runs along the Rocky Mountains until it strikes the southern boundary, which has nothing to do with the height of land as such. That is the famous boundary of the 49th parallel, which was the subject of the most fierce contest as between the United States and Britain, and which ultimately resulted in the United States establishing that it had got, as from a particular point south of Winnipeg right away to the Pacific, as its northern boundary the 49th parallel. That is not a boundary by reference to physical geography, but a boundary by reference to latitude.
Sir THOMAS WARRINGTON: There is a curious little inlet in the middle of the 49th parallel going round apparently the sources of Milk River, Porcupine River and White Fish River.
Sir JOHN SIMON: I observe that. That is a strong confirmation of the reading of the map. The meaning, I think, is this. As between the United States and Britain the question is whether it is the Stars and Stripes or whether it is the British Flag, and the boundary is the 49th parallel. But far as the Hudson's Bay grant is concerned, the Hudson's Bay grant went up to the height of land and no further. And if there did happen to be, therefore, a point in this part of the world where you got over the watershed before you reached the 49th parallel, it was difficult to see how the title of the Hudson's Bay Company would
give them that small portion. I think it confirms the general structure the map.
The LORD CHANCELLOR: But Canada would have that island.
Sir JOHN SIMON: As a matter of fact, the whole thing was solved by the Hudson's Bay territory being thrown into British Canada, and there is an end of it. Then there is another fact which was mentioned, I think, by Lord Haldane, and which it is important to remember in this connection.
The LORD CHANCELLOR: Where does the line run along the Rockies? I see it as far as the Rockies. Does it run along the summit of them, or how?
Sir JOHN SIMON: I should not like to say at all.
The LORD CHANCELLOR: It is difficult to see.
Sir JOHN SIMON: I always feel when one looks at a map first and then looks at the thing in Nature afterwards, one appreciates that the map-maker tends to make the mountains run in a very sharp easy ridge with the kind of appearance rather of a woolly caterpillar crawling along the map, whereas when you come to look at the mountains you always find there is range behind range.
Viscount FINLAY: It looks much easier on the map.
Sir JOHN SIMON: It does. It did in the Alaska Arbitration.
The LORD CHANCELLOR: At the lower end it looks as though it stops short of the mountains. I cannot see where it runs in the intermediate space. It is not very clear.
Sir JOHN SIMON: I think I made good my point that so far as this matter is concerned, long after the grant, when this thing was investigated with great minuteness, and the Parliamentary Committee made its report, there can be no doubt at all that they took the view—1 will show in a moment how consistent it is with a number of other things—that that was the way in which you found out to what distance back from the water the Hudson's Bay territory went.
There is another point which Lord Haldane happened to mention on Friday, and it is very important. There was, as my Lord truly said, another company at one moment—a rival company—which was called the North West Company. It was not a company which had a Royal Charter. That was not the nature of the North West Company. The North West Company was a company which was formed in Montreal, I think, in the Province of Quebec. A number of gentlemen, mostly Scotsmen, I think—I notice it is very often Scotsmen who make these