In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Tuesday, 26th 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.
Sir JOHN SIMON : My Lords, when the Board adjourned last night I was making a submission with reference to the Resolution of 1886 which is to be found at page 4005 of Volume VIII. It was a Resolution of the Quebec Legislative Assembly in 1886, and it was their proposal to enlarge the existing boundary of the Province of Quebec. My comment on it, which I mentioned last night, was that the view here taken by the Quebec Legislative Assembly as to their existing boundary is quite plainly based on the fact that down to that time the boundary of the Province of Quebec was the comparatively limited boundary for which we contend. I think I can make my point most plain if your Lordships will allow me to use my sketch map which your Lordships have. Your Lordships will see that I have my sketch map mounted on a board, and I have had the different coloured sections arranged so that they can be removed piece by piece. I should like to point out to your Lordships what the situation was in 1886, firstly as we contend, and secondly as Canada now contends against us. Canada contends with regard to the boundary of the Province of Quebec—which had been, of course, greatly enlarged in 1774 and had been carried right to the margin of the sea, covering therefore the green and the pink—that when in 1809 the policy was reversed and Quebec lost what had previously been attached to it by annexation from Newfoundland, all that Quebec had to give back to Newfoundland was a comparatively narrow strip running along the edge of the coast.
Viscount HALDANE: And also under the pink.
Sir JOHN SIMON: And also under the pink. That is the contention against me as to what happened in 1809.
Viscount HALDANE: Just let us be quite clear about what it means. It means that these lines drawn up to the 52nd parallel to the height of land were not limited to the territory transferred, but limiting the area in which the coast was.
Sir JOHN SIMON: Yes, that is quite right. That happened in 1825. Referring to the pink, the only other alteration, as my Lord has just said, was in 1825, when to a certain extent there was again a retracing of steps, and when there was given back to Quebec an area which was the pink.
Viscount HALDANE: You say there was given back an area, but you mean the coasts within that area were given back.
Sir JOHN SIMON: If your Lordship pleases. That is quite right.
Viscount HALDANE: You may be right, of course, about the meaning of “coast.”
Sir JOHN SIMON: I quite follow. Your Lordship has put it more accurately than I did. I want your Lordships see what was the situation in 1886. On the view which is now presented against me and which it is suggested is the consistent view, Quebec would in 1886 have included a very great part of the green. In fact it would have included all the green except whatever small edge of it might be supposed to be included in the expression “coast.”
Viscount HALDANE: They may have thought that, but there was another view that it was Crown land until the Order–in–Council of 1880 transferred it to Canada.
Sir JOHN SIMON: I quite appreciate that is an aspect I have to deal with, but for the moment I was directing attention to the view as to what would be the extent of the boundary of Quebec if the case against me is right.
Viscount HALDANE: Yes.
Sir JOHN SIMON: When, therefore, the Quebec Legislative Assembly in 1886 expressed this urgent desire to extend its boundaries, what are these boundaries which it wanted to extend ? If the case against me is right Quebec already had substantially all the green. Now if your Lordships will kindly look at page 4005, you will see what is the extension which Quebec asks for. They want to enlarge it so as to make the enlarged Quebec be this—it is at line 25:—“All the country bounded on the west by a prolongation of the present boundary line between Ontario and Quebec to the south shore of James Bay, and by the shore line of this bay as far as the mouth of East Main River, on the north by the right bank of East Main River from its mouth to its source”—I will show your Lordships what is the contemporary view with regard to that—“thence by a line drawn to the northernmost waters of the Grand River Esquimaux, Ashuanipi or Hamilton”—I can show your Lordships in a moment that at that time, it was thought that the head waters of the Ashuanipi would be quite close to the head waters of the East Main River, and therefore a short way across—“and by the left bank of this river to its mouth in Rigolet Bay (Hamilton's Inlet), on the east and north–east by the meridian of the easternmost point of the source of the River St. Paul or Little Esquimaux”—I do not think you will find that on the green of the map before you, but I can show it your Lordships on the contemporary map which was then being used—“and again on the east by this same river to the fifty–second degree of north latitude, following this parallel to its intersection by the meridian of
2 H 2
Anse au Blanc Sablon, the present recognised eastern boundary of this province.”
If I now take out my green section from my sketch map you will find marked behind it what is the boundary which Quebec was asking to have as an enlargement of its existing area. It was running, as your Lordships know, along the head waters of the East Main River, then getting across to what were believed to be the head waters of the Ashuanipi, and then carried to where the river reached Hamilton Inlet. I have drawn in pencil a somewhat thick black line perpendicularly showing the meridian of the easternmost point of the source of the River St. Paul or Little Esquimaux as the latest map showed it. Then, striking that, it was to follow the course of that river till it met the fifty–second parallel, and then follow that until it hit the meridian at Blanc Sablon.
If your Lordships will turn to the Map No. 36 in the Newfoundland Atlas, a map of the year 1882, only four years before, you will find I have put substantially correct upon this model the easternmost point of the source of the River Little Esquimaux. Your Lordships will find Esquimaux River marked slightly to the west of Blanc Sablon, with the Hudson's Bay Company's post at the mouth. If your Lordships will carry your eye up that river you will observe it appears to have two sources. I mean to say, it splits. If you take the easternmost point it ends in a sort of lake. That lake your Lordships will find on the 60th meridian of longitude. If I may trace the boundary backwards, what you are told to do is to use the 52nd parallel till you strike the River Little Esquimaux, and you are then to go up the eastern tributary of that river to its eastern source which is in substantial line with meridian 60. You are then to mount straight north till you strike just about where this great river comes into the Hamilton Inlet, and then you are to trace back along that river and ultimately get across to the East Main River. I am far from saying that there is anything conclusive in this case, and least of all in the acts of the parties, but it is a most striking fact that in 1886 after the rather detailed and careful Canadian survey represented in the official map of 1882, you should have the view first of all presented by the Quebec Government to the Dominion, and then in its turn adopted by the Dominion and acted upon, that what Quebec needed was to enlarge the boundaries as you see them on my model (now that I have taken out the green section), by bringing into it first of all, a portion of the brown, which was due to the fact that Quebec had never got the advantage of the Hudson's Bay territory passing into Canada—Ontario had, and Quebec had not—and secondly, a very substantial portion of the green. On the view now presented to me the green, or all but a little portion of it, was regarded as Quebec already.
Viscount HALDANE: By this time the claim was against the Dominion of Canada, but in 1884 Ontario had a large acquisition of territory in the north. They refer to it in the resolution. Before that
the Hudson's Bay Company had surrendered all its title to the Dominion.
Sir JOHN SIMON: It had done that in 1870.
Viscount FINLAY: So that the Dominion is now the person claimed against.
Sir JOHN SIMON: Quite right. A map which shows that particular thing very well and exactly illustrates Lord Haldane's point is the map next to the one I last referred to in the same book, namely Map No. 35 in the Newfoundland Atlas. You will see the thing exactly. This is the official map published by the Canadian Government in the year 1878. You will notice Ontario is marked there and coloured green. The green of Ontario runs up to James Bay. A very curious thing happened. The Hudson's Bay territory was thrown into Canada in 1870, and when it was thrown into Canada nothing happened for a moment, but by 1878 Ontario had secured that the boundaries of that Province of Ontario, or Upper Canada, were extended northwards so that they struck the seawater in James Bay.
Viscount HALDANE: Can you tell us where Winnipeg is in this map?
Sir JOHN SIMON: It is to the extreme left of the green of Ontario.
Viscount HALDANE: What is the name of the lake close by Winnipeg?
Sir JOHN SIMON: The Lake of the Woods. That is just at the north–west corner of the green. Then your Lordship remembers the boundary of Ontario had been defined to run up to and then along the Albany River.
Viscount HALDANE: La Portage was the dividing point.
Sir JOHN SIMON: Then, your Lordship remembers, it ran along the Albany River. I submit respectfully that so far as the conduct by the authorities concerned can be said to have any value, even an illustrative value, this is certainly a very remarkable illustration of the undoubted truth that, instead of regarding the area which the Province of Quebec lost by returning to Newfoundland what was Newfoundland's as being a mere narrow maritime strip, the true view was that Quebec had been thrown back in the position, for example, shown in this map, where, your Lordship recollects, the white represents what is non–Canada. What Quebec is saying is, “Since we have only got this 52nd parellel and the meridian from Blanc Sablon as our present boundary in that part of our Province, surely it is time our boundaries were enlarged, for the boundaries of Ontario have been enlarged.”