The Labrador Boundary

Privy Council Documents

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28 Oct., 1926.

Mr. Barrington–Ward.

The Lord Chancellor.

Mr. Barrington–Ward.

Mr. Macmillan.

28 Oct., 1926.

Mr. Macmillan.

Viscount Haldane.

28 Oct., 1926.

Viscount Haldane.

Mr. Macmillan.

The Lord Chancellor.

Sir Thomas Warrington.

8 Oct., 1926.[sic]

Sir Thomas Warrington.

Mr. Macmillan.

28 Oct., 1926.

Mr. Macmillan.

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statute, though that might be a very reasonable arrangement, it is not an arrangement which the statute seems to have in view.

The LORD CHANCELLOR : Then you draw the line at the river. Would you then dispute that this island is adjacent to the part annexed to Canada ?

Mr. BARRINGTON–WARD : I think it would be very difficult to determine. That would be a matter really for physical observation, or perhaps measurement.

The LORD CHANCELLOR : Surely not. Take it on the map.

Mr. BARRINGTON–WARD : My only authority for having any doubt, I think, is confirmed if you look at page 3957. Canada were quite confident it was annexed to them, but the Secretary of State says, at line 21 : “ On referring to this chart ”—that is Bayfield's Chart of 1832–34—“ I cannot say that I think it so conclusive on the question of proximity as it appears to yourself.” I am in that state of mind also. It is very difficult to say. Of course, if your Lordships should be against our contention on the main point as to where the line should be drawn, then cadit quaestio—I could not argue it.
I hope I have not taken up too much of your Lordships' time this afternoon in dealing with this matter. It is always a little difficult when one has had a case exhausted by one's leader, to add anything of use to the discussion. I just want to mention two other things so that your Lordships should not think anything has been forgotten. I told you about the topography. The greater part of two volumes have been taken up with two matters, one known as King's posts, in Volume VII, and another with the religious activities exercised from the Canadian side, in Volume VI. We have carefully considered the matter, and though naturally we should be glad to explain the subject to your Lordships we do not quite see the relevance of either of those matters at the present moment, and in consultation with my learned Leader I was asked to mention them to your Lordships so that it should be realised that every document, so far as anything relevant can be found in these eight volumes, has been brought to the attention of the Board.

Mr. MACMILLAN : My Lords, I am happy at the outset of this case to find myself in agreement with Sir John Simon, all the more so because I am afraid as I proceed our ways will be found to part pretty widely. I agree with Sir John Simon, that your Lordships are not sitting as a Boundary Commission. Your Lordships' task is not to create a new boundary between the Colony of Newfoundland and the Dominion of Canada, but to declare an existing boundary between the Dominion and the Colony. That is, of course, a very broad and important distinction with regard to the task imposed upon your Lordships. It leaves the matter not at your arbitrement as to what you think would be the best boundary, but you are charged with the task of ascertaining what is the

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existing boundary which exists as a legal entity at the moment, and we are all engaged in the search for that line. It is implicit in certain documents, and from these documents the line has to be extracted.
My Lords, I am further in agreement happily with Sir John that the means for the ascertainment of this existing boundary are to be found in certain specified documents. These documents are the relative Statutes, Orders in Council, and Proclamations which are to be found in the red volume, Volume No. I, on page 149 and the following pages. The question for the Board has been so framed as to make the answer dependent upon the interpretation to be placed upon those documents, and amongst those documents in particular. I think I may say, we are also agreed that the question will have to be determined upon the view taken by your Lordships of five documents : (1) A Commission, Captain Graves' Commission of the 25th of April, l763, (2) a Proclamation, the Royal Proclamation of the 7th of October, 1763, (3) a statute, the Quebec Act of 1774, (4) also is a Statute, the Newfoundland Statute of 1809, and, lastly, the Lower Canada Act of 1825.
It is, my Lords, upon a sound construction of these documents that the solution of the present problem turns. While your Lordships are not sitting as Boundary Commissioners, neither are your Lordships engaged in hearing a litigation, and I accordingly propose in my address to the Board not to confine myself to replying to the points taken by my learned friend, Sir John Simon, but rather to open the case for the Dominion of Canada as a substantive case. I conceive it will be in accordance with your Lordships' wishes, therefore, that I should not, as one would do in replying in an ordinary litigation, deal with the points that have been taken against me by Sir John Simon, but preferably I should put before your Lordships the substantive case of Canada, and of course incidentally to that 1 will take up and emphasise the points which Sir John Simon has brought before you and do my best to answer them.
I think it might be useful if I, in what remains of this afternoon, indicate at once to your Lordships my conception of this enquiry. The task is a task of interpretation. It is a task of interpreting written documents, and as always happens where written documents are under interpretation, what one is in search of is the intention. What do those who used this language mean thereby to effect.

Viscount FINLAY : What does the language they used mean ?

Mr. MACMILLAN: That is true, my Lord, it is putting it the other way round.

Sir THOMAS WARRINGTON : What implication is to be derived from that language.

Viscount HALDANE : There is also a distinction to be drawn in the case of diplomatic documents, you have always a great advantage

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in ascertaining the points from which you start because they are laid down in the books of international Law.

Mr. MACMILLAN : Yes, one is not confined to the ordinary aids.

Viscount HALDANE : At the same time there is a large and intermediate matter to which both rules apply, and the question is always how much one applies to the other, for instance, taking historical considerations into account how far would they impress you.

Mr. MACMILLAN: No doubt. I am sure I have your Lordships' assent to this : primarily the task is, given certain words, what do those words mean.

Viscount HALDANE : Yes.

Mr. MACMILLAN : What is the intention which is to be derived from those words as used by the person who used them.
Now, my Lords, may I so to speak give the scheme of what I propose to put before your Lordships, thus : There are two means whereby intention may be ascertained. You may ascertain it first of all from intrinsic evidence, the terms of the documents themselves. What in the present case is the inference to be drawn from the language used in the documents as to the scope of the right conferred thereby on Newfoundland. If the meaning of those documents is intrinsically clear, as we submit it is, then, of course, it is unnecessary to go beyond the documents at all, but if, on the other hand, the language of the documents be found on examination to be obscure or ambiguous or inconclusive then and then only is it legitimate to resort to extrinsic evidence. In the present case it has interested me to note that in my learned friend's address he has confined himself almost entirely to what one may call the secondary class of evidence. His examination of the documents has been comparatively brief, but his exposition of what really is after all extrinsic evidence has been prolonged and detailed.

The LORD CHANCELLOR : Do not you put that too high, Mr. Macmillan, if the document on the face of it is ever so clear, are you prevented from knowing the conditions in which it was signed, and the circumstances existing at its date ?

Mr. MACMILLAN : I would submit that if the document is absolutely clear then you need nothing more.

Viscount FINLAY : You may want to know what the circumstances were for the purpose of seeing whether it is absolutely clear.

Mr. MACMILLAN : No doubt.

Sir THOMAS WARRINGTON : But you see, Mr. Macmillan, if the

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documents are clear, as I understand the rule about extrinsic evidence, then you do not admit extrinsic evidence at all ; it is because there is what English law would call a latent ambiguity, that is to say, the document may appear clear on the face of it, but when you know the circumstances there is doubt.

Mr. MACMILLAN : Yes, you may have to look at the surrounding circumstances to set up the ambiguity. That is perfectly clear.

The LORD CHANCELLOR : I think you were putting it a little too high.

Mr. MACMILLAN : I am quite prepared to take it down a peg if I may. I am anxious to make the distinction between the two classes of evidence which one invokes in interpreting documents, because it is a very important distinction for the present purpose. I think I shall have your Lordship's agreement that the first duty is to see whether the documents themselves decide the question, but if you find the documents to be indecisive, then you may, legitimately, indeed you must, resort to extrinsic aids, but, my Lord, may I say this with regard to extrinsic evidence, that extrinsic evidence is of many kinds and of very varying value. There are certain forms of extrinsic evidence as has already been alluded to by my Lord Finlay, which are of the highest value, there are certain other forms of extrinsic evidence which may be of exceedingly little value, and in the present case it is of some interest to classify the aids which have been provided for your assistance in these documents in the nature of extrinsic evidence in the different categories into which they fall.
I have attempted to do so in this way. First of all there is the evidence to be derived from the surrounding circumstances at the time when the documents were drawn up. To put the matter in its ordinary colloquial form, I exhort myself to put myself in the position of the authors of these documents. To do so in the present case we have to consider the antecedent history. We have to consider the existing administrative position, and we also have, as part of the material, the preliminary reports and other written documents which led up to the formal executive or legislative acts. All these matters are of importance, they are extrinsic to the documents themselves, but they are all of value as enabling us to put ourselves in the position of those from whom those documents emanated, be they executive or legislative acts ; therefore to gauge the purpose which they had in mind when one is considering the language which they used to effectuate that purpose so ascertained, that class of extrinsic evidence may be of very great importance and may be of very great assistance—evidence of surrounding circumstances—put yourselves in the place of those persons who used that language. The second type of extrinsic assistance which one may get is from what is known as contemporary exposition. The document has come into being, be it a Proclamation or Statute, or some other executive instrument, and the law has always regarded the

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interpretation which in practice has been put upon the document at the time as of value, probably for several good reasons, the reason that occurs at once is this, that those who were acting on the documents at or about the time, were nearer the position of affairs. They were still speaking the same language, if one may put it so, as the authors, and they had perhaps a better means of knowing the purpose and intent of the document than we have. Looking back at them through the mists of time, the contemporanea expositio has always been regarded as of value, as an aid in the interpretation of written documents, at any rate, if they are of somewhat venerable age. Then the question comes to be : How did those to whom these documents were addressed interpret them by their actings or their writings at or about the time the documents were in existence ; of course, by this time the question is : How were they acted upon ?
My Lord, these two classes of evidence are conspicuous in these volumes, and I should be far from belittling their value, but there is a good deal more material before your Lordships, much of which I should suggest is of much less value. There is a considerable amount of material which is not contemporary at all ; it is information as to things done, things said, and things written, frequently many years after the time, not contemporary exposition but exposition long subsequent to the time when the documents came into existence, and that kind of evidence, for which a very large part of these volumes is responsible, is necessarily of very varying value indeed. There may be, here and there, clues to be found that may be worth following up, which may be of some value, but in this matter one must discriminate among the different categories. These three types of evidence, evidence of surrounding circumstances at the inception of the documents, evidence of what was done by way of contemporary exposition at the time, and evidence of the subsequent exposition, by act, word or deed later on, exhaust the three main categories of evidence which can be invoked for the purpose of arriving at an interpretation of these documents. There is always available, of course, another type of aid, I mean the ordinary aids of interpretation which are to be found in dictionaries, in judicial decisions, in arbitration precedents, and, if you please, in general principles of law ; in so far as these may be usefully invoked here, some have been invoked by my learned friend, and again a considerable amount of material of that sort has also been taken out and printed in these volumes. Now, I think, my Lords, I have in these categories, exhausted all the various forms of aid which one may call into play in the task of interpreting these documents ; and my own submission to your Lordships would be this, in the first place : that upon a fair reading of the documents, taken by themselves, it is abundantly plain that the subject matter of those documents was not, as Sir John Simon suggests, a large territory extending inland to the height of land, but was a maritime strip of coast necessary and proper for the pursuit of the fishery industry on the coast of Labrador. My Lords, may I put the problem in its precise legal setting, first of all, and I think I may best do it in this way : if you take the year 1808, at that time, it will be conceded on
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