Confederation
1864-1949



The Labrador Boundary


Privy Council Documents


Volume I

Volume II

Volume III

Volume IV

Volume V

Volume VI

Volume VII

Volume VIII

Volume IX

Volume X

Volume XI
Contents

Volume XII








28 Oct., 1926.

Sir John Simon.

28 Oct., 1926.

Sir John Simon.

Lord Sumner.

Sir John Simon.

Mr. Barrington–Ward.

28 Oct., 1926.

Sir John Simon.

Mr. Barrington–Ward.

28 Oct., 1926.

Mr. Barrington–Ward.

28 Oct., 1926.

Mr. Barrington–Ward.




p. 295

Quebec as defined in 1763.” Might I say on that since Lord Sumner made an observation to me when he inspected Mitchell's map some days ago, while I appreciate the force of what my Lord observed, that the map indicates that the River St. John goes back above the 52nd parallel, I think on re–inspection, my Lord will find he will agree with me in saying that it only indicates it goes back a very short way, for this reason : my Lord, I think, was only looking at the main map, in which case the thing goes off to the north, but in the left–hand top corner there is a smaller map on a smaller scale of the Labrador coast, and you will see if you examine that, and lay the 52nd parallel down across it, as a matter of fact the mark intended to indicate the River St. John begins just about there. Then fifthly : “ It is true that the primary object of the inclusion of a part of Labrador in the Newfoundland Commission was in order to secure that ‘ the open and free fishery ’ (not only cod but also salmon, seal, &c.) might be extended to and carried on upon the coast of Labrador, but it by no means follows that the area annexed to Labrador is limited to a mere fringe ”—it is a submission or proposition in the strictest Scottish sense—“ The motive which causes legislative and executive authorities to resolve to make a change in the law cannot be treated as limiting the effect of the language which is used when they in fact change the law. The grant may well be of an area from Cape Chidley downwards stretching to the height of land, so as to include the seaboard, the administration of which is the immediate reason for the change.”
My Lords, sixthly, “ This conclusion,” I mean this larger interpretation, “ is the more easily reached in reference to an area which at the time and long afterwards was regarded as worthless.” Your Lordships, I think, have my point. It may be that a bibliophile urgently desires, or needs to acquire, one particular volume in a library, and it may be that when he makes his contract of sale and purchase he buys not the book, but the whole library ; you cannot say that he has not bought the whole library, bcause his object was only to buy one book ; and the probability of his buying more than one book is increased if the rest of it is thought at the time to be worth very little. Then 7, “ The words ‘ coast ’ and ‘ coasts ’ were constantly used in the 16th and 17th and 19th centuries,” I go no further, though I think it could go further, “ to indicate a territory with a defined sea frontage which stretched to the height of land. This language is employed even in cases where it was not known at the time how great a depth in mileage such a description might involve. Certum est quod certum reddi potest.” Then 8. “ Such an interpretation in the present case is confirmed by these three considerations,” I submit. “ (a) It secures that the additional area entrusted to Newfoundland does not trench upon the area already belonging to the Hudson Bay Company, for the height of land running South from Cape Chidley will be at one and the same time the Western Boundary of the one and the Eastern Boundary of the other (b) it explains why the area retransferred to Quebec in 1825, though bounded on the North by the 52nd parallel, was known to be part of the ‘ coast ’ previously annexed to Newfoundland ; (c) it provides a scientific and prac–

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tical test which enables the actual course of the boundary to be delimited with precision by the application of a prescribed formula to the physical facts, as and when those facts become precisely ascertained.” Then my Lords, 9. (I am sorry there should be so many.) “ The view contended for by Newfoundland is supported by the official maps and public declarations of the Dominion of Canada right down to the time when the backland was known to be worth having.” I said 9, but there are really 10, I had forgotten this one. “ 10. No other interpretation leads to the ‘ location and definition ’ of a boundary but at best would involve either a vague or an arbitrary conclusion.” I most respectfully submit on behalf of the ancient Colony of Newfoundland, that the considerations which it has been my duty to endeavour to lay before the Committee should lead to the conclusion that the boundary is a boundary to be fixed by reference to the height of land.

Lord SUMNER : There is one small point I notice in one of the Cases, it is with regard to that Island at Anse Sablon ; the question is whether it is an island adjacent to the one coast or to the other ; is there anything you wish to say about that.

Sir JOHN SIMON : That is one of the compartments, it is really a minor compartment, which my learned friend Mr. Barrington–Ward was going to deal with ; and I did not think it was a question which justified the two of us dealing with it.

Lord SUMNER : I only wanted to know whether you had considered that point.

Sir JOHN SIMON : Yes, my Lord. My learned friend Mr. Barrington–Ward has some remarks to add.

Mr. BARRINGTON–WARD : May it please you, my Lords. For some days past have had the pleasure of listening to my leained friend developing the arguments before your Lordships' Board, which, of course, represent the combined consideration of himself and his juniors in this case. What we have tried to do is to supply Sir John with all the assistance that is in our power to enable him to deal, in every compartment, with the case so as to present it as a whole before your Lordships' Board ; and I do not think that I should be serving any useful purpose by trying to improve in any way upon the remarks that my learned friend has already made to you on the various topics which represent the agreed submissions of the Counsel concerned in the case. What I, with your Lordships' permission and approval, propose to do is to deal as concisely as may be, with one or two topics which emerge, such as the minor topic which my Lord Sumner mentioned just now, a point which is, of course, of comparatively minor importance in the case, and generally to conclude and fill in the argument which has already been presented to you, in the detail and with the lucidity, if I may say it respectfully, which my learned leader always commands.

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The matter which I particularly want to deal with in the first instance (I am not travelling outside the submissions which have been handed to you) is that which is contained in paragraphs 5 and 6 of this document, if I might just read them again so that you should have them in mind : “ It is true that the primary object of the inclusion of a part of Labrador in the Newfoundland Commission was in order to secure that ‘ the open and free fishery (not only cod, but also salmon, seal etc.)” I pause there for one moment, just to make this observation : You will find in the Canadian Contention that the only fishery which they say is included by those words is the cod fishery. I shall have to develop that later on, and show that, at any rate so far as Labrador was concerned, the seal and the sea cow and the salmon fisheries loomed much larger than the cod fishery for a considerable and appreciable period of time.

The LORD CHANCELLOR : I do not see how seal and sea cow help you ; I can understand salmon.

Mr. BARRINGTON–WARD : Seal and sea cow help me in this way ; they are sedentary fisheries, and certainly with regard to the seal it is a seasonal fishery, and also with regard to the whale, it is a winter one. It goes on : “ But it by no means follows that the area annexed to Labrador is limited to a mere fringe. The motive which causes legislative and executive authorities to resolve to make a change in the law cannot be treated as limiting the effect of the language which is used when they, in fact, change the law. The grant may well be of an area from Cape Chidley downwards stretching to the height of land, so as to include the seaboard the administration of which is the immediate reason for the change,” and, my Lords, the pendant, if I may so call it, to that submission is, “ This conclusion is the more easily reached in reference to an area which at the time and long afterwards was regarded as worthless.” Now, my Lords, that submission immediately arises upon the passage in the proclamation of 1763. I am not going to read anything more than is necessary to your Lordships, if you will be good enough to have in mind the passage in the Proclamation by His Majesty of the 7th October, 1763. It is the first volume at page 153, and I am referring to the passage contained in page 154 at line 14. On that I am going to make three submissions, and then endeavour to assume one and make good the other two. The words are, “ And to the end that the open and free fishery of our subjects may be extended to and carried on upon the coast of Labrador, and the adjacent islands ”—your Lordships will notice these words, “ we have thought fit, with the advice of our said Privy Council, to put all that coast, from the River St. John's to Hudson's Streights together with the islands of Anticosti and the Madelaine, and all other smaller islands lying upon the said coast, under the care and inspection of our Governor of Newfoundland.”

Viscount HALDANE : You notice the words, “ under the care and inspection.”
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Mr. BARRINGTON–WARD : That is why I want to make a remark straight away on that. Your Lordships see that those are words in the recital, they recite something which has happened ; they are not operative word at all. It is not a case of His Majesty saying, “ We hereby place the Coasts of Newfoundland under the care and inspection,” that would raise quite a different question altogether ; it is merely a recital of an event which has happened, and it is common ground between the parties in this case (there is no doubt about that at all) that the real problem is the true construction to be placed upon the word, not “ coast ” but “ coasts,” in the Commission to Captain Thomas Graves. It is very important to bear that in mind. The Canadian Pleadings brought that out very clearly in one of the passages which I can refer to if necessary. Something which is really common ground between the parties is, that the origin of the powers, whatever they were, of the Governor of Newfoundland over Labrador is to be found in the Cornmission to Captain Thomas Graves. I do not think so far your Lordships have had your attention very much called to the Pleadings, but it is rather significant to notice that that is stated by the Canadians at page 50 of their Case, and conceded by us at page 89 of the Counter Case.

Viscount FINLAY : It was in fact stated.

Mr. BARRINGTON–WARD : It will not take two or three minutes if I may read it, because you get the issue, or it is not an issue, you get the admission clearly defined, and that is the starting point of the argument which I am about to have the opportunity of addressing to your Lordships. If your Lordships would not mind looking back to page 50, it is rather a good summary of the true position on this part of the case. Perhaps I might begin to read at page 49, just to show you how those propositions are put forward ; I think my learned friend Mr. Macmillan, would agree that he has also used the word “ proposition ” in a sense which is the argumentative rather than the legal one. It is convenient to have this. “ Canada's Contention. . . . (1) The Extent of territory within the peninsula of Labrador to–day, subject to the authority of Newfoundland is the ‘ Coast ’ which by the Commission of the 25th April 1763, herein above recited, was as declared by the Royal Proclamation of the 7th October of that year, put under ‘ The care and inspection ’ of the Governor of Newfoundland.” Your Lordships see that quite accurately states, perhaps in better language than I use, the effect of those two documents—“ less the portion thereof re–annexed to the Province of Lower Canada ’—that Act of 1825 is commonly called the Canadian Tenure Act ; I have seen that short title used ; we have called it the 1825 Act.

Viscount HALDANE : It is Section 9.

Mr. BARRINGTON–WARD: Yes. Then the second proposition is very much in issue. I will just read that by way of finishing this part

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of the matter. This contention is, ‘ That the ‘ coast ’ so described, is a strip of maritime territory, extending from Cape Chidley, at the entrance to Hudson Strait, to the eastern headland of the Bay or Harbour of Blanc Sablon,” that, of course, raises Lord Sumner's point about Woody Island—“ on the Strait of Belleisle, and comprising, in its depth inland, only so much of the land immediately abutting on the sea, above low water mark, as was accessible and useful to the British fishermen annually resorting to that coast, in the ordinary conduct of their fishing operations, for the purposes of ‘ The open and free fishery,’ extended to that coast by the Royal Proclamation, and carried on there, and for those purposes only.” Of course, my Lords, that is very strongly controverted, and the statements and inferences there contained combated by the ancient colony of Newfoundland. The legal point is very clearly put at page 50, and I entirely accept this. “ The Newfoundland Act, 1809, constitutes Newfoundland's title to whatever rights within the Labrador Peninsula she to–day possesses, but the title which it confers is a title by relation—a title by relation to the Royal Proclamation of 1763, which, with the antecedent Commission, above cited, gives the definition of the extent of territory effected. This is made indisputably clear, by the terms of that Act. By it, such parts of the Coast of Labrador ”—I think that Lord Haldane has said in the course of the case, “ whatever it was ”—

Viscount FINLAY : “ By relation ” means, “ by reference.”

Mr. BARRINGTON–WARD : Yes, my Lord. “ By it, such parts of the Coast of Labrador as His Majesty by his Royal Proclamation of the 7th October 1763, had been pleased to declare, he had put under the care and inspection of the Governor of Newfoundland were re–annexed ”—you notice the word “ re–annexed,” of course, we stress that word very considerably in the later Statutes. “ The parts of the Coast affected by this disposition, are not otherwise described or defined by the Act than by recital of and reference to,” Lord Finlay sees—“ the Royal Proclamation of 1763.” Then they set out the words again, and say, that is, “ a limitation which explicitly throws the interpreter back upon the languages of the Royal Proclamation. That Proclamation and the Commission of the 25th April, 1763, of which it proclaimed the effect, are, for the purpose of identifying and defining such parts of the Coast, Newfoundland's title. Her rights extend over precisely the extent of coast described in those instruments, less, of course, the part which the British North America (Seignorial Rights) 1825, withdrew,” and it winds up by saying, “ The Newfoundland Act, 1809, dealt solely with the extent of Coast (neither increased nor diminished), which the Legislation of 1763 had put under the care and inspection of the Governor of Newfoundland.” Now, my Lords, that proposition is accepted in the Counter Case of the Colony of Newfoundland, at page 89 ; so we can work from that as an accepted statement of the position. In paragraph 2, on page 89, Newfoundland says this : “ Newfoundland con–
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[1927lab]




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