The Labrador Boundary

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28 Oct., 1926.

Mr. Barrington–Ward.

28 Oct., 1926.

Mr. Barrington–Ward.

28 Oct., 1926.

Mr. Barrington–Ward.

28 Oct., 1926.

Mr. Barrington–Ward.

28 Oct., 1926.

Mr. Barrington–Ward.

Lord Sumner.

Mr. Barrington–Ward.

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ceeds the first proposition advanced in the Canadian case, namely that 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, 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, less the portion thereof,” taken away in 1825. Then, my Lords, the Counter Case brings out that which my learned friend, Sir John Simon, has done already, and I do not propose to do it again, except to remind you of this, that we do submit “ that the Canadian Case lays too much stress on the use of the expression, ‘ care and inspection ’ in a purely declaratory recital in the Royal Proclamation of the 7th October, 1763. while on the other hand it pays insufficient regard to the plain words of the Commission to Governor Graves, and the Acts of 1774, 1809. and 1825, which make changes in the Government of the Area in question. The Proclamation of the 7th October, 1763, though it created and established four new Governments, including the Government of Quebec, did not profess to effect any change in the pro–vision already made in reference to ‘ all that coast’ (i.e. of Labrador) ‘ from the River St. John to Hudson's Streights.’ By the Commission to Graves of Newfoundland, dated the 25th April, 1763, that area had been added to his Government. The words ‘ care and inspection ’ do not occur in the Commission or in the Acts of 1774, 1809 or 1825 already referred to. The Quebec Act of 1774 treated the Commission to Governor Graves as having ‘ made ’ the area in question ‘ part of the Government of Newfoundland,’ while the Newfoundland Act, 1809, described the same area as having been ‘ annexed to the Government of Newfoundland.’ Newfoundland submits that the interpretation thus given by the Statutes, is the natural meaning of the language of the Commission.”
Now, my Lords, with that preliminary introduction, in my submission three matters arise on that part of the Proclamation, which I am about to discuss. First of all, the first matter is, what does the term, “ Coast,” or to be more accurate, “ Coasts,” because it is used in the plural in Graves' Commission, mean in its context, having regard to the terms of the instrument as a whole. That, my learned friend. Sir John Simon, has so fully discussed before you that I do not feel justified in saying anything more about it. You have heard again this morning his submission, and his arguments re–enforced by reference to contemporary maps and books and practice to show that “ coast ” used in that instrument, at that time, in 1763, would be used in the ordinary 18th Century sense of “ all the land lying between the shore and the watershed.” That has been fully discussed, and I do not think 1 can really add anything to it. One has to bear in mind that that really is the first matter which arises when one is considering the interpretation of this clause. The second matter arising there is the question of what you mean by “ the open and free fishery” ; I want to say something about that in a moment; and another question which arises, of course, is the position of the Governor ; is he merely the captain of a ship at sea, with no territorial jurisdiction

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at all, or has he vested in him, in addition to his Admiralty jurisdiction, actual territorial jurisdiction over the coasts so entrusted to him, under the terms of his Commission ? Those two matters really can be treated of together. I hope to satisfy you, by as concise an argument as I can, that the true position of the Commander–in–Chief, though the object or motive for sending him out there was one thing, that did not completely cover the whole ambit of his duties and responsibilities in that region. It is perfectly true, and it has been admitted over and over again, that the purpose with which the King's ships were sent out there in convoy of the fishing ships was to create a race of seamen for the Royal Navy. There is no question at all about that ; but I hope to satisfy your Lordships upon the true construction of that clause, that that is not the complete ambit of the duties and responsibilities of the Officer so appointed. I hope to satisfy you, by the facts of the case, that the people who were comporting themselves out there correctly understood his position, and in the fullest sense of the term he was Governor of the Island of Newfoundland and the Coasts of Labrador—in the sense in which the argument so far has proceeded. There is one other question which is a legal one, and I would ask your leave to cite not too many authorities, because in this type of case authority from purely municipal law is not always helpful, but I desire to make this submission : that it is a well known rule of construction, whether it be the preamble to an Act of Parliament or the recital in a deed, that the preamble or the recital cannot amplify or restrict operative words which are in themselves unambiguous, of course, if there is an ambiguity, you may always look to the preamble or recital to see what the words mean.

The LORD CHANCELLOR : You need not cite authority for that.

Mr. BARRINGTON–WARD : If your Lordship pleases. Sometimes one puts a proposition and it is convenient just to have one or two illustrations of it, but I am not going to trouble your Lordships with anything that is considered not necessary ; but there are one or two—in fact a great many books—but I have selected one from each class of case to show that that is well–accepted law.

Mr. MACMILLAN : I shall not challenge that proposition.

Mr. BARRINGTON–WARD : I must have stated it correctly, otherwise my learned friend would have done so. My submission is that, applying that doctrine to this clause, the mere fact that in something, which after all is a recital in itself, you get in the first part a motive assigned for a certain course, cannot be used to cut down the language used in the Commission, which has to be read into this Proclamation.

Mr. MACMILLAN : My learned friend is putting it differently now : it “ cannot be read to cut down unambiguous words.”

Mr. BARRINGTON–WARD : That is the first part of my sub–

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mission, that the words are not ambiguous at all : that the word “ coast ” has a perfectly clear meaning and has to be understood, putting yourself back, as it were, in the draughtsman's chair in 1763, in the sense that has been contended for ; that it cannot mean anything else. That is the basis of my submission. I submit there is no ambiguity about it at all ; in the 18th Century “ Coast ” means “ Coast ” and nothing more. You cannot say that by reason of the fact that a certain coast is added to a Government for a particular purpose that that is the only duty arising from the Commission granted to the Governor. Now, my Lords, it is often thought with regard to Newfoundland and Labrador, that, from the first, anything in the nature of a sedentary fishery was strongly put down by those responsible for the administration of that part. In my submission, by a few illustrations, I shall be able to satisfy you that that is not so ; that what was objected to was not the sedentary nature of the fishery but the sedentary nature of the inhabitants. So long as the inhabitants there complied with what Sir Hugh Palliser called “ That excellent Act.” nobody had the least objection to them settling and conducting sedentary fisheries either on the Coast of Newfoundland or upon the Labrador; they were encouraged in their possession, always provided that they complied with the terms of the 10th William III. I do not know whether your Lordships have had your attention called to that Statute, or whether you think it is sufficiently in your Lordships' minds to dispense with actually reading it over to you. but the reference to it is page 250 of the First Volume.

The LORD CHANCELLOR: It has not been read; it had been recited in some instruments.

Mr. BARRINGTON–WARD : The submission I make to your Lordships, rather, is this: That the subsequent legislation—I am not going to give your Lordships either a historical or academical discussion upon fisheries in general—I can state the subsequent legislation, because that will not affect the construction of the Proclamation which is now under our consideration ; what happened was that this Act remained in force with a number of existing Acts, Acts providing for annuities, and one special Act, your Lordships may remember, giving effect to that Treaty of Washington, of 1818. which gave France those fishing rights—which remained in force until 1824, when it was entirely repealed, and this view, which I may call the Palliser view, was definitely abandoned. I have the reference to the repealing Statute. it is page 300 in the First Volume. I do not propose to go back to this, so I give you that reference now. The Act of William III. remained in force till 1824 when it was repealed by the Statute at page 300, the 5th George IV. Chapter 51; and though restrictions were still placed upon the persons who could come to fish at Newfoundland, or the Coast of Labrador, or the Islands, the policy vas definitely abandoned, the policy which had continuously existed, and been adopted, since the passing of the 10th of William III. What I think would be most convenient would

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be only to give you illustrative instances of the proposition for which I am contending. My submission, my Lords, is that the persons who engaged in the sedentary fishery there were protected in their possession, always provided that they complied with the terms of the Act ; and, my Lords, once you remember this, that on the Southern shores, there is no doubt at all that sedentary fisheries had existed for a very considerable time—your Lordships will remember one motive for passing the Act of 1825 was to put back into Quebec the people who had established themselves upon this coast—it was no new idea at all : a sedentary fishery. As early as the year 1719, on the Island of Newfoundland itself—I will give you that first of all—a gentleman of the name of Skeffington was protected in his post by having complied with, or not done anything contrary to, the spirit of the Act. I am not going to refer you to very many references, but will your Lordships kindly look for a moment at Volume IV, page 1901, with regard to that.
Just before dealing with that, may I first of all call your Lordships' attention to the Fishing Act. The Fishing Act is in Volume I at page 250, and if I may I will just deal with that first. Your Lordships will see that that Act is headed : “An Act to Encourage the Trade to Newfoundland,” and it recites that : “ Whereas the Trade and Fishing at Newfoundland is a beneficial Trade to this Kingdom, not only in the employing of great Numbers of Seamen and Ships, and exporting and consuming great Quantities of Provisions and Manufactures of this Realm,” and so forth,—I need not read the whole of it—it is enacted that “ it shall and may be lawful for all his Majesty's Subjects residing within this his Realm of England, or the Dominions thereunto belonging, trading or that shall trade to Newfoundland ”—now will your Lordships notice these words, which are very ample :—“ and the Seas, Rivers, Lakes, Creeks, Harbours in or about Newfoundland, or any of the Islands adjoining or adjacent thereunto, to have, use, and enjoy the free Trade and Traffick, and Art of Merchandise and Fishery, to and from Newfoundland, and peaceably to have, use, and enjoy, the Freedom of taking Bait and Fishing in any of the Rivers, Lakes, Creeks, Harbours, or Roads, in or about Newfoundland, and the said Seas, or any of the Islands adjacent thereunto, and Liberty to go on Shore on any part of Newfoundland, or any of the said Islands for the curing, salting, drying, and husbanding of their Fish, and for making of Oil, and to cut down ”—your Lordships will observe this—“ and to cut down Woods and Trees there for building and making or repairing of Stages, Ship–rooms, Trainfats, Hurdles, Ships, Boats, and other Necessaries for themselves,” and so forth, “ as fully and freely as at any Time heretofore hath been used or enjoyed there by any of the Subjects of his Majesty's Royal Predecessors, without any Hindrance, Interruption, Denial or Disturbance of or from any person or Persons whatsoever ; and that no Alien or Stranger whatsoever (not residing within the Kingdom of England, Dominion of Wales, or Town of Berwick upon Tweed) shall at any Time hereafter take any Bait, or use any Sort of Trade or Fishing whatsoever in Newfoundland, or in any of the said Islands or Places above–mentioned.”
Then there follow a number of provisions for preserving what

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you might call the amenities, and also the efficiency of the fishing arrangements.
As a matter of interest—I do not think I need trouble to go back to it, but your Lordships might like to have a note, just so that you may have it in your minds—the bulk of these regulations go further back, to the year 1634. The reference is Volume IV, page 1719.

Viscount HALDANE : What does that Act do ?

Mr. BARRINGTON–WARD : These are a series of Regulations made by His Majesty.

Viscount HALDANE : It is an Act empowering Regulations to be made, and the Regulations made, I suppose.

Mr. BARRINGTON–WARD : Yes, my Lord, but I think these were made under the Prerogative, as far as I know. They were Star Chamber Regulations.

Viscount HALDANE : There was no Statute ?

Mr. BARRINGTON–WARD : No, my Lord, but it is interesting to note that these provisions about not throwing ballast into the harbours or not burning the woods go back to 1634. I am not going to trouble your Lordships with much of these things, because, it would be only taking up time unnecessarily. It is only a matter of history, just to see where they come from.

Viscount HALDANE : They were created under the Prerogative ?

Mr. BARRINGTON–WARD : Yes, my Lord, and they were amplified by further Rules proceeding from the Star Chamber in 1660, the reference to which is in Volume IV, at page 1744. I only mention those in passing, so that in case anything should turn upon them, your Lordships will have the matter in your minds.

Lord SUMNER : One of the provisions is that “ no person do set up any tavern for selling of wine, beer, strong waters, cider or tobacco, to entertain the fishermen, because it is found that by such means they are debauched, neglecting their labours.” That is an early instance of prohibition.

Mr. BARRINGTON–WARD : I suppose that idleness might lead them into bad ways, and make them prone to succumb to the temptations that are mentioned there. Provisions are made about harbours and so on in Sections II and III, and the interesting thing is Section IV. because this shows the whole basis upon which the subsequent administration of these se various Governors was based.

Viscount FINDLAY : What page are you reading from now ?


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