In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Friday, 29th 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. LORD 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.
Mr. MACMILLAN : My Lords, yesterday afternoon I suggested that the proper approach to this question was through the Act of 1809, for this reason: that, immediately prior to the passing of that Act, it is common ground that Newfoundland had no interests in Labrador ; and, therefore, one finds the first Statutory title of Newfoundland in the ternis of that Act. I also, of course, made plain that the terms of that Act referred you to earlier documents for the measure of the right which Newfoundland acquired by Statute in 1809. I drew attention to the terms of the Act of 1809, which my Lord Chancellor suggested might have been merely a mis–recital, and very possibly was a mis–recital, because the measure of the right of Newfoundland is to be found in what was annexed to the Proclamation of the 7th day of October, 1763. It is rather interesting to note that that seems to be the view of Newfoundland itself, because I observe in their Pleadings at page 30 they describe the Royal Proclamation of the 7th day of October, 1763, as “ The source of Newfoundland's original jurisdiction on the Labrador.” Frankly, my Lords, I do not think there is much more than a verbal point there, because when you look at the Proclamation, it, in terms, refers you to the Commission, and therefore the proper approach to the question, probably, is by looking at the transaction as a whole, and the record of the transaction is to be found in the Commission and Proclamation. The Commission is at page 149. My Lords, the critical year in this matter is the year 1763, for in that year there occurred all the transactions which constitute the foundation of Newfoundland's Claim. Whether it be the Proclamation that is the source of their. rights, or whether, as expressed by my learned friend, Sir John, it is in the Commission—may I just use his exact words—“ In the Commission that you find the actual root of title ”; whether it be in the one or the other of those documents, they are both in 1763, and to that year, therefore, we must look for the ascertainment of this boundary.
My Lords, I thought that perhaps your Lordships would find it convenient to have the Calendar of 1763. The sequence of events there is very significant, and, as will appear shortly, I found upon that sequence as being a very pregnant sequence. On the 10th February, 1763, was passed the Treaty of Paris (Volume I, page 330). On the 29th March, 1763, the Instructions to Captain Graves were passed (Volume II, page 391). On the 25th April, 1763, Captain Graves' Commission was issued (Volume I, page 149). On the 2nd May, 1763, Captain Graves' Admiralty Instructions were issued to him, and the text of those Instructions will be found in Volume II., page 406. On the 23rd August, 1763, Instructions were issued to Lord Colvill, which I shall refer to and explain shortly, in Volume VIII, page 4215.
Lord WARRINGTON : Those we have not had yet ?
Mr. MACMILLAN: No, we have not had these, these relate to fishery also. Then the next date is the 7th October, 1763, the Proclamation (Volume I., page 153). The last significant date in the year is the 21st November, 1763, when the Commission was issued to General Murray as Governor of Quebec (Volume II, page 756). My Lords now have the sequence of events.
Sir JOHN SIMON : My learned friend is leaving out the Report of the Lords of Trade and so on ?
Mr. MACMILLAN : I am certainly.
Sir JOHN SIMON : They come in the middle.
Mr. MACMILLAN: I wanted to get what you might call the cardinal dates of executive documents of one sort or another. The other documents, to which my learned friend alludes, I shall deal with, of course ; but they were either preliminary to, or subsequent to, the critical documents.
Sir JOHN SIMON : Or in the middle of them.
Mr. MACMILLAN : Or in the middle of them. My Lords, that being the Calendar of events, the first thing that is necessary to appreciate is the situation which had been created by the Treaty of Paris, of 1763. The Government of this country was confronted with an administrative problem of the first magnitude. The result of the Peace was to bring within the ambit of the British Empire the vast interests of France in Canada (I use the very largest terms at this moment, and without any specific definition) and the anxiety of the Government was as to the method of bringing under control these vast new interests. They were interests not merely Continental, but also Maritime. They were interests not merely on the main land, but upon the seas ; and, on both elements, very large new interests had been created in the hands of Great Britain, and it was manifest that the subject had to be taken in hand at once. The dates will show already to my Lords with what despatch the Government addressed themselves to the problem, because the Treaty of Paris was only signed on the 10th February, 1763, and, before the ensuing month had elapsed the Instructions to Captain Graves had already been adjusted and prepared. My Lords, the point I propose to make, and it may be convenient to state it before I take your Lordships to the detailed documents, is this: That the Government addressed itself to two entirely distinct problems ; it addressed itself to these problems in the order of their urgency, and the first problem which the Government took up was a purely fishery problem. It
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was not until the question of the regulation of the new fisheries which had come into the British hands had been disposed of that the Government addressed itself, in turn, to the question of territorial Government upon the mainland ; and, in order that your Lordships may appreciate the historical sequence, I would ask your Lordships to look at once at Volume II, page 386, where we get the first light shed upon this question. Apparently His Majesty had addressed to the Lords of Trade a letter requesting them to take into consideration certain matters and advise His Majesty upon them. “ In Obedience to Your Majesty's Commands, signified to Us by the Earl of Egremont, one of Your Majesty's Principle Secretaries of State, in his Lordship's Letter of the 8th Instant, We have taken into Our Consideration,” then follows a quotation, no doubt embodying the Commands of his Majesty: “ The Copies of the 5th and 6th Articles of the Definitive Treaty, relating to the Fishery of Newfoundland, & elsewhere in those Parts, and to the Cession of the Islands of St. Peter & Miquelon ; as also an Extract of the 24th Article of the said Treaty, fixing a Time for the Cession of those Islands, and directing Us to lay before your Majesty such Alterations & Additions, as shall appear to Us expedient to be made, to the Instructions given to the Governors of Newfoundland in order to conform them to the abovementioned Stipulations of the Definitive Treaty.” My Lords, the 5th and 6th Articles of the Definitive Treaty, to which the attention of the Lords of Trade was thus directed, are to be found in the first Volume at page 335, and you will observe at once that they are Articles of the Treaty relating to Fishery Matters. The 5th Article of the Definitive Treaty, in the middle of page 335, runs thus: “ The subjects of France shall have the liberty of fishing and drying on a part of the coasts of the island of Newfoundland, such as it is specified in the XIIIth Article of the Treaty of Utrecht ; which Article is renewed and confirmed by the present treaty, (except what relates to the island of Cape Breton, as well as to the other islands and coasts in the mouth and in the gulph of St. Lawrence): And his Britannick Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the gulph of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said gulph of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton, out of the said gulph, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coasts of the island of Cape Breton ; and the fishery on the coasts of Nova Scotia or Acadia, and everywhere else out of the said gulph, shall remain on the foot of former treaties.” Article VI. “The King oŁ Great Britain cedes the islands of St. Pierre and Macquelon, in full right, to his Most Christian Majesty, to serve as a shelter to the French fishermen ; and his said Most Christian Majesty engages not to fortify the said islands; to erect no buildings upon them but merely for the conveniency of the fishery ; and to keep
upon them a guard of fifty men only for the police.” My Lords, the Principal Secretary of State having observed the presence in the Definitive Treaty of those two Articles, the 5th and 6th, and observing that they related to the regulation of the fisheries for the future in these waters, transmitted to the Lords of Trade an enquiry as to “ what additions should be made to the Instructions to be given to the Governor of Newfoundland in order to conform them to the above mentioned stipulations of the Definitive Treaty.” That is the inception of the modifications, which you find on Captain Graves' Commission after 1763 as contrasted with his Commission before 1763. They proceed to take up the subject of their remit and say : “ After considering the Subject with that Attention & Exactness which the Nature & Importance of it so highly deserve, We humbly beg Leave to submit Our Opinion to your Majesty both with respect to the Plan of the Instructions, as they are now annually given to the Governor of Newfoundland and to such additional ones as may be thought requisite, from the Provisions, & Acquisitions of the Definitive Treaty.” Your Lordships see the task to which the Lords of Trade directed themselves ; they learned from the Treaty of these important new fishery regulations under the Treaty ; they were instructed to consider how these could be most efficaciously managed in future, and they proceed to advise His Majesty upon the matter. “ The Instructions hitherto given to the Governor of Newfoundland have been principally formed upon the Provision of the Statute of the 10th and 11th of William the Third, for regulating this Fishery ” ; my Lords, that is the Act of 1699, printed in the first Volume, at page 250. I shall have a little to say about it later on, because it really, I think I may say, contains the Code of Law which the Governors of Newfoundland administered. The Instructions, as the Lords say, have hitherto “ been principally formed upon the Provision ” of that Statute, “ for regulating this Fishery and the Method prescribed to the Governor, of annually enquiring into, and reporting the State of the Fishery, is so very regular and practicable, that it rather wants to be enforced than changed, and if it be true, as it certainly is, that the Representations of the State of the Fishery have hitherto been imperfect, that Deficiency has arisen more from Circumstances in the Execution of the Plan, than any Defect in the Plan itself. With respect to the Necessity of any additional Instructions upon which We are directed to give Our Opinion, We beg leave humbly to represent to your Majesty, that Your Subjects employed in the Fishery at Newfoundland, having of late engaged more extensively in the Fishery on the North eastern Part of Newfoundland, upon which Coast the French have also a Right, by the Treaty of Utrecht, to catch and dry Fish during the Season, under certain Restrictions ; The great and extensive Whale Fishery in the Streights of Belleisle, with the other Branches of the Salmon & Seal Fishers, attending the Coast from the Mouth of those Streights to the River St. Lawrence, and the Fishery of the River St. Lawrence itself, of Gaspee, of Cançeaux, the Madelain Islands, St. John's & Cape