Mr. MACMILLAN : Yes, my Lord. Then George's River and Whale River are also both to the west of the watershed. Then North's River, on the other hand, is to the east of the watershed. North River is marked on the map near the Moravian settlement of Okak.
Lord WARRINGTON : Are you quite sure that those two are the same. It is called North's River in the document you showed us just now, and this is North River. Are you sure it is the same ?
Mr. MACMILLAN : Well, my Lord, it is the only one I know.
Sir JOHN SIMON : I think it is the same, my Lord. It is not a case where concession is of any value, but we think it is the same.
Mr. MACMILLAN : North River settlement is there, and my learned friend is good enough to say that he agrees, just to the east of the watershed. Then False River is just at the bottom of Ungava Bay, practically at the mouth of the Koksoak River. The only importance of that is that that is to the west of the watershed.
Lord SUMNER : They are all west of the watershed except North River.
Mr. MACMILLAN : And, if I am right, Fort Nascopie. Would your Lordship bear this in mind. I said this was not a very big point, but it is rather significant. North River is inside the boundary of the Hudson's Bay territory as set down in Mitchell's map, and so also is Fort Nascopie. So that we have here a case where they were surrendering their territory as Rupert's Land—after what your Lordship has indicated I cannot put too much stress upon that—but at least it is a document professing to surrender land in Labrador which is also in Rupert's Land, and which is also within the Hudson's Bay territory. As my learned friend said, the framers of the Proclamation of 1763 accepted that boundary as the Hudson's Bay boundary.
My Lord, I leave the Nascopie point, and come to another point on the height of land. The question of the position of the height of land arose in the Ontario–Manitoba case of 1884. May I explain how it arose. The main contest in that case was between the Dominion of Canada and the Province of Ontario. The Province of Ontario desired that its boundaries should be fixed well to the north. The Dominion of Canada desirous of retaining as much land unallocated to any Provinces as it could at that stage, contended that the northern boundary of the Province of Ontario was the southern boundary of the Hudson's Bay Company, and that the southern boundary of the Hudson's Bay Company was the height of land. Therefore, said they, Ontario cannot legitimately claim any territory north of the height of land because, were it to do so, it would be claiming half of the Hudson's Bay territory under their Charter. Lord Haldane's recollection is no doubt being
revived on this point. The contention of Canada, my clients to–day, was that the old Province of Quebec, which included Upper and Lower Canada, was by the Quebec Act of 1874, which your Lordships have had put before you, described as bounded on the north by the southern boundary of the Hudson's Bay territory. They said : How can you, Ontario, claim to pass over the height of land ? If you do, you pass into Hudson's Bay territory. Therefore, it was argued, Ontario has no legitimate right to anything north of the height of land. Ontario replied : Whatever be the southern boundary of the Hudson's Bay Company, we maintain that we are entitled to pass over and beyond any such line, and claim territory to the northward of the height of land. I do not wish to go into the thing in detail, because it is a complicated story, but I am giving, I think, an accurate outline of it. They said : If you will look at other documents not less important, you will find on the left side of the map there is a line up to the Lake of the Woods, which was the boundary between the United States and Canada, and upon the other side there was a line which went up to James Bay in Hudson's Bay.
Viscount HALDANE : Was that the Albany River ?
Mr. MACMILLAN : The Albany River was the left side of James Bay.
Viscount HALDANE : Where did the Albany River flow ?
Mr. MACMILLAN : It flowed into James Bay from the west. In that case Canada maintained the sanctity of the height of land as the boundary of the Hudson's Bay territory with might and main. I have looked through the pleadings of the parties, and a wealth of learning is expended upon this question of the height of land. Every form of learning is ransacked. I am glad to say we have been spared here writers on international law, hut authors on international law are quoted in that case, and the whole topic of the height of land is put forward with great vehemence, not so forcibly as put forward now by my learned friend, but as well put forward as it could be, and put forward as a natural and proper boundary. It is so interesting to find almost all the epithets applied to the height of land boundary at that time repeated now. It was put forward as a natural and proper boundary, and all the rest of it. But what did the Privy Council do ? They entirely disregarded the height of land. They gave a boundary to Ontario which transcended the height of land, and carried the territory of Ontario right up to James Bay ; and it came round the south shore of James Bay to the mouth of the Albany River, and so to the west, and included in Ontario, therefore, a large amount of what would ex hypothesi have been Hudson's Bay territory, because it was north of the height of land. It is true, of course, that they did so, not moved merely by the question of the ascertainment of the point of the height of land, because there were these other very cogent considerations which controlled the
situation—the point about the Lake of the Woods, and the other line at the other end. But what is of significance is the attitude taken up by your Lordship's predecessors at that time on this topic of the height of land, urged as it was upon them with every circumstance of urgency. and with a great apparatus of learning. My Lords, it received, I may say, scant courtesy. There are a few references to that question which I propose, with your Lordships' leave, now to refer to.
Lord WARRINGTON : Would you mind telling me what were the Privy Council doing then ? Were they ascertaining where the boundary was in fact fixed, or were they fixing a boundary as arbitrators ?
Mr. MACMILLAN : They were considering the validity of an award which had been pronounced in Canada. The matter had been arbitrated in Canada first of all, and it came over here on the question, among others, of the binding character of the award.
Lord WARRINGTON : It came over here as an appeal ?
Mr. MACMILLAN : No, my Lord. It did not come as an ordinary appeal. It came as a special reference also.
Lord WARRINGTON : But still as a reference of a different kind to that which we have to deal with.
Mr. MACMILLAN : My Lord, I would like to give the actual terms of the reference in a matter of this sort.
Lord WARRINGTON : You see what I mean. If they rejected the height of land on the facts ,it may be of one importance ; but if they merely refused to adopt it for the purpose of fixing a boundary, it may be of quite a different importance.
Mr. MACMILLAN : Your Lordship is concerned to know whether it was a declaratory process such as we are engaged in here, or whether it was one in which they had the right to say another boundary would be an expedient boundary.
Lord WARRINGTON : Yes.
Mr. MACMILLAN : Subject to correction—my learned friends might check me upon this—it looks to me as if it was a declaratory process like this, because I see that the Special Case which was put before the Privy Council is this. “ The Province of Ontario claim that the western boundary of that Province is ”—not should be—either so–and–so, or so–and–so, “ and the Province of Manitoba claim that the boundary of that Province and the Province of Ontario” is so–and–so. “ It has been agreed to refer the matter to the Judicial Committee of Her Majesty's Privy Council, and an appendix has been prepared.” Then here are
the questions. “ The questions submitted to the Privy Council are the following:—(1) Whether the award is or is not under all the circumstances binding ; (2) In case the award is held not to settle the boundary in question then what, on the evidence, is the true boundary' between the said Provinces ?” Therefore the task on which they were engaged is the same as now.
Viscount FINLAY : Did they hold the award binding ?
Mr. MACMILLAN : No, they held it not binding.
Viscount FINLAY : And they declared the boundary ?
Mr. MACMILLAN : They declared it.
Sir JOHN SIMON : The third question was whether, in case legislation is needed to make the decision in the case binding or effective, certain legislation already passed would do it.
Mr. MACMILLAN : And I think they passed an Act afterwards.
Sir JOHN SIMON : The whole thing was disposed of finally by Act.
Mr. MACMILLAN: And we may need an Act here possibly ; we do not know. My Lords, there they were as here, in search of a legally existing boundary assumed to exist at some place. The attitude of the Board to the Ontario claim is, I venture to say, rather instructive. Volume V, page 2135, contains “ Extracts from proceedings before the Judicial Committee of Her Majesty's Privy Council in the Ontario–Manitoba Boundary Case re ‘ Watershed ’ contention, taken from the transcription of notes.” What is of, interest to note is the effort of Counsel for the Dominion. The effort of Counsel for the Dominion was to persuade their Lordships that the height of land was the boundary on the north, and could not be transcended, and for that purpose a considerable amount of law was invoked which I respectfully think has little to do with the question, and upon which I was rather relieved to notice that friend Sir John did not rely in his opening in support of the watershed theory. If we get into the region of international law we get into a mare magnum on these matters, and my submission would be that there is no accepted doctrine of international law on the subject. I have read a considerable number of authors, and found they differed with even more acerbity than usual on this topic. Counsel on behalf of the Dominion was insisting there as a doctrine of law that “ the discovery of a coast line, and the occupation of that coast line, give to the discoverer an entire right to all the territory that is drained there.” That is page 2136, line 14.
It submits as a doctrine “ the international law on the subject is this, that the discovery of a coast line, and the occupation of that coast line,
give to the discoverer an entire right to all the territory that is drained there.” That doctrine is really remote, even if sound, from our present question, because we are dealing with an alleged discovery of the coast here and what right it gives to the discoverer, what depth of land it gives him a right to. We are dealing with the interpretation of land. It was invoked there as being in some way helpful to the contention that the height of land was the sacrosanct boundary, and the doctrine submitted was the doctrine which I have just read. Then it is suggested that it is in accordance with reason and law. These strong words appear at the top of page 2137. The same type of submission was made upon it. The Lord Chancellor, who was then Lord Selborne, intervened at line 20, on page 2137, and said : “ There seems to be about as much foundation for the one idea as for the other. If you say that because you take possession of a few miles of the coast of Africa, you take possession of all the country which is drained by a river which goes three thousand miles, it is so absurd that I cannot conceive it to be laid down by any writer on international law. However, it has very little bearing upon this question. (Sir Robert Collier) : Whether it is so or not is of very little consequence. (The Lord President) : What do you conceive to be the bearing of all this ? (Mr. McCarthy) : The bearing of all this is that the charter did give to the Hudson's Bay certain definite limits. If it did not give to Hudson's Bay certain definite limits, the charter was void for uncertainty. Now what were those limits ? (Sir Robert Collier) : I am speaking about that charter, under which was the only possession that the English had in all this north country. The Hudson's Bay Company represented the Crown of England, and the charter purported to give them all the lands which drained into the Bay.” The very case is being put there. “ Now, either it was void for uncertainty, and a piece of waste paper—and I am not required to admit that—or it did give to the Hudson's Bay Company certain definite limits. Where are those definite limits ? Can my learned friends on the other side suggest any definite limits to the Hudson's Bay grant.” The familiar device of putting your adversary in a difficulty was regarded, and this point was strongly made, that it was a doctrine of law as much as of reason, that if you had a right on the coast, that gave you a right to the entire hinterland up to the height of land.
Viscount HALDANE: That arose from certain contentions which the German Government were putting forward at that time.
Mr. MACMILLAN : I think the first real inception is when Mr. Monroe put it forward in 1805 in the Louisiana case. Be that as it may, I should humbly agree that it is not relevant here, but what is sought ? The learned Chancellor characterises the doctrine, as claimed, as perfectly absurd.
Sir JOHN SIMON : The thing that is perfectly absurd is not quite this proposition.