In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Monday, 1st November, 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, may I be permitted to say that I am happy this morning in having the assistance of Mr. Doherty, who has just arrived from Canada. He was unfortunately detained by illness and has only now arrived.
Your Lordships will recall that the task which I set myself in the first stage of my argument was to apportion the Labrador Peninsula—and I use the term advisedly in its full extent—to apportion the Labrador Peninsula in conformity with the combined effect of, first, Captain Graves' Commission, and, second, the Proclamation. Those two documents are now fully before the Board, and the problem is to apportion the Peninsula of Labrador in conformity with those two documents.
My Lords, I should like, with your Lordships' leave, to recapitulate for a moment. Prior to 1763, when those two documents came into existence, the whole area of the Labrador Peninsula was in two hands, and two hands only. When I speak of the whole of the Labrador Peninsula I speak of the half million square miles to which Sir John Simon referred at page 9 of his speech. One part of the Peninsula was in the hands of the Hudson's Bay Company; the other part was in the hands of the French. The Hudson's Bay Company and France between them accounted for the whole Peninsula of Labrador. I repeat that, because I am afraid I was a little hesitant on the subject the other day, but I have been reassured by finding that this is common ground in the Case ; and it is nowhere set out with greater clearness or accuracy than in the principal Case for the Government of Newfoundland, at page 7. It is the passage headed “ D.—The position in Newfoundland and on the Labrador Peninsula in 1763.” It says : “ The Labrador Peninsula connotes all the area, some 420,000 square miles in all ” (that is the half million square miles) “ east of a line joining St. James' Bay and the River St. Lawrence. No further modifications in the position between France and Great Britain in Newfoundland or Canada or on the Labrador Peninsula were made by Treaty between 1713 and 1763, and accordingly though the war which was concluded by the Treaty of Paris involved the capture of Quebec by the British in 1759 after the battle of the Heights of Abraham, and the capture in 1762 of St. John's, Carbonear and Trinity by the French and their recapture in the same year by Lord Colville ”—now here are the significant words—“ yet the situation which the Treaty of Paris was designed to modify was that established as a result of the Treaty of Utrecht. That position was that the island of Newfoundland itself was subject to the British Crown, but that the only territories on the Labrador peninsula subject to the British Crown were
those granted to or acquired by the Hudson's Bay Company under their Charter of 1670,” and then it goes on.
Lord WARRINGTON : The next is rather important ; at least it may be.
Mr. MACMILLAN : Yes—“ and that though the boundaries of those territories of the Hudson's Bay Company were not definitely ascertained, they did not extend anywhere (save possibly in respect of the area between Cape Chidley and Cape Grimington) further into the interior than the height of land, which formed their boundary in 1857.” I postpone that for a moment, because I am going to recur to it in connection with the Hudson's Bay boundary. I want, first of all, to make the point clear that it is common ground here, that in 1763 the position was that there were two authorities, and two only, in the Labrador Peninsula : (1) The Hudson's Bay Company, and (2) France. It is true that the frontier between those two jurisdictions was not ascertained at that time. Indeed, in my submission, it has never been ascertained.
Viscount HALDANE : There is nothing to show the origin of the name “ Labrador,” or what it means in old days, is there ?
Mr. MACMILLAN : My learned friend, Sir John, gave an explanation of it which I think is the historically accepted one, that it was probably from the Portuguese “ labradore.”
Viscount HALDANE : But is there no definition attaching to the name ?
Mr. MACMILLAN: No, my Lord. I have read a little about it, and one finds that there are various conjectures as to the origin of it, but they all seem, I think, to have this feature in common, which is, that it is derived from a word which means a labourer; and one suggestion was that the land was first sighted by a farmer on one of the ships.
Lord SUMNER : That may be consistent with La Bradore Bay.
Mr. MACMILLAN : That is possible, my Lord, because it is La Bradore, as if it was two words. As far as the origin is concerned, I think I have said all that need be said about it ; it appears to be a little vague ; on the whole I think that what Sir John said is correct.
The LORD CHANCELLOR : It was in that book shown to us the other day, by Bellin.
Mr. MACMILLAN : Yes, my Lord. Then, my Lords, what was the problem that the British Government was confronted with in the Labrador Peninsula ? The problem was to deal with that portion of
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the peninsula other than the Hudson's Bay portion, being the part acquired from the French under the Treaty. In this position of affairs we have the Government of Quebec established by the Proclamation, with an area carefully defined in extent by precise boundaries. That is my learned friend's “ lozenge.” All the rest of the peninsula other than this area delimited for Quebec, according to my learned friend's submission, was composed of Hudson's Bay territory and Newfoundland territory.
The LORD CHANCELLOR: I do not think he said that ; I do not think he said that part of that yellow was Newfoundland.
Mr. MACMILLAN : I stand corrected, my Lord, to that extent, that there was a small portion left over, the yellow corridor, as my learned friend described it. Let me be precise ; he accounted for all the remainder of the Labrador Peninsula other than the yellow territory as being territory either of the Hudson's Bay Company or of Newfoundland. My effort at this stage is to establish to the satisfaction of the Board that there was another area situated in Labrador as a result of the combined effect of the Proclamation and the Commission ; and that other area is the Indian reservation ; lands reserved in the hands of His Majesty in order that the ancient hunting grounds of the Indians might not be disturbed. My parcelling out of the Labrador Peninsular is thus somewhat different from my friend's, and when I have completed my exposition of the materials available for this purpose, it will appear that the Labrador Peninsular, as a result of the combined effect of the two documents to which I have alluded, will be found to consist of Newfoundland and Quebec (the lozenge), the Hudson's Bay territory, whatever that is, the Indian reservations, whatever they are, and the rights and interests of Newfoundland on the coast of Labrador, whatever they are.
I introduce, therefore, into this area, a very important additional feature, the Indian reservations, and my learned friends, of course, appreciate how important it is from my point of view to establish the presence of that terbium quid, as my learned friend described it. There is no doubt of the importance which my learned friend attached to this subject, because at page 106 of the proceedings, on the first line, he said ; “ It is important for me to show, if I can, that in the disputable area you do get a distribution of area as between these two. On the other hand, it would be a matter in my friend's favour, and I admit it quite frankly, if he was able to establish that there is a tertium quid in Labrador.” It would be perhaps more accurate to say that there is a quartium quid in Labrador, because in my view there were four parties interested in the Labrador Peninsula as the result of the combined effect of those two documents.
Lord WARRINGTON : Who were the four ?
Mr. MACMILLAN: The four were the Hudson's Bay Company, Quebec, the Indian reservations, and Newfoundland. I have adduced for your Lordships' consideration a certain body of evidence to show that when the Proclamation refers to lands of the Indians which are to be reserved for the present—will your Lordships kindly note the words, they are rather striking—which are to be reserved for the present for the Indians—
Viscount HALDANE : Where is that ?
Mr. MACMILLAN : The actual words I am quoting are to be found at page 156, line 23 : “ And we do further declare it to be our Royal will and pleasure, for the present as aforesaid, to reserve under our sovereignty, protection and dominion, for the use of the said Indians all the land and territories not included within the limits of our said three new governments ”—the only relevant government for our purpose is Quebec because the two Floridas do not come in—“ or within the limits of the territory granted to the Hudson's Bay Company.”
Viscount HALDANE : Do “ Indians ” include Esquimaux ?
Mr. MACMILLAN : That is a searching question, my Lord. It is very difficult to say, and I cannot answer it definitely because on some occasions they refer to Esquimaux as Indians. My submission here is that these Indians are not Esquimaux, and for a very good reason which you will see at the top of page 156, line 10. The purpose is that they shall not be disturbed in their hunting grounds. The Esquimaux had no hunting grounds of that sort. They were a marine people. The beneficiaries of these reservations were “ the several nations or tribes of Indians with whom we are connected and who live under our protection.”
Viscount FINLAY : Is that common ground that the Esquimaux are not spoken of as “ Indians ” in these documents ?
Mr. MACMILLAN ; No, I do not think it is common ground. That is my submission.
Viscount FINLAY : It is the sort of impression that one gets on reading the papers.
Mr. MACMILLAN : I always prefer, if I may, not to say a thing is common ground unless I am sure, because it always leads to controversy, and it is perhaps easier to make it as a submission. Your Lordships will judge between us, if my learned friend challenges it. My submission is that when you are speaking of the hunting grounds of Indians you are speaking of Red Indians, and not of Esquimaux. When it was desired to retain these hunting grounds for the present under the sovereignty,