In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Tuesday, 2nd 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 : In answer to my Lord Haldane's question yesterday, I have now ascertained that the Prime Minister between the years 1855 and 1858 was Viscount Palmerston, he was preceded by the Earl of Aberdeen, who held office from 1852 to 1855, and was succeeded by the Earl of Derby, who held office from 1858 to 1859.
Now, my Lords, at the conclusion of yesterday's proceedings, my Lord Sumner was good enough to address to me a question as to whether I could instance any other case where jurisdiction, civil and criminal, was given over a territory without some definition of the area within which the jurisdiction was intended to operate. I answered his Lordship by saying I could not give an instance, but I had hardly said that before it occurred to me that in the present case we have an example very comparable in the instance of the Hudson's Bay Company itself. The Hudson's Bay Company, as my Lords may remember, had a title under their Charter of 1670, the material passages of which will be found in Volume II, at page 367, in which the area was not defined by metes and bounds, but by descriptive words, and, indeed, the controversy has raged practically from that day down to the present, of the Hudson's Bay Company's jurisdiction, as to the precise line of demarcation. Now, in that instance my Lord, you had confided to the Hudson's Bay Company, the adventurers, a very extensive jurisdiction, a civil and criminal jurisdiction, as well as an administrative jurisdiction, and the extent of that jurisdiction was left to be inferred from words of general description. In that case the words, however, were, of course, much more extensive than the words which we find in the ease of Newfoundland, because the description of the territory, although it was not described by boundaries, was very comprehensive. You remember the grant was of “ the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits commonly called Hudson's Straits, together with all the lands, countries and territories upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks, and sounds aforesaid, which are not now actually possessed by any of our subjects, or by the subjects of any other Christian Prince or State.” The Charter proceeded to give t he property of the same territory to the Hudson's Bay Company. It made them “ the true and absolute Lords and proprietors of the same territory, limits, and places aforesaid.” There is a contrast, and a contrast upon which I rely, between the words which were used in the case of the Hudson's Bay Company and those which were used in the case of Newfoundland. It must. I think, logically be so, that the content of the words used in the case of the Hudson's Bay Company on the contention of Newfound–
land must be the same as the content of the words used in the Proclamation and Commission, because on the one hand, as it is maintained, the Hudson's Bay description takes them to the height of land from the west, it is equally maintained for Newfoundland that their description takes them to the height of land from the east, and, therefore, logically, Newfoundland is constrained to argue that the description of the Hudson's Bay Company, which takes them to the height of land, may be equiponderated with the description of Labrador, which takes Newfoundland to the height of land, but when you contrast the language of the Hudson's Bay description, which it is said takes them to the height of land, you find very different language, indeed very comprehensive language, describing as has been put, the basins of all these rivers. On the other hand, Newfoundland only gets something that is described as the Coast of Labrador, and yet these two descriptions are said both to have the same effect, they take the one party to the height of land from the one direction and the other party to the height of land from the other direction. My Lords, there is rather a curious result, because if proceeding on the east side, the title of Newfoundland carries them to the height of land, the whole of the height of land on the east side is coast, by parity of reasoning, the whole of the land upon the west side is equally coast, and the result is, upon my learned friend's submission, this entire Peninsula of Labrador consists of two coasts, and two coasts only, because there is nothing but coast ; in short, in this entire peninsula, there is no interior in the ordinary sense of the term, there is an east and west coast and nothing else, and the language described in the Hudson's Bay Charter, and the language in the Commission and Proclamation which must be equiponderated for this purpose are entirely distinct. There are other illustrations of somewhat indeterminate boundary being given in the cases of the Colonies upon the Atlantic Coast, the old Colonies of Virginia and other Colonies down there, because you may remember those Colonies were bounded originally by so much of the sea–coast, and at different times different extents inland, and ultimately it became from sea to sea, but the language was used in the widest possible way there, and at this time it was not apparently so unusual to use language of large extent.
My Lords, it is of some interest in connection with this matter, to follow up the conception of an area which is described in terms of the use to which it is to be put, but not by boundaries. I instanced yesterday the ease of the French rights in Newfoundland, prefacing, of course, that instance with the caution that there you were not dealing with a territorial right but were dealing with what might be properly described as a servitude or easement, really a right of resort to the shore incident to the rights of fisheries. An attempt was made, I had forgotten it at the moment, to delimit the territory, the shore territory appropriate as an appendage of the sea fishery. Would your Lordships be good enough to take iii your hands for the moment Volume V, in order that I may bring before your Lordships the discussion
3 X 2
on this topic. There are extracts given from Official correspondence at page 2185 of Volume V. Negotiations were on foot at this time for the purpose of defining inter alia on the Newfoundland coast the depth inland that should measure the rights of the French on the Newfoundland shore. At page 2185 you have first an extract from a memorandum from Newfoundland on the fishery negotiations, July 21st, 1852, by Sir Anthony Perrier. “ Sir A. Perrier will therefore submit to Her Majesty's Government the expediency of his making a counter proposal embodying all the conditions contained in Lord Aberdeen's instructions of March 14th, 1846. He will also suggest that he be instructed to hold out (in the event of refusal to entertain the English proposal, or of the French Government insisting upon the removal of British settlers within the French limits) that Her Majesty's Government will enforce the strict observance of all the stipulations of the several treaties which concede to France a temporary right of fishery upon certain parts of the coast of Newfoundland; that the French will be restricted from fishing, curing and drying, and to board Stages and Huts necessary for these purposes, that they will be prevented taking Salmon or any other fish, in any part of the rivers, streams, or other water not bona fide on the coast.” Then there is an asterisk giving Johnson's definition of coast : “ The edge or margin of the Land next the sea ; the shore. It is not used for the Banks of less waters.”
The LORD CHANCELLOR : Is that in the original ?
Mr. MACMILLAN : It is in the original, my Lord. The author of the paper had apparently added a footnote. Then comes an enclosure with Confidential despatch of the 19th of August, 1853. “ Colonial Office, Downing Street, 4th June, 1853. Sir, In pursuance of the instructions given to us by the Duke of Newcastle, to take into consideration the project of Treaty which you have suggested for negociation with France, in reference to the Newfoundland fisheries, and communicate with you on the subject, we transmit to you, herewith, a statement of such amendments of the project as we think, after the discussions which we have had with you, to be advisable, together with observations in explanation of them.” Then comes in parallel columns : “ Project of proposal to France for the Settlement of the Newfoundland Fishery Question.” on the left hand column and on the right hand column suggested amendments. It is very interesting to see how the topic was approached. “ 2nd—The term coast (the literal meaning of which is the shore or margin of the sea) being vague and open to contradictory interpretation, it is proposed to determine its signification with reference to the fishery rights in question, as follows : The word Coast, so far as it relates to French fishing, curing, or drying, and erection of scaffolds and huts for fishery purposes at Newfoundland, shall be understood to mean the strand and the ground extending inland one quarter of a mile from high–water mark ; and where any river, creek, arm of the sea, or other opening, less than three miles wide, intervenes, then a straight line
drawn from headland to headland, across this aperature, shall be considered as equivalent to high water mark.” Upon that the comment, the possible modification, in the column on the right runs thus : “ We would suggest, in place of the first part of this proposition, Article 3 of our separate papers. This latter part of the proposition would shut out the French from several of the harbors now used by them. But as between Cape John and Bonne Bay there are no large river, nor any in which we understand the tide flows beyond a short distance, we suggest, instead of this latter passge, the insertion of a provision that the right of fishery shall in no case be enjoyed by the French in any creek, river, or stream, the flow of the tide, and shall he limited to salt water only, as in Article 2 of the separate paper. The following further concessions may be agreed to by Sir A. Perrier, if he can thereby bring his French Colleague to a final adjustment of this question :—1. Half a mile to be the Coast limits instead of a quarter of a mile.” Comment on the right hand : “ A quarter of a mile appears to us sufficient, but we see no particular objection to half a mile if desired by the French.” Then there is a third enclosure in that letter I think I might read the third paragraph of at line 22 : “ The operations in connection with the fishery, which the French shall have a right to conduct on shore, shall be limited to a strand bordering upon the waters in which the French shall have a right to fish as above defined, and extending inland a quarter of (or half) an English mile from high water mark. The French, however, shall be allowed to cut wood for the purposes contemplated in the British Declaration, attached to the Treaty of 1783, upon unoccupied land at such further distance inland from the strand as may not be inconvenient to the British Government.” Then there is an extract from a Despatch by the Rt. Hon. H. Labouchere to Governor Darling, dated 16th January, 1857, relative to the Convention between Great Britain and France of January 4th, 1857. “ The remaining stipulations of the Treaty may, as I believe, be classed not as concessions or alterations of existing rights, but as an endeavour to put into as definite a shape as the subject admitted, the right which usage, founded on the above–mentioned Treaties and Proclamations, has already sanctioned.” There was a legal right, but what was necessary to do because of controversies which had arisen was to convert the general terms into specific terms, and then you find on page 21S8 and page 2189 : “ Extract from Convention between Great Britain and France”—I need only refer to Article X on page 2189 : “ The strand reserved for French exclusive use for fishery purpose shall extend to one–third of an English mile inland from high water mark, from Rock Point to Bonne Bay, inclusive, and at the four reserved harbours, south of Bonne Bay ; and from Bonne Bay to Cane St. John, to half an English mile inland from high water mark.” My Lord, that Convention never became operative because, it was not ratified, but so far as I can trace the reasons for its non–ratification did not depend at all on this Article. However, I cannot invoke it as a concluded and ratified Convention. It was agreed I take it between the Plenipotentiaries or between the representatives but did not become an International