The LORD CHANCELLOR: It was only a temporary right of fishery that was in question. There was no territory put under the French Government.
Mr. MACMILLAN : Yes, my Lord. It is rather striking, it caught my eye as I read it. “ A temporary right of fishing.” That echoes down from the terms of the Lords of Trade's Report where they said all that is contemplated is a temporary right of fishing in Labrador. It actually happens to be as far as I remember the very words that were used there.
The point was put to me as a difficulty that I was seeking here to suggest a boundary which had no precise physical definition. I submitted respectfully that that is no obstacle, that many rights have been conferred, even the Hudson's Bay Charter itself, one of the most important in our history, was conferred without any boundary at all, and the boundary becomes a matter of ascertainment as and when it is necessary to ascertain it, and the criterion for its ascertainment when the question does arise is to be found in the use—the necessity and use—you look at the nature of the grant and give all that is necessary to make the grant effective, which is the ordinary principle of interpretation of law, and you also use the practice and possession which has followed upon a grant, both of these are indicative of the extent of the grant which was proposed to be given, and as an illustration I suggest the French rights are interesting. My Lords, throughout those papers before your Lordships there are various distances indicated as the distances above high water mark necessary to be reserved for fishery purposes.
I might give two instances, one from the Instructions to Governor Elliot of Newfoundland in 1786, Volume II, page 549. That document from which I am about to read is the Instructions for John Elliot as Governor and Commander in Chief in and over the Island of Newfoundland, dated 2nd June, 1786, and in Article 7 on page 548 there is a recital that persons have been claiming “ as their private property large Tracts of Land and Beaches commodious for the Fishery upon the Coasts, and within the several Harbours and Rivers of the said Island and the islands adjacent contrary to Law. In order therefore, to prevent such unwarrantable practices in future ; It is Our Will and Pleasure that you do not upon any pretence whatsoever allow any Person or Persons to take as private property any Land, Rivers, or Islands on the Island of Newfoundland or the Coasts thereof,” between certain limits, “ and you are to take care that the Ancient Ship Rooms and Fishery Rooms do continue under the provisions of the Act of Parliament passed in the 10th and 11th Years of the Reign of King William the Third Cap 25 for the encouragement of new Adventurers,” and so on. May I pass now to the top of page 549, “ And it is Our further Will and Pleasure that the remaining
Shores of Newfoundland shall be held by such of Our Subjects resorting thither from Our Dominions in Europe who shall first arrive and take possession of the same, for the like purpose of carrying on the Fishery in proportion to the number of Ships and Boats they shall employ, and they shall continue to hold the same in like manner and for the like purpose, so long as they shall continue to carry on the Fishery there” : the right on land is an appurtenant to the fishery ; it ceases when they cease to fish.
Viscount HALDANE : They there distinguish between “ Island ” and “ Coasts.”
Viscount FINLAY : It says “ the shores.”
Mr. MACMILLAN : The actual words here are, “ the remaining Shores of Newfoundland,” but up above, your Lordship is quite right, they refer to the Islands, “ to take as private property any land, Rivers,or islands on the Island of Newfoundland or the Coasts thereof.”
Lord WARRINGTON : That is confined to Newfoundland.
Mr. MACMILLAN : Certainly my Lord ; I thought that was quite clear. This is for the purpose of showing that the problem of delimiting the area necessary for the purpose of carrying on a fishery was no new problem.
Sir JOHN SIMON : This was in 1786, when Newfoundland, of course, had not got any Labrador at all.
Mr. MACMILLAN: Yes. “ And you are not to allow or suffer any Buildings to be erected (except Fishing Stages, Cook Rooms, Ship Rooms and Flakes or such erections as shall be absolutely necessary for curing, salting, drying and Husbanding of Fish) within 600 Yards distance from High Water Mark, and you are not to allow any possession, as private property, to be taken of, or any right of property whatever acknowledged in any Land whatever even beyond that distance.” Now that was the position of the Governor of Newfoundland at this time.
Lord SUMNER : It would appear there that the word “ Coasts ” of Newfoundland is treated as equivalent to “ Shores.”
Mr. MACMILLAN : lt is my Lord, I think.
Lord SUMNER : Because they use the word “ Shores ” on page 549. Of course, the presence of a word like that in this instrument would have a much more limiting effect.
Mr. MACMILLAN : No doubt, my Lord.
Viscount HALDANE : There was a reason for it, it was for the drying and curing of fish.
Mr. MACMILLAN : And getting wood, and water also. I am not putting this as a case where you will find a stretch of shore territory delimited by the use to which. it was proposed to be devoted. The area is still further restricted in Governor Gower's Instructions in 1804, in the saine Volume at page 621. This time we are in 1804, but this time the distance is fixed at 200 yards from high water mark.
Lord SUMNER : It comes to this, does not it : That when the Governor was instructed to deal with private persons with the object of defining what the private person may do, they find it necessary to give an actual limiting distance, but it does not carry one any further with regard to the Instructions of the Sovereign to the Governor on whom he is confirming jurisdiction, criminal and civil, and subsequently, I suppose, fiscal, over an area within which alone he is authorised to exercise it.
Mr. MACMILLAN: No, my Lord.
Lord SUMNER : It may be that it was not found necessary to be so particular in that case as with a fisherman who was given an area in which to fish ; but they surely must have regarded the words “ Coast of Labrador ” as something that would tell the Governor how far he could pursue a criminal and where he could arrest him, and bring him to St. John's for trial, and where they must recognise him as having a place beyond his jurisdiction.
Mr. MACMILLAN : That was the difficulty Judge Pinsent felt ; he said in his correspondence ; I have got a criminal to deal with and the plea is taken that it is not within my jurisdiction and I have to consider what is the meaning of the word “ Coasts.” I am sure your Lordships will appreciate the purpose for which I am citing this. It is said, Why a mile ? Why not two miles ? Why not 50 miles, or why not half a mile ? I am merely for this purpose citing instances in which you get the criterion of measure. When a strip of shore is required as an appurtenant of a fishery right it is no new problem to have to delimit the extent of shore which is appropriate to be reserved for the fishery.
Viscount FINLAY: That is the essential thing, but it is a pendant to the fishery right.
Mr. MACMILLAN : Certainly.
Lord SUMNER : I can quite understand if there is a grant to private persons in these terms you might say, “ It is void for uncertainty ” ; but when you come to an instruction to one of His
Majesty's Governors, subsequently adopted as the phraseology of a Statute, when you use that expression in a Statute it is hardly open to you to say it is void for uncertainty, it is only difficult to construe.
Mr. MACMILLAN : That is the position which I would humbly accept : It is difficult to construe ; I am not submitting it is void for uncertainty.
Lord SUMNER: At the same time it is put to us to construe, and it has a construction which we have to express.
Mr. MACMILLAN : That is so. Of course, the difficulty of defining a boundary of that sort was nowhere better exemplified than in the case of Hudson's Bay where also there was an implicit boundary, that no one has yet discovered, and it has been the subject of much legal investigation ; now it will not require to be defined ; the end of the controversy was that it was not defined. It is my unhappy lot to argue to your Lordships how these things should be defined.
Lord SUMNER : I do not know that yours is the unhappy lot.
Lord FINLAY : We have to find out how it has been determined.
Mr. MACMILLAN : That is what it is, to ascertain something which is physical by means of language which is not physical.
The LORD CHANCELLOR : I think it was proposed at one time to determine the Hudson Bay Boundary in this Court.
Mr. MACMILLAN : It was, my Lord. Your Lordships appreciate exactly where I am trying to put it, I hope neither too high nor too low, I want to get it poised in a proper point of view in order that your Lordships may be in a position to pass judgment on our rival contentions with a full appreciation of our rival implications. For the moment I was dealing with the topic of the difficulty of defining a boundary when called upon to do so by something which in the text is not defined but is described, and I use the distinction advisedly : something which is not defined, but described, and what is to be done here is to elicit from a description the definition.
Lord WARRINGTON: The thing they are dealing with here is not so much the boundary, but they are delimiting the extent of the right which is conferred by the right of fishery, delimiting what is incidental to the right of fishing.
Mr. MACMILLAN : I accept that.
Lord WARRINGTON : In this Commission, we have administrative powers granted to the Governor, which is not quite the same thing.
Mr. MACMILLAN : I only used that language because it accorded with the language of the question put, which is “ the location of the boundary between Newfoundland and Canada,” therefore for the moment I slipped into that language, but your Lordship is quite right ; when one is looking at the grant to Newfoundland, the question is : what did Newfoundland get.
Lord WARRINGTON : It is very much like if I had a servitude, an easement or right to fish on another man's land, and I asked him to define with me what things there are I can do incidental to that right ; amongst other things it might be : How far into his land am I entitled to go.
Mr. MACMILLAN : That is a type of problem that I am sure the Courts have often had to deal with. May I leave it in this position : If my learned friends is not able to satisfy your Lordships—I mean satisfy your Lordships conclusively—that the height of land inwards is the boundary, or is the measure of the grant, putting it in either form, this height of land for which he contends, if I can dislodge him from that position, and if your Lordships are not satisfied that 1763 that was implicit—my learned friend's word was “ inherent ”—in the grant ; if your Lordships are not satisfied that it was inherent in the grant to Newfoundland in that accepted view, that this height of land line was the Westward limit of Newfoundland, then my learned friend and I will become engaged in exactly the same question, we will both be persons determining the extent of the coast, it not being limited by the height of land, but being limited by some other criterion. If my contention hitherto has affected your Lordships mind at all, in the direction of displacing this height of land, as the then, the 1763, contemplated boundary, then your Lordships will have to consider the problem from Newfoundland's side and from Canada's side with no criterion except the criterion of what is the amount of coast which was intended to be given to the jurisdiction of Newfoundland, what was put under the care and inspection of the Governor of Newfoundland in 1763, having regard to the purposes with which he was installed there and having regard to the extent of the use and exercise of powers in the territory which was confided to him.
Lord SUMNER : Let me see if I follow. If you get rid of the height of land to the West, then you have the whole limit between that line and the sea shore in which the boundary is latent, and always has been latent since 1763, and we have to bring it to the surface. We have no guidance, apparently, except the convenience or the requisiteness of a particular line for the fishery upon the sea shore as from the sea, and we are somehow or other to venture into a wilderness which we have never seen, and which the eye of civilised man has only very imperfectly seen, and discover where in 1763 they caused a line to be latent in the Proclamation and Commission.