In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Thursday, 4th 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 of NEWFOUNDLAND 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, I am afraid I can contribute nothing further as to the origin of the reference to the 52nd degree of latitude in the Act of 1825 beyond this. My learned friend, Mr. Alexander, who is with me, has been through the papers in the House regarding the progress of that Bill of 1825, and it is, perhaps, a matter of interest that he informs me that in the Bill as introduced it stops at the critical point and simply says : “ at a point . . .,” leaving a blank to be filled in. So that the Bill as originally introduced apparently had not the 52nd degree of latitude, and it must have been introduced at some subsequent stage of the Bill because it is now in the Act.
The LORD CHANCELLOR : I never saw a Bill like that.
Mr. MACMILLAN : It is an interesting point. I have sent for the Bill if your Lordships would care to look at it. It must have been introduced at a later stage. So far as my friend's researches have gone, it has not been possible to find in any proceedings, in Committee or otherwise, what its origin was. I do not say anything more about that. It is merely a contribution to the history of the matter.
Would your Lordships this morning be good enough to consider for a few minutes the question of the southern boundary of the territory now claimed by Newfoundland ? Attention has been largely concentrated upon the boundary which has been coterminous with the Hudson's Bay Company's boundary, but I venture to think a short examination of the contention of Newfoundland with reference to the southern boundary of the area is useful. Your Lordships will see upon the map the claim as indicated by the blue line is that the boundary between Canada or Quebec and Newfoundland, on the south proceeds from the point of contact of this line drawn to the 52nd degree of latitude in a straight line westward until it reaches a point, as your Lordships see, just above the slate and yellow. Then it proceed, to deviate from the straight line and follows a dotted line up to a point where there is a divergence in the dotted line, and then it takes a right hand turn and goes up north.
Lord WARRINGTON: That is following what appears on the map to be the watershed.
Mr. MACMILLAN : Yes.
Lord WARRINGTON: Because the Ashuanipi Lake appears to be the head of the watershed going first northwards.
Mr. MACMILLAN : Yes. I think it is designed to follow the
watershed line there. Upon that if your Lordships would look at the written claim which is stated on the first and second pages of the Case for Newfoundland, you will see they put it thus : “ The Colony of Newfoundland, submits that the correct answer to the question referred to in paragraph 1 hereof is that the boundary should be a line drawn due north from Anse Sablon ”—so that we start at that point—“ as far as the fifty–second degree of North latitude, and should be traced from thence northwards to Cape Chidley along the crest of the watershed of the rivers flowing into the Atlantic Ocean. This line of boundary is shown coloured blue on the map marked ‘ A ’.” There is a curious hiatus. We are first taken up to the point of the fifty–second degree of latitude, and it says, “ shall be traced front thence northwards.” I think in order to read that fairly, that must be taken from the fifty–second degree of latitude. But one would have expected that it would have conformed with the map, that having reached that point, then it would be along the fifty–second degree of latitude until that degree cuts the watershed line, thence following the St. Lawrence watershed line until it encounters the Atlantic watershed line, and thence north.
Lord WARRINGTON : They made it quite clear after the next line or two, because they say : “ This line of boundary is shown coloured blue on the map marked ‘ A,” which will be found in the pocket of, and forms part of, this Case.” So that they make it quite plain what they mean.
Mr. MACMILLAN : The difficulty of the description is this. The crest of the watershed until you come to the turning point to the right is not the crest of the watershed of the rivers flowing into the Atlantic Ocean, but is the crest of the watershed of the rives flowing into the St. Lawrence. Therefore there is a curious gap in their description perhaps made advisedly. You will observe the watershed on the south is a watershed of rivers flowing into the St. Lawrence, and not the Atlantic watershed. The Atlantic watershed begins at the other point.
Lord SUMNER : Supposing the Newfoundland Case was very much better for the Hudson Bay watershed than the St. Lawrence boundary, and that the Hudson Bay watershed as the proper line could be established, but that there was an insoluble ambiguity about the gap between the intersection at the 52nd degree of latitude and the intersection of the 52nd degree of latitude with the Hudson Bay watershed. How would the result be affected ? Do they fail in toto ? Do they succeed in part ? Or do you succeed ?
Mr. MACMILLAN : I think it would be for them to formulate what they maintain to be their claim in the Labrador Peninsula. So far as my contention is concerned I have to put it this way. My case is a complete case ; I do not accept. either of these boundaries. But I
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appreciate the difficulty. Suppose they are able to get a boundary at one point with a degree of precision which would satisfy your Lordship, but not at another, and leave it vague, I think at all events I would be entitled to say. What do you do with your boundary there ?
Lord SUMNER : You say they fail in toto if they fail there.
Mr. MACMILLANT : No doubt that would be putting the issue in its sharpest form. On this point of the southern boundary there is a considerable amount of vagueness all, it is plain that when the northern boundary of old Quebec in 1763 was constituted by the line drawn from the Headwaters of the River St. John to the Lake St. Johnhat was not a watershed lineIt contrasted that respect to the watershed line on the Gaspe Peninsula.
Viscount FINLAY : That could not be.
Mr. MACMILLAN : No, my Lord, because no watershed is a straight line in nature. Therefore this was a purely arbitrary line drawn on the northern boundary of Quebec. That appears equally from the other map, No. 27, where the Qucbec boundary is shown not as a straight line but as your Lordships may remember, as a waving line with the height of land at a considerable distance beyond it. So that I think one may say that so far as the original conception of Quebec in 1763 is concerned, it was at no time contemplated that that line should be a watershed line from that post. Starting with that circumstance, my learned friends are much concerned to establish that the Head–waters of the River St. John were selected as the terminus a quo for the boundary of Quebec in 1763, because that line was in some way related to the 52nd degree of latitude. My submission upon that is that the 52nd degree of latitude had nothing whatever to do with the fixation of that point, and that it was not in the mind of any person at, that time that they were relating the proposed boundaries of Qucbec to the 52nd degree at all. One has to remember this. Those who framed the boundaries of at that time must have had some maps before them. Such maps as relate to that period are before my Lords in the two Atlases, and it is not by ex post facto examination of the true length of the River St. John that the intention of 1763 is to be gauged, but by the material and the information which were before those in 1763 who addressed themselves to the problem. And in 1763, so far as my researches go, there is no map that shows that the headwaters of the St. John, that is to say the terminus a quo, coincides with or is even near the 52nd degree of latitude.
The matter goes a little further, because one of the maps I have been looking at, and to which my learned friend referred, viz., Map No. 16 in the Newfoundland Atlas, shows an extraordinary discrepancy in this matter. Would your Lordships look at the description of that map. It is this : “ A new map of the Province of Quebec according to the
Royal Proclamation of the 7th of October, 1763, from the French Surveys connected with those made after the war by Captain Carver and other officers in His Majesty's service.” Would your Lordship look at that map, which is a contemporary map, and which had in view this very Proclamation which settled the boundaries of Quebec; and look at the River St. John as there delineated, no doubt incorrectly delineated, because as we know it was a comparatively shot river. There was another river near it, called the Romaine River, which went very much further. But there is the conception at that time of Captain Carver and the other officers who made that map. You observe that the corner on the north–east of Quebec runs right up to the 53rd degree of latitude, and not to the 52nd degree. There is thus a large corner of Quebec which is north of the 52nd parallel. Similarly, if one looks at the other maps one finds the same thing. I will not weary your Lordships by going over them again, but the large map which is called the King's map, and which is before your Lordships, and is fastened to the cartoon, again shows the River St. John going up beyond the 52nd parallel. The result of going through the whole series of these maps is to find an extraordinary divergence in the ideas as to where the River St. John was. A considerable number of the maps show the headwaters of the River St. John falling short of the 52nd degree of latitude, while quite a number show the river passing beyond. The result is that so far from the 52nd degree of latitude being a line which would pass through the north–east corner of old Quebec, it would do nothing of the sort, and would leave a projection north–east of the old Province. Of course, in 1825 my Lords remember that the boundaries of 1763, had, so to speak, disappeared off the map, because the boundaries of 1763 had been superseded by the extension of 1774, and consequently in 1825 the old boundary of Quebec was a matter of past history. It had subsisted from 1763 to 1774, but from 1771 onwards that old boundary of Quebec had disappeared.
Would your Lordships also note Map No. 27, which was the map before the Lords of Trade in 1763. I have already referred to Map No. 11. From none of those maps will my learned friend be able, I submit, to establish that the headwaters terminus of the River St. John inland was at a point on the 52nd degree of latitude. I am not going through the actual figures, but I have had them all measured out on map after map, and there is an extraordinary discrepancy among the figures. My subamission is that the 52 degrees have nothing to do with this matter at all, and that the St. John must be looked at through the eyes of those who looked at it with the knowledge of those days and not with the more precise knowledge of geographers of the present day. That being so, we come to a point as far as the north–east point of the old Quebec apex, which is not hit by the 52 degree and cannot be the point which was aimed at by the person who selected the 52 degree, as if it would give a neat gnsset with the boundary which has ceased to exist as a real boundary.
Lord WARRINGTON: Tracing along the 52nd parallel, the land