Viscount HALDANE : A new map has been put before us. What is it ?
Sir JOHN SIMON : It is not a new map, my Lord. It was handed in in the course of the argument of my learned friend Mr. Macmillan in order that your Lordships might see the Admiralty Chart of Hamilton Inlet ; and as I am going to address your Lordships for a short time on this aspect of the case, I thought that in the first instance it might be convenient if the chart was handed in to your Lordships.
Viscount HALDANE : Is this Hamilton Inlet the same as Davis Inlet ?
Sir JOHN SIMON : No, my Lord. I thought perhaps it might be of service if I indicated to your Lordships the way in which I had sketched out the compartments for my reply. I hope to bear in mind the observations of my learned friend Mr. Geoffrion and to avoid unnecessarily irrelevant matter, whether 90 per cent, or 70 per cent.
The compartments were these : I must deal with the Hamilton Inlet point, and I would deal with it first. I am going to deal with that point first, just to get it out of the way, because it really, in my view, does not call for minute consideration in view of the larger claim which I hope to establish.
Then the other compartments would be these ; I must ask your Lordships' attention to some considerations connected with the Hudson's Bay boundary, and I more particularly wish to attack, and I hope to dislodge, the proposition which has again and again been asserted on behalf of Canada, that the height of land in connection with Hudson's Bay was a new invention which came into the mind of somebody in the nineteenth century. I propose to show your Lordships, by taking it in chronological order, that that is quite inaccurate.
Then I wish to deal with what my learned friend Mr. Macmillan called the calendar of documents in 1763, and in that connection perhaps I may tell Lord Warrington more particularly that I hope to be able to establish, and I think I can conclusively establish, that the governing document is the Commission, and not the Proclamation. I might tell your Lordships at once that I am in a position now to show the Board that the Commission to Governor Graves, and the instructions to Governor Graves, came before the Privy Council, and were both approved by Order in Privy Council, and both operated from the same date. Therefore the Proclamation, which came afterwards so far as that is concerned, is mere announcement.
Then there is the important question of the maps, which I have to deal with in a separate compartment for the convenience of your Lordships and everybody, and I will as far as possible avoid looking at atlases in the meantime, although I am afraid I shall be unable to avoid that altogether.
Then comes the question of what is the meaning of the Indian country upon which so much has been said, my broad proposition being this, that it is nothing whatever to the point to establish that there were aborigines in the green territory. No doubt there were aborigines all over the continent of North America at one time. But the question is not that at all ; the question is whether there was not an area which was perfectly well understood at the time as being Indian country, which was associated with some very famous and important historical events between 1759 and 1763. Therefore I was well warranted, when I ventured to say that the view that this green territory is the Indian country, or any part of it, is quite unhistorical. Those are the main compartments which which I am afraid I must trouble the Board in reply.
First of all, with regard to the Hamilton Inlet, I had already made the submission that the question really is whether the land which is around this piece of water is within the description of “ coasts of Labrador ” or not. I had also made the submission that that, I apprehend, has got to be considered, not from the point of view of zoologists or botanists, but from the point of view which may fairly be assumed to be in the minds of those who were acting in 1763. I had then made my third point about it, reminding your Lordships that beyond any question the public right of fishing, the free and public right of fishery (which by the law of England, by the law of every place in which British law operates, is one of the public rights), is a right which is not in any way limited by the distinction between something which is river–like and something which is ocean–like ; but on the contrary, is a right that exists and is exercised within the flow and re–flow of the tides, as a matter of fact, whether such waters are rivers or not.
Viscount HALDANE : That is by the Common Law of England ?
Sir JOHN SIMON : Yes, my Lord. I had reached the point where your Lordships might like to be reminded of some of the authorities in Volume V. Lord Haldane's Judgment on page 2561 in that volume brings the matter together most conveniently, of course.
Then on the immediately preceding page there is an extract from a work which no doubt cannot yet be quoted in a Court of Law, because the learned author is still living, and indeed is one of the Counsel appearing on behalf of Canada here ; but none the less it is a very valuable way of formulating it. At the bottom of page 2164 this learned author observes : “ There was formerly an erroneous impression that where a river was a public navigable river, although not tidal, the public had a prima facie right to fish. It was, in fact, contended that the navigability of the river imparted the public right, and that it was not necessary
that the river would be also tidal. In one case, the claim of the public to fish was made as to the River Itehen, a none–tidal river made navigable by means of a canal system. The point has been definitely decided, and is summed up Grove, B., and Huddleston, B., thus : ‘ The distinction is clear upon the whole current of authorities in this country and in Ireland that, when a river is navigable and tidal, the public have a right to fish there as well as to navigate it ; but that when it is navigable but not tidal ’ ”—that is what my Lord pointed out in the fishery case—“ ‘ no such right exists.’ ” There cannot be any doubt, of course, that that is the English law.
Viscount HALDANE : I think Lord Hersehell said much the same thing find the first fishery case.
Sir JOHN SIMON : He did, my Lord and incidentally,the second fishery ease, your Lordship quoted a passage from his judgment, if I remember rightly. The old authority of Hale is also quoted in this book. Your Lordships will not desire me to read it at length, but you will find the passages extracted, beginning at page 2156.
Viscount HALDANE : He was a little bit loose in that case because he lived in the narrow seas.
Sir JOHN SIMON : Yes, my Lord, that is right. Your Lordship remembers the case very well. There cannot be any doubt that that would be the view ; and consequently, if we were, in the construction of the ambit of the territorial additions made to Newfoundland, to confine ourselves—which I am by no means willing to do—to the primary purpose indicated, in view of the fact that it was the regulating and control of the exercise of the fishing rights, it seems to me to be extremely unlikely that the largest and most important body of water on the whole of the coast is a thing upon which you are to suppose, in 1763, that the authorities drew an invisible line, with the curious result, as one of your Lordships pointed out this morning, that although it would be the duty of the Governor of Newfoundland, if he could, to prevent an invader from passing that invisible, line, yet, if he once got over the invisible line and was engaged in his operations on the other side of it, he would be permanently isolated, unable to get in or out, and nobody could control him or had any jurisdiction over him.
The same thing is illustrated again and again in the English Statute books. Your Lordships will be interested to remember—and I am sure my learned friend, Mr. Macmillan, will remember—that “ the coasts of Scotland,” in the Scotch Herring Fishery Acts, is defined, as a matter of fact, by the Statute : “ shall mean and include all bays, estuaries, arms of the sea, and all tidal waters within a distance of three miles from the mainland,” and in the same way in the case of the Irish fisheries, you get a similar definition. But I do not rely on statutory definitions ; I am only observing that if indeed one had to confine one's self to the primary object to be served, I suhmit that it is impossible to suppose
that if you presented this Admiralty chart to those who were framing the documents in 1763, they would have said, in reference to Hamilton Inlet : “ You must draw a line between here, and my jurisdiction begins at one point and goes no further.” Lord Finlay will see Hamilton Inlet marked on the Admiralty chart, and although I do not wish to stress it, I am entitled to repeat what one of your Lordships observed, that on the Admiralty chart Hamilton Inlet as a description is attached to the whole thing. It is not the funnel–shaped entrance at all.
Lord WARRINGTON : The words “ Hamilton Inlet ” are actually over the eastern part of Lake Melville.
Sir JOHN SIMON : Yes, my Lord.
Viscount HALDANE : There is one observation that I should like to make. You may be right in saying that the Order in Council of 1880 had nothing to operate upon ; but that is hardly the question which has to be considered. The question is : “ What did the word ‘ coasts ’ mean in 1763 ? ”
Sir JOHN SIMON : I think your Lordship is quite right. I accept that issue entirely. I was conscious of the fact that I was probably forcing an open door in what I said, as long as I have it clear, as I think my learned friend Mr. Macmillan concedes, that really the Order in Council of 1880 does not alter what would otherwise be the truth. But I have still got to tackle the real point, which is the point which your Lordship mentioned, namely : what did “ the coast of Labrador ” mean in these documents ? I think that is the true issue.
Then I was next going to observe this on the subject of Hamilton Inlet : I suggest that it could hardly be supposed that the framers of the Proclamation or the framers of the documents of 1763 meant to exclude Newfoundland from any waters which were accessible from the open sea in sea–going ships of considerable tonnage and draught, which would be a resort of fishermen, merely because it might turn out that cod did not often go there.
The exact extent to which cod did go into the more interior waters of Hamilton Inlet is difficult precisely to define. It is true that they are not to be found there in the same quantities in which they are to be found on the banks of Newfoundland ; but it is interesting perhaps to note the very same passage which asserts that, asserts the same thing is true of Sandwich Bay. Would your Lordship turn to Volume V ? Immediately following some of these pretty pictures which are in this volume there is a report on the Labrador fisheries beginning on page 2564 by Dr. Grenfell, the well–known medical missionary in Labrador. There is an elaborate account written of it, and on page 2566 near the top of the page he discusses the subject of the extent of fisheries up estuaries and rivers. I do not suppose there is anybody who knows so much about it as Dr. Grenfell. He says : “ The fact that cod fish are not
fished commercially in fresh water precludes their being fished far up long estuaries into which flow many large rivers, such as Hamilton Inlet and Sandwich Bay. The former has, besides the Hamilton, some twenty other rivers at least, while Eagle, White Bear, Dove Brook, Paradise, Muddy, and other rivers make Sandwich Bay at its head of no value for cod fishing. It is safe to say that few cod fish enter Melville Bay, a fact that is attested by the Eskimo cod fishery at Caravalla.” All that I am saying is that this attempt to put Hamilton Inlet into one category and the others into another from the point of view of cod fishing breaks down the moment you examine the material. The truth is that the cod prefers a very definite saline water. Whenever you come to an arm of the sea which is being fed by a series of important rivers, which is the receptacle for important rivers, you get a mixture of the fresh water from the hills with the salt water at sea level, and the cod prefers to go further out. That is true, but it is quite untrue to say that Hamilton Inlet stands in one category and other inlets stand in another. It is true of every inlet. I do not think very much could turn on that. In point of fact—and this I want to collect now in two or three passages—though cod fishery is no doubt the thing of the most importance and is in the forefront throughout, it is not true at any stage that the cod fishery is the only fishery. May I give your Lordships four references ; one in 1719 (which you see is before any question of Newfoundland's claim to the coast), one in 1773, one in 1777 and one in 1821. I could take others, but I will take those. Now, my Lord, will you take first the earliest date, 1719 ? This, I quite agree, is not a Labrador and could not be a Labrador instance ; it is an instance from the Island of Newfoundland, and in Volume IV at page 1961 you will see a petition signed George Skeffington addressed to King George. The year is 1719. “ The humble petition of George Skeffington inhabitant of Indian Bay in Newfoundland, Humbly Sheweth.”
The LORD CHANCELLOR : We have had this.
Sir JOHN SIMON : Your Lordship will forgive me for putting them together, because it is important for me to show, once and for all, that salmon fishery comes in. “ That your Petitioner hath for about twelve years past Improved the Salmon Fishery in two or three Rivers or Brooks to the northward of Cape Bonavista ; and hath at very great Expence and Labour near fforty miles up the Country cleared Lands of the wood, and the said Rivers or Brooks of rocks and stones and other obstructions ; built houses, Stages, ffatts, Works and other Conveniences for catching and Curing Salmon, which said Brooks or Rivers were never before Imployed frequented or occupied by any person whatsoever, and far distant from any place where any ffishing[sic] Ship hath used to fish—Your Petitioner therefore most humbly prays that he may be incouraged and protected in carrying on the said Fishery according to the Intention of the Act made in the 10th & 11th of King William the Third for Incouring ”—that word means “ encouraging ”—“ the fishery of New–