Lord WARRINGTON : At any rate, your view may be that he was going up through territory, all of which had been annexed to Newfoundland.
Sir JOHN SIMON : Of course, that is my contention, but for the moment I am going purely on interior lines and endeavouring to dispose of this suggestion. It does not support the view that the jurisdiction of Newfoundland ends at the Narrows. That is what I am attacking ; I am saying that the whole story here is quite inconsistent with any such artificial construction.
Mr. MACMILLAN : May I just say that I do not agree with your view that the Grand Waterfall there means the Grand Falls on the river ? I do not think he could possibly have got up to there.
Sir JOHN SIMON : I am told that my friend is quite right. There are some other falls called Musk Rat ; there are some intermediate falls ; I am no doubt wrong. Of course, there are degrees of grandeur ; if one has only seen a Musk Rat Fall it appears to be grand, but it does not appear so when you have seen Niagara. Then he says : “ I have had communication with the Red Indians,” and so on. My Lords, I am told it is 27 miles in from Goose Bay that you arrive at Musk Rat Falls.
Now, my Lords, all those passages go to this : With the action taken about Skeffington, which is only analogy, in the Island of Newfoundland in 1719, with the action taken about George Cartwright in Sandwich Bay in 1770 and 1773, with the action taken about Coghlan in 1777 on the River Alexis and the like, and with the conduct of Captain Martin in 1821, is it surprising that when Graves' instructions were revised there was the express insertion in them, as your Lordship noted this morning, that he was to pay particular attention to exploring the rivers ? And not only were those his instructions, but he did as he was instructed to do, as you will find in Volume II.
Lord WARRINGTON : I suppose it may be said on both, not only this one but on the one which you previously read, the reference at page 1070, that the rivers were on the coast. They are described there as being rivers on the coast ; and if the rivers were included in that territory, then they would be in that territory which had to be included.
Sir JOHN SIMON : I think so, my Lord. Could we not perhaps carry it a shade further by using the actual expression used ? My recollection is that the actual expression used is not so much that the rivers are on the coast but that the coast is within the rivers, which must surely mean that an area which is being drained by the river is to be regarded as part of the coast of Newfoundland. My Lord, I was referring to page 1070. I think Lord Warrington's eye had caught line 8 : “ Rivers and Bays upon the coast.”
Lord WARRINGTON : Yes.
Sir JOHN SIMON : Then your Lordships observe at line 30 you get this expression : “ Do not claim or occupy a greater extent of the coast within the said Bays or Rivers,” and so on. All I am saying is that this severely maritime flavour which my friend's delicate perception detects in these documents must surely be qualified when we find that things go as far inland as that.
Then, my Lords, I was going to say that not only was the language of the instructions to the Governors of Newfoundland expressly altered so as to direct them to attend to the rivers, but they did it, as your Lordships will see if you look at Volume II, page 387. This is not the report, but this shows what under this head the Lords of Trade consider to be important. This is a document which must be looked at again from another point of view. You will see, beginning at line 12, the Lords of Trade are saying : “ With respect to the Necessity of any additional Instructions upon which We are directed to give Our Opinion, We beg leave humbly to represent to your Majesty, that Your Subjects employed in the Fishery at Newfoundland, having of late engaged more extensively in the Fishery on the North eastern Part of Newfoundland, upon which Coast the French have also a Right, by the Treaty of Utrecht, to catch and dry Fish during the Season, under certain Restrictions ; The great and extensive Whale Fishery in the Streights of Bellisle, with the other Branches of the Salmon ”–this idea that the salmon is an afterthought is quite contrary to the document–“ and Seal Fishery, attending the Coast from the Mouth of those Streights to the River St. Lawrence, and the Fishery of the River St. Lawrence itself, of Gaspee, of Canceaux, the Madelain Islands, St. Johns & Cape Breton being now annexed to His Majesty's Dominions by the Definitive Treaty ; The general Fishery of Newfoundland, and the Gulf and the Coasts with it is become a Matter of infinite Extent ”–I am not going to argue that that is there used in a geographical sense–“ and of the utmost importance ” ; it means that they have got all sorts of ramifications.
So, my Lords, I think I have made good the point on the documents that there is no reason at all for supposing that the framers of the documents of 1763 had any desire at all to exclude Newfoundland from any waters that were accessible from the open sea, and more especially is there no reason to think so when it appears that even if cod prefer a greater salinity, none the less some cod may sometimes be found, and there are other fisheries of great importance.
Now, my Lords, all this is strongly confirmed by the contemporary maps, but I think it would consult the convenience of your Lordships if I do not trouble you at this moment actually to take the atlas in your hand, because as the Lord Chancellor said, I have to take the maps for another purpose. Perhaps your Lordships will be good enough to take this from me, and I will make it good when I do turn to the maps. If you do take the contemporary maps, the weight of the contemporary maps is altogether in favour of regarding the whole of this water area
as far as Goose Bay, as forming part of an Inlet. I do not say that there is no instance to the contrary ; the practice of geographers of course varies, but I do not think there is any doubt at all, whether you take the Newfoundland Atlas or the Canadian Atlas, that the contemporary maps treat this disputable area of water as being Gross Water Bay; that is the ordinary expression ; I suppose that means Great Water Bay. You will find it so in Bellin; you will find it so in Rocque; you will find it so in quite a number of maps at the time.
Now, as against that, which seems a very strong prima facie case, with regard to the case which my learned friends for Canada seek to set up, I do not wish in any way to speak harshly of the material which is at their disposal and which of course has been displayed to the Board by Mr. Macmillan with a persuasiveness which gains a great deal from his moderation ; but the fact of the matter is this : that the whole of the Canadian expert evidence has been procured for the purpose of this case, and after it has been realised that the head waters of the Hamilton Inlet are surrounded by extremely valuable woods. Their map of Lake Melville, which my friend so artistically introduced to you as though it would be the natural standard reference for this area, is a map which has been expressly made for the purposes of arguing this case, unlike the Admiralty Chart, which was not expressly made for this purpose. Their surveys and their scientific material have been expressly collected for the purpose–I do not wish to attribute motives–I will say in the hope that it might support their case. Therefore if I were to have regard to the views of a Canadian expert, I not unnaturally should prefer the views of a Canadian expert who has this advantage, that he said what he had to say and wrote what he had to write before this controversy arose ; and who could there be better than Professor A. P. Low, who was responsible for the survey of this neighbourhood and whose map, you recollect, your Lordships have already seen ?
Now if your Lordships will take Volume V, you will find what this distinguished authority has to say about it, at page 2593. I am quoting a Canadian authority ; he is none the worse for that ; he is a very distinguished man and has the great advantage of having been there. I think Lord Finlay will be interested in this passage, because he asked for a description of the place. This is what Professor Low has got to say, at page 2592, line 35 : “The eastern coast of the Labrador Peninsula extends north–north–west, from the Strait of Belle Isle to Cape Chidley, a distance of about seven hundred miles, or from latitude 52 degrees to latitude 60 degrees 30 minutes, fronting the North Atlantic. The northern boundary from Cape Chidley to Cape Wolstenholme, at the entrance of Hudson Bay, in a straight line, is nearly five hundred miles long, and runs about west–north–west in direction, forming the southern shore of Hudson Strait including Ungava Bay. A lino drawn from Cape Wolstenholme to the bottom of James Bay, runs nearly north–and–south for eight hundred
miles, and corresponds closely to the eastern shore–line of the peninsula.” This distinguished authority seems to have thought that that might be so. “ The southern boundary is arbitrary but has been taken as a straight line extending in a direction nearly east from the south end of James Bay near latitude 51 deg., to the Gulf of St Lawrence near Seven Islands in latitude 50 deg. This line is nearly six hundred miles long and passes close to the south end of Lake Mistassini. From where the line reaches the Gulf coast, in the neighbourhood of Seven Islands, the shore–line forms the southern boundary to the Strait of Belle Isle with a length of somewhat over five hundred miles.” That is a description of the peninsula. “ The total area embraced within these boundaries is approximately 511,000 square miles, of which, previous to the present explorations, 289,000 square miles were practically unknown.”
Viscount HALDANE : What is the square mileage of Great Britain, do you remember ?
Sir JOHN SIMON : I wrote it down for comparison. The area of Great Britain is 89,000 square miles. Your Lordship will remember I gave you one or two figures in order to get the proportion. The whole Labrador Peninsula being some 511,000 square miles, the green area which is the matter now in litigation is 100,000 or 102,000 square miles. It does not matter exactly what it is– call it 100,000 square miles. It is substantially one–fifth of the whole, and is, of course, a very large area.
I wanted your Lordship to see how Professor Low dealt with this Hamilton Inlet. He says, at line 14, page 2593: The Atlantic coast is exceedingly irregular, being deeply cut by many long narrow bays, or fiords, so that the coast–line exceeds many times the direct distance from Belle Isle to Cape Chidley. Hamilton Inlet is the largest and longest of these inlets, extending inland over one hundred and fifty miles from its mouth.” According to the Dominion of Canada, assisted by some expert evidence of the last few years, it is not an inlet at all, but is something of a perfectly different character. This gentleman says : “Hamilton Inlet is the largest and longest of these inlets, extending inland over one hundred and fifty miles from its mouth. Among others, Sandwich, Kaipokok, Saglek and Nachvak bays are from thirty to fifty miles deep. These narrow fiords are surrounded by rocky hills that rise abruptly from the water to heights ranging from 1,000 feet to 4,000 feet. The water of the inlets is generally deep and varies from ten to one hundred fathoms.” That is not peculiar to Hamilton Inlet at all. That is a perfectly common, and, indeed, an inevitable consequence of the physical history of this part of the world. You will get very deep cavities in these bays before you reach the shallower ground, and get out into the Atlantic. “ A fringe of small rocky islands extends almost continually along the coast, with a breadth of from five to twenty–five miles. Outside the islands, the inner banks
extend seaward for an average distance of about fifteen miles, and on them the water is rarely over forty fathoms deep. From this it will be seen that the fiords, as a rule, have greater depths than the banks outside the island fringe.” I have always understood that you talk about the “bank” of Newfoundland because, as a matter of fact, it is part of the sea where the actual depth is not so great as in other places, but there is not the smallest indication in Professor Low's treatise that he thinks he is dealing with something quite different from all the other inlets.
In the same volume if your Lordships will turn to page 2486, your Lordships will see an extract from a book which is very often used in circumstances like this in the Admiralty Court and elsewhere, known as “ The Newfoundland Pilot.” Your Lordships know there are issued official volumes for different parts of the world. There is the “ North Sea Pilot, ” the “ Newfoundland Pilot,” and so on. And, of course, they are kept and consulted by navigators, and they contain a description of the places you might meet. Observe the way in which this perfectly impartial document describes Hamilton Inlet.
Viscount HALDANE : Do you say it is official ?
Sir JOHN SIMON : Oh, yes ! It is a thing you will find in the locker of a schooner. Anyone who goes yachting on the south coast of this country usually provides himself with a “Pilot,” because it gives him some indication as to where he is likely to get an anchorage, as well as giving him a chart. It is a thing of regular usage. The extract at page 2486 says : “ Hamilton Inlet (Ivuctoke or Grosse Water Bay) is entered between Tub Island and Pompey Island, which bears 2° true, distant 15 miles. It extends west–south–westward 35 miles to the Narrows, the intervening space containing several islands. Within the Narrows which are 3½ cables wide, the inlet extends south–westward 90 miles, opening to the width of 18 miles in Lake Melville, and narrowing again at its head “–that is, the head of the inlet–“ into which Gillesport (Hamilton or Grand) river, a large stream, flows. Hamilton Inlet is the largest of the many long fiords which indent the north–east coast of Labrador.” I will not delay your Lordships by reading the rest of this passage, but there is a minute description of it, and so far as I have observed there is not the slightest ground for supposing that this particular sinuosity is different in character from any other sinuosity except that it is bigger and more valuable. I am not aware of any other distinction which is material in this case.
As against all that I next submit this. You have, it is true, a perfectly definite test as to how far the public right of fishery extends. The English law provides you with that. But it has nothing to do with how much tide there is, or how salt the water is. The question is whether or not there is a flow and re–flow of tide. There is, in fact, all things considered, a quite substantial rise and fall of tide in this particular disputed water, because it rises a matter of four feet. There is in fact quite a considerable degree of salinity. For example, it is a great deal more salt than the