In the Privy Council
COUNCIL CHAMBER, WHITEHALL,
Monday, 8th 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. SIR THOMAS 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. PLAXTOX (of the Canadian Bar), instructed by Messrs. CHARLES RUSSELL & CO.
Sir JOHN SIMON : There are very few things which have not been dealt with.
Now, my Lords, I am acutely conscious of the fact that the matters which are material in this important Inquiry have been canvassed before your Lordships and have been considered by the Board in great detail, but at the same time there is a good deal which I should wish to present with some brevity on the case, in view of the elaborate arguments that have been presented on behalf of the Dominion.
The LORD CHANCELLOR : Sir John, I daresay you have got your plans made, and I do not want to disturb them, but I would be very grateful if, at some time or other, you would go through these maps, especially the maps prior to 1763, and go through them if you will, in order of date, so that I may know just what may have been before the authors of these documents when they were framed.
Sir JOHN SIMON : It is one compartment I had down ; your Lordship will not ask me to deal with it immediately, because I have got some other things to deal with.
The LORD CHANCELLOR: Certainly.
Sir JOHN SIMON : I was going to suggest to the Board, with great respect, perhaps in the first instance, now you have heard elaborate arguments from both sides, what is well to be done is to see how far there is common ground which is material for the purposes of assisting the just conclusion ; and without in any way making an exhaustive list, it appears to me that there are four matters, at any rate, which can now fairly be claimed to be common ground as between the two sides,or at any rate, to be so far indisputable, that I may fairly treat them as undisputed. There are four rather important considerations which I think are now no longer matters of controversy—there may be others. The first one is this : it is not now any matter of controversy at all that the events of 1763 annexed to the Government of Newfoundland territory on Labrador. It is very tempting, of course,
to make play with the idea that the primary object was, as it undoubtedly was, to supervise and control fishing operations on Labrador. That does not make any difference to what fishing operations now common ground. My learned friend, Mr. Macmillan, of course, has admitted, as you would have expected, most frankly that what we are dealing with when we are speaking of Newfoundland's rights on the Labrador Peninsula is territorial rights, and indeed, my Lords, this is a very striking fact which I have checked, and which I am going to develop if I may : the word “ territories ” which you will find used again and again in various documents defining and describing Newfoundland's rights on Labrador, so far as we have been able to trace it and check it, is a word which is only introduced and used after Newfoundland has this Labrador addition. We cannot find in any document, any formal document, grant, Commission or Order in Council—or what you please—it is a mere coincidence, but we do not find the word “ territories ” at all in the formal documents that were being used down to 1763. When you come to the enlargement of the Newfoundland territorial area you will find this word “ territories ” used again and again, and indeed when you come to the Quebec Act of 1774 and it became a question of transferring back, from Newfoundland to Quebec, territory which had previously been Newfoundland's, your Lordships will be struck with the circumstance that not only is the language used in the Act “ territories ” but the word “ coast,” the possibly rather ambiguous word “ coast,” does not appear in the Act at all. That is the first matter which is a matter of common ground and which I venture to think is worth noting.
Viscount HALDANE : Which Act are you referring to ?
Sir JOHN SIMON : The Quebec Act of 1774, which transfers to Quebec everything in the green area whether it is properly to be regarded as Newfoundland or not. If your Lordships would be kind enough to look at this particular point now, I should be grateful. It is in the red volume at page 158. As far as I have checked it, I think I am right, you will not find in the Quebec Act of 1774 the word “ coasts.” In fact we may very well conceive that when the Legislature is dealing with this process of transfer—
Lord WARRINGTON : The words on page 159 are “ Territories, Islands and countries.”
Viscount HALDANE : There is no more there than in 1763.
Sir JOHN SIMON : Not a scrap. Please do not understand me to say so, I am merely observing on the first point I am making (which I venture to suggest is well worth nothing) we are not only dealing
here with a territorial transfer, but at a time when I can well understand there may possibly have been some opportunity for doubt, the actual language is extremely specific.
Viscount HALDANE : “ Territories ” is a very general word.
Sir JOHN SIMON : I am not saying more. Would your Lordships allow me to ask attention to the actual passages ; you will find, my Lord, the word is on page 159 at line 14 : “ And also all such Territories, Islands, and Countries, which have, since the Tenth of February One thousand seven hundred and sixty–three, been made Part of the Government of Newfoundland.” Now, my Lords, with that in mind, I still keep to my first point, my first observation about “ territories.” Would your Lordships allow me to take, I think, two references in another volume, in order to show how this word “ territories ” first comes to be used. If your Lordships will please turn to the second volume at page 393—I am afraid this is a passage which is becoming very well worn, I am sorry, but one cannot help it—there you get paragraphs 7 and 8 of the instructions issued to Governor Graves consequent upon the re–arrangement. I am putting the matter together to the best of my power. If your Lordships would look at line 29, you may take it, because I have had this carefully checked, that this expression which you find there : “ Other Islands and Territories under your Government,” and in the same way in the following paragraph at line 39 : “ Islands or territories under your Government,” that that expression is an expression which was expressly introduced into the Instructions of the Governor of Newfoundland, and was an entirely new expression not to be found in any previous document. The suggestion, which has been made rather faintly by my learned friends on the other side, that the stress I have put on the use of the word “ territories ”is overdone because it might perhaps refer to something other than Labrador, is quite unfounded. I have had the documents compared as before 1763 and after 1763, and your Lordships may take it, with quite complete confidence, I think, that the use of this word “ territories ” again and again is introduced specifically in reference to the Labrador area. I am going in a moment to show your Lordships the very striking change which is made in the Commission of Governor Graves on the same point. My learned friend Mr. Barrington–Ward has take some special pains about this, and it is very striking. I am going to hand your Lordships, if I may, a copy of the Commission to the Governor of Newfoundland as it was before 1763, in order that your Lordships may observe what is the nature of the alterations made in that Commission when in 1763 he also gets duties at Labrador, and if your Lordships will kindly take this copy, you will see very conveniently the red ink in the margin shows the changes. (Document handed in.) They did it, as I imagine draughtsmen will do it nowadays.
Viscount HALDANE : There is a reference to the Coast of Labrador just a few lines down on page 393.
Sir JOHN SIMON : Yes, there are a number of references.
Viscount HALDANE : “ And carrying on a Commerce with the Indians residing in or resorting to the said Islands, or inhabiting the Coast ,of Labradore.”
Sir JOHN SIMON : Quite. I hope your Lordship will not think for a moment I am suggesting the word “ coast ” is not used. The point is that the word “ territories ” is a new word, and must be read as specifically referring to Labrador.
Lord WARRINGTON : I think you are right ; he is directed to visit “ All the coasts and Harbours of the said Islands and territories under your Government.”
Sir JOHN SIMON : That is it.
Lord WARRINGTON : The coast of Labrador is one of these coasts, that is to say, “ The coasts of the territories under your Government.”
Sir JOHN SIMON : That is right. In exactly the same way we can see, if we look through the draft of the framer of the Commission, how the word “ territories ” is inserted. If I might ask your Lordships' indulgence and ask for that to be examined, it has been checked and has been put on a single piece of paper.
Viscount FINLAY : The instructions after are at page 391.
Sir JOHN SIMON : Yes. I was passing for a moment from the instructions, which, as your Lordship knows, may be regarded as an internal and domestic set of documents, to the Commission, which as your Lordship knows is a contemporary document and is the authority.
Viscount FINLAY : Surely for the purpose of comparison one must take instructions with instructions. Page 391 is the instructions after.
Sir JOHN SIMON : Your Lordship is quite right.
Viscount FINLAY : Where are the instructions before ?
Sir JOHN SIMON : I have had them examined and I have also got them here ; I was rather observing, to save your Lordships' time, that you may take it, as I have carefully checked it, that the word “ territories ” does not occur in the instructions before.