The Labrador Boundary


Privy Council Documents


Volume XII


Contents








12 Nov., 1926.

Sir John Simon.

Viscount
Haldane.

Sir John Simon.

12 Nov., 1926.

Sir John Simon.

Mr. Macmillan.

12 Nov., 1926.

Sir John Simon.

12 Nov., 1926.

Sir John Simon.

Sir John Simon.

Mr. Macmillan.

12 Nov., 1926.

Sir John Simon.




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in the early 'nineties that the forests and water power of this part of Labrador were valuable, there really was not any challenge.
Well, my Lords, what has happened since ? There was this desperate attempt to peg out claims ; first of all to extend the boundary by Quebec legislation and Canadian legislation, all of which is perfectly inoperative, because, of course, if Quebec had already got it she did not want it, and if she had not got it and somebody else had, then she could not get it by legislation.

Viscount HALDANE : It is not important from the point of view of your argument, but how many times larger is Labrador than Newfoundland ?

Sir JOHN SIMON : The part I am talking about is about twice the size, my Lord. Newfoundland would be about one-third of the whole.

Viscount HALDANE : From the coast to the height of land ?

Sir JOHN SIMON : Yes, my Lord, my green. Roughly speaking, you may say that it is twice the size.

Then in the same way you get this to some extent on both sides, but I am much struck with the Canadian ones. I have not spent time in pointing out how very oddly some of them have been procured, but there is a great effort to produce affidavits, and perhaps I may say that that culminates by the presentation by my learned friend, Mr. Geoffrion, on page 744 of the Shorthand Notes of the very striking fact that since 1897 Canada has actually distributed 75 pairs of blankets to some Indians. That was one of the acts of occupation which your Lordships were invited to consider from the Canadian point of view, five years after the dispute arose. The answer is, of course, that naturally both sides want the territory. Newfoundland wants it quite as much as Canada.

Your Lordships will perhaps remember, one of the later Latin poets satirised the tendency of Imperial Rome, wherever it found some hidden 1 inlet or some other territory that might perchance produce gold. at once to start a dispute and claim it :
"Si quis sinus abditus ultra, Si qua foret fellus, fulvum quae mitteret aurum, Hostis erat."
There is no danger, of course, of hostile feelings arising between Canada and Newfoundland—

The LORD CHANCELLOR : Who was it who said that ?

Sir JOHN SIMON : It was Petronius Arbiter, my Lord. It is one of the poetical passages.
As I say, there is, of course, no danger of any hostile feelings arising between Canada and Newfoundland. The great Dominion and the ancient Colony are good friends and neighbours under the British Crown, and they will remain such ; but even the friendliest of neighbours sometimes find it necessary to secure an impartial award which will fix

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the exact boundary between them, and I confidently submit to your Lordships that when you make your report to His Majesty, that report should declare, in answer to the question in this case, as to what is the location and definition of this boundary, that the boundary between Canada and Newfoundland in Labrador is located and defined by a line starting at Cape Chidley, at the entrance to Hudson's Straits, running along the watershed or height of land which divides the waters that flow into the Atlantic from the waters that flow into Ungava Bay or Hudson's Bay, until it reaches the 52nd parallel of latitude ; when it reaches the 52nd parallel of latitude, that the boundary then runs due east along that parallel until it reaches the meridian at Blanc Sablon, and thence it runs down south to the Gulf of St. Lawrence, including Woody Island.

Mr. MACMILLAN : May it please your Lordships, for thirteen days the Board has been engaged in hearing debated here the question of the true interpretation to be placed upon the words " all the coasts of Labrador," as used in certain documents in 1763.
My Lords, it is a tribute to the ambiguity of the English language that an apparently simple phrase such as that should have afforded material for so prolonged and so elaborate a debate. The resources of history, of geology, even of botany, of geography and physiography, and almost all the sciences, have been ransacked in order to assist or impede your Lordships in the decision of this question. But nevertheless, at this late stage of the debate, and notwithstanding the note of confidence—I might even say the note of triumph—with which my learned friend Sir John Simon has concluded his address to your Lord- ships, I have still the temerity to submit to you that his contention is not a sound one, and that the position of the Dominion of Canada in this matter is supported, and is both historic and accurate.
The question cannot be dismissed as one which is so abundantly clear as to leave no room for controversy. We should not have been engaged upon it for all these days had it been so clear a question as that. The topic has been discussed and canvassed with many of the papers which are before the Board, and the problem which your Lord-ships are asked now to solve is very much the same problem as Judge Pinsent puzzled his head over in the year 1867, and which he at that time found was difficult of solution.
In approaching the solution of the problem, I am happy to be able to start from a common ground with my learned friend. On the question of the sound interpretation of these critical words, these five words with which we have had to deal, I have been very much struck throughout by this feature, that my learned friend Sir John Simon has said, and said frequently, not as a matter of concession to me but as a matter not susceptible of argument, and as one of the common grounds in this case—I had better use his own language so as to do him no injustice—" I am not in the least disputing that the purpose and motive and governing consideration in all this business was the use of the margin of the sea in connection with fishing of different kinds."
Now, my Lords, subject only to the qualification that I should read " cod fishing " for " fishing," I am in entire agreement with my learned

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friend there. But the significance of the statement, coaling from Newfoundland, cannot be overlooked, nor, indeed, I think, can it be over estimated. Notice how far reaching it is: "The purpose, the motive. the governing consideration, in all this business;"—that is to say, this business of allocating some jurisdiction of the mainland of Newfoundland— "was the use of the margin of the sea in connection with fishing."
My learned friend says, and says, of course, quite properly, that that is not 'the question. Quite true; that is not the question. The question is : what does the language used mean ? But when you are in search of a meaning to be paced upon language, I should have thought that the most conclusive guide to its interpretation was to he found in "The purpose, the motive and the governing consideration in all this business."
It is very curious that although my learned friend sought to brush aside the importance of that common ground, he has spent hours before your Lordships in endeavouring to extract from documents what was the purpose of the fixing of the Indian Reservations, in order that your Lordships might thus be aided to interpret the territory which was reserved to the Indians under the Proclamation of 1763; and great industry and much pains has been expended in endeavouring to satisfy your Lordships as to what was the exact purpose and aim of that reservation of Indian territory. It appears to me that there is a slight inconsistency in saying that with regard to the question of what Newfoundland got you are to have no regard to the purpose, the motive or the governing consideration, but that when you come on the other hand to construe another portion of the same document, the document that deals with the territory reserved to the Indians, then it becomes of paramount importance to tell your Lordships all the history, and to put before your Lordships all the documents of the time in order to do what ?—to illustrate the intentions of those who were dealing with Indian reservations.
My learned friend cannot have it both ways. If intention is important for the purpose of ascertaining what was the Indian reservation, intention is equally important when you are dealing with the question of what was the nature of the grant to Newfoundland in 1763. Therefore I would emphasise again the emphatic language which my learned friend has used upon to matter, because, after all, what is the position ? If language used is susceptible of only one meaning, then, of course, there is no difficulty, and my learned friend should simply have said, " The documents speak for themselves." But no one before your Lordships has confined himself to that simple method, and we have both proceeded from this common starting point, that the language which is used, the language which has to be construed, owing to the very generality of the word " coast " or " coasts," leads to ambiguity, and that therefore it is necessary to find in some intrinsic material the necessary aids to the interpretation of the word as used here. My Lords, if a word of ambiguous content is used, and it is necessary

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to ascertain its content from its context, then again I say that the context which is most predominant and most useful is the context which is to be found either in the document itself, or in the documents of the same period, or in the surrounding circumstances of those who used that language.
It is perhaps to repeat myself to say that the effort always is to ascertain the intention and that when you have, as you have here, an admission as to what was the intention and the governing consideration of the whole matter, your Lordships are absolved from the search for the intention, because it is already before your Lordships. We know what was the intention.

Sir JOHN SIMON : I have never made any admission about intention. I thought that my learned friend gave me a lecture upon the philosophical distinction between motive and intention.

Mr. MACMILLAN : If my learned friend is really making this very fine distinction as to the difference between purpose and intention I am willing to present him with that. His language was : " The purpose, the motive, and the governing consideration."

Sir JOHN SIMON : And is that inaccurate ?

Mr. MACMILLAN: If my learned friend now says that is inaccurate, I am sorry ; but I do not suppose that he wants to interrupt my speech about that.
That, my Lords, is the keynote of the situation, and, it being common ground that there is ambiguity in the expression under interpretation, my submission is that you there get the best of all possible guides to the meaning of the term which your Lordships now have to construe.
Of course, my Lords, if the word " coast " or the word " coasts "—because the singular and the plural are used indifferently in these documents--if either the word in the singular or the word in the plural had by necessary implication a certain content, then it would be irrelevant for either of us to refer to anything else, because a word which has a definite and precise meaning is not susceptible of interpretation at all. Its content is known. It is only because its content is not known that it is necessary to resort to external and extrinsic aids.
Now we are agreed that the word " coast " here has not by necessary and universal implication the meaning that it includes all land from the shore to the height of land or the watershed. No one has submitted that when I use the expression " coast " I am necessarily referring to a territory which is bounded on the one side by the seashore and on the other side by the nearest watershed. Nobody suggests that that is not the suggestion. The suggestion here is that in the circumstances of this particular case, having regard to the circumstances in which this language was used by those who used it, your Lordships should attribute to the word " coast " here the meaning

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of a territory which extends from the seashore to the watershed. But that at once gets one into the process of interpretation, and at once calls for resort to these aids to interpretation which are available for the purpose ; and, of course, in this case, the primary aid to interpretation is "the purpose, or intention, or motive, or governing consideration of the whole business," and that governing consideration is " the use of the margin of the sea for fishing purposes."
Now, my Lords, what is the operative effect, now that one can survey the Newfoundland argument ? It is very difficult, in a case of this sort, to observe a due sense of proportion. Topics emerge, and for the time being are treated as of very considerable consequence, but perhaps at the end of the day they may rather fade into insignificance. I personally have found, in endeavouring to bring together at this stage the main considerations, some little difficulty in preserving that due sense of proportion ; but I think I may fairly say that the operative effect of the argument which my learned friend has addressed to your Lordships so attractively and with so much learning, really comes down to this, that on a sound construction of Governor Graves's Commission of the 25th April, 1763, his Majesty thereby annexed to and incorporated with the Government of the Island of Newfoundland a certain mainland territory. I am trying to put it as accurately and as fairly as I possibly can when I say, "A certain mainland territory" and it was a mainland territory which, as it happens, is more than twice the size of the whole of the Island of Newfoundland and considerably larger than the whole of Great Britain. That circumstance may not be so impressive in this region, where we are dealing, so to speak, on a more wholesale scale than we are accustomed to deal with boundary questions in our own domestic tribunals here. It it quite true that we are dealing in a continental area, and so I do not think that that is of itself so important, yet it is at least significant. But the main contention is that on a sound construction of that particular document, that was annexed to, and incorporated with, the government of the Island of Newfoundland, the green area.
Then, my Lords, the next stage of it is that His Majesty did so by an executive act, which His Majesty himself contemporaneously described, in the Proclamation of the same year, as a putting under the care and inspection of the Governor of Newfoundland of a portion of the coast of Labrador between two points on the coast in order that an open and free fishery may be carried on upon that coast. I then carry on to the next stage : that His Majesty did so, not because it was necessary to effectuate the purpose in view, but because he used, advertently or inadvertently, language which, although admittedly ambiguous, must nevertheless in this case be held inherently to imply a much wider grant than was necessary to effectuate the purpose in view ; a grant namely, from the shore up to the watershed ; and finally that His Majesty, by using the language used in Grave's Commission has, on the East side of the Peninsula of Labrador, achieved precisely the same effect as His Majesty achieved in 1670 in the

[1927lab]




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