p. 357 C
(Enclosure in No. 77.)
Mr. PINSENT TO COLONIAL OFFICE.
Fittenden Rectory, Staplehurst, Kent, 18th February, 1890.
Sir R. G. W. HERBERT, K.C.B.
SIR,—As I have been verbally informed at the colonial office that it would be satisfactory if (for the further exposition of the question before the despatches are forwarded to the governor general of Canada and the governor of Newfoundland) I would make any comment in writing which may occur to me as important, upon your letter of the 24th of January—
I now have the honour to again address you on the subject.
I would submit in the first place that while it is perfectly true that the effect of the acts 14 Geo. 3, cap. 83, and 43 Geo. 3, cap. 138, was to give Canadian courts jurisdiction over the whole of the dominions of the crown in North America not forming part of any of the other provinces, the question: What part of the territory of Labrador belonged to Newfoundland ?—still remains.
The Act of 1809 annexed to Newfoundland all that part of Labrador which had been transferred from it to Quebec in 1774.
This was that which had by the royal proclamation of 1763 been vested in Newfoundland, viz.: "all the coast of Labrador from river St. John to Hudson's strait."
Now, it appears to me that the expression "all the coast," taken with the context and in view of the corresponding facts, is to be interpreted in a broader sense than its ordinary acceptation.
To restrict its sense in the manner suggested in the Canadian report would be to find that a large tract of British territory was omitted from the delimitations of all the provinces. The presumption, I think, should be the other way. Moreover, such a construction would leave the coastal jurisdiction utterly indefinite, whereas if the language is susceptible of a construction which would prevent this it ought to be given to it.
I respectfully submit, that "all the coast" in this instance means the territory of Labrador included within a western boundary extending from river St. John to Hudson's straits, and represented by a straight line drawn from one point to the other or preferably by the irregular line which formed the eastern boundary of the Hudson's bay (now Canadian) territory, and that when the last transfer to Quebec took place and the Newfoundland boundary
was made to commence at Anse Sablon, all that Quebec did not acquire remained to Newfoundland.
The Dominion report (in suggesting without apparent sanction of any kind the narrow strip indicated in pink) remarks that amongst other points this includes the "Hudson's Bay Company's posts;" but this is not so, for there is by way of example a post over 100 miles up Hamilton inlet, the ships bound to which pay duty to the Newfoundland government.
Again the language of the report "that (tract) coloured yellow on the sketch map and which is beyond question a part of the territorial transfer made to Canada by the imperial government in 1880" etc., is inaccurate.
The imperial transfer does not touch the question of the boundary of the possessions transferred and specially excepts "the colony of Newfoundland and its dependencies" leaving the rights of the Newfoundland government exactly where they were before.
Whatever the legal construction of all these parliamentary and executive acts may be, I am satisfied that there need be no serious difficulty in arriving by agreement with Canada at a delimitation of the now uncertain territory, for except to settle the question of jurisdiction I apprehend that territorially the matter is of little importance in regard to the barren tract colored yellow on the map, but to prevent any after question of jurisdiction upon the construction of the old statutes being raised in legal tribunals it would be most desirable that after an arrangement is made a short imperial statute should be passed to confirm it.
I have, etc.,
ROBERT J. PINSENT.