The Labrador Boundary

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25 Oct., 1926.

Sir John Simon.

25 Oct., 1926.

Sir John Simon.

25 Oct., 1926.

Sir John Simon.

Sir Thomas Warrington.

Sir John Simon.

25 Oct., 1926.

Sir John Simon.

25 Oct., 1926.

Sir John Simon.

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adventurous expeditions—banded themselves together and got themselves formed into a company called the North West Company of Montreal with the object of trading with the Indians and exploiting the area in what was gradually being discovered to be the Further West. Of course, British Columbia and the Fraser River, and areas of that sort, were very little known at that time, but gradually enterprising people were appreciating how very important the North of America was to the west of Hudson's Bay. Exactly what the geography might be people did not know. Then what happened was this. This, I think, was what Lord Haldane was referring to. There was for a short time an extremely severe struggle between the Hudson's Bay Company and the North West Company. The Hudson's Bay Company complained to the British Government bitterly that the North West Company was invading their preserves. Things got to a very serious pass. The Hudson's Bay Company, which was a quasi-sovereign in this green area, proposed to exercise the powers which its charter gave it of appointing police and magistrates, and setting up an armed force, and by that method keeping the invaders, the North West Company, at bay and, indeed, driving them out. There was bloodshed, and a very serious situation arose. This was about 1815. The thing was ended, I think, in 1821 by the Hudson's Bay Company acquiring the North West Company's interests and rights whatever they might be. The North West Company came to an end, and the result was that this rival of the Hudson's Bay Company, pushing out to the west, was suppressed. That is the reason why, when you come to the later stage, you not only get Rupert's Land mentioned—Rupert's Land being the name that was used for the area the Hudson's Bay Company were primarily interested in—but you also get a reference to North West Territory. The two areas combined—Rupert's Land and the North West Territory—really are the two great areas which may be regarded as running together, which stood outside direct British administration, though, of course, under the British Flag, until the year 1870, and then in the year 1870 they fall into Canada as unorganised areas. That is the nature of the story. I have made my point, that the nature of the area, as far as that Map No. 26 is concerned, and therefore, I suppose, so far as indicated and approved at the time, was by reference to height of land. Would your Lordships observe the legend on the map before you pass from it? It is described in the left–hand bottom corner as “Map of North America drawn by J. Arrowsmith. On this map the territories claimed by the Hudson's Bay Company, in virtue of the charter granted to them by Charles II, are coloured green; the other British territories pink, and those of Russia yellow.” Again, just to remind your Lordships, as I am dealing with Hudson's Bay now a little more in detail, the charter is printed in the second volume at page 367. The nature of the grant, so far as language goes, is vague, but in my submission it did indicate how to arrive at the internal boundary, though it did not state where it was to be found by latitude or longitude. It is “All those seas, straits, hays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits commonly called

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Hudson's straits, together with all the lands, countries, and territories upon the coasts land confines of the seas” there mentioned. It is on page 368. It may be said that the language there is a little more elaborate, perhaps a little easier to support the contention, but it certainly illustrates what I believe was very common at the time, namely, that the grant was (as Lord Sumner put it the other day) the grant of coastline, and that though you did not know how many miles back the language of the grant would carry you, it might still be that the nature of the grant was one which made that certain which could be rendered certain, because physical geography would answer the question, as and when you needed it, as to how far you went back.

Viscount HALDANE: There was no reference at this time to the height of land.

Sir JOHN SIMON: The words “height of land” are not used, but the really central question in this whole case is when the words “height of land” are not used, but—as, for instance, in Governor Graves's grant—the language “all the coast” (it is plain that that refers to an area; it does not refer merely to a portion of the sea coast or yet a line on the land) what do you mean by “coast”? I should have thought that this idea of going back to the height of land, though you do not say so, was almost inherent in comparatively sparsely populated areas. I should have thought it was so in the highlands of Scotland in the old days, when the chiefs of clans held this area or that area, and you passed from the land of one chief to the land of the other. When one speaks of the Breadalbane country round Loch Tay, one would have thought that that was almost necessarily a thing that went up to the top, as it were.

Lord SUMNER: It depends.

Sir JOHN SIMON: That is when you get a conflict between one chief and another. Another instance, oddly enough, which suggests itself is this. If you consult a book like Murray's dictionary, “to coast” is a verb,and “to coast” more particularly in Canada, means to get up to the top of a hill, and, when you are at the top of the hill, to slide down. In fact, you call the operation coasting and you do it with a sledge. “To coast” means that you have to pull up until you get to the place where you get the divide, and then you get the slope down. Keeping to the Hudson's Bay Company, you do find the word “coast” is used, and you find the interpretation, as I put it, is “going back to the height of land.”

Viscount HALDANE: Is not it a little striking that the word should be used to include an area a good deal larger than Great Britain?

Sir JOHN SIMON: It is all a question of the dimensions of the

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whole thing. One may put it as an area a good deal larger than Great Britain. It is; but, on the other hand, one may put it as an extremely small part of the whole out of which it was taken, one-fifth of the peninsula, but probably one–fiftieth or one–hundredth of Canada.

Viscount HALDANE: It is in connection with the grant of fishing rights.

Sir JOHN SIMON: It does not seem to follow that because the immediate object and purpose to be served is, as I have already conceded, a maritime purpose, that therefore the interpretation and meaning of the language of the grant does not carry one further. As one may say, a man may only desire to own one field, but that is no reason why he should not acquire the farm; or, again, English law puts upon a grant of a piece of surface the right to the minerals underneath. It may well be that the reason why the grant was made by the Sovereign to some tenant in chief was that the tenant in chief might build a castle on the land, but that does not alter the fact, when you come to the question of who owns the coal underneath, that the man owns the coal who has the surface. It is a mere question of putting the proper legal interpretation upon the language used. Since several of your Lordships have looked again at this charter of the Hudson's Bay, your Lordship will allow me to point out that on page 369 you get the use of the words “Coasts adjacent to the said territories” at line 14, as well as the use of “coasts and confines of the seas,” which is on the second line of page 368.

Sir THOMAS WARRINGTON: The coasts there in the line just referred to deals with another matter : “with all other nations inhabiting any of the coasts adjacent to the said territories limits,” and so on.

Sir JOHN SIMON: I rather think it is not maritime at all there; I think it simply means neighbourhood.

The LORD CHANCELLOR: In this Map 26, what is the exact meaning of the dotted line which runs east and west?

Sir JOHN SIMON: Your Lordship means near Labrador?


Sir JOHN SIMON: I do not feel any doubt myself, but I am making a submission only, that it indicates a boundary, or a supposed boundary, by reference to the height of land between East Canada (which was Quebec) and what was not East Canada. You will observe, the map being a map of 1857, it brings in the line running due north from Ance Sablon (Ance Sablon is mentioned) to the 52nd parallel. It is true on the map you do not get the 52nd parallel, but you do get the

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50th and the 55th, and you will see that it is the 52nd; it then proceeds to carve out, by reference to the 52nd parallel, the northern boundary of the Province of Quebec.

The LORD CHANCELLOR: The straight part does that, and then it turns up north.

Sir JOHN SIMON: I think the reason for that is, whether they knew the geography or not, that they are indicating what they regard as the way in which the height of land would divide in that area the water that runs into the St. Lawrence and the water that runs into the Atlantic. I have no doubt that that is what they are saying there. May I put it in this way? You see where this dotted line turns up in the pink and strikes almost at right-angles the other dotted line where the pink would run into the green. Imagine that, if your Lordships would for the moment, as the apex of a three-sided pyramid; then one side of the pyramid painted pink and labelled Labrador would slope down to the Atlantic; a second side of the pyramid (also painted pink) would slope down to the St. Lawrence; and the third side of the pyramid painted green would slope into the Hudson's Bay, and I apprehend, whether it is right or wrong, and whether the position put on the map is right or wrong, that there is no doubt that that is an indication following on the idea that the boundary of the Hudson's Bay territory is limited by the height of land. In the same way the boundary between Quebec and Labrador is bound to be limited by the height of land. I am rather strongly supported, am I not, in drawing that inference by the fact that the curious dotted line to which the Lord Chancellor calls attention, when you trace it to its source, undoubtedly does indicate a boundary of the Province of Quebec. You get that kind of indication again and again.
The next thing that I want to remind your Lordships of, or, rather, to develop with regard to the Hudson's Bay boundary is this. There are two important stages in the story of the Hudson's Bay boundary: the first late in the seventeenth century and the second early in the eighteenth, before the conquest of French Canada by the British. One is after the peace of Ryswick and the other is after the peace of Utrecht. In order to understand what it is that happened, we have to bear in mind that the position of Britain when the peace of Ryswick was secured was in this part of the world not very favourable. On the other hand, before we come to the Treaty of Utrecht in 1713, Marlborough's campaign had been fought in the Low Countries and he had won his series of great victories, and the position of British vis–a–vis the French in this part of North America was, I suppose, extremely strong. You will find that reflected very clearly in two documents emanating from the Hudson's Bay Company, because after the peace of Ryswick in 1697, the request of the British Government to the Hudson's Bay Company is: “How much of the territory to which you are really and truly entitled would

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you, for the sake of peace, be prepared to give up to the French?” They are trying to make terms. On the other hand, when Marlborough had won his victories, Malplaquet and so on, you come to the period before the Treaty of Utrecht, ultimately reached in 1713, when the British position was an extremely strong one, and the position then is: “How much would you, the Hudson's Bay Company, like to get at the expense of the French?” The contrast between the two things shows exactly that whereas there was what you may call the true boundary of the Hudson's Bay to be deduced from this charter, they were bound, in the difficult situation of 1697 and just afterwards, to give something up; whereas after the great and splendid success of Queen Anne they were able to suggest and to put forward a line which was even more than they were entitled to. Both of those two instances have an importance in considering what the boundary really is and how it was treated when it became necessary to divide the rest of the territory. I will take them in turn. As regards the first, the Treaty of Ryswick, I gave your Lordship a reference in the first volume to page 321, where there is an extract from that Treaty. There you get the provision in Clause 7: “The most Christian King”—that is to say, the provision of France—“shall restore to the said King of Great Britain, all countries, islands, forts and colonies, wheresoever situated, which the English did possess before the declaration of this present war; and in like manner the King of Great Britain shall restore to the most Christian King, all countries, islands, forts and colonies, wheresoever situated, which the French did possess before the said declaration of war.” You may think that that is a very difficult thing to determine in terms. Then there are to be commissioners authorised to settle it, the commissioners referred to at the end of that first paragraph. Then in Clause 8 there is: “Commissioners shall be appointed on both sides, to examine and determine the rights and pretensions which either of the said Kings hath to the places situated in Hudson's Bay.” As a matter of fact, the French Canadians had pushed up and unquestionably had established themselves in very strong force in many parts of the area which Charles II had granted to the Hudson's Bay Company; in fact, they had reached the water, and they had established some very important posts; for example, posts high up on the left-hand side of Hudson's Bay, which are to be found in a map which I shall show your Lordships in a moment. “But the possession of those places which were taken by the French, during the peace that preceded this present war and were re–taken by the English during this war, shall be left to the French by virtue of the foregoing article.” Your Lordships see at that date, 1697, the position of this country was by no means strong. Your Lordships, I daresay, remember the fact in history that those who negotiated this regulated peace were very severely criticised by a party in England who were all for what I think is sometimes called the knock–out blow; at any rate, there was a good deal of criticism. The result was that the Hudson's Bay Company were in a considerable difficulty. Then this arose. The English Government got into communication with the Hudson's Bay Company and, as I said

