Ontario. Legislative Assembly.

Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 46 of 86)
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contemporaneous exposition of the Statute by the Company themselves against their
recent, claim, and, having been continued for 150 years, is, without other evidence, ooa-
clusive.

* [NotwithstandiDK this deciaion, an opposite view appears to have been taken by the Upper CuoBidtk
judgea. (See paper by Chief Justice Powell, dated Ist May, 1819, in "Papers relating to the Red Biw
Settlement, 1815-1819,*' being a Return made to the British House of Oommo&s, printed in its Sessions!
Papers of 1819, voL 18, p. 2850 His Lordship considered Upper Canada, as he said, " to oomprehend su
the country conquered from France under the name of Canada, which had not been relinquished to the
United States of America, or secured to the Hudson's Bay Company, or designated as Lower Canada."

It may be added, that in the papers embraced in the same Return, Fort n^Uam (which lies west of the
due north line) and tne surroundmg section are treated throughout as being within the Western District of
Upper Canada. The Govemor-Gkneral so refers to it in his letters, pp. 57, 94. The Hon. John Bevwley
Robinson, then Attomey-Ceneral of Upper Canada, treats it in the same way, pp. 281, 284.

It also appears from the same Return that the Deputy Sherifif of the Western Dbtrict, as such, attempts
to arrest Lora Selkirk at Fort William, and failing m the attempt, endeavoured afterwards to execute his
warrant still further west, vie, at the Red River Settlement.— 6. £. L.]



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BEA80N8 AGAINST HEIGHT OF LAND BEING THE BOUNDARY. 273



(3.) Because the alleged rule, that the discovery and possession of the shore of a new
country give a right to the rivers and the land adjoining the same, if a recognized rule
now, was not such at the time of this Charter being granted, and ought not to govern its
interpretation. The rule is said to be founded on reason and necessity ; but there is no
jfist reason or necessity for applying such a rule in the case of a river nearly 3,000 miles
long.

(4.) Because the French, from the beginning of the seventeenth century, were in
possession of the territory to the south of the lands watered by the rivers flowing into
Hudson's Bay, and were extending their explorations and settlements to the head watera
of the rivers flowing into Hudson's Bay, and to the interior of the country. There is no
sound reason to sustain a rule for giving to the discoverers of the Bay into which these
rivers flow, a right to stop such explorations and settlements, in favour of discoverers (if
the English were such) who did not choose to occupy the interior of the country. The
rule as to rights to unoccupied contiguous temtory is in such case more than sufficient
to outweigh the supposed rule as to the Height of Land.

(5.) Because the ground of the recent claim is that the English were the first dis-
coverers, and that their discoveries were followed by such possession of the territory in
question as the laws of nations recognize as giving a title to the territory up to the Height
of Land ; while the fact is, that it is impossible to say with certainty who were the first
discoverers, nor was the alleged discovery by the English followed by possession. The
voyage of Cabot, when he entered the Bay, is said to have been in 1517 j and no sort of
possession of any part of the Bay by the English before 1667 is pretended ; being an
interval of 159 years. Gilham is said to have built, in 1667, Fort Charles (Rupert),
which was on the east side of the Bay. In the meantime the Bay had become known to
the world ; persons acting under the authority of the French Government had repeatedly
visited it ; had taken possession in the French King's name, and set up the Royal Arms
there ; the French had established posts at convenient points for trade with the Indians,
and had secured and were enjoying the whole trade with the Indians around the Bay.
In 1627, the King gave to the Company of New France the right of trade to an exten-
sive territory — including Hudson's Bay — both along the coasts and into the interior.
Under such circumstances, the rule invoked by the Dominion has no application.

What then is to be regarded as the southerly boundary of the territory of the
Company t

The language of the Charter, by reason of its ambiguity, affords no assistance in this
enquiry. The validity of the Charter has always been questioned on the ground of its
ambiguity, as well as for other reasons. Some legal opinions have indeed been given in
favour of the validity of the Charter as respects the whole territory to the Height of
Land claimed in recent times by the Company ; but these opinions were based upon the
Company's statement that they had '* always claimed and exercised dominion, as absolute
proprietors of the soil, in the territory understood to be embraced by the terms of the
grant."

(1.) Assuming, however, that the northern boundary is, on one side, the shore of
Hudson's Bay, say between 51** and 52° of latitude, and on the other at least as far north
as the most north-western point of the Lake of the Woods, say latitude 49° 23' 55" ; if
these points were in the Hudson's Bay territory, the northern boundary would be a line
drawn from one of these points to the other. We claim that our boundary is farther
north than this, but it cannot be south of it.

Are these points in what was the territory of the Company 1 And is the Provincial
boundary therefore no further north ?

(2.) If by reason of the Charter being so old, and having been acted upon in some
sort, and of its validity to ;8ome extent being implied in certain statutory references to
the Company, the instrument cannot be treated as absolutely void, it must, as regards its.
construction and operation, on well-known and well-settled principles, be interpret* it
most strongly against the Company, and in favour of the Crown. The object of giving^
the Charter was to encourage discoveries by the Company ; and the validity or operation
of the instrument is to the extent only of giving to the Company whatever of the unknown
territory the Company, within a moderate and reasonable time, should occupy ; and all

18



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274 STATEMENT OF THE CASE OF THE PROVINCE OF ONTARIO, 1878 :



that the Oompany could be entitled to was what the Company had, in this tnanner,
acquired for themselves and for the Crown, previous to the cession of Canada in 1763 by
France to England ; or whatever, previous to that time, the Company had been in pos-
session or enjoyment of as their own with the concurrence of the Crown.

(3.) The Company were certainly not entitled to any of the territory which Fraace
owned at the time of the cession, and ceded to England ; for it is preposterous to sup-
pose that the Charter intended to grant, and did effectually grant, to the Company, as
against the world, all the territory southerly and westerly of the Bay to the then unknown
Height of Land (unknown to the Crown and to the Company), though such territory
should be, as it was, to the es^tent of unknown hundreds of thousands of square miles — a
third of the continent ; that the Charter was intended to give, and did give, to the Com-
pafty, the right to shut up this enormous territory from the Crown and from all British
subjects — and from other nations also — for all time ; that if the Company should do noth-
ing to discover, settle or acquire it for a hundred years or more, nobody else could ; and
that any portion of it which England should, a hundred years afterwards, acquire by
war with another nation, and by employment of the resources of the whole Empire, in
Europe as well as America, — accrued, when so acquired, and was intended to accrue, to
the Company, for their own private benefit

(4.) It is clear, and indeed has been repeatedly admitted by the Company th«n-
selves, that until long after the date of the cession the Company had no posaeesion of
any part of the interior of the country, and that their possession was confined to certain
forts on the Bay and two factories not very distant.-

(5.) On the other hand, the Dominion Ministers truly affirmed in 1869, that ^^tJhe
evidence is abundant and conclusive to prove that the French traded over and possessed
the whole of the country known as the Winnipeg Basin and ^ Fertile Belt ' from its dis-
covery by Europeans down to the Treaty of Paris, and that the Hudson's Bay Oompany
neither traded nor established posts to the south or west of Lake Winnip^ until many
years after the session of Canada to England." In fact, the Company's first post — viz.,
Cumberland House, on Sturgeon Lake — in the vicinity of the region in question was
not built until 1774, and they did not establish any post within this tract of country
before 1790.

(6.) The following facts (amongst others) were judicially found by Judge Monk, in
Connolly v$. Woolrich, with respect to the proceedings of the French, before the Hwl-
son's Bay Company's Charter was granted. He showed that as early as 1605 Quebec had
been established, and had become an important settlement ; that before 1630 the Beaver
and several other companies had been organized at Quebec for carrying on the fur trade
in the west, near and around the Great Lakes and in the North-West Territory ; that the
enterprise and trading operations of these French companies, and of the French colonists
generally, extended over vast regions of the northern and north-western portions of the
continent ; that they entered into treaties with the Indian tribes and nations, and carried
on a lucrative and extensive fur trade with the natives ; that in tho prosecution of their
trade and other enterprises these adventurers evinced great energy, courage and persever-
ance ; that they had extended their hunting and trading operations to the Athabasca
country (say 58® north latitude and 111' west longitude) ; that some portions of the
Athabasca country had before 1640 been visited and traded in, and to some extent
occupied by the French traders in Canada and their Beaver Company (which had been
founded in 1629) ; that from 1640 to 1670 these discoveries and trading settlements had
considerably increased in number and importance ; that Athabasca and other regions
bordering upon it belonged to the Crown of France at that time, to the same extent and
by the same means as the countries around Hudson's Bay belonged to England, viz., by
discovery, and by trading and hunting.

(7.) It may be added, that if the Athabasca country thus belonged to France at so
early a period, so would the whole intermediate country between Athabasca and Hudson's
Bay on the west, and between the Athabasca country and the St. Lawrence on the
south.

(8.) Between 1670 (the last date named by Judge Monk) and 1763 the French
established posts or forts in that North- West Territory which they had previously



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ACTCAL POSSESSION BY PBANCE OF THE NORTH AND NORTH-WEST. 275



explored, and hunted over and traded ^th ; namely, on Eainy Lake, the Lake of the
Woodfl, Lake Winnipeg, Lake Manitoba, on the Winnipeg River, the Red Rivor, the
Aflsiniboine River, the River aux Biches, and the Saskatchewan, and so west to the
Bocky Mountains, where Fort La Jonqui^re was established by St. Pierre in 1752. All
the lakes and rivers mentioned are connected by the Nelson River with Hudson's Bay,
and are in the territory which, in the following century, the Hudson's Bay Company
claimed under their Charter ; but confessedly they had constructed in it no post or settle-
ment of any kind until long after 1763 — their first post away from the Bay (other than
the two factories already mentioned), having been established in 1774. It was not until
1790 that they had any post in the Winnipeg Basin ; and they did not enter the valley
of the Red River until long afterwards.

(9.) France had also, on' the northerly side of the dividing line, Fort Abbitibi, which
was north of the Height of Land, and was built in 1686. It was situate at a considerable
distance north of the Height of Land, and upon the lake of the same name, from which
the River Monsippy flows into Hudson's Bay. The French had also Fort St. Ger-
main, on the Albany, which was built in 1684 ; and still higher up on the same river
Fort La Maune, established about the same period ; and, to the east, Fort Nemiscau, on
^6 lake of that name, situate on the River Rupert, midway between Lake Mistassin and
the Bay ; this fort was built before 1695. Of none of these did the English Gk)vemment
or the Company ever complain. The French had also another fort on ^e Albany, being
that mentioned in one of the memorials of the Company as having been built in 1715.

(10.) The Company fumishe4 certain maps for the purpose of the present arbitra-
tion, two of which only seem of importance on either side. One of these two bears the
Royal Arms and those of the Company, is of the date of 1748, and seems to have been
prepared by the Company in view of the Parliamentary enquiry of that year, and for
the purpose of showing the limits which the Company then claimed. The line which
this map gives as the Company's southern boundary is considerably north of the Height
of I^nd, even as shown on this map ; for the line is therein made to cut Frenchman's
Biver — a river not named on this map, but corresponding with the Abbitibi River — and
several other rivers shown on the map as flowing into the Hudson's Bay. The line
rons to Lake Winnipeg (which is misplaced, being represented as due north of Nepigon,
its southern point in the latitude of Fort Nelson), thence northerly along the easterly
shore of Winnip^, and thence northerly to Sir Thomas Smith's Sound in Baffin's Bay.
Hie map thus demonstrates that the Company, at the time of its preparation, did not
6laim to the Height of Land, even as the same was then supposed to be situated, and did
not claim Lake Winnipeg.

The other of the two maps is Mitchell's engraved map, described as published by the
author, February, 1755. This copy appears to have been much used and worn. There
is on it an irregular line malted " Bounds of Hudson's Bay by the Treaty of Utrecht ; "
and this line may therefore be taken as showing the extent of the Company's claim in
1755, and long after. The line is about one-third of a degree north of the Lake of the Woods,
and extends to the limit of the map in that direction, being about 98° of longitude. The
territory south of this line is diflerently coloured from the territory north of it.

It is evident that the Company have in their possession no maps which purport to
give to them a larger territory than these maps do. Their claim to the height of land
as the true intention of the Charter, and the true measure of their rights, so far from
having been alMrays made, was not thought of by the Company until more than half a
century later, and was in eflect negatived by the Crown in numerous Commissions to
the Governors of the country.

The maps produced show the extent of territory which the Company claimed prior
to the cession of 1763.

It may be observed that on the occasions of the Treaties of Ryswick and Utrecht,
the Company's claims were expressed either in the terms of the Charter, or were
aimply to " the whole Bay and Straits of Hudson, and to the sole trade thereof." It
iofficiently appears, from the early documents which emanated from the Company, that
this general claim to the whole Bay and Straits was a claim to the waters and shores
only, and to the exclusion of the French therefrom — the French having been in pos-



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276 STATEMENT OF THE CASE OF THE PROVINCE OF ONTARIO, 1878.



seHHion of forts on the Bay until after the Treaty of Utrecht, and the Treaty of Ryswick
having in effect given them possession of all places on the Bay, except, it may be, Fort
Bourbon ; and that the Company's object was the trade of the Bay, and not the ocoapar
tion or settlement of the country away from the shores of the Bay.

Indeed, in 1700, the Company, notwithstanding this claim, were willing to accept
the Albany Kiver as their southern boundary on the west side, and Rupert River as their
southern boundary on the east side of the Bay. In 1701-2 they were content even with
East Main River, and proposed it as a boundary. But both proposals were rejected by
the French as being far more than the Company had any right to demand.

In 1711-12 the Company proposed a line to run from the Island of Grimington, or
Cape Perdrix, on the Labrador coast, south-westerly to and through Lake Mistassin.
This line did not extend beyond the south-west shore of the lake ; and though the Com-
pany made a demand for the surrender of the forts on the shores of the Bay, yet they
do not appear to have made at that time any proposal as to a line on the west or south
side of the Bay.

Thus the only claims and contests of the Company at this period were about the
margin of the Bay.

After the Treaty of Utrecht (1713), which gave to the British all lands, eta, "on
the Bay and Straits, and which belong thereto," the Company, on the 4th August, 1714,
proposed, for the iirst time, that the Mistassin line should go south-westerly to 49*
'^ north latitude, . . . and that that latitude be the limit ;" but as to how ^ to the
west this line of 49° was to be followed nothing is said.

In 1719 and 1750 the Company proposed the line of 49', but both times the
proposition was rejected* by the French. This line would have given to the Company a
boundary greatly more limited than the boundary of the Height of Land, which began to
be claimed three-quarters of a century later.

It has already been said that the Company could not take advantage of their Charter
for the purpose of making any addition to their territory by exploration or settlement
afjber the cession of 1763; but the practical result would be nearly the same if this
right should be deemed to have ceased at a somewhat later date, viz., the date of ike
passing of the Quebec Act, 1774, or even the date of the Treaty of 1783. The Company
made no further settlement between 1763 and 1783, except Cumberland House; and it
is doubtful whether its locality belongs to the Winnipeg or the Churchill system. Both
the Act and the Treaty obviously require that the southern boundary should be deemed
a fixed line, not liable to variation by the mere act of the Company.

These considerations are submitted as showing that the strict legal rights of the
Company did not extend beyond their forte on the shores or in the neighbourhood of the
Bay, and such adjacent territory as these forts may have commanded ; and that Ontario
is entitled to have its northerly boundary line drawn accordingly.

Or, if the Company's territory is to be considered as extending beyond the fortB
on the Bay and the immediately adjacent territory, their territory is not to be deemed
south of the northern extremity of the di^ding line between Upper and Lower Canada ;
or to exceed otherwise what England herself was entitled to under the Treaty of
Utrecht, viz., the middle line between the forts and settlements of the English and
French ; and further, is not to include a greater area than is shown on the maps furnished
by the Company, in case the middle line would give them a larger territory than these
maps claimed for the Company ; for the reference in the Statute of 1774 to the territoiy
granted to the Hudson's Bay Company, cannot in any view be construed us refeiring to
a more southerly line than the Company had theretofore claimed for themselves.

Or, if there is too much doubt as to the southern boundary of the Company's
Territory to determine with precision where such boundary was, a northern boundary
should be assigned to the Province which would give to the Province the full territory
which the Commissions to the Governors definitely provided for, and, in addition, such
further territory to the north as may be just and reasonable.

O. Mow AT,

AUomey-Gefieral of OnUMrio,



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STATEMENT OF THE CASE OF THE DOMINION, 1878. 277



STATEMENT OF THE CASE OF THE GOVERNMENT OF THE DOMINION
OF CANADA REGARDING THE BOUNDARIES OF THE PROVINCE
OF ONTARIO.

Prepared by Hugh MacMahon, Q.C, Counsel for the Dominion.^

ABBKEVIATIONS.

"Ont. Doors.''— Statutes, Documents and Papers respecting the northern and western boimdaries of
OnUttio, compfled by direction of the Grovemment of Ontario.

*' Mills.**— Reyised Report for the purpose of the arbitration between the Dominion of Canada and
Pn>Tinoe of Ontario, by David Mills, Esq., M.P.

'*Papkb8 Relating to H. B. Ck). Pbbsbntsd to House of ComfONS."— Papers presented by command
of Sju Majesty to the House of Commons, in pursuance of an address respecting the territory, trade, taxa-
tion and goyemment claimed or exercised by the Hudson's Bay Company. (Or&red by House of Commons
to be printed, 12tb July, 1850.)

The limits assigned to the Province of Ontario by the British North America Act,
1867, sec. 6, are such part of the Province of Canada as at the passage of the Act
f<Nrmerly constituted the Province of Upper Canada.

The claim of the Dominion of Canada is, that the meridianal line drawn due north
from the junction of the Ohio and Mississippi Rivers (ascertained to be 89* 9' 27" west)
forms the western boundary of Ontario, and that the land's height of the northern
▼ater-shed of the St. Lawrence is the northern boundary.

The Government of Ontario contend that the western limit of that Province is the
Rooky Mountains ; that the north-western limitary line lies north of the Saskatchewan ;
and ^t the north-eastern line lies in the vicinity of Hudson's Bay. (Mills, p. 1.)

The claim of Ontario to extend the western limit of the Province to the Rocky
Mountains rests, it is assumed, upon the supposed title of France to that country, as
having been the first discoverers thereof. It was stated by M. de Calli^res, when writing
to M. de Seignelay in 1685 *(N. Y. His. Boa, Vol IX., p. 265), that the French were
the first to discover Hudson's Bay, and that nation was therefore entitled to the whole
country to the base of the Rocky Mountains ; and the rule of international law on
which this is claimed is thus stated by M. de Callieres : ** It is a custom established and
a right recognized by all Christian nations, that the first who discovers an unknown
country, not inhabited by Europeans, and who plant in it the arms of their prince,
secure the property thereof to Uiat prince in whose name they have taken possession
of it."

L'Escarbot, in 1617, stated that " New France has for its limits on the western side
the lands as far as the sea called the Pacific ; on this side the Tropic of Cancer ; on the
south tile islands of the Atlantic Sea, in the direction of Cuba and the island of Hes-
paoiola ; on the east by the Northern Sea, which bathes New France ; and on the north
that land called 'Unknown,' towards the icy sea as far as the Arctic Pole." (Ont
Docts., p. 53.) So that the whole of the north-western portion of the continent was
claimed as belonging to France.

It will be necessary briefly to show upon what these claims are founded, and then to
consider if they have any value as bearing on the question to be decided by the arbitrators.

In 1626, Louis XIII. granted to the Company of New France a charter which, it is
asserted, included the whole of the country about Hudson's Bay and west of it

The Indians from the vicinity of Hudson's Bay came to Montreal to trade ; hence it
is said ihere was no necessity for erecting forts and trading-posts. (Mills, p. 127.)

It is stated that Jean Bourdon, the Attorney-General, in 1 656, explored the entire
coast of Labrador and entered Hudson's Bay.



• London, Ont., 1878 ; Report of Committee Ho. of Com., Can., 1880, pp. 237-255.

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278 STATEMENT OF THE CASE OF THE DOMINION, 1878 :



It appears that in the year 1656 there was an order of the Sovereign Oonncil of
Quebec authorizing Sieur Bourdon, its Attorney-General, to make a discovery thereof.

There is no record whatever of his having attempted to make the discovery in the
same year in which the order was passed by the Council.* There is a record, however^
of his having made the attempt in the year following (1657), and he may then have
designed carr3ang out the order, t He sailed on the 2nd day of May, and returned on 11th
August, 1657 ; and it is not pretended that he could have made a voyage to Hudson's
Bay and return between these dates. (Journal des Jesuites, pp. 209-218.) As to the
extent of this voyage there can be no doubt, as in the Bel. des Jesuites, Yol. III., BeL



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 46 of 86)