Henri Dorion debunks the Ten Great Myths about the Labrador boundary

Quebec -- National Assembly -- First Session, 34th Legislature

Special Parliamentary Committee
Committee of Enquiry into Questions Relating to the Sovereignty of Quebec

No. 6, pp. 154-157
Thursday, 17 October 1991
(Unofficial translation)

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M. Henri Dorion: This boundary touches the Quebec-Newfoundland boundary. This is the last of the boundaries which forms the circumference of Quebec, but not the least. I will spare you the history of the Labrador boundary -- I think we know it well enough -- the culmination of which history was the judgment of the Privy Council, the award of the Privy Council, in 1927.

To summarize the matter... I think that it can be summarized -- unfortunately for Quebec, from an historical point of view -- in a relatively simple phrase: The Labrador boundary was settled and has a legal existence; Quebec does not have -- and this has been confirmed after numerous studies -- any valid juridical, legal basis to contest, by judicial means, the Labrador boundary as it was settled by the Privy Council of 1927. When I say "settled", perhaps I should define the term. It is important, from the perspective of judicial argumentation, to consider the award of the Privy Council -- as elsewhere in all awards relating to boundaries -- as a statement declaring rights, and not as a statement conferring rights. The boundary between Quebec and Labrador was not created in such a way in 1927. It was proclaimed by the Privy Council, by the Judicial Committee of the Privy Council, as being where the judgment determined it to be. It was therefore declarative of rights. That means that when the sequence of events is traced it must be kept in mind that upon the enactment of earlier statutes, in 1809, in 1825, the Labrador boundary was where the Privy Council determined that it was, or where it must be, according to the interpretation of the text of the statutes.

This being said, there often appear, in the press, in documents, in studies, statements which advance several arguments that would allow Quebec to consider the Labrador boundary as an unsettled boundary, an unrecognized boundary, a boundary which we can seek to change by judicial means. I will quickly go over with you the five or six arguments which are most often used, for the purpose of showing, unfortunately for Quebec, that they have no legal validity that would allow a judicial re-examination of the matter.

It is often said that the Privy Council that rendered its judgment in 1927, after a hearing the previous year, was both judge and party. That is said in reference to the fact that, at the time of the hearing, Newfoundland was a crown colony. If it is indeed true that the Privy Council was both judge and party, the parties knew it, and the parties -- that is, Newfoundland and Canada along with Quebec -- chose to consider the matter not to be an obstacle to the validity of the arbitration, as it was indeed an arbitration that Canada and Newfoundland had asked for. Therefore, this is not an argument that can be employed.

There was a theory, which was advanced elsewhere in a book published in Montreal, to the effect that the judges of the Privy Council had a pecuniary interest, suggesting that they had an interest in international banks, that they had interests in Rio Tinto, or in possible mineral deposits in Labrador, etc. It is a theory that was advanced at the time, and which was the subject of a serious enquiry in the papers and files of the Public Record Office in London, and which was answered in the negative. It has never been possible to prove that one or another of the judges of the Privy Council had any direct financial interest whatsoever.

It has also been said that Quebec was not a party to the case, conveniently forgetting that Mr. Lanctôt and Mr. Geoffrion were those who pleaded the case. Of course, it was Canada that was there, it was Canada that asked the Privy Council to render a judgment, at the express demand of Quebec. And that is in the briefs that were presented.

There is a legal theory that proposes that a decision of the Privy Council is merely an opinion, and not a judgement which has the force of law et the force of a legal decision. Those familiar with the British legal system know full well that, when there has been a sanction by a Royal order, a decision of the Judicial Committee of the Privy Council becomes law and has the force of law. Therefore this argument can no longer be used.

It has often been said that the Labrador boundary is geographically absurd. That is perhaps partially true. What is often omitted, however, is that the position defended by Canada, and by Quebec as well, was doubly absurd. For the good reason that what Quebec and Canada claimed as their territory in Labrador was the entire Labrador peninsula, with the exception of a one-mile strip of land, that is to say, 5000 and some feet wide by thousands of kilometres long. That, from a geopolitical and geographical perspective, is a complete absurdity. That is plainly an unmanageable territory, and in any event, it would have closed off the territory [claimed by Quebec.] If it is ridiculous to have the boundary on the watershed, it is even more ridiculous to have it 5000 feet inland. Yet that was the position which Canada pleaded, with the support of supposedly scientific evidence.

It has also been said that it is an absurd boundary because it is untraceable on the ground. I mentioned a moment ago that there are in fact regions where it is impossible to determine the watershed. It is the crest of the watershed that forms the boundary. It is an argument which has its appeal, but which, juridically, has no validity. It has been determined by a large number of international decisions that the relative untraceableness of a boundary does not put the determination of the boundary into doubt. This is therefore an argument which, upon the facts, has its appeal, but from a legal perspective, has no weight.

It has also been said that this is a case of ultra petita, that is, that the court, or rather the tribunal, gave to the petitioners more than they had asked. And it is well known that in law, whatever the level, that it is not a cause for the annulment of the award, but rather for a partial annulment, of the excess award. In fact, looking in greater detail, it is realized that there is no case of ultra petita. What happened is that Newfoundland actually presented certain cartographic documents which showed that they claimed only the Atlantic basin, without necessarily going as far as the 52nd parallel. Because there is a difference between the two which covers all the same about 12,000 square kilometres. The judgment cannot be assailed on the sole grounds that the tribunal would have awarded Newfoundland a larger territory than it had asked for.

Finally, it is often said: In any event, whatever the legal or geographical validity of the judgment, Quebec has never recognized the Labrador boundary. I hope I do not disappoint anyone by saying that this is totally false. Quebec has, time and time again, recognized the Labrador boundary. I said a moment ago that the position of Quebec was ambiguous. In fact, it has been so because of the recognition by different acts, orders in council, ministerial statements, publication of official documents and maps; there is a summary which was made during the work of the Commission of Inquiry on Territorial Integrity, which demonstrated that in at least 80 instances Quebec has recognized the 1927 boundary.

It has also recognized it in an act which refers to the Quebec-Newfoundland Labrador boundary at the crest of the watershed which forms the boundary between Quebec and Newfoundland Labrador. That is how it is referred to in a 1946 act. So, in the face of this list of acknowledgments, how can it be said that Quebec has not recognized the boundary of 1927? However, to be fair, it must also be said that Quebec has declared that it does not recognize it. Therein lies the ambiguity, which has lasted half a century, more than half a century, on the question of the Labrador boundary.

Whatever may be made of this recognition or non-recognition in certain respects, the 1949 act by which Newfoundland entered the Canadian confederation explicitly recognized, and it is a constitutional law, that the boundary between Quebec and Newfoundland is the line determined by the Privy Council in London in 1927. It is section 2 of the Act of Union of Newfoundland with Canada. You may say that Quebec was not consulted on this act of union. In fact, it was consulted, but it is a footnote to history to know what was said in the House of Commons at the time. In the Legislative Assembly of Quebec, there was no question about the boundary, not once. It was simply said that the entry of Newfoundland might not be a good thing, because it would affect the percentage of French-Canadians in Canada. The only debate that there was on this subject, was in the House of Commons, at the federal level. The result of which was that it was confirmed by the Act of 1949. And when it is said that Quebec was not consulted on the Act, it did not have to be because of the important distinction that I made a moment ago to the effect that the decision of the Privy Council did not confer any rights, but rather declared them, and so the Act of 1949 did not change the boundary, it only reaffirmed it. It reaffirmed the previous affirmation of 1927.

In this regard, there are two things which can be said concerning the Quebec-Newfoundland boundary. It can be said that this boundary is not judicially debatable. Furthermore, it can be said that, in order to be constitutional, there needs to be, according to the procedure under s. 43 of the Constitution Act of 1982, it needs to be confirmed by Parliament and by the provincial legislatures involved. Perhaps, but I would doubt that, for the same reason that the boundary was not modified in 1927, it was only determined. The Privy Council simply declared that it was where they declared it to be according to the earlier texts.

The other part of this boundary which is sometimes referred to is the southern part of Labrador which is located between the watershed and the 52nd parallel, that is, the entire region of the headwaters of the rivers that flow into the Gulf of St. Lawrence. There have often been suggestions that this territory could be claimed, but this is based on the grounds of ultra petita which I mentioned a little while ago, the superadjudication of the Privy Council, the Judicial Committee of the Privy Council. Juridically, this position is hard to defend. However, from another point of view, let us say geopolitically or geo-economically, it is evident that the logic which underlies the allocation of the entire Atlantic basin to Newfoundland could be used to justify a negotiation with Newfoundland to make the headwaters of the rivers between the 52nd parallel and the watershed to be part of Quebec territory.

This would involve a negotiation whose outcome is far from certain. It has at times been the subject of discussions, on a number of occasions, between Quebec and Newfoundland authorities. The question has been raised, but there has been no concrete results. In any event, today the effective boundary between Quebec and Newfoundland must be considered as the line established by the Privy Council in London in 1927. That is the situation. The only possible outcome -- and this was the conclusion of the Commission of Inquiry into Territorial Integrity -- is political negotiation. This is not a legal issue.