¹ Reference re the Seabed and Subsoil of the Continental Shelf Offshore Newfoundland (1984), 5 D.L.R. (4th) 385.

² The following questions were put to the Court by the Governor in Council (P.C. 1982–1509, May 19, 1982) pursuant to s. 55 of the Supreme Court Act, R.S.C. 1970, c. S–19:

In respect of the mineral and other natural resources of the seabed and subsoil of the continental shelf, in the area offshore Newfoundland … has Canada or Newfoundland

• (1)

  (1) the right to explore and exploit the said mineral and other natural resources, and

• (2)

  (2) legislative jurisdiction to make laws in relation to the exploration and exploitation of the said mineral and other natural resources?

The Court answered both questions in favour of Canada.

³ The Order in Council cited in note 2 above sets out parallels of latitude and meridians of longitude that frame the precise area of the continental shelf in question, known as the Hibernia field.

⁴ Supra note I, at 390.

⁵ Reference re Mineral and Other Natural Resources of the Continental Shelf (1983), 145 D.L.R. (3d) 9.

⁶ At the time of writing, it seems that the practical aspects of the continental shelf jurisdictional issue will be resolved by a separate, political arrangement between the federal government and the province, although the final details remain to be agreed on: “PC’s, St. John’s Set to Sign Energy Deal,” The Globe and Mail, Oct. 10, 1984. While the previous Conservative government (1979–80) was prepared to concede ownership of offshore minerals to Newfoundland (letter from then Prime Minister Clark to Premier Peckford, Sept. 14, 1979, author’s private file), the present agreement between Newfoundland and the federal government seems to set aside legal questions of ownership. While the actual accord has not been made public, press reports state that the federal Crown “will turn over the management of these resources” to an independent board (emphasis added), rather than conferring legal title on the Crown in right of the province: “Ottawa Strikes Deal with Newfoundland,” The Globe and Mail, Dec. 13, 1984. See also Doucet, G. J., “Canada-Nova Scotia Offshore Agreement: One Year Later,” (1984) 22 Alta. L. Rev. 132.Google Scholar

⁷ Re Attorney–General of Canada and Attorney-General of British Columbia et al. (1984), 8 D.L.R. (4th) 161.

⁸ “The sole question” for determination, the Court said, “is the matter of proprietorship in lands”: ibid., 166. The majority held that the lands in question were outside the area covered by the 1967 British Columbia Mineral Rights Reference (1967), 65 D.L.R. (2d) 253 (see infra note 29), which dealt with the status of the territorial sea. Since the area in question was not part of the territorial sea, its ownership was therefore an open question under Canadian law.

⁹ The majority, per Dickson, J. (as he then was), held that under the 1866 Imperial Act uniting the colonies of British Columbia and Vancouver, the western boundary of the province was the Pacific Ocean off the coast of Vancouver Island and that consequently the province comprised all the territory — land and water — between the mainland and the western coast of Vancouver Island when it entered Confederation in 1871, supra note 7, at 180–84.

¹⁰ Wilson, J., dissenting (Ritchie, J., concurring) touched upon numerous issues with an international law dimension, entering into that deep forest where international and municipal law intertwine. Having concluded that the relevant legislation did not make the area part of the territory of the province, she paid particular attention to the notion of waters inter fauces terrae, and more specifically whether a body of water whose shores were governed by two different sovereigns would be within the international law and common law rules governing inland (or internal) waters. She concluded that it would not; ibid., 217–24.

¹¹ See Macdonald, R. St. J., “The Relationship between International Law and Domestic Law in Canada,” in Macdonald, , Morris, , and Johnston, (eds.), Canadian Perspectives on International Law and Organization 88–136 (1974)Google Scholar; Brownlie, I., Principles of Public International Law 45–49 (1979)Google Scholar; Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, [1977] I AU E.R. 881 (C.A.).

¹² The Ship “North” v. R. (1906), 37 S.C.R. 385.

¹³ Reference re: The Power of Ottawa to Levy Rates on Foreign Legations, [1943] S.C.R. 208. See also Municipality of Saint John et al. v. Fraser Brace Overseas Corporation et al., [1958] S.C.R. 263; La République Démocratique du Congo v. Venne, [1971] S.C.R. 997.

¹⁴ Re Regina and Palacios (1984), 45 O.R. (2d) 269, per Blair, J.A.

¹⁵ Supra note 11; and see “International Law,” 17 C.E.D. (3rd) 62–72, prepared by L. C. Green; Vanek, D. C., “Is International Law Part of the Law of Canada,” (1949–50) 8 U. of T. L.J. 251.CrossRefGoogle Scholar

¹⁶ [1939] A.C. 160.

¹⁷ Ibid., 167–68. This same passage was approved by Duff, C. J., in the Foreign Legations case, supra note 13, at 213–14Google Scholar. See also Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, supra note 11. There are two schools of thought on the place of international law in Canadian law. One holds that international law is incorporated automatically into municipal law and forms part of the common law except where declared in conflict by judges or inconsistent with an act of parliament. The other, the “transformation” school of thought, holds that international law is not part of the common law except as it may be expressly adopted by judicial decision or by legislation. In the Trendtex Trading case, supra note 11, Lord Denning, M.R., opted for incorporation, as did Lords Shaw and Stephenson. Stephenson, L.J., pointed out that differences between the two schools are more apparent than real (at 902), and as Professor Brownlie says, supra note 11, at 49, the quotation from Lord Atkins’ judgment in Chung Chi Cheung is fully consistent with the doctrine of incorporation. See also I Congresso del Partido, [1978] Q.B. 500, where Goff, J., followed the doctrine of incorporation. Although that case was reversed by the House of Lords, [1983] A.C. 244, the House (per Lord Wilberforce) similarly followed the incorporation doctrine.

¹⁸ R.S.C. 1970, c. T-7, as amended by R.S.C. 1970, 1st Supp., c. 45. When originally passed in 1964, the Act provided for only a 3–mile territorial sea.

¹⁹ Under the Territorial Sea and Fishing Zones Act, s. 3, the territorial sea of Canada comprises sea areas measured seaward from baselines (as published by Order in Council) or from the low–water mark for 12 nautical miles.

²⁰ The 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, 516 U.N.T.S. 205 (Canada is not a party to it), provides for the use of either the low–water line or straight baselines along the coast to measure the breadth of the territorial sea. The Convention does not define the breadth of the territorial sea, but the new United Nations Convention on the Law of the Sea, A/Conf. 62/122, Oct. 7, 1982, expected eventually to replace the 1958 Geneva Convention, provides for a territorial sea of 12 nautical miles. The 12–mile limit now must be accepted as enjoying the same status and relative position in international law as the 3–mile limit previously did: see O’Connell, D. P., The International Law of the Sea, Vol. 1, at 166 (1982).Google Scholar

²¹ A communiqué issued on Mar. 6, 1975, on behalf of the Canadian government by the Secretary of State for External Affairs affirmed this position in clear terms. The communiqué is reproduced in part in (1976) 14 Canadian Yearbook of International Law 324.

²² The communiqué does not specify the geographic limits of Canada’s claim. None the less, it is clear that, for example, the western coast of Newfoundland and southern coast of Labrador would abut this area. S. 3 of the Territorial Sea and Fishing Zones Act provides that the territorial sea extends seaward from the low–water mark or from straight baselines and s. 3(2) of the Act appears to require that internal waters be enclosed by baselines. It is difficult to reconcile this with the notion that the Gulf is an internal body of water, in the absence of any such baselines having been promulgated. Waters are also muddied by the fact that the Gulf has been prescribed as a fishing zone of Canada under s. 5.1 of the Act: see order in Council P.C. 1971 — 366, Feb. 25, 1971.

²³ Supra note 5.

²⁴ The precise question referred to the Newfoundland Court of Appeal by the provincial cabinet was as follows:

Do the lands, mines, minerals, royalties or other rights, including the right to explore and exploit and the right to legislate, with respect to the mineral and other natural resources of the seabed and subsoil from the ordinary low–water mark of the Province of Newfoundland to the seaward limit of the continental shelf or any part thereof belong or otherwise appertain to the Province of Newfoundland? (emphasis added).

The Court of Appeal said that such rights appertained to Newfoundland within the 3–mile limit. In dealing with continental shelf rights (rights within the territorial sea were not in issue), the Supreme Court of Canada held in the Newfoundland Continental Shelf Reference that continental shelf rights were not proprietary in the ordinary sense but rather were “an extraterritorial manifestation of, and an incident of, the external sovereignty of a coastal State,” supra note 1, at 396, a point that is discussed in greater detail infra.

²⁵ The Court of Appeal held that within the 3-mile limit “the lands, mines, minerals, royalties and other rights … with respect to the mineral and other natural resources of the seabed and subsoil” (emphasis added) belonged to Newfoundland. It follows that living resources of the seabed (such as scallops, crab, starfish) within this area are the property of the province.

²⁶ Supra note 5, at 30.

²⁷ R.S.C. 1970, Appendices, No. 5, as amended by the Constitutional Act 1982, The Canada Gazette, Part III, Special Issue, Sept. 21, 1982. While s. 91 (12) confers jurisdiction on parliament in respect of “Sea Coast and Inland Fisheries,” provincial jurisdiction over fisheries is not necessarily ousted. Fisheries within the province remain the property of the province and subject to provincial jurisdiction in respect to “Property and Civil Rights” under s. 92(13) to the extent that the latter does not deal with the manner in which fishing is conducted: Attorney-General for Canada v. Attorney-General for Ontario et al., [1898] A.C. 700 (P.C.).

²⁸ Notice of Appeal from the Newfoundland Court of Appeal’s judgment was filed in the Supreme Court of Canada by the Attorney–General for Newfoundland on Apr. 15, 1983, by the Attorney-General for Canada on Apr. 18, 1983. The Attorney-General for Canada will therefore contest the finding of the Court of Appeal on the territorial sea issue. The cross-appeals have not yet been set down for hearing.

²⁹ In the matter of a Reference by the Governor General in Council Concerning the Ownership of and Jurisdiction over Offshore Mineral Rights as Set Out in Order in Council P.C. 1965–70, dated April 26, 1965, [1967] S.C.R. 792, referred to in this article simply as the “British Columbia Offshore Mineral Rights Reference.”

³⁰ (1876), 2 Ex.D. 63.

³¹ Supra note 29, at 805. See also Re Dominion Coal Company Limited (1963), 40 D.L.R. (2d) 593.

³² 1878, 41–42 Vict., c. 73.

³³ Supra note 29, at 805.

³⁴ The Act provides, in section 3(1), that subject to limited exceptions the territorial sea comprises “those areas” between baselines and lines that are 12 miles seaward from those baselines. Nothing in the legislation itself vests property in or sovereignty over the territorial sea in the Crown in right of Canada.

³⁵ The issue of the Crown’s property rights in the 3–mile limit had been raised in Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153, but the Privy Council refused to deal with the issue, saying that much depended upon developments in public international law and noting, “there is the decisive consideration that the question is not one which belongs to the domain of municipal law alone” (p. 174). This passage represents judicial recognition of the interaction between municipal and international law.

³⁶ R.S.C. 1970, Appendices, No. 26.

³⁷ Supra note 29, at 816.

³⁸ Supra note 5, at 20 (emphasis added).

³⁹ Ibid., 20–23.

⁴⁰ Supra note 29, at 816.

⁴¹ Supra note 5, at 18 (emphasis added).

⁴² Ibid., 20 (emphasis added).

⁴³ Ibid., 22. The Court refers to O’Connell’s, D. P. article “The Juridical Nature of the Territorial Sea,” 45 B.Y.I.L. 303 (1971)Google Scholar, as authority for this conclusion. See also, O’Connell, supra note 20, at 78.

⁴⁴ Supra note 5, at 30 (emphasis added).

⁴⁵ These are referred to in the judgment, ibid., 28–29: Air Navigation Act, 1920 (U.K.), c. 80; Customs Act, C.S.N. 1916, c. 22; Crown Lands Act, 1930 (Nfld.), c. 15; Customs Act, 1933 (Nfld.), No. 9.

⁴⁶ In the 1967 Reference, the Court accepted with approval the brief judgment of Lush, J., in Keyn, which said, in part:

the dominion is the dominion of Parliament, not the dominion of the common law. That extends no further than the limits of the realm. In the reign of Richard II the realm consisted of the land within the body of the counties. All beyond low–water mark was part of the high seas. At that period the three–mile radius had not been thought of. International law, which, upon this subject at least, had grown up since that period, cannot enlarge the area of our municipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such Act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now….

It is difficult to square this view with the Newfoundland Court of Appeal’s view that certain individual pieces of legislation resulted in the exercise of “dominion” over its territorial sea and its bed and subsoil.

⁴⁷ Indeed, there have been cases that have suggested that in common law jurisdictions legislatures may be prevented from passing laws that derogate from customary international law: see Reference as to Powers to Levy Rates on Foreign Legations, supra note 13; Vanek, , “Is International Law Part of the Law of Canada,” supra note 15, at 265–67.Google Scholar

⁴⁸ Supra note 5, at 33:

the suspension of its Constitution in 1934 and the issuance of new letters patent did not preclude Newfoundland from acquiring new rights in the submarine area contiguous to its coasts that might be available under international law. Without question, the Commission of Government did not operate so as to divest Newfoundland of any vested proprietary rights in the seabed of its maritime belt, namely, its ownership of the territorial sea, its seabed and subsoil.

⁴⁹ Ibid., 40.

⁵⁰ North Sea Continental Shelf, Judgment, [1969] I.C.J. Rep. 3.

⁵¹ See Martin, C., “Newfoundland’s Case on Offshore Minerals: A Brief Outline,” (1975) 7 Ottawa L. Rev. 34 Google Scholar; Kovach, A. J., “An Assessment of the Merits of Newfoundland’s Claim to Offshore Mineral Resources,” (1975) 23 Chitty’s L.J. 18 Google Scholar; Swan, G., “The Newfoundland Offshore Claims: Interface of Constitutional Federalism and International Law,” (1976) 22 McGill L.J. 54 Google Scholar; MacLauchland, H. W., “Newfoundland’s Continental Shelf: The Jurisdictional Issue,” (1981) 30 U.N.B.L.J. 91 Google Scholar; Douglas, C., “Conflicting Claims to Oil and Natural Gas Resources Off the Eastern Coast of Canada,” (1980) 18 Alta. L. Rev. 54 Google Scholar; Inions, N. J., “Newfoundland Offshore Claims,” (1981) 19 Alta. L. Rev. 461.Google Scholar

⁵² (1975–76), 8 A.L.R. I.

⁵³ [1969] A.L.R. 741.

⁵⁴ The equidistance or median line method is a cartographical technique of drawing a maritime boundary line every point on which is equidistant from the nearest points on the baselines of opposite or adjacent coasts. See Hodgson, R. D. and Cooper, E. J., “The Technical Delimitation of a Modem Equidistant Boundary,” (1976) Ocean Development and International Law 361 CrossRefGoogle Scholar; Beazley, P. B., “Maritime Limits and Baselines,” The Hydrographie Society (U.K., 1978, Special Publication No. 2).Google Scholar

⁵⁵ Supra note 50, at 21.

⁵⁶ Ibid., 22.

⁵⁷ Supra note 5, at 39; supra note 4, at 416–17.

⁵⁸ Supra note 50, at 22.

⁵⁹ Supra note 5, at 39. Again, the influence of public international law is felt.

⁶⁰ Ibid., 40.

⁶¹ Idem.

⁶² Idem.

⁶³ Supra note 4, at 417.

⁶⁴ Idem.

⁶⁵ And, even if this were not so, echoing the 1967 Reference, the Court said (ibid., 418) that “if international law as to the continental shelf were to have retroactive effect, we think the benefit would accrue to the entity within Canada currently competent to acquire continental shelf rights and that entity is not Newfoundland but Canada.”

⁶⁶ Referring to Art. 38(1) of the Statute of the International Court of Justice, and to the sources of law set out therein, the Court found that neither conventional law, in subparagraph (a), or municipal law principles in subparagraph (c) had relevance to whether continental shelf rights had crystallized by 1949. It therefore embarked upon an examination of state practice as evidence of international custom under subparagraph (b), ibid., 411–13.

⁶⁷ Ibid., 413–14.

⁶⁸ The complete record of the deliberations of the I.L.C. on the subject of the continental shelf can be found in the 1949 to 1956 editions of the Yearbook of the International Law Commission, A/CN 4/SER A, and Add. 1, 1949–56.

⁶⁹ Supra note 1, at 416. And, in the immediately preceding paragraph, the Court drew a very commonsense and unimpeachable conclusion from its consideration of the state of international law in 1949, saying:

During the embryonic stage of development of a rule of international law it is difficult to say that rights arise ipso jure when it is not yet settled what those rights are. In 1949, in the absence of any proclamation by Newfoundland, one would have been hard pressed to state with any precision what rights were consistent with State practice to that date. We think this point is reinforced by the fact that in the documents relating to the consideration given to making a claim by or on behalf of Newfoundland, there was no hint that anyone thought Newfoundland rights in the continental shelf already existed.

⁷⁰ Ibid., 409.

⁷¹ Ibid., 410. See also infra note 89. Term 37 provides that “All lands, mines, minerals and royalties belonging to Newfoundland at the date of Union … shall belong to the Province of Newfoundland.…” The Newfoundland Court of Appeal held that Term 37 potentially applied to minerals, etc., both inside and outside the land mass of Newfoundland: supra note 5, at 36. However, the province’s claim failed because it had not actually claimed continental shelf rights prior to 1949, according to the Court of Appeal. The Supreme Court of Canada, however, did not attribute this significance to Term 37. It said:

Assuming, arguendo, that a right to explore and exploit the continental shelf was recognized by international law in 1949, we conclude that on Union it would have had to devolve as an incident of external sovereignty, whether from the Crown in right of Newfoundland or, as we think, from the Crown in right of the United Kingdom, to the only entity within Canada possessing external sovereignty — the Crown in right of Canada. Even if — contrary to our opinion — Newfoundland did have the external sovereignty necessary to acquire continental shelf rights prior to joining Canada, the effect of the Terms of Union would be that Canada, not Newfoundland would have the right to explore and exploit the continental shelf [supra note 1, at 410].

⁷² “In our view,” said the Court, “neither the voluntary surrender of power for a terminable period of time, nor the change in the nature of its government from a democratic to an autocratic or quasi-dictatorial form, destroyed Newfoundland’s de jure sovereignty as a coastal State”: supra note 5, at 32–33.

⁷³ Supra note 45.

⁷⁴ The Statute was enacted by the United Kingdom parliament to give legal effect to the constitutional evolution of the dominion members of the Commonwealth. The definition of the term “Dominion” in the Statute included Newfoundland: R.S.C. 1970, Appendices, No. 26.

⁷⁵ Supra note 29, at 817.

⁷⁶ The so-called Balfour Declaration of 1926 embodied a consensus achieved at the Imperial Conference of that year among the dominion governments of the British Commonwealth and His Majesty’s government of the United Kingdom. It contained the well–known phrase that Great Britain and the Dominions “are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs…”: Ollivier, , Colonial and Imperial Conferences, Vol. 3, at 146 (1954).Google Scholar

⁷⁷ Supra note 5, at 32.

⁷⁸ Supra note 1, at 402.

⁷⁹ The Court of Appeal referred to the fact that during the 1934–49 period the U.K. government generally respected the constitutional conventions declared by the Imperial Conferences of 1923, 1926, and 1930 and observed Newfoundland’s rights to prior consultation on matters affecting its interests internationally: supra note 5, at 32. The Supreme Court of Canada, however, found that while the Newfoundland government was involved on a de facto basis, de jure it was the U.K. government and not the government of Newfoundland that was responsible for external relations, supra note 1, at 405.

⁸⁰ Ibid., 419.

⁸¹ The Court of Appeal posed the issue itself in terms of whether, prior to Union, Newfoundland “had the necessary constitutional status” to acquire rights to the territorial sea prior to the date of Union: supra note 5, at 24. Later in the judgment, it said that “Newfoundland was recognized in international law as having sovereignty over a territorial sea three nautical miles wide”: ibid., 30. While it treated territorial sea rights as akin to property rights in the traditional sense, it made a close connection between the sovereign status of Newfoundland and the acquisition of these rights.

⁸² Ibid., 33.

⁸³ Supra note 1, at 406.

⁸⁴ Ibid., 396.

⁸⁵ It is beyond controversy that the rights that coastal states exercise in their territorial seas arise by virtue of international law, a point that was accepted in Keyn. Although the 1958 Convention on the Territorial Sea and Contiguous Zone provides that under international law the sovereignty of a coastal state extends throughout its territorial sea, it does not necessarily follow that because of this international law rule the boundaries of the state are automatically extended beyond the low-water mark. Recall that in the Georgia Strait Reference, Wilson, J. (dissenting), was of the view that the basic municipal law rule is that, absent some affirmative act, “territory” means land territory: supra note 7, at 207. If this argument were followed in respect of the territorial sea, the general proposition would be that the boundaries of Canada or a particular province end at the low–water mark, unless otherwise extended. And if this is so, all manner of rights exercisable in the seabed beyond the low-water mark — save for inland or similar waters Such as those between Vancouver Island and the mainland — would be “extraterritorial” in nature as a matter of municipal law.

⁸⁶ Supra note 30.

⁸⁷ Supra note 5, at 30.

⁸⁸ On the level of broad principle, it is important to distinguish between sovereignty, i.e., the plenary and undiminished attributes of statehood in respect of a given area, and jurisdiction, i.e., the exercise of rights, claims, or powers that may be quantitatively less than full sovereignty. See Brownlie, , Principles of Public International Law 110 (1979)Google Scholar. “Dominion” or dominium equates with full sovereignty. The Newfoundland Court of Appeal, as noted, held that by the various enactments of the Newfoundland legislature, the province exercised “dominion” over the territorial sea. Can the legislation referred to, however, really constitute an exercise of dominion over the territorial sea, as distinct from the exercise of jurisdiction for specific objectives?

⁸⁹ The Terms of Union (as set out in the Schedule to the British North America Act, 1949, R.S.C. 1970, Appendices, No. 30, now the Constitution Act, 1949) contain the agreement between Newfoundland and Canada regarding the terms upon which Newfoundland was to enter Confederation as a province of Canada. In essence, Newfoundland was to become a province on the same footing as the other provinces of Canada and the British North America Acts (now the Constitution Acts), 1867 to 1946, were to apply to Newfoundland as if it had been one of the original provinces of Canada.

⁹⁰ Supra note 5, at 36.

⁹¹ The heading of Term 37 is “Nautical Resources,” and it is contained in that part of the Terms of Union entitled “Miscellaneous Provisions.”

⁹² The full provision reads as follows:

2. The Province of Newfoundland shall comprise the same territory as at the date of Union, that is to say, the island of Newfoundland and the islands adjacent thereto, the Coast of Labrador as delimited in the report delivered by the Judicial Committee of His Majesty’s Privy Council on the first day of March, 1927, and approved by His Majesty in His Privy Council on the twenty–second day of March, 1927, and the islands to the said Coast of Labrador.

⁹³ The 1982 United Nati tons Convention on the Law of the Sea defines an “island” in Article 121 as “…a naturally formed area of land, surrounded by water, which is above water at high tide.” This is the same definition as contained in Art. 10 of the 1958 Convention on the Territorial Sea.

⁹⁴ Supra note 1, at 406.