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The Canadian Laws Offshore Application Act: The Legislative Incorporation of Rights over the Continental Shelf
Published online by Cambridge University Press: 09 March 2016
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- Type
- Notes and Comments /Notes et commentaires
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 29 , 1992 , pp. 355 - 372
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1992
References
1 The legislation was first introduced as Bill C-104 in April 1986 by the Honourable John Crosbie, when he was Minister of Justice and Attorney General of Canada. It died on the order paper at the end of the first session of the 33rd Parliament and, because of other legislative and governmental priorities, did not get reintroduced until the second session of the 34th Parliament in October 1989, as Bill C-39, and was not adopted until the fall of 1990. The Act entered into force by order on February 4, 1991, and it appears as chapter 44 of the Statutes of Canada, 1990.
2 In the Re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86, the Supreme Court of Canada held that when Newfoundland entered Confederation in 1949, it did not have the requisite external sovereignty to acquire what the court described as extraterritorial rights over the shelf, and that in any event the institution of the shelf had not by that time crystallized in international law. It followed that by the time the continental shelf emerged as a concept in international law, the federal government was the sole possessor of external sovereignty for Canada. Legislative jurisdiction fell to Parliament under the “peace, order and good government” residual clause in the Constitution.
3 In Reference re Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792, the Supreme Court of Canada held that the territorial sea did not form part of the colony of British Columbia at the time of union with Canada in 1871. It followed automatically that Canada, not the province, had the right to explore and exploit the continental shelf beyond the territorial sea.
4 See, for example, the United States Submerged Lands Act, 43 U.S. Code § 1333, which extends federal and state laws to the outer continental shelf, or the British Continental Shelf Act 1964, (U.K.) c. 29, which applies civil and criminal law to acts and omissions on continental shelf installations.
5 Territorial Sea and Fishing Zones Act, S.C. 1964–65, c. 22.
6 Fishing Zones of Canada (Zones 4 and 5) Order, SOR/77-62. The legislative basis for the extension oxf jurisdiction over fisheries to 200 miles was set out as early as 1970 in An Act to Amend the Territorial Sea and Fishing Zones Act, R.S.C. 1970, Supp. I, c. 45.
7 Gotlieb, A. E., “The Canadian Contribution to the Concept of a Fishing Zone in International Law” (1964) 2 Canadian Yearbook of International Law 55.CrossRefGoogle Scholar
8 Gotlieb, Allan and Dalfen, Charles, “National Jurisdiction and International Responsibility: New Canadian Approaches to International Law” (1973) 67 Am. J. Int’l L. 229, at 235.10.2307/2199430CrossRefGoogle Scholar
9 Herman, L. L., “The Need for a Canadian Submerged Lands Act: Some Further Thoughts on Canada’s Problems” (1980) 58 Can. B. Rev. 518, at 521.Google Scholar
10 Proclamation No. 2667, 10 Federal Register 12303; reprinted in (1946) 40 Am. J. Int'l L. Supp. 45. The United States transmitted to the Canadian embassy in Washington both a draft copy and the final version of the Proclamation. Canada adknowledged receipt of the proclamation without comment. For copies of the relevant diplomatic correspondence see Gulf of Maine case, U.S. Memorial, p. 81, para. 133 and annexes.
11 Canada Oil and Gas Regulations, P.C. 1960–474, April 13, 1960, adopted pursuant to the Territorial Lands Act, S.C. 1950, c. 22, and the Public Lands Grants Act, S.C. 1950, c. 19.
12 The original permit and licence regime for oil and gas activities was modified on a number of occasions over the years: in 1961 the Canada Oil and Gas Land Regulations, and the Canada Oil and Gas Drilling and Production regulations, P.C. 1961–797, June 6,1961 revoked and repealed the Canada Oil and Gas Regulations to divide the regulations concerning technical standards for drilling, etc., from those concerning the disposition of interests in oil and gas; in 1977 Order in Council, PC. 1977, 2155, July 28, 1977 authorized exploration agreements and provided certain rights to Petro-Canada; in 1982 the Canada Oil and Gas Act, S.C. 1980-81-82, c. 81 implemented the National Energy Program; and more recently the Canada Petroleum Resources Act, R.S.C. 1985, c. C-8.5, overhauled the legislative framework for oil and gas activities on federal lands.
13 North Sea Continental Shelf, Judgment [1969] I.C.J. Rep. 22, para. 19.
14 Bernhardt, Rudolf, “Custom and Treaty in the Law of the Sea,” Ree. des Cours, 1987, V (tome 205) 247, at 294.Google Scholar
15 Canadian Laws Offshore Application Act, s. 2(1) incorporates the definition of “internal waters” and “territorial sea” from s. 3 of the Territorial Sea and Fishing Zones Act, R.S.C. 1985, c. T-8.
16 R.S.C. 1985, c. 1–21.
17 Canadian Laws Offshore Application Act, s. 4.
18 (1876) 2 Ex.D. 63.
19 O'Connell, D.P., The International Law of the Sea, Vol.2, ed. Shearer, I. A. (Oxford: Clarendon Press, 1984), 739.Google Scholar
20 Section 19 of the Act amends subsection 5(3) of the Territorial Sea and Fishing Zones Act and adds subsection 5(3.1) on baselines where there is historic title and baselines in other areas.
21 Criminal Code, s. 477.4 (3).
22 In R. v. Vaillancourt, [1987] 2 S.C.R. 636, the Supreme Court of Canada held that the presumption of innocence in s. 11(d) of the Charter is offended when legislation omits an essential element of the definition of an offence or if it substitutes proof of an essential element.
23 In R. c. Paul Franck Watson, the court disputed the federal claim that the Gulf of St. Lawrence is internal to Canada, notwithstanding the issuance of a certificate by the Secretary of State for External Affairs to this effect. The court held that the 1964 Territorial Sea and Fishing Zones Act repealed any prerogative power with respect to the extent of the maritime realm of the Crown. In the absence of straight baselines, the court concluded that the baselines of the territorial sea was the low-water line along the coast, with the result that the Gulf of St. Lawrence fell outside the territorial sea, depriving the court of jurisdiction over citizens of a foreign state on the high seas. Cour des sessions de la paix, Canada, Province de Québec, District de Gaspé, n° 110-01-000306, 20 décembre 1983. Upheld on appeal by Cour supérieure, chambre criminelle, n° 110-38-000001-849, 17 mars 1987, Desjardins, jcs. For comment, see Morrissette, France, “Le statut du golfe du Saint-Laurent en droit international et en droit interne” (1985) Revue générale de droit 273.Google Scholar
24 Driedger, E.A., The Construction of Statutes (Toronto: Butterworths, 1974), 166.Google Scholar
25 The Counter-Memorial submitted by Canada on February 1, 1991 in the case concerning the delimitation of the maritime boundary between Canada and France answers the allegation it says was made in the French Memorial that the Act goes beyond what is permitted by international law. Canadian Counter-Memorial, para. 203.
26 Article 76 of the Convention defines the shelf in the following terms:The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the continental margin does not extend up to that distance.
27 R.S.C. i985) c. C-53.
28 S.C. 1987, c. 3.
29 S.C. 1990, c. 41.
30 Canadian Laws Offshore Application Act, s. 5(2).
31 Canada, House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-39, May 29, 1990.
32 Canadian Laws Offshore Application Act, s. 2(2)(a).
33 Submerged Lands Act, 43 U.S. Code s. 1333(a)(3).
34 Canadian Laws Offshore Application Act, s. 21.
35 Workmen’s Compensation Board v. C.P.R. [1920] A.C. 1984 (P.C.).
36 Canadian Laws Offshore Application Act, s. 9.
37 [1968] S.C.R. 569. The Coughlin principle has been recently approved by the Supreme Court of Canada in R. v. Furtney, [1991] S.C.R.
38 S.C. 1987, c. 3.
39 S.C. 1988, c. 28.
40 Supra note 29.
41 Criminal Code, s. 477.2.
42 Ibid., s. 477.1.
43 Ibid., s. 477.2 (2).
44 Ibid., s. 477.1(1)(d).
45 Ibid., s. 477.1(1)(a).
46 Ibid., s. 477(2).
47 Ibid., s. 477–3(3).