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The Delimitation of National Territory: Re Dominion Coal Company and County of Cape Breton

Published online by Cambridge University Press:  09 March 2016

G.V.La Forest
G.V.La Forest*
Affiliation:
Faculty of Law, University of New Brunswick, Fredericton, New Brunswick
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 2 , 1964 , pp. 233 - 244
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 1964

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References

1 (1963),40 D.L.R. (2d) 593.

2 In lectures entitled “The Constitution and Public Property” given to doctorate students of the Faculty of Law of the University of Montreal, now in preparation for publication.

3 Supra note r, at 613.

4 Ibid.

5 See, for example, Maxwell v. R. (1917), 17 Ex. C.R. 97, 100, where Cassels J. notes that various parts of Halifax Harbour are called by different names.

6 La Forest, G.V., “Canadian Inland Waters of the Atlantic Provinces and the Bay of Fundy Incident” (1963) 1 Canadian Yearbook of International Law 149.Google Scholar

7 Treaties and Conventions between the United States and Other Powers 415 (Washington, 1889).

8 An Act to enable His Majesty to make Regulations with respect to the taking and curing of Fish on certain Parts of the Coasts of Newfoundland, Labrador, and His Majesty’s other Possessions in North America, according to a Convention made between His Majesty and the United States of America, 59 Geo. Ill, c. 38.

9 (1867–8), 2 App. Cas. 394.

10 An Act relating to the Fisheries, and for the Prevention of Illicit Trade in the Province of Nova Scotia, and the Coasts and Harbors thereof, 6 Wm. IV, c. 8.

11 An Act respecting Fishing by Foreign Vessels, 31 Vict., c. 61; amended, 46 Vict., c. 27; 49 Vict., c. 114, s. 1; re-enacted sub nom Customs and Fisheries Protection Act, R.S.C. 1886, c. 94; R.S.C. 1906, c. 47; R.S.C. 1927, c. 43; R.S.C. 1952, c. 59; replaced by Coastal Fisheries Protection Act, ι & 2 Eliz. II, c. 15, amended 9 & 10 Eliz. II, c. 14.

12 See Moore, I, A Digest of International Law 783 (Washington, 1906).Google Scholar

13 Proceedings in the North Atlantic Coast Fisheries Arbitration, 1910 (Washington, 1912), vol. I, Award.

14 Ibid., 98.

15 Agreement between the United States and Great Britain adopting with certain modifications the rules and method of procedure recommended in the award of September 7, 1910, of the North Atlantic Coast Fisheries Arbitration, United States Treaty Series, No. 572.

16 An Act to amend the Customs Act, S.C. 1936, c. 30, s. 2; re-enacted by the Customs Act, R.S.C. 1952, c. 58, s. 2(1) (a).

17 Customs Act Map, no. 6, approved by P.C. 3726 of August 6, 1940. The map only shows the outer line of Canadian territorial waters, but Point Aconi and Low Point would appear to be the logical points from which to draw the baseline; however, in the map prepared by Professor Jacques-Yvan Morin in his article “Les eaux territoriales du Canada au regard du droit international,” (1963) 1 Canadian Yearbook of International Law 82, 103, the baseline seems to be drawn from a point further inland than Point Aconi, but on either view most of the waters described as Spanish Bay are inland waters.

18 [1927] P.311.

19 Ibid., 329.

20 (1876), 2 Ex. D. 63.

21 (1878 , 41 & 48 Vict., c. 73.

22 See Royal Commission on Government Organization (Ottawa, 1962), vol. 2, Supporting Services for Government, Report 11 : Legal Services, 389–390.

23 Ibid.

24 Ibid., 415.

25 supranote 18.

26 [1926] P. 185.

27 (1859), Bell’s C.C. 72.

28 Engelke v. Mussman, [1928] A.C. 433.

29 R. v. Bottrill, Ex Parte Kuechenmeister, [1947] 1 K.B. 41.

30 The Arantzazu Mendt, [1939] A.C. 256.

31 Unreported. The case was discussed in the Ottawa newspapers as the “Japanese Flagpole” case: see, inter alia, the Ottawa Citizen and the Ottawa Journal of January 22, 1960. The judgment of McDougall, Co. Ct. J. was given April 26, 1960.

32 See The Fagernes, supranote 18, per Lawrence L.J. at 329; also in the instant case, supranote 1, per Currie J. at 614.

33 (1905), 11 O.L.R. 366; see also Capital City Canning & Packing Co, ν. Anglo-British Columbia Packing Company Limited (1905), 11 B.C.R. 333.

33 (1932–3), 5 M.P.R. 112.

34 Ibid., 117–118.

35 See La Forest, supranote 6, 155–157.

36 (1828), I N.B.R. 211.

37 Ibid., 214. This case implies that a treaty defining the national territory

38 Ibid., 214. This case implies that a treaty defining the national territory would, in the absence of legislation, be self-implementing, and this is consistent with The Fagernes, supranote 18, and other cases discussed in this comment.

38 See ibid., 214–215.

39 (1831), I.N.B.R. 324.

40 Examples are Mowat v. McPhee (1880), 5 S.C.R. 66; Mortensen v. Peters (1906), 8 Sess. Cas., 5th ser. 93.

41 See, for example, R. v. Cunningham, supra note 27.

42 See Direct United States Cable Co. v. Anglo-American Telegraph Co.,supranote 9; The Fagernes, supranote 18. The instant case, for example, might have been decided by reference to pre-Confederation Nova Scotia legislation referred to therein without deciding whether Spanish Bay was a national water, at least as some of the judges interpreted that legislation.

43 For a discussion of the continuing influence of the King’s Chambers in the nineteenth century, see The Fagernes, supranote 18, per Atkin, L.J., at 325–326; see also Bellott, Hugh H. L., “Territorial Limits in the Bristol Channel,” (1928) 9 Brit. Yb. Int’l. L. 121, 122.Google Scholar

44 See Bellott, ibid., 125–126.

45 (1876), I App. Cas. 332.

46 See In the Matter of Weekly Rest in Industrial Undertakings Act, [1936] S.C.R. 461, per Duff C.J.; reversed on other grounds: Attorney-General of Canada v. Attorney-General of Ontario, [1937] A.C. 326.

47 Ibid.

48 (1867), 30 & 31 Vict., c. 3.

49 34 & 35 Vict., c. 28.

50 An Act for the Settlement of the Boundaries between the Provinces of Canada and New Brunswick (1851), 14 & 15 Vict., c. 63.

51 supra note 35.

52 Ibid., 157. In fact, counties in New Brunswick have been defined to include the bays since the Interpretation Act of 1854; see R.S.N.B. 1854, c. 161, s. 10.