NOTES
Legal Issues of the Offshore Mineral Rights Dispute
in Canada
Following five years of political dispute, but by no means
terminating it, federal Order in Council P.C. 1965-750 asked that the
opinion of the Supreme Court of Canada be obtained in relation
to five questions concerning the ownership of and jurisdiction over
mineral resources in defined areas of the seabed of the territorial
sea’ and the continental shelf 2 off the coast of British Columbia.
After hearing arguments from March 8th to 15th, 1967, the Court
handed down its opinion on November 7th, 1967.3
The present note will discuss the opinion of the Supreme Court
of Canada, with special reference to the style of the judgment and
to the legal-historical context in which it was handed down.
In a 7-0 single opinion, the Supreme Court of Canada agreed
with the federal government’s argument in its entirety, and followed
its logic quite closely. The first phase of the Court’s reasoning sought
to establish whether the area in dispute was part of the territory
of British Columbia as a colony.4 After a review of the history pre-
sented by both federal and provincial counsel, 5 the Court agreed
with British Columbia that
1. Before Confederation all unalienated lands in British Columbia including
minerals belonged to the Crown in right of the Colony of British Columbia;
[and]
1 As defined by the Territorial Sea and Fishing Zones Act, 13 Eliz. II, S.C.
1964-65, c. 22.
2 Following the definition in Article 1 of the Convention on the Continental
Shelf, U.N. Doc. A/Conf. 13/L55, which came into force June 16th, 1964.
8 Reported as Reference Re Ownership of Offshore Mineral Rights, (1968),
65 D.L.R. (2d) 853, [1967] S.C.R. 192. Future references to the text of the
judgment will be to the D.L.R. version.
4 The Court noted that British Columbia could have succeeded in its claim
only if it could have been found that “the solum was situate in British Columbia
in 1871.” (At p. 360).
5 At pp. 357-9.
McGILL LAW JOURNAL
[Vol. 14
2. After union with Canada such lands remained vested in the Crown
in right of the Province of British Columbia 6
but pointed out that the crucial question remained unanswered:
– whether the territorial sea was within the boundary of the Province of
British Columbia at the time of Confederation… The history of the
Province affords no assistance in settling this problem… 7
The Court then examined judicial opinions in the British Columbia
and Quebec Fisheries cases,8 but found that, there too, the main
question before it remained unanswered. 9 However, the judges
then took the decisive step of accepting the key federal argument:
that Regina V. Keyn ” could be interpreted as establishing the terri-
tory of the realm as ending at the low-water mark.’ 2 The Territorial
Waters Jurisdiction Act, 3 rather than overturning the Keyn decision,
was interpreted as seeking merely to redefine the criminal jurisdic-
tion of the Lord High Admiral in the three-mile belt, but without
affecting the juridical status of its underlying seabed as being land
outside the realm. 14 After an extensive review of relevant judicial
6At p. 360.
7 At pp. 360-1.
8 Attorney-General of British Columbia v. Attorney-General of Canada, [1914]
A.C. 153; Attorney-General of Canada v. Attorney-General of Quebec, [1921]
1 A.C. 416.
9 At pp. 361-2.
10 Agreeing with MacDonald, J., in Re Dominion Coal Co. Ltd. and the County
of Cape Breton, (1963), 40 D.L.R. (2d) 593, at p. 629.
11 (1876), 2 Ex. D. 63.
12 At p. 362. The conception that the three-mile belt is integrally part of the
realm is not uncommon, even though it involves some technical inconsistencies,
according to D.P. O’Connell, Australian Coastal Jurisdiction, in International
Law in Australia, ed. by O’Connell,
(Cited
hereinafter as “O’Connell, Australia”.)
(London, 1965), pp. 248, 252.
that his
O’Connell also notes
interpretation of Regina v. Keyn was
“supported… by decisions of other national courts of more recent date, though
apparently not by the International Law Commission and the opinions of the
jurists.” Ibid., p. 248. Professor O’Connell’s interpretation is adopted throughout
in the Offshore Mineral Rights opinion.
13 41-42 Vict., 1878, c. 73.
14 At pp. 362, 364. Implicitly following the logic suggested in O’Connell,
Australia, at p. 251. Cf. Ivan L. Head, The Legal Clamour Over Canadian Off-
shore Minerals, (1967), 5 Alta. Law Rev. 312, at pp. 321-323.
As an illustration of this rule, the Court suggested the hypothetical example
of an offence committed within three miles of the mainland of British Columbia
in 1879; jurisdiction would have fallen to English (not Canadian) courts.
No. 3]
NOTES
pronouncements, distinguishing the matters covered from the ones
present in the instant case, 15 the Court concluded that lands under
the territorial sea were not within the realm of the colony of British
Columbia.’ 6 Although the Imperial Crown might have conferred
upon its colony of British Columbia those international rights which
it possessed in parts or all of the territorial sea adjacent to that
colony,’ 7 the Court found that the historical record of the colony
did not disclose any such action.’ 8
In the post-Union period, British Columbia could have acquired
new territory only by an act of the Canadian Parliament pursuant
to section 3 of the British North America Act, 1871.19 The Court
noted that no alteration had, in fact, occurred by this procedure,
and added for greater certainty that there was “no other provision
for extending the limits in any other way.” 20
International law, and not common law, was the law applicable
to the disputed areas.21 Jurisdictional rights in the area, bestowed
15 See infra at p. 480. Cases: Attorney-General v. Chambers, (1854), 4
De G. M. & G. 206, 43 E.R. 486; Gammell v. Woods and Forests Commissioners,
(1859), 3 Macq. 419; Whitstable Fishers v. Gann, (1861), 11 C.B. (N.S.) 387,
142 E.R. 847; [on appeal] Gann v. Whitstable Fishers, (1865), 11 H.L.C. 192,
11 E.R. 1305; Lord Advocate v. Clyde Navigation Trustees, (1891), 19 Rettie
174; Lord Advocate v. Wemyss, [1,900] A.C. 4.8; Secretary of State for India V.
Chelikani Rama Rao, (1916), 32 T.L.R. 652; R. v. Burt, (1932), 5 M.P.R. 112.
Also cited: Cornwall Submarine Mines Act, 21-22 Vict., 1858, c. 109.
16 At p. 373. Accepting this federal argument, the Court also cited a dictum
in the British Columbia Fisheries case to disqualify as “obsolete” the international
law principle (viz., that there was no difference between Crown land above
or below the low-water mark) relied upon by the provincial argument [at pp.
366, 370]. In addition, the de facto examples of legislative claims to submarine
areas were regarded by the Court as individual occurrences not establishing any
general principle of ownership in the three-mile belt.
17 As it had done, e.g., in the case of Conception Bay, Nfld. Cf. The Direct
2
United States Cable Co. v. The Anglo-American Telegraph Co.,
App. Cas. 394.
18 At p. 367.
‘9 34-35 Vict., 1871, c. 28: “The Parliament of Canada may from time to
time, with the consent of the Legislature of any Province… increase, diminish,
or otherwise alter the limits of such province.”
(1877),
2oAt p. 360. Perhaps this was the Court’s way of casting doubt on British
Columbia Minute in Council #3750 of Dec. 1, 1966, which laid claim to the
continental shelf.
21Accepting the distinction proposed by the federal argument, separating
(a)
the rights of the Crown under common law, which extend only to the
limits of the realm (which, in turn, ends at the low-water mark), from (b) the
rights of a sovereign State under public international
law, which may be
McGILL LAW JOURNAL
[Vol. 14
by international law, were exercised by Britain prior to the acqui-
sition of Canadian sovereignty, 22 but with the advent of the latter,
Canada earned the ability to acquire “new areas of territory and
new jurisdictional rights which may be available under interna-
tional law.” 23 The Court recognized the combination of the Territorial
Sea and Fishing Zones Act, 24 and the Geneva Convention of 195825 as
having the effect of giving to Canada “sovereignty over a territorial
sea three nautical miles wide. It is part of the territory of Canada.’ 2
Once lands under the territorial sea were established as property
in Canada and not in British Columbia, exclusive jurisdiction, in-
cluding the right to explore and exploit mineral resources in this
area, was easily found for Canada. British Columbia, the Court held,
had no legislative jurisdiction; lands under the territorial sea did
not come within any enumerated head of section 92 of the British
North America Act since these were outside the boundaries of the
province.27 Canada, on the other hand, was granted full rights in
the area, either under Section 91 (1A) or under the residual power
of Section 91. The subject-matter not falling to the province under
any head of Section 92 was therefore to be regarded as “a matter
affecting Canada generally and covered by the expression ‘the peace,
order and good government of Canada’.” 28
The mineral resources of the lands underlying the territorial sea are of
concern to Canada as a whole and go beyond local or provincial concern
or interests. 2 9
Moreover, the Court held that
the rights in the territorial sea arise by international law and depend upon
recognition by other sovereign States. Legislative jurisdiction in relation
to the lands in question belongs to Canada which is a sovereign State
recognized by international law and thus able to enter into arrangements
with other States respecting the rights in the territorial sea. 3 0
exercised by a sovereign State beyond the limits of the realm to include its
territorial sea. See: Factum of the Attorney-General of Canada, p. 7, paras.
13-15.
22At pp. 373-4.
23At p. 375. Citing, as an example, international recognition of Canada’s
rights in the territorial sea off British Columbia’s mainland: Pacific Salmon
Fisheries Convention Act, 5-6 Eliz. II, S.C. 1957, c. 11; Pacific Fur Seals Con-
vention Act, 5-6 Eliz. II, S.C. 1957, c. 31.
24 13 Eliz. II, S.C. 1964-65, c. 22.
2 5 Convention on the Territorial Sea and Contiguous Zone, U.N. Doc. A/Conf.
13/L52, which came into force Sept. 10, 1964.
26 At p. 375.
27 Ibid.
28 At pp. 375-76.
29 At p. 376.
3o Ibid.
No. 3]
NOTES
As for jurisdiction over and the right to explore and exploit the
resources of the continental shelf, the Court cited the Convention
on the Continental Shelf 31 as being the law in force concerning this
area, and pointed to the practice of other sovereign states in rela-
tion to it.2 The Court concluded that
(1) The continental shelf is outside the boundaries of British Columbia, and
(2) Canada is the sovereign State which will be recognized by international
law as having the rights stated in the Convention of 1958, and it is
Canada, not the Province of British Columbia, that will have to answer
the claims of other members of
the international community for
breach of the obligations and responsibilities imposed by the Con-
vention. 83
There is no historical, legal or constitutional basis upon which the
Province of British Columbia could claim the right to explore and exploit
or claim
legislative jurisdiction over the resources of the continental
shelf.34
II
Intimately related to the above abstract reasoning is the broader
and more nebulous “style” in which the legal arguments are couched,
the
interaction, in the judicial mind, of rules of law, facts, and policies, and
the process of choice as to each one of these… [:] which particular rules
are… designated as relevant, which facts as material, and which policies
as governing.3 5
Rules and principles of legal reasoning are not capable of a
completely unambiguous application. Russell has urged scholars “to
discover.., where pure legal analysis ends and value judgments,
which cannot themselves be determined by such analysis, begin.” 30
3′ U.N. Doc. A/Conf. 13/L55, which came into force June 10th, 1964.
3 2 Citing legislation by the United States, the United Kingdom, and New
Zealand in relation to the continental shelf (at pp. 379-80).
331van Head lists ten responsibilities and obligations derived from a reading
of Articles 3, 4, 5(1), 5(5), 5(6), 5(7), and 5(8) of the Convention, loo. cit.,
at pp. 325-6.
34 At p. 380. “1958, or perhaps 1964,… marks the maturation of the concept
of the continental shelf and its full acceptance by the international community.
Public statements by some British Columbia spokesmen to the effect that the
shelf ‘always has’ been British Columbia’s are inconsistent with this fact…
[S]tatements [etc.] with respect to the shelf and written prior to 1959 remain
authoritative only to the extent that they are not inconsistent with the terms
of the [Geneva, 1958] Convention.” Ivan Head, loc. cit., pp. 319-20.
35 McWhinney, Judicial Review in the English-Speaking World, 3rd ed.,
(Toronto, 1965), p. 231.
386P. Russell (ed.), Leading Constitutional Decisions (Toronto, 1965), p. xxiii.
(Hereinafter cited as “Russell, Constitutional”).
McGILL LAW JOURNAL
[Vol. 14
By examining the judicial art of selecting, ignoring, and distin-
guishing cases, 37 one can attempt to assess the scope of “discretion”
in the hands of the judges.38 The following discussion tends to ac-
cept the “Legal Realism” notion of “judge-made law”, i.e., the idea
that “under the guise of interpretation, courts do take sides on
‘burning issues’.” 39
Owing to the complexity of the Offshore Mineral Rights refer-
ence, the judges, it is suggested, had a rather broad discretion to
assign varying degrees of importance to several types of considera-
tions, including:
(1) adherence to precedents and statute law;
(2) the applicability of international law;
(3) the maintenance of the “federal principle” as they defined it;
(4) the relevance of the examples of other states; and
(5) “practical” political or administrative considerations.
It is the combination of the relative weight attached to each of
these factors that determined both the outcome and the style of the
Court’s opinion. These considerations will now be discussed indi-
vidually.
(1)
Russell has noted that
[t]he issues that come before the court are always in some sense unique
so that the judges will usually be able to “distinguish” previous decisions
which they do not wish to follow as turning on grounds different from
those in the case at hand. 40
37″Given rival precedents on the same general question and
the art of
distinguishing previous cases as different from the one at hand, it is entirely
possible for a court, while looking exclusively to past cases for the premises
of its reasoning, in fact so to select, ignore and distinguish cases that it
is
law.” P.H. Russell, The
able to evolve its own doctrines of constitutional
Supreme Court’s Interpretation of the Constitution since 1949, in Politics:
Canada, ed. by Paul Fox, (Toronto, 196Z), p. 64, at p. 78. (Hereinafter referred
to as “Russell, Politics”). Cf. Russell, Constitutional, p. xxi; McWhinney,
op. cit., p. 74.
38″A degree of discretion is inherent in the courts’… function of applying
the terms of a federal constitution to the enactments of national and local
legislatures… In the application of any law to particular circumstances there
is always… room for judicial discretion.” Russell, Constitutional, pp. xiv-xvi.
39 Cecil A. Wright, Foreword to McWhinney, op. cit., p. viii. Wright adds:
(at p. ix) “The difficulty here is that many judges honestly believe that they
are not participating in policy-making or policy-enunciation…” Cf. MeWhinney,
op. cit., p. 230.
40 Russell, Constitutional, p. xxi. Cf. notes 37 and 38, supra.
No. 3]
NOTES
In the Offshore Mineral Rights reference
the Court was con-
fronted with rival arguments often pointing to the same precedents
for authority.41 Previous cases, then, were unclear enough so that
neither argument had to be favoured “inevitably” by the Court.
Faced with two equally plausible and internally consistent lines of
reasoning,41a the Court chose to accept one completely (viz., that the
realm ends at the low-water mark) and to reject the other as “obso-
lete” (viz., that there is no difference between Crown lands above
or below that mark in the three-mile zone). As noted above, this
choice was fundamental to the federal “victory”. The practice of
distinguishing cases as being different and not applicable was used
by the Court to give itself the discretion to choose one of the two
conflicting lines of precedent headed by Regina v. Keyn.42
(2)
The international law of the sea, known to be in a state of
evolution and growth,43 is regarded by some as too tenuous to offer
firm guiding principles for domestic constitutional law. Indeed,
Ontario had argued before the Court on March 14, 1967 that, because
there was a “difference of opinion under international law [as] to
ownership of the sea bed ….
the courts should [therefore] steer
away from that aspect.” 44 Head agrees that the question, “in the
final analysis, ha[d] little to do with international law”, but went
on to stress that it did “have much to do with international rela-
tions,” pointing out that the question could not “be decided in a
judicial vacuum.” 45
The judges of the Supreme Court, it seems, felt that international
law offered no problems, and did not shy away from pronouncing
on it. The Court’s awareness of the pertinence of international rela-
41 Eleven, out of a total of thirty, authorities cited by British Columbia are
also cited as authorities for the federal argument.
41a See, e.g., notes 12 -and 16, supra.
42 Note 12, supra. The question of choosing alternative lines of precedent in
relation to the Labour Conventions case arises infra, at pages 489-490, 491-492.
43 See, e.g., Head, loc. cit., p. 317; O’Connell, Problems of Australian Coastal
Jurisdiction, (1958), 34 B.Y.B.I.L. 198, at p. 256 (cited below as “O’Connell,
B.Y.B.I.L.”).
44 Quoted in Vancouver Sun, Mar. 14, 1967.
45 Head, loc. cit., p. 3,23
[emphasis added]. Head also cites the Fisheries
cases as illustrating a judicial awareness of international ramifications. Ibid.,
p. 324. Cf. the observations of Mr. Justice Laskin, infra, note 67. The current
dispute with France over St. Pierre and Miquelon’s continental shelf may
have made international-relations considerations more relevant to the decision.
McGILL LAW JOURNAL
[Vol. 14
tions was also unambiguous.40 Its decision to accept so unqualifiedly
Canada’s reliance upon international responsibility as a valid argu-
ment was a major discretionary element in the style of the opinion. 47
(3)
O’Connell has suggested that
[tihe way a court will approach the problem of maritime boundary will
in the last resort depend upon its attitude to federalism as a theory and
system of government. 48
The Nova Scotia Inter-delegation case 49 provides a rare example
of a Canadian court explicity deciding an action was unconstitutional
because it was “utterly foreign to the conception of federal organ-
ization.”50 The way in which the Court may have related the ques-
tion of offshore mineral rights to its theory of federalism was
not stated openly; the judges did not find it necessary to base their
arguments explicitly on such philisophies. However, their views on
the federal distribution of powers, if not explicit, are clear enough;
these are discussed below.
(4)
It would not have been difficult for the Court to have rejected
federal arguments referring to the situation in the United States as
irrelevant on the grounds that the American constitutional structure,
46 At pp. 376, 380.
47 By accepting, say, Ontario’s plea to ignore (or minimize) the applicability
of international law to the case, the Court could have avoided “penalizing”
British Columbia for its lack of sovereign status. “International recognition
[argued the British Columbia Factum] of the right to explore and exploit
beyond the three-mile belt does not affect, in any way [1] British Columbia’s
pre-Confederation right in the property [of the continental shelf] or [2] the
division of legislative powers under the British North America Act… Inter-
nationally the test of entitlement to the right of exploration and exploitation
in the shelf is the ability to come within the meaning of the words ‘coastal
state’. This Canada can do, solely because British Columbia is within Confeder-
ation. Domestically, British Columbia is the ‘coastal state’.” Factum, p. 24
[emphasis original].
4 8 0’Connell, B.Y.B.I.L., p. 259.
49 [1950] 4 D.L.R. (2d) 369.
50 Quoted in Russell, Politics, p. 71. Russell also gives a similar instance in
the Local Prohibitions case (Attorney-General of Ontario v. Attorney-General
of Canada, [1896] A.C. 348, at p. 360): “To attach any other construction to the
general power… would, in their Lordships’ opinion, not only be contrary to
the intendment of the Act, but would practically destroy the autonomy of the
provinces.” Constitutional, p. xviii.
No. 38]
NOTES
division of powers, and judicial tradition were different from our
own.51 On the other hand, McWhinney has argued that
indeed inspiration, in the present-day practice of
The major influence,
judicial review in the Commonwealth countries, has been the Supreme
Court of the United States. This at first sight might seem rather surprising
in view of the frequently expressed, official judicial distaste … for the
citation of American constitutional precedents in argument before their
Supreme Courts, or a fortiori for any reliance on those American…
precedents in the actual judicial opinions deciding cases … Whatever its
origins, however, the indicia of American legal influence in the Common-
wealth countries are clear and unmistakable now in Commonwealth Supreme
Court opinions –
in the noticeably increased policy-orientation of judicial
decision-making and the interests-balancing approach in general…52
Without placing heavy and direct reliance on the American experi-
ence, the Court nevertheless accepted the federal argument which
pointed to the Truman Proclamation and the United States Supreme
Court decisions to illustrate the relevance of international law to
the domestic dispute.53
(5)
The “practical policy” nature of the judicial process presents
perhaps the most controversial problems in assessing judicial inter-
pretation. Closely related to the first factor discussed above, this
aspect is seen by McWhinney as follows:
… we must face up squarely to the question of whether judges legislate,
in the sense of making conscious choices between conflicting policy alterna-
tives … It is not without significance that the controversy over the Privy
Council’s interpretation of the B.N.A. Act should all too frequently proceed
in the form of a dispute over alternative rules of statutory construction,
rather than in terms of the actual consequences to Canadian national life
flowing from the individual decisions.
The need for a critical examination of the values employed by judges
in making their decisions has been obscured all too frequently by much
unproductive wrangling over the formulae in which the judges subsequently
embody those values, although the varied members of the Privy Council
have occasionally adverted to the consequences of their decisions.54
G1Head notes that there are “important historical and constitutional differ-
ences.” Loc. cit., p. 324. Cf. Edwin Black, Offshore Oil Troubles the Waters,
(1965-66), 72 Queen’s Quarterly, pp. 592-594.
2 MeWhinney, op. cit., pp. 228-9.
53 Cf. Point 2, discussed supra, pp. 481-482. “[T]he words of the Supreme
Court of the United States, which reflect [the] concern [for the] …
inter-
national responsibility [of] the United States, are valuable as illustrative of
the international consequences which should, it
is submitted, be considered
by the Supreme Court of Canada in the present Reference.” Head, loc. cit.,
p. 324.
54 McWhinney, op. cit., p. 69. Cf. Russell, Constitutional, p. xix.
McGILL LAW JOURNAL
[Vol. 14
the Canadian tradition, the judges in the Offshore Mineral
In
Rights case chose not to pronounce explicitly on their value prefer-
ences and recognition of the practical consequences of their opinion.
The Court’s concern for the international consequences of its decision
is an important exception, of course. In terms of the domestic policy
implications, however, the Court was silent, although the judges
were fully aware of the administrative problems involved:
[federal counsel] Carson pointed
When
the present circumstances
whereby different exploration companies have rights granted separately by
Ottawa and Victoria for overlapping areas, Mr. Justice J.R. Cartwright 64a
said [this] pointed up the need for the court’s opinion. 5
to
Overlapping permits presented only one of many practical prob-
lems. Black suggested the difficulties that would result from a Court
opinion giving provincial jurisdiction within the three-mile belt and
federal jurisdiction beyond. 56 Former federal Resources Minister
Pepin has referred to
the awful confusion coming from unco-ordinated initiatives in this domain.
Suppose, for instance, in defense, which is a federal matter, there is a
conflict of jurisdiction between undersea operations and oil drilling? Same
for seashore pollution, which only the federal level of government
is
competent to solve with foreign powers. 57
This implicit axgument pointing to the “intolerable” state of affairs
that would result if the Court were to find for British Columbia
is reminiscent of the Johannesson decision, where Mr. Justice Kellock
explicitly based part of his reasoning against provincial regulation
of aerodromes on his estimation of the “intolerable” situation that
would have ensued had airlines been found to be subject to local
regulation.5″ However, in the Offshore Mineral Rights decision the
Court found it unnecessary to refer to political and administrative
consequences, since it was able to rationalize its decision by other
interpretation and international-
principles, viz., historical-legal
relations implications.
One further feature of the Court’s opinion deserves comment. If
the historicallegalism of the decision renders the Court “conserva-
54aAs he then was.
55 Victoria Daily Times, Mar. 11, 1967. See also Vancouver Sun, Mar. 11, 1967.
56 Black, loc. cit., at p. 601.
57 L’Avenir de Sept-Iles Journal, Nov. 14, 1967. M. Pepin, whose Department
is one especially vexed with the complications of overlapping jurisdiction (of
three levels of government), also pointed to the complexities of international
two mentioned above. See
relations, navigation, fisheries, as well as the
Le Soleil, 13 nov. 1967 (10).
5SJohannesson v. West St. Paul, [1952] 1 S.C.R. 292; discussed in Russell,
Politics, p. 79.
No. 3]
NOTES
tive” or “restrained” by some standards, the same cannot be said
in terms of its having handed down a rare unanimous and joint
opinion. 59 This is noteworthy when one realizes that between 1949
and 1960 the thirty-seven constitutional cases decided by the Court
contained an average of four (dissenting or concurring) individual
opinions.60 Thus, the “strength” of the pro-federal opinion cannot
be denied. a
O’Connell believed that, in the United States “tidelands” cases,
the United States Supreme Court’s decisions were based “less on
precedent than on high .policy;” 61 in that country, this “style” of
opinion was natural. Since it was hard to find any “analytical an-
swer” to the question of property in the lands below the territorial
sea generally, he concluded that “the problem might be solved in
terms of power and responsibilities rather than in terms of pos-
session.” 62 On the other hand, he suggested, an Australian court
“would find great difficulty in deciding the question…
in any
terms other than ownership…, 6 3 The Canadian Court, interestingly
enough, did a little of both. First it undertook to apply historical-
legal analysis to resolve the question of property in the seabed.
Once this was clearly established, the Court was then able to rely
also on the international ramifications of offshore jurisdiction.
Proponents of “judicial activism” –
usually taking the United
States Supreme Court as the example to be followed – were regular
critics of the Judicial Committee of the Privy Council for being too
59 Of the 53 constitutional cases decided by the Court between 1950 and 1965,
only ten were single “Judgments of the Court”, signed by only one Justice. See:
Stephen R. Mitchell, The Supreme Court of Canada since the Abolition of Appeals
to the Judicial Committee of the Privy Council: A Quantitative Analysis (Paper
prepared for presentation to the Meeting of the Canadian Political Science Asso-
ciation, June 7, 19.67, Carleton University, Ottawa), p. 12.
One recent such case –
significantly pro-federal in outcome –
is Munro v.
(2d) 753. Discussed, infra,
National Capital Commission, (1966), 57 D.L.R.
note 92.
60 Russell, Politics, loc. cit.
6oa Mitchell, however, noting a “marked increase” in unanimous “Judgments of
the Court” since 1958, suggests that this might be more a -response to “an
increased work load” than a result of a growing degree of unanimity. Op. cit.,
p. 9.
61 O’Connell, Australia, p. 249. He added that: “views on policy will differ
according to the prevalence on the bench of federalist or unionist opinions.”
Cf. “In the so-called tidelands cases the United States Supreme Court did
indeed attempt some doctrine, but it was no more than -a superstructure
to an essentially policy decision.” O’Connell, B.Y.B.I.L., p. 259.
62 O’Connell, Australia, p. 259; cf., ibid., pp. 249, 291.
0 Ibid., p. 260.
McGILL LAW JOURNAL
[Vol. 14
“literalistic” (narrow statutory construction) and “legalistic” (bound
by precedent) in its interpretation of the Canadian constitution.04
This criticism of “style” usually coincided with the criticism of
the resultant trend favouring provincial legislative powers at the
expense of the central authority. 65 Assessing the decisions of the
Supreme Court of Canada from 1949 to 1960, Russell noted that,
while neither a distinctive “literal” nor a distinctive “liberal”
approach had emerged, there had, nevertheless, been “an increasing
degree of pragmatism in the court’s interpretation of the division
of powers.”65a The Offshore Mineral Rights opinion seems to follow
this latter trend. Although, on the surface, heavy reliance on
historical and legal precedent may suggest that the Court was
“oblivious to political and economic realities,” 6 this would be, it is
submitted, a shallow conclusion. Both the Court’s recognition of
Canada’s role in international relations,0 7 and its liberal inter-
pretation of the residual power by designating offshore development
as a “matter affecting Canada generally,” going “beyond local or
provincial interests or concern, ‘” s illustrate that the judges were
at least implicitly aware of the political and economic context
surrounding the purely legal issues submitted to them.00
64 See, e.g., Russell, Constitutional, p. xix, and Politics, pp. 77-78; Vincent
MacDonald, The Canadian Constitution after 70 Years, (1937), 15 Can. Bar
Rev. 401, at pp. 419 et seq., and The Constitution in a Changing World, (1948),
26 Can. Bar Rev. 21.
65 See, e.g., McWhinney, op. cit., p. 69; Russell, Constitutional, p. xix.
65a Russell, Politics, p. 79.
66 <[O]n ne manque pas de signaler jusqu'h quel point la Cour fait abstraction,
en 6mettant cette opinion, des circonstances politiques qui prdvalent au pays.
On rappelle h cet 6gard que le Conseil priv6 s'ajustait beaucoup plus librement
A des situations politiques.>> Pierre O’Neill, Le Devoir, 8 nov. 1967.
67 See: Head, loc. cit., passim. Laskin has pointed to the decisions in Pronto
Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862,
In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54, and
In re Regulation and Control of Radio Communication in Canada, [1982] A.C.
304 as demonstrating “not only a judicial awareness of the international impact
on domestic regulatory schemes, but [also] a disposition to give that impact
constitutional weight.” Bora Laskin, Some International Legal Implications
of Federalism: The Experience of Canada, in Federalism and the New Nations
of Africa, ed. by David P. Currie, (Chicago, 1964), 389, at p. 410. Cf. ,the other
point of view, note 47, supra.
GsAt pp. 375-76.
69 Cf.: “One cannot complain…
failed
to
introduce into its interpretation of the constitutional values and beliefs extrinsic
to the bare words of the act… [But] one is struck by the relative lack of
thoughful articulation of the real problems and alternatives inherent in the
adaptation of a written constitution to a dynamic society.” Russell, Constitutional,
that the Judicial Committee
No. 3]
NOTES
III
The Federal argument for jurisdiction over offshore resources was
so firmly based on the contention that the lands in question were
beyond the boundaries of British Columbia that it “bypassed” seeking
a pronouncement on an anomalous aspect of the constitution, viz.,
the hindrance to Canada’s ability to participate fully in the inter-
national community caused by a judicial pronouncement depriving
it, in the name of provincial rights, of the legislative ability to
implement treaties. 70 O’Connell notes, with special reference
to
offshore rights disputes:
judicial decision
it is difficult to state with clarity the effect of an expanding and changing
international law of the sea upon disputed Federal-State maritime claims…
in the areas where it occurs has been
So far [1958]
tentative, and no real doctrine or theory has emerged … At bottom the
problem is one of collision between two incompatible doctrines, [viz.,] the
in a federal system, and their
sovereignty of the constituent elements
lack of responsibility in international relations. 71
This intersection of domestic and international law does not
present an equally difficult problem to all federal states. In consti-
federations like the United States, the
tutionally “centralized”
central government may have, in addition to the normal executive
power to conclude treaties, the legislative ability to implement these
agreements. In the United States this power, although infrequently
used, 72 is nevertheless firmly rooted in the Constitution. 73 However,
pp. xviii-xix. Brossard, in his criticism of the Offshore Mineral Rights opinion,
labelled the Court as c plus ou moins prisonni~re de sa conception 6troite du
Common Law ;, and branded its opinion as taussi discutable sur le plan juridique
que sur le plan politique.: He also suggested that the opinion was cnettement
politique.m, Le Devoir, 22 nov. 1967.
70For a general discussion of this problem, see Laskin, loc. cit., pp. 389-414;
F.H. Soward, External Affairs and Canadian Federalism, in Lower, Scott,
et al., Evolving Canadian Federalism, (Durham, North Carolina, 1058), pp.
126-180.
71 O’Connell, B.Y.B.I.L. at pp. 256, 259.
72As measured by the ratifications of International Labor Organization
conventions. As of June 1, 1966, the United States had implemented only 7
out of a possible 124 conventions. Cf. Canada 21, Australia 26, India 30, and
Mexico (the highest number for a federal state) 47. International Labor
Organization, “Official Chart of Ratifications”, June 1, 1966.
73″ … all treaties made under the authority of the United States shall be
the Supreme Law of the Land; and the judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the contrary
(Art. IV, s. 2). In addition, Congress has the authority
notwithstanding.”
“to make laws which shall be necessary and proper for carrying into execution”
any of the powers vested in it. (Art. I, s. 8). See Robert R. Bowie, The Treaty
Power in the Federal System: The Experience of the United States, in Currie,
op. cit., p. 371, at p. 375.
MeGILL LAW JOURNAL
[Vol. 14
the power to implement treaties is not considered an unlimited grant
of authority:
The Supreme Court… has stated flatly and repeatedly that the treaty
power does not extend “so far as to authorize what the Constitution forbids.”
… The treaty power may not be used to accomplish a domestic purpose
when there is no genuine and sufficient justification for an international
agreement containing the provisions in question. 74
In Australia, the “foreign affairs” power vested in the Common-
wealth is deemed to give it a capacity for treaty-implementing
legislation. 75 This power, too, is restricted by the discretion resting
with the courts to determine whether the implementing legislation
is a bona fide attempt to give effect to an international agreement. 70
It should be noted that
[tihe adherence to and ratification of [a] convention by the Commonwealth
has not been considered to vest in the Commonwealth a blanket power…
nor to deprive the States of their pre-existing legislative power. 77
The treaty-implementing power has been the subject of much
debate and commentary in Canada. 7 Most of this debate has brought
forth arguments strongly in favour of a departure from the classic
decision of the Privy Council in the Labour Conventions case of
1937.79 The problem arises from section 132 of the British North
America Act, which states that
The Parliament and Government of Canada shall have all Powers necessary
or proper for performing the Obligations of Canada or of any Province
thereof, as Part of the British Empire, towards Foreign Countries, arising
under Treaties between the Empire and such Foreign Countries.
74 Bowie, loc. cit., p. 384.
75Australian Constitution, sec. 51 (xxix). See J.P. Nettl, The Treaty En-
foreement Power in Federal Constitutions, (1950), 28 Can. Bar Rev. 1051, at
p. 1053.
76 Nettl, loc. cit., at pp. 1056, 1060.
77 R.D. Lumb, The Law of the Sea and Australian Offshore Areas, (St. Lucia,
1966), p. 60. Although the issue has never been brought before the Australian
courts, Lumb suggests that there is “strong evidence to support the view that
colonial sovereignty extended to the three-ile limit” (ibid., p. 57; cf. ibid., p. 61).
“Property rights of the states in the seabed have not been ousted by the
to international conventions. Ibid., p. 60.
adherence of the Commonwealth”
Cf. O’Connell, Australia, at p. 260.
7 8 See: Laskin, loc. cit.; Soward, loc. cit.; Nettl, too. cit.; R.J. Matas, Treaty-
Making in Canada, (1947), 25 Can. Bar Rev. 458; Lord Wright of Durley,
Tribute to Sir Lyman Poore Duff, (1955), 33 Can. Bar Rev. 1123; G.J.
Szablowski, Creation and Implementation of Treaties in Canada, (1956), 34
Can. Bar Rev. 28; Edward McWhinney, Comment, (1957), 35 Can. Bar Rev.
842; MacDonald, The Canadian Constitution After Seventy Years, loc. cit.;
F.R. Scott, Centralization and Decentralization in Canadian Federalism, (1951),
29 Can. Bar Rev. 1904, at p. 111.2.
79 Attorney-General of Canada v. Attorney-General of Ontario, [1937] A.C. 326.
No. 3]
NOTES
Canada has ceased concluding treaties “as part of the British
Empire” since the 1919-31 period, and the “British Empire” no
longer exists. Subsequent judicial interpretation has rendered this
section inoperative, and thus created a lacuna in the conduct of
foreign affairs. In the Labour Conventions decision, Lord Atkin
stated, in part:
the Dominion and
the Provinces,
It is impossible to strain the Section [132] so as to cover the uncontemplated
event… For the purposes of… the distribution of legislative powers
between
there is no such thing as
treaty legislation as such. The distribution is based on classes of subjects,
and as a treaty deals with a particular class of subjects so will the legislative
power of performing it be ascertained.80
The criticism by legal scholars that followed this pronouncement
could easily form an entire study unto itself, and cannot be given
full and proper treatment here; let it suffice to summarize the
arguments broadly. They all underline the fact that in Canada
“federal executive
left dangling…
without the complementing legislative power of implementation,”’81
and suggest, alternatively, that:
treaty-making power
[is]
A. The 1937 decision could just as easily (and should) have
followed the logic of the 1932 Radio case82 in allowing the residual
power of section 91 to fill the void created by the inoperativeness
of section 132, as a logical “heir”; in any case, later decisions
should not feel bound by Lord Atkin’s pronouncement, and can
easily revert back to the alternative line of precedent flowing
from 1932.83
B. The defunct section 132 should be repealed and replaced by
an amended clause that would fully empower Parliament to pass
implementing legislation.84
C. Either with or without such amendment (in the latter case,
using an expanded interpretation of the “Peace, Order and Good
Government” clause), the courts should assume the responsibility,
as they do in Australia and in the United States, for deciding
the validity of imlementing legislation. This would protect the
provinces from unwarranted intrusion by the federal government
via dubious treaty-legislation, while at the same time restore
80 [1937] A.C. 326, at pp. 350-1.
81 Laskin, loc. cit., p. 396. Cf. Soward, loc. cit., pp. 139-40.
82 [19321 A.C. 304.
83 Lord Wright, loc. cit.; Szablowski, loc. cit., p. 59.
84 Matas, loc. cit.; Nettl, loc. cit.; Szablowski, loc. cit.; Soward, loc. cit., pp.
140-1.
McGILL LAW JOURNAL
[Vol. 14
to Canada a more certain position in concluding international
agreements 85
This dimunition of federal authority vis-a-vis provincial power
should also be seen in the larger context of the general provincialist
interpretation of the division of legislative powers given by the
Privy Council prior to the late 1940’s. The intended (by the “plain
wording” approach) federal residual power in section 91 became,
through judicial interpretation, an “emergency power” only, while
section 92(13), “Property and Civil Rights in the Province,” became
the real, or co-equal, 88 residual clause. 87
However, the general modern-day trend, with the Supreme Court
of Canada as court of final appeal, seems to be in the other direction.
Some commentators have detected that certain decisions since the
Labour Conventions case can be interpreted as gradually shifting
the “federal balance” back towards the central government. This
can be seen, for example, in the expansion of the residual “Peace,
Order and Good Government” clause in such a way as to minimize
the difficulties imposed by the “loss” of section 132.88 In the Off-
shore Mineral Rights case, the federal government sought, with
complete success, to take advantage of this trend so as to cover
85 McWhinney, loc. cit.,; Szablowski, loc. cit. One commentator, however, has
argued that: “To a large extent, the central government is unaffected by the
constitutional restriction of the Labour Conventions case. Defense (with its wide
possibilities of nationally directed policies), monetary control, a plenary taxing
and a spending power, foreign trade, fisheries, and extraterritorial jurisdiction
(relevant to high seas questions) are within its exclusive authority, and they
go a long way to give it legal freedom to treat in vital areas of international
relations, and consequently to impose domestic obligations.” Laskin, loc. cit.,
p. 400.
86James Hurley has suggested that “it might even be justified to say that
in Canada residual powers have been divided between the federal and the
unit governments, with the courts deciding at any given time which shall
carry the day.” J.R. Hurley, Federalism, Co-ordinate Status and the Canadian
Situation, (1966), 73 Queen’s Quarterly, pp. 156-7.
87″The just-short-of-unitary state that MacDonald thought he had achieved
was cut down to something just short of a confederacy. The power to make
laws for the peace, order and good government of Canada became a power
not to make laws for the peace, order and good government of Canada, unless
every other expedient had been exhausted and dire emergency threatened.”
A.R.M. Lower, Theories of Canadian Federalism, in Lower, Scott, et al., op cit., at
p. 40; J.A. Corry, Constitutional Trends and Federalism, in ibid., at p. 118;
McWhinney, op. cit., at pp. 64-5; Jean Betz, Les Attitudes changeantes du
Qudbec d l’endroit de la Constitution de 1867, in Cr6peau and Macpherson, The
Future of Canadian Federalism, (Toronto, 1065), p. 119.
88 Szablowski, loc. cit., p. 59; Russell, Constitutional, pp. 135-6, and Politics,
at pp. 66-8; Black, loc. cit., at pp. 594-5.
No. 3]
NOTES
offshore jurisdiction. Claiming that the matter was “of concern
to Canada as a whole” and “beyond local or provincial concern or
interest,” 89
the federal argument distinctly echoed the dicta of
Lord Simon in the Canada Temperance Federation case9 0 and Mr.
Justice Kellock in the Johannesson case. 91 The federal argument
further invoked the more recent and important Munro case. 92
The federal government argued for the domestic legislative power
to cover rights which it had acquired by international convention,
basing its claim on the contention that it now possessed property
which lay outside the province, and ignoring the Labour Conventions
decision. British Columbia, on the other hand, invoked this very
case in its defence, contending that international law did not alter
the domestic law of the land. 93 In their decision, the judges saw
that they could resolve the issue without being forced to either
overrule or endorse the Labour Conventions decision. Because, and
only because, the disputed areas were found to be outside the
boundaries of British Columbia, no such pronouncement was needed.
The dispute over offshore jurisdiction, once ownership lay in Canada,
was no longer a question of valid international law rights versus
valid provincial rights enjoyed under the constitutional division of
89 Factum of the Attorney-General of Canada, p. 26 (para. 75). Cf. judgment
at pp. 375-6.
0 Attorney-General of Ontario v. Canada Temperance Federation, [1946]
A.C. 193, at p. 205; the “true test” was “if… it goes beyond local or provincial
concern or interests and must from its inherent nature concern the Dominion
as a whole.”
92 (1966),
57 D.L.R.
(2d)
91 [1952] 1 S.C.R. 292. Mr. Justice Kellock revived the logic of the Radio
case by deciding for federal jurisdiction on the grounds that aeronautics went
“beyond local or provincial concern because it has attained such dimensions
as to effect the body politic of Canada.”
following
753. Explicitly
the Radio, Canada
Temperance Federation, and Johannesson cases, Mr. Justice Cartwright gave
the Court’s opinion that the subject-matter of planning a national capital,
being under neither list of enumerated heads (sections 9.1 or 92), was therefore
to be considered as coming under the residual power of section 91. He found
it “difficult to suggest a subject-matter of legislation which more clearly
goes beyond local or provincial interests and is the concern of Canada as a
whole…” Despite the fact that the exercise of expropriatory powers under
the National Capital Act would inevitably affect the “civil rights” of residents
in the provinces, “once it has been determined that the matter in relation to
which the act is passed is one which falls within the power of Parliament,
it is no objection to its validity that its operation will affect civil rights in the
Provinces.” (At p. 759).
9 3 Factum of the Attorney-General of British Columbia, p. 21. Cf. note 47 supra.
McGILL LAW JOURNAL
[Vol. 14l
powers. 94 Had the solum been found to be within the boundaries
of the colony of British Columbia, then the Court would have had
to resolve the real Labour Conventions dilemma, and would (it is
suggested) have found it very difficult to decide legislative juris-
diction in favour of Canada wit3out taking a clear stand on that
famous decision. 95
The Court’s opinion can be seen as a clear pronouncement on the
unique ability of Canada to acquire rights available under inter-
national law. However, it does not go so far as to find that these
acquired rights are paramount to existing provincial rights under
the federal distribution of legislative powers. Like the Canada
Temperance Federation and Johannesson cases, the Offshore Mineral
Rights reference does not eradicate the obstacles resulting from
the “loss” of the treaty-implementing power of section 132. Rather,
the present case, when added to the two above-mentioned decisions
and the Munro case,9″ has the effect of continuing the recent judicial
trend of deciding such ad hoc issues, when possible, “by the appli-
cation of a wide and liberal construction of the ‘peace, order and
good government’ clause.” 97
Finally, it should be noted that this new trend has not been
universally welcomed. Just as the “restrained” and “legalistic”
provincialist opinions of the Privy Council had their supporters and
detractors,98
so too have the Supreme Court of Canada’s more
“pragmatic” and “liberal” centralist opinions, but with the roles
reversed. Following the Offshore Mineral Rights opinion, Quebec
observers feared the inevitable centralization that would result if
the Court were to generously hand all new and unforeseen activities
to the federal government:
94 Just as the Johannesson case was only the prevention of provincial
legislation in a federally-occupied field, and not the subordination of an already-
existing provincial legislative power to one falling to the federal government
via the residual clause of section 91. See Russell, Politics, pp. 67-8.
95As, for instance, the Australian courts would have similar difficulty,
following Lumb’s interpretation. See note 77 supra.
96 In the present case, the Court did not explicitly cite the Radio, Canada
Temperance Federation, and Johannesson cases, as did Mr. Justice Cartwright
in the Munro decision (see note 92, supra), although it did adopt the wording
of the federal argument, which did cite the last three cases as authority.
07 Szablowski, loc. cit., -at pp. 55-6.
98 Cf. note 3, supra; esp. Beetz, loc. cit., p. 119: c II est difficile de contester
que plusieurs de ces [Privy Council] d~cisions auraient pu 6tre diff6rentes de
ce qu’elles ont 6tM, sinon A l’effet inverse, et que la discretion dont jouissait
le tribunal a servi l’intdr6t des provinces plut8t que celui du pouvoir f6d6ral.>
No. 3]
NOTES
C’est une interpr6tation assez inqui6tante pour notre f6d6ralisme
[i.e.,
d~centralis6] … ; il y aurait danger de centralisation croissante a mesure
que le temps passe et que des nouveauts apparaissent. 99
[L] a thorie de la comp6tence r6siduelle [upheld by the Court] manifeste
plus que jamais son esprit centralisateur, au point m~me d’embarrasser
certaines autorit6s f6d~rales … [LIa vieille th~orie des dimensions nationales
[referring here to the Munro case] pourrait permettre au gouvernement
central de r~duire les gouvernements provinciaux au rang d’administrations
municipales, comme le souhaitait John A. MacDonald.’ 00
Marcel Faribault, former constitutional advisor to the late Premier
Johnson of Quebec, felt that an amendment was needed to place
residual powers in the hands of the provinces. 10′ Jacques Brossard,
Universit6 de Montr6al law professor, pointed to the paradox that
underlies Canadian constitutional history and current pressures for
change:
en violant les principes du f&16ralisme [i.e., d~centralis6], [la Cour suprame]
est fiddle i l’esprit [i.e., centralisateur] du B.N.A. Act; le Comith judi-
ciaire du Conseil priv6, en respectant au contraire les principes du f6d6ra-
lisme [d~centralis6], a pour sa part beaucoup moins protfg6 la Constitution
[centralisateur] de 1867.302
Neil CAPLAN
*B.A. (McGill), M.A. (Carleton). Currently postgraduate student in politics
at the London School of Economics and Political Science. The present essay
is adapted from a chapter of the author’s M.A. thesis, The Offshore Mineral
Rights Dispute in Canada (Carleton University, 1968). The author wishes to
thank Professors H.L. Molot, F.J.E. Jordan, M.B. Stein, and G.Y. La Forest
for their comments and criticisms of earlier drafts.
99Paul Sauriol, Le Devoir, 9 nov. 1967.
100 J. Brossard, z Les zones maritimes et le droit continental :, Le Devoir,
22 nov. 1967. Cf. note 87, supra. See also: La Presse, 8 nov. 1.967 and L’Action,
9 & 11 nov. 1967, for other critical French-Canadian opinion. Only Le Soleil,
9 nov. 1967, seems
to regard the Offshore Mineral Rights opinion with
equanimity.
10 Reported by Peter C. Newman, Red Deer Advocate, Dec. 6, 1967.
102 Brossard, loc. cit. (note 100).
