Maritime Law Jurisdiction in Canada

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 158-210

158

CHA PTER 5

MARITIME LAW

JURISDICTION

INCANADA

A. INTRODUCTION

One cannot approach the subject of Canadian m aritime law jurisdiction

(also known as admiralty jurisdiction) without proper regard for the

impact of federalism on its legislat ive landscape. To begin with, the very

def‌inition of maritime law is circumscribed by the division of powers

in the Canadian Constitution, and is therefore impacted by the ebb and

f‌low of provincial and federal legislat ive authority as understood by the

courts. When one considers the purpos e of federalism, it is to facilitate

a system of governance that is ba lanced, representative, and effective.

These aims were captured in Canadian Western Bank v Alberta when the

Supreme Court of Canada stated that “the fundamental objectives of

federalism were, and still are, to reconcile unity with diversity, promote

democratic participation by res erving meaningful powers to t he local or

regional level or to foster co-operation among governments and legisla-

tures for the common good.”1 Canadian maritime law is guided by the

prerogatives of international uni formity in shipping regulation, provid-

ing a strong argument for “unity” of Canad ian maritime law across the

co untr y.2 Hence the const itutional allocation of nav igation and shipping

as a federal head of power.3

1 2007 SCC 22 at para 22 [Canadian Western].

2 Ordon Estate v Grail (1996), 30 OR (3d) 643 (CA), aff’d [1998] 3 SCR 437 [Ordon].

3 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(10), reprinted in RSC 1985,

App II, No 5.

Maritime L aw Jurisdiction in Can ada 159

Admiralty Court a nd maritime law juri sdiction are two closely

intertwined s ubjects which are best di scussed in a Canadian context by

cross-referencing to each other. The workings of the Admiralt y Court

and admiralty proceed ings are addressed in Ch apter 6. In order to as-

sist the reader to navigate through this complex subject, it is useful to

keep in mind two sets of question s that have arisen in casel aw and with

reference to which the subject must be explained.

The f‌irst set of questions concerns Can adian maritime law as a body

of substantive law. The main question is: what is Canadian maritime

law? In other words, what are its scope (range of subjects) and content

(actual substance of maritime l aw)? There are also critical subsidi ary

questions that need to be addre ssed. First, when was English maritime

law “received” in Canada to become “Canadi an maritime law?” Second,

how was this body of law “saved” from one statute to another? Third,

what is its status as a uniform body of federal law? Fourth, what role

do the common and civil law play? Fifth, what is its rel ationship to

provincial law and ca n provincial law be applied in a maritime setting?

The second set of questions focuses on the Federal Court as t he Ad-

miralty Court of Can ada, its jurisdiction in this regard, and the concur-

rency of that jurisd iction with the mariti me law jurisdiction enjoyed

by provincial courts. There are four main questions here. First, what is

the status and purpose of the Federal Court as a section 101 court, and

what is meant to be understood by its function for the better admin-

istration of the “laws of Canada” in a ma ritime context? Second, what

is maritime law jurisdiction in Canada, and what is the full extent of

Federal Court mariti me law jurisdiction? Related to this question is

the scope of the class of subjects comprehended by “nav igation and

shipping,” that is, what is the area of capture of Canad ian maritime law

and what are its jurisd ictional limits ratione materiae? Third, which

provincial courts c an exercise maritime law juris diction? Fourth, what

is the full extent of provincial court maritime l aw jurisdiction?

This chapter addresse s these questions. They are funda mental to

building an understanding of what maritime law is and how maritime

law jurisdiction in Canada is understood and practi sed.

B. M AR ITIME LAW JURISDICTION

DISTINGUISHED FROM OTHER

MAR INEJ UR ISDICTIONS

It is useful to distinguish mariti me law jurisdiction from other exi sting

or potential federal and provincia l marine jurisdictions and entit lements.

PART II: ADMIR ALTY JURISDICTION AND PROCEDUR E160

1) Distinction from Maritime Zones and Resource-Related

Jurisdictions of Canada

Maritime law jur isdiction should be distinguished from the exercise

of other forms of marine jurisdiction permitted in the United Nations

Convention on the Law of the Sea, 1982 .4 Consistent with UNCL OS and

the Oceans Act,5 Canada as a state at inter national law, and a coastal

state in particul ar, exercises sovereignty, sovereign rights, and juris-

diction over various type s of maritime zones, including internal waters

enclosed by an extensive stra ight baseline system in the Arctic, Atlan-

tic, and Pacif‌ic regions. Canada has a territorial sea of twelve nautical

miles, a contiguous zone of twenty-four nautical miles, an exclusive

economic zone (EEZ) of 200 nautical miles, and a continental shelf

whose current seaward li mits are undef‌ined, but which is likely to ex-

tend well beyond 200 nautical miles i n at least the Atlantic and A rctic.6

In the past Canada has claimed historic title to various inshore mari ne

areas in the th ree regions, although these areas are now encompassed

within Can ada’s straight baseline system and therefore constitute inter-

nal water s.7 In addition, Canada exercises special jurisdict ion for the

purposes of prevention, reduction and control of vessel-source pollu-

tion within the EEZ i n the Arctic.8 Canada has def‌ined its Arctic waters

to include waters north of sixty degree s latitude and up to the limit of

the EEZ.9 Through its external affairs prerogative it has b een Canada,

rather than the provinces, that has been able to gain law of the sea

benef‌its and responsibilities.

At a domestic level, the Constitution Act, 1867, empowers the feder-

al government to exercise exclusive legislative jurisdiction, inter alia,

4 10 December 1982, 1833 UNTS 3 [UNCLOS].

5 SC 1996, c 31.

6 Ibid, ss 4(a), 10, and 13(1)(a). Canada made a submission with respect to the At-

lantic Ocean on 6 December 2013 and indicated its intention to make a submis-

sion with regard to the Arctic Ocean at a later date. UN Division for Ocean Affairs

and the Law of the Sea, online: Commission on the Limits of the Continental

Shelf www.un.org/depts/los/clcs_new/submissions_f‌iles/submission_can_70_2013.

htm.

7 Canada’s hist orical bay claims were de scribed in an opinion ex pressed by the

Legal Bureau, De partment of Foreign Affai rs, dated 26 October 1973, published

in (1974) 12 Canadian Yearbook of Interna tional Law 279.

8 UNCLOS, above note 4, art 234.

9 Arctic Waters Pollution Prevention Act, RSC 1985, c A-12, s 2 [AWP PA]. At the

time of adoption of the AW PPA and until amend ment in 2009, the seaward ex-

tent of Arctic water s was 100 nautical miles. Bi ll C-3, An Act to amend the Arctic

Waters Pollution Prevention Act , SC 2009, c 11, s 1.