Re Ownership and Jurisdiction Over Offshore Mineral Rights,
| Date | 07 November 1967 |
| Court | Supreme Court (Canada) |
State territory Parts of Territorial waters Jurisdiction in bed of territorial sea Whether provincial or Federal property and jurisdiction The law of Canada.
State territory Parts of Continental shelf Offshore mineral rights Whether Federal or provincial property and jurisdiction The law of Canada.
The Facts.This was a Reference case whereby the Governor General in Council, pursuant to Section 55 of the Supreme Court Act,1 had requested the Court to give its opinion on questions concerning the respective proprietary rights and legislative jurisdiction of Canada and British Columbia in relation to certain lands
adjacent to the coast line of that Province. These questions were the following1. In respect of the lands, including the mineral and other natural resources, of the sea bed and subsoil seaward from the ordinary low-water mark on the coast of the mainland and the several islands of British Columbia, outside the harbours, bays, estuaries and other similar inland waters, to the outer limit of the territorial sea of Canada, as defined in the Territorial Sea and Fishing Zones Act, Statutes of Canada 1964, Chapter 22, as between Canada and British Columbia,
(a) Are the said lands the property of Canada or British Columbia?
(b) Has Canada or British Columbia the right to explore and exploit the said lands?
(c) Has Canada or British Columbia legislative jurisdiction in relation to the said lands?
2. In respect of the mineral and other natural resources of the sea bed and subsoil beyond that part of the territorial sea of Canada referred to in Question 1, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the mineral and other natural resources of the said areas, as between Canada and British Columbia,
(a) Has Canada or British Columbia the right to explore and exploit the said mineral and other natural resources?
(b) Has Canada or British Columbia legislative jurisdiction in relation to the said mineral and other natural resources?
Section 3 of the Territorial Sea and Fishing Zones Act, 1964 (Can.), c. 22, reads as follows:
3. (1) Subject to any exceptions under section 5, the territorial sea of Canada comprises those areas of the sea having, as their inner limits, the base-lines described in section 5 and, as their outer limits, lines measured seaward and equidistant from such base-lines so that each point of the outer limit line of the territorial sea is distant three nautical miles from the nearest point of the base-line.
(2) The internal waters of Canada include any areas of the sea that are on the landward side of the base-lines of the territorial sea of Canada.
All the provinces of Canada, with the exception of Quebec, Manitoba, Saskatchewan and Alberta, were represented on this Reference. Argument was heard from their counsel, who all supported the position taken by the Province of British Columbia. The Attorney General of Canada submitted that the answer to all the questions should be Canada. British Columbia submitted that it possessed exclusive proprietary rights and sole legislative jurisdiction in relation to the lands in question and enjoyed the sole right to exploration and exploitation within the limits defined by the terms of reference.
Held (per curiam): that all the questions must be answered in favour of Canada. As to the territorial sea, the sovereign State which has the property in the bed of the territorial sea adjacent to British Columbia was Canada. At no time had British Columbia, either as a colony or a province, had property in these lands. Canada also had the exclusive right to explore and exploit these lands. It had exclusive legislative jurisdiction in respect of these lands either under Section 91(1) (a) of the British North America Act or under the residual power in Section 91. British Columbia had no legislative jurisdiction since the lands in question were outside its boundaries. The lands under the territorial sea did not fall within any of the enumerated heads of Section 92 since they were not within the province. Legislative jurisdiction with respect to such lands must, therefore, belong exclusively to Canada, for the subject-matter was one not coming within the classes of subjects assigned exclusively to the Legislatures of the provinces within the meaning of the initial words of Section 91 and could, therefore, properly be regarded as a matter affecting Canada generally and covered by the expression the peace, order and good government of Canada. The mineral resources of these lands were of concern to Canada as a whole and went beyond local or provincial concern or interests. Moreover, the rights in the territorial sea arose by international law and depended upon recognition by other sovereign States. Canada was a sovereign State recognized by international law and thus able to enter into arrangements with other States respecting the rights in the territorial sea.
As to the Continental Shelf, the rights now recognized by international law to explore and exploit the natural resources of the continental shelf did not involve any extension of the territorial sea. The superjacent waters continued to be recognized as high seas. There was 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. There were two reasons why British Columbia lacked these rights: (i) the continental shelf was outside the boundaries of British Columbia, and (ii) Canada was the sovereign State which would be recognized by international law as having the rights stated in the 1958 Geneva Convention,[1] and it was Canada that would have to answer the claims of other members of the international community for breach of the obligations and responsibilities imposed by that Convention.
The Court said (in part):
For some years before 1849, the Hudson's Bay Company carried on trading activities in various parts of the land area now known as British Columbia but it was not until 16 July 1849 that a Civil Government was established by the Queen by the appointment of Richard Blanshard as Governor and Commander-in-Chief of the Colony of Vancouver's Island. In the same month of the same year, the Imperial Parliament enacted a statute to provide for the administration of justice in Vancouver's Island. This statute is to be found
in the Revised Statutes of British Columbia, 1911, vol. IV, p. 115, published in 1913.On 13 January 1849 the Crown granted Vancouver's Island to the Hudson's Bay Company. On 3 April 1867 the Company reconveyed to the Crown whatever lands it had not disposed of.
On 2 August 1858 an Act was passed by the Imperial Parliament to provide for the Government of British Columbia, that is, the mainland colony. Section 1 of this enactment defines the western boundary of the colony as the Pacific Ocean.
On 19 November 1858 a proclamation by the then Governor, Sir James Douglas, introduced into the colony of British Columbia the law of England as of 19 November 1858 (Vancouver Island and British Columbia Statutes, 18581871).
On 2 December 1858 Sir James Douglas issued a proclamation making it lawful for the Governor of the colony
by any instrument in print or in writing, or partly in print and partly in writing, under his hand and seal to grant to any person or persons any land belonging to the Crown in the said Colony;
and providing that
every such Instrument shall be valid as against Her Majesty, Her Heirs and Successors for all the estate and interest expressed to be conveyed by such instrument in the land therein described. (Vancouver Island and British Columbia Statutes 18581871.)
On 14 February 1859 Sir James Douglas issued a proclamation the first paragraph of which read as follows:
1. All the lands in British Columbia, and all the Mines and Minerals therein, belong to the Crown in fee.
On 28 July 1863 the Imperial Parliament passed an Act to define the boundaries of the colony of British Columbia and to continue an Act to provide for the government of the said colony. Section 3 of this enactment again defines the western boundary of the colony as the Pacific Ocean.
On 6 August 1866 the Imperial Parliament passed an Act for the union of the colony of Vancouver Island with the colony of British Columbia. Again, the western boundary of British Columbia was defined in the same way. With the proclamation of this Act by the Governor of both colonies on 19 November 1866, the boundaries of British Columbia as we now know them came into being; no changes were made at the time of Confederation.
In 1866, when the present boundaries of British Columbia were established, the Crown in the right of the Colony owned in fee all the unalienated land in British Columbia and all the mines and minerals therein. This was the opinion of the Privy Council in Attorney General of British Columbia v. The Attorney General of CanadaELR,1 where
Lord Watson, in giving judgment at p. 301, used the following language:In Attorney General of British Columbia v. Pacific Railway Co.ELR1 Sir Arthur Wilson, in giving the judgment of the Privy Council, at p. 208 makes the following statement:
The British North America Act passed in 1867 contemplated the possibility of British Columbia being admitted into the Union. Section 146 of that Act reads as follows:
146. It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the...
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