¹ Attorney General of Canada v. Attorney General of British Columbia: Reference re Ownership of the Bed of the Strait of Georgia and Related Areas [1984] 1 S.C.R. 388.

² Reference re Ownership of the Bed of the Strait of Georgia and Related Areas (1976), 1 B.C.L.R. 97.

³ R.S.B.C., 1960, c. 72.

⁴ Order in Council No. 3459 (British Columbia).

⁵ Consolidated Treaty Series, Vol. 100, p. 39.

⁶ Reproduced in Irish University Press series of British Parliamentary Papers: Colonies: Canada, Vol. 18, pp. 425–28 (from Sessional Papers, House of Commons, 1849 (103) Vol. XXXV, 13–16).

⁷ Public Record Office, London (cited hereafter as P.R.O.): CO. 380/18.

⁸ 12 & 13 Vict., c. 48.

⁹ 21 & 22 Vict., C. 99.

¹⁰ Supra note 6, Vol. 22, pp. 21-23 (from Sessional Papers, House of Commons, 1859 (2476) Vol. XIV, 3–5).

¹¹ 26 & 27 Vict., c 83.

¹² P.R.O.: C.O. 60/21, ff. 56–57.

¹³ P.R.O.: C.O. 60/23, ff. 104–6.

¹⁴ 29 & 30 Vict, c. 67.

¹⁵ Supra note 1, at 391–92.

¹⁶ Order in Council No. 507 (British Columbia) of May 6, 1924.

¹⁷ [1945] S.C.R. 385.

¹⁸ [1967] S.C.R. 792. The questions asked in this Reference read:

• 1.

  1. 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)

  (a) Are the said lands the property of Canada or British Columbia?

• (b)

  (b) Has Canada or British Columbia the right to explore and exploit the said lands?

• (c)

  (c) Has Canada or British Columbia legislative jurisdiction in relation to the said lands?

• 2.

  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)

  (a) Has Canada or British Columbia the right to explore and exploit the said mineral and other natural resources?

• (b)

  (b) Has Canada or British Columbia legislative jurisdiction in relation to the said mineral and other natural resources?

¹⁹ Direct United States Cable Co. Ltd. v. Anglo-American Telegraph Co. Ltd. (1877) 2 App. Cas. 394.

²⁰ Court of Appeal of British Columbia: Factum of British Columbia, 88.

²¹ Ibid., 132.

²² 516 U.N.T.S. 205. Canada has signed but not ratified this Convention.

²³ Court of Appeal of British Columbia: Factum of Canada, 2.

²⁴ Ibid., 36.

²⁵ Ibid., 37.

²⁶ (1876) 2 Ex. D. 63.

²⁷ Matthew Haie, De Jure Maris, chap. 4.

²⁸ (1922) 31 B.C.R. 211.

²⁹ (1859) Bell C.C. 72.

³⁰ Supra note 2, at 98.

³¹ New South Wales et al. v. Commonwealth of Australia (1975) 135 C.L.R. 337.

³² Ibid., 482.

³³ Supra note 2, at 109.

³⁴ The 1855 grant was mentioned in Letters Patent No. 728 issued by the Lieutenant Governor in Council of British Columbia dated Nov. 18, 1899. Reproduced in Appendix, Vol. III, pp. 363–70.

³⁵ First Telegraph Act, 1864: No. 16 of 1864 (Vancouver Island).

³⁶ Supra note 31.

³⁷ He cited U.S. v. California (1946) 332 U.S. 19; U.S. v. Louisiana (1949) 339 U.S. 699; U.S. v. Texas (1949) 339 U.S. 707.

³⁸ Supra note 2, at 121.

³⁹ (1969) 122 C.L.R. 177.

⁴⁰ Supra note 31.

⁴¹ Supra note 2, at 134.

⁴² Supra note 31, at 459.

⁴³ 41 & 42 Vict., c. 73.

⁴⁴ Supra note 2, at 141.

⁴⁵ Press Release of July 28, 1981: Office of the Prime Minister.

⁴⁶ Unreported.

⁴⁷ In addition to its factum, Canada filed two annexes, one reproducing the texts of relevant documents, the other in the form of a narrative entitled “A Brief History of the Province of British Columbia to Confederation.”

⁴⁸ Supra note 13.

⁴⁹ (1862) Lush. 410.

⁵⁰ (1977) 138 C.L.R. 346.

⁵¹ In addition to its factum, British Columbia filed a substantial appendix expanding on certain arguments set out in the former document, together with a map supplement.

⁵² Supreme Court of Canada: Factum of British Columbia, 61.

⁵³ British Columbia relied in particular on The Sloop Falmouth, 1805, unreported (P.R.O.: CO. 188/13, pp. 175–90); The Schooner Fame (1822) 8 Fed. Cas. 984; Manley v. The People (1852) 7 N.Y. 295; R. v. Cunningham (1859) Bell CC. 72; Mahler v. Norwich and New York Transportation Company (1866) 35 N.Y. 352; the Conception Bay case (1877) 2 App. Cas. 394; Annakamaru Pillai v. Muthupayal (1903–4) 27 Madras 551; A.M.S.S.V.M. & Co. v. State of Madras [1954] A.I.R. Madras 291.

⁵⁴ British Columbia relied on Esquimalt & Nanaimo Railway Co. v. Treat (1919) 48 D.L.R. 139; Attorney General for Canada v. Ritchie Contracting and Supply Co. Ltd. [1919] A.C. 999; Attorney General for Canada v. Higbie et al. [1945] S.C.R. 385.

⁵⁵ Manley v. The People (1852) 7 N.Y. 295; Mahler v. Norwich & New York Transportation Company (1866) 35 N.Y. 352. It is interesting to note that the Supreme Court of the United States, upholding a Special Master, has ruled that Long Island Sound is a historic bay (United States v. Maine et al. (1985) 83 L.Ed. 2d 998).

⁵⁶ Supra note 49.

⁵⁷ Supra note 50.

⁵⁸ Nova Scotia submitted that “[u]nder colonial constitutional law, all properties owned by the Crown in a self-governing Colony were owned by the Crown in right of the self-governing Colony and not in right of the United Kingdom. The reservation of a property of the Crown in Right of the United Kingdom requires clear and unequivocal evidence.” It relied in particular on the High Court of Australia case of Williams v. Attorney General for New South Wales (1913) 16 C.L.R. 404, and Attorney General of British Columbia v. Attorney General of Canada [1906] A.C. 552 (Supreme Court of Canada: Factum of Nova Scotia, 10). It is arguable whether British Columbia was “self-governing” in this sense prior to Confederation.

⁵⁹ Ibid., 25.

⁶⁰ Newfoundland relied in particular on R. v. Attorney General of British Columbia (1923) 63 S.C.R. 622, per Duff, J. (at 633), Anglin, J. (at 635) and Mignault, J. (at 643).

⁶¹ This and the other quotations from counsel are taken from the author’s notes made during the oral proceedings.

⁶² Supra note 1, at 392.

⁶³ R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta et al. [1982] 2 All E.R. 118, 132. The 1967 Offshore Reference had found that “[b]efore Confederation all unalienated lands in British Columbia including minerals belonged to the Crown in right of the Colony of British Columbia” (supra note 18, at 800).

⁶⁴ Supra note 1, at 401.

⁶⁵ Meares, John, Voyages Made in the Years 1788 and 1789 from China to the North West Coast of America 173 (London, 1790)Google Scholar; Vancouver, George, Voyage of Discovery to the North Pacific Ocean and Round the World, Vol. 1, 289 (London, 1798).Google Scholar

⁶⁶ Supra note 1, at 405–6.

⁶⁷ Ibid., 406.

⁶⁸ Ibid., 409–10.

⁶⁹ Ibid., 414–15.

⁷⁰ Ibid., 417 (original emphasis).

⁷¹ Ibid., 418.

⁷² Ibid., 412.

⁷³ Ibid., 456.

⁷⁴ Ibid., 460.

⁷⁵ Supra note 49.

⁷⁶ Wilson, J. drew support from this award of the American and British Claims Commission in respect of the Bay of Fundy, although it had not been cited to the Supreme Court of Canada. The report she used, Scott’s Cases on International Law, 1932, does not indicate the fact that the award was made by a lay umpire, Joshua Bates, after the United States Commissioner, Upham, and the British Commissioner, Hornby, both lawyers, had disagreed. Upham had decided the case against Britain on the ground of the large dimensions of the bay. What Hornby claimed to be the correct record of the proceedings was printed in Hornby, Edmund, Report of the Proceedings of the Mixed Commission on Private Claims, 1856, pp. 302–10Google Scholar (Hornby’s judgment); 311–23 (Upham’s judgment); 324–27 (Bates’ judgment). For a critical view of the award’s reasoning see La Forest, G. V, “Canadian Inland Waters of the Atlantic Provinces and the Bay of Fundy Incident,” 1 Canadian Yearbook of International Law 149, 162–56 (1963).Google Scholar

⁷⁷ Annakumaru Pillai v. Muthupayal (1903–4) 27 Madras 551.

⁷⁸ A.M.S.S.V.M. & Co. v. State of Madras [1954] A.I.R. Madras 291.

⁷⁹ (1822) 8 Fed. Cas. 984.

⁸⁰ (1894) 4 Ex. CR. 283.

⁸¹ See, e.g., Maxwell on the Interpretation of Statutes 6–9 (12th ed., 1969); Driedger, E. A., Construction of Statutes 144–46 (2nd ed., 1983).Google Scholar

⁸² Maxwell, op cit. supra note 81, at 66–69; Driedger, op. cit. supra note 81, at 131–32.

⁸³ Supra note 73.

⁸⁴ Supra note 1, at 417.

⁸⁵ Supra note 13.

⁸⁶ Statutes of Canada, 1964, c. 22.

⁸⁷ Supra note 22.

⁸⁸ Supra note 18, at 816.

⁸⁹ Reference re Newfoundland Continental Shelf [1984] 1 S.C.R. 86, 93. In Keyn, Lush, J. clearly used the word “territory” in its international law sense and not in its meaning of ownership at common law: “Therefore, although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must in my judgment be authorized by an Act of Parliament” (supra note 26, at 239).

⁹⁰ Supra note 1, at 392.

⁹¹ Ibid., 391 (Ritchie, J.), 471 (Wilson, J.).

⁹² Supra note 26, at 807, citing Coulson & Forbes on Waters and Land Drainage 12 (6th ed., 1952).

⁹³ (1932) 5 M.P.R. 112. The delimitation was in fact effected by Letters Patent under the Great Seal, dated Aug. 16, 1784, appointing Thomas Carleton as Governor (P.R.O.: C.O. 188/1 ff. 25–50 (draft)).

⁹⁴ Supreme Court of Canada: Factum of Canada, 64.

⁹⁵ Supra note 1, at 405.

⁹⁶ This resembles the question left in the United Kingdom by the Court of Appeal’s judgment in Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740. See also Herman, L. L., “Proof of Offshore Territorial Claims in Canada,” 7 Dal. L.J. 3 (1982).Google Scholar It may seem strange that in view of the Crown’s undoubted power to acquire new territory outside the realm of England without parliamentary authority the Keyn observations should be thought applicable to the maritime boundaries of colonies, at least those not constituted and delimited by Imperial legislation. See Wacando v. The Commonwealth (1981) 148 C.L.R. 1, 11 per Gibbs, C.J.

⁹⁷ Supra note 26, at 805–6.

⁹⁸ Supra note 2, at 140.

⁹⁹ Supra note 1, at 451.

¹⁰⁰ Ibid., 396.

¹⁰¹ Ibid., 402.

¹⁰² Ibid., 453 (original emphasis).

¹⁰³ Supra note 93.

¹⁰⁴ It is worth noting that in para. 36 of its Factum in the 1967 Offshore Reference Canada submitted that:

¹⁰⁵ Supra note 79.

¹⁰⁶ Supra note 80.

¹⁰⁷ Supra note 1, at 440.

¹⁰⁸ P.R.O.: CO. 60/21, f. 57 verso. Some abbreviations extended.

¹⁰⁹ It may be noted, however, that the current Commission dated Dec. 11, 1863, appointing A. E. Kennedy as Governor of the Colony of Vancouver Island, like the 1849 Commission to Blanshard, had expressly terminated his southerly jurisdiction at the 49th parallel (P.R.O.: CO. 380/19).

¹¹⁰ P.R.O.: CO. 60/21, f. 60. Original emphasis. Some abbreviations extended.