Reference Re: Offshore Mineral Rights

Reference Re: Offshore Mineral Rights
Collection
Supreme Court Judgments
Date
1967-11-07
Report
[1967] SCR 792
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference Re: Offshore Mineral Rights, [1967] S.C.R. 792
Date: 1967-11-07
In the Matter of a Reference by the Governor General in Council Concerning the Ownership of and Jurisdiction Over Offshore Mineral Rights as Set Out in Order in Council P.C. 1965‑750 Dated April 26, 1965.
1967: March 8, 9, 10, 13, 14, 15; 1967: November 7.
Present: Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie and Spence JJ.
Constitutional law—Offshore mineral rights—Whether federal or provincial property—Territorial Sea and Fishing Zones Act, 1964 (Can.), c. 22—B.N.A. Act, 1871—Supreme Court Act, R.S.C. 1962, c. 259, s. 55.
The Governor General in Council, pursuant to s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259, has requested this 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 are cited in full at the beginning of the joint opinion delivered by the Court]. Only Quebec, Manitoba, Saskatchewan and Alberta were not represented on this reference. The Attorney General for Canada submitted that the answer to all the questions should be “Canada”. The province of British Columbia, whose position was supported by the other provinces, submitted that it possesses exclusive proprietary rights and sole legislative jurisdiction in relation to the lands in question and enjoys the sole right to exploration and exploitation within the limits defined by the terms of reference.
Held: All questions were 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 is Canada. At no time has British Columbia, either as a colony or a province, had property in these lands.
It is the sovereign state of Canada that has the right to explore and exploit these lands.
Canada has exclusive legislative jurisdiction in respect of these lands either under s. 91(1) (a) of the B.N.A. Act or under the residual power in s. 91. British Columbia has no legislative jurisdiction since the lands in question are outside its boundaries. The lands under the territorial sea do not fall within any of the enumerated heads of s. 92 since they are not within the province. Legislative jurisdiction with respect to such lands must, therefore, belong exclusively to Canada, for the subject matter is one not coming within the classes of subjects assigned exclusively to the legislatures of the provinces within the meaning of the initial words of s. 91 and may, 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 are of concern to Canada as a whole and go beyond local or provincial concern or interests.
Moreover, the rights in the territorial sea arise by international law and depend upon recognition by other sovereign states. Canada 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.
As to the Continental Shelf.
The rights now recognized by international law to explore and exploit the natural resources of the continental shelf do not involve any extension of the territorial sea. The superjacent waters continue to be recognized as high seas. 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. There are two reasons why British Columbia lacks these rights: (i) the continental shelf is outside the boundaries of British Columbia, and (ii) Canada is the sovereign state which will be recognized by international law as having the rights stated in the 1958 Geneva Convention, and it is Canada that will have to answer the claims of other members of the international community for breach of the obligations and responsibilities imposed by that convention.
Droit constitutionnel—Droits minéraux au large des côtes—Propriété fédérale ou provinciale—Loi sur la Mer territoriale et les zones de pêche, 1964 (Can.), c. 22—Loi de l’Amérique du Nord britannique, 1871—Loi sur la Cour suprême, S.R.C. 1952, c. 259, art. 55.
Conformément à l’art. 55 de la Loi sur la Cour suprême, S.R.C. 1952, c. 259, le Gouverneur Général en Conseil a demandé à cette Cour de lui donner son opinion sur des questions concernant les droits de propriété respectivement du Canada et de la Colombie‑Britannique ainsi que leur juridiction législative en regard de certains terrains adja- cents au littoral de cette province. [Ces questions sont citées au long au commencement de l’opinion collective qui a été rendue par la Cour]. Seules les provinces de Québec, du Manitoba, de la Saskatchewan et de I’Alberta n’ont pas été représentées à l’audition. Le procureur général du Canada a soutenu que la réponse à toutes les questions devait être «Canada». La province de la Colombie-Britannique, dont la position est supportée par les autres provinces, a soutenu qu’elle possède des droits de propriété exclusifs et la juridiction législative exclusive en regard de ces terrains et qu’elle jouit du droit exclusif d’explorer et d’exploiter dans les limites définies par les termes des questions déférées.
Arrêt: Les réponses à toutes les questions doivent être en faveur du Canada.
Quant à la mer territoriale
L’état souverain qui a la propriété du lit de la mer territoriale adjacent à la Colombie‑Britannique est le Canada. A aucun moment de son existence, soit comme colonie soit comme province, la Colombie-Britannique a-t-elle eu la propriété de ces terrains.
C’est l’état souverain du Canada qui a le droit d’explorer et d’exploiter ces terrains.
Le Canada a la juridiction législative exclusive en regard de ces terrains, soit en vertu de l’art. 91(1) (a) de l’Acte de l’Amérique du Nord britannique ou en vertu du pouvoir résiduaire dans l’art. 91. La Colombie-Britannique n’a pas la juridiction législative puisque les terrains en question sont au-delà de ses frontières. Les terrains sous la mer territoriale ne tombent sous aucun des sujets énumérés à l’art. 92 puisqu’ils ne sont pas situés dans la province. La juridiction législative à l’égard de ces terrains doit, en conséquence, appartenir exclusivement au Canada parce que la matière n’est pas une de celles tombant dans les catégories de sujets attribués exclusivement aux législatures des provinces dans le sens des mots que l’on trouve au début de l’art. 91 et que cette matière peut, en conséquence, être considérée avec raison comme étant une matière affectant le Canada généralement et tombant sous l’expression «la paix, l’ordre et le bon gouvernement du Canada». Les ressources minérales de ces terrains sont l’affaire du Canada entier et vont au-delà des intérêts purement locaux ou provinciaux.
De plus, les droits dans la mer territoriale proviennent du droit international et doivent être reconnus par les autres états souverains. Le Canada est un état souverain reconnu par le droit international et conséquemment a la compétence de passer des ententes avec les autres états concernant les droits dans la mer territoriale.
Quant au plateau continental
Les droits maintenant reconnus par le droit international d’explorer et d’exploiter les ressources naturelles du plateau continental ne comportent pas une extension de la mer territoriale. Les eaux surjacentes continuent d’être reconnues comme étant la haute mer. La province de la Colombie-Britannique ne peut s’appuyer sur aucune base historique, légale ou constitutionnelle pour réclamer le droit d’explorer et d’exploiter, ou pour réclamer la juridiction législative sur les ressources du plateau continental. Il y a deux raisons pour lesquelles la Colombie‑Britannique ne peut pas avoir ces droits: (i) Le plateau continental est au-delà des frontières de la Colombie-Britannique et (ii) le Canada est l’état souverain qui sera reconnu par le droit international comme ayant les droits définis à la Convention de Genève de 1958, et c’est le Canada qui devra repousser les réclamations des autres membres de la communauté internationale pour toute violation des obligations et des responsabilités imposées par cette convention.
Son Excellence le Gouverneur Général en Conseil a déféré à la Cour suprême du Canada, conformément aux pouvoirs conférés par l’art. 55 de la Loi sur la Cour suprême, S.R.C. 1952, c. 259, pour audition et examen, les questions citées au long au commencement de l’opinion collective qui a été rendue par cette Cour.
REFERENCE by His Excellency the Governor General in Council, pursuant to the authority of s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259, to the Supreme Court of Canada for hearing and consideration of the questions cited in full at the beginning of the joint opinion delivered by this Court.
C.F.H. Carson, Q.C., Allan Findlay, Q.C., D.S. Maxwell, Q.C., Marguerite E. Ritchie, Q.C., and J.R. Houston, for the Attorney General of Canada.
W.G. Burke-Robertson, Q.C., A.W. Hobbs, M.H. Smith, for the Attorney General of British Columbia.
F.W. Callaghan, Q.C., and A.E. Charlton, for the Attorney General of Ontario.
J.A.Y. Macdonald, Q.C., and Graham D. Walker, for the Attorney General of Nova Scotia.
A.W. Matheson, Q.C., for the Attorney General of Prince Edward Island.
Keith Eaton and G.V. Laforest, for the Attorney General of New Brunswick.
Hazen Hansard, Q.C., for the Attorney General of Newfoundland THE JOINT OPINION OF THE COURT:—By Order in Council P.C. 1965-750 of April 26, 1965, the Governor in Council referred the following questions to this Court for hearing and consideration:
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) 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 baselines described in section 5 and, as their outer limits, lines measured seaward and equidistant from such baselines so that each point of the outer limit line of the territorial sea is distant three nautical miles from the nearest point of the baseline.
(2) The internal waters of Canada include any areas of the sea that are on the landward side of the baselines 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 it possesses exclusive proprietary rights and sole legislative jurisdiction in relation to the lands in question and enjoys the sole right to exploration and exploitation within the limits defined by the terms of reference. Historical Outline
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 July 16, 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 January 13, 1849, the Crown granted Vancouver’s Island to the Hudson’s Bay Company. On April 3, 1867, the Company reconveyed to the Crown whatever lands it had not disposed of.
On August 2, 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 November 19, 1858, a proclamation by the then Governor, Sir James Douglas, introduced into the colony of British Columbia the law of England as of November 19, 1858, (Vancouver Island and British Columbia Statutes, 1858-1871).
On December 2, 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 1858-1871)
On February 14, 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. (Vancouver Island and British Columbia Statutes 1858-1871) On July 28, 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”. (Revised Statutes of British Columbia, 1911, vol. IV, p. 266.)
On August 6, 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 November 19, 1866, the boundaries of British Columbia as we now know them came into being; no changes were made at the time of Confederation. (Revised Statutes of British Columbia, 1911, vol. IV, p. 273).
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 Canada[1], where Lord Watson, in giving judgment at p. 301, used the following language:
The title to the public lands of British Columbia has all along been and still is vested in the Crown; but the right to administer and dispose of these lands to settlers, together with all royal and territorial revenues arising therefrom, had been transferred to the Province, before its admission into the federal union.
In Attorney General of British Columbia v. Pacific Railway Co.[2], Sir Arthur Wilson, in giving the judgment of the Privy Council, at p. 208, makes the following statement:
Prior to the time when British Columbia entered the Confederation in 1871, the foreshore in question was Crown property of the Colony, now the Province, of British Columbia.
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 Northwestern Territory, or either of them, into the Union, on such terms and conditions in each case as are in the addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.
The Terms of Union whereby the Colony of British Columbia was admitted into and became part of the Dominion of Canada became effective on July 20, 1871. Paragraph 10 of the Terms of Union made the provisions of the British North America Act, 1867, applicable in the following language:
10. The provisions of the British North America Act, 1867, shall (except those parts thereof which are in terms made, or by reasonable intendment may be held to be specially applicable to and only affect one and not the whole of the Provinces now comprising the Dominion, and except so far as the same may be varied by this Minute) be applicable to British Columbia, in the same way and to the like extent as they apply to the other Provinces of the Dominion, and as if the Colony of British Columbia had been one of the Provinces originally united by the said Act.
Section 109 of the British North America Act, 1867 was thus made applicable to British Columbia. That section reads as follows:
109. All lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same.
The Privy Council interpreted the above section and has held that whatever Proprietary Rights were vested in the Provinces at the date of Confederation remain so vested unless by the express provisions of the Act transferred to the Dominion: Attorney General of the Dominion of Canada v. The Attorney General for the Provinces of Ontario, Quebec and Nova Scotia[3].
An example of the express transfers referred to above is contained in s. 108 of the Act, which provided that “The Public Works and Property of each Province enumerated in the Third Schedule to this Act, shall be the Property of Canada.” The judgment of Chief Justice Rinfret in Attorney General of Canada v. Higbie et al.[4], is to like effect:
Up to the time when British Columbia entered Confederation the title to public lands was in the Crown, and the latter’s prerogative in respect thereof was in full effect. The Crown lands remained vested in His Majesty in right of the Province and His Royal prerogative to deal therewith remained unaltered, subject to any provincial statutory provisions binding the Crown, of which there were none.
This historical survey shows that:
1. Before Confederation all unalienated lands in British Columbia including minerals belonged to the Crown in right of the colony of British Columbia;
2. After union with Canada such lands remained vested in the Crown in right of the Province of British Columbia.
But it leaves untouched the problem that we have to face—whether the territorial sea was within the boundary of the Province of British Columbia at the time of Confederation.
QUESTION 1—The Territorial Sea
It will be noted that Question 1(a) asks whether the lands are the “property” of Canada or British Columbia. The word “property” is susceptible of two meanings here. Canada says that it means rights recognized by international law as described in the Geneva Convention of 1958. The alternative meaning is property in the common law sense, i.e., ownership. British Columbia can only succeed on this branch of the case if it is found that the solum was situate in British Columbia in 1871 at the time of British Columbia’s entry into Confederation. This is the whole purpose of the historical survey set out in the British Columbia factum. British Columbia takes the position that the Province of British Columbia included the territorial sea in 1871. Canada, on the other hand, argues that in 1871 at the time of British Columbia’s entry into the Union, land below the low-water mark was regarded at common law as being outside the realm; that it was not part of the Colony of British Columbia in 1871, and that at, or following Union, it did not become part of the Province of British Columbia. The British North America Act 1871, 34-35 Vict., c. 28, makes provision in s. 2 for the establishment by the Parliament of Canada of new provinces. By s. 3 it provides for the alteration of the limits of the provinces in the following terms:
3. The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby.
There has never been any alteration of the limits of the Province of British Columbia pursuant to this section and there is no provision for extending the limits in any other way. The history of the province affords no assistance in settling the problem whether the territorial sea was within the boundary of the Province of British Columbia at the time of Confederation. Section 109 of the British North America Act 1867 affords no assistance in the solution of this problem. Therefore, to succeed on this Reference, British Columbia must show that the territorial sea was, in 1871, part of the territory of British Columbia.
The question was raised in the Privy Council in Attorney General for British Columbia v. Attorney General for Canada[5], but it was left unanswered at p. 174:
In the argument before their Lordships much was said as to an alleged proprietary title in the Province to the shore around its coast within a marine league… Their Lordships feel themselves relieved from expressing any opinion on the question whether the Crown has a right of property in the bed of the sea below low-water mark to what is known as the three-mile limit, because they are of opinion that the right of the public to fish in the sea has been well established in English law for many centuries, and does not depend on the assertion or maintenance of any title in the Crown to the subjacent land. They desire, however, to point out that the three-mile limit is something very different from the narrow seas limit discussed by the older authorities such as Selden and Hale, a principle which may safely be said to be now obsolete. The doctrine of the zone comprised in the former limit owes its origin to comparatively modern authorities on public international law. Its meaning is still in controversy. The questions raised thereby affect not only the Empire generally but also the rights of foreign nations as against the Crown, and of the subjects of the Crown as against other nations in foreign territorial waters. Until the Powers have adequately discussed and agreed on the meaning of the doctrine at a conference, it is not desirable that any municipal tribunal should pronounce on it… Until then the conflict of judicial opinion which arose in R. v. Keyn, 2 Ex. D., 63, is not likely to be satisfactorily settled, nor is a conclusion likely to be reached on the question whether the shore below low-water mark to within three miles of the coast forms part of the territory of the Crown or is merely subject to special powers necessary for protective and police purposes. The obscurity of the whole topic is made plain in the judgment of Cockburn C.J., in that case. But apart from these difficulties, there is the decisive consideration that the question is not one which belongs to the domain of municipal law alone.
The question was again raised in Attorney General for Canada v. Attorney General for the Province of Quebec[6],but was left unanswered at p. 431:
The Chief Justice, following their Lordships’ view, expressed in the British Columbia case, declined to answer so much of any of the questions raised as related to the three‑mile limit. As to this their Lordships agree with him. It is highly inexpedient, in a controversy of a purely municipal character such as the present, to express an opinion on what is really a question of public international law. If their Lordships thought it proper to entertain such a question they would have directed the Home Government to be notified, inasmuch as the point is one which affects the Empire as a whole.
The question came up again in Re Dominion Coal Company Limited[7].That case had to do with the right of the County of Cape Breton to assess for municipal taxation under-sea coal workings of the company. Part of these workings were under inland waters and therefore within the County of Cape Breton and assessable by it. (There was no evidence that these workings formed part of a public harbour within the Third Schedule (s. 108) of the British North America Act so as to involve the Federal Crown Proprietary rights.) Other workings carried on under Spanish Bay were held not to be under inland waters. They were, therefore, outside the municipality and not subject to assessment by that authority. Currie J. dissented on this point and would have held that this part of the operations which was under Spanish Bay was also under inland waters and consequently within the county.
The ratio of the judgment was confined within the narrow limits that we have stated. There was, however, a wider discussion in the reasons of MacDonald J. and Currie J. which dealt with the issues with which we are concerned. MacDonald J. stated these issues, including the effect of the decision in Reg. v. Keyn[8] and the effect of the enactment of the Territorial Waters Jurisdiction Act 1878, c. 73. He regarded Reg. v. Keyn as settling the common law rule that the territory of the realm ends at low-water mark and that territorial waters within three miles of this limit are not within the body of adjacent counties or of the realm (p. 629). The Territorial Waters Jurisdiction Act 1878, he said, was directed to redefining criminal jurisdiction as to offences in territorial waters and did not purport to affect, nor did it affect, the juridical character of those waters as being outside the territorial limits of the realm and the adjoining counties or confer property rights therein (p. 630). But he was careful to define the problem at p. 626 in these terms:
Basically the problem is whether one or both of the submarine workings can be said to be within the limits of the municipality.
And again at p. 632:
Accordingly this Court should refuse to be drawn unnecessarily into a pronouncement of such a nature as the proprietary interest in the maritime belt. Moreover, the Assessment Act in any case does not purport, expressly or by necessary implication, to bring such beds within the territorial limits of the county defined in the Order in Council of 1824, nor to authorize taxation of the property of others situate therein.
Currie J. also had an obiter opinion:
Prior to Confederation, Nova Scotia exercised jurisdiction over territorial waters three miles in width measured from its coasts, bays and rivers, and under s. 109 of the B.N.A. Act, all property rights held by Nova Scotia before Confederation were retained. The subsoil in territorial waters belongs to the Provinces rather than to Canada, subject to certain reservations in the B.N.A. Act.
We have already stated the obiter opinion of MacDonald J. delivered in the Dominion Coal case upon the effect of Reg. v. Keyn. This case was argued before the Court of Crown Cases Reserved and the reported judgments are lengthy and diverse. The facts were that the Commander of a foreign ship, the Franconia, was indicted for manslaughter before the Central Criminal Court arising from the loss of life on a British ship which was sunk by the Franconia within three miles of the Port of Dover. The accused was a German national and his ship was on a voyage to a foreign country and was merely passing through English territorial waters at the time of collision. The accused set up a plea of jurisdiction, saying that as the offence was committed out of the United Kingdom by a foreigner on board a foreign ship, it was not within the jurisdiction of the English Criminal Courts.
The English Criminal Courts would have had jurisdiction if the act had occurred within the body of a county of England. The question whether the territorial sea was within the body of a county was, therefore, directly in issue. If it had been within the body of the county, the Court of Oyer and Terminer would have had jurisdiction. The majority decision of the court was that the territory of England ends at low-water mark. There was, therefore, no jurisdiction in the Court of Oyer and Terminer. The court also held that the case did not fall within the historical jurisdiction of the Lord High Admiral. That court would have had jurisdiction if the accused had been a British national. The jurisdiction of the Admiral, which begins at low-water mark, did not extend to foreign nationals on foreign ships.
The lengthy reasons of the majority are summarized on the branch of the case in which we are particularly interested in the brief judgment of Lush J., which we quote in full:
I have already announced that, although I had prepared a separate judgment, I did not feel it necessary to deliver it, because, having since perused the judgment which the Lord Chief Justice has just read, I found that we agreed entirely in our conclusions, and that I agreed in the main with the reasons upon which those conclusions are founded. I wish, however, to guard myself from being supposed to adopt any words or expressions which may seem to imply a doubt as to the competency of Parliament to legislate as it may think fit for these waters. I think that usage and the common consent of nations, which constitute international law, have appropriated these waters to the adjacent State to deal with them as the State may deem expedient for its own interests. They are, therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes denoting that this belt of sea is under the exclusive dominion of the State. But the dominion is the dominion of Parliament, not the dominion of the common law. That extends no further than the limits of the realm. In the reign of Richard II the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas. At that period the three-mile radius had not been thought of. International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our municipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such Act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now; and upon the high seas the Admiralty jurisdiction was confined to British ships. 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.
As a result of this decision, Parliament enacted the Territorial Waters Jurisdiction Act 1878, 41-42 Vict., c. 73. This Act declares that all offences committed on the open sea within one marine league of the coast of any part of Her Majesty’s Dominions to be within the jurisdiction of the Admiral. The Act did no more than deal with what was regarded as a gap in the Admiral’s jurisdiction. It did not enlarge the realm of England, nor did it purport to deal with the juridical character of British territorial waters and the sea-bed beneath them.
We have to take it, therefore, that even after the enactment of the Territorial Waters Jurisdiction Act the majority opinion in Reg. v. Keyn that the territory of England ends at low‑water mark was undisturbed.
The application of the Act of 1878 is relevant to the problem under consideration here. The Admiral’s jurisdiction was made to extend to all offences committed on the open sea within one marine league of the coast of any part of Her Majesty’s Dominions. The term “offence” was defined in the Act as “any act of such a nature that it would, if committed within the body of an English county, be punishable on indictment according to the law of England at the time being in force”. What would have happened in 1879 if an offence had been committed within one marine league of the coast of British Columbia? Had the case come up in a British Columbia court, the applicable law would not have been the criminal law of Canada but the law of England for the time being in force. If the territory of British Columbia had extended one marine league from low-water mark, the offence would have occurred within Canada and Canadian criminal law ought to have been applicable, but by the express terms of the Territorial Waters Jurisdiction Act it was the law of England that applied. The legislation is inconsistent with any theory that in 1878 the Province of British Columbia possessed as part of its territory the solum of the territorial sea. Equally inconsistent with any such theory is early Canadian legislation. The Customs Act 1867, 31 Vict., c. 6, s. 83, deals with vessels “hovering (in British waters) within one league of the coasts or shores of Canada”.
An Act respecting Fishing by Foreign Vessels, 1868, 31 Vict., c. 61, s. 1, empowers the Governor to grant licences to foreign vessels to fish
in British waters, within three marine miles of any of the coasts, bays, creeks or harbours whatever, of Canada, not included within the limits specified and described in the first article of the convention between His late Majesty King George the Third and the United States of America, made and signed at London on the twentieth day of October, 1818.
In contrast, An Act to amend The Customs Act, Statutes of Canada 1928, 18-19 Geo. V., c. 16, s. 1, speaks on two occasions of vessels hovering in “territorial waters of Canada” and proceeds to define for the purposes of the section and s. 207 of the Customs Act the territorial waters of Canada in the following terms:
“Territorial waters of Canada”, shall mean the waters forming part of the territory of the Dominion of Canada and the waters adjacent to the Dominion within three marine miles thereof, in the case of any vessel, and within twelve marine miles thereof, in the case of any vessel registered in Canada.
Regina v. Keyn was decided in 1876. In the following year it was considered in two reported cases: Harris v. Franconia[9] and Blackpool Pier Co. v. Fylde Union[10]. In Harris v. Franconia there was a motion to set aside an order for the service of a writ on a foreigner residing abroad in respect of a cause of action arising at sea below low-water mark though within three miles of the English coast. The judges were Lord Coleridge C.J., Grove J., and Denman J. These were three minority judges in Reg. v. Keyn and they were all of the opinion that that case decided that the territory of England and the sovereignty of the Queen stopped at low‑water mark (except where under special circumstances and in special Acts, Parliament had thought fit to extend it).
In the Blackpool Pier case Lord Coleridge held that the pier extended 500 feet beyond low‑water mark and was therefore beyond the realm of England and was not assessable to that extent for poor rate under the Poor Law Amendment Act of 1867. The other judge was Grove J. To express our conclusion up to this point, we adopt the summary in Coulson & Forbes on Waters and Land Drainage, 6th ed., 1952, at p. 12:
1. The realm of England where it abuts upon the open sea only extends to low water mark; all beyond is the high sea.
2. For the distance of three miles, and in some cases more, international law has conceded an extension of dominion over the seas washing the shores.
3. This concession is evidenced by treaty or by long usage.
4. In no case can the concession extend the realm of England so as to make the conceded portion liable to the common law, or to vest the soil of the bed in the Crown. This must be done by the act of the Legislature.
We do not intend to trace the history of the claims to the territorial sea in International Law. That history is conveniently summarized in the work, published in 1965, by D.P. O’Connell on International Law, vol. I, pp. 523-528. Very wide claims have been made from time to time. In Attorney General for British Columbia v. Attorney General for Canada[11], as we have observed, the Privy Council said:
They desire, however, to point out that the three-mile limit is something very different from the narrow seas limit discussed by the older authorities such as Selden and Hale, a principle which may safely be said to be now obsolete.
The logical starting point is now the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone which may now be regarded as defining the present state of international law on this subject. We set out Articles 1 to 4(1). (The rest of Article 4 deals with methods of drawing baselines):
Article 1. 1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.
Article 2. The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil.
Article 3. Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.
Article 4. 1. In localities