Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas

Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas
Collection
Supreme Court Judgments
Date
1984-05-17
Report
[1984] 1 SCR 388
Case number
14471
Judges
Laskin, Bora; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Chouinard, Julien; Wilson, Bertha
On appeal from
British Columbia
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388
Date: 1984-05-17
IN THE MATTER of Section 37 of the Supreme Court Act, R.S.C. 1970, c. S-19,
AND IN THE MATTER of Section 3 of the Constitutional Questions Determination Act, R.S.B.C. 1960, c. 72,
AND IN THE MATTER of a Reference by the Lieutenant-Governor-in-Council concerning the Ownership of the Bed of the Strait of Georgia and Related Areas as set out in Order‑in‑Council No. 3459 approved October 31, 1974
Between
The Attorney General of Canada Appellant;
and
The Attorney General of British Columbia Respondent;
and
The Attorney General of Nova Scotia, the Attorney General for New Brunswick, the Attorney General for Alberta and the Attorney General of Newfoundland Interveners.
File No.: 14471.
1982: October 26, 27, 28; 1984: May 17.
Present: Laskin C.J.[1] and Ritchie, Dickson, Beetz, Estey, Chouinard and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law—Ownership of the bed of the Juan de Fuca, Georgia, Johnstone and Queen Charlotte Straits—Whether federal or provincial property—Territorial Waters Jurisdiction Act, 1878 (U.K.), 41-42 Vict., c. 73—An Act for the Union of the Colony of Vancouver Island with the Colony of British Columbia, 1866 (U.K.), 29-30 Vict., c. 67.
The Lieutenant-Governor in Council of British Columbia referred to the British Columbia Court of Appeal the following constitutional question:
Are the lands or any part or parts thereof including the mineral and other natural resources of the seabed and subsoil, covered by the waters of the Strait of Juan de Fuca, the Strait of Georgia… Johnstone Strait and Queen Charlotte Strait… the property of the Queen in Right of the Province of British Columbia?
The majority of the Court of Appeal concluded that the land and waters between Vancouver Island and the mainland were, at Confederation, within the province and answered the question in the affirmative. The Attorney General of Canada appealed from the decision. The provinces of Nova Scotia, New Brunswick, Alberta and Newfoundland intervened in support of the Attorney General of British Columbia.
Held (Ritchie and Wilson JJ. dissenting): The appeal should be dismissed. The constitutional question should be answered in the affirmative.
Per Dickson, Beetz, Estey and Chouinard JJ.: The lands under the waters between mainland British Columbia and Vancouver Island are the property of the Province since the submerged lands were part of the Colony of British Columbia when it entered Confederation in 1871.
In 1866, the British Parliament passed an act providing for the union of the Colony of Vancouver Island with the Colony of British Columbia. The Act defined the boundaries of the new and united Colony of British Columbia as follows: “to the south by the territories of the United States…, to the west by the Pacific Ocean…, to the north by the sixtieth parallel… and to the east… by the Rocky Mountains”. On the true construction of this statute, the western boundary described as the “Pacific Ocean” can only refer to the open sea off the west coast of Vancouver Island and not to the straits between the mainland and Vancouver Island which, historically, have never been referred to as the Pacific Ocean. The words “territories of the United States” refer to the U.S. frontier defined by the Oregon Treaty of 1846 namely, the boundary line running through mid-channel of the straits separating Vancouver Island from mainland Washington State. With that Treaty, Britain clearly asserted ownership over “all the territories” up to that mid-channel boundary. Even if the word “territory” prima facie refers to dry land, history, geography and the express words of the 1866 Act and its predecessors would displace this presumption. All the lands and waters north of the mid-line of the channel were therefore included within the statutory borders of British Columbia. Considering that the boundaries of the Province have not changed since that date it follows that the seabed is still within and part of British Columbia today. The Reference re Offshore Mineral Rights of British Columbia dealt only with the status of the territorial sea off British Columbia as that term is understood at international law. It did not settle the question of proprietorship with reference to the land at issue on the present case. Finally, nothing relating to the Territorial Waters Jurisdiction Act, 1878 or to the regular jurisdiction of the Admiralty Courts contradicts the conclusion of provincial proprietorship over the subject lands and waters.
[Reference re Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; New South Wales v. Commonwealth of Australia (1975), 135 C.L.R. 337, distinguished; R. v. Keyn (1876), 2 Ex. D. 63; R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] 2 All E.R. 118; R. v. Burt (1932), 5 M.P.R. 112; R. v. Bruce (1812), 168 E.R. 782; R. v. Mannion (1846), 2 Cox C.C. 158; R. v. Kahitaska (1906), 8 W.A.L.R. 154; R. v. Ford; R. v. Gilkey (1956), 115 C.C.C. 113; R. v. Johanson (1922), 31 B.C.R. 211, referred to]
APPEAL from a judgment of the British Columbia Court of Appeal (1976), 1 B.C.L.R. 97, which answered in the affirmative a constitutional question referred to it by the Lieutenant‑Governor in Council concerning the ownership of the bed of the Strait of Georgia and related areas. Appeal dismissed, Ritchie and Wilson JJ. dissenting.
T.B. Smith, Q.C., M.L. Jewett and P.K. Doody, for the appellant.
George S. Cumming, Q.C., and Norman Tarnow, for the respondent.
Gordon F. Henderson, Q.C., and Emilio S. Binavince, for the intervener the Attorney General of Nova Scotia.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
James J. Greene, Q.C., and Colin K. Irving, for the intervener the Attorney General of Newfoundland. The following are the reasons delivered by
RITCHIE J. (dissenting)—I agree with the reasons for judgment prepared for delivery by Madame Justice Wilson. It follows that I would allow this appeal and answer the question posed in this Reference in the negative holding that the submerged lands belong to Her Majesty in Right of Canada.
The judgment of Dickson, Beetz, Estey and Chouinard JJ. was delivered by
DICKSON J.—
I The Issue
In broad terms, the question raised in this appeal is whether the lands, including mineral and other natural resources of the seabed and subsoil covered by the waters between mainland British Columbia and Vancouver Island are the property of Canada or of British Columbia. The Lieutenant-Governor in Council of British Columbia in a Reference to the British Columbia Court of Appeal, pursuant to the Constitutional Questions Determination Act (R.S.B.C. 1960, c. 72) posed the question in these terms:
Are the lands or any part or parts thereof including the mineral and other natural resources of the seabed and subsoil, covered by the waters of the Strait of Juan de Fuca, the Strait of Georgia (sometimes called the Gulf of Georgia), Johnstone Strait and Queen Charlotte Strait (bounded on the south by the international boundary between Canada and the United States of America, on the west by a line from Tatoosh Island lighthouse to Bonilla Point reference mark and on the north by a straight line drawn across Queen Charlotte Strait from Greeting Point on Nigei Island to McEwan Point on Bramham Island) the property of the Queen in Right of the Province of British Columbia?
Although it is not unreasonable to treat the waters between Vancouver Island and the mainland as a single body, the question before us names four distinct straits. Queen Charlotte Strait is the most northerly of the four. It appears to be some 10 to 12 miles wide at the mouth and 50 to 60 miles deep. At its southern end it empties into Johnstone Strait which is a long narrow body of water, geographically resembling an estuary except that it is open at both ends. It appears to be about 1½ to 2 miles wide at the Queen Charlotte entrance and about one mile wide at the Georgia Strait end, narrowing to much less than a mile at the Seymour Narrows in Discovery Passage. It appears to be about 75 miles long.
Georgia Strait is considerably wider than the other three, with a narrow opening into Johnstone Strait in the north. Its southern end is the Haro Archipelago, the ownership of which was the subject of an 1871 Anglo-American arbitration before the German Emperor. The international border extends along the 49th parallel to the middle of Georgia Strait then, roughly midway between the coastlines of Vancouver Island and the United States mainland, it proceeds south through Haro Strait to Juan de Fuca Strait, thereby severing the southeastern corner of Georgia Strait and making it part of the United States.
Juan de Fuca Strait appears to be about 12 miles wide at its mouth and 80 to 90 miles deep. The international border runs in mid-channel.
It is important to note that the question raised in this Reference is not concerned with legislative jurisdiction nor with political or economic considerations. No question arises as to the power of Parliament to legislate in relation to matters within its exclusive legislative jurisdiction as, for example, control over shipping, navigation, trade and commerce, customs, fisheries and defence. The sole question here is the matter of proprietorship in lands.
Proprietorship in this context, however, connotes something less precise than one might expect in following a chain of title in a land registry office. One looks in vain among the documents for anything in the nature of an express grant by the United Kingdom to Canada or British Columbia. Nonetheless, as Kerr L.J. noted in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] 2 All E.R. 118, at p. 132:
…there may be a devolution of rights and obligations of the Crown in respect of the government of Great Britain to another government within the Commonwealth without any express statutory or other transfer, but merely by virtue of the creation of the new government and of the assignment to it of responsibilities which relate to the rights and obligations in question.
All are agreed that the British Crown no longer holds proprietorship over the subject lands. Agreement ends there. The Province, whose position was upheld by a majority of the Court of Appeal of British Columbia (Farris C.J.B.C., Bull and McFarlane JJ.A.) (1976), 1 B.C.L.R. 97, contends that the lands are the property of British Columbia. It claims that the 1866 enactment of the Imperial Parliament providing for union of the Colony of Vancouver Island with the Colony of British Columbia, defined the boundaries of the Province and these boundaries were not changed at Confederation with Canada in 1871. According to the Province and to the majority of the Court of Appeal of British Columbia, the western boundary of the United Colony of British Columbia was the Pacific Ocean off the west coast of Vancouver Island and its southern boundary included the international border with the United States running through mid-channel of the straits separating Vancouver Island from mainland Washington State. The land and waters between the Island and the mainland were therefore within the Province at Confederation.
Canada’s position to the contrary is that none of the subject lands or waters were within the boundaries of the Province at Confederation. This position was supported in the Court of Appeal of British Columbia by Seaton J.A. and Mclntyre J.A., as he then was, who dissented in separate reasons. Each concluded that the decision of this Court in Reference re Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792 (the 1967 Offshore Reference), applied to the lands and waters in question. Although the Imperial Parlia- ment could have established or extended the boundaries of one or other of the colonies to encompass the waters between Vancouver Island and the mainland there was no intention to do so and the usual presumption applied, namely, that the statutory descriptions included only lands above low-water mark. The union of the colonies did not alter the low-water mark boundary. No words apt to that purpose were used in the relevant statutes.
An appeal has been taken by the Attorney General of Canada to this Court pursuant to s. 3 of the Constitutional Questions Determination Act, supra, and s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19. Nova Scotia, New Brunswick, Alberta and Newfoundland have intervened to support the Attorney General of British Columbia.
II The 1967 Offshore Reference
Did the 1967 Offshore Reference decide the status of the lands in issue in this appeal? The first question in the 1967 Offshore Reference and the one of potential relevance in the present appeal was this:
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?
(Emphasis added.) The answer given to each of questions (a), (b) and (c) was “Canada”.
If these answers are to be dispositive of the present appeal, the submerged lands beneath the Strait of Juan de Fuca, Georgia Strait, Johnstone Strait and Queen Charlotte Strait must fall within the description “seaward from the ordinary low-water mark on the coast of the mainland and the several islands of British Columbia” but must not be excepted by the words “harbours, bays, estuaries and other similar inland waters”.
Both the relevant phrases are susceptible of contrasting interpretations. The meaning of the first phrase depends a great deal on the significance of the word “and”. This phrase could mean that the inner limit of the area in question was the low-water mark on the coast of the mainland and also the low-water mark off the coast of the “several islands of British Columbia”. In that case the lands in question in this Reference, being “seaward from the ordinary low-water mark on the coast of the mainland” would be part of the subject matter of the 1967 Offshore Reference unless excluded by the second phrase. On the other hand, these same words could also mean that the inner limit of the area in question is to be the low‑water mark on the coast of the mainland where it fronts on the open sea, but where there are islands off the coast it is the low-water mark off these islands that is to form the inner limit. This latter reading of the phrase would make the area in question roughly the equivalent of the “Territorial Sea” as defined in the Territorial Sea and Fishing Zones Act, 1964-65 (Can.), c. 22, which according to the terms of the 1967 Offshore Reference undoubtedly defined the outer limits of the lands in issue. This latter reading would also explain the inclusion of the phrase “and the several islands of British Columbia”, which, on the first reading would be superfluous since in every case the outer limit of the reference would be fixed by the Territorial Sea and Fishing Zones Act. On this second reading the subject lands would not be included in the terms of the 1967 Offshore Reference.
Even if the first reading were correct and the subject lands are “seaward from the ordinary low-water mark on the coast of the mainland and the several islands of British Columbia” they would still not have been dealt with by the 1967 Offshore Reference if they were to fall within the exclusion for “harbours, bays, estuaries and other similar inland waters”. Here again there are two possible readings, depending on the meaning to be given to the word “inland”. In his factum the Attorney General of Canada insists on a distinction between internal waters and inland waters. “Internal waters”, he asserts, is an international law term referring to waters on the landward side of “baselines” drawn from headland to headland in order to delimit the territorial sea. The straits in question are, he concedes, internal waters at international law. He submits, however, that they are not “inland waters”, which, he contends, is a common law term to designate waters inter fauces terrae (i.e. “within the jaws of the land”) which the common law considered to be within the body of a county and therefore within the realm of England. If his submission is correct and if the straits in question are not inter fauces terrae at common law then they cannot be “inland waters” and hence could not have been excluded from the 1967 Offshore Reference by the exception for “other similar inland waters”. Following this line of reasoning in their dissenting opinion, Seaton J.A. and Mclntyre J.A. (as he then was) proceeded to examine the difficult question of whether the subject straits were inter fauces terrae at common law, eventually coming to a negative conclusion. The issue, however, is not as straightforward as might appear from the federal Attorney General’s submissions. The case law does not always observe the distinction he proposes and often uses the terms “inland” and “internal” interchangeably. As a result, while the federal Attorney General’s definition of “internal” may indeed be correct historically, by the mid-twentieth century the term “inland waters” could accurately be applied to either the common law or the international law concept. This means that irrespective of the answer to the vexed question of whether the straits in issue are inter fauces terrae they could plausibly be considered to be “other similar inland waters” and hence excluded from the 1967 Offshore Reference. If “inland” is interpreted as synonymous with “internal” then once again the inner limits of the 1967 Offshore Reference would coincide with the inner limits of the territorial sea at international law.
While it is true that in the abstract the wording of the first question in the 1967 Offshore Reference could be susceptible to these divergent meanings, a glance at the reasoning of this Court in that Reference leaves no doubt as to which of the readings the Court adopted.
Immediately after setting out the question posed to it, the Court, with the apparent purpose of delineating the parameters of this question, cited s. 3 of the Territorial Sea and Fishing Zones Act, supra, which reads:
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.
(Emphasis added.) After a brief historical outline the Court, at p. 800, articulated its understanding of the problem before it, namely “whether the territorial sea was within the boundary of the Province of British Columbia at the time of Confederation”. As a consequence, the heading under which it discusses the first question put to it is “The Territorial Sea”.
At page 801 the Court restates its perception of the nub of this issue: “Therefore, to succeed on this Reference, British Columbia must show that the territorial sea was, in 1871, part of the territory of British Columbia.” At page 807, the Court returns to this issue, citing as “the logical starting point” for discussing the status of the territorial sea, the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. To this end, it sets out Articles 1-4(1) of that Convention which read:
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 where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
(Emphasis added.)
Shortly thereafter the Court reiterates its conclusion that “in 1871 the Province of British Columbia did not have ownership or property in the territorial sea and that the province has not, since entering into Confederation, acquired such ownership or property”. There follow numerous further references to the territorial sea leading to the conclusion at p. 816 that “The sovereign state which has the property in the bed of the territorial sea adjacent to British Columbia is Canada”. The Court then concludes its discussion of the first question put to it with the following observations (at p. 817):
Moreover, 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.
Canada is a signatory to the Convention on the Territorial Sea and Contiguous Zone and may become a party to other international treaties and conventions affecting rights in the territorial sea.
We answer Questions 1(a), 1(b) and 1(c) in favour of Canada.
(Emphasis added.)
All of this is consistent only with the conclusion that the Court was dealing with the issues of sovereignty, property and legislative jurisdiction with regard to the territorial sea as defined by international law, i.e. the waters and submerged lands to a width of three miles seaward of the coast of the mainland but where the mainland coast is deeply indented or has a fringe of islands in its immediate vicinity, seaward from baselines enclosing these features. The subject straits are not included in this area.
The dissenting opinions in the British Columbia Court of Appeal both expressed the view that in the 1967 Offshore Reference this Court answered the question put to it. With respect I agree but the question before the Court in 1967 was not the question before the Court today. As I have indicated, interpreting the first question of the 1967 Offshore Reference to refer to the territorial sea, as defined by international law and by the Territorial Sea and Fishing Zones Act, is fully in accord with the phrasing of the question, and makes much better sense of the inclusion of the phrase “and the several islands of British Columbia” than does the alternative possible reading.
I conclude that the 1967 Offshore Reference did not deal with the waters and submerged lands in issue in the present Reference. It cannot be taken as having already decided the question now before the Court.
HI The Issues
While the 1967 Offshore Reference is not dispositive of the present Reference, it is nevertheless crucial to the current deliberations.
At the centre of this Court’s judgment in the 1967 Offshore Reference was the decision in R. v. Keyn (1876), 2 Ex. D. 63. As explained in the short concurring judgment of Lush J. in that case, the majority in Keyn held that unless specifically extended by Parliament, the realm of England ended at the low-water mark and therefore, though waters within a three-mile radius of the shore might well be “British territory” as between nation and nation, for purposes of the common law they were beyond the realm.
In the 1967 Offshore Reference this Court applied the reasoning in Keyn to the territorial sea surrounding British Columbia. It held that though immediately prior to Confederation this three-mile strip might well have been “British territory”, the Imperial Parliament had done nothing to extend the boundaries of British Columbia to include this strip, and therefore the normal assumptions should prevail, namely that the territory of the colony just prior to Confederation ended at the low-water mark. The Court found added support for this assumption in the passage by the Imperial Parliament of the Territorial Waters Jurisdiction Act, 1878 which extended Admiralty jurisdiction to the waters in question. The Court considered this enactment inconsistent with any theory that at the time British Columbia possessed as part of its territory the solum of the territorial sea.
In order to succeed in the present Reference, therefore, British Columbia must demonstrate that prior to Confederation either the lands and waters in question were “within the realm” as that term is used in R. v. Keyn or else that by some overt act Britain incorporated them into the territory of the Colony of British Columbia so as to displace the “normal assumption” cited in the 1967 Offshore Reference. British Columbia claims that it can do both. Canada contends that the province can do neither.
If British Columbia can demonstrate either of these alternatives, it would necessarily follow that the lands in question were within British Columbia when it entered Confederation and consequently British Columbia has retained proprietorship. If, on the other hand, it cannot make good on either claim, then the lands and waters were not within the province at Confederation, the United Kingdom retained them between 1871 and the period (1919-1931) during which Canada acquired sovereign status and succeeded to the rights of the United Kingdom.
British Columbia claims that its rights of proprietorship derive from the terms of the constitutive instruments of the Colony of Vancouver Island, the Colony of British Columbia and the United Colony of British Columbia, the cumulative effect of which it contends was to include the subject lands within the boundaries of British Columbia. In addition, or in the alternative, it contends that since all the contiguous dry lands within the Dominion of the Crown became part in 1858 of the separate colonies of Vancouver Island and British Columbia and then in 1866 of the United Colony by virtue of the “inland waters” doctrine, the enclosed submerged lands became first part of one or the other of the separate colonies and then part of the United Colony of British Columbia. On either or both of these bases, according to the Province, the submerged lands were within the boundaries of the Colony of British Columbia (and hence the property of the Crown in right of that colony) immediately prior to Confederation, so that at Confederation they became the property of the Crown in right of the Province of British Columbia.
Canada denies that the constitutive instruments cited by British Columbia placed any of the lands in question within the boundaries of either the separate colonies or the United Colony, or that the common law would have recognized these lands or the waters above them as forming part of the contiguous dry lands. Since, in Canada’s submission, the subject lands were never within the boundaries of the Colony of British Columbia, they could not pass to the Province of British Columbia at Confederation but rather remained vested in the Imperial Crown and upon Canada’s accession to sovereignty passed to the Crown in right of Canada.
IV Statutory Boundaries
(A) Events Leading Up to the Oregon Treaty, 1846
For a correct appreciation of the boundaries question, it is necessary to look back through the mists of time to the history of British Columbia prior to 1871.
In the latter part of the 18th century, Britain, Spain, Russia and the United States all claimed sovereignty over the west coast of North America.
The British claim depended on the exploration of Captain Cook in 1774, Captain Meares in 1788 and Captain Vancouver in 1792. In 1788 Captain Meares specifically annexed “the Straits of John de Fuca” as he put it “in the name of the King of Britain, with the forms that had been adopted by preceding navigators on similar occasions”. Four years thereafter, on the King’s birthday, Captain Vancouver took “formal possession of all the countries we had been lately employed in exploring, in the name of, and for His Britannic Majesty, his heirs and successors”. He described the extent of these territories as follows:
…the coast, from, that part of New Albion, in the latitude of 39° 20′ north, and longitude of 236° 26′ east, to the entrance of this inlet of the sea, said to be the supposed straits of Juan de Fuca; and likewise all the coast islands &c., within the said straits, as well on the northern as on the southern shores; together with those situated in the interior sea we had discovered, extending from the said straits in various directions, between the north-west, north, east, and southern quarters; which interior sea I have honoured with the name of the Gulf of Georgia, and the continent binding the said gulf, and extending southward to the 45th degree of north latitude, with that of New Georgia, in Honour of His present Majesty.
(Emphasis added.)
By the beginning of the 19th century the Spanish claim to the Pacific Northwest had been dropped and the Russian claim was restricted to Alaska and the far north. That left Britain and the United States. An 1818 Anglo-American Treaty established the 49th parallel as the international border from Lake of the Woods to the Rocky Mountains, but left the territory west of the Rockies open to the nationals of both countries. In the negotiations leading to the 1818 Treaty, Britain claimed its coastal territories extended south to 42° latitude, now the Oregon‑California border. The Americans claimed north to 54° 40′, the southern tip of the Alaska “panhandle”. Both sides proposed compromises. The Americans would have extended the 49th parallel border to the Pacific, while Britain proposed that the Columbia River, on which the City of Portland, Oregon is now situated, become the border. Neither compromise proved acceptable.
Britain had given the Hudson’s Bay Company an exclusive trading license in the territory west of the Rockies. In the 1830’s and 1840’s American settlers poured into the area that is now the State of Oregon. They resented the Hudson’s Bay Company monopoly, and pressure for a border settlement increased. Fearing settler revolt, the Hudson’s Bay Company was forced to move its stores at Fort Vancouver on the Columbia, to Fort Victoria, a new and safer location on the southern portion of Vancouver Island.
Against this background negotiations proceeded between Britain and the United States. In terms of formal legal claims each country continued to assert sovereignty in, and proprietary rights over, the entire expanse of territory between the California border and the Alaska panhandle. As a practical matter, however, settlement patterns considerably narrowed the range of realistic possibilities for agreement. The correspondence between the United States and Britain leading up to the 1846 Oregon Treaty shows that both sides contemplated an eventual border in the vicinity of the 49th parallel. The main concern by both parties was about navigation rights in the Strait of Juan de Fuca. The British had long refused to accept a 49th parallel border because it would have “severed” Vancouver Island, and “sealed” the “Gulf of Georgia” and the Strait of Juan de Fuca to British ships. For their part, the Americans had been forcibly excluded from these straits for over 30 years. They claimed that Juan de Fuca was “an arm of the sea” and not a “closed sea” and that “all nations would possess the same right to navigate it”.
A compromise was finally reached in the Oregon Treaty of 1846. The precise wording of the passage establishing the border line is important. It provides:
“the line of boundary between the territories of Her Britannic Majesty and those of the United States shall be continued westward along the said 49th parallel… to the middle of the channel which separates the continent from Vancouver’s Island; and thence southerly, through the middle of the said channel, and of Fuca’s Straits to the Pacific Ocean”;…
(Emphasis added.)
The Treaty goes on to provide that the navigation of the whole of the said channel and straits south of the 49th parallel would remain free and open to both parties. No other nation is given navigation rights south of the 49th parallel, nor is there any provision for free American navigation north of this parallel which include most of the Georgia Strait and all of Johnstone and Queen Charlotte Straits.
That a border delineation will amount to an effective territorial claim is affirmed by the decision of the New Brunswick Supreme Court in R. v. Burt (1932), 5 M.P.R. 112, in a passage cited by this Court in the 1967 Offshore Reference, supra, at p. 809:
…by the Royal Instructions issued to Governor Carle-ton upon the separation of what is now the Province of New Brunswick from the Province of Nova Scotia, the southern boundary of the new Province was defined as “a line in the centre of the Bay of Fundy from the River Saint Croix aforesaid to the mouth of the Musquat (Missiquash) River” clearly indicating the claim of Great Britain at that time to the whole of the Bay of Fundy as a portion of her territory.
In the 1967 Offshore Reference this Court was satisfied that even a simple border delineation such as the one referred to in Burt would have been sufficient to render a maritime location “within the boundaries of the Province”. The Oregon Treaty, however, is more than simply a border delineation. It is the resolution of the competing British and American claims to ownership over the entire “Oregon Territory”. The demarcation of the 49th parallel and the mid-channel point in the Straits as the international boundary constitutes a recognition by each signatory of the claims of the other to proprietorship over all “the territories” up to that boundary. The arrangements as to navigation rights, wherein each party purports to grant to the other navigation rights in certain of the waters on its side of the new boundary can simply be viewed as a further confirmation that both parties addressed their minds to the ownership of these waters and were asserting proprietary rights therein. If there is any doubt that the acts of Captains Meares and Vancouver in the late 1700’s amounted to a claim of proprietorship over the subject waters, as well as over the islands, there can be no doubt that after 1846 these waters were part of British territory.
(B) The Constitutive Instruments of the Colony of Vancouver Island
If the waters and submerged lands between Vancouver Island and the mainland became British property in 1846 at the latest, the next question is this: were these waters and submerged lands subsequently transferred to the Colony, or did they remain British property until at least 1871 when British Columbia entered Confederation?
The first British colony in the Pacific Northwest was the Colony of Vancouver Island, which was granted to the Hudson’s Bay Company in 1849 for purposes of colonization. British Columbia claims that the terms of the granting document expressly placed the subject lands within the boundaries of the colony. This document is, for the era, typically long. The pertinent parts are as follows:
And whereas by a treaty between Ourselves and the United States… signed… on the fifteenth day of June, one thousand eight hundred and forty-six it was agreed… That from the point of the forty-ninth parallel… where the boundary… between Great Britain and the said United States terminated, the line of boundary between Our territories and those of the United States should be continued westward along the said parallel… to the middle of the channel which separates the continent from Vancouver Island, and thence southerly through the middle of the said channel and of De Fuca’s Straits to the Pacific Ocean…
And whereas… [the Hudson’s Bay] Company have traded as well within as beyond the limits of the lands and territories granted to them… and have in connection with and for the protection of their trade… been in the habit of erecting forts and other isolated establishments… and some of such… are now existing in that part of Our said territories in North America, including Vancouver Island, the boundary line between which and the territories of the said United States is determined by the herein-before recited treaty…
And whereas it would induce greatly to the maintenance of peace, justice and good order, and to the advancement of colonization and to the promotion… of trade and commerce in, and also to the protection and welfare of native Indians residing within… Vancouver Island, if such Island were colonized by settlers from the British dominions…
…We being moved by the reasons before mentioned, do… give, grant, and confirm unto the said… Company… all that the said Island called Vancouver Island, together with all royalties of the seas upon these coasts within the limits aforesaid, and all mines royal thereto belonging. And further, We do… constitute the said… Company… the true and absolute lords and proprietors of the said territories limits and places, and of all other the premises… to have, hold, possess, and enjoy… in free and common socage, at the yearly rent of seven shillings… Provided always,… that this present grant is made to the intent that the said… Company shall establish… settlements of resident colonists,… from our United Kingdom… and shall dispose of the land there… for the purposes of colonization;… at a reasonable price,… and that all moneys which shall be received… for the purchase of such land, and also from all payments which may be made… for… coal or other minerals… shall, after deduction of… profit as shall not exceed… ten per cent… be applied toward the colonization and improvement of the island;
The 1849 grant refers to the Oregon Treaty on two occasions. First:
And whereas by a treaty between Ourselves and the United States of America for the settlement of the Oregon Boundary… it was agreed… that… the line of boundary between Our territories and those of the United States should be continued westward along the said [49th] parallel of north latitude to the middle of the channel which separates the continent from Vancouver Island, and thence southerly through the middle of the said channel of De Fuca’s Straits to the Pacific Ocean…
(Emphasis added.)
Second:
And whereas… [the Hudson’s Bay] Company have… been in the habit of erecting for