Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 SCR 388

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

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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.

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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.

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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

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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,

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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-

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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.)

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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

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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

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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.)

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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 forts and other isolated establishments… 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…

(Emphasis added.)

I do not agree with British Columbia’s submission that the grant says that the boundary line between the Colony of Vancouver Island and the territories of the United States was the line determined by the 1846 Treaty. On the contrary, the grant states quite clearly, in each of the above passages, that the 1846 Treaty establishes a boundary line between “Our territories” and the “territories of the said United States”. The reference is to an international boundary. British Columbia’s claim with regard to this document is as follows:

[In] the grant of Vancouver Island to the Hudson’s Bay Company of 13 January 1849, the British government defined Vancouver Island as including the waters up to the international boundary line, for it is stated therein that the boundary line between Vancouver Island and the territories of the United States was the line determined by the 1846 Treaty.

As a consequence, in the province’s submission, these waters and adjacent lands were transferred to the Colony in the grant of “all… the said Island called Vancouver Island”.

I cannot agree. The passage cited by British Columbia refers to the forts of the Hudson’s Bay Company and reads as follows:

…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

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said territories of the said United States is determined by the herein-before recited treaty…

(Emphasis added.)

Is the antecedent of the pronoun “which” in the phrase underlined above, “Vancouver Island” or “that part of our said territories in North America”? Even when the sentence is read in isolation, it is the latter reading that commends itself to common sense. The phrase in question identifies the portion of British territories in North America in which the Hudson’s Bay Company has erected forts. When read as referring to Vancouver Island, the phrase becomes purposeless. An appositive phrase specifying the location of Hudson’s Bay Company forts is a very unlikely place for a delineation of colonial boundaries.

This impression as to the meaning of the sentence in question is strengthened by reference to the entire document. The Oregon Treaty is mentioned twice in the granting document, once in the passage under consideration and once in the preceding preamble which recites that it was agreed by that treaty that “the line of boundary between Our territories and those of the United States should be continued westward… to the middle of the channel which separates the continent from Vancouver Island”. This earlier passage makes it much more likely that the subsequent mention of the boundary would also refer to a line separating “Our territories” and those of the United States. It also reinforces the impression that “Vancouver Island” is an entity distinct from “the channel which separates the continent from Vancouver Island”. As the subsequent granting clause makes clear it was “the said Island” that was given to the Company for colonial purposes.

The granting clause also bestows “all the royalties of the seas upon these coasts within the limits aforesaid, and all mines royal thereto belonging”. It is true that some of these “mines royal” notably those at Nanaimo did extend under the straits in question, but the specific mention of these mines strengthens rather than weakens the conclusion that apart from such specified exceptions no prop-

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erty in the subject lands passed to the Colony of Vancouver Island by the terms of the 1849 grant.

While the terms of the grant of Vancouver Island to the Hudson’s Bay Company cannot be read as conferring proprietorship over the subject lands, the grant is nevertheless notable for its confirmation in two places of the language of the Oregon Treaty, namely that British “territories” in the Pacific Northwest extended to the middle of the channel separating Vancouver Island from the United States.

(C) The Constitutive Instruments of the Colony of British Columbia

Mainland British Columbia became a colony by Imperial Statute dated August 2, 1858. From the beginning it was clear that the Imperial authorities contemplated an eventual union of the mainland and Vancouver Island into a single colony. The boundaries of the new colony are described in the Act to provide for the Government of British Columbia[2], 1858 (U.K.), 21-22 Vict., c. 99, as follows:

1. British Columbia shall, for the Purposes of this Act, be held to comprise all such Territories within the Dominions of Her Majesty as are bounded to the South by the Frontier of the United States of America, to the East by the main Chain of the Rocky Mountains, to the North by Simpson’s River and the Finlay Branch of the Peace River, and to the West by the Pacific Ocean, and shall include Queen Charlotte’s Island, and all other Islands adjacent to the said Territories, except as hereinafter excepted.

(Emphasis added.)

Section 6 gives the exception:

6. No Part of the Colony of Vancouver’s Island, as at present established, shall be comprised within British Columbia for the Purpose of this Act; but it shall be lawful for Her Majesty, Her Heirs and Successors, on receiving at any Time during the Continuance of this Act a joint Address from the Two Houses of the Legislature of Vancouver’s Island, praying for the Incorporation of that Island with British Columbia, by Order to

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be made as aforesaid, with the Advice of Her Privy Council, to annex the said Island to British Columbia, subject to such Conditions and Regulations as to Her Majesty shall seem expedient; and thereupon and from the Date of the Publication of such Order in the said Island, or such other Date as may be fixed in such Order, the Provisions of this Act shall be held to apply to Vancouver’s Island.

(Emphasis added.)

One month after the creation of the Colony of British Columbia, the Governor of Vancouver Island, James Douglas, was also appointed Governor of British Columbia. The Letters Patent making this appointment repeat, as will presently appear, crucial terms in the earlier statute. British Columbia is described as follows:

…comprising all such territories as are bounded to the south by the frontier of the United States of America, to the east, by the main chain of the Rocky Mountains, to the north, by Simpson’s River and the Finlay Branch of the Peace River, and to the west, by the Pacific Ocean, including Queen Charlotte Island and all other islands adjacent to the said territories, excepting from the said islands Our Island of Vancouver, until the said Island shall, in pursuance of the said Act, be hereafter incorporated into Our said Colony.

(Emphasis added.)

The 1858 Act expired in 1863 and was replaced by 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[3], 1863 (U.K.), 26-27 Vict., c. 83. Although the statutory boundaries were changed somewhat, the crucial language remained the same:

3. British Columbia shall for the purposes of the said Act, and for all other purposes, be held to comprise all such territories within the Dominions of Her Majesty as are bounded to the South by the territories of the United States of America, to the West by the Pacific Ocean and the Frontier of the Russian Territories in North America, to the North by the sixtieth parallel of north latitude, and to the East, from the boundary of the United States northwards, by the Rocky Mountains and the one hundred and twentieth meridian of west longitude, and shall include Queen Charlotte’s Island and all other Islands

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adjacent to the said Territories, except Vancouver’s Island and the Islands adjacent thereto.

(Emphasis added.)

The long-contemplated union between the Colonies of British Columbia and Vancouver Island was accomplished in 1866 by An Act for the Union of the Colony of Vancouver Island with the Colony of British Columbia³, 1866 (U.K.), 29-30 Vict., c. 67. The borders defined by this Act were those of British Columbia when it entered Confederation in 1871. Once again the wording of the Act is of the utmost importance:

3. From and immediately after the Proclamation of this Act by the Governor of British Columbia, the Colony of Vancouver Island shall be and the same is hereby united with the Colony of British Columbia, and thenceforth those Two Colonies shall form and be One Colony, with the Name of British Columbia (which Union is in this Act referred to as the Union).

…

7. Until the Union, British Columbia shall comprise all such territories within the dominions of Her Majesty as are bounded to the south by the territories of the United States of America, to the west by the Pacific Ocean and the Frontier of the Russian Territories in North America, to the north by the sixtieth parallel of north latitude, and to the east from the boundary of the United States northwards by the Rocky Mountains and the one hundred and twentieth meridian of west longitude, and shall include Queen Charlotte’s Island, and all other islands adjacent to the said Territories, except Vancouver Island and the islands adjacent thereto.

8. After the union British Columbia shall comprise all the territories and islands aforesaid and Vancouver Island and the islands adjacent thereto.

(Emphasis added.)

For all significant purposes the wording of each of these documents is identical (in the present context the substitution of the phrase “territories of the United States” in the 1863 and 1866 Acts for the term “Frontier of the United States” is of no interpretive significance), but because of the complications caused by the provisions excepting Vancouver Island it is easiest to understand the

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argument for British Columbia by beginning with the effect, according to the province, of the 1866 Act after union had been accomplished. According to British Columbia, the Act describes the United Province as being comprised of “all such territories” as are included within specific boundaries. The Province submits that the Oregon Treaty and the Vancouver Island grant demonstrate that British “territories” in the Pacific Northwest included not only dry land but also the waters and submerged lands in the channel separating Vancouver Island from the mainland. The southern boundary of the colony is described as “the territories” of the United States. This, according to the argument, can only refer to the frontier of American territories as defined by the Oregon Treaty, i.e. the mid-line of the channel separating Vancouver Island from the United States. All the waters and submerged lands north of the mid-line in this channel are therefore included within the statutory borders of British Columbia. Furthermore, the western border of the colony is described as “the Pacific Ocean”; this, the Province claims, is not a term by which the waters of the subject straits have ever been known and it must therefore, in relation to the southern mainland, be taken to mean the waters off the coast of Vancouver Island, rendering everything east of these waters including the subject straits part of the territory of British Columbia.

i) “Pacific Ocean”

Is this interpretation affected by the fact that before the Union each of the documents in question excluded Vancouver Island from the colonial boundaries being described?

According to British Columbia property in the waters and submerged lands in the straits up to the international border had already been given to the Colony of Vancouver Island in 1849. On this contention, the words “except Vancouver Island” would remove these waters and lands from the statutory definition of the boundaries of the Colony of British Columbia until Union, whereupon they would have become part of the United

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Colony of British Columbia. As I have indicated, I cannot accept the argument that the 1849 grant had the effect contended for it by British Columbia, but this alone does not deleteriously affect British Columbia’s position. If the subject lands and waters or any portion of them were not part of Vancouver Island in 1849 then on British Columbia’s reading of the documents in question, the consequence would simply be that these lands and waters would not have been removed from the original statutory description and would therefore have been part of the Colony of British Columbia from 1858 rather than from 1866.

This does not however, exhaust the potential objections, based on the exclusion of Vancouver Island, to British Columbia’s reading of its constitutive documents. British Columbia reads “Pacific Ocean” as referring to the waters off the west coast of Vancouver Island. While this reading seems logical enough in the situation after 1866, it presents a good deal more difficulty in the period before 1866 when Vancouver Island was not part of the Colony whose borders were being delineated. In enumerating his objections to British Columbia’s reading of “Pacific Ocean”, Seaton J.A. found this consequence especially damaging to the province’s argument (1 B.C.L.R. 97 at p. 121):

One reason that does not involve more than a look at the geography is that it would not be reasonable to think that the Colony of British Columbia enveloped the Colony of Vancouver Island.

Is British Columbia’s reading, in fact, unreasonable? It is clear that from its very inception British Columbia was intended by the Imperial authorities eventually to include Vancouver Island. The original constitutive document explicitly makes provision for this eventuality and the appointment of the same person as governor of both colonies merely confirms the Imperial intention. In these circumstances it seems perfectly reasonable for the constitutive instruments of the future unified

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colony to delineate its eventual boundaries and then—as it were as a temporary measure—to exclude the territories that had not as yet been incorporated. Since the eventual boundary of British Columbia was from the first intended to be the west coast of Vancouver Island there is nothing unreasonable in using the words “Pacific Ocean” to specify this border, while at the same time recognizing the interim situation by excluding from the boundaries of the colony as then constituted, the landmass of Vancouver Island and its dependencies.

This reading of “Pacific Ocean” seems perfectly reasonable to me, having regard to the historical context. By contrast, history would seem to render eminently unreasonable the alternative reading proposed by Canada, namely that “Pacific Ocean” in these documents means the straits between Vancouver Island and the mainland. Even in the 18th and 19th centuries these straits were not referred to as the “Pacific Ocean”. In 1788 Captain Meares took possession of “the Straits of John de Fuca”. In 1792 Vancouver “discovered… [an] interior sea… [which he] honoured with the name of the Gulf of Georgia”. The Oregon Treaty describes the international border as “… the middle of the channel which separates the continent from Vancouver’s Island; and thence southerly through… Fuca’s Straits to the Pacific Ocean”. A map described as a tracing lodged with the Select Committee of the House on Crown Lands dated 1863, calls each of the four straits by the name it bears today.

If further confirmation is needed for the proposition that in the 19th century the words “Pacific Ocean” meant the open Pacific and not the straits between Vancouver Island and the mainland, it is provided by the consistent British position with respect to 19th century U.S. proposals to extend the border with the British territories in North America along the 49th parallel “from the Rocky Mountains to the Pacific”. As explained in the “Definitive Statement” of the British position at the 1871 San Juan Island Arbitration, British opposition to these proposals were grounded on the fact that such a border would “sever” Vancouver

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Island. This would, of course, be the result of a 49th parallel border only if “Pacific” meant the waters off Vancouver Island rather than Georgia Strait.

In my opinion British Columbia is correct when it says:

The “interior sea” called the Gulf or Strait of Georgia has been known as such since it was so named by Captain George Vancouver after George III in June 1792. The Strait of Juan de Fuca had been so named previously.

Neither Strait is part of the Pacific Ocean. It would be a misdescription so to describe them and, furthermore, there is no evidence that anyone has so described them.

Canada raises a number of further objections to British Columbia’s reading of Pacific Ocean to mean the open Pacific, but none of them seems to me to shake the basic validity of the province’s interpretation.

Canada points out that the islands between Vancouver Island and British Columbia were held in 1865 by the Imperial Law Officers to be part of the Island colony. If “Pacific Ocean” meant the waters off the west coast of Vancouver Island this would lead to what Canada describes as the unlikely situation that the midstream islands belonged to Vancouver Island while the surrounding waters were part of British Columbia.

In my opinion the same historical arguments that make it reasonable for the constitutive instruments of British Columbia to establish the pre-Union borders of the colony by setting out the contemplated borders of the unified colony and then plucking out the landmass of Vancouver Island apply with equal force to the exclusion of Vancouver Island’s midstream dependencies.

A further objection to identifying the boundary description “to the west by the Pacific Ocean”

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with the open Pacific is that if this were the case, once the Queen Charlotte Islands had been included the words “all other islands adjacent to the said Territories” would be superfluous since, aside from the Queen Charlotte Islands there are no adjacent islands seaward of the open ocean. The simple answer to this submission is that the statutory language expresses a desire for clarity and an avoidance of confusion as to the nature of its terms. In view of the fact that up to the date of Union not all the British territories in the Pacific Northwest would be part of the Colony of British Columbia, the specifications in these documents merely amount to a confirmation of what was to be included in, and what excluded from, pre-Union British Columbia. Queen Charlotte’s Island would in any event have to be specified as included. The reference to “other islands adjacent” could arguably be directed to any of a number of islands at a considerable distance from the mainland coast north of Vancouver Island, but more likely it constitutes a global inclusion of territories landward of the open Pacific from which the specific exclusion of Vancouver Island is then made. The function of the specific mention of “islands adjacent” can be appreciated by considering the potential confusion that would have been generated had the constitutive documents simply set out the borders of British Columbia and then stated that it was to include Queen Charlotte’s Island and exclude Vancouver Island. I find it impossible to assign any deeper meaning to these words than to confirm that the borders of the colony as defined in the constitutive instruments included all adjacent islands except Vancouver Island.

In saying this I do not wish to take issue with the judgment of Jacobs J. in New South Wales v. Commonwealth of Australia (1975), 135 C.L.R. 337. In that case, in the course of interpreting a statute that asserted Australian (as opposed to State) proprietorship over “internal waters” as well as the territorial sea, Jacobs J. concluded that statutory delineations of Australian colonial boundaries which added “adjacent islands” to the description of the mainland territories did not pass any property in the sea surrounding these islands to the colonies in question. I would merely point out that words in constitutive documents cannot be

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read in isolation and the differences in the broader terms of the documents in question, as well as in the history and geography of the Australian colonies compared to those of the Pacific Northwest, make it impossible to assume that a given word or phrase will have an identical significance in these two very dissimilar contexts.

ii) “Territories”

In my view British Columbia is also correct in its construction of the word “territories” in its constitutive documents. This term must be interpreted in light of the words of the Oregon Treaty itself and of the references to that Treaty in the 1849 granting document to the Hudson’s Bay Company. Both the Treaty and the grant explicitly assert that “British Territories” in the Pacific Northwest extend to mid-channel in the straits separating Vancouver Island from the continent. When, therefore, the 1866 Act and its predecessors assign to British Columbia “all such territories… as are bounded to the south by the territories of the United States”, I find it difficult to read this except as a specific transfer of proprietory interest in the submerged lands as well as the dry lands north of this boundary line.

Canada argues however, that the primary meaning of the word “territories” is land and that, absent some express reference to waters, no part of the sea is “territory”. Dissenting in the Court of Appeal, Mclntyre J.A., as he then was, put the point in these terms (at p. 136):

…in the ordinary sense of the word and as it has been used historically, “territory” refers to land and not to water. There can be no doubt that the word “territory” could be used in a context which would accord to it a broader meaning but it seems clear to me that in the statutes under review its meaning is limited to land.

Once again support for Canada’s position is sought in the judgment of Jacobs J. in New South Wales v. Commonwealth of Australia, supra. The constitutive instrument of the island colony of Tasmania described that colony as “our island of

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Van Diemen’s Lands, and all Islands and Territories lying to the Southward of Wilson Promontory” (the southern tip of continental Australia) lying between specified degrees of longitude and latitude. Tasmania had argued that the word “Territories” when added to “Islands” had the effect of including the sea as well as the land within the designated latitudes and longitudes inside the borders of the colony. This would have included in “Tasmania” an immense rectangle of ocean several times the size of the landmass of the island of Tasmania. In rejecting this claim Jacobs J. asserted that the primary meaning of “territory” was land and he could find nothing in the language of the constitutive instrument to displace this meaning.

Once again, I am far from disagreeing with Jacobs J.’s interpretation of the Australian document, but here too I would note that neither the wording of the document there under discussion nor the history nor the geography of the area under discussion in the Australian case is similar enough to the British Columbian context to allow for an easy transposition of Jacobs J.’s conclusions to the issues before this Court. It seems to me quite appropriate to reject as unreasonable a reading of the word “territories” in a given document that would incorporate stretches of the open Pacific within the boundaries of a colony. This same unreasonableness does not attach, however, to every reading of the word “territories” that does not confine it to dry land. Mclntyre J.A. says that the “ordinary” sense of territory is land and Jacobs J. identifies this as its “primary” meaning. I might have preferred to conclude that prima facie the word “territory” does not include the high seas, but even adopting the statement that its “ordinary” or “primary” meaning is land, this still leaves open, as both Mclntyre J.A. and Jacobs J. explicitly recognize, the possibility that this “ordinary” or “primary” meaning will be displaced or rebutted. In my opinion in the present case, history, geography—Vancouver Island nestles into the mainland—and the express words of the documents in question displace any presumption that as

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used in the 1858, 1863 and 1866 Acts the word “territories” refers to dry land alone.

Unlike the Tasmanian case, a reading of “territories” in the British Columbia Acts to include submerged as well as dry lands would not inflate the resulting colony to several times its landmass, nor would it include within colonial boundaries waters which would at international law be recognized as comprising the territorial sea, let alone the high seas. The waters that would thus be incorporated into the “territory” of British Columbia are bordered not by lines of latitude and longitude as would be the case in Tasmania, but rather on both sides for most of their extent by land undoubtedly part of British Columbia. They are waters which, as the Oregon Treaty and the 1849 Hudson’s Bay Company Grant demonstrate, have historically had the word “territories” applied to them. And, finally, a close reading of the Acts in question makes it difficult to assign a meaning in these documents to the word “territories” that does not include waters and submerged lands. The word “territories” appears twice in the 1866 Act. British Columbia is said to comprise all the British “territories” “as are bounded to the south by the territories of the United States of America”. In the 1858 document, as I have noted, the southern boundary was described as the “Frontier of the United States”. In either version this last phrase must mean the 49th parallel up 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”. The only geographical features that can bound on this latter line are the waters and submerged lands directly to the north of it. The second use of the word “territories” must necessarily include waters and submerged lands and, unless the word is to have two totally different meanings in the same sentence, so also must the first.

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I conclude from all this that British Columbia is correct on both issues related to the construction of its statutory boundaries. The meaning of “Pacific Ocean” in the 1866 Act and its predecessors is the open sea off Vancouver Island. In these same documents “the Frontier” or “the territories of the United States” is the boundary line that extends through Juan de Fuca’s Strait to the Pacific Ocean. Since, according to the 1866 Act, British Columbia consisted of all British “territories” within these borders, and since in this context “territories” is not restricted to dry land, it follows that the subject straits and submerged lands were part of the Colony of British Columbia when it entered Confederation.

(D) Other Issues

British Columbia submits that on their true construction the constitutive instruments of the Colony of British Columbia are themselves determinative of the issue before this Court. I agree. When properly construed, the 1866 Act of Union is decisive in favour of provincial proprietorship over the lands at issue in the present Reference. I do not, therefore, propose to go on to discuss British Columbia’s further submission that, in addition to and apart from the terms of its constitutive documents, the subject waters and submerged lands were also, immediately prior to Confederation, part of the Colony of British Columbia by virtue of being “inland waters” at common law.

I do, however, propose to deal with a final objection to a conclusion of provincial proprietorship over the submerged lands, namely that it is contradicted by the jurisdiction conferred over these lands by the Territorial Waters Jurisdiction Act, 1878 (U.K.), 41-42 Vict., c. 73.

V Admiralty Jurisdiction and the Territorial Waters Jurisdiction Act, 1878

In the 1967 Offshore Reference this Court held that the terms of the Territorial Waters Jurisdiction Act, 1878 were inconsistent with the notion of

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provincial proprietorship over the territorial sea (at p. 805):

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.

Dissenting in the Court of Appeal, Mclntyre J.A. expressed a similar view with regard to the effect of this Act on the lands and waters in question in the present Reference. He was of the opinion that the Act applied to the subject waters and had the effect of “excluding” the law of British Columbia in favour of the common law of England, a concept “inconsistent” with provincial ownership (at p. 139):

…the retention of jurisdiction in the admiral, and the continued application of the common law of England in these waters by operation of the Territorial Waters Jurisdiction Act is inconsistent with the concept of British Columbia ownership in 1871.

The Territorial Waters Jurisdiction Act, 1878 was passed by the British House following R. v. Keyn, supra, which had decided that an English Court could not try an offence committed by a foreigner on a foreign ship, even within three miles of the English coast. The Territorial Waters Jurisdiction Act, 1878 was enacted to give the Admiralty Court the jurisdiction that the common law courts lacked:

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2. An offence committed by a person, whether he is or is not a subject of Her Majesty, on the open sea within the territorial waters of Her Majesty’s dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly.

(Emphasis added.)

The phrase “territorial waters of Her Majesty’s dominions” is defined within the statute as follows:

“The territorial waters of Her Majesty’s dominions” in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.

Insofar as the Act gave the Admiral jurisdiction where the common law courts had none, its applicability to a given body of water is indeed a confirmation that these waters were “outside the realm” and its applicability would therefore be inconsistent with a view that the waters in question were within the boundaries of a territorial entity. This was found to be the case with the territorial sea off British Columbia in the 1967 Offshore Reference. It is important, however, to distinguish between those situations in which the Admiral, either by virtue of the Territorial Waters Jurisdiction Act, 1878 or otherwise had exclusive jurisdiction, and other situations in which his jurisdiction was concurrent with that of the common law. It must be remembered that though Admiralty jurisdiction was exercised “outside territory” (and in that respect was exclusive), it was also exercised “within territory”, running as it did inter alia in ports, fresh waters and rivers below first bridges, all of which were “within the realm” at common law. In these latter situations the Admiral’s jurisdiction was concurrent with that of the local courts. See R. v. Bruce (1812), 168 E.R. 782; R. v. Mannion (1846), 2 Cox. C.C. 158; R. v. Kahitaska

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(1906), 8 W.A.L.R. 154; and see Halsbury’s Laws of England, vol. 11, 4th ed., p. 59. Concurrent Admiralty jurisdiction in this second context would not be inconsistent with the conclusion that the waters over which it was exercised were “within the realm” and hence within the boundaries of a given county, colony or province.

As all this relates to the present Reference, the first question to be decided is whether the Territorial Waters Jurisdiction Act, 1878 applied to give the Admiral exclusive jurisdiction over the subject straits. I note that no case cited before us had decided the issue. As Mclntyre J.A. mentioned, R. v. Ford; R. v. Gilkey (1956), 115 C.C.C. 113 (B.C.C.A.) “discussed” the issue, but certainly did not decide it. The issue had also come up in R. v. Johanson (1922), 31 B.C.R. 211 (B.C.C.A.) in which two of the three judges found it unnecessary to rule on the question of whether the Act applied to Georgia Strait, while the third, McPhillips J.A., was of the opinion that the Act did not apply because the locus in question was “interior waters off the mouth of Vancouver Harbour, not off the coast of British Columbia or within one marine league of the coast” (p. 221).

As I have observed, the Territorial Waters Jurisdiction Act, 1878 was enacted to give the Admiralty Court criminal jurisdiction in waters that R. v. Keyn had put beyond the jurisdiction of the common law courts. The question, therefore, of whether the Act applied to given waters depends on whether or not the jurisdiction of the common law extended over these waters—in other words whether or not the waters in question were within the boundaries of a county, colony, state or province. That, of course, is precisely the question in issue in this Reference. What this means is that

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the Territorial Waters Jurisdiction Act, 1878 cannot determine the status of the waters in question; rather the status of the waters in question would have to be determined in order to decide whether or not the Act applied. Since it is my view that the subject waters were within the borders of British Columbia at the time of Confederation, I am clearly of the opinion that the Territorial Waters Jurisdiction Act, 1878 would not have been applicable to give the Admiralty Court exclusive jurisdiction over them.

This is not to say, however, that the Admiralty Court did not have jurisdiction over these waters. As the federal Attorney General points out, in 1858 Letters Patent were issued to a certain Mr. Begbie, appointing him Judge of the Vice Admiralty Court of British Columbia. I note also that in the Johanson case, supra, MacDonald C.J.A. stated that whether or not the Territorial Waters Jurisdiction Act, 1878 gave the Admiral jurisdiction (a question which depended on whether or not Georgia Strait was “open sea”) he had “no doubt” that these waters were otherwise “within the jurisdiction of the Admiralty” (p. 216). I do not, however, agree that either of these facts indicates that the straits were subject to “an Imperial as distinct from a local jurisdiction”. It is my view that the jurisdiction exercised or exercisable by the Admiralty Court over the subject straits was concurrent with local courts rather than exclusive. I note that the Letters Patent appointing a Vice Admiralty Judge for British Columbia purport to confer jurisdiction over “Causes civil and maritime” that are “done… in upon or by the Sea or Public Streams, Fresh Waters, Ports, Rivers, Creeks, and places overflowed whatsoever within the ebbing and flowing of the Sea”. The Letters Patent also confer jurisdiction over certain “maritime crimes… committed… upon the High Sea as in all Ports, Rivers, Fresh waters and Creeks and Shores of the Sea to High Water mark from all First Bridges toward the Sea”. This clearly indicates that the jurisdiction thereby granted runs inside territorial boundaries as well as outside. Insofar, therefore, as an Admiralty Court did exercise or could have exercised jurisdiction over the subject straits it is my

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view that it was a jurisdiction “within territory” comparable to its jurisdiction over ports, fresh waters and rivers below first bridges. There is nothing in such a jurisdiction that would be incompatible with a conclusion that the subject waters and submerged lands were within the boundaries of British Columbia.

VI Conclusion

I would summarize my conclusions as follows:

(i) The 1967 Offshore Reference dealt 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 lands at issue in the present Reference.

(ii) The 1849 grant to the Hudson’s Bay Company established the Colony of Vancouver Island and transferred the lands in the new Colony from the Crown in right of Great Britain to the Crown in right of the Colony. The grant made “the said Island” colonial territory, but did not make the waters between the Island and the mainland colonial territory. As of 1849 these waters and submerged lands were British but not colonial property.

(iii) The words “Pacific Ocean” in the 1866 Imperial Act mean the open Pacific, thus making the western boundary of the United Colony the coastline formed by the several Islands off the coast of mainland British Columbia, including Vancouver Island. The words “territories of the United States” in the same Act made the southern border of British Columbia the mid-channel international border in Juan de Fuca and Georgia Straits. The provision that British Columbia would comprise “all” British “territories” within the stated boundaries referred to British maritime as

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well as land territories. As of 1866 the waters and submerged lands between Vancouver Island and the mainland were part of the United Colony of British Columbia.

(iv) Nothing related 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.

In view of these conclusions, it is my opinion that the subject waters and submerged lands were part of the Colony of British Columbia when it entered Confederation in 1871. The boundaries of British Columbia have not changed since that date. It follows that the seabed is still within and part of British Columbia today. In my opinion the answer to the question in this Reference is “yes”.

I would dismiss the appeal.

The following are the reasons delivered by

WILSON J. (dissenting)—Canada and British Columbia each claim ownership of the seabed under the waters flowing between mainland British Columbia and Vancouver Island. It is common ground that in order for British Columbia’s claim to succeed the waters at issue must have been part of the territory of British Columbia when it entered Confederation in 1871. If this was not the case the waters and the seabed beneath them belong to Canada. See Reference re Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792, at p. 801.

This is one of those cases where the resolution of a very contemporary problem depends upon the application of very ancient principles of law. I propose to consider these principles first and then move to their application to the instant case.

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The Common Law

(a) The low-water mark rule

The first principle with which we are concerned is stated in Halsbury’s Laws of England, 3rd ed., vol. 39, at p. 555:

The term “high seas” includes the whole of the sea below low-water mark and outside the body of a country, for the realm of England only extends to the low-water mark, and all beyond is the high seas.

(Emphasis added.)

The extent to which British territory included the sea was considered by a panel of thirteen judges in R. v. Keyn (1876), 2 Ex. D. 63. The case was not primarily concerned with Crown ownership of the seabed which at that time would have been a matter principally of academic interest. Rather the issue was the extent of the criminal law jurisdiction of the English courts. The facts were that a foreigner in command of a foreign ship was accused of manslaughter after the ship, while passing within three miles of the English shore on a voyage to a foreign port, collided with a British ship causing the death by drowning of a passenger on that ship. A bare majority of the court decided that a conviction for manslaughter could not stand because the English courts had no jurisdiction to try the accused under these circumstances. The case is of interest because the common law courts would have exercised jurisdiction over a foreigner only if he were within British territory and it was critical to the reasoning of the majority that the alleged offence did not take place within British territory.

Cockburn C.J. gave the leading judgment with which the other members of the majority were in substantial agreement. At page 162 he said:

By the old common law of England, every offence was triable in the county only in which it had been committed, as from that county alone the “pais,” as it was

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termed—in other words, the jurors by whom the fact was to be ascertained—could come. But only so much of the land of the outer coast as was uncovered by the sea was held to be within the body of the adjoining county. If an offence was committed in a bay, gulf, or estuary, inter fauces terrae, the common law could deal with it, because the parts of the sea so circumstanced were held to be within the body of the adjacent county or counties; but, along the coast, on the external sea, the jurisdiction of the common law extended no further than to low-water mark.

Lord Coleridge C.J. was a member of the minority in R. v. Keyn. In Harris v. Owners of “Franconia” (1877), 2 C.P.D. 173, which was a civil suit arising out of the same incident which resulted in the criminal charges in Keyn, Lord Coleridge considered himself bound by the decision of the majority which he summed up at p. 177 in the following terms:

The ratio decidendi of that judgment is that, for the purpose of jurisdiction (except where under special circumstances and in special Acts parliament has thought fit to extend it), the territory of England and the sovereignty of the Queen stops at low-water mark.

This Court in Reference re Offshore Mineral Rights of British Columbia accepted the proposition that at common law the territory of the realm ends at low-water mark. At pages 804-05 it adopted with approval the following passage from the judgment of Lush J. (one of the majority) in Keyn:

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,

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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.

(Emphasis added.)

(b) Ownership and jurisdiction

It is apparent from the reasoning of Lush J. that it would have been possible for Parliament to exercise jurisdiction over the territorial sea. It is equally clear that it is possible for a state to acquire new territory by an overt act. See Post Office v. Estuary Radio Ltd., [1968] 2 Q.B. 740, at pp. 753-54. It is important, however, to observe that the mere exercise of jurisdiction for limited purposes over a body of water does not necessarily amount to a claim of ownership of the waters and the seabed beneath them.

This issue was dealt with expressly by this Court in Reference re Offshore Mineral Rights of British Columbia, supra. As the Court pointed out, the decision in Keyn caused Parliament to enact the Territorial Waters Jurisdiction Act, 1878 (U.K.), 41-42 Vict., c. 73 declaring all offences committed on the open sea within one marine

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league of the coast of any part of Her Majesty’s Dominions to be within the jurisdiction of the Admiral. This Court stated at p. 805:

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 Regina v. Keyn that the territory of England ends at low-water mark was undisturbed.

(Emphasis added.)

The distinction between ownership and jurisdiction does not always emerge clearly from the cases. The issue in the present appeal, and in Reference re Offshore Mineral Rights of British Columbia, is ownership of the seabed. In the earlier cases, such as R. v. Keyn, what is normally at issue is a question of jurisdiction, but because jurisdiction can be conferred by ownership the issue of jurisdiction is often approached by determining first whether or not there is ownership. It is important, therefore, in examining the earlier cases to give careful attention to whether or not the decision turns on the question of ownership.

In Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877), 2 App. Cas. 394, the issue before the Privy Council was whether the respondent was entitled to an injunction which would prevent the appellant from laying a telegraph cable along the floor of Conception Bay. The respondent had been granted a monopoly on telegraphic services in Newfoundland by the Newfoundland legislature. The grant of the monopoly, found in s. 14 of An Act to Incorporate a Company under the style and title of “The New York, Newfoundland, and London Telegraph Company” 1854 (Nfld.), 17 Vict., c. 2, read in relevant part as follows:

…during the said period of Fifty Years, no other Person or Persons, Body or Bodies Politic or Corporate, shall be permitted to construct, purchase, take, or operate, any Line or Lines of Telegraph on this Island, or to

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extend to, enter upon, or touch any part of this Island, or the Coast thereof, or of the Islands or Places within the jurisdiction of the Government of this Colony, with any Telegraphic Cable,…

(Emphasis added.)

The appellant had laid a telegraph cable more than thirty miles within the headlands of Conception Bay which lies on the east of Newfoundland between two promontories 20 miles apart, the average width of the Bay being 15 miles and the distance of the head of the Bay from the two promontories being respectively 40 and 50 miles. The cable was more than three miles from the shore of the Bay and in laying it care had been taken not to come within three miles of the shore so as to avoid any question as to the territorial dominion over the ocean within three miles of the shore. Lord Blackburn stated that their Lordships were not called upon in this case to express any opinion on the questions discussed in the case of R. v. Keyn. He stated the question in this case as follows at p. 416:

The question raised in this case, and to which their Lordships confine their judgment, is as to the territorial dominion over a bay of configuration and dimensions such as those of Conception Bay above described.

He seems to be saying that the issue in Keyn was the jurisdiction of the Court of Admiralty whereas in this case the issue was territorial dominion over the Bay.

It is interesting to note that on the basis of the terms of s. 14 the respondent was entitled to an injunction, whether or not the cable lay within the territory of Newfoundland, as long as the cable lay somewhere within the jurisdiction of the Newfoundland legislature. Nevertheless the Privy Council appears to have treated the case as turning on whether or not the whole of Conception Bay was part of the territory of Newfoundland.

Lord Blackburn began by considering the common law and said at p. 416:

…but this much is obvious, that when it is decided that any bay or estuary of any particular dimensions is or may be a part of an English county, and so completely within the realm of England, it is decided that a similar

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bay or estuary is or may be part of the territorial dominions of the country possessing the adjacent shore.

At page 417 he discussed R. v. Cunningham (1859), Bell C.C. 72, pointing out that in that case it became necessary to determine whether a particular spot in the Bristol Channel on which three foreigners on board a foreign ship had committed a crime was within the county of Glamorgan. He described the configuration of the Bristol Channel and concluded at p. 419:

But this much was determined, that a place in the sea, out of any river, and where the sea was more than ten miles wide, was within the county of Glamorgan, and consequently, in every sense of the words within the territory of Great Britain. It also shews that usage and the manner in which that portion of the sea had been treated as being part of the county was material, and this was clearly Lord Hale’s opinion, as he says not that a bay is part of the county, but only that it may be.

Lord Blackburn then continued:

Passing from the Common Law of England to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbours, estuaries, and bays landlocked belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is “bay” for this purpose.

It seems generally agreed that where the configuration and dimensions of the bay are such as to shew that the nation occupying the adjoining coasts also occupies the bay it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting therefore a width of one cannon shot from shore to shore, or three miles; some a cannon shot from each shore, or six miles; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means

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giving the weight of his authority to this claim, gives some reasons for not considering it altogether unreasonable.

It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfil it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to shew that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland.

(Emphasis added.)

At pages 420-21 Lord Blackburn relied on 59 Geo. III, c. 38, and in particular s. 4 of that Act as “an unequivocal assertion of the British Legislature of exclusive dominion over this bay as part of the British territory”. (Emphasis added.) This legislation was passed on June 14, 1819 and was entitled An Act to enable His Majesty to make Regulations with respect to the taking and curing Fish on certain Parts of the coasts of Newfoundland, Labrador, and His Majesty’s other Possessions in North America, according to a Convention made between His Majesty and the United States of America. Fishing rights off Newfoundland had been given mention in a number of major European treaties including the Treaty of Utrecht (1713), the Treaty of Paris (1763) and the Treaty of Versailles (1783). In fulfilment of Britain’s obligations under the last mentioned treaty, in 1788 Parliament had passed 28 Geo. III, c. 35 in

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which powers were granted to the Governor of Newfoundland to ensure that British subjects did not interfere with the fishing rights off Newfoundland’s coasts which had been guaranteed to the French. In 1818, after disputes between fishermen from New England and their Newfoundland and Nova Scotian rivals, the British and American governments decided to regularize relations between themselves on the question of fishing rights. As a result of a convention between the two nations, Britain granted certain limited fishing rights to United States citizens along specified parts of the coast of Newfoundland and Labrador. It was in implementation of this convention that the British Parliament passed 59 Geo. III, c. 38.

Section 1 of the Act set out the fishing rights guaranteed to citizens of the United States. Section 2, apparently in contradiction of previous treaty rights as set out in 28 Geo. III, c. 35, provided that only British subjects were allowed to fish within three miles of the coast of any British North American territory. It does so, in relevant part, in the following terms:

And be it further enacted, That from and after the passing of this Act it shall not be lawful for any Person or Persons, not being a natural born Subject of His Majesty, in any Foreign Ship, Vessel or Boat… to fish for, or to take, dry or cure any Fish of any Kind whatever, within Three Marine Miles of any Coasts, Bays, Creeks or Harbours whatever, in any part of His Majesty’s Dominions in America,…

(Emphasis added.)

This claim of exclusive fishing rights in the bays and harbours and within three miles of the coasts of all British territories in North America was reinforced by s. 4, which read in relevant part:

And be it further enacted, That if any Person or Persons, upon Requisition made by the Governor of Newfoundland, or the Person exercising the Office of Governor, or by any Governor or Person exercising the Office of Governor, in any other Parts of His Majesty’s Dominions in America as aforesaid,… shall refuse to depart from such Bays or Harbours; or if any Person or Persons shall refuse or neglect to conform to any Regulations or Directions which shall be made or given for

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the Execution of any of the Purposes of this Act; every such Person so refusing or otherwise offending against this Act shall forfeit the Sum of Two hundred Pounds,…

Lord Blackburn treated the exclusion of foreign fishermen from the bays in question, upon penalty of fine, as the exercise of exclusive British jurisdiction over the waters. He said, at p. 421, that “no stronger assertion of exclusive dominion over these bays could well be framed”.

This aspect of Lord Blackburn’s reasoning, if it is to be applied by this Court, has great significance for the present case. Lord Blackburn appears to be saying that the exercise of exclusive fisheries jurisdiction by Parliament over Newfoundland’s bays is the equivalent of a territorial claim to the bays, and will be treated by the courts as conclusive proof that the bays are British territory. This would imply that, in considering whether Britain had laid claim to the waters at issue in this case prior to 1871, this Court should turn its attention to the question of whether Britain had exercised jurisdiction over the waters rather than focussing solely on the question of whether Britain had claimed ownership of the waters.

In my view, such an approach would be inconsistent with the views expressed by this Court in Reference re Offshore Mineral Rights of British Columbia. As I have pointed out, this Court did not believe that the exercise by Britain of criminal law jurisdiction over the territorial sea as a result of the Territorial Waters Jurisdiction Act, 1878 had the effect of enlarging the realm of England beyond the low-water mark.

In R. v. Keyn, supra, Cockburn C.J. dealt expressly with the argument that treaties regulating fishing rights and legislation giving effect to such treaties are evidence of territorial dominion over the waters which are the subject of such treaties. At pages 205-06 he said:

Again, nations, possessing opposite or neighbouring coasts, bordering on a common sea, have sometimes found it expedient to agree that the subjects of each

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shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the three miles as a convenient distance. Such, for instance, are the treaties made between this country and the United States in relation to the fishery off the coast of Newfoundland, and those between this country and France in relation to the fishery on their respective shores; and local laws have been passed to give effect to these engagements.

But in all these treaties this distance is adopted, not as matter of existing rights established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doctrine contended for, the fact of these treaties having been entered into has rather the opposite tendency: for it is obvious that, if the territorial right of a nation bordering on the sea to this portion of the adjacent waters had been established by the common assent of nations, these treaty arrangements would have been wholly superfluous. Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as much as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with international law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty. For what object, then, have treaties been resorted to? Manifestly in order to obviate all questions as to concurrent or conflicting rights arising under the law of nations. Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging, for these purposes, to the local state. But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have therefore assented to forego all other rights previously enjoyed in common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local sovereign, and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in ships within three miles of the coast of another shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are prepared to acquiesce in the appropriation of the littoral sea; but I cannot think that these treaties help us much towards

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arriving at the conclusion that this appropriation has actually taken place. At all events, the question remains, whether judicially we can infer that the nations who have been parties to these treaties, and still further those who have not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the criminal law of this country.

(Emphasis added.)

Cockburn C.J. also considered the argument that the fact that Parliament had extended the application of some types of its legislation to foreigners within the territorial sea was evidence that Parliament treated the sea within three miles of the coast as British territory. At page 219 he gave this response:

These being the instances in which alone the legislature has applied the principle of the three-mile jurisdiction, it is apparent that, with the exception of the penalties imposed for violation of neutral duties or breaches of the revenue or fishery laws, there has been no assertion of legislative authority in the general application of the penal law to foreigners within the three-mile zone. The legislature has omitted to adopt the alleged sovereignty over the littoral sea, to the extent of making our penal law applicable generally to foreigners passing through it for the purpose of navigation. Can a court of justice take upon itself, in such a matter, to do what the legislature has not thought fit to do—that is, make the whole body of our penal law applicable to foreign vessels within three miles of our coasts? It is further apparent from these instances of specific legislation that, when asserting its power to legislate with reference to the foreigner within the three-mile zone, Parliament has deemed it necessary, wherever it was thought right to subject him to our law, expressly to enact that he should be so. We must take this, I think, as an exposition of the opinion of Parliament that specific legislation is here necessary, and consequently, that without it the foreigner in a foreign vessel will not come within the general law of this country in respect of matters arising on the sea.

(Emphasis added.)

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The High Court of Australia considered the territorial limits of Australia in Bonser v. La Macchia (1969), 122 C.L.R. 177. Chief Justice Barwick at p. 185 discussed the effect of international conventions settling jurisdiction over territorial waters on the question of the ownership by British colonies of the territorial sea surrounding their coasts:

I think it is essential to bear in mind that when colonies were formed all that relevantly occurred was that a specified land mass was placed at the outset under governorship, and later, under the control of a legislature. The instruments setting up the colonies did not in terms include as territory and subject to colonial governorship any part of the bed of the sea or the superincumbent waters. The progression was from the condition of governorship with near absolute powers to a state of self-government with plenary powers to make laws for the peace, order and good government of that land mass. This was the utmost to which the colonies were attained. The colonies were never at any stage international personae nor sovereign and the States still are not. Thus any concession or convention made between nations as to the use which might be made of the bed of the sea or of the waters above it applied and still applies, in my opinion, only as between nations and, in the case of conventions, as between nations parties to the convention. The plenary nature of the legislative power granted over and with respect to described territory cannot, in my opinion, be a basis for regarding that territory as itself extended to those places in which laws made under such a power may validly have effect. Apart from legislation or prerogative or statutory instrument of the United Kingdom, any seeming accession to the realm or to jurisdiction over the sea by reason of international arrangements accrued, in my opinion, only to Great Britain and not to her colonies or her dominions or their territories in their own right.

(Emphasis added.)

Chief Justice Barwick went on at pp. 187-88 to consider the effect of the Territorial Waters Jurisdiction Act, 1878. He said:

But the terms of the Territorial Waters Jurisdiction Act, in my opinion, suggest that the Parliament of the United Kingdom was intending in passing it to take

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advantage of international comity, rather than to assert and implement a territorial claim to the bed of the sea. The “sovereignty” of the United Kingdom over such waters was that which might internationally be recognized.

The purport of these authorities seems to me to be that we should be extremely reluctant to construe an exercise of legislative jurisdiction over a body of water as a claim of ownership of the waters and the seabed beneath them. To the extent that Lord Blackburn’s reasoning in Direct United States Cable Co. can be construed as representing a different approach, I do not think it should be followed. The Court in Reference re Offshore Mineral Rights of British Columbia, supra, considered the Privy Council decision in Direct United States Cable Co. and concluded that the case turned on the fact that “… there was legislation of the Imperial Legislature, 59 Geo. III, c. 38, which asserted exclusive dominion over the Bay” (at p. 809). The Court appears to have relied on the headnote of the decision which is to the same effect, and I do not think this statement should be taken as an approval of the principle that the exercise of jurisdiction will ordinarily be treated as the equivalent of a claim of ownership.

(c) Inland waters

As Cockburn C.J. pointed out in R. v. Keyn, supra, the common law recognized an exception to the rule that the realm of England ended at the low-water mark. At common law “a bay, gulf, or estuary, inter fauces terrae” was “within the body of the adjacent county or counties” (at p. 162). It is common ground that if the waters at issue would have been considered inter fauces terrae by the common law in 1871, the seabed beneath them belongs to British Columbia.

The term inter fauces terrae, literally translated as “between the jaws of the land”, is one of great antiquity but little precision of meaning. In Mortensen v. Peters (1906), 14 S.L.T. 227, Lord Dunedin, Lord Justice-General of Scotland, said at p. 231: “Now, I cannot say that there is any definition of what fauces terrae exactly are”. As Hill J.

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asked himself in The “Fagernes”, [1926] P. 185, at p. 189 “What are bays, gulfs, or estuaries inter fauces terrae? What is the metaphor, the open mouth of a man or of a crocodile?”

In seeking to ascribe meaning to the phrase inter fauces terrae it is useful to turn to its origins. The earliest reference which I have been able to trace is the expression of an opinion by Staunton J. in 1315. Lord Coke’s Fourth Institute, first published in 1641, gives the following rendition of this passage at p. 140:

8 E. 2. tit. coron. 399. It is no part of the sea, where one may see what is done of the one part of the water, and of the other, as to see from one land to the other, that the coroner shall exercise his office in this case, and of this the country may have knowledge; whereby it appeareth that things done there are triable by the country (that is, by jury) and consequently not in the admirall court.

At page 141, lord Coke also cites the opinion of Sir William Staunford from his text Les Plees del Coron, written in 1557:

Stanford, lib. 1. pl. cor. fo. 51.b. If one be slaine upon any arme of the sea, where a man may see the land of the one part and of the other, the coroner shall inquire of this, and not the admirall, because the country may take conusance of it, and doth vouch the said authority of 8 E.2…

Lord Coke relies on the same authorities in his discussion of admiralty jurisdiction in the Admiralty Case (1611), 12 Co. Rep. 79 at p. 81.

Lord Hale, writing in the mid-17th century, describes common law jurisdiction over inland waters in the following passage from his treatise De Jure Maris:

That arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discerne between shore and shore, is or at least may be within the

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body of a county, and therefore within the jurisdiction of the sheriff or coroner. (8 E. 2 Corone 399).

Hawkins, in Book II of A Treatise of the Pleas of the Crown, published in 1721, gives the following statement of the rule at pp. 44-45:

…it is laid down as a general Rule by some, That he [the coroner] may inquire of a Felony committed on the Arms of the Sea, where a Man may see from the one Side to the other; but by others, who seem to be more accurate, his Power is confined to such Parts of the Sea, where a Man standing on the one Side, may see what is done on the other…

East, writing in 1803, makes reference to the views expressed by both Lord Hale and Hawkins. He prefers the narrower test proposed by Hawkins. He says in Pleas of the Crown, vol. II, at p. 804:

Hawkins, however, considers the line more accurately confined by other authorities to such parts of the sea where a man standing on the side of the land may see what is done on the other, and the reason assigned by Lord Coke in the Admiralty case in support of the county coroner’s jurisdiction, where a man is killed in such places, because that the county may well know it, seems rather to support the more limited construction. But, at least where there is any doubt, the jurisdiction of the common law ought to have the preference.

As Lord Blackburn pointed out in his analysis of the common law in Direct United States Cable Co., supra, at p. 417, the visual tests proposed by the early commentators were vague and indefinite and we are hampered in our understanding of them by the absence of examples of their application to particular locations. Moreover, the proper scope of the inter fauces terrae rule is further confused by the existence of other principles under which jurisdiction over the seas surrounding the coasts of England were asserted. In the 17th century English jurists such as Lord Selden and Sir Leoline Jenkins asserted English jurisdiction over the “narrow seas” surrounding the British Isles, claims which Cockburn C.J. in Keyn dismissed as “extravagant”. In 1604 James I set out to define, by means of drawing straight lines from headland

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to headland, the bays along the coast of England within which the hostile actions of foreign belligerents were prohibited. The original claim over these waters, known as the “King’s Chambers”, was one of neutrality rather than ownership and twentieth century judges and commentators have tended to treat the claim as one that was abandoned or allowed to die out: see The “Fagernes” [1927] P. 311, at pp. 328-29, per Lawrence L.J.; Fulton, The Sovereignty of the Sea (1911) at pp. 118-24, 576-80; O’Connell, International Law, vol. 1, 1970, at pp. 488-89. Nevertheless, the persistence of the assertion of British claims to the “King’s Chambers” in the writings of nineteenth century commentators on international law seems to have influenced some of the decisions as to whether or not particular bodies of water were inter fauces terrae.

In Mahler v. Norwich and New York Transportation Co., 35 N.Y. 352 (1866), the issue was whether a fatal collision between two ships took place within the jurisdiction of the State of New York. The collision had taken place in Long Island Sound. The boundaries of the State were set out in a statute and the statute was susceptible of two interpretations. One interpretation would have placed the boundary along the low-water mark of Long Island, excluding the Sound. The other interpretation would have run the boundary through the waters of the Sound with the result that the place where the collision took place was within the State. Porter J., writing for the majority of the Court, preferred the latter interpretation because he believed that New York State was entitled to the waters of the Sound as part of its territory, and it was to be presumed that in setting the State’s boundaries the legislature would not have given up territory to which the State was entitled. At pages 355-56, Porter J. said:

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That Long Island Sound was included within the territorial dominions of the British Empire, at the date of the charter from Charles the Second to the Duke of York, is a proposition too plain for argument. It was an inland arm of the sea, washing no shores but those of the provinces, and with no opening to the ocean, except by passing between British headlands less than five miles apart. The right of the King depended on none of the vexed questions involved in the claims of dominion, by the English over the waters of the Channel, by the Turks over those of the Black Sea, by the Venetians over those of the Adriatic, or the Romans over those of the Mediterranean. It rested on clear and fundamental principles of international law. The rule is one of universal recognition, that a bay, strait, sound or arm of the sea, lying wholly within the domain of a sovereign, and admitting no ingress from the ocean, except by a channel between contiguous headlands which he can command with his cannon on either side, is the subject of territorial dominion. (Wheaton’s International Law, 320; Vattel’s Laws of Nations, 130; Hautefeuille Droits des Nations, 2d ed., 89; Church v. Hubbard, 2 Cranch, 187.) It is an immemorial rule of the common law, and has been asserted by the kings and courts of England from the earliest period of our ancestral history. (Halleck’s International Law, 134, and the authorities there cited.) Within this rule, the islands at the eastern extremity of Long Island Sound are the fauces terrae, which define the limits of territorial authority, and mark the line of separation between the open ocean and the inland sea. (United States v. Grush, 5 Mason, 290; Marten’s Law of Nations, 171; Wheaton’s id., 322; Vattel, 130.)

(Emphasis added.)

It is not clear whether Porter J. was applying the traditional common law test for waters inter fauces terrae or whether he was applying a broader principle that states are entitled to territorial jurisdiction over waters separated from the open sea by clearly marked headlands, such a principle being derived from the seventeenth century English claim to the “King’s Chambers”. Porter J.’s citation of the American text writer Halleck seems to indicate that he was relying on the latter principle. In Chapter 6, s. 16 of the first edition of his

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text International Law (1861), Halleck sets out the following principle:

The exclusive right of domain, and territorial jurisdiction, of the British crown, have immemorially extended to the bays or portions of the sea cut off by lines drawn from one promontory to another, along the coasts of the island of Great Britain. They are commonly called the king’s chambers. A similar jurisdiction, or right of domain, is also asserted by the United States over the Delaware Bay, and other bays and estuaries, as forming portions of their territory. Other nations have claimed a right of territory over bays, gulfs, straits, mouths of rivers, and estuaries which are enclosed by capes and headlands along their respective coasts and the principle would seem to be pretty well established as a rule of international law.

Other American cases adopt a much narrower view of what is meant by the phrase inter fauces terrae. In United States v. Grush, 5 Mason 290 (1829), Story J. considered the meaning of the inter fauces terrae rule in determining whether there was federal criminal jurisdiction over an accused who had allegedly committed a crime in Boston Harbour. At pages 300-01 he examined the various tests proposed by Coke, Hale, Hawkins and East and came to the conclusion that only “such parts of the sea, where a man standing on the one side may see what is done on the other” can be considered to be inter fauces terrae. Chief Justice Shaw adopted a similar statement of the inter fauces terrae rule in Commonwealth v. Peters, 53 Mass. 387 (1847), at p. 392. In Dunham v. Lamphere, 69 Mass. 268 (1855), at p. 270, Chief Justice Shaw wrote that “when the inlet is so narrow that persons and objects can be discerned across it by the naked eye, the line of territorial jurisdiction stretches across from one headland to the other of such inlet”. Porter J. cites Story J.’s judgment in Grush but, as Welles J. points out in Manley v. The People, 7 N.Y. 295 (1852), at p. 300, the eastern entrance of Long Island Sound would appear to be too wide to enable the waters of the Sound to come within this definition of inter fauces terrae.

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I am not confident that Porter J.’s decision in Mahler gives a reliable indication of the state of the inter fauces terrae rule in 1871. A much more important case for our purposes is R. v. Cunningham, supra. Cunningham has special significance because it was a decision of Cockburn C.J. concerning the exercise of English criminal jurisdiction over foreigners who had allegedly committed an offence on board a foreign ship moored in the Bristol Channel. Presumably when Cockburn C.J. made reference to the inter fauces terrae rule in Keyn his understanding of the rule was shaped by his application of it in Cunningham. Cunningham therefore might give us considerable insight into what Cockburn C.J. understood the rule to be when he prepared his judgment in Keyn in 1876.

Regrettably the judgment in Cunningham, supra, is very short. In relevant part it reads (at p. 86):

We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms, between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea between the counties of Somerset and Glamorgan is to be considered as within the counties by the shores of which its several parts are respectively bounded. We are therefore of opinion that the place in question is within the body of the county of Glamorgan.

No reference is made to the traditional visual tests for determining whether a particular body of water is inter fauces terrae although these tests were recited by counsel in argument: see (1859) Bell C.C. at pp. 77, 80, 82-83. On the other hand, Cockburn C.J.’s decision in Cunningham is consistent at least with the broader visual test proposed by Lord Hale. In The ”Fagernes”, [1926] P. 185, Hill J. had occasion to consider the width of the Bristol Channel at various points. He observed at p. 191 that the Channel’s greatest

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width between Somerset and Glamorgan Counties is about 12 nautical miles. He also added that on a clear day one could undoubtedly see Worm’s Head from Bull Point, both locations being closer to the mouth of the Channel and a distance of 23 miles apart. It may be, therefore, that the Cunningham decision stands for the proposition that waters which satisfy Lord Hale’s visual test are inter fauces terrae, at least where historical factors indicate that the waters have been treated as forming part of the county or counties by which they are bounded.

(d) Conclusion

The preceding analysis of the relevant case law and texts leads me to conclude that there are two ways in which British Columbia can try to establish ownership of the submerged lands. First, it can try to demonstrate that its boundaries as a colony were expressly extended beyond the low-water mark so as to encompass the waters between Vancouver Island and the mainland. Such an extension, however, must amount to an assertion of ownership. The mere exercise of jurisdiction over the waters will not ordinarily be treated as an assertion of ownership. Second, British Columbia can try to demonstrate that the waters between Vancouver Island and the mainland would have been treated as inland waters at common law in 1871. Keeping these two avenues in mind, we may now turn to the facts of the case.

I. Was the shoreline extended?

(a) The Colony of Vancouver Island

Vancouver Island was granted in 1849 to the Hudson’s Bay Company for colonization purposes and the subject of the grant is described as follows:

…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.

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The grant then goes on to constitute the Hudson’s Bay Company “the true and absolute lords and proprietors of the said territories, limits, and places” to have and to hold them 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;

It seems to me that there is absolutely nothing in the description of the subject matter of the grant to negate the position at common law that the territory granted ended at the low-water mark. Indeed, if anything, the language confirms that what was being granted was the body of land constituting the Island. There is a specific addition of the royalties of the seas surrounding the Island and any minerals found on the Island. This is completely consistent with the proviso which makes it clear that the purpose of the grant was colonization. Vancouver Island was to be settled by immigrants from the United Kingdom to whom land grants were to be made at reasonable prices and the money used for the improvement of the colony.

In 1849 it would not, in my opinion, have occurred to the government of the United Kingdom to include the seabed around the Island in a grant of land to the Hudson’s Bay Company for colonization purposes. For one thing, the economic potential of the seabed would not at that time have been recognized. It is only in comparatively recent years that the exploitation of mineral wealth lying under the high seas has become a scientifically and economically viable proposition. It seems to me therefore that the document must be taken at its face value. It describes the subject of the grant in straightforward terms and it is difficult, in my opinion, to read into it now something which was

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clearly not thought of at the time simply because in light of modern technology ownership of the seabed has assumed considerable economic significance. Moreover, the grant was clearly for colonization purposes. The Island was to be colonized by United Kingdom settlers and there is no reason to think that in the mind of the Imperial Parliament the submerged land was considered as having any role to play in the establishment of the new colony.

It was strongly urged upon us, however, by counsel for British Columbia that we should interpret the subject matter of the grant in light of the recitals in the grant and in particular the recitals referring to the Oregon Treaty entered into by Great Britain and the United States in 1846. The thrust of this submission, as I understand it, is that since Great Britain and the United States established the boundary between their “territories” in that Treaty by a continuous line which passed through the water as well as the land, the seabed under the water on the Canadian side of the boundary thereby became part of the “territories” of Great Britain and thereafter must be taken to have been included in any grant of land thereafter made by Great Britain including the grant of Vancouver Island to the Hudson’s Bay Company in 1849.

With respect, I think there are a number of flaws in this argument. First, it seems to me that it by no means follows that because, in settling a boundary dispute between Great Britain and the United States, the line was drawn through water as well as land, this somehow had the effect of extending Great Britain’s ownership of the land on the Canadian side of that boundary beyond the low-water mark and out into the seabed.

Great Britain was, of course, free to cede any land it owned to the United States if it wished to do so. It was also free to settle a dispute about navigational rights in the waters around its territories. What, in my opinion, however, it seems wholly unrealistic to assume is that by a treaty with the United States Great Britain intended to extend as a matter of municipal law the boundaries of its own territories on its own side of the

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line. If it owned the land under the water on the Canadian side of the line beyond the low‑water mark prior to the Oregon Treaty then it presumably continued to own it after the Treaty, but if it did not own such land before the Treaty because under the common law its ownership ended at the low-water mark, I cannot see that it acquired such ownership as a result of the treaty with the United States.

I believe that the history of the negotiations leading up to the Oregon Treaty bears out this interpretation. The British and Americans had settled upon a 49th parallel border east of the Rocky Mountains. The Americans sought to extend the 49th parallel border west of the Rockies, which would have severed Vancouver Island, leaving both headlands of the Strait of Juan de Fuca in American hands. In addition the Americans did not want to grant the Hudson’s Bay Company navigational rights on the Columbia River through American territory. The British would have preferred a Columbia River boundary west of the Rockies but they realized that the flow of American immigration into the Oregon Territory was likely to be heavier than the flow of British settlers into the area and that there was a significant degree of American sentiment favouring a 54° 40′ border. The Americans were willing to give up the southern tip of Vancouver Island, which was of little use to them, thereby allowing for joint access to the Strait of Juan de Fuca, which was of great importance to the British.

In the Oregon Treaty itself it was agreed that “navigation of the whole of the said channel and straits, south of the 49th parallel of north latitude, remain free and open to both parties”. Of this provision, Mr. McLane, one of the American negotiators, writing to Secretary of State Buchanan on May 18, 1846, said it confirmed “to the United States—what indeed they would possess without any special confirmation—the right freely

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to use and navigate the strait [of Juan de Fuca] throughout its extent”.

It seems to me that the British in negotiating the Oregon Treaty were interested in gaining three things which the Americans ultimately conceded in order to obtain a 49th parallel border on the mainland: 1) ownership of all of Vancouver Island; 2) unimpeded navigational access in the Strait of Juan de Fuca; and 3) navigational rights, for a limited time period at least, for the Hudson’s Bay Company along the entire length of the Columbia River. In my view a mid‑channel boundary was adopted in the Oregon Treaty merely for the sake of convenience and implied at most a claim of jurisdiction, not a claim of ownership by Britain of the waters and seabed north of the boundary.

I cannot, in other words, view the Oregon Treaty as an instrument by which Great Britain sought to extend the shores of its own territories beyond the common law low-water mark. There was no reason for it to do so. Ownership of the seabed was not in issue between it and the United States. I agree that Great Britain through the Oregon Treaty claimed navigational rights over these waters as a matter of international law. I cannot agree, however, that in claiming navigational rights in these waters as against the United States and in settling the dispute with the United States over these navigational rights, the submerged land on the Canadian side of the agreed-upon line thenceforth became part of the land owned by Great Britain. The Oregon Treaty, in my view, cannot be looked to to negate the common law rule that ownership of the realm ends at the low-water mark.

Counsel for British Columbia submits, in effect, that since the recital to the grant to Vancouver Island refers to the Oregon Treaty as having settled the boundary line between the “territories” of Great Britain and the United States and since the boundary line goes through the waters, the submerged land must be treated as having been added by the Imperial Parliament to its “territories” so

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as to displace the common law rule. This, in my view, does not follow. The Treaty was dealing with two different things—ownership of land and navigational rights over water. There is no dispute that the Oregon Treaty settled the boundary line between the territories of Great Britain and the territories of the United States. It did more. It also settled navigational rights. But this does not mean that the submerged land became part of the “territories” for municipal law purposes.

In R. v. Burt (1932), 5 M.P.R. 112, the New Brunswick Court of Appeal considered whether a ship carrying a cargo of liquor, which had been seized in the Bay of Fundy approximately one and three-quarter miles from Chance Harbour, was within the province of New Brunswick for purposes of The Intoxicating Liquor Act. The Court noted at p. 117 that:

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.

This statement was approved by this Court in Reference re Offshore Mineral Rights of British Columbia, supra, at p. 809.

I do not believe that this case stands for the principle that where a boundary separating two countries passes through a body of water, each country will be considered, as a matter of municipal law, to have asserted ownership of the seabed on its side of the boundary. The decision of the New Brunswick Court of Appeal in Burt seems rather to have been premised on Great Britain’s assertion of title to the whole of the Bay of Fundy prior to 1784 so that in subsequently dividing the old colony of Nova Scotia into two separate colonies it divided the waters of the Bay which it believed it already owned as well as the land mass.

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The adoption of a maritime boundary between the two new colonies in these circumstances did not have the effect of acquiring new territory for Britain. This, in my view, is very different from the present case, in which British Columbia submits that by establishing a maritime boundary in the Oregon Treaty, Great Britain added to its territory in the Pacific Northwest by claiming ownership of the seabed on its side of the boundary.

It should be noted also that it is not the “territories” of Vancouver Island which are granted in the granting clause establishing the Colony of Vancouver Island but “all that the said Island called Vancouver Island”. This is consonant with the concept of a grant of land for colonization purposes. In my view, the Colony of Vancouver Island extended only to the low‑water mark.

(b) The Colony of British Columbia

The Colony of British Columbia was created by Imperial Statute in 1858 (Act to provide for the Government of British Columbia[4], 1858 (U.K.), 21-22 Vict., c. 99) and its boundaries are defined in the Act as follows:

1. British Columbia shall, for the Purposes of this Act, be held to comprise all such Territories within the Dominions of Her Majesty as are bounded to the South by the Frontier of the United States of America, to the East by the main Chain of the Rocky Mountains, to the North by Simpson’s River and the Finlay Branch of the Peace River, and to the West by the Pacific Ocean, and shall include Queen Charlotte’s Island, and all other Islands adjacent to the said Territories, except as hereinafter excepted.

The exception reads as follows:

6. No Part of the Colony of Vancouver’s Island, as at present established, shall be comprised within British Columbia for the Purpose of this Act; but it shall be lawful for Her Majesty, Her Heirs and Successors, on receiving at any Time during the Continuance of this Act a joint Address from the Two Houses of the Legislature of Vancouver’s Island, praying for the Incorpora-

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tion of that Island with British Columbia, by Order to be made as aforesaid, with the Advice of Her Privy Council, to annex the said Island to British Columbia, subject to such Conditions and Regulations as to Her Majesty shall seem expedient; and thereupon and from the Date of the Publication of such Order in the said Island, or such other Date as may be fixed in such Order, the Provisions of this Act shall be held to apply to Vancouver’s Island.

Counsel for British Columbia submits that since the southern boundary of the colony was defined by the United States frontier and the western boundary by the Pacific Ocean, the waters between the mainland of the new colony and the Colony of Vancouver Island must have been included in “all such Territories”. He submits, in other words, that everything that had been the subject of the Oregon Treaty, land and waters, other than that which had already been granted to the Hudson’s Bay Company to form the Colony of Vancouver Island, was included in the Colony of British Columbia. The frontier of the United States, according to counsel, is the frontier as defined by the Oregon Treaty, i.e. the line which runs through the waters lying between the two colonies as well as through the land. Everything north of that line and lying between the identified boundaries on the east, west, north and south became part of the new colony. Counsel relies heavily on the designation of the Pacific Ocean as the western boundary of the colony.

I should note at the outset that the use of the word “Territories” in the grant itself connotes land rather than water. The Shorter Oxford English Dictionary (3rd ed., 1965) gives the following definitions for the word “territory”: “The land or district lying round a city or town and under its jurisdiction… The land or country belonging to or under the dominion of a ruler or state… A tract of land, or district of undefined boundaries; a region…”. Older dictionaries similarly demonstrate that the principal meaning of the word “territory” refers to land. Thus the 1907 Edition of Webster’s International Dictionary defines “territory” as: “A large extent or tract of land; a region; a country; a district… The extent of land

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belonging to, or under the dominion of, a prince, state, or other form of government; often, a tract of land lying at a distance from the parent country or from the seat of government… “. Courts in Australia, interpreting Imperial legislation from the same period, have applied the principle that the word “territories” referred to land rather than water: Bonser v. La Macchia, supra; New South Wales v. Commonwealth of Australia (1975), 135 C.L.R. 337. In my view, therefore, it is incumbent upon British Columbia to rebut a presumption that the inclusion of “all such Territories” in the granting statute referred only to land and not to the waters at issue in this case.

I do not intend to repeat what I have said concerning resort to the Oregon Treaty for purposes of determining the municipal boundary of the Colony of Vancouver Island, but the same reasoning applies to using the Treaty to establish the municipal boundary of the Colony of British Columbia. I intend rather to focus on the argument based on the designation of the Pacific Ocean as the western boundary of the colony. This, it seems to me, is the strongest argument counsel for British Columbia has put forward in support of the Province’s claim.

Prima facie the Pacific Ocean refers to the waters off the west coast of Vancouver Island. The Colony of Vancouver Island, however, was already in being. It seems to me strange, therefore, to place the western boundary of the new colony in the same location as the western boundary of the Colony of Vancouver Island and then except Vancouver Island. As Mr. Justice Seaton said in the course of his reasons in the court below (1 B.C.L.R. 97 at p. 121):

One reason that does not involve more than a look at the geography is that it would not be reasonable to think that the Colony of British Columbia enveloped the Colony of Vancouver Island.

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Counsel submits, however, that Great Britain followed the route of making the western boundary of the Colony of British Columbia the Pacific Ocean and then excepting whatever was encompassed by the Colony of Vancouver Island from the new colony so that the submerged lands between the two became part of the Colony of British Columbia.

My colleague has found this submission persuasive, substantially on the basis that the Imperial Parliament, in establishing the Colony of British Columbia, was looking ahead to the subsequent union of the two colonies. The Pacific Ocean would upon union become the western boundary of the united colony and the terms of the statute constituting the Colony of British Columbia clearly contemplated this. Moreover, the waters between mainland British Columbia and Vancouver Island were never referred to historically as the Pacific Ocean. Why would the Pacific Ocean be identified as the western boundary of the new colony unless it was in order to include the waters separating the colony’s mainland from Vancouver Island?

I have two difficulties with counsel’s submission. The first is that, if everything between the west coast of mainland British Columbia and the waters off the west coast of Vancouver Island was included in the Colony of British Columbia, what “other Islands adjacent to the said Territories” are covered by the specific inclusion of “Queen Charlotte’s Island, and all other Islands adjacent to the said Territories”? There are no other islands adjacent to the territories seaward from the west coast of Vancouver Island except the Queen Charlotte Islands. The other islands adjacent to the territories lie to the east of that coast and there would be no need to include them by express reference. They would be automatically included. Indeed, they would be surrounded on all sides by the submerged lands. However, their specific inclusion would be necessary if the reference to the Pacific Ocean was to the waters off the west coast of mainland British Columbia. These islands would not have formed part of the colony otherwise.

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My second concern stems from this Court’s decision in Reference re Offshore Mineral Rights of British Columbia. In that case the first question put to the Court was:

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 these questions was “Canada”.

Counsel for Canada submits that that question specifically addressed the issue before us on this appeal, namely the ownership of land under the waters “seaward from the ordinary low‑water mark on the coast of the mainland and the several islands of British Columbia… to the outer limit of the territorial sea of Canada”. While it excluded “harbours, bays, estuaries and other similar inland waters”, counsel argued that the question clearly included the submerged land between Vancouver Island and mainland British Columbia. Counsel further argued that the materials filed with this Court in Reference re Offshore Mineral Rights of British Columbia made it clear that these waters were covered by the question.

Mr. Justice Seaton in his dissent in the Court of Appeal addressed this point specifically. He said (at p. 112):

There are other reasons to think that the Supreme Court was dealing with these straits when it talked

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about territorial sea. A set of the maps that was an exhibit on the Offshore Reference had been filed here. Maps 10 and 21 are the Canada Oil and Gas Lands Regulations index to grid areas. They show the area then under permit to include ten permit areas within the Strait of Georgia. Also within the area with which we are concerned are open grid areas in Queen Charlotte Strait and the more northerly parts of Johnstone Strait. On the outside of Vancouver Island the grid shows ungranted areas down to approximately 48° 30′ north latitude, overlapping the area now claimed by British Columbia in the Strait of Juan de Fuca. Other maps in the exhibit also show markings within the waters we are dealing with. It is clear that the area with which we are concerned was shown on maps placed before the Supreme Court of Canada as an area claimed by Canada. It is not reasonable to think that the Supreme Court of Canada failed to appreciate the significance of the exhibit.

Whether counsel for Canada is right or wrong in saying that Reference re Offshore Mineral Rights of British Columbia, supra, actually disposed of the issue in this case, the law espoused and applied on that Reference clearly has important implications for this case. The Court in 1967 adopted Keyn as setting forth the appropriate legal principle and found that there had been no extension of the boundaries of British Columbia beyond the low-water mark. I have already made reference to this Court’s statement concerning the Territorial Waters Jurisdiction Act of 1878 to the effect that even after the enactment of that statute “the majority opinion in Reg. v. Keyn that the territory of England ends at low-water mark was undisturbed”. And later the Court said at p. 805:

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

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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.

(Emphasis added.)

While in this passage the Court may have been directing its attention to the ownership of the solum of the territorial sea off the west coast of Vancouver Island, it seems to me that the common law principle of ownership up to the low-water mark was being espoused and relied upon in 1967 in relation to the boundaries of the Province of British Columbia.

Prima facie it seems to me that the words “seaward from the ordinary low-water mark on the coast of the mainland and the several islands of British Columbia… to the outer limit of the territorial sea of Canada” would encompass the seabed under the waters in issue on this appeal unless it is excepted by the words “outside the harbours, bays, estuaries and other similar inland waters”. I find it hard to think that it is excepted by the latter words. Even if these waters can be described as “inland waters” at common law, are they “similar inland waters” i.e. inland waters ejusdem generis with harbours, bays and estuaries? It seems to me that they are not. If the seabed under these waters is “seaward from the ordinary low-water mark on the coast of the mainland” it is the main seabed covered by the question and it is inconceivable to me that the land under these waters would then be removed from the ambit of the question by a reference to “other similar inland waters” on a par with harbours, bays and estuaries. However, be that as it may, I think there is no evidence in the reasons for judgment of the Court that it specifically applied its mind to the waters in issue on this appeal. It appears, rightly or wrongly, to have treated the question as referring only to the seabed under the territorial sea off the west coast of Vancouver Island. Accordingly, I do not think it can be said that the issue on this appeal

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was disposed of in Reference re Offshore Mineral Rights of British Columbia.

In sum, then, even although I am not satisfied that the issue in this appeal was disposed of in Reference re Offshore Mineral Rights of British Columbia, I am satisfied that that decision affirms the law that is applicable in this case. This Court in that case affirmed in 1967 that the realm of British Columbia ends at low-water mark. There is accordingly a very heavy onus on British Columbia to establish that Parliament intended to expand the territory of the colony so as to include the waters at issue here. Because the reference to the Pacific Ocean in the Imperial Statute creating the Colony of British Columbia is equivocal as to whether it was directed to the waters off the west coast of mainland British Columbia or to the waters off the west coast of Vancouver Island, I do not think it provides the evidence needed either to negate the common law rule that the realm ends at the low-water mark or to rebut the presumption that the word “Territories” refers only to land.

(c) The union of the Colonies:

Counsel for British Columbia does not submit that the union of the two colonies brought anything into the united colony not previously forming part of one or other of the separate colonies. He simply traces the ownership of the separate colonies forward into the union and subsequently into the Province at Confederation. Accordingly, if he is wrong in his interpretation of the constitutive documents of the separate colonies, the claim of the Province is not assisted by their subsequent union to form one colony.

I am not persuaded that in entering into the Oregon Treaty in 1846 or in constituting the Colonies of Vancouver Island and British Columbia in 1849 and 1858 respectively, the Imperial Parliament intended to extend its realm beyond the low-water mark. I am equally of the view, there-

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fore, that the submerged lands had not been expressly included in British Columbia’s territory when it entered Confederation in 1871.

II. Are the waters in issue “inland waters”?

If I am right that there was no extension of British territory beyond the low-water mark, then British Columbia’s case for ownership of the seabed must rest on the waters being inland waters at common law.

As I have indicated above, it is not easy to reach any firm conclusion about what would have been considered waters inter fauces terrae at common law in 1871. Rather than attempt such a definition counsel for Canada has, I think wisely, approached this case by trying to establish that there are certain geographical features which prevent the waters at issue from being characterized as inter fauces terrae. First, he argues that because the waters are straits, they could not be inter fauces terrae within the meaning of the common law. Second, he argues that because the straits have international headlands they are excluded from the common law definition of inter fauces terrae.

(a) Straits

Counsel for Canada argues that in order for waters to be “between the jaws of land” the “jaws” must have a hinge. In other words, bays, estuaries and other indentations into the coast may be inter fauces terrae but straits separating an island from the mainland may not. In my view, the use of the metaphor of jaws is now conclusive of the physical characteristic which a body of water must have in order to be an inland water. I note, for example, that the ancient passage from Staunton J. quoted by Lord Coke makes no mention of “jaws”. All that is necessary is that “one may see what is done of the one part of the water, and of the other, as to see from one land to the other…” (Coke’s Fourth Institute, at p. 140). This test could be satisfied as easily by a strait separating an island from the nearby shore as by a

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narrow bay. Lord Hale, who uses the term fauces terrae in his definition, relies on the authority of this passage and there is nothing to suggest that in employing the term fauces terrae he intended to change the test to exclude straits.

Counsel for Canada submits, however, that there is high authority for the proposition that a strait cannot be an inland water at common law. In particular, he relies on the Privy Council decision in The “Saxonia” (1862) Lush. 410. The issue in that case was whether the Merchant Shipping Act, 1854 applied to a collision which occurred between a German steamship, the Saxonia, and a British sailing vessel, the Eclipse. The collision took place in the Solent, a strait which separates the Isle of Wight from the mainland. At pages 421-22 of the report the Court states:

In our opinion the statute cannot be considered to have any local application to the Solent, so as to affect foreign as well as British vessels navigating within the limits of that channel; and that even if the statute were binding on all vessels navigating within a tidal river, which, however, the case of The “Fyenoord” (Swab. 377) discountenances, we think that it could not be locally binding within the water of the Isle of Wight and the mainland, and that the circumstance that the Isle of Wight is by local and territorial designation to be deemed a portion of the country of Southampton does not in any degree affect this question.

We are of opinion that this collision must be considered to have taken place on the high seas, in a place where a foreign vessel has a right of sailing without being bound by any of the provisions of the statutes enacted to govern British ships. This being so, it follows that the Merchant Shipping Act has no application to this case, as it has been fully determined that where a British and a foreign ship meet on the high seas the statute is not binding on either. The principle, therefore, by which this case must be decided must be found in the ordinary rules of the sea.

The court obviously was of the opinion that the Solent was part of the high seas but it is not apparent from the reasons for judgment why this was so. In particular, it is far from clear that the Privy Council was articulating a principle that straits could never be considered to be inter fauces

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terrae at common law. In his jugement in The “Public Opinion” (1832), 2 Hag. Adm. 398, Sir Christopher Robinson makes reference at p. 402 to a decision of the Court of King’s Bench in the case of the Lord of the Isles.

Since the statutes of Ric. 2. and of Hen. 4. it has been strictly held, that the Court of Admiralty cannot exercise jurisdiction, in civil cases, on causes of action arising infra corpus comitatus; and in a very recent case the Court of King’s Bench has issued a prohibition in a case of collision, in which the Lord of the Isles, a steam boat, was charged with damage to a merchantman in the Solent Sea, running between the Isle of Wight and the Hampshire coast. That place is, then, nearer to the main sea, and has more the appearance and general character of sea than the present.

Unfortunately the Lord of the Isles does not appear to have been reported, but from the short description of the case given by Sir Christopher Robinson it seems that the Court of King’s Bench was of the view that the Solent was inter fauces terrae. There is no indication that the case was brought to the attention of the Privy Council in The “Saxonia”.

I would not be prepared to say that the waters at issue could not be considered to be inter fauces terrae at common law solely on the basis that they are straits. Fortunately, it is not necessary to determine whether the straits at issue in this case satisfy the common law test for waters inter fauces terrae since Canada’s submission on the international headlands issue is decisive of the case.

(b) International headlands

Counsel for Canada also submits that the waters at issue cannot be inter fauces terrae because the “jaws” of the land are not situated in the same country. Counsel adopts the following passage from the reasons of Mclntyre J.A. (as he then was) dissenting in the Court of Appeal (at p. 140):

It is my opinion that these waters are not inter fauces terrae. I reach that conclusion upon the following considerations. These waters were not, in my view, granted

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to the separate Colonies of Vancouver Island and British Columbia. It could be said, however, that the union of the two colonies created the jaws which enclosed the waters and thus incorporated them into the new realm resulting from the union of the two colonies. In my opinion the joinder of the two separate colonies had no such result. A reference to the map will indicate that from the 49th parallel of latitude upon the mainland coast of North America to the south, American territory forms part of the enclosing jaw. It is impossible to say, then, that the jaws by enclosing the waters make them part of the realm, when no one realm encloses the waters in their totality.

I agree with Mclntyre J.A. that the existence of international headlands is fatal to British Columbia’s case that the waters at issue were inland waters at common law in 1871. It is apparent from R. v. Cunningham that for waters to be inter fauces terrae it was not necessary that their shores lie in the same county. I do not, however, think that the inter fauces terrae rule could have been stretched to encompass waters whose shores were governed by two different sovereigns.

The inter fauces terrae rule is, I have pointed out, one derived from the common law of England. Prior to the Act of Union in 1707 England and Scotland were separate countries and part of the shores of the Solway Firth lay in each country. It would be of some interest, therefore, to know whether at common law the county of Cumberland would have extended to mid-channel in the Solway Firth. Unfortunately there is no decision on this point, but we do have the observation of Hill J. in The “Fagernes”, [1926] P. 185, at p. 187, where he said: “I am not faced with a further difficulty which might arise as to the respective limits of two jurisdictions if the collision were, for example, in the Solway Firth”. This statement is, of course, inconclusive but it does suggest that the question of whether the same sovereign governs both shores of a body of water is significant for purposes of determining whether the body of water is inter fauces terrae.

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It is, of course, to the common law that we must turn to determine whether a body of water with international headlands would be considered to be inter fauces terrae. In the absence of compelling common law authority, however, it is interesting to note that international law in the nineteenth century would not have recognized a bay whose shores were shared by two countries as being the territorial water of either country.

The Schooner “Washington” Case, reported in Scott, Cases on International Law (1922), at p. 229, was adjudicated by the American and British Claims Commission in 1855. The case arose out of the seizure by British naval officers of an American schooner fishing in the Bay of Fundy ten miles from the shores of Nova Scotia. The British claimed that the schooner had violated the 1818 Fisheries Convention between the two countries by fishing within three miles of a British bay. The Americans claimed that the Bay of Fundy was not a British bay and that the vessel had not violated the Convention because it had been more than three miles from shore.

The Commission decided in favour of the American submission on the following basis:

It was urged on behalf of the British government, that by coasts, bays, etc., is understood an imaginary line, drawn along the coast from headland to headland, and that the jurisdiction of her Majesty extends three marine miles outside of this line; thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundy against Americans and others, making the latter a British bay. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d August, 1839, in which “it is agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland.”

The Bay of Fundy is from 65 to 75 miles wide, and 130 to 140 miles long, it has several bays on its coasts; thus the word bay, as applied to this great body of

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water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. One of the headlands of the Bay of Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The island of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all geographies, are situate in the Atlantic Ocean. The conclusion is, therefore, in my mind irresistible, that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word, as used in the treaties of 1783 and 1818.

(Emphasis added.)

The United States Supreme Court in Manchester v. Massachusetts, 139 U.S. 240 (1891), took the view at p. 258 that international law of the day recognized the territorial claim of a nation to “bays wholly within its territory not exceeding two marine leagues in width at the mouth…”. (Emphasis added.) Sir Cecil Hurst, in his essay “The Territoriality of Bays”, in the British Year Book of International Law (1922-23), p. 42, states the rule to be derived from the North Sea Fisheries Convention of 1882 that a territorial bay was “a defined inlet, penetrating into the land, moderate in size and with both shores subject to the same sovereign” (at p. 54). (Emphasis added.)

I take it from these authorities that in the latter half of the nineteenth century international law would not have considered the waters of a bay whose shores were governed by different sovereigns to have been the territory of either sovereign. I believe that the common law would have adopted the same principle with respect to inland waters. Counsel for British Columbia, however, points to two authorities which, he argues, contradict this position: Annakumaru Pillai v. Muthupayal (1904), 27 I.L.R. Madras 551, and A.M.S.S.V.M. & Co. v. State of Madras (1954), A.I.R. Madras 291. Both cases dealt with proprietary rights to the chank fishery in Palk’s Bay and the Gulf of Manaar, bodies of water separating what is now

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Sri Lanka from the State of Madras in southern India.

Annakumaru Pillai v. Muthupayal was initially heard by two judges, Sir Subrahmania Ayyar C.J. and Russell J., who took opposite views on the question of whether chanks which had allegedly been stolen were taken on the high seas beyond the jurisdiction of the courts. The Chief Justice relied on Lord Blackburn’s judgment in Direct United States Cable Co. and the fact of centuries of occupation of the waters at issue for exploitation of the chank and pearl fisheries in concluding that the alleged offence had not occurred on the high seas. Russell J. reached the opposite conclusion, relying on the low-water mark rule articulated in R. v. Keyn. The case was then referred to the Appellate Criminal Court which agreed with the conclusions of the Chief Justice. The Court said at p. 572:

We do not think that Palk’s Bay can be regarded as being in any sense the open sea and therefore outside the territorial jurisdiction of His Majesty. We regard it rather as an integral part of His Majesty’s dominions, the portions adjacent to India being within the jurisdiction of the Indian authorities, and the portions adjacent to Ceylon being within the jurisdiction of the authorities of that place.

The Court then discussed Cockburn C.J.’s judgment in Cunningham and Lord Blackburn’s judgment in Direct United States Cable Co. and said at p. 573:

Applying these considerations to the present case and comparing the configuration and dimensions of Palk’s Bay with those of the Bristol Channel and of Conception Bay, and considering the evidence that exists as to the occupation of Palk’s Bay by the British with the acquiescence of other nations, we have no hesitation in holding that it is just as much an integral part of His Majesty’s dominions as are the Bristol Channel and Conception Bay and that the chank beds where the alleged offence was committed, which are five miles off the coast of Ramnad at Mudiampatnam are part of the territories of British India.

The Court did not discuss the significance, if any, of the fact that one shore of Palk’s Bay lay in

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India and the other shore lay in what was then called Ceylon. It may be that because both India and Ceylon were “part of His Majesty’s dominions” the distinction was treated as being of no more significance than the distinction between two counties in Britain or two provinces in Canada. I do not think that this decision can be said to establish the proposition that at common law waters separating two independent sovereign states could be considered to be inter fauces terrae.

Of greater potential significance to British Columbia is A.M.S.S.V.M. & Co. v. State of Madras since it was decided in 1954, by which time India and Ceylon had each gained independence. The issue in that case was the constitutional validity of legislation passed by the State of Madras governing the chank fishery in beds off the coast of Madras in Palk’s Bay and in the northern part of the Gulf of Manaar. Venkatarama Aiyar J. ruled in favour of the validity of the legislation, rejecting the argument that the legislation extended outside the territorial jurisdiction of the state.

The Court decided that the state was entitled to exercise fisheries jurisdiction over a territorial sea and then addressed the question of how broad a belt of sea the state was entitled to. At page 299 the Court discussed international law and noted that “when bays are bounded by the territory of the same State on both sides” territorial bays were ordinarily limited to six miles in width. On the other hand, the Court observed that in the view of international law text writers:

…this rule is subject to the exception that on historical or prescriptive grounds, or for reasons based on the special characteristics of a bay, the territorial State is entitled to claim a wider belt of marginal waters, provided that it can show affirmatively that such a claim has been accepted expressly or tacitly by the great majority of other nations.

The Court then relied on the historical evidence of occupation of the waters at issue to support the

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proposition that they formed part of the State of Madras. At no point, however, does the Court make reference to the fact that the shores of Palk’s Bay and the northern part of the Gulf of Manaar are occupied by two different nations.

I do not think that either this case or the Pillai case is conclusive of the question whether the common law in 1871 would have recognized as inter fauces terrae waters bounded by two sovereign states. In neither case does the Court give any express consideration, either as a matter of international law or as a matter of common law, to the relevance of the fact that the waters of Palk’s Bay and the Gulf of Manaar were bordered by both India and Ceylon. In my view the matter remains to be decided as a matter of principle. I believe it is more consistent with the rationale of the common law rule that waters with international headlands cannot be viewed as inter fauces terrae or at the least would not have been viewed as such by the common law in 1871.

Counsel for British Columbia also relies on another line of cases, which include The “Fame”, 8 Fed. Cas. 984 (1822), and The “Grace” (1894), 4 Ex. C.R. 283. These cases stand for the proposition that countries separated by bodies of water may have mid-channel jurisdiction out to the edge of their mid-channel boundaries. None of them deals expressly with the common law rule of inter fauces terrae.

In The “Fame” Story J. had to decide whether the ship which was seized in Passamaquoddy Bay was in American waters for purposes of the Coasting Act of 1793 and the Revenue Act of 1799. Since the boundary between Maine and New Brunswick had not yet been fixed by treaty, Story J. turned to international law to determine that the boundary ran down the middle of the channel. The ship being on the American side of the boundary, it was held to be in American waters. In The “Grace” the issue before McDougall J. was whether an American ship which had been fishing north of the international boundary in Lake Erie but more than three miles from the Canadian shore had violated Canadian fisheries

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law. He found that it had since in his view Canadian waters on the Great Lakes ran to the international boundary in mid-channel, and the three mile territorial limit was relevant only on the country’s external coasts. I do not see how either of these cases assist us in coming to grips with the question of whether the common law in 1871 would have recognized as inter fauces terrae waters separating two countries. I must conclude, therefore, that the existence of international headlands of the waters at issue is fatal to British Columbia’s submission that the waters were inland waters at common law.

Conclusions

I would summarize the conclusions which I have reached as follows:

1. British Columbia’s claim of ownership of the seabed at issue can only succeed if the seabed was part of the territory of British Columbia when it entered Confederation in 1871. Prima facie the territory of the Colony of British Columbia in 1871 ended at the low-water mark. British Columbia must therefore show either

i) that its boundaries as a colony were expressly extended beyond the low-water mark so as to encompass the waters between Vancouver Island and the mainland; or

ii) that the waters between Vancouver Island and the mainland would have been treated as inland waters at common law in 1871.

2. I do not think that the constitutive documents setting up the Colony of Vancouver Island and the Colony of British Columbia demonstrate that Great Britain had claimed ownership of the waters between Vancouver Island and the mainland and had made those waters part of the territory of either colony. In particular I do not think that the establishment in the Oregon Treaty of a mid-channel boundary with the United States amounted to a claim by Britain of

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ownership of the seabed north of the boundary. Furthermore, I do not believe that the identification of the western boundary of the new Colony of British Columbia as the “Pacific Ocean” should be construed as an inclusion of the waters at issue within the territory of the colony.

3. Finally, I do not believe that the common law in 1871 would have recognized the waters at issue as inland waters because the waters were not enclosed by the territory of only one country.

In sum, British Columbia has not, in my opinion, succeeded in negating the rule of the common law that the territory of the colony in 1871 ended at the low-water mark.

For these reasons I would allow the appeal. I would answer the question posed in this Reference in the negative and hold that the submerged lands belong to Her Majesty in right of Canada.

Appeal dismissed, RITCHIE and WILSON JJ. dissenting. The question is answered in the affirmative.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitors for the respondent: Cumming, Richards, Underhill, Fraser & Shillings, Vancouver.

Solicitor for the intervener the Attorney General of Nova Scotia: The Attorney General of Nova Scotia, Halifax.

Solicitor for the intervener the Attorney General for New Brunswick: The Attorney General for the Province of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General for Alberta: Ross W. Paisley, Edmonton.

Solicitor for the intervener the Attorney General of Newfoundland: James J. Greene, St. John’s.