(2) Where a dispute between the Province and any other province that is a party to an agreement arises in relation to a line or portion thereof prescribed or to be prescribed for the purpose of the definition "offshore area" in section 2 and the Government of Canada is unable, by means of negotiation, to bring about a resolution of the dispute within a reasonable time, the dispute shall, at such time as the Federal Minister deems appropriate, be referred to an impartial person, tribunal or body and settled by means of the procedure determined in accordance with subsection (3).
(3) For the purposes of this section, the person, tribunal or body to which a dispute is to be referred, the constitution and membership of any tribunal or body and the procedures for the settlement of a dispute shall be determined by the Federal Minister after consultation with the provinces concerned in the dispute.
(4) Where the procedure for the settlement of a dispute pursuant to this section involves arbitration, the arbitrator shall apply the principles of international law governing maritime boundary delimitation, with such modifications as the circumstances require.4
The Federal Minister is given power unilaterally to delineate the offshore area for the purposes of each Act in order to give effect to the award of an arbitral tribunal.5
THE MANDATE OF THE TRIBUNAL
3.1 Applying the principles of international law governing maritime boundary delimitation with such modification as the circumstances require, the Tribunal shall determine the line dividing the respective offshore areas of the Province of Newfoundland and Labrador and the Province of Nova Scotia, as if the parties were states subject to the same rights and obligations as the Government of Canada at all relevant times.
3.2 The Tribunal shall, in accordance with Article 3.1 above, determine the line dividing the respective offshore areas of the Province of Newfoundland and Labrador and the Province of Nova Scotia in two phases.
(i) In the first phase, the Tribunal shall determine whether the line dividing the respective offshore areas of the Province of Newfoundland and Labrador and the Province of Nova Scotia has been resolved by agreement.
(ii) In the second phase, the Tribunal shall determine how in the absence of any agreement the line dividing the respective offshore areas of the Province of Newfoundland and Labrador and the Province of Nova Scotia shall be determined.
4.1 The following procedure will apply in Phase One:
(i) Within three (3) months of the establishment of the Tribunal, the Parties shall file Memorials on the question of whether, in accordance with Article 3.2(i) above, the line dividing the respective offshore areas of the Province of Newfoundland and Labrador and the Province of Nova Scotia has been resolved by agreement.
(ii) Within one (1) month after filing of the Memorials, the Parties shall file Counter Memorials.
(iii) Within one (1) month after filing of the Counter Memorials, the Tribunal shall convene an oral hearing.
(iv) Within two (2) months after the oral hearing the Tribunal shall render its decision.
As to a possible Phase II of the arbitration, should this prove necessary, the Tribunal intends if at all possible, to conduct the hearing of this phase in November 2001, and it notes the agreement of the parties that the following dates, namely November 19th to 23rd and November 26th to 30th, would be convenient. In the event that Phase II proves necessary and that the November timetable cannot be met for any reason, the parties are asked to reserve January 21st to 25th and January 28th to February 1st, 2002 for that purpose;
1. In the event that the Tribunal were to hold that there is a binding agreement between the Parties as to the line extending out to the Atlantic, what would be the effect on that agreement of the award of the Tribunal in the St. Pierre Miquelon case?
2. Precisely which modifications in the view of the Parties are required by the circumstances to the principles of international law governing maritime boundary delimitation, having regard to the requirement that the Parties are to be treated as if they were states subject to the same rights and obligations as the Government of Canada at all relevant times?
The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby.
Thus to the extent that any agreement between the provinces would have required a change in "the limits of such Province", for example by the addition to the province of areas of internal waters, section 3 requires that the change be implemented by a combination of federal and provincial legislation. No doubt questions might have been asked whether the recognition of jurisdiction or rights over the continental shelf would amount to a change in the limits of a province within the meaning of section 3. Under international law as well as in national practice, the continental shelf has been treated as adjacent to the territory of the state rather than as part of it. This is consistent with the conception of the continental shelf as a zone of "sovereign rights" beyond the territorial sea and internal waters. In the words of the International Court of Justice, the continental shelf is a zone of "only sovereign rights and functional jurisdiction".11 However, it is clear that the initial provincial proposals for offshore jurisdiction were conceived of as proprietary and as involving claims to territory and "ownership". Moreover they envisaged legislation pursuant to section 3: this was expressly provided for in paragraph 6 of the Joint Statement of 196412 (hereinafter "the Joint Statement") as well as in subsequent discussions.13
1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
Moreover, in accordance with Article 83 (4),
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.
The repeated reference to agreement in the texts is paralleled in the case law on maritime delimitation, from the North Seas Continental Shelf Cases onwards.20 Thus for the purposes of the present phase of the arbitration, no question arises as to the possible modification or even supersession of GCCS Article 6 by subsequent developments in international law.
On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form — a communiqué — in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communiqué, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.28
The Court, however, held that the communiqué did not amount to an agreement involving any immediate commitment to submit the dispute to the Court. Previous communications between the parties established that the purpose of the Brussels meeting was to discuss the joint submission of the dispute to the Court by agreement, and it was envisaged that experts would meet subsequently to negotiate a special agreement for that purpose. In the circumstances there was no indication that the two Prime Ministers were ready to "undertake an unconditional commitment to submit their continental shelf dispute to the Court".29 This was, however, without prejudice to the possible effect of the communiqué in terms of the further efforts of the parties "to arrive at an amicable settlement of their dispute".30
... the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.31
The Court noted that the Minutes were concluded against the background of an earlier exchange of letters which both Parties accepted did amount to an international agreement. Thus the Doha Minutes did not so much create an obligation to submit the dispute to the Court as deal with the modalities by which this was to be done.32
2(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;33
Thus the representative capacity of a heads of state or governments or ministers of foreign affairs is established by virtue of their offices, and they do not need to produce full powers. On the other hand it does not follow that these officials (like the others mentioned in Article 7) automatically have the competence to bind the state in respect of any particular category of treaty in any given case. It may be apparent from the practice of the parties or from the circumstances that a particular agreement expressed by an Article 7 official is not the final word and that some further action or approval is required. Again whether this is so depends on the facts of each case, and on the understanding that the other state party would have, "conducting itself in the matter in accordance with normal practice and in good faith".34 With respect at least to those senior officials mentioned in Article 7(2)(a), the other state party acting in good faith may well be entitled to treat them as having the necessary authority to commit the state by mere signature. But whether this is the case will depend on the practice of the parties and on what has been said in respect of the particular transaction.
The two Ministers signed a text recording commitments accepted by their Governments, some of which were to be given immediate application. Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to "a statement recording a political understanding", and not to an international agreement.35
In any event, if the 1987 exchange of letters had already committed the parties to judicial settlement of their dispute, it could hardly have appeared to Qatar, acting in good faith, that the Foreign Minister was not authorized to deal with the modalities of the submission. Such an agreement was not, on the face of it, one relating to the territory of the state, and if the Foreign Minister was under constitutional constraints he should have communicated them to the other party.
(a) for all purposes, and not only for the purpose of presenting to the Federal Government a proposal which was ultimately rejected;
(b) by an agreement which was not subject to any subsequent process of confirmation or ratification or any analogous process in order to be considered binding; and
(c) which was sufficiently clear, so as to allow the boundary to be determined by a process of legal interpretation of the agreement.
Only if these conditions were met could it be said that the boundary was "resolved by agreement" for the purposes of the Terms of Reference.
(a) intended by them to be binding, i.e., it was neither provisional, nor tentative, nor subject to any subsequent process of ratification or approval;
(b) unconditional and immediately effective, i.e., it did not depend on whether the provincial claims to the offshore areas were accepted by the Federal Government but was adopted "for all purposes" that might arise as between the provinces;
(c) sufficiently precise as to its content as to constitute a binding agreement;
(d) comprehensive, so as to cover the full extent of the maritime rights of Canada existing or future.
(a) which, in the absence of federal and provincial legislation could not have been, and was not, intended to be legally binding;
(b) which was made for the purposes of supporting an unsuccessful provincial claim to ownership and control of offshore areas, and which lapsed when it was rejected by the Federal Government;
(c) which was too vague and imprecise in its terms, especially as concerns the area east of turning Point 2017,46 to constitute an enforceable agreement;
(d) which in any event did not extend to the outer continental shelf beyond the line shown on the 1964 Map.47
1. The Province should determine what stand it proposes to take on this whole question, and also on the question of boundary divisions between the Provinces;
2. The matter should be made the subject of immediate discussion, either at the Dominion-Provincial level or, in the first instance, among the Atlantic Provinces.48
You will recall also, that arising out of a meeting of the Atlantic Province Premiers, you called a meeting of the Attorneys General in June 1961, at which time it was agreed that we should first of all agree among ourselves upon inter-provincial boundaries, assuming that all of the lands under the Bay of Fundy and Northumberland Strait and substantial parts of the Gulf of St. Lawrence were to be owned by the Provinces.
Later in the same memorandum, he went on:
What our approach should be to the Federal authorities, is of course a question of policy. One course, and in many ways perhaps what would be considered the most desirable course, would be to obtain agreement from the Federal authorities that the Provinces should have the mineral rights in the submarine areas. Perhaps one way of giving effect to this would be a redelineation of the provincial boundaries as would be possible, I think under the B.N.A. Act amendment of 1871. This of course, would involve eventual Federal Legislation but, for the time being a commitment would be quite sufficient for our purposes.55
Until such time as there has been an agreement with the Federal Government and the Provinces concerned with reference to the boundary question or a determination of the issue by the Courts, I do not think that it is possible to finalize any agreement between the various provinces concerned with the Northumberland Strait area.
Pending a determination of the problem each application for a license or lease will have to be dealt with as it arises. This has been the practice which we have been following to date in respect of licenses and leases in the off shore area. Where a problem arises which obviously effects more than one province then the application will have to be discussed between the provinces concerned. While this is not a very satisfactory situation, I do not see any other alternative at the present time.56
[T]his line was accepted as a boundary line and I think this is about as far as we can go at the present time but I feel that it must be clearly understood that each of the Provinces should have the right to issue offshore licenses on their respective sides of this accepted boundary line and then [sic] later if we have to argue with Ottawa about it we will only have to do so.57
The meeting felt that it was desirable that the boundaries as between the several Atlantic Coast Provinces should be agreed upon by the Provincial authorities and the necessary steps should be taken to give effect to that agreement. In this respect, a plan was prepared by the Nova Scotia Department of Mines, setting forth graphically and by metes and bounds suggested boundary lines covering the Bay of Fundy, Northumberland Strait, the Gulf of St. Lawrence, including the Bay of Chaleur and the Strait of Belle Isle and Cabot Strait. These suggested boundaries have had the tentative approval of New Brunswick, Prince Edward Island, Newfoundland and Nova Scotia and, it is understood, are also acceptable to Québec. It is recommended that these boundaries should have the more formal approval of the several Governments concerned. It is further recommended that Parliament be asked to define the boundaries as so approved by the Provinces, under the provisions of Section 3 of the British North America Act, 1871.59
1. a Joint Statement setting out seven points on which the premiers had reached unanimous agreement;
2. a metes and bounds description of marine boundaries (Schedule A to the Joint Statement);
3. a map showing graphically these marine boundaries (Schedule B to the Joint Statement).
The Atlantic Premiers Conference held in Halifax on September 30, 1964, with Premier Stanfield of Nova Scotia, Premier Robichaud of New Brunswick, Premier Shaw of Prince Edward Island, and Premier Smallwood of Newfoundland in attendance unanimously agreed:
1. That the provincial governments are entitled to the ownership and control of submarine minerals underlying territorial waters including, subject to International Law, the areas in the Banks of Newfoundland and Nova Scotia, on legal, equitable and political grounds. The argument in support of these several grounds set out in the Report prepared in 1959 by Professor Gerard V. La Forest still retains full force and affect. [sic]
2. That formal recognition of the rights of the provinces to the submarine minerals should be obtained from the Government of Canada as essential to the expeditious economical and orderly development of mineral exploration, essential to the economy of the Atlantic Provinces.
3. That the Parliament of Canada be requested to continue to assert the status of the Gulf of St. Lawrence, including the Strait of Belle Isle and Chaleur Bay, Cabot Strait, Northumberland Strait and the Bay of Fundy, as in-land waters or territorial waters.
4. That it is desirable that the marine boundaries as between the several Atlantic Coast Provinces should be agreed upon by the provincial authorities and the necessary steps taken to give effect to that agreement.
5. That the boundaries described by Metes and Bounds in Schedule A and shown graphically on Schedule B be the marine boundaries of the Provinces of Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland.
6. That the Parliament of Canada be asked to define the boundaries as approved by the Provinces of Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland under the provisions of Section 3 of the British North America Act, 1871.
7. That an immediate approach should be made to the Province of Québec so that a united presentation may be made to the Government of Canada.63
Reference has been made in this submission to Provincial boundaries but I do not think that that general question need be discussed at length or decided at this Conference. Section 3 of the British North America Act, 1871, provides the procedure for changing boundaries and in effect it is primarily a matter for agreement between the Provinces concerned. I can say, however, that the Atlantic Provinces have discussed this question among themselves and have agreed upon tentative boundaries of the marine areas adjoining those Provinces. These boundaries have been set out by metes and bounds and have been graphically delineated on a map. Hereto attached is a copy of the map and the description of the boundaries by metes and bounds. Speaking on behalf of the Province of Nova Scotia and as authorized by the Premiers of the Provinces of New Brunswick, Prince Edward Island and Newfoundland, I request the Federal authorities to give effect to the boundaries thus agreed upon by legislation, pursuant to Section 3 of the British North America Act, 1871. It may be that before actual legislation is prepared the description by metes and bounds should be reviewed and revised and the attached map, if necessary, varied accordingly, but, for all practical purposes, the attached description of the boundaries and map represent the agreement of the Atlantic Provinces.69
116. Mr. Shaw stated that the Atlantic Provinces and Québec had reached agreement on interprovincial boundaries in the Gulf of St. Lawrence region, had subdivided the Gulf between themselves, and had advised the Federal Government accordingly. Thus there was no legal question involved.
117. The Prime Minister pointed out that adjustment of provincial boundaries without Federal participation would be an arbitrary action and he stressed that provinces do not have the constitutional authority to adjust provincial boundaries unilaterally.
118. Mr. Smallwood interjected that these interprovincial boundaries in the Gulf were merely a proposal and that the provinces had not attempted to make them law...70
Nova Scotia, which participated in this meeting, did not object to Mr. Smallwood's characterization of the situation.71 Counsel for Nova Scotia argued that taken in context Mr. Smallwood meant only to say that the boundaries were merely a proposal in the sense that they were not opposable to the Federal Government. This, however, is not what he said.
All such offshore lines should be accurately determined and agreed upon during the course of reaching a federal-provincial settlement so as to avoid future disputes and prolonged and costly litigation.76
No reference was made in the paper to any earlier inter-provincial agreement on boundaries.
The meeting agreed that upon receipt of these two items by each member Minister he was in turn to take them to his government for approval. The effect of such approval is to be that the boundaries shown on the map and delineated by the turning points are the boundaries between the Provinces for all purposes and especially for the purpose of showing the entitlement to any minerals within the boundaries be they on land or in submarine areas. Each member Minister is also to request from his government a commitment to enter into an agreement with the other four Provinces and ratify the said agreement by legislation.86
Specifically he sought assurances on six points:
1. That your Government agrees that the map enclosed herewith setting forth the turning points with the appropriate longitudes and latitudes delineates the boundaries between your Province and the other Provinces shown thereon.
2. That your Government agrees that the map enclosed herewith setting forth the turning points with the appropriate longitudes and latitudes delineates the boundaries between the other Provinces shown thereon.
3. That the boundaries are effective for all purposes, and in particular, mineral rights in the submarine areas are the property of the Province within whose boundaries the area is.
4. That your Government will confirm the map and the turning points for the purposes set out herein by agreement.
5. That your Government will confirm the agreement by legislation.
6. That your Government will join with the four Provinces herein in seeking legislation by the Government of Canada confirming the agreement if the Joint Mineral Resources Committee so recommends.87
The JMRC map attached to the Allard letter showed boundaries between the turning points, but (unlike the 1964 Map) it showed no boundary to the southeast of Point 2017. (A reduced copy of the JMRC map is shown on the following page; it will be referred to hereinafter as "the 1972 Map").
The eastern five provinces have been taken up with discussions among themselves about a concerted approach; however, it is not likely that they will reach such an approach because of the unwillingness of New Brunswick and possibly Prince Edward Island to go along with what is either Nova Scotia and Québec leadership on the question or Nova Scotia leadership with Québec encouragement. Newfoundland goes along with the attempt to work something out especially for the eastern five because of its very large coastline and its large share of the offshore under the tentative lines which the five provinces drew in an informal unapproved agreement several years ago.90
In light of these divisions the Prime Minister wrote again to the premiers, urging their acceptance in principle of the federal proposal and promising flexibility on details. Indeed he drew on the analogy of international trade negotiations:
I can appreciate that a Province might hesitate to reach a settlement with the Federal Government before other Provinces have done so, in case one or more of the later settlements might involve significant changes in the administration lines. I believe it would facilitate reaching bilateral agreements with individual Provinces if we were in this particular case to adapt to federal-provincial use the principle that has been utilized for many years to enable governments on the international scene to reach agreements in matters of trade. This principle assures participants to an agreement that if one of them gives more advantageous terms to any party later on, then all parties to the original agreement will receive similar benefits.91
But for the time being no progress was made.
(4) The Governments of the four Atlantic Provinces and the Province of Québec should confirm the delineation and description of the boundaries of the said five provinces in the submarine areas and the turning points in longitude and latitude relating thereto as was requested by the Honourable Paul E. Allard on May 12, 1969, then Vice-Chairman of the Joint Mineral Resources Committee. A copy of the map showing the delineation and description of the said boundaries and the turning points are attached hereto and marked 'E'.94
THE FIRST MINISTERS AGREED THAT:
2. THE GOVERNMENTS OF THE FIVE EASTERN PROVINCES HAVE AGREED TO THE DELINEATION AND DESCRIPTION OF THE OFFSHORE BOUNDARIES BETWEEN EACH OF THESE FIVE PROVINCES.
3. THE FIVE EASTERN PROVINCES ASSERT OWNERSHIP OF THE MINERAL RESOURCES IN THE SEABED OFF THE ATLANTIC COAST AND IN THE GULF OF ST. LAWRENCE IN ACCORDANCE WITH THE AGREED BOUNDARIES.95
Premier Regan of Nova Scotia in a telex of the same date so informed the Prime Minister on behalf of the five provinces, using the language of the 1972 Communiqué.96
Mr. Speaker, apart from the agreements themselves, the meetings also provided two very real benefits. The greatest benefit is perhaps the creation of a solid front to voice a single strong opinion on the offshore question rather than fragmented voices as in the past.
The second benefit is the joining of the Province of Québec with the Atlantic Provinces in this matter and the common decision of each of the five Provinces that further meetings should be held soon.
The depth of co-operation and the readiness to discuss this problem by all those present at the meetings would indicate that inter-provincial co-operation on a number of other issues might be expected as well.
It must be stressed that the meetings did not attempt to make concrete decisions on particular problems. It must be clear that the meetings succeeded only in creating a common philosophy on the question and a procedural method will follow through.
Premier Regan of Nova Scotia, who chaired the meetings, stated strongly that further co-operation between the Governments represented and the gathering of a great deal of scientific and other information must come before final decisions are made on matters such as sharing administration costs and duties.
Steps have been taken to inform the Prime Minister of Canada of the decisions that were made.98
The Tribunal does not accept that by these general words Premier Moores sought to undo the effect of what he himself referred to as "agreements" made the day before, agreements which he had just announced to the House of Assembly and which he evidently supported. The passage quoted more naturally refers to the general concept of inter-provincial cooperation. The coordinates and map referred to in paragraph 2 of the 1972 Communiqué were specific enough, and were not merely a general expression of a "common philosophy". On the other hand, neither in the 1972 Communiqué nor in any of the accompanying statements was anything said about how the agreements were to be implemented. All that was envisaged was "further discussions" both among the first ministers and with the Prime Minister. The 1972 Communiqué still embodied a claim by the eastern provinces to "ownership... in accordance with the agreed boundaries",99 a claim which would have to be given legal effect either by way of section 3 of the Constitution Act, 1871, or by some form of federal-provincial legislative scheme.
... I would be quite prepared to arrange a meeting with you and the Premiers of the other eastern provinces if that is desired. I must make it clear, however, that I do not think that such a meeting could usefully be directed to the points concerning jurisdiction, ownership and administration as outlined in your telegram. In view of the assertion of ownership of the mineral resources of the seabed by the provinces and that the provincial boundaries extend offshore in a manner to be delineated by provincial agreement, it might become necessary to have a resolution of the points of law at issue...
Clearly ownership and the extent of provincial territory, as well as the location of provincial boundaries are matters of law. The only way they can properly be settled, if the provinces definitely wish to contest them, is in the Supreme Court... I see no purpose to be served by discussion of these legal matters...100
In dealing with the Agenda item concerning the boundaries between the Provinces, it was suggested that the Governments of the Five Eastern Provinces request the Government of Canada to accept the delineation and description of the offshore boundaries between each of the Five Eastern Provinces, which delineation and description was agreed upon by the First Ministers at their meeting on June 17 and 18. No consensus was reached on this suggestion. The meeting agreed that the position concerning the boundaries should be that taken at the meeting of June 17 and 18.103
Accordingly no request for federal recognition of the 1972 boundary description was made in the communiqué issued after the meeting. This said, inter alia, that "the First Ministers have not changed the positions expressed in their June 18th Communiqué".104 Apparently it was Newfoundland and Labrador that was responsible for the lack of consensus on this point. It gave two reasons for disagreeing with the proposal. First, there was "no constitutional mechanism by which the division of areas of jurisdiction for limited purposes, as opposed to the extension of provincial boundaries could be accomplished". Secondly, given Prime Minister Trudeau's summary rejection of the premiers' proposals, it was very unlikely that the Federal Government would agree to the request.105 In fact there was no reason for it not to accept the lines if they really were agreed as part of an agreed plan for the offshore. The Prime Minister subsequently indicated a willingness to do so for the purposes of the 1977 Memorandum of Understanding.106 But there was no point in asking the Federal Government to recognize a provincial agreement on boundaries when it flatly rejected the underlying proposal for provincial ownership.
... the Government of Newfoundland is not questioning the general principles which form the basis of the present demarcation. However, we feel that the line should be established according to those scientific principles generally accepted in establishing marine boundaries. The boundary should be established as accurately as possible.
Attached hereto is what we consider a more accurate reflection of the general principles of division to which we have agreed. I hasten to add that this version is meant for explanatory purposes only and is itself inaccurate because of the limitations of the maps used in its preparation. In essence, it merely follows the configuration of the coasts more precisely.
The Government of Newfoundland feels that if a find were made in an area immediately adjacent the present version of the boundary at a point where it is inaccurately established, then a severe strain would be placed on the regional agreement. I think we both feel that the possibility of such problems arising must be minimized where possible.
The Government of Newfoundland feels sure that a more accurate version of the boundary can be established in the co-operative manner other offshore problems are being approached.108
Attached to the letter was the 1964 Map, with an alternative dashed line drawn from the last turning point (Point 2017 of the 1972 Map) in a south-south-easterly direction. Although it was not presented by Minister Doody as a precise line, it was on an approximate azimuth of 145°.
(1) He seems to have assumed, as between Newfoundland and Labrador and Nova Scotia, an existing boundary and an existing agreement. In successive paragraphs he refers to "the interprovincial boundary", "the present demarcation", "the present version of the boundary", "the regional agreement", "the boundary".
(2) He refers not to the 1972 Communiqué but to the 1964 Map. He does not mention that the line in question was not shown in 1972, relevant though that might have been to his concerns.
(3) He raises for the first time in the record the lack of any principled basis for the south-easterly line in the 1964 Joint Statement. Although the turning points identified in 1964 were established by a rather approximate method, at least there was a method and it was explained in the documents. In 1972 the JMRC, without questioning the method, appears to have had no difficulty in following it. But no principle was stated in 1964 justifying the line southeast of the last turning point, nor was any explanation given as to why the line stopped where it did.
(4) He does not seem to treat the issue of the precise location of the line as foreclosed by any agreement.
Thank you for your letter of October 6, 1972, in which you raise the question of the precise determination of the boundary between the Nova Scotia and Newfoundland offshore areas. I certainly agree that boundaries should be established as accurately as possible. However, I am not totally clear in my own mind what principles were used in drawing the boundaries as shown on existing maps.
I have asked Graham Walker, who was Secretary to the Committee of Mines Ministers of the five Eastern Provinces, to go back through his records and determine the principles which were used in drawing the boundary lines. Once these principles have been established, I will then ask our Mines Department to draw an accurate boundary and see if it agrees with the new boundary suggested in the map enclosed with your letter.
As soon as this boundary has been drawn by our Mines Department, we can get together to discuss it. I am confident that any difficulty with regard to the boundary line can be resolved amicably.109
... subject to any lines of demarcation agreed to by the Province of Newfoundland with respect to the submarine areas within the sphere of interest of other Provinces.113
This was equivocal as to the existence of agreed lines of demarcation in 1973, but would apparently have given direct effect to any agreement reached without further legislation, once the Newfoundland and Labrador proposal was in place.
3. There shall be taken into account, together with the context:
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; …
The Privy Council applied an analogous rule in Re Labrador Boundary, when it noted that "where a document is ambiguous, evidence of a course of conduct which is sufficiently early and continuous may be taken into account as bearing upon the construction of the document".115
(1) At a federal-provincial meeting in April 1974, not attended by Newfoundland and Labrador, Mr. Kirby the Premier of Nova Scotia's Principal Secretary, is reported as indicating "his understanding that there had been an agreement on boundaries among the Provinces some years ago"; he added that "Nova Scotia had no evidence of Newfoundland agreeing on the boundaries, but would search its files".118
(2) At the same meeting Mr. T.B. Smith, Director of the Constitutional, Administrative and International Law Section in the Federal Department of Justice, gave an estimate of the legal position. In his view "we are trying to develop an arrangement that would be legally enforceable... [E]ven if Provinces had made an earlier political agreement on boundaries, this did not necessarily mean that they were locked into the arrangement".119 The only response was from Québec, asking whether "the Federal Government would be bound by a four- or five-Province arrangement as to boundaries".120 Mr. Smith apparently took this as a reference to the existing situation, since he answered that "the Federal Government was not bound at all -- what was involved was simply an arrangement amongst Provinces".121
(3) Mr. Kirby of Nova Scotia summarized the state of negotiations in a memorandum of August 7, 1974. On the subject of boundaries, he said:
10- There are a number of technical problems which have not yet been resolved but which officials believe can be resolved by further negotiations at the officials level. These include:-
(a) An agreement indicating precisely where the boundaries lie between each of the five Eastern Provinces. This statement is required because the veto power over the issuance of an initial exploration permit will be held jointly by the Federal Government and the adjacent Province. Therefore, the territory over which the adjacent province has a veto must be clearly defined.122
(4) At a further meeting (this time without Québec) in 1976, Mr. Walker, Nova Scotia Legislative Counsel, noted that as to interprovincial boundaries "there would be only one area of controversy, that between Nova Scotia and Newfoundland". Overall the tenor of the discussion was that no agreed boundaries were yet in place.123
(5) The Federal Government was aware of the 1964 lines but doubted whether they were currently agreed between the provinces:
20. As regards determination of the "territory" to be covered by the proposed Agreement, the Federal Government could accept the so-called "inter-provincial boundary lines" tabled on behalf of the four Atlantic Provinces by then Premier Stanfield of Nova Scotia at the Federal-Provincial Conference of October 1964 and later reportedly subscribed to by Québec. However, it appears that at least certain representatives of Prince Edward Island and New Brunswick are not entirely satisfied with these lines, and that the Newfoundland Government does not accept them in their entirety; however, federal representatives have not been made aware of any suggested alternatives in this context. It may, therefore, prove necessary to establish new provincial revenue-sharing lines for the Agreement area, if necessary without the consent of the Newfoundland and perhaps Québec Governments, accepting the risk of a judicial challenge in this regard.124
(6) A document prepared for briefing purposes at the time of the conclusion of the 1977 Memorandum of Understanding noted that the interprovincial lines of demarcation were absent in two places:
The lines as originally drawn by the five East Coast Provinces do not extend far enough in two places to fulfill the revenue-sharing purpose for which they will be used under this new federal-provincial arrangement: off the mouth of the Bay of Fundy; and southeasterly from Cabot Strait.125
(7) The Memorandum of Understanding itself defines the area covered by the Agreement as follows:
2. The Area to be covered by the Agreement will be the seabed and subsoil seaward from the ordinary low water mark on the coasts of Nova Scotia, New Brunswick, and Prince Edward Island to the continental margin, or to the limits of Canada's jurisdiction to explore and exploit the seabed and subsoil off Canada's coast, whichever may be farther, and where applicable, to the Inter-provincial Lines of Demarcation agreed upon in 1964 by Nova Scotia, New Brunswick and Prince Edward Island.
4. The division of the Area among Nova Scotia, New Brunswick and Prince Edward Island will be, for the purposes of the Agreement, defined, where applicable, by reference to the Interprovincial Lines of Demarcation, or, in the absence of any such Line, as may be agreed upon by the Provinces concerned.126
(8) A Newfoundland and Labrador White Paper of May 1977 persisted in the claim to exclusive Newfoundland and Labrador ownership of offshore resources. The map attached to the White Paper, clearly does not show anything like a 135° line in the Atlantic.127
(9) A Federal Justice Department options paper of July 9, 1979 described the position as follows:
(g) Inter-provincial lines of demarcation would be necessary in order to set out the respective areas of jurisdiction on the east coast. It remains to be seen whether the lines informally agreed in 1964 among the eastern provinces can be utilized for this purpose. Negotiation of these lines could prove difficult, particularly in the Gulf of St. Lawrence where Québec may have particular interests...128
(10) Prime Minister Clark in a letter to Premier Peckford of Newfoundland and Labrador in September 1979 noted that "It will be necessary at some stage for representatives of adjoining provinces to get together with federal representatives to determine mineral resource delimitation lines between provinces in offshore areas".129
The southerly part of the boundary between Nova Scotia and Newfoundland described as: thence south easterly to International waters (from a point midway between Flint Island (N.S.) and Grand Bruit (Newfoundland), was assumed to be a line having an azimuth of 135°00'00" from the point having the geographic coordinates 46°55'28", 59°01'02".140
He had earlier described those deflection points as "more or less arbitrarily accepted". The Surveyor General's points were in fact not used for the purposes of the Canada-Nova Scotia agreements and legislation. Instead Nova Scotia used the points established by the JMRC and endorsed in 1972, together with a line on a constant azimuth of 135°.
68. The area covered by this Accord is that area below the low water mark lying off the coast of Newfoundland and Labrador out to the outer edge of the continental margin, coming within Canada's jurisdiction being north and east and south of the appropriate lines of demarcation between Newfoundland, the adjacent provinces, and the Northwest Territories.142
The discrepancy between the descriptions of the areas covered in federal-Nova Scotia and federal-Newfoundland and Labrador texts was continued into the Accord legislation, the implications of which the Tribunal has already discussed.143
(1) The Statement contains a clear appreciation that the provincial claims required some form of recognition or acceptance from the federal government. In other words it was predicated on the (eventually unfulfilled) hope of federal recognition of the provincial claim for ownership.
(2) In this context there was no clear indication that the boundaries described in Schedule A and shown on Schedule B were agreed to conclusively or for any purpose other than that of the provincial claim to ownership.
(3) That claim, in terms, required further action by both the provinces and Federal Government to give the boundaries legal effect; such action can be regarded as a form of confirmation or ratification.
(4) In key respects, the boundaries were described and illustrated with a lack of precision and attention to detail that were hardly consistent with an intent to enter into a final and binding agreement. This was especially so in relation to the line southeast from Cabot Strait. The inference was that the content of the Joint Statement required further refinement, and would be the subject of further consultation and agreement.
(1) Despite the differences between the 1964 and 1972 maps (in particular the absence from the latter of a line southeast of Point 2017), they were closely related, as were the 1964 Joint Statement and the 1972 Communiqué. The relation between them was more that of earlier delimitation and subsequent (partial) delineation. But the reason why the 1964 Joint Statement did not amount to a definitive agreement was not only its lack of precision. It was also its conditional character and its linkage to a provincial claim to existing legal rights to the offshore. In neither respect did the 1972 Communiqué change matters.
(2) To the extent that the boundary agreement was associated with a legal claim to the offshore it was promptly rejected by the Federal Government and the provinces collectively were unwilling to press the legal issue. The Federal Government was prepared to accept the agreed lines for the purposes of revenue distribution, but the provinces never collectively accepted any such proposal.
(3) The August 1972 premiers meeting already showed some signs of lack of consensus on the issue, and shortly after, Newfoundland and Labrador began to dissociate itself from the common front, followed some time later by Québec. The first formal agreement on the eastern offshore, the 1977 Memorandum of Understanding was made only with the three remaining provinces and collapsed with Nova Scotia's withdrawal from it.144
(4) The subsequent practice of the Parties, taken overall, does not support the thesis that there was already a binding agreement as to offshore boundaries.145 If anything it shows the contrary.
reported that Québec answers yes to all six questions set forth in his letter to the other Ministers and further stated that the Province of Québec had already accepted the boundaries as they were outlined by the four Atlantic provinces before Québec was part of the original group. Québec accepted these boundaries in good faith and further in good faith undertook certain actions and made certain commitments concerning the area within these boundaries. Québec has at all times considered these boundaries as part of Québec and there is no good reason why it should decide otherwise now. Québec accepted the boundaries at the request of the four Atlantic Provinces, which request was considered by Québec to have been seriously made and no one has objected to its actions or activities within those boundaries.150
The Tribunal is of course only concerned with provincial boundaries as between Nova Scotia and Newfoundland and Labrador. Its decision in the present phase is limited to the question whether the interprovincial boundary between the two Parties has been resolved by agreement between them. The Tribunal has not examined the subsequent practice of other East Coast provinces and makes no decision concerning those provinces. However the point of the remarks made by Québec extends beyond the issue of a formal agreement. Minister Allard's argument focused more on considerations such as reliance, good faith, legitimate expectation and subsequent practice than on the question of a legally binding agreement. Even if, as between Nova Scotia and Newfoundland and Labrador, the interprovincial boundary has not been resolved by agreement, this does not at all exclude the relevance of such considerations in the next phase of the arbitration.
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