For Newfoundland :
Professor Donald M. McRae
Mr. L. Alan Willis, Q.C.
Mr. David A. Colson
Professor John H. Currie
For Nova Scotia :
Mr. L. Yves Fortier, C.C., Q.C.
Mr. Jean G. Bertrand
Professor Phillip M. Saunders
Professor Dawn Russell
Once again, the cases of the Parties were presented with great clarity and ability by their respective counsel.
For Newfoundland and Labrador :
a) The line in the area outside the Gulf of St. Lawrence shall be constructed as follows:
• From North 47° 19' 25" West 59° 50' 46" (Point A) the line shall proceed on an azimuth of 123.9 degrees until it reaches North 46° 50' 30" West 58° 47' 45" (Point B).
• From North 46° 50' 30" West 58° 47' 45" (Point B) the line shall proceed on an azimuth of 163.15 degrees until it reaches North 46° 16' 13" West 58° 32'42" (Point C).
• From North 46° 16' 13" West 58° 32' 42" (Point C) the line shall proceed on an azimuth of 163.2 degrees until it intersects the outer limit of Canada’s continental shelf jurisdiction.
a. The line in the area inside the Gulf of St. Lawrence shall proceed from North 47° 19' 25" West 59° 50' 46" (Point A) on an azimuth of 321.5 degrees to the limit of the offshore area of Newfoundland and Labrador and Nova Scotia within the Gulf.7
For Nova Scotia :
(1) THAT the line dividing the respective offshore areas of the Province of Newfoundland and Labrador and the Province of Nova Scotia is delimited as follows:
• From a point at latitude 47° 45' 40" and longitude 60° 24' 17", being approximately the midpoint between Cape Anguille (Newfoundland) and Pointe de l’Est (Quebec);
• Thence southeasterly in a straight line to a point at latitude 47° 25' 28" and longitude 59° 43' 33", being approximately the midpoint between St. Paul Island (Nova Scotia) and Cape Ray (Newfoundland);
• Thence southeasterly in a straight line to a point at latitude 46° 54' 50" and longitude 59° 00' 30", being approximately the midpoint between Flint Island (Nova Scotia) and Grand Bruit (Newfoundland);
• Thence southeasterly in a straight line and on an azimuth of 135° 00' 00" to the outer edge of the continental margin;
(2) THAT the line defined in sub-paragraph (1) above is correctly set out in the Canada-Nova Scotia Offshore Petroleum Resources Implementation Act (S.C. 1988, c. 28), Schedule I, as it relates to the limits of the offshore area of Nova Scotia along the boundary with Newfoundland and Labrador.8
4. 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.21
... 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...
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...22
The Premiers, while maintaining the positions taken in the Communique, decided not to press the question. In particular they were not prepared to take the issue to the point of litigation.23
...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.24
Attached to the letter was a copy of the 1964 map, with an alternative dashed line drawn from turning point 2017 in a south-southeasterly direction on an approximate azimuth of 145° (as compared with 125° on the 1964 map) and extending approximately the same distance out to sea. Thus Nova Scotia was put on notice that there was no agreement between the two provinces on the location of the southeasterly line. As the Tribunal pointed out in its First Phase Award, in the context of interstate relations governed by international law and of an alleged agreement on a boundary, a letter such as that of October 6, 1972 would probably have been treated as the beginning of a dispute and would have called for some response. In response, Mr. Kirby agreed "that boundaries should be established as accurately as possible", expressed uncertainty as to "what principles were used in drawing the boundaries as shown on existing maps", and promised to inquire further. He was "confident that any difficulty with regard to the boundary line can be resolved amicably".25 However, despite a further reminder from Newfoundland and Labrador,26 nothing was done to clarify the matter.
"offshore area" means those submarine areas lying seaward of the low water mark of the province and extending, at any point, as far as
(i) a prescribed line, or
(ii) where no line is prescribed at that location, the outer edge of the continental margin or a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea of Canada is measured, whichever is the greater;...48
No line was then or has since been prescribed. There was thus a potential discrepancy between the "offshore area" as defined in the Newfoundland Accord Acts and that defined in the Canada-Nova Scotia Oil and Gas Agreement Act.49 As already noted, however, the Newfoundland Accord Acts made provision for settlement of inter-provincial disputes concerning the extent of offshore areas.
even if the 1964 Joint Statement or the 1972 Communique had amounted to a binding agreement, this would not have resolved the question of that line. As to the 1964 Joint Statement, the reason is that neither the Joint Statement nor the Notes re: Boundaries provided any rationale for the direction or length of the line. The direction of the line on the map did not coincide with a strict southeast line, and there was nothing in the documents or in the travaux which could resolve the uncertainty. If anything, the indications were that the line would not follow a strict southeast direction, and this leaves to one side the question what form the line would take — e.g., a constant azimuth (a rhumb line) or a geodesic. The JMRC for its part made no attempt to draw the southeasterly line, and for the reasons given above, the subsequent process by which it was described and drawn for the purposes of the Canada-Nova Scotia Act is not opposable to Newfoundland and Labrador. Thus, even if the interprovincial boundary up to Point 2017 had been established by agreement, the question of the boundary to the southeast would not have been resolved thereby and a process of delimitation would still have been required in that sector.61
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.
(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.
...delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result.63
Newfoundland and Labrador noted that the International Court of Justice in the Tunisia/Libya case added the qualification—reflected in Articles 74 and 83 of the United Nations Convention on the Law of the Sea (hereafter the 1982 Law of the Sea Convention)64 — that it is the equity of the result that is of paramount importance.65 In the view of Newfoundland and Labrador, the 1958 Geneva Convention on the Continental Shelf (hereafter the 1958 Geneva Convention)66 was inapplicable and, in any event, it maintained, both the result and process of delimitation would be the same as under customary law and Article 6 of that convention as international tribunals have consistently affirmed the substantial similarity of the two sources of law.
The objections of Canada against the southern projection of the coast of St Pierre and Miquelon, based on an eastern projection from Nova Scotia and Cape Breton Island are not compelling. Geographically, the coasts of Nova Scotia have open oceanic spaces for an unobstructed seaward projection towards the south in accordance with the tendency, remarked by Canada, for coasts to project frontally, in the direction in which they face. In the hypothesis of a delimitation exclusively between St Pierre and Miquelon and Nova Scotia, as if the southern coast of Newfoundland did not exist, it is likely that corrected equidistance would be resorted to, the coasts being opposite. In that event it is questionable whether the area hypothetically corresponding to Nova Scotia, would reach the maritime areas towards the south appertaining to St Pierre and Miquelon.67
Newfoundland and Labrador argued that the Tribunal could not award offshore areas to Nova Scotia to the east of the St. Pierre and Miquelon corridor without disregarding the clear reasoning of the Court of Arbitration. The method it proposed certainly avoided doing so, as can be seen from Figure 2. It also, according to Newfoundland and Labrador, avoided any cut-off effect on the southwest coast of Newfoundland as well as of any southeast-facing coasts of Nova Scotia.
(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.69
Pursuant to these provisions, Article 3.1 of the Terms of Reference requires the Tribunal to apply "the principles of international law governing maritime boundary delimitation with such modification as the circumstances require... as if the parties were states subject to the same rights and obligations as the Government of Canada at all relevant times".
Applying the principles of international law governing maritime 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.
This provision is made up of four elements:
• First, the Tribunal is to determine the line dividing the respective offshore areas of the two provinces. These areas are and will remain areas encompassing not exclusive sovereign rights over seabed resources, but limited, shared, negotiated rights in respect of certain of those resources only.
• Second, for the purpose of making this determination, the Tribunal is to apply the principles of international law governing maritime boundary delimitation, with such modification as the circumstances require. The provinces, however, are not subjects of international law. The principles governing maritime delimitation apply to the territorial sea, the continental shelf and the economic zone, and not to a purely domestic arrangement between provinces and the Federal Government on joint management and revenue sharing relative to offshore hydrocarbon resources, a regime unknown to international law. Evidently something more is required for the Tribunal to carry out its mandate.
• Third, for this reason, the Tribunal is required to effect its determination as if the Parties were states, with all the attributes of states, including territorial sovereignty and exclusive sovereign rights in respect of the resources of the continental shelf adjacent to their coasts.
• Fourth, to add emphasis and even greater precision to the foregoing point, the Tribunal is also required to make its determination as if the provinces were subject to the same rights and obligations as the Government of Canada. Canada’s rights in respect of the continental shelf arise not from domestic law but from its legal basis of title under international law. The offshore rights of Nova Scotia and Newfoundland and Labrador under the Accord Acts must therefore be treated for the purposes of delimitation of those areas as arising, like Canada’s, from the same basis of title in international law.
This is the legal framework the Terms of Reference impose upon the Tribunal and the Parties. It puts no difficulty or obstacle of any kind in the way of the delimitation exercise. Rather, it is what makes the exercise possible.
Canada ratified the fourth Geneva Convention of 1958 on the Continental Shelf (GCCS) with effect from February 6, 1970. It did so without any reservation. It has not yet ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Thus as a matter of international law, the governing provision, prima facie at least, is GCCS Article 6.79
As the qualifying phrase in the last sentence implies, the Tribunal in the first phase did not need to decide that the 1958 Geneva Convention is applicable to this delimitation. It was thus open to the Parties in the second phase to argue that it does not and both did so, albeit for quite different reasons. In the circumstances, the Tribunal considers that it must look beyond the surface agreement of the Parties and examine their underlying disagreement.
1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.
This compares with Article 83 of the 1982 Law of the Sea Convention, which refers to delimitation of the continental shelf "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".
If the equidistance-special circumstances rule of the 1958 Convention is... to be regarded as expressing a general norm based on equitable principles, it must be difficult to find any material difference — at any rate in regard to delimitation between opposite coasts — between the effect of Article 6 and the effect of the customary rule which also requires a delimitation based on equitable principles.85
The equidistance line was also the starting point for the International Court in the Qatar-Bahrain case which, as the Court noted, involved areas where the coasts were opposite to each other and those which are "rather comparable to adjacent coasts",86 albeit within a confined area. Again the Court in that case noted that
the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case-law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely interrelated.87
The continental shelf of Canada is the seabed and subsoil of the submarine areas, including those of the exclusive economic zone of Canada, that extend beyond the territorial sea of Canada throughout the natural prolongation of the land territory of Canada
(a) subject to paragraphs (b) and (c), to the outer edge of the continental margin, determined in the manner under international law that results in the maximum extent of the continental shelf of Canada, the outer edge of the continental margin being the submerged prolongation of the land mass of Canada consisting of the seabed and subsoil of the shelf, the slope and the rise, but not including the deep ocean floor with its oceanic ridges or its subsoil;
(b) to a distance of 200 nautical miles from the baselines of the territorial sea of Canada where the outer edge of the continental margin does not extend up to that distance; or
(c) in respect of a portion of the continental shelf of Canada for which the geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(iii), to lines determined from the geographical coordinates of points so prescribed,
Canada has not yet prescribed the required geographical co-ordinates of points. This Tribunal does not have the competence or the mandate to delimit the outer limit of the continental shelf, but simply notes that a continental shelf wider than 200 nautical miles from the territorial sea baselines probably exists through most, if not all, of the area seaward of these two provinces.
(a) Both Nova Scotia and Newfoundland accepted a particular procedure for the determination of a maritime boundary in the inner area, including specific agreement on particular basepoints. This agreement was, however, as the Tribunal has already held, made in support of a claim to an existing provincial maritime zone, which claim was rejected by the Federal Government and by the Supreme Court of Canada. Unlike Nova Scotia, Newfoundland and Labrador never expressly accepted the 1964 boundary in the inner area as an "all purpose" line.
(b) When, in 1972, the relevant Newfoundland and Labrador Minister queried the 1964 boundary, he said that he was "not questioning the general principles which form the basis of the present demarcation". However, he made it clear that the line eastward of turning point 2017 was, in Newfoundland and Labrador’s view, not "established according to those scientific principles generally accepted in establishing marine boundaries", and he suggested a different line as a basis for negotiations.117
(c) Newfoundland and Labrador made no objection at this stage to the turning points themselves, or to the configuration of the line in the vicinity of Cabot Strait. Indeed it did not expressly query the use of those turning points, as a basis for a delimitation based on an adjusted equidistance line, until the pleadings in the present case.
(d) Newfoundland and Labrador only formulated a detailed proposal in the period 1997-1998. This was based on the use of bisectors to the general direction of the coast in the inner area. It was not identical to the present claim line but clearly enough came from the same quiver. It did not envisage the use of an equidistance line.
(e) Although there was some issuing of oil permits and some seismic exploration and other activity in the inner area, this was limited. No wells were drilled beyond territorial waters, and Newfoundland and Labrador’s seismic permits, though they did not respect the 1964 line, contained a caveat for provincial boundaries. In any event, there was no reason for Nova Scotia to be aware of these permits or to protest them. In the Tribunal’s view, it is difficult to accept that seismic activity, of itself, could give rise to a situation analogous to that in Tunisia/Libya, and anyway there is no evidence that there was seismic activity in the critical areas close to the equidistance line, or that Nova Scotia should have been aware of such activity, if indeed it occurred.
(a) The Petroleum Grid Map of Nova Scotia of approximately 1972119 explicitly refers to the boundary line shown thereon as the "Mineral Rights Boundary Line", in conformity with the Notes Re: Boundaries. Permits utilizing the boundary were first issued in 1965.
(b) Mobil had taken out a provincial permit on the Nova Scotia side of the 135° line and, apparently, wished to take out a Newfoundland permit for that area of its federally issued permit that was on the Newfoundland side of the same line. This permit was issued by Newfoundland in September 1967 and renewed in 1972 as a Class A permit.
(c) In the written and oral pleadings of the first phase and the second phase, both Parties devoted significant time and effort to the location of the Katy Permit with respect to the 135° line from point 2017. The information provided indicated that the permit had been issued in May 1971. Since the permit was given only by reference to a medium-scale map on what was alleged to be a conic projection, the information was rather equivocal. The Tribunal asked the Parties and its Technical Expert to compute the distance from the southwest and northwest comers of the permit areas to the 135° line. The distances provided were computed along the appropriate parallels of latitude and were:
|By Nova Scotia||By Newfoundland & Labrador||By the Technical Expert|
|NW comer 1.7 n.m.||10.1 n.m.||6.1 n.m.|
|SW corner 12 n.m.||39 n.m.||40.7 n.m.|
Distances relate to the permit comers west of the 135° line. Two things are worthy of note. First, there were major differences between the two Parties in interpreting the same information. Second, the distances west of the 135° line were significant according to the computations by Newfoundland and Labrador and the Technical Expert.
Turning to the period after 1972, the position is, in the Tribunal’s view, even clearer. Once a state has given notice that it does not accept a particular situation or claim, strong evidence is needed that it has thereafter abandoned its position. After 1972 there was no equivalent from Newfoundland and Labrador of an Ihlen Declaration.120 Indeed there was no indication from any Newfoundland and Labrador source that the 135° line was considered equitable.
(a) First, although the Court of Arbitration in the St. Pierre and Miquelon case treated the inner area as forming "a marked concavity",133 that is not the situation facing the Tribunal as between the Parties to the present case. The Court of Arbitration, in this respect following the Canadian argument, took into account the length of the Cabot Strait closing line as representing "coastlines inside the Gulf which are in direct opposition to St. Pierre and Miquelon and are less than 400 nautical miles away".134 While entirely reasonable in the context of that case, this is essentially irrelevant here. In maritime delimitation, geographical features have to be considered in relation to the actual coasts of the parties in dispute and not in an abstract sense.135 Considered in relation to each other, the coasts of Newfoundland and Cape Breton Island are essentially opposite, albeit receding, coasts, and neither province is represented in terms of the closing line across Cabot Strait, which lies slightly to the west of St. Paul Island.
(b) Second, the islands of St. Pierre and Miquelon lie within the closing line of the inner area, although the south-facing maritime zone attributed to those islands by the Court of Arbitration lies entirely in the outer area. The Tribunal will return to this matter at the appropriate stage.
(c) Third, the closing line to the inner area here does not entirely coincide with the line of the general direction of the coasts of Nova Scotia and Newfoundland, if indeed such a line can be said to exist. On one view, the southeast coast of Nova Scotia can be seen as essentially a straight line conforming with the southeast facing coast of the Burin Peninsula, with the Avalon Peninsula jutting out by way of an initially narrow projection from the coast. Relative to that notional line, the closing line of the inner area faces approximately 7° more southerly. Even a comparatively minor difference of this kind can take on major significance in the case where a delimitation line is drawn as a perpendicular from the closing line, as Newfoundland and Labrador has proposed. In particular, the effect of any divergence of a closing line from the general direction of the coast is magnified the longer the line is extended, as it is here since it proceeds to the outer edge of the continental shelf.
In the Tribunal’s view, all three factors tend to distinguish the situation in the present case from that dealt with by the Chamber in Gulf of Maine. Taken together they speak against any automatic adoption of the methodology of that decision in the present case.
there is inevitably a tendency towards assimilation between the special circumstances of Article 6 of the 1958 Convention and the relevant circumstances under customary law, and this if only because they both are intended to enable the achievement of an equitable result.159
The law governing maritime delimitation has thus attained a basic unity, while retaining the necessary flexibility to respond to the specific facts and features of each case. For its part, the Tribunal is convinced that this method, subject to the modifications to be indicated, will lead in the circumstances of the present case to the equitable result that is the overarching objective of all maritime delimitations, whether under customary or conventional international law.
|Point||Latitude North||Longitude West|
|2015 (revised)||47° 45'41.8"||60° 24' 12.5"|
|2016 (revised)||47° 25'31.7"||59° 43'37.1"|
|2017 (revised)||46° 54' 48.9"||59° 00'34.9"|
|A||46° 22'51.7"||58° 01'20.0"|
|B||46° 17' 25.1"||57° 53' 52.7"|
|C||46° 07'57.7"||57° 44' 05.1"|
|D||45° 41'31.4"||57° 31'33.5"|
|E||44° 55’51.9"||57° 10'34.0"|
|F||43° 14' 13.9"||56° 23'55.7"|
|G||42° 56' 48.5"||56° 16'52.1"|
|H||42° 03' 46.3"||55° 54'58.1"|
|I||41° 45'00.8"||55° 47'31.6"|
|J||41° 42' 24.7"||55° 46' 23.8"|
|K||41° 06' 19.2"||55° 36' 10.9"|
|L||40° 58'21.7"||55° 34' 23.3"|