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Canadian Inland Waters of the Atlantic Provinces and the Bay of Fundy Incident

Published online by Cambridge University Press:  09 March 2016

G.V. La Forest
G.V. La Forest*
Affiliation:
Faculty of Law, University of New Brunswick, Fredericton, N.B.
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Extract

The recent penetration of a Russian fishing fleet into the Bay of Fundy has raised anew the status of that bay in international law. The manner in which the incident arose puts the issues involved in the clearest possible terms. Shortly after the Russian fleet was sighted in the bay, a newspaper reporter was informed by an unidentified federal government official that “No particular interest is being shown the fleet by the Canadian departments of fisheries and transport” and that “as long as they stayed outside the three mile limit, they would be subject to no restrictions from Canada.” This statement did not sit well with Premier Robichaud of New Brunswick, who promptly wired Prime Minister Diefenbaker that “The Bay of Fundy is an integral part of the provinces of New Brunswick and Nova Scotia” and requested that Canada protest to Russia this violation of Canadian territory.

Type
Research Article
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 1 , 1963 , pp. 149 - 171
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1963

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References

1 John, Saint Telegraph-Journal, November 14, 1962.Google Scholar

2 Ibid., November 16, 1962.

3 Debates of the House of Commons, November 14, 1962, 1617.

4 The Prime Minister actually said “territorial waters.” This may have been a slip, though the Prime Minister may have had in mind the terminology of the relevant statute, the Coastal Fisheries Protection Act, 1 & 2 Eliz. II, c. 15, which defines “territorial waters” as including inland waters (s. 2(b)).

5 Debates of the House of Commons, November 15, 1962, 1650.

6 John, Saint Telegraph-Journal, November 16, 1962.Google Scholar

7 Time, Canadian Edition, November 23, 1962, 17.

8 John, Saint Telegraph-Journal, December 11, 1962.Google Scholar

9 Reproduced in Proceedings in the North Atlantic Coast Fisheries Arbitration, 1910, (Washington, 1912), vol. 4, Appendix to the Case of Great Britain, 9.

10 Ibid., 9, 10-11.

11 Ibid., 11, 13.

12 The Treaty of Versailles, 1783, Articles IV to VI; ibid., 18; Treaty of March 27, 1802, between Great Britain, France and other powers, Article XIV; ibid., 42; Treaty of May 30, 1814, between Great Britain and France, Article XIII; ibid., 43; Convention of April 8, 1904, between the United Kingdom and France, Articles I-II; ibid., 82, 83. The treaty last cited defined this right as being in the territorial waters of the coast between Cape St. John and Cape Ray, passing by the north.

13 Ibid., 13.

14 Ibid., 16.

15 Ibid., vol. I, Award of the Tribunal, 74–5.

16 See Treaties and Conventions between the United States and Other Powers, 1776–1887 (Washington, 1889), 375, 377.

17 Letter of June 17, 1815, from Bathurst, Lord to Governor Keats in Proceedings, supra note 9, vol. 4, Appendix to the case of Great Britain, 107.Google Scholar

18 Letter of July 21, 1815, from Mr. Monroe to Mr. Adams, ibid., 108.

19 ibid., 53.

20 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, 59 Geo. III, c. 38.

21 (1876-7), 2 App. Cas. 394, 421.

22 Ibid.

23 See Proceedings, supra note 9, vol. 1, Case of the United States, 77–81.

24 An Act relating to the Fisheries, and for the Prevention of Illicit Trade in the Province of Nova Scotia, and the Coasts and Harbors thereof, 6 Wm. IV, c. 8.

25 An Act relating to the fisheries, and for the prevention of illicit trade in Prince Edward Island, and the coasts and harbors thereof, 6 Vict., c. 14.

26 An Act relating to the Coast Fisheries, and for the Prevention of Illicit Trade, 16 Vict., c. 69.

27 See Proceedings, supra note 9, vol. 5, 962, 963, 1055.

28 Ibid., vol. I, Case of the United States, 89–93, 108–121.

29 Ibid.

30 Letter of March 10, 1845, from Lord Aberdeen to Mr. Everett, see Proceedings, supra note 9, vol. 4, Appendix to the Case of Great Britain, 240.

31 See supra notes 23 and 28.

32 See Treaties, etc., supra note 16, 448.

33 Joint Resolution of the United States Senate and House of Representatives of January 18, 1865 : see Proceedings, supra note 9, vol. 4, Appendix to the Case of Great Britain, 371.

34 They had merely been suspended by 18 & 19 Vict., c. 3 (Imp.) or otherwise; see ibid., 371.

35 See Report by the Minister of Marine and Fisheries to the Privy Council, November 9, 1868: ibid., 379.

36 Ibid., 379; see also letter of February 2, 1869, from Stewart Campbell, M.P. to the Minister of Marine and Fisheries: Ibid., 382.

37 See Approved Report of Committee of Privy Council, January 8, 1870: ibid., 387.

38 See letter of October 29, 1870, from Mr. Fish to Consul-General Dart in Proceedings, supra note 9, vol. 2, 630.

39 An Act respecting Fishing by Foreign Vessels, 31 Vict., c. 61.

40 An Act respecting Fishing by Foreign Vessels, 31 Vict., c. 61; amended 46 Vict., c. 27; 49 Vict., c. 114, s. 1 ; re-enacted sub nom Customs and Fisheries Protection Act, R.S.C., 1886, c. 94; R.S.C., 1906, c. 47; R.S.C., 1927, c. 43; R.S.C., 1952, c. 59; replaced by Coastal Fisheries Protection Act, I & II Eliz. II, c. 15; amended 9 & 10 Eliz. II, c. 14, See below.

41 See Proceedings, supra note 9, vol. 2, 582.

43 Telegram, Lord Granville to Sir John Young, June 6, 1870: ibid., 609.

43 Ibid., 611, 614.

44 See Letter of April 12, 1866, from Edward Cardwell to the Lords of the Admiralty: ibid., 600, 603.

45 See Treaties, etc., supra note 16, 478.

46 See Fulton, Thomas Wemyss, The Sovereignty of the Sea (Edinburgh, 1911), 627.Google Scholar

47 Joint Resolution of the United States Senate and House of Representatives of March 31, 1883: see Proceedings, supra note 9, vol. 4, Appendix to the Case of Great Britain, 494.

48 Ibid., 72.

49 Ibid., vol. 2, 44.

50 Ibid., vol. 4, Appendix to the Case of Great Britain, 77.

51 Ibid., vol. I, Case of the United States, 206.

52 See Ibid., vol. 5, Appendix to the Case of Great Britain, Part III.

53 See Moore, , History and Digest of the International Arbitrations to which the United States has been a Party (Washington, 1898), vol. 1, 33, 50.Google Scholar As Moore points out (p. 50), the Great Bay (in other translations called the “Great ship road”) there referred to is the Bay of Fundy.

54 Ibid., 34, 51.

55 Can. Sess. Pap. 1883, No. 70, 47; for the more accurate reproduction, see Collections of the New Brunswick Historical Society, No. 6, 394-5. The proclamation is dealt with briefly by the Supreme Court of New Brunswick in R. v. Burt (1932), 5 M.P.R. 112, but the court was not obliged to pronounce itself on its effect.

56 This description was supplied by officials of the Nova Scotia Attorney-General’s Department.

57 Re Cape Breton (1846), 5 Moo. P.C. 259; 13 E.R. 489; see also Campbell v. Hall (1774), I Cowp. 204; 98 E.R. 1045; St. Catherine’s Milling and Lumber Co. v. R. (1887), 13 S.C.R. 577; R. v. McMaster, [1926] Ex. CR. 68.

58 (1867), 30 & 31 Vict., c. 3.

59 See, for example, An Act to provide for the support of a Lighthouse on Briar Island, at the entrance of the Bay of Fundy (1809), 49 Geo. III, c. 9 (N.S.) ; An Act to provide for maintaining Lighthouses within the Bay of Fundy (1832), 2 Wm. IV, c. 9 (N.B.); amended (1833), 3 Wm. IV, c. 30 (N.B.).

60 An Act for regulating the Fisheries in the County of Northumberland, 39 Geo. III, c. 5; An Act for the better security of the Navigation of certain Harbors in the County of Northumberland, 50 Geo. III, c. 5; An Act in further amendment of the Laws for regulating the Fisheries in the County of Northumberland, 4 Geo. IV, c. 23; An Act to continue the Laws for regulating the Fisheries in the County of Northumberland, 9 & 10 Geo. IV, c. 3; An Act further to continue the Laws relating to the Fisheries in the County of Northumberland, 4 Wm. IV, c. 31.

61 An Act for the better regulation of the Fisheries in the Inferior District of Gaspé and to repeal An Act or Ordinance therein mentioned, 47 Geo. III, c. 12 ; An Act for the better regulation of the Fisheries in the Inferior District of Gaspé, and in the Counties of Cornwallis and Northumberland, 4 Geo. IV, c. 1.

62 An Act for the Settlement of the Boundaries between the Provinces of Canada and New Brunswick (1851), 14 & 15 Vict., c. 63.

63 Supra note 58.

64 (1880), 5 S.C.R. 66.

65 An Act to incorporate a company under the style and title of “The New York, Newfoundland and London Telegraph Company”, 17 Vict., c. 2; amended 20 Vict., c. 1.

66 Direct United States Cable Co. v. Anglo-American Telegraph Co. (1876–7), 2 App. Cas. 394.

67 Supra note 20.

68 The Treaty of Washington Act, 1872, 35 & 36 Vict., c. 45.

69 See Proceedings, supra note 9, vol. 1, Award, 98.

70 See supra notes 53 and 54.

71 Treaties, etc., supra note 16, 375.

72 Moore’s, Arbitrations, supra note 53, vol. 1, 61–3.Google Scholar

73 An Act relating to the navigation of the inner Bay of Passamaquoddy, 5 Wm. IV, c. 41.

74 Treaty of August 18, 1910: United States Treaty Series, No. 551 (This followed an earlier treaty (Art. 1) of April 11, 1908: Malloy, , United States Treaties, Conventions, International Acts, Protocols and Agreements between the United States and Other Powers 1776–1909, (Washington, 1910) vol. 1, 815)Google Scholar; Treaty of February 24, 1925, Art. III; United States Treaty Series, No. 720.

75 See Proceedings, supra note 9, vol. 1, Protocols of the Arbitration, 26.

76 Ibid., vol. 1, Award, 92.

77 Ibid., 97.

78 Exchange of Notes between Mr. Bacon and Mr. Bryce dated February 21, 1909, and March 4, 1909. Ibid., vol. i, Protocols of the Arbitration, 32-3. The Gut of Canso question, like the question of bays, was disputed over the greater portion of the 19th century, but I do not propose to discuss it here.

79 Ibid., vol. 1, Award, 98.

80 Ibid., 94.

81 Ibid., 95.

82 Ibid., 95.

83 See Jessup, , The Law of Territorial Waters and Maritime Jurisdiction (New York, 1927), 386, 392, 428Google Scholar; Higgins, and Colombos, , The International Law of the Sea, 2nd ed., (London, 1951), 117–9.Google Scholar

84 Proceedings, supra note 9, vol. 1, Award, 106.

85 Ibid., 98.

86 (1876–7), 2 App. Cas. 394, 420–1.

87 Proceedings, supra note 9, vol. 1, Award, 95.

88 Ibid., vol. 4, Case of Great Britain, 101.

89 See supra notes 23 and 28.

90 Letter of March 10, 1845, from Lord Aberdeen to Mr. Everett: Proceedings, supra note 9, vol. 4, Appendix to the Case of Great Britain, 240.

91 Letter of August 10, 1852, from the Earl of Malmesbury to Mr. Crampton, ibid., 286.

92 Ibid., vol. 1, Award, 95.

93 Ibid., 95.

94 See Ibid., vol. 4, Appendix to the Case of Great Britain, 356.

95 Ibid., vol. 4, Case of Great Britain, 88.

96 Ibid., vol. 1, Award, 97.

97 Ibid., vol. 4, Appendix to the Case of Great Britain, 365.

98 Ibid., vol. J, Award, 94.

99 I.C.J. Reports, 1951, 116.

100 Debates of the House of Commons, November 15, 1962, 1650.

101 Proceedings, supra note 9, vol. 1, Award, 94.

102 Supra note 53.

103 Supra notes 54, 55.

104 Supra note 54.

105 Supra note 59.

106 Colombos, , The International Law of the Sea, 5th ed., (London, 1962), 169.Google Scholar

107 Treaty of June 15, 1846, in Treaties, etc., supra note 16, 438.

108 Proceedings, supra note 9, vol. 1, Protocols, 32–3.

109 34 & 35 Vict, c. 28.

110 Supra note 39.

111 Supra note 40.

112 Proceedings, supra note 9, vol. 4, Appendix to the Case of Great Britain, 72.

113 Proceedings, supra note 9, vol. 1, Award, 98.

l14 United States Treaties Series, No. 572.

115 An Act to amend the Customs Act, 1936, c. 30, s. 2; re-enacted by the Customs Act, R.S.C., 1952, c. 58, s. 2(1) (a).

116 P.C. 3139 of December 18, 1937.

117 Approved by P.C. 911 of April 26, 1938, and P.C. 5168 of July 15, 1941.

118 34 & 35 Vict., c. 28.

119 The Customs Act, R.S.C., 1952, c. 58, Sch., expressly mentions the Newfoundland bays in repeating the recommendations.

120 Supra note 40.

121 U.N. Doc. A/CONF. 13/L. 52.

122 I.C.J. Reports, 1951, 116.

123 Moore, , A Digest of International Law (Washington, 1906), vol. 1, 788.Google Scholar

124 Debates of the House of Commons, February 8, 1949, 368.

125 Ibid., November 14, 1957, 1168–9.

126 See the statement by Mr. St. Laurent on July 30, 1956, in Debates of the House of Commons, 6700–3.

127 See Ibid., July 25, 1958, 2680–1.

128 Supra note 121.