No CrossRef data available.
Article contents
The Nova Scotia-Newfoundland Dispute over the Limits of Their Respective Offshore Areas
Published online by Cambridge University Press: 09 March 2016
Summary
On May 17, 2001, an arbitral tribunal established by the minister for natural resources of the government of Canada issued its decision in Phase I of the dispute between the provinces of Nova Scotia and Newfoundland and Labrador over the boundary dividing their respective offshore areas. The tribunal was required to determine in Phase I, in accordance with the principles of international law governing maritime boundary delimitation, whether the line dividing the offshore areas of the two provinces had been resolved by agreement. This note discusses the dispute settlement mechanism set up to deal with this issue and the arguments made by the parties before the tribunal, and it summarizes the decision of the tribunal.
- Type
- Notes and Comments / Notes et commentaires
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 38 , 2001 , pp. 189 - 212
- 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 2001
References
1 Terms of Reference, Article 3.2(i), which can be accessed at <www.nrcan.gc.ca:8o/css/imb/hqlib/200040eb.htm> and <www.gov.nf.ca/mines&en/dispute/references.htm> [hereinafter Terms of Reference].
2 Ibid. at Article 3.2 (ii).
3 For the remainder of this note, the province of Newfoundland and Labrador will be referred to either as the “province of Newfoundland” or “Newfoundland.”
4 Canada-Nova Scotia Offshore Petroleum Resources Accord,” dated August 26, 1986, Nova Scotia Annex 2 [hereinafter Canada-Nova Scotia Accord].
5 Memorandum of Agreement between the Government of Canada and the Government of the Province of Newfoundland on Offshore Petroleum Resource Management and Revenue Sharing,” dated February 11, 1985, Nova Scotia Annex 1 [hereinafter Canada-Newfoundland Accord].
6 For the Canada-Nova Scotia Accord, the dispute settlement provision is found in section 48 of the federal implementing legislation (Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, S.C.1988, c. 28) and in section 49 in the provincial implementing legislation (Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act, S.N.S.1987, c. 3). The provisions are almost identical, save for the reference in the provincial legislation to the condition that both the federal and provincial governments are unable to bring about a resolution of the dispute within a rea-sonable time prior to its referral to arbitration, while the federal legislation refers only to the federal government’s failure to bring about a resolution.
For the Canada-Newfoundland Accord, the dispute settlement provision is found in section 6 of the federal implementing legislation (Canada-Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3) and in section 6 of the provincial implementing legislation (Canada-Newfoundland Atlantic Accord Implementation Newfoundland Act, R.S.N. 1990, c. C-2). Both provisions are virtually identical.
7 Justice Gérard La Forest served on the Supreme Court of Canada from 1985 to 1997.
8 Leonard Legault is a leading expert in maritime boundary delimitation. He served as agent and counsel for Canada in the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, [1984] I.C.J. Rep. 246 [hereinafter Gulf of Maine], before the International Court of Justice in The Hague. He also served as counsel in the Canada-France Maritime Boundary Delimitation case [hereinafter Canada-France Maritime Boundary case], before an ad hoc arbitral tribunal.
9 James Crawford is Whewell Professor of International Law at Cambridge University.
10 Terms of Reference, supra note 1 at Article 3.2 (i).
11 Ibid. at Article 3.2 (ii).
12 L. Yves Fortier is chairman of the law firm Ogilvy Renault. He has served as counsel for Canada in the Gulf of Maine case and the Canada-France Maritime Boundary case, and as judge ad hoc on the International Court ofJustice in Case Concerning Maritime Boundary Delimitation and Territorial Questions between Qatar and Bahrain, March 16, 2001, I.C.J. General List No. 87, see <www.cij-icj.org>.
13 Donald M. McRae is a professor of international law at the University of Ottawa. He has served as counsel for Canada in the Gulf of Maine case and the Canada-France Maritime Boundary case, and was deputy agent for Canada in the Dispute Concerning Filleting within the Gulf of St. Lawrence by the French Trawlers Referred to in Article 4(b) of the Fisheries Agreement between Canada and France of March 27, 1972.
14 Terms of Reference, supra note 1 at Article 4.
15 Ibid. at Article 14.
16 Nova Scotia Memorial, p. I-13, para. 29.
17 Truman Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945, 1o Federal Register 123o3 (October 2, 1945); Convention on the Continental Shelf, April 29, 1958, 499 U.N.T.S. 312; North Sea Cases, [1969] I.C.J. Rep. 3; Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen, [1993] I.C.J. Rep. 38; and Guinea — Guinea Bissau Maritime Delimitation, 77 I.L.R. 636, Award of February 15, 1985.
18 Notes re: Boundaries, Nova Scotia Annex 31 , p. 21 .
19 Ibid. at 25.
20 The provinces relied on a legal opinion prepared by Gérard La Forest, who was then a law professor at the University of New Brunswick. It was not until 1967, in the Reference re: Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792, and subsequently in Reference re: the Seabed and Subsoil of the Continental Shelf Offshore Newfoundland, [1984] 1 S.C.R. 86, that the Supreme Court of Canada determined that jurisdiction over the continental shelf rests with the federal government.
21 Section 3 states that “[t]he Parliament of Canada may, with the consent of the Legislature of any Province ... increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature.” British North American Act, 34-35 Vict. c. 28 (U.K.).
22 Notes re: Boundaries, supra note 18 at 21 and 25.
23 Nova Scotia cited the Legal Status of Eastern Greenland (1933), P.C.I.J. (Ser. A/B) No. 53; Nuclear Tests Cases (Australia v. France, New Zealand v. France), [1974] I.C.J. Rep. 253; Aegean Sea Continental Shelf Case, [1978] I.C.J. Rep. 3; and Case Concerning the Temple of Preah Vihear (Preliminary Objections), [1961] I.C.J. Rep. 17 [hereinafter Temple of Preah Vihear].
24 Nova Scotia relied, inter alia, on Case ConcerningKasikili/Sedudu Island (Botswana v. Namibia), [1999] I.C.J. General List No. 98; Case Concerning the Temple of Preah Vihear (Merits), [1962] I.C.J. Rep. 6; International Status of Southwest Africa, [1950] I.C.J. Rep. 128.
25 Nova Scotia relied, inter alia, on Temple of PreahVihear, supra note 23, and Case Concerning the Continental Shelf (Libyan ArabJamahiriya v. Chad), [1994] I.C.J. Rep. 6.
26 Newfoundland relied, inter alia, on Reference re Canada Assistance Plan, [1991] 2 S.C.R. 525; South Australia v. The Commonwealth (1962), 108 C.L.R. 130 (H.C. of A.); and A.G. Can. v. Higbie, [1945] S.C.R. 385.
27 Newfoundland relied, inter alia, on Case Concerning the Rights of United States Nationals in Morocco, [1952] I.C.J. Rep. 176; Temple of PreahVihear, supra note 23, North Sea Continental Shelf Cases, [ 1969] I.C.J. Rep. 3; and International Status of South-West Africa, [1950] I.C.J. Rep. 128.
28 Newfoundland relied, inter alia, on the Fisheries Case [1951] I.C.J. Rep. 116; Delimitation of the Maritime Boundary in the Gulf of Maine Area, [1984] I.C.J. Rep.246; Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) ( Judgment, Application to Intervene), [1990] I.C. J. Rep. 118; Case Concerning the Land and Maritime Boundary (Cameroon v. Nigeria) (PreliminaryObjection), June 11 , 1998, I.C.J. General List No. 94.
29 Arbitration between Newfoundland and Labrador and Nova Scotia Concerning Portions of the Limits of Their Offshore Areas as Defined in the Canada-Nova Scotia Offshore Petro leum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act, para. 3.24 [hereinafter Award].
30 Ibid. at para. 3.24.
31 Ibid. at para. 3. 11.
32 Terms of Reference, supra note 1 at Article 3.1.
33 United Nations Convention on the Law of the Sea, December 1o, 1982, U.N. Doc. A/CONF.62/122.
34 Award, supra note 29 at para. 3.11.
35 Ibid. at para. 3.13.
36 Ibid. at para. 3.26.
37 Ibid. at para. 3.28.
38 Ibid. at para. 3.29.
39 Ibid. at para. 3.30.
40 Ibid. at para. 7.2.
41 Ibid. at para. 7.2.
42 Ibid. at para. 7.2.
43 Ibid. at para. 7.5.
44 Ibid. at para. 3.18.
45 Ibid. at para. 66.
46 Ibid. at para. 7.6.
47 Ibid. at para. 7.8.
48 Ibid. at para. 7.10.