Canada's Arctic Waters: Developments in Canada's Oceans Law Since 1985

Despite these many setbacks associated with the 1985 declaration by the Canadian Foreign Minister, the Canada-U.S. Arctic Co-Operation Agreement86 was finally signed on the 11th of January, 1988. Article 3 of the agreement provided that “the Government of the United States pledges that all navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada.” However, any direct support for Canada's claim based upon this "Icebreaker Agreement" was undercut by Article 4 of the Agreement:

"Nothing in this agreement of cooperative endeavour between Arctic neighbours and friends nor any practice thereunder affects the respective positions of the Government of the United States and of Canada on the Law of the Sea in this or other maritime areas or their respective positions regarding third parties".

At the same time as it was trying to regularize its maritime Arctic claims, the Government of Canada was enacting and amending its full array of maritime laws in order to keep pace with international legal developments. Despite its debut in 1985, the Canadian Laws Offshore Application Act87 was not entered into force until the 4th of February, 1991. Significantly, this Act provided statutory definitions of "internal waters" and "territorial seas". In 1996 both the Canadian Laws Offshore Application Act and the Territorial Sea and Fishing Zones Act were repealed and replaced by the Oceans Act88 in a general update of the legislative framework for the exercise of Canadian maritime sovereignty, including in Arctic waters.

Sections 25(a)(i) of the Oceans Act provided for the Governor in Council to make regulations prescribing geographical coordinates of points for the determination of the straight baselines determined under s. 5(2) of the Act.89 Importantly, sections 6 to 8 described "internal waters":

"Internal waters of Canada
6. The internal waters of Canada consist of the waters on the landward side of the baselines of the territorial sea of Canada.
Part of Canada
7. For greater certainty, the internal waters of Canada and the territorial sea of Canada form part of Canada. Rights of Her Majesty
8.(1) For greater certainty, in any area of the sea not within a province, the seabed and subsoil below the internal waters of Canada and the territorial sea of Canada are vested in Her Majesty in right of Canada.
(2) Nothing in this section abrogates or derogates from any legal right or interest held before February 4, 1991."90

While the Territorial Sea Geographical Coordinates (Area 7) Order (SOR/85-872) establishing the straight baselines around the Archipelago had originally been made under the predecessor Territorial Sea and Fishing Zones Act, it remained in force after the old Act's repeal as it was deemed to have been made under the new legislation.91

In relation to the enforcement of fishing regulations the Oceans Act also provided for the establishment of "exclusive economic zones"92 and the legislative authority for the "fishing zones"93 adjacent to the coast of Canada. The Coastal Fisheries Protection Act94 is enforced within those fishing zones. Further, Section 22(4) of the Oceans Act provides that the jurisdiction and powers of courts with respect to offences under federal law are determined pursuant to sections 477.3, 481.1 and 481.2 of the Criminal Code of Canada.95

A separate unique zone was established under Canadian law for pollution enforcement in Arctic waters. Section 3(1) of the Arctic Waters Pollution Prevention Act (AWPPA) provides for its application in "arctic waters", which are defined in sections 2 and 3(2) as including all the waters, except "inland waters", adjacent to the mainland and islands of the Canadian Arctic within the area enclosed by the 60th parallel north, the 141st meridian west, the equidistance line between the islands of the Canadian Arctic and Greenland, and a line measured seaward from the nearest land a distance of one hundred nautical miles.96 While the term "inland waters" is not defined in this the AWPPA97, it may be assumed that they correspond to "internal waters" described in Territorial Sea Geographical Co-Ordinates (Area 7) Order (Privy Council 1985-2739).

Sections 11 through 13 of the AWPPA provide for: the establishment of shipping safety control zones in the arctic waters; the regulation of navigation within those zones, including the design, manning and type of cargo carried on the ships; and enforcement of navigation regulations in these Shipping Safety Control Zones. In 1978, pursuant to the AWPPA, the Canadian Government had issued the Shipping Safety Control Zones Order98 establishing the limits of shipping safety control zones in the Arctic. Sections 562.15 and 562.16 of the Canada Shipping Act provides for the issuance of regulations respecting the information required to be provided for traffic clearance and the establishment of Vessel Traffic Services in the AWPPA shipping safety control zones, respectively. The authority for the application of these regulations in Arctic waters are the NORDREG99. Despite the natural inference one may draw from the acronym, these are not regulations, but instead are published as Notice to Mariner No. 6100 as an instruction or direction issued under the statutory authority of section 562.13 of the Canada Shipping Act. However, the NORDREG explicitly notes that "participation is voluntary" and therefore, the reporting requirements cannot be enforced.

As noted earlier, the Oceans Act provides the legislative framework for the establishment of the Canadian EEZ, even in circumstances where the geographical coordinates have not been issued by regulation.101 Indeed, an anomalous situation is created because Canada has not yet issued a regulation or order in council setting out the geographical coordinates of the outer limits of the Arctic Ocean exclusive economic zone which might conflict with territorial sea, EEZ or other zones declared by another state or the outer limit of the EEZ, continental margin, or continental shelf of Canada.102

In summary, by the application of the Oceans Act, the Territorial Sea Geographical Coordinates (Area 7) Order (SOR/85-872), and the Interpretation Act, the waters within the straight baselines around the islands of the Canadian Arctic Archipelago are internal waters and subject to the full breadth of Canadian laws. Further, by application of the Oceans Act, a 200-nm exclusive economic zone was authorized to be established around the Arctic Archipelago. The application of the Oceans Act and the Fishing Zones of Canada (Zone 6) Order together established the fishing zone in Arctic waters 200 nm seaward of the baselines in which the Coastal Fisheries Protection Act is to be enforced. Finally, by the application of the Arctic Waters Pollution Prevention Act, the Shipping Safety Control Zones Order, the Shipping Act and the NORDREG, the pollution regulations may be enforced in the Shipping Safety Control Zones in Arctic waters 100 nm seaward of the baselines when voluntarily notified by the vessel entering those zones.


Footnotes

86 Agreement Between the Government of Canada and the Government of the United States of America on Arctic Co-Operation, 11 January 1988, Canada Treaty Series, No. 29, 2 (1988).

87 An Act To Apply Federal Laws and Provincial Laws To Offshore Areas and To Amend Certain Acts In Consequence Thereof, S.C. 1990, c. 44. First introduced in April 1986, the Bill died on the order paper and was not re-introduced until October of 1989, and received royal assent in December, 1990. As observed by Ross Hornby, "The Canadian Laws Offshore Application Act: The Legislative Incorporation of Rights over the Continental Shelf" (1991) 29 Can. Y.B. Int'l L. 355 at 359, the Act was primarily concerned with the Canadian continental shelf, but given the complexity of the maritime zones, adjusted the application of federal and provincial law according to the difference in legal status: “Thus, laws are applied without qualification to the internal waters and territorial sea, where Canada possesses full territorial sovereignty, subject only to certain navigational rights of other States in the territorial sea.” 

88 Oceans Act, S.C. 1996, c. 31, s. 2; S.C. 1993, c. 28, s. 78; S.C. 1998, c. 15, s. 35; S.C. 2002, c. 7, s. 223. Sections 54 and 55 repealed the Canadian Laws Offshore Application Act and the Territorial Sea and Fishing Zones Act respectively.

89 Section 5 of the Oceans Act is concerned with the determination of the baselines:

5.(1) Subject to subsections (2) and (3), the baseline is the low-water line along the coast or on a low-tide elevation that is situated wholly or partly at a distance not exceeding the breadth of the territorial sea of Canada from the mainland or an island.

Geographical coordinates of points

"(2) In respect of any area for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(i) and subject to any exceptions in the regulations for
  1. the use of the low-water line along the coast between given points, and
  2. the use of the low-water lines of low-tide elevations that are situated wholly or partly at a distance not exceeding the breadth of the territorial sea of Canada from the mainland or an island, the baselines are straight lines interpreted as geodesics joining the consecutive geographical coordinates of the points so prescribed...."

Section 25(a)(i) provides the authority for making certain regulations:

"25. The Governor in Council may, on the recommendation of the Minister of Foreign Affairs, make regulations

  1.  prescribing geographical coordinates of points from which
  2. baselines may be determined under subsection 5(2) as straight lines interpreted as geodesics, ...."

90 The Interpretation Act also provides assistance in determining the extent of the sovereignty exercised in the maritime zones. Section 35 defines "internal waters" as:

  1. "in relation to Canada, means the internal waters of Canada as determined under the Oceans Act and includes the airspace above and the bed and subsoil below those waters, and
  2. in relation to any other state, means the waters on the landward side of the baselines of the territorial sea of the other state;"

Further, section 8 provides for the territorial operation of Acts of Parliament:

"Territorial operation
8. (1) Every enactment applies to the whole of Canada, unless a contrary intention is expressed in the enactment."

91 Interpretation Act, R.S.C. 1985, c. I-21, s. 1. Section 44(g) provides: 

"Repeal and substitution
44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefore,
...
(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead;...."
This rule of interpretation also applied to the Fishing Zones of Canada (Zone 6) Order enacted pursuant to the Territorial Sea and Fishing Zones Act which had extended a fishing zone 200 nm seaward of the Arctic baselines.

92 Oceans Act, ss.14 and 15:

"Exclusive Economic Zone
Sovereign rights and jurisdiction of Canada
14. Canada has

  1. sovereign rights in the exclusive economic zone of Canada for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superadjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the exclusive economic zone of Canada, such as the production of energy from the water, currents and winds;
  2. jurisdiction in the exclusive economic zone of Canada with regard to
    1. the establishment and use of artificial islands, installations and structures,
    2. marine scientific research, and
    3. the protection and preservation of the marine environment; and
  3. other rights and duties in the exclusive economic zone of Canada provided for under international law.

Rights of Her Majesty
15.(1) For greater certainty, any rights of Canada in the seabed and subsoil of the exclusive economic zone of Canada and their resources are vested in Her majesty in right of Canada."

93 Oceans Act, supra note 88, section 16. Further, section 25(b) of the Oceans Act provided for the Governor in Council, on the recommendation of the Minister of Foreign Affairs, to make regulations “prescribing areas of the sea adjacent to the coast of Canada as fishing zones of Canada.” 

94 Coastal Fisheries Protection Act, R.S.C. 1985, c. C-33.

95 Section 477.3(1) is concerned with the enforcement powers (arrest, entry, search or seizure) and section 477.3(2) authorizes any justice or judge in Canada to authorize those enforcement powers related to an offence:

  1. "committed in or on the territorial sea of Canada or any area of the sea that forms part of the internal waters of Canada, or
  2. referred to in section 477.1 [offence under federal law, within the meaning of s.2 of the Oceans Act] in the same manner as if the offence had been committed in that territorial division."

Oceans Act, section 2: “"federal laws" includes Acts of Parliament, regulations as defined in section 2 of the Interpretation Act and any other rules of law within the jurisdiction of Parliament, but does not include ordinances within the meaning of the Northwest Territories Act or the Yukon Act or, after section 3 of the Nunavut Act comes into force, laws made by the Legislature for Nunavut or continued by section 29 of that Act.” 

96 The meaning of "arctic waters" is provided in sections 2 and 3 of the Arctic Waters Pollution Prevention Act.

97 "Inland waters of Canada" are defined in section 2 of the Canada Shipping Act, R.S.C. 1985, c. S-9 to mean

"all the rivers, lakes and other navigable fresh waters within Canada, and includes the St. Lawrence River as far seaward as a straight line drawn

  1. from Cap des Rosiers to West Point Anticosti Island, and
  2. from Anticosti Island to the north shore of the St. Lawrence River along the meridian of longitude sixty-three degrees west;"

98 Order Prescribing Certain Areas Of The Arctic Waters As Shipping Safety Control Zones (Shipping Safety Control Zones Order), found at http://www.tc.gc.ca/acts-regulations/includes/printable_version.asp?lang=en.

99 Vessel Traffic Reporting Arctic Canada Traffic Zone (NORDREG)

100 Notice to Mariner No. 6 is published as a Radio Aid to Marine Navigation (found at http://www.ccg-gcc.gc.ca/Marine-Communications/Radio-Aids).

101 Oceans Act, supra note 88, s.13:

"Exclusive economic zone of Canada
13.(1) The exclusive economic zone of Canada consists of an area of the sea beyond and adjacent to the territorial sea of Canada that has as its inner limit the outer limit of the territorial sea of Canada and as its outer limit
  1. subject to paragraph (b), the line every point of which is at a distance of 200 nautical miles from the nearest point of the baselines of the territorial sea of Canada; or
  2. in respect of a portion of the exclusive economic zone of Canada for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(iii), lines determined from the geographical coordinates of points so prescribed.
Determination of the outer limit of the exclusive economic zone of Canada
(2) For greater certainty, paragraph (1)(a) applies regardless of whether regulations are made pursuant to subparagraph 25(a)(iv) prescribing geographical coordinates of points from which the outer limit of the exclusive economic zone of Canada may be determined."

 102 Ibid., s.25(a) (iii) and (iv): 

"25. The Governor in Council may, on the recommendations of the Minister of Foreign Affairs, make recommendations

(iii) in respect of a portion of the exclusive economic zone of Canada or the Continental shelf of Canada prescribed in the regulations, an outer limit line may be determined, where, in the opinion of the Governor in Council, a portion of the exclusive economic zone of Canada or the continental shelf of Canada determined in accordance with paragraph 13(1)(a) or 17(1)(a) or (b) would conflict with the territorial sea of another state or other area of the sea in which another state has sovereign rights or would be unreasonably close to the coast of another state or is otherwise inappropriate, and
(iv) the outer limit of the exclusive economic zone of Canada or the outer edge of the continental margin or the outer limit of the continental shelf of Canada may be determined; and…"
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