"We can't allow things that are inaccurate to stand." — The Word of Our Dan, February 19, 2008.

Friday, July 27, 2007

More boundary bunkum

One last, but very important, footnote from Carl Powell’s rant last Friday to Linda Swain on VOCM Backtalk, this time concerning the maritime boundary between Quebec and Newfoundland in the Gulf of St. Lawrence:
Why is that Mr. Hollett and others of the, particularly, Wells and Grimes governments, never talk about the water and the bottom boundary that Quebec unilaterally drew in the St. Lawrence River basin in 1964, that’s 43 years ago, whose border in particular, just 20 miles of our west coast, has enormous implications and ramifications for our west coast oil deposits. This boundary is recognized both nationally and internationally. The Newfoundland government, when they found out about it, I was in a meeting just after I retired, with the Grimes government, they didn’t know it was there, and they said, oh, of course, we don’t recognize it… It is a very serious issue and Mr. Hollett should start to look at official resources, I don’t know what he’s looking at or what he’s listening to, but that’s what I’m doing.
Since Mr. Powell is so big on “official resources”, he may want to look at a few himself.

He should start with the materials concerning the arbitration on the interprovincial boundary running down the Cabot Strait between Newfoundland and Cape Breton Island. After all, of the eight potential interprovincial maritime boundaries in the Gulf of St. Lawrence, the NL-NS line is the only one which has ever been legally settled.

First off, let’s put to bed Mr. Powell’s patently false assertion that Quebec, unilaterally or otherwise, drew the putative maritime boundary lines in 1964. The supposed boundary lines were laid down in what is known as the “Joint Statement” of the four Atlantic Premiers on September 30 of that year. The relevent text of the Statement is as follows:

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]

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 Quebec so that a united presentation may be made to the Government of Canada.
The NL-NS maritime boundary arbitration Tribunal notes, in its First Phase Report:

When the Premier of Nova Scotia wrote to the Premier of Québec on October 2, 1964, he sought not the accession of that province to a provincial boundary agreement but rather the “concurrence of the Government of the Province of Québec in our course of action”.66 The Premier of Québec replied that his province “is in agreement with the Atlantic Provinces on the matter of submarine mineral rights [sic] and of the marine boundaries agreed upon by the Atlantic Provinces”.
The putative boundaries suggested in 1964 were done so multilaterally, by all five provinces with an interest in the Gulf of St. Lawrence. In fact, not only were the lines not drawn unilaterally by Quebec, they were not drawn by Quebec at all! Quebec was a Ti-Jean-come-lately to the entire process.

Second, Mr. Powell asserts that the putative 1964 boundary between Quebec and Newfoundland is “recognized both nationally and internationally”.

The Tribunal summarized the two provinces’ opposing arguments as to whether a boundary had been agreed to in 1964:

Nova Scotia argued that an agreement existed between Nova Scotia and Newfoundland and Labrador which effected the delimitation of their respective offshore areas. This agreement, it was submitted, was entered into in 1964 by the premiers of the Atlantic Provinces, an agreement to which Québec subsequently adhered. The terms of the 1964 Agreement were, it was argued, confirmed by the subsequent conduct of the Parties.

Nova Scotia requested that the Tribunal declare that the line dividing the respective offshore areas of the Province of Nova Scotia and the Province of Newfoundland and Labrador has been resolved by agreement.

Newfoundland and Labrador argued that a line dividing the offshore areas between Nova Scotia and Newfoundland and Labrador has not been resolved by agreement, that there was no evidence of an intent on the part of Newfoundland and Labrador to be legally bound by any agreement or to follow a particular line. Nova Scotia, it was argued, failed to establish the line dividing the respective offshore areas of Newfoundland and Labrador and Nova Scotia has been resolved by agreement.

Newfoundland and Labrador requested that the Tribunal determine that the line dividing the respective offshore areas of the Province of Nova Scotia and the Province of Newfoundland and Labrador has not been resolved by agreement.
And, faced with these two opposing viewpoints, the Tribunal concluded:

In the Tribunal’s view, the documentary record looked at as a whole does not disclose the existence of an agreement resolving the offshore boundaries of Newfoundland and Labrador and Nova Scotia, within the meaning of the Terms of Reference. This is true whether the criterion be taken to be the international law of agreements or Canadian public law. In particular, the Tribunal concludes that the Parties at no stage reached a definitive agreement resolving their offshore boundary, in the sense explained in paragraph 3.30 above.

As to the 1964 Joint Statement, the reasons for this conclusion are essentially as follows:

(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.
The tenor of the Joint Statement is thus inconsistent with any intent to enter into a final and binding agreement with immediate effect. In the Tribunal’s view, this would be the case even if points 4, 5 and 6 of the items of agreement were the only matters dealt with in the Joint Statement. The terms of the Joint Statement are more consistent with a political, provisional or tentative agreement, which may lead to a formal agreement but which is not itself that agreement. This is the case whether the document is viewed from the perspective of Canadian law or the principles of international law governing maritime boundary delimitation.
The Tribunal decided that no boundary was agreed to between Newfoundland and Nova Scotia in the 1964 Joint Statement. It necessarily follows that if that document is the foundation of a claim that a boundary was settled at the same time between Quebec and Newfoundland, or of a claim to any specific interprovincial maritime boundary line, then that claim, too, must fail. The Quebec-Newfoundland maritime boundary, like any of the others in the Gulf, was not set, and so has never been recognized, nationally or otherwise.

So when the Grimes government said they didn’t recognize the 1964 line as a maritime boundary with Quebec in the Gulf, they were telling the truth. Yet somewhere in all that, Mr. Powell still manages to find dark conspiracies.

Can anyone figure out what Carl Powell is looking at or what he’s listening to… well, other than Sue?


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