¹ Department of Fisheries and Oceans, Oceans Policy for Canada: A Strategy to Meet the Challenges and Opportunities on the Oceans Frontier (Ottawa: Government of Canada, 1987).

² Bill C-9,8, An Act Respecting the Oceans of Canada, istSess., 35th Pari., 1994–95 (1st reading June 14, 1995, reprinted as amended by the Standing Committee on Fisheries and Oceans as reported to the House on Dec. 8, 1995). The bill died on the order paper when the House was prorogued on Feb. a, 1996, but, upon the unanimous approval of a government motion in the new session, the bill was reinstated as Bill C-26, 2d Sess., 35th Pari., 1996 (1st reading April 17, 1996) and was moved forward immediately to the committee report stage that it had reached in the last session. Debate and concurrence in the bill at the report stage was concluded on June 12, 1996.

³ At the same time, it may be noted that Canada already has over thirty federal statutes with extensive supporting subsidiary legislation dealing with various specific aspects of Canada’s oceans.

⁴ Bill C-26, Preamble.

⁵ C.R.C. 1978. cc. 1547 and 1548, pursuant to the Territorial Sea and Fishing Zones Act, R.S.C. 1985, c. T-8, s. 4.

⁶ House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Fisheries and Oceans, No. 19 (Oct 20, 1994) at 35–37.

⁷ UN Doc. A/Conf.62/122, (1982), 21 I.L.M. 1261 (in force Nov. 16, 1994).

⁸ In the fisheries sector, Bill C-115, An Act Respecting Fisheries, 1st Sess., 35th Pari., 1994–95, proposed the merger of the Fisheries Act, R.S.C. 1985, c. F-14 and the Coastal Fisheries Protection Act, R.S.C. 1985, c. C-33, into one statute to provide a comprehensive instrument to address fisheries management and enforcement both domestically and extraterritorially, although this bill died on the order paper and has not been reintroduced. The Canada Shipping Act, R.S.C. 1985, c. S-9, has also seen extensive amendment over the past few years in the area of vessel-source pollution, partly as a result of Canada’s accession to various international conventions, including the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990,(1991) 301.L.M. 735, and the International Salvage Convention, 1989, reprinted in Brice, G., “The New Salvage Convention: Green Seas and Grey Areas,” [1990] L.M.C.L.Q. 32 at 54.Google Scholar

⁹ Activity on this front was particularly pronounced during the Third United Nations Conference on the Law of the Sea (1973–82) and after the adoption of the Law of the Sea Convention. For examples of such legislation from around the world, see The Law of the Sea: National Legislation on the Exclusive Economic Zone and the Exclusive Fishery Zone (New York: Office of the Special Representative of the Secretary-General for the Law of the Sea, United Nations, 1986).

¹⁰ Two countries that provide interesting comparisons with Canada are Mexico and Poland. In 1985, Mexico enacted the Federal Act Relating to the Sea as principal legislation to enable it to maximize its benefits under the Law of the Sea Convention (published Jan. 8, 1986 in the Diario Oficial de la Federación, 1986, and available in (1986) 7 Law of the Sea Bulletin 53–66). This instrument reproduces, in grosso modo, the text of the Law of the Sea Convention, concentrating on national ocean policy formulation, the establishment of a legal regime for the exploration and exploitation of ocean resources, maritime security, and marine environmental protection. The instrument aims at implementing the National Development Plan, but stops short of developing an institutional framework. Poland’s Act Concerning the Maritime Areas of the Polish Republic and the Marine Administration, Mar. 21, 1991, reproduced in (1992) 21 Law of the Sea Bulletin 66–86, goes further. In addition to defining Poland’s maritime zones and jurisdictions, the act identifies the minister of transport and marine economy as the country’s marine administration with wide powers including not only maritime transport and safety of life at sea, but also living resource utilization, marine environment protection, and coastal zone management.

¹¹ Ss. 4–27.

¹² Dec. 10, 1982, the date of the conclusion of the Conference.

¹³ Supra note 6.

¹⁴ Geological Survey of Canada, Canada and Article y 6 of the Law of the Sea, Defining the Limits of Canadian Resource Jurisdiction Beyond 200 Nautical Miles in the Atlantic and Arctic Oceans (Open File 3209, Ron McNab (ed.), May 15, 1994).

¹⁵ In accordance with Art. 76(8) and Annex 2 of the Law of the Sea Convention, a broad margin state, such as Canada, that intends to establish the outer limits of the continental shelf beyond 200 nm of its baselines has ten years from the date the Convention comes into force to submit the particulars of the claimed limits to the Commission, together with supporting scientific and technical data. The Commission would consider the submission and may make recommendations in accordance with Art 76, and then the limits of the shelf “established by the coastal state on the basis of these recommendations” would become final.

¹⁶ R.S.C. 1985, c. T-8.

¹⁷ C.R.C. 1978, cc. 1547–1549, pursuant to s. 4 of the Territorial Sea Act.

¹⁸ R.S.C. 1985, c. A-12.

¹⁹ Between the 60th parallel of north latitude and the 141st meridian of west longitude. See the definition of “arctic waters” in s. 2 of the Arctic Act.

²⁰ S.C. 1990, c. 44. Section 7, applying provincial laws in offshore areas, has not been proclaimed in force.

²¹ Bill C-26, s. 5.

²² Territorial Sea Act, s. 3.

²³ Bill C-26, s. 4.

²⁴ Ibid., s. 10–12.

²⁵ Ibid., S. 13–16.

²⁶ Part 5, Arts. 56–75.

²⁷ Bill C-26, s. 14.

²⁸ Ibid.

²⁹ Ibid., S. 16.

³⁰ Art. 56(1)(b).

³¹ “Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the EEZ, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.”

³² See McRae, D.M. and Goundrey, D.J., “EnvironmentalJurisdiction in Arctic Waters: The Extent of Article 234” (1982) 16 U.B.C.L. Rev. 197 at 209–15.Google Scholar

³³ The preamble makes this clear.

³⁴ R.S.C. 1985 (4th Supp.), c. 16.

³⁵ R.S.C. 1985, c. F-14.

³⁶ R.S.C. 1985, c. S-9.

³⁷ 499 UNTS 311, Can. T.S. 1970 No. 4.

³⁸ Ss. 17–21.

³⁹ Part 6, Arts. 76–85.

⁴⁰ Supra note 14 at 22. The Report’s preliminary assessment is that the combined additions of jurisdiction beyond 200 nm in the Atlantic and the Arctic will represent an area nearly equal to the three Prairie provinces.

⁴¹ Ibid.

⁴² Bill C-26, s. 9.

⁴³ Ibid., ss. 20 and 21.

⁴⁴ Ibid., S. 26(1)(k).

⁴⁵ Ibid., s. 29.

⁴⁶ Ibid., s. 31.

⁴⁷ Ibid., s. 35(2).

⁴⁸ Ibid., s. 30.

⁴⁹ For a discussion of the multiple meanings of the integration principle, see R. Kenchington and Crawford, D., “On the Meaning of Integration in Coastal Zone Management” (1993) 21 Ocean and Coastal Management 109–27.Google Scholar

⁵⁰ For recent reviews of the precautionary principle, see O’Riordan, T. and Cameron, J. (eds), Interpreting the Precautionary Principie (London: Cameron May, 1994),Google Scholar and Hohmann, H., Precautionary Legal Duties and Prinàples of Modern International Environmental Law (London: Graham and Trotman/Martinus Nijhoff, 1994).Google Scholar

⁵¹ For a recent review on the importance of principles in guiding law reform, see VanderZwaag, D., Canada and Marine Environmental Protection: Charting a Legal Course towards Sustainable Development (London: Kluwer Law International, 1995),Google Scholar chap 1.

⁵² Rio Declaration on Environment and Development, UN Doc. A/CONF. 151/5/Rev.1, (1992) 31 I.L.M. 874.

⁵³ United Nations Conference on Environment and Development (UNCED), Agenda 21: Programme of Action for Sustainable Development, UN Doc. A/CONF. 151/26/Rev.1, Vol. 1, 1992, reprinted in Johnson, S.P., The Earth Summit: The United Nations Conference on Environment and Development 125 (London: Graham and Trotman/Martinus Nijhoff, 1993).Google Scholar

⁵⁴ E.g., Nova Scotia has recently launched Coastal 2000 as an initiative for public discussion. See Nova Scotia Department of the Environment and Nova Scotia Department of Fisheries, Coastal 2000: A Consultation Paper (July 1994).

⁵⁵ Statutes of New Zealand 1991, No. 69.

⁵⁶ For recent reviews of the Resource Management Act 1991, see Phillipson, M., “Implementing Sustainable Development in New Zealand: The Resource Management Act 1991” (1994) 4 J.E.L.P. 222,Google Scholar and Furuseth, O. and Cocklin, C., “An Institutional Framework for Sustainable Resource Management The New Zealand Model” (1995) 35 Nat. Res. J. 243.Google Scholar

⁵⁷ The policy statement was issued in 1994. For an overview and the text see “New Zealand: New Zealand Coastal Policy Statement 1994” (1995) 10 Int’l J. Mar. & Coastal L. 431.

⁵⁸ Supra note 55, ss. 27 and 46.

⁵⁹ Ibid., s. 431 (one year after the date of commencement of the act).

⁶⁰ For a discussion of the various meanings of national oceans policy, see Knecht, R.W., “National Ocean Policy in the United States: Less Than the Sum of Its Parts,” in Fabbri, P. (ed.), Ocean Management in Global Change (London: Elsevier Applied Science, 1992) 184–85.CrossRefGoogle Scholar

⁶¹ Bill C-26, s. 31.

⁶² Ibid., s. 32(c), (d).

⁶³ Compare, e.g., New Zealand’s Resource Management Act 1991, s. 432, which requires regional councils to prepare coastal plans within two years.

⁶⁴ See, e.g., Norrena, E.J., “Stewardship of Coastal Waters and Protected Spaces: Canada’s Approach” (1994) 18 Mar. Pol’y 153 at 160.CrossRefGoogle Scholar

⁶⁵ 16 U.S.C. § 1451.

⁶⁶ See, e.g., Knecht, R.W., “The U.S. National Coastal Management Program — Problems and Opportunities in the Next Phase” (1987) 15 Coastal Management 103.Google Scholar

⁶⁷ Bill C-26, s. 32(a) and (b).

⁶⁸ Similarly, the revised bill removed the minister’s discretion in favour of a legal obligation to co-operate with other ministers, federal and provincial agencies, aboriginal organizations, and coastal communities in the exercise of the powers, duties, and functions in the bill: ibid., s. 33(1)(a).

⁶⁹ Ibid., s. 33(1)(b) and (2).

⁷⁰ Ibid., s. 35(2) and (3).

⁷¹ See Heritage, Canadian, Parks Canada, Guiding Principles and Operational Policies 43–61 (Ottawa: Minister of Supply and Services Canada, 1994).Google Scholar

⁷² R.S.C. 1985, c. N-7 (as am. R.S.C. 1985 (4th Supp.), c. 39).

⁷³ Parks Canada is in the process of seeking Cabinet authorization for a new National Marine Conservation Areas Act. Personal communication, Mr. Dave McBumey, Marine Areas Coordinator, National Parks Directorate, Ottawa (Apr. 17. 1996).

⁷⁴ Heritage, Canadian, Parks Canada, Sea to Sea to Sea: Canada’s National Marine Conservation Areas System Plan (Ottawa: Ministry of Supply and Services, 1995).Google Scholar

⁷⁵ R.S.C. 1985, c. W-9 (as am. S.C. 1994, c. 23).

⁷⁶ Ibid., The minister of the environment is authorized to provide advice and to carry out conservation measures in marine wildlife areas: Ibid., s. 4.1(1).

⁷⁷ S.C. 1995, c. 11. Act has now been proclaimed.

⁷⁸ Ibid., s. 4(2) (e).

⁷⁹ The jurisdiction is limited, however, to matters over which Parliament has jurisdiction “not by law assigned to any other department, board or agency of the Government of Canada”: ibid., s. 4(1). Some efforts at collaboration are ocurring through an interdepartmental Marine Protected Area Steering Committee initiated in 1995 and consisting of representatives from Environment Canada, Parks Canada, Fisheries and Oceans and Natural Resources Canada. See Zurbrigg, E.J., Towards an Environment Canada Strategy for Coastal and Marine Protected Areas (Hull, PQ: Canadian Wildlife Service, 1996).Google Scholar

⁸⁰ See D. VanderZwaag, supra note 51 at 9.

⁸¹ Supra note 34.

⁸² Ibid., Part 2.

⁸³ Ibid., Part 6.

⁸⁴ Supra note 36.

⁸⁵ Supra note 35.

⁸⁶ Ibid., s. 36(3).

⁸⁷ Ibid., s. 35.

⁸⁸ Bill C-26, s. 28.

⁸⁹ Ibid., ss. 53 and 56–108 make consequential amendments. Ss. 54 and 55 repeal the Territorial Sea Act, supra note 16, and the Offshore Laws Act, supra note 20, respectively.

⁹⁰ Ibid., s. 40. Including, of course, the continuing and contentious problems of the fisheries.

⁹¹ Ibid., ss. 41–45.

⁹² The Netherlands’ institutional framework for ocean management includes three co-ordinating mechanisms: (1) the North Sea Committee of the Public Works Council; (2) the Interdepartmental Coordinating Committee for North Sea Affairs (ICONA), which has an independent chairperson; and (3) the Ministerial Co-ordinating Committee for North Sea Affairs (MICONA). See Harmonization of Netherlands North Sea Policy 1989–1992, Second Chamber of the States General, 1989–90 Session, Items 44–45. There is also a Parliamentary Commission for the Seas, with representatives from all political parties, and an overall co-ordinating minister for North Sea Affairs, who is the minister of transport and public works. For a commentary on this system, see IJlstra, Ton, “The Organisation of the North Sea Policy in the Netherlands” (1990) 2 Water Law 127–32.Google Scholar

⁹³ Bill C-26, s. 32(c)(1), discussed in text at and following note 62 supra.

⁹⁴ Ibid., s. 26.

⁹⁵ Ibid., S. 25.

⁹⁶ Ibid., s. 44.

⁹⁷ Ibid., s. 41. See also “Ship Safety Responsibilities,” a communication to clients by Michael Turner, assistant deputy minister of transport dated Sept. 19, 1995, and Minutes of the Canadian Marine Advisory Council, Ottawa, Oct. 3–5, 1995 meeting, issued on Jan. 31, 1996, by the Canadian Coast Guard.

⁹⁸ See, e.g., Law of the Sea Convention, Art. 61(2): “The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources of the zone is not endangered by over-exploitation.”

⁹⁹ Ibid., Art 76(4).

¹⁰⁰ R.S.C. 1985, c. F-15, s. 4(1)(c). This section simply provides that the powers and duties of the minister of fisheries and oceans over “hydrography and marine sciences” extends to all matters within Parliament’s jurisdiction and “not by law assigned to any other department board or agency of the Government of Canada.”

¹⁰¹ Bill C-26, s. 42. The only amendment to this section by the Standing Committee was the addition of subs.(j) respecting the use of traditional ecological knowledge.

¹⁰² Ibid., s. 43(a).

¹⁰³ Ibid., s. 43(b) (i) and (ii). A minor interpretation problem arises from the phrasing of subs.(b), which states that these operational powers apply “in carrying out his or her responsibilities under this section” [emphasis added]. Given that the powers to “conduct… research” and “maintain and operate ships, research institutes, laboratories and other facilities” seem to be directly related to the functions addressed in s. 42, it is likely that it was intended to cover responsibilities under this Part. Note also that under s. 45 the minister has similar operational powers relating to hydrographie activities.

¹⁰⁴ Ibid., s. 43(c).

¹⁰⁵ There is provision for outside input into the research process through the Fisheries and Oceans Research Advisory Council, constituted of scientists, departmental representatives, universities, the fishing industry, and the public: Fisheries and Oceans Research Advisory Council Act, R.S.C. 1985, c. F-16, s. 4. By s. to, the Council advises the minister, inter alia, on “fisheries research and the marine sciences” and “the scope and adequacy of the science policies and programs of the Department of Fisheries and Oceans.” This is, however, a purely advisory function, and there is no obligation on the minister to listen, and no power for the Council to conduct research.

¹⁰⁶ The role of science has been front and centre in the post-collapse debates over the northern cod fishery. See, e.g., Hutchings, J. and Myers, R., “The Biological Collapse Of Atlantic Cod Off Newfoundland and Labrador: An Exploration of Historical Changes in Exploitation, Harvesting Technology, and Management” in Amason, R. and Felt, L. (eds), The North Atlantic Fisheries: Successes, Failures and Challenges (Charlottetown: Institute of Island Studies, 1995)Google Scholar and Finlayson, A., Fishing for Truth: A Sociological Analysis of Northern Cod Stock Assessments from 1977–1990 (St. John’s: Institute of Social and Economic Research, Memorial Univ., 1994).Google Scholar

¹⁰⁷ See, e.g., Underwood, P., “To Manage Quotas or Manage Fisheries?” (1995) 18 Dal. L.J. 36 at 39:Google Scholar “Feeding the assessment models with data and calculating all of the various TACs became the bread and butter for Department of Fisheries and Oceans … science. Integrated research into ecosystem dynamics fell by the wayside.” Nor was this argument only made in hindsight. See, e.g., the concerns raised in 1972 over a proposed merger of the Fisheries Research Board and the Department of Fisheries in Johnstone, K., The Aquatic Explorers: A History of the Fisheries Research Board of Canada 254 (Toronto: University of Toronto Press, 1977).CrossRefGoogle Scholar

¹⁰⁸ Underwood, Ibid., passim.

¹⁰⁹ Such an approach is not without precedent. See, e.g., the division of research functions in Australia, with activities such as managerial statistics, basic research, and industrial research split among different institutions and under different statutes. See Australian Institute of Marine Science Act 1972–1973, VOL. 1, Acts of the Parliament 1901–1973 (basic research), Science and Industry Research Act 1949–1973, Vol. 10, Acts of the Parliament 1901–1973, Fisheries Management Act 1991, No. 162, Acts of the Parliament 1991.