Procedures for transferring to British Columbia the federal government’s interest in offshore oil and gas
University of British Columbia
Master of Laws - LLM
The Provinces of British Columbia, Nova Scotia, Prince Edward Island, New Brunswick and Newfoundland are all seeking control over offshore resources, that is the natural resources within the waters beyond their coastlines. Provincial demands have ranged from challenges of the federal government's claim to ownership of these resources to discussions of schemes whereby management of the offshore resources would be shared by the provincial and federal governments. There has not been any conclusive judicial determination of the ownership of offshore natural resources, though the federal government relies on the decision by the Supreme Court of Canada in the Offshore Minerals Reference, that the resources beyond the ordinary low water mark off British Columbia come within the exclusive legislative jurisdiction of the federal government. The applicability of the decision in this Reference, to Newfoundland is being challenged by that Province. The remaining Maritime provinces of Nova Scotia, Prince Edward Island and New Brunswick, had reached a memorandum of understanding with the federal government on a shared management scheme but a subsequent federal proposal to seek constitutional amendment to transfer ownership of offshore natural resources to the Maritime provinces and British Columbia made the management scheme obsolete since the scheme would have transferred a substantially lesser degree of control. The present federal position is to deal with control over offshore resources through constitutional amendment; as part of a proposed wholesale amendment to the British North America Act, 18 67. This paper examines the necessity for constitutional amendment to deal with the transfer of offshore oil and gas under federal control, to the coastal provinces and in particular to British Columbia. As an alternative to constitutional amendment, this paper examines three procedures, for transferring offshore oil and gas to British Columbia which do not require constitutional amendment. The first procedure examines the possibility of extending the boundaries of the Province of British Columbia, for the limited purpose of including offshore oil and gas within the boundaries of British Columbia thus bringing offshore oil and gas within the legislative jurisdiction of the province. The second procedure examines the possibility of transferring ownership to either the Province of British Columbia or to a petroleum corporation controlled by the Province. The assumption in this second procedure is that a transfer of ownership could give a substantial degree of control to the Province over offshore oil and gas. The final procedure is to adapt the proposed Maritime shared management scheme to enable British Columbia to share with the federal government management of oil and gas development off British Columbia's west coast. It is necessary in assessing the most viable alternative, to examine a shared management scheme even though a discussion of shared management would at first appear to be reverting to an alternative which has been superseded by offers by the federal government to transfer more substantial control.
Law, Peter A. Allard School of