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From the archives

Our Violent National Game

The great hockey debate continues

Pax Atlantica

NATO’s long-lasting relevance

The Race for the Arctic

Canada’s ace in the hole is our Inuit population

Terry Fenge

Who Owns the Arctic? Understanding Sovereignty Disputes in the North

Michael Byers

Douglas and McIntyre

179 pages, softcover

Since he left Duke University in 2004 and returned to his native Canada to take up residence at the University of British Columbia, Michael Byers has become a frequently quoted commentator on public policy. His most recent book, Who Owns the Arctic? Understanding Sovereignty Disputes in the North, surveys boundary and jurisdiction disputes in the “Canadian” Arctic and urges the Government of Canada to cool the rhetoric, negotiate with its neighbours and play our highest trump card—Inuit occupancy in the Arctic—in the international political and legal game. In spite of Byers’s legal and academic credentials, this is a lucidly written, easily read and highly informative book—just the sort of thing members of Parliament need if they are to understand and contribute to Arctic policy. Byers is a man with an opinion and an ideology. He is also a rare breed: an academic who shuns the cloisters and the ivory tower to mix it up in public. He stood for the New Democratic Party in the 2008 federal election—not a job for the faint of heart.

Driven by climate change, the Arctic is changing fast, faster than any other portion of the globe. Boundary and jurisdiction disputes have been around for decades, certainly before climate change was on the international policy agenda, but with multi-year sea ice rapidly melting, the region will soon be like the Great Lakes, frozen in winter and largely ice-free in summer. Shipping companies have done the math. The northwest and northeast passages or the route over the top through the Arctic Ocean cuts thousands of kilometres off shipping routes between industrial areas in North America, Europe and Asia. Just as important, these routes can accommodate vessels too big for the Panama and Suez canals. Moreover, the Arctic could well become the world’s final industrial frontier. Its geology is inadequately understood, but massive volumes of oil, gas and minerals are thought to await enterprising corporations with billions of dollars to spend on exploration and development. Prime Minister Stephen Harper’s vision of Canada as an energy superpower rests, in part, on Arctic development.

All of this led American analyst Scott Borgerson, writing in Foreign Affairs, to predict diplomatic gridlock and anarchy leading the Arctic to “erupt in an armed mad dash for its resources.” He supports a new legal regime to promote orderly development in the North. Byers takes a far less incendiary view and points out that international cooperation in this region has become the norm since the collapse of the Soviet Union: witness the eight-nation Arctic Council established in 1996, in which Arctic indigenous peoples enjoy “permanent participant” status, a unique arrangement in intergovernmental affairs. He also points to a 2007 political declaration signed in Ilulissat, Greenland, in which the five Arctic Ocean littoral states promised to use the United Nations Convention on the Law of the Sea to resolve competing national claims to extended continental shelves in the Arctic Ocean. That Canada, the United States and Denmark are working together to gain data to support their respective national claims is offered as hard evidence of effective international cooperation.

Many Canadians remember Artur Chilingarov, a well-known Arctic “personality” and member of the Russian Duma who used a deep-sea submersible to plant a titanium Russian flag on the seabed at the North Pole in 2007. Some also remember the response of Peter MacKay, then minister of national defence, who characterized this behaviour as worthy of the 15th century. But very few Canadians know this episode was not sanctioned by the Russian government. Indeed, Canada has leased a Russian icebreaker as well as vessels in its own fleet to gain data to support its case to extend its continental shelf in the Arctic Ocean.

While Borgerson may be over the top, he is surely correct that boundary, jurisdictional and sovereignty disputes in the Arctic will gain more public and political attention as we all navigate toward a post–climate change world. From a purely Canadian perspective, it is here that Who Owns the Arctic? is particularly helpful, for Byers sees Inuit as Canada’s potential ace in the hole in the ongoing dispute with the United States and the European Union on the status of the Northwest Passage under international law. Is the waterway fully Canadian or an international strait through which foreign flagged vessels have right of passage? To assert, affirm and express Canada’s full jurisdiction over the passage, Byers recommends three policy actions: implementation of the 1993 Nunavut Land Claims Agreement, devolution of responsibility for Arctic marine affairs from Ottawa to the Government of Nunavut and designation in Lancaster Sound of marine conservation areas backed by World Heritage status.

Byers reminds us that as early as 1930, Inuit use and occupancy were cited to support Canada’s Arctic sovereignty in negotiations with Norway regarding ownership of those High Arctic Islands discovered by and named after Norwegian explorer Otto Sverdrup. In the early 1970s, almost all Inuit hunters were interviewed to document where, when and how they hunted, fished and trapped. Published in three volumes by the Government of Canada in 1977, this study shows extensive Inuit use and occupancy of the Northwest Passage. In 1986 Canada drew “straight baselines” around the fringing islands and headlands of the Arctic Archipelago and declared all waters within to be “internal” to Canada. Joe Clark, seretary of state for external affairs, was quite clear about the importance of Inuit use and occupancy in the region when he announced the straight baselines in the House of Commons. Alone among modern treaties with indigenous peoples, the Nunavut Agreement explicitly mentions Inuit use and occupancy in support of Canada’s Arctic sovereignty. But Byers goes further. He notes that in 1975 the International Court of Justice held in the Western Sahara case that nomadic peoples can acquire and transfer sovereign rights. This is precisely what the Inuit of Nunavut did when they ceded their aboriginal title to the Crown in return for a range of rights and benefits defined in the Nunavut Agreement.

Nunavut Tunngavik Inc., the Inuit organization implementing the Nunavut Agreement, launched a lawsuit in 2006 alleging systemic failure by the Government of Canada to implement the agreement. Byers suggests that Canada, by not holding up its end of this historic bargain, is weakening its Arctic sovereignty case. All of this is very far from Harper’s inaccurate remark that Canada should “use or lose” the Arctic. In response, Inuit leaders reminded the prime minister that Inuit are proud Canadians who have been living in and using the Arctic for an awfully long time and that they are there to stay. The late Mark R. Gordon, an Inuit leader from northern Quebec, once characterized Inuit as Canada’s human flagpole in the Arctic.

Byers also quotes with approval McGill University lawyer Suzanne Lalonde’s contention that devolution to the Government of Nunavut of rights to the seabed within the Arctic Archipelago could, by reinforcing the role of Inuit use and occupancy, carry weight in international law. Lalonde says:

Devolution of legislative jurisdiction over the land resources and marine bed resources in the Territory of Nunavut to its Government could be a further and important exercise of Canada’s exclusive authority over the waters of the Arctic Archipelago. Particularly should such action draw no notice or protests from foreign governments, it would undoubtedly strengthen Canada’s claim under the historic waters doctrine.

If there is a specific place in northern Canada that exemplifies the Arctic sovereignty dispute it is Lancaster Sound, the eastern entrance to the Northwest Passage. An area of haunting beauty and ecological fragility, and home to bowhead whales, narwhals, belugas, walruses, seals and literally millions of seabirds, this is where an oil spill would have catastrophic impacts. Inuit organizations support Canada’s Arctic sovereignty in part because they want shipping in the sound and throughout the Arctic to be regulated and managed according to Canada’s stringent and vigorously applied rules and regulations. To ensure that this is the case, Canada needs to have the legal ability to prevent access to the passage by ships that fail to meet Canada’s standards.

There are additional ways to protect Lancaster Sound. Establishing a marine conservation area in the sound has been in the cards for years, but Ottawa has dragged its feet, perhaps because designating the area is part and parcel of implementing the Nunavut Agreement. Byers’s proposals and analysis may help to get things moving. He reminds us that

designating Lancaster Sound a World Heritage Site would facilitate efforts to regulate shipping routes and the frequency of shipping, so as to reduce the impact on those animals, and in the process strengthen Canada’s claim that the Northwest Passage constitutes internal waters subject to Canadian regulation and control.

Prime Minister Harper has invested considerable time, money and political capital in asserting Arctic sovereignty. His 2007 announcement that Canada would acquire new ice-strengthened navy patrol vessels and increase the ability of the Canadian armed forces to operate in the Arctic was quite widely supported. Who Owns the Arctic? suggests there are several additional ways to achieve our northern sovereignty objectives. As Mary Simon, president of Inuit Tapiriit Kanatami, Canada’s national Inuit organization, has said, sovereignty begins at home.˝

Terry Fenge is an Ottawa-based consultant. He was research director and senior negotiator for the Tungavik Federation of Nunavut, the Inuit organization that negotiated the 1993 Nunavut Land Claims Agreement.

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