Northwest Passage Hold ’Em

Asserting sovereignty in the Arctic is a key feature of Prime Minister Stephen Harper’s northern policy. His government is pursuing this goal by strengthening Canada’s military presence in the region, investing in “world class” research facilities in Nunavut and building a new polar class icebreaker to be named the John G. Diefenbaker. There is no doubt about the prime minister’s commitment. In the midst of a global recession and mounting federal deficits, his government has committed hundreds of millions of dollars to sovereignty assertion initiatives. But where do Inuit, the region’s permanent residents, fit into all of this?

Mary Simon, former president of Inuit Tapiriit Kanatami, the national Inuit organization, has said “sovereignty begins at home.” She is right. The presence in the Arctic of Inuit who have occupied the region for generations uncounted, and the full integration of Nunavut—about 22 percent of the country—into Canada through implementation of the 1993 Nunavut Land Claims Agreement are sovereignty assertion assets that the federal government has yet to fully use. This is unfortunate, for they may be trump cards in the geopolitical poker game already underway in the region.

Arctic sovereignty is a much used but sometimes misunderstood term. With the exception of the legal status of Hans Island in Nares Strait between Ellesmere Island and Greenland, and offshore boundary disputes in the Lincoln Sea between Canada and Denmark, and in the Beaufort Sea between Canada and the United States, there are no legal disputes regarding sovereignty over Arctic lands or ocean in areas claimed by Canada. The international community recognizes these lands and waters to be part and parcel of Canada. At issue is whether the Northwest Passage—actually a series of passages linking Davis Strait and Baffin Bay in the east to the Bering Sea in the west—is or, as a result of increased transits by foreign flagged vessels, could become an “international strait” under international law, which is the position of the United States. The implication of this position is that states enjoy transit rights through the Northwest Passage. Or is it, as the government of Canada maintains, “internal waters” over which Canada enjoys full and complete jurisdiction, including the ability to bar access to foreign vessels? The legal issue boils down to whether there is the equivalent of an international easement through the passage.

Much of practical significance rests on the outcome of this debate. Melting sea ice as a result of global climate change is opening the Arctic. Destination tourist vessels now quite frequently visit the Northwest Passage. It may be many years before it is regularly transited by ocean-going general cargo vessels, including tankers, but this is likely to happen at some stage, for using the passage reduces by thousands of kilometres the journey between western Europe and the eastern seaboard of North America and eastern Asia.

The prospect of convenience-flagged vessels manned by poorly trained crews plying the passage under weakly enforced international regulations is not appealing and neither is it an outlandish scenario. Negotiations under the auspices of the International Maritime Organization to strengthen and make mandatory the existing Guidelines for Ships Operating in Polar Waters continue to be hindered by the unwillingness of flag states to accede to stringent environmental regulation. This is likely why Canada has announced its intention to take Arctic shipping concerns to the eight-member Arctic Council when it assumes the chair of the council in May 2013.

Canada asserts “historic title” over Arctic waters, including the Northwest Passage and, since January 1, 1986, has claimed as internal all waters landward of “straight baselines” drawn around the Arctic Archipelago. Both of these legal positions reflect, at least in part, Inuit use and occupancy of sea and sea ice. In the mid 1970s map biographies were prepared by more than 85 percent of Inuit hunters resident in the Northwest Territories (this was more than 20 years before the creation of the Nunavut Territory). Published by the government of Canada in 1976 in the three-volume report of the Inuit Land Use and Occupancy Project, these map biographies showed the extent, frequency and intensity of Inuit use and occupancy of nearly 4 million square kilometres of land and ocean, including Lancaster Sound, Barrow Strait and Viscount Melville Sound—the eastern and central portion of the Northwest Passage.

The connection between Inuit use and occupancy of sea and sea ice and Canada’s assertion of historic title predated this statement. The government of Canada cited the need to protect Inuit hunting when the Arctic Waters Pollution Prevention Act was passed by Parliament in 1970 in response to the uninvited transits through the passage by the American supertanker Manhattan. Actually, the connection goes back even further. The hunting interests of Inuit were cited by the government in the early 1930s when denying a Norwegian request for commercial access to the Sverdrup Islands, discovered and mapped 30 years earlier by Norwegian explorer Otto Sverdrup.

To recap: the use and occupancy of sea and sea ice by Inuit have and continue to be cited by the government as a factor underlying and supporting its assertion of historic title and full jurisdiction and sovereignty over the Northwest Passage. This position and view is explicitly referenced in the 1993 Nunavut Land Claims Agreement, a modern treaty negotiated and ratified by the Inuit of Nunavut and the Crown. The promises defined in this modern treaty confer rights that are guaranteed and protected under section 35 of the Canadian constitution.

Legal scholar Michael Byers characterizes the Nunavut agreement as a vehicle to strengthen Canada’s assertion of Arctic sovereignty. He notes that in 1975 the International Court of Justice in the Western Sahara case affirmed the ability of nomadic peoples to acquire and transfer sovereignty rights—arguably what happened through the Nunavut agreement. Byers also notes that “any argument based on a transfer of rights is weakened if the recipient fails to uphold the bargain.” Such a failure would almost certainly weaken Canada’s political and moral credibility on Arctic foreign policy issues, including sovereignty assertion, in the eyes of non-Canadians.

So what is the state of play with the Nunavut agreement? Is it being fully and fairly implemented, and is Canada citing it internationally in support of its Arctic sovereignty? Unfortunately the answer to these questions is no. In December 2006 Nunavut Tunngavik Inc., the Inuit organization charged with implementing the Nunavut agreement, initiated a lawsuit alleging widespread failure on the part of the government of Canada to fulfill its obligations and duties. Sixteen contractual breaches and numerous breaches of fiduciary duties that require the Crown to act in a trust relationship with Inuit are alleged in NTI’s statement of claim. Most prominent among these allegations are failure to fund implementation, failure to arbitrate disputes and failure to take initiatives to boost Inuit employment in government to a “representative” level. This case continues to move toward trial and may very well end up before the Supreme Court of Canada.

In June 2012, Justice Earl Johnson of the Nunavut Court of Justice came down hard on the federal government on a specific component of this case. He awarded almost $15 million in damages to NTI as a result of the federal government’s “indifferent” refusal for many years to implement the general monitoring provisions of the agreement. This judgement is under appeal. But what might be the impact on public opinion in Canada and abroad, and on foreign governments with Arctic interests, should the trial judge’s decision be upheld and should his reasoning and findings be extended to the additional and larger alleged breaches of the agreement? Conceivably, such a situation might prompt onlookers to suggest that the government of Canada had effectively repudiated the agreement, perhaps stimulating a debate on the ability of Inuit, in response, to rescind it and reassert their aboriginal title. NTI’s court case is framed as a breach of contract, and rescission of agreements is part and parcel of the law of contracts. In relation to a modern treaty these would be uncharted and potentially dangerous political and legal waters. Would rescission, or even a serious debate about it, hinder the political ability of the government to cite Inuit use and occupancy of sea and sea ice to support Canada’s Arctic sovereignty based on historic title?

The reason the government has put itself in this apparently vulnerable position seems to reflect a less than serious approach to implementing all modern treaties. In 2003 aboriginal peoples with modern treaties formed the Land Claims Agreements Coalition to press Ottawa to fully implement these agreements painstakingly negotiated over many years. The coalition has offered a compelling critique of Ottawa’s narrow and unimaginative approach toward implementation. Many in Ottawa, the coalition suggests, assume that modern treaty implementation is the responsibility of the Department of Aboriginal Affairs and Northern Development rather than the government of Canada as a whole. In short, federal agencies including the departments of transport, environment, fisheries and oceans, and others do not focus on modern treaties because they do not think they have to.

As well, the federal government’s budgetary system that deals with annual expenditures by individual agencies has huge difficulty providing implementation funds for multi-year, interagency activities in support of modern treaty implementation. Recently the government of Canada published guidelines, years in the making, elevating to official policy its refusal to arbitrate modern treaty disputes of a financial nature. Current efforts by the government to define and apply a formula to fund implementation of land claims and aboriginal self-government agreements will likely breach commitments in agreements to negotiate funding, and can only further worsen the deteriorating relationship between the government and modern treaty organizations.

Problems implementing modern treaties predate the assumption to power in January 2006 of Prime Minister Stephen Harper’s Conservative Party. Be that as it may, the disbandment of the Cabinet Committee on Aboriginal Affairs and the secretariat in the Privy Council Office that served it within months of the election was, in hindsight, the writing on the wall. The secretariat had been facilitating negotiations between the Land Claims Agreements Coalition and federal agencies of a formal policy to improve implementation of modern treaties.

It might be that the current government of Canada’s difficulties with implementing modern treaties, including using the Nunavut agreement for sovereignty assertion purposes, reflects an aversion to the collective rights of aboriginal peoples in Canada. The government’s Northern Strategy, released with considerable fanfare in 2009, reveals this to be at least a plausible explanation. The strategy fails to mention implementation of modern treaties—the very embodiment of collective rights—and instead stresses a “northern vision” of “self-reliant individuals.” It is, perhaps, this misperception and misunderstanding of the very nature of northern Canada that enabled Prime Minister Harper in 2007 to say that “Canada has a choice when it comes to defending our sovereignty in the Arctic: either we use it or we lose it.”

In making this statement the prime minister appeared to step back from the long-standing sovereignty supporting “historic title” argument of previous federal governments. While the “historic title” position was reiterated in the government’s 2011 Arctic Foreign Policy statement, many Inuit were deeply insulted by the prime minister’s “use it or lose it” comment, which they interpreted as a dismissal of their culture and economy and of their contribution to Canada’s Arctic sovereignty. Some commentators suggested that the aphorism weakened rather than strengthened Canada’s ability to assert Arctic sovereignty. After all, what other leader of a G8 country would suggest that how a state uses its territory is a factor in the acceptance by other states of its sovereignty over that same territory? Does the prime minister truly believe—and does he expect the Canadian public to believe—that minerals and hydrocarbons in the Canadian Arctic have to be developed in order to ensure that other countries will acknowledge our Arctic sovereignty and jurisdiction?

Perhaps Franklyn Griffiths, an early exponent of international cooperation in the Arctic, should have the final word, for he has come to realize and write about the sterility of a debate predicated on a narrow interpretation of national sovereignty in the Arctic. He suggests that Arctic states “adopt a multilateral and region-wide approach to Arctic affairs. Besides seizing opportunities as they arise, the ice states would orchestrate joint actions so as to shape the region’s development according to a common strategic design.”

Within this framework Griffiths recommends an approach that binds sovereignty with stewardship—something about which the Nunavut agreement and other modern treaties in northern Canada also have a great deal to say.