After a summer of vacillating, the federal government announced six measures to affirm Canadian sovereignty in the Arctic in a speech by Secretary of State for External Affairs Joe Clark to the House of Commons on 10 September 1985. This article will consider some of the implications of these measures.
An order in council drawing straight baselines around the arctic archipelago was adopted by Cabinet on the day of the speech.1 The drawing of baselines from which a state's territorial sea can be delimited is a legal device resorted to wherever a coastline is heavily indented and fringed with islands. The practice has been approved by the International Court of Justice2 and codified in international law.3 Many Canadian legal experts have called upon the government to declare straight baselines around the arctic archipelago, but, for diplomatic reasons, Ottawa has hesitated to do so until now.4 The measure is to be welcomed, since it represents one way by which Canadian sovereignty over arctic archipelagic waters can be affirmed.5
The government also announced the withdrawal of its reservation to the compulsory jurisdiction of the International Court of Justice, a position adopted in 1970 when it was feared Canada's Arctic Waters Pollution Prevention Act6 would be successfully challenged in international law. Developments in international law since 1970 and, in particular, the insertion of Article 234 in the Law of the Sea Convention, have made this reservation an anachronism.7 Again, the government's decision, long overdue, should enhance our international posture.
Major Deficiencies
Mr Clark informed the House that Canadian civil and criminal law should be extended to the offshore to demonstrate functional jurisdiction in this area. Bill C-104, the Canadian Laws Offshore Application Act, was introduced earlier this year and has been sent to a special legislative committee of the Commons.8 Although the intent of the bill is laudable, aimed as it is at strengthening Canada's claim to sovereignty, the current draft contains serious flaws which may be inimical to its purpose. Two major deficiencies should be mentioned here.
The bill proposes an amendment to the current definition of "Northwest Territories", as contained in the Northwest Territories Act.9 The major changes proposed by the legislation concern water areas: inland waters north of the 60th parallel, the waters of the arctic archipelago, and all other waters to be enclosed by straight baselines (as promulgated by order in council) will be included in the Northwest Territories. Hudson Bay, Hudson Strait, James Bay, Ungava Bay, and the Foxe Basin will be excluded in the act, and will probably not be brought in under order in council. The government's decision to exclude Foxe Basin may prove prejudicial to Canada. Hudson Bay and Hudson Strait have uniformly been regarded in the scholarly literature as internal Canadian waters; however, the waters in Foxe Basin have not received the same attention, nor is there a similar legal consensus regarding their status. By excluding Foxe Basin from the Northwest Territories, the government could be weakening its claim over this body of water.10
Another problem arises from provision in the bill which makes provincial laws, other than those imposing a tax or royalty, or relating to nonrenewable resources, applicable to the offshore in areas adjacent to coastal provinces." Inuit have objected to this because their offshore hunting will, for the first time, be made subject to provincial game legislation. This may create conflicts between territorial and provincial regulations in the Hudson Bay, Hudson Strait, and Ungava Bay areas, since the offshore islands will remain under N.W.T. jurisdiction while the waters will be subject to Manitoba and Quebec laws. Moreover, the bill does not consider the special legal régime set up by the James Bay and Northern Quebec Agreement, the provisions of which make the application of provincial "laws of general application" a legal impossibility. It may be that section 35 of the Constitution Act, 1982, will ensure that Inuit hunting rights cannot be affected in this way p2 The federal government has accepted the claims of the Inuit of Labrador, northern Quebec, and the Northwest Territories to the offshore, and is committed to negotiating claims agreements with them which will, it is assumed, include provisions dealing with this territory. Given the constitutional recognition of aboriginal rights and stated federal policy regarding the negotiation of claims agreements, it seems contradictory to place Inuit in the invidious position of being regulated by provincial law without their consent.
Inuit Concerns
The government also informed the House that it would increase military surveillance of the Arctic through aircraft overflights and naval manoeuvres, and would undertake construction of a Arctic Class 8 ice-breaker. This announcement has caused concern to Inuit, since they fear that the government will be too easily lured into basing its northern policy on perceived threats to arctic security. In briefs before the Special Joint Committee on Canada's International Relations, national and regional Inuit associations stressed that Canada's claim to the Arctic is more securely founded upon continuing Inuit use and occupation of the area than upon the construction of ice-breakers, the promotion of increased tanker traffic, and investment in military hardware. Stability in the North could be gained by negotiating self-government and comprehensive claims agreements with Inuit. This would allow for the co-operative management and regulation of northern lands and the offshore, and would be a functional exercise of Canada's jurisdiction that could prove persuasive in international law.13
In response to these arguments, the committee devoted a whole chapter of its final report, Independence and Internationalism, to a "northern dimension" to Canada's foreign policy P4 The recommendations of the committee contrast sharply with the military cast of the government's proposed measures. The committee emphasized the critical importance of the Arctic to the direction Canadian foreign policy should take. In a passage clearly aimed at the rather lack-lustre attitude taken toward Inuit interests by foreign affairs policy makers in the government, the committee declared that the government should give priority to Inuit interests, notably in the conclusion of an acceptable land claims agreement, the promotion of self-government in the Arctic, and support to Inuit renewable resource industries.
The committee favoured a northern policy aimed at improving relations with Canada's arctic neighbours and including joint scientific work and the development of environmental standards for the Arctic. Particular mention was made of enhancing the Canadian presence in Greenland and finding opportunities for economic co-operation between the two countries. The committee strongly supported the opening of a consulate in Greenland, a proposal submitted by the Inuit Circumpolar Conference (ICC). On defence matters, the committee wisely abstained from explicit support of costly expenditures such as the polar ice-breaker so favoured by the government. One significant recommendation echoed a call made by many witnesses, including Inuit, for a nuclear-free zone in the Arctic: Canada should seek demilitarization of the region through pressure on the United States and the Soviet Union, and in its general approach to arms control and disarmament.
The ICC has been advocating demilitarization of the North for many years. Three years ago in Frobisher Bay, at the ICC's last general assembly, Inuit from Alaska, Greenland, and Canada resolved that the Arctic and sub-Arctic be used for purposes that are peaceful and environmentally safe, and that there be no nuclear testing devices or dump-sites in the area. This year, the general assembly met again in Kotzebue, Alaska, and a major item on the agenda was the adoption of a comprehensive arctic policy dealing with a broad range of matters affecting the circumpolar region. The recommendations of the special joint committee respecting disarmament, together with its call for a "coherent" arctic policy, ought to provide ample stimulus for the Canadian government to pay particular attention to the decisions made by the ICC in Kotzebue.
Mr Clark ended his statement by declaring that the Arctic is "a heritage to the people of Canada" and that the federal government is determined to make a long-term commitment to its development, growth, and security. The Inuit have called upon the government to demonstrate that resolve; obviously, their arguments and proposals have already made a strong impression on the special committee. What remains to be seen is whether the government is prepared to take this advice.
Jeff Richstone is legal counsel for the Inuit Committee on National Issues.
Endnotes
1. SOR 8S 872~ PC 1985-2739; ( 1985) 1 19 Can. Gaz. 11' p. 3996.
2. United Kingdom v, Norway (Anglo-Norwegian Fisheries Case) [ 1951 ] ICJ R.
3. Convention on the Territorial Sea and Contiguous Zone ( 1958) UN-1 S 516:205, Art. 4, 5(2).
4. See Donat Pharand, The Law of the Sea of the Arctic (Ottawa 1973); Ken Beauchamp, "International Legal Issues in Arctic Waters", Ocean Policy and Management in the Arctic, (Ottawa: CARC, 1983), p. 60
5. Another would be by invoking "historic use" of the Arctic by Inuit in justifying its claim over the archipelago; on this issue see Peter Jull and Nigel Bankes, ''Inuit Interests in the Arctic Offshore", Ocean Policy, p. 101.
6. RSC 1970, c.2 (lst Supp.).
7. This article, adopted by the (JN Conference as a result of Canada's strenuous diplomatic efforts, empowers coastal states to establish and enforce regulations for the prevention of marine pollution in ice-covered areas within the 200-mile economic zone: U N Doc A C(] N F. 62 1 22, Oct. 7, 1 982.
8. House of Commons. Debates, 33rd Parliament lst Session, vol. 128, (25 June 1986), p. 17 App.
9. RSC 1970, c. N-22 (as amended). The amendment in question is found in clause 14 of the bill.
10. ''The Tungavik Federation of Nunavut has expressed its concerns over this exclusion and has stated that it may have harmful repercussions for the negotiation of a claims agreement concerning the offshore: sec Special Joint Committee of the Senate and of the House of Commons on Canada's International Relations' Minutes of Proceedings and Evidence, no. 60, (23 April 1986), p. 60:84 ff.
11. This is contained in clause 6 of the bill.
12. Clause 18 provides that nothing in the act shall abrogate or derogate from section 35 rights. The wording of the clause as presently drafted is not altogether felicitous.
13. See testimony of Mark Gordon, President of Makivik Corporation, before the Special Committee, Minutes of Proceedings and Evidence, issue no. 25, ( 11 December 1985), p. 25:13.
14. Independence and Internationalism: Report of' the Special Joint Committee on Canada's International Relations, (Queen's Printer' Ottawa, June 1986), chapter 10, pp. 127 135.