Inuit: Canada s Treaty Partners or Free Agents? An Argument for an Inuit-Canada Joint Approach to Addressing Sovereignty Disputes in the Arctic

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1 Inuit: Canada s Treaty Partners or Free Agents? An Argument for an Inuit-Canada Joint Approach to Addressing Sovereignty Disputes in the Arctic Prepared for Senator Charlie Watt HUTCHINS LEGAL INC. Peter Hutchins Robin Campbell Monique Caron October, 2012

2 EXECUTIVE SUMMARY This paper was commissioned by Senator Charlie Watt for the Senate Liberal Caucus on Inuit rights to the Arctic and how cooperation with Inuit is essential to Canada s sovereignty in the Arctic. The project stems from Peter Hutchins 2010 paper The Third Sea: Inuit, the Treaty Tradition, a Thawing Arctic and rebus sic stantibus (the Third Sea ), presented at the Canadian Council on International Law in October 2010, which argued that Treaties with Inuit are essential to Canada s sovereignty in the Arctic and posited that the thawing of the Arctic ice had created such a fundamental change in circumstances that it was possible that the Treaties no longer applied to certain areas of the Arctic. Further, there are areas of the Arctic beyond Canada s sovereign jurisdiction where Inuit have rights and are, in a sense, free agents. Canada can only claim sovereignty over these areas of the Arctic in collaboration with the Inuit. Inuit Rights Internationally By virtue of their historic occupancy of Arctic lands and ice, as well as use of Arctic waters, Inuit hold rights to the Arctic as indigenous peoples which are recognized in Canada and internationally. Inuit have the right to self-determination, the right to own, use, develop and control their Arctic land, waters and resources and the right to the conservation and protection of their resources. Importantly, Inuit have the right to participate in decision-making on matters that affect their rights and their environment. These rights are grounded in the most foundational of the international human rights instruments and are enshrined in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (the Declaration ), which Canada supports and which has been endorsed by the international community. The recognition of Inuit rights as indigenous people strengthens the argument that Inuit can claim sovereign rights to the ice and waters of the Arctic by virtue of their historic title. Professors VanderZwaag and Pharand have suggested that Inuit could have sovereign rights through historic title to the ice and all of the natural resources within areas of historic use and occupancy. 1 Inuit could also claim maritime rights to the Arctic. Maritime rights would provide Inuit with functional jurisdiction over the natural resources and sea ice. 2 1 David VanderZwaag & Donat Pharand, Inuit and the Ice: Implications for Canadian Arctic Waters 21 Can. Y.B. Int l L., Ibid.

3 Aspects of Inuit sovereign or jurisdictional rights over certain areas of the Arctic may have passed to Canada through the recent Treaties concluded by Inuit and Canada across the North, while other aspects of their rights have been retained. Further, beyond the limits of Canadian sovereignty, Inuit could hold full historic title to areas of the Arctic ice and waters. The thawing Arctic may be having the effect of enlarging areas unaffected by previous Treaties. Inuit Rights in Canada In Canada, Inuit rights to the Arctic are protected by the Constitution and by Treaties. The Treaties that Inuit have signed with Canada affirm many of their rights and also create an on-going partnership between Inuit and the federal Crown. Just like the Treaties that Canada negotiated with Aboriginal peoples from the east to west coasts, Canada sought Treaties with Inuit to gain certainty over its rights and sovereignty to the Arctic. This country has been assembled and secured by Aboriginal/Crown Treaty making. The Treaties are essential to Canada s sovereignty in the Arctic, as Canada s claims depend on Inuit historic use and occupancy. Inuit and the Scramble for the Arctic Inuit have and will have a crucial role to play in the determination of sovereignty in the Arctic. The Arctic States must take account of Inuit rights to the Arctic in the current discussions of Arctic sovereignty. Early claims by Canada in the 20 th century were asserted through Inuit. Determining the extent of each of the five Arctic coastal State s continental shelf is the main focus of the scramble for the Arctic. Under the United Nations Convention on the Law of the Sea (UNCLOS), each coastal State has the right to explore and exploit the non-living resources of the seabed and subsoil within the legal limits of the continental shelf. The five coastal Arctic States - Canada, Russia, Denmark, Norway and the United States will be using the rules provided in the UNCLOS to delimit the boundaries of their continental shelves. The CLSC has the role of verifying if the claim submitted by a coastal State is in conformity with the technical requirement of UNCLOS. Canada will be submitting its continental shelf claim to the UN Commission on the Limits of the Continental Shelf (CLCS) in Inuit may also make claims over the area claimed by the five coastal Arctic States. The increasing international recognition of indigenous rights strengthens Inuit s ability to make

4 claims for sovereign rights over portions of the Arctic continental shelves by virtue of Inuit historic title or functional jurisdiction. The international affirmation of indigenous peoples rights, requires the international community, the CLSC and the five coastal Arctic States to recognize that State claims to sovereignty over the waters of the Arctic and to the continental shelf are subject to and limited by Inuit rights. In addition, Inuit could claim rights to the portion of the Arctic waters that are beyond State sovereignty, known as the Area. Under UNCLOS, the waters, ice and resources that are part of the Area may not be claimed by any one State and are determined to be vested in mankind as a whole, as part of the Common Heritage of Mankind. There are at least two sections of the Arctic waters that will be found to be part of the Area and it is possible that the Area will be even larger, encompassing a sizable portion of the Arctic Ocean. Inuit use of the ice and waters within the Area grounds Inuit rights possibly even sovereign rights to this portion of the Arctic waters. In fact, Inuit have the best claim to occupancy of the Area, potentially giving Inuit priority rights over its resources and the jurisdiction to insist on environmental protection standards. It would certainly give Inuit a right to sit at the table and participate in the decisions as to how the Area may be used, including decisions determining when and if there may be resource extraction in these portions of the Arctic Ocean. Joint Inuit-Canada Approach to Canadian Arctic Sovereignty Canada s claims to sovereignty over the lands, waters, and ice of the Arctic will be greatly enhanced by working in partnership with Inuit, in particular by implementing the Treaties in order to confirm Canada s claim through Inuit historic title. By working jointly with Inuit, Canada will be able to strengthen its claims to areas of the Arctic where Canada s sovereignty is contested. There are three important areas where collaboration with Inuit will be extremely beneficial to Canada: (1) Canada claims that it has full sovereignty over the Northwest Passage, including the right to control access to this route, arguing that these are its historic waters. The United States and the European Union claim that the Northwest Passage is an international strait, giving foreign vessels the right of free passage. Canada s legal claim to the Northwest Passage as its internal waters is largely dependent on the historic use by Inuit of these routes. It would be in Canada s best interest to cooperate with Inuit, including by implementing the Treaties, in order to more fully ground Canada s claim to the Northwest Passage.

5 (2) Canada and Inuit can cooperate at the international and domestic level to protect against marine pollution in ice-covered waters. Canada made substantial efforts to ensure that UNCLOS allows coastal States to enact laws and regulations over areas of the sea that is ice-covered for the purpose of preventing marine pollution. Through the terms of the Treaties between Canada and Inuit as well as on the basis of Inuit s right to the protection of the Arctic environment, Canada and Inuit have a framework to jointly implement and monitor compliance with environmental legislation that aims to ensure that increased traffic in the Arctic does not result in harm to the delicate Arctic ecosystem. (3) Canada and the United States have discovered that they claim the same 6250 nm 2 section of the Beaufort Sea. The area of overlap is within the Inuvialuit Settlement Region, covered by the 1984 Inuvialuit Settlement Agreement between Canada and Inuit who have historically used the ice of the Beaufort Sea and have rights to these areas. If Canada works with Inuit, Canada can assert its claim to the Beaufort Sea on the basis that Inuit historic title pass to it under the Agreement. If Canada chooses not to implement the Agreement, this leaves it open to Inuit to assert the position that they are free agents within this area. Moving forward to address Arctic sovereignty with Inuit at the international level will entail undertaking practical steps based on mutual respect and the recognition of Inuit rights and priorities in the Arctic.