The fabled Northwest Passage, connecting the world’s two largest oceans along the northern coast of North America through the Canadian Arctic Archipelago, is fast becoming a present-day reality. Non-Inuit have dreamed of using the Passage as a commercial shipping lane since long before Franklin’s lost expedition. But the presence of year-round ice left the Passage largely un-navigable and kept those dreams at bay. Until now.
Today, a warming climate has ushered in with it a 21st-century gold rush for those seeking to profit from the bounty of opportunity provided by the thawing ice. Vast untapped resources previously inaccessible are suddenly becoming economical to exploit. One need looks no further than Russia, as it exploits the Northern Sea Route through its Arctic waters, generating 20% of its GDP as an example of the stakes involved. But there are clouds of uncertainty that persist over the Passage and Canada’s path forward in Arctic policy that remain unresolved.
The Dispute Over the Northwest Passage
Ownership over the Passage has been a recurring subject for legal and political debate for nearly 50 years. Canada maintains that the Passage is part of its internal waters, as they wind through the islands and fjords of Nunavut. Other countries, including the USA, insist it’s an international strait. The distinction matters because it determines who has control over the Passage’s development, planning and management.
As traffic inevitably increases in lockstep with sea ice retreat, the disputed legal status of the Passage risks leaving the northern Arctic vulnerable to catastrophe. The prospect of convenience-flagged vessels operated by poorly regulated crews under weakly enforced international regulations is far from appealing, particularly when environmental impacts could disproportionately affect Inuit who still rely on this marine ecology for food, travel and cultural purposes.
So how do we avoid this tragedy of the commons? The role of Inuit is the critical component to ending the legal limbo.
Although Nunavut may be Canada’s newest territory, founded in 1999, it is not at all new to the Inuit who have lived in the Arctic for millennia—and long before there ever were provinces or territories in Canada. Canada’s assertion of “historic title” over Arctic waters, including the Passage, is based and founded upon Inuit use and occupancy of the sea and sea ice.
The Inuit homeland—Inuit Nunangat—extends across the Arctic region and encompasses land, water, and ice. As these waterways form ice during much of the year, they become critical to Inuit survival. The solid ice facilitates Inuit movement from community to community, and the openings in the ice are a primary source of food. Because of the Inuit way of life and worldview, the waters of the Passage and the whole of the Arctic Archipelago are seasonal extensions of their traditional lands. The ice itself is part of Inuit traditional territory.
Yet, even within Canada, there is confusion over who oversees Nunavut’s waterways. When it comes to the sea, Canada continues to claim it has sole jurisdiction. However, what that claim ignores is that collectively across Inuit Nunangat, there are four comprehensive land claims in Nunavik, Nunatsiavut, the Inuvialuit Settlement Region, and Nunavut. Each of these agreements contains similar language affirming that Inuit interests do not end at, nor are they limited by the lands that they have direct ownership or control over.
For instance, the Nunavut Land Claim Agreement defines an exchange between the Inuit of Nunavut and Canada. Canada promised Inuit a wide range of rights and benefits, including land ownership, participation in the management of land, wildlife and resources. That included vast space for the co-management of not only lands but both onshore and offshore waters. Support for this is borne out further by UNDRIP and recent judicial decisions from as high as the echelons of the Supreme Court of Canada, such as in the Clyde River v. National Energy Board case. Inuit hold constitutionally protected rights that require Canadian governance structures to evolve and adapt to co-decision making over Arctic waters.
Recognition of these Inuit rights and the co-decision making over Arctic lands and waters is key to reconciliation. Reconciliation is about more than recognizing the temporal priority of Indigenous Peoples in this country but also showing respect for the contemporary implications of that fact. Such respect requires an equal say for Indigenous peoples in the development and governance of their lands; for Inuit, which includes their waters.
The Inuit-to-Crown relationship committed to in the four land claim agreements with Inuit based on the need to prioritize a focus on Arctic and Inuit issues and is at the heart of a new Crown-Inuit relationship when Arctic sovereignty issues arise.
Shaping Our Way Forward, Together
The Legal Argument
Canada’s status as an Arctic nation is made stronger by Inuit use and occupancy of Arctic lands and waters for thousands of years. The success of both Canada’s legal argument to rights over the Passage and Arctic shipping policy more generally will ultimately depend on the extent to which Canada allows meaningful participation and partnership with Inuit.
To Canada’s benefit, the use and occupancy of seas and sea ice by Inuit is a factor underlying and supporting its assertion of historic title and full jurisdiction and sovereignty over the Passage.
Historically, Canada used Inuit presence to protect its claims to the Arctic. This included the processes that Canada used to relocate Inuit to parts of the high Arctic during the Cold War to ensure a “Canadian” presence in the Arctic. While Canada has apologized to the Inuit and provided compensation for the social harms created by these forced relocations, Canada has nevertheless reaped the benefit of these “Canadian” high arctic settlements as an assertion of Canadian sovereignty. For half a century, Canada has also relied on Inuit “Rangers” to patrol the Arctic, conduct search and rescue missions, and solidify Canada’s claims to Canadian presence and sovereignty in the region.
More recently, land claim agreements have relied on Inuit occupation of the Arctic as a basis for Canada’s assertion of sovereignty in the Arctic. Article 15.1.1 of the Nunavut Agreement says, for instance, that: “Canada’s sovereignty over the waters of the Arctic Archipelago is supported by Inuit use and occupancy.” Further, the preamble of the agreement speaks to contributions of Inuit to Canada’s sovereignty in the Arctic. The Nunavut Agreement and the nation-to-nation relationship that it recognizes serves as a vehicle that strengthens Canada’s assertion of Arctic sovereignty based on historic title.
The extensive co-management regimes set up under the land claim agreements with Inuit strengthen the argument that the waters of the Arctic Archipelago are under a system of joint Inuit-Canadian sovereignty and control. Decisions over land and water use, environmental planning and assessment and wildlife management are made by the co-management board that reflect the perspectives, values and needs of the Inuit, and the federal and territorial governments. To properly exercise the joint control reflected in these co-management systems, Inuit knowledge—or Inuit Qaujimajatuqangit—is critical for developing monitoring and responses to environmental impacts. Inuit know the Arctic lands, waters and environment better than anyone else. Inuit knowledge should be applied to inform the speed of development, the safest and preferred routes for shipping and overall levels of transit. Inuit Guardians must be in place to enforce the rules and monitor and manage impacts.
Establishing a co-management regime empowering Inuit and allowing them to manage their lands and waters as they have for thousands of years, weakens any argument that these Arctic areas are unoccupied or without title. Canada can leverage its reconciliation agenda into the most compelling claim possible for achieving its geopolitical goals. Such an approach can achieve Canada’s sovereignty aims in the Arctic while ensuring the positive dividend of having those who know the most about the area remain key stewards and decision-makers.
The Passage is and remains part of Inuit Nunangat and has been since time immemorial, no matter how convenient it might be for the USA and other international actors to claim this area is terra nullius.
The Practical Argument
Opening the Passage could be a blessing, a curse, or both, not only for Inuit but all of us. None of us alone can stop climate change, but we can prepare ourselves and our systems for the types of decisions that will likely be faced by a slowly warming planet.
Inuit are the ultimate stewards over Arctic shipping. The lands and waters of the Arctic are their home, not just the next location for a resource bonanza. While Inuit see the potential for much needed economic development and the possibility for jobs in shipping, resource extraction and tourism, they worry about the impacts. What will an increase in shipping and ice-breaking mean for their way of life? How will it impact wildlife migration? What will happen if a ship breaks the ice between a hunter and his way home? What will be the cultural impact? How can they benefit from the shipping activities that are increasingly occurring in their backyards? And how can these opportunities be balanced against concerns for a fragile ecosystem?
These are questions best answered not by those seeking to pass through the Arctic and its waters, but by those who are there now and always have been. While Inuit have more at stake than any other party involved, they also have the most to offer.
The opportunity to maintain their role as stewards of the Arctic while benefitting from increased economic development will ensure that Inuit are leaders in making the decisions about how to mitigate the damage of climate change and control the effects of Arctic shipping. At this point, climate change is a reality and disruptions to Inuit traditional way of life are already occurring. The degree of damage to Inuit culture and the well-being of Inuit communities will largely be determined by how well Canada, in partnership with Inuit, designs its decision-making processes in the Arctic to meet the challenges that lie ahead.
Under the conditions of a warming planet, the Arctic will experience change both greater in extent and scale than elsewhere. We must prioritize the well-being and involvement of those who live there first. That means ensuring Inuit leadership in the decision-making process, including robust co-management and co-decision-making processes that honour the intention of the land claim agreement processes.
Inuit are the Answer
For generations, the uncertain legal status of the Passage – both in international maritime law and within Canada has had limited practical impact. The Passage is too choked with ice, even in the latest part of summer, to be navigable. What was once an academic discussion is now, however, fast becoming one with real on-the-ice implications. And with each season, the ice continues to recede, traffic of ships will only increase. We must find a path forward.
An Inuit-centric approach is that path.
It’s not only what is arguably required by both existing Canadian and international law; conveniently, it’s also the right thing to do.
The warming Arctic Ocean is going to significantly increase the use of the Passage over the next several decades. This much we know. For Inuit, this represents both an opportunity for economic development and an existential threat to their very way of life. Inherent with the complications that this relationship creates is that Inuit be the ones to answer them. Are we prepared to listen?
Disclaimer: This article provides general information only and is not meant for use as legal advice for specific legal issues or problems. We provide this for educational purposes only. If you need legal advice, please contact us directly at firstname.lastname@example.org or 867.447.0914.
For further reading, please see:
Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.,  1 SCR 1069
Government of Canada, “Canada New Measures to Protect the Marine Environment and Coastal Communities in Canada’s Arctic” (2017) Available online: https://www.canada.ca/en/transport-canada/news/2017/08/government_of_canadaintroducesnewmeasurestoprotectthemarineenvir.html
Inuit Tapirit Kanatami, “Nilliajut 2: Inuit Perspectives on the Northwest Passage” (2018) Available online: https://www.itk.ca/nilliajut2/
Limn, “Shipping Corridors Through the Inuit Homeland” (2018) Available online: https://limn.it/articles/shipping-corridors-through-the-inuit-homeland/
Nunavut Land Claim Agreement, May 25, 1993.
Network Centres of Excellence, “Inuit Guide Research to Low-Impact Shipping Corridors” (2017) Available online: http://www.nce-rce.gc.ca/Research-Recherche/Stories-Articles/2017/lowImpact-faibleImpact_eng.asp
Public Works and Government Services Canada, Request for Proposals: “Study of Governance Models and Application to Northern Low-Impact Shipping Corridor (2018) Available online: https://buyandsell.gc.ca/procurement-data/tender-notice/PW-18-00845856/list-of-interested-suppliers
Originally Published in Lawyers Daily, Monday August 10, 2020
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