National Defence Committee on April 29th, 2009

[The Chair, Conservative, Maxime Bernier]

Good afternoon. I call the 15^th meeting of the Standing Committee on National Defence to order.

We have with us two witnesses who will talk about Canadian Arctic sovereignty, pursuant to Standing Order 108(2) and the motion adopted by the committee on Monday, February 23, 2009. We are continuing, in your company, our study of Arctic sovereignty.

I would like to thank Suzanne Lalonde, professor in the Faculty of Law at the University of Montreal, and, as an individual, Colonel Pierre Leblanc (retired) of the Canadian Forces Northern Area for being here today.

Mr. Leblanc, you have seven minutes.

[Colonel, Retired) Pierre Leblanc (Canadian Forces Northern Area, As an Individual]

Mr. Chairman, ladies and gentlemen, thank you for the opportunity to address your committee on the matter of Canadian Forces resources in terms of Arctic sovereignty.

This quote from Wikipedia is probably a good representation of the perception that many people at large have of Canada's ability and willingness to defend its Arctic sovereignty.

I would like to put into some perspective the size of the challenge and the inadequacy of the Canadian Forces assets, because most Canadians do not appreciate just how large the Arctic is. The total of Canadian Forces regular personnel in this area today is probably smaller than 250, to look after an area larger than continental Europe.

This is a representation of the Canadian internal waters in the Arctic Archipelago. Those are the waters and land that must be protected adequately. Other countries do not see it this way. They define our territorial waters using the 12 nautical miles. When doing so, many areas of the Arctic are considered to be international waters. Furthermore, many countries claim that the Northwest Passage and the airspace above it constitute an international strait.

The yellow line is the classic Northwest Passage, whereas the red lines indicate other options to transit the Arctic. The air space above and the waters below each of those routes could be argued to be part of the international strait. Do we want Russian bombers to use those routes, or nuclear submarines to transit across the Arctic, or North Korea to ship ballistic missiles through the Northwest Passage? How do we even know that this might be taking place today?

During my command appointment I came to the realization that nobody was really looking after the security of the Arctic. The standard answer I was getting was that we are not funded for it. By default, National Defence is the department that is best equipped to protect the sovereignty and security of the Arctic. But even the Canadian Forces lack the equipment, personnel, and training to protect the Arctic adequately. More specifically, they lack surveillance capability and the ability to respond in a graduated manner to a security situation in the Arctic for a major search and rescue event.

The state-to-state threat has receded, and it can be considered low, despite recent Russian activity and Chinese interest. However, we must be ready for future challenges. Major military assets take more than 10 years to acquire. What prevails now is more of a concept of human security. At this moment I believe the greatest threat to human security in the Arctic is to the environment. The Arctic is a very fragile ecosystem, which must be protected with the full weight of Canadian laws. Too many international protocols have failed to protect the environment. Providing security is the first duty of a nation state.

Our forces must have the capability to operate 24/7, 365 days, anywhere in Canada. You will note that the navy does not have that capability. The air force still has a significant capability through the north warning system, but unless I am mistaken, there is only one forward operating location for CF-18s, in Inuvik, that has been left operational.

The army has no permanent unit in the north, and the amount of training taking place there is insufficient. The Ranger program is a great program, but their capability in the Arctic is extremely limited and their expertise is slowly being lost. We still have Canadian Forces stationed at Alert, which plays an important role, and a joint task force headquarters in Yellowknife.

Note on this slide that north of the north warning system there is no air space monitoring in an area where there are increasing polar flights. Given the new polar routes, we have in excess of 125,000 international flights over the Arctic every year.

Search and rescue is one of the missions of the Canadian Forces, and yet they do not have any primary search and rescue assets north of 60, despite the fact that we have increased maritime activity and that the traditional air corridors have shifted from east-west to north-south.

The probability of an accident in the Arctic is not a theoretical exercise. In 1996, the cruise ship Hanseatic ran aground near Gjoa Haven. Fortunately, there were no casualties or oil spilled. Had the accident been of a catastrophic nature, we would have been hard pressed to deal with it. You all know that last year a Canadian cruise ship sank in the Antarctic.

You'll also recall that the Exxon Valdez oil spill cost in excess of $2 billion U.S. to partially clean up. Although we have the Arctic Waters Pollution Prevention Act, it is akin to posting speed limits on the 401 at a time when everybody knows that the police have no radar and no patrol cars. We must protect the Arctic Archipelago, and the best way to do this is within our internal waters. We must also make NORDREG compulsory to have a better idea of what goes on in the Arctic.

Global warming is the cause of the changes taking place today. The worst-case scenarios have been exceeded. The real question now is what we do about it. It is opening up the Arctic that was protected by year-round ice. Cruise ships now transit the Northwest Passage, and natural resources harvesting is increasing. A new maritime route between Asia and Europe through the Northwest Passage is a distinct possibility. Somebody has to guard the gates to the Arctic. We need to act now, given our slow and politicized procurement process.

There is some urgency in addressing the issue because global warming is opening up the north faster than predicted, and given our long procurement processes, we are already late in delivering the necessary assets. Recently, the Russians have become very proactive in the Arctic. Former President Bush issued a new Arctic security policy this year. The European Community wants to have a say in Arctic resource harvesting, and even NATO is now becoming interested in Arctic issues.

The key capabilities to protect the Arctic are surveillance and the ability to respond in a graduated manner. We must be able to monitor activity below, on, and above the surface and have redundant systems. We must make NORDREG compulsory to be able to cross-reference surveillance data. We must develop the capability to respond in a graduated manner to a security issue in the Arctic. Although the other departments must contribute, I believe the Canadian Forces to be best suited to protect the Arctic. The presence of armed forces also delivers a very clear message.

This is what I would like to recommend.

First and foremost, increase our surveillance capabilities so that we know what goes on in the Arctic; increase our response capability; increase training for all elements; increase the capacity of the Joint Task Force (North) headquarters; maintain the Arctic Security Interdepartmental Working Group; and make NORDREG compulsory.

Let me conclude by saying that one of our Arctic sovereignty arguments is fast disappearing, and it is making our position weaker. Human activity and international interests are rising and will continue to do so. We need to take action now to protect our national interests. The best department to do so is DND, and Canadian Forces require additional assets to do this.

Thank you very much for your attention.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Leblanc.

I give the floor to Ms. Lalonde.

[Professor Suzanne Lalonde, Professor, Faculty of Law, University of Montreal]

Merci, monsieur le président.

Thank you for this opportunity to discuss Arctic sovereignty with you and the members of the committee.

I'd like to emphasize that I will be speaking from the perspective of a legal academic who is concerned with Canada's legal case in the Arctic. This is the perspective from which I come to this question of how the Canadian armed forces can help Canada's legal case.

Climate change has certainly created significant challenges for Canada in the Arctic, but a number of them, I think, will be dealt with within the existing legal framework. The Ilulissat declaration in May of 2008 testified to the fact that the five coastal parties agree that this is the framework that should apply.

From my perspective, the principal challenge facing Canadian sovereignty in the Arctic concerns the Northwest Passage, and it's to this that I would like to speak in the few minutes that have been allocated to me. Before tackling the question of the Canadian armed forces and helping Canada's position over the Northwest Passage, I need to briefly touch on a few essential aspects of this legal position, this case.

For over 40 years, of course, Canada has asserted, with varying degrees of clarity and coherence, which is slightly problematic, its right to exert exclusive and absolute authority over those waters, including the various routes of the Northwest Passage. This position is not generally accepted. I believe, through various meetings around the world, that opposition is mounting as more and more states come to realize the potential advantages that could flow from a navigable Northwest Passage.

Of course, at least since 1985 we have formalized our position, and we've been strong. The Canadian position has been strongly advocated since 1985 with the drawing of our baselines in the Arctic. I would highlight the fact that when then Foreign Affairs Minister Joe Clark made the announcement in the House of Commons, he was careful to emphasize that the baselines were being used to delineate what had always been considered Canadian historic internal waters.

Under international law, and particularly the Law of the Sea, of course, a coastal state can claim title over waters on the basis of history if it can satisfy a two-part test. The first part, which is critical, is that the coastal state has exercised exclusive authority and control over those waters over a long period of time. The second part of the test is that there has been general acquiescence to that exercise of authority, especially by those states particularly affected.

I should say that this claim Canada makes to historic waters status for the Arctic waters is a very strong claim under international law--the strongest. The Law of the Sea assimilates internal waters to land territory, so in fact Canada, as the coastal state, exercises as much authority, competence, and prerogatives over its internal waters, including in the Arctic, as it does over downtown Ottawa. It's a very strong claim.

Of course, some foreign governments have repeatedly refused to acquiesce in this claim, most notably the American government, but protests also have been lodged by the European Union. It is certainly Washington's position that an international highway cuts through this archipelago, an international strait, bringing with it a legal regime of exception.

The legal regime that applies in an international strait is that of guaranteed freedoms: guaranteed freedom of navigation for the ships of every nation, both privately owned and state owned; a right of transit for submarines submerged, without any obligation to seek permission or indeed authorization; and, as Colonel Leblanc mentioned, a right of overflight for the aircraft of every nation, both privately owned and state owned, in the air corridor above the international strait.

In international law, there is no clear-cut definition of what constitutes an international strait. It's been a very divisive issue, going back to the negotiation of the 1958 conventions. The principal source of law in this question is the 1949 decision of the International Court of Justice in the Corfu Channel case. In this case, the court had to decide whether the North Corfu Channel was an international strait.

The court defined a two-part test. This test, therefore, is made up of two distinct criteria: a geographic criterion and a functional criterion. In terms of the geographic criterion, nobody argues over that in the Northwest Passage. The Northwest Passage connects two parts of the high seas. Nobody argues that. But there is substantial debate over the functional criterion and how it should be interpreted.

The court used this language in defining the North Corfu Channel: a strait that was “used for international navigation”. It's the Canadian official position that the Northwest Passage has never been used, as of right, by international ships for navigational purposes.

Of course, there is a certain current coming out of the United States, notably the Naval War College in the United States, and more recently formulated by James Kraska, that actual use is not necessary. As long as a stretch of water can be used, potentially, for international navigation, this is sufficient to transform the body of water into an international strait.

I mention these specific points because I think Canadian armed forces have a very real role to play in helping to shore up Canada's legal arguments on these two critical points.

Before I turn to this, I'd like to apologize to the committee: I have no military Canadian armed forces expertise. This is the lawyer thinking about her best possible shopping list.

I would say that today, in 2009, Canada's legal position is vulnerable. But this vulnerability is not principally legal; it's more factual. After all, Canada's entire case rests on effective control. The point I'd like to make, my principle, is that if Canada insists that the Northwest Passage waters are internal, then that means they're part of Canada's national territory. Therefore, Canada as sovereign is obligated to guarantee an effective presence and effective control, as it would on any other part of Canadian soil. This is a huge task.

In terms of presence, I think largely in the last half-decade it's been mostly a visible presence through coast guard vessels escorting ships through the passage and providing for the needs of the various Arctic communities. In my very humble opinion, I think the coast guard is probably the best agency to ensure this kind of effective presence.

But Canada doesn't only have to be visible in the Northwest Passage; it also has to exert control over the waters of the Northwest Passage. It's here, I think, that the Canadian armed forces must intervene. I've been called alarmist, but I think the danger is very real. I think any--any--unauthorized transit by a foreign vessel, whether surface or underwater, will severely undermine Canada's legal case.

First, such a public violation of Canada's sovereignty would call into question Canada's ability to effectively govern those waters, which is an important and essential component of our historic waters claim.

Second, it would create a dangerous and weighty precedent in this debate we have, this quarrel, about what constitutes an international strait. It would be a dangerous precedent of actual use of the Northwest Passage for international navigation.

From my perspective, I hope the Canadian armed forces will be equipped with the best available technology and equipment in terms of surveillance and detection. Early detection is essential if the Canadian government is to respond effectively to such a situation.

It's also my hope, in ignorance, that an emergency plan, a formal emergency plan, exists among the different actors within the Canadian government--so between DND and other actors, about how such a dramatic scenario would be managed.

To be clear, my perspective is that to protect its legal position, the Canadian government would have to react vis-à-vis any ship or submarine that had entered the archipelago unannounced and uninvited. The amount of time available for diplomatic negotiations between Canada and the flag state of such an offending vessel would be extremely short. In the absence of a political solution to the crisis, Canada would have no other choice, I believe, but to intercept.

I think Canadian armed forces must have a capability to interdict a foreign ship navigating through the Northwest Passage without Canadian permission.

[The Chair, Conservative, Maxime Bernier]

Ms. Lalonde, can you--

[Prof. Suzanne Lalonde]

I'll just conclude, Mr. Chair.

Given the distances involved and the harsh conditions, I think it would be entirely appropriate, as has been suggested, to have a specialized unit stationed in the Arctic--at least with one helicopter, at least during the summer shipping season. A naval icebreaker that could be called in to lend support would be a tremendous asset.

I think these are the minimum if Canada is not to be perceived to have abandoned its legal claim over the Northwest Passage.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Professor Lalonde.

I will now give the floor to Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Merci.

I have lots of questions, so hopefully the answers won't be too long.

I'd certainly like to thank Mr. Leblanc. We've worked together before.

You're right that the distribution of Canadian troops is horrendous. Ten years ago I brought this up here. In the two areas we had sovereignty claims against us, Nunavut and Yukon, out of our forces of 60,000, or whatever it was, we had zero in Nunavut and four soldiers in the Yukon. That's absurd. You pointed out that the poor distribution continues, and that there's a lack of any search and rescue north of 60, which I've been saying for five years.

My first question is on the reserves. It was recently announced that four reserves would staff the north. For a long time we've been asking for a reserve in the north, but these four are going to be in the south.

Do you not think there should be an attempt to at least employ northerners in one of the reserves, to have one of the reserve units stationed in the north, if the four of them are supposed to be covering the north?

[Col (Retired) Pierre Leblanc]

I would agree with you, sir, on that, and I would suggest that two locations, Yellowknife and Whitehorse, would probably have the population base to support small units. The advantage of using populations from those two centres is that they are very familiar with the weather conditions. The Arctic is still a very formidable place in which to operate. We've had Ranger patrols operating at minus 100 degrees Celsius with the wind chill factor. If you don't know what you're doing in this kind of weather, any small accident becomes life-threatening. You can imagine an open wound at minus 40 degrees. You have minutes to react to that.

One of the points I made to the Chief of the Defence Staff, back I believe in 2000, was that the regular force army units that were coming up to the north were suffering higher and higher incidences of cold injuries. That's because of a lack of training. The frequency used to be much higher and then it was reduced through various budget cuts. Our army has to be able to operate, as I mentioned in my presentation, any time and anywhere in Canada. We don't train sufficiently in the north to do that.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you very much.

Related to what Professor Lalonde said about us having to interdict ships and be able to control our own Arctic, do you have any comments on the fact that the government cancelled the ice-strengthened supply ships?

Second, they are making patrol boats that will have great use for three months in the summer, as they said, but they can only go through one metre of ice and there could be six metres.

[Col (Retired) Pierre Leblanc]

I was happy when I heard we were going to build ships that have the capability to operate in ice-infested waters. Our naval vessels today cannot operate in the Arctic in any kind of ice-infested water, and because they don't have a double hull, they would break Canadian law if they were to be deployed in the high Arctic.

If those ships are capable of operating until there is one metre of ice, it would cover most of the maritime activity taking place during the period of time the various passages are open. Once the ice is thicker than one metre, the amount of maritime traffic you would see is reduced significantly. At that point, they can reduce the amount of patrolling that takes place. It would be seasonal in many ways, but it's a capability we don't have right now. I think any increase in that capability is very significant.

[Larry Bagnell, Liberal, Yukon, YT]

When the Prime Minister first came in he promised three armed icebreakers for the north, and then suddenly that promise was cancelled. There will be one for the coast guard. Why would the navy recommend three armed icebreakers and then change its mind?

[Col (Retired) Pierre Leblanc]

I don't know, sir, if the navy made that recommendation and how the change came about.

As I mentioned in my presentation, it's important that somebody guard the gates in the north. Unfortunately, the coast guard is a bit of a misnomer because they don't guard the coast. It's not part of their mission; they're not funded for it and they're not trained for it. They're not armed ships. By default you would have to use the armed forces to do that. The coast guard might be better suited to look after security of the Arctic, interdicting ships and boarding ships. If we have one of these rust buckets we used to have on the west coast coming in from China and it wants to transit through the Northwest Passage, you need the capability to physically stop that ship from going through.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Ms. Lalonde I'd like to ask a legal question, but not related to your presentation. In Bill C-3, to extend our sovereignty to 200 miles for the Arctic Waters Pollution Prevention Act, the government's biggest argument that we have authority to do so was the clause in UNCLOS that we put in related to ice-filled waters. How strong will our claim be in the near future when these waters are no longer ice-filled?

[Prof. Suzanne Lalonde]

I was ridiculed for bringing that up, but someone from Foreign Affairs was saying there will always be ice in the Arctic because it's a cold and nasty place. I suggest that it's been raised in important circles south of the border, and I think it's very much un enjeu, a strong possibility that application of article 234 is called into question once the ice disappears.

Also, I was able to find documents from the American State Department that show that their officials are not convinced that article 234 allows Canada to do everything it does under the Arctic Waters Pollution Prevention Act. If you reread the language of article 234, it's quite specific to marine pollution from vessels. It's quite strict and limited. I think it's not going to be a cakewalk. I'm not comfortable that we're entirely protected because of article 234.

[The Chair, Conservative, Maxime Bernier]

Merci beaucoup. Thank you very much.

I am now going to give the floor to Monsieur Bachand.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you, Mr. Chair.

First, I would like to welcome our two witnesses.

Mr. Leblanc, I have always been a supporter of new technology, especially when it involves covering and observing such a vast area. You told us about a number of approaches. We visited MDA and invited employees from that company and the COM DEV company to appear before this committee. You have not talked about the issue of satellite observation, which I consider to be rather important.

In Canada, we have RADARSAT-2 and an entire technology that makes this type of observation possible. I also think it is possible to have Canada's north patrolled by UAVs. I would like to know your opinion on satellite observation and the use of UAVs in Canada's north.

[Col (Retired) Pierre Leblanc]

Unfortunately, I have a lot of topics to cover during my seven minutes, but I want to say that, in my opinion, satellite observation is the best way to monitor Canada's north. I made that recommendation in the document that I wrote in 2001, a copy of which was given to you.

In fact, I recommended that photos of the entry points into Canada's Arctic be taken every day using RADARSAT-2. That means taking a photo of an area that a ship cannot cross in the space of one day. Every day, photos are taken of the entry points. Take the example of where Alaska and Yukon come together, and ships from the west. One box more or less covers the Alaskan side so that ships can be seen before they arrive from Canada. If we can compare that information with that of NordREG, we can have a good idea of who is approaching us.

I am told that RADARSAT-2 has been operational since November of last year. I do not know to what extent the information has been integrated for the purpose of producing intelligence. In the past, I had recommended that that information be received by our headquarters in Yellowknife. So, there would be NordREG, the coast guard, satellite photographs and other systems. A surface radar system that was supposed to be used to view ships was cancelled at the last minute.

All that to say that I completely agree. That is one of the recommendations I made. In fact, I made a presentation to the Standing Committee on Foreign Affairs and International Development to block the sale of RADARSAT-2.

[Claude Bachand, Bloc, Saint-Jean, QC]

I will come back to UAVs later because I have a question for Ms. Lalonde.

You talked mostly about the legal aspect, but there are many ways to approach a nation's sovereignty. First, I am surprised that, from a historical perspective, you did not mention that Inuit have occupied that land since time immemorial. That is an important argument and would be difficult to refute. I would like to hear your opinion on that in more detail.

As I was saying, there are many ways to approach sovereignty. From the scientific standpoint, for example, we are in the process of underwater mapping and observing what happens under the sea. Mainly, it has to do with the normal extension of the continental shelf. Could you tell us whether you think this is an important point of view.

There is also the military perspective, but I do not think that that is even a real issue. You mentioned interdiction, but I do not think that the Canadian Navy could do much against the American or Russian navy. I sort of want to set aside the military argument. I do not think that the Canadian Forces or the Canadian Navy measure up.

I do not know if you are aware, but the United Nations Commission on the Limits of the Continental Shelf has just given 235,000 km² to Norway. I would like to hear your thoughts on that. It seems that Canada, for its part, has not yet made a submission. In terms of the Arctic debate, do you think that this is the organization that will have the final say?

[Suzanne Lalonde]

Thank you.

Indeed that was what I was getting to at the very beginning, but my seven minutes were up. There are a number of legal challenges, such as the control of Canada's sovereign rights over the Arctic Ocean basin, the extended continental shelf, the maritime boundary, the continental shelf boundary in the Beaufort Sea and the dispute over Hans Island. I mentioned very briefly in my opening remarks that these other legal disputes—if you prefer, we can use the term “legal matters” to avoid any hostile connotations—were governed by specific rules.

In the case of the extended continental shelf, you are quite right. As a party to the 1982 Law of the Sea Convention, Canada must make a submission to the United Nations Commission on the Limits of the Continental Shelf regarding the boundaries of the extended continental shelf, as Norway and Russia have done. The United States are working on it, even though they are not yet party to the treaty.

In my view, that is what the Ilulissat Declaration was about. The rules of the game are there, and everyone is playing by those rules. The process will be followed. I think, however, that it may take a long time. We need to be patient because the commission cannot rule on requests that are the subject of a dispute. For instance, it could not issue a ruling on the zone between Russia and Norway in the Barents Sea, which is contested by both countries. The commission did what it could, but the disputes remain.

[The Chair, Conservative, Maxime Bernier]

You have 30 seconds left.

[Suzanne Lalonde]

As for the military aspect, I think you are absolutely right. If a Russian or Chinese warship were to dispute Canada's sovereignty, we would have to hope that applicable diplomatic agreements were already in place. In contrast, if it were a merchant ship, I hope that the situation could be resolved before we had to resort to that.

Ultimately, however, I think that if we are serious about Canadian sovereignty, we have to do something. If we do not intervene in a case like this, then we are not sovereign.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

I will now give the floor to Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman.

Thank you for your presentations.

I take it from your presentation, Madam Lalonde, that the major issue of contention is the Northwest Passage.

I ask you if you agree with me that the issue of the boundary on the Beaufort Sea, the issue of the extent of the continental shelf, and even the disagreement over Hans Island are conventional disputes that can just be resolved by either agreement or by arbitration, so there's not really a worry there. The issue of the Northwest Passage, however, is one that is still a live issue. Can I ask you whether a presence is important there? I'm asking that in the context of the relatively cheap use of the coast guard versus naval ships. Let's face it, it's a much more expensive proposition. Is presence important, even with the Northwest Passage?

Do you have any comment on the fact that none of the 12 new coast guard vessels that are now under tender have icebreaking capabilities? Is that going to be a problem for us?

[Prof. Suzanne Lalonde]

I believe so, and I would agree fully with your opening statement about the nature of and how the other disputes will be managed. I think they will be managed very legally.

The Northwest Passage is a whole other situation. In fact, Canada is a bit isolated in its position and is being reproached in international fora for its nationalistic outlook of this question and abandoning its multilateral, cooperative model. So I think it's a hard sell, and I would certainly agree with you.

I had the privilege of being on board the coast guard vessel Amundsen and crossing the Northwest Passage. I believe the centre of expertise in Canada at the moment for the Arctic navigation side is in the coast guard. I think it is mostly--I would say 95%--presence and being in those waters when foreign ships are in those waters, which is what the coast guard does every summer.

Perhaps I'm focusing too much, but I think there is this worst-case legal scenario and I think we just have to prepare for it. I think it could be a very ciblée response, a very precise response, to develop a capability to respond to that nightmare legal scenario.