Foreign Affairs Committee on March 4th, 2009

[Prof. Michael Byers]

Thank you for those very pertinent questions.

On the Northwest Passage, I think both countries have tenable arguments. I wouldn't want to litigate this because the risks of losing would be too high, and I believe the United States would take the exact same view, that this should be dealt with through negotiation, not litigation or arbitration.

Therefore, it's not a question of which is the stronger legal argument; it's how we resolve the dispute in a way that works for both sides. Whether it's environmental protection, which has historically been Canada's main interest, or a concern about North American security, which is the United States' main interest, I think there's a credible argument to be made, and Mr. Cellucci and I have made it. We should seek to negotiate a bilateral agreement that recognizes Canadian sovereignty and jurisdiction over those waters in return for some concrete commitments by Canada to policing that waterway and making it a safe international shipping route--not an international strait, but a shipping route something like the St. Lawrence Seaway, which is carefully managed with sufficient infrastructure to ensure that ships can pass safely through to everyone's economic interest, and at the same time have security threats dealt with and deterred.

That's what we should do on the Northwest Passage. I'm afraid the Canadian position right now, which is essentially to not open up that issue and just let time take its course, is very risky because there is increased activity and we're likely to see our legal position called into question, not necessarily by the United States but perhaps by some other actor.

On the Beaufort Sea, I think there will be pressure to resolve that dispute from multinational oil companies that will want to explore in the disputed 6,000-square-mile sector. Again, there are perfectly acceptable ways of resolving that. One is to declare it a joint hydrocarbon zone, as other countries have done in similar situations, and actually share the royalties and have a joint environmental assessment and permit-issuing process. Or you could simply draw a line right down the middle of the disputed zone and leave it at that.

It's not an issue that should cause any concern or hostility between the two countries. As it happens, thanks to chapter 6 of NAFTA we're in a common energy market anyway. So EnCana is just as likely to drill on the U.S. side of the eventual line as an American oil company is. Again, cooperation and the realization that we have common interests need to be at the forefront here. Above all, we shouldn't be afraid to deal with the United States on this. We're a major Arctic country. When it comes to energy we are their largest supplier, so I think we could negotiate in good faith and expect a good result.

[The Chair, Conservative, Kevin Sorenson]

Mr. Bagnell, very quickly.

[Larry Bagnell, Liberal, Yukon, YT]

The agreement with the United States on the Northwest Passage would be fine with them, but Europe doesn't agree either, and that wouldn't fit them.

Have you any comments on the Arctic charter, which is under debate now?

[Prof. Michael Byers]

The European countries you're referring to are all partners in NATO. If the two North American partners in NATO decided they had to do this for a security reason, I'm quite confident that our European allies would fall into line, particularly if, as part of this agreement, we made a firm commitment to allow any reputable international shipping company to use the passage within the constraints of reasonable environmental and safety regulations. So there's no issue there.

There is a lot of activity on the Arctic, within the Arctic Council and other bodies, but what people need to understand is that the dominant framework is the United Nations Convention on the Law of the Sea. That was negotiated in large part by Canadian lawyer diplomats 27 years ago now. They did an extraordinary job in terms of anticipating the kinds of problems that would arise and protecting Canada and other countries' interests there.

This is a good treaty, which is why President Bush wanted to ratify it and why, I expect, the Obama administration will ratify and come into that treaty framework soon.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Byers.

Mr. Crête, you have six minutes.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you, Mr. Chairman.

Good day, Mr. Byers. Do you speak French?

[Prof. Michael Byers]

Yes, I do.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I would now like to turn to the issue of the Arctic.

In Antarctica there is a management model which I believe 14 countries are involved in. Would it be a good idea to implement this model for Arctic management with circumpolar countries?

[Prof. Michael Byers]

Thank you very much.

It is the Arctic Council, an international organization created thanks to Canada and specifically Lloyd Axworthy, former Minister of Foreign Affairs.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

No, I'm sorry. Perhaps I misspoke. I'm referring to Antarctica, to the south, which is managed through an international agreement. This agreement, which brings together 14 countries, was not developed based on a militaristic or aggressive approach and it works well; would that be advisable for the Arctic?

[Prof. Michael Byers]

On the Antarctic, you're right, there is a comprehensive multilateral treaty governing that continent. But one has to remember that the Arctic is not a continent. The Arctic is largely an ocean. It's a very different situation from Antarctica. The treaty that I referred to in response to your colleague's question, the United Nations Convention on the Law of the Sea, is therefore the dominant governing instrument for the Arctic.

There is a tendency for countries that are not Arctic countries to want in to Arctic diplomacy. They argue for a multilateral global treaty, like the Antarctic treaty, as a way to get in. But Canada, of course, has the longest coastline of any country in the world, most of it in the Arctic. We were lead negotiators on the law of the sea convention. So from a strictly Canadian interest point of view, I would urge you to support the law of the sea convention as much as you possibly can.

There are other multilateral treaties and instruments. The Arctic Council is one organization that is very important in terms of dealing with studies of climate change, for instance. But we do not need to ignore or sideline the law of the sea convention and start again with some new overarching multilateral instrument. First of all, we don't have time. Those things take several decades. More importantly, the instrument in place, the law of the sea convention, is very good indeed.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I would like to ask one more question on the Arctic.

Last summer or the previous one, I went to Prudhoe Bay, in Alaska, where there is a huge oil complex. We realized how significant climate change really is.

How do you see things with respect to how long we have to act? What effect will climate change have on managing the Arctic? Is this an emergency or do we still have a lot of time to act? Is the gradual disappearance of permafrost a risk for facilities like that in Prudhoe Bay, that may not be in a position to operate for as long as we had expected?

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Crête.

Mr. Byers.

[Prof. Michael Byers]

In 2007, just a year and a half ago, planet earth lost 1.2 million square kilometres of Arctic sea ice. I spend a lot of time speaking to international experts on climate change and sea ice, and we can expect a similar pace of change in the years ahead, to the point where my colleague David Barber, who holds a Canada research chair in the study of sea ice at the University of Manitoba, is predicting that in late summer around 2013 we will see an ice-free Arctic Ocean.

So the pace of change is very fast indeed. This requires not only that we get much more serious about stopping and slowing down climate change but also that we be aware that the entire Arctic is changing, which creates obligations and also opportunities.

To give you one small example, I am very skeptical that the Mackenzie Valley pipeline will ever be built, first of all because the permafrost is melting, which makes it much more difficult to build such a pipeline, but also because it is becoming very easy to foresee taking natural gas from the Beaufort Sea through the Northwest Passage to Atlantic Canada.

The Norwegians have already mastered the technology in their Arctic waters. We should be preparing to do the same thing and to get beyond our old conceptions of how to do big infrastructure projects and begin to realize that the north is changing so quickly so that we need to be moving forward with new ideas.

[The Chair, Conservative, Kevin Sorenson]

Thank you. Actually, you're out of time.

We'll go to Mr. Goldring, please.

[Peter Goldring, Conservative, Edmonton East, AB]

Thank you, Mr. Chairman.

And thank you for appearing here today, Mr. Byers.

I have a question on the Northwest Passage. If it's considered by some to be international territory in liquid state, what is it considered in its frozen state? In other words, if it's available for international shipping in its liquid state, does that really mean there could be international shipping in its frozen state, for trucking or whatever? How does that work?

[Prof. Michael Byers]

It's a wonderful question, and it enables me to raise the point that some ships actually travel submerged and the issue of submarine transits of the Northwest Passage is a very pertinent issue, particularly because the Los Angeles Times last Saturday reported that a U.S. nuclear-powered submarine from Norfolk, Virginia, is going to be participating in an exercise north of Prudhoe Bay, Alaska, in the next couple of weeks.

So one of the questions your committee should ask is whether or not Canada and the United States have a cooperation agreement that extends to submarine transits of the Northwest Passage, because as the Arctic becomes busier, we will become more and more aware of these, if in fact they do occur.

But in terms of the actual frozen character of the water, at least during part of the year, this does enable Canada to say to the United States, look, the Northwest Passage is different from other potential international straits elsewhere in the world, and therefore you do not need to be so concerned about a precedent; you could recognize Canadian sovereignty over the Northwest Passage and not worry about it creating a precedent for the Strait of Malacca or the Strait of Gibraltar, because those straits are not covered with ice in the winter.

[Peter Goldring, Conservative, Edmonton East, AB]

The question really can be this. They must have a concern that if it was to be used by international influences in its frozen state, that would open it wide to any country around the world using it in its frozen state as a matter of transport.

My second question, and perhaps you can help me with it, is about the secretariat that's set up in the embassy in Washington. There was some discussion a little bit earlier that with that advocacy group there, it creates a confusion if there's provincial representation by premiers or by provinces on that committee, and the comment was that it would be better to have the representation by the federal government. Would you have any viewpoint on that? There's a sense and feeling that we should be doing more in that advocacy in the embassy in Washington and other embassies around the world, so I'm rather concerned that it's viewed by some to be a point of confusing the politics of representation of the country.

[Prof. Michael Byers]

That's a difficult question. It's a sensitive question. I'll give you a straight response, which is that a decentralized country like Canada does sacrifice some of its weight in the world by not speaking with one voice. Countries like the United Kingdom or France, which are relatively unified central states, do punch above their weight in international affairs, and Canada has lost some of its weight over the last couple of decades as we've decentralized our Confederation.

Now, how you deal with that in terms of the interprovincial-federal relationship is one that goes well beyond my expertise. But certainly when we have an embassy in any foreign country, there should be one voice, there should be one policy, and that should be directed by Ottawa. The negotiations that need to precede that, to make the provinces comfortable, are another question. But if we have multiple voices in Washington, they will actually drown each other out, and we will not get anywhere. And so I would certainly share the view that our embassy needs to represent just one capital city, namely the one in which you're sitting right now.

[Peter Goldring, Conservative, Edmonton East, AB]

That certainly is a strong viewpoint. But I would rather say for some of the provinces that have represented themselves—for example, the Province of Alberta on a mission directly to Ukraine for their purposes, or it could be the Province of Quebec or the Province of Ontario representing themselves on particular missions—those are essential.

Given the size of Canada and the scope of Canada, I would think there would be essential reasons to have that and to encourage that, in certain circumstances.

[Prof. Michael Byers]

Oh, I'm a big proponent of international dialogue and as many ties as possible. But there's a difference between having lots of international ties and actually sitting across the table from another country's representatives and actually negotiating a deal on a critical issue of foreign policy. And so with all respect, I think that on the big issues, in crisis situations, it needs to be one voice for Canada.

[Peter Goldring, Conservative, Edmonton East, AB]

On the big issues. All right. Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Goldring.

We'll move to Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair.

And thank you to our guests. Thank you for joining us.

I just want to go back to your comments regarding the Northwest Passage. So you would advance the idea of—just to get my head around this—a managed approach, with Canada bringing forward the idea, if you will, initiating this idea with Washington?

[Prof. Michael Byers]

Yes, absolutely. I think we do ourselves and the United States a disservice by postponing diplomatic engagement on this issue.

Postponing diplomatic engagement was a viable option 20 years ago, before the ice started to melt. But during the last two summers the Northwest Passage has been wide open. There are European cruise ships sailing through on a regular basis, without any ice-strengthening capability. I mean, they go through just as regular cruise ships. So we need serious search and rescue there. We need to have very good charts to guide people. We need excellent weather tracking and reporting skills. We need to have a policing function there. These are all things every country would want us to have. And by providing those capabilities, by providing a safe Northwest Passage, we strengthen our claim to actually have jurisdiction, to have sovereignty there.

But our big impediment in doing all that is the fact that historically the United States has opposed our legal position, has argued that any ship from any country has an unrestricted right of access to the Northwest Passage. And that simply does not make sense, either for us or for the United States. The only thing worse for the United States is actually to say, okay, Canada, you can have sovereignty over the Northwest Passage--and then see us do absolutely nothing to protect either our interests or theirs.

So we have to step up to the plate with some serious investments, including things like search and rescue. And in conjunction with that, we have to negotiate with the United States to make them realize that as partners in the defence of North America, it makes sense for the coastal state on both sides of the Northwest Passage to take on that particular responsibility: Canadian sovereignty, through investments and through diplomatic engagement.

And I not only believe this, but I've tested it with Paul Cellucci. We had a day and a half of pretty hard-nosed negotiations with the very best teams of non-governmental experts we could find. We didn't solve the underlying sovereignty dispute, but we came up with nine concrete recommendations that would, if implemented, take us nine-tenths of the way there.