Foreign Affairs Committee on Feb. 26th, 2013

[The Chair, Conservative, Dean Allison]

Pursuant to Standing Order 108(2), our study of Canada's Arctic foreign policy will continue.

I would like to welcome as an individual, Ted McDorman, professor in the Faculty of Law, University of Victoria. Glad to have you here today.

From the Government of Nunavut, we've got Ed Zebedee, director of protection services. Mr. Zebedee, welcome to you as well.

We will start with your testimony. I believe, Mr. Zebedee, that you're going to go first. We'll give each of you eight to ten minutes for your testimony and then we'll go back and forth across the room for questions to follow up.

Thank you for taking the time to be here, as we are wrapping up our study on this topic over the next couple of weeks. We look forward to what you have to say.

Mr. Zebedee, I'm going to turn the floor over to you, sir, and you've got eight to ten minutes for your opening statement.

[Ed Zebedee, Director, Protection Services, Government of Nunavut]

Thank you, Mr. Chair, for the invitation to speak today.

As I am a long-time northerner, in my opinion the perfect person was chosed when it was announced that the Honourable Leona Aglukkaq would chair the Arctic Council. While many study the north, you can only truly understand the challenges and complexities facing the north if you have lived there.

Climate change, economic development, sovereignty, and the environment are important issues to the north. All of these directly impact the safety and well-being of northerners. In my role within the Government of Nunavut, balancing these issues with meeting the needs of our citizens influences how we make decisions in delivering programs.

Recently, the Arctic Council created a task force to work on an international instrument for Arctic marine oil pollution preparedness and response. I believe that a draft document has been completed and is under review. Prior to this, an agreement among circumpolar states was reached on search and rescue in the Arctic. This is to be applauded. However, a commitment of substantial resources to both people and equipment is required to meet the intent detailed in the agreement.

Search and rescue in the Arctic is something I live with on a daily basis. Culturally, being on the land, using the natural resources by fishing and hunting to obtain food, skins, and other material is a part of traditional northern peoples' lives. Today, it also has a large economic benefit. Many are hunters or trappers and rely on the land as part of their livelihood.

Over the years, we have seen a steady increase in search and rescue incidents. Climate change is a major factor facing a hunter today. Hunters must travel farther from their homes into areas they traditionally did not travel. This puts them at greater risk of getting lost or worse. Elders now say they can no longer read the weather.

The Government of Nunavut responds to approximately 150 search and rescue incidents each year. In 2012, we responded to 178 incidents involving 315 people. Most search and rescues involve northerners, but as northern development escalates, tourism and vessel traffic in the opening Arctic waters will naturally multiply. The increase in air transportation and shipping that coincides with resource development will further add to the environmental and human risk. The increase in economic development equals an increase in shipping. As the Arctic seaway opens more and more, sea traffic will expand. A major emergency or environmental disaster is waiting to happen.

We have already been beset with challenges involving a cruise ship and two fuel tankers in Nunavut waters. All three incidents took place within one month of each other. The motor vessel Clipper Adventurer, with 128 people on board, ran aground near Kugluktuk. It took the Coast Guard two days to reach the ship and remove passengers to the local community. Such incidents could have resulted in loss of life or a huge environmental disaster. The nearest Coast Guard ship was 500 kilometres away in the Beaufort Sea.

While the Canadian Forces can respond with 11 hours to an incident anywhere in the Canadian Arctic, that response will likely be a Hercules aircraft with SAR technicians. They will and have given their lives to assist those in need, but their efforts could be futile without the ability to evacuate survivors in a reasonable time. Also consider the 100,000 international airline passengers who fly over the Arctic every day. A forced landing in one of the harshest climates in the world would require a response in a matter of hours. How do we develop the response capacity for the Arctic? How do we consider the costs?

Purchasing equipment, building facilities, and training personnel will be expensive. For example, look at the costs of the proposed offshore vessels. The costs of these vessels will be in the many millions of dollars, with additional millions of dollars in operational costs annually. But I would suggest they are better equipped to operate in southern waters than in the Arctic. With the lack of port facilities the operational time in the Arctic will be limited to just a few weeks before they must return to a port.

But we don't have to do that. For less money than the cost of these vessels, we could equip, operate, and at the same time support Arctic communities and people to take on this role. We would add seasonal employment, increase the capacity to respond in a timely manner, increase our sovereignty, increase our situational awareness in the area, and in the long run save money. Task the Canadian Rangers into a role that would meet all these objectives.

For approximately $1.5 million annually, vessels in the north could be operated by northerners. The operations and maintenance budget could fund the patrol during the summer months and be the eyes and ears of the military. Moreover, the vessels could be utilized for marine search and rescue calls. People could also be trained in marine oil-spill containment. The vessels would proudly carry a Canadian flag.

As co-chair of the northern round table on search and rescue, it has become more and more apparent that what is lacking is a national search and rescue policy. The Government of Canada, after a royal commission in the 1970s, set up the National Search and Rescue Secretariat. Its role was to set policy and develop processes and procedures for inter-jurisdictional, inter-departmental response for search and rescue.

Over the years, there have been many reviews and reports published with conclusions and recommendations on improving and developing a national search and rescue policy. These documents are available on the secretariat's website. Few, if any, of the recommendations have ever been implemented.

I would suggest that the Arctic Council develop a national search and rescue policy that could be held up as an internationally accepted instrument for other Arctic jurisdictions to adopt and implement. The benefit would be for all our citizens.

As resource development increases, so will the population in the Arctic. There's a constant need to replace outdated infrastructure and to add new facilities. This will only grow as the north develops. But without the implementation of a long-term transportation strategy, and the financial backing to execute the plan, we are hostage to a very fragile system. Perishable food, drugs, and other supplies must come by air. While many goods come during the annual sea lift, the daily necessities rely on this system. Serious medical emergencies cannot be handled in many communities, and rely only on the air transportation system. This system is at best antiquated and limited.

In Nunavut, only two airport locations have instrument-assisted landing systems. Runways are mostly unpaved, have limited capacity to land large aircraft, and have only basic Nav Canada services. Should we ever lose a power generation plant, only half the communities have a runway that will accept aircraft large enough to bring in replacement generators.

Northern development has always been tied to transportation. Note how in Canada the area once called the Northwest Territories became a large part of Ontario, Manitoba, Saskatchewan, and Alberta. This all came about when the railroad was built and opened the frontier. The north is the next frontier to be opened, and a transportation system will be the only way that the potential of the north is realized.

As noted previously, there is only one deep-water port, and it is located at the abandoned Nanisivik mine site. While the annual sea lift is critical to the operation of all communities in Nunavut, it adds an additional risk due to the lack of proper docking facilities. Fuel must be pumped to a shore-receiving area in floating booms, increasing the chance of an ocean spill. All equipment and goods must be transferred from the main ship to tugboats pushing barges, which are then pushed ashore for offloading—again, increasing risk and time to deliver. Without proper docking facilities, even with a heavy-class icebreaker, emergency supplies could not be landed in communities in the winter.

A major emergency in the community will quickly overwhelm the resources available. Without further development of transportation infrastructure, most communities would have to be evacuated if we lost the most basic services. The loss of a power plant, fuel storage facility, or water treatment facility could close a community for many months, if not years. The human and financial impact would be devastating.

The north has changed in the 30 years I've lived there. While I know that most northerners are much more resilient than their southern neighbours, we are unfortunately becoming a just-in-time society. A five-day blizzard in Iqaluit impacts throughout Baffin Island communities. Perishable foods such as milk and vegetables are quickly sold out. The supply chain is interrupted, and priority shipping of goods leaves other goods, no matter how badly needed, sitting in Ottawa or Yellowknife.

We recently held a conference on food security and the need for utilizing more country food such as locally caught fish, seal, and caribou. But what was missed is that in today's world food security comes from a robust and sustainable transportation system, a system that will allow for the products and goods to be shipped at a comparable cost and as reliably as for southern shipping.

I thank you for your time, and I hope I've have given you some ideas and some thoughts to take away.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. Zebedee.

We'll now turn it over to Mr. McDorman.

[Professor Ted McDorman, Faculty of Law, University of Victoria, As an Individual]

Thank you for inviting me to appear today before your committee. I hope I can be of some service to the committee. I must state at the beginning, however, that I have not lived in the Arctic. I have studied the Arctic. So perhaps we make a good balance. I'm not sure.

I am a law professor at the University of Victoria in beautiful British Columbia and a Nova Scotian, let there be no doubt about that—I have Dalhousie Law degrees to prove it. In this area of my academic work, which is the international law of the sea, I am a bit unusual in Canada in that I have lived and have professional experience on both coasts. But of course, I am quick to say that I do not have life experience on the Arctic coast.

I am currently away from my university post. I am on secondment to the legal branch of the Department of Foreign Affairs where I provide some assistance on a number of the issues that arise respecting international law of the sea and other international law issues. The head of the legal branch where I work, Alan Kessel, appeared before you in November of last year.

This is the second time I have been on secondment to the Department of Foreign Affairs and can assure you that working within the federal government on legal and policy issues makes this academic less prone to sweeping generalizations and the assuredness of opinion and views than I may have once held. More directly stated, what appear to be simple issues susceptible to an easy fix inevitably are not.

At any rate, I am here today solely in my academic role as one who has studied at one time or another almost all of the international law of the sea issues, so I am very heavily focused on the international ocean issues that arise and are discussed between Canada and other countries in the Arctic.

This committee has already heard from a number of Canada's outstanding international lawyers with knowledge and insights on Arctic Ocean legal issues—Alan Kessel, Don McRae from the University of Ottawa, and Michael Byers from the University of British Columbia. I have read their testimony and have little of substance to add; hence, I will be reinforcing what has already been said. How I might be of some value to the committee is in answering any questions committee members may have on some of the technical legal issues regarding matters such as the legal status of the waters and sea floor of the Arctic Ocean and the Northwest Passage, maritime boundary issues in the Arctic Ocean, and fishing and shipping matters respecting the Arctic Ocean.

Despite my reluctance to speak in absolutes, here are four absolutes, certainties, or truths about the Arctic Ocean, international law, and politics. When do public speaking, I frequently start by saying “Here are four truths”, or sometimes I will say, “Here are three and a half truths”, but today I have four truths that I want to put forward that I think are incontestable. I know they are incontestable as a matter of international law.

First, all of the land in Canada's Arctic, with the wonderful exception of Hans Island, is unquestionably under Canadian sovereignty and not subject to any challenge by any other state. Second, as a matter of international law, the Arctic Ocean is the same as every other ocean in that the same international legal regime applies as elsewhere. In this case, this is the 1982 Law of the Sea Convention, as well as other multilateral treaties, whether they deal with shipping or whatever, that apply to all oceans. They apply as well in the Arctic Ocean, with the result, as emphasized by Alan Kessel when he spoke to you, and the others, that there is no international legal vacuum in the Arctic Ocean.

The implications of this are as follows. First, all of the Arctic Ocean's coastal states have 200 nautical mile zones, similar to the zones that Canada has, for example, on both the Atlantic and Pacific coasts. As well, Canada and the other Arctic Ocean states have exclusive sovereign rights over the mineral resources located on the continental shelf beyond 200 nautical miles. Again, these are the same rights that Canada has off the coast of Nova Scotia and Newfoundland and Labrador: clear, uncontested, continental shelf rights beyond 200 nautical miles, over the legal continental shelf.

As with other oceans, the Arctic Ocean is simultaneously an area of exclusive national jurisdiction and an area of certain international rights exercisable by and available to all states. Navigation rights are an example of this exercisable right by all states in the central Arctic Ocean basin. Essentially the Arctic Ocean is both an area of exclusive national jurisdiction over certain things, such as mineral resources, and international activity takes place in the central Arctic Ocean perfectly legally, largely in the realm of navigation. The point is that both Arctic and non-Arctic states have rights and obligations respecting the Arctic Ocean, as they do in other oceans.

As with other oceans, so too with the Arctic Ocean, there is value in and room for appropriate Arctic Ocean-specific agreements on special topics, as has been seen and already referred to with the search and rescue agreement and the recently reported agreement on Arctic Ocean oil pollution preparedness and response. As in other parts of the world, one can expect other agreements on other topics in the future.

My third absolute certainty or truth—I forget which one I'm using today—is that there is absolutely no question in international law that the waters, including the sea floor and all of the resources therein within the Arctic archipelago and the Northwest Passage, are Canadian. The debate with the United States is exclusively over rights of navigation through the waters that the U.S. proclaims to be an international strait, and Canada rejects this claim.

I characterize this issue as not being whether the Northwest Passage area is Canadian; rather the question is how Canadian is the Northwest Passage? Is it like Wascana Lake in Regina or Halifax harbour—brilliantly located in Halifax—all Canadian for all purposes, in other words? That would be the Canadian view. Is it all Canadian but for a right of vessel navigation? That is the position asserted by the United States.

The fourth legal certainty of mine is that the international legal disputes involving Canada in the Arctic Ocean are no different from those disputes that exist elsewhere and should be viewed and understood in that context. The existence of a dispute, for example a maritime boundary dispute, does not mean there is a crisis or even all that much actual friction between the states involved.

Concerning maritime boundaries, Canada has maritime boundary disputes with the United States on both the Atlantic and Pacific coasts and, of course, in the Beaufort Sea, dating back to at least to the 1970s, and perhaps, depending upon your point of view, a little bit earlier than that. Yet these ocean disputes have caused little actual friction between the two countries.

Canada and the United States even have a land territory dispute, noted as recently as December in The Globe and Mail, dealing with Machias Seal Island, which, if you don't know, is off the coast of New Brunswick near Grand Manan Island. It's clearly Canadian, of course, but the U.S. has a different view. It has caused little friction, unless you happen to be a lobster fisherman from that area, in which case, yes, it does create friction in that context.

The Northwest Passage disagreement also goes back to the 1970s, yet there has been surprisingly little actual friction between the countries, albeit when the Northwest Passage has arisen as an on-the-water issue, both in 1970 and in 1985, for example, there was much political heat in Ottawa. The point that I'm trying to make is that it is not the existence of the dispute that matters. Rather, it is whether the dispute is causing friction between the states involved. Using this standard, none of Canada's perceived Arctic disputes come close to a crisis level. More colourfully perhaps, whatever the causes of the loss of ice cover in the Arctic Ocean, it is not caused by the heat arising from Canada's international ocean law disputes.

The above is not to say that resolution of these international legal disputes and Canada's Arctic Ocean dispute is not a worthwhile goal. Indeed, it may turn out in time to be a management necessity. Rather, it is to say that care must be taken in evaluating the significance or importance of a particular dispute. Also, for those who advocate a particular solution to some of these disputes, care must be taken that the full political and legal costs and benefits are taken into account in any proposed solution.

Given my love of prime numbers, I'm actually going to add a fifth absolute truth or certainty. I think it's more of an observation. We'll see how it goes.

On matters regarding international ocean law and policies for the Arctic Ocean, despite views to the contrary, there is a fair degree of bilateral and multilateral cooperation and, perhaps more important, common understanding amongst the Arctic states, aided by the Arctic Council and evidenced by the unfairly maligned 2008 Ilulissat Declaration. There is also a fair degree of common understanding and cooperation respecting the Arctic Ocean between the Arctic and non-Arctic states. It is this cooperation and mutual understanding on Arctic Ocean law of the sea that I expect to continue to inform and guide these aspects of Canada's Arctic foreign policy.

Once again, thank you for your invitation to attend. I look forward to doing my best with any questions that may arise. Thank you.

[The Chair, Conservative, Dean Allison]

Thank you, Mr. McDorman.

We're going to start off with Mr. Bevington, sir.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you very much, Mr. Chair.

As a lifelong northerner and someone who once grew up in a community that was only supplied by a barge, I understand and appreciate the concerns that you've raised, Mr. Zebedee. I appreciate everything that you've said here. What I would say in that regard is that we obviously don't have much to brag about. If we are going to make this a focus of our Arctic Council discussions over the next two years, showing and telling the failings of the Canadian transportation system throughout the Arctic, I think the leaves a little bit to be desired in terms of our foreign policy.

The Arctic Council really is the only place where international agreements are being worked on on a regular basis, whether they be the environment or shipping. In the political vein, the Arctic Council remains a very important international body to deal with issues between states. I think there's something that we've been discussing over the past number of meetings in that particular regard.

I agree entirely with your presentation. I wish you would have made it to the northern development committee hearings that were held by the natural resources committee a few months ago, because they needed to hear what you have said—they really did—and I thank you very much for it.

Mr. McDorman, you say that there's no crisis in the Arctic and that the maritime boundaries issues are not significant. Yet everybody is positioning on them. The United States in the last four years has put forward fishing regulations in the disputed area. They have also put forward regulations around air emissions from oil and gas developments in that region. They include it as part of their maritime responsibility. So we see the United States as actively establishing authority over that area, which is not matched by Canada. In fact, Canada had to send diplomatic letters to the United States over these issues. I don't know if they did it on the air emissions, but they certainly did it on the fishing issue, as revealed in Parliament. These things are not static but are moving.

I have a question for you on the disposition of the Arctic Ocean. There's a doughnut hole in the Arctic right now, in the Arctic Ocean. Perhaps you could explain how that works. You might want to comment on the other things as well.

[Prof. Ted McDorman]

If I might comment first on the United States, I would say it is not surprising when the United States deals with its 200 nautical mile zone that it includes within it the small sliver that we also claim as part of our 200 nautical mile zone. When Canada enacts legislation for our fisheries zone, it goes into what the United States claims to be its 200 nautical mile zone. The fact this occurs, I would say, is a result of both countries not following good legal advice as to what not to include. Within our fisheries regulations, and to the extent we have explicit regulations in the Canadian Arctic, we go out to our 200 nautical miles, including into the area the U.S. claims. So a U.S. senator or a U.S. congressman would be making exactly the same statements you are.

[Dennis Bevington, NDP, Western Arctic, NT]

It's not exactly the same thing as a ban on fishing in that area.

[Prof. Ted McDorman]

We have not adopted a ban on fishing.

[Dennis Bevington, NDP, Western Arctic, NT]

But the U.S. has adopted one.

[Prof. Ted McDorman]

But the U.S. ban on fishing applies to its 200 nautical mile economic zone, which it includes as part of our area. It is not specifically targeted at the overlapping claim. It is a generic one that applies to all of the 200-nautical-mile zone north of Alaska.

The protest notes are a legal way of just letting the other country know that we've noticed. While I don't have any first-hand knowledge, I assume that when we do things out there the U.S. sends us a protest note. It's just what happens.

On the second question, yes, there is a doughnut hole or however you wish to call it. One has to be careful here that one is referring to the water column, so we're talking beyond 200 nautical miles in the Arctic Ocean. There is a large area that would be described as high seas. This is the same thing that exists beyond Canada's 200-nautical-mile zones on the east coast. Beyond 200 nautical miles is the middle of the Atlantic Ocean, the high seas, and there is that area in the Arctic Ocean.

One has to differentiate the 200 nautical mile zone from the continental shelf area. The continental shelf is not constrained as a legal matter by the 200-nautical-mile zone, so the continental shelf for Canada in the Arctic, while it is not yet clear where this will go, will undoubtedly go well beyond 200 nautical miles, much as it does on the Atlantic Coast, well beyond 200 nautical miles off the coast of Newfoundland and Labrador.

So you have the situation in the Arctic, as you say, of a doughnut hole in the water column, but we don't know yet just exactly how much area may be left for the international seabed authority and the community on the sea floor.

[Dennis Bevington, NDP, Western Arctic, NT]

What would that authority be on that continental shelf area?

[Prof. Ted McDorman]

Do you mean for Canada?

[Dennis Bevington, NDP, Western Arctic, NT]

Beyond the 200 mile limit, what would the authority be? Would it just simply be extraction?

[Prof. Ted McDorman]

It applies to mineral resources, which would be hydrocarbon resources and any mineral resources that exist within the sea floor beyond 200 nautical miles. Oddly enough, it also applies to scallops and things that live on the sea floor that are fisheries resources. Those resources are also captured as part of it. But it is all mineral resources in the sea floor beyond 200 nautical miles, to the outer limit of where Canada can go. Just exactly where that is has not yet been determined.

[The Chair, Conservative, Dean Allison]

Thank you very much.

We're now going to start with the government side.

Mr. Dechert, you have the floor for seven minutes, please.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you, Mr. Zebedee and Mr. McDorman, for being here and sharing your expertise with us.

I wonder if I could start briefly with Mr. Zebedee. You mentioned at the outset of your remarks that it was important that the chair of the Arctic Council be someone who has actually lived and spent a lot of time in the Arctic. You mentioned Minister Aglukkaq.

I know others have expressed a view that perhaps the Minister of Foreign Affairs would be a better choice.

Can you expand on that and tell us why you believe Minister Aglukkaq is a better choice?

[Ed Zebedee]

She understands the north, and she understands the challenges.

Our feeling is that the Arctic Council is not so much a foreign group as a group of like-minded people who think about Arctic issues. While they are international, they are very focused on what they are looking at. They are looking at their areas and their peoples in those areas.

Northern peoples overlap. We have huge relationships with Greenland. I have friends who are Inuit in Iqaluit who have relatives in Greenland.

For us it seems a better fit.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Do you agree it's important to have input from the indigenous people of the region in all those countries?

[Ed Zebedee]

Yes, I do.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Does that include Russia?

[Ed Zebedee]

Right now, I think the restrictions that Russia has put on its people is a mistake on its part. Hopefully, it will rethink that.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you.

I want to switch briefly to Professor McDorman.

Professor, in response to a question from my colleague on the other side, you mentioned the relatively minor dispute between Canada and the U.S. over the 200-mile zone. You're probably aware that the Government of Canada is undertaking a $40 million study over four years to determine the extent of the Canadian continental shelf.

Can you fill us in a little bit on why that's important and what's being done in that study, if you know about it?

[Prof. Ted McDorman]

From a legal perspective, the study is to determine where the outer limit of Canada's continental shelf is, not only in the Arctic but on the other coasts as well. This process is very science driven. In relatively simple terms, the 200 nautical mile zone is the 200 nautical mile zone. You take a ruler—although that's oversimplifying it—and you go and measure it.

The outer limit of the continental shelf is determined by a combination of sedimentary thickness, foot of slope points, 60 nautical miles from the foot of slope points, 1% sedimentary thickness backwards, plus a number of constraint lines. It is a very science-driven process; hence, the project that's ongoing aims to acquire and interpret the scientific information in the Arctic and thereby enable us to submit our information to something called the Commission on the Limits of the Continental Shelf.

They are a science body set up under the law of the sea convention and will review, in time, the Canadian submission. They'll make recommendations, and then the Canadian government will look at these recommendations and do what it thinks is appropriate in light of the recommendations that have been given.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Do you know whether the Americans have done a similar study of their continental shelf?