National Defence Committee on May 13th, 2009

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you, Professor Pharand.

I will put the question then to Mr. Iskander, who works in the area of satellite systems.

Thank you very much, Professor.

[Mag Iskander]

Our involvement in monitoring the North Pole, the Arctic area, is through Radarsat-1 and Radarsat-2. These are singular spacecraft that have capabilities of not only the North Pole but other areas they cover.

The continuation of the radar monitoring with specificity to the Arctic requires the addition of the Radarsat Constellation Mission for a number of reasons. One, the orbit is different, as described earlier. The frequency of visits is higher, and the design uniqueness of the RCM program—

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

What is the magnitude of this project, the constellation mission?

[The Chair, Conservative, Maxime Bernier]

There are 15 seconds left.

[Mag Iskander]

The total program is in the realm of $600 million, and only $200 million has been approved by the previous government. The balance of the money has not been approved by the government; therefore all of the remainder work is not done.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

Monsieur Bachand.

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

Mr. Iskander, some things, such as vessels, can be observed by satellite. On occasion, we have been concerned with observing activities below the surface of the water, and consequently, submarine activity. We've been told that we do not have the technology at this point in time to detect the presence of submarines in Arctic waters.

Is that an accurate statement? If so, are you working to develop the technology that would enable us to detect the presence of submarines in the waters of the Northwest Passage?

[Mag Iskander]

I am not really expert in the area, Mr. Bachand, but I can tell you that CP-140 radars have the ability of detecting submarines. Your question is directly related to the identification of the type of submarine. I am not an expert in this area, and there may be Canadian capabilities I'm not aware of.

At MDA we do provide sonar capability to detect and draw the nature of the bottom of the sea. We have this technology, but I'm sorry, I'm not familiar with identification of submarines.

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

I see.

I have another very important question for you.

I've heard that an international agency was the one to decide the trajectory of the satellite and to grant permission to launch satellites into space permanently. I've been told that trajectories and slots have been reserved for Canada and that as we speak, some people in Canada want to sell these slots to other nations.

Can you confirm whether this is in fact the case?

[Mag Iskander]

You may be referring to a decision that was made back in 2007, if I'm not mistaken, to put on auction a certain number of slots, and that took place. There were Canadian slots put out for auction internationally. I should point out that these were high-altitude communication slots—geosynchronous satellites, as opposed to the earth observation satellites, which fly at a much lower altitude. So these slots were related to communication satellites, as opposed to earth observation. But yes, I believe this decision was made and carried out under the chairman's Department of Industry at the time.

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

I have one last question for you, Professor Pharand.

Earlier, you appeared to be receptive to the argument that Canada's claim could be tied to the occupation of the land since time immemorial and to efforts to scientifically prove the boundaries of the continental shelf. Now, some people are saying that in order to exercise full sovereignty, control over the land is needed. Experts have told us that if ships enter the Northwest Passage, we should think about boarding them, stopping them or intercepting them. Otherwise, we would be demonstrating that we occupy the territory and that the offshore continental shelf belongs to us, but that we do not control the territory.

Do you think these vessels should be boarded? How do we avoid a military operation? Is there some way of boarding a vessel other than by carrying out a military operation?

[Prof. Donat Pharand]

First of all, it is important to distinguish land territory, strictly speaking, from maritime territory. A reference to the waters of the Arctic archipelago, including the waters of the Northwest Passage, is a reference to maritime territory.

While the Inuit can claim that they have occupied the land territory since time immemorial, they cannot establish a similar claim in the case of the maritime territory.

In my humble opinion, as I have written—and the Canadian government does not fully agree with my position on this matter—Canada cannot establish historic title to the waters of the Arctic archipelago. However, we can establish our sovereignty on the basis of customary international law as interpreted by the court in 1951. As I said earlier, I am confident about that claim.

Not only can we invoke the fact that we have occupied the land territory, but we can also point to the fact the Canada's Inuit have used certain waters as if they were land territory to fish, hunt seal, and so forth, and that they have done so since time immemorial.

I think Canada can follow Norway's lead and invoke these facts to consolidate, but not establish, its sovereignty. Establishing sovereignty over waters is more difficult than establishing sovereignty over land. The same three things must be proven.

[The Chair, Conservative, Maxime Bernier]

Thank you, Professor Pharand.

I will now give the floor to Ms. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Are you going to turn the waters over to me as well?

[Some hon. members]

Oh, oh!

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman.

At our last meeting, the committee heard testimony that Canada does not have the capacity at this time to patrol the Northwest Passage effectively. Last week, EU parliamentarians from the NATO member countries stated their concerns over the need for NATO assets to assist in patrolling their allies' waters. So if we don't have the capacity as a nation to patrol the Northwest Passage and our territorial waters, they want to know if they're going to be required to help.

How would Canada's dependence on NATO for assistance and security affect Canada's sovereignty over our territorial seas, and how would it affect our chances for a larger portion of the continental shelf?

[Prof. Donat Pharand]

You're asking this of me?

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Yes, I am.

[Prof. Donat Pharand]

I have no idea. I have no idea whatever. I do not know anything about defence.

I do not know how we could possibly ask NATO to come in for this sort of thing. First of all, they're territorial waters. There's absolutely no question as to our sovereignty, subject only to the right of innocent passage. Insofar as the continental shelf is concerned, NATO would be in the way.

This has nothing to do with defence. I cannot answer your question. My answer is simply put: nothing.

Now, Mr. Chairman, if I could seize this opportunity, you talked about the Northwest Passage and you talked about control, etc.

[The Chair, Conservative, Maxime Bernier]

You're my professor, so go ahead.

[Prof. Donat Pharand]

You mentioned submarines and their detection. We have the responsibility when we claim full control over these waters to have full control over these passages throughout. We must be in a position to show full and effective control, and that includes of course the stopping of foreign ships. These are sovereign waters of Canada. Do you have our permission? If you say yes, okay, fine; now we inspect and see if you conform to the Arctic Waters Pollution Prevention Act and regulations of 1970.

One of the six measures I mention here is submarine detection. Normally, when you determine if a strait is an international one or not, and it makes all the difference in the world, you of course count only the transits of surface ships. However, I have to add that if you, as the coastal state, have reason to believe that you might have submarines using your waters, it might very well be held against you, and it might very well count as a foreign transit for which you did not ask permission. That is the reason why I have been suggesting for years that we should have submarine detection at both ends: Lancaster Sound and the McClure Strait and Amundsen Gulf. Here there's not much of a problem, because the submarine couldn't go far, but it's been proven that American submarines have been in the McClure Strait and Lancaster Sound, and we know about that, and that's fine. It's counted in the list of 69. I counted the foreign transits from 1905--Amundsen made the first trip in a fishing boat, from 1903 to 1905--to the end of 2005. In one hundred years, 69 crossings have taken place. That counts both ways, like in 1969, the Manhattan, a reinforced tanker, as a test made one way and then the other. I've counted that as two.

Since then, I have not the precise count, but we've had perhaps something like seven or eight tourist ships per year in the last two or three years. But this is certainly not enough to make the Northwest Passage an international strait or, as it is called in the convention, one used for international navigation. Relating to submarines, the difference is this: if it is an international strait, you have the new right, since the convention, called “transit passage”. It looks very innocent. It was fabricated by the U.K. delegation. It looks very innocent: transit. Transit passage means that as a foreign ship and a submarine, you do not even have to surface. The convention says right of passage in the normal mode of navigation. Well, the normal mode of navigation is under water. That is the big difficulty between the Americans and ourselves. They pretend that this is an international strait.

[The Chair, Conservative, Maxime Bernier]

Thank you, Professor.

Mr. Bagnell, you may proceed.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Mr. Pharand, I'm going to ask both my questions right at the beginning, so that I get them in.

The first question is on the dispute over the Beaufort Sea boundary and the line the Americans seek and the perpendicular line the Canadians seek. I want to know from you which you think has the stronger argument. That's my first question.

Second, if the other countries believe that the Northwest Passage is an international strait, why are they not flying their planes over it? I understand you can fly your planes over an international strait.

[Prof. Donat Pharand]

That's correct.

I'll take your second question first. Yes, transit passage means not only the right of navigation on and under water, but also the right of navigation over it as well. It means aircraft. You're absolutely right. I didn't mention that in my answer, but that is another dangerous component, as it were, of that new right of transit passage.

As for your first question, I would not dare.... I study that quite a bit. When we tried to settle the four maritime boundary problems about 20 years ago, I was called an academic in residence in foreign affairs, and I advised the government on these four maritime boundary problems. I wouldn't dare say that we are absolutely right and the United States is absolutely wrong. What is going to happen, I would dare say, is that if we go to the court, it's going to be a line somewhere in between, and if we don't go to the court and arrive at an amicable settlement, it will be somewhere in between.

What we are doing is using the 141st meridian. We say we have been using the continuation of the 141st meridian for quite a while. We say that our legal basis is therefore an historical use of a particular meridian of longitude.

The Americans have a better departing point. The Americans say that it is the median line. Well, this used to be, in the 1958 convention on the continental shelf, the rule. It is no longer the rule. Nevertheless, it is still considered an equitable factor, and because of the concavity of the coast here on the Canadian side, a median line beginning here goes about like this, on the inside.

The beauty of it is that perhaps--and I don't know--it might not be, as we progress, more of a disadvantage to Canada at all. Why? It's because, if you look at a modern geological map, lo and behold, the equidistance line goes like this, but then look at the archipelago: then the median line comes back and crosses the 141st, over to the American side, shall we say.

By the way, I don't think you could find a better description on the map than the last number of the National Geographic. From a legal point of view, I think you will find that chart very accurate.

As I say, I would not dare to answer your question or to make a guess. All I would say is that somehow we're going to compromise on the basis of a number of equitable factors, and I could make a list.

[The Chair, Conservative, Maxime Bernier]

Thank you, Professor Pharand.

I will now turn the floor over to Mr. Boughen.

Ray, it's your turn.