The rapidly changing climate in the Arctic is opening up the possibility of exploiting the natural resources contained in the Arctic Ocean seabed. Arctic and non-Arctic States are angling to gain control over these resources that were previously locked below the sea ice. What cannot be forgotten in the focus on State sovereignty over the Arctic are the rights of the Indigenous peoples who have lived in the Arctic, including the ice covered Arctic Ocean, long before the rest of the world turned its attention north.
Inuit Rights to the Arctic Ocean
Over the last five years, Senator Charlie Watt has been drawing attention to the rights of Inuit to Arctic Ocean areas of their homeland, called Inuit Nunaat, focusing on the parts of the territory that cover the Arctic Ocean. What cannot be forgotten in the focus on State sovereignty over the Arctic are the rights of the Indigenous peoples who have lived in the Arctic, including the ice covered Arctic Ocean, long before the rest of the world turned its attention north. Inuit Nunaat includes lands in Canada, the United States (Alaska), Denmark (Greenland) and Russia. Importantly, it also covers large portions of the Arctic Ocean and some northern areas of the Atlantic Ocean, the exact areas where the world is now turning its attention. Until recently, much of the Arctic Ocean within Inuit Nunaat was covered by ice for most, if not all, of the year. This has made it possible for Inuit to live on and use the frozen ocean waters as part of their territory. Ice-based territory is unique to Indigenous peoples of the Arctic. Unlike anywhere else in the world, these areas of the ocean have supported human populations and are a vital part of Arctic Indigenous peoples’ homelands.
International and Canadian law provide support for Inuit having territorial rights over Arctic waters, ice, as well as the resources that lie above and below the ice. As Indigenous peoples, Inuit rights to Inuit Nunaat are affirmed in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) which provides that Indigenous peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied or otherwise used or acquired. International and Canadian law provide support for Inuit having territorial rights over Arctic waters, ice, as well as the resources that lie above and below the ice. The Declaration also requires States and international bodies to respect and protect Indigenous peoples’ right to their territories. While it is true that the Declaration is not an international treaty binding on States, the reality is that these rights and the corresponding obligations on States have been upheld by international tribunals, including the Inter-American human rights system. Many of the rights have the status of binding customary law. Further, Canadian law provides constitutional protection to Indigenous peoples’ rights to their territories through section 35 of the Constitution Act, 1982. In Canada, the same principles that apply to finding Aboriginal title to land could equally apply to establishing Aboriginal title to ocean or sea areas. Since 1973, the Supreme Court of Canada has confirmed that Aboriginal peoples hold Aboriginal title to their lands, based on their occupation and governance. The courts have specifically affirmed that Inuit hold Aboriginal title to their territories in Canada.
It is also increasingly recognized in Canadian and international law that portions of an ocean or sea can be included as part of Indigenous peoples’ territories. The Declaration affirms that Indigenous peoples have the right to maintain and strengthen their spiritual relationship with their waters and coastal seas and other resources. In Canada, the same principles that apply to finding Aboriginal title to land could equally apply to establishing Aboriginal title to ocean or sea areas.
Within Canada, large areas of Inuit Nunaat are covered by treaties between Canada and Inuit, including the land claims agreements. Within the areas covered by the treaties, Inuit have consented to transfer their Aboriginal title to Canada. In entering treaties with Inuit, Canada recognized that Inuit had rights to the Arctic lands and waters covered by the treaties. Many Inuit view the land claim agreements and other treaties as agreements to share their territories, rather than a full extinguishment of their Aboriginal title within these areas. The treaties cover not just land, but also areas of the ocean. For instance, the Labrador Inuit Land Claims Agreement protects Inuit rights to 18,800 square miles of tidal waters and an area of the seabed within the treaty area. In entering treaties with Inuit, Canada recognized that Inuit had rights to the Arctic lands and waters covered by the treaties. They create an on-going treaty relationship between Inuit and Canada and set up co-management regimes for the treaty areas. Importantly, they established a treaty partnership between Canada and Inuit that has the potential to be mutually beneficial.
Other areas of Inuit Nunaat, including areas within Canada as well as areas beyond the reach of any State, are not covered by treaties. Inuit have title to these areas, unless they have otherwise agreed to share or transfer it to Canada or another State. Some of these areas include large portions of the Arctic Ocean that are now being claimed by Canada and the Arctic Coastal States as part of their continental shelf claim.
Establishing State Sovereignty over the Arctic Ocean Continental Shelf
The rights of Inuit have been largely ignored by Canada and the other Arctic coastal States as they attempt to establish their sovereignty over large portions of the Arctic Ocean seabed through the law of the sea and the process set up under the United Nations Convention on the Law of the Sea (UNCLOS).
Canada, Russia, Denmark, United States, and Norway, known as the five Arctic Coastal States, are the States are all claiming sovereignty over large areas of the Arctic Ocean seabed. In 2008, they agreed to use the law of the sea to determine the extent of each of their boundaries within the Arctic Ocean, in what is known as the Ilulissat Declaration. This is to their advantage, as under UNCLOS, a coastal State has automatic sovereignty over the natural resources contained in the seabed from the shore to a distance of at least 200 nautical miles (nm) or, if the continental shelf extends beyond 200 nm, to the outer limit of the “extended continental shelf”.
The UNCLOS rules for how to calculate the outer limit of the extended continental shelf are fairly complex. They require that a State determine the extent of its continental shelf by looking at both the topography and geology of the seabed floor. Inuit rights to the Arctic Ocean ice challenges the sovereign claims of five Arctic Coastal states as well as other States trying gain access to the resources in the Arctic Ocean. Only the relatively shallow areas of the continental shelf are within the coastal State’s sovereignty. UNCLOS imposes a limit on the outer boundary of the extended continental shelf, specifying that it cannot extend beyond the greater distance of either 350 nm from shore or 100nm beyond where the continental shelf dips below 2,500m.
To ensure that the rules are properly applied and that States do not claim more than they are entitled to, any State that has signed on to UNCLOS must submit its claim to the extended continental shelf to the Commission on the Limits of the Continental Shelf (the Commission). This technical body’s role is to verify if the coastal State’s claim is in conformity with the technical requirement of UNCLOS.
Many of the Arctic coastal states have made submissions to the Commission. Russia made one in 2001, but in 2002 the Commission recommended it collect more data to support the area it claimed. Norway made its submission in 2006 and Denmark made its submission in 2014. The United States cannot make a submission to the Commission, as it is not currently a signatory to UNCLOS, but it is nevertheless collecting data on the extent of its continental shelf.
Canada was required to make its submission to the Commission in 2013, but delayed handing over information regarding its Arctic continental shelf. Its Partial Submission, made on December 6, 2013, provided to the Commission within the time limit imposed by UNCLOS, covers only the Atlantic Ocean continental shelf claim. (No claim will be made for an extended continental shelf in the Pacific Ocean). At the time, then Minister Baird indicated that a delay was required to allow for additional work to ensure that, when it is submitted, Canada’s claim to the Arctic continental shelf would include the North Pole. This delay has also given Canada the opportunity to assess Denmark’s 2014 claim without revealing its hand, although this advantage was gained at the risk of annoying the international community – and in particular the Arctic coastal States – by not playing by the rules.
Recognizing Inuit Rights to the Arctic Ocean
Inuit rights to the Arctic Ocean ice challenges the sovereign claims of five Arctic Coastal states as well as other States trying gain access to the resources in the Arctic Ocean. International and domestic law supports Indigenous peoples’ rights to their territory and could be used to argue that Inuit rights to the Arctic Ocean ice are just as strong as their rights to their land-based territory. For both Canada and Inuit, the treaties ensure that Canada and Inuit both have a role to play in the governance of the Canadian Arctic. In addition, under the law of the sea and UNCLOS, a State’s right to the continental shelf is based upon recognized sovereignty over the coast. However, in Canada, the northern coast is covered by either Aboriginal title or treaties.
Arguably, Canada’s right to the extended continental shelf is completely tied to the rights it gained through the treaties with Inuit. Under this view, it is its treaty-partnership with Inuit that solidifies Canada’s sovereignty over these portions of the Arctic relative to the other Arctic States, by basing its sovereignty on Inuit’s historic use and occupation of these areas of their homeland. For both Canada and Inuit, the treaties ensure that Canada and Inuit both have a role to play in the governance of the Canadian Arctic. As a result, Canada should be engaging in in-depth consultations with its Inuit treaty partners over its claims to the Arctic Ocean seabed. Canada is required to engage with Inuit as partners in Arctic sovereignty issues, ensuring Inuit are fully informed and are given the opportunity to meaningfully participate in the decision-making that affects their rights.