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Legal Appraisals of Canada's Arctic Sovereignty

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Legal Appraisals of Canada's Arctic Sovereignty Documents on Canadian Arctic Sovereignty and Security LEGAL APPRAISALS OF CANADA’S ARCTIC SOVEREIGNTY: KEY DOCUMENTS, 1905-56 Peter Kikkert and P. Whitney Lackenbauer Documents on Canadian Arctic Sovereignty and Security (DCASS) ISSN 2368-4569 Series Editors: P. Whitney Lackenbauer Adam Lajeunesse Managing Editor: Ryan Dean Legal Appraisals of Canada’s Arctic Sovereignty: Key Documents, 1905-56 Peter Kikkert and P. Whitney Lackenbauer DCASS Number 2, 2014 Cover: Map from Laurence Collier, Memorandum Respecting Territorial Claims in the Arctic to 1930, 10 February 1930, National Archives of Australia, A981, ARC 1, Arctic, British Interests Centre for Military and Strategic Studies Centre on Foreign Policy and Federalism University of Calgary St. Jerome’s University 2500 University Dr. N.W. 290 Westmount Road N. Calgary, AB T2N 1N4 Waterloo, ON N2L 3G3 Tel: 403.220.4030 Tel: 519.884.8110 ext. 28233 www.cmss.ucalgary.ca www.sju.ca/cfpf Copyright © the authors/editors, 2014 Permission policies are outlined on our website http://cmss.ucalgary.ca/research/arctic-document-series Legal Appraisals of Canada’s Arctic Sovereignty: Key Documents, 1905-1956 Peter Kikkert, M.A. and P. Whitney Lackenbauer, Ph.D. Contents Introduction: Legal Appraisals of Canada’s Arctic Sovereignty, 1905-1956 ............... vi International Law and the Acquisition of Territory: A Complicated History ... xi The Documents: Appraising Canada’s Sovereignty in the Arctic ................... xxi 1. Memorandum, W.F. King, Chief Astronomer, to Hon. Clifford Sifton, Minister of the Interior, Report upon the Title of Canada to the Islands North of the Mainland of Canada, 23 January 1904 ..................................................................... 1 2. Memorandum from L.C. Christie, Legal Adviser, to Prime Minister, Ottawa, Exploration and Occupation of the Northern Arctic Islands, 28 October 1920 ........ 8 3. Memorandum, J.B. Harkin to W.W. Cory, Deputy Minister, Department of the Interior, 7 April 1921 [excerpt] .............................................................................. 12 4. H.R. Holmden to A.G. Doughty, Memo re the Arctic Islands, 26 April 1921 .... 13 5. James White, Technical Adviser, to O.D. Skelton, Under Secretary of State for External Affairs, Memorandum Respecting MacMillan Expedition to the Canadian Arctic, 25 May 1925 (with corrections dated 29 May 1925) ................................... 47 6. Governor General Byng to His Excellency, The Right Honourable Sir Esme Howard, 4 June 1925............................................................................................. 56 7. Governor General Lord Byng to British Chargé d'Affaires in United States, Telegram 73A, 12 June 1925 ................................................................................. 65 8. Charles Cheney Hyde, Office of the Solicitor, to the Secretary of State, 18 June 1925 ...................................................................................................................... 67 9. Irving N. Linnell, Canada’s Territorial Claims in Arctic Ocean, Department of State, Division of Western European Affairs, 13 July 1925 ..................................... 69 10. Suggested Draft Note to the British Embassy, Department of State, Division of Western European Affairs, 16 September 1925 ...................................................... 71 11. Department of State, Division of Western European Affairs, Territorial Sovereignty in the Polar Regions, 6 August 1926 ................................................... 72 12. Hydrographic Department, Admiralty, Notes on the Governor-General’s Despatch to Washington, No. 104 of June 4th 1925.............................................. 92 13. Rough Draft, Annexation of Territories in the Polar Region: Memorandum Prepared for the Committee of Foreign Policy and Defence by the Admiralty, 1926 [Excerpts] ............................................................................................................... 93 ii 14. Document A: To Be Circulated to Members of Antarctic Committee at Imperial Conference, Prepared by Dominions Office [Excerpts] .......................................... 99 15. Document B: Confidential Document for Use of His Majesty’s Government, Prepared by Dominions Office, 1926 [Excerpts] .................................................. 103 16. Admiralty Remarks on Dominion Office Draft, Memoranda A and B, 1926 .. 107 17. General Staff [Lieutenant-Colonel H.D.G. Crerar], Department of National Defence, Canadian Political Rights in the Arctic, 28 January 1930 ....................... 109 18. Laurence Collier, Memorandum Respecting Territorial Claims in the Arctic to 1930, 10 February 1930 ....................................................................................... 119 19. Note to File, Ellesmere, 14 November 1930 ................................................... 139 20. S.W. Boggs, Department of State, Office of the Historical Adviser, The Polar Regions: Geographical and Historical Data in a Study of Claims to Sovereignty in the Arctic and Antarctic Regions, 21 September 1933 [Excerpts] ............................... 142 21. T.L. Cory, compiled for the Northwest Territories Council, British Sovereignty in the Arctic, 3 June 1936 .................................................................................... 150 22. Under Secretary of State for External Affairs to the Deputy Minister of Transport, 4 May 1946 ........................................................................................ 212 23. Memorandum from Head, Third Political Division, to Legal Division, Sovereignty in the Arctic, 6-8 May 1946 .............................................................. 214 24. Memorandum from Head, Third Political Division, to Associate Under-Secretary of State for External Affairs, [c. 6-8 May 1946] .................................................... 216 25. Ambassador in United States, Washington, to Acting Under-Secretary of State for External Affairs, 5 June 1946 ............................................................................... 222 26. Memorandum from Associate Under-Secretary of State for External Affairs to Secretary to the Cabinet, 24 June 1946 ................................................................ 224 27. James H. Brewster, Report on the Arctic, Atlantic Division Air Transport Command, Headquarters, Atlantic-Division Air Transport Command, Report on the Arctic, 1946 [Excerpts] ........................................................................................ 225 28. Department of State, Polar Regions, Policy and Information Statement, 1 July 1946 [Excerpts] .................................................................................................... 243 29. Office of the PC/S Intelligence, US Army Air Force (USAAF), Problems of Canadian-United States Cooperation in the Arctic, 29 October 1946 .................. 247 30. E.R. Hopkins, Legal Adviser for External Affairs, Legal Aspects of Sovereignty in the Canadian Arctic, 22 January 1949 .................................................................. 257 iii 31. Vincent C. Macdonald, Canadian Sovereignty in the Arctic, March 1950 ...... 280 32. Department of State, Policy Statement: Polar Regions, 1 July 1951 ................ 314 33. K.J. Burbridge, Legal Division to Acting Undersecretary, External Affairs, 23 February 1954...................................................................................................... 316 34. External Affairs, The Sector Theory and Floating Ice Islands in the Arctic, 30 August 1954 ........................................................................................................ 318 35. Foreign Service Despatch, U.S. Embassy, Ottawa, to the Department of State, Washington, Canadian Sovereignty in the Arctic Archipelago by Jean R. Tartter, Third Secretary, 10 March 1955 .......................................................................... 323 36. Jean R. Tartter, Third Secretary of Embassy to the Department of State, Canadian Territorial Claims in the Arctic, 3 May 1955 ........................................ 332 37. Canadian Sovereignty in the Arctic, 15 August 1956 ...................................... 336 iv v Introduction: Legal Appraisals of Canada’s Arctic Sovereignty, 1905-1956 In his landmark study on territorial acquisition, legal scholar Robert Jennings noted that “the mission and purpose of traditional international law has been the delimitation of the exercise of sovereign power on a territorial basis.”1 Since Columbus set sail in 1492, popes, jurists and empires had constructed a wide array of legal arguments to justify Europe’s territorial aggrandizement and seizure of land often occupied by Indigenous Peoples, most notably the doctrines of discovery, cession, occupation and conquest. While there was “remarkable stability in these doctrines,” legal historian Andrew Fitzmaurice suggests, “they were subjected to ceaseless reinterpretation.”2 As states and jurists adjusted the law of nations to suit a wide range of legal and political circumstances, no clear formula for territorial acquisition emerged. When Canada’s chief astronomer Dr. Frederick William King started to research and write the first legal appraisal ever produced on Canada’s Arctic sovereignty in 1904 (Document 1 in this collection) he did so at the “zenith of European jurisprudence,” when international law formulated by European states and jurists spread throughout the world.3 Despite the growing professionalism and enthusiasm
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