The Historical and Legal Background of Canada's Arctic Claims
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THE HISTORICAL AND LEGAL BACKGROUND OF CANADA’S ARCTIC CLAIMS ii © The estate of Gordon W. Smith, 2016 Centre on Foreign Policy and Federalism St. Jerome’s University 290 Westmount Road N. Waterloo, ON, N2L 3G3 www.sju.ca/cfpf All rights reserved. This ebook may not be reproduced without prior written consent of the copyright holder. LIBRARY AND ARCHIVES CANADA CATALOGUING IN PUBLICATION Smith, Gordon W., 1918-2000, author The Historical and Legal Background of Canada’s Arctic Claims ; foreword by P. Whitney Lackenbauer (Centre on Foreign Policy and Federalism Monograph Series ; no.1) Issued in electronic format. ISBN: 978-0-9684896-2-8 (pdf) 1. Canada, Northern—International status—History. 2. Jurisdiction, Territorial— Canada, Northern—History. 3. Sovereignty—History. 4. Canada, Northern— History. 5. Canada—Foreign relations—1867-1918. 6. Canada—Foreign relations—1918-1945. I. Lackenbauer, P. Whitney, editor II. Centre on Foreign Policy and Federalism, issuing body III. Title. IV. Series: Centre on Foreign Policy and Federalism Monograph Series ; no.1 Page designer and typesetting by P. Whitney Lackenbauer Cover design by Daniel Heidt Distributed by the Centre on Foreign Policy and Federalism Please consider the environment before printing this e-book THE HISTORICAL AND LEGAL BACKGROUND OF CANADA’S ARCTIC CLAIMS Gordon W. Smith Foreword by P. Whitney Lackenbauer Centre on Foreign Policy and Federalism Monograph Series 2016 iv Dr. Gordon W. Smith (1918-2000) Foreword FOREWORD Dr. Gordon W. Smith (1918-2000) dedicated most of his working life to the study of Arctic sovereignty issues. Born in Alberta in 1918, Gordon excelled in school and became “enthralled” with the history of Arctic exploration. After high school he worked as a teacher and principal in several rural Alberta schools. When his effort to enlist in the Second World War was thwarted by poor eyesight, he went to the University of Alberta and joined the Canadian Officers Training Program. He earned his Bachelor of Arts degree as a history major in 1944 and subsequently served as a lieutenant at a Prisoner of War Camp in Lethbridge, Alberta until the war ended. He returned to the U of A after the war and earned a Master’s degree in history in 1948. He then continued his studies at Columbia University in New York under the supervision of John Bartlett Brebner, who secured Gordon access to the Explorers’ Club where he met Arctic experts such as Vilhjalmer Stefansson (who granted the doctoral student use of his personal library).1 At Columbia, in 1952, Dr. Smith obtained his PhD degree in British History with his thesis “The Historical and Legal Background of Canada’s Arctic Claims.” This pioneering study, which the preeminent legal scholar of Canada’s Arctic sovereignty, Donat Pharand, described as a “masterpiece of research,”2 remains a foundational work on the subject. The decision to publish Dr. Smith’s doctoral thesis complements a larger project to edit and publish his unpublished opus—a manuscript on “A Historical and Legal Study of Sovereignty in the Canadian North and Related Law of the Sea Problems,” written over three decades but incomplete at the time of his death in 2000.3 The first volume on Terrestrial Sovereignty, 1870-1939, drafted by Smith in 1973 and published by the University of Calgary Press in 2014, offers a thoroughly documented analysis of the post-Confederation history of Canada's sovereignty claims from the original transfers of the northern territories in 1870 and 1880 through to the start of the Second World War.4 While some of the material in 1 Tom W. Smith and Nell Smith, “Foreword” to Gordon W. Smith, A Historical and Legal Study of Sovereignty in the Canadian North, 1870-1942, ed. P. Whitney Lackenbauer (Calgary: University of Calgary Press, 2014), vii-viii. 2 Donat Pharand, “In Memoriam: Gordon W. Smith (1918-2000),” in Canadian Yearbook of International Law 39 (2001), ed. D.M. McCrae (Vancouver: UBC Press, 2002), 433. 3 See also Jeannette Tramhel, “Gordon W. Smith: A Historical and Legal Study of Sovereignty in the Canadian North and Related Law of the Sea Problems” in Canadian Yearbook of International Law 39 (2001), ed. D.M. McCrae (Vancouver: UBC Press, 2002): 435-40. 4 Topics include the administrative formation and delineation of the northern territories through to other activities including government expeditions to northern waters, foreign whaling, the Alaska boundary dispute, northern exploration between 1870 and 1918, the i Lackenbauer Smith’s later manuscript overlaps with his 1952 thesis, this earlier work provides a more extensive background that situates his thinking and research in pre- Confederation contexts and also provides a pioneering legal appraisal of Canadian efforts to establish its sovereignty over the north polar region—efforts, he noted, that “although fairly extensive in scope and of considerable interest” had “gone largely unnoticed” to scholars up to the time he wrote.5 In the first part of this study, Smith furnishes general overviews of the physical, ethnological, and strategic contexts of the Canadian North that offer a snapshot of prevailing conditions and assumptions in 1952. While these general overviews are reflective of their times in both language and the (relatively limited) scholarly and government knowledge that they mobilize, they provide scholars with insight into the state of Arctic affairs as they were perceived in the decade immediately after the Second World War.6 The second part looks at patterns of discovery and exploration, from the Norse at the end of the first millennium C.E. through to the search for Sir John Franklin’s ill-fated expedition. From Martin Frobisher’s voyage in 1576 through to the mid-nineteenth century, Smith charts how British explorers extended geographical knowledge of the region and made “indefinite” territorial claims on behalf of Great Britain. “As a result of these activities,” Smith observes, “Great Britain came to regard herself as sovereign throughout this vast region, or at least in the known parts of it; but to what extent this assumption was justified has never actually been determined.” Accordingly, he makes the case that the record of discovery had a “predominantly British and Canadian character.” The third part of Smith’s dissertation examines patterns of government and administration of the region. He begins with the Hudson’s Bay Company, which interpreted its 1670 Charter over Rupert’s Land to include all of the lands which drained into Hudson Bay and Hudson Strait. New France, the Northwest Company, and eventually the Canadian government contested this control, and the HBC’s “administrative activities were no more than was necessary to keep the fur trade going” until it sold its rights to the young Dominion of Canada in 1869-70. background of Canada's sector claim, the question concerning Danish sovereignty over Greenland and its relation to Canadian interests, the Ellesmere Island affair, the activities of American explorers in the Canadian North, the Eastern Arctic Patrol, and the Eastern Greenland case and its implications for Canada. 5 For official perspectives on these questions in the first half of the twentieth century, see Peter Kikkert and P. Whitney Lackenbauer, eds., Legal Appraisals of Canada’s Arctic Sovereignty: Key Documents, 1904-58, Documents on Canadian Arctic Sovereignty and Security (DCASS) No. 2 (Calgary and Waterloo: Centre for Military and Strategic Studies/Centre on Foreign Policy and Federalism, 2014) and Janice Cavell, ed., Documents on Canadian External Relations: The Arctic, 1874-1949 (Ottawa: Global Affairs Canada, 2016). 6 On this pivotal period, see Shelagh Grant, Sovereignty or Security? Government Policy in the Canadian North, 1936-1950 (Vancouver: University of British Columbia Press, 1988). ii Foreword Smith then documents why the British transferred their North American Arctic territories to Canada in 1880, leaving lingering questions about the extent of the territories and the “quality of the title” transferred.7 He follows with chapters on the organization and delimitation of the Northwest Territories after 1895, Canadian government expeditions to “bring the entire [Arctic] archipelago under its control” in the first half of the twentieth century, and the Royal Canadian Mounted Police’s activities to “exercise general supervisory control” throughout Canada’s Arctic. While Smith develops his research on these themes more fully in his 1972 study, the chapters in his thesis build a concise case “to show that this administration, although of comparatively recent origin and possibly defective in some respects, is as comprehensive as can reasonably be expected under the circumstances, is steadily becoming more thorough, and consequently is sufficient to justify Canadian claims of sovereignty over the archipelago.” The fourth and final section, which Dr. Smith considered the most significant, looks at problems of international relations and international law that applied to the Canadian Arctic. The increasingly “diverse” character of exploration in the late nineteenth and early twentieth centuries meant that American, Norwegian and Danish explorers were active in the Arctic Archipelago, leading to various “foreign territorial claims” to parts of Baffin, Ellesmere, and the Sverdrup Islands. Accordingly, he provides an overview of other nations’ claims and interests in the region in chapter 14, concluding that “no other nation has ever had, or could have at the present time, any legitimate claim in the Canadian Arctic.” Smith explains how Norway formally acknowledged Canadian sovereignty in 1930 and how “any Danish and American claim, such as they may have been, have either been terminated by formal or informal agreement, or if not, have been allowed to perish through silent acquiescence and by dereliction.” After providing an overview of Canada’s ambiguous, abortive and ultimately abandoned claim to Wrangel Island off the coast of Russia in 1924, he notes that: There is no question that Canada’s proximity to Russia in the Arctic will be of the utmost importance, in the future, either in peace or war.