INUIT AND THE LAND CLAIMS AGREEMENT: SUPPORTING ’S

Terry Fenge

Although the ice-strengthened navy patrol vessels to be deployed from Ikpiarjuk on Baffin Island are an important component of Canada's Arctic sovereignty strategy, there is more than one way to skin a cat, says Terry Fenge, formerly with the Inuit Circumpolar Conference Canada. The federal government should involve the Inuit in Canada's Arctic sovereignty, as supported by provisions in the 1993 Nunavut Land Claims Agreement dealing with monitoring and offshore management, he says. Yet, these have not been implemented, and Ottawa seems to have forfeited the opportunity to use them to shore up sovereignty. “[E]ngaging the region’s Inuit with a view to jointly ensuring that the obligations, duties, and objectives of the Nunavut, Inuvialuit, Nunavik and Nunatsiavut Land Claims Agreement are fulfilled,” he says, is key to the Integrated Northern Strategy, promised in the recent Throne Speech.

Parmi les éléments clés de la souveraineté du Canada dans l’Arctique figure le déploiement dans cette région de navires à coque renforcée. Mais il y a plus d’une façon de parvenir à ses fins, estime Terry Fenge, ex-directeur de la recherche du Conseil circumpolaire inuit du Canada. Le gouvernement fédéral devrait ainsi intégrer les Inuits à la défense de notre souveraineté dans l’Arctique, d’autant plus que les dispositions touchant la surveillance et la gestion en mer de l’Accord sur les revendications territoriales du Nunavut de 1993 donnent corps à nos prétentions. Mais ces clauses n’ont toujours pas été mises en application, et Ottawa semble avoir renoncé à les utiliser à des fins d’affirmation de sa souveraineté. La participation active des Inuits « à l’application conjointe des obligations, devoirs et objectifs de l’Accord sur les revendications territoriales du Nunavut, de l’Inuvialuit, du Nunavik et du Nunatsiavut », est pourtant indispensable à la Stratégie intégrée pour le Nord promise dans le récent discours du Trône, conclut-il.

ho would have predicted as recently as 12 rime Minister Harper toured the three territories in sum- months ago that Arctic sovereignty would be P mer 2006 and again in summer 2007, delivering policy W the lead theme in the recent Speech from the speeches in which Arctic sovereignty featured prominently. Throne? But perhaps we should not be too surprised. Deploying newly promised ice-strengthened navy patrol Following the last federal election campaign Prime boats operating out of a yet-to-be-constructed deepwater Minister designate Stephen Harper pounced on comments by port at Arctic Bay to assert sovereignty was a natural fit for a David Wilkins, the US ambassador to Canada, reaffirming government that came to power with a mandate to rebuild Washington’s long-standing view that the and reinvest in the military. is an international strait through which international ship- It seems ironic, however, that current efforts to assert ping has the right of passage. Harper admonished the ambas- Arctic sovereignty are driven by melting sea ice opening the sador and the United States for failing to recognize Canada’s Northwest Passage. Until very recently, the Prime Minister was Arctic sovereignty, saying: “We have significant plans for in the camp of the climate change deniers. His government has national defence and for defence of our sovereignty, includ- yet to bring forward a policy on adaptation to the unavoidable ing Arctic sovereignty…It is the Canadian people we get our impacts of climate change. Nor does the Government of mandate from, not the ambassador from the United States.” Canada yet appreciate the opportunity to use the 1993

84 OPTIONS POLITIQUES DÉCEMBRE 2007-JANVIER 2008 Inuit and the Nunavut Land Claims Agreement: supporting Canada’s Arctic sovereignty

Nunavut Land Claims Agreement form from which to collect data to But this is simply wrong. Far from (NLCA) — the only modern treaty to support its own Arctic Ocean conti- being a wilderness unoccupied by peo- specifically mention Arctic sovereignty nental shelf submission. In response, ple, the Arctic is known, named and — to bolster Canada’s Arctic sovereignty. Rob Huebert of the University of used by Inuit — Canadian citizens — Canada has a tradition of asserting Calgary pithily commented, “If you’re and by a small but growing number of Arctic sovereignty primarily in reaction building a court case, do you depend arrivals from the south. Inuit trace to assumed and real challenges: The on the opposing side for the sources of their use of this region back thousands unwelcome voyages through the your argument?” of years through Thule, Dorset and Pre-Dorset peoples. Far from being a wilderness untrammeled by people, the Canadian Inuit and Arctic is known, named and used by Inuit — Canadian Canada’s Arctic sovereignty citizens — and by a small but growing number of arrivals have invariably been linked. In the 1950s Inuit from the south. Inuit trace their use of this region back families from northern thousands of years through Thule, Dorset and Pre-Dorset were relocated to peoples. Resolute on Cornwallis Island and Grise Fiord on Northwest Passage of SS Manhattan in Jacob Verhoef, the head of Canada’s Ellesmere Island. While the reasons for 1969 and 1970, and the US Coast Guard scientific data collection effort, warned this relocation have been hotly debat- icebreaker Polar Sea in 1985 readily that Canada’s submission, due by 2013, ed, sovereignty assertion is thought by come to mind. Promises made in the 10 years after Canada ratified UNCLOS, many to be one reason for the move. heat of sovereignty challenges to build might be lacking. It seemed that Canada In 1970 a Canadian Inuit hunter and a Polar Class 8 icebreaker and deploy a was now paying the price for failing to dog team from Resolute stood boldly subsurface surveillance system across build the Polar Class 8 icebreaker and for in front of SS Manhattan as it plowed the passage from Cornwallis Island to delays in starting data collection to sup- through pack ice on its historic voyage Somerset Island were abandoned as too port its claim. Had Canada thought — it stopped. A point had been made. expensive when the media and public ahead when, in the mid-1990s, decisions The Arctic Waters Pollution interest moved on to other issues. were taken to ratify UNCLOS at some Prevention Act — Canada’s prime In August 2007 two Russian mini- time in the future? Apparently not. response to the Manhattan incident — submarines planted a titanium Russian invoked the need to protect the envi- flag on the floor of the Arctic Ocean at enerally there has been a warm ronment upon which Inuit depended the , symbolically claiming G response in the North as well as out to 100 miles from the coast. In 1985 sovereignty over the seabed northward nationally to the Prime Minister’s Inuvialuit as well as Canadian national- of Russia’s 200-nautical-mile exclusive commitment to assert Canada’s Arctic ists from the south were on board a economic zone. Responding to vivid sovereignty, although what’s at stake is small plane that buzzed the Polar Sea images on the television, Peter MacKay, poorly understood, and some worry dropping politically charged notes from then minister of foreign affairs and that sovereignty assertion through the sky politely but firmly reminding international trade, dismissed this as navy patrol vessels signals the remilita- the crew of Canada’s Arctic sovereignty. “just a show.” Perhaps it was, but when rization of the North. In the aftermath of the Polar Sea inci- responding he confused two issues: Numerous commentators have dent the late Mark R. Gordon, an Inuit international shipping rights, if any, in pressed the to leader from northern Quebec, said Inuit the Northwest Passage, and extension modernize and expand Canada’s fleet would hold up the Canadian flag in the by rim states of their continental shelf of icebreakers and to use the coast Arctic. And still today Inuit leaders rights deep in the Arctic Ocean through guard rather than the navy for Arctic remain fully supportive of Canada’s a process defined in the United Nations sovereignty assertion. But it was the Arctic sovereignty. Mary Simon, Convention on the Law of the Sea Prime Minister himself who revealed President of Inuit Tapiriit Kanatami, the (UNCLOS). His over-the-top characteri- the reasoning as well as the intent of national Inuit organization, conducted zation of Russia’s action as reminiscent the Government of Canada in July a Canada-wide tour late in 2007 to of how states acted in the 15th century 2007 when he announced the Arctic engage and inform Canadians on Arctic was not balanced by an announcement patrol ships and deepwater port: sovereignty and to gain public support on an alternative Canadian approach. “Canada has a choice when it comes to for Inuit involvement in this issue. More embarrassment followed. It defending our sovereignty over the was revealed in The Globe and Mail in Arctic. We either use it or lose it. And he geographical extent of Inuit land August 2007 that Canada was relying make no mistake, this Government T and resource use in the Arctic has upon a Russian icebreaker as the plat- intends to use it.” been well known for many years. In 1973

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the Government of Canada announced in the baselines to be section 35 of the Constitution Act, 1982. the resumption of modern treaty negoti- over which Canada has full rights to Promises made in this agreement are ations with Aboriginal peoples whose regulate and potentially to exclude guaranteed in Canada’s constitution and right to land has not been extinguished shipping. The results of the Inuit enforceable in the courts. Through the by earlier treaties or superseded by law. Land Use and Occupancy Project pro- agreement Inuit ceded, released and sur- Inuit of the Northwest Territories were vided support for this legal move by rendered to their Aboriginal first in line. Before commencing negotia- helping Canada to claim historic title title, rights, claims and interests to lands and waters within Canada The President of Nunavut Tunngavik Incorporated (NTI), the and received in return a wide Inuit organization with the mandate to implement the NCLA, range of rights applicable throughout the Nunavut wrote a six-page letter to the Prime Minister in February 2006 Settlement Area, including suggesting how the agreement could be used to bolster wildlife harvesting and repre- Canada’s Arctic sovereignty and inviting the Government of sentation on institutions of Canada to use it for this purpose. Implementing the public government to man- age and regulate the use of environmental monitoring provisions (article 12) and land, water, oceans, wildlife establishing the Nunavut Marine Council (article 15) were and natural resources. The two suggestions. Government of Nunavut was established in 1999 as a tions the Government of Canada to the area. Lawyers from the result of a promise in the NCLA. demanded evidence of the extent, inten- Department of Justice knew all about The parties agreed to exchange sity and frequency of land and resource the Inuit Land Use and Occupancy Aboriginal title for defined rights and ben- use in order to define the area subject to Project. Speaking on the floor of the efits “in recognition of the contributions negotiation. This was duly provided in House of Commons in 1985, Joe of Inuit to Canada’s history, identity and the three-volume report of the Inuit Land Clark, Minister of External Relations, sovereignty in the Arctic.” Article 15 deal- Use and Occupancy Project, published in waxed eloquent: “Canada’s sovereign- ing with marine areas adds: “Canada’s sov- 1977 by the Minister of Supply and ty in the Arctic is indivisible. It ereignty over the waters of the Arctic Services Canada. embraces land, sea and ice. It extends Archipelago is supported by Inuit use and A classic in the field and still fre- without interruption to the seaward occupancy.” Inuit have negotiated four quently quoted, this study drew upon facing coasts of the Arctic Islands. comprehensive land claims agreements interviews with more than 80 percent of These islands are joined and not covering northern Quebec (1975), the Inuit hunters and definitively illustrated divided by the waters between them.” Beaufort Sea region (1984), Nunavut use and occupancy by Inuit in the Considerable and ongoing politi- (1993) and northern Labrador (2004). All Northwest Territories and a small portion cal support has been provided by Inuit support Canada’s Arctic sovereignty gener- of northern Yukon of 3.8 million square to Canada’s Arctic sovereignty over ally, but only the NCLA explicitly address- kilometres of land and ocean, used inter- many years. Many Canadian Inuit es Arctic sovereignty. changeably. For Inuit, sea ice is a plat- leaders are well known and well Implementation of this agreement form used for travel between respected internationally. Their voices is an ongoing expression of a negotiated communities and to favoured hunting carry moral weight that complements partnership between the Government sites, often at the floe edge. Separate stud- efforts by Canadian diplomats to per- of Canada and the Inuit of Nunavut and ies addressed Inuit land use and occupan- suade other countries to our view. could be an important component of a cy in northern Quebec and Labrador. The Notwithstanding, the Government of strategy to assert, affirm and express 1977 Inuit Land Use and Occupancy Canada has yet to effectively engage Canada’s Arctic sovereignty. But at pres- Project demonstrated Inuit use and occu- Inuit in Arctic sovereignty assertion ent this is not the case. pancy of Lancaster Sound and Barrow and by failing to fully implement the Strait — the eastern end of the Northwest Nunavut Land Claims Agreement is he President of Nunavut Tunngavik Passage — the very area characterized by forsaking a potential trump card in T Incorporated (NTI), the Inuit organ- the United States and some European this complex international game ization with the mandate to implement countries as an international strait. the NCLA, wrote a six-page letter to the In response to the Polar Sea voy- ollowing more than 20 years of Prime Minister in February 2006 suggest- age, Canada drew straight baselines F negotiation, the Inuit of Nunavut ing how the agreement could be used to from the outer edge of the coast and and Her Majesty the Queen in Right of bolster Canada’s Arctic sovereignty and fringing islands enclosing the Arctic Canada ratified in 1993 the NCLA — a inviting the Government of Canada to Archipelago and declared waters with- modern treaty within the meaning of use it for this purpose. Implementing the

86 OPTIONS POLITIQUES DÉCEMBRE 2007-JANVIER 2008 Inuit and the Nunavut Land Claims Agreement: supporting Canada’s Arctic sovereignty

Courtesy of Nunavut Tunngavik Inc. Paul Quassa, President of the Tungavik Federation of Nunavut, and Prime Minister Brian Mulroney sign the Nunavut Land Claims Agreement in Iqaluit in 1993. According to Terry Fenge, implementation of this agreement “could be an important component of a strategy to assert, affirm and express Canada’s Arctic sovereignty.” environmental monitoring provisions nous environmental and resource man- support this contention. In 2003 all (article 12) and establishing the Nunavut agement provisions, and using it to modern treaty organizations represent- Marine Council (article 15) were two “encourage self-reliance and the cultural ing Aboriginal peoples in northern suggestions. and social well-being of Inuit” as speci- British Columbia, Yukon, Northwest Since the nightmare of many fied in the preamble would illustrate to Territories, Nunavut, northern Quebec Inuit is to see a rusty, convenience- all that Nunavut and the Inuit of and Labrador formed a coalition to per- flagged, single-hulled, inadequately Nunavut are part and parcel of Canada, suade the Government of Canada to crewed oil tanker laboriously navigat- and give substance and on-the-ground adopt a policy to live up to its modern ing the Northwest Passage, full meaning to Joe Clark’s stirring words on treaty obligations. Canadian sovereignty and jurisdic- the floor of the House of Commons in With implementation problems tion over the waters of the Canadian the aftermath of the Polar Sea incident. mounting, NTI took the unprecedent- Arctic Archipelago and full imple- The Prime Minister did not reply, ed step in December 2006 of launching mentation of the Nunavut Land and the obvious sovereignty- a court case to force the Government of Claims Agreement would go a long supporting provisions of the agreement Canada to live up to its many responsi- way to reassuring Inuit that the most remain unimplemented. All Aboriginal bilities in the NCLA. While the stringent environmental and safety peoples with modern treaties report grounds of complaint in the statement procedures will be applied to shipping that the Government of Canada fails to of claim are many and varied (see in the Northwest Passage, which is carry out various treaty obligations. www.tunngavik.com), they include projected to significantly increase in Evaluations by the Auditor General of articles that, if implemented, would years ahead. Canada into implementation of the effectively support Canada’s con- Arguably, implementing the agree- Gwich’in, Nunavut and Inuvialuit tention that the waters of the Arctic ment in total, particularly its volumi- comprehensive land claims agreements Archipelago are internal to Canada.

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We seem now to be in a bizarre sit- dards and regulations for shipping many countries, to bolster and uation. NTI is in court attempting to and environmental management express their Arctic sovereignty; force the Government of Canada to conform to what Canada regards and carry through with the com- implement the NCLA, including arti- as desirable for the regulation of mitment in the Speech from the cles that support Canada’s Arctic sover- Arctic waters. Throne to construct a world-class eignty — a political priority of the Nobody suggests that the object of research station in the Arctic open Prime Minister and his government — Canada’s Arctic sovereignty should be to researchers from around the yet the Crown’s statement of defence to wall off the region and prevent or globe as a legacy of the current denies NTI’s statement of claim and exclude access by others. Rather, the International Polar Year; and effectively ignores or perhaps even for- opposite is the case. We should ● Incorporate the above points in the feits the opportunity to use the agree- encourage and welcome others into Integrated Northern Strategy prom- ment for sovereignty support our portion of the Arctic and ensure ised in the Speech from the Throne. purposes. What does this situation that they acknowledge and operate here is little doubt that We seem now to be in a bizarre situation. NTI is in court T the circumpolar Arctic attempting to force the Government of Canada to implement is on the cusp of very signif- the NCLA, including articles that support Canada’s Arctic icant economic, social and environmental change. In sovereignty — a political priority of the Prime Minister and his response, and in partner- government — yet the Crown’s statement of defence denies ship with Inuit, other NTI’s statement of claim and effectively ignores or perhaps northerners and their gov- even forfeits the opportunity to use the agreement for ernments, the Government of Canada should seek glob- sovereignty support purposes. al acceptance of Canada’s look like to diplomats in the US under Canadian rules and regulations. Arctic sovereignty, significant national Department of State or the European So, within the context of McRae’s gen- rights in the offshore northward of our Union who continue to question eral advice, I add the following specif- exclusive economic zone and a legally Canada’s Arctic sovereignty? ic recommendations to the binding treaty between Arctic states to Government of Canada: protect this fragile and vulnerable rime Minister Harper deserves ● Effectively engage the region’s Inuit region by ensuring that principles of P applause for his attention to the with a view to jointly ensuring that environmental and social sustainabili- Arctic and focus on sovereignty. While the obligations, duties and objec- ty lie at the heart of future industrial past legal pronouncements and cur- tives of the Nunavut, Inuvialuit, development. rent plans to deploy the military in the Nunavik and Nunatsiavut land As change unfolds in this no- Arctic should be part of Canada’s claims agreements are fulfilled; longer-peripheral region, let us remem- Arctic sovereignty strategy, they ● Work with the Government of ber that Canada claims sovereignty should not be the whole strategy. Nunavut to devolve to it authority over a significant portion of the Arctic What else should we do? Don McRae to manage and regulate use of for a national purpose. It is time to jet- of the University of Ottawa, a member internal waters; tison our treatment of the Arctic as a of the UN’s International Law ● Expand and renew the 2000 North- boutique, “add-on” issue and to bring Commission, suggests Canada should: ern Dimension of Canada’s Foreign Arctic considerations into the heart of ● uphold its position that the waters Policy initiative as a platform from our domestic and foreign policy. of the Northwest Passage are the which to engage the United States, internal waters of Canada by Russia, Norway and Denmark/ Terry Fenge is an Ottawa-based consult- defending any legal challenge and in the circumpolar Arc- ant specializing in environmental, seizing opportunities to negotiate tic with a view to promoting a Aboriginal and northern issues. From acceptance of our position if there long-term, legally binding Arctic 1985 to 1993 he was director of research is a reasonable chance of success; environmental management agree- and a senior negotiator for the Tunngavik ● act seriously and be seen to be ment for the period following reso- Federation of Nunavut, the Inuit organi- taking seriously our claim that lution through UNCLOS of seabed zation that negotiated the Nunavut Land the waters of the Arctic Archipel- claims by Arctic Ocean rim states; Claims Agreement; and from 1996 to ago are the internal waters of ● Draw a lesson from the Norwe- 2006 he was first director of research of Canada; and gians who have constructed the Inuit Circumpolar Conference (ICC) ● work internationally to ensure research facilities on the Svalbard Canada and then strategic counsel to the that internationally accepted stan- Islands, used by researchers from chair of ICC.

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