1

Managing Shipping in

Canadian Arctic Waters: Progress, issues and ongoing concerns

Aldo ChircopDalhousie UniversityHalifax, Canada

Prepared for the CIL public lecture, 2 March 2017. The presenter is grateful to NUS-CIL for enabling this presentation. The views expressed are strictly those of the presenter.

Outline

1. Introduction

2. Navigating Canadian Arctic waters

3. International polar maritime law

4. Canadian polar shipping regulation

5. The management of navigation

6. Protecting Indigenous interests

7. Polynyas: Inuit uses and shipping interactions

8. Conclusion

2

1. Introduction 3

Source:

National Atlas

of Canada,

2015

4

• Navigation is during the summer season (3 months).

• Variable and evolving conditions: open waters, ice-

covered, ice floes, multi-year ice, packing (ice

charts/bulletins issued regularly during season).

• Passage may need icebreaker.

• Variable weather: from clear conditions to reduced

visibility (fog, snow).

• Ice-build-up due to freezing rain, sea spray, snow.

• Poor charts: barely 10% of Canadian Arctic waters

have been surveyed to modern standards.

• Remote areas: little infrastructure to support ships in

transit (e.g., navigation aids, ports & repair facilities,

search and rescue, salvage, pollution response).

2. Navigating Canadian Arctic waters

Source: Natural

Resources Canada,

2016

5

Northwest

Passages in the

Canadian ArcticSource: Wilson et al.,

2004

Dangers of polar navigation are real 7

Hanseatic, 1996

Source: TSB Report M96H0016

Clipper Adventurer, 2010

Source: nunatsiaqonline, 2017

Iridium mobile satellite system

included in Global Maritime

Distress and Safety System,

2013

STCW Amendments (training for

Arctic seafarers), 2010, 2016.

Intact Stability Code (icing

allowances in loading), 2008.

SOLAS updates: data in meteorological services and warnings, Ice Patrol

Service, danger messages for ice

conditions

Guidelines on Voyage

Planning for Passenger Ships

in Remote Areas, 2008

Guide for Cold Water

Survival, 2006

NAVAREAS & METAREAS, expansion

of the World-Wide Navigational Warning

System (WWNWS), 2010

Mandatory ship reporting

system for vessels of

5000+ tons for the Barents Area, 2012

International Code for the Construction and

Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code)(carriage of cargo at

low temperature), 2014

Mandatory Polar Code (new SOLAS

Chap XIV 14; amendments to

MARPOL Annexes 1,2, 4, 5), 2014/2015

3. International polar maritime law 8

Legal infrastructure for polar shipping

in Canada

9

Arctic Waters

Pollution Prevention Act & regs

Oceans Act

Marine Liability Act

& regs

Others

Canada Shipping

Act, 2001 & regs

Navigation Protection

Act

Legal status issues “… the waters of the Canadian Arctic

Archipelago are internal waters, although they have not been declared as such in any treaty or by any national legislation.” (Bureau of Legal Affairs, 1973; CYIL 1974).

“Canada’s sovereignty in the Arctic is indivisible. It embraces land, sea and ice. It extends without interruption to the seaward-facing coasts of the Arctic islands.” (The Rt Hon J Clarke, Secretary of State for External Affairs, 33rd Parl, 1985).

Claim to sovereignty based on:

Inuit usage “from time immemorial.”

Use of the straight baseline system

Reflected through Canada’s Northern Strategy, Arctic Foreign Policy, legislation (Oceans Act, AWPPA, etc.).

Claim not recognized by some States (e.g. US).

10

Arctic Waters Pollution Prevention

Act, 1970

“WHEREAS Parliament at the same time

recognizes and is determined to fulfil its

obligation to see that the natural

resources of the Canadian arctic are

developed and exploited and the arctic

waters adjacent to the mainland and

islands of the Canadian arctic are

navigated only in a manner that takes

cognizance of Canada’s responsibility for

the welfare of the Inuit and other

inhabitants of the Canadian arctic and

the preservation of the peculiar

ecological balance that now exists in the

water, ice and land areas of the

Canadian arctic.”

11

Source: CCG, 2017

NORDREG zone

NORDREG area is more

extensive than Canadian

“Arctic waters”

“Arctic waters” fall in

between meridians/

boundaries & north of 60 degrees up to the limit of

the EEZ:

Internal waters

Territorial sea

EEZ

12

CCG, 2016

Canadian Declaration re MARPOL

(1993)

“(b) …Canada considers that its accession to

the Protocol of 1978, as amended … is without

prejudice to such Canadian laws and

regulations as are now or may in the future be

established in respect of arctic waters within or

adjacent to Canada.”

14

• Canada played an active role in the development of the Polar

Code (PC) at IMO.

• The PC provisions are largely equivalent to the Canadian

regime; differences are not considered significant.

• Current legislation (mostly regulations) will be amended.

• Strategy:o Apply consistent provisions

o Scale up rules which are less than PC

o Keep current rules that offer higher protection than PC

Polar Code context & implementation

Affected regulations

Core amendments

AWPPA and regulations:

Arctic Shipping Pollution Prevention Regulations to be repealed

New Arctic Shipping Safety and Pollution Prevention Regulations under both the AWPPA and Canada Shipping Act, 2001:

SOLAS Chap XIV and PC Part I on maritime safety will be referentially incorporated

MARPOL Annexes I, II, IV, V amendments and PC Part II on vessel source pollution will be reproduced in new regulatory text

Canadian modifications to be added to PC provisions representing equivalence to current regulations

Consequential amendments

Navigation Safety Regulations

Charts and Nautical Publications Regulations, 1995

Ship Station (Radio) Regulations, 1999

Steering Appliances and equipment Regulations

Vessel Pollution and Dangerous Chemical Regulations

15

Canadian safety modifications

Vessel size/function threshold:

>300 GT (including fishing vessels & pleasure craft)

Engaged in towing (>500 GT)

Carrying pollutants or goods as cargo

Navigation season, ice conditions, risk assessment:

Canadian waters zone/date system

Arctic Ice Regime Shipping System maintained to operate within a Shipping Safety Control Zone

POLARIS system with risk index outcome (RIO) introduced

Ice navigator requirement for vessels not subject to PC

Reporting:

NORDREG reporting requirements maintained (to enter, during and before exiting)

16

Canadian pollution modifications

Oil discharge:

Canadian “0” discharge rule maintained (reference PC allowances for clean ballast and oily water from machinery spaces of ‘Category A’ vessels operating for more than 30 days in the Arctic).

Sewage discharge:

Canadian rule permitting untreated sewage may need to be modified to confirm to PC conditional discharge rule.

Garbage discharge:

Canadian “0” discharge rule modified (e.g., food), but cargo residue and animal carcasses are banned.

17

Annex VI: air pollution ?

4. Management of navigation

Proposed Northern Marine

Transportation Corridors

“To enhance marine navigation

safety in the North and develop

a pragmatic planning framework

for future Arctic investments

through which the Government

of Canada can regulate,

prioritize and deploy its services

and limited resources in a

focused manner that is

responsive to the evolving

demand in Canada’s Arctic

waters.”

Unlike the Russian

Federation’s

Northern Sea

Route, Canada

has not

legislatively

defined the

Northwest

Passage, nor is

there a “NWP

Administration”

18

19

Source: CCG, 2015

20

Source: Government of NWT, 2015

21

Source: CCG, 2015

• Corridors designated where

mariners will be able to depend

on services.

• Corridors do not all coincide with

all hypothetical NWP routes

Justification for the proposed

corridors

Within corridors or not

farther than 5nm distant

77% of marine traffic (2011-2013).

87.3% of escorts provided (2006-2013).

73.4% of marine pollution Incidents (2002-2013).

57.5% of SAR incidents (2000-2013).

96.2% of navigation aids (2013).

Bathymetry

Beaufort Sea Area

Primary corridors = 89.5%

Secondary corridors = 90.2%

Tertiary corridors = 72.8%

Eastern Arctic

Primary corridors = 45.6%

Secondary corridors = 38%

Tertiary corridors = 51.1%

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5. Protecting Indigenous interests 23

Affirming our commitment to the well-being of the inhabitants of the Arctic,

including special recognition of the special relationship and unique

contributions to the arctic of indigenous people and their communities;

Affirming our commitment to sustainable development in the Arctic region,

including economic and social development, improved health conditions and

cultural well-being;

Recognizing the traditional knowledge of the indigenous people of the Arctic

and their communities and taking note of its importance and that of Arctic

science and research to the collective understanding of the circumpolar

Arctic;

Desiring further to provide a means for promoting cooperative activities to

address Arctic issues requiring circumpolar cooperation, and to ensure full

consultation with and the involvement of indigenous people and their

communities and other inhabitants of the Arctic in such activities;

Recognizing the valuable contribution and support of the Inuit Circumpolar

Conference, Saami Council, and the Association of Indigenous Minorities of the

Far North, Siberia and the Far East of the Russian Federation in the development

of the Arctic Council;

Ottawa

Declaration,

1996

24

4 million

inhabitants in the

Arctic

500,000 are

Indigenous

Inuit Nunaat (Inuit homeland), 52,500 native inhabitants:

(a) Nunavut; (b) Nunavik (N. Quebec); (c) Nunatsiavut (Labrador);

(d) Inuvialuit (NW Territories)

Source: Grid-Arendal

25

26

Source: INAC, 2006

Inuit

Deep spiritual, cultural,

environmental and economic

connection to land, water and

ice.

Deep-seated social, health,

economic problems and

unemployment.

Very young population

(median age: 22 yrs, compared

to 38.8 for Canada).

Growing political political

profile and status.

27

Redressing historic injustice

UN Declaration on the

Rights of Indigenous

Peoples, 2007 rights

Self-determination

To lands, territories and resources

Free, prior and informed consent

Participation in decision-making

Protection of culture from destruction

Human security (food, culture, etc.)

Truth and Reconciliation

Commission, 2015

28

Indigenous

government

“UNDRIP is the framework for reconciliation at all levels and across all sectors of Canadian society.”

“First Nations, Inuit, and Métis peoples, as the original peoples of this country and as self-determining peoples, have Treaty, constitutional, and human rights that must be recognized and respected.”

Nunavut Land

Claims Settlement

Agreement, 1993

Nunavut Act, 1993

Labrador Inuit Land

Claims Agreement

and the Labrador

Inuit Tax Treatment

Agreement, 2004

Labrador Inuit Land

Claims Agreement

Act, 2005

Domestic recognition of Inuit use of ice

WHEREAS the Inuit of the Nunavut Settlement Area have

asserted an aboriginal title to that Area based on their

traditional and current use and occupation of the lands,

waters and land-fast ice therein in accordance with their

own customs and usages”

(Nunavut Land Claims Agreement, Act, Preamble).

“Inuit claim aboriginal rights in and to the Labrador Inuit

Land Claims Area based on their traditional and current

use and occupancy of the lands, waters and sea ice of

the Labrador Inuit Land Claims Area in accordance with

their own customs and traditions”

(Labrador Inuit Land Claims Agreement Act, Preamble).

29

National Oceans Action Plan, 2016

Partnering and seeking advice from Indigenous and

coastal communities to:

understand the combined effects of shipping;

create local vessel control areas to minimize safety risks and/or environmental impacts;

Update and modernize regulations/tools to better respond to

community issues related to marine traffic;

set habitat restoration priorities and take the most appropriate

measures when monitoring oil spill clean-up

Integration into Multi-agency Incident Command System

to enable effective and efficient incident management.

30

Canada-US Joint Arctic Leaders’ (March & December 2016)

31

Commitment to

working together

to establish

consistent policies

for ships operating

in the region and

respect for

Indigenous rights.

6. Polynyas: Inuit uses and shipping

interactions

Meltofte, H. (ed.) 2013. Arctic Biodiversity Assessment.

Status and trends in Arctic biodiversity. Conservation

of Arctic Flora and Fauna, Akureyri.

32

33

Source: ICC, 2016

34

Source: Earth Data (NASA)

35“Large concentrations of marine mammals, including walrus, seals,

and polar bears and beluga, narwhal and bowhead whales, feed at

the edge of the ice until the spring breakup. The same habitat

provides vital feeding grounds for millions of seabirds, including an

estimated two-thirds of the world’s dovekies, a small auk, and thick-

billed murres.” (Pew Charitable Trusts, 2013)

Pikialasorsuaq Commission (2016-17) Terms of reference from ICC:

To conduct community consultations in

Nunavut and Greenlandic communities

most closely connected to Pikialasorsuaq.

Based on regional input, to recommend a

strategy or strategies for safeguarding and

monitoring the health of Pikialasorsuaq for

future generations.

To promote further cooperation between

Inuit communities in Greenland and

Nunavut who depend upon this polynya

and its biological productivity.

To Prepare a report of the Commission’s

findings and recommendations.

Final report:

Mid-summer 2017 release of final report

36

Okalik Eegeesiak, Inuit Circumpolar Council Chair; Kuupik Kleist, Greenland Commissioner; Eva Aariak, Canadian CommissionerSource: nunatsiaqonline, 2016)

Emerging

principles and

recommendationsArctic Journal

24 February 2017

“… the people of the Pikialasorsuaq are one people united by

family bonds, history, culture, and Inuit knowledge, and that the

Pikialasorsuaq is one ecosystem divided in two countries”

“We clearly heard that hunting the bounty of the Pikialasorsuaq

remains the center of Inuit food security, culture and that the

preservation for future generations of this biological wealth is

paramount”

“.. conservation can be compatible with Inuit self-determination

and community economic development and the Commission is

shaping our recommendations to reflect this vision.”

“We envision the establishment of an Inuit led Pikialasorsuaq

Management Area, with oversight through a yet to be defined

governance structure. This body will oversee the management,

monitoring of the cumulative impacts of outside activity

including shipping, fishing, tourism, non-renewable and

renewable resources”

“This was a collective recommendation from all communities

and further, that this should include a comprehensive and

sustainable community based monitoring regime”

37

Source: Arctic Journal, 1 March 2017

8. Conclusion: so what’s next for

polar shipping in Canada?

Polar Code implementation

New Arctic Policy Framework

Federal Northern engagement: Shared Arctic

Leadership

Investments in

marine

infrastructure/

equipment

Governance model for the

Northern Marine Transportation

Corridors

Marine Safety and Security

inspectors

Training and certification programs for

ships operating in polar waters

New Coast Guard Auxiliary unit in the Arctic

Increased icebreaking

services

Improved charting and navigational information

Protection of “last ice area”

within Canadian waters

Increase and acceleration of protected areas

38

Protection of ‘last ice area’

Definition: last Arctic region forecast

to retain summer sea ice until 2050.

Significance: essential to the cultures

and livelihoods of

Indigenous/Northern communities

and wildlife (polar bears, beluga,

narwhal, seals, walrus, etc.)

Partnership: Inuit communities,

federal & territorial governments,

northern communities, scientists, etc.

39

Some questions for legal researchers One of the fundamental premises in the international law of the sea

is the relationship between land and sea -- the land dominates the sea through the coastal frontage interface. How well does this premise hold in the context of the governance of the Arctic and Southern (Antarctic) oceans, where land, ice and water are a continuum?

Should international navigation rights be understood to include a right to break ice? If so, on what basis, under what conditions and with what consequences?

Does the regime for the protection and preservation of the marine environment in the law of the sea provide sufficient, if any protection to ice-covered areas?

Should the concept of “marine protected areas” be re-thought for areas that spatially include sea ice?

How can the law of the sea be used to protect the rights of Indigenous peoples to sea ice integrity?

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Concluding thoughts … 41

Ottawa's northern representative

proposes 'Indigenous protected areas' for

Arctic (CBC News, 24 February 2017)

https://www.youtube.com/watch?v=

3Emoq9OC744

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