1 Introduction
There is growing international interest in the use of the Northwest Passage as a navigation route as the Arctic continues to lose sea ice cover and become more accessible for longer periods. Arctic Canada has a coastline of 162,000 km and encompasses circa 4 million km2 of water. Consisting of seven possible routes, the Passage is navigable largely during the summer months and may be extending into the shoulder seasons. While most current traffic is to resupply Arctic communities and commercial shipping interests discount the likelihood of greater commercial use of the Northwest Passage anytime soon, there continues to be interest from passenger vessel and recreational shipping interests.1 In addition, there is growing domestic shipping consisting of destinational traffic supporting resource development, government vessel work, and marine scientific research.2 Since 1990, shipping in Nunavut doubled and the increase included growth of average distances navigated by ships as well as the number and type of vessels.3 The majority of ships consisted of general cargo vessels and icebreakers, but there was also significant growth of pleasure craft, fishing vessels, tanker, and barge traffic.4
Maritime safety, pollution prevention and protection of indigenous peoples remain primary policy concerns in Canadian Arctic waters. Historically and at this time, Canada has administered Arctic shipping through a system of sixteen Shipping Safety Control Zones (ssczs), setting out a zone and date system for various classes of ships. Ships navigated the various areas depending on their capabilities. This system is now in transition and paving the way for a different risk assessment system introduced by the Polar Code and implemented by Canada. Separately from the ssczs, Canada has embarked on a novel initiative to designate corridors for maritime traffic in Arctic waters. In the marine context, ‘corridor’ has been defined as “an area where there exists a measureable amount of diverse marine transportation with commercial purpose” and “a methodology for planning and prioritization through spatially referencing and comparing specific transportation needs with marine navigational services”.9 Corridor designation provides justification for charting and navigational services.10
The development of low impact corridors raises interesting questions in the law of the sea and maritime law. The international legal status of the Northwest Passage remains uncertain and the new measures will affect international shipping. It is unlikely that Canada will seek prior imo assistance in designating any routeing measures, given Canada’s position on the legal status of those waters. However, the non-mandatory nature of the measures may produce a pragmatic compromise between Canada’s claim to sovereignty over the interconnecting waters of its Arctic archipelago and international expectations of access and use of the Passage.
This essay discusses the legal consequences of Canada’s initiative to designate low impact shipping corridors in its Arctic waters with the participation of indigenous peoples as rights holders and other stakeholders against the backdrop of the international law of the sea, the legal status of Arctic waters and the Northwest Passage, and international maritime regulation. The essay considers Canada’s options and processes for the domestic regulation of shipping in the corridors. The essay concludes with reflections on Canada’s pragmatic approach on the management of navigation in the Northwest Passage.
2
2.1 Legal Issues
Canada’s low impact corridors initiative has a backdrop of uncertainty concerning the international legal status of Canadian Arctic waters and international navigation rights therein. That uncertainty has given rise to various diplomatic exchanges on law of the sea and maritime law matters between Canada and other states. A brief consideration of the issues that have emerged is useful as they provide lessons for Canada to consider when introducing new navigation and shipping measures in Arctic waters.
Until the late 1960s, and until challenged by the United States, Canada seems to have assumed that the waters of the Arctic archipelago were an integral part of its sovereign territory. The first passage of the ss Manhattan in 1969 served to demonstrate not only that transit was feasible but also that the United States’ view was that the Northwest Passage was subject to international navigation rights. The passage occurred barely two years since the catastrophic Torrey Canyon casualty on the southwest Atlantic coast of the United Kingdom in 1967, which was fresh on the minds of policy makers and triggering change in the International Maritime Organization (imo) and adoption of new maritime conventions.
Canada’s response to the potential threat of vessel-source pollution in the sensitive Arctic waters was the adoption of the Arctic Waters Pollution Prevention Act (awppa) in 1970.12 It was both revolutionary and controversial. The Act was revolutionary at the time as it unilaterally introduced ssczs, pollution prevention and construction, design, equipping and manning (cdem) standards, compulsory insurance and strict liability for shipping in Canadian waters at a time when there were no dedicated international standards for shipping in polar waters. Jurisdiction would be exercised up to a limit of 100 nautical miles (extended to 200 nautical miles in 2009), thus including high sea areas. The enactment was controversial because it extended jurisdiction over international shipping in marine areas adjacent to the coast and beyond the territorial sea, triggering a protest from the United States. The United States discussed with Canada the impending legislation before its adoption, expressing concerns on various law of the sea and national interest grounds.13 Fearing a precedent once the awppa was enacted, the United States criticized
The awppa initiative influenced the agenda of the Third United Nations Conference on the Law of the Sea in 1973–82. In order to address Canadian concerns, Canada, the former Soviet Union and the United States negotiated Article 234 of the ensuing United Nations Convention on the Law of the Sea, 1982.16 This provision established the unique coastal State jurisdiction for pollution prevention from international shipping in ice-covered areas within the Exclusive Economic Zone (eez), and without the requirement of prior consultations through the imo,17 even though the imo was the competent international organization with respect to international shipping. To a great extent, Article 234 had the effect of legitimizing the jurisdiction that Canada claimed and exercised through the awppa.
Following the adoption of unclos, the transit of the Northwest Passage by the uscg icebreaker Polar Sea in 1985 triggered significant public and political reactions in Canada. In consequence, that year Canada issued a declaration that the Arctic archipelago’s waters are subject to its sovereignty on the basis of historic title based on Inuit usage ‘since time immemorial’ and enacted an Order-in Council delineating straight baselines around the Arctic archipelago and thereby enclosing its interconnecting waters.18 At that time, the few transits were by icebreakers and consequently in 1988 Canada and the United
When in 1992 Canada acceded to the International Convention on the Prevention of Pollution from Ships, 1973–78 (marpol),22 it issued a declaration that its accession was without prejudice to its Arctic shipping regulation pursuant to Article 234. In re-stating its jurisdictional right under Article 234, Canada considered its accession as being “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”.23 The declaration triggered responses from the United States, and some European states seeking to clarify Canada’s international rights and legal obligations.24 The United States asserted that Canada may enact and enforce laws and regulations on international shipping in the eez “that have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence in Arctic waters, and – that are otherwise consistent with international law” including Articles 234 and other unclos provisions.25 In a
In 2010, Canada communicated to the imo that its ship reporting system (srs) in Arctic waters set out in the Northern Canada Vessel Traffic Services Zone Regulations (nordreg),27 which previously was voluntary, was now mandatory. The communication triggered an awkward exchange with the United States in the Maritime Safety Committee (msc). The United States felt that, given the imo is the organization responsible for the adoption of routeing and reporting measures for international shipping under the International Convention on the Safety of Life at Sea, 1974 (solas),28 that Canada should first have proposed such measures to imo.29 Canada felt it was not obliged to seek prior imo adoption of the measure, justifying its action under Article 234 of unclos and a provision in Chapter 5 of solas concerning the communication of such measures to the imo.30 The msc could not address the underlying different views on an unclos interpretation matter outside its remit,31 leaving the matter unresolved.
Differences between the two states appeared to give way to pragmatic mutual predispositions during the Canada-US Joint Arctic Leaders’ Statement
Cooperation through the Arctic Council is also a significant factor for the establishment of low impact shipping corridors in Canadian Arctic waters. Over the last two decades, Canada embarked on substantial cooperative action to promote safety and pollution prevention in Arctic waters through the imo and Arctic Council. Canada played important roles in the development and adoption in 2002 of the initial imo guidelines for safe operations in Arctic waters and their subsequent amendment in 2009.34 Canada also played a leading role with Finland and the United States in the Arctic Council during the development of the Arctic Marine Shipping Assessment 2009 Report that identified pathways for the future governance of Arctic shipping and including support for the future mandatory Polar Code.35 At the outset of imo deliberations on the mandatory Polar Code in 2009, Canada submitted a draft of what the future code could look like drawing on its own practical experience in regulating polar shipping and contributed over thirty submissions to facilitate the development of the code.36 Following the adoption of the Polar Code, Canada worked closely with other Arctic Council states through the Working Group on the Protection of the Marine Environment (pame) on the implementation of the code. Other cooperation through pame included the development of a proposal for the adoption of a regional approach to port reception facilities under marpol and eventually submitted to the imo,37 the launching of an initiative
2.2 Indigenous Rights and Arctic Policy
As noted earlier, Canada claims a historic title to, and consequential sovereignty over the waters of the Arctic archipelago based on longstanding Inuit occupancy and use. Indigenous rights in general international law and constitutional law encumber Canada’s sovereignty in the region.40 Since the adoption of unclos and marpol, a body of international indigenous law has arisen in international law and now finds expression in the United Nations Declaration on the Rights of Indigenous Peoples (undrip).41 Although as a General Assembly resolution undrip per se is not legally binding, it evidences general international law in many of its provisions.42
In any case, Canada recently enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (undrip Act) to provide a framework for the implementation of the declaration.43 The Act enables Canada to take “effective measures – including legislative, policy and administrative measures – at the national and international level, in consultation and cooperation with Indigenous peoples, to achieve the objectives of the Declaration”.44 Canadian laws are required to be consistent with undrip45 and the Minister has a duty to prepare and implement an action plan46 and report to Parliament.47
undrip sets out a comprehensive system of indigenous rights, including rights to ancestral lands, territories, and resources, now crystallized as
Much has transpired in Canada’s relations with its indigenous peoples, including Inuit, since the awppa and Joe Clark’s statement. Recently, the Truth and Reconciliation Commission of Canada issued a report with recommendations that have been accepted by Prime Minister Trudeau on behalf of Canada without reservations.51 The recommendations call for rebuilding relations with indigenous peoples on nation-to-nation and government-to-government basis. There are several modern treaties negotiated between Canada and its indigenous peoples addressing self-determination, land and resource claims, as well as other rights in the Arctic region. These include the James Bay and Northern Québec Agreement,52 Inuvialuit Final Agreement,53 Nunavut Land Claims
Indigenous rights and concerns are embedded in Canada’s Arctic and Northern Policy Framework.59 Indigenous peoples are recognized as stewards of Northern ecosystems and marine pollution, which has a disproportionate effect on them. Their stewardship is recognized as a pressing concern. Hence, Goal 5 aims, among other, to “[A]pproach the planning, management and
Accordingly, Canada’s corridors initiative in Arctic waters must be informed not only by the permissible jurisdictions in conventional and general international law and generally accepted international rules and standards (gairas), but also by international human rights as they concern indigenous peoples in Arctic waters. Moreover, the designation of corridors cannot be a simple exercise of maritime administration but must involve genuine and respectful consultations in the spirit of reconciliation and indigenous rights as expressed in modern treaties and general international law.
3 Canada’s Regulation of Low Impact Corridors
3.1 Proposed Low Impact Corridors
The genesis of low impact corridors in Arctic waters was the Northern Marine Transportation Corridors (nmtc) initiative, which emerged in the wake of the federal government’s world-class tanker safety system launched in 2013 to address threats posed by oil tanker traffic through a range of legislative and management measures, including the establishment of a Tanker Safety Expert Panel.60 The nmtc was a joint initiative of Fisheries and Oceans
The purpose of the corridors is to set out a governance framework, enhance maritime safety, minimize the impacts of shipping to designated areas, and enable focused development of infrastructure and essential services. Given the huge geographical extent of Canadian Arctic waters and coastlines, the initiative will enable focused development of nautical charts and products, deployment and maintenance of navigation aids and provision of icebreaking services. As noted earlier, the vast majority of Canadian Arctic waters are uncharted or not charted to modern hydrographic standards. The initiative’s focus on corridors will enable prioritization of chs efforts on 12 percent of those waters, although even these waters are mostly inadequately surveyed at this time.63 Thus the corridors will not necessarily cover all theoretically possible routes in Canadian Arctic waters, but only the safest and most used routes.
The range of services will include maritime traffic monitoring, navigation aids, hydrographic services, weather and ice forecasts, icebreaking, search and rescue and pollution response,64 and presumably salvage and places of refuge. Appropriate regulations will accompany the formal designation of corridors.65 There is a range of routeing and other measures that could be utilized.66 Unlike the current nordreg mandatory srs, the corridors will be voluntary and the
3.2 Regulations Applicable to the Corridors
Canada has a well-developed and mature legal regime for Arctic shipping to support low impact corridors, consisting of parent and subsidiary maritime legislation. Some of the legislation is dedicated to polar shipping. Table 16.1 sets out the four principal pillars of the legal regime, consisting of the jurisdictional framework for Arctic shipping, maritime and port law, environmental law, and indigenous and aboriginal law.
Regulatory schemes applicable to Canadian Arctic shipping
Jurisdictional framework |
Maritime and port law |
Environmental law |
Indigenous and aboriginal law |
|---|---|---|---|
– Constitution Act – Oceans Act – Federal Courts Act |
– Arctic Waters Pollution Prevention Act Arctic Shipping Safety and Pollution Prevention Regulations – Canada Shipping Act, 2001 Arctic Shipping Safety and Pollution Prevention Regulations Shipping Safety Zones Control Order Navigation Safety Regulations Northern Canada Vessel Traffic Services Zone Regulations Ship Station (Radio) Regulations, 1999 Vessel Pollution and Dangerous Chemical Regulations, 2012. – Canadian Navigable Waters Act – Wrecked, Abandoned or Hazardous Vessels Act – Pilotage Act – Marine Liability Act – Coasting Trade Act – Canada Marine Act |
– Canadian Environment Protection Act Disposal at Sea Permit Application Regulations, sor/2014–177 Disposal at Sea Regulations, sor/2001–275 – Fisheries Act – Migratory Birds Convention Act – Canada Wildlife Act – National Marine Conservation Areas Act – Canada National Parks Act – Impact Assessment Act |
– Bill C-15 undrip Implementation Act – Nunavut Land Claims Agreement Act – Western Arctic (Inuvialuit) Claims Settlement Act – Labrador Inuit Land Claims Agreement Act |
Under Canada’s constitution, navigation and shipping are a federal legislative power, although in practice there is overlap with provincial powers concerning property and civil rights and local undertakings.67 When an issue calls for the application of both federal and provincial (and territorial) law, the courts recognize double aspect causes and tend to find a harmonious application of both in the interests of cooperative federalism.68 It is conceivable that claims concerning aspects of the administration of low impact corridors (for example, where a duty to consult applies because rights are affected) could involve federal maritime law and modern treaties mentioned earlier.
As the principal instrument implementing unclos, the Oceans Act69 sets out the jurisdictional context for Canada’s exercise of its rights as a coastal State and the framework for integrated planning and management of marine areas based on consultations, and ccg services. ccg services are directly relevant to the establishment and maintenance of corridors because its mandate includes “services for the safe, economical and efficient movement of ships in Canadian waters” by providing navigation aids and services, marine communications and traffic management services, icebreaking and ice management services, and channel maintenance.70 ccg services also include maritime search and rescue, response to wrecks and hazardous or dilapidated vessels, and marine pollution response.71
The Federal Courts Act provides for maritime law jurisdiction and suits by and against the federal crown.72 Hence, any litigation involving claims related to the administration of the corridors will occur in the Federal Court.
The assppr contained few and relatively minor departures from the Polar Code. With respect to maritime safety, the previous risk assessment framework consisting of a zone date system, ssczs and the Arctic Ice Regime Shipping System (airss) will continue to apply to existing ships side-by-side the Polar Operational Limitation Assessment Risk Indexing System (polaris) for new ships introduced by the Polar Code.79 The effect is to phase out the old risk assessment system and phase in polaris. The requirement for an ice navigator on board vessels above 300 tons and non-solas vessels continues to apply.80 Canadian ships are required to have a specific low-air temperature annotation in addition to polar service temperature.81 The regulations on pollution prevention apply to all ships. The awppa absolute ‘zero’ discharge rule continues even because ‘clean ballast’, whose discharge is otherwise permissible, may contain up to 5 ppm oil content.82
Other regulations under the csa 2001 will play an important role in regulating low impact corridors, such as those concerning shipping ssczs in Arctic waters,85 marine navigation,86 radio communications,87 and the nordreg mandatory srs in Arctic waters.88 Other relevant legislation concerns the protection of navigable waters from works,89 salvage and wreck,90 rules for pilotage where applicable,91 civil liability regimes for maritime torts, carriage of goods and passenger vessels,92 cabotage (such as supplying Northern communities),93 and ports and harbours.94
Several topics addressed by environmental law statutes and subsidiary regulations will apply to the corridors. These include dumping at sea,95 discharge of harmful substances in fish habitats,96 discharges in areas frequented by migratory birds,97 protection of wildlife,98 and protected areas.99 It is also conceivable that legislation concerning impact assessments of projects in marine areas will apply to the corridors.100
4 Discussion
The designation of corridors in the Northwest Passage is a common sense and pragmatic approach to the facilitation of safe shipping in hazardous, uncharted and unserviced waters with little infrastructure at this time. Focusing shipping in the designated corridors minimizes conflicts and adverse impacts to the particular areas concerned while leveraging potential benefits to the region’s inhabitants and international trade. Further, by servicing corridors and building the infrastructure for safe shipping in the region, Canada appears to propose a practical approach to managing disputes concerning the uncertain legal status of its Arctic waters and navigation rights in the Northwest Passage by opening and servicing the Passage.
The corridors initiative should allay past concerns over Canada’s unilateral regulation of Arctic shipping. Canada has domesticated the Polar Code as the gairas applicable to Arctic shipping, thus ensuring that the applicable cdem standards are multilateral rather than unilateral. Moreover, the fact that passage will not be subject to charges, except perhaps for services rendered to particular ships, should allay concerns on the accessibility or hampering of the passage. In this way, Canada will be promoting international navigation in the Northwest Passage while maintaining its position on the legal status of Arctic waters.
It is possible that maritime powers will maintain reservations about Canada’s nordreg mandatory srs as long as it remains unilateral, rather than as an imo-designated system. On this point, purely legalistic concerns ought to give way to functional and pragmatic concerns for the safety of human life and shipping generally. Arctic shipping includes a range of vessels that do not necessarily carry AIS and locating them is imperative for the provision of assistance and to mitigate impacts on sensitive areas. In the event of a casualty, the first responders might well be indigenous, and a serious casualty could damage the very sensitive environment and threaten food security of indigenous hunters.
Canada has not indicated how the corridors will be administered, other than that Transport Canada will lead the development of a collaborative governance model that “will be inclusive of Indigenous people, reflect and respect the modern land claims in place, and oversee the development, implementation, and management of the corridors”.107 Canada does not have an institution exclusively dedicated to the Northwest Passage, such as the St. Lawrence Seaway Authority or the Northern Sea Route Administration in the case of the Northern Sea Route in Russian waters of the Northeast Passage. A related matter is the absence of a legislated definition of the Northwest Passage, unlike the case of the Northern Sea Route in the nsr Regulations.108 Definition is important to delimit the geographical scope of the corridors and related services, as well as clarifying the mandate of the institution tasked with the administration of the corridors.
- (a)establishing vts Zones within Canadian waters or in a shipping safety control zone prescribed under the Arctic Waters Pollution Prevention Act;
- (b)
respecting the information to be provided and the procedures and practices to be followed by vessels that are about to enter, leave or proceed within a vts Zone; - (c)respecting the conditions under which a clearance under section 126 is to be granted;
- (d)defining the expression about to enter for the purpose of this Part;
- (e)respecting aids to navigation in Canadian waters;
- (f)regulating or prohibiting the navigation, anchoring, mooring or berthing of vessels for the purposes of promoting the safe and efficient navigation of vessels and protecting the public interest and the environment;
- …
- (h)specifying classes of persons, or appointing persons, to ensure compliance with regulations made under any of paragraphs (b) and (e) to (g) and specifying their powers and duties; and
- (i)prescribing anything that may be prescribed under this Part.110
At a minimum, the ccg and Transport Canada have overlapping responsibilities on navigation aids, but vessel traffic services (vts) are arguably also included in services for the safe movement of ships, a ccg responsibility.
Perhaps the way forward for a ‘new collaborative governance model’ for the corridors is a new and publicly run institution similar or analogous to the St. Lawrence Seaway Commission, but composed of only Canadian federal, territorial, indigenous people and stakeholder representation with the authority to recommend to the ccg and Transport Canada appropriate measures to service the corridors. Such an institution will need a legal framework, as is the case for the St. Lawrence Seaway.111 Perhaps the most obvious course of action is to include a new part in the Canada Marine Act dedicated to the corridors and designating or creating a responsible institution, similar to the case of the St. Lawrence Seaway Authority. Using the St. Lawrence Seaway Authority as an example, under the Canada Marine Act:
The Governor in Council may make regulations for the management, control, development and use of the Seaway and property and undertakings in connection with the Seaway, including regulations respecting
- (a)the navigation and use by ships of the navigable waters of the Seaway, including the mooring, berthing and loading and unloading of ships and equipment for the loading and unloading of ships;
- (b)the use and environmental protection of the Seaway or any land used in connection with the Seaway, including the regulation or prohibition of equipment, structures, works and operations;
- (c)the removal, destruction or disposal of any ship, part of a ship, structure, work or other thing that interferes with navigation in the Seaway and the provision for the recovery of the costs incurred;
- (d)the maintenance of order and the safety of persons and property in the Seaway or on any land used in connection with the Seaway;
- (d.1)the information or documents that must be provided by the owner or the person in charge of a ship to the Minister or to any person who has entered into an agreement under subsection 80(5);
- (e)the regulation of persons, vehicles or aircraft in the Seaway or on any land used in connection with the Seaway;
- (f)the regulation or prohibition of the excavation, removal or deposit of material or of any other action that is likely to affect in any way the navigability or operation of the Seaway or to affect any of the lands adjacent to the Seaway; and
- (g)the regulation or prohibition of the transportation, handling or storing in the Seaway, or on any land used in connection with the Seaway, of explosives or other substances that, in the opinion of the Governor in Council, constitute or are likely to constitute a danger or hazard to life or property.112
Clearly, the corridors will require additional powers concerning vts, navigation aids, icebreaking and other services.
The types of routeing and reporting measures needed to service the corridors also raise interesting questions. Chapter 5 of solas provides for the adoption routeing and reporting measures, and the imo is the responsible organization for their adoption with respect to international shipping. However, as we have seen earlier, Canada did not seek prior imo adoption
In addition to routeing and reporting measures, it is conceivable pilotage might be needed, most especially because of the lack of charts of Canadian Arctic waters. Perceived as a measure that hampers international navigation, mandatory pilotage has triggered difficult discussions in the imo in the course of consideration of appropriate protective measures for particularly sensitive sea areas.116 At this time, there is no pilotage authority or mandatory pilotage in Arctic waters as there is in the Atlantic, Great Lakes and Pacific regions of Canada. However, as seen earlier, there is a requirement for an ice navigator to be on board certain vessels, and this person will have at least some of the knowledge of a pilot. The pilot is a licensed or certified professional person, usually a former mariner, who provides information to the master and officers of the watch on local navigational constraints and requirements for the safe conduct of the vessel. A recent review of Pilotage Act in Canada indicated that
Improvements under the Polar Code and formalizing the requirements to become an ice navigator will mitigate the need for Arctic pilotage in the short term. For the longer term, there is potential for pilotage in the north to be developed in conjunction with the Low Impact Shipping Corridors initiatives within the Oceans Protection Plan.117
The ideal scenario for ships in Canadian Arctic waters is to have access to pilots who are knowledgeable of those waters, and not simply to ice navigation. The Pilotage Act review considered the possibility of a new pilotage authority for the Arctic and recommended, among others, that
Transport Canada, the Canadian Coast Guard, and the Canadian Hydrographic Services place a priority on an accelerated timeline to develop and implement the Low Impact Corridors management structure and assess the need for pilotage services as a possible mitigating measure identified by a robust Navigation Risk Assessment Methodology.118
Controversial as pilotage might be, it appears it will be a necessity in the low impact corridors.
5 Conclusion
The low impact corridors initiative in Canadian Arctic waters is a grand experiment on a very large scale. While there are many examples of such corridors in other marine regions, and possibly with the exception of the Northern Sea Route, they tend to concern smaller areas and local traffic and do not always concern a marine environment that is so fragile and of global planetary concern. Therefore, it will not be surprising to see international attention turning to what Canada is planning because there is so much at stake. Naturally, at this time it is difficult to fully anticipate how attractive the corridors will be, or for that matter whether the Northwest Passage itself will be attractive to commercial traffic to become a viable international trade route. Like all experiments, it might work, or it might not. What is certain, however, is that this most unique and fragile of regions requires far greater scrutiny of the governance of
That Canada must take action to protect the region in partnership with its indigenous communities is clearly an imperative. To date, Canada appears to be engaging indigenous peoples. It is placing faith in multilateralism more than in unilateralism, whether by working closely with other Arctic Council members on shipping and/or working with the imo in polar regulatory reform.
2018 Pilotage Act Review (Transport Canada, 2018) 95–96, online at <
Jackie Dawson, Olivia Mussells, Luke Copland and Natalie Carter, Shipping Trends in Nunavut 1990–2015: A Report Prepared for the Nunavut General Monitoring Program (University of Ottawa, 2017). According to Chénier et al., the voyage count tripled between 1990–2014. Chénier et al, supra note 1, at 9.
Ibid.
Dawson et al., supra note 2, at 37.
Arctic Marine Shipping Assessment 2009 Report (Arctic Council, 2009), 186, online: <
Chénier et al., supra note 1, at 10.
The groundings concerned the passenger vessels Hanseatic, Clipper Adventurer and Akademik Ioffe. See marine investigation reports M96H0016, M10H0006 and M18C0225 respectively, Transportation Safety Board of Canada, online: <
For example: “New Zealander sails through Arctic on custom yacht in violation of covid-19 restrictions”, cbc News (26 August 2020), online: <
Andrew Leyzack, René Chénier and Sean Hinds, “Marine Corridors: a Methodology for Planning and Prioritizing Hydrographic Surveys, Products and Services”, presented at the Canadian Hydrographic Conference, 14–17 April 2014, St Johns, Newfoundland and Labrador, at 1, online: <
Ibid. 5.
Ibid. at 3–4, 10. These are described as follows: 1. “Main Corridor (Primary): The main traffic highways in the Arctic, which provide a means to enable secondary access to ports.” \ 2. “Approach Corridor (Secondary): Corridors characterized by medium- to low-density traffic levels, which can provide access to navigational ports to fulfill supply links and the movement of passengers. The three types of vessel to use these traffic corridors are cargo, tanker, and passenger vessels.” \ 3. “Refuge Corridor (Tertiary): Characterized by medium to low traffic, providing navigational access to places of refuge, including charted anchorage areas located nearest to primary and secondary corridors and furthest away from ports.” \ 4. “Private Interest Corridor (Quaternary): Characterized by geographical extents of low buffered density levels. These corridors provide navigational access to resource development and extraction sites, or other private interests (mining sites, research bases).” \ 5. “Projected Corridor (Quinary): Characterized by geographical extents of low buffered density levels, or in the absence of any density analysis or vessel traffic data. These corridors provide navigational access to proposed or potential infrastructure for resource development.” \ Ibid. at 4, table 2; Leyzack et al., supra note 9, at 6.
rsc 1985, c A-12 (awppa).
Imminent Canadian Legislation on the Arctic, Information Memorandum for Mr. Kissinger (The White House), Department of State (12 March 1970), online:
Dept. of State Press Rel. No. 121 (April 1S, 1970), reprinted in 9 International Legal Materials (1970): 605. Bilder commented that Canada appeared to advance a new theory of coastal contiguity in extending jurisdiction over shipping. See Richard Bilder, “The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea”, (1970) Michigan Law Review 69(1): 1–54 at 13.
Canadian Government’s Background Notes on the Arctic Waters Pollution Prevention Bill and the Territorial Sea and Fishing Zones Bill (8 April 1970), 9 International Legal Materials (1970): 598.
Adopted 10 December 1982 (entered into force 16 November 1994), 1833 unts 3 (unclos).
Shabtai Rosenne and Alexander Yankov (vol eds), United Nations Convention on the Law of the Sea 1982: A Commentary vol iv (Dordrecht: Nijhoff, 1991) (Virginia Commentary), at 396.
House of Commons Debates, 33rd Parl, 1st Sess, [Vol 5] (10 September 1985) at 6462–464 (Secretary of State for External Affairs, the Right Honourable Joe Clark).
Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation, adopted 11 January 1988 (entered into force 11 January 1988), cts No. 1988/29.
Ibid. art 3.
Ibid. art 4.
Adopted 2 November 1973 and as amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships of 1973, adopted 17 February 1978 (entered into force 2 October 1983), 1340 unts 61 (marpol).
Canada communicated its instrument of accession on 16 November 1992, with effect on 16 February 1993. Status of imo Treaties: Comprehensive Information on the Status of Multilateral Conventions and Instruments in respect of which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions (imo, 15 July 2021), at 133, online: <
Canada became a party on 16 February 1993. Ibid.
Ibid.
Ibid. The states concerned were Belgium, Denmark, France, Germany, Greece, Italy, the Netherlands, Portugal, Spain and the United Kingdom.
sor/2010-127 (nordreg).
Adopted 1 November 1974 (entered into force 25 May 1980), 1184 unts 2 (solas).
Northern Canada Vessel Traffic Services Zone Regulations, Submitted by the United States and intertanko, imo Doc msc 88/11/2 (22 September 2010). See the Canadian response in Comments on Document msc 88/11/2, Submitted by Canada, imo Doc msc 88/11/3 (5 October 2010).
“Ship reporting systems not submitted to the Organization for adoption do not necessarily need to comply with this regulation. However, Governments implementing such systems are encouraged to follow, wherever possible, the guidelines and criteria developed by the Organization Contracting. Governments may submit such systems to the Organization for recognition”. Ibid. chap V reg 11.4.
Report of the Maritime Safety Committee on its 88th Session, imo Doc msc 88/26 (15 December 2010) at 55.
Prime Minister of Canada (20 December 2016)
“Pompeo calls out Canada, China, Russia over Arctic policy”, cbc News (6 May 2019), online: <
Guidelines for Ships Operating in Arctic Ice-Covered Waters, imo Doc msc/Circ.1056 & mepc/Circ. 399 (23 December 2002), as amended and revised as Guidelines for Ships Operating in Polar Waters, Resolution A.1024(26) (2 December 2009), imo Doc A 26/Res.1024 (18 January 2010).
amsa, supra note 5, 6–7.
Aldo Chircop, Peter Pamel and Miriam Czarski, “Canada’s implementation of the Polar Code”, (2018) Journal of International Maritime Law 24(6): 428–450 at 434.
Regional Reception Facilities Plan (rrfp) – Outline and Planning Guide for the Arctic, Submitted by Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States, imo Doc mepc 72/16 (29 December 2017).
Overview of Low Impact Shipping Corridors & Other Shipping Management Schemes (Arctic Council/pame, May 2021), online: <
Arctic Shipping Best Practice Information Forum, online: <
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.
ga Res A/res/61/295 adopted 13 September 2007.
International Law Association, Resolution No. 5/2012: Rights of Indigenous Peoples, adopted at the 75th Conference of the International Law Association, Sofia, Bulgaria, 26–30 August 2012, online: <Committees (ila-hq.org)>.
United Nations Declaration on the Rights of Indigenous Peoples Act, sc 2021 c 14 (undrip Act).
Ibid.
Ibid. s 5.
Ibid. s 6.
Ibid. s 7.
ila Resolution No. 5/2012, supra note 42.
Dalee Sambo Dorough, “The Rights, Interests and Role of the Arctic Council Permanent Participants”, in Robert C. Beckman, Tore Henriksen, Kristine Dalaker Kraabel, Erik J. Molenaar and J Ashley Roach (eds), Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States (Brill, 2017), at 80.
awppa, supra note 12, preamble.
“Statement by Prime Minister on release of the Final Report of the Truth and Reconciliation Commission” (15 December 2015), online: <
This agreement reserved hunting, fishing and trapping for the exclusive use of Crees, Inuit and Naskapis. James Bay and Northern Québec Agreement (11 November 1975), online: <
This agreement covers large areas of the Mackenzie Delta, Beaufort Sea and Amundsen Gulf area, thereby including internal waters, the territorial sea and eez, and provides for resource rights. Inuvialuit Final Agreement (as amended) (25 July 1984), Annex A and Annex A-1, online <
This agreement includes internal waters and the territorial sea of the east coast of Nunavut, and, among other, protects Inuit resource rights and rights “to participate in decision-making concerning the use, management and conservation of land, water and resources, including the offshore”. It also recognizes that “Canada’s sovereignty over the waters of the arctic archipelago is supported by Inuit use and occupancy”. Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (25 May 1993), online: <
Among others, this agreement addresses fishing rights and requires the Minister to consult on ocean management and marine protected area initiatives. Land Claims Agreement between the Inuit of Labrador and Her Majesty the Queen in Right of Newfoundland and Labrador and Her Majesty the Queen in Right of Canada (22 January 2005), chaps 6 and 13. online: <
This agreement addresses the aboriginal title of the Crees of Eeyou Istchee to the use and ownership of lands and resources, including fisheries, in Nunavut and in Hudson Bay and James Bay. Agreement between the Crees of Eeyou Istchee and Her Majesty the Queen in Right of Canada concerning the Eeyou Marine Region (7 July 2010), art 2.23, online: <
This agreement addresses, among other, fishing and wildlife harvesting rights in marine areas in Hudson Bay, Hudson Strait, Ungava Bay and Labrador Sea. Nunavik Inuit Land Claims Settlement (1 December 2006), preamble and art 3, online: <
Beaufort Sea Partnership, “Integrated Ocean Management”, online: <
Canada’s Arctic and Northern Policy Framework, online: <
The first addressed spill response capacity and the need for a risk-based approach in Canadian waters, and the second focused on Arctic waters.
Chénier et al., supra note 1, at 1.
The consultations period is open between 1 April 2021–1 January 2022. Northern Low-Impact Shipping Corridors (Government of Canada, 1 April 2021), online <
Chénier et al., supra note 1.
Ibid.
Ibid.
Teresa Clemmer, “Framework and Tools for Developing a Low-Impact Shipping Corridor in the Arctic Ocean”, report prepared for wwf-US and wwf-Canada (wwf, 7 September 2018), online: <
Constitution Act, supra note 40, ss 91(10) and 92 (10) and (13).
Canadian Western Bank v Alberta, 2007 scc 22, paras 21–24.
Oceans Act, sc 1996 c 31.
Ibid. s 41(1).
Ibid.
Federal Courts Act, rsc 1985 c F-7, ss 17 and 22.
sc 2001 c 26 (csa 2001).
Arctic Shipping Safety and Pollution Prevention Regulations, sor/2017-286.
Navigation Safety Regulations, 2020, sor/2020-216.
Ship Station (Radio) Regulations, 1999, sor/2000-260.
Vessel Pollution and Dangerous Chemicals Regulations, sor/2012-69.
Arctic Shipping Pollution Prevention Regulations, crc c 353 (repealed).
Chircop et al., supra note 36, 444.
Ibid. 445.
Ibid.
Drummond Fraser, “A Change in the Ice Regime: Polar Code Implementation in Canada”, in Aldo Chircop, Floris Goerlandt, Claudio Aporta and Ronald Pelot (eds), Governance of Arctic Shipping: Rethinking Risk, Human Impacts and Regulation, (Springer Polar Sciences, 2020), 285–300 at 294.
awppa, supra note 12, s 2.
assppr, supra note 74, s 3.
Shipping Safety Control Zones Order, crc c 356.
Navigation Safety Regulations, supra note 75.
Ship Station (Radio) Regulations, supra note 76.
nordreg, supra note 27.
Canadian Navigable Waters Act, rsc 1985 c N-22.
Wrecked, Abandoned or Hazardous Vessels Act, sc 2019 c 1.
Pilotage Act, rsc 1985 c P-14.
Marine Liability Act, sc 2001 c 6.
Coasting Trade Act, sc 1992 c 31.
Canada Marine Act, sc 1998 c 10.
Canadian Environmental Protection Act, 1999, sc.1999 c 33; Disposal at Sea Permit Application Regulations, sor/2014-177; Disposal at Sea Regulations, sor/2001-275.
Fisheries Act, rsc 1985 c F-14.
Migratory Birds Convention Act, 1994, sc 1994 c 22.
Canada Wildlife Act, rsc 1985 c W-9.
Oceans Act, supra note 69; Canada National Marine Conservation Areas Act, sc 2002 c 18; Canada National Parks Act, sc 2000 c 32.
The definition of ‘federal lands’ includes internal waters, territorial sea, eez and continental shelf. Impact Assessment Act, sc 2019 c 28, s 2.
undrip Act, supra note 43, s 5.
Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 scc 40, para 19.
Labrador Inuit Land Claims Agreement, supra note 55, ss 6.5.1 and 8.6.6.
Ibid. chaps 6 and 13.
marpol, supra note 22, art 16.
solas, supra note 28, chap xiv reg 2.
Pilotage Act Review, supra note 1, at 98.
Rules of Navigation in the Water Area of the Northern Sea Route, approved by the Russian Federation Government Decree dated September 18, 2020, No. 1487, appendix 3, online: <
Oceans Act, supra note 69, s 41(1).
csa 2001, supra note 73, s 136(1).
Canada Marine Act, supra note 94, part 3. Prior to it the enactment of the Canada Marine Act, the St. Lawrence Seaway Authority had its own dedicated statute, the St. Lawrence Seaway Authority Act. The Canada Marine Act repealed this statute and provided the legal framework in Part 3.
Ibid. s 98(1).
Notices to Mariners 1–46: Annual Edition 2021 (Fisheries and Oceans Canada, Canadian Coast Guard, 2021), 130–132, online: <
Establishment of New Recommended Seasonal Area to be Avoided in Roseway Basin, South of Nova Scotia, imo Doc msc 83/28/Add.3 (2 November 2007), annex 25.
solas, supra note 28, reg 11.4.
Sam Bateman and Michael White, “Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment”, (2009) Ocean Development and International Law 40(2): 184–203.
Pilotage Act Review, supra note 1, at viii.
Ibid. at 42.