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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