Conclusion

During the summer of 2008 after the Ilulissat Declaration committing Canada and four other Arctic Ocean coastal states to the UNCLOS legal regime in order to settle the outstanding maritime and seabed delimitation disputes, the price of oil soared to record highs. The prospect of Canadians being able to manage the exploitation of the petroleum and gas resources in the Arctic was seen as increasingly viable and beneficial. Indeed, that fortune had smiled upon Canada with its strategic location was confirmed by the July release of the United States Geological Survey which had evaluated the “undiscovered technically recoverable resources” of all areas north of the Arctic Circle. The Circum-Arctic Resource Appraisal164 found that the Arctic may contain up to 90 billion barrels of oil and 1,670 trillion cubic feet of natural gas. Not only were areas of the Beaufort Sea and north of Siberia confirmed as probable areas of interest, but the waters and seabed of the Arctic Archipelago known as the Sverdup Basin were also identified.

The agreement between the five Arctic Ocean coastal states to rely upon UNCLOS was intended to prevent the competing claims over the waters and seabed in the Arctic from degenerating into open conflict. However, it should not be assumed that the consequences of these delimitations are not grave or that important national interests are not seen to be at stake. The rising price of gasoline and future restrictions on its availability will not just serve to limit automobile lifestyle decisions in North America, but the impact of rising transportation and fertilizer costs were also affecting the price and availability of food, and the evidence of the seriousness of those concerns could be seen in incidents of civil unrest in India, Europe and Asia.

The Government of Canada has rested its title to the waters and seabed of its Arctic territory upon the 1985 declaration that the waters within the straight baselines are Canada's "historic internal waters." Canada's Arctic waters regulatory scheme has established a framework of fishing and pollution control zones extending seaward from the straight baselines surrounding the archipelago. The Government of Canada relies upon UNCLOS treaty rights that extend the authority to exercise functional sovereignty over these zones.

The straight baselines themselves have not been tested before any international court or tribunal. Indeed there have been some suggestions that Canada adjust its legal basis to arguably more legally secure foundations.165 The strength of that legal basis is seen to be important because the unique Arctic geography, the impending climactic changes that will fundamentally alter the maritime operating environment, and the geopolitical challenges – the increased commercial attention and enduring military attractiveness of strategic submarine operations - that may be emerging in the Arctic Ocean, will all place a stress upon Canada's legal foundations of sovereignty over the Arctic waters.

The Canadian Navy will have to confront the operational challenges of protecting Canadian sovereignty in the Arctic waters while simultaneously providing any necessary assistance to law enforcement authorities attempting to enforce the full spectrum of Canadian law in the waters of the Arctic Archipelago and the pollution and fisheries regulations in the zones beyond. The contested nature of the Canadian maritime claims will present the Navy with overlapping jurisdictions and operational imperatives that will require delicate balance.

It is vital that the Navy maintain a clear understanding of the physical characteristics of the region, the policy basis for Arctic maritime operations, and finally the legal bases for both operations and the claim being supported by those operations in order to properly fulfill its obligations to serve Canada.


Footnotes

164 Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle, U.S. Department of the Interior, U.S. Geological Survey, U.S.G.S Fact Sheet 2008-3049. See also Jad Mouawad, "Oil Survey Says Arctic Has Riches," The New York Times, July 24, 2008,

165 Pharand, supra note 15 at 140-146. The Navy will also have to be sensitive to any changes to the legal basis for the claims. For example, Professor Pharand has suggested an alternative legal basis for Canada's claim to the waters of the Arctic Archipelago in the place of "historic internal waters." He has proposed that "consolidation of title" – history is invoked “only as a complementary and subsidiary basis, to solidify or consolidate the title resulting from the claim” - of straight baselines.

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