Chapter 18 Conclusion

In: Shipping in Inuit Nunangat
Authors:
Aldo Chircop
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Kristin Bartenstein
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Abstract

This concluding chapter reflects issues and directions for the governance of shipping in Canadian Arctic waters at a time of unprecedented change drawing on the themes discussed throughout the book, in particular the interface between shipping, Indigenous rights and environment protection. The Arctic is a unique ecoregion that is subject to mixed adverse and beneficial impacts due to the consequences of climate change, most especially because of enhanced mobility enabled by shipping. Most importantly, the Canadian Arctic is Inuit Nunangat, the homeland of Inuit, and calls for development that places the interests of its inhabitants at the centre. The potential risks and benefits of increasing industrialization and other economic activities must be subject to socially and environmentally responsible governance. At this time, the governance of shipping in Canadian Arctic waters is fragmented and needs to be strengthened in view of the designation of low-impact shipping corridors. Future maritime governance demands strengthening and concertation of State powers and measures with respect to clear policy directions, modernized coordinated regulation, coordinated institutional framework, effective management measures, proper funding of initiatives and capacity-building.

1 Introduction

In this book we reflected on the governance of shipping in Canadian Arctic waters at a time of unprecedented change. We undertook this task from the perspectives of several disciplines and fields, including defence and strategic studies, geography, history, international relations, law (Canadian and international), oceanography, political science, public policy, and cultural anthropology. Our focus has been on the role policy plays and possible future directions for the governance of Arctic shipping. Each chapter has drawn its own conclusions and this closing chapter provides cumulative and integrative insights into the complexity and prospects of maritime governance in Canadian Arctic waters.

2 The Arctic as Homeland: Inuit Nunangat

The Arctic has long been a homeland for Indigenous peoples. Over millennia, Inuit Nunaat encompassed wide swaths of the Arctic regions of Canada, Denmark (Kalaallit Nunaat/Greenland), Russian Federation (Chukotka) and United States (Alaska). In Canada, Inuit are organized in groups across Inuit Nunangat.1 There are also Cree, Dene, Gwich’in, Innu and Métis communities. Inuit and other Indigenous communities have been involved in the development of land claims agreements, known as modern treaties, in the region since the 1970s.2 As pointed out by Ell-Kanayuk and Aporta, Inuit are a land, sea and ice people with a unique maritime culture. They have long considered land, landfast ice, sea ice and marine waters as a continuity. The Western legal bifurcation of the legal status of land and water and the international law of the sea idea that the land dominates the sea are alien and colonial concepts to Inuit.

Hence, Inuit Indigenous rights to lands, territories and resources must be understood to comprehend the entirety of the spaces used since time immemorial for subsistence, mobility, settlement, and cultural practices. Shipping impacts on Inuit uses of ice and marine areas. Hence, public authorities and commercial and recreational users should respect Indigenous rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),3 such as the right to self-determination, the principle that their free, prior, and informed consent must be obtained before a major development activity proceeds, cultural and education rights, and the protection of the environment to enable them to enjoy their rights.

3 A Unique Ecoregion Subject to Mixed Impacts from Shipping

The Arctic is a unique ecoregion, characterized by ecosystems and species adapted to extreme temperatures and light cycles, and dominant ice conditions. As Vincent et al. observed, it is a vital component of planetary systems, acting as a critical contributor to global climate, weather, and ocean water circulation. At the same time, it is disproportionally affected by global environmental and anthropogenic stressors that are amplified in the region. The Arctic is experiencing the highest warming rate on the planet, affecting not only the regional environment and its inhabitants and economies, but also planetary well-being. These biogeophysical and anthropogenic characteristics justify treating the Arctic as a matter of both regional and global concern.

The Canadian Arctic is an underdeveloped economic region, with communications, infrastructure, education, employment, energy, health, and transportation standards well behind the rest of the country. Canada’s Arctic and Northern Policy Framework acknowledges these gaps and highlights economic development as a major concern for Indigenous peoples in the North.4 Lajeunesse and Lackenbauer noted that the region has a terrestrial mining history, characterized by boom-and-bust cycles, which have not dented underdevelopment. Geographical remoteness ensures that shipping will remain an agent of economic development, both by providing a platform and transport for a range of economic activities, and because of the needs to support shipping itself.

Shipping produces mixed biological, chemical, physical, economic, and cultural impacts on the region. Some forms of shipping, such as northern logistics cabotage, are beneficial for Arctic communities because they facilitate mobility, supplies to communities and food security. Canadian cabotage policy and law have long supported domestic shipping through incentives, such as exclusivity of carriage and exemption from certain fees, including icebreaking, and should continue to do so. Government vessels providing navigational safety services and research platforms, constitute vital infrastructure to promote maritime safety, pollution response, search and rescue, hydrographic surveying, and strengthen the science behind climate and ocean change. Privately owned commercial vessels play a critical role in supporting natural resource development and exporting minerals. Lasserre observed that at this time there is minimal commercial transit shipping in Canadian Arctic waters to service distant markets, because of the costs involved, advantages of established routes and lack of interest in the shipping industry, although this could conceivably change if Arctic hubs emerge. However, according to Choi, current Canadian Coast Guard icebreaking capability in Arctic waters is barely meeting current needs, suggesting that future growth will necessitate enhancing the capacity to deliver this vital service.

Shipping also produces negative impacts with the potential of significantly increasing pressure on the region’s sensitive ecosystems and species. These include multiple harmful impacts such as atmospheric emissions from the use of hydrocarbon-derived fuels, operational pollution such as garbage, sewage, and ‘clean’ ballast (albeit with low oil content), surface and underwater noise, and potential disruption of animal and human ice routes. The burning of heavy fuel oil produces black carbon, an accelerator of sea ice loss and a climate forcer. Shipping also increases the risk of environmental and safety emergencies through serious spills and the need to provide timely search and rescue in a remote region having little such capacity. Coastal communities are expected to be first responders, adding risk and stress to their lives and livelihoods. Fortunately for northern Canadians, the federal Ship-source Oil Pollution Fund, which is now subject to unlimited liability, extends assistance to pollution damage claims in Arctic waters.

Some forms of cruise shipping and recreational boating do not leave beneficial economic impacts in the region. In some cases, cruise ships have been known to provide minimal if any opportunity for Inuit communities to benefit from their presence. Ell-Kanayuk gave some examples in her interview with Aporta. Inuit artwork and products from locally hunted exotic species might not be bought by tourists from countries that ban the import of products from such species. Tourists on shore visits may easily outnumber the remote communities they visit and might buy goods that are in limited supply to those communities.

Cruise ships also raise other safety concerns because of the large numbers of passengers and crew on board. A few such ships have grounded in Canadian Arctic waters and usually because the owners and masters on board assumed unnecessary risks, such as not notifying authorities on entering the Northern Canada Vessel Traffic Services Zone (NORDREG)5 before entering Arctic waters and not communicating or changing their passage plans, potentially risking delayed search and rescue (if needed), failing to carry on board all the requisite charts and notices to shipping for safe navigation, navigating in uncharted or not fully chartered waters to provide passengers on board unique experiences, and even proceeding at unsafe speeds. In the Clipper Adventurer case, the operator did not comply with the vessel’s own safety management system, did not evaluate the passage plan, failed to provide its crew with safeguards such as a serviceable forward-looking sonar, and ensuring that navigational warnings were obtained.6 Indeed, Canadian authorities billed the owners of that grounded ship for the provision of services to free it and thereby established an important policy precedent on the internalization of costs of the operation of negligent vessels.

The future development trajectory of Arctic shipping remains uncertain and unpredictable, although traffic has been increasing, as noted by Lasserre, Dawson and Song. For shipping to really become an agent of socioeconomic change in the region, Canadian Arctic waters cannot simply be promoted as a new navigation route to service external markets. Without critical infrastructure such as improved cartography, navigation aids, pilotage, ports, towage and salvage support, search and rescue, and pollution emergency response, the environmental risks are likely to outweigh benefits from increased shipping. The promotion of shipping must bring benefits at reasonable cost to Indigenous communities.

4 The Need to Rethink Arctic Maritime Governance

The Arctic is not a last frontier to be conquered. In the nineteenth century, the exploration for a new trade route through the Northwest Passage motivated many failed expeditions. The search for a new navigation route between the Atlantic and Pacific, until Roald Amundsen finally succeeded in navigating the Northwest Passage in 1906, was energized by romantic and imperial notions of ‘discovery.’ European sea power, industrialization and maritime trade underscored interests in the new navigation route. They ignored long-established Indigenous settlements, vibrant cultures, and their governance systems. The narrative of discovery continues to some extent today in the pursuit of new Arctic trade routes, perhaps with even greater cogency because of a combination of dramatic and progressive sea ice loss and technological development to overcome what is left. Economists might even argue that trade routes are international public goods, to be enjoyed by all and for everybody’s benefit.

There is genuine concern that increased access to and industrialization of the region could yet again push to the side Indigenous interests and concerns. Maritime trade routes are intermediaries between markets; they facilitate the interests of distant actors. Arctic trade routes, much like superhighways, could reduce sailing distances and time for voyages linking North American, northern European, and Asian continents. However, the potential danger of such developments is that the unique region and its Indigenous peoples serve external interests in an inequitable manner. Some would argue that new and shorter trade routes mean shorter distances entailing lower greenhouse gas emissions. This is a self-serving argument because the reduced emissions of non-regional polluters extend the range of their polluting emissions to a different region. They also externalize substantial risks to the region and its peoples.

Even Canada, in claiming to protect the region’s unique environment through ground-breaking regulation, focused its efforts on setting standards for vessel-source pollution prevention purposes, rather than the Arctic as a human space. In 1970, the Arctic Waters Pollution Prevention Act (AWPPA) mentioned Indigenous interests only once, and in the preamble.7 That narrative was continued in the negotiation of Article 234 of the United Nations Convention on the Law of the Sea, 1982 (LOSC),8 which concerned the power and limits of exceptional coastal State jurisdiction over international shipping in ice-covered areas, as explained by Bartenstein. Article 234 says nothing on the rights and interests of historic Indigenous users of the region, unlike other provisions in the Convention that provide a measure of protection to traditional or habitual fishing rights of States. This narrow narrative carried through as recently as during the development of the International Code of Safety for Ships Operating in Polar Waters (Polar Code)9 at the International Maritime Organization (IMO), where ten years of negotiations did not include discussion of Indigenous rights and interests impacted by shipping in the region. The trade and shipping narrative has not included the conception of the Arctic as Inuit Nunaat (and Inuit Nunangat in Canada), at least not until today in Canada.

As an Arctic coastal State, Canada has special responsibilities to safeguard its Arctic region’s uniqueness, protect its territorial integrity and sovereignty, and ensure the well-being of its Indigenous peoples. The geographical scope of these responsibilities is extensive. However, Canada’s responsibilities for the region are not limited to the polar space itself and must be exercised in regional and global fora making decisions that affect Inuit Nunangat.

Today, it is no longer appropriate, sensible, or even ethical, to discuss maritime governance in Canadian Arctic waters in a purely trade and shipping narrative. The federal government’s efforts to engage Indigenous communities and their knowledge in the process of designation of low-impact shipping corridors is laudable, but also carries certain consequences for maritime governance. Facilitation of Indigenous participation in governance should not be pursued in a paternalistic manner. There must be decolonization and genuine partnership on a nation-to-nation basis, in the spirit of reconciliation and guided by the UNDRIP, as echoed by Beveridge. The structures and processes of maritime governance need to change to reflect this imperative.

Canadian shipowners are aware of this changing context and are responding accordingly. However, the developments in Canadian Arctic waters may not be understood or appreciated by international regulators, other States and shippers who may simply regard navigation in polar waters as a public good, entailing mobility rights buttressed and protected by uniform rules adopted at the global level. The trade and shipping narrative has obscured the reality of the region as a human space, where Indigenous peoples have had homelands since time immemorial. They have used the land, waters and ice for subsistence, mobility, community building and cultural development. They are entitled to the advancement of their interests through direct and meaningful participation in the governance of Arctic navigation and shipping. It is incumbent on Canada to sensitize the international community to the uniqueness of this human and environmental space, and the necessary corollary uniqueness of its governance. The Inuit Circumpolar Council’s recent attainment of provisional consultative status at the IMO provides an enhanced opportunity to raise awareness and educate States and the industry and thereby ensure that continued regime-building in the region is cognizant and respectful of Indigenous rights as much as maritime regulation’s concern with maritime safety, security, labour rights and environment protection.

5 Towards Socially and Environmentally Responsible Governance

What could policy directions for socially and environmentally responsible governance of Arctic shipping look like and how would they differ from those extant today? At the outset, there is a need to reconsider values and principles underpinning policy goals. The traditional administration of shipping in Canada has been implicitly guided by certain values. The purpose of maritime trade is to generate wealth, to move it in a safe manner while minimizing pollution of the marine environment and maintaining public order at sea to ensure security and unimpeded mobility. Moreover, sovereignty as a value has also guided Canada in regulating shipping. Indeed, the regulation of shipping through the AWPPA was to a great extent an exercise of sovereignty in the region and a message to outsiders.

In the contemporary context of shipping governance in Canadian Arctic waters, there are additional values that play important roles. They should be seen as complementary, rather than competing inter se. Justice and equity underscore the process of reconciliation in the north as elsewhere in Canada. Canada’s commitment to implement UNDRIP constitutes an undertaking to pursue these values and to redress historic harm. Corollary values accompany justice and equity, and they include rights of self-determination and cultural identity. To Canadians living outside the region, the Arctic is part of the national identity; but to Inuit, the Arctic is an integral part of their lived cultural identity. The process of reconciliation demands that Canada should do what is just and right for the region’s peoples and the environment. Rectitude entails social responsibility as an intrinsic value that should guide the federal government’s fiduciary duty towards Inuit and responsibilities in the governance of shipping. The pursuit of values necessarily entails respect for Inuit Nunangat, the Inuit homeland, and rights Inuit have long had, but that have not been necessarily recognized and respected. Modern treaties in the Arctic region and Indigenous policies, such as the Inuit Nunangat Policy,10 should inform federal shipping policy. It is possible for Canada to pursue wealth and the other core values traditionally guiding shipping in the region, including environment protection, while recognizing, respecting, and acting on the rights, interests, and developmental needs of the region’s Indigenous peoples.

Decision support systems are also important. IMO and Canadian maritime legislation tend to be evidence-based, but also the product of extensive lobbying, mostly by industry lobbies. Buhler discussed regulatory capture of maritime regulators by industry regulatees as a potential concern. There is a need for an inclusive approach to the governance of shipping that necessitates diversity of knowledge in decision support systems, as discussed by Dawson and Song. In addition to industry-generated and scientific knowledge, consideration of other ways of knowing, in particular traditional ecological and user knowledge, is essential. In the Arctic context, Aporta and others have argued that Inuit ontologies should be an integral component of decision support systems for sustainable shipping.11

The enactment of the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) indicates how Canada intends to honour its general international law obligations towards Indigenous peoples, as evidenced by UNDRIP, and to implement UNDRIP by setting out a framework for a federal legislative review.12 Applied to the navigation and shipping field, the Act provides an opportunity for the undertaking of a systematic regulatory audit of some fifty statutes and numerous sets of subsidiary regulations. Core public and private law statutes will need to be studied to determine how, for example, Indigenous marine territories, resources, and uses are protected from shipping through area-based management tools under the Canada Shipping Act, 2001,13 and in the case of damage or loss, how Indigenous interests would be compensated under the Marine Liability Act.14 More specifically in the Arctic region, and as argued by Beveridge, Inuit interests and concerns would need to be better reflected in the AWPPA beyond the preamble.

As a matter of policy, the UNDRIPA legislative audit of Canadian maritime law should be accompanied by a parallel and interrelated review of the institutional aspects of the governance of shipping discussed by Chircop. Canada has international legal obligations under the IMO conventions, and Transport Canada acts as the national maritime administration and first point of contact for the domestication of IMO rules and standards. It is already guided by cooperative federalism, reconciliation, and fiduciary duties towards Indigenous peoples; however, the notion of ‘administration’ is outdated and ought to be replaced by ‘governance.’ This is more than a terminological change because governance implies inclusion, transparency, and accountability. A governance approach should also make room for bottom-up approaches, enabling rights holders and stakeholders to propose regulatory and policy changes.

Now that Canada has embraced UNDRIP and committed to its domestic implementation, it should also consider assuming a leadership role in its further promotion and implementation at the global level. As an Arctic coastal and flag State with extensive experience in regulating polar shipping, Canada has the credentials and is well-positioned to advance Indigenous rights in the governance of polar shipping at the IMO. Global shipping interests need to be cognizant of the footprint they impose on Indigenous lands, territories, and resources. Industry is not used to doing this because their global logistical operations miss what could be characterized as matters of mere local concern. However, as argued by Lalonde and Bankes, shipping in Inuit Nunangat must respect Indigenous self-determination, consider the impacts produced by vessel operations and how adverse impacts can be prevented or mitigated.

Canada needs to engage with major flag States and the largest ship registers. Canada’s own fleet is small and the cabotage fleet is clearly within easy jurisdiction and control. However, the increasing presence of foreign flags exercising international navigation rights in Arctic waters constraints Canada’s ability to exercise unfettered jurisdiction and control, most especially in the territorial sea and exclusive economic zone (EEZ). As Bankes argues, flag States have a fundamental due diligence duty to exercise effective jurisdiction and control over their ships. It is in Canada’s interest to engage the cooperation of flag States whose ships navigate Arctic waters to sensitize them to the need for socially and environmentally responsible shipping. For Canada to play a leadership role in the IMO in scaling-up polar shipping standards, it will need the cooperation of the major flag States, including open registers. In turn, flag States have to ensure their ships comply with domestic regulation based on IMO rules and standards.

6 Concerting the Use of Governance Powers and Measures

Several contributors to this book observed that the various aspects of the Canadian governance of shipping are not necessarily consistent or coordinated or maintained over time. Lajeunesse and Lackenbauer noted that Canadian Arctic policy has waxed and waned, with high points usually driven by hortatory sovereignty claims, invocations of environmental uniqueness, and aspirations for northern development. However, policy has not always produced tangible results, as was the case of the unfulfilled longstanding promise of northern development to respond to Indigenous communities’ frequent lack of even the most basic of human needs, including appropriate shelter and food security.

6.1 Policy Criteria

While Canada has policies for the Arctic and national transportation, it does not appear to have a dedicated policy for Arctic shipping. A policy for shipping in the Canadian Arctic context should ideally state the principles guiding it, clear goals to be pursued, institutional leadership and the resources allocated to achieve intended outcomes over a specified timeline. An Arctic shipping policy must have a transparent and inclusive structure and process and a metric to determine when goals are achieved. Policy goals cannot simply be about the usual maritime regulatory outcomes, such as trade facilitation. Shipping must produce benefits for the region, for example, with respect to maritime infrastructure development and improved well-being for communities in the region while maintaining environmental values. The complexity of the shipping industry and Arctic context justify an integrated approach. Writing in 1980, Underdal explained integration as an effort to unify various elements around a conception, and implying comprehensiveness at the input stage of a policy, aggregation during the processing of inputs, and consistency among the outputs intended to be achieved.15

Comprehensiveness includes, at a minimum, temporal dimension of a policy in its long-term perspective, space in terms of the geographical scope, actors in terms of the reference group in the policy’s issue area, and issues as interdependent concerns to be addressed by the policy framework.16 An Arctic shipping policy would need to consider the climate change context and the point at which science suggests ice cover in Canadian Arctic waters will reduce to such an extent as to permit commercial transit shipping. While at this time the industry is not expressing interest in commercial transit shipping, as suggested by Lasserre, this could change by mid-century, at which point Canadian Arctic waters must have viable infrastructure in place. The geographical scope is the spatial extent of low-impact shipping corridors and consequential routeing areas for different sub-regions. The actors are public authorities, industry and commercial interests, Indigenous organizations, and civil society and scientific institutions concerned about the future of the region. As the chapters in this book have demonstrated, the issues are many and interrelated. Along with the traditional shipping concerns of safety, environmental impact, security and trade facilitation, the status of Inuit Nunangat as Inuit homeland and the imperative of reconciliation should play a central role.

Aggregation demands that ‘big picture’ policy alternatives are considered to determine cost-benefit outcomes. International rules and standards adopted by the IMO play a central role. However, in the Canadian Arctic context, the big picture cannot simply continue to be the traditional regulatory concerns in the interests of maritime trade, but must also consider the human and cultural context against the backdrop of historic injustices and at a time of fundamental environmental change. Arctic shipping produces economic, environmental, and socio-cultural costs given that the Canadian Arctic is a homeland for the Inuit people. Meaningful inclusion of Indigenous interests will enable legitimacy.

Consistency entails the pursuit of harmony within the policy.17 There must be consistency among the various policy goals advanced by the different federal, territorial, and Indigenous organizations and the implementing actions for specific issue areas. The coordinated approach to the designation of low-impact shipping corridors—involving Transport Canada, Canadian Coast Guard and Canadian Hydrographic Service—is a good example of collaboration. However, the trio should be expanded to reflect comprehensiveness of approach and aggregation of other actors, for example by involving other relevant departments (e.g., Environment and Climate Change Canada) and Indigenous organizations such as the Inuit Circumpolar Council (Canada), Inuit Tapiriit Kanatami, Qikiqtani Inuit Association and governments established by land claims agreements, among others. From a law of the sea and maritime law perspective, consistency suggests that Canada also acts in compliance with its own domestic constitutional requirements and international legal obligations. The pursuit of uniformity entails support for IMO regional polar shipping rules, which Canada in fact applies. But even on this point, the principle of uniformity must be reconciled with other concerns. Underdal suggests that consistency does not necessarily mean equal treatment,18 and indeed in the Canadian Arctic context there will be need to prioritize Indigenous interests and environmental considerations over trade with respect to issues which the Polar Code does not address, or does not do so sufficiently, for example, with respect to non-SOLAS ships such as fishing and recreational vessels.

An Arctic shipping policy should be a dynamic rather than a static commitment to act. It should be updated and calibrated to achieve policy goals on a periodic basis. It should give direction for problem solving and prescription of specific measures to be undertaken, such as regulatory and institutional aspects, management, capacity-building, and resources. Its impact must then be evaluated periodically to determine what goals are achieved over time and if any adjustments to goals and measures are needed.

6.2 Maritime Jurisdiction and Regulation

Maritime regulatory measures tend to serve both international and domestic policy goals. At a minimum, domestic regulation implements international standards and rules adopted under conventions to which Canada is a party, and when Canada is not a party, that it at least supports in principle or in part. Clearly, Canada’s decision to become a party is in itself a policy decision and commitment to multilateralism and uniformity of rules and standards, of which the Polar Code is a good example. In addition to commitment to international regulation, Canada may also regulate in pursuit of policy goals that are not readily addressed in international instruments, but which address important local concerns. In the Arctic shipping context, there is an opportunity for Canada to develop and apply standards for gaps in the Polar Code, such as standards for non-SOLAS vessels, grey water, underwater noise, and icebreaking. It can do this with respect to shipping activities in its internal waters where most of the concerns reside, and for areas beyond it would need to consider additional concerns related to jurisdiction. As observed by Bartenstein, the LOSC Article 234 power enables Canada to scale-up standards for pollution prevention. Using its sovereignty over internal waters and the territorial sea and functional jurisdiction over the EEZ, Canada has the jurisdiction necessary to address Indigenous and environmental concerns in shipping regulation.

Whatever regulatory measures might be needed for Arctic shipping, it is important to ensure that proposed regulatory change is driven by compelling need and evidenced through inclusive decision support systems drawing on science and Indigenous knowledge. It would be helpful for initiatives to be launched in consultation with affected ocean users and adopted in a manner which makes them clear and operationally achievable, consistent across waters subject to different extents of jurisdiction (e.g., internal waters, territorial sea, EEZ).

As Chircop and Greentree demonstrated, Canadian maritime law is complex and fragmented and at times subject to federal-provincial jurisdictional conflicts, giving rise to occasional unpredictability, making compliance potentially difficult and costly. Hence, an Arctic shipping policy should consider a regulatory strategy that combines clarity, efficiency, predictability, and effectiveness. The policy should also consider the industry’s self-regulatory power discussed by Buhler, which plays an important role in populating Polar Code goals with technical rules and standards.

6.3 Institutional Framework

Federal institutions, while having the powers and resources necessary for effective governance, do not always coordinate efficiently and consult on their initiatives. For example, the original Northern Marine Transportation Corridors initiative necessitated a policy rethink and was eventually relaunched as the Northern Low-Impact Shipping Corridors Initiative characterized by consultations with Indigenous communities and stakeholders. A lesson to be drawn from Dawson and Song is that an inclusive governance approach is better and more likely to find legitimacy in the eyes of those affected than simply a top-down federal administrative approach.

An Arctic shipping policy would need to address the institutional framework to deliver on policy goals. It should identify the federal institutions playing lead roles, as well as the roles of other federal and relevant provincial and territorial institutions whose mandates overlap with the policy’s goals. The criterion of aggregation in the integrated approach suggests that all relevant institutional actors are actively engaged in policy implementation, and for this purpose, some form of an inter-governmental and inter-departmental consultative body would be necessary to provide structure and process to that engagement. As indicated above, Indigenous organizations and industry and non-industry stakeholders would also have to be involved in meaningful ways. The current model of the Canadian Marine Advisory Council (North), while helpful as a clearing house of information, is likely insufficient because stakeholders are engaged infrequently and receive policy and regulatory updates rather than being actively engaged in discussing and proposing policy directions.

In addition to identifying the roles for leading, steering, and monitoring, an Arctic shipping policy should provide for institution-building. For example, it is possible that designation of low-impact shipping corridors might need to be accompanied by a dedicated institutional framework for their management, possibly similar to the St. Lawrence Seaway model, which includes a directing body composed of representatives of regulators and stakeholders. Also, given the lack of up-to-date navigation charts and local navigational concerns, an Arctic pilotage authority operating with regulatory power like similar authorities in other parts of the country might well be needed.

6.4 Management Measures

The governance of Arctic shipping will need to be supported by maritime domain awareness and area-based management. As Charron and Snider argued, maritime domain awareness needs and capabilities in Canadian Arctic waters need to be significantly enhanced and integrated. Actively managed low-impact shipping corridors and MPA s are important area-based management measures to strengthen maritime domain awareness.

An Arctic shipping policy should give direction to area-based management efforts, drawing on the broader legal framework. The Oceans Act provides a framework for the designation of large offshore management areas, such as the Beaufort Sea Initiative, local area integrated management plans, and MPA s.19 MPA s may also be designated under the National Marine Conservation Areas Act20 and as marine wildlife areas under the Canada Wildlife Act.21 Additionally, maritime legislation provides management tools that can be and have been successfully used for effective area-based management, such as routeing and reporting measures. These have been effectively used in the NORDREG zone where the regulations provide for a mandatory ship reporting system for ships entering, navigating, and exiting Canadian Arctic waters, an important domain awareness tool. Transport Canada’s recent initiative of proactive vessel management programs for different regions is another good example of how a policy direction can be supported with management measures. Indeed, the notion of dynamic low-impact shipping corridors in Arctic waters, which means shipping routes are modified in real time in response to ice, weather, and other conditions, are also under discussion and can be supported in a similar manner as vessel traffic management generally.

The management of shipping can also be enhanced in other ways. Greentree identified possible management elements that could be improved, for example, with respect to the permitting of cruise ship activities where duplication and redundancy of permitting procedures are an issue. Doelle et al. further suggested exploring the employment of impact assessments in Arctic shipping. The shipping industry is not new to risk assessment, and indeed the business models and regulatory approaches tend to be underlain by risk governance considerations. However, given the recent enactment of the Impact Assessment Act22 and the developing low-impact shipping corridors, it is useful to consider how impact assessment of the corridor system can be undertaken.

6.5 Resources and Capacity-Building

An Arctic shipping policy would need to be properly resourced for the long term. It must ensure that the federal departments concerned are truly pooling and using common resources to achieve common policy goals. The needs include massive capital investments for physical infrastructure, such as a system of regional ports, fleet maintenance and renewal, establishing standing search and rescue and pollution response capacities, and ongoing provision of other services such as salvage and towage. Human resource development will also be needed. The funding may well have to be a mixture of public and private. It would be unwise for Canada to levy fees for transit alone, as this might unnecessarily provoke neighbouring and other maritime States. However, fees may be justified for services that are legitimate safety requirements, such as icebreaking and pilotage to support transit shipping.

While shipping industry and other stakeholders are usually well-resourced, knowledgeable, and connected participants, and able to undertake effective lobbying and participate meaningfully in consultation processes, Indigenous communities do not fare as well. Significant concerns for Indigenous communities are lack of transparent information and frequent lack of capacity to advance concerns about shipping and to participate effectively in consultation processes. Capacity-building for effective participation is called for, and Kikkert et al. demonstrated how this could be pursued in the context of search and rescue.

7 Concluding Thought

As we conclude this book, we leave the reader with the thought that the need to review the governance of shipping in Arctic waters in the light of reconciliation, low-impact shipping corridors and the mandated maritime legislative review to facilitate implementation of UNDRIP provides Canada with a testbed for exploring novel approaches for managing the interface between shipping and Indigenous rights. Given the profound environmental change underway in the region and the consequential scientific, economic, and social uncertainties, Canada is well advised to embrace precaution as it rethinks the governance of Arctic shipping.

1

Inuit groups include: Iglulingmiut (Iglulik Inuit), Inuinnait (Copper Inuit), Inuvialuit (Western Arctic Inuit or Mackenzie Delta Inuit), Kivallirmiut (Caribou Inuit), Labradormiut (Labrador Inuit), Nunavimmiut (Nunavik Inuit or Ungava Inuit), Nunatsiarmiut (Baffin Island Inuit), Netsilingmiut (Netsilik Inuit) and Qikirtamiut (Sanikiluaq Inuit).

2

These include: James Bay and Northern Quebec Agreement, 1975; Inuvialuit Final Agreement, 1984; the Umbrella Final Agreement for Yukon, 1990 (Yukon First Nations); Gwich’in Comprehensive Land Claim Agreement, 1992; Nunavut Agreement, 1993; Sahtu Dene, 1993; Métis Comprehensive Land Claim Agreement, 1993; Tlicho Land Claims and Self-government agreement, 2003; Labrador Inuit Land Claims Agreement, 2005; and Nunavik Inuit Land Claim Agreement, 2006.

3

UN Doc A/RES/61/295 (13 September 2007).

4

Crown-Indigenous Relations and Northern Affairs Canada, “Canada’s Arctic and Northern Policy Framework,” Government of Canada, last modified 22 November 2019, Goal 5.9 and Annex, https://www.rcaanc-cirnac.gc.ca/eng/1560523306861/1560523330587.

5

Northern Canada Vessel Traffic Services Zone Regulations, SOR/2010-127.

6

Adventurer Owner Ltd v. Canada, 2017 FC 105, 2018 FCA 34.

7

RSC 1985, c A-12.

8

Adopted 10 December 1982 (in force 16 November 1994), 1833 UNTS 3.

9

International Code for Ships Operating in Polar Waters (Polar Code), IMO Resolution MSC.385(94) (21 November 2014, effective 1 January 2017); Amendments to the International Convention for the Safety of Life at Sea 1974, IMO Resolution MSC.386(94) (21 November 2014, effective 1 January 2017); Amendments to MARPOL Annexes I, II, IV and V, IMO Resolution MEPC.265(68) (15 May 2015, effective 1 January 2017).

10

Inuit Nunanganut Atuagaq (Inuit Nunangat Policy), Prime Minister of Canada (21 April 2022), https://pm.gc.ca/en/news/news-releases/2022/04/21/inuit-crown-partnership-committee-endorses-historic-inuit-nunangat.

11

Claudio Aporta, Breanna Bishop, Olivia Choi, and Weishan Wang, “Knowledge and Data: An Exploration of the Use of Inuit Knowledge in Decision Support Systems in Marine Management,” Governance of Arctic Shipping: Rethinking Risk, Human Impacts and Regulation, eds., Aldo Chircop, Floris Goerlandt, Claudio Aporta and Ronald Pelot (Cham: Springer Polar Sciences, 2020), 159–169, https://doi.org/10.1007/978-3-030-44975-9_8.

12

SC 2021, c 14.

13

SC 2001, c 26.

14

SC 2001, c 6.

15

Arild Underdal, “Integrated Marine Policy: What? Why? How?” (1980) Marine Policy 4(3):159–169, at 159.

16

Id., 160.

17

Id., 161–162.

18

Id., 162.

19

SC 1996, c 31.

20

SC 2002, c 18.

21

RSC 1985, c W-9.

22

SC 2019, c 28, s 1.

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Shipping in Inuit Nunangat

Governance Challenges and Approaches in Canadian Arctic Waters

Series:  Publications on Ocean Development, Volume: 101

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