[Recorded by Electronic Apparatus]

Thursday, May 9, 1996

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[English]

The Chairman: I call this meeting to order.

As part of our continuing study of the Arctic, I would like to welcome Dean Donald McRae. He's no longer the dean, but maybe we could give him that title anyway. He is the former dean of Ottawa law school and, if I dare say, a former colleague, if that's permissible. We also welcome David Cox, who is a professor of political science at Queen's University, also a former colleague of sorts.

We're talking this morning about security and sovereignty issues. Mr. McRae, perhaps you could go first.

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Professor Donald M. McRae (Faculty of Law, University of Ottawa): Thank you very much, Professor Graham.

I thought that in some introductory remarks I would talk about the legal aspects of the sovereignty issue and also ask some questions about the contemporary relevance of the sovereignty issue at the present time. I'm a lawyer and therefore probably approach this issue quite differently from Dr. Cox. In any event, I would like to outline the nature of the legal issue, where we stand at the present time, and what we might think of for the future.

First of all, the contemporary sovereignty issue is whether or not Canada can claim full authority - that is, sovereignty - over the waters of the Canadian Arctic archipelago. In principle, a state can claim full sovereignty only over waters that lie behind the territorial sea. That normally limits the claim to bays or enclosed areas of water like on the west coast, Georgia Strait, and perhaps more controversially on the east coast, because the United States is a little equivocal about this, the Bay of Fundy.

Of course, territorial sea allows the right of innocent passage, and Canada does not admit any right of passage in the waters of the Northwest Passage. So it's not sufficient to call the Northwest Passage territorial sea because that would mean there would be right of passage through it. Nor does Canada accept that the Northwest Passage constitutes an international strait through which there would a right of innocent or a right of transit passage.

There are a number of ways in which Canada has sought to formulate the claim to sovereignty over the waters of the Arctic archipelago. One is the sector theory. Another is the historic waters claim. The Arctic Waters Pollution Prevention Act was seen as an example of a functional approach claiming jurisdiction incrementally over the area.

There is also the basis that says Canada is entitled to draw straight baselines joining the mainland and the islands of the Arctic archipelago. Normally baselines follow the low water mark, but straight baselines joining headland to headland or headland to island are justified where the coast is heavily indented and where there are islands lying offshore. Norway's coast is a classic example of a coast where you could draw straight baselines for the territorial sea rather than following the low water mark around the coast.

It is the straight baseline method and approach that provides the real legal justification for Canada's claim, even though it was only in 1985 that Canada finally drew the straight baselines that gave finality, in a sense, to that claim, following the voyage of the Polar Sea in 1985.

The legal argument that supports drawing those baselines is that because of the particular geographical nature of the Arctic area, with the mainland and the many islands off the coast, even though on a gigantic scale, there is a sufficiently close relationship between the mainland, the islands, the sea and the ice to provide a unique relationship and to justify the drawing of these straight baselines.

Moreover, the argument also is that these waters cannot constitute an international strait because there have been insufficient transits of vessels through them. The waters have not been used in the legal requirement as an international strait. In something like 11 or 12 transits of the Northwest Passage, almost all of them were with the consent of the Government of Canada. So it is argued that these waters cannot constitute an international strait.

The actions taken by Canada in drawing the straight baselines indicate the Canadian position. The question that always arises is what the reaction of other states is, because the claim to sovereignty depends upon whether other states accept it. In this regard the position of the United States is somewhat troubling because it has never accepted Canada's claim. It has always taken the position that the Northwest Passage constitutes an international strait.

But over time what is more important, I think, is whether the claim is actively challenged by anyone. I think that in this regard the 1988 ice-breaker agreement is very significant. What that agreement does is to guarantee that United States government ships will transit the Northwest Passage only with the consent of Canada. Those who criticize that agreement focus on the fact that the agreement also states that neither side renounces its claim. So the United States does not renounce its claim in principle. But I think that is not particularly significant. One would not have expected the United States to suddenly give up its claim.

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The important point about that agreement is that it effectively disarms the principal way in which a challenge could effectively be mounted to Canada's claim that the water is subject to Canadian sovereignty, that these are Canadian internal waters. That's because the practical way of testing that claim is through sending vessels through the Arctic waters, and the ice-breaker agreement says that the United States will only send their vessels, their ice-breakers, through with the consent of Canada.

So, effectively, I think that agreement has taken away the only practical challenge that's likely to exist to Canada's sovereignty claim.

I think that in most respects, Canada has done what it can to ensure that it has sovereignty over the waters of the Arctic archipelago. But there are a couple of elements relating to maintaining effective control, which is how you manifest your sovereignty: you show that you have effective control over the area.

There are a couple of elements that are, I think, a little problematic. The first one is the presence in the area of Canadian vessels actually in the waters of the Northwest Passage. The second one is the knowledge of who else is there.

The problem arises, I think, only with respect to potential submarine transits of the waters of the archipelago. If submarine transits do take place without the knowledge or approval of Canada, over time, a sufficient number of submarine transits could turn the waters into an international strait.

This is a threat not just from the United States; it's a threat that would exist from the Soviet Union or any other country that is able to transit below the surface of the waters of the Arctic.

So that means that it is important for Canada to know whether there are submarines transiting the Arctic and to be able to identify who they are and to be able to ensure that the states sending their vessels through the Arctic are going with Canada's consent.

How can Canada protect against this? The Polar 8 ice-breaker, which was cancelled, would have gone some way to dealing with an effective year-round presence in the waters of the Arctic, and may have dealt with the issue of detection, but probably the installation of a submarine detection system at the choke points on the navigable routes would ensure at least that there was a knowledge of vessels, submarines, transiting through the Arctic. In the absence of some way of knowing, we really have no way of telling whether someone is effectively mounting, through submarine transits, a challenge to Canada's position.

Another uncertainty, I think, is the impact of the Law of the Sea Convention when Canada eventually ratifies it. Under article 234 of that convention, there is a provision that justifies a state taking measures, environmental measures, with respect to ice-covered areas within the exclusive economic zone. That provision effectively gives the coastal state the right to take measures to control marine pollution in ice-covered areas in a way that it could not control normally within the exclusive economic zone. But that article does imply that navigation will be permitted through these ice-covered areas.

So article 234 of the Law of the Sea Convention, which Canada pushed very hard to have included, does not go so far as recognizing full sovereignty over the waters. So it is possible that when Canada ratifies the Law of the Sea Convention, some states will argue that article 234 is the basis for Canada's jurisdiction over the waters of the Arctic. That is, it is to be treated as an exclusive economic zone with exceptional powers under article 234, but would not recognize Canada's claim to sovereignty.

Now we don't know whether that will happen. It may be that when Canada ratifies the Law of the Sea Convention, no other states will pay any attention. But it is possible at that time that states will take the opportunity to protest Canada's straight baselines as being incompatible with the Law of the Sea Convention. There are some who would argue the straight baselines in the Arctic are not compatible with international law as they carve off too broad an area of the ocean in some parts of the Arctic.

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The Chairman: It's hard to get technical here, but would they achieve that by actually filing a reservation at the time of signing the treaty themselves or make a declaration later on? How would they do that?

Prof. McRae: I think they would have to lodge an objection after Canada ratified the Law of the Sea Convention. Existing parties would have to lodge an objection, either by a diplomatic note to Canada reserving their position or by lodging with the Secretary to the United Nations their interpretation of the incompatibility of Canada's trade baselines with the Law of the Sea Convention. In a sense, it's an interpretative declaration of Canada's law.

I don't know of any state that is planning to do that. That would be the logical time for states to do something if they were planning to -

The Chairman: Again, I shouldn't interrupt, but since the legislation for ratifying would come before this committee, is there something in the legislation that we should be looking for that would maybe address this issue?

Prof. McRae: I don't think Canada can do anything about that, beyond what it has done. It can just wait and see whether other states.... It has done what is necessary by the drawing of straight baselines and it mounted the legal arguments to support that. It now is a question of what other states will do.

As an addition, I suppose it is possible at that time to have a statement made about article 234 in whatever comments are made on the bill at the time it's passed, but I would have thought, strategically, that might be inviting other states to respond rather than letting the matter just go ahead as it should.

Having set out the legal position and the potential problems with it in the future, what I want to ask now is, why is a sovereignty claim important? In the past, much of Canada's energy in respect to Arctic waters has been directed to defending against a perceived threat to the sovereignty claim. So I think it's perhaps worth asking why it is necessary to have a sovereignty claim.

I think perhaps there are four justifications. Maybe there are more, but there are four that appear to me to have perhaps been behind the Canadian claim to sovereignty.

One is essentially the 19th century idea, which is that the more territory you have, the more important you are as a state. The bigger you are, the better you are as a states. The more resources you have, the wealthier you are.

Another is a defence consideration: the Arctic as a buffer zone, particularly for detection purposes in respect of any potential attack from the Soviet Union.

A third one is the question of the environment and security in that area. That is the idea that national control, through sovereignty, is necessary for ensuring that the natural environment is protected. That, of course, was one of the major reasons for the Arctic Waters Pollution Prevention Act, which was trying to prevent any marine pollution in that area in response to the voyage of the Manhattan.

The fourth reason for a sovereignty claims, perhaps, is to secure the welfare of the peoples in the Arctic, particularly those of the indigenous peoples. By claiming exclusive authority over the waters, one has the ability to preserve what is an important habitat for the indigenous peoples in the Arctic.

If those are four of the reasons that has led Canada in the past to advance a sovereignty claim, one might ask whether, at the late part of the 20th century, a sovereignty claim is the best method for securing all of those objectives.

Say I take the first objective, which is that territory size means wealth. In this time of globalization, when economic welfare is not measured as much in terms of natural resources but in terms of what you do with the capital and labour resources you have and in terms of access to domestic and foreign markets, the idea of simply adding more territory, particularly water territory, doesn't seem to have as much significance as it might have had 50 or 100 years ago.

Second - and here I'm moving into the ground of Professor Cox - in the post-Cold War era, one wonders whether or not defence considerations have to be rethought. In a time of collective security, one might ask whether one's security is enhanced by having sovereignty or exclusive control over areas, and whether, in any event, our security in the area is tied to that of the United States inextricably. Ironically, the United States is our main protagonist in respect of sovereignty over the Arctic waters.

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Third, if I take the issue of environment, which I said was behind the sovereignty claim, I think it is very clear that most environmental issues affecting the Arctic are fundamentally cross-border issues. Whether it's tanker traffic, airborne pollution, or land-based pollution, they are essentially cross-border in nature and therefore ultimately their solution has to be through bilateral, regional, or global solutions.

Again, with respect to the welfare of the indigenous peoples, one might point out that at the present time, the international movement towards recognizing the rights of indigenous peoples recognizes their rights to make their own decisions. The sovereignty claim on behalf of Canada doesn't necessarily advance their ability to make their own decisions.

I'm not suggesting that a sovereignty claim to the waters of the Arctic is obsolete or that it should be forgotten. What I am saying is that the idea of claiming sovereignty as a means of securing those objectives has more of a 19th-century than a 21st-century ring about it. The objectives that led Canada to pursue vigorously the claim to sovereignty in the Arctic may well be achievable rather through bilateral, regional, and multilateral mechanisms.

Finally, if it is right that a regional or multilateral approach is the way of the future, is such an approach incompatible with maintaining a sovereignty claim? Although I think this has changed somewhat, much of the concern in the past about being involved in the Arctic regionally or on a multilateral basis has been that this might prejudice Canada's sovereignty claim. I don't think that is a concern that is as great as it was in the past, nor should it be a major concern.

As I've mentioned, since the drawing of straight baselines and the 1988 ice-breaker agreement, apart from the question of the detection of submarine transit, there is little if anything more to be done to enhance Canada's claim to sovereignty over Arctic waters. What is more important is whether over time other states acquiesce in that claim.

In this respect, as long as Canada is able to respond to any expressed challenge to its position in respect of the Arctic, whether at the time of the ratification of the Law of the Sea Convention or whether by the action of states in the Arctic, it seems to me that is all that needs to be done.

Placing emphasis on collaborative activity with other states in the region and respective of Arctic waters rather than focusing on sovereignty does not seem to me to impair Canada's claim. It may even be interpreted as Canada acting as the sovereign in the region rather than being seen as perhaps defensively reacting every time some state does something that looks as if it is prejudicial to our claim.

Thank you, Mr. Chair.

The Chairman: Thank you very much, Dr. McRae.

Now I would ask Dr. Cox if he would comment on the security issues.

Professor David Cox (Faculty of Political Studies, Queen's University): Thank you,Mr. Chairman.

The Chairman: Maybe you could start by telling us where those submarines are.

Prof. Cox: Well, Dr. McRae has raised that key issue and I will come to that, because really the question is how much we are willing to pay to find out how few submarines transit the Northwest Passage. I don't mind repeating that because I think that's the key problem we face. How much are we willing to pay to find out how few submarines transit the Northwest Passage? I will come back to that.

I wanted to begin by just explaining that my background is as a specialist in defence, in security issues, and in arms control issues. It's because of that background that I became interested in the Arctic, many years ago actually. I'm not an Arctic specialist in the regional sense.

Some years ago I had the opportunity to build on previous work by working for the United States Office of Air Force History in reviewing their cooperation with Canada in the development of strategic air defences. At that time I was very impressed by the quantities of materials in the United States Office of Air Force History alone, which documented the United States' involvement in development and the military construction in the Canadian Arctic.

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I begin, therefore, by making an overall point. Perhaps the clearest indication of that early involvement of the United States in the Canadian Arctic was the construction of the Distant Early Warning Line - the DEW Line, as it's called - between 1955 and 1957. The construction of the DEW Line at that time was a dramatic engineering feat, conducted mainly by the United States with Canadian support, but in retrospect, to me it illustrates the several dimensions of security in the Arctic.

The first is that the DEW Line was built, really, in response to strategic concerns, primarily of course the concerns of the United States, because by the mid-1950s and then from the mid-1950s through the mid-1960s, the direct attack upon the United States from the Soviet Union was across the Arctic. The United States wanted not only the maximum warning of such an attack but also a capacity to respond to such an attack as far north as possible, in principle over the Canadian Arctic. So from the mid-1950s, the Canadian Arctic was really the foreground, the battleground, of any strategic confrontation between the United States and the Soviet Union.

In constructing the DEW Line, the United States and Canada - we were of course substantial partners in that - at the same time exposed a second question, the question of sovereignty. After the construction of the DEW Line there were certain bases in the Canadian Arctic that could only be visited by Canadian officials with the permission of the United States base commander. So immediately there was a question of Canadian sovereignty in the Arctic, which Dr. McRae has clearly illustrated continues in many other respects.

Thirdly - and these I think are the current dimensions as well - the DEW Line was built without reference to, and I think it's fair to say without regard to, the patterns of habitation, customs and traditions of the people who lived in the vicinity of the DEW Line bases. So inadvertently - and I think it was inadvertent - the construction of the DEW Line changed the pattern of communication and the lifestyle of those people who lived in the far north, and not always to the good.

Using that example, I point to what I think is the paradox of the Canadian Arctic and the Arctic in general, from a security point of view. On the one hand, the Arctic is a strategic zone of confrontation. On the other hand, it is a region with its own problems, characteristics and concerns. Those two viewpoints have not in the past been brought into any kind of constructive, unified approach to Arctic issues.

I would say that at the present time we are witnessing, primarily through the development of the Arctic Council, a shift from a preoccupation with the Arctic as a strategic zone of confrontation to a concern with the Arctic as a region. That, in my view, is all to the good, but it will still create strains, because there are still strategic issues in regard to the Arctic.

Next I would like to make some comments about the development of United States and Canadian policy in regard to the Arctic as a strategic area.

Of course the principal concern of the United States was security. For the United States, therefore, both in using the Arctic as their direct path of attack on the Soviet Union and in being subject in return to attack by the Soviet Union across the Arctic, the Arctic itself was in effect nuclearized. The United States' strategic bombers crossed Canada and the Canadian Arctic carrying nuclear weapons, and there is at least the expectation that Soviet bombers approached Canadian territory across the Arctic carrying nuclear weapons, thereby creating, if nothing else, a continuing concern that an accident would create dramatic environmental damage in the Arctic.

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Despite this, throughout the Cold War period, and to a large extent still at the present day...the United States still sees the Arctic in strategic terms, not in fact as a region. I think it is fair to say that throughout the Cold War Canada also saw the Arctic not as a region of concern but primarily as a set of activities - talking in security terms - which were a part of the east-west confrontation and therefore had to be dealt with in terms of the main negotiations east-west, those being the nuclear disarmament talks between the United States and the Soviet Union and the discussions between NATO and the Warsaw Pact.

For the people who wanted to see the Arctic as a region and not, as it were, a dimension of the east-west conflict, in the Cold War, and even towards the end of the Cold War, it was always an uphill battle.

In 1989 I was the lead writer in a study conducted by the then Canadian Centre for Arms Control and Disarmament in which we looked at arms control issues in the Arctic and consulted a great many specialists in Canada, the United States, and the European Arctic countries. We made a series of proposals, most of which have not since seen the light of day.

But two in fact have. One was that Canada create a circumpolar ambassador, and that happened two years ago. The second was that Canada take the initiative in proposing an arctic council, and that indeed is well in progress.

Why try to shift the emphasis from looking at the Arctic in security terms to looking at the Arctic as a region?

I think one can now, with hindsight, very easily document the serious damage, actual and potential, to the Arctic that was created by the bipolar, primarily nuclear confrontation. I want to cite some cases that clearly link security issues to environmental issues.

For example, in November 1992 Russian scientists sought U.S. financial and technical help in coping with the consequences of various nuclear accidents and radiation problems in the Arctic. In a 1989 accident the submarine Komsomolets sank in 5,000 feet of water in the Norwegian Sea, and at the end of 1992 the Russians stated that there was increasing danger that its reactor and nuclear-tipped torpedoes were no longer watertight and that plutonium might be released into the water.

At the same time, in 1992, the Russians admitted to various forms of nuclear dumping in the Arctic, which again were shocking revelations at the time. For example, they advised the United States that they had jettisoned nuclear reactors from the ice-breaker Lenin and dumped decommissioned nuclear reactors from submarines in Arctic waters.

Informally, Russian scientists also advised United States scientists that from 1961 to 1990 between 11,000 and 17,000 nuclear waste containers were dumped off Novaya Zemlya and 165,000 cubic metres of radioactive liquid waste were dumped into the Barents Sea. Then in March 1993, at the height of frankness, as it were, President Yeltsin circulated a Russian scientific report that admitted the Soviet Union had violated international standards in its disposal of nuclear wastes but noted that the Russians continued to dump dangerous liquid wastes at sea because of the shortage of facilities on land.

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I want to cite one more case to bring the matter closer to home. In 1986 the Department of Indian and Northern Affairs in Canada undertook a clean-up of the Dew Line sites, which had been decommissioned. Subsequently there was the Green Plan. The 1989 Green Plan allocated$30 million for the clean-up of those sites, but in April 1993 our own defence officials estimated that the actual cost, which they hoped to share with the United States, would be between $100 million and $250 million.

The clean-up involved the removal of contaminants such as lead, zinc and PCBs to prevent them from entering the food chain, and it was said it would take up to ten years to complete.

I have just cited those examples of how one might see the effects of strategic issues on the Arctic as a region and on its inhabitants, but I can assure you it's not a complete list.

More recently in 1993, at a meeting here in Ottawa, Soviet scientists for the first time revealed information about the severity of the leakages from the nuclear test site at Novaya Zemlya. They admitted for the first time that their containment procedures at Novaya Zemlya were seriously flawed and that the dispersal of those contaminants from nuclear tests depended entirely on the direction of the wind at the time of the test itself.

I'll give you one more example, because it may very well come up in your other hearings. It's not the Soviets and the Russians alone who are negligent in this. In the mid-1960s the United States suffered the worst nuclear weapon accident of all in the Arctic at their base in Thule. A B-52 practising take-offs and landings crashed, with the destruction but not the detonation of its nuclear warheads. A part of the clean-up of the Thule accident involved sweeping radioactive materials into the Davis Strait.

So we have many indications of the linkages between security issues and environmental and other issues in the Arctic, and I think it is fair to say that in Canada we have not been entirely supportive ourselves of attempts to prevent and take early action against those issues.

I then come to the present situation. Canada's position obviously has changed in regard to the Arctic. We are much more interested in seeing the Arctic as a region and in emphasizing non-security issues as a way to promote cooperation. That clearly is the intent of the Arctic Council.

But perhaps it's worth dwelling just for a moment on the United States approach. While the United States is, shall I say, a lukewarm supporter of the Arctic Council insofar as its mandate involves non-security issues, from the very outset the United States has made it clear that it would not agree to placing security issues on the agenda of the council. The reason for that is of course quite evident. The United States thinks it's necessary that it maintain complete freedom to act unilaterally for purposes of its own security. That means it is not at the present time willing to discuss issues, especially issues concerning nuclear weapons, insofar as they affect the Arctic.

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The Arctic Council therefore has been constructed, so far, in such a way as to avoid security issues by and large. But there is a phrase in the draft statute or manifest of the council that is important. It says that one of the purposes of the council is to promote peace in the region. ThereforeI think we have enough, at least in the draft stage of the council, to see in the long term - andI emphasize in the long term - an opportunity to use the council to discuss security issues.

Then what are the security issues we should take seriously as long-term objectives in the Arctic? Here I want to try to set out a more ambitious and therefore less realpolitik agenda than others might be willing to countenance at the moment.

In my view, what we should do as our long-term objective is to state that our ultimate goal is to demilitarize the Arctic. For example, in regard to the most lethal pollutants of all, nuclear materials, the circumpolar states could set as their long-term goal a nuclear regime to regulate all aspects of nuclear activity. Specifically in the military context, we could now revisit the old proposals for a nuclear weapon free zone in the Arctic.

In the past there have been many objections to this proposal and they remain very serious. There are two in particular. One is the Murmansk base of the Russians, which is one of their principal nuclear bases and which is within the Arctic Circle and therefore within any recognizable Arctic nuclear weapon free zone. The second, of course, is the strategic importance of the Arctic to the United States navy and to the United States air force. The challenge is to think of a process, andI emphasize process, that would take us step by step towards that notion of demilitarizing the Arctic while not ignoring these very serious issues, which pose specific problems for the United States and Russia.

There is therefore an advantage, in my view, to a different title. The one that has been used, which I recommend to you for your consideration, is the phrase ``an Arctic zone of peace and cooperation''. This might involve all of the Arctic states in a variety of cooperative measures, with a view to ultimately creating that nuclear weapon free zone.

I give you just one example as an intermediate step. We have now replaced the Distant Early Warning Line, the DEW Line, with the north warning system. One might now ask what is the value of the north warning system because there are few if any Russian bombers that even approach our side of the Arctic. Perhaps this is a useful time to revisit some confidence-building measures that might include, for example, using NORAD as one part of a larger circumpolar surveillance network that would essentially share surveillance data with all of the Arctic states.

I come finally to an issue that is perhaps a purely Canadian issue. I can return here,Mr. Chairman, to your first question and to pick up some points raised by Professor McRae. Should Canada develop and deploy an Arctic subsurface surveillance system? This proposal was first outlined in the 1987 Defence white paper, and generally speaking it involved the placement of passive sonars on the seabed in the Robeson Channel, in Jones Sound off Ellesmere Island, and in Barrow Strait near Resolute Bay. These locations are in fact choke points through which submarines must pass when transiting the Northwest Passage.

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The system would consist of sensors and cables on the seabed, remote electronics to prepare the data of the telecommunications, and a land line or a microwave repeater system to transmit the data to a satellite ground terminal.

The total cost of the system, as estimated by the Department of National Defence in previous defence estimates, is between $50 million and $60 million dollars. The capital cost of the system has not been approved, and in the 1993 and 1994 Defence estimates, only a relatively small amount of money, something like $3 million, was allocated for development.

So the question is - and I think the presentation by Dr. McRae has put this issue to you - should we go ahead and develop that system? That raises the question of what it would actually detect.

Of course, here in Canada we are largely in the dark because the United States will not share with us information about the passage of nuclear submarines through the Northwest Passage. IfI were making a guess, I would be very surprised if there are more than three transits a year of American submarines through the Northwest Passage. It would not surprise me if there are years in which there are no transits at all. So if you paid the $60 million for that sensor system, you have to ask yourselves how you would feel about the pay-off to it.

On the other hand, Dr. McRae raised the question that this was the challenge to Canadian sovereignty. I would just like to point out to you that informally, in discussions among academics and others, Americans have raised the issue that in a court challenge, the United States would produce the logs of U.S. submarines to demonstrate that they had transited routinely and traditionally the waters of the Northwest Passage without challenge by Canada. Of course, this is because we did not know they were going through.

I have one last point on this, and it is that we should not necessarily see the Northwest Passage as a unique case in this regard. There are other territorial issues involved in which United States submarines have transited Canadian waters, and maybe this issue can be placed in a broader context.

With that, Mr. Chairman, I will conclude these opening remarks. I look forward to your questions and comments. Thank you.

The Chairman: Thank you, Professor Cox. You obviously haven't seen The Hunt for Red October, or you'd know what's going on down there.

I'd like to open it up for questioning.

[Translation]

Mr. Paré (Louis-Hébert): It takes a bit pretentiousness to start with such pointed questions. However, I do have three questions.

Could a futuristic vision of the possible development of the Arctic area over the next 25 years lead us to think, amongst other things, that it might be necessary not to drop the question of Canada's sovereignty in that area?

How does the charter of the future Arctic Council address the matter of the sovereignty of the signing states?

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Don't the ecological problems described and known to us show that the solutions can't be contained within an idea of sovereignty?

[English]

The Chairman: They're complicated questions.

Prof. Cox: I'm hoping that Professor McRae will take up the second of those questions. I have a response to the first.

One issue that I think it would be valuable for you to consider is that our claims to Arctic sovereignty are opposed not only by the United States, but are not looked on favourably by the European Arctic countries, because they raise issues about Russian claims to sovereignty on the European side of the Arctic.

As we move - and as I hope we are moving - towards a more cooperative approach to the Arctic, in which we will rely increasingly on cooperation with the other Arctic countries, especially with the smaller European countries who are our natural allies, then indeed we might have to think again about our claims to sovereignty, shall I say, and think about our willingness to pool, to share sovereignty on those issues.

Prof. McRae: In respect of sovereignty claims as a means to solve environmental problems,I think it is quite true that the environmental problems that would concern the Arctic have to be resolved with other states. The advantage of the sovereignty claim is that it provides a starting point. Someone has to be the negotiator on behalf of Arctic interests. Otherwise, if it is an area that everyone claims as part of their own, no one is the interlocutor for that area.

The point I made earlier is that sovereignty will not provide a mechanism for solving the environmental problems, because they cannot be resolved on the basis of a single nation resolving the problem. If one is clear as to who owns what, at least you have a starting point for bargaining around a table over how you resolve the problem.

It certainly clarifies the issue in terms of who's speaking on behalf of the area. But the nature of the problem is not territorial, and therefore territorial sovereignty, of itself, will not provide the mechanism for solving the problem.

[Translation]

Mr. Paré: Does the charter of the future Arctic Council address matters concerning sovereignty?

[English]

Prof. McRae: I haven't looked at the charter. I don't think so. I doubt it.

The Chairman: Can I just follow up on Monsieur Paré's question? It seems to me that what we're saying and what you're telling us, with respect to the aboriginal peoples, for example, is that they are nervous about the traditional 19th century sovereignty notions up there because that gets in the way of the formation of a true Arctic entity in and of itself.

I think that's Monsieur Paré's question. How do we get over this 19th century hurdle and into the 21st century if we're going into the Arctic?

Is that a fair rephrasing of your question, Monsieur Paré?

[Translation]

If I understand your question, the traditional ideas of sovereignty would not be applicable in the Arctic because of present developments. It's up to us to find new solutions. The native peoples who have appeared before us have already said they were searching for other solutions based on international cooperation more than concepts of sovereignty.

Mr. Paré: On the contrary, in my first question, I was asking if, with an optimistic view of its development, which is difficult to predict, during the next 25 or 100 years, the Arctic region might develop to such a point that we may have regrets about dropping the concept of sovereignty?

We may not see things that way today, but might it be possible that we would regret it 50 years down the road?

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The Chairman: We lost...

Mr. Paré: That's my first question. Mind you, I seriously doubt it.

[English]

The Chairman: All I did was muddy the Arctic waters. I'm sorry.

Prof. Cox: I was just going to respond on the question of the charter, if that's what it is, of the Arctic Council. The draft charter, or the versions that I have seen, do not directly challenge the sovereignty of any state, and it is based on the eight circumpolar states.

However, the council may be unique in granting status to non-state governments in the council. There is a category of participating members; for example, the Inuit Circumpolar Conference. If you are looking at the question of sovereignty, the permanent presence of those non-governmental actors could be very important in the long term.

Prof. McRae: I think the idea of sovereignty in the Arctic carries with it much more than the actual issues are concerned with. The issue for Canada, talked about in terms of sovereignty of the Arctic, is not about land; it is only about whether or not the waters of the Arctic archipelago are the internal waters of Canada. It gets down to a fairly fine legal distinction as to whether or not there is a right of innocent passage or a right of transit passage through those waters. That really is the only Arctic sovereignty issue. All of the issues relating to the Arctic that the Arctic Council are concerned with...the issues relating to those waters are only part of a much broader picture.

The problem that poses for the United States is not broad sovereignty claims elsewhere; it's a question of navigation for their ships through waters over which other states around the world might also make sovereignty claims.

From time to time, of course, the question comes up as to whether the Arctic Sea could be enclosed by all of the littoral states. This is not a very serious issue at the present time.

So I think that the only issue in sovereignty is who controls passage over those waters, and the concern of course, as Professor Cox mentioned, is that the Russians might be encouraged to make more expansive claims over larger areas of the waters.

The real sovereignty issues are fairly narrow and confined, and if one talks in terms of giving up sovereignty or abandoning claims, that carries with it, I think, a much broader idea that all of the Arctic states would somehow be less sovereign over the areas in which they are recognized as sovereign.

Sovereignty in the Arctic now, as far as Canada is concerned, is really a question of who controls passage of vessels through these waters. It's a very narrow issue, in fact.

The Chairman: Mr. Morrison.

Mr. Morrison (Swift Current - Maple Creek - Assiniboia): Dr. McRae, I apologize for coming in late. Perhaps you've already touched on this. In your discussion did you mention the transit of the Manhattan through the Northwest Passage?

Prof. McRae: I didn't mention it, except I briefly indicated that it was the background to taking an approach to dealing with the issue on an environmental basis rather than a full sovereignty one.

Mr. Morrison: Then I have a question. There is the 1988 agreement that says the U.S. will let us know when they're going through, but didn't the Manhattan transit really set a very strong precedent for making the Northwest Passage international water? Are we not trying to play catch-up here in getting back to making a sectoral claim over everything there?

Prof. McRae: I don't think it set things back. I think it indicated the potential problem for the future. The Manhattan was one voyage, which in fact could be completed only with the assistance of a Canadian ice-breaker. So it wasn't as though it was a foreign vessel able to go through on its own without any assistance from the Canadian government.

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The law on passage through international straits was laid down in a case concerning the Corfu Channel. There, in order to show that the channel was used for international navigation, they were able to show something like 3,000 voyages through those waters. We're talking about 11 or 12 over a long period.

So I don't think one voyage makes a difference to the claim. I think it indicated the potential. At the time of the Manhattan there were all kinds of schemes for transporting oil from the Alaskan North Slope through the Arctic. If that had happened, so one was seeing regular transits several times a year, then one would get towards the argument this was a passage used for international navigation. But I don't think the Manhattan itself really establishes anything other than a potential. It doesn't change the legal position.

Mr. Morrison: My next two questions are for Dr. Cox.

The Chairman: Mr. Morrison, may I interrupt for just one second? You said in your question we're advancing the sectoral claim. Is it your understanding that we do advance that? My understanding is that Canada no longer advances the old Senator Poirier sector up-to-the-pole claim. Perhaps Professor McRae could clarify that for us, but I don't understand that to be the official Canadian government position any more.

Prof. McRae: I don't believe Canada has ever formally abandoned the sector claim as something it might use if the issue ever got before a court, but I've never seen it as a serious first-rung defence of the Canadian position in the Arctic. In law it is a very difficult claim to support.

Mr. Morrison: If we are not advancing the sectoral claim, what is our fall-back position? If we're not advancing that, then on what do we base our claim to control of the Northwest Passage, for example?

An hon. member: Straight baselines.

Prof. McRae: Straight baselines, yes.

A sector claim would mean we were claiming all the waters from a line drawn from our boundary on the west right up to the pole. In fact, all we are claiming is the waters behind the baselines that enclose the islands of the Arctic archipelago, a much lesser claim. So the Northwest Passage comes under our straight baselines claim, not under a sector.

Mr. Morrison: Thank you.

I get back then to my second question. Dr. Cox, you made quite a bit of mention of the possibility of putting in a submarine detection system. I guess it's like the dog that chases cars: what would we do if we caught one? What's the point? Can you explain that? Obviously we're not going to blow it out of the water. What is the objective here?

Prof. Cox: I think the objective would be to have clear knowledge of the transit and specifically, with each transit, to send a diplomatic note to Washington protesting the transit. That would be the legal counter to any claim the United States might make that they had transited in the Northwest Passage routinely and without objection from Canada.

Mr. Morrison: My last question, Dr. Cox. Did I understand you to indicate the dumping of liquid nuclear waste is continuing? I thought they had quit.

Prof. Cox: The last information I had was that it was continuing.

Mr. Morrison: Good God.

That's all. Thank you.

The Chairman: Mr. Dupuy.

Mr. Dupuy (Laval West): I have some questions about baselines. Do I understand correctly that the Canadian interest in the Arctic from the point of view of sovereignty would be fully covered by recognition of baselines? Why is it that other countries are reluctant to recognize baselines in the Arctic as a proper way of determining territorial waters while the doctrine of baselines is well accepted in international law? Is the concept of baselines applicable to the Arctic, or is it the specific headland-to-headland rule that is at stake here?

Prof. McRae: In response to the first part of that, yes, if the straight-baselines method were recognized for the Arctic archipelago by all states, then Canada's objectives in having full control over the waters would be achieved. The objections that are made are essentially the length of the baselines.

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There are other areas where straight baselines have been applied on a much smaller scale, and these are not controversial around the world. The length of the baselines is much smaller because the general proposition is that in drawing straight baselines, one should not depart appreciably from the general direction of the coast.

Once one gets into a baseline that is 90 miles or 100 miles long, then in the view of some, one is departing appreciably from the general direction of the coast. In order to enclose the Arctic archipelago, there have to be a couple of fairly long straight baselines, I think through the entrance to Lancaster Sound. I believe Burma has the record for the longest straight baseline in the world; it's about 200 miles. Canada's baselines are shorter than that.

The objection to the drawing of the straight baselines in the Arctic is actually no different from the objection to a drawing of the straight baseline between Vancouver Island and the Queen Charlotte Islands, which is about 90 miles, which would enclose Hecate Strait as part of the internal waters of Canada.

The reason it took until 1985 to draw those straight baselines is that Canada has been very reluctant in all those areas to provoke a response from other states saying that we have drawn a baseline that is far too long. The reason for the objection is that it opens up the possibility of other states around the world to draw equally long baselines and cut off areas of the sea that otherwise would be open for transit.

Mr. Dupuy: So it's not invoking the doctrine for the Arctic; it's the actual technique of drawing the baseline.

Prof. McRae: It's the technique of drawing the baseline. Canada's argument is that one is justified in drawing longer baselines because of the particular nature of the unique area, both the interrelationship of the islands and the mainland and the fact that part of this is essentially frozen for most of the year. It's not really sea in a traditional sense. Those are the arguments that are put together to justify what might in some areas be regarded as a departure from the general direction of the coast.

Mr. Dupuy: Would that be negotiable and still preserve the core of Arctic interests?

Prof. McRae: It's a question of what form you negotiate it in. If you want recognition by all states, then you would have to negotiate essentially in a large multilateral forum, and it's unlikely that there's going to be a law of the sea negotiation where that issue could come up again.

If you negotiate with the particular states that are concerned, the United States and some of the European states, as Professor Cox mentioned, you might get their agreement not to object. You don't necessarily get universal recognition. In practical terms, yes, you would get recognition.

That's why I mentioned earlier that the ice-breaker agreement is a far more practical way of simply stopping the challenges or nullifying the effect of any voyage than trying to get agreement on the principle. As I understand it, the United States doesn't object to Canada's position so much; it objects to the precedent that would be established for other states around the world where the United States has strategic interests in navigating the waters.

Mr. Dupuy: Actually, I had in mind your special regime for the Arctic because I would share your view that the precedent-making elsewhere in the world and the complexity of negotiating a global agreement would be very great.

Your last comment brings to mind the other question I had, which relates to innocent passage. Basically, as I understand it, if Canada had sovereignty and the baseline is drawn by Canada, this would not prevent innocent passage in the Northwest Passage.

Prof. McRae: Yes, it would, because the territorial sea through which there's a right of innocent passage would stop at the baseline and go seaward. Canada's territorial sea surrounds the outer edge of the Arctic archipelago. Inside are internal waters and there's no right of innocent passage through internal waters. It's completely within the sovereignty of the coastal state.

Mr. Dupuy: Would it be possible for Canada to grant permission for innocent passage within its territorial waters? Surely when there is a cargo ship moving into the St. Lawrence there is no special permission to be granted. It's innocent passage within a fully recognized territorial sea. Why would not the same principle apply in the Arctic?

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Prof. McRae: First of all, once one gets into the Gulf of St. Lawrence, I think the position of the Canadian government would be that you're no longer in the territorial sea of Canada but that you've come into the internal waters of Canada. In the territorial sea there would be a right of innocent passage. As for the internal waters, ships are allowed to navigate there, but only because the coastal state allows them to do it.

The difference is that for the internal waters, such as the Gulf of St. Lawrence, the Canadian government could say ``No one comes in here''. That's the difference between innocent passage and the territorial sea. The Canadian government cannot say that no one goes through the territorial sea. It can limit and regulate and perhaps set up particular sea-lane passages through the territorial sea, but it cannot tell foreign vessels they cannot come into that territorial sea. It can tell foreign vessels they cannot come into our internal waters.

Now, as a practical matter, the Canadian government has made it clear that it does not intend to prevent passage through the Arctic waters, through the Northwest Passage. It does intend to establish the terms and conditions for passage through those waters. They'll be established by Canada. They won't be established by international agreement. They'll be established unilaterally by Canada, and that's the difference between calling it internal waters and calling it territorial waters. Calling it territorial waters does grant an international right of innocent passage.

Mr. Dupuy: Isn't this an area that could be negotiated?

Prof. McRae: It could. Canada could establish to the United States the terms and conditions under which United States vessels transit the Northwest Passage. The problem from the United States' point of view is that it would be an admission that Canada has full sovereignty over the area.

The Chairman: Thank you.

Mr. Sauvageau.

[Translation]

Mr. Sauvageau (Terrebonne): Good morning, gentlemen. I have two questions. The first one mainly concerns the Arctic Council.

Some witnesses told us about the half-hearted interest the U.S. took in the Arctic Council. First, their arm had to be twisted somewhat before they showed any kind of interest in becoming actors in this Arctic Council. A lot was said about Canada's leadership role in this matter of the Arctic Council.

Setting aside the U.S. and Canada, who has shown a lot of interest, how could we qualify the interest shown by the six other member countries of the Arctic Council?

The first witnesses also touched on funding. I think the Canadian government will take care of the funding at first. After that, it will be rotating on a basis that hasn't been defined yet. However, we know what kind of problems international organizations have with their funding. How can we ensure the perennity of an organization like that? Are we going to have to set up some protocol or specific understanding for funding? That's my first point of interest.

My second interest lies in drawing a parallel between the Arctic and the Antarctic. There are eight member countries in the Arctic. In the Antarctic, 16 or 18 countries have participated in exchanges and multilateral agreements.

Would it be useful for the committee, in examining an Arctic policy, to establish a comparison with the policies used in the Antarctic or is it completely different?

[English]

Prof. Cox: I will respond to the first question. I've been following the developments of the Arctic Council over the past year or so, and my impression is that the interest of the other six countries has waxed and waned. Sometimes there has been relatively little interest and at other times they have developed a greater interest in it. It has therefore been essentially a Canadian policy.

On the matter of the funding, my impression is that the way in which the council will be funded, which is essentially through a rotation of members, beginning with Canada, who pay for the secretariat for a two-year period, is the best that could be obtained in order to overcome the objections primarily of the United States.

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The United States has a general objection to proliferating international organizations and in my opinion has a specific objection to the Arctic Council, especially to Canada's promotion of it. They see the Canadian policy as really trying to internationalize Canada's domestic problems in the Arctic, which is a fairly traditional Canadian approach.

The United States does not want to internationalize Arctic issues and is being moved along here very slowly, in a one step forward, two steps backward kind of mode.

My impression is that other Arctic states to some extent share the American concerns.

For example, Norway is not very interested at all in giving to indigenous peoples a prominent role in the council, because it does not believe that its indigenous peoples need separate representation in the council, and so on.

The funding basis is not satisfactory - I think that's pretty clear - but it's the best that could be obtained.

Prof. McRae: With regard to the second question, I think the answer is clear that there are some important parallels with the Antarctic regime and that with the approach of the Arctic Council it is now quite important to look at the Antarctic.

That has not been possible, in part, in the past because the Antarctic regime has been developed in a quite different way.

First, with all due respect to the states that claim sovereignty in the Antarctic, there were no really very serious sovereignty claims there.

Second, the United States does not make a sovereignty claim in the Arctic. The United States has taken a leadership role there, and therefore the other states have not been prepared to push their sovereignty position in the Antarctic because the United States has said it does not recognize any of those claims. If you want to cooperate, they put those aside and cooperate.

Third, the Antarctic regime got a very good start because in the international geophysical year in 1958 or 1957 they were able to establish a regime that would dedicate the Antarctic to scientific research. That regime, the Antarctic Treaty of 1959, has been the basis for collaboration there.

So sovereignty issues have been put aside. It includes states that are interested in scientific research in the Arctic.

I think Canada has now become a party to the Antarctic regime, and it has managed to cooperate on environmental scientific issues quite effectively - not without controversy, because there has been a move in the United Nations to, in the view of some states, democratize the Antarctic system and open it to all states rather than to those states that have an interest in scientific development.

Yes, it is a regime that can be looked at very closely.

[Translation]

Mr. Sauvageau: Is there any organization similar to the Arctic Council for the Antarctic?

[English]

Prof. McRae: My recollection is that it is a consultative mechanism in the case of the Antarctic and it is a regular meeting of the member states but no formal council has been established.

[Translation]

Mr. Sauvageau: Thank you.

The Chairman: Thank you, Mr. Sauvageau.

[English]

Mr. Flis.

Mr. Flis (Parkdale - High Park): Most of my questions have already been asked. I won't repeat those.

I was intrigued by Professor Cox's suggestion of maybe using NORAD's security system for the Arctic, not only North America, and along with that the suggestion of demilitarizing the Arctic.

How acceptable would this suggestion be to Russia? If you're going to go into NORAD, then of course you have to share top secrets with the former two superpowers, etc. NORAD also paid very little attention to environmental issues, the kinds of issues you presented to the committee today. Finally, in renewing the NORAD agreement, we have built in a clause to protect the environment or to address it.

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I'm wondering how responsive Russia and maybe the other countries would be to those recommendations of demilitarizing the Arctic and using NORAD as a surveillance security system.I think it's great, but how feasible is it?

Prof. Cox: It is not an immediately attainable goal; I think that's clear.

I'll respond first to the specific question of NORAD. Proposals to share surveillance data across the Arctic are actually quite old. They go all the way back to the late 1950s. They were always offered as confidence-building measures. There were some basic problems, which I think you're pointing to - two in particular.

One is that if you look at the way in which the military surveillance systems have been built, our surveillance system is much closer to the area to be protected than was the Soviet one. So it was always argued that any exchange of data would be much to the advantage of the Russians. My impression is that these ideas are now circulating in the United States, and that on the specific question of a shared surveillance system, it would be possible to overcome the security problems. Not all information would be shared, but creating a radar surveillance net might be possible and might be considered favourably by the United States.

As to how the other countries would look at it, my impression is that the Russians would look at it very favourably, because prima facie it's to their benefit. Anything that brings them into cooperation with the United States in the military sense I think they would be interested in. The other European countries are definitely interested in it. Any kind of shared surveillance system would improve the facilities that the smaller Arctic European countries have at the moment in a national sense.

How realistic is it? I'll give you some examples that I briefly cited in my presentation. The Arctic Council didn't seem too realistic eight years ago, but it's getting closer; maybe now it about exists. These initiatives, if they are well founded, do take a long time.

Without making any excessive, grandiose claims for a demilitarized zone, my suggestion would be that this committee might look very carefully at the creation and encouragement of a parallel discussion - which could be and perhaps ought to be, in the first instance, a non-governmental discussion group - to consider specific steps towards it. I'm not suggesting that this should be pushed onto the agenda of the Arctic Council, because it would be the surest way to raise the objections of the United States. To create a parallel group could simply be a recommendation. Then it would look very much like some other proposals that have taken five to ten years to come to fruition.

Mr. Flis: Given that the U.S. was the last to agree to the establishment of an Arctic council, and given that Canada will be hosting the establishment conference and will be the first chair, what priorities should Canada put on the agenda? Knowing that the U.S. was the last to agree and knowing that sovereignty and security will be hot issues with the U.S., should those two items be priorities for the first round of meetings?

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Prof. Cox: In my view the emphasis on environmental issues is correct. I would not want to see an emphasis in the first instance on issues that touch on security.

Mr. Flis: Sovereignty?

Prof. Cox: Or sovereignty.

The Chairman: Mr. Mills.

Mr. Mills (Red Deer): It seems to me the one thing that is just so much greater than everything else all eight countries would share would be the concept of environmental security; the potential threat of this nuclear disaster that's either happening or about to happen. It would seem to me we talk about that, and you, Professor Cox, read those figures and all of us can shake our head and say wow, but nobody really seems to define how severe this problem is. Secondly, nobody seems really to define what we are going to do about it. Is it as severe as it appears, and what are we going to do about it?

Prof. McRae: I'm not sure I can answer the first part of that, how severe the problem is. Professor Cox gave the figures.

What can be done about it? I don't want to appear too cynical, but I'm not sure the environmental issues in the Arctic are any different from environmental issues around the world generally. If you ask how states have been able to deal with environmental issues through multilateral agreement, the answer is not very well and very slowly. So I don't think there'll be a dynamic that necessarily applies in the Arctic, making it easier to deal with environmental issues there, any more than there is dealing with ozone, dealing with acid rain generally. There has been a very slow movement by states to recognize they have to take measures to deal with environmental issues. Therefore I expect the same kind of difficulty is going to arise in the Arctic area as we see elsewhere in trying to deal with environmental matters.

Mr. Mills: It would appear cost is such a major factor. If a hundred submarines are rusting away and leaking, that sounds like a huge problem, and the cost to deal with this problem must be astronomical.

Prof. McRae: Internationally there's almost a cycle, where there's a great deal of environmental awareness and then something happens to the world economy that puts environmental issues somewhat on the back burner; for instance, after the Stockholm conference in 1972, when one saw the oil crisis and environmental issues were not at the top of the international agenda. It may be argued they're coming back to that as a result of the Rio conference and a more heightened awareness of sustainability issues, but then it's not clear there is a general international consensus that these are the most important issues for states to negotiate at present.

The Chairman: Maybe you could comment on the degree to which Canada, in its international agreements, has been willing to subscribe to international controls over pollution emanating from Canada as an illustration of how difficult it is to get these agreements. My own impression is we're no better than anybody else, but maybe you could just confirm that for the record, Dr. McRae.

Prof. McRae: I expected you to ask that question. I doubt in the Departments of Foreign Affairs and Environment they would admit that as readily, because I think that is perceived as an issue on which Canada does regard itself as taking more of a leading role; for example, in the ozone area, the Montreal Protocol, which is probably one of the more successful international environmental agreements.

The Chairman: That's fair.

Sorry, I shouldn't have interrupted.

Mr. Cullen.

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Mr. Cullen (Etobicoke North): Thank you, Mr. Chair.

Dr. McRae, Dr. Cox, hello.

Picking up on the earlier point about dealing with environmental issues in the Arctic on a multilateral basis, my own intuitive feeling would be that since it's ``out of sight, out of mind'', it might even take longer to get some kind of action. But that's just an innocent observation.

I come back to the point I really wanted to deal with, and perhaps it's best addressed toDr. McRae.

You indicated that the legal issues are fairly narrowly focused, in your view, if I understood you correctly, in that we're talking about transpolar navigation and right of passage through this area of the waters of the Arctic. Is it then correct to assume that, as a matter of law, if Canada does not assert its sovereignty, any future claims on oil, gas or mineral finds in these Arctic waters...?

I'll touch briefly on the point made earlier by Mr. Paré. If we do not assert sovereignty, what are the implications on other issues? My question specifically relates to any future oil, gas or mineral rights in those waters.

Prof. McRae: I don't think there is a problem there, because if these waters are not internal, they are certainly part of the exclusive economic zone of Canada, and Canada has rights in respect of the resources of the exclusive economic zone. So I don't think there is any potential loss of mineral opportunities or rights.

The only issue is who sets the rules for vessels, whether surface or subsurface, transiting the Northwest Passage. That is the only issue really at stake here.

Mr. Cullen: Thank you.

The Chairman: The Beaufort Sea is a bone of contention between us and the United States for precisely that reason, isn't it, in terms of drawing the boundary?

Prof. McRae: In terms of drawing the boundary, yes, that is at issue. But the area we're talking about is quite clearly within either the exclusive economic zone of Canada or the exclusive economic zone of the United States.

The Chairman: Ah, so there's no problem. One or the other will regulate it.

Prof. McRae: That's right.

The Chairman: Thank you, Mr. Cullen.

Mr. Assadourian.

Mr. Assadourian (Don Valley North): What is the population of the indigenous peoples in the eight countries of the Arctic region, and what is Canada's share of the population?

Prof. Cox: I don't know.

Mr. Assadourian: Is there any body that brings these people together to present their point of view to their respective countries, or are they just on their own? We have to know. We're talking about the region where these people live. We don't live there.

Aboriginal people would know what to do and how to do it better than I would, and probably better than would most people in this room, though I don't know about everybody. Do they have a committee or association where they can all come together to present a uniform point of view to their respective countries, or do we just decide everything for them?

Prof. Cox: I think the practice varies from country to country.

There are some groups that transcend the borders of states. In the case of Norway, as I said earlier, there is little inclination to see the indigenous peoples as separate from Norwegians. In the Russian case, there are a variety of organizations. How they interact with the Russian government is an open question, because it's only in the last few years that they have actually received any kind of standing.

So it's hard for me to give a clear answer to your question, except to say I think you would find a variety of practices across the circumpolar countries.

Mr. Assadourian: When we talk about the Arctic, are we talking about the area north of the 70th parallel?

Prof. Cox: It's north of the 66th.

Mr. Assadourian: And we can't find out what the population of that area is?

Prof. Cox: Oh, yes, you can certainly find out what the indigenous population is north of the 66th, but I just don't know what it is.

Mr. Assadourian: Okay. Thank you.

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The Chairman: Mr. Paré.

[Translation]

Mr. Paré: Mr. McRae, you drew up a parallel between the low water mark and clause 234 of the United Nations Convention on the Law of the Sea as being two theories or elements that could be opposed in the matter of sovereignty.

I'd like you to clarify this because I'm not sure I have understood the nature of clause 234 of the United Nations Convention on the Law of the Sea.

[English]

Prof. McRae: Article 234 gives states the right to take special measures within their exclusive economic zone to deal with the consequences of the extreme Arctic conditions that may have an impact on the nature of navigation. Article 234 is meant to apply to the exclusive economic zone of a state.

The states that argue that the Canadian Arctic archipelago is simply the exclusive economic zone of Canada and not the internal waters of Canada would say, once Canada becomes a party to the Law of the Sea Convention, that its rights to regulate transit through the archipelago, through the Northwest Passage, would derive from article 234 of the convention.

Canada's position, at least since drawing straight baselines, and probably before that, is that article 234 would apply to areas beyond the baselines, but inside the baselines those are the internal waters of Canada, and therefore Canada has complete jurisdiction to regulate them; article 234 does not apply to that area. So the difference is really a question of whether one accepts straight baselines. If one does not accept straight baselines, then those waters are the exclusive economic zone of Canada; if one does accept straight baselines, then they're the internal waters of Canada.

Under the Canadian theory, that straight baselines govern, the internal waters apply and Canada regulates passage. Under the theory that the straight baselines do not apply, article 234 of the convention would apply and it would be an exclusive economic zone, with the power, in accordance with article 234, to take certain special measures to take account of the unique conditions.

The Chairman: Mr. English.

Mr. English (Kitchener): Dr. Cox, you've written more widely on security questions than simply on the Arctic. I want to take up one point that you made almost in passing.

You talked about the Russian release of information in 1993 and you said that it was at the height of candour. Obviously you're correct, but since that time we've seen a slide into nationalism, with a potential very soon of extreme nationalism, the possibility of a presidency that exalts the tradition of Stalin, despite what we know now about Stalin, that talks about restoring the Soviet Union. You're well aware, of course, of what it was like previously.

What impact could this have on the Arctic Council, on cooperation, indeed on the whole prospect of any talk at all about security in the Arctic?

In security terms, your comments today have always been relating to the United States, but surely the other side, as it were, presents an equal, if not greater, potential concern in that area.

Prof. Cox: Of course one has to speculate here. Obviously it is not impossible that in a relatively short time we may find ourselves drifting back to a situation in which there are again serious strategic nuclear issues between the United States and Russia. We may find, for example, that the progress in implementing the START, the strategic arms reduction agreement, will slow down and then stop. If that process stops, then you'll find that tensions will start to rise and that the United States and Russia will begin to take measures to heighten their so-called defences against each other. I think you'll also find that if the situation in Russia deteriorates in the sense of becoming more nationalist, the Russians will be less amenable to collective discussions and so on.

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If I could make a general point, if you look at arms control agreements in the past, and actually at all efforts to mitigate tensions at the security level - between the superpowers in particular, but also amongst other states - all of these arrangements are in a very broad sense confidence-building measures. They are procedures to promote dialogue to keep the parties talking to each other in the expectation that continued discussion will be of value at times when tensions are high.

In the past five years or so in the Arctic tensions have been very low in the post-Cold War period. By and large, all of the governments involved and most of the individuals who look at these issues have drawn the conclusion that it's therefore not necessary to discuss security issues. In fact, one should have drawn the opposite conclusion and said that when tensions are low, that's the time to put in place institutions and procedures that guard against the difficulties when tensions rise.

If that is the case, and it seems more or less like common sense to make that point, why don't governments act in that way? The answer clearly is because governments are so driven by their near-term agendas that anything that is immediately of low concern disappears from the agenda. That's why my conclusion is that the only way to go forward is to create non-governmental procedures and groups, sometimes now called track two diplomacy, where one keeps those issues alive and where it is possible at relatively short notice to provide plans to governments.

So I tend to agree with the drift of your question. I think things might get a lot worse, and I think we've missed opportunities in the security field to hem in or contain the parties in processes and institutions.

The Chairman: If I may say, Dr. Cox, I think the members of this committee collectively decided that this is why we are doing this study into the Arctic, to make sure it does get on the agenda. Some people are thinking about these issues.

Mr. English.

Mr. English: The Government of Canada always links the long term, as you well know.

I grant you that it was a very good answer, but in this context what are the non-governmental organizations we could...? The Scandinavian is obvious, but what are the ones in Russia? You are familiar, and so am I to some extent, with the ones that were in the Soviet Union, but what are they today? Are there non-governmental organizations in Russia focusing on northern questions? Is the Institute for Canada and the United States still an actor? What's left?

Prof. Cox: I'm tempted to say that in that regard Canada and Russia have something in common. We've both destroyed our capacity to think about these issues outside the government. As far as I can see, in Russia it is now very difficult to find organizations that are well funded, or at least adequately funded, and well organized. One has to look for partners, I think.

Let's not forget that we have very little capacity now outside the government to think about these matters in an organized and disciplined way, outside the universities. Successive governments in Canada have dismantled the independent capacity to analyse and think, because they're mainly dependent on government funding. To my mind it's very important - and I hope this committee will come back to this issue - to consider ways, especially in relation to the Arctic, in which that can be done.

I could point out that the promotion of the Arctic Council in Canada over many years has been done primarily by a private foundation, not by the government. It's been mainly done with the great reluctance of the government to provide any support at all.

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The Chairman: Is that the Gordon Foundation?

Prof. Cox: Yes.

Mr. English: Thank you.

The Chairman: Dr. McRae.

Prof. McRae: To go back to the questions asked before, one of the students from the University of Ottawa has done some research for the committee. Ms Joelle Martin just handed me a note. Her research indicates that there are something in the vicinity of 300,000 indigenous people in the countries of the Arctic region.

Of course, as far as the Inuit are concerned, the Inuit Circumpolar Conference is one way in which they collaborate with Inuit in other countries. As Professor Cox indicated, each country has its own way of dealing with indigenous people, such as home rule in Greenland and the Sami Nordic Council in Norway.

Mr. Assadourian: Of the 300,000, how many will be living in Canadian territory?

Ms Joelle Martin (University of Ottawa Student Faculty of Common Law): It's upward of 300,000. In Canada alone it would be about 80,000. That's what my last readings show.

Mr. Assadourian: Thank you.

Ms Martin: That's a strict interpretation of who is and who isn't living in that area.

The Chairman: We had someone the other day say that it was one million in Russia.

Mr. Assadourian: So it's 300,000 in population, of which 80,000 live on Canadian territory?

Ms Martin: Yes. As was just brought up, the situation in Russia hasn't been as well documented, or at least it is not as available as it is for some of the other countries. It may well be that there are one million. It's just that there were only certain groups that were recognized as such and were given certain status under the Soviet Union. Other groups have come to the fore since then, and I think they're still in the process of documenting them.

The Chairman: Since you are here, either Dr. McRae or Ms Martin might want to answer this question I had.

Your point, Dr. McRae, was that because the nature of the evolution of the notion of the rights of aboriginal peoples is developing in the United Nations and elsewhere, there may not be an absolute congruence of views between the Canadian authorities and the aboriginal peoples. We heard that in one of our earlier meetings, you'll recall. The president of the Inuit Tapirisat of Canada was kind of distancing herself from some of the other suggestions that were being made.

Would we be looking to the work that's being done in the United Nations in this area, in addition to the people we're dealing with in the Arctic, as a kind of general framework in this area?

Prof. McRae: I can start and then perhaps Ms Martin can follow up. The work that's being done in the United Nations is to a certain extent an articulation of what states would agree would be the rights of indigenous peoples as minorities and the relationship of that right to self-determination. That is an articulation of basic rights. The question is how those rights are articulated. I guess one goes to the people themselves to see what kind of rights they are articulating.

There has always been a bit of a lack of congruence between the claims of indigenous peoples in the Arctic and the Canadian sovereignty claim in the Arctic. For quite a long time, the Government of Canada never really referred to the historic usage of land and waters by the indigenous peoples of the Arctic to bolster the claim to sovereignty over the waters, because that would in effect be recognition of their internal claims to certain rights.

It's only really in the 1985 post-policy era that the Canadian government has been including the practices of indigenous peoples amongst its support for its position that it has for a long time exercised authority over this area. That has lead the indigenous peoples to say now that you recognize them, please give effect to them.

Ms Martin: I just want to follow up on what Professor McRae said. If you look at the work that the UN Working Group on Indigenous Populations is doing, they do articulate some basic, fundamental, almost universal principles that can be implemented by different indigenous groups around the world. However, the actual implementation of it is where the problems arise.

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As was mentioned earlier, in Greenland they've adopted a home rule parliament. Because there's a majority population of indigenous people in Greenland, that situation of internal self-determination that they decided on works for them. It's almost like an administrative de facto control over that territory.

However, in other situations, such as in Norway and Denmark, they've set up organizations known as Sami parliaments. They act more as advisory boards to the government there. In those countries the Sami represent a minority. Given also the historical context of assimilation and the view those governments have taken beforehand, that's the situation that works for them.

You really do have to look to the sociological and historical context of each country to see how the claims, the principles put forth by the UN working group, for example, can be implemented realistically in the nations.

The Chairman: Thank you. Our time is up in terms of our use of this room. However,Ms Martin, since you're at the table, I was just going to draw to the attention of the members of the committee that you were here and remind them that you did prepare the paper on legal issues for the committee, which has been reflected in our research.

Ms Martin is an LL M student of Dr. McRae's. We're very grateful to her for the work she's been contributing to the committee.

Thank you very much for your help.

Dr. McRae, in his role at the University of Ottawa, has offered to continue this experience in the fall and assign other students to the work of the committee.

We'd like to thank you for helping us in that way, Dr. McRae. It's very helpful.

Thank you very much for coming, Dr. Cox, Dr. McRae. We appreciate your evidencevery much.

I want to draw to the attention of the members of the committee the fact that there is a study by the Standing Committee on Environment and Sustainable Development on jobs, the environment, and sustainable development. That will be taking place on May 13 and 14. We can obviously get information about that. This is a very important program that committee is establishing.

Before we adjourn, I want to remind the members that we are now moving to room 306. We must go to 306. We must keep a quorum. We have to decide or we are not going to go to the Arctic on May 27. So please exercise your right of innocent passage to get to 306. Don't get deviated somewhere else, because we must absolutely deal with this or we're never going to get out of here.I promise we'll be only half an hour.

Thank you very much. We're adjourned till five minutes from now.

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