Mr. Chairman, ladies and gentlemen, thank you for the opportunity to address your committee on the matter of Canadian Forces resources in terms of Arctic sovereignty.
This quote from Wikipedia is probably a good representation of the perception that many people at large have of Canada's ability and willingness to defend its Arctic sovereignty.
I would like to put into some perspective the size of the challenge and the inadequacy of the Canadian Forces assets, because most Canadians do not appreciate just how large the Arctic is. The total of Canadian Forces regular personnel in this area today is probably smaller than 250, to look after an area larger than continental Europe.
This is a representation of the Canadian internal waters in the Arctic Archipelago. Those are the waters and land that must be protected adequately. Other countries do not see it this way. They define our territorial waters using the 12 nautical miles. When doing so, many areas of the Arctic are considered to be international waters. Furthermore, many countries claim that the Northwest Passage and the airspace above it constitute an international strait.
The yellow line is the classic Northwest Passage, whereas the red lines indicate other options to transit the Arctic. The air space above and the waters below each of those routes could be argued to be part of the international strait. Do we want Russian bombers to use those routes, or nuclear submarines to transit across the Arctic, or North Korea to ship ballistic missiles through the Northwest Passage? How do we even know that this might be taking place today?
During my command appointment I came to the realization that nobody was really looking after the security of the Arctic. The standard answer I was getting was that we are not funded for it. By default, National Defence is the department that is best equipped to protect the sovereignty and security of the Arctic. But even the Canadian Forces lack the equipment, personnel, and training to protect the Arctic adequately. More specifically, they lack surveillance capability and the ability to respond in a graduated manner to a security situation in the Arctic for a major search and rescue event.
The state-to-state threat has receded, and it can be considered low, despite recent Russian activity and Chinese interest. However, we must be ready for future challenges. Major military assets take more than 10 years to acquire. What prevails now is more of a concept of human security. At this moment I believe the greatest threat to human security in the Arctic is to the environment. The Arctic is a very fragile ecosystem, which must be protected with the full weight of Canadian laws. Too many international protocols have failed to protect the environment. Providing security is the first duty of a nation state.
Our forces must have the capability to operate 24/7, 365 days, anywhere in Canada. You will note that the navy does not have that capability. The air force still has a significant capability through the north warning system, but unless I am mistaken, there is only one forward operating location for CF-18s, in Inuvik, that has been left operational.
The army has no permanent unit in the north, and the amount of training taking place there is insufficient. The Ranger program is a great program, but their capability in the Arctic is extremely limited and their expertise is slowly being lost. We still have Canadian Forces stationed at Alert, which plays an important role, and a joint task force headquarters in Yellowknife.
Note on this slide that north of the north warning system there is no air space monitoring in an area where there are increasing polar flights. Given the new polar routes, we have in excess of 125,000 international flights over the Arctic every year.
Search and rescue is one of the missions of the Canadian Forces, and yet they do not have any primary search and rescue assets north of 60, despite the fact that we have increased maritime activity and that the traditional air corridors have shifted from east-west to north-south.
The probability of an accident in the Arctic is not a theoretical exercise. In 1996, the cruise ship Hanseatic ran aground near Gjoa Haven. Fortunately, there were no casualties or oil spilled. Had the accident been of a catastrophic nature, we would have been hard pressed to deal with it. You all know that last year a Canadian cruise ship sank in the Antarctic.
You'll also recall that the Exxon Valdez oil spill cost in excess of $2 billion U.S. to partially clean up. Although we have the Arctic Waters Pollution Prevention Act, it is akin to posting speed limits on the 401 at a time when everybody knows that the police have no radar and no patrol cars. We must protect the Arctic Archipelago, and the best way to do this is within our internal waters. We must also make NORDREG compulsory to have a better idea of what goes on in the Arctic.
Global warming is the cause of the changes taking place today. The worst-case scenarios have been exceeded. The real question now is what we do about it. It is opening up the Arctic that was protected by year-round ice. Cruise ships now transit the Northwest Passage, and natural resources harvesting is increasing. A new maritime route between Asia and Europe through the Northwest Passage is a distinct possibility. Somebody has to guard the gates to the Arctic. We need to act now, given our slow and politicized procurement process.
There is some urgency in addressing the issue because global warming is opening up the north faster than predicted, and given our long procurement processes, we are already late in delivering the necessary assets. Recently, the Russians have become very proactive in the Arctic. Former President Bush issued a new Arctic security policy this year. The European Community wants to have a say in Arctic resource harvesting, and even NATO is now becoming interested in Arctic issues.
The key capabilities to protect the Arctic are surveillance and the ability to respond in a graduated manner. We must be able to monitor activity below, on, and above the surface and have redundant systems. We must make NORDREG compulsory to be able to cross-reference surveillance data. We must develop the capability to respond in a graduated manner to a security issue in the Arctic. Although the other departments must contribute, I believe the Canadian Forces to be best suited to protect the Arctic. The presence of armed forces also delivers a very clear message.
This is what I would like to recommend.
First and foremost, increase our surveillance capabilities so that we know what goes on in the Arctic; increase our response capability; increase training for all elements; increase the capacity of the Joint Task Force (North) headquarters; maintain the Arctic Security Interdepartmental Working Group; and make NORDREG compulsory.
Let me conclude by saying that one of our Arctic sovereignty arguments is fast disappearing, and it is making our position weaker. Human activity and international interests are rising and will continue to do so. We need to take action now to protect our national interests. The best department to do so is DND, and Canadian Forces require additional assets to do this.
Thank you very much for your attention.
: Merci, monsieur le président.
Thank you for this opportunity to discuss Arctic sovereignty with you and the members of the committee.
I'd like to emphasize that I will be speaking from the perspective of a legal academic who is concerned with Canada's legal case in the Arctic. This is the perspective from which I come to this question of how the Canadian armed forces can help Canada's legal case.
Climate change has certainly created significant challenges for Canada in the Arctic, but a number of them, I think, will be dealt with within the existing legal framework. The Ilulissat declaration in May of 2008 testified to the fact that the five coastal parties agree that this is the framework that should apply.
From my perspective, the principal challenge facing Canadian sovereignty in the Arctic concerns the Northwest Passage, and it's to this that I would like to speak in the few minutes that have been allocated to me. Before tackling the question of the Canadian armed forces and helping Canada's position over the Northwest Passage, I need to briefly touch on a few essential aspects of this legal position, this case.
For over 40 years, of course, Canada has asserted, with varying degrees of clarity and coherence, which is slightly problematic, its right to exert exclusive and absolute authority over those waters, including the various routes of the Northwest Passage. This position is not generally accepted. I believe, through various meetings around the world, that opposition is mounting as more and more states come to realize the potential advantages that could flow from a navigable Northwest Passage.
Of course, at least since 1985 we have formalized our position, and we've been strong. The Canadian position has been strongly advocated since 1985 with the drawing of our baselines in the Arctic. I would highlight the fact that when then Foreign Affairs Minister Joe Clark made the announcement in the House of Commons, he was careful to emphasize that the baselines were being used to delineate what had always been considered Canadian historic internal waters.
Under international law, and particularly the Law of the Sea, of course, a coastal state can claim title over waters on the basis of history if it can satisfy a two-part test. The first part, which is critical, is that the coastal state has exercised exclusive authority and control over those waters over a long period of time. The second part of the test is that there has been general acquiescence to that exercise of authority, especially by those states particularly affected.
I should say that this claim Canada makes to historic waters status for the Arctic waters is a very strong claim under international law--the strongest. The Law of the Sea assimilates internal waters to land territory, so in fact Canada, as the coastal state, exercises as much authority, competence, and prerogatives over its internal waters, including in the Arctic, as it does over downtown Ottawa. It's a very strong claim.
Of course, some foreign governments have repeatedly refused to acquiesce in this claim, most notably the American government, but protests also have been lodged by the European Union. It is certainly Washington's position that an international highway cuts through this archipelago, an international strait, bringing with it a legal regime of exception.
The legal regime that applies in an international strait is that of guaranteed freedoms: guaranteed freedom of navigation for the ships of every nation, both privately owned and state owned; a right of transit for submarines submerged, without any obligation to seek permission or indeed authorization; and, as Colonel Leblanc mentioned, a right of overflight for the aircraft of every nation, both privately owned and state owned, in the air corridor above the international strait.
In international law, there is no clear-cut definition of what constitutes an international strait. It's been a very divisive issue, going back to the negotiation of the 1958 conventions. The principal source of law in this question is the 1949 decision of the International Court of Justice in the Corfu Channel case. In this case, the court had to decide whether the North Corfu Channel was an international strait.
The court defined a two-part test. This test, therefore, is made up of two distinct criteria: a geographic criterion and a functional criterion. In terms of the geographic criterion, nobody argues over that in the Northwest Passage. The Northwest Passage connects two parts of the high seas. Nobody argues that. But there is substantial debate over the functional criterion and how it should be interpreted.
The court used this language in defining the North Corfu Channel: a strait that was “used for international navigation”. It's the Canadian official position that the Northwest Passage has never been used, as of right, by international ships for navigational purposes.
Of course, there is a certain current coming out of the United States, notably the Naval War College in the United States, and more recently formulated by James Kraska, that actual use is not necessary. As long as a stretch of water can be used, potentially, for international navigation, this is sufficient to transform the body of water into an international strait.
I mention these specific points because I think Canadian armed forces have a very real role to play in helping to shore up Canada's legal arguments on these two critical points.
Before I turn to this, I'd like to apologize to the committee: I have no military Canadian armed forces expertise. This is the lawyer thinking about her best possible shopping list.
I would say that today, in 2009, Canada's legal position is vulnerable. But this vulnerability is not principally legal; it's more factual. After all, Canada's entire case rests on effective control. The point I'd like to make, my principle, is that if Canada insists that the Northwest Passage waters are internal, then that means they're part of Canada's national territory. Therefore, Canada as sovereign is obligated to guarantee an effective presence and effective control, as it would on any other part of Canadian soil. This is a huge task.
In terms of presence, I think largely in the last half-decade it's been mostly a visible presence through coast guard vessels escorting ships through the passage and providing for the needs of the various Arctic communities. In my very humble opinion, I think the coast guard is probably the best agency to ensure this kind of effective presence.
But Canada doesn't only have to be visible in the Northwest Passage; it also has to exert control over the waters of the Northwest Passage. It's here, I think, that the Canadian armed forces must intervene. I've been called alarmist, but I think the danger is very real. I think any--any--unauthorized transit by a foreign vessel, whether surface or underwater, will severely undermine Canada's legal case.
First, such a public violation of Canada's sovereignty would call into question Canada's ability to effectively govern those waters, which is an important and essential component of our historic waters claim.
Second, it would create a dangerous and weighty precedent in this debate we have, this quarrel, about what constitutes an international strait. It would be a dangerous precedent of actual use of the Northwest Passage for international navigation.
From my perspective, I hope the Canadian armed forces will be equipped with the best available technology and equipment in terms of surveillance and detection. Early detection is essential if the Canadian government is to respond effectively to such a situation.
It's also my hope, in ignorance, that an emergency plan, a formal emergency plan, exists among the different actors within the Canadian government--so between DND and other actors, about how such a dramatic scenario would be managed.
To be clear, my perspective is that to protect its legal position, the Canadian government would have to react vis-à-vis any ship or submarine that had entered the archipelago unannounced and uninvited. The amount of time available for diplomatic negotiations between Canada and the flag state of such an offending vessel would be extremely short. In the absence of a political solution to the crisis, Canada would have no other choice, I believe, but to intercept.
I think Canadian armed forces must have a capability to interdict a foreign ship navigating through the Northwest Passage without Canadian permission.
Good afternoon, Mr. Chairman and members of the committee.
I was asked to speak today on whether the Canadian Forces are properly equipped and trained so as to enable us to protect and assert Canadian national sovereignty in the Arctic.
I know that you recently heard from members of Strategic Joint Staff and DND's policy group. I intend to expand on their comments in order to convey how it is that Canada Command operates and so exercises sovereignty over an area that is unquestionably one of our country's most precious inheritances, but also one where the harshness of climate, ruggedness of terrain and tyranny of distance make the conduct of operations extremely difficult.
The main theme of my comments centres on the principle upon which Canada Command was founded, namely, that we are truly a joint command that takes the capabilities of the navy, army, air force and space forces, and blends them in order to create an integrated effect. This means that we examine what we want to achieve in Arctic operations and then look over the breadth of the Canadian Forces to see what we can currently bring to bear and what capabilities we need to develop for the future.
In fact, we also look outside the Canadian Forces. When we plan and conduct operations, whether in the north or in the rest of Canada, we recognize that the military is but one element of state power and authority. We have close contacts at the federal, provincial, and territorial levels, and with the peoples of the north, and we strive to deepen those partnerships, ensuring that our operations are part of a whole-of-government effort.
Looking even more broadly, we are engaged in discussions with our Arctic neighbours. For example, there is the Commander of Joint Task Force North, Brigadier-General Dave Millar, who I believe you will be getting up to see in the not too distant future. His command is located in the Arctic, and he runs operations from there. Over the past few months, he has met with the commander of the U.S. Joint Task Force in Alaska, as well as the Danish commander of Island Command Greenland.
In fact, Rear-Admiral Kudsk of the Danish navy actually observed Operation Nunalivut, a sovereignty operation conducted earlier this month, and I hope we'll have a little more time to talk about it. He and Brigadier-General Millar spent the night out on the land with one of the Canadian Ranger groups on patrol on Ellesmere Island.
In the same spirit of cooperation and openness, we notified Russia that a maritime patrol aircraft would be overflying a scientific ice station that is located in international waters in the Arctic Ocean. Again, this occurred during Operation Nunalivut, with surveillance flights being but one of the means of building awareness of activity in the north and of establishing our presence there.
Of course, it's this increase in activity, in conjunction with climatic change, that drives expanded efforts in the Arctic. Sovereignty is one of the pillars of the government's northern strategy, and that includes an appropriate military role. But the effects we achieve are not merely those of awareness and presence. Perhaps to an even greater degree, our operations in the north support other government departments in exercising their mandates.
These are the departments and agencies that retain the lead for dealing with northern security issues. Despite this, they often draw upon the capabilities of the Canadian Forces to help fulfill their mandates. That's no different from the role we fulfill elsewhere in Canada.
What change in the Arctic means for us is that we will need to be prepared to do more of what we have been doing and also improve our ability to operate in the north.
The frequency and intensity of our operations have already increased significantly. As well, there are a number of initiatives underway to increase the footprint of the Canadian Forces in the region and to expand our operational capabilities: initiatives such as the expansion of the Ranger program, development of Arctic/Offshore Patrol Ships, as well as construction of a berthing and refuelling facility and a training centre in the Arctic.
I hope to be able to expand on the scope of the exercises we're conducting as well as on some of those initiatives, perhaps in response to your questions.
Fundamentally the Canadian Forces are not militarizing the north; rather, they are developing greater capacity to conduct broad-based and more effective sovereignty operations in our Arctic. To do that, we're not just developing greater military capacity, by which I mean air, land, sea, and special forces, as well as infrastructure and training; we are also, as a result of our operational presence through the joint task force command, our institutional strength in planning, and our culture of exercising, helping other government departments develop and mature their own capacities to deliver greater operational effect.
We have learned that in the north everything must be done in a cooperative fashion, whether jointly within the Canadian Forces, with our partners at all levels in Canada, or with our Arctic neighbours.
If you consider the harsh terrain, the limited infrastructure, and the vast distances involved, you see an environment in which the challenge of deploying and sustaining military forces is even more difficult than operations conducted at the other end of the earth, but that is what we are doing, in significant numbers and with increasing frequency. We are addressing those challenges. Increasing activity on our part is under way, and new capabilities and facilities are being brought online.
The Canadian Forces will play their part in what must be a whole-of-government approach to exercising sovereignty over Canada's Arctic, while also reaching out to our own peoples in the north and to our Arctic neighbours as well to ensure that Canada exercises its responsibility as an Arctic nation.
Mr. Chairman, I don't know if you wish to take questions at this stage or to proceed to the second presentation.
We are delighted to be here today, especially with you as chair. As you mentioned in the beginning, we are here with Mr. Hannaford and Mr. Gibbard.
I've decided to do a bit of a slide show today, because I think it's very useful to see some of the key pictures we have, as well as get a sense of the Arctic from the top down. We can also take a look at a region that's emerging on the verge of climate change and how we, as the Government of Canada, intend to deal with the severe challenges there, including safety and pollution risks.
The Canadian government is implementing the Northern Strategy, which is based on four main objectives: asserting Canadian Arctic sovereignty in a region that is attracting more and more international interest; facing the challenge of climate change in the north; fostering economic and social development to benefit northern residents; and allowing northern residents to exercise more control over their economic and political destiny.
Today, I will limit my remarks to the first and fundamental objective—Arctic sovereignty—given the Department of Indian and Northern Affairs' previous involvement in the Northern Strategy.
The basic reality is that there is no threat to ownership of the lands, the islands, and the waters of the Arctic. They are Canadian. The fact that climate change is diminishing the ice cover poses no threat to our ownership. They're Canadian, and they will remain so.
Canadian Arctic sovereignty is long-standing, well established, and based on historic title. We heard U.S. President Bush, when he was here in August of 2007 at the Montebello summit, say the following:
...the United States does not question Canadian sovereignty over its Arctic islands, and the United States supports Canadian investments that have been made to exercise its sovereignty.
I know that you've been listening to various academics and others who have indicated that the sky is falling. Hopefully we will show you that it isn't really doing that.
Let's see what there is out there. We do have three existing disputes in very narrow areas. They include, one, Hans Island, with which you're probably most familiar; two, Lincoln Sea; and three, the Beaufort Sea. The first two are with Denmark and the third one is with the United States.
Let's take a quick look at Hans Island. It's very difficult to see Hans Island here because it's so tiny. We don't have a big blow-up picture to show you.
It's really only a dispute over the land. We, of course, say it's Canadian. The Danes also claim it. In fact, if you take a look at that square, you'll see that the maritime boundary goes straight up the channel equally, stops at the island, and then it continues from the island above.
There's no, or very little, resource potential up there that we're aware of. Since 2005 we've had very much a process of talking to the Danes about this issue. It's a diplomatic track. It consists of making sure we're managing the issue properly. Nothing happens on the island that we aren't aware of. Of course, the Danes are keen to work together on any project that goes on up there. So the Hans Island issue is being managed.
The Lincoln Sea, which is on the next slide, is a very tiny maritime dispute. The two small zones of 31 and 34 square nautical miles north of Ellesmere Island--you can see the teeny little dots up there--result in a disagreement over how to measure the equidistance line.
This is well on the way to resolution. We now have technology, particularly satellite technology and GPS systems, that can very quickly tell us what the difference is between the two sides. We will ultimately resolve this issue through discussion and negotiation.
The more interesting one is the next one. As North America is looking for energy security in a very difficult era, both Canada and the U.S. are now looking again at a pizza-pie-shaped space up in the Beaufort Sea that has essentially been on ice as a dispute for a while between the two countries.
Just to give you a little bit of history, in 1825 there was a treaty between Russia and the U.K. that set the 141st meridian as the boundary line between the two countries. We rely on this line as determining the degree of longitude, the definitive maritime boundary, into the Arctic Ocean.
It says, in fact, in that particular treaty, jusqu'à la mer glaciale, and we continue that line straight up into the Arctic. The Americans, of course, are disputing this. They indicate that this is only a land boundary, and that were you doing a maritime boundary, you would have to use an equidistance rule.
That's the indication on the right. The red line on your picture is the Canadian line, and the line on the right is the American line.
That's an issue that has been in dispute for some time. It's well managed, in the sense that no activity goes on in that space—although we are told by the Americans, by others, and our own people that there's probably a considerable amount of hydrocarbon wealth below the surface, including oil and gas. For that reason alone, it's in the interest of Canada and the United States to ensure that this area is resolved. That is something this government will look at as well.
Now let's go on to a more interesting discussion. I know you have heard from some people about the Northwest Passage. It's taken on a great deal of life on its own. Pundits, academic observers, as well as newspaper journalists have a tendency to want to expand on what the issue really is. Maybe if we just chat a little bit about this we can reduce it down to its proper proportions.
The Government of Canada put straight base lines around the Arctic Archipelago as of 1985. All the waters on the land side of that base line are internal waters to Canada. No one disputes that those waters are Canadian at all; the issue really is over the question of navigation, or the legal status of those waters. We, of course, consider them to be internal, and we have an unfettered capacity to regulate them as we would for any land territory.
The U.S. has indicated on occasion that it is an international strait running through this archipelago; and that would give foreign vessels a right of passage through these waters. Clearly, this is not a unique argument of the U.S. Their geostrategic interests are to ensure that any connected bodies of water should be considered an international strait for their purposes, from their interests' point of view.
They have also indicated that the northern sea route.... Our Russian neighbours to the north have a very similar issue, in that the Americans consider the Russian route to be an international strait. The Russians had also put base lines around their archipelago, and the Russians and we share an identical view with respect to the legal status of that area, namely, that they're internal waters and we disagree with our American friends.
In fact, this issue is not new. You may recall that during the “Shamrock Summit”, when President Reagan was in Canada, there was a discussion about the SS Manhattan going through that area, and both countries decided we would regulate our operations through a treaty—and certainly those of icebreakers. The Americans signed an agreement with us in 1988 indicating that the U.S. must seek consent for U.S. government icebreakers to use these waters, an agreement that has been respected and has worked well for both sides up to the present.
The Chair: You still have one minute.
Mr. Alan Kessel: I still have one minute, my goodness. Thank you, Mr. Chairman.
Needless to say, that is an issue we can discuss further in questions.
Some hon. members: Oh, oh!
Mr. Alan Kessel: And I won't have to complete my thought.
The other issue of the extended continental shelf is very interesting. The slide shows the region of the Atlantic and Arctic Oceans where Canada began its scientific efforts to delineate the maximum extent of its continental shelf in accordance with international law.
The United Nations Commission on the Limits of the Continental Shelf is a scientific organization and does not settle disputes or overlapping claims. It deals with the interface between international and national zones.
I can discuss that further in the questions.
On cooperation with our neighbours, there's a continued cooperation with all our neighbours, and I know this is a theme that our other departmental colleagues have indicated. We cooperate closely with our American friends, especially on icebreaking and surveying of the seabed. We cooperate with the Danes. We cooperate with our Russian friends across the sea, particularly when it comes to issues where we can join them vis-à-vis the legal status of passages.
One last thing before I close. The ministerial conference in Ilulissat in Greenland in May 2008 was specifically between the five coastal Arctic states. It was a meeting of those states that have a right to delimit their continental shelf. It was not really about social or other issues; it was purely about the legal rights to continental shelf delimitation. We all agreed to work within an international legal framework, one that had been developed over 40 years and is now considered the Law of the Sea. That declaration was an attempt to at least shut down some of the speculation in the press and other places that said that for some reason there was a race on to the north, and we indicated quite clearly that this was a cooperative adventure.
Thank you very much, Mr. Chair.
I think there are two things being confused here. They do have the lead on the northern strategy, which is a whole-of-government effort. Someone was mentioning they hadn't seen the whole-of-government effort, and I can assure you, and certainly my colleagues can, that we've been at innumerable meetings where the whole-of-government effort has been there to look at our northern strategy with respect to...and I listed the four pillars of the northern strategy. So that definitely is a question that Indian Affairs has the lead on and is coordinating our particular input from government.
The other issue, which is what is Canada and what is our territory, is clearly in the mandate of the Minister of Foreign Affairs, and that's why we're here talking about sovereignty.
I don't know why there's a strong interest here in propagating it, but there's a mythology that there is some kind of race going on. I'd like you to point it out to me, because I'd like to know what it looks like. We, as governments who decided we didn't want to go to war over resources of the sea, decided 40 years ago that we would negotiate an international instrument, which we did, and in which Canada played a major role, and which sets out a vast international legal regime for dealing with the very issues we're talking about.
Canada was particularly instrumental in dealing with an article in that regime, article 234, on ice-covered areas, and it is one of the fundamental bases we have used to extend our Arctic Waters Pollution Prevention Act to 200 nautical miles. We will be bringing in a mandatory northern reporting system, which our friends in the military will then be able to act upon, also for 200 miles.
There is another mythology about Russians putting flags on the North Pole, which happens to be in the high seas. It means nothing. It's a stunt. It was a stunt then; it's a stunt now. The reality is that you don't own something by putting a flag on it; otherwise, National Geographic would own the Himalayas by having put a flag on them, or the Americans would own the moon by having put a flag on it. It just means they were there. So the Russians were there; they got to be there.
You have to put in context where your real concerns and fears are.
The Government of Canada has been aware of what we needed to do for many decades and we have done that under successive governments. And we are very pleased to say we feel confident that our legal position is strong and our approach to dealing with our access and exercise of sovereignty is also strong.