Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 2 - Evidence - February 12, 2008
OTTAWA, Tuesday, February 12, 2008
The Standing Senate Committee on Fisheries and Oceans met this day at 6:21 p.m. to examine and report upon issues relating to the federal government's new and evolving policy framework for managing Canada's fisheries and oceans. Topic: Arctic Study
Senator Ethel Cochrane (Deputy Chair) in the chair.
[English]
The Deputy Chair: I call this meeting of the Standing Senate Committee on Fisheries and Oceans to order.
I am Ethel Cochrane from the province of Newfoundland and Labrador, and I am the deputy chair of the meeting this evening. I am pleased to chair this meeting on behalf of the Honourable Senator Rompkey, who could not be with us tonight.
Today we are studying the new and emerging policy framework for managing Canada's fisheries and oceans. In particular, we are continuing our study of the Arctic. It is my pleasure to welcome our witnesses for this evening from Foreign Affairs and International Trade Canada: Mr. Alan H. Kessel, Legal Adviser, and Mr. John Hannaford — a familiar name from Newfoundland — Deputy Legal Adviser and Director General, Legal Affairs Bureau.
Alan H. Kessel, Legal Adviser, Foreign Affairs and International Trade Canada: Thank you, Madam Chair. It is a delight to be with you this evening. The Speech from the Throne made it clear that the Government of Canada is committed to helping the North finally realize its true potential as a healthy and prosperous region within a strong and sovereign country. To this end we are developing a northern strategy building on four primary objectives, one of which is to demonstrate our Arctic sovereignty. A key element in this process is defining the outer limits of our extended continental shelf.
The legal framework governing the law of the sea is set out in the 1982 United Nations Convention on the Law of the Sea, known as UNCLOS. Canada contributed significantly to the negotiation of this convention and ratified it on November 7, 2003.
There are currently 155 parties to UNCLOS.
[Translation]
UNCLOS sets out different areas in which states have sovereign rights and exercise jurisdiction. Essentially, it outlines separate regimes for different areas of the sea. UNCLOS provides many tangible benefits for Canada, including securing the outer limits of the continental shelf where it extends beyond the 200-nautical-mile EEZ. Any coastal state with a continental shelf extending beyond 200 nautical miles has 10 years from its ratification of UNCLOS to make a submission to the Commission for the Limits of the Continental Shelf.
[English]
Canada will present its submission to the commission in 2013. Doing so makes certain, from a scientific perspective, the full extent of area over which Canada has sovereign rights for the purpose of exploring and exploiting the natural resources of the seabed and subsoil. This initiative constitutes Canada's sole opportunity to delineate the outer limits of the submerged land mass, to which Canada has exclusive rights to explore and exploit the seabed, subsoil and sedentary species. This does not result in the expansion of Canada's territory or of its exclusive economic zone, EEZ.
Canada began scientific work in 2005 in both the Atlantic and Arctic Oceans, and will continue to make steady progress mapping its extended continental shelf. Collaboration among NRCan, DFO and DFAIT continues to be excellent. DFAIT is the lead department for the preparation, presentation and defence of the submissions before the commission. NRCan, the Geological Survey of Canada, is responsible for seismic surveys which determine the depth of sediments by using sound waves reflected from different layers of material in the subsoil. DFO, the Canadian Hydrographic Service, is responsible for bathymetric surveys, which measure the depth of the water.
Canada's extended continental shelf program is on track to meet the 2013 deadline. Notwithstanding what some recent news articles suggest, the extended continental shelf delimitation is not an adversarial process nor is it a race or a competition to grab resources. On the contrary, countries which surround the Arctic Ocean — Canada, Russia, Denmark and the U.S — can work in a cooperative manner to establish the respective outer limits of their continental shelf. We have undertaken joint research with Denmark; included an American scientist in the Western Arctic aboard the Canadian icebreaker Louis S. St-Laurent in 2007; and have met twice with Russian scientists to discuss our respective programs.
In November, a joint Canada-Russia statement at the prime ministerial level reiterated our common commitment to respecting international law under UNCLOS.
The mapping work required in the Arctic to prepare a submission to the UN necessitates the collection of data under the most extreme and adverse weather conditions and requires complex logistics with many uncertainties. Only heavy icebreakers can collect the data and only a handful has the icebreaking capacity to do this type of work in these extreme conditions. As a result, work is done jointly in collaboration with other scientists, which has the additional advantage of being more cost effective. Furthermore, joint interpretation of data with other countries can actually make Canada's case stronger as it reduces the likelihood of disagreement during consideration of submissions by the UN.
Last year's Russian expedition to the North Pole, which has caused a flurry of media activity, is part of this process. Planting a flag at the North Pole, while it gained publicity for their research, has no impact on sovereignty, as the North Pole is on the high seas beyond any national jurisdiction.
It is premature to speak of disputes or even overlapping submissions. If, in the future, overlaps become apparent with the submission of a circumpolar neighbour, they will be resolved — as boundary disputes commonly are — through discussions, negotiations and/or arbitration in accordance with international law.
[Translation]
In conclusion, I would like to reiterate that the Government of Canada is committed to a healthy and prosperous northern Canada and demonstrating our Arctic sovereignty remains one of our top priorities.
[English]
The Deputy Chair: Mr. Kessel, in talking about Arctic sovereignty, it seems that Canada and other countries are focusing unprecedented attention on the Arctic and Arctic issues. There has been increased talk about Arctic sovereignty in the media, speeches and everyday conversations around the table.
Perhaps you can give us a complete overview, highlighting who the players are, what the main issues are, and items of that nature.
Why has Arctic sovereignty become such an issue? What does the average Canadian watching us here at home today need to know?
Mr. Kessel: Madam Chair, the first thing I should say is that Canada is sovereign over the whole country, including the Arctic. No one disputes Canada's sovereignty and control over the lands and islands of the Arctic archipelago. The sole exception I may add is the tiny Hans Island which is claimed also by Denmark. Simply put, Canada exercises sovereignty over its entire territory, including the Arctic.
The Deputy Chair: Is that your total explanation?
Mr. Kessel: Canada is a sovereign country. The Arctic belongs to Canada; the islands are Canadian; the water is Canadian. What the papers say is entirely up to them. This is our view and I am sure you share that view.
The Deputy Chair: It is ours and that is the main focus, right?
Mr. Kessel: It is as much ours as any other part of this country.
The Deputy Chair: That is good. I am glad to hear that.
You mentioned that Canada has until 2013 to make its submission to the UN and that we are not on track to meet this deadline. What would happen if we missed the deadline?
Mr. Kessel: In fact, we are on track to meet this deadline, so the suggestion that we are not is inaccurate.
We are well-established in terms of our seismic data research. You may be aware that Budget 2004 allocated $70 million for mapping and Canada is on track to make its submission by 2013. We have the authority to do it; we have the vessels to do it; we have the budget structure to do it; and we have the drive and determination to do it.
The Deputy Chair: We will have to follow through on that one and see what happens.
Senator Baker: Mr. Kessel, as we understand it, the authority for Canada to apply to extend jurisdiction beyond 200 miles flows from our ratification of the UN Convention on the Law of the Sea. Without our ratification, we could not apply to the commission on the outer limits of the continental shelf in order to extend jurisdiction. Is that correct?
Mr. Kessel: Correct.
Senator Baker: Could you explain to the committee why it took Canada so long to ratify the Law of the Sea and stood out like a sore thumb, with the United States and Denmark. Can you tell us why we allowed all these other nations to become a part of the process and apply to the commission on the outer limits of the continental shelf to extend their jurisdiction, leaving Canada with perhaps the most to gain from extension of jurisdiction, lagging now 13 years behind Russia? Russia and I think you will verify, made its application in the year 2000.
Is there any legal reason you can think of that you can admit to us as a committee — and I am not expecting you to disclose any national secrets — is there some disclosure you can give to justify this lackadaisical attitude on the part of the federal government?
Mr. Kessel: As you know, sovereign states are able to ratify, sign or otherwise take on international obligations as and when they feel ready or wish to. Canada felt ready when it did and it ratified. I would correct you on one point; the U.S. has not ratified. The U.S. is trying to ratify.
Senator Baker: I did not say the U.S. ratified. I said that Canada stood out like a sore thumb. The three amigos were Canada, the U.S. and Denmark.
Mr. Kessel: The fact is we have ratified and we are in the process of doing what we have to do with many other countries.
I also might indicate you mentioned Russia. Russia has in fact sent its submission in and it was asked by the commission to redo it because there were some anomalies. They will in fact be resubmitting in 2009, just a few years before us.
Having said that, Canada is well on the way to doing this; it is not like we have to make a claim for anything. This belongs to us. What we are doing is simply the homework on the seismic data, which will verify what we consider to be Canada's continental shelf. For example, when we submit our data and the authorities in the commission and experts look at it, they will probably say they agree with our seismic data and this limitation; this is part of the extended continental shelf of Canada.
They will confirm what we already have under the UN Convention on the Law of the Sea. We are not making a claim and they cannot deny any claim. As I mentioned in my statement, if they were to find an overlap then we would have to undertake diplomatic discussions with the country with which we have an overlap.
Senator Baker: Let me ask you a specific question relating to your presentation and this, Madam Chair, is the line. You will notice what they are talking about here surrounds your home province completely, of Newfoundland and Labrador, so it is very important.
This leads to this question: You were very specific in your presentation in saying that it applies to the soil and subsoil. Am I correct?
Mr. Kessel: Correct.
Senator Baker: This presentation that we are planning to make will cover the soil and subsoil.
Mr. Kessel: Correct.
Senator Baker: Then you re-qualified it with the word "minerals."
Now here is the big question for this committee. We have 17 foreign nations dragging the living daylights out of the soil and subsoil in this zone. All fishing by those 17 foreign nations is by means of dragging. There is no way that modern technology has found whereby they can catch that fish in the upper portion of the ocean. There is no way. There is no technology. They have to drag the living daylights out of the bottom of the ocean, the soil and subsoil in a big rake. You said in your presentation that Canada would obtain ownership and jurisdiction over the soil and subsoil.
In strictly legal terms — and that is your profession, sir, you are considered an expert in this area of law — what is your legal opinion on Canada's right to stop the dragging of the bottom of the ocean by these 17 foreign nations. There are 40 vessels out there today, every day of our lives they are out there, 40 fish plants operating while people are unemployed in Canada onshore.
What does this give us? Does this allow us to control what happens to the soil and subsoil in this area?
Mr. Kessel: Thank you for that question and once again for highlighting some of the interesting aspects of what we are doing in terms of our extension of the continental shelf. You are also accurate to point out that it does not deal with the water column as such. I should add that while I am not in a position to provide this committee with a legal opinion I can offer views on things.
You mentioned the issue of fishing in that area. As you will know, the United Nations has also been looking at a number of resolutions with respect to dealing with the exploitation of fishing resources in the high seas and elsewhere. Canada has been very active in that process to ensure that we are not disadvantaged. In fact, we were most successful in the two recent discussions in New York at the UN General Assembly to ensure that other countries were very much aware of our concerns about our rights to the exploitation of all sorts of resources. Clearly, the process that we are going through is important for us to be able to establish further authority over what happens in that area. We are actively working to ensure that we are on time with our submission so that we will be in a position to clearly delineate the extension of Canada's continental shelf.
Senator Baker: In other words, these subjects are under consideration and discussion as they would be in this particular instance. You have neither confirmed nor denied that Canada, by gaining control of the soil and subsoil, can actually control what happens to that soil and subsoil.
I will move to another technical aspect on which you are an authority — the process. When Canada applies to extend its jurisdiction in the year 2013, we will be applying to a commission, which is made up of representatives from 20 or so nations who will listen to Canada's submission. As you pointed out, they listened to Russia's submission and sent Russia back to do some more homework. The unfortunate part is that the biggest violators of the fishery off Newfoundland and Labrador are sitting on the commission that will listen to Canada's submission to have its jurisdiction approved.
In your understanding of the workings of the commission on extending jurisdiction of the outer limits of the continental shelf, do you believe that its members, who are the biggest violators of our fishery by dragging up the ocean floor off our coast, will look unfavourably on Canada's position simply because they signed onto UNCLOS twenty years before we did and are now members of the commission? Do you think that would have any effect on their deliberation?
Mr. Kessel: The commission does not make a determination, final or otherwise, other than to say that Canada's submission looks good from a scientific point of view. The commission can neither take away rights nor give us rights that we do not have. The commission can point out any overlaps with other jurisdictions. In the area that you are talking about, it is unlikely that we would have any serious overlap, so there is a non-connection between your suggestion about fishing and the actual delimitation of the continental shelf.
The other area where they could find an over lap is on the Western Arctic, with the U.S., and there is a little spot up in the north where there could be an overlap with the Danes and Greenland. We are working with these countries to ensure that when we go to the commission, we will not have an overlap, or at least we will have tried to eliminate most of that. I do not think any of these countries want to have a problem going to the commission. As I said earlier, if the commission said to Canada that they have found a bit of confusion with the submission, then Canada thank the commission for its views and go back to dealing with the Americans, the Danes or the Russians.
Senator Baker: It probably would be a good idea for the Senate committee to investigate the legal aspects as to the result of any application to extend jurisdiction. If the area were extended, would we be able to "kick out" all of those foreign nations?
Mr. Kessel, you said that this is not a race or a matter of confusion. Yet, Denmark has planted a concrete flag on Hans Island. Their navy has claimed jurisdiction and sends the message around the world as being a great national accomplishment. Yet, you maintain that this is not about staking out territory and that Denmark was simply putting on a show for the media. Is that what you are saying?
John Hannaford, Deputy Legal Adviser and Director General, Legal Affairs Bureau, Foreign Affairs and International Trade Canada: We have been discussing a couple of issues tonight and I want to make sure that we are separating them. The situation with Hans Island, as Mr. Kessel mentioned in his opening statement, is the one exception to the broad recognition of all the islands in the Arctic Archipelago that are exclusively Canadian jurisdiction. The one exception is Hans Island and a difference of opinion with the Danes. We have been equally forceful in asserting our sovereign right over Hans Island and we simply have a disagreement. That is distinct from the process of recognition of the extended continental shelf beyond the 200-mile limit. I want to be clear that we are separating the issues.
Senator Cowan: Following up on Senator Baker's question, I thought I understood the meaning of "sovereign rights" and "territory." I would have thought that you make a submission and somebody accepts it or not and the determination is made.
I heard you say that it is submitted and if they accept it, you do with it as you wish. Is that the effect? I ask that, obviously, to follow up on Senator Baker's point about dragging. If we can extend our jurisdiction to include the area inside that white line — the entire Nose and Tail of the Grand Banks, we would expect to assert the same control over activities carried on within that extended jurisdiction with respect to soil and subsoil as we do now inside the 200-mile limit. As you suggested, the problem becomes more complex in the North where other nations might have competing interests such that they could demonstrate jurisdiction based on a geological point of view. With respect to the Atlantic coast, it is either Canada's continental shelf or it is no one's continental shelf. It is not a question of two nations competing for the same section of the continental shelf. Perhaps you could clarify that.
Mr. Kessel: Mr. Hannaford will add to this but I should be clear about what I said. There was a suggestion that this commission would be determinative when, in fact, it is more facilitative of countries working together to determine their respective extended continental shelves. There is a mythology that there is a race and that somehow we will lose. I am trying to dispel that mythology by delineating what it is about, what UNCLOS gives us the role of the commission.
Senator Cowan: Are you saying that we will have no greater rights after the submission to the commission than we have now and that Canada's government will take no more aggressive action to protect the area to the limits of the continental shelf than it takes now? Is that what you are saying?
Mr. Kessel: I am saying that Canada's continental shelf, which we will be delimiting, is, by definition, Canadian. We are certifying within the context of the commission and with our neighbours that we all accept that. Our view is that this is part of Canada anyway and we are doing the scientific work to ensure that it is to the economic benefit of Canada.
I also said that the Government of Canada is and will continue to work hard to ensure that those who over-exploit areas in which we have an economic interest will receive the attention that we have always given them. We have been extremely successful, not only with our European colleagues but with others in the NAFO context, and not only revising NAFO most recently to strengthen it to avoid the very thing you are talking about. We will continue to do it not only in NAFO but also in the international sitting of the UN General Assembly.
Mr. Hannaford: The point is really that these are all rights and processes that are set out as matters of international law and stipulated specifically under the UN Convention on the Law of the Sea, so there are certain jurisdictions that flow from certain regions as you begin to work your way out from the coast. At the very end of that process is the continental margin, and that is already recognized as being part of the coastal states. There are jurisdictions that flow to the coastal states from their continental margin. With the commission, we are simply defining that outer limit. The commission will ultimately issue recommendations based on the data and the presentation that we provide, and it becomes binding once we act on the recommendations of the commission. That is the way the convention structures the process.
Senator Comeau: I would like to come back to the issue of overlap. My understanding is that you are looking at the continental shelf, and some scientific work is being done to identify the continental shelf, which, according to UNCLOS, belongs to Canada at the present time. The problem arises or may arise in the case of overlaps, and that would be the only time problems would arise. The UNCLOS would recognize the limits of our continental shelf as it is now.
Mr. Kessel: The commission would look to see that we carried out an accurate scientific survey. If we extended beyond our shelf entitlement, even though it was not overlapping, they would say our data indicates we have gone beyond, or the data does not support X, Y, Z, so please come back with more data. I believe they did that with the Russians.
You are absolutely correct. If there were an overlap, they would actually not rule on any overlap; they would indicate that in their understanding, two states have indicated the same geographic area, and they would ask the states to resolve that overlap.
Senator Comeau: I was wondering why we were doing the surveys of the Atlantic side. We are doing it in the Atlantic because we need to identify the outer limits.
Mr. Kessel: Yes.
Senator Comeau: There are two overlaps in Atlantic Canada: one overlap is off Newfoundland, which was decided by arbitration, and the Georges Banks with the U.S. I would presume that there would be no overlap problems once we have identified the continental shelf.
Mr. Kessel: Certainly, our view, as you can see from the map we have drawn, is that we do not see an overlap there. We cannot anticipate what may come up, but our view is that there is not an overlap.
Senator Comeau: There is probably very little chance that either of these two countries would wish to reopen or could reopen the divisions that were made back then under UNCLOS.
Mr. Kessel: I am sorry, but I do not understand that question.
Senator Comeau: There was arbitration, or at least a decision taken by the international authorities identifying the French territory.
Mr. Kessel: That was outside of UNCLOS.
Senator Comeau: Could UNCLOS reopen these?
Mr. Kessel: If you notice, it is in our EEZ; it is totally within, it is not even in the purview of UNCLOS.
Senator Comeau: As I understand it, then, it is straight geology or geography and not historical use or whether we have used it in the past, unlike the Georges Banks, where history and local use did become important.
Mr. Kessel: This is all science.
Senator Hubley: I have a question on how the work is done. I believe you said in your presentation that heavy icebreakers do the data collection and the work is done in collaboration with other scientists. Can you tell me about our resources? How many of these particular models of icebreakers do we have? What other countries do we collaborate with, and what other scientists?
Mr. Kessel: Essentially, the seismic data that we have been collecting has been on the Louis S. St-Laurent, and we have collected seismic data in 2007 with a large amount of sediment collected there. The next field activity is planned for March 2008 and preparations for this survey are already underway.
The Atlantic surveys have been very successful. As you can imagine, it is much easier on the Atlantic side given that you do not have to deal with the vagaries of ice. The more difficult part is on the Western Arctic side, where the ice moves right in on you.
We have been collaborating with have been Denmark, the United States and Russia. In fact, we have had very fruitful scientific cooperation on mapping with the Danes on the shelf north of Ellesmere Island and Greenland. Essentially, we have a common interest, as we have expressed in the memorandum of understanding with the Danes to show that the seabed beyond 200 nautical miles is a natural extension of our respective continental shelves in the Arctic. It is in both of our interests to do so and joint research on the Canada-Danish side of the Lomonosov Ridge is an ongoing project that started in 2006. It involves 32 Canadian and Danish scientists.
In collaboration with the United States, we have been discussing our respective continental shelf research programs, and the last time we did that was in July 2007. At that time, Canadian and American officials discussed opportunities for collaborative data acquisition in areas such as the Western Arctic where both countries need to collect data. In September 2007, an American scientist was working with Canadian scientists in the Western Arctic aboard the Canadian icebreaker Louis S. St-Laurent. Canadian and American scientists continue to be in contact, which may lead to a more formal process, if required. As you know, the Americans have not signed on to the UNCLOS yet, but they are keen to do that mapping as well, and we are keen to do it so we do not have an issue in 2013.
As for the Russia collaboration, we discussed our respective continental shelf research programs in a meeting during the Canada-Russia business summit at the end of March 2007. At that time, Canadian officials were made aware of plans for a Russian expedition to study their extended continental shelf in the Arctic Ocean. The Russians are currently working to complete a revised submission to the commission, as I mentioned. Canada and Russian scientists continue to be in contact, and we met again in November 2007 together with the Danish, so we had the Danish, Russians and ourselves to discuss the scientific issues.
I should add that, among scientists, this is just extraordinarily exciting, because they are finally getting to do their deep sea research, and in most cases there is no question of money coming from countries because of the economic benefits. The scientists are very collaborative and share their data with us and we share with them. Our common objective is to avoid any perception of or real overlaps and reduce future arbitration.
Senator Hubley: I am looking at the scientific evidence versus sovereignty. You mentioned that the U.S., the Danes, Russia and Canada all seem to be working in this area. Do we have any representation on the commission that will evaluate the scientific evidence that is collected? Does Russia, the Danes or the U.S. have representation on the commission?
Mr. Kessel: We do not have it at the moment, but that does not rule out that there may or may not be at the time of our submission. I believe they have a five-year cycle, so there is a little bit of time before we are on. There is currently an Australian member on the commission. If required by the committee, we can supply the full list of participants on the commission.
Senator Hubley: I would like to see that list.
Senator Adams: Thank you very much for your interesting paper. I have a difficulty, seeing we own 100 per cent of the Arctic that we are working with those other countries' scientists. The Americans, Russians and Danes are doing a study on the ocean. Was Canada involved too with the other countries that did a study of the sea bottom? According to my colleagues, the Russians did it about in the year 2000. We are behind 13 years since we will not begin until 2013.
I heard from the beginning, from people who live up there, that they have seen more American scientists up there than Canadians in the High Arctic — especially on Ellesmere Island. There is a research site up there shared by the Americans and Canadians.
I talked to some of the Canadians who said they could not compete with the Americans because the government does not give them enough money for equipment. It is difficult for our people who live up there. We do not even know what is going on or what will happen in the future with Arctic sovereignty. We would like it to be 100 per cent Canadian.
In the meantime, we are studying the bottom of the sea, along with other countries who are working with us. There must be something interesting down there for them to want to stake a claim to the bottom of the sea. If you find something in oil and gas — I think that is mostly what they are interested in up there now — how will they agree on that? I think that is why Russia dropped their flag in the bottom of the sea; they figure there is more natural gas up there than in the Russian Arctic. How will we agree on that?
You are saying we will deal with another 155 countries on this. Canada should say, no, it is ours; you guys get out of there because it is ours. If we own 100 per cent, we should say so now. Why do we work with other countries? Is it because we do not have enough technicians to do that kind of job in the High Arctic?
Mr. Kessel: Maybe I should start off by saying I agree with you that Canada owns 100 per cent of the Arctic — as it owns 100 per cent of the rest of the country — and this government is committed to keeping it that way.
The other thing that you mentioned is the collaboration that we have with scientists. That is something that Canada and every other country has done in many scientific endeavours for as long as we can remember.
Scientists collaborate because it is useful to share data. It is also useful to share expenses in areas where we are working. As I mentioned earlier, this is not a race. Therefore, there is not a beginning and an end — except that when you sign on, you have 10 years to make your submission. Those who signed on earlier make their submission earlier.
Since you cannot get more than you are entitled to, whether you do it now or then does not really matter. It is not a race and you can only get what you are entitled to. We work with the others because it makes good economic and scientific sense. Rather than having a fight with people, it is better to agree with them on our boundaries. If we can do that, I think it is to the benefit of Canada.
I should say that this government has been extremely active in reasserting and exercising its sovereignty in the North. Numerous initiatives have been announced with respect to exercising our sovereignty, including the new docking and refuelling facility; the Arctic research station; increasing the size and capacity of the Canadian Rangers; setting aside significant land for Nahanni National Park Reserve; and establishing a deep-sea water port in Nanisivik on Baffin Island. These are just some examples of what this government has been doing.
Senator Adams: If nothing will be done until 2013, what will happen between now and then with Arctic sovereignty?
Mr. Kessel: I am sorry, senator, I do not understand.
Senator Adams: Right now, you were saying that you are not going to finish with the commission until 2013.
Mr. Kessel: I should be clear; the actual discussion on the continental shelf delimitation has nothing to do with whether Canada is sovereign in the Arctic. Canada's sovereignty in the Arctic is not part of that discussion.
I am just clarifying that Canada's sovereignty in the Arctic is 100 per cent. Then there is a different discussion, which is that we are now extending our continental shelf delimitation as per the provisions of the UNCLOS. Everything within the base lines in the Arctic is Canadian and sovereign.
Senator Adams: You have a red mark here on the map of the Arctic; I am not sure what that means.
Mr. Kessel: That is our 200-mile economic zone. The white line shows the potential extension of our continental shelf. It is a projection because we are in the process of actually mapping that area. However, just to give you a sense of what we are looking at — to give you a picture, because I think a picture is much more descriptive of what we are doing — you can see where our continental shelf would move out to.
This is our best guess at the moment; but best guess is not as good as accurate science, so we are in the process of doing the accurate science mapping. The Louis S. St-Laurent is going backwards and forwards over that area, which is an extremely difficult thing to do because the ice is shifting. We are hoping to get a clear map of that area. The white area is what we would be submitting to the commission. The red area is already our economic zone.
Senator Adams: If the Americans and Russians agree, can you expand to the end of the white part?
Mr. Kessel: The Russians are coming from their side at the top of that picture. You can see their continental shelf; and they are exploring, as are we, what the Lomonosov Ridge — whether it is connected to Russia or Canada. This is all part of the science, and we are not in a position at this point, nor are the Russians, to actually say that.
You did mention the flag issue. As I stated earlier in my opening statement, dropping a flag on the North Pole, which is in the high seas, is just a gimmick.
Senator Adams: Just a photo opportunity.
Mr. Kessel: Totally.
Senator Adams: It might be jurisdictional too. I have been telling DFO and the minister for a few years that we would like to have quotas up there in the Arctic. From what I have heard, it is controlled by NAFO. Everyone must remember NAFO. Some other countries are up there and we found out we have some quotas up there that belong to Nunavut for turbot and shrimp in the Arctic between Baffin Island and Greenland. They call it Greenland turbot.
In the meantime, before we settled the land claim in Nunavut, NAFO set the quotas in the Arctic. Now we are interested in setting up an economy for people fishing in the communities and we cannot do anything about it. We are not within the 200-mile limit. At that time we settled the lands claim, they only gave us up to 12 miles controlled by the Nunavut government. It is not really saying it belongs to Canada, the 200 miles. What do you call water that belongs to a country within 200 miles?
Mr. Kessel: Are you talking about the economic zone?
Senator Adams: Yes. When we settled, at least we would be able to go to our minister here in Ottawa. Now it is controlled by another country. Why was that?
Mr. Kessel: I am not sure I entirely understand the question. If it is related to fishing quotas, I believe that would probably be better directed to our DFO colleagues who deal with the fishing-quotas issue.
Senator Adams: DFO cannot do anything, because you have to have agreement through the union; with Russia and other countries. As Senator Baker said, 17 other countries signed that agreement. We want control so there will be more quotas for Nunavut. Greenland has a monopoly.
Mr. Kessel: I would repeat that I regret I am not in a position to respond to the questions on actual fish quotas. Perhaps my colleagues at DFO might be able to help you.
The Deputy Chair: When the Russians put their flag down in the Arctic in 2007, what was their objective in doing that, do you suppose?
Mr. Kessel: I would not begin to question what the political gimmick was about, other than to say that that is exactly what it was in our minds. There is no way you can put a flag on the North Pole and own it. It is not theirs to own, and we have advised them of such.
The Deputy Chair: In relation to Canada's sovereignty over the Arctic, is it mandatory for foreign commercial vessels to register with Canadian authorities when entering Canada's Arctic waters?
Mr. Kessel: The current regime in the North has two aspects. One is the Arctic Waters Pollution Prevention Act, which is a statute, which governs environmental protection in Arctic waters. All vessels that traverse or enter our seas must conform to that act. They do, or they do not come in.
There is also another process, which is not binding but is useful, is the NORDREG. That is a process whereby vessels notify us they are in the area for safety reasons and others. Certainly, under the AWPPA, the Arctic Waters Pollution Prevention Act, we govern the quality of the vessels that come through, requiring double hulls and a certain number of other things. In fact, Canada is ahead of many of our Arctic neighbours who have recently asked us to share the legislation with them because they would like to do the same thing. We are seen as rather visionary in this area.
The Deputy Chair: Have we turned any away?
Mr. Kessel: They have to conform. My understanding is they would not get in if they did not conform.
The Deputy Chair: We do not know.
Mr. Kessel: The Coast Guard would give us a better answer.
The Deputy Chair: I would like to have that information. Can we get that information from you? Would you send it to our staff here at the committee?
Mr. Kessel: We can certainly pass on the question to the Coast Guard.
The Deputy Chair: Also the reasons why they were turned away and so on.
Mr. Kessel: If I understand, the question is: Have any vessels been turned away and the reasons why.
The Deputy Chair: Refused entry. Thank you.
Senator Hubley: Would you take this diagram, because it is another way of looking at the world, and certainly the Arctic. Would you identify the countries around that circle for us, please, starting with Iceland, Greenland and Canada? Where does Canada end in this illustration?
Mr. Kessel: It is very easy to see Canada here. Up to the beginning of the red where the blue and the land is, that is all Canada. It runs along from the Yukon all the way along, all the way to the top, and that is the Yukon-Alaska border there. To the top you see where the tip of the red is. The white mass on the right of that is Greenland. If you go down the land all the way down from that red point and the land all the way over, that is Canada. On the other side is all Greenland, which belongs to Denmark. Russia is up here.
Senator Hubley: Where does Russia start?
Mr. Kessel: That is a very good question: A very existential question. The Bering Strait is there, and the U.S. is on that side. Russia goes all the way over, and you can see it goes all the way over there to Finland, which is that little bump over here. There is Finland, then Norway.
Senator Baker: As Mr. Kessel said a moment ago, up here he said, "The Russians are coming."
Mr. Kessel: The Russians are there, actually.
Senator Baker: "The Russians are coming."
I forgot at the beginning to say, Madam Chair, what an excellent job — not the Government of Canada — Mr. Kessel's shop is doing. I do not know how many people are in his shop, but they are in a very important position and we cannot blame his team for the non-ratification of the Law of the Sea or any of the holdups that we can point to in the mapping of the ocean to bring it to his level of actually implementation at the United Nations.
However, Mr. Kessel, I have to challenge you on a statement that you keep repeating. Than is in which you say, "this is not a race."
Mr. Kessel, let me point out that this area we are trying to annex to Canada is, in size, comparable to the three Prairie provinces of Canada, equal to the size of the area of jurisdiction we are contemplating extending on Canada's behalf.
Back to "not a race." The UN Convention on the Law of the Sea came into effect in 1983. It took us 21 years to ratify it and then it took another 10 years for us to be able to present an application to the UN commission on the outer limits of the continental shelf. Surely, you are not suggesting that there is no advantage to Russia presenting in 2000.
Are you suggesting that all of the nations in the world who will be applying to extend their jurisdiction under this procedure need not apply now, they can wait for 20 or 30 years down the road because, as you say, this is not a race and it is to no one's advantage to apply before somebody else does? How do you justify saying that?
Mr. Kessel: Senator, you have raised an interesting point and it is something that I think Canada and the rest of the international community has been working towards since the Second World War, which is let us not have war over territory. Therefore, part of what the UN Law of the Sea was about was to reduce the frictions between states. One of the areas which they could foresee some friction was on the extension of the continental shelf and therefore they set up a process that would reduce, take the claws out of that, which would allow us to work collaboratively. They specifically created a regime which was not a race.
If you can describe to me why this looks like a race, I would be very interested. Certainly, from our point of view, the reality is that it does not take anything away from us and it does not give anything to anybody else that is not ours. For instance, many other countries have not yet signed on to the Law of the Sea and they will not be in a disadvantaged position either.
I should say that Canada was particularly instrumental in the negotiation of this convention. We were instrumental in having certain language added including Arctic ice covered waters and issues related to the extension of the continental shelf that are important now.
The other thing is that it does not take us 10 years to submit our submission. The law gives us 10 years from the moment of ratification to provide the submission. As you can imagine, we have one of the longest and most difficult coastlines to map. We have probably one of the longest coastlines in the world and we will do a good job of it and take the time necessary to ensure it is accurate.
Senator Baker: You said that the year 2013 is not the date of application. Yet you said in your address, sir, and I will quote you, "Canada's extended continental shelf program is on track to meet the 2013 deadline."
When do you expect us to actually be able to present, if you are not suggesting it could be up to the year 2013?
Mr. Kessel: No, I am saying that we have that period in which to do it and that we are on track to do it by the date.
Senator Baker: The mechanisms that you need in order to facilitate your function in all of this is that the mapping has to be done and the preliminary work has to be done on the ground. You highlighted $70 million that has finally been approved. I think the Liberals approved that just before the Tories took over, or did the Tories originate it? Anyway, it was a long time coming and the vast majority of our coastline dates back to the lead line days of Captain Cook and it is very accurate mapping.
Can something be done to hurry this process to meet a deadline that should be set for half of that period of time? Do you see anything there that the government could do or would you speculate on what the government could do to shorten that period of time in which a presentation would be available?
Mr. Kessel: Senator, I am not very good at speculation so I have stopped trying to do it. What I will say is that the money was provided by the Budget 2004, that as and when we need additional funding, were it to be required, the government of the day obviously would look at that to ensure that we stay on track for our submission and our deadline.
I would mention that every year it is a bit of a crapshoot in terms of dealing with the ice in the North. There is quite a problem in terms of the centrifugal forces going on with the ice that is there. In addition, I am aware that even the Louis S. St-Laurent, which is an amazing vessel, has had difficulty getting into the areas where we need to go. We have to take advantage of any moment when the ice moves and is clear. My colleagues can verify the fact that some years it is simpler to do, it is never easy, and other years it is very difficult. I believe last year was a very difficult year on the ice. We are hoping that if we get started this March, because we have a narrow window in which to do it, we will be moving ahead.
With respect to whether we can do it faster, we are doing it as fast and as accurately as Canada deserves it to be done, and given that we have the period of time to 2013 we will do it the best way we can.
Senator Baker: To get back to "the race is on" you spent considerable time, and correctly so, congratulating the Canadian authorities on their forming with other nations the collaborative definition of what forms the extension of a continental shelf .
I might remind you that in Nova Scotia and Newfoundland we have provincial laws that say it is ours out to the point of exploitability; however, with modern technology that would cover the entire Atlantic Ocean and we would probably seize the sands of North Africa in the process.
Surely, you cannot suggest that if something was done 20 years ago, or if it is done 10 years from now, that in meeting all these definitions along the way we would not lose out because we have not submitted our application. Perhaps we could lose out to somebody else back here — I mean the U.S. is up here, Denmark is over there or we could lose out on the extension out to the Flemish Cap. You may say the race is not on but you are telling everyone else what happened back here that it does not matter what he or she did as far as collaborative definitions are concerned.
Mr. Kessel: As I said, I am allergic to speculation, but if I were to take the logic of your argument, you would actually be arguing that we wait longer until the science is even more accurate so we could get a much more accurate picture.
I can tell you right now that given the fact we have our period of 10 years, given the fact that we are satisfied the science we have can give us a good current picture of where the extension of the continental shelf is, I agree with you that there are issues of definition. I agree that there are issues of definition as to what ridges are and where they belong and whether they are sand or a real ridge. Those are the things we are using our very high-definition seismic data to determine right now. That is why we share as well, because we can get good data from our colleagues, the Americans, and or Danes or Russians, to look at those things.
I will reiterate; this is not a race. We will all go to the finish line at different paces, but there is no gun starting it and there is no flag ending it.
Mr. Hannaford: I have a minor point, which is only that this is essentially a factual inquiry. The continental shelf will not grow or shrink. It is really a question of Canada doing the work that needs to be done in order to satisfy the facts. That is what is underway right now.
Senator Baker: However, the definitions of the facts change.
Mr. Hannaford: The definition is stipulated in the convention itself and that is not going to change. The question is just how that applies on the ground and that is precisely the work that is underway.
Senator Baker: I imagine there is some advantage, Mr. Hannaford, to what Mr. Kessel defined as "collaborative definitions." You have not exhausted the definitions as far as the collaborative nature of discussion is concerned. If I were to carry your logic to the extreme, why not wait another 50 years before doing this?
There are 17 foreign nations out there destroying our fishery while we have unemployed people in our fish plants. We are looking for ways to stop that kind of foreign fishing. It is important to do this surveying now because the results might show that the foreign fishing is illegal and it might be a way to stop the fishing. The work going on up there has the potential to put our fisherman back to work. Therefore, it is important to do it now because we cannot wait. That is a political question and I do not expect you to answer it.
Senator Comeau: Senator Baker raised the issue of the Flemish Cap. I note that the Flemish Cap is outside the white area on the map. Probably to the extent expressed by Senator Baker, some people would like to view the continental shelf as an extension of our jurisdiction as far as possible, perhaps to the Flemish Cap. In your view, is the Flemish Cap outside the limits of our possibilities?
Wendell Sanford, Director, Oceans and Environmental Law Division, Foreign Affairs and International Trade Canada: It is our presumption that although the Nose and Tail are both inside the expected area, it may be that the Flemish Cap either is or is not outside. We do not know what the science will show us. The challenge is the depth of water between the Nose of the bank, which is at the top of the picture, and the letter C on the chart, which is where the Flemish Cap is. The scientists will be attempting to demonstrate that.
Senator Comeau: I know you do not want to speak to issues of the fishery but some would like to know that eventually with time, a good argument could be made if it is within our continental shelf. Perhaps a good argument could be made to start exercising some jurisdiction over the fishery.
Mr. Sanford: I want to clarify that the extension of the continental shelf is absolutely unrelated to the fishery, except to the extent of extending the continental shelf gives us control over sedentary species on the surface. We would be able to control lobsters and clams and, with respect to using it to control vessels that drag, our estimation is, no. The exception would be if we were to explore and exploit in a certain area so we could take that right as being superior to the fishing right. However, we would also be forgiving our own fishing right.
Senator Baker: He said something that is completely contradictory.
Senator Comeau: An issue raised was that some view the Northwest Passage as an international passage. Could you show us the limits of the Northwest Passage that are within Canada's waters?
Mr. Kessel: I can try but this is not an accurate map. The Northwest Passage is not a single passage but is a number of routes through the area.
Senator Comeau: Let me be more precise. What are our waters?
Mr. Kessel: That is another question. Our internal waters are everything within the baselines that run along the territorial sea of Canada on all coasts. They run all the way up the east coast to Greenland and down the other side and all the way up to the Yukon/Alaska border. Everything inside that is Canada and Canadian waters.
Senator Comeau: I will need to see it on a map.
Mr. Kessel: Everything in the triangle on the map and on down is Canadian.
Senator Comeau: The red and white areas are not our waters.
Mr. Kessel: The red is the 200-mile economic zone and the white is the proposed possible extension of the continental shelf, but we are still mapping that so it is a notional picture.
Senator Baker: Mr. Sanford expresses the conventional wisdom that this committee has heard from, for example, the Dean of Law at Dalhousie University, who agrees with Mr. Sanford and the conventional legal wisdom. There is no doubt about it. I do not agree and I do not know where this comes from. We heard the testimony on this matter but I have not seen the evidence. If we are gaining control of the soil and subsoil of the ocean for Canada, then in my view that means the Soviet Union cannot go there and dig up the soil and subsoil at will and take it back home.
Could Mr. Sanford assist the committee with a legal interpretation related to international law whereby when you seize jurisdiction over the soil and subsoil, you really do not have jurisdiction. It depends on what they are doing and for which purpose they are disturbing the soil and subsoil.
Mr. Sanford: The key is that this does not extend our jurisdiction. Canada has not become larger by virtue of having an extended continental shelf. Rather, Canada gains extra rights with respect to the soil and the subsoil of that part of the ocean floor. The rights that we gain are only for us to explore and exploit.
The understanding is that it has to do with sedentary species on the bottom, and that is the only fishery involved. That is the decision of the United Nations Convention on the Law of the Sea and that is what the convention says.
Senator Baker: Where do the minerals come from that Mr. Kessel is talking about? You said it only involves sedentary species. What about the minerals?
Mr. Sanford: "Soil and subsoil" is code for minerals and hydrocarbons.
Senator Baker: Can you show me any international law that says that? Maybe we are off on a tangent here that is not worth pursuing.
Mr. Sanford: That is what the convention itself says, and we can provide that information.
Senator Cowan: Mr. Kessel, please tell us more about the capacity of our ships to do the work we have to do between now and 2013.
We had testimony last week from the Coast Guard with respect to the Terry Fox and the Louis S. St-Laurent, which are the two heavy icebreakers, the only two that we have that are capable of going into the High Arctic ice. They are, as the testimony said, getting towards the end of their useful life. Unless orders are placed soon for replacement vessels, we may find that they have gotten beyond the point where they can be used and we will be left without the proper equipment to do the job.
Do you share in that concern and if so, what does your government propose to do about it?
Mr. Kessel: You said you did hear from our colleague Ms. Watson-Wright and others, and I think they are best placed to talk about the actual equipment issue. We each bring our own specialties to the table, and ours, of course, is on the questions of the delimitation and the legal regimes. On the actual equipment issue, you should put your questions to others.
Senator Cowan: In order to formulate your legal opinions, you need certain scientific research carried out?
Mr. Kessel: Yes, and so far we are getting it.
Senator Cowan: You have no concerns about the ability of the Coast Guard vessels to provide a platform for the gathering of that research material?
Mr. Kessel: At the moment, the information that we are getting about the quality of the data they are getting is good. The vessels are providing us with the data that we need to date. I can only rely on my colleagues in the other departments to determine their equipment needs.
Senator Cowan: It has not been expressed as a concern to you.
Mr. Kessel: My only concern is we have the data. I have not discussed the issue of were it not to come in because at the moment we are getting it. If you think there is a concern —
Senator Cowan: It is not whether I think there is a concern. It is a concern that the Coast Guard people expressed to us that they need to have replacement vessels sooner rather than later.
Mr. Kessel: Then they are best placed to give you their views.
Senator Adams: Senator Cowan, it is true that they told us the Louis S. St-Laurent only has eight years left, and I think Terry Fox another 10 years, and without the icebreakers, we will not finish the final report by 2013. They told us they are going to replace them at a cost of between $700 million and $1 billion, but will they come up with that amount of money in 10 years time.
Mr. Kessel: I am a simple lawyer. I could not answer how much an icebreaker costs. If they indeed say they have seven years of life left, then that deals with the question Senator Cowan was asking.
The Deputy Chair: Are there any other questions? Mr. Kessel, are you finished with your testimony?
Mr. Kessel: I certainly am. Of course we are available to answer any questions.
The Deputy Chair: I want to thank Mr. Sanford. We did not ask you to present in a formal way, but you so kindly agreed to join us at the table. We appreciate your presence here. I also want to thank Mr. Kessel and Mr. Hannaford for coming this evening and answering our questions. We may have others, so we may ask you to come back.
The committee adjourned.