May 31, 2019 4:20 pm

Canada’s Northwest Passage claim isn’t settled — but it’s not ‘illegitimate,’ like the U.S. says it is

WATCH: What is the Northwest Passage?

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Mike Pompeo cut a bold figure when he talked about the future of the Arctic in Finland.

Ahead of meetings by the Arctic Council, a group of nations that border the area like Canada and the U.S., Pompeo raised suspicions about China’s ambitions for the region, slammed Russia’s “pattern of aggressive behaviour” there — and took a swing at Canada, in a footnote to his jabs at the other countries.

WATCH: May 6 — Pompeo warns of Russia, China activities in Arctic, says Canada’s claim over Northwest Passage ‘illegitimate’

“We recognize that Russia is not the only nation making illegitimate claims,” Pompeo said.

“The U.S. has a long-contested feud with Canada over sovereign claims through the Northwest Passage.”

The Arctic Council meeting would end with a joint statement, signed by the U.S., committed to maintaining “peace, stability and constructive co-operation” in the Arctic.

Below you’ll find a map of the Northwest Passage, with the Beaufort Sea to the west, and the Davis Strait to the east:

The matter of the Northwest Passage would pop up again in May, when Prime Minister Justin Trudeau met with U.S. Vice President Mike Pence. Opposition leader Andrew Scheer accused Trudeau of “abdicating” responsibility by allegedly not raising Arctic sovereignty in their meeting.

Foreign Affairs Minister Chrystia Freeland pushed back, saying Trudeau did address Canadian sovereignty over Arctic waters.

The Northwest Passage — it’s a sea route that once doomed an expedition by Sir John Franklin and his ships, HMS Erebus and HMS Terror.

Explorers once sought access through its waters to riches they hoped could be found in Asia.

Their story has been memorialized in Stan Rogers’ “Northwest Passage,” one of Canada’s most famous songs.

READ MORE: Canada’s claim to Northwest Passage is ‘illegitimate’ — Mike Pompeo

To travel from one side of North America to the other, ships currently have to journey through the Panama Canal in Central America.

The Northwest Passage could shave as much as 7,000 kilometres off that journey.

The passage has gained new attention from other countries now challenging Canada’s claims to jurisdiction over the route.

But just how legitimate is that jurisdiction? Was Pompeo right, or is Canada’s claim still an open question?


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Michael Byers, an Arctic sovereignty expert at the University of British Columbia, called Pompeo’s remarks “misinformed” and challenged the secretary’s assertion that the countries are involved in a “feud.”

“We’re not feuding, we’re having a legal disagreement over the status of the Northwest Passage,” he said.

“The Americans insist it’s an international strait, open to vessels from any country, like the Strait of Gibraltar, or the English Channel, and Canada says no, these are internal waters, subject to the full force of our jurisdiction and control.”

WATCH: June 11, 2017 — Icebreaker C3 cruising the Northwest Passage from Toronto to Victoria for Canada 150

The history of Canadian claims over the Northwest Passage stretches back to at least 1946.

At that time, Lester Pearson, a future prime minister then serving as ambassador to the United States, asserted that the Canadian Arctic included “not only Canada’s northern mainland, but the islands and the frozen sea north of the mainland between the meridians of its east and west boundaries, extended to the North Pole.”

However, Canada didn’t exactly rush to pass legislation to assert this claim, noted Arctic defence expert Andrea Charron, in an article for the Winter 2005/2006 edition of the Canadian Military Journal.

Back then, it was considered “quite radical” to pass legislation that would “distinguish between sovereignty over the land and sovereignty over waters,” she wrote, quoting international law expert D.M. McCrae.

Even Canadian politicians doubted their own jurisdiction over Arctic waters.

READ MORE: Canada stands by Arctic climate goals as U.S. eyes melting ice as economic opportunity

Then, in 1969, the S.S. Manhattan, an American tanker, traversed the Northwest Passage after oil was discovered near Alaska’s Prudhoe Bay

Canada subsequently announced plans for legislation to target pollution in the Arctic, in an effort to establish “functional sovereign control” over the Northwest Passage, Charron wrote.

A second voyage by the Manhattan took place under close Canadian supervision; the U.S. would then assert that the passage was an international channel.

WATCH: Sept. 4, 2013 — Modern day explorers traverse the Arctic for climate change

Canada would pass even more legislation — like the 1985 Arctic Waters Pollution Prevention Act which stated, “no person or ship shall deposit or permit the deposit of waste of any type in the Arctic waters.”

Scholars like McCrae have argued that the act has been legitimized by the passing of Article 234 of the UN Convention on the Law of the Sea (UNCLOS), an international treaty that sets out a “legal framework for marine and maritime activities.”

States may not recognize Canada’s Arctic Waters Pollution Prevention Act, but they recognize Article 234, Charron wrote.

READ MORE: HMS Terror wreckage discovered 168 years after Northwest Passage attempt — report

Nevertheless, Canada and the U.S. disagree over precisely what the Northwest Passage represents — historic internal waters, subject to Canada’s say over which ships can enter, or an international strait, free to be navigated by other states.

There’s no clear answer, because it’s never been tried in court, said Adam Lajeunesse, a professor focusing on Arctic marine security at St. Francis Xavier University.

“It’s never been put to a court, it’s something Canada and the U.S. have preferred to let sit,” he told Global News.

“We have agreed to disagree for very good political reasons since the 1950s.”

Pompeo’s comments weren’t exactly new, Lajeunesse said — they represented policy similar to what’s come out of the Obama and Bush administrations.

“What’s shocking is he’s coming out and saying it so aggressively,” he said.

WATCH: May 7 — Scheer says ‘our sovereignty over the north is non-negotiable’

They weren’t necessarily new from the Trump administration, either.

Last year, Secretary of the Navy Richard Spencer said the U.S. would need to undertake more “freedom-of-navigation” voyages in the region — journeys to demonstrate that a nation has both the right and the ability to travel there, Lajeunesse noted in Policy Options.

Sea change

The Trump administration’s tone represent a departure from previous diplomacy between Canada and the United States.

In 1988, for example, the two countries signed the Arctic Cooperation Agreement, in which the U.S. pledged that all of its icebreakers would navigate waters claimed by Canada “with the consent of the Government of Canada.”

Pompeo’s remarks are more aggressive than the Americans have been before, but they don’t really affect that agreement, Lajeunesse said.

READ MORE: MSV Nordica sets new standard for earliest crossing of Northwest Passage

“That agreement does not force the U.S. to recognize Canadian sovereignty, nor does it force Canada to admit American ships under the conditions that one would anticipate for an international sea route,” he said.

Both Canada and the U.S. have legal arguments that have been supported by the International Court of Justice (ICJ), Charron noted in her piece.

The Government of Canada in 1982 commissioned numerous legal experts to review the question of the Great White North’s sovereignty over the Northwest Passage, Lajeunesse noted.

“They gave the government a 75 per cent chance of winning if this went to court,” he said.

The passage that once doomed explorer Sir John Franklin and his ships now makes for easier navigation than it did in 1845.

Today, it’s not explorers, but nations that wish to trace a line between the Davis Strait and the Beaufort Sea.

Ice no longer determines who can pass. Perhaps, with a day in court, that will be for Canada to say.

© 2019 Global News, a division of Corus Entertainment Inc.

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