Advance on the Arctic

As the polar ice recedes and the weather warms up, Canada will be watched closely while it steers the eight-nation Arctic Council through a pivotal two-year term

By Karen Gross / Illustrations by Oli Winward

From the Spring/Summer 2013 issue of Nexus.

It's been 17 years since Canada held the founding chair of the Arctic Council in 1996, and the environmental, political and business climates have changed drastically over that time. Once impassable waters are opening up as tempting shortcuts for shippers looking to save time and money. The energy and mining industries are eager to get in on the action, hoping to profit from the largely untouched, resource-rich region. And environmentalists and climate change experts worry Canada will use its clout to step up development at the expense of the fragile ecosystem and the people who call it home.

"The main issue is not to forget the Arctic Council's mandate," says Hélène Mayrand, law professor at the University of Sherbrooke and a doctoral candidate at the Faculty of Law. That mandate, she stresses, calls for the Council to promote cooperation among the member states in pursuit of sustainable development and environmental protection. Mayrand worries Canada will pull the other seven member states—Russia, Denmark, Norway, the U.S., Finland, Iceland and Sweden—in the opposite direction. "It wants to advance its own interests, and it wants to focus on sovereignty and promoting economic development. You can see the focus is not on environmental protection, and you can see that through what Canada has done in the past."

Citing Canada's withdrawal from the Kyoto Agreement and its reduction in requirements for environmental impact assessments for exploratory oil wells, Mayrand notes its track record has been unimpressive. Her concerns over Canada’s record on climate change are shared by Travis Allan, JD 2008, whose Toronto firm Zizzo Allan advises on climate change and environmental law and policy.

"As a country we are rapidly developing what will be a huge contributor to greenhouse gas emissions and climate change with the oil sands," he says. "This is all part of a broader conversation about resource development in Canada."

Indeed, Canada has already pushed a position that stresses increasing investment and development in the northern resource sector. While that has environmentalists concerned, mining and energy companies, along with China, Japan and the European Union, have already begun exploring the seemingly endless opportunities in the North.

Earlier this year, the Centre for the North, an initiative of the Conference Board of Canada, released a far-reaching report predicting that the region's metal and non-metallic mineral output would grow by 91 percent by 2020, with a compound annual growth of 7.5 percent. The economic forecast calls for a doubling in the mining sector, to $8.5 billion in 2020. That’s based on a constant 2002 dollar.

"I do think it will be a critical two year term," says Mark Convery, LLB 1983, a senior partner with the international firm Norton Rose Fulbright and a member of its recently formed Canadian North and Arctic team. "We're reaching a tipping point in terms of development in the North so Canada's chairmanship comes at an opportune time in that regard."

Convery's firm is already involved in the Baffin lsland Iron Ore project at Mary River in Nunavut. The mine is expected to produce 3.5 million tonnes of iron ore per year. In fact, Norton Rose Fulbright created its special Arctic/North team in response to clients who began clamoring for expertise in the issues of the region. "This area is now opening up in ways that couldn't have been imagined five or 10 years ago," he says. Still, Convery believes concerns that Canada will move ahead in an irresponsible manner are unrealistic.

"I think everybody recognizes that it's an extremely fragile and unique ecosystem there," he says," and that everybody has to do whatever's reasonably possible to protect the environment."

Increased business opportunities and warming waters have already brought more ships into the frigid region, along with a host of potential issues and problems connected to them. Who will respond in case of a collision or an environmental emergency? Whose regulations will ship operators adhere to, and what laws will protect the delicate marine balance with the increase in traffic and possible consequent pollution? While the International Maritime Organization has issued a set of guidelines, it is not legally binding internationally. Canadian observers expect the country to lead on that front, as it already enforces its own Arctic Waters Pollution Prevention Act within 200 nautical miles of its shores and is keen on pressing its polar neighbours to enforce those recommendations. Those rules forbid discharging oil, oily waste, or any kind of garbage into Arctic waters. And the IMO is working on a Polar Code, which would ideally cover everything from propulsion standards and hull constructions for ships to crew training and fire protection.

Advance on the ArcticThat code should be at the very top of Canada's to-do list, says Nigel Frawley, JD 1972, a maritime lawyer and Secretary General of the Comité Maritime International. "I would expect the Canadian Chair to push for an early resolution and get the Polar Code in place," he says. "It keeps getting pushed into the future. We even heard of 2018 as a deadline, which would be disastrous."

Two years ago, the Arctic Council did succeed in negotiating its first binding treaty—an agreement covering the search and rescue responsibilities of each Arctic Council member. And just recently, the forum struck its second binding deal, which aims to coordinate cleanup in case of an oil spill anywhere in the Arctic region. Among other things, the agreement sets out guidelines for communication and management of personnel. It also requires member nations to notify each other if there is an environmental oil emergency.

 But while they're a big step in the right direction, agreements on paper need to be backed by financial and material commitments, Frawley argues. He’s concerned that with cash-strapped governments looking to save money rather than spend it, adequate infrastructure, training, and shipping safety may still take a back seat to growing pressure from business interests.

"If climate change continues and the window for ice-free navigation becomes wider, ship owners and operators will see a commercial advantage," warns William Sharpe, LLB 1980, a maritime lawyer in private practice. "Existing operators are very responsible, but those with less experience may not have sufficient training to safely operate."

All of this is unfolding with the region's various Indigenous groups at the Council table as permanent participants, but without the right to vote. Significantly, the Harper government's representative is Canada's Minister of Health, Leona Aglukkaq, an Inuk from Nunavut. Breaking from the Council's traditional focus on sustainability and the environment, Aglukkaq has said she'd like to increase industry's involvement and spark a better exchange of ideas with business leaders. At the same time, Aglukkaq says she wants to ensure the people most affected by any development decisions will benefit financially and have their voices heard.

Climate lawyer Travis Allan contends the lives of Arctic peoples have already been disrupted by climate change, and their hunting and fishing traditions risk further damage if resource extraction is allowed to run rampant.

"The process of adapting to climate change is extremely expensive," says Allan. "There is a huge amount of work to be done to identify what needs to be accomplished and then to actually implement measures that will allow people to continue their traditional ways of life."

Aggressive commercial fishers pose yet another threat to the region, its people and its wildlife, now that climate change has melted much of the ice in the central Arctic Ocean. More than 2,000 scientists around the world are urging the five coastal nations, including Canada, to develop an accord that would regulate fishing in the Arctic Ocean, where the open water has become accessible to distant foreign trawler fleets. The agreement's ultimate goal would not be to permanently block harvesting of the fish that used to live under the ice as well as other fish that may migrate northward as the ocean warms up. Rather, its aim would be to declare a commercial fishing moratorium until the fish stocks can be studied, and then later manage them for commercial exploitation.  The accord would regulate what is known as the ocean's "doughnut hole," an area of international water north of the Bering Strait that some estimate to be the size of the Mediterranean Sea.

Arctic observers welcome this sort of pre-emptive action. They worry about what happens in the water as much as they do about what happens on the resource-rich land.

"As soon as the ice starts to leave and there is sufficient time for fishing," warns maritime lawyer Nigel Frawley, "you're going to see Korean, Japanese and Chinese fishing vessels moving into the Arctic and overfishing. There's a real danger in that."

So Canada takes over the Arctic Council with its plate full of tempting business opportunities and potentially disastrous pitfalls. Keenly interested parties will be watching every move. And nations with no Arctic claims, including India and China, have succeeded in snagging status as observers in order to monitor every step the Council takes. Further complicating Canada's task, Iceland's president recently launched a new circumpolar forum called the Arctic Circle, which promises to be "an open tent” that will include Big Oil and organizations ranging from Greenpeace to Google. Iceland also recently became the first western country to sign a free-trade pact with China, a country already building ships in anticipation of taking a drastic northern shortcut to European and American markets.

"Membership is something of a hot-button issue at the moment," says the Hon. Bill Graham, LLB 1964, who chaired the House standing committee on foreign affairs during the time the Council was established, and later served as the minister of foreign affairs. But he adds that while Canada does hold a measure of moral suasion as chair, ultimately member nations can still do what they want within their own territories. "It's not a parliament," Graham says. "It's not there to lay down the law."

The Arctic region needs strong leadership now more than ever, argues SJD candidate Hélène Mayrand, an approach that protects the area, its people and its resources instead of risking its future to take reckless advantage of the already tragic effects of climate change. An Arctic Treaty like the one already covering the Antarctic (though extremely unlikely) would be a step in the right direction, Mayrand says. But in order to save it, nations and businesses need to study the region responsibly, and stop hungering after its riches as though it's the pot of gold at the end of the rainbow.

"It's really the way we see the Arctic that needs to change," she says. "The Arctic states need to stop looking at it as an opportunity to be exploited, but rather as a natural treasure—a piece of heritage that needs to be preserved."

Supporters of local development and resource extraction insist that they can find ways to achieve both goals simultaneously. The next two years, under Canada's leadership, may well determine whether that's true.