Guest column: Time, Canada, to negotiate the Northwest Passage

With Arctic sea ice melting, at up to three times faster than scientists were predicting, the international battle over the polar region and the Northwest Passage, in particular, is also heating up. This week Moscow sent a nuclear-powered icebreaker to explore the extent of its northern continental shelf while Canada announced that this summer's annual military exercise in the Arctic will be the largest in recent history.

UBC's Michael Byers, the author of Who Owns the Arctic? Understanding Sovereignty Disputes in the North, says it is time for the federal government to start formally negotiating the rules around the Northwest Passage with the international community, the Americans especially.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He is a project leader with ArcticNet, a federally-funded consortium of scientists from 30 Canadian universities and eight federal departments and is the author of Who Owns the Arctic? Understanding Sovereignty Disputes in the North.

It's never been easy for Canada to talk about the Northwest Passage with the U.S. The passage was the holy grail for explorers from Cabot to Hudson and Franklin, whose discoveries helped define our northern nation.

The Northwest Passage also constitutes Canada's most significant long-standing dispute with the U.S. It's a source of both pride and anxiety in our close but asymmetrical relationship.

Still, we've managed to talk before. In 1988, Brian Mulroney resolved the sovereignty challenge posed by U.S. Coast Guard icebreakers. In return for Ronald Reagan agreeing that such ships would request permission from Canada, Mulroney promised that permission would be routinely granted.

Our current prime minister, however, seems to have missed that lesson in pragmatic diplomacy.

In fact, during his very first press conference as prime minister back in January 2006, Stephen Harper took aim at then U.S. ambassador David Wilkins for having simply reiterated Washington's longstanding position — that the Northwest Passage is an international strait open to foreign shipping.

"It is the Canadian people we get our mandate from," said Harper, "not the ambassador from the United States."

It was a potentially damaging rebuke, for just a few months earlier, Paul Cellucci, Wilkins's predecessor, had revealed that he had asked the U.S. State Department to re-examine Washington's position.

Cellucci's concern was that terrorists might take advantage of ice-free conditions to enter North America or transport weapons of mass destruction via its largely unguarded northern coast.

Cellucci went so far as to suggest publicly that Canada's position — that the Northwest Passage constitutes "internal waters" where foreign vessels are subject to the full force of Canadian law — might now work for the U.S.

Setting a precedent

From where I sat, as the holder of a Canada Research Chair in international law at UBC, it looked as if the prime minister had just blown off an invitation to negotiate. My University of Montreal colleague Suzanne Lalonde and I decided to investigate.

In Washington, we met with J. Ashley Roach, the straight-shooting diplomat then charged with U.S. policy on the law of the sea.

We knew that Washington's position was based on a concern that any concession on the Northwest Passage might create a precedent for other waterways, such as the Strait of Hormuz where oil tankers steam out of the Persian Gulf and freedom of navigation is contested by Iran.

Couldn't you sidestep the notion of setting an international precedent, we suggested, by accepting that the Northwest Passage is unique? We pointed to the passage's considerable length, the frequent presence of sea ice, and the consequent near-absence of shipping — indeed, only 69 full voyages had taken place since 1906.

Roach's reply was that the Pentagon was especially concerned about setting a precedent, which we took to mean that the State Department might have a less rigid view.

We pointed out that maintaining access to the Northwest Passage should not be a concern, since Canada would never deny entry to a close ally.

"The United States understand that," Roach said.

Thanking him for his candour, we left for our next meeting, with four diplomats at the Canadian Embassy.

After we'd sketched the outlines of our discussion with Roach, they looked at each other with visible regret. "I'm glad you went to the State Department," the most senior of them said. "We're not allowed to talk about the Northwest Passage with the United States."

Open waters

Five months later, in July 2007, Harper bluntly stated that "Canada has a choice when it comes to defending our sovereignty in the Arctic. Either we use it or we lose it."

The message to the international community was clear: Canada wasn't interesting in compromising its go-it-alone position.

But the scale of the challenges we face in the North changed dramatically in September 2007 when there was a massive retreat of Arctic sea ice and, for the first time, the entire Northwest Passage was open to shipping.

It now appears possible that the thick, hard multi-year ice that poses the greatest risk to ships will disappear forever within five to 10 years. The Northwest Passage will then resemble the Gulf of St. Lawrence, where ice-strengthened vessels and icebreaker-escorted convoys can operate safely throughout the year.

The prospect of increased shipping, of course, brings with it security and environmental risks like smuggling, terrorism and oil spills that often transcend boundaries.

And the fact is that neither Canada nor the U.S. with its long Alaskan coastline is able to address these challenges adequately on its own.

Perhaps with this in mind, the U.S. has now embarked on an unprecedented amount of Arctic co-operation. The State Department recently led the negotiation of an Arctic-wide search-and-rescue treaty designed to coordinate multinational responses to shipping and aviation disasters.

The U.S. Air Force has partnered with Russia in testing a joint response to any hijacking of a civilian aircraft in international airspace. The U.S. Coast Guard has, for four summers now, sent an icebreaker to the Beaufort Sea to map the ocean floor in tandem with a Canadian vessel.

The time is ripe

Washington is also working within the Arctic Council and International Maritime Organization to develop co-operative mechanisms for oil spill clean-ups and fisheries management, as well as on safety standards for polar shipping.

At the same time, the U.S. appears to understand that Harper's Arctic rhetoric has always been aimed at Canada's electorate and not necessarily its international partners.

As a U.S. diplomat explained in a cable released by WikiLeaks: "The persistent high public profile which this government has accorded 'Northern Issues' and the Arctic is … unprecedented and reflects the PM's views that 'the North has never been more important to our country' — although one could perhaps paraphrase to state 'the North has never been more important to our Party.'"

Perhaps now, with a majority government and a bit of partisan breathing room, the prime minister can finally pursue the opening created by Cellucci six years ago.

It's time to negotiate the Northwest Passage dispute; to talk about the commitments — on access, policing and search-and-rescue — that the U.S. might wish from Canada, in return for recognizing our claim to this passage as "internal waters."