Aboriginal Rights and the Sovereignty of Countries (including a case study of the Canadian Arctic) by Marc Denhez, Inuit Tapirisat of Canada, June 1982
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                           ABORIGINAL RIGHTS 

            (including a case study of the Canadian arctic)

                              June, 1982

                              Marc Denhez
                       Inuit Tapirisat of Canada

                           TABLE OF CONTENTS

     Part I.   Introduction
     Part II.  General Observations on Laws and Peoples
               A. Legal Origins 
               B. Effect on Boundary Claims 
               C. Relationship between Aboriginal Rights and a 
                  Country's Sovereignty 
     Part III. Summary of Basic Principles
     Part IV.  Case Study: Canadian Arctic Waters 
               A. General 
               B. Government Enactments. The Arctic Islands Game 
               C. The Arctic Waters Pollution Prevention Act 
               D. Jurisprudence and Offshore Rights 
               E. Approaches to Aboriginal Title
               F. Legal Dilemmas and Solutions 
               G. "Land Claims" and the Offshore 
               H. Impact on Sovereignty 
     Part V.   Conclusion

          The overwhelming majority of countries in the world 
     have uncertain boundaries.  
          The majority of countries claim sovereignty to areas 
     which are subject to challenge by other countries. Even 
     among close allies, such as Canada and the United States, 
     there are disagreements over issues such as maritime 
          To increase the credibility of their sovereignty 
     claims, countries have often argued that their citizens used 
     the territory in question. Sometimes the citizens referred 
     to were an "aboriginal" people such as the peoples 
     represented at this conference.  
          That could often create an awkward situation: on one 
     hand, the country's diplomats may have been arguing that the 
     aboriginal people WERE PART AND PARCEL of that country's 
     boundary claims at the same time as the government's lawyers 
     argued that these people were NOT really part of the 
     country's legal system.  
          This paper will discuss the relationship between a 
     country's sovereignty and the position of its aboriginal 
     peoples. The word "sovereignty" is used here in the context 
     of COUNTRIES, not of peoples It will be argued that in many 
     cases, a country's claim to sovereignty over a given area 
     will be strengthened or weakened depending upon its approach 
     to aboriginal rights. The example of Canadian arctic 
     waterways will be used as a case study,  


          Innumerable texts attempt to define the "origins of 
     law". From a purely practical standpoint, one can argue that 
     a legal system originates when certain CUSTOMS ARE ROUTINELY 
     ENFORCEABLE by the community, or by institutions established 
     by the community for that purpose.(1) 
          In continental Europe, the situation was (until the 
     nineteenth century) comparable, despite the efforts of 
     universities to standardize law along the Roman model. 
     Indeed, before Napoleon French law was divided into systems 
     which were even named "coutums" (customs). The Quebec Civil 
     Code of 1866 was, first and foremost, a codification of one 
     such system called the Coutume de Paris, i.e. the "Custom of 
          Whose customs are enforceable? It is not true that the 
     customs of the predominant ethnic group were necessarily the 
     only customs which were enforced by a legal system; in fact, 
     the history of European legal systems (which are the basis 
     of laws in most of the world's countries) indicates that 
     these systems often went out of their way to accommodate the 
     customs of non-dominant groups.(2) 

     1. Sir William Blackstone described custom in these terms, 
     "Whence it is that in our law the goodness of a custom 
     depends upon its having been used time out of mind.... This 
     it is that gives it its weight and authority: and of this 
     nature are the maxims and customs which compose the common 
     law, or lex non scripta (unwritten law), of this kingdom." 
     Blackstone's Commentaries, Sweet and Maxell, 1929 p.67. 
     Jessel M.R. described custom as "local common law... Local 
     common law is the law of the country (i.e. particular place) 
     as it existed before the time of legal memory." Hammerton v. 
     Honey, 24 W.R. 603. In the United States there is also 
     judicial recognition of "usage acquiring force of law": see 
     Corpus Juris Secundum, Vol. 10A p.536ff.  
     2. As early as 1066, William the Conqueror enacted that 
     traditional Anglo-Saxon law would continue to apply except 
     where specifically superseded. To this very day, non-
     conforming legal systems continue to be applicable in 
     various parts of the U.K., such as the Isle of Man or the 
     Channel Islands.  
          In continental Europe (until the nineteenth century), 
     the situation was not appreciably different, e.g. as 
     witnesses by the different "coutumes" across France.  
          How could one determine whether a people's customs were 
     enforceable or not by the country's legal system? Domination 
     was not the criterion. Instead, it is arguable that the 
     deciding factor was whether a people was considered part of 
     the mainstream of the country. If a people was considered an 
     integral part of the country's population, then its customs 
     usually became enforceable (in some way or another) under 
     the country's legal system. If that people were utterly 
     peripheral to the mainstream, then its customs were usually 
     disregarded by the prevailing legal system. This would 
     explain historically, for example, why a country like the 
     U.K. tolerated radically different customary rules in the 
     County of Kent(3), but not in Wales(4): the former was 
     perceived as part of the historical mainstream, whereas the 
     latter (acquired by conquest) was not.  
     3. Kent was not ethnically identical to the other areas of 
     England: its origins were not Anglo-Saxon, but Jute. The 
     most important legal rule of all in earlier times, i.e. the 
     inheritance of land, operated differently in Kent: instead 
     of land being inherited by the eldest son, it was inherited 
     by children equally. Elsewhere in England, a custom called 
     "burgage" existed in various communities: land was inherited 
     by the youngest son.  
     4. The case of Wales was specifically dealt with by statute 
     during the reign of Edward I.

          During the centuries of colonial expansion, various 
     European courts had to deal again with the question of whose 
     customs they would respect and whose customs they would 
     ignore. This caused much misery to the judicial mind.(5) 
     After some 170 years of uncertainty, the Common Law finally 
     developed a theory which drew distinctions depending on 
     whether the colony had been acquired by "conquest" or 
     "settlement": that criterion determined whose customs would 
     be enforceable.  
          That legal approach worked efficiently when a case was 
     clear, e.g. when Britain defeated the French at Quebec, or 
     where Englishmen settled uninhabited territories. However, 
     that approach caused great difficulty when an area was 
     appropriated neither by clear-cut conquest nor by 
     settlement, but rather by gradual encroachment.  
          As a result, legal writers and courts have had to 
     resort to an assortment of legal fictions and esoteric 
     theories to explain how a given territory falls into one 
     category or the other. It has been argued that these various 
     stratagems usually lead to the same conclusion: courts 
     eventually wind up treating agrarian societies as part of 
     the mainstream, and give effect to their laws and customs; 
     judges have had much greater difficulty in taking hunting 
     societies seriously, and hence have not treated the latter's 
     rules as part of the enforceable mainstream.(6)  
          What has this meant for "aboriginal rights"? Aboriginal 
     rights are, after all, the rights inherited under an 
     aboriginal legal system. Where the  
     5. A thorough analysis of the Common Law cases is found in 
     Geoffrey S.  Lester's Inuit Territorial Rights in the N.W.T. 
     Doctoral thesis in four volumes, York University, 1981.  
     6. This argument is presented forcefully by Lester in 
     Primitivism versus Civilization, Our Footprints are 
     Everywhere. Labrador Inuit Association, Nain, 1977. P.351 et 

     aboriginal population was perceived as part of a country's 
     mainstream (because it was numerous, well organised, an ally 
     in warfare or for other reasons), there was less judicial 
     reluctance to recognize the aboriginal legal system and the 
     rights flowing from it.(7) Where the population was 
     perceived as peripheral (e.g. where Canada considered its 
     "two founding nations" to be English and French), the 
     prospects for judicial recognition of aboriginal rights were 
     much less promising.  
          The conclusion is therefore as follows. If one wants to 
     know whether a country treats a people as part of the 
     mainstream or part of the periphery of national life, the 
     most obvious indicator is the legal treatment of aboriginal 
     rights. If the rights inherited under an aboriginal legal 
     system (particularly land rights) are respected in a 
     country's laws and in its courts, then that is a good 
     indication that the aboriginal group is perceived as an 
     integral part of the country and national life. If those 
     aboriginal rights are not recognized, then that suggests 
     that the aboriginal group is not considered (by that 
     country) as a true component of the national homeland and 
     the country's historical development.  
     7. That was, for example, the case of various African 
     peoples: see Amodu Tijani v. Secretary, Southern Nigeria 
     (1921) 2 A.C. 399, and particularly Re Southern Rhodesia 
     (1919) A.C. 211.  

          As mentioned earlier, the vast majority of the world's 
     countries have claims on each other's lands or waters, or 
     which are otherwise under challenge.  
          There are various ways in which those claims can be 
     consolidated. One is military appropriation, sometimes 
     called conquest. Recent examples, dealing with 
     appropriations of both lands(8) and waterways(9), have been 
     noticeably unsuccessful, and risk creating problems in the 
     international community.(10) Indeed, even conquests of 
     centuries past continue to be challenged today; and any 
     country whose claim to sovereignty is based upon military 
     occupation - even dating back a century or more - can find 
     itself challenged by competing claims.(11) 
          The most reliable method for a country to maintain its 
     claim to sovereignty in an area is for that area to be 
     historically occupied by a people which is considered part 
     of the national mainstream. Such areas are usually perceived 
     as integral components of a country's "homeland." The same 
     principle has been extended to waters: international law has 
     recognized that a country can have "historic title" to an 
     area beyond its normal territorial waters if the area has 
     been traditionally the object of "effective occupation" by 
     the citizens of that country.(12)  
     8. As in the Argentine in the Falkland Islands  
     9. As in the Iraqi action for the Shatt al-Arab waterway 
     bordering on Iran.  
     10. The Charter of the United Nations distinctly condemns 
     this method.  
     11. This is the case, for example, of South American 
     countries which never accepted the outcome of the Guerra del 
     Pacifico and the Guerra del Confederacion Peru-Boliviana of 
     12. This principle has been recognized at least since the 
     beginning of the century: see e.g. Hall's International Law, 
     8th ed. p.193.  

          It is therefore apparent that it is in a country's 
     interest, when asserting sovereignty in an area, to produce 
     evidence that the area is occupied by people who are an 
     integral part of the national mainstream. It is these people 
     who, so to speak, carry the nationality of the country to 
     the area and who "bind" it to the "homeland".  
          Many countries attempt to play both sides of the fence: 
     they argue that their aboriginal peoples are not part of the 
     national mainstream for domestic legal purposes (and hence 
     aboriginal rights under their customary law are 
     unenforceable), but that these same peoples are part of the 
     national mainstream for international legal purposes (and 
     hence can be used as evidence of the country's historical 
     occupation of an area).  
          That game has its limits. It will probably work within 
     the domestic courts of a country, because these courts are 
     usually unauthorized to challenge the boundary claims of 
     their own country, whether the latter are logical or 
     not.(13) However, there is no reason why courts of other 
     countries, or indeed the international community generally, 
     should take a similar position.  
          In order to develop a fully credible position, a 
     country must make a choice. It must decide whether to 
     portray its aboriginal peoples as being integral parts of 
     the national mainstream, or portray them as being peripheral 
     to the life of the homeland. If it portrays them as part of 
     the mainstream, it may be sacrificing some of its position 
     in domestic litigation  (over aboriginal rights) in return 
     for a stronger case (for sovereignty) in the international 
     13. This is based upon the so-called "Act of State" 
     doctrine, which forbids most courts from reviewing the 
     legality of unilateral national moves which have 
     international consequences (e.g. wars, occupations, 
     assertions of sovereignty etc. 

          This exercise is usually in the national self-interest. 
     Although the acknowledgement of aboriginal rights 
     occasionally means that a country must make commitments to 
     its aboriginal peoples, these benefits accrue to citizens of 
     the country and may even be a component of its prosperity. 
     This is immeasurably less costly than a challenge to the 
     country's sovereignty can be, in which case it is foreigners 
     who have everything to gain and nothing to lose.  
          Not all countries, however, see matters in this light. 
     There are some countries whose governments are so accustomed 
     to thinking of aboriginal peoples as peripheral that it 
     never even occurs to them that aboriginal peoples are 
     citizens whose well-being can be consistent with the 
     national interest. These countries would tacitly prefer to 
     take their chances with the international community rather 
     than making any admissions concerning the status of their 
     own aboriginal citizens.(14) That attitude is potentially 
     hazardous for the country involved.  
     14. Overtones of that position are sometimes seen in 
     Canadian documents. A case in point was the Governor 
     General's proclamation commemorating the 100th anniversary 
     of Canadian sovereignty in the Arctic Archipelago. The 
     document re-asserted Canadian claims to waterways claims 
     which are the subject of some international controversy. The 
     preamble recited the grounds for Canadian claims, including 
     (in one draft version) the fact that Canadian Inuit had 
     "used and occupied these lands and waters since time 
     immemorial." However, the draft was intercepted and amended, 
     to state only that Inuit "frequented" the area. The change 
     not only made the Arctic sound like a pub, but was also 
     inconsistent with the terminology of international law. It 
     presumably reflected a greater fear, among some officials, 
     of admitting the presence of Canadian Inuit than of 
     undercutting the very basis of Canadian claims to 
          A country treats an aboriginal people as part of its 
     historical and current mainstream, or else it treats the 
     people as part of the periphery.  
          If that people is treated as part of the mainstream, 
     then the areas occupied by that people are part of the 
     historical "homeland" of the country. The customary laws of 
     that people also have a place in the legal system of the 
     country; accordingly, the rights under that customary law 
     are enforceable in the country's courts, as being part of 
     the historical mainstream of the country's juridical 
          If that people is treated as part of the periphery, 
     then its customary laws will probably not be enforceable, 
     nor will any rights under those customary laws. By the same 
     token, the areas occupied by this people cannot be 
     considered part of the historical homeland of the country. 
     Instead, those areas will be perceived as having been 
     conquered or appropriated by legal fiction, neither of which 
     are necessarily binding upon the international community. As 
     a result, the country will not be in as strong a position to 
     maintain its sovereignty claims if those claims are 

          This discussion will not concentrate on "moral" or 
     "political" rights, but rather those which could be enforced 
     in a Canadian Court of law.(15)  
          The legal rights of Inuit of offshore areas stem from 
     two main bodies of law: 
          1. Government enactments; and  
          2. Jurisprudence on aboriginal rights.  
     15. This case study was presented at McGill University at 
     the Sikumiut Workshop (April, 1982) held by the Centre for 
     Northern Studies. The proceedings of that conference are 
     scheduled for publication in 1982. 

          In the early part of the Century, Canada enacted 
     sweeping provisions which were designed not only to serve 
     Inuit interests, but also Canadian sovereignty and the 
     interests of conservation.  
          The degree to which Inuit interests were intertwined 
     with the sovereignty issue is seen in the chronology of 
     events leading to these provisions.  
          As late as 1918, there was no statute, regulation or 
     Order in Council which clearly defined Canada's boundaries 
     in the Arctic.(16) Unofficially, the Sector Theory, (which 
     advocates Canadian sovereignty right up to the Pole) had 
     been advanced in the Senate(17) and in the Arctic itself(18) 
     a decade earlier; and by the 1920's, it was being advanced 
     officially by Ministers of the Crown.(19)  
     16. E.G, see Order in Council P.C. No. 655 (March 16, 1918), 
     which defines the District of Franklin simply as "that 
     portion of the Northwest Territories not included in the 
     provisional Districts of Mackenzie and Keewatin."  
     17. See speech of Senator Pascal Poirier of Feb. 20, 1907.  
     18. Captain Joseph Bernier's expedition made this claim on a 
     memorial at Melville Island, July 1, 1909. For further 
     commentary, see "Canada's Arctic Archipelago" by Gordon 
     Smith, North Nord, Summer 1980, pp. 18-20.  
     19. Eg. the Minister of the Interiors speech to the House of 
     Commons, 1925 Hansard p. 4093. A detailed description of the 
     events leading up to this is found, among other places, in 
     Native Rights in Canada, Cumming and Mickenburg, eds. 2nd 
     ed., General Publishing, Toronto 1972. pp. 150-4.  

          The Arctic Islands Game Preserve (AIGP) was intended to 
     serve both the cause of sovereignty and the cause of 
     protecting Inuit game(20); and that dual purpose was clearly 
     perceived by both Ministers(21) and other public 
          The Preserve, as established in 1925,(23) imposed the 
     status of native "game preserve" on most of the area north 
     of Hudson Bay and Hudson Strait. In 1926, the Preserve 
     included only "lands". However, the boundaries to "lands" 
     was deleted.(24) Thereafter (after some adjustments) the 
     definition of the preserve's boundaries coincided 
     approximately with the Sector Theory, and hence encompassed 
     land and sea.(25) It eventually covered almost all northern 
     waters (except most of Hudson Bay, Hudson Strait, and the 
     southern Beaufort).  
     20. This is documented by Constance Hunt in The Development 
     and Decline of Northern Conservation Reserves", Contact: 
     Arctic Land Use Issues, Nov. 1976 See also "Inuit Hunting 
     Rights in the NWT," by Cumming and AAlto, (1974) Sask. L.R. 
     251 at pp. 277-280.  
     21. Per Minister of the Interior Stewart: "We are quietly 
     and unassumingly trying to maintain our right in the 
     territory... We must protect the native population." Hansard 
     1925 p.4093.  
     22. Commissioner of the N.W.T. and the Yukon O.S. Finnie:  
          "The creation of this Preserve and its appearance on 
          our maps also has a bearing on British Sovereignty in 
          the North and serves to notify the world-at-large that 
          an area between the 60th and 141st meridians of 
          longitude, right up to the Pole, is owned and occupied 
          by Canada."  
     Under-Secretary of State for External Affairs O.D. Skelton:  
          "Aside from its immediate purpose, this Preserve should 
          prove of distinct value as an assertion of our 
          sovereignty in the North, and it is all the more 
          valuable because apparently arising as a normal active 
          police administration." 
     Quoted by Constance Hunt, OP. CIT.  
     23. P.C. 1146, July 19, 1926; Canada Gazette July 31, 1926. 
     The authority for game preserves was found in the Northwest 
     Game Act, R.S.C. 1906c. 151, as amended 7-8 Geo. 5, c.36.  
     24. P.C. 807 May 15; see Canada Gazette Vol. 62p. 4021  
     25. An account is in Hunt, op. cit. By 1945, the following 
     description was found in the Canada Gazette (p. 4345):  

          Certain activities were prohibited in the AIGP, 
          - Non-native hunting, trapping, trading or 
          - Entry by any "corporations or newcomers"(27)  
          These activities could, however, take place upon 
     authorization of the Commissioner of the NWT. However, such 
     authorization would issue only so long as it has a "purpose 
     not incompatible with the interests of natives in such 
          These stringent measures served their desired purpose 
     in 1930, when the AIGP was successfully invoked to counter 
     Norwegian Claims(29) for special rights in the Sverdrup 
     Islands and Basin which would have compromised Canadian  
     sovereignty.(30) Norway dropped its claims on learning that: 
     26. An exception was made for prospectors, who could hunt 
     for food. A later exception was also made to protect rights 
     of non-native trappers already living in the area: see P.C. 
     6115, Sept. 20, 1945, s 49 A  
     27. S 6 (B).  
     28. S 6 (B). As mentioned by Hunt, no guidelines on this 
     subject interpreted this requirement. In 1929, the Minister 
     took over (from the commissioner) the task of issuing 
     authorizations to anyone "to enter any native preserve." 
     Again, there was a condition that the entry be for a 
     "purpose not opposed to the interests of the natives." P.C. 
     807 May 15, S. 41.  
     29. Otto Sverdrup had claimed some 100,000 square miles of 
     the central High Arctic for the Kingdom of Norway in 1900 
     and 1902. The Norwegian Government remained ambivalent 
     toward sovereignty claims, but insisted on the right to 
     carry on various activities (see Smith, op. cit. pp. 140-
     15). By Canadian sovereignty, as seen in his speech to the 
     House of Commons of March 31, 1930, Hansard (1930) p. 1092.  
     30. Norway insisted that Canada impose no "obstacles to 
     Norwegian fishing, hunting or industrial and trading 
     activities." Diplomatic Note of Aug. 8, 1930. See DOMINION 
     OF CANADA TREATY SERIES, 1930, No. 17  

          "it is the established policy of the Government of 
          Canada, as set forth in an Order in Council of July 
          19, 1926, and subsequent Orders, to protect the Arctic 
          areas as hunting and trapping preserves for the sole 
          use of the aboriginal population of the Northwest 
     In reaching final agreement, Canada and Norway provided:  
          That should these regulations be altered in the future, 
          the Canadian Government will treat in the most 
          friendly manner any application from Norwegians for 
          facilities to carry on fishing, hunting, industrial or 
          trading activities in the areas which the Norwegian 
          Government's recognition comprises.(32)  
     31. Diplomatic Note of Nov. 5, 1930. See Treaty Series 
     above. The note went on to explain that this was "in order 
     to avert the danger of want and starvation through the 
     exploitation of the wild life by white hunters and traders. 
     Except with the permission of the commissioner of the 
     Northwest Territories, no person other than native Indians 
     or Eskimos is allowed to hunt, trap, trade or traffic for 
     any purpose whatsoever in a large area of the mainland and 
     in the whole Arctic island area, with the exception of the 
     southern portion of Baffin Island. It is further provided 
     that no person may hunt or kill or traffic in the skins of 
     the musk-ox, buffalo, wapiti, or elk. These prohibitions 
     apply to all persons, including Canadian nationals. Should, 
     however, the regulations be altered at any time in the 
     future, His Majesty's Government in Canada would treat with 
     the most friendly consideration any application by 
     Norwegians to share in any fishing, hunting, industrial, or 
     trading activities in the areas which the recognition 

     32. Diplomatic Note of Nov. 5, 1930. Norway stated:
          The Norwegian Government has noted that it is a leading 
          principle in the policy of the Canadian Government to 
          preserve the Arctic regions as hunting and trapping  
          preserves for the sole use of the aboriginal population 
          of the Northwest Territories, in order to prevent their 
          being in want as a consequence of the exploitation of 
          the wild life by white hunters and trappers and that 
          they have drawn up more definite regulations to this 
          end by means of several Orders in Council.  
          In fact, a private challenge to the agreement (which is 
     a treaty)(33) took place shortly after World War II, to 
     little avail;(34) but interest has continued.(35) 
          In 1948, the federal government transferred(36) power 
     over the "preservation of game" to the Northwest Territories 
     Territorial Council.(37) The Council abolished almost all 
     preserves;(38) the AIGP was abolished in 1966, over the 
     objections of the Canadian Wildlife Service. There was no 
     mention of sovereignty, nor any indication that the 
     Councillors had addressed their minds to that issue.(39)  
          Did that vote indeed have the effect of abolishing the 
     game preserve?(40) It has been argued that although the GNWT 
     was empowered to legislate for "preservation of game", the 
     abolition of the Preserve did the reverse and was beyond the 
     powers of the Territorial Council.(41) That argument is  
     33. The argument that the Canada-Norway agreement, (which 
     appears in the Dominion of Canada Treaty Series) is indeed a 
     treaty is outlined by P. Cumming and K, Aalto in "Inuit 
     Hunting Rights in the Northwest territories," (1974) 38 
     Sask. L. Rev. 252 at 286.  
     34. It is referred to in Smith, op. cit. p. 15  
     35. See, for example, an article exploring possible 
     subsisting Norwegian claims by G. Henriksen, "Norske 
     Rettigheter 1 Det Danadiske Arktis?" Onsdog Aften  
     Menpoflen, Sept. 16, 1970.  
     36. 11 and 12 Geo. 6 c. 20's. 1  
     37. The Federal Northwest Game Act was repealed as part of 
     the transfer 11-12 Geo. 6 c. 20's. 3(1). It was replaced a 
     few months later by a Territorial Game Ordinance: NWT 
     Ordinances 1949c.12. This Ordinance reenacted the Game  
     38. The Council was mostly non-elected and overwhelmingly 
     39. A chronological account of the abolition, including the 
     views of government spokesmen, is found in Hunt op. cit. 
     pp. 52-66.  
     40. In order to be effective, the abolition must have been 
     within the jurisdiction of the Council as defined in the 
     Northwest Territories Act. In the case at hand, that  
     jurisdiction could stem from either the Council's power 
          (i)  to enact provisions of merely local or private 
               nature (s. 13x) 
          (ii) to enact provisions for the preservation of game. 
               (s. 13q)  
     41. Hunt advances this argument, op. cit. pp. 66-68.  

     debatable;(42) but on the other hand, the abolition clearly 
     nullified the exclusivity of native hunting rights, and to 
     that extent, it may conceivably be challenged as to its  
     confiscatory results.(43) In short, the status of the 
     abolition remains open to doubt.  

          Since 1966, most statutes have omitted mention of Inuit 
     rights offshore except(44) the Arctic Waters Pollution 
     Prevention Act,(45) which states:  
          "Parliament at the same time recognizes and is 
          determined to fulfill its obligation to see that the 
          natural resources of the Canadian arctic are developed 
          and exploited and the arctic waters adjacent to the 
          mainland and islands of the Canadian arctic are  
          navigated only in a manner that takes cognizance of 
          Canada's responsibility for the welfare of the Eskimo 
          and other inhabitants of the Canadian arctic and the  
          preservation of the peculiar ecological balance that 
          new exists in the water, ice and land areas of the 
          Canadian arctic."(46)  
     42. In the view of this writer it is unlikely that the 
     courts would interfere with provisions (which were passed 
     bona fides under a given head of power?) simply on the 
     ground that the provisions were inept or even retrogressive 
     in achieving their stated purpose. It would be necessary to 
     demonstrate that the provisions were either intended to 
     achieve purposes outside that head of power, had 
     consequences which did so, or constituted a wholesale 
     abdication of responsibility.  
     43. The question of "confiscation" is explored and advanced 
     from a number of standpoints by Cumming and Aalto, op. cit. 
     at p. 312 et seq.  
     44. For example, the James Bay Agreement omitted the 
     offshore. The offshore around northern Quebec is technically 
     within the Northwest Territories, and has not been the 
     object of any aboriginal rights settlement.  
     45. R.S.C. 1970, 1st Supplement c.2  
     46. See the preamble to the Act.  


          "Aboriginal rights" are a recognized category of rights 
     in Canadian jurisprudence,(47) and (to the extent which they 
     are existing) are entrenched in the new constitution.(48) In 
     order for aboriginal rights to exist in Inuit occupied 
     areas, the following conditions must be met:  
          a) The Inuit must have possessed "an organized 
          b) The Inuit must have occupied the area; 
          c) The occupation must have been "to the exclusion of 
             other organized societies"; and  
          d) The occupation must predate assertions of British 
     It was held that Inuit met those conditions.(50)  
     47. For a full analysis of this topic, see Geoffrey S. 
     Lester's Inuit Territorial Rights in the NWT. Doctoral 
     thesis in four volumes, York University, 1981.  
     48. Constitution Act 1981, s. 35 (1)
     49. These conditions are summarized by Mahoney J. in Hamlet 
     of Baken Lake et. al v Minister of Indian Affairs et al 
     (1980) 1 F.C. 518  
     50. The case dealt with Inuit in the Keewatin; but aside 
     from the issue of Indian incursions (which were apparently 
     non-existent in the Arctic Archipelago) the other  
     conditions would be identical throughout most Inuit-occupied 
     areas. Mahoney J. ruled that:  
          a) "Aboriginal Inuit had an organized society;" 
          b) "To the extent the barrens lent themselves to human 
             occupation, the Inuit occupied them." 
          c) Most of the area had been to the exclusion of 
          d) The occupation predated British sovereignty.  

          As a result, "an aboriginal title to that territory, 
     carrying with it the right freely to move about and hunt and 
     fish over(51), was vested at common law in the Inuit."(52)  
          However, when applying this reasoning to the offshore, 
     the following question arises: Is it possible for the sea-
     ice to be the object of an aboriginal title?  
          In order to determine whether a claim of aboriginal 
     title can be made to the seas and sea-ice, it is necessary 
     to probe deeper into the nature and legal origins of 
     aboriginal title.  

          The law pertaining to aboriginal title has been 
     approached from different perspectives by different authors 
     and judges. In one view, this part of the law stems from 
     sixteenth century legal and judicial doctrines which 
     originated in Spain and which gradually gained acceptance 
     in the United States and Canada.(53) A second source of 
     Native Rights is a Canadian constitutional document, namely 
     The Royal Proclamation of 1763.(54) The Proclamation, whose 
     application to the High Arctic is arguable,(55)  
     51. It is important to note that in the Baken Lake case, 
     lawyers for the Inuit scrupulously avoided the question of 
     proprietary interests and confined their assertions to 
     hunting and trapping rights. "The aboriginal title asserted 
     here encompasses only the rights to hunt and fish as their 
     ancestors did." Per Mahoney J.  
     52. Per Mahoney J.  
     53. A similar thrust is to be found in the Memorandum of Law 
     presented by the lawyers for the Inuit in the Baken Lake 
     Case. For a presentation of this viewpoint, see Cumming & 
     Mickenburg, op. cit.  
     54. R.S.C. 1970, Appendix p. 123. This is not an "Aboriginal 
     Title" in the strict sense, since its basis is in a 
     government edict.  
     55. The criterion has been whether the lands were "terra 
     incognita" (in 1973) or not: see Cumming & Mickenburg, op. 
     cit. p. 30.  The Royal Proclamation was expected to apply 
     elsewhere than terra incognita. In the case of the eastern 
     Arctic, it is fairly obvious that the area was not terra 
     incognita in 1763 due to the extensive efforts at locating 
     the Northwest Passage. The Status of more westerly areas is 
     open to doubt. The most recent jurisprudence, which departs 
     significantly from earlier cases, in The Queen v. Sec. 
     State. for Foreign and Commonwealth Affairs exparte Indian 
     Assoc. of Alberta et al (Jan. 28, 1982); Lord Denning's 
     judgment held (on a point that was not discussed by other 
     judges) that the Royal Proclamation applies to all of Canada 
     - even the areas which were terra incognita in 1763. The 
     judgment of Hall J. in Sigeareak E1-53 n. The Queen (1966) 
     S.C.R. 645 excluding Hudson Bay from the area covered by the 
     proclamation. Elsewhere note that Sissons J. ruled that the 
     Royal Proclamation is applicable to Inuit in R.V. Kogogolak 
     (1959) 28 W.W.R. 376.  

     "reserves for the use of the (said natives),(56) all the 
     Lands and Territories not included within (Quebec and 
     Florida), or within the Limits of the Territory granted to 
     the Hudson's Company...". Do those "Lands and Territories" 
     include the offshore? That point is arguable.(57) It is 
     perhaps more reliable, in discussing aboriginal claims in 
     this area, to refer back to basic principles of Common 
     56. The actual expression is "said Indians." This does not 
     exclude Inuit: see Brian Slatten's Land Rights of Indigenous 
     Canadian Peoples, University of Saskatchewan 1979, pp. 210-
     212, 233-238, 244ff.  
     57. Application of the Proclamation to the offshore should 
     depend on whether the expression "Territories" (used in the 
     Proclamation) includes the seas and sea ice. That precise 
     question was, in another context, answered in the 
     affirmative in one court case: R.V. Tootalik E4-321, 71 
     W.W.R. 435, overturned on other grounds 74 W.W.R. 740. The 
     question was whether the same word "Territories", in the 
     Northwest Territories Act, included seas and sea ice. Per 
     Morrow J.:  
        "When (the Northwest Territories Act) defines 
        'Territories' to include 'all that part of Canada north 
        of the sixtieth Parallel of North Latitude' does it 
        purport to include the waters and, where appropriate the 
        sea-ice in between the islands or the continent of the 
        islands or does it only embrace the land area itself?... 
        I conclude therefore that the definition in no wise 
        restricts 'Territories' to land only as distinct from 
        'land' in the larger sense." See also B.P. Explorations 
        Co. v. Hunt (1980) 23 Alberta Reports 271. Furthermore, 
        the proclamation refers to both "lands and Territories." 
        The above interpretation follows the basic rule of 
        statutory interpretation that different words in an 
        enactment have different meaning. If "Territories" meant 
        "lands" then reference to both in the Proclamation would 
        be "suplusage" (i.e. redundant). "Territories" therefore 
        must arguably apply to something distinct from "lands" -- 
        in which case it would be plausible to apply the 
        Proclamation offshore.  
     58. A wide-ranging description of these rules is found in 
     Brian Slattery's Land Rights of Indigenous Canadian Peoples, 
     University of Saskatchewan, 1979. An even more meticulously 
     documented description is found in Lester, op. cit..  
          Before the European arrival, the aboriginal populations 
     (including the Inuit) possessed systems of customary law. 
     Those systems defined obligations and rights, including the 
     private rights which various collectivities had in the areas 
     in question.(59) When the Crown asserted sovereignty over 
     these areas, did it necessarily abolish these systems and 
     (by the same token) any rights which those systems 
     recognized pertaining to lands and waterways?  
          The Anglo-Canadian legal system distinguishes between 
     sovereignty and title.(60) The two concepts are distinct; so 
     when the Crown asserted sovereignty, it does not necessarily 
     follow that the Crown was abolishing all other rights 
     (property, hunting etc.) and expropriating the area as its 
     private domain.(61)  
     59. The fact that Inuit possessed such a system has been 
     outlined in various works including Inuit Land Use & 
     Occupancy Project, Milton Freeman, ed, Dept. of Supply & 
     Services, 1976; and Nobert Rouldand's Les modes juridiques 
     de solution des conflits chez les Inuit, Etudes Inuit, 
     Universite Laval, 1979. The existence of the system was 
     recognized by Mahoney J. in the Baker Lake Case, mentioned 
     60. The legal expressions are, respectively, "Imperium" and 
     61. Otherwise, as Lester points out, all the inhabitants of 
     an area passing to the Crown would have become trespassers - 
     a result which is obviously absurd and which has been 
     recognized as such in jurisprudence.  

          Rights under the pre-existing legal system could have 
     become unenforceable in several ways. For example, if the 
     Crown had acquired the area by conquest, (e.g. New France) 
     the pre-existing rights would have been unenforceable unless 
     the Crown re-introduced (or "recognized") them.(62) None of 
     those conditions existed in northern Canada.(63)  
          On the contrary, the assertion of sovereignty rendered 
     the Inuit British Subjects; and the Crown was bound by law 
     not to take or grant rights to a subject except with a 
     written record. No written record appropriates (to the 
     Crown) Inuit rights in the North.(64)  
          In the absence of any edict or doctrine to abolish the 
     Inuit customary law, that customary law (and rights flowing 
     under it) continues in the ordinary way until changed by 
          What is that customary law? It is not necessary that it 
     be already spelled out: in order to be enforceable,(66) it 
     is sufficient that the customary rules should be 
     "discoverable to (lawyers) by evidence."(67)  
     62. This is the thinking which underlies American 
     jurisprudence in the thirteen colonies and which, as Lester 
     points out, has been mistakenly applied in some cases where 
     no conquest took place.  
     63. Lester produces four volumes of evidence and judicial 
     pronouncements to substantiate this point.  
     64. The Hudson Bay Company Charter, for example, does not do 
     sot see Lester Chapters XX, XXI.  
     65. The population can, however, agree to alienate its lands 
     and rights to the Crown, as long as it is done by written 
     record. Other means of change are improper: for example, the 
     Crown cannot acquire areas by "conquest" after sovereignty 
     has already been asserted, since the Crown cannot legally 
     "conquer" people who have al ready become technical British 
     66. Enforceability is demonstrated by Lester pp. 150-155. 

     67. Lester, op. cit. 1428. Authorities for this proposition 
     are cited pp. 822-831, 884-896.  

          Nor is it necessary for the subsisting system of 
     customary law to conform to British Common Law 
          The expression "aboriginal rights" therefore refers, 
     very simply, to that body of rights which were vested in 
     peoples (prior to the European arrival) under their own 
     legal systems, which were not interrupted by any statute 
     subsequent to the European arrival, and hence which continue 
     to be enforceable under the recognized principles of 
     continuity of law.  
          Are such rights recognizable offshore? That question 
     can be answered by reference to both principle and legal 
          In principle, if Inuit customary law recognized 
     collective Inuit rights in the offshore, that fact should be 
     sufficient to vest an aboriginal title in the offshore area. 
     The pre-existing rules of customary Inuit law in offshore 
     areas have not been abolished by any statute since the 
     advent of Anglo-Canadian Sovereignty. Contrary to popular 
     belief, the Common Law itself has recognized rights of 
     ownership in offshore areas.(69) However, even if the Common 
     Law had not traditionally foreseen such rights, it would 
     nevertheless be bound to recognize them because the Common 
     Law recognizes the enforceability of aboriginal customary 
     law even when the latter does not coincide with the 
     traditional Common Law.(70)  
     68. "Cramping the aboriginal lex loci ("law of the place") 
     into a specific set of common law rights and relationships 
     has been proscribed by principle and authority." Lester, p. 
     69. The presumption that the seabed belongs to the Crown is 
     rebuttable by evidence: Jardine v. Simon, (1876) Tru. 1. 
     Under certain conditions, the seabed can be granted and 
     owned in fee simple: Capital City Canning v. Anglo-British 
     Columbia Packing (1905) 2 W.L.R. 59. Gage V. Bates (1858) 7 
     U.C.C.P. 116, Brown v. Reed (1874) 15 N.B.R. 206.  
     70. See footnote 68 That argument is being used by Alaskan 
     Inuit in their claim to Alaskan offshore. See Plaintiff's 
     Memorandum in Inupiat Community of The Arctic slope e al. v. 
     U.S.A. elal., U.S. District Ct. Alaska No A81-019., pp. 24 
     et seq.  

     The Alaskans cite legal opinions from U.S. Attorneys 
     General, e.g.: 

          "thus unless the rights which natives enjoyed from time 
          immemorial in waters and submerged lands of Alaska have 
          been modified under Russian or American sovereignty, 
          there must be held that the aboriginal rights of the 
          Indians continue in effect" (1821 ); and  
          "In the first place, it must be recognized that the 
          mere fact that common law does not recognize several 
          rights of fishery and ocean waters or rights in land 
          below the high water mark does not mean that such 
          rights were abolished by the extension of American 
          sovereignty over the waters in question. It is well 
          settled that Indians legal relations, established by 
          tribal laws or customs antedating American sovereignty 
          are unaffected by the common law" (1821).  
     And per Homes J. in Carter v. Hawaii, 200 U.S. 255 (1906) 

          The right claimed is a right within certain metes and 
          bounds to set apart one species of fish to the owner's 
          sole use. A right of this sort is somewhat different 
          from those familiar to the common law but it seems to 
          be well known to Hawaii, and, if it is established, 
          there is no more theoretical difficulty in regarding it 
          as property and a vested right than there is regarding 
          any ordinary easement or profit a prendre as such. The 
          plaintiff's claim is not to be approached as if it were 
          something anomalous or monstrous, difficult to conceive 
          and more difficult to admit.  
     And per the Dept. of the Interior:  
          A careful study of the cases and statutes confirms... 
          that submerged lands in Alaska are susceptible to such 
          claims of aboriginal possession as were recognized by 
          the act of May 17, 1884, and by subsequent legislation 
          of the same tenor; that such rights, whatever they may 
          be, have not been destroyed by the course of 
          congressional legislation since 1884; whether such 
          rights have been abandoned and or otherwise 
          extinguished or whether they still exist as valid 
          rights today is entirely a question of fact to be 
          decided on the available evidence in each particular 
          case. It is the duty of this Department to respect 
          existing rights in disposing of the Federal public 
          domain. This is true whether the public domain is land 
          or water or a mixture of both, and whether the existing 
          rights were established under Spanish, Mexican, 
          Hawaiian, Danish, Choctaw or Tlingit law. It makes no 
          difference whether the evidence of such rights is found 
          in papers sealed and notarized or in custom and the 
          fact of possession, which is older than seals and 

          The second point is that for legal purposes, there is 
     already precedent for the proposition that the legal system 
     on land can be extended to sea-ice.  
          Those precedents are in three areas:  
          a) In international law, it has been held on at least 
             one occasion that iced - over areas are "integrated" 
             to the land.(71)  
          b) For the purposes of territorial legislation, it has 
             been held that sea ice is an "attribute of 
          c) It is recognized law in Canada that solid ice can be 
             owned and dealt with in a manner similar to the land 
             beneath it.(73)  
          There is therefore no overwhelming legal impediment of 
     Inuit rights in sea-ice, which would be analogous to Inuit 
     rights on land. Such an impediment would have occurred, of 
     course, if the Crown had appropriated the offshore for 
          However, the assertion of sovereignty does not 
     necessarily vest ownership of areas in the Crown; and the 
     same principle applies to the offshore.(74)  
     71. That is the reason, for example, that the White Sea, in 
     the northern U.S.S.R., is generally regarded as internal 
     waters of the U.S.S.R.: see, e.g., Johnston, "Canada's Title 
     to Hudson Bay and Hudson Strait", 1934 British Yearbook of 
     International Law p. 4.  
          The rationale includes the fact that it is iced over 
     for most of year: "C'est une mer, mais si particuliere que, 
     durant les trois quarts de l'annee, elle s'agrege territoire 
     de la Russie, perdant ainsi son aspect international." Revue 
     generale de droit international public (1911) p. 98. ("It is 
     a sea, but so unusual that during three quarters of the 
     year, it is integrated to Russian territory, thereby losing 
     its international character"). 
     72. R. v. Tootalik E4-321 (1969) 71 W.W.R. 435 at 439, 
     reversed on other grounds 74 W.W.R. 740. 

     73. This is derived from the system of "water lots", which 
     were well known throughout Canada in the days of ice-cutting 
     for refrigeration. For authority see Lake Simcoe Ice and 
     Cold Storage Co. v. Mcdonald (1901) S.C.R. 130, at p. 133.  
     74. Re Offshore Mineral Rights of British Columbia (1967) 
     S.C.R. 792. 

     No statute has vested the arctic seas in the Crown either, 
     as far as property rights are concerned.(75) Since customary 
     Inuit occupancy of the offshore has been approximately the 
     same as Inuit occupancy of land, it follows that Inuit 
     aboriginal rights continue over the offshore and are 
     analogous to those on land.(76)  
          In view of the existence of aboriginal rights in the 
     offshore, the following questions arise. First, what are the 
     implications of those rights? Second, how should the 
     Canadian government and public formulate future policy in 
     light of that reality?  
          In answer to the first question, the foregoing analysis 
     suggests that "aboriginal rights" in the offshore are 
     composed of the Inuit customary rules of conduct, insofar as 
     the latter have not been distinctly superseded by statute. 
     The Canadian courts would be empowered to apply those rules, 
     to the extent that the rules could be demonstrated by 
     75. Although the Hudson Bay Charter purported to convey the 
     offshore in Hudson Bay and Hudson Strait to the Hudson Bay 
     Company, it did not have the effect of transferring property 
     rights; see Lester op. cit Chapters XX and XXI  
     76. "The Inuit's possessory title (to the offshore) will 
     prevail against the claim of the Crown or its grantee, and 
     the Crown can only rebut the Inuit's claim to title by 
     producing a documentary or statutory title in its own 
     hands." Geoffrey Lester, evidence to the National Energy 
     Board on the Arctic Pilot Project, March 1982.  
     77. e.g. The expert testimony of Inuit elders, 
     anthropologists etc.

          Since these rules have seldom been outlined in 
     literature (and never in Canadian courts), it is obvious 
     that there are problems in making forecasts on how Inuit 
     aboriginal rights would affect questions such as the 
     legality of megaprojects, etc. In order to find a solution 
     to this problem (and to avoid laborious litigation in the 
     process), the federal government undertook (in 1973) to 
     "settle" aboriginal rights.  
          That commitment presumably extended, at first, to lands 
     only. However, in 1980 the federal government specifically 
     undertook to deal with claims in the offshore. That 
     commitment was stated to the House of Commons by the then 
     Parliamentary Secretary to the Minister of DIAND:  
          The Minister of Indian and Northern Affairs and his 
          officials are now negotiating a variety of claims made 
          by groups which represent the native people of Canada. 
          Several of these claims concern the control of the 
          territories now governed and regulated under the Arctic 
          Waters Pollution Prevention Act. For instance, the 
          Inuit have always based the whole of their society and 
          economy on the harvesting of wildlife resources which 
          depend directly and indirectly on the Arctic waters, 
          and any regulation concerning these resources must 
          therefore be considered relevant to the final legal 
          settlement of the claims presented by the Inuit to the 
          The Inuit and the government are currently involved in 
     negotiations. In order to discuss the evolution of Inuit 
     rights in the offshore, it is important to look at that 
     negotiating process.  
     78. M. Bernard Loiselle, Hansard July 11, 1980.  
          From the federal standpoint, the negotiating process 
     was originally intended to "extinguish" aboriginal title in 
     return for cash and/or other specified rights.(79) The term 
     "extinguishment" has, however, been used much less 
     frequently in recent discussions.  
          From the Inuit standpoint, "extinguishment" is NOT what 
     is taking place. Instead, the Inuit leadership viewed the 
     exercise as a means to translate pre-existing but 
     unspecified legal rights into a more modern context.(80)  
          In essence, "the real objective of these discussions 
     must be to provide a solid and acceptable blueprint for the 
     future of the North."(81)  
          Seen in that context, the negotiations provide an 
     extremely important opportunity to overcome some of the 
     legal and administrative fictions and anachronisms, and to 
     replace them with a more workable and scientific approach 
     based upon the realities of the North. The offshore is a 
     notable example.  
     79. For a brief chronology, see Graham & McAllister, The 
     Inuit Land Claim Constitutional Development, and Local 
     Government Reform in the NWT Queen's University Institute of 
     Local Government, 1981.  
     80.  "The nature of this exercise is for the various parties 
     to agree on a definition of their respective rights in 
     certain key areas. Neither side is abolishing its rights; it 
     is clarifying them, in an area which currently suffers from 
     a lack of clarity. "Parnagujuk, Inuit Tapirisat of Canada, 
     1980. p. 9.  
     81. Parnagujuk, p. 2. See also "Big Step by Inuit on Land 
     Claims," Globe & Mail, Feb. 5, 1981, p. 7. 

          It is also clear that a cooperative system of planning 
     and administration for the arctic offshore would be 
     consistent with the national policy of providing a just 
     settlement of aboriginal claims.  
          In particular, it would provide a mechanism for the 
     orderly settlement of disputes and the development of 
     consensus positions on an area which the Inuit consider 
     absolutely vital. That, in turn, should minimize the 
     prospect of laborious lawsuits over the assertion of 
     aboriginal title in these offshore areas. That result can 
     only be beneficial for national policy.  
          It is a basic necessity, according to ITC, that local 
     expertise be used in every phase of the planning process. 
     This is a necessity not only because local Inuit are most 
     intimately familiar with the areas in question (and hence 
     have a most important contribution to make), but also 
     because they are most directly affected by policy decisions. 
     Both the credibility and the fairness of that process depend 
     on Inuit participation. The Land Claims proposals will 
     recommend an orderly and efficient way for that 
     participation to take place, and this can only be beneficial 
     for the process itself.  

          The impact of Inuit rights on Canada's assertions of 
     sovereignty in arctic waters is likely to be highly 
     significant. Until now, those assertions have run into a 
     certain amount of opposition, notably from the United States 
     If Inuit rights contribute to overcoming that opposition, it 
     is arguable that this benefit alone should be sufficient to 
     prompt strong federal support for an expeditious resolution 
     of Inuit claims.  
          No SINGLE argument or fact is likely to be DECISIVE in 
     resolving the controversy over arctic waterways in favour of 
     Canadian sovereignty. However, the foregoing information 
     gives rise to a NUMBER of arguments which can be added to 
     Canada's position; collectively, they may go a long way to 
     substantiating Canadian sovereignty.  
          Those points can be summarized as follows: 
          First, one must consider what the foregoing information 
     does to a Canadian claim to "historical title".(82)  
          It is clear that Canadian residents (i.e. the Canadian 
     Inuit) have been treating the offshore as part of their 
     hunting area since time immemorial. It is equally clear that 
     if the Canadian government recognizes this occupancy, (and 
     translates the aboriginal rights flowing from this occupancy 
     into a settlement with Inuit), Canada will be officially 
     asserting that its nationals have been conducting an 
     "effective occupation" of these areas. In international law, 
     it has long been recognized that such occupation can be a 
     basis for a country's claim to sovereignty.(83)  
          The strength of that argument is increased when one 
     considers the fact that aboriginal occupancy gives rise to 
     rights which are enforceable in the courts. If this 
     occupancy were treated (for legal purposes) as being so 
     superficial and flimsy that it gave rise to no legal rights, 
     then it would be easier for other countries to attempt to 
     discount its impact on international law; but that occupancy 
     becomes somewhat more difficult to discount when one 
     recognizes that it vests legal rights enforceable in a court 
     of Common Law (for which countries such as the U.S.A. share 
     a certain respect).  
     82. Canada is already expected to have an "historical" title 
     to Hudson Bay and Hudson Strait. This title stems largely 
     from the assertion that these bodies of water were given to 
     the Hudson Bay Company in 1670, which thereafter transferred 
     them to Canada in 1870. This transfer was followed by 
     various administrative acts whereby Canada assumed 
     sovereignty; a decisive feature was also the acquiescence of 
     other countries. See "Canada's Title to Hudson Bay and 
     Hudson Strait", by V.K. Johnston, British Yearbook of 
     International Law XV (1934) pp. 1-20. However, the current 
     most pressing concern is in the Northwest Passage, which was 
     outside that area.  
     83. See footnote 12

          A further (if relatively peripheral) feature of the 
     "historical" argument is that the foregoing information 
     indicates a much longer period of functional jurisdiction 
     than is usually assumed. Canada's day-to-day administration 
     of waters in the Arctic Archipelago did not begin with the 
     enactment of the Arctic Waters Pollution Prevention Act in 
     1970; it dates AT LEAST as far back as the expansion of the 
     Arctic Islands Game Preserve(84) in 1929.(85) The AIGP 
     further appears to have obtained (with the exception of 
     certain Norwegian comments) the acquiescence of the 
     international community.(86)  
          Above and beyond those features, there are other ways 
     in which Inuit rights can benefit Canada's position on 
     sovereignty - particularly pursuant to a comprehensive 
     settlement as in now being negotiated  
          Part of the way in which countries can assert 
     sovereignty is by exercising "functional jurisdiction" over 
     an area in the manner of "business-as-usual": if more and 
     more administrative measures are applied over time, it 
     becomes increasingly awkward for other countries to 
     challenge that jurisdiction. Furthermore, if this 
     "incremental approach" is applied over several decades, it 
     can contribute to a claim to "historical title". It is clear 
     that a comprehensive settlement with the Inuit, binding on 
     the offshore, would be a significant audition to these 
     "LAYERS" of administration, and hence would contribute to 
     Canada's "functional jurisdiction". That addition would be 
     particularly significant if, as Inuit have proposed, it 
     includes the setting up of a comprehensive and co-operative 
     PLANNING PROCESS for the offshore and coastal zones.  
          As mentioned earlier, a sophisticated system for 
     environmental planning (as urged by Inuit) would also add to 
     the specificity of the Arctic Waters Pollution Prevention 
     Act, and thus add credibility to that unilateral 
     84. The Arctic Islands Game Preserve, enacted in 1926 and 
     expanded in 1929 and following years, purportedly applied to 
     almost the entire Canadian arctic Sector. It also met the 
     acquiescence of the international community, with the 
     particular exception of Norway. Norway was prepared to 
     recognize the Game Preserve, but stated explicitly that this 
     recognition was not based upon the Sector Theory. 

     85. Indeed, legal purists might argue that once one 
     acknowledges the existence of Inuit customary law and its 
     application to arctic waterways (in the context of 
     aboriginal rights), an embryonic form of "functional 
     jurisdiction" has been exercised by the local population for 
     centuries. It is unlikely, however, that this argument would 
     have more than academic interest.  
     86. Acquiescence can play an important role in the issue of 
     assertions of sovereignty: 

          Finally, the follow-up on Inuit rights (in a 
     settlement) would reinstitute, to a partial extent, 
     commitments which Canada had made to Inuit under the Arctic 
     Islands Game Preserve, and which were the decisive factor in 
     the Canada-Norway agreement of 1930(87). 
          The primary mechanism currently under consideration by 
     federal officials to assert "functional jurisdiction" is the 
     construction of an ice-breaking fleet, at a cost of unknown 
     millions of dollars. The relative merit of that technique, 
     in asserting Canadian sovereignty, is open to question. At 
     present, the claim by shipping nations (notably the United 
     States) that the Northwest Passage is an international 
     strait is weakened by the fact that ice makes the Passage 
     almost unnavigable. By turning the area into a navigable 
     waterway, rather than an icebound extension of land, Canada 
     would contribute to the argument of the shipping nations 
     rather than undercutting it; in fact, Canada would be 
     proving their point. From a sovereignty standpoint, such a 
     move would need to be approached with extreme caution. It is 
     clear that if Canada is committed to this course, it would 
     be prudent to institute beforehand a series of measures 
     affirming Canadian sovereignty (e.g. recognition of Inuit 
     rights and a planning system) to compensate for any erosion 
     of sovereignty which the opening of this waterway could 
     87. This is not to suggest that Norway could or would press 
     claims in the Sverdrup Basin, now that the area is no longer 
     "reserved" for native use as it was in 1930. However, 
     Canada's "flip-flop" on the status of the area is not the 
     most edifying example of Canadian adherence to what is 
     written in its treaties.  
     88. This argument has been made by a variety of observers, 
     For example, the following appears in the Globe & Mail, May 
     27, 1981: "Canada could firmly establish sovereignty over 
     the disputed Northwest Passage by recognizing the Inuit land 
     claims in the Lancaster Sound region, a working group on the 
     region's future was told yesterday. Donald Gamble, director 
     of policy studies for the Canadian Arctic Resources 
     Committee, said that if Canada settles the land claims on 
     the basis of the Inuit use of permanent ice shelves in - the 
     area, 'it would, in effect, give Canada complete sovereignty 
     and jurisdictional control of the Arctic Islands area'." 
          It is the stated objective of Inuit (through their 
     national organization), to retain their identity, but also 
     to seek "full participation in, and sense of belonging to 
     Canadian society."(89)  
          Canada can potentially accommodate that objective. An 
     indispensable element of that endeavour is the 
     acknowledgement of aboriginal rights, and their translation 
     into a modern system which provides for full local 
     participation in the future of Inuit-occupied areas.  
          Canada has taken halting steps in that direction. It 
     has declared a commitment to the settlement of "land" 
     claims, and has extended that commitment to waters as well.  
     Various cordial speeches have been made about the 
     desirability of welcoming Inuit into the mainstream of 
     Canadian life.  
          However, before a people can be considered a part of 
     the mainstream, it is essential that the population be 
     considered by officials as "fellow citizens"(90) instead of 
     89. Letters Patent of Inuit Tapirisat of Canada, objective (f).  
     90. See Vilhjarmur Stefansson's comments quoted in Margaret 
     Fairley's Spirit of Canadian Democracy: "We should not 
     regard the Eskimos as foreigners but as friends. They are 
     your fellow citizens. Their future is bound up in our 
     future. If Canada is but a thin southern strip across which 
     plies a shuttle railway we shall have no remarkable future."  

          Although it is arguable that the whole of Canada has 
     been showing adversarial tendencies of late, this is a 
     pattern which Inuit have consistently attempted to 
          The position of the Canadian government has not been 
     quite as consistent, and sometimes creates doubts as to 
     whether Inuit are considered part of the Canadian mosaic or 
          In some areas, however, the mutuality of should be 
     obvious to any rightminded observer. The issue of Canadian 
     sovereignty in Arctic waterways is a case in point. If 
     Canada is incapable of asserting functional jurisdiction 
     over the waterways, then the shortfall in environmental 
     planning and regulation could have disastrous consequences 
     on a maritime-oriented population such as the Inuit. The 
     Canadian national interest is also closely bound to this 
     issue, since the waters in and around the Arctic Archipelago 
     cover hundreds of thousands of square miles. The government 
     has therefore been invited to acknowledge the Inuit presence 
     (and consequent aboriginal rights) as a means of advancing 
     its own self-interest.(93)  

     91. The invitation to work on MUTUAL concerns is stressed 
     repeatedly in Parnagujuk, Inuit Tapirisat of Canada, 1980.  
     92. For example, in the 1978 Baker Lake case (footnote 49), 
     the federal government at first denied the very existence of 
     aboriginal rights (five years after it had promised to 
     negotiate them), but at least acknowledged that Inuit lived 
     in the central Keewatin. The government then amended its 
     pleadings, and refused to admit that Inuit had lived there. 
     In the respectful view of this writer, that move was absurd, 
     and did not inspire confidence in the officials who 
     authorized it. 

     93. See proceedings of the Sikumiut Workshop (footnote 15).  

          Canada is hardly the only country to find itself in 
     such a situation. Indeed, a multiplicity of countries are 
     having difficulties sorting out boundaries (particularly at 
     sea); and it is entirely conceivable that they may invoke 
     aboriginal use (e.g. of a fishing area) as an argument to 
     support claims to sovereignty.  
          Aboriginal peoples cannot, however, afford to be used 
     merely as pawns in a worldwide jockeying for lands and seas. 
     If an aboriginal presence is to be used as an argument in 
     boundary claims, the country must equally be prepared to 
     acknowledge that rights are attached to that presence. A 
     country cannot legitimately play both sides of the fence.  
          There are signs that Canada will take a coherent 
     position on this issue, that it will negotiate a system of 
     Inuit participation in plans affecting the Arctic waters, 
     and that it will invoke this Inuit role as proof that the 
     Inuit presence (dating back to time immemorial) in these 
     waters is an ongoing reality, That, in turn, will assist the 
     credibility of the argument that these waters have been 
     occupied by "Canadian nationals" since time immemorial, that 
     this occupation is recognized as having legally binding 
     effects, and that this area an integral historical part of 
     Canada. If this approach is taken, it could prove a valuable 
     precedent to aboriginal peoples in a number of other 

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