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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AND THE SOVEREIGNTY OF COUNTRIES
(including a case study of the Canadian arctic)
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
Part III. Summary of Basic Principles
Part IV. Case Study: Canadian Arctic Waters
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
PART I - INTRODUCTION
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,
PART II - GENERAL OBSERVATION ON LAWS AND PEOPLES
A. LEGAL ORIGINS
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
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
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.
B - EFFECT ON BOUNDARY CLAIMS
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
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".
C - RELATIONSHIP BETWEEN ABORIGINAL RIGHTS AND A COUNTRY'S
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
PART III - SUMMARY OF BASIC PRINCIPLES
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
PART IV - CASE STUDY: CANADIAN ARCTIC WATERS
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.
B. GOVERNMENT ENACTMENTS: THE ARCTIC ISLANDS GAME PRESERVE
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
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
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
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
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.
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.
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.
C. THE ARCTIC WATERS POLLUTION PREVENTION ACT
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
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.
D. JURISPRUDENCE AND OFFSHORE RIGHTS: GENERAL
"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
E. APPROACHES TO 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
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
"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
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
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
The Alaskans cite legal opinions from U.S. Attorneys
"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
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)
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)
F. LEGAL DILEMMAS AND SOLUTIONS
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,
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
78. M. Bernard Loiselle, Hansard July 11, 1980.
G. "LAND CLAIMS" AND THE OFFSHORE
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
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.
H. IMPACT OF SOVEREIGNTY
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
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'."
PART V. CONCLUSION
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
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
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
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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