Aboriginal Rights and the Sovereignty of Countries (including a case study of the Canadian Arctic) by Marc Denhez, Inuit Tapirisat of Canada
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               A B O R I G I N A L    R I G H T S    A N D

                  T H E    S O V E R E I G N T Y    O F

                            C O U N T R I E S

                        (including a case study of
                           the Canadian Arctic)

                                June, 1982

                               Marc Denhez

                            Inuit Tapirisat of

                            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 Preserve
      C.  The Arctic Waters Pollution Prevention Act
      D.  Jurisprudence and Offshore Rights
      E.  Legal Dilemmas and Solutions
      F.  "Land Claims" and the Offshore
      G.  Impact on Sovereignty
Part V.   Conclusion

                          PART I - INTRODUCTION

      The overwhelming majority of countries in the world have uncertain 

      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 boundaries. 

      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 Raman model. Indeed, before Napoleon French law was divided 
into systems which were even named "COUTUMES" (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 Paris". 

      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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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) 

5.   A thorough analysis of the Common Law cases is found in 
     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 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      What has this meant for "aboriginal rights"? Aboriginal rights, 
are, after all, the rights inherited under an aboriginal legal system, 
Where the 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 

7.   That was, for example, the case of various, African peoples; 
     A.C. 399, and particularly RE SOUTHERN RHODESIA (1919) A.C. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 


      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 

      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 

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 1879. 

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. 

                       >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 community. 

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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 sovereignty. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 


      A country treats an aboriginal people as part of its historical and 
current mainstream, or else it treats the people as part of the 

      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 evolution. 

      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 challenged, 



      This discussion will not concentrate on "moral" or "political" 
rights, but rather those which could be enforced in a Canadian Court of 

      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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 


      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 

      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 
     ed., General Publishing, Toronto 1972. pp. 150-4. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 officials(22) 

      The Preserve, as established in 1926,(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. 
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, 

          "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. 62 p.4021 

25.  An account is in Hunt, OP. CIT. By 1945, the following 
     description was found in the CANADA GAZETTE (p. 4345): 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      Certain activities were prohibited in the AIGP, notably: 

           - 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 preserve."(28) 

      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 fora "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.14-15), 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 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

          "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 per. mission 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 comprises." 

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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

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; 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 
Councilors 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 Preserves. 

38.  (Missing note in original text) The Council was mostly non-
     elected and overwhelmingly non-active. 

39.  A chronological account of the abolition, including the 
     views of government spokesmen, is found in Hunt OP. CIT. pp. 

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 a 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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

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 

          "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 now exists in the water, ice 
          and land areas of the Canadian arctic." 

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 wholescale 
     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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 


      "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 society", 
      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 Indians; 
     d)   The occupation predated British sovereignty. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 

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. 
     ASSOC. OF ALBERTA et al (Jan. 28, 1982); Lord Denning's 
     judgement 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 
     judgement of Hall J. in SIGEAREAK EL-53 N. The Queen (1966) 
     S.C.R. 645 excluding Hudson Bay from the area covered by the 
     proclamation. Elsewhere note that Sisions J. ruled that the 
     Royal Proclamation is applicable to Inuit in R.V. Kogogolak 
     (1959) 28 W.W.R. 376. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

"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 Law.(58) 

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 'and' 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 

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. 
                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 JURIDIQUE DE 
     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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 statute.(65) 

      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 so; 
     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 already 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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      Nor is it necessary for the subsisting system of customary law to 
conform to British Common Law categorizations.(68) 

      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 authorities. 

      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) 

      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. 

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 
     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 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

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 itself. 

      However, the assertion of sovereignty does not necessarily vest 
ownership of areas in the Crown; and the same principle applies to the 

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 
          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. 


                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

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 
off-shore 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 evidence.(77) 

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 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 mega projects, 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 government.(78) 

      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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 


      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 

      In essence, "the real objective of these discussions must be to 
provide a solid and acceptable blueprint for the future of the 

      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 
     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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 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 

      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 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 addition 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 
costal 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 declaration. 

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 
     partial 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. 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 ice-bound 
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 cause.(88) 

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'." 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

                           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 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 

      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 adversaries. 

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." 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 avoid. 

      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 not.(92) 

      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 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). 

                   >>>>>>>>>>>>END NOTES<<<<<<<<<<<< 

      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 countries. 

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