Ups and Downs of Melting Ice: Weighing Environmental and Economic Concerns Surrounding Marine Tourism in Nunavut

Lian Francis is a first-year student at the McGill Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She also holds a Bachelor of Science in Psychology from McGill.

The isolated hamlets and imposing landscapes of Canada’s remote north remain, for most Canadians, a distant region of their country that they will likely never visit. Yet, as a result of melting ice in these northernmost reaches of the continent, more and more Canadian and international tourists will have the opportunity to visit Canada’s Arctic Archipelago. The Northwest Passage, exceedingly treacherous to navigate until recent decades because of ice cover, now sees steadily increasing ship traffic. Rising cruise ship tourism poses a particular dilemma for northern Inuit communities, who are torn between the prospects of improving their often dire economic conditions and the preservation of their lands and waters.

Cruise boat in Nunavut
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Melting ice already adversely affects Inuit communities in a number of ways. Thin and receding ice reduces the available hunting and fishing grounds, threatening food security. Melting permafrost and the resultant cracks in the land make travel to remaining grounds and ancestral sites dangerous. Marine tourism, however, presents a new challenge. In August of this year, the Crystal Serenity, a cruise ship carrying more than 1700 passengers and crew, sailed through the Canadian Arctic Archipelago and stopped in several Nunavut towns. The Serenity, which made the same voyage for the first time last year, is by far the largest cruise ever to have taken this route; most other ships that have traversed the Northwest Passage carried fewer than 200 passengers. This may be the mark of a new era of marine tourism in Canada’s North – in 2016, 11 different ships made a total of 25 voyages along the coast of Nunavut.

On one hand, the growing tourism industry offers important economic opportunities. When tourists disembark in these Inuit communities, locals host art fairs, put on cultural demonstrations, and lead guided tours of the town. For families who struggle financially at other times of the year, this is a much-needed source of income. On the other hand, communities worry about the environmental impacts of increased ship traffic. Many cruise ships emit dangerous levels of sulphur dioxide and contribute to both air and water pollution. Increased traffic will also mean a greater risk of oil spills, a particularly significant concern given that cleanups and emergency rescues are difficult to carry out in the remote north due to extreme weather and navigational challenges. Communities are especially worried about the damaging effects of water and sound pollution on sea life, their main food source. The premature breakup of ice for the passage of ships also disturbs natural habitats and hunting grounds.

Pond Inlet, a town at
which the Crystal Serenity stopped

Public institutions in Nunavut have weighed in on this dilemma, attempting to assist communities in balancing both economic and environmental goals. The Nunavut Impact Review Board, whose creation was negotiated as part of the Nunavut Land Claims Agreement between the Canadian government and the Inuit peoples of Nunavut, screens proposed projects in the region and assesses their environmental and socioeconomic impacts to ensure that approved projects promote the well-being of Nunavut’s communities and protect its ecosystems. In its screening decision regarding the Crystal Serenity voyage, the NIRB judged that the environmental impact of the ship’s passage would be minimal provided the crew conform with a number of recommendations, including limiting the time passengers could observe marine animals and ensuring personnel were trained in spill cleanup procedures. The Nunavut Planning Commission, also created by the Land Claims Agreement, drafted in 2016 a land-use plan which aimed to find a compromise between protecting Nunavut’s lands and waters and allowing tourism, mining, and other forms of development. The plan proposes using buffer zones and other restrictions to protect important habitats.

The Government of Nunavut has also responded with proposals of how to manage the growing marine tourism industry and its complex effects on communities. The Ministry of Economic Development and Transport released last year its Marine Tourism Management Plan, one of the key goals of which is to support community engagement in marine tourism planning by providing informational resources and assisting with data collection on the economic benefits of marine tourism activities. Another key goal is the adoption of legislation and regulations for the industry to address both economic development and environmental concerns. The Plan outlines several strategies to communicate these regulations to cruise operators and other actors in the tourism industry, including the design of codes of conduct for passengers when they visit communities and observe wildlife. An amendment to the Nunavut Tourism Act, which came into effect in April of this year, allows the government to designate an area as a Restricted Tourism Area for cultural, ecological, historical, or safety reasons, and to limit tourism activities within designated areas. The amendment also authorizes the government to create regulatory schemes for a wide range of tourism-related activities.

No regulations specific to marine tourism have been passed as of yet, so whether communities and the government will succeed in balancing environmental protection with economic goals is still to be seen. Canada’s contested sovereignty over the waters of the Northwest Passage may pose an additional challenge in the establishment of effective marine traffic regulations. As well, it may be that the increase in cruise ship tourism is less problematic in terms of environmental impact than the growing private yacht and sailboat traffic, as cruise operators typically work with communities to make visits run smoothly and to respond to concerns about wildlife. It is to be hoped that future regulations will promote similar cooperation between communities and private boaters so that the towns of Nunavut will be able to truly benefit from marine tourism.



Building Sustainability into a Changing Arctic

Arctic Community of Practice and Offshore Oil and Gas Activities: Determining the Legal and Political Dimensions of the Obligation to Prevent, Reduce, and Control Pollution

Not Just a Pipe Dream: Indigenous, Provincial, and Environmental Considerations in Successful Canadian Pipeline Projects

Nicole Spadotto is a first-year student at the McGill University Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She holds a Bachelor of Arts from McGill University in Joint Honours Political Science and English. Nicole has previously worked as a political staffer on Parliament Hill and in marketing with PricewaterhouseCoopers LLP. She has experience in projects intersecting with policy, energy sustainability, and corporate social responsibility.

This past summer, I had the privilege of visiting Hardisty, Alberta on August 11 to tour the Enbridge Line 3 pipeline replacement project. Hardisty is a small town close to the Saskatchewan border, and is perhaps most famous for being a central hub for the oil and petroleum industry. While touring the pipeline replacement project, I had the opportunity to listen to speeches from Amarjeet Sohi, the federal Minister of Infrastructure and Communities, as well as from Alberta Premier Rachel Notley, and Albertan Indigenous representatives. Through touring the pipeline and learning from politicians from all levels of government in Canada, I gained understanding of some legal and policy factors that contribute to whether proposed pipeline projects fail or succeed in Canada. These factors include the duty to consult, provincial approval, and (increasingly) whether the pipeline is environmentally responsible.

When infrastructure developments have an impact on an Indigenous community’s land or rights, the Crown has a “duty to consult” with Indigenous groups before embarking on the project. The Indigenous community must be informed of the nature of the project, and given opportunities to answer the proposal.  For the consultation to pass constructional validity, the consultation must be “real and substantial” according to the Supreme Court of Canada – though the Indigenous community does not need to approve of the project for it to eventually move forward.

The exact provisions of the “duty to consult” still need to be developed through legislation and courts. Doing so will sharpen whether the duty to consult means only conversation with Indigenous peoples or whether it extends to taking Indigenous views into account, and meaningfully adopting them, while developing projects. What did become clearer over this summer is that improper duty to consult can cause a whole project to be cancelled. In Clyde River (Hamlet) v. Petrolium Geo-Services Inc. the Supreme Court found that the National Energy Board did not properly consult Inuit in developing oil and gas projects in the North. In this failure, the National Energy Board also neglected to assess the impacts the gas and oil exploration project would have on Inuit rights and existing treaties. Hence, treaty impacts must be assessed and environmental effects need to be considered from Indigenous perspectives.

Helping Indigenous communities participate in the consultation process should be a priority for governments and oil and energy conglomerates. Based on the importance of oral traditions to many Indigenous communities, spoken testimony from Indigenous leaders should be taken into consideration as a valid form of consultation participation. Funding is also often necessary to help Indigenous communities participate in the consultation process, especially given travel costs from remote communities.

The Supreme Court has addressed the scope of the duty to consult, as well as the negative effects pipeline projects can have on Indigenous rights and titles. With diversity in Indigenous communities, and a vast difference in opinion, consultations might need to extend across individuals, groups, and national Indigenous organizations like the Assembly of First Nations. Within Indigenous communities, there are different interpretations of territory, and its ancestral and spiritual relevance. Though some Indigenous voices may be heard in the process, some will necessarily be marginalized. Many individuals in Indigenous communities refuse to recognize the Canadian government’s authority over their lands and are directly opposed to the duty to consult framework, which they see as a colonial framework. While some Indigenous communities and groups may be willing to work with the government, others will refuse this outright and their voices will consequently remain unheard.
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Additionally, provincial support and approval of pipelines helps these projects move ahead. Getting provincial approval for pipeline projects is vital politically; though Ottawa technically does have jurisdiction over these projects, it can be risky for the federal government to overtly assert their decisions over pipeline projects. Doing so without provincial consent can upset the idea that each level of government has different competencies in their own spheres. However, pipelines are vast projects that necessarily trigger both federal and provincial competencies. Overlap therefore necessarily exists between the federal and provincial jurisdiction over pipelines. While in the future, cooperative federalism could possibly help with working through the provincial-federal issues stemming from pipeline projects, the current interpretation of federalism is still very much rooted in the lists of competencies set out in ss. 91 and 92 of the Constitution Act, 1867. A trans-provincial pipeline project could thus very well have to be abandoned if one province consistently opposes it.

The importance of provincial approval of such projects manifested this autumn, with the TransCanada decision to cancel the Energy East pipeline project. The project had huge opposition, especially in Quebec, by politicians and the public alike. Had the project been approved, the pipeline would have transported crude oil beginning in Hardisty, Alberta and ending in New Brunswick. In the process, the pipeline would have passed through the province Quebec (including through Montreal) and along the St. Lawrence River to get to the East Coast.

The failures of recent pipeline projects demonstrate that provincial acceptance of such projects increasingly determines whether the projects will actually occur. However, provincial dissent over pipelines also seem to be deepening divides and resentments between certain provinces. After the TransCanada pipeline project was cancelled the Mayor of Montreal at the time, Denis Coderre, praised the cancellation along with several Quebec Members of the National Assembly. Quebec’s opposition, at least partially, very likely contributed to the cancellation of the project. As a result, Saskatchewan’s premier, Brad Wall, sharply criticized Coderre, the Quebec National Assembly, and the federal government. Bernard Drainville, a member of the Parti Québécois provincially at the time, sniped back over Twitter that Saskatchewan was engaging in blackmail. “It’s either the pipeline, otherwise, no more equalization,” Drainville tweeted. The federal government thus needs to navigate the dangerous political landscape of provincial sovereignty while also smoothing dissent between provinces to help the likelihood of success of pipeline projects in the future.

Finally, environmental responsibility increasingly helps validate pipeline projects to the public. Even beyond validation, environmental arguments have recently helped pipeline projects move forward politically. For example, though the Kinder-Morgan pipeline will not necessarily get built, the Liberal British Columbia government did agree to further pipeline negotiations only after Kinder-Morgan agreed to invest funding for over 20-years into environmental projects in the province should the pipeline be built. Similarly, much of Quebec’s opposition to the TransCanada pipeline was rooted in environmental costs, without enough economic benefit to offset concerns over sustainability.

To mitigate environmental concerns, many pipeline companies have committed to investing in sustainable development technologies. According to the Alberta Energy Regulator, the body which manages Alberta provincial pipelines, the number of pipeline accidents declined 44% over the past 10 years with this commitment to safe and sustainable transport of energy. The University of Calgary has a special research branch part of their school of engineering, the Pipeline Engineering Centre, which focuses on the advancement of pipeline engineering. The Centre places special emphasis on “integrity, maintenance, and management” of infrastructure. This summer, researchers at the University of Calgary actually developed technology that would prevent pipeline leaks and better protect the environment. Though the technology is expensive, implementing it on existing pipelines around rivers and lakes could have beneficial environmental impacts that outweigh the monetary costs of installation.

These initiatives are in place to meet the demands of provincial and Indigenous governments, environmental groups, and the public to have environmentally responsible pipelines. Recent cancellations of pipeline projects have happened at least partially due to widespread public and civil society concern about how projects will affect the environment. As such, the federal government and oil and energy companies would do well to ensure that proposed projects are as environmentally sustainable as current technology allows.


Further Reading:

Rachel Ariss, Clara MacCallum Fraser and Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?” (2017) 13:1 McGill J of Sus Dev L 5, online: <>.




Towards Reconciliation: A Comparative Snapshot of Australia and Canada’s Take on Indigenous Rights

Michelle Larg is a first-year law student at McGill University, and holds a Bachelor of Philosophy (Hons) degree from the University of Western Australia.  Her previous majors under this research degree include Chemical Engineering, Chemistry, and French.  She is currently an Associate Editor for the McGill Journal of Sustainable Development Law.

While antipodal and culturally distinct, both Canada and Australia share residual monarchal ties, a past saturated with the consequences of colonialism, and the challenge of navigating reconciliation with their respective Indigenous populations.  Indeed, the historical practices of systematic oppression of these groups are strikingly similar between the countries.  During the nineteenth and twentieth centuries, both countries enacted several legislative measures aimed at cultural assimilation. This manifested notably in Canada’s Indian residential school system, and in Australia’s analogous Stolen Generations.  The legacy of trauma stemming not only from colonisation, but also from such policy endeavours, has engendered a significant socio-economic disparity between non-Indigenous and Indigenous people common to both nations today.  The statistics paint a startling picture of symmetry:  Indigenous peoples make up 25% of the prison population in Canada, and 27% in Australia, and half of the children in the child welfare systems in both countries.  As an Australian student who has recently relocated to Canada, however, it is the marked differences between the reconciliatory conditions of the nations that has caught my attention. Category:Australian_Aboriginal_culture#/ media/File:Aboriginal_song_and_dance.jpg

While both federal parliaments formally apologised for the Indian residential school system and Stolen Generations respectively in 2008, Australia’s move towards enacting both symbolic and practical reconciliatory change has been slow.  Canada’s apology was issued only twelve years after the close of the last residential school, but it was almost four decades following the abolishment of the child removal policy in Australia before any such action was taken.  Moreover, Australia still has not granted their Indigenous minority constitutional recognition, while section 35 of the Canadian Constitution formally recognises and affirms aboriginal and treaty rights.  Although section 35 does not elaborate on the definitions of these rights – instead, leaving their definition to the courts –  it still remains a vast improvement over Australian proposals for potential amendment, which avoid any language pertaining to Indigenous rights at all.  Indeed, this has been a topic of heated debate in Australia in recent months, with the government formally rejecting a proposal for constitutional amendment only last week. Finally, 2017 saw tensions between non-Indigenous and Indigenous people escalate with the proposition that the date of Australia Day be changed to reflect the Indigenous perception of it marking a celebration of invasion.  This notion was fiercely rejected by the federal government, who stripped city councils which supported the idea of their right to host citizenship ceremonies.

In light of these issues, the fact that Australia was elected only a few weeks ago for a three-year term on the United Nations Human Rights Council has left many perplexed.  In fact, the UN Human Rights Committee itself criticized Australia’s “chronic non-compliance” with its recommendations.  The nation has also been condemned for often developing policies regarding Indigenous people without their consultation.  This begs the question: given their historical and political parallels, can Australia look to Canada’s recent initiatives and progress in the realm of Indigenous rights for guidance? %E1%93%84%E1%93%87%E1%95%97%E1%91%A6#/ media/File:Nunavut-Feierlichkeit_(01-04-99).jpg

From the perspective of a newcomer, it seems that Canada has made significant progress in the recognition and validation of Indigenous rights over recent years.  The introduction of Gladue reports is an example.  These pre-sentencing and bail hearing initiatives incorporate a holistic analysis into how colonial oppression has affected the upbringing, life, and conduct of Indigenous accused.  Such factors are to be considered during the sentencing phase of trials.  The reports aim to address the failure of the criminal justice system with regards to Indigenous peoples and their disproportionately high incarceration rates.  Australia’s High Court noted in 2013 that Australia could do well to follow Canada’s lead in this area.

Similarly, the emergence of Canada’s first Indigenous court created by and for Indigenous people last year is a noteworthy pillar of progress.  The Akwesasne court of the Mohawk people places a far greater emphasis on community-based restorative justice divorced from imprisonment than that of their Western counterparts.  It is self-governed, exists independently from the federal framework, and has transcribed a code of law of its own.  While community-run Indigenous courts have existed for a number of decades in Australia, they are still largely state-managed and operated and invoke Australian criminal laws, just in a more “culturally appropriate forum.”

It is clear that both countries still have their fair share of work to do.  Given Australia’s newfound position on the global stage as a promoter and protector of human rights, it has significant ground to cover in its own country with its own Indigenous peoples.  Despite its recent achievements, however, Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous People in 2016 was belated.  Many also argue that the Gladue reports make little practical difference or constitute an inaccessible and painful process.  Perhaps both countries could benefit from the more contemporary vision of Indigenous legal scholars. John Borrows, a Law Professor at the University of Victoria of Anishinabe origin, has suggested an integrated approach to viewing Western and Indigenous paradigms of thought, for instance. The ‘inter-societal law’ he advocates for involves the prospect of reciprocal dialogue between Indigenous and Western law, which could jointly guide legal decisions.  The reconceptualization of these two groups as inherently intertwined and of equal validity, rather than disparate and in competition, would likely mitigate many of the intercultural issues confronting both nations.  Indeed, with regards to my home country, such a perception would be a good start for resolving the constitutional recognition crisis which has re-emerged as a point of contention.

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