The Arctic Institute: Centre for Circumpolar Security Studies
On June 14, 2022, Mélanie Joly, Minister of Foreign Affairs of Canada, Jeppe Kofod, Minister of Foreign Affairs of Denmark, along with Múte Bourup Egede, Prime Minister of Greenland, signed an Agreement in Ottawa resolving outstanding boundary issues between the sovereign states of Canada and the Kingdom of Denmark.1)
The new Agreement determines the maritime boundary on the continental shelf within 200 nautical miles, including the Lincoln Sea, the continental shelf beyond 200 nautical miles in the Labrador Sea, and resolves a nearly 50-year-old dispute over the limestone Hans Island (also known as Tartupaluk) covering 1.3 km², situated in the Kennedy Channel portion of Nares Strait – about 18 km to the coasts of Ellesmere Island and Northwest Greenland respectively. Although uninhabited, Tartupaluk has historically been significant both to the Inughuit of Avanersuaq in Kalaallit Nunaat (Greenland) and to the Inuit of Nunavut, Canada. As such, the 2022 Agreement constitutes a historic milestone for the future of Inuit rights in the region.
This blog post explores the legal implications of the Agreement on Tartupaluk for the traditional (fishing and hunting) rights of the Inuit Peoples of Greenland and Nunavut. The post first provides an overview of the background of the dispute and the content of the 2022 Agreement. It deals with the implication of the Agreement on the traditional rights of the Inuit people, followed by an examination of whether the recognition of Inuit rights under the Agreement is consistent with international law.
Background of the Dispute
Tartupaluk – which means ‘kidney’ in the local Inuktun language – was unknown to the rest of the world until the 19th century, when European and American explorers attempted to first map the Arctic high north. Several of these endeavors were guided by local Inuit hunters, such as Suersaq, a Northwest Greenlander who assisted on several missions. Suersaq, who was later nicknamed Hans Hendrik by expedition members, joined American Charles Francis Hall’s Polaris expedition which was the first ever mapped Tartupaluk in 1872.2) Expedition notes reveal that when the tiny limestone island was first mapped, it was named in honor of Hans Hendrik.3) Eight years after the initial mapping of the island, on 1 September 1880, Canada established sovereignty over all Britain’s former Arctic possessions including Ellesmere Island, based on the British Adjacent Territories Order. Fifty years after – following unsuccessful US claims in the northern portions of Greenland – with a 1933 decision of the Permanent Court of International Justice, Denmark also extended its sovereignty over the entirety of the island of Greenland and has maintained it as a semi-autonomous possession ever since.
The dispute over Hans Island began about 50 years ago when Canada and Denmark initiated negotiations to demarcate a 1,450-nm-long continental shelf boundary between Canada and Greenland without reaching an agreement concerning the title over Hans Island which lies midway between the two States. Thus, the 1973 Delimitation Agreement deliberately left without a determined boundary the area between the geodetic points 122 and 123 where Hans Island is located. The decades following the 1973 delimitation treaty triggered a rather political pseudo-confrontation regarding sovereignty over the island,4) with Canada and Denmark provoking each other by planting flags on the island, pursuing annual military visits, and exchanging bottles of whiskey and schnapps.5) Within these political debates, the Danish side often invoked the historical Inughuit presence on the island, mainly through the Danish Minister for Greenland, a post which was laid down in 1987.6) Similar arguments have been also echoed by the Canadian side, which often attributes Canada’s sovereignty in the Arctic to the historical Inuit use and occupancy of the entire Canadian archipelago.7)
The 2022 Agreement on Tartupaluk
To resolve the pending border questions, the two close NATO allies convened a joint task force in 2018, which eventually led to the 2022 Agreement. The Agreement ended the long-standing dispute over the legal status of the island and signaled the establishment of the first land border between Canada and Denmark/Greenland, which was celebrated with the last symbolic exchange of liquor during the negotiations. Based on the 2022 Agreement, Tartupaluk, which lies within Canada’s territorial sea and Greenland’s EEZ (given that the territorial sea in Greenland is so far limited to 3 nm) will thus be divided along a natural ridge with about 60% of the area being allocated to Greenland (Kingdom of Denmark) and the remainder of the area to Canada following the natural gully vertically cutting through the island. Drawing an equidistance line through the middle of shorelines from both sides is often considered the most convenient way for adjacent sovereign states to determine borders in order to achieve an equitable result, and this was the case for Tartupaluk.8)
The Agreement further led to a delimitation of the remaining maritime border in the Lincoln and Labrador seas, while the parties agreed that a “practical and workable border-implementation regime” shall be established to manage visitors, tourism and trade across Canada and Denmark’s newest land border.9)The Agreement meant the creation of a total of 3,962 km length maritime boundary, which is so far the longest in the world consisting of 179 coordinates.
Implications of the Agreement on Tartupaluk for the Inuit people
The closest existing Inughuit hamlet Siorapaluk in Avanersuaq, North Greenland, lies 349 km (217-mile) south of Tartupaluk and the closest Inuit settlement in Canada, Ausuittuq (Grisefjord), lies 603 km on the southwest. The island was used by the Inughuit Greenlanders for centuries as a staging point when hunting polar bears and other game, while until recently the island’s cliffs served as observatory spots in identifying marine mammals on the surrounding sea-ice.10) While the direct implications of the Agreement may at first glance seem of a more pragmatic value for the Inughuit of Greenland, whose settlements are geographically located closer to the boundary, the Agreement has undoubtedly far-reaching importance for the Inuit of both sides.
Prior to the conclusion of the Agreement, the Canada Border Services Agency (CBSA) developed and implemented a broad consultation plan for talks with Inuit in Canada to discuss policy and border processing options that will ensure their continued historic and traditional access to Hans Island.11) Denmark also pursued consultations with the Inughuit of Northwest Greenland (Municipality of Avannaata). For a discussion of whether these consultations are in accordance with the commitments of both States under international law.
The Agreement’s provisions further ensured rights for the Inuit of both Nunavut and Greenland to freedom of movement throughout the island for “hunting, fishing and other related cultural, traditional, historic and future activities”.12)The premier of Nunavut praised the level of Inuit participation in the negotiations of the Agreement and stated that for Inuit, “lands, waters and ice form a singular homeland…used, crossed and inhabited freely before formal boundaries were created by political jurisdictions”.13) Although the establishment of a free movement regime is only applicable to a tiny uninhabited territory of 1.3 km², relatively far from existing Inuit settlements and does not extend to the water/sea-ice surrounding the island, it holds a significant symbolic value for the Inuit of both sides, since it demonstrates the integrity of Inuit traditional areas that extend beyond state-established sovereign borders.
Largely dependent on traversing the sea-ice to hunt birds and marine mammals such as seals, walruses, polar bears and narwhals, the Inuit of the region – predominantly the adjacent Greenlandic Inughuit – were historically living as semi-nomadic peoples, moving between different settlements at certain seasons of the year for hunting purposes and to visit family members.14) In this context, traditional Inughuit hunting grounds extended on Tartupaluk and throughout the entire coast of northwest Greenland, and often included sites over the coast of Umimmaat Nunaat (Ellesmere Island) in Canada.15) Although Inughuit hunting mobility patterns have nowadays been decreased in response to political and socioecological changes in the region, the general understanding of seasonal migration is still pertinent to their livelihoods, as many ‘great hunters’ (Piniatorsuaq) still pursue long trips in search of prey.16)
Despite the Inughuit self-identify as a distinct group of the Kalaallit (Greenlanders), the Kingdom of Denmark accepts the existence of only one Indigenous people, the Inuit of Greenland. In the court case Hingitaq 53 v. Denmark the Greenlandic government formally declared that the Inughuit “do not constitute a tribal people or a particular Indigenous people within Greenland but are part of the Greenlandic people as a whole”. Institutionalizing the acknowledgment of the immemorial Inuit use of Tartupaluk may thus manifest a step further towards the ongoing struggle of the Inughuit for recognition as a distinct Indigenous group within Greenland largely connected to Avanersuaq’s particular socio-ecological system.
Maintaining hunting rights and freedom of movement on the entirety of Tartupaluk island for the purpose of traditional activities may further signify a first step towards the acknowledgment of the overall integrity of Inuit territories that extends across the borders of Greenland and Canada and may prompt future negotiations all the way south to Baffin Bay where Inuit presence is much stronger in both sides. Inuit communities’ subsistence in northern Baffin Bay has always been closely dependent on the adjacent North Water Polynya (Pikialasorsuaq) ecosystem that lies between the two states and constitutes the most biologically productive region northern of the Arctic Circle. Characterized by impressive migratory patterns of birds and mammals tightly linked to the Polynya’s morphology, Pikialasorsuaq has shaped Inuit activities in the sea/sea-ice for centuries.
To address the future of Pikialasorsuaq in light of a changing Arctic and negotiate an Inuit-led co-management regime for the Polynya, the Inuit Circumpolar Council of Greenland (ICC Greenland) together with the respective department of Canada (ICC Canada) established in January 2016 the Pikialasorsuaq Commission, through a project funded for 3 years.17) The Pikialasorsuaq Commission addressed emerging issues pertinent to the region’s people, advocating inter alia for ‘unrestricted’ Inuit movement across and around the Polynya and concluding with three main recommendations for policy makers.18) Almost concurrently with the signing of the Tartupaluk Agreement, ICC Greenland entered into a cooperation agreement with Oceans North Kalaallit Nunaat and a task force was established with the aim of promoting the work of the Pikialasorsuaq Commission and ensuring its recommendations are recognized and eventually implemented by the Greenlandic government. While the implementation phase of Pikialasorsuaq Commission’s work has nowadays started and negotiations on freedom of movement for Inuit to visit friends and family are underway, cross-border hunting for the Inuit of both sides has not yet been established by state law and is nowadays limited to each state’s EEZ and remains strictly controlled by domestic hunting legislations.
Is the recognition of the traditional rights of the Inuit peoples over Tartupaluk consistent with international law?
Traditional fishing and hunting rights are rights of artisanal/indigenous coastal communities to trans-maritime-boundary access and exploitation of resources acquired through long usage/ immemorial fishing and hunting practices in a specific area of ocean space.19) The material content of traditional fishing and hunting rights is not limited to fishing and hunting practices, but also includes other activities traditionally associated with such practices, such as unimpeded passage from base stations to the traditional fishing and hunting ground, the use of islands for temporary shelter, or for drying and salting of the harvested fish, or for repairing hunting and fishing tools. Since marine areas are not only economic spaces but also social spaces for Indigenous peoples, traditional fishing and hunting rights also encompass access to such areas to conduct traditional, spiritual, and cultural activities. The crucial proposition of traditional fishing and hunting rights is the principle of continuity, which posits that allocation/delimitation of a certain marine area under the sovereignty or jurisdiction of a coastal state does not extinguish entitlements of Indigenous peoples based on prior/traditional use. That is, existing traditions remain undisturbed by the change in the status of the ocean space.
The right of Indigenous peoples to trans-maritime boundary access and utilization of marine resources is recognized under international law, both in international human rights law and the law of the sea. It is a well-established rule that coastal states are obligated to recognize the human rights of all persons (individuals as well as communities) within their territory or subject to their jurisdiction, irrespective of ‘their nationality or statelessness’. This implies that relevant human rights norms require a coastal state to respect the traditional fishing and hunting rights of neighboring Indigenous communities conducted within waters under the jurisdiction of such a coastal state. Article 14(1) of the ILO Convention 169, which protects the rights of nomadic Indigenous communities ‘to use lands [and marine areas] not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities’, is particularly relevant in this context.20)Article 25 of the UNDRIP, which obliges states to recognize the rights of indigenous peoples to ‘maintain and strengthen their distinctive spiritual [and cultural] relationship with their traditionally… used lands, territories, waters and coastal seas and other resources’ is equally important.21) More specifically, Article 32 of the ILO Convention 169 and Article 36(1) of UNDRIP impose obligations on states to recognize cross-border traditional activities. Article 32 of the ILO Convention 169, to which Denmark is a party, provides that governments: “shall take appropriate measures, including by means of international agreements, to facilitate contacts and cooperation between Indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields”. Similarly, Article 36(1) of the UNDRIP, which is endorsed both by Canada and Denmark, stipulates that: “Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders”. To give effect to the above substantive rights, the coastal state is also required to consult the concerned indigenous communities (or the State of their nationality) before taking measures that may affect their traditional fishing and hunting rights, pursuant to Article 6 of ILO 169 and Articles 18, 19, 32 of the UNDRIP.
The LOSC also recognizes traditional rights in certain maritime zones. The LOSC explicitly acknowledged traditional fishing rights in archipelagic waters under Article 51(1). Although the LOSC does not expressly recognize such rights in the territorial sea (TS), international tribunals have characterized traditional fishing rights as ‘vested rights’ falling within the renvoi ‘other rules of international law’ under Article 2(3) of the LOSC (see for example, the South China Sea Arbitration, ). The South China Sea Tribunal further concluded that the ‘attention paid to traditional fishing rights in international law stems from the recognition that traditional livelihoods and cultural patterns are fragilein the face of development and modern ideas of interstate relations and warrant particular protection’.22) Such conclusion conforms with existing state practice and scholarly writings. As for the continuity of traditional fishing rights within the EEZ, the jurisprudence on the matter is inconsistent, scholars remain divided, and the existing state practice is limited. Nonetheless, it should be noted that the LOSC does not preclude states from recognizing and protecting traditional fishing rights within the EEZ by mutual agreement. Thus, this indicates that coastal states have an obligation to take measures to continue recognizing the traditional rights of indigenous peoples while delimiting their maritime boundaries.
In this respect, the recognition of the traditional rights of the Inuit peoples over Tartupaluk resonates with the obligation of states under international law. Regulating cross-border traditional activities on the entirety of Tartupaluk seems to be aligned with the relevant provisions of the instruments discussed above. Nonetheless, the Agreement suffers from certain limitations. The free movement regime established by the Agreement is applicable only to a tiny uninhabited territory of 1.3 km², as the Agreement does not expressly extend such rights to the water/sea-ice surrounding the island. Moreover, while Canada and Denmark consulted their respective Inuit people under their domestic law, the Inuit peoples from both sides did not directly take part in the negotiations leading to the 2022 Agreement. This approach also raises questions as to its consistency with Canada’s commitment under para. 5.9.2 of the Nunavut Land Claims Agreement, which requires the Government of Canada to include Inuit representatives when negotiating an international agreement relevant to Inuit wildlife harvesting rights in the Nunavut Settlement Area. Nor does the 2022 Agreement establishes an institutional framework that monitors the implementation of Inuit rights recognized by the Agreement, and that allows for the continued participation and consultation of the Inuit peoples on matters that may affect their rights. For example, such mechanisms include liaison offices, or a common forum for the Inuit peoples from both sides, or a joint commission that includes representatives of the Inuit peoples. These types of creative participatory and consultative approaches exist in state practices in the Indo-Pacific region, such as the Torres Strait Treaty.
The resolution of the last sovereignty-related territorial dispute over the Arctic circle meant a historic deal for the sovereign states of Canada and the Kingdom of Denmark, and not least for the Inuit on both sides who saw the integrity of the traditional territories being to some extent recognized. Yet, the acknowledgement of the integrity of Inuit territories is limited to a small uninhabited island and does not extend to marine areas. The agreement may thus have a more symbolic rather than pragmatic value for traditional activities, even more for the Inuit of Canada. What is most important though is that maintaining the traditional, symbolic, and historic significance of Tartupaluk both to the Inughuit of Avanersuaq and to the Inuit of Nunavut constitutes the very first step towards the acknowledgment of the entirety of the traditional territories of an Indigenous people currently spread among four Arctic sovereign states. With the Arctic warming several times faster than the rest of the world, and both human and animal traffic gradually moving northwards, the Tartupaluk island itself could potentially become a more attractive site for subsistence hunting activities in the North and the 2022 Agreement a point of departure for future transboundary legal developments.
Apostolos Tsiouvalas is a Research Associate at The Arctic Institute, and PhD Research Fellow at the Norwegian Center for the Law of the Sea, UiT The Arctic University of Norway. Dr. Endalew Lijalem Enyew is a Postdoctoral Fellow at the Norwegian Center for the Law of the Sea, UiT The Arctic University of Norway.
Research conducted for this piece was funded in part by The Geopolitics and Geoeconomics of Maritime Spatial Disputes in the Arctic (GEOSEAS) project of the Research Council of Norway no. 302176.