Under Article 76 of the United Nations Convention on the Law of the Sea (“UNCLOS”), to which Canada and other Arctic States are party (with the notable exception of the United States), the continental shelf is defined as comprising the seabed and subsoil of the submarine areas extending beyond the coastal State’s territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Under a complex formula established by Article 76(4) to (6) of UNCLOS, however, the coastal State may claim an extended continental shelf stretching up to 350 nautical miles from the baselines of its territorial sea. Many Arctic States, notably Denmark, Norway, the U.S. and Russia, as well as Canada, are intent on making such a claim, because of the estimated wealth in natural resources thought to lie on the seabed and subsoil areas of the Arctic Ocean.

Unfortunately, some of the submarine territories claimed by different Arctic countries are overlapping, thus requiring either negotiation or some other mode of dispute resolution to settle the matter peacefully. UNCLOS provides such a mechanism. The procedure for making a claim to such an extended continental shelf requires the claimant State to gather a mass of scientific data showing that the extended submarine area claimed is, in fact, a prolongation of its 200 n.m. continental shelf. The claimant country must then submit its claim, together with that supporting evidence, to the United Nations Commission on the Limits of the Continental Shelf (“UNCLCS”), a body consisting of 21 scientists, within ten years of the country’s ratification of UNCLOS. Canada, which ratified UNCLOS in 2003, therefore has until December 2013 to present its claim to UNCLCS. Canada is already far advanced in amassing the scientific data required to support its bid. In fact, since 2008, Canada and the U.S. have been carrying out joint scientific research, with a view to identifying the outer limits of the extended continental shelf of each country. The U.S. is following the UNCLOS procedure, although it has yet to become a party to UNCLOS itself. Canada has also cooperated with Denmark in joint surveys conducted north of Ellesmere Island with reference to the configuration of the Lomonosov Ridge, which Russia also claims as part of its continental shelf. Until relatively recently, everything appeared to be progressing according to schedule in preparing Canada’s case for study and a ruling by the UNCLCS.

A new and disturbing element has recently entered the equation, however. The Montreal Gazette of April 18, 2012 carried an article referencing a recent report from the Department of Foreign Affairs and International Trade, which indicates that the Commission concerned is flooded with work, having more than forty submissions awaiting review. The result of this administrative backlog is that even if Canada submits its extended continental shelf claim on time (i.e. by December 2013), the claim might not come up for review at UNCLCS until as late as 2030. By then, the majority of the Canadian officials now working on the submission will have been long retired, thus making it more difficult for Canada to present its evidence in a convincing and legally acceptable manner. In particular, the key officials will probably not be available to give evidence or undergo cross-examination. Such a situation could well prejudice Canada’s chances of making a successful claim. Failure to do so in turn could pose a major legal hurdle to the enforcement of Canadian laws and regulations to control the exploration and exploitation of oil and other subsea natural resources underlying the waters of the Arctic Ocean, and impede Canada’s environmental protection efforts with respect to the continental shelf as a whole. The newspaper article concludes by stating that so far the federal government has failed to come up with a plan to address this anticipated problem and that the situation is aggravated by “difficulties in retaining younger scientists to continue the work”.

It is vital that the Government address this issue without delay if Canada is to have any hope of succeeding in asserting its continental shelf aspirations in a manner sanctioned by international law and controlling effectively what by 2030 may well be extensive resource development activities conducted below our Arctic waters.