The Tip of the Iceberg

Climate change has been a sword of Damocles hanging over our heads for over 40 years now. The changes predicted in the late 1970s are materializing at home and in remote areas of the world. One of the most notably impacted regions is the Arctic. The melting of glaciers, disappearance of polar caps, and recession of perma-ice have wreaked havoc on the lives of animals and plants inhabiting the North. Unfortunately, the collapse of the current ecosystem also unlocked new economic opportunities in mining, shipping, and military interest. 

The current regulatory framework in the North

As the Arctic faces increased exploitation and territorial disputes, pressing environmental and social concerns are left by the wayside. This is exacerbated by a complex, poorly understood, and patchy regulatory framework for assessing the impacts of projects in the North. 

In Canada, designated physical projects (e.g. deep-water ports, mines, airports) that could have significant impacts on the environment undergo a regulatory process known as an environmental impact assessment. These require the proponent of a project to provide information about the proposed activity's impact on the community and environment in which it would take place. Federally, they are conducted and prescribed under the Impact Assessment Act (the “Act”). Each province and territory also has its own process that can merge with the federal one to streamline into one synchronized process. Additionally, impact assessment processes can be negotiated within a treaty between the federal government and an Indigenous band. For example, several Inuit communities have negotiated substantial treaties with the Government of Canada.¹

Governing regimes for Arctic projects

As there are potentially three separate regimes that could govern the impact assessments of a single project in the North, significant coordination efforts would be required to create a regulatory framework that is easily navigable and accommodates all interests. This coordination has yet to occur. For project proponents and affected communities, the processes are arduous, confusing, and exhausting.²

The Kativik Environmental Advisory Committee (KEAC), which is based in Nunavik (Northern Quebec), released a report summarizing some proposed methods of integration for the impact assessment process. A few of the key ones are listed below:

• Co-operation and coordination agreements. These are formal agreements between Inuit communities and the federal government, which explicitly lay out a framework for how conflicts in a jurisdiction are to be addressed. 

• Delegation under the Impact Assessment Act. Section 29 of the Act allows for the federal government to delegate the impact assessment process to another level of government. This could include delegation to treaty organizations. 

• Substitution under the Impact Assessment Act. Section 31 of the Act allows the federal government to completely substitute their assessment process with the provincial or  treaty one.³ 

While each has strengths and benefits, the KEAC recommends the first option, the coordination  of agreements, as the most realistic and accessible solution to the multi-jurisdictional issue in the short to medium term. Longer term solutions are still under discussion.⁴

Explore more of the iceberg

This is a brief dive into the waters of Arctic shipping, but you can learn more about Arctic shipping through courses like Law of the Sea and Environmental Law, or societies like the Weldon Environmental Law Student’s Society.

1 See examples such as: Inuvialuit Final Agreement, 5 June 1984, online: <https://irc.inuvialuit.com/about-irc/inuvialuit-final-agreement/>; Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, 25 May 1993, online: <gov.nu.ca> [perma.cc/J38P-FAMC]; and The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, 11 November 1975, online <https://caid.ca/AgrJamBayNorQueA1975.pdf>.

2 Meinhard Doelle, David V. Wright, A. John Sinclair, and Simon Dueck, "The New Federal  Impact Assessment Act  and Arctic Shipping: Opportunities for Improved Governance" in Shipping in Inuit Nunangat: Governance Challenges and Approaches in Canadian Arctic Waters, ed Kristin Bartenstein and Aldo Chircop (Leiden, Netherlands: Koninklijke Brill NV, 2023). 

3 IAA Working Group, Implementation of the 2019 Impact Assessment Act (IAA) in Nunavik and the Nunavik Marine Region, prepared for Kativik Environmental Advisory Committee (KEAC: Kuujjuaq QC, 2022).

4 Id.