No “right to innocent passage” through NW Passage for NZ sailor: Transport Canada
“Nothing Mr. Smith says or does can change that”
(Updated at 11;15 a.m.)
A sailor from New Zealand who did not receive permission from Transport Canada to transit the Northwest Passage could face fines of up to $5,000 per day.
Peter Smith’s 52-foot aluminum sailboat, the Kiwi Roa, was spotted on Aug. 20 near Cambridge Bay entering the Northwest Passage from the east.
Transport Canada now says it will take “appropriate enforcement action if a contravention of the Interim Order Restricting Pleasure Craft Navigation Due to the Coronavirus Disease 2019 (COVID-19) is found to have occurred.”
But Smith has maintained he has the right to travel through the Northwest Passage because it’s an international waterway and his vessel has a “right of innocent passage” for its transit.
The “right of innocent passage,” as defined by the United Nations, is a vessel’s right to enter and pass through another’s territory as long as it is not prejudicial to the peace, good order or security of the other state.
But foreign vessels like Smith’s have no right to “innocent passage” within Canada’s Arctic archipelago, said Michael Byers, a legal scholar who holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia and is the author of “Who owns the Arctic?”
“The Government of Canada’s long-standing position is that these are ‘internal waters’ and not ‘territorial waters,'” Byers said.
But confusion appeared to exist about this in a background document from Transport Canada about measures for pleasure craft in northern communities issued on May 14.
This said its ban on pleasure craft in Arctic waters would exempt “foreign pleasure craft exercising their right of innocent passage through Canada’s Arctic territorial waters; however, these vessels will be required to notify the Minister of Transport 60 days in advance of arriving in Arctic waters and may be subject to conditions.”
“It is astonishing that Transport Canada would make such a basic mistake, especially one that would result in the introduction of COVID-19 into northern communities,” Byers said of Transport Canada’s May statement about the right of innocent passage through Canadian Arctic waters.
However, the final Transport Canada order of May 30 made no mention of an exemption for foreign pleasure craft exercising their right of innocent passage and expanded the definition of Arctic waters to Canadian waters located north of the 60th parallel and the “territorial sea of Canada” in the vicinity of Nunatsiavut and Nunavik.
The right of innocent passage does not apply to the Northwest Passage because Canada considers it to be internal waters, not territorial waters, an Aug. 27 email from Simon Rivet, acting manager of media relations, monitoring and social media for Transport Canada, confirmed.
“In actual fact, the right of innocent passage under Articles 17 to 19 of the United Nations Convention on the Law of the Sea (UNCLOS) only applies to the territorial seas (0 to 12 nautical miles from the coast),” Rivet said.
“The waters of the Canadian Arctic Archipelago, including the Northwest Passage, are internal waters of Canada, giving Canada an unfettered right to regulate those waters as it would its land territory. Therefore the right of innocent passage does not apply in the internal waters of the Canadian Arctic.”
But Smith has disputed this.
“Canada has no legal right to apply Canadian law to a foreigner in [an] international waterway,” Smith wrote to CBC News. “Half the world does not recognize Canada’s claims and this needs to be sorted out.”
But Byers said New Zealand is a close ally of Canada and a world leader in the fight against COVID-19, and, as such, would be unlikely to defend Smith.
“I would be very surprised if it protested against an enforcement action. Indeed, I would be very surprised if the Canadian and New Zealand foreign ministries have not discussed this already and come to a quiet agreement—to the effect that New Zealand will remain silent,” he told Nunatsiaq News, when asked for his reaction to what Smith said.
The Kiwi Roa is flagged in New Zealand, so if that country were to express its agreement with the enforcement of Canadian COVID-19 regulations against Smith and his ship, or if it were to simply stay silent, “no dispute in international law could arise,” Byers said.
“Nothing Mr. Smith says or does can change that,” he said.
Transport Canada said on Sept. 1 that it first received a request from Smith to enter Canadian Arctic waters in May, but that his request was refused.
“The department officially denied the request under the Interim Order to reduce safety risks and mitigate the spread of COVID-19 within Canada’s Arctic communities on July 29, 2020,” Transport Canada said in an emailed statement.
Transport Canada said it communicated with Smith throughout June and July to gather more details on his plans before denying the voyage under the Interim Order Restricting Pleasure Craft Navigation Due to the Coronavirus Disease 2019 (COVID-19).
“Throughout this time, Transport Canada indicated to the vessel owner that the intended voyage should not be considered approved,” Transport Canada said.
Transport Canada said was it was “made aware” on Aug. 20 that the Kiwi Roa was spotted near Cambridge Bay, “in alleged contravention of the Interim Order Restricting Pleasure Craft Navigation Due to the Coronavirus Disease 2019 (COVID-19).”
Transport Canada said it then directed Smith to depart from Canadian waters, to not make landfall and to provide regular updates on the sailboat’s position.
“The vessel confirmed they received this direction on August 21, 2020,” Transport Canada said.
Smith was still travelling through the Northwest Passage earlier this week.
But he exited at Lancaster Sound today, according to online information about Baffinland Iron Mines Corp. shipping, shared on Facebook by the mining company with the community of Pond Inlet.
Smith did not respond to a request for comments from Nunatsiaq News.
“The vessel has been providing regular reports on its location to the Government of Canada through daily contact with Canadian Coast Guard’s Northern Canada Vessel Traffic Services Zone (NORDREG) since August 21, 2020,” Transport Canada said.