No “right to innocent passage” through NW Passage for NZ sailor: Transport Canada

“Nothing Mr. Smith says or does can change that”

Transport Canada says it refused a request for the Kiwi Roa, seen here in icy waters, to transit the Northwest Passage. The vessel has been globetrotting, with its owner and skipper Peter Smith at the helm. On Aug. 20, his vessel was seen in the Northwest Passage, heading east, not far from Cambridge Bay. (Photo from Peter Smith’s website)

By Jane George

(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.

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(18) Comments:

  1. Posted by Freedom of the Seas on

    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”
    .
    Mr. Smith is correct.
    .
    The only argument I see from Mr. Byers and the Canadian Government’s perspective is that “we think is counts as territorial waters.” But, as with many things related to sovereignty our own opinions are less important that the opinion of the international community. In this case I support our Kiwi friend and wish him safe passage.

    2
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    • Posted by Artie on

      Sounds about what you would be expected to say Mr. Smith. 🤣🤣

      • Posted by John Masefield on

        FYI: Mr. Smith doesn’t have internet access on the boat while sailing, so how he could possibly have written this post? Get real, not everybody is your opinion!!

  2. Posted by Artie on

    A suggestion. Canadian Rangers should intervene on behalf of Nunavummiut & seize this arrogant Kiwi’s vessel. It is time for a decision on who has jurisdiction over the Northwest Passage. As it stands now, it seems Nunavut & Canada have 0 say on who passes thru their lands. Next thing the Russian’s or USA will be laying claim to the untapped natural resources in the high arctic. Just my 2 cents worth😑

    • Posted by Recipe for Disaster on

      Rangers are in no way trained or equipped for such a task, and are not peace officers.

      Generally speaking the military hate aid to the civil power operations. Sending in a bunch of marginally trained reservists is a recipe for disaster.

    • Posted by One Man on

      One word…….EXACTLY!!

  3. Posted by Disgruntled on

    Canada is being absolutely ridiculous here. This man isn’t doing anything wrong. He is not a threat to Nunavut or to Canada. Stop going after this guy and start using some damn common sense for once. We’re worried about an old guy who’s been on a boat for months, but we’re letting hundreds, if not thousands of illegal immigrants flood into Canada from the US at Roxham Road? Get your priorities straight!

    • Posted by Vanity man on

      And Smith is equally ridiculous. Why does he NEED to go through the northwest passage? Because he’s pompous and rich? The reason why all Nunavummiut are rooting against is because he’s risking $5000 dollars a day just because. There’s nothing good or wholesome about what he’s doing. It’s just a rich man’s pissing contest.
      .
      I hope it doesn’t come down to him being arrested and sent back to NZ. He probably wants that because he thinks it’ll make him look like some rogue maverick. He’s clearly enjoying the puplicity he’s getting from NN for his badboy stunts. I’d prefer for karma to get him somehow and for him to be humiliated. One can dream.

      • Posted by Hank Antler on

        We don’t know of his wealth. Doesn’t look like an uber rich man’s boat. We don’t know if it is the only thing he owns after saving all his life. Neither do we know if this trip is his life’s dream. And that he doesn’t care about the $5k/day cause he is counting on being broke by end of his trip anyway.

        He might of course be what you describe, or, something quite else. We don’t know.

        Regardless it is pretty darn obvious that Covid risk he isn’t.

    • Posted by Mike Hughes on

      Read “The Last Canadian”

  4. Posted by On Behalf of Who? on

    Under no circumstances will Rangers intervene on the behalf of ‘Nunavummiut”. Any action by anyone would be on behalf of Canada, that is who the Rangers signed up to serve after all.

  5. Posted by Bryan Simmons on

    How any foriegn country views canadas laws is irrelevant….that’s like me saying Canada now controls New York and therfore I want free passage…I imagine America would have a problem with that regardless of how ridiculous it is.

    The default position hoes to Canada and since it is within canadas borders, one could argue it does not matter what the rest of the world thinks of it.

    • Posted by Not Clear At All on

      Except that it isn’t at all clear that it is inside Canada’s borders, and this is something that needs to be clarified.

      I am a proud Canadian and want that it is, but it is in no way a settled matter.

      A plain language reading (and I am in now way a legal expert) makes it clear that the claim that it is internal waterways is dubious. Compare with the Malacca Straits.

  6. Posted by Uvaali on

    We all comment like we know. This boat got caught. How many boaters have seen foreign vessels over the years with funny letter which are never seen again in our part of the passage. No guards to monitor.

  7. Posted by UN Convention on

    To those who think this is an internal issue only, remember that Canada is a signatory to The United Nations Convention on the Law of the Sea (UNCLOS – 1982). So, this is a question of International law. Article 19 of the UNCLOS states “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.”
    .
    Much of this debate revolves around the question of whether the passage is an internal waterway or an international strait.
    .
    Canada claims ‘historic title’ supports the passage being an internal waterway. This explains the effort the Harper government pumped into finding the Erebus. Yet despite this neither UNCLOS, nor the 1958 Convention on the Territorial Sea and the Contiguous Zone, offers a clear definition on what counts as historic title (I don’t believe Canada’s claims are that deep historically, but that’s an unqualified opinion).
    .
    Conversely, and to much of the world including the United States, these waters constitute an International Strait based on the criteria that the passage links “one part of the high seas to another” or, two Exclusive Economic Zones (See Articles 34 & 37), being the Davis Strait to the Beaufort Sea, or more broadly the Atlantic and Pacific oceans. Accepting this interpretation Canada has no right to restrict innocent passage through. Though it may apply certain conditions.
    .
    See more here:

    https://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm

  8. Posted by Joseph Seiler on

    I have been tracking his transit through the Northwest Passage. More people have climbed Everest than sailed it. The Kiwi Roa is in Baffin Bay approaching the Davis Strait at the moment. No one is going to seize his vessel, nor does Transport Canada have any authority to fine him. This man was never a threat to any small Inuit hamlet in the Arctic archipelago. He has completed his transit through the Northwest Passage, and he should be congratulated on that accomplishment.

    • Posted by Tom Platt on

      What happens if he capsizes? Or gets into trouble? Part of the reason why traffic was restricted in the NW Passage was to allow for the resources to be concentrated on Covid 19. While I applaud the transit of the passage, this gentleman could have waited.

      • Posted by Joyalle Royal on

        “Part of the reason why traffic was restricted in the NW Passage was to allow for the resources to be concentrated on Covid 19”.
        *
        This seems like an odd comment. What resources are you getting at and how where they shifted from monitoring the NW Passage to focusing on the coronavirus?

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