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We can settle this:
Let's trade oil for fish by Michael Byers, Academic Director
We can settle this:
Let's trade oil for fish by Michael Byers, Academic Director

March 11, 2005
An oil and gas boom in the Beaufort Sea presents Canada with a unique opportunity to resolve two long-standing maritime boundary disputes with the United States. The continental shelf north of Tuktoyaktuk contains oil and gas reserves worth tens of billions of dollars. At the centre of the field are 65 square kilometres of seabed claimed by both Canada and the United States. Nearly 2,000 kilometres away, at the southern end of the Alaska Panhandle, the two countries are disputing the world's richest salmon fishery.

Canada's claim in the Beaufort Sea is based on a treaty, concluded between Britain and Russia in 1825, that set the eastern border of Alaska at the "meridian line of the 141st degree, in its prolongation as far as the frozen ocean." Canada's position is that the maritime boundary, like the land border, must follow the 141st meridian straight north.

The U.S. says "as far as the frozen ocean" means the boundary follows the 141st meridian only as far as the coast; offshore, a general principle of equity requires that every point on the boundary be an equal distance from each of the two adjacent coasts. Since the coastline at the 141st meridian slants southerly from west to east, such an "equidistance line" would give more of the ocean and seabed to the United States. On a map, the disputed area looks like a southward-pointing wedge.

In 2003, when Washington held an auction for oil and gas leases in the contested area, Ottawa filed a diplomatic protest. In the end, no bids were received, reportedly because energy companies feared the uncertainty around the boundary dispute.

Canada's legal position in the Beaufort Sea isn't strong; it should settle the matter quickly. Canadian companies such as EnCana Corp. are already operating, under U.S. licences, in the uncontested U.S. portions of the Beaufort Sea and may eventually obtain leases in the contested area once the legal situation is resolved. Even if U.S. companies win the leases, any oil and gas discovered would be shipped through pipelines likely to be owned and operated by Canadian companies and cross thousands of kilometres of Canadian territory.

Washington, increasingly obsessed with gaining access to secure energy, has an interest in resolving the dispute -- enough of an interest to give Canada something in return?

It's fortuitous that a second, quite distinct maritime boundary is in play, involving a larger area with no known energy reserves. In 1903, the U.S. and Britain set up an arbitration panel to delimit the border between the Alaska Panhandle and British Columbia. At the southern end of the panhandle, the panel drew a line (the "A-B line") from Cape Muzon on Dall Island (point A) eastward to the narrow mouth of the Portland Channel (point B). The A-B line runs along the north shore of the Dixon Entrance, a 50-kilometre-wide body of water that connects the mainland coast to the open sea.

Canada says that the A-B line set both the land and maritime boundary, and that the Dixon Entrance consequently belongs to us. The U.S. says that the A-B line forms the land border only and that the maritime boundary must be delimited on the basis of equity, dividing the Dixon Entrance more or less equally between Canada and the United States.

If the U.S. claim prevails, Canada will lose 620 square kilometres of prime fishing grounds. Our rights over the waters and seabed farther to the west would also be compromised, since the location of the boundary between the two countries' 200-mile exclusive economic zones depends on where the boundary is located closer inshore.

One could speculate about oil and gas below the Dixon Entrance. But Ottawa's moratorium on oil and gas drilling off Canada's West Coast, and the U.S. focus on proven northern Alaska reserves, have left the area unexplored. The uncertainty works in Canada's favour, as do the findings of the 1903 arbitration award -- even if they have the unusual consequence of depriving two small U.S. islands of a portion of their 12-mile territorial seas.

Over the decades, both Canada and the U.S. have occasionally arrested each other's fishing boats in the vicinity of the Dixon Entrance. Since the last such arrest (a U.S. vessel in July of 1999), both countries have held off in the disputed area.

Complicating matters further, U.S. nuclear submarines regularly pass through the Dixon Entrance en route to an acoustic testing installation on Back Island, just north of Ketchikan, Alaska. The submarines threaten fishing boats and nets, and also Canada's legal position. Canada unilaterally accorded the submarines navigational permission in 1990, but Washington has always insisted that permission is not required. Every time a U.S. submarine sails through the Dixon Entrance, it calls into question the validity of Canada's legal claim.

Taking the Beaufort Sea or the Dixon Entrance dispute to the International Court of Justice would resolve things, but at risk to both sides. In 1903, Canadians were dismayed by the arbitration award that set the A-B line, as it gave all 26,000 square kilometres of the Alaska Panhandle to the United States. That outcome, and the fact that it was a British-appointed arbitrator who cast the decisive vote, prompted the creation of an independent Canadian foreign ministry in 1908.

A century later, these two disputes on the Alaskan frontier provide an unusual win-win opportunity for Canada-U.S. relations. A friendly exchange, whereby Ottawa recognized Washington's claim in the contested area of the Beaufort Sea in return for Washington's recognizing Ottawa's claim in the Dixon Entrance, would provide certainty for both countries as well as their energy and fishing industries. That only one U.S. state would be affected should simplify the negotiations, as should the fact that each country's national pride could remain intact.

In a 2003 Liberal Party leadership debate, Paul Martin said: "There is an issue up here, the wedge in the Alaska-Yukon boundary. The Americans are now putting out bids on what is Canadian territory. Well, that is not acceptable and Canada must deal with that issue and deal with it now." He said it well then. Will he walk the talk now?

Michael Byers, who holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia, is the author of War Law.

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