Stealing the seabed. The Canadian State and the question of Rights and Title over submerged lands

Abstract

Recognising the seabed as a space of contested Rights and Title requires the Canadian State to fundamentally change its approach to the territories of Indigenous peoples. In 2023, the Canadian State declared an effective moratorium on deep-sea mining within its jurisdiction. While the importance of establishing environmental regulations has been recognised, discussion of access and Indigenous Rights and Title relating to the seafloor is lacking. This is despite challenges to State claims of sovereignty over, and activities pertaining to the seabed being increasingly invoked in the Canadian courts. Indigenous Rights over the seabed complicate State expressions of sovereignty over stolen and unceded marine scapes. However, the State’s definitions of “land” over which Rights are conferred—and the placement of the burden of proof onto Indigenous peoples—only serves to replicate colonial and racial logics of Indigenous peoples as static, both geographically and temporally. In contrast the State affords itself the potential to be flexible, including in how it mobilises the ocean's geo-physical characterstics, as new and emerging industries shape discussions of the seabed as a site of extraction. Instead of extending policies and practices that have been extensively critiqued in relation to terrestrial land, the current moratorium offers an opportunity to reconsider how the State operates with regards to the marine space. Engagement with these questions is necessary, lest the dispossession and theft that occur on land and offshore are continued and repeated.