Full Title Name:  Detailed Discussion of Polar Bears and the Laws Governing Them in the Five Arctic States

I. INTRODUCTION

The Arctic is among the last relatively intact ecosystems in North America and the world. However, for the last three decades, the western Arctic has been warming at the fastest rate in the world, of one and a half degrees per decade. Although we are all affected by climate, some of the most affected are the organisms living up north in the Arctic. Here, organisms have adapted to such a specific and extreme climate that any change, no matter how small, can have devastating effects on a population. In the Arctic for example, temperatures in the summer does not exceed 10˚C (50˚F) and during the winter are typically around -30˚C (-22˚F).

There exist several threats that risk leading to the extinction of polar bears by 2100. The most important of these threats being climate change, oil and other development, pollution, hunting and self-defense killing, intraspecific predation, tourism in the Arctic, and capture for public display. Legislation has been enacted to counter these threats at the state, federal and international level in the five Arctic states: Greenland, Norway, the United States, Canada and the Russian Federation. This paper provides an in-depth analysis of each country's state and federal legislative framework, which is followed by a brief overview of the legislative framework at the international level.

II. THREATS

A. Climate Change

Given that polar bears depend on snow and ice in every aspect of their life, it is evident that climate change is, as the IUCN Polar Specialist Group has indicated, “one of the major threats facing polar bears today.” [i]

Studies have shown that over the past 100 years the Arctic air temperature has increased by approximately 5 degrees Celsius.Western Arctic, in particular, has been identified as “one of the fastest warming regions in the world.” [ii] Projection models from the US [iii] and the UK [iv] demonstrate that climate change has affected sea ice conditions, resulting in prolonged ice-free periods in the Arctic, declining the total cover and thickness of the sea ice and resulting in earlier break-up of ice in the spring.Sea ice is breaking up at least 3 weeks earlier than it did 30 years ago.More specifically, snow-cover has decreased over 10 per cent in the last 30 years, while sea ice cover has decreased approximately 3 per cent per decade.For up-to-date sea ice pictures see NOAA or SEAICE . Experts predict that given the current rate of warming, by 2080 there will be no ice in Hudson Bay.On September 7 ^th , 2007 a major research effort on behalf of the United States Geological Survey concluded that “[p]rojected changes in future sea ice conditions, if realized, will result in loss of approximately 2/3 of the world’s current polar bear population by the mid 21 ^st century. Because the observed trajectory of Arctic sea ice decline appears to be underestimated by currently available models, this assessment of future polar bear status may be conservative.” [v]

Sea ice and snow is especially important for polar bears as it serves as a platform from which they can hunt seal, enables them to build dens where they give birth to their cubs and it gives seals, the polar bear’s primary prey, an area to rest, give birth and raise their pups.

With the current melting trends, ice packs are fragmenting and distancing themselves in the open ocean rendering it more difficult for polar bears to travel between them and leading to polar bears drowning. Also, it has been suggested that such fragmentation may lead to isolating populations which could have negative genetic repercussions on the polar bear populations. Finally, with climate change, polar bears are dying of starvation and having difficulty reproducing.

1. Drowning

Polar bears are exceptional swimmers, but have rarely been documented swimming far from ice or land.   Believed to be an underestimate, for the first time in 2004, four polar bear carcasses were found floating in open water. No such observations had ever been recorded despite records dating back to 1987.It was suggested that stormy weather, along with melting sea-ice which created greater open water, increased wave height leading to the polar bears drowning. These large retreats of sea ice, particularly in summer, may ultimately prevent polar bears from returning to their onshore denning areas. This previously unidentified cause of death may become significant given the anticipated climate change and further melting of Arctic sea ice.Also, as polar bears will be swimming greater distances, risks of contact with oil spills and strikes by vessels will become greater.

2. The Founder Effect

The founder effect is a genetic bottleneck that occurs when either part of a population is isolated from another or part of a population leaves the other and becomes reproductively separated.This can have negative impacts on genetic variability given that the pool of alleles along with the number of individuals in the population has diminished.Consequently, such an occurrence renders these populations more at risk of extinction through environmental pressures. It has been suggested that the diminishing sea ice will could have such an effect.

3. Starvation

As a result of climate change, sea ice has been melting earlier and forming later in a season.This has negatively affected polar bears that are dependent of sea ice to hunt seals.Essentially, their feeding opportunities have been severely impacted.   Given the current trends, polar bears are forced to spend their summer in areas where foraging opportunities are minimal such as on ice over deep ocean or on land.Studies in Hudson Bay have shown that for every week that sea ice melts earlier the polar bears are 10kg lighter. While for every week of delay in the formation of sea ice, polar bears can lose at least 22lbs.This has led to several mortalities; among which in 2006, two adult females and one yearling were found starved to death. In parallel, some predict that the lowered opportunity for feeding may lead to more confrontations with humans.

4. Lowered Reproduction Rates

Through reducing the spatiotemporal availability of sea ice, climate change can and has affected negatively polar bear reproduction on several levels.

First, the amount of area suitable for denning has reduced significantly that polar bears are denning more inshore.Also, changes in weather pattern could bring rain that can cause maternity dens to collapse thereby exposing the female and cubs to the elements and predators.Second, the ability to reproduce has lessened. Scientists have documented already a 15 percent drop in birth rates.   Furthermore, if the mean weight of a female polar bear, which has been decreasing, falls below 189kg it can no longer reproduce. It has been predicted that should trends in temperature continue, most polar bears will be unable to reproduce within the next 20-30 years.Finally, a study in western Hudson Bay found that poorer survival of juvenile polar bears was directly related to the reduced availability of sea ice.

B. Oil and Other Development

The renewed prospect of hydrocarbon development and pipeline constructions in the Arctic has been deemed one of the greatest social, economic and environmental challenges the North has ever faced. Oil and gas development in the Arctic affects polar bears in a variety of ways by polluting the ocean with hydrocarbons, reducing and disturbing their habitat with associated infrastructure and increased maritime traffic.

1. Hydrocarbon Pollution

Polar bears spend a great amount of time traveling across sea ice and traversing open water in search of food; however, this may expose them to oil through under-ice spills and the effects of “herding” of oil by wind and ice action, as well as to oil spreading on top of the ice. Further, petroleum hydrocarbons can be ingested by seals who bioaccumulate [vi] them and, when consumed by polar bears, the hydrocarbons are in greater concentration and therefore of greater toxicity.

A study was implemented to study the effects of oil on polar bears.Four captured polar bears were exposed to 3-1cm thick slick of Midale crude oil on water in an immersion pool for a period of 15-50 minutes. Once coated with the slick, the bears began to lick their fur, actively ingesting the oil.Several hours later, the bears began to shiver and vomiting and diarrhea ensued. As a result, two of the bears died. Oil affects bears by increasing their metabolism and hence depleting energy reserves.Further, the oil on fur leads to greater body heat loss through conductance.Ingestion of the oil leads to renal failure, as it did in the case of the two polar bears.Pursuant to this study, it was suggested that bears should be kept away for oil slick, and should they become coated with oil, the bear should be immobilized and cleaned immediately after exposure. [vii]

2. Reduction and Disturbance of Habitat through Associated Infrastructure

The construction of buildings, access roads and resource extraction operations onshore can have devastating effects on animal populations by reducing and disturbing their habitat.In the North for example, forestry, mining, military installations, scientific research stations, new human settlements, pipelines, hydro-electric power development and associated roads and bridges leads to habitat fragmentation and degradation.Given that most polar bears den onshore, such developments have a critical impact on the polar bear population by limiting reproduction.On a positive note however, development is limited in the North given the increase acreage that is receiving protected status. In 1994 a study conducted by the Conservation of Arctic Flora and Fauna Working Group pursuant to the Arctic Environmental Protection Strategy identified a total coverage of 2.9079 million square kilometers as protected. This represents 14% of the Arctic land area.However, these lands are primarily subject to regulation and control by state authorities which means they are subject to varying levels of enforcement. [viii]

3. Increased Marine Traffic

Navigation in the Arctic is currently limited by the presence of ice. However, Canada does own three ice-breakers who break the ice permitting boats to travel through channels. As climate change continues to reduce the ice cover and thickness it is expected that vessel traffic will increase in arctic waters. This would inevitably lead to increases in marine oil pollution and disturbances.

With the current rate of melting, the world has shown interest in the resources that are being uncovered on the ocean floor as well as the Northwest Passage shipping route that will soon become navigable. The Northwest Passage is expected to become a feasible and preferred alternate route to the Panama Canal for commercial vessels traveling between Asia and Europe in as little as 10 to 15 years.Reducing the trip by 4,700 nautical miles, it represents important savings in time and travel expenses.

However, these increases in shipping activities in arctic waters will significantly affect polar bears by increasing oil pollution and disturbances.

C. Pollution

Pollution in the Arctic comes from two major types of sources: (1) sources remote from the Arctic; and (2) sources found within or in close proximity to the Arctic. Although long-range pollutants represent the most serious pollution-related threat to polar bears at the population level, only the latter will be considered.

Following a 6 year project involving over 400 scientists and administrators, AMAP identified the following sources of pollutants in the Arctic as important:

• Decommissioned Distant Early Warning Line sites (DEW Line)
• industrial activities on the Kola Peninsula
• the Norilsk industrial complex
• the Urals (outside the Arctic)
• the Pechora Basin
• mine sites where heavy metal leach
• exploration
• development and transportation of oil and gas
• mineralization of geological formations
• nuclear waste dumping; nuclear storage sites, accidents and past explosions
• radioactive sources in northwestern Russia

Moreover, Arctic-wide studies have confirmed polar bears are heavily contaminated with chemicals, especially organochlorines and PCBs.

Determining the actual effect of pollutants on animals is complicated given that most are exposed to many different chemicals in a lifetime. Furthermore, with respect to polar bears, basic information on normal metabolism or immune function is almost non-existent which prevents a comparable baseline.

Arctic mammals, such as polar bears, are more vulnerable to chemical exposures for several reasons. First of all, they are top predators which mean they consume prey, such as seals, that have accumulated an already significant amount of pollutants from lower trophic levels, such as fish. These chemicals (PCBs (Polychlorinated biphenyls), dioxins and DDT for example) are usually fat soluble, and given the polar bears’ high percentage of body fat and fatty diets, this makes them ideal as reservoirs for chemicals.   This results in having the highest chemical levels in the top predator, a phenomenon known as bioaccumulation.Over their long life span this results in chronic chemical exposures.Also important to note are polar bears’ long reproductive cycles and lactation periods are significant in transferring chemicals from the mother to the offspring via the fatty milk. The chemicals have many effects on polar bears, all of which are negative. For instance, a 2003 study of Svalbard polar bears discovered disruption in the reproductive system for male bears. Also, hormones, immune systems, vitamin A levels and bone mineral density were all shown to be affected by chemical exposure.  

D. Hunting and Self-Defense Killing

While polar bears are hunted for sport and for personal/traditional use, they may also be killed in self-defense. In addition, polar bear hunting has been identified as one of their greatest threats. Up until the 1960s, polar bear harvesting was largely unregulated and a large number of polar bears were killed annually by each Arctic state.In Canada, for example, approximately 600 bears were killed annually while in Greenland 100 bears were killed; Norway hunters killed around 300 polar bears and in Alaska around 150 bears were killed annually prior to the 1960s.Polar bears have always been an important game and fur animal for indigenous people of the Arctic. But since the Second World War, polar bears have become an attractive trophy for sport hunters from the south.CITES documentation of polar bear parts that are exported indicated that in recent years, polar bear bones, claws, white fur and teeth are the hottest commodity.

Currently, all Arctic states except for Canada have banned hunting to non-natives.  Poaching in Russia, however, is still rampant where enforcement is law and the government corrupted.It is estimated that around 100 polar bears are killed yearly in Russia by poachers.Also, with increasing destruction of habitat, and less opportunity for foraging, it is anticipated that conflicts between polar bears and humans will increase potentially leading to greater self-defense killings.Although some Polar bears are relocated, most communities affected guard against polar bear attacks with intent to kill.

E. Intraspecific predation

Intraspecific predation is a phenomenon whereby an animal kills the same member of its species. There are several factors that can lead to such behavior including, “population regulation; dominance disputes or intraspecific aggression, and reproductive advantage. . . . Predation for the purpose of securing nutrition is another motivation . . . but the ecological factors mediating such events are poorly understood.” [ix]

With respect to polar bear cannibalism, the cases observed have all been in instances where the polar bear ‘attacker’ was malnourished.In 1985, it was documented that malnourished female polar bears could consume her cubs.Then in 1999, an emaciated male polar bear was observed consuming another adult polar bear in Svalbard, Norway as a result of starvation.More recently, in 2004 two adult females and one yearling male were stalked, killed and eaten by other polar bears in the Southern Beaufort Sea Region.It was determined that nutritional stresses related to the longer ice-free seasons had led to these occurrences.“During 24 years of research on polar bears in the southern Beaufort Sea region of northern Alaska and 34 years in northwestern Canada, we have not seen other incidents of polar bears stalking, killing, and eating other polar bears.” [x]

F. Tourism in the Arctic

Tourism is increasing in the North with a larger number of people traveling to the north to engage in recreational activities such as camping, the use of all-terrain vehicles, and boating. In Canada, as in many of the Arctic states, polar bears are an important source of tourism revenue.

These activities disturb polar bears and other wildlife through destruction of potential habitat, pollution of waterways, and excessive noise.Furthermore, it creates opportunities whereby polar bears can come into contact with humans, and therefore increases their chance of being killed in self-defense. If tourism is not properly monitored, it can have serious effects on polar bears populations.

G. Capture for Public Display

Also contributing to population decline of polar bears in the Arctic is their capture for public display, namely for zoos. Essentially, every bear removed from its natural environment is one less bear in the wild. For example, this contributed to decline in the Svalbard population where a number of cubs were taken and brought back to Europe to be placed in zoos. The positive aspect of this is that while polar bears are on public display, they educate and promote sympathy for the animal, which in turns promotes conservation. This makes them more sympathetic animals that the world wants to protect. On the other hand though, animals in captivity do have a lower life expectancy than animals in the wild. However, with climate change, polar bears in captivity at least have a controlled environment.

The San Diego Zoo provides such an experience where people can observe the “Polar Bear Plunge.”In Cochrane, Ontario the Polar Bear Habitat and Heritage Village were established as a non-profit conservation facility that rehabilitates non-releasable polar bears.

Legislation has been enacted to counter these threats at the state, federal and international level in the five Arctic states. Generally, these laws regulate both directly and indirectly human behavior harmful to polar bears. However, intraspecific predation remains relatively impossible to regulate.

III. LEGAL FRAMEWORK WITHIN THE ARCTIC STATES

The legal framework surrounding polar bears is extremely complex. On one hand we have five countries with different state and federal laws, all enforced differently, if at all. On the other, we have a series of international agreements, albeit mostly soft-law, which some countries are signatory while others are not.

Most regulations concerning polar bears are enacted and enforced at each government's national level. Environmental protection strategies in the Arctic are implemented on a national territory levels and remain first and foremost domestic decisions. It is instructive to examine several of the major players’ national legislation to get a feel for how countries are addressing the polar bear crisis. Given that the greatest number of polar bears live in Canada, it is especially important to take a close look at Canada’s legislative regime.

A. Canada   

In Canada, the management of polar bear populations is delegated to the provinces and territories. However, the federal government is continuously involved through the national wildlife agency who “maintain[’s] active research program and is involved in the management of populations that are shared between jurisdictions, particularly between Canada and other nations.” [xi]

The polar bear in Canada is not designated by provincial, territorial or federal law as protected. However, this is under revision. For instance, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) anticipates reassessing polar bears in 2008. While in Ontario, the Minister of Natural Resource will be listing the polar bear as a “species of special concern” under the Endangered Species Act 2007 which comes into force June 30, 2008.This new characterization is based on “the best available scientific information," “information obtained from community knowledge” and “aboriginal traditional knowledge.” [xii] To qualify as a “species of special concern” under this Act the animal must “live[] in the wild in Ontario, [] not [be] endangered or threatened, but may become threatened or endangered because of a combination of biological characteristics and identified threats.” [xiii] However, no protections exist for species under such designation. Being designated as a “species of special concern” requires only that management plans be made which are feasible and consider social and economic factors. These plans must then be made available to the public.Violating any of these provisions, with respect to a species of special concern does not consist in a provincial offence and therefore carries no penalty

The government of Ontario’s Ministry of Natural Resources in cooperation with wildlife conservation organizations has initiated a three-year polar bear research project investing $315,000 in the first year. Through the associated studies which include, “(1) Impacts of Climate Change on the On-Ice Movement Patterns of Southern Hudson Bay Polar Bears, (2) Impacts of Climate Change on the Body Condition of Southern Hudson Bay Polar Bears (3) Impacts of Climate Change on Polar Bear Habitat for Maternity Dens,” [xiv] they anticipate gaining a better understanding of the impacts of climate change on polar bear populations.

Another initiative by the government of Ontario is the Biodiversity Challenge 2005-2010 that seeks to “to protect the genetic, species, and ecosystem diversity of Ontario” and “[t]o use and develop the biological assets of Ontario sustainably and capture benefits from such use for Ontarians.” [xv] It envisages achieving these goals by: (1) engaging Ontarians, (2) Promoting Stewardship, (3) Working together, (4) Integrating Biodiversity, (5) Prevention, and (6) Improving Understanding.

Also important to note is the cooperation among federal and provincial governments. In July 1969, the Federal- Provincial Administrative Committee for Polar Bear Management was established in Canada.And in January 1970, the Federal-Provincial Technical Committee for Polar Bear Research was established.

1. Climate Change

With respect to climate change, the province of Ontario has a Climate Change Initiative by which it anticipates reducing greenhouse gases.For example, it has made available $220-million in loans and grants available to municipalities for the retrofitting and improving of buildings   and has launched a $650-million fund to provide jobs for Ontarians in developing new clean and green technologies.From an educational side, the province has also created an interactive website to educate the public on climate change and its potential effects. Other projects include the Ontario Drive Clean Program and the Ontarian government’s mandate to phase-out coal-powered power plants in Ontario.

The Government of Yukon also recognizes the importance of climate change and its potential to affect renewable resources such as polar bears. Consequently, the government is exploring its potential to affect the hunting and trapping industry, tourism, and the economy and culture of people living a traditional lifestyle. This is why it has developed a Climate Change Program through which it has:

1. developed the Climate Change Action Plan which will be released in 2008 outlining specific actions and initiatives 
2. established a partnership between the Government of Canada, Yukon College and the Government of Yukon
3. developed the Energy Efficiency program

Yukon is also engaged in a number of other projects in conjunction with non-governmental organizations.

The federal government has also recognized Canada’s impact on climate change and enacted the Kyoto Protocol Implementation Act . Here, it recognizes that “Canada has a clear responsibility to take action on climate change, given that our per capita greenhouse gas emissions and wealth are among the highest in the world, and that some of the most severe impacts of climate change are already unfolding in Canada, particularly in the Arctic.” [xvi] The Act follows Canada’s ratification of the Kyoto Protocol in 2002 and was enacted to ensure that effective and timely action is taken to meet Canada’s obligations under the Kyoto Protocol . Through this Act, the Minister must prepare a Climate Change Plan that will (1) describe the measures Canada will take to meet its obligations under Article 3, paragraph 1 of the Kyoto Protocol ; (2) include projected greenhouse gas emission levels in Canada for each year from 2008 to 2012 and; (3) equitably distribute greenhouse gas reductions among the various sectors of the economy.Through regulations that have yet to be established, greenhouse gas emissions will be limited, performance standards established and offences and penalties defined.

2.  Oil and Other Development

To counter the effects of Arctic development of oil and other infrastructures, the Canadian government has several strategies. For instance, the government of Yukon requires that those transporting gasoline be certified as to ensure safety. Another strategy has been to protect habitat through the creation of parks thereby preventing the land from being developed. Within parks, a legislative regime is instilled to further protect the park from degradation through activities carried therein.

In parks at the provincial and territorial level, polar bears are only found in Polar Bear Provincial Park, a provincial park in Cochrane Ontario classified as a wilderness park. This park was created on January 31 ^st , 1997 in part to promote the conservation of the polar bears. It is the largest provincial park in Ontario consisting of 23,552km ² . In the park, regulations limiting mechanized travel, such as by motorized snow vehicles, cars, and boats, exist to maintain ecological integrity while preventing harm to the natural environment and wildlife that could be caused by such travel. Other regulations are important in conserving the polar bear habitat in Polar Bear Provincial Park. For example, deforestation is prohibited except by written permission by the Minister. Also, littering is prohibited as well as damaging vegetation, and the use of fire and fireworks is also regulated.

At the federal level, polar bears are found in a number of parks governed by the Canada National Parks Act and associated regulations. They are found in Manitoba in Wapusk National Park; in the Yukon Territory in Iwavik National Park and Vuntut National Park and; in the Northwest Territories in Tuktut Nogait National Park, Nahanni National Park and Aulavik National Park.

Under the National Parks of Canada Aircraft Access Regulations , aircraft take off and landing are restricted to certain parks such as Aulavik National Park, Auyuittuq National Park, Ivvavik National Park, Nahanni National Park Reserve, Tuktut Nogait National Park and Vuntut National Park, and is further limited to certain areas within those parks that are and regulated by permit.

Travel in National Parks is regulated in part by the National Parks Highway Traffic Regulations which, among other things, requires that motor vehicles be operated only on a highway which is defined as including “road, street, avenue, parkway, driveway, lane, square, bridge, viaduct, trestle or other place within a park intended for use by the public for the passage or parking of vehicles.” [xvii] However, an exception is permitted if the superintendent issues a permit allowing operation on a specified trail or a specified place or area in the park.Over-snow vehicles, which are defined as “vehicle that is designed to (a) be driven by any means other than muscular power, (b) run on tracks or skis or both, and (c) operate on snow or ice,” [xviii] along with all-terrain vehicles are prohibited in a park unless given written permission by the superintendent and satisfy other conditions.

National Parks may also seek to restrict campground use by regulating fires, noise, and the presence of domestic animals.

3. Hunting and Self-Defense Killing

In the past, polar bear hunting in Canada was an activity reserved for the northern native people.In 1970, authorization was given for native-guided polar bear sport hunting in Canada. Today, Canada is the only place in the world that allows sport hunting of polar bears by non-natives.In Canada, such a practice is only legal in the Northwest Territories and Nunavut.Requirements state that the hunt be conducted under Canadian jurisdiction and be guided by a Native hunter. Other requirements include transportation during the hunt by dog sled, that the tags must come from the community quota, and quota tags from unsuccessful sport hunts may not be used again. These conditions were likely a consequence of international pressures from the other arctic states, during the 1973 International Agreement on the Conservation of Polar Bears and Their Habitat negotiations.

In Ontario, the Endangered Species Act does not prohibit against killing of “species of special concern” such as the polar bear. Ontario has established a permitting program which regulates the buying and selling of polar bear pelts. Generally speaking, a holder of a fur dealer’s license or of a license to possess a pelt may only purchase a polar bear pelt from a person that has a seal authorizing the sale of a polar bear pelt. Those not possessing a permit generally must report the acquisition to the district manager within two working days and may receive a license to possess a pelt. To export the pelt outside of Ontario, one must obtain an export permit and royalties must be paid.

In the Yukon Territory the Wildlife Act governs big game hunting. However, polar bears are excluded from the act.

Polar bear hunting by non-native sport hunters is legal in the Northwest Territories. To ensure sustainable exploitation, an annual hunting quota was introduced in NWT in 1967. Also, to protect the polar bear populations it is prohibited to hunt denning bears or females with cubs and the hunting season opens only after the females have denned for the winter.Currently, polar bear hunting is restricted by a licensing process which has been in effect since 1949. For a non-resident, a hunting license is approximately $50.00 whereas for a polar bear trophy the fee is $750.00.Through this system, each village is issued a limited number of Polar Bear permits. As it stands, the quota in NWT is of 98 bears per year. For better management, the Wildlife Management Polar Bear Areas Regulations delimits NWT as well as Nunavut into Wildlife Management Polar Bear Areas.

In Nunavut the Consolidation of Polar Bear Defence to Kill Regulations governs self-defense killing of polar bears. Under this Act a person may kill a polar bear if it is in order (a) to prevent the starvation of a person, (c) to preserve the life of a person; or (c) to protect property. Upon killing the bear, the individual must then provide officer with information relating to the bear and oneself.If the officer is satisfied that the kill was in self-defense, then the hide is given to the closest Hunters’ and Trappers’ Association. A list of these Associations is available via Schedule A .In Nunavut, the Wildlife Management Polar Bear Areas Regulations (enacted when Nunavut was part of NWT) delimits the territory into Wildlife Management Polar Bear Areas.

4. Tourism in the Arctic

The government of Yukon has recognized through its Wilderness Tourism Licensing Act , the importance of regulating the growing tourism industry in the territory as to “preserve the uncrowded and pristine Yukon wilderness.” [xix] Through this Act, the government requires that those conducting wilderness tourism activities (“operators”) such as canoeing, dog mushing, hiking, mountain biking, must obtain a license and pay the prescribed fee of $100. This Act does not encompass activities taking place in a National Park which is governed by the National Parks Act (Canada) and outfitter and guide activities governed by the Wildlife Act (Yukon).This licensing process essentially requires that the operators follow safety-related and environmental standards, and guiding skill certifications.The operators are required to comply with waste disposal and low impact camping standards regulating human excrement disposal and use of soaps, as well as those general requirements that they leave the campsite with no more evidence of their presence than existed prior to their arrival.Those contravening any provision of the Act are subject to license suspension or cancellation and on summary conviction of a fine of no more than $10,000 or of no more than 12 months imprisonment, or both. [xx]

5. Capture for Public Display

In Manitoba, The Polar Bear Protection Act was proclaimed on January 1, 2003. It recognizes that “every effort should be made to keep polar bears in their natural habitat but situations will arise when it is appropriate to remove a polar bear from the wild.” [xxi] The Act provides that without a permit no one can possess a polar bear nor export or attempt to export out of province a polar bear. To obtain a permit, the applicant must show that he/she requires the polar bear for “legitimate scientific, educational or conservation purpose, or another purpose prescribed by regulation.” [xxii] If issued the permit, the applicant must then keep the polar bear in a facility and provide it with care, and must use the polar bear only for the purposes set out in the agreement.The applicant must also agree not to transfer possession to another person without consent from the minister.Should a permit holder contravene any provision of the Act, the permit can be suspended or canceled, and is subject to a fine of no more than $10,000 and imprisonment for no more than 6 months, or both. [xxiii] (While a corporation faces a fine of no more than $50,000, an individual is guilty of a separate offence for each day the contravention continues).

B. Greenland

Greenland is the largest island in the world.Originally governed by the Danish, in 1979 it was granted self-governance; this law came into effect the following year.Denmark still exercises some control over Greenland, but primary over its foreign affairs. This means that pre-1980 Danish laws governed Greenland while since 1980 Greenland has had mostly legislative autonomy.

1. Oil and Other Development

With respect to oil and other development, Greenland approved recently the award of new hydrocarbon exploration and exploitation licenses to Husky Oil Operations Limited.   The total area covers over 10,000 km ² in West Greenland.Two other license blocks are expected to be awarded to such notorious companies as Exxonmobile and Chevron. Five exploration and exploitation licensing blocks will remain each between 8,000 and 14,000 km ² .Greenland also enacted the Export of Ice and Water Act which entered into force on July 1, 2001.This Act seeks to commercially exploit ice and water from Greenland through a licensing system governed by the Department of Industry.On a more positive note, in 1974 Greenland created the largest national park, Greenland National Park .   It measures 270,271 square miles which represents about one-third of Greenland’s total area.Polar bears along with other species are completely protected therein.

2. Hunting and Self-Defense Killing

Under Danish rule, hunting regulations have existed since the 1950s.It was then that official regulations were established prohibiting hunting between June 1 ^st and October 31 ^st throughout Greenland and that of females and cubs in Northeast and North Greenland. Also, the use of poison, foot-traps, set guns, and hunting from aircrafts, is prohibited and polar bears may only be hunted by residents of Denmark.However, no formal quota system exists.

C. Norway

1. Climate Change

The Government of Norway has long recognized the importance of climate change on the environment. Recent efforts include:

• a basic capital fund for energy efficiency efforts and renewable energy established in January 2007
• encouraging the importance and efficiency of trains as a means of transportation
• the taxing natural gas used for heating, which commenced in July 2007
• the creation of projects limiting carbon dioxide emission from cars
• and introducing stricter energy demands with respect to new housing and housing rehabilitation. [xxiv]

In cooperation with Statoil, the government of Norway has initiated a new and exciting project, the “full-scale carbon dioxide cleansing plant” in Mongstad: a gas power plant that captures almost all of its carbon dioxide emissions.   This plant is anticipated to be in full-scale by 2014 and will be largest of its kind in the world.

2. Oil and Other Development

To minimize disturbances, travel restrictions exist especially by snowmobile in high polar bear density areas (such as Spitsbergen and the eastern part of Svalbard because polar bears den there).

3. Hunting and Self-Defense Killing

Norway has long regulated polar bear hunting. In 1927, the use of poison to hunt polar bears was prohibited. Later, in 1939, an important denning area known as Kong Karl’s Land was declared closed to hunting. While in 1965, cubs and females with cubs were protected. Set guns (‘selvskudd’) were still permitted.The set gun system

consisted of a wooden box mounted on four poles about 2 ½ feet above the ground. A rifle or a shotgun was mounted in the box and bait- a piece of blubber or meat-was placed before the muzzle and connected with the trigger by a metal string. When improperly mounted, the set gun might merely wound the bears, who would flee into the sea, and might not be found by the trappers when the set gun was checked hours or sometimes days later. The set gun cannot distinguish between single bears and females with cubs. When a mother bear is killed by a set gun, her cubs are either killed by other bears or starved to death. [xxv]

Polar bears in Svalbard, a northern island, remained heavily harvested until the advent of the 1973 International Agreement on the Conservation of Polar Bears and Their Habitat . In August 1973, Norway prohibited the hunt of polar bears, except in cases of scientific or other special purposes, under a 5-year moratorium, which has extended until today.

Under the Svalbard Environmental Protection Act , the prohibition against polar bear hunting is codified. Section 30 of the Svalbard Environmental Protection Act provides that:

No person may hunt, capture, injury or kill fauna or damage . . . lairs unless so authorized by the provisions of this chapter. . . . It is prohibited to lure, pursue or otherwise seek out polar bears in such a way as to disturb them or expose either bears or humans to danger. No person may subject fauna to anaesthetic or immobilizing agents without the permission of the Governor. The use of poison or chemicals for the purpose of killing is prohibited. The Governor may in special cases grant exemptions from this prohibition. [xxvi]

4. Tourism in the Arctic

Norway has regulations relating to tourism as well as camping activities in Svalbard.The government recommends that “people try to avoid critical encounters, and behave in the most sensible way when interacting with bears” [xxvii] To avoid potentially disastrous contact with them, the government issues guidelines with recommended precautions thereby listed. Among these are:

1. Gain knowledge about polar bears
2. Avoid confrontations by (i) paying attention to your surroundings, (ii) staying out of the path of the polar bear (iii) never move towards the bear.
3. Be armed (i) use a scarring device (ii) high powered big game rifle (caliber .308 win, 30-06 or heavier) is the best weapon for protection again polar bears (iii) alternative is a 12 calibre shotgun with rifled slugs
4. When camping (i) trip wires detection systems, (ii) cocking food storage (iii) waste disposal.” [xxviii]

D. Russia

The greatest threat to polar bears in Russia by far is poaching (the illegal hunting of polar bears). However, self-defense killing has also become important given the many recent encounters of polar bears with humans. For instance, since 2003 three fatal attacks have occurred in Chukotka. Greater human interaction, coupled with lax enforcement of anti-hunting restrictions have seriously endangered polar bear populations in this vast country. 

1. Hunting and Self-Defense Killing

Restrictions on polar bear hunting began as early as 1938 in Russia with the prohibition on hunting from ships and hydrometeorological stations. Later in the early 1950s, polar bear hunting was further limited in the Soviet Arctic.Then finally on November 21 ^st , 1956 the decree On Protection of Arctic Animals was adopted forbidding all hunting (even by aboriginal people) of polar bears whether on shore, islands or in the waters (excepting self-defense killing, of course). This decree remains in force.

Despite this decree, polar bears are still hunted in Russia but illegally. Given Russia’s “notorious corruption and lax enforcement” poaching is ongoing. [xxix] The government estimates that as many as 100 polar bears are killed per year. However, it is unknown exactly how many polar bears are killed each year as Russia lacks funds to follow up.

This is why Russia is currently considering allowing some legal hunting of polar bears, especially in the region across the Bering Strait from Alaska. The government’s rationale is that people may be less tempted to break the law to obtain polar bear meat (which is a delicacy in Russia) and thousand dollar pelts if they were allowed within certain limits to hunt polar bears.

E. United States  

The United States remains a major player in the network of laws protecting polar bears.  Despite this, currently polar bears are not federally listed as endangered or threatened under the Endangered Species Act of 1973 (ESA) 16 USC §§ 1531-1544 . However, public comments are being accepted until October 5 ^th , 2007 by the Fish and Wildlife Service with respect to the proposed rule to list the polar bear as threatened throughout its range under the ESA . The comment period had originally closed on April 9 ^th , 2007, but on September 7 ^th , 2007 the Fish and Wildlife Service reopened the comment period having received nine reports from the United States Geological Survey (USGS) on the subject that provided new data and modeling outputs relevant to their final determination.These reports are available at: USGS: New Polar Bear Finding .

1.  Oil and Other Development

At the federal level, the United States enacted the Oil Pollution Act following the EXXON Valdez spill because it felt that existing conventions were too lax.The Oil Pollution Act had two principal effects: 1) it removed the liability limit for oil spills; and 2) it required tankers that transport oil to the United States to have double hull construction.The OPA inevitably led to setting international standards for double hull, which some said violated United Convention on the Law of the Sea (UNCLOS) .Later, the double hull standard was codified at the international scale under MARPOL in 1992. The OPA does not govern discharges from any onshore facility subject to the Trans-Alaska Pipeline Authorization Act. (42 USC §§ 1651 et seq.)

Similar to Canada, the United States has created many parks to preserve land from development and exploitation. These are governed under the National Parks Act .  

2. Pollution

Federal legislation in the United States that may help mitigate pollution in the Arctic are: the Toxic Substances Control Act , 15 USC §§ 2601-2692; the Clean Air Act , 42 USC §§ 7401-7671q; the Clean Water Act , 33 USC §§ 1251-1387 as well as; the Federal Insecticide, Fungicide, and Rodenticide Act , 7 USC § 136-136 y

3. Hunting and Self-Defense Killing

At the state level, Alaska has regulated hunting since 1948. In 1957-59 bag limits were introduced; in 1960 closed season and in 1961 the sealing of hides and the identification system used to prevent poaching were introduced. Post 1950s moved hunting from a resident native practice to trophy hunting.With the advent of the Marine Mammal Protection Act in 1972, sport hunting of polar bears was stopped.The moratorium does have exceptions. For example, Alaska natives are allowed to hunt for subsistence and handicraft purposes.

The US Marine Mammal Protection Act (MMPA) is a federal legislative text that was enacted in 1972. Polar bears were included therein pursuant to congressional deliberations that determined the need to provide polar bears with additional protection given the absence of any international protective measures and their observed population decline due to hunting.The MMPA has several objectives with respect to polar bears. The most important of which, pursuant to section 2(2), is that it seeks to prevent the population from diminishing beyond a point where polar bears cease to be a significant functioning element of their Arctic ecosystem. The Act also promotes international cooperation for research and conservation via section 2(4). Under section 108, explanations on how to engage in international negotiations and how to develop bilateral and multilateral treaties are included. [xxx] A negative aspect of the MMPA is that “[t]here are, however, no command and control provisions in the MMPA that expressly advance these objectives.” [xxxi]

Currently, the MMPA allows American hunters to travel to Canada, kill a polar bear, and import the body or pelt back into the United States as a trophy.However, the polar bears are only allowed to be taken from certain populations who have been determined to have a sustainable level.

On February 18, 1997 regulations were published establishing standards for issuance of permits allowing sport-hunted polar bears from five Canadian populations to be imported in the United States. (50 CFR 18.30; 62 FR 7302). Two further populations were approved on January 11, 1999. (64 FR 1529). On October 5, 2001 however, the Fish & Wildlife Service adopted an emergency interim rule no longer making eligible for import polar bears from the M’Clintock Channel population.

Should the Fish and Wildlife Service decide to list the polar bear as an endangered species under ESA , this will prevent American hunters and others from importing polar bears to the United States which may have important economical ramifications for native people.

4. Capture for Public Display

Federal legislation governs the capture of polar bears for public display and their maintenance while in captivity. The Marine Mammal Protection provides guidance with respect to capture (which is included under taking) and the Animal Welfare Act pursuant governs the quality of life of polar bears within such institutions as zoos.

IV. INTERNATIONAL LEGAL FRAMEWORK

Given the multiple stakeholders involved in polar bear management and conservation, it is inevitable that there exist agreements and treaties at the international level. These agreements and treaties are important as they identify common goals and objectives and the means by which they can be achieved. However, they usually lack an adequate mechanism to be enforced.

The Polar Bear Management Agreement for the Southern Beaufort Sea , between the Inupiat hunters of Alaska and Inuvialuit hunters of Canada, was ratified in 1988. It was enacted to protect the polar bears traveling between the Canadian portion of the Beaufort Sea region and Chukchi Sea in the United States.It accomplishes this through provisions protecting polar bear in dens as well as females and cubs. Also, it specifies that the annual sustainable harvest from this region is shared equally between the two jurisdictions. The agreement contains provisions by which the quotas are reviewed annually and can be adjusted if necessary.

The Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population is an agreement between Russia and the United States that was established on October 16, 2000 in both English and Russian languages.Its jurisdiction elaborated upon in Article III, includes the Chukchi, East Siberian and Bering Seas. The agreement seeks to further the 1973 Agreement on the Conservation of Polar Bears while recognizing the importance of traditional knowledge and that of human-caused threats to polar bears such as illegal takings, habitat loss and pollution.The agreement is important in that it sets quotas for Harvest limiting each party to one-half of the annual taking limited determined by the Commission all the while, respecting natives’ rights to hunt within certain limits.

The Convention on Biological Diversity seeks to affirm the important of biological diversity in the world, and creates mechanisms for implementation through national biodiversity strategies and action plans, national reports, cooperation and partnerships and more. The Convention recognizes among other things the intrinsic value of biological diversity and the importance for the in-situ conservation of ecosystems and natural habitat. It has been signed and ratified by Canada, Denmark, Norway and Russia. It remains to be ratified by the United States of America.

The United Nation’s Convention on Law and the Sea (UNCLOS) entered into force on November 16 ^th , 1994 pursuant to eleven sessions. Once again all the countries involved in polar bear management are signatories except for the United States. Articles 46 through to 54 of the Convention govern Archipelagic States such as the Canadian groups of islands just north off Canada’s mainland. These articles are important as they establish the jurisdiction over the Canadian Arctic archipelago’s interstitial waters as well as the air space, bed, subsoil and resources contained therein. Essentially, a baseline follows the perimeter of the archipelago, and under this Convention, Canada has jurisdiction over the archipelagic islands, its interstitial waters, and the water extending 12 miles seaward from the baselines.

The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) has over 150 signatory parties, of which we find all of the concerned arctic states: Canada, Denmark, Norway, Russia and the United States of America. The Convention regulates the global trade in threatened and endangered species. Polar bears, however, are listed under Appendix II of the convention which means that international trade is allowed but restricted by permitting processes.Appendix II is reserved for those species that are not yet threatened with extinction but that are at a risk of becoming so if trade in them is not controlled.Essentially, to export polar bears or their parts from a country a special export permit is required as per article IV of the Convention.This permit is currently issued free of charge, but requires a 24-hour advance notice, at least in Canada.A difficulty with the permitting process, however, is that sometimes is it impossible to distinguish between species parts and therefore enforcement of national and even international laws, such as CITES, is difficult.It is important to note that pursuant to article 14, CITES will not affect the right of parties to adopt stricter policies restricting and even prohibiting the trade or whatsoever of a species.

Established in 1994, the IUCN Red List of Threatened Species is a program managed by The World Conservation Union, through its Species Survival Commission (SSC) that assesses the conservation status of animals and plants. Polar bears are currently classified as Lower Risk/Conservation Dependent

A taxon is Lower Risk when it has been evaluated and does not satisfy the criteria for any of the categories Critically Endangered, Endangered or Vulnerable; Conservation Dependent describes taxa which are the focus of a continuing taxon-specific or habitat-specific conservation programme targeted towards the taxon in question, the cessation of which would result in the taxon qualifying for one of the threatened categories above within a period of five years. [xxxii]

The IUCN Polar Bear Specialist Group (PBSG) documents that, both historically and currently, the main threat to polar bears remains over-hunting. Recently, it has been recommended by the World Conservation Union’s Polar Bear Specialist Group that polar bears be classified as vulnerable and added to the IUCN Red List of threatened species.

The 1973 International Agreement on the Conservation of Polar Bears and Their Habitat was negotiated and signed in Oslo, Norway by all five Arctic States (with Denmark acting on behalf of Greenland and Russia being the Soviet Union at the time).The Agreement essentially mandates that all parties will take appropriate measures to protect the polar bears’ habitat and use sound conservation practices in their management.In Canada, this has been interpreted to mean that sustainable hunting by native people is allowed, regulated through a quota system.Via Article III, Canada initiated its program of Native-guided sport hunt in 1970 allowing Native guided hunts by non-natives.

Other important international agreements and treaties affecting polar bears are the following. With respect to climate change, it is the Kyoto Protocol . Those relating to oil and other development are, for instance, MARPOL Convention (also known as the International Convention for the Prevention of Pollution from Ships) requiring, among other things, double hulls or alternative designs for tankers to prevent oil pollution and the International Oil Pollution Compensation Fund . [xxxiii] With respect to pollution there exists the Arctic Environmental Protection Strategy and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (also known as the London Convention of 1972) governing waste disposal at sea.

International agreements are an excellent means to identify common goals and mechanisms amongst numerous states for feats of international scope. Furthermore, they often are the catalyst for legislative changes at the local level. Signatory parties respecting the terms of these agreements generally do so to prevent being submitted to ‘embarrassment’ at the international scale. This remains the only ‘enforcement’ means of these agreements. It is therefore that international agreements are often criticized as being lax and ineffective.

V. CONCLUSION

It is clear that the current regime for polar bear management is not effective. The science surrounding polar bears is still largely incomplete. First, the exact effects of the enumerated threats, such as pollution or development, on polar bears are unknown. Also, there is still much to learn about the general biology of a polar bear largely because the polar bear is not an easily observable species given the inaccessibility of the Arctic and polar bears’ frequent movements and cross-border travels. Having sound science could lead to a more tailored legislative regime governing polar bears. For instance, a key issue at the heart of the debate on whether to list polar bears as threatened in the United States is their population size. What is the population size of polar bears locally?

Although the worldwide population has been estimated to be around 22,000 – 27,000 polar bears, disputes arise when estimating local population sizes. Determining population size is critical in the management of a species, and essential information for those determining hunting quotas in a region. At the moment, quotas are supposed to be determined by using both scientific and traditional knowledge however this is not always the case. For instance, in 2005 in Northwest Territories polar bear quotas for several populations were increased, while some of these decisions were based on scientific studies and traditional knowledge (TK), many solely based on Inuit TK. (TK is knowledge that has been acquired through experience, and culture). A long existing conflict between science and traditional knowledge is prevalent in the North. For instance, while native people relying on TK believe that polar bear populations are rising, science tells us that they are declining. Generally, native people’s TK with respect to polar bear populations is based on the rise in observation around settlements of polar bears and the recent attacks on humans. For instance in 2003 in Russia, there were three recorded fatal polar bear attacks in Chukotka.   This has been interpreted to mean that there are “more polar bears [and they] need to be hunted, as their populations are rising.” [xxxiv] Scientists on the other hand, attribute the raise in polar bear observations to changes in polar bear distribution or changes in abundance of prey species and ice. While the debate is still open on which is the sounder science, conflict between the native people and government is rising as the native people fear that with the increasing polar bear population encounters with humans leading to injuries and even death will ensue.

The issues surrounding the conservation and management of polar bears are complex. However the principal concern remains climate change. With climate change, the polar bear’s environment is changing drastically, and the question remains whether polar bears will be able to adapt or not to these changes.   Polar bears are very specific to their environment by their structure, their hunting methods, food source, and reproductive habits. Can such an animal that has developed such specific characteristics to succeed in such a specific environment survive climate change?

It is clear that although a legislative framework exists, it is largely inadequate. An important step would be in creating a more uniform framework among the arctic states. Should the United States list polar bears as threatened under ESA , this may have the same impact as the Oil Pollution Act and become standard setting in the international community. This could also ultimately lead to Canada preventing the hunt of polar bears by non-natives. Also of consideration is the possibility that other countries assert sovereignty over disputed land in the arctic once the ice and snow melts. The Arctic states should consider the advent of other such parties to the polar bear management circle perhaps by including these nations as observer-status during discussions relating to polar bear conservation and management. In managing polar bears, the Arctic states should also anticipate marine traffic increase as the Northwest Passage becomes a practical shipping route, and include these considerations into their management plans.

If a uniform legislative framework is to be developed, a uniform and effective enforcement is required. Given the financial disparities between countries, perhaps this could be remedied via a transnational polar bear enforcement organization funded by the arctic states relative to their means.

It is certain that polar bears are in dire need of help. A change is needed as the current legislative framework is certainly not the most efficient means of managing one of the world’s most unique and majestic animals. The first and most important step for us all is to curb our emissions and rally in the fight against climate change. For it is certain, that all the other threats to polar bears are subsidiary to climate change. Should polar bears become extinct, we are all to blame.