The Saint Croix Courier

St. Stephen, NB

2007 Jul 17

Law professor:
Canada can block tankers from Head Harbour


ST. ANDREWS — Canada has sovereign authority over the waters of the Bay of Fundy and can regulate or restrict passage through Head Harbour Passage, says a U.S. law professor who has studied the issue.

Professor Jon Van Dyke, of the University of Hawaii, was commissioned by Save Passamaquoddy Bay/Canada to look into the authority of the Canadian government to prohibit the transit of vessels carrying liquefied natural gas (LNG) through Head Harbour Passage to ports in the U.S.

Three U.S. companies are currently seeking authorization to build LNG terminals on the Maine side of Passamaquoddy Bay — Downeast LNG want to develop a terminal at Robbinston, Quoddy Bay LLC on tribal land at Sipayik, and North East Energy Development Company LLC at Red Beach.

Canada's intent to enact domestic legislation to ban LNG tankers from Head Harbour Passage has generated heated reaction from the proponents as well as from Maine senators and congressmen.

The U.S. State Department has said it considers Head Harbour Passage to be a strait through which foreign ships have an "nonsuspendable innocent passage" and this has been a long standing point of disagreement between Canada and the U.S., preceding the current controversy by several decades.

Save Passamaquoddy Bay/Canada co-chair Janice Harvey said the group heard an interview with Van Dyke over a year ago during which he said he believed Canada had solid grounds for moving forward with a ban on LNG tankers.

When Ambassador Michael Wilson's letter to the chair of the Federal Energy Regulatory Commission (FERC) in February, which stated Canada's intent to ban LNG tankers through Head Harbour Passage generated such vehement protest from the U.S. side, SPB/Canada decided to invite Van Dyke to elaborate on his statement in the form of an opinion letter.

Van Dyke says Canada's claim that the waters of the Bay of Fundy, which include Head Harbour Passage, are the internal waters of Canada is supported by the United Nations Law of the Sea Convention.

He says Canada's claim is also supported by the principles that govern claims to "historic waters" so has sovereign authority over the waters of the Bay of Fundy and can regulate or restrict passage through these waters.

"Canada's longstanding and wellfounded claim that the waters of the Bay of Fundy and of Head Harbour Passage are its internal waters provides support for its action to regulate ships in this region," Van Dyke writes. "But Canada can also cite numerous examples of state practice taken by other nations, including the United States, to support the view that customary international law allows countries to restrict or regulate passage in coastal waters (including the narrow and difficult Head Harbour Passage) for environmental and security reasons to protect its coastal populations and resources."

In his report, Van Dyke notes that Canada's restrictions on the passage of LNG tankers through Head Harbour Passage would be consistent with its sovereign control over these waters and its action in 1982 restricting the volume of oil permitted through the passage and also with recent initiatives of other countries in similar situations.

In order to deliver LNG to any one of these proposed terminals, he said, a 300-metre-long tanker would travel once a week through Head Harbour Passage between Campobello and Deer Island in Canadian waters and then return the same way. If all three terminals were to operate, he said, that would be an average of six tanker passages taking place each week.

The federal government announced earlier this year that it would prohibit the passage of LNG tankers "through the environmentally-sensitive and navigationally-challenging marine and coastal area of the sovereign Canadian waters of Head Harbour Passage" because such passage would present risks to the region of southwest New Brunswick and its inhabitants that the government cannot accept.

Back in 2006 Prime Minister Stephen Harper said in the House of Commons that the government believes the waters of Passamaquoddy Bay are Canadian waters but officials of the U.S.companies have asserted that their ships have the right of innocent passage through the Canadian waters that lead into Passamaquoddy Bay.

Dean Girdis of Downeast LNG asserted that the U.S. would not back down on the issue because it would set a dangerous international precedent.

After the Canadian announcement, he cited a report commissioned by Professor Ted McDorman of the University of Victoria who had concluded that Head Harbour Passage was a territorial sea and vessels had the right of innocent passage through this waterway.

The company went on to say that the International Boundary Waters Treaty Act of 1909 between Canada and the U.S. and the United Nations Convention of the Law of the Seas supported the transit of Canadian waters by LNG tankers calling on a U.S. port (and vice-versa).

Van Dyke said the Bay of Fundy is an internationally recognized area of rich biological diversity and a critical breeding area for herring and cod as well as a feeding area for migratory birds and marine mammals including porpoises, minke, humpback, finback, and the rare North Atlantic right whales.

He said the Maine coast adjacent to Passamaquoddy Bay is a particularly inappropriate location for an LNG terminal because the narrow passage of suitable depth within the Western Passage and in the St. Croix River present the possibility of a collision and coastal populations adjacent to the bay would be put in grave risk should such an event occur.

Three areas within the Canadian waters of Head Harbour Passage have hazardous rock outcroppings, said Van Dyke, as do two areas in the Western Passage between Deer Island and the Maine coast.

"As the tide moves in and out, rip tides and whirlpools form and the current is difficult to judge. The Old Sow whirlpool, one of the world's largest ocean whirl hazards, requires transiting ships to hug the Eastport shore (a residential area) which is near Clark Ledge and Dog Island. Fog and reduced visibility are common and unpredictable."

Van Dyke says the guidelines developed by the Society for International Gas Terminal and Tanker Operators emphasize that terminals should be sited in sheltered, remote areas where other ships do not pose a risk of collision.

"The risks of collision must be taken very seriously because LNG tankers are vulnerable to penetration by collision if they come into contact with any heavy displacement ship going more than the most moderate of speeds.

"Ships passing near to berthed LNG carriers can cause the carrier to surge or range along the jetty, threatening the moorings, and thus these jetties should not be located near channels used by large ships. Indeed, all nearby traffic can present ignition risks that pose serious dangers to the gas on the LNG carriers."

Even pleasure craft and fishing vessels can pose a threat to LNG tankers, he says, and enforcement of exclusion zones in other areas has proved to be difficult.

Potential spills from fully loaded LNG tankers navigating through narrow waterways present fire dangers to all those located on the shoreline, says Van Dyke.

The terminal area also presents significant hazards, he says, including thermal radiation from fires burning above a liquid spill on the site, combustible vapours being driven by wind to adjacent areas and terrorist attacks on the safety containment systems leading to fires and spillage into ground and surface water systems.

When the Canadian government opposed the proposed Pittston oil refinery at Eastport in the mid-1970s a study commissioned by the Department of Fisheries and Environment concluded that the tides and currents of this region "would make it extremely difficult, and at times impossible, to manoeuvre and berth very large crude carriers in this area," and that Head Harbour Passage had "a high level of navigational risk".

For many decades, says Van Dyke, Canada has claimed the waters of the Bay of Fundy and its adjacent waters as "historic waters" and therefore as "internal waters." The UN Law of the Sea Convention considers historic bays to be internal waters over which the country has complete domestic jurisdiction and to which rights of innocent passage do not apply.

In Canada's Oceans Act this claim is reaffirmed, he says, and ships of other nations have no rights of passage through internal waters.

"Canada has put forward the position that the waters of the Bay of Fundy are internal waters of Canada repeatedly, and other countries appear to have respected the Canadian claim."

While Head Harbour Passage is certainly a "strait" as that term is understood by geographers, says Van Dyke, it cannot be considered a "deadend strait" through which passage is nonsuspendable according to the Law of the Sea. A dead-end strait is defined in the Law of the Sea as a passage between "a part of the high seas or an exclusive economic zone and the territorial sea of a foreign state."

Head Harbour Passage is not a strait governed by the transit passage regime created by the 1982 United Nations Law of the Sea Convention.

That regime, he said, applies only to "straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone" so it does not apply to Head Harbour Passage which connects the internal waters of Canada to the territorial sea (or internal waters) or the U.S.

If, says Van Dyke, Head Harbour Passage were an internal Canadian waterway, it would be subject to complete sovereign control of Canada.

Finally he described the post-1982 Law of the Sea evolution of maritime law which has established many precedents whereby coastal states have put strict conditions and limits on ships and cargoes transiting not only their internal waters but even their territorial waters and as far out as their exclusive economic zones.


© 2007 Advocate Media
Article republished on Save Passamaquoddy Bay website with permission.

The Saint Croix Courier, St. Stephen, NB