Canada's Authority To Prohibit LNG Vessels From Passing Through Head Harbor Passage To U.S. Ports

Authors

Jon M. Van Dyke

Document Type

Article

Abstract

Three U.S. companies are seeking authorization to build liquid natural gas (LNG) terminals in eastern Maine on Passamaquoddy Bay, across from New Brunswick, Canada. The three companies are: (1) Downeast LNG, which seeks to develop a terminal at Robbinston, Maine; (2) Quoddy Bay LLC, which seeks to develop an LNG terminal on Indian tribal land at Sipayik, Maine; and (3) North East Energy Development Company LLC, which seeks to develop a terminal on the Saint Croix River (a tributary to Passamaquoddy Bay) at Red Beach in Calais, Maine. To deliver the LNG to any one of these terminals, a 300-meter-long tanker would travel at least once a week through Head Harbor Passage between the Canadian islands of Campobello and Deer Island, in Canadian waters, and then would return back through this same passage. If all three terminals were to open, an average of six LNG tanker passages would take place each week through Head Harbor Passage. Canada views Head Harbor Passage as an internal Canadian waterway, and in 1982 issued regulations limiting the amount of oil that can be transported through the passage. About 120 foreign-flag ships pass through Head Harbor Passage each year, usually to pick up paper pulp and other forest products destined for European ports. Some U.S. ships have used this passage in previous years, and, in the past few years, the United States has sent military vessels through Head Harbor Passage to Fourth of July celebrations in Eastport, Maine. The Canadian Government announced on February 14, 2007, that it would prohibit the “passage of LNG tankers through the environmentallysensitive and navigationally-challenging marine and coastal areas 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 of Canada cannot accept.” Canada’s Ambassador to the United States, Michael Wilson, expressed this opposition to LNG passage in a letter written to Joseph T. Kelliher, Chair of the U.S. Federal Energy Regulatory Commission (FERC). This action followed months of statements explaining Canada’s concern over the LNG plans. On March 31, 2006, New Brunswick’s senior minister in the federal cabinet stated that the Canadian Government views LNG as dangerous cargo that can be banned from transport in Canadian waters. On September 26, 2006, Prime Minister Stephen Harper was explicit in confirming this view to the House of Commons: Mr. Speaker, I gather there are some representatives of that project [Downeast LNG] lobbying around the Hill today, so let me be absolutely clear. This government believes that the waters of Passamaquoddy Bay are Canadian waters. We have defended that position for a long time. We oppose the passage of LNG tanker traffic through Head Harbour and we will continue to do so. 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 of Washington, D.C. asserted that the United States would not back down on the issue because it would set a dangerous international precedent. Speaking to the New Brunswick Telegraph-Journal, Girdis said, “[i]f Canada does not permit freedom of navigation in this particular site, it puts to risk several other places in the world where billions and trillions of dollars worth of cargo go through territorial seas, places like the Taiwan Strait or the Strait of Bahrain.” After the Canadian announcement opposing the passage, Girdis noted that “the leading Canadian legal maritime expert, Ted McDorman . . . concluded Head Harbor Passage is, in fact, a territorial sea,” and thus that vessels have the right of innocent passage through this waterway. In a more formal document explaining its position, Downeast LNG has stated that “[t]he International Boundary Waters Treaty Act of 1909 between the U.S. and Canada and the United Nations Conventions of the Law of the Seas [sic] support the transit of Canadian waters by LNG tankers calling on a U.S. port (and vice versa).” Those supporting the LNG shipments have argued that the Canadian position is inconsistent, because it allows LNG shipments to terminals in New Brunswick and Nova Scotia, and because, in their view, all cargo ships have a right of innocent passage through Head Harbor Passage pursuant to customary international law and the 1982 United Nations Law of the Sea Convention (Law of the Sea Convention). An attorney for Quoddy Bay LLC has written: [Greg Thompson, Minister of Veterans Affairs in the Canadian Cabinet,] asserted his opposition to certain LNG projects (that is, only those in Maine but not those in New Brunswick or Nova Scotia) . . . [He] indicated that Canada would stop the passage of LNG carriers through Head Harbor Passage the same way they worked in the 1970's to stop the threat of oil tankers going on a similar route to the proposed Pittston refinery in Eastport. . . . Thompson’s statement that Canada can stop ships traveling through Head Harbor Passage may have overlooked Canada’s adoption in November 2003 of the United Nations Convention on the Law of the Sea. This treaty, which now binds Canada, requires that they give any ship the right of ‘innocent passage’ through that strait. Thus foreign vessels of any state must be allowed to pass from the high seas through Canada’s territorial waters to reach waters of the United States such as those in Passamaquoddy Bay. Quoddy Bay can only hope that Canada lives up to its treaty obligations and applies the same standards to LNG carriers moving through Head Harbor Passage as it will to those moving through the Canso Strait to Bear Head and other Canadian waters. Another U.S. ocean law expert, Professor Bernard Oxman of the University of Miami, has expressed the opinion that “Ottawa has consistently taken the somewhat liberal view of how it claims waters for its own.” Oxman has also stated that “Canada likes to overlook certain parts of the treaty,” referring to the Law of the Sea Conention.

Recommended Citation

Jon M. Van Dyke, Canada's Authority To Prohibit LNG Vessels From Passing Through Head Harbor Passage To U.S. Ports, 14 Ocean & Coastal L.J. (2008).
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol14/iss1/4