Debate continues over Canadian right to deny LNG ship passage -- The Quoddy Tides, Eastport, Maine

The debate over whether Canada has the right to refuse to allow ships carrying liquefied natural gas (LNG) to pass through Canadian waters to facilities on the U.S. side of Passamaquoddy Bay continues, as the Canadian government asserts that right and two LNG developers maintain the waters of Head Harbour Passage are not internal Canadian waters.

At a Canada/U.S. Energy Consultative Mechanism meeting in Ottawa on October 6, there was some discussion about the LNG proposals for Passamaquoddy Bay by the representatives from a number of different federal departments. According to Ambra Dickie, spokesman for Foreign Affairs and International Trade Canada, the Canadian representatives clearly stated that the waters of Passamaquoddy Bay are Canadian internal waters and there is no right of innocent passage for foreign vessels. "Canada maintains the right to regulate the use of these waters," she says.

The right of innocent passage allows ships to travel through the waters of another country as long as they do not threaten its peace, good order or security. A country may adopt laws relating to innocent passage that may govern, among other matters, the preservation of the environment and the prevention of pollution.

Previously, on September 26, during a discussion in Parliament, Prime Minister Stephen Harper responded to a question about the use of Head Harbour Passage to bring LNG vessels to Maine. He stated, "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."

Brian Smith, project manager for Quoddy Bay LNG, which is proposing an LNG terminal at Pleasant Point, responds, "We are still confident that international laws and treaties require the Canadian government to allow us to access U.S. ports." Although the U.S. has not signed the Law of the Sea Treaty, Smith says it does not have to in order for the U.S. to maintain the right of access, and he notes that other treaties that the U.S. has signed have similar provisions as the Law of the Sea Treaty. He argues that there is a mutual obligation for each country to allow ships to transit the waters of the neighboring country to access ports in the respective countries. He says he is not sure of the definition used by Canada to consider the waters of Head Harbour Passage as internal.

Dean Girdis, president of Downeast LNG, which plans an LNG facility in Robbinston, says his company "would not have moved forward with the project if we had any doubts about our right and ability to bring ships safely through Head Harbour and Western passages." He states, "The Canadian assertion that the waters of Head Harbour Passage are internal waters of Canada is not supported by the facts." He says Downeast LNG has had "some the best legal minds in Canada and the U.S. look at this issue," and they have concluded "unequivocally" that Head Harbour Passage does not meet "the well established standard for internal waters."

Girdis also argues that it is hypocritical for Canadian politicians to speak of closing off the bay to LNG ships "when scores of ships going to and from Bayside, some carrying very hazardous cargoes such as ammonium nitrate fertilizer, make that same trip every year. It is hard for me to believe that the U.S. government would stand quietly by if the Canadian government tries to make a totally arbitrary and unjustified decision to stop only LNG traffic through the passage."

The Downeast LNG president states, "American and Canadians have cooperated on energy issues for years § just look at all the crude oil that comes into Portland each year bound for Canadian refineries or the pipeline that brings natural gas from Canadian into the U.S. markets. That's what we should be doing now." He notes that a recently released report by the Frasier Institute states, "Canadian federal and provincial authorities should work together with their American counterparts to develop streamlined best practices and expertise in approving new LNG facilities and in regulating LNG imports."

Girdis comments, "We are continuing to share information and work cooperatively with Canadian officials, and we will continue to do so as the Downeast LNG project moves forward. We have everything to gain by working together and Canadians have much to lose if their government continues to put politics ahead of international law, reason and factual data."