16th Jul, 2007

Canada’s Right to Ban LNG Tankers in Head Harbour Passage

For immediate release: July 13, 2007

For more information:
Janice Harvey, Co-chair, SPB/C 466-4033; 529-8838
Carl Sapers, FERC Committee Chair 529-4070
Jon M. Van Dyke - 808-956-8509

Canada’s Right to Ban LNG Tankers in Head Harbour Passage
Defended by Ocean Law Expert

St. Andrews, NB: Canada has the authority under customary international law to regulate or restrict the passage of vessels through Head Harbour Passage based on the nature of the ship or its cargo in order to protect its coastal population and resources. So concludes international ocean law expert Professor Jon Van Dyke of the University of Hawaii.

Canada’s intent to enact domestic legislation to ban LNG tankers from Head Harbour Passage has generated heated reaction from would-be LNG developers in Passamaquoddy Bay, as well as from Maine senators and congressmen. The US State Department has said it considers Head Harbour Passage to be a strait through which foreign ships have a nonsuspendable innocent passage. This has been a longstanding point of disagreement between the two countries, preceding the current controversy by several decades.

Save Passamaquoddy Bay/Canada co-chair Janice Harvey said their group heard an interview with Prof. Van Dyke by CBC Radio over a year ago, during which he stated he believed Canada had solid grounds for moving forward with a ban on LNG tankers. When Ambassador Wilson’s letter to FERC Chairman Kelliher of February 14, 2007 which stated Canada’s intent to ban LNG tankers through Head Harbour Passage generated such vehement protest from the US side, SPB/Canada decided to invite Prof. Van Dyke to elaborate on his statement in the form of an opinion letter. This letter was received in May 2007.

In it Prof. Van Dyke explains why Head Harbour Passage is not governed by the strait transit passage regime created by the 1982 UN Law of the Sea Convention. He writes, That regime applies only to straits which are used for international navigation between one part of the high seas or an exclusive economic zone [EEZ] and another part of the high seas or an exclusive economic zone.Head Harbour Passage, which is an integral part of the Bay of Fundy, considered by Canada as internal water, does not meet this definition.

In defense of Canada’s position that the Bay of Fundy is internal waters of Canada, Prof. Van Dyke asserts that Canada has established the Bay of Fundy to be a historic bay. 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 (as opposed to a country’s territorial waters or EEZ).

For the same reason, Head Harbour Passage cannot be considered a dead-end 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.

Finally, Prof. Van Dyke describes 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 EEZ.

Accordingly, according to Van Dyke, Canada has the authority to move forward with a national regulation banning LNG tankers through Head Harbour Passage. We have been told by a federal officials that a regulation may be in place by the end of 2007, said Harvey.

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