Presumed innocent: navigation rights and risk-based activities in the Passamaquoddy Bay.
Extract
Presumed innocent: navigation rights and risk-based activities in the Passamaquoddy Bay.
INTRODUCTION
The Passamaquoddy Bay is not the first place that comes to mind asa setting for international controversy. A fishing and tourist area, well-known for its scenic beauty, the Passamaquoddy Bay is also bisected by the Canada-United States border. (1) Located at the Western entrance to the larger Bay of Fundy and terminating at the mouth of the Saint Croix River (an international watercourse that defines the boundary between Maine and New Brunswick), the Passamaquoddy Bay is now also the site for two proposed liquefied natural gas (LNG) terminals on the Maine side of the Bay. (2) LNG terminals are controversial at the best of times, given the environmental and human safety risks posed by LNG terminals and the transport of LNG over water. (3) In the case of the Passamaquoddy Bay proposals, the controversy is compounded because the only shipping access to the proposed LNG terminal sites in the United States is through the Head Harbour Passage, a narrow channel of water located between Deer Island and Campobello Island in the Passamaquoddy Bay, both of which are Canadian. The Canadian government has maintained that the waters of the Head Harbour Passage are "sovereign Canadian waters" and, as a consequence, Cariada takes the position that it has the unilateral right to control navigation through the Head Harbour Passage. (4) The United States, on the other hand, takes the position that the Head Harbour Passage is a strait used for international navigation and subject to the right of non-suspendable innocent passage. (5) To assert its position, the Canadian Ambassador to the United States, Michael Wilson, provided a letter on 14 February 2007, to the U.S. Federal Energy Regulatory Commission (FERC), the lead regulatory agency reviewing the LNG terminal proposals, advising the U.S. agency that Canada will not permit LNG tankers to pass through the Head Harbour Passage in the Passamaquoddy Bay. (6) The basis of the Canadian refusal is that the transport of LNG through the Head Harbour Passage presents unacceptable navigational, safety, and environmental risks. The FERC has indicated that it will continue to consider the applications notwithstanding the Canadian position. (7) As the situation currently stands, the United States regulator could potentially approve either proposal in the face of Canadian opposition. If either of the projects proceed, Canada will be left to enforce its claim of sovereignty over the Head Harbour Passage by having to take affirmative steps to prevent LNG tankers from transiting the passage. The current controversy is a reprise of an earlier dispute from the 1970s, where the same issues regarding the transport of environmentally hazardous materials through the Head Harbour Passage were raised in relation to an oil refinery proposal in Eastport, Maine. (8) The re-emergence of this issue suggests that regardless of the outcome of the LNG proposals themselves, Canada and the United States need to come to some resolution of the underlying issues regarding passage through these waters. The controversy concerns disagreement over two related legal issues. First, is the Head Harbour Passage an international strait subject to the right of innocent passage or is it, as the Canadian government claims, an area subject to unqualified Canadian sovereignty? Second, if the right of innocent passage exists, would the potential environmental and safety risks posed by transporting LNG render passage non-innocent? The focus of this paper is primarily on the second issue. In particular, my interest here is in examining the circumstances under which navigational activities that pose risks to the coastal state may be subject to coastal state control. The Passamaquoddy Bay controversy provides a provocative example of the limits of coastal state control over ships exercising the right of innocent passage, and raises important questions regarding the coherence of the international rules respecting innocent passage with the more preventative and precautionary stance of international environmental norms. At the heart of these questions is how activities involving probabilistic risk are treated within each of these areas of law. In relation to risk-based activities, it is helpful to distinguish between environmental harms that are predicted to occur and those harms that are identified in a probabilistic fashion. The predicted air and water emissions from an industrial activity are an example of the former. In such cases, acceptable standards may be identified domestically or internationally, which, if exceeded, would render the activity illegal. The siting of a nuclear powered generating station may be an example of the latter. Here the concerns include the potential for catastrophic environmental harm, but the probability of such an event actually occurring may be quite low. (9) Activities involving probabilistic harm, therefore, require a determination of the probability of a harm occurring...See the full content of this document
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