Treaty trumps LNG politics

Mr. Greg Thompson’s appointment as Minister of Veterans Affairs in the Canadian Cabinet sparked controversy last month when he asserted his opposition to certain LNG projects (that is, only those in Maine but not those in New Brunswick or Nova Scotia). Although Mr. Thompson was unavailable following his appointment to comment on the issue, his electioneering remarks 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.

I think it appropriate to provide residents of the region with additional and differing information on Canada’s legal position on use of these waters. Mr. 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.

Before Canada can block LNG tankers it will have to overcome this presumptive right and demonstrate that LNG ships somehow present a risk to the “peace, good order or security” of Canada. The factors spelled out in the treaty as to what might present such a risk are simply not present with regard to LNG carriers. It will be very interesting to hear how LNG ships traveling to the United States through Canadian waters present such risks, but those traveling to Canada’s own LNG terminals do not. In fact, Article 24 of the convention expressly prevents discrimination in the application of this treaty, as well as any laws or regulations adopted in conformity with the treaty.

While Canada may believe it “blocked” the oil terminal proposal for Eastport many years ago and can rely on that approach again, it must not forget that since then it agreed to a new legal regime for its waters. If it chooses to create an international incident over this issue, Canada should be prepared to explain why disparate treatment between vessels going to its LNG terminals and those going to US terminals, and between vessels bound for the proposed Quoddy Bay LNG facility and those bound for Canadian ports through the same passage, is warranted.

Canada is actively pursuing LNG terminals in its own territory, though Mr. Thompson has tried to justify a distinction between Canadian projects and those in Maine by saying that the Canadian projects are in “industrial areas.” While this may be a true statement about their “zoning” status, from what is available in the public record, at least as to the Bear Head project in Nova Scotia, it does not appear to be an accurate description of the surrounding environment.

The Bear Head web site www.anadarko.com/globalactivities/northamerica/canada/bearheadlng.asp contains a video which shows what appears to be a relatively pristine wilderness area being dug up for that terminal. Bear Head appears to be an unspoiled area of forests and rocky shore with sweeping views. It is true that the web site indicates that Port Hawkesbury is 6 km away and an oil refinery is 4 km away and those are industrial (as are parts of Eastport which is closer to the Quoddy Bay project than Bear Head is to Port Hawkesbury). However, Bear Head itself appears to have been, before being permitted by Canada for LNG, more pristine a location than any of the three projects proposed for Passamaquoddy Bay. The channel that the tankers will have to navigate at the pier at Bear Head also appears from the maps and photos to be just as narrow as any which will be involved with the Quoddy Bay project.

The fact is that Canada has decided that use of land with access to sheltered deep waters is essential for its energy security even if is it unspoiled. The permitting process in Maine and before the Federal Energy Regulatory Commission will determine if Quoddy Bay’s site at Split Rock (which has been used in the past as an industrial area for fish processing and was “reworked” in the 1930’s as part of the abandoned tidal energy project) are appropriate for our energy security.

While you are on the web, you might want to read the Risk Assessment Report for the Bear Head project (http://www.gov.ns.ca/enla/ea/bearHeadLNG Terminal. asp). The risks are very similar for Quoddy Bay’s terminal. Yet Canada gave its blessing to Bear Head and construction is underway.

Obviously each site has its benefits and detriments, but any distinctions will have to be justified by something other than emotion. A careful analysis of the Quoddy Bay project is just beginning as part of the FERC pre-filing process and we look forward to Canadian participation in it. At the time of Canada’s ratification of the U.N. Convention on Law of the Sea, the Country’s then Minister of Foreign Affairs, Bill Graham, said, “By ratifying UNCLOS, we are affirming our belief in the application of the rule of law to our oceans.”

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 Straight to Bear Head and other Canadian waters. We also hope that project opponents will take the time to understand the safety record of LNG and compare it to that of other types of ships which now pass through Head Harbor and other Canadian and American waters.

Quoddy Bay will continue to hold open houses in both Washington County and in Atlantic Canada and it is hoped that opponents, supporters and the undecided attend to hear our side of the story and not just to shout down the presenters.

Gordon Grimes of Bernstein Shur in Portland is attorney for Quoddy Bay LLC.