Relations between countries can often be defined by the smallest of disputes. And one is now brewing between Canada and the U.S. at the south end of the Bay of Fundy at Head Harbour Passage, which separates Maine from New Brunswick. Head Harbour Passage in Passamaquoddy Bay is one of the oldest marine links to the historic ports in the U.S. Northeast, some dating back at least to the late 1700s. For hundreds of years, U.S. and foreign-flagged ships have sailed through the narrow 100-metre-deep passage to U.S. ports, including Eastport, Maine.
The Canadian Coast Guard puts no restrictions on foreign ships going through the pasysage. Most of the 120 foreign ships per year going through Head Harbour pick up high yquality paper pulp bound for Europe.
But that may be about to change.
A new and highly charged disypute between Canada and the U.S. is simmering over a proposyal to build a liquefied natural gas plant at Mill Creek, Maine, where the St. Croix River meets Passamaquoddy Bay just 26 kilometres south of the border. At least one nearly 305-metre-long LNG tanker is expected to pass through Head Harbour each week.
The Conservative governyment of Prime Minister Stephen Harper has been adamant in its refusal to allow LNG tankers through what it claims are Canyadian waters. The dispute has quietly reached the highest political levels, with Condoleezza Rice, the U.S. secretary of state, and Sam Bodman, the energy secreytary, getting involved.
The first major test will come as early as this spring when the U.S. Federal Energy Regulatory Commission makes public its initial environmental review-the first step in the review procyess.
Both Ms. Rice and Mr. Bodyman have told Canada they beylieve it is illegal to prevent ships from entering a U.S. port. State Department of ficials say priyvately they believe the issue is all about Canadian "domestic politics."
The United States maintains the Canadian government will be violating international laws by refusing to allow LNG tankyers through Head Harbour Pasysage, the only viable way into Passamaquoddy Bay because of strong tides in the Bay of Fundy. Mr. Harper says: "We will use any legal and diplomatic means necessary to stop the project."
At the heart of the new flareyup in cross-border tensions is a US$700-million proposal by Washington-based Downeast LNG to build a single tank to handle at least 500 million cubic feet a day of natural gas.
The company wants the LNG terminal operating by 2011.
The gas would arrive in an exytremely dense liquefied form in tankers from Trinidad, Nigeria and Algeria as well as Norway, Egypt, Qatar and Equatorial Guinea. It would be regasified and pumped into a proposed pipeline to feed the nearby Maryitimes & Northeast Pipeline from Nova Scotia into Maine.
Downeast president Dean Girdis, a former World Bank enyergy official, says he does not understand what the fuss is about.
He says his backers, the equiyty fund group Kestal Energy of New York, are going to extraorydinary lengths to ensure the LNG tankers pass safely through Head Harbour.
"There will only be one ship a week, fewer in the summer," he says.
"Each ship will have two piylots-a Canadian and an Ameryican-and we plan to have the ships guided by four US$8-million new tugboats."
The plan, he says, has the supyport of residents of the nearby Maine town of Robbinston, who are anxious for new jobs. There would be about 300 construction jobs during the two-year conystruction period ending in 2011, and 56 permanent jobs.
All Mr. Girdis wants is a chance to prove to energy reguylators and skeptics he can build an environmentally friendly LNG terminal and guide the tankers safely through Head Harbour.
There is also a proposal for another LNG terminal on a naytive reserve at nearby Quoddy Bay, although that proposal is not, at least in regulatory terms, as far along. And an LNG plant is under construction by Irving Oil on the Canadian side in Saint John.
While LNG is widely seen as the best way for the United States to wean itself from Midydle East oil, it has become the poster child for the phenomyenon known as NIMBY-not in my backyard.
Vocal opponents on both sides of the border, such as savepassaymaquoddybay.org, say either proposed project would expose populations in Maine and New Brunswick to the potential hazyards of an LNG spill.
There are 40 LNG terminals planned along the east and west coasts of Canada, Mexico and the United States. Most have not gone anywhere. There are only five older plants in operation, all in the U.S.
That is because local opposiytion to LNG plants is almost uniyversal.
Like oil refineries and tank farms, they are unpleasant to look at. The LNG tankers are seen as potential terrorist tarygets and huge environmental liabilities if they rupture.
It is a hot button topic and noywhere do tempers flare more than in St. Andrews, the historyic and idyllic cottage and tourist location in southern New Brunswick. The Bay of Fundy also attracts a huge number of whales-minkes, finbacks, humpbacks and the rare North Atlantic right whales.
Whale watching is a key part of southern New Brunswick's tourism industry. On the Canaydian side of the border, people like Caroline Leavitt, who operyates a whale-watching business in the summer with her husyband Chris, firmly believes LNG would spell the death knell for their livelihoods.
"Who would want these tankyers?" she asks. "Certainly, we don't want to see them in our backyard. We want an end to it." So far, the Canadian governyment is backing her view. Greg Thompson, the local MP and minister of veterans affairs, makes no bones about his oppoysition.
He believes LNG ships passying through the rocky waters are environmentally dangeryous, potential threats and just plain not wanted.
"We oppose the passage of LNG tanker traffic through Head Harbour and will continyue to do so," he said in Parliayment last year. "Head Harbour Passage is one of the most dangerous pasysages in Canada, certainly the most dangerous in Eastern Canyada."
Ottawa is claiming under the 1982 International Law of the Sea Treaty that Head Harbour is an internal Canadian waterway. There is some dispute about the claim, largely from the U.S. side, which says it is part of the terriytorial sea that extends out nearyly 20 kilometres, under internaytional law. "Although Canada has mainytained that the waters in quesytion are its internal waters, it is not clear that this is the case," says David Ridenour, viceychairman of the National Cenyter for Public Policy in Washingyton.
"Internal waters are those that are nearly surrounded by land, so they are not considered part of the sea."
Even if it was widely accepted that Head Harbour Passage is internal Canadian waters, the treaty offers a little wrinkle, something called right of innoycent passage.
The law, which Canada signed and later endorsed in 1994, says that while nations can declare internal waters using a variety of means, including one called the straight baseline method, nations cannot unreasonably restrict foreign vessels from crossing through those waters except for reasons of "good oryder and security."
Canada has often claimed inyternal waters under the straight baseline method, mostly in the Arctic and on the West Coast. And the United States has alyways challenged those claims.
Yet what makes Head Harybour unique, besides its beauty, is that U.S. and foreign ships have been using it freely for cenyturies.
"Head Harbour goes back hundreds of years," says Capt. Steven Garrity, commander of the U.S. Coast Guard in Northyern New England.
"Thousands of foreign ships have gone through there."
That history makes Canada's claim much more difficult, sugygests another U.S. marine law expert.
"I don't think Canada's posiytion is by any means hard and fast," says Bernard Oxman of the University of Miami.
As a former State Department official who previously dealt with the Head Harbour jurisdicytional dispute over an oil refinyery proposal, Mr. Oxman says Ottawa has consistently taken the somewhat liberal view of how it claims waters for its own. "Canada likes to overlook cerytain parts of the treaty," he says. Canadian diplomats dispute this, arguing recently that just because U.S. and foreign ships use the passage now does not preclude Canada's right to preyvent other ships from entering. The Federal Energy Regulatoyry Commission process is a lengthy one. The initial enviyronmental review is not expectyed before June, when it is then open for public comment. After that, a final environmental imypact statement will be issued, perhaps by the end of the year.
The environmental statement is then included in a review of the entire project. That means a final decision on the project could take between 12 and 18 months.
And then, even if the commisysion approves the project, the Head Harbour Passage dispute is likely years away from a resoylution. If Ottawa and Washingyton cannot come to an agreeyment, the United States would likely attempt to challenge Canyada under intentional marine laws.
And that will set an important precedent for the next CanadayU.S. marine dispute: Canada's claim of control of the Northywest Passage.
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