Passage rights by U.S. boats again disputed

Free passage into Canadian waters around Passamaquoddy Bay appears to have ended, as U.S. boaters recently have been stopped by Canadian officials while they have been in Canadian waters and told they must obtain clearance, even if they do not intend to land in Canada.
On July 2 Dennis Turner of Perry was stopped by RCMP officers while he was aboard his boat in Head Harbour Passage. The officers conducted a safety check and informed Turner that he could no longer be in Canadian waters without first clearing through the Canada Border Services Agency, even if he did not touch land. Turner protested and told the officers that he felt he was in an international passageway and that he had a right to free passage. The officers told him that the waters are internal Canadian waters, so there is no right to innocent passage.
Turner notes that he has been going into Canadian waters in this area "forever." For his first summer job in 1965 he would fish off Spruce, White Horse and other islands in the passage. He believes the rule will be "inconvenient as hell to a lot of people. They'll get the honest people, but not the others. This is just one more lost freedom. The terrorists are winning."
Eastport Port Director Chris Gardner believes the requirements will not affect ships transiting through Head Harbour Passage to the Port of Eastport. Gardner and Turner understand there is a right of innocent passage through Head Harbour Passage. If Canada is maintaining that the waters are internal Canadian waters, Gardner says, "I, along with many others, would want to have an extensive conversation in that regard. It bears watching."
Gardner adds, "I hope it's not a holdover from the LNG issue. This is getting borderline ridiculous."
Bob Peacock of Eastport, who pilots many of the ships to and from the Port of Eastport through Head Harbour Passage and also the U.S. Navy ship that visits Eastport during the Fourth of July, notes that the ships report in to Fundy Traffic in Saint John and clear through a ship reporting base in Nova Scotia. "We're doing everything they're telling us to do. We've been doing it for 15 years."
While the Canadian government has maintained that the waters of Head Harbour Passage are internal and sovereign Canadian waters through which it has the right to control navigation, the U.S. government maintains that the passage is used for international navigation and is subject to the right of non-suspendable innocent passage, since it is a territorial sea. In November 2003, Canada adopted the United Nations Convention on the Law of the Sea, which the U.S. believes requires that Canada give any ship the right of innocent passage through the strait.
The issue came to a head both during the debate over three proposed LNG terminals in Maine on Passamaquoddy Bay and during the dispute over the Pittston oil refinery in Eastport in the 1970s and '80s. In 1982, Canada issued regulations limiting the amount of oil that could be transported through passage, and in 2007 the Canadian government stated it would prohibit passage of LNG tankers "through the environmentally sensitive and navigationally challenging marine and coastal areas of the sovereign Canadian waters of Head Harbour Passage."
The LNG companies maintained that there is a right of innocent passage, and the U.S. Department of State sent a letter to U.S. Senator Susan Collins that the department had informed Canadian officials "that it is our firm position that, though Canada may adopt laws and regulations in respect of the safety of navigation and the regulation of maritime traffic, all vessels enjoy a non-suspendable right of innocent passage into and out of Passamaquoddy Bay through Head Harbour Passage. This is guaranteed by the international law of the sea reflected in articles 21 and 45 of the Law of the Sea Convention."
The definition for internal waters depends on where one draws the baseline of the territorial sea and also can depend on defining a historic bay, under the UN's Law of the Sea Treaty. Canada's position is that the Bay of Fundy is a historic bay and not a territorial sea. If the bay's waters are internal waters, Canada has the right to control what happens there. With a territorial sea, there are conditions under which a sovereign country can restrict what occurs.

CBSA outlines requirements
In response to questions concerning the Canada Border Services Agency (CBSA) requirements for boaters entering Canadian waters, Amitha Carnadin, media relations for CBSA, states, "All private boaters are required to report to the Canada Border Services Agency upon arrival in Canada, with one exception as follows. Canadian legislation stipulates that private boaters that are in transit through Canada are not required to report, provided they are proceeding directly from one point outside of Canada to another point outside of Canada. This movement, defined as in transit, must be continuous, uninterrupted and without delays or stopovers.
"The requirement to report applies to all foreign boaters entering Canada, as well as private boaters who depart Canada, enter foreign waters, and subsequently return to Canada. This requirement exists regardless of boaters' activities while outside of Canada or their planned activities while in Canada. Private boaters are required to report regardless of whether or not they drop anchor, land, enter an inland tributary or moor alongside another vessel while in foreign waters.
Carnadin states that the requirement is not new, although the CBSA, in an attempt to make this reporting requirement less burdensome to Canadian and American boaters, has modernized its reporting requirements. A CBSA supervisor, though, stated when he was contacted that the requirement took effect in August 2011.
Concerning Head Harbour Passage, the CBSA response does not address the question of whether the waters are considered internal Canadian waters or whether there is a right of innocent passage. The response states again that boaters must report upon their arrival in Canada, adding, "Private boaters that are strictly weaving in and out of Canadian waters but are not in transit are required to call the Telephone Reporting Centre only once at the time of their initial entry into Canadian waters. If this activity changes, i.e., the vessel docks in Canada or takes on new persons or goods while in foreign waters, the boaters must report to a CBSA designated marine reporting site and call the TRC to obtain clearance.
Certain private boaters may now contact the CBSA by calling the Telephone Reporting Centre (TRC) at 1‑888‑226‑7277 from their cellular telephones upon arrival in Canadian waters, to obtain clearance. This includes: Canadian citizens and permanent residents who have not landed on U.S. soil; and U.S. citizens and permanent residents who do not plan on landing on Canadian soil.
According to CBSA, all other private boaters, including those without cellular telephones, must proceed directly to a CBSA designated marine telephone reporting site and place a call to the TRC to obtain CBSA clearance. This includes all vessels carrying individuals who are not Canadian or U.S. citizens or permanent residents.
There are alternatives to the process. The CBSA's Trusted Traveller programs streamline the border clearance process for pre‑approved, low‑risk travellers. NEXUS and CANPASS members can provide advance notice to the CBSA at least 30 minutes minimum and up to four hours maximum prior to arriving in Canada by calling the NEXUS Telephone Reporting Centre at 1‑866‑99‑NEXUS (1‑866‑996‑3987) and 1‑888‑CANPASS (1‑888‑226‑7277) respectively.
For more information on how to apply to NEXUS and CANPASS, as well as the full requirements and benefits of the programs, boaters are directed to visit the CBSA NEXUS or CANPASS websites.