ISSUES: By allowing forest spraying, does Canada breach its legal obligations under the Law of the Sea (UNCLOS)?

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It’s been a few years but while researching the United Nations Convention on the Law of the Sea in relation to several proposed LNG terminals in the Quoddy Region of the Bay of Fundy, I had shown, I think, that Canada was obliged under UNCLOS to protect the Canadian waters in the vicinity of Passamaquoddy Bay and that the United States has no rights under this international agreement since it has never signed UNCLOS.

This whole concern about Canada’s legal obligation relative to ocean pollution made me revisit my files on UNCLOS. It seems that I remembered that Canada has some serious legal obligations relative to the impacts of forest and agricultural sprays, fracking wastes, brine dumping and other pollutants on shared waters and the ocean that it holds in trust under the agreement.

I am no lawyer, but as my mentor Dr. John Anderson would say, “in my simple mind” it would appear that Canada, the Maritime Provinces, and a gaggle of corporation both public and private are in breach of the UN International Law of the Sea.

You can form you own opinion. Everything is wrapped up in Article 194 which is reproduced in annotated form below.

Article 194

Measures to prevent, reduce and control pollution of the marine environment

1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

It has been clear for decades now that the governments involved have never attempted “to prevent, reduce and control pollution of the marine environment”. In fact, the opposite has been true and, to my knowledge, no effort has been made to prevent pollution from reaching waters covered under UNCLOS and our own Oceans Act, including:

2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

It is abundantly clear that pollution reaching the ocean from our watersheds in the New Brunswick area at the mouth of the Bay of Fundy, that these pollutants flow into the waters of the United States of America. It is not certain that the agreement applies because the US has not signed into UNCLOS. But my read doesn’t seem to require that since it reads, “pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.”

3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:

(a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

Let me count the ways! The complex of forestry, agriculture, industrial and domestic toxicants that reach our ocean are diverse with a broad range of potentially adverse human and environmental impacts. The list is beyond this scope of this article, but a the following reference provides and overview;(http://www.bofep.org/PDFfiles/pollution_workshop_proceedings_2010.pdf)

(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

This is an interesting section. It has been my experience that Fundy Traffic in Saint John does a remarkable job in managing ship traffic in the Bay. I have no information on the management of pollution from these vessels. What the future will hold as traffic increases is open to question.

(c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

Canada is allowed to “exploit” the resources under its jurisdiction but under UNCLOS must assure that pollution is “managed”. This would apply to everything from shoreside industrial plants to aquaculture and offshore drilling. A complex of issues that would probably be difficult to attack from a legal perspective unless proof could be presented that Canada has or is subverting the agreement.

4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

Essentially this means that a complaint from the United States relative to pollution entering their waters would justify legal action.

5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

Did you know there are 81 endangered or threatened species in the Bay of Fundy area including the famous North Atlantic Right Whale. Canada has been and is failing in their obligation to protect the marine species in the Bay of Fundy and is clearly in breach of this provision. For more information see:  https://www.scribd.com/doc/42169274/81-Endangered-and-Threatened-Species-in-the-Bay-of-Fundy-Region

That’s my thoughts tonight. What are yours?

Art MacKay.

 

 


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