ALASTAIR NEIL CRAIK, University of New Brunswick, Faculty of Law
Email: craik@unb.ca

This paper considers the inter-relationship between the rules regarding innocent passage of foreign ships carrying hazardous goods through another state's territorial waters under the law of the sea, on the one hand, with the general obligations on states that arise under international environmental law in relation to transboundary environmental risks. These two sets of rules are considered in relation to a controversy between the United States and Canada over the potential siting of liquefied natural gas terminals in the Passamaquoddy Bay, which would require the shipping of liquefied natural gas through Canadian waters notwithstanding that the Canadian government has maintained that it has a sovereign right to exclude passage through these waters.

My principal conclusion is that, notwithstanding the more precautionary posture of international environmental norms, international law as a whole has generally left the discretion to undertake risk-based activities in the hands of the states undertaking those activities. In short, risk-based activities are presumed innocent and the threshold for determining non-innocence remains high. That said, the procedural obligations of international environmental law provide an opportunity for a more cooperative and contextually sensitive approach to resolving disputes involving risk-based activities, such as the Passamaquoddy Bay controversy. In essence, the rules regarding innocent passage forsake contextual sensitivity in favour of legal certainty, while the rules in relation to transboundary environmental harm call for much greater consideration of the respective rights and interests of the parties. Taken together, the rules retain overall coherence by allowing source (flag) states to undertake unilateral activities, but only after satisfying onerous procedural obligations of risk evaluation and good faith consultation.

ALASTAIR NEIL CRAIK, University of New Brunswick, Faculty of Law
Email: craik@unb.ca

Notwithstanding that when the governments of Canada, Mexico and the United States entered into the North American Agreement on Environmental Cooperation in 1993 they made a firm commitment to "consider and develop" recommendations with respect to an agreement on transboundary environmental impact assessment (TEIA), after thirteen years there remain few concrete signs of a TEIA agreement being negotiated under the auspices of the Commission for Environmental Cooperation (CEC). The inability of Canada, Mexico and the United States to achieve an agreement on TEIA is surprising given that each of the parties has a well-developed federal EIA system, both Canada and the United States are signatories to the Espoo Convention, the pre-eminent international treaty on TEIA, (although the United States has not become a party to the treaty), and environmental policy makers in Canada, Mexico and the United States have incorporated TEIA requirements into a variety of domestic and bi-lateral regulatory instruments.

In light of the lack of success in developing a tri-lateral approach to TEIA, this chapter, which forms part of a broader study on TEIA, has several objectives. Firstly, I seek to simply take stock of the current approaches to TEIA that are being employed in North America. Given the varying mechanisms used to implement TEIA, the approach taken is to look at TEIA from domestic, as well as from bi-lateral and tri-lateral perspectives, so as to provide a sense of the broad range of approaches to TEIA that exist within the region, as well as to provide some insight into the reasons why TEIA has developed in a more decentralized, demand driven manner in North America than in Europe. Out of this analysis, I make some further observations respecting approaches to negotiating a comprehensive North American TEIA agreement that are more likely to meet with success.

RICHARD SOUTHCOTT, Stewart McKelvey Stirling Scales
Email: rsouthcott@smss.com
CECILY STRICKLAND, Stewart McKelvey Stirling Scales
Email: cstrickland@smss.com

This article surveys recent developments in Canadian maritime law, reporting on noteworthy changes to regulations prompted by the Canadian Shipping Act of 2001, in particular, those establishing a regime of administrative monetary penalties and those defining more specifically pollution offenses, as well as new regulations implementing in Canada amendments in 2006 to the International Convention on Standards of Training, Certification and Watch-keeping for Seafarers of 1978 (STCW) respecting certifications intended to forestall unlawful interference with marine transportation. In addition, note is taken of decisions by federal and provincial courts on various maritime subjects, including the application of provincial land-use law to ports and marine structures, the application of provincial safety and health law to fishing vessels, arrest of a vessel, the doctrine of forum non conveniens, the defense of inevitable accident, proof of damage to cargo in the carrier's custody, and the duty of underwriters presented with an illegal voyage and breach of a warranty which did not result in the claimed loss.