Colby Cosh: The brewing Canada-U.S. fight over a disputed puffin island

The last piece of land officially contested between the United States and Canada, a rocky outcropping in the Bay of Fundy called Machias Seal Island, has popped up in the news this week, delighting us lovers of bizarre legal abstractions. New Brunswick Senator Jim Quinn, a retired Coast Guard sailor and a former boss of the port of Saint John, is raging and ranting over federal government inaction in the face of a grievous American offence against Canadian sovereignty.

The disputed island is, for everyday purposes, under the control of the Canadian federal government, which operates it as a bird sanctuary. It might be the single best place in the Northern Hemisphere for ordinary folk to encounter puffins, and there is a 200-year-old lighthouse on the island that is still manned year-round by keepers as an assertion of Canadian sovereignty.

A very hypothetical assertion, mind you. The Americans have always allowed the lighthouse and the sanctuary to exist in peace, but their traditional legal position is that this doesn’t settle the open question of which country the puffin hangout really belongs to.

Alas, there’s no compelling clear answer to this. The island remains in international-law limbo because the original British definition of Nova Scotia (which then included New Brunswick) was incompletely specified, as were the peace treaties that wrapped up the American revolution and the War of 1812. The exact line between Canada and the U.S. in the waters of the Gulf of Maine was finally settled by reference to the International Court of Justice in 1984, in a trailblazing legal exercise. But neither country wanted to press a conjecture-filled case over Mathias Seal Island specifically, so the ICJ judges were basically instructed to leave an undecided “grey zone” around the rock.

The grey zone is still there, and there are occasional flare-ups in the area between American and Canadian lobster fishermen, who are licensed by their own national authorities to use the zone in different ways and on different schedules. Times have been good enough in the lobster business lately to keep things cool.

So what’s Sen. Quinn getting upset about? Well, as it turns out, the federal government issues licences to two tour-boat operators that land looky-loo tourists on shore, one from each of the countries that claims Machias Seal Island. The licensed American outfit is based in Maine, and its website invites nature lovers to come see “the largest puffin colony on the Maine coast.” Moreover, it informs visitors, accurately, that “no passport or other form of identification is required to visit the island,” which has no customs apparatus.

Quinn thinks there ought to be one, and he intends to raise heck in the Senate about this. The commercial description of the island as being “on the Maine coast” infuriates him: “We’ve got the president of the United States that is attacking our economy, suggesting we become the 51st state, wants to take over different parts of the world, and we’re sitting by with the State of Maine doing advertising inferring that Machias Seal Island belongs to Maine.”

For the life of me, I cannot detect the inference the senator sees. The island is uncontroversially nearest to the coast of Maine, much as St. Pierre and Miquelon are to Newfoundland. The non-exclusive Canadian presence on the island has worked out well for birds and even fishermen, or well enough. I understand that we are all supposed to be in an “elbows up” mood, but having a permanent customs station on the island sounds like nothing more than a federally funded jobs project for Sen. Quinn’s part of the Dominion.

And if we began making trouble in the “grey zone” by cutting out all American-based tourist business, the folks in Maine might like nothing better than to destabilize the situation by flooding the island with puffin-hungry thrill-seekers in MAGA hats. Of course, the floodgates have been lately opened to new Canadian defence spending, so maybe the seafaring senator has been browsing Christmas catalogues for new Coast Guard goodies.

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