Thursday, December 1 2022


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The Biden administration has invited Great Lakes tribes to participate in unprecedented talks with Canada over the fate of a contentious pipeline that is creating what sources say is a rift between the two countries.

The Enbridge Inc. Line 5 litigation is at issue in a dispute resolution process established by the “1977 Transit Pipeline Treaty” that Canada first invoked in this case.

The treaty, Canada argues, secures the uninterrupted flow of petroleum products between the United States and Canada, while Michigan Democratic Governor Gretchen Whitmer pushes to close Line 5 in state court (Energy wire, 1st December).

Because the negotiations are unprecedented, experts say there is no way to tell when the talks will begin, how long they will last, or if the results will be public.

“That thing was never really used – period,” said Andy Buchsbaum, a lawyer with the National Wildlife Federation and lecturer at the University of Michigan Law School. “And certainly, the negotiations between these two countries never took place within the framework of this treaty.”

The 68-year-old Line 5 pipeline, which transports light crude oil and natural gas liquids from Superior, Wisconsin, to Sarnia, Ontario, has become a lightning rod among tribal communities and activists concerned about the effects that ‘a spill could have on the Great Lakes.

In addition to treaty negotiations, the pipeline is also at the center of a fight in Michigan state court and an environmental review by the Army Corps of Engineers.

While the State Department has repeatedly said it is weighing political options and plans to enter into treaty talks with Canada soon, the Department has provided few details.

But Aaron Payment, president of Sault Ste. Marie Tribe of Chippewa Indians, confirmed that the State Department invited her tribe to participate in treaty negotiations with Canada.

Payment joined the 12 federally recognized tribes of Michigan last month in to call President Biden in supporting Whitmer’s efforts to decommission the pipeline, citing tribal fishing and hunting rights in the pipeline area that date back to an 1836 treaty.

The White House and State Department did not immediately respond to a request for comment.

The Biden administration’s invitation to the Great Lakes tribes to intervene is notable given the limited information available on how the treaty talks would unfold. But the White House has spoken openly about giving tribes a big say in treaties and spurring consultation on energy issues.

“The Biden administration has been very silent on this issue and will soon have to take a stand,” said Kristen van de Biezenbos, professor of law at the University of Calgary.

“Yes [the White House] accepts that this treaty applies, and that appears to be the case since they agree to the arbitration process, “she said,” so do they think the provisions of the treaty would prevent Michigan from doing what he is trying to do this by forcing the removal of the Straits of Mackinac section of line 5? “

“You do not have public access”

Canada kicked off the arbitration process by invoking the pipeline treaty in early October and said formal negotiations would begin soon.

“Canada’s goal remains to work with the United States in these formal negotiations to seek a solution where Line 5 remains open and operates safely,” said the Canadian Embassy spokesperson, Diana Tan. “As this process is ongoing, we are unable to provide further details at this time. “

Now, time is running out to establish a three-person panel to decide the fate of a pipeline of disproportionate social and political importance.

Under the terms of the treaty, the United States and Canada each have 60 days to choose an arbitrator to represent them in the discussions and an additional two months to choose a third arbitrator who will serve as a neutral party.

If the two countries do not choose a third arbitrator within that time frame, either country can ask the president of the International Court of Justice to nominate a person or choose someone to make the decision, depending on the treaty. The third arbitrator, who cannot be a national of one or the other country, will then determine the place of the talks.

A decision in the dispute would be taken by majority and would be binding on both countries.

Van de Biezenbos said arbitrators usually have a legal background and some are former judges or lawmakers. Countries and large multinational companies, she added, generally opt for arbitration over court proceedings because, in addition to being confidential, the decisions do not set a legal precedent.

“Many parties (…) choose arbitration deliberately, so that if they have a dispute, the procedure and the decisions are all confidential,” van de Biezenbos said.

“It’s entirely possible that we won’t see the US submissions to the arbitrator. I mean, I’m not 100% sure, because we’ve never seen arbitration under this treaty before and there’s no specific procedure, ”she continued. “But normally you don’t have public access to arbitration submissions unless the parties agree to disclose them.”

It is unclear what role the Great Lakes tribes will play, but members called on the Biden administration to stop the pipeline and an underwater tunnel replacement project.

In a request to Biden earlier this year, the Michigan tribes that make up the Three Fires Confederacy of Ojibwa, Odawa and Potawatomi asked the president to intervene and shut the pipeline, arguing that there is a reasonable risk of spill taking into account the history of the anchor. pipeline strikes.

Tribes also pointed to Enbridge’s track record, noting that the company was at the center of a spill that polluted the Kalamazoo River watershed more than a decade ago, a disaster that is still being remedied. .

In addition to asking Biden to revoke a 1991 presidential cross-border permit for Line 5, the Great Lakes tribes claim that Enbridge for years violated the security conditions of the 1953 easement and “repeatedly concealed these violations to the state, while putting the The Great Lakes are seriously threatened.

The White House did not respond to questions about inviting tribes to treaty talks or whether it asked other parties to participate.

Cross-border conflict

Line 5 battle fuels tensions between Canada and the United States over energy issues that began with Biden’s decision to shut down the Keystone XL pipeline to credits for electric vehicles in his debated “Build Back Better” proposal at Capitol Hill.

Canadian Prime Minister Justin Trudeau said last month he had asked Biden directly about concerns arising from Line 5 at a trilateral summit as well as other issues complicating the countries’ trade relations. He gave no details of what they discussed.

In one letter First reported by POLITICO, Canadian officials told Senate leaders on Friday that the provisions of the “Build Back Better” bill “discriminate against Canada, Canadian workers and our auto industry”. They have officially threatened tariff retaliation against the auto industry and other parts of the U.S. economy if the provisions remain intact.

When asked about the treaty negotiations, an Enbridge spokesperson said any attempt to close Line 5 would have “serious ramifications” under the pipeline treaty and raise “substantive questions” about federal law relating to the pipeline. interstate commerce and federal jurisdiction over pipeline safety matters.

The company said Whitmer’s decision to shut down the pipeline and remove an easement for the project was a “clear violation” of the 1977 treaty.

“We greatly appreciate the Government of Canada’s efforts and its commitments to keep Line 5 open. We also greatly appreciate their desire to move forward with the timely construction of the Great Lakes Tunnel Project, ”the company spokesperson said.

Maryscott Greenwood, CEO of the Canadian American Business Council, said the pipeline and continuous flow of oil and other products – jet fuel, propane and refined fuels in the Midwest – are essential for Americans and Canadians.

“The issue of an international, multi-jurisdictional infrastructure that can be actioned by a single office holder is a daunting one, so it has a broader life,” said Greenwood. “We are completely interconnected. … It is important that we act as the integrated unit that we are and that we do not turn against each other.

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