This story was updated at 12:35 p.m. EST.
The Biden administration has invited Great Lakes tribes for input on unprecedented, upcoming talks with Canada over the fate of a contentious pipeline that’s creating what sources say is a rift between the two countries.
At issue in the fight over Enbridge Inc.’s Line 5 is a dispute resolution process set out by the "Transit Pipeline Treaty of 1977" that Canada invoked for the first time for this case.
The treaty, Canada argues, guarantees the uninterrupted flow of petroleum products between the U.S. and Canada, while Democratic Michigan Gov. Gretchen Whitmer pushes to shutter Line 5 in state court (Energywire, Dec. 1).
Because the negotiations are unprecedented, experts say there’s no way to tell when talks will start, how long they will last or if the results will be public.
“This thing has really never been used — period,” said Andy Buchsbaum, an attorney for the National Wildlife Federation and a lecturer at the University of Michigan law school. ”And certainly negotiations between these two countries have never happened under this treaty.”
The 68-year-old Line 5 pipeline, which moves light crude and natural gas liquids from Superior, Wis., to Sarnia, Ontario, has emerged as a lightning rod among tribal communities and activists concerned about the effects a spill could have on the Great Lakes.
In addition to treaty talks, 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’s weighing policy options and plans to engage in the talks with Canada under the treaty soon, the department has provided few details.
But Aaron Payment, chair of the Sault Ste. Marie Tribe of Chippewa Indians, confirmed the State Department invited his tribe to weigh in on the treaty talks with Canada.
Payment joined Michigan’s 12 federally recognized tribes last month in calling on President Biden to support Whitmer’s efforts to decommission the pipeline, citing tribal fishing and hunting rights in the pipeline area that date back to an 1836 treaty.
A spokesperson for the State Department in an email confirmed the agency had invited the tribes to voice their views and concerns surrounding the Line 5 project before engaging with Canada under the 1977 treaty.
The Biden administration’s invitation is notable given how little is known about how treaty talks would proceed. But the White House has been outspoken about giving tribes a great say in treaties and boosting consultation on energy issues.
“The Biden administration has been very quiet on this issue, and they’re going to have to take a position soon,” said Kristen van de Biezenbos, a law professor at the University of Calgary.
“If [the White House] agrees this treaty applies, and that does seem to be the case since they are going along with the arbitration process,” she said, “then do they believe the provisions of the treaty would prevent Michigan from doing what it’s trying to do by forcing the removal of the Straits of Mackinac section of Line 5?”
‘You don’t have public access’
Canada kicked off a process for formal negotiations by invoking the pipeline treaty in early October and has said talks will begin soon.
“Canada’s objective remains to work collaboratively with the U.S. in these formal negotiations to seek a solution where Line 5 remains open and operating safely,” Canadian Embassy spokesperson Diana Tan said. “Since this process is ongoing, we are unable to provide further details at this time.”
If those talks fail, one of the parties could invoke a formal arbitration process. If that happens, the clock starts ticking for establishing a three-person panel to decide the fate of a pipeline that has outsize social and political importance.
According to the terms of the treaty, the U.S. and Canada each have 60 days to pick an arbitrator to represent them in the discussions and an additional two months to choose a third arbitrator to serve as a neutral party.
If the two countries don’t pick a third arbitrator in that time, either country can ask the president of the International Court of Justice to make an appointment or choose someone to make the decision, according to the treaty. The third arbitrator, who could not be a national of either country, will then determine where the talks will be held.
A decision in the dispute would be made by majority and be binding for the two countries.
Van de Biezenbos said arbitrators usually have a legal background, and some are former judges or lawmakers. Countries and large, multinational corporations, she added, generally opt for arbitration over court proceedings because, in addition to being confidential, decisions don’t create a legal precedent.
“Many parties … choose arbitration on purpose, so that if they do have a dispute, the proceedings and the decisions are all confidential,” van de Biezenbos said.
“It is entirely possible that we will not see the United States’ submissions to the arbitrator. I mean, I’m not 100 percent sure, because we’ve never seen arbitration under this treaty before and there’s no specific procedure,” she continued. “But ordinarily, you don’t have public access to arbitration submissions, unless the parties agree to disclose them.”
Just how large a role Great Lakes tribes will play is unclear, but members have been vocal in calling on the Biden administration to halt the pipeline and an underwater tunnel replacement project.
In a request to Biden earlier this year, Michigan tribes that make up the Three Fires Confederacy of the Ojibwe, Odawa and Potawatomi asked the president to intervene and shut down the pipeline, arguing there is a reasonable risk of a spill given the history of anchor strikes to the pipeline.
The 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’s still being remediated.
Along with asking Biden to revoke a 1991 presidential cross-border permit for Line 5, Great Lakes tribes are asserting that Enbridge has for years violated safety conditions of the 1953 easement and has “repeatedly concealed those violations from the State, all the while putting the Great Lakes in significant jeopardy.”
The Line 5 battle is fueling tension between Canada and the U.S. on energy issues that began with Biden’s decision to shut down the Keystone XL pipeline to credits for electric vehicles in his "Build Back Better" proposal being debated on Capitol Hill.
Canadian Prime Minister Justin Trudeau last month said he had asked Biden directly about concerns stemming from Line 5 at a trilateral summit along with other issues complicating the countries’ trade relationship. He offered no details on what they discussed.
In a letter first reported by POLITICO, Canadian officials on Friday laid out for Senate leaders that provisions in the "Build Back Better" bill are “discriminatory toward Canada, Canadian workers and our auto industry.” They formally threatened retaliatory tariffs against the auto sector 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 shut down Line 5 would have “serious ramifications” under the pipeline treaty and raise “substantial questions” about federal law relating to interstate commerce and federal jurisdiction on pipeline safety issues.
The company said Whitmer’s move to shut down the pipeline and pull back an easement for the project constitutes a “clear breach” of the 1977 treaty.
“We greatly appreciate the efforts from the Government of Canada and for their commitments to keep Line 5 open. We also greatly appreciate their desire to advance 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 the continuous flow of oil and other products — jet fuel, propane and fuel that’s refined in the Midwest — are critical to both Americans and Canadians.
“The question of an international, multijurisdictional piece of infrastructure being subject to action by any one officeholder is something that is daunting, so it’s taken on a larger life,” said Greenwood. “We are completely interconnected. … It’s important that we act as the integrated unit that we are and not turn against each other.”