Canada invokes decades-old treaty with U.S., requests talks on fate of Line 5 pipeline

·5 min read
Fresh nuts, bolts and fittings are ready to be added to the east leg of the pipeline near St. Ignace, Mich., as Enbridge prepares to test the east and west sides of the Line 5 pipeline under the Straits of Mackinac in Mackinaw City, Mich. (Dale G Young/The Detroit News/The Associated Press - image credit)
Fresh nuts, bolts and fittings are ready to be added to the east leg of the pipeline near St. Ignace, Mich., as Enbridge prepares to test the east and west sides of the Line 5 pipeline under the Straits of Mackinac in Mackinaw City, Mich. (Dale G Young/The Detroit News/The Associated Press - image credit)

The federal government has invoked a dispute resolution process in a 1977 pipeline treaty with the United States in an effort to keep the economically vital Line 5 pipeline in operation.

The Enbridge Inc. pipeline, which runs through Michigan from the Wisconsin city of Superior to Sarnia, Ont., crosses the Great Lakes beneath the environmentally sensitive Straits of Mackinac, which links Lake Michigan to Lake Huron.

The pipeline provides nearly half of the fuel supply in Canada's two largest provinces, Ontario and Quebec. It carries up to 540,000 barrels of Canadian crude oil and other petroleum products per day — providing everything from jet fuel for Toronto Pearson Airport to natural gas for home heating.

CBC
CBC

The dispute erupted last year when Michigan Gov. Gretchen Whitmer — citing the risk of a catastrophe in the Straits of Mackinac — abruptly revoked the easement that had allowed the line to operate since 1953. Enbridge and the government of Michigan had been engaged in court-ordered mediation to resolve the dispute.

Gordon Giffin, a former U.S. ambassador to Canada currently acting as legal counsel to the Canadian government, recently informed the U.S. court that Canada had formally requested negotiations with Washington under the 1977 Canada-U.S. treaty on pipelines.

Foreign Affairs Minister Marc Garneau said the government made the move to ensure Line 5 remains in operation.

"In response to Michigan's efforts to shut down Line 5, Canada has raised its significance for Canadian economic and energy security at the highest levels of the U.S. federal government," he said in a media statement.

Giffin's letter asks the court to delay any decisions on the pipeline to give the two countries room to negotiate.

WATCH: 'We have to use all the tools in our toolbox' — Canadian ambassador discusses Line 5

Kirsten Hillman, Canada's ambassador to the United States, said the decision to the invoke the treaty was not made "lightly." She said the government needs to use "every tool in our tool box" to ensure the pipeline continues to operate.

"What's important here is that we have a robust conversation to really see if there are avenues to resolve the problem because just keeping it in the courts, for however long that takes, isn't going to be a solution," Hillman told CBC's Power & Politics.

Hillman said she expects the government to reach out to the U.S State Department in the coming days to set up negotiations.

A spokesperson for the State Department said the United States federal government expects both Canada and the U.S. to engage "constructively" in negotiations.

"In addition to being one of our closest allies, Canada remains a key U.S. partner in energy trade as well as efforts to address climate change and protect the environment," the statement reads.

Michigan Office of the Governor/The Associated Press
Michigan Office of the Governor/The Associated Press

Whitmer said she is "profoundly disappointed" by Canada's decision to invoke the treaty and called on Ottawa to reverse its decision.

"I remain confident that Michigan will prevail in its legal efforts with respect to Line 5, regardless of today's action, and I will continue to fight to get the pipelines out of the water," the governor said in a statement.

Michigan Attorney General Dana Nessel said "the letter filed by Canada today provides no legal basis for delaying consideration of our case."

"I am disappointed that the Government of Canada continues to align itself with Enbridge's desire to keep using State-owned lands to pump oil through the heart of the Great Lakes," she said in an emailed statement.

Michigan has maintained that the U.S. federal court does not have jurisdiction over the matter and says the case should be referred to a state court.

The Canadian government filed an amicus brief with the U.S. court in May siding with Calgary-based Enbridge and citing the treaty, stating that it guarantees the uninterrupted flow of oil and gas across the border.

At the time, Prime Minister Justin Trudeau said the government wanted to see the mediation process between Michigan and Enbridge continue. Michigan withdrew from mediation with Enbridge in September.

The treaty states that any dispute between the two countries can be settled with bilateral negotiations but can be elevated to arbitration should those negotiations fail.

Enbridge said it's grateful for the support from the Canadian government and is hoping for a resolution, through diplomatic relations or through continued mediation with the state.

"Our goal from the beginning has been to work cooperatively to reconcile interests, resolve disputes and move forward in the best interest of people throughout the region," Enbridge communications adviser Tracy Larsson said in an emailed statement.

Unions have warned that thousands of workers' jobs could be at risk if the pipeline is shut down. Those workers include refinery staff in Sarnia, Ont., where the pipeline ends.

Ontario Premier Doug Ford praised the federal government for taking action to defend the province's energy supply and jobs.

"Line 5 is a vital source of energy for Ontario that generates thousands of good-paying jobs. We support the federal government taking this important step," Ford said in a tweet.

Greg McLean, the Conservative MP for Calgary Centre, says the party welcomes the decision, but wanted to see it made earlier.

"Invoking the 1977 Transit Pipeline Treaty has been suggested as the only solution to resolving this file, yet the governing Liberals repeatedly ignored those calls," he said in a statement. "Finally, this week, the minister of foreign affairs acted. We applaud the action, but it leaves one important question — why did it take so long?"

While business groups in Canada have sided with Enbridge and the government in their efforts to keep Line 5 operating, some Canadian environmentalists and Indigenous groups are supporting Michigan's efforts to shut it down.

"We are dismayed by Canada's decision to invoke the 1977 Pipeline Treaty and intervene in the hearing between Michigan and Enbridge," Michelle Woodhouse of the organization Environmental Defence said in a media statement.

Woodhouse called on the Canadian government to instead focus on finding alternatives to Line 5 to provide fuel to Ontario and Quebec.

Grand Chief Reg Niganobe of the Anishinabek Nation, which represents 39 Indigenous groups across Ontario, said he is standing with Indigenous groups south of the border in support of shutting the pipeline down.

"We continue to be insulted by Canada's actions as they choose to invoke the 1977 treaty for pipelines with the U.S. when Canada cannot live up to their own treaty promises made to First Nations," Niganobe said in an email.

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