This article by Whitney Gravelle, Lindsay Bailey, Tamara Morgenthau, and Marco Simons was originally published on Just Security.
One day in July 2010, residents of Marshall, Michigan, smelled something toxic in the air and called 9-1-1. It took over 17 hours for Canadian oil giant Enbridge to detect that its Line 6b pipeline had ruptured. In that time, nearly a million gallons of heavy crude oil spilled into the Kalamazoo River in what federal investigators later called a “complete breakdown of safety.” The spill killed fish, birds, turtles, and other animals, and devastated thousands of acres of rivers and forest. While otters have begun to return to the river, environmental devastation remains more than a decade after the spill.
The Line 6b disaster was a wake-up call for the Bay Mills Indian Community and other Anishinabek peoples living around the Great Lakes. Before the spill, many community members were unaware that their neighborhoods even had pipelines, which isn’t surprising since most were installed in the 1950s. The rusting, aging infrastructure poses a serious threat of another catastrophic oil spill, particularly Enbridge’s Line 5 pipeline, a 70-year-old dinosaur lurking in the Great Lakes.
Tribes and First Nations in the United States and Canada have long demanded that Enbridge shut down Line 5, which runs through their traditional territories. The pipeline poses many risks. The fossil fuel emissions contribute to climate change and the looming possibility of a catastrophic oil spill could devastate the natural environment; both risks threaten the human rights of surrounding Indigenous communities. In April, the United Nations Permanent Forum on Indigenous Issues agreed that the pipeline “presents a real and credible threat” to the Great Lakes, called on Canada to “re-examine its support” for Line 5, and recommended that both the United States and Canada decommission the pipeline.
Instead of listening to affected populations, Enbridge and the Canadian government have taken steps to ensure the pipeline will operate for decades to come. Ottawa is acting as a champion for big oil, not Indigenous communities or the climate. Canada and the United States have an obligation to respect and protect human rights. This includes respecting and protecting the right of affected Indigenous Peoples to free, prior and informed consent (FPIC). Heeding those calls would not only be consistent with States’ duties to curb climate change and its human rights impacts; it would also protect thousands of people and the environment from the likely risk of another catastrophic oil spill.
What is Line 5, and Why is it Risky?
Enbridge’s Line 5 was built in the 1950s and traverses traditional Anishinaabe territories surrounding the Great Lakes in the United States and Canada. Each day, it transports up to 23 million gallons of crude oil and gas, primarily from Western Canada to Ontario.
Expert studies show, and a U.S. court has recognized, that Line 5 presents a real risk of a catastrophic oil spill, which could contaminate 375,000 acres of land and wetlands, 450 lakes, including Lakes Superior, Michigan, and Huron, and thousands of kilometers of shorelines and rivers in the United States and Canada. For Anishinaabe people, who see the land, water, animals, and plants as extensions of their community, a catastrophic oil spill and the consequences of climate change threaten to destroy their homelands. Indigenous communities are sounding the alarm, but everyone should be concerned: the Great Lakes hold 20 percent of the world’s fresh surface water and 80 percent of the fresh water in North America as access to water grows increasingly scarce.
The pipeline lies exposed in the Straits of Mackinac, where it is vulnerable to strikes from the anchors of passing boats and other hazards. The Straits, which connect Lakes Huron and Michigan and have strong, shifting currents, are the “worst possible place” for an oil spill. A spill at the Straits would contaminate two of the largest sources of freshwater in the world. As former Michigan Attorney General Bill Schuette said, under current safety regulations “the Straits Pipelines would not be built today.” Several near misses in the last decade have shown just how dangerous this stretch of the pipeline is: Enbridge’s own vessels have struck the pipeline multiple times
While the exposed stretch of the pipeline in the Straits has received the most media attention, the pipeline’s entire length is vulnerable to corrosion, erosion, and other environmental changes due to its age. In Wisconsin, a U.S. federal court has recognized the erosion of the Bad River exposes the pipeline to “an actual risk of a significant rupture,” which could have a “catastrophic” impact on Lake Superior. Less than eleven feet separates the pipeline and the river. In June, the court held the pipeline threatens a public nuisance to the Bad River and Lake Superior and ordered Enbridge to adopt an emergency shutdown and purge plan in case of further erosion.
Enbridge’s documented violations of the safety protocols add to the other risks. While Enbridge publicly denies these risks, it is proposing to replace the pipeline through a tunnel beneath the Straits and along the borders of the Bad River Reservation. However, this proposal has not received the consent of Indigenous Peoples, and raises its own environmental concerns.
Ultimately, a catastrophic rupture could occur at multiple points in the aging pipeline; playing whack-a-mole by replacing some stretches won’t fix that. And the pipeline exacerbates the climate crisis: extending the life of an aging oil pipeline further locks in dependency on fossil fuels. The best solution – the only solution – is to decommission the pipeline.
Efforts to Shut Down the Pipeline
Over the last decade, Tribes and First Nations on both sides of the U.S.-Canada border have demanded that Enbridge shut down Line 5. All of the federally recognized Tribes in Michigan and Wisconsin and the Anishinabek Nation, which represents 39 Anishinabek Tribes in Canada, have issued formal statements banishing Line 5 from their territories and called for its decommissioning. Representatives from 51 Tribal and First Nations in Canada and the U.S. also submitted a report to the U.N. Human Rights Council for Canada’s upcoming Universal Periodic Review outlining the ways in which Canada is failing to meet its human rights obligations in light of its response to Line 5. In April, a coalition of Anishinaabe leaders and environmental advocates – including some of the authors of this article – traveled to the U.N. Permanent Forum on Indigenous Issues to call on both countries to uphold their human rights obligations and decommission the pipeline.
In addition, the Bad River Band in Wisconsin refused to renew and Michigan Governor Gretchen Whitmer terminated Enbridge’s easements to operate on their land – including directly through the Bad River Band’s reservation. The Band and Michigan have sued Enbridge in U.S. federal and state court. A federal court found that Enbridge is trespassing on the Band’s Reservation, and ordered Enbridge to pay the Band a portion of its revenues and remove the pipeline from the Reservation by 2026. While this was a partial victory for the Band, its attorney Erick Arnold expressed concern that the damages were not enough to prevent other oil companies from trespassing on Tribal land and said: “the three-year timeline leaves the Bad River vulnerable to catastrophe, and there is no warrant for allowing Enbridge’s trespass to continue for that long.” Enbridge has filed an appeal to this decision, and litigation regarding the Michigan easement is ongoing.
The Canadian Government is Backing Big Oil, Not Indigenous Communities, While the U.S. Remains Silent
Despite all this, the Trudeau administration is advocating for Line 5’s continued operation. Canada has pursued diplomatic interventions with U.S. officials. In 2021, Canada created a Special Parliamentary Committee to study the pipeline. Based on testimony primarily from industry or government officials working on natural resources or energy, and without consideration of Canada’s human rights obligations, environmental impacts, or the risks of climate change, the Committee recommended that Ottawa act to ensure the pipeline “operate[s] without interruption.”
Following those recommendations, Canada has twice invoked its 1977 Transit Pipeline Treaty with the United States in response to the ongoing U.S. litigation. The Treaty prohibits interference with pipelines that carry hydrocarbons between Canada and the United States – but it contains an explicit carveout for non-discriminatory environmental and safety regulations.
By invoking the Treaty, which Canada had never used before, the Trudeau administration initiated closed-door negotiations between the two countries. Biden campaigned on promises to protect the environment and promote Indigenous sovereignty, but his administration has remained tight-lipped about its stance on the negotiations, even after Indigenous leaders asked for U.S. support.
These negotiations, and a potential binding arbitration, could determine the fate of the pipeline. Indeed, Canada has filed submissions in the Michigan litigation arguing that the Michigan government cannot shut the pipeline down while the negotiations are ongoing. Canada also recently issued a statement in connection with the emergency injunction proceedings in Wisconsin reiterating its support for the continued operations of the pipeline, despite the continued violation of the Bad River Band’s sovereignty.
When invoking the treaty, Canada stressed “the importance of fully respecting and implementing the international agreements that are in place between our two countries.” Yet in supporting Line 5, Canada is disregarding its international human rights treaties, bilateral treaties that protect the Great Lakes, and its treaties with First Nations that enshrine their rights to fish and hunt. Canada must interpret the pipeline treaty harmoniously with its other treaty obligations (see Vienna Convention on the Law of Treaties (art. 31(3)(c)). The U.N. Committee on Economic, Social, and Cultural Rights (CESCR) has affirmed that States cannot use their investment treaties as a justification to violate human rights, and has highlighted this as an area of concern for Canada. Canada should reconsider its use of the Pipeline Treaty and cannot use the pipeline treaty in a manner that disregards and enables violations of its human rights obligations.
Canada’s Actions Violate its Human Rights Obligations
Canada prides itself on being a human rights champion, but its record in the context of Line 5 undermines its human rights obligations. As a signatory to seven U.N. human rights treaties, Canada must respect and protect those rights. Canada’s conduct in support of Line 5 fails to respect and protect the affected Indigenous communities’ rights including the rights to FPIC and participation in decisions affecting their rights; their rights to a healthy environment, life, culture, and health; and fails to mitigate to the threat of climate change, which adversely affects the full range of human rights.
The obligation to respect means Canada must refrain from conduct that causes or contributes to reasonably foreseeable harms to human rights enshrined in these treaties. Canada must respect the rights of Indigenous communities in Canada and the U.S. directly affected by Line 5, and to whom Line 5 poses a foreseeable threat. By intervening in support of Enbridge and advocating for the continued operations of the pipeline, Canada has done the opposite – violating community members’ human rights.
Canada’s duty to protect human rights also requires it to take measures, such as adopting regulations, to prevent businesses under its jurisdiction and control from threatening human rights in Canada and abroad. For years, multiple U.N. Treaty Bodies have rebuked Canada for failing to fulfill this obligation.
Indigenous Communities’ Rights to Participation and FPIC
Line 5 carries massive implications for Indigenous sovereignty – the right of Indigenous communities to decide their futures and protect themselves, their resources, livelihoods, and culture. Numerous instruments in international human rights law provide Indigenous groups with the right to FPIC, the right to withhold or revoke their consent for extractive industry projects on their traditional territories or that have a significant, direct impact on their lives, land, territories, or resources. Canada has an obligation to respect and protect the right to FPIC.
Canada’s actions are violating the FPIC rights of affected Indigenous groups. As outlined above, affected Indigenous communities have spoken – they do not consent to the continued operations of Line 5 and want to shut it down. Despite this strong opposition, Canada is protecting Line 5. Canada has also failed to properly regulate Enbridge’s conduct to ensure it doesn’t operate without FPIC.
Indigenous peoples also have the related right to participate in government decisions that may affect their rights. The Committee on the Elimination of Racial Discrimination has, on more than one occasion, faulted Canada for failing to ensure the proper participation of Indigenous communities in policies and laws that affect them.
But Canada has not learned its lesson. The Parliamentary Committee put forward its recommendations to protect Line 5 without hearing from affected Indigenous communities, which undermines the report’s findings. It also means Canada violated those communities’ right to participate in decisions that affect them.
The Rights to Life, Culture, and a Healthy, Clean, and Safe Environment
Canada was among the 161 states at the U.N. General Assembly that voted to recognize “the right to a clean, healthy, and sustainable environment.” While the General Assembly resolution is non-binding, it is based on and derived from numerous other rights, which are enshrined in binding international treaties to which Canada is a party. It also reflects existing protections of the right to a healthy environment included in the national constitutions of numerous countries.
For Anishinaabe communities, the right to a healthy environment is entwined with their right to culture, a right protected in various international treaties, such as the International Covenant for Civil and Political Rights (art. 27), ICESCR (art. 15(1)), and United Nations Declaration on the Rights of Indigenous Peoples (arts. 11, 12, 31). The right to culture, as the Human Rights Committee (HRC) has found, allows Indigenous Peoples to “enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity.”
Canada must refrain from causing or contributing to harms to the environment that cause reasonably foreseeable infringements of affected communities’ rights to life, healthy environment, health, and culture. Canada must also protect people and the environment from harm and pollution caused by private actors – including by properly regulating corporations. As the HRC explained in the Poma Poma v. Peru case, countries must ensure that “economic development [does] not undermine” protected rights.
Enbridge’s continued operation of Line 5 and proposed construction of new stretches of pipeline poses foreseeable risks of an oil spill, that would pollute drinking water and irreversibly harm the land, animals, and plants and completely destroy “a sacred cultural landscape central to Anishinaabe life.” By seeking to ensure the pipeline’s continued operation and failing to regulate Enbridge to ensure it does not cause life-threatening pollution, Canada is violating its obligation to respect and protect impacted communities’ rights to healthy environment, life, and culture.
The Canadian Government Should Phase Out Fossil Fuels, Not Entrench Dependency on Them
Climate change is a human rights crisis. The U.N. General Assembly recognized that it constitutes one “of the most pressing and serious threats to the ability of present and future generations to effectively enjoy all human rights.”
Canada acknowledges that fossil fuels are the primary drivers of climate change. The latest report from the Intergovernmental Panel on Climate Change (IPCC), a U.N. body that “assesses the science related to climate change” and produces reports that inform climate negotiations and policy, the U.N. Secretary General, Human Rights Treaty Bodies, and the U.N. Special Rapporteur on the Protection of Human Rights in the Context of Climate Change all affirm that urgently phasing out fossil fuels is needed to effectively mitigate climate change and prevent foreseeable human rights harm.
Canada’s support for Line 5 is inconsistent with its obligations to prevent and mitigate the effects of climate change by phasing out fossil fuels. Locking in a fossil fuel project for decades to come is the opposite of the action needed today. States need to stop building new fossil fuel infrastructure, and instead retire aging fossil fuel infrastructure like Line 5 that will become stranded assets.
What’s next for Line 5?
Unfortunately, support for Enbridge is just the latest in a long history of Ottawa backing Canadian multinational companies, particularly those in the extractive industry, with little regard for human rights or FPIC. It is high time for Canada to put human rights over corporate interests, and to heed the call echoed by the U.N. Permanent Forum on Indigenous Issues to re-examine its support for Enbridge’s Line 5, comply with its human rights obligations, and decommission the pipeline.
Line 5 is a ticking time bomb. The question is when – not if – an oil spill will happen. Community members will not stop fighting. Their lives, homelands, and communities are on the line.
Published on July 24, 2023
