“We commit to working with Indigenous communities in a manner that recognizes and respects those legal and constitutional rights and the traditional lands and resources to which they apply.” ­— Enbridge Indigenous Peoples Policy, May 2018

On October 8, White Earth tribal legal counsel and police issued a cease-and-desist order against Enbridge, a Canadian multinational energy transportation company, for conducting an illegal training within the borders of the White Earth Reservation. Tribal resolutions have barred Enbridge from conducting business on the northwestern Minnesota reservation without approval of the Tribal Historic Preservation Officer and Tribal officials.

Now Enbridge, seeing more and more pressure to complete a highly contested pipeline, seems to be taking off the gloves and going on the offense against tribes. With rising costs in tar sands oil ($82 a barrel, compared to $43 in the Permian Basin) and more pressure on the company to perform, Enbridge is hopeful that it can secure a swifter archeological assessment for a newly proposed route that has not been fully reviewed.

To accommodate the part of the review involving environmental requirements, Enbridge needs to have field archeologists and a cultural review. Between October 7 and October 11, Enbridge attempted to complete a “Para Archeology Certification Training for Cultural Monitors” in Mahnomen, which would create that field team. Most certifications would require years, but Enbridge remains hopeful that it can complete a new assessment in time for a summer push to secure final approvals, as the company projects completion of the project by the end of 2020. The Para Archeology Certification is being conducted by Enbridge and 7 Bison Cultural Consulting without tribal approval.

On October 8, Tribal Attorney Veronica Newcomer issued a cease-and-desist letter to the Enbridge, noting that the White Earth Nation had adopted a White Earth Nation Research Code affirming that any archeological activities would have to be approved by the White Earth tribal historic preservation officer. “You are hereby ordered to cease-and-desist the Enbridge Tribal Cultural Monitor and Survey Technician Training on or around the White Earth reservation,” Newcomer wrote in the formal letter to Enbridge’s attorneys.

Despite the pipeline falling within White Earth jurisdiction, the corporation has been working with Gordon Construction, a tribal contractor, in an attempt to carry out activities on the reservation.

“Our waterways are the lifeblood of the tribe.”

Earlier this fall, Enbridge countersued the Bad River Band of Anishinaabe in Wisconsin, seeking to force the tribe to keep a 60-year-old pipeline on the reservation after the tribe initially sued in federal court demanding that Enbridge remove the pipeline because the easements had expired in 2013. The Bad River Band of Lake Superior had filed a complaint in July claiming that Enbridge’s Line 5 pipeline is “a grave public nuisance” that poses an ever-worsening oil spill threat to the tribe’s northern Wisconsin reservation. The band noted that 11 of the 15 easements crossing the reservation had expired in 2013, and that Enbridge was operating without an easement.

After the federal court filing, Enbridge stated that it would work with the tribe and respect tribal sovereignty. Subsequently, meetings outside of reservation towns, where the pipeline could possibly find a new home, were met with opposition and hostility, particularly in the city of Mellen, Wisconsin. There, the company was told not to return as the citizens of Mellen were opposed to the pipeline.

Finding few friends there, Enbridge responded by asking the courts to force the tribe to comply with a 1992 agreement that the company contends requires the tribe to allow Line 5 to stay in operation until 2043 “on any reservation land in which the band has an interest” and requires the tribe “to provide assistance in obtaining easements across any non-band-owned land as well.” The agreement “certainly did not and does not permit the band to file this litigation seeking to remove the Line from the reservation prior to 2043,” the company argued.

The Bad River Band claimed in its complaint that Enbridge is now illegally operating the pipeline across the tribe’s Bad River Reservation, as easements have indeed expired. The tribe alleged that Enbridge sends as much as 23 million gallons of oil and natural gas through Line 5 across the reservation.

“Enough is enough,” Tribal Chairman Mike Wiggins Jr. said. “Our waterways are the lifeblood of the tribe. They represent our ancestors and our past, and they represent all of our hopes and dreams for the future. We are done playing games in dealing with this perpetual dance with danger.”

With increasing climate change impacts, the region is at risk for more extreme weather and flooding as the planet warms. Indeed, huge storms have laid bare large segments of the pipeline on the Bad River Reservation. The Bad River is a force unto itself, and, not surprisingly, meanders wherever it wants. That’s dangerous for pipelines.

“We are done playing games in dealing with this perpetual dance with danger.”

Take the Yellowstone River in Montana, for example, where exposed pipelines ruptured, leaking a total of about 93,000 gallons of oil. Citing seven similar ruptures across the country in the past three years, the Pipeline and Hazardous Materials Safety Administration, the federal regulator responsible for the safe operation of the country’s energy pipelines, issued an advisory bulletin to pipeline owners earlier this year urging them to enact various safeguards. Enbridge has not put those safeguards into place on Bad River.

The Band’s suit could force the shutdown of the entire pipeline, but the tribe’s sovereign immunity limits any recovery of damages by Enbridge to $800,000, and “that amount would be wholly insufficient to remedy the substantial harm that Enbridge Energy would suffer if it were required to remove Line 5 from the Reservation and reroute it,” Enbridge attorneys state.

“No amount of compensation is worth risking Wenji-Bimaadiziyaang — an Ojibwe word that literally means ‘From where we get life.’ It’s time to end the imminent threat the company is presenting to our people, our rivers, and Gichi-Gami (Lake Superior),” Chairman Mike Wiggins Jr. said. Bad River turned down a $24 million offer from Enbridge this last week. It appears that if a tribe takes money (i.e., says “yes” in consultation), Enbridge will bestow gifts. If “consultation” means “no,” Enbridge will sue the tribe.

Consultation is not the same as consent.

Consultation is not the same as consent. The United Nations Declaration on Indigenous People, signed by the U.S. and Canada calls for “free prior and informed consent.” Simply stated, “no” means “no.” Consent is the standard of this millennium.

As controversies over Lines 3 and 5 continue to grow, the company seems to be taking off the gloves and abandoning its Indigenous Peoples Policy as paltry paper.

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