Current Problems


Canada’s Use of 1977 Pipeline Treaty to Block Recent U.S. Line 5 Shutdown Order Is Violating Indigenous Rights

November 24, 2023

Michelle Woodhouse
Water Program Manager

Nationtalk: Environmental Defense – Earlier this summer, we celebrated the news that a U.S. judge in Wisconsin had ordered the Canadian oil company, Enbridge Inc., to shut down the section of the Line 5 pipeline that runs through the territory of the Bad River Band of the Lake Superior Chippewa by June 2026. Since 2019, the Tribe has been fighting a legal battle with Enbridge to have the pipeline removed from its territory and watershed. In the ongoing legal battle, Enbridge has been found guilty of trespass on tribal territory since 2013.

In response to the court case, Canada has filed two amicus briefs (legal documents presenting arguments to the court) in the Bad River Band v. Enbridge Line 5 court case, seeking to block the shutdown order by invoking a 1977 pipeline treaty.

Why Line 5 needs to be shut down

The old, deteriorating pipeline poses an imminent and direct threat to the Great Lakes basin, particularly at two high-profile and highly sensitive areas: the Straits of Mackinac, which connect Lake Huron and Lake Michigan, and further upstream at Bad River (also known as Mishkiiziibii/Medicine River), a crucial tributary to Lake Superior.

A spill into the Great Lakes would have devastating impacts on surrounding communities, people, and ecosystems. As a cautionary tale, one needs to look no further than the consequences of Enbridge’s Line 6B failure,  which caused one of the largest inland oil spills in U.S. history and devastated communities.

We cannot afford any more delays in shutting down this dangerous pipeline.

What about the 1977 pipeline treaty?

The 1977 pipeline treaty was drafted between Canada and the United States and was originally pushed by the U.S. to ensure oil could flow from Alaska through Canada, without Canadian provinces interfering or impeding its movement. When initially drafted and signed, Canada and the U.S. failed to include Indigenous Nations in the process, and completely left out any mention of their rights as title holders. 

This little-known treaty remained dormant until the Line 5 legal cases arose. Since then, it has been invoked three times—once in a legal dispute between Michigan State and Enbridge and twice in an ongoing legal dispute between the Bad River Band and Enbridge. Each time Canada has used the treaty to support Enbridge’s continued operation of the Line 5 pipeline. 

However, EarthRights International lawyers argue that Canada is relying on a faulty interpretation of the treaty, asserting that it guarantees uninterrupted transit of oil gas between Canada and the U.S. Article IV of the Pipeline Treaty clearly allows governmental authorities to make decisions about pipelines, and enforce laws that don’t unfairly impede the flow of oil. This includes upholding safety and environmental protections, as long as they do not unfairly block the flow of oil between the two countries.

Canada wants to influence U.S. courts to undo the shutdown order

In its arguments to the court, Canada is urging the U.S. to undo the recent shutdown order, arguing that it would cause grave economic impacts and violate the 1977 pipeline treaty. 

Despite clear violations of Indigenous rights, Canada states in its amicus brief that it is committed to “reconciliation and ensuring full protection for the rights of Indigenous peoples in Canada,”  and that it “respects the rights and interests of Indigenous peoples in the United States. 

Canada could better demonstrate its commitment to reconciliation, by standing with the Indigenous Nations and Tribes calling for a Line 5 closure. This includes Canada working with the United States and Indigenous Nations to implement a planned shutdown.

Tribal Nations, environmental organizations, and human rights legal organizations respond in support of Bad River Band

Environmental organizations and human rights legal organizations submitted an amicus brief, in response to Canada’s, and in support of the Bad River Band. Twenty-eight Tribal Nations also filed their own amicus brief with the Native American Rights Fund, in support of the Wisconsin Judge’s Line 5 shutdown order on Bad River Band territory. 

“No right-of-way means no right to operate on tribal land, just like on any other type of land holding in the United States,” said Bay Mills Indian Community President Whitney Gravelle. “As sovereign governments and landowners, it is the absolute right of every Tribal Nation to expel any entity operating on their lands without consent.”

For over a decade, Anishinaabeg Nations across Michigan and Wisconsin have been voicing their growing concerns about the risk of a Line 5 rupture into the Great Lakes watershed. All 12 Tribes within Michigan have called for its closure, citing the grave risk it poses to the Straits of Mackinac. The Bay Mills Indian Community of the Straits has banished Enbridge from their lands and waters under tribal law. The Bad River Band of the Lake Superior Chippewas has also made it clear that Enbridge does not have consent to operate Line 5 on its tribal territory. 

We need a swift, planned, and permanent closure of Line 5 

One of the main arguments that Canada is using to support Enbridge’s continued operation of the Line 5 pipeline is the “catastrophic” economic impact of a shutdown. However, recent industry expert analysis by PLG Consulting, an industry leader in oil and gas logistics and supply chains, confirmed what we already knew: we can reliably and affordably meet our crude oil and fossil gas energy needs without Line 5.

Bad River Tribal Chairman Mike Wiggins Jr. stated: “Protecting our lands, our ecosystems, our waters, and our people is at the heart and soul of what we want to do for our people in real-time and also all those future generations.”

“The Band appreciates the Court putting an end to Enbridge’s flagrant trespass and disregard for our rights. Tribal sovereignty prevailed over corporate profits. We are under no illusion that Enbridge will do the right thing. We expect them to fight this order with all of their corporate might.”  

It’s past time for Canada to withdraw its use of the 1977 Pipeline Treaty and work with the U.S., Indigenous Nations, and Enbridge to plan and execute an orderly shutdown.

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