White Earth Appeals Court dismisses Right of Manoomin suit; Canada tries to sell Indigenous groups the Trans Mountain Pipeline: Buyer Beware!

In this post:

• White Earth Court of Appeals dismisses Rights of Manoomin (wild rice) suit against DNR
• Canadian government’s effort to get First Nations to buy financially troubled Trans Mountain pipeline seems cynical

White Earth Court dismisses Rights of Manoomin (wild rice) suit

The White Earth Court of Appeals on March 10 rejected a lawsuit brought on behalf of Manoomin (wild rice) that sought damages from the state of Minnesota for permitting Enbridge to build its Line 3 tar sands pipeline in ways that damaged the waters and the Anishinaabe’s sacred grain.

The White Earth Band of Ojibwe, its Reservation Business Committee members, and others brought the suit on behalf of Manoomin, according to a post in Turtle Talk blog. It filed the case against the Minnesota Department of Natural Resources (DNR) for issuing a massive dewatering permit for Enbridge Line 3.

The case is an example of the much larger Rights of Nature Movement happening world wide.

Line 3 passed through nearly 80 miles of wetlands, something that should have stopped the project from ever being built. Enbridge needed to pump groundwater out so workers could dig a trench and lay pipeline in a relatively dry area. That required a DNR permit.

Wild rice harvest on Mud Lake. (Photo: U.S. Army Corps of Engineers.)

In this case, those arguing on behalf of Manoomin said:

• Manoomin “possesses inherent rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration.”
• The DNR increased Enbridge’s 510 million gallon dewatering permit to 5 billion gallons, “abruptly, unilaterally and without formal notice to tribal leaders (quasi-secretly), and without Chippewa consent.”
• The DNR’s dewatering permit threatened wild rice and violated the Treaty of 1855.

The White Earth Court of Appeals said it was limited by legal precedent.

This Court is sympathetic to the White Earth Band’s efforts to expand the jurisdiction of its Tribal Court, to enforce Treaty rights, and to protect natural resources important to the White Earth Band and others. But the Tribe and this Court are constrained by long-standing jurisdictional principles in federal case law. The efforts to expand jurisdiction by Band legislation and the use of Tribal Court to address matters such as raised in this case are commendable and should continue as an exercise of inherent tribal sovereignty.

However, such actions are not exercised in a vacuum. Rather, such exercises of sovereignty must take into account the longstanding legal and judicial framework, unless the Band and other tribes pursue federal legislation to address such matters.

White Earth Court of Appeals

See the Turtle Talk post for more details and a link to the decision.

Also see earlier Healing Minnesota Stories posts: Anishinaabe ‘Rights of Manoomin’ Laws Create Legal Basis to Protect Sacred Wild Rice and Manoomin (wild rice) is suing the DNR in White Earth Tribal Court.

Canadian government’s effort to get First Nations to buy financially troubled Trans Mountain pipeline seems cynical

The Union of British Columbia Indian Chiefs issued an Open Letter to First Nation leaders warning First Nations and Indigenous organizations against investing in the Trans Mountain Pipeline, as the project has many financial red flags.

We are concerned that the government is using TMX [Trans Mountain] as another divide and conquer project and is not providing a full and accurate account of the financial future of the project. Your due diligence must include an assessment of the commercial viability of TMX.

Union of British Columbia Indian Chiefs

An existing Trans Mountain pipeline runs 710 miles from Alberta’s tar sands region to the British Columbia ports, just north of Washington State. It carries 300,000 barrels of crude oil daily. The new proposal would add another line, bringing capacity to nearly 900,000 barrels daily.

Trans Mountain Pipeline route. Image: Canadian government

Trans Mountain’s original owner, Kinder Morgan, was ready to scuttle the project in the face of strong public opposition and court losses. In 2018, the Canadian government stepped in and bought both the existing pipeline and the planned expansion in 2018, citing economic development benefits.

In February, when the government announced the project’s cost increases, it also said it would “release a plan to facilitate Indigenous people’s economic participation in the project later this year …” Bloomberg reported. “Each of the prospective Indigenous buyers has its own plans for financing the purchase, running the pipeline, and, crucially, deciding who should share in the spoils.”

According to the Open Letter from the Union of British Columbia Indian Chiefs, there isn’t enough information for anyone to make a sound decision.

Indigenous groups and the Canadian public have been kept in the dark about TMX’s economic prospects. Most of the economic analysis is out of date, and the lack of real data, including construction cost overruns, accurate cash flow projections and clarity on timing makes the due diligence needed for this multi-billion dollar project impossible.

Union of British Columbia Indian Chiefs

When Canada bought Trans Mountain, the expansion’s price tag was around $7.4 billion. It’s ballooned to $21.4 billion.

Bloomberg’s story had the jarring worthy headline: For Sale: Trudeau’s Oil Pipeline. Wanted: Indigenous Buyers, with subhead: A sale of Trans Mountain could make restitution for Canada’s colonial past—and turn some of the oil industry’s staunchest opponents into partners.

Here’s one cringe-worthy passage:

Canada is in the midst of a reckoning with its colonial past. Last year the bodies of more than 200 Indigenous children were found on the grounds of one of the 139 residential schools the government ran, often with Christian churches, until the late 1990s as part of a policy of forced assimilation. … The legacy of racist policies—of which forced schooling and the family separation it entailed were only two—has left many Indigenous people mired in poverty, and Trans Mountain represents a chance to give some communities a cut of the resource wealth that’s made Canada rich. It could also help to neutralize what looks ever more like a political problem for Trudeau, as the cost of finishing the pipeline continues to soar …

Bloomberg

While the story quotes multiple sources and perspectives, this particular passage is deeply disturbing. That’s using polite words. It’s wrong to equate a pipeline business proposal with the moral reckoning for murdered First Nations children. It’s wrong to assert Trans Mountain as some kind of First Nations savior, offering Indigenous groups a “cut of the resources” when it’s not at all clear this project will be a money maker.

That said, the article provides helpful background on efforts to circumvent Indigenous opposition to these kinds of projects through share-the-wealth proposals, and information on those Indigenous groups seeking to buy the pipeline.

Trans Mountain’s spiraling costs are due to natural disasters and related construction delays, and rising debt, the CBC reported.

Environmental protection also added costs.

The need to protect culturally and environmentally sensitive areas added $2.8 billion to the project’s cost, Trans Mountain said.

The company said more money is needed to add “state-of-the-art leak detection” equipment and re-route the pipeline away from an aquifer in B.C.’s Coldwater Valley. It also said its crews have gone to great lengths to protect rare species in the construction zone — removing rare moss by hand and relocating 100 anthills, 150,000 frogs and various fish, snails and snakes.

CBC

Would that Minnesota have required as much on Enbridge Line 3.