UNDRIP Drop: How Canada and the United States are Failing to Meet their International Obligations to Tribes

Madison Kavanaugh
Vol. 40 Associate Editor

The United States and Canada endorsed the United Nations Declaration for Rights of Indigenous Peoples (“UNDRIP”) in 2010. Yet, by allowing Enbridge to replace the Line 5 tunnel in the Straits of Mackinac, both states seem to be violating their UNDRIP obligations with regard to tribal self-determination and free, prior and informed consent. The replacement of the pipeline poses severe threats to the tribal nations in Northern Michigan and the Upper Peninsula—possibly impacting their entire economy, as well as the Great Lakes. What is Line 5? Enbridge, a Canadian company, built the Line 5 pipeline in 1953.[1] It runs from Superior, Wisconsin through the Upper Peninsula and northern Michigan ending in Sarnia, Ontario.[2] A significant portion of the pipeline runs through the Great Lakes, including the Straits of Mackinac.[3] The purpose of the pipeline is to transport crude oil from the United States and back to Ontario.[4] When it goes back to Canada, the petroleum is refined and distributed to the Canadian market. The pipeline is 30 inches in diameter, except in the Straits of Mackinac where the pipeline divides into two 25-inch diameter pipelines.[5] Enbridge reports that there has been no degradation, no leakage and that the pipeline is in excellent condition.[6] However, contrary to the company’s assertions, the pipeline has indeed suffered deterioration and at least 29 leaks over the past 60 years.[7] At the beginning of October 2018, Michigan Governor Rick Snyder approved Enbridge’s new tunnel that will replace the current area of Line 5 through the Straits of Mackinac.[8] What are the international obligations for the United States and Canada? On September 13, 2007, the United Nations General Assembly issued the Declaration on the Rights of Indigenous Peoples.[9] Only four states voted against the Declaration–Australia, Canada, New Zealand, and the United States.[10] The United States was active in negotiating UNDRIP but still came out opposing the declaration, because of its self-determination[11] and “free, prior and informed consent” (“FPIC”) provisions[12]. UNDRIP’s provision on self-determination is a mirror of self-determination provisions in the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”).[13] The United States is party to the ICCPR and signatory to the ICESCR, and Canada is a party to both treaties. Neither state has reservations related to Article 1 of the ICCPR or ICESCR.[14] Australia, Canada, and New Zealand endorsed UNDRIP between 2009 and 2010.[15] In December 2010, the United States also withdrew opposition to the Declaration and “fully endorsed” UNDRIP in a press release by the State Department.[16] In May 2018, Canada passed Bill C-262 implementing the provisions of UNDRIP into their domestic policy.[17] Canada’s bill implements the full Declaration into domestic law, unlike the United States. Despite this, the Supreme Court of Canada held in early October 2018 that the Canada’s UNDRIP duty to consult with Indigenous Nations did not apply to the law-making process.[18] The Court’s decision was in a case considering UNDRIP regarding the Mikisew Cree Nation—a tribe located primarily in Alberta.[19] This decision is in tension with the self-determination provisions of UNDRIP, ICCPR, and ICESCR.[20] Further, this decision is in tension with the UNDRIP’s policy of “free, prior and informed consent”. The decision in this case demonstrates that the Canadian Supreme Court does not intend to hold Canada responsible for its international obligations and is likely to continue permitting the government to violate UNDRIP. There is no analogous caselaw in the United States, but the United States’ UNDRIP endorsement statement noted a particular distinction between self-determination for tribal nations and the concept of self-determination in international law. [21] The press release from the State Department further noted that “free, prior and informed consent” was important, but agreement with the tribe in question would not be mandatory.[22] Despite these caveats, the U.S. vowed intent to consult and cooperate in good faith with tribal nations on issues that substantially affect their nations.[23] What does this mean? The majority of the pipeline’s coverage in Michigan is through tribal land.  The possible implications of a leak or burst would be catastrophic to the tribes in Michigan. A state-ordered risk analysis found that a worst-case scenario oil spill could affect over 400 miles of Great Lake shoreline. [24] This is more than a “substantial effect” on tribal nations. Because of the pipelines potential to “substantially affect” tribes, the State of Michigan is required to consult with any tribe that might be affected before authorizing a replacement tunnel.[25] During negotiations with Enbridge, the State of Michigan met with tribes three times to fulfill the State-Tribal Accord.[26] However, the tribes were unsatisfied with the quality of the meetings the State allowed for them, described as merely an “airing of grievances”.[27] Canada and the United States have violated their UNDRIP obligations by failing to respect the Federally Recognized Tribes’ self-determination with regard to Line 5. The five tribes of the Chippewa Ottawa Resource Authority (CORA) are unified in calling for Line 5 to be shut down.[28] The tribes in Northern Michigan have a right to self-determination over the land that Line 5 crosses and the right to “free, prior and informed consent” negotiations with the State. Michigan infringed on their right to self-determination and failed to provide “free, prior and informed consent” by these indigenous peoples when permitting Enbridge to replace the pipeline under the Straits of Mackinac. Canada, too, is proceeding with its plans to approve the pipeline’s placement, despite the overwhelming disapproval of affected tribes.

[1] About Line 5, Enbridge, https://www.enbridge.com/projects-and-infrastructure/public-awareness/line-5-michigan/about-line-5. [2] Id. [3] Id. [4] Id. [5] The Problem, Oil and Water Don’t Mix, https://www.oilandwaterdontmix.org/problem. [6] Enbridge, supra note 1. [7] Sabrina Shankman, Spills on Aging Enbridge Pipeline Have Topped 1 Million Gallons, Report Says, Inside Climate News (Apr. 26, 2017), https://insideclimatenews.org/news/25042017/enbridge-pipeline-mackinac-line-5-michigan-oil-spill-risk. [8] Jonathan Oosting, Snyder, Enbridge Make Deal for Line 5 Replacement Tunnel, The Detroit News (Oct. 3, 2018 1:06 PM), https://www.detroitnews.com/story/news/local/michigan/2018/10/03/line-five-tunnel-deal-enbridge-snyder/1509072002/. [9] Declaration on the Rights of Indigenous Peoples, United Nations Human Rights Office of the High Commissioner, https://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx. [10] Id. [11] G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, art. 3 (Sept. 13, 2007) (“The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”). [12] Id. at art. 28 (“Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”). [13] International Covenant on Civil and Political Rights, art. 1, (Dec. 19, 1966), 6 I.L.M. 368, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, art. 1 (Dec. 16, 1966), 6 I.L.M. 360, 993 U.N.T.S. 3. [14] Chapter IV Human Rights: International Covenant on Civil and Political Rights, United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en#EndDec. [15] Cindy Woods, The Great Sioux Nation V. The “Black Snake”: Native American Rights and The Keystone Xl Pipeline, 22 Buff. Hum. Rts. L. Rev. 67, 88-89 (2015). [16] Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples, U.S. Dep’t of State, https://2009-2017.state.gov/documents/organization/154782.pdf. [17] Woods, supra note 15, at 89. [18] Sarah Morales, Supreme Court of Canada Should Have Recognized UNDRIP in Mikisew Cree Nation v. Canada, Canadian Lawyer (Oct. 29, 2018), https://www.canadianlawyermag.com/author/sarah-morales/supreme-court-of-canada-should-have-recognized-undrip-in-mikisew-cree-nation-v-canada-16410/. [19] Mikisew Cree First Nation, http://mikisewcree.ca/. [20] Status of Ratification Interactive Dashboard, United Nations Human Rights Office of the High Commissioner, http://indicators.ohchr.org/. [21] Supra note 16 (noting a “new and distinct international concept of self-determination specific to indigenous peoples. The Declaration’s call is to promote the development of a concept of self-determination for indigenous peoples that is different from the existing right of self-determination in international law.”). [22] Id. (“In this regard, the United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.”); Woods, supra note 15, at 89 (noting that this caveat strips FPIC of its meaning, putting Tribal rights, sovereignty and cultural heritage in danger). [23] Id. (“The United States intends to continue to consult and cooperate in good faith with federally recognized tribes and, as applicable, Native Hawaiians, on policies that directly and substantially affect them and to improve our cooperation and consultation processes.”). [24] Beth LeBlanc, Study: Line 5 ‘worst-case’ Spill Would Hit 400 Miles of Great Lake Shoreline, The Detroit News (July 19, 2018 11:27 AM), https://www.detroitnews.com/story/news/local/michigan/2018/07/19/study-line-5-worst-case-spill-would-impact-400-miles-shoreline/800191002/; see supra note 24. [25] Andy Balaskovitz, “We were here first”: Tribes say Line 5 pipeline tunnel ignores treaty rights, Energy News (Oct. 8, 2018), https://energynews.us/2018/10/08/midwest/we-were-here-first-tribes-say-line-5-pipeline-tunnel-ignores-treaty-rights/; Mich. Exec. Directive No. 2001-2 (May 22, 2001), https://www.michigan.gov/documents/som/2002_Tribal-State_Accord_195712_7.pdf (Executive Directive affecting a policy of government-to-government discourse to promote the relationship between the state and those 12 tribes. This Executive Directive also recognizes tribal self-determination.). [26] Balaskovitz, supra note 25. [27] Id. (“While the Snyder administration formally met with tribes three times over the past year under a State-Tribal Accord, tribal chairpersons say these consultations were little more than an “airing of grievances” for them.”). [28] Id. The views expressed in this post represent the views of the post’s author only.