Plans for Canada-U.S. Line 5 treaty talks are underway

Planning is "well underway" for bilateral treaty talks between Canada and the United States in the dispute over the Line 5 pipeline, with formal negotiations expected to begin "shortly," the federal government says in new court documents.

A proposed motion filed Friday in U.S. district court in Michigan says an initial dispute resolution session, as spelled out in the 1977 pipeline treaty between the two countries, is in the works.

"Planning for a first formal negotiating session under the treaty is well underway, and Canada expects that first session to happen shortly," reads the supplemental brief submitted by Gordon Giffin, the former U.S. ambassador to Canada who is serving as the federal government's American counsel.

"Canada hopes that these negotiations will yield a mutually satisfactory solution as between Canada and the United States regarding the interpretation, application and operation of the 1977 treaty."

Should those negotiations fail, the next stage of the dispute resolution process would be binding international arbitration, the motion says.

"Canada's decision to invoke (the treaty) reflects the importance of this matter to Canada's energy security and economic interests and its relationship with the United States."

Canada opted to formally invoke the 44-year-old treaty last month after talks involving a court-appointed mediator broke down between the state of Michigan and the pipeline's operator, Enbridge Inc.

Michigan Gov. Gretchen Whitmer ordered the cross-border pipeline shut down last November for fear of an environmental disaster in the ecologically sensitive Straits of Mackinac, the waterway where the pipeline crosses the Great Lakes.

The White House has acknowledged that the U.S. Army Corps of Engineers is conducting an environmental assessment on Enbridge's plans to encase the underwater portion of the twin pipeline in a deep, fortified underground tunnel.

But spokeswoman Karine Jean-Pierre was quick to note Tuesday that the process is not an indication that President Joe Biden's administration is looking to shut down the expansion.

"Canada is a close ally and a key partner in our in energy trade as well as efforts to address the climate crisis and protect the environment," Jean-Pierre told the daily White House briefing.

"These negotiations and discussions between the two countries shouldn't be viewed as anything more than that, and certainly not an indicator that the U.S. government is considering shutdown. That is something that we're not going to do."

As to the ongoing operation of the existing pipeline, she added, that's the subject of "litigation between Enbridge and the state of Michigan" and that "we expect the U.S. and Canada to engage constructively on it."

Jean-Pierre would not respond to media reports that Biden, Prime Minister Justin Trudeau and Mexican President Andrés Manuel López Obrador plan to meet in Washington as early as next week, part of a long-standing commitment to rekindle their trilateral tradition of annual in-person meetings.

Officials in the Prime Minister's Office and in diplomatic circles in both Ottawa and Washington also declined to comment.

Lawyers for the state of Michigan did not immediately reply to Canada's request to file its latest motion. A Nov. 4 response to an earlier filing, however, dismisses the Canadian position as "legally unfounded."

They argue that bilateral negotiations under the pipeline treaty ultimately have no bearing on the primary legal question before U.S. District Court Judge Janet Neff: whether the case properly belongs in Federal Court.

Line 5 ferries upwards of 540,000 barrels per day of crude oil and natural gas liquids across the Canada-U.S. border and the Great Lakes by way of a twin line that runs along the lake bed beneath the straits linking Lake Michigan and Lake Huron.

Proponents call it a vital and indispensable source of energy — particularly propane — for several Midwestern states, including Michigan, Ohio and Pennsylvania. They also say it is a key source of feedstock for critical refineries on the northern side of the border, including those that supply jet fuel to some of Canada's busiest airports.

Critics want the line shut down, arguing it's only a matter of time before an anchor strike or technical failure triggers a catastrophic environmental disaster in one of the area's most important watersheds.

They also point to a recent pipeline rupture off the coast of California, believed to be the result of an anchor strike, as an example of the fate that could befall the straits if Line 5's operations continue.

This report by The Canadian Press was first published Nov. 9, 2021.