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Sean Kavanagh/ CBC

“Free, Prior and Informed Consent (FPIC) is one of the most important principles that Indigenous Peoples believe can protect their right to participation. It is embedded in the right to self-determination. The duty of States to obtain Indigenous Peoples’ FPIC entitles Indigenous people to effectively determine the outcome of decision-making that affects them, not merely a right to be involved.” -UN Expert Mechanism on the Rights of Indigenous Peoples

Late in August, the Fond du Lac Band of Lake Superior Chippewa signed an agreement with Enbridge, Inc., a publicly traded energy corporation in Canada, to approve a new corridor for Enbridge’s proposed Line 3 in northern Minnesota. That’s the seventh pipeline Enbridge will have in the state, six of which already cross the Fond du Lac Reservation. Enbridge was pleased with the agreement, noting in the press release:

“Today, Enbridge and the Fond du Lac Band of Lake Superior Chippewa signed a mutually beneficial agreement that assures construction of the Line 3 Replacement Project through the reservation, while protecting vital natural and cultural resources for tribal members. The agreement provides for a new 20-year right-of-way term for Line 3 Replacement and Enbridge’s five other existing pipelines on the Fond du Lac Reservation... Specific terms are confidential.”

In the meantime, the Fond du Lac, Red Lake, Mille Lacs and White Earth bands continue to appeal the Public Utilities Commission’s environmental impact statement, and the PUC process. Tribal members and Water Protectors face arrest, and continue to oppose the proposed Line 3 project, citing not only the chaos of climate change and the threat to Minnesota’s water, but also asking the question, “Who gets to decide the energy infrastructure of northern Minnesota?”

Enbridge’s pipelines in the north will require the equivalent of two nuclear power plants to push that oil through the pumping stations, power which could be used for households and small businesses. In addition to greenhouse gas emissions resulting from operation of the project, it would also allow up to an additional 525,000 bpd of mostly tar sands crude oil to be extracted and burned.  Dr. Abraham from the College of St. Thomas estimates that at just its initial capacity, the new Line 3 would carry 170 billion kilograms of carbon dioxide each year, which is equivalent to the emissions from approximately 50 coal-fired power plants. This means that if Line 3 is operated at a capacity of 915,000 bpd, it would carry over 200 billion kilograms of carbon dioxide each year, or roughly the equivalent emissions produced by 58 coal-fired power plants. That’s not acceptable or smart energy policy as the planet heats up from carbon.

With the unanimous PUC decision in June, the Fond du Lac band as well as the rest of the Anishinaabe are now forced into a “Sophies Choice moment” – deciding which ecosystem and which lakes to sacrifice for Enbridge. Facing a pipeline directly across the Big Sandy Lake Flowage, the commission -- in a rogue move -- pushed the Fond du Lac band to decide which of two alternative routes to approve, rather than sacrifice Big Sandy, which is a sacred historical site.  While the commissioners publicly said that they felt like Enbridge had “put a gun to their head”, this was certainly a gun to the head of the Anishinaabe.

Fond du Lac had and has significant leverage with Enbridge on this project, given how much Enbridge claims it needs this new line. But their agreement raises many questions that the state and other tribes should be asking. The terms of the agreement are sealed, but there are many who wonder why Fond du Lac did not order a complete review of the new route, prior to agreement. Still, others wonder what provisions for clean-up, decommissioning, liability, and bonding protection the tribal government and the wild rice, are provided? Are there any planned reductions of oil moving through the pipes as a part of the agreement? The fact is that the Enbridge-Fond du Lac agreement impacts all tribes, and not simply Fond du Lac.

The PUC approved the Certificate of Need and Route Permit with conditions for the Line 3 Replacement Project and gave the Fond du Lac Band and Enbridge just 60 days to negotiate the final route through parts of St. Louis and Carlton Counties. Sixty days is a very short time between strawberry and wild rice harvests. It’s also an unethical public policy matter as it relates to the proper consultation or consent from the Anishinaabe.

The state is mandated to comply with government-to-government interactions with Minnesota’s tribes contained in Executive Order 13-10. But, frankly, the state process in consultation has been a joke. Despite five tribes intervening in opposition to the Line -- and clear opposition from not only tribal governments, but state government agencies like the Department of Commerce and select judges -- the PUC forced a pipeline decision onto the Fond du Lac Band. That is not consultation.

In this millennium, however, mere consultation is not enough, especially the coercive style of the state making the Fond du Lac band decide what to sacrifice for Enbridge’s seventh pipeline.  Free prior and Informed consent is the international standard as adopted under the UN Declaration on the Rights of Indigenous Peoples.  This is the same standard that should apply in Minnesota.

For now, the new agreement stands. Many are very sad with this day, and none more so than the Fond du Lac tribal members.  As for the “confidential” aspects of this project “agreement,” made under extreme duress, it’s clear that Enbridge will need an exit plan, and address decommissioning and cleaning up the old pipeline. We are hopeful that Fond du Lac has outlined that, as we will all be impacted. But we also wonder if this agreement should have the approval of the Minnesota Chippewa Tribe, as it affects all of the bands?

In the meantime, there remain legal appeals and a long list of permits not yet approved for Line 3, while a similar pipeline case and federal ruling in Canada over the Trans Mountain Pipeline expansion bears watching. The day before the announced pact between Enbridge and Fond du Lac, a  Federal Court of Appeal in Canada ruled last Thursday that the National Energy Board failed to properly consult First Nations that lie along the project’s 715-mile route.  The decision by the Canadian Appeals Court rested largely on a lack of consultation with opposing First Nation tribes. It is not clear that this pipeline will be built at all.

Author speaker and First Nations leader, Winona LaDuke, is the co-founder and Executive Director of Honor The Earth, a Minnesota-based environmental justice organization led by indigenous women, dedicated to protecting indigenous homelands and resources, and empowering communities with energy independence through renewables. She was also the 2000 running mate of Green Party candidate Ralph Nader.  www.honorearth.org