Black Snake Chronicles: Police, Courts and Victories

This past month was marked by new stages in pipeline battles, in Canada, Minnesota, and North Dakota.  On August 29, twenty-six people were cited in Bemidji, Minnesota after stopping traffic for four hours, facing Enbridge’s Line 3, the largest tar sands pipeline proposal in North America. Ojibwe women were joined with the Board Chair of the Sierra Club, Lauron Blackford, Nellis Kennedy ( Sierra Club’s Equity and Inclusion Director) and a number of Minnesota church leaders.  As well, Doug Rasch, a landowner in Clearwater County who faces eminent domain of his land by Enbridge was cited and charged with disorderly conduct. Those cited talked about climate urgency, man camps and the need to protect Minnesotans not Canadian corporations. These first set of citations, signals what will likely be a brutal winter in Minnesota if Enbridge is allowed to move forward.

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Dawn Goodwin awaits citation during Bemidji action on August 29th 

Militarizing Minnesota is a deep concern, as this week marks the third anniversary of the militarization of the Day of the Dogs on Standing Rock.  In Minnesota, Enbridge has agreed to pay for the costs of militarizing the north.    On June 28, 2018, when the PUC approved the permits for Line 3, they added a condition requiring Enbridge to cover all the costs of responding to protests during construction.  Enbridge happily agreed. This means that once the permit is finalized and issued (perhaps next month), Minnesota law enforcement will have a bottomless tab open with a Canadian multinational corporation to cover any costs related to quelling resistance to the pipeline.  Information received through Data Practices Act from the Minnesota Bureau of Criminal Apprehension indicates that the Beltrami County Sheriff's Department is the agency coordinating efforts by Enbridge and at least 8 law enforcement agencies, from all levels of jurisdiction, to share information about water protectors.  

Day of the Dogs Remembered:

On September 4, 2016, Dakota Access security personnel used attack dogs on peaceful water protectors after the company had bulldozed sacred sites and was met with an outcry- led by women. That was just the beginning. Over the course of the weeks ahead, 1287 highly militarized police armed with Mine Resistant Armored Personnel Carriers ( MRAP), Long Range Acoustic Devices ( LRAD), rubber bullets, mace, water cannons, bean bag guns, razor wire and the full force of North Dakota and National Guard Law Enforcement injured, tormented, taunted, and sought to teach lessons to hundreds of Water Protectors.  Some 840 people were arrested, most of them were strip and cavity searched, many were placed in dog kennels with numbers on their arms, in some of many attempts to humiliate and intimidate the Protectors. On Backwater Bridge, 21-year-old New York resident Sophia Wilansky’s arm was blown apart by a concussion grenade. Her father Wayne told reporters, “ The police did not do this by accident - it was an intentional act of throwing it directly at her. Additionally, police were shooting people in the face and groin, intending to do the most possible damage…”

Tigerswan, a paramilitary security force was brought in, directly from the middle east to fan fires, and many people’s lives have been changed, forever.  A $38 million military bill still haunts the state, which continues to seek reimbursement. The company which owned one-third of the Dakota Access pipeline is Enbridge.  “We remember”, says Dawn Goodwin, a veteran of both Standing Rock and the Enbridge Line 3 Battle.

Trans Mountain Sinks

 

On August 30, the Canadian  Federal Court of Appeals ruled that the government's review of the controversial Trans Mountain Pipeline, a project of Kinder Morgan, did not adequately consult with First Nations before greenlighting the project. The ruling comes after ongoing and mass opposition with hundreds of arrests.  The Tsleil-Waututh, Squamish and Musqueam First Nations have fought the project in the Court system and committed to fighting the pipeline with every means necessary—have said they never consented to the pipeline passing through their lands and amid vital waterways.

The ruling puts a halt to the Trans Mountain Project, originally proposed by Kinder Morgan.  According to Canada’s Financial Post. “The decision means the National Energy Board will have to redo its review of Kinder Morgan Canada's project. In a written decision, the court says the energy board's review was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion. 

The court also concludes that the federal government failed in its duty to engage in meaningful consultations with First Nations before giving the green light to the project. That decision means the government will have to redo part of its consultations with Indigenous groups,” the Financial Post reports. "This is the consequence of the unholy alliance between the federal government and corporations taking shortcuts through consultation," declared Grand Chief Stewart Phillip of the Musqueam Nation. "My faith in the judicial system is somewhat restored today."

 

"This is a great victory for Indigenous communities everywhere fighting against destructive projects being imposed upon their territories," said Patrick McCully, climate and energy program director at Rainforest Action Network, after the ruling. "It signals that governments, corporations, and funders must all respect Indigenous Peoples' right to Free, Prior, and Informed Consent."

In June, amidst deep criticism, Prime Minister Justin Trudeau purchased the pipeline from Texas-based Kinder Morgan. Although the ink had not yet sealed the deal,  company shareholders officially approved the sale barely an hour after the Federal Court of Appeals ruling was made public.

"The Liberal government has bought a $7.4 billion (and rising) pipeline expansion project that will now be forced into years of further review and delay," said Andrea Harden-Donahue, energy and climate justice campaigner with the Council of Canadians. " It is time for real political leadership that truly respects Indigenous rights, does not bow to the interests of Big Oil, and prioritizes all of our interests in setting us on a path to a sustainable economy and environment…” It turns out very few people want a tar sands pipeline.

The project’s delay will be expensive for the Canadian government, desperately searching for a way to get tar sands oil to Chinese markets. In the meantime, it’s clear that Free, Prior and Informed Consent, let alone consultation was not undertaken.

Forced Consent- Gun to the Head Diplomacy

Back in Minnesota, questions about consultation and consent remain on the Enbridge Line 3 pipeline. Appeals to the EIS were filed this past month by White Earth, Leech Lake, Fond du Lac, and Mille Lacs band, as well as Honor the Earth and the Park Rapids-based Friends of the Headwaters.

Since the Public Utilities Commission forced Fond du Lac to make a decision on the new route, it’s been clear that consultation with a tribal government is a sham.  Free Prior and Informed Consent is the international standard, according to the UNDRIP (Declaration on the rights of Indigenous Peoples) and Minnesota certainly has done none of that.  In Minnesota, after years of hearings, every agency recommending against issuing permits for the pipeline, and every tribe expressing clear opposition, it is clear that the system has not yet worked. “ We are waiting for the system to work here, “ Dawn Goodwin of Rice Lake tells us. “Our treaties must be respected, our rice must be respected.”

On August 30 Enbridge announced a route approved by the Fond du Lac band, without hearings, or a public review. The “ confidential agreement” is for twenty years, and includes provisions where Fond du Lac will ensure the security of the pipeline. Assuming this means that tribal police will be used to suppress Water Protectors, many Anishinaabe are deeply concerned.

Iron Eyes, Felony Charges, and Necessity Defense

Finally, in court cases stemming from the Dakota Access militarization; Chase Iron Eyes reached a plea bargain agreement in the Last Child Camp. Facing felony riot charges, Iron Eyes, an attorney (represented in this case by Danny Sheehan, a lawyer for Karen Silkwood’s wrongful death case in the Kerr McGee Uranium Mill case of the l970s amongst many others) had pushed for the release of evidence and the use of the “ necessity defense”. Iron Eyes argued that the crime he committed was necessary to prevent a larger crime.  Iron Eyes was charged with a felony, for inciting a riot and misdemeanor criminal trespass related to protest activities. Under conditions of the plea agreement, prosecutors have moved to amend felony inciting a riot to misdemeanor disorderly conduct, as well as dismissed misdemeanor criminal trespass.

As the legal process moves forward in Canada, North Dakota and Minnesota, it is not clear what the outcome will be. What is clear, is that it will be costly both to civil society in Minnesota, if Line 3 proceeds, and if the Trans Mountain legal decision is an indicator, it will be very costly to Enbridge, as the Anishinaabe stand their ground in the courts and on the streets.

 

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