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OJIBWE TRIBE HAS ASKED A FEDERAL JUDGE TO REJECT MINNESOTA'S "MERITLESS" RESISTANCE TO AN ENBRIDGE PIPELINE-RELATED LAWSUIT
Law360 By Victoria McKenzie (September 9, 2021, 4:11 PM EDT) -- "An Ojibwe tribe has asked a federal judge to reject Minnesota's "meritless" resistance to an Enbridge Pipeline-related lawsuit in tribal court, saying the state is trying to dodge tribal court jurisdiction."
Tribal Court Case Against Line 3 Pipeline Is First to Invoke “Rights of Nature”
"In what is believed to be the first tribal court case brought under the “rights of nature” legal doctrine, the White Earth Band of Ojibwe in Minnesota has filed an action in its court system on behalf of manoomin (wild rice) to stop billions of gallons of water from being diverted for an oil pipeline."
Pipeline opponents launch lawsuit against Line 3 — and the lead plaintiff is wild rice
“Wild rice is the most important spiritual, central part of our culture. Wild rice is what's making us come out and protect water," Frank Bibeau, a treaty rights attorney for the White Earth First Nation in Minnesota, told As It Happens guest host Nil Köksal.
'Rights of nature’ lawsuits hit a sweet spot
Since 2017, we have been working with the Community Environmental Legal Defense Fund (https://celdf.org/rights/rights-of-nature/) to promote the Rights of Nature in Anishinaabe Akiing. Rights of Nature is the recognition and honoring that natural ecosystems including trees, oceans, animals, mountains have rights just as human beings have rights. Rather than treating nature as property under the law, the time has come to recognize that nature and all our natural communities have the right to exist, maintain and regenerate their vital cycles. And we – the people – have the legal authority and responsibility to enforce these rights on behalf of ecosystems. The ecosystem itself can be named as a rights-bearing subject with standing in a court of law
This movement began with Indigenous communities in Ecuador. These rights were codified in the Ecuadorian constitution in 2008. Soon after, in Bolivia, the World’s People’s Conference on Climate Change and the Rights of Mother Earth drafted the Universal Declaration on the Rights of Mother Earth. Since then, a number of other communities (Indigenous and non-Indigenous) have used this principle to protect their lands.
” Ko au te awa, Ko te awa ko au ~ I am the river and the river is me” expresses the special, spiritual relationship the iwi peoples (Maori) hold with the Whanganui River (New Zealand). In a landmark agreement between the Crown government of New Zealand and the Whanganui River iwi, the Whanganui River was granted legal personhood status. The agreement recognizes the river and all its tributaries as a single entity, Te Awa Tupua, and makes it a legal entity with rights and interests, and the owner of its own river bed. Two guardians, one from the Crown and one from a Whanganui River iwi, are given the role of protecting the river (Global Alliance, September 2012).
An Indian court has recognized Himalayan glaciers, lakes and forests as "legal persons" in an effort to curb environmental destruction, weeks after it granted similar status to the country's two most sacred rivers (PRI, April 2017).
Grant Township in Pennsylvania, USA, has passed a law legalizing direct action to prevent the fracking wastewater injection wells within the township. The law permits non-violent direct action to enforce the provisions of the Grant Township Community Bill of Rights Ordinance which established rights to clean air and water, the right to local community self-government and the rights of Nature. The proposed well would be a violation of those rights.
The Rights of Manoomin
The Rights of Manoomin, modeled after the Rights of Nature, codify the right of manoomin to the right to pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions; the right to be free from patenting; as well as rights to be free from infection, infestation, or drift by any means from genetically engineered organisms, trans-genetic risk seed, or other seeds that have been developed using methods other than traditional plant breeding.
This important ordinance secures manoomin stronger protection from development projects. “Manoomin is sacred to the Anishinaabeg, and it is time the law reflects this,” explains Winona LaDuke, executive director, Honor the Earth. The Community Environmental Legal Defense Fund (CELDF), with its International Center for the Rights of Nature, is assisted Honor the Earth in the development of the draft law. “This is a very important step forward in the Rights of Nature movement. This would be the first law to recognize legal rights of plant species,” explains Mari Margil, CELDF’s associate director.
To date, the 1855 Treaty Authority and the White Earth Band of Ojibwe have passed Rights of Manoomin resolutions.
For the past several years, Honor the Earth has been engaged in a pitched battle against the Enbridge Corporation and their proposed system expansion through the Great Lakes region. This proposed expansion would directly support the expansion of the tar sands industry- the dirtiest fuel on the planet. Over the years, we have had several successes, and we are now gearing up for the final victory. This is a victory that must be won in the unions and in public opinion, as well as in the regulatory arena.
On December 21st, 2018 the Minnesota Department of Commerce (DOC) joined Honor the Earth, Sierra Club, White Earth Band, Red Lake Nation, Youth Climate Intervenors and Friends of the Headwaters in appealing the Certificate of Need decision by the PUC. On February 12th, 2019 the new DOC leadership signaled their intention to continue with the appeal by filing a second motion for reconsideration on the PUC's decision. This appeal joined the already in motion appeal on the state's Environmental Impact Statement on the project. In June of 2019, the court of appeals found the EIS was inadequate because it did not model a spill in the Lake Superior Watershed. A spill in the Lake Superior Watershed would impact the Twin Ports area. With this ruling, the PUC will most likely need to complete a supplemental EIS that will model a spill in the Lake Superior watershed. Despite these outstanding appeals and the dozens of other permits yet to be issued, Enbridge has continued to prepare for the spring construction season. Additional pipes have been observed moving into and around the state. Logging has been observed in several locations, and equipment has been seen moving into position.
Two of the largest permits yet to be granted are the U.S. Army Corps of Engineers (USACE) 404 Water Crossing Permit and the Minnesota Pollution Control Agency's 401 Water Quality Certification. These permits must be obtained before starting work in any wetlands or water crossings. In fact, the 401 Certification is a project-wide certification signifying the project will not negatively impact the water bodies of Minnesota. This project represents several threats to the waters of Minnesota, including climate impacts through induced climate change. We are in the process of preparing comment suggestions for the remaining permit applications and also working with our partners to get an emergency injunction on construction and pre-construction activities.
The communities of the Twin Ports faces a number of other threats from fossil fuel and extractive industries expansion, including the PolyMet Project, a proposed gas plant, the redevelopment of the Husky refinery, and the Enbridge expansion. All these industries and projects will negatively impact the the St. Louis Estuary. Flowing through the communities of Duluth and Superior, this critical ecosystem is where the St. Louis River meets Lake Superior. The estuary system is prime wild rice- manoomin- growing areas. Because of this, Anishinaabe people long made their home in the lands around the estuary. It’s location as a port on the Great Lakes, downriver and downhill of the Iron Range made the Twin Ports a booming industrial city in the early 20th century. So rampant was the industry, that the estuary became contaminated to the point of toxicity. As the environmental movement grew in the United States and Canada, attention turned to the St. Louis Estuary. Thanks to a dedicated group of concerned community members, institutions, and agencies the estuary has begun to be renewed. Waters are once again usable, legacy chemical contamination is being addressed, and the climate resiliency the estuary represents is being recognized. In order to help protect this culturally significant landscape, Honor the Earth is working with the Community Environmental Legal Defense Fund to propose a Rights of the St. Louis Estuary resolution for the communities of Cloquet, Duluth and/or Superior. We are working collaboratively on this initiative with Duluth for Clean Water and the Duluth Indigenous Commission.
This summer, we plan to celebrate the water once again at our annual Love Water, Not Oil Festival. Now in its third year, this festival is held at the beautiful Bayfront outdoor concert venue on the shores of Lake Superior in Duluth. This festival will also be used to launch of Rights of the St. Louis Estuary Campaign, which will serve as the framework for the rest of our work in the area.
The Regulatory Arena
As part of our work to protect the St Louis estuary, we are continuing our work against the Line 3 pipeline. Over the past four years, our work on addressing the issues and concerns related to the abandonment of the existing Line 3 has resulted in the creation of a landowner choice program. This program would give landowners the choice to have the pipeline removed, or left in. This opens up a number of opportunities to push for more landowners to request removal and restoration of the pipeline Right of Way (ROW). This choice and push for removal and restoration can also be made by Ojibwe Bands and the Minnesota Department of Natural Resources. Through coordination with Minnesotans for Pipeline Clean Up, we reaching out to landowners to ensure they are fully informed on their rights and that to advocate for the most ecological restoration practices. This work will complement our work on pushing the Minnesota Department of Natural Resources to call for pipeline removal.
This summer, we are anticipating a number of rulings on our on-going lawsuits against the Line 3 Certificate of Need and Routing Permits. We recently had a win in the Court of Appeals, when the court found the Public Utilities Commission's ruling on the adequacy of the Department of Commerce’s Environmental Impact Statement (EIS). The deficiency found in the EIS is the lack of spill modeling in the Lake Superior Watershed, of which the St. Louis Estuary is part of. This victory opens up the opportunity to push hard on a third party review of any spill models submitted by Enbridge. We will be working with the City Council and our partners Twin Ports Action Alliance (TPAA) to raise awareness of the community risk represented by the Enbridge System and Husky Refinery.
We also continue to engage with our partners in the No Line 3 campaign to pressure state agency to deny further permits. Our current focus is the Minnesota Pollution Control Agency’s Clean Water Water Quality Anti-Degradation Assessment they must complete for the Line 3 project. This work has included working with staff on community engagement plans and a re-draft of our Anishinaabe Cumulative Impact Assessment.
Water Protector Engagement and Education
Despite not having all their final permits in place, Enbridge continues to move forward on construction related activities. We are working together with our partners to prepare a construction monitoring guide to share with water protectors on the ground. This guide will locate places that are sensitive, or likely to have permit violations. The aim is to have water protectors “adopt” sections of the route and monitor them throughout the construction period and beyond. Part of this work is to gather information on violations to strengthen a call for an injunction on construction.
As construction continues and awareness raises, more water protectors will come to Minnesota. As these folks come in, they will be looking for information on campgrounds, information on local resources, and location to monitor. To prepare for this, we are creating literature and a website including this information. Our work on the monitoring guide will feed into this work.
Green New Deal Vision Planning
Our long-term plans for our work in Duluth is the creation of a “New Green Duluth” plan, outlining how an Indigenous New Green Deal could improve the quality of life for all residents of the St Louis estuary biozone. Honor the Earth joins legions of citizens, congressional leaders and other organizations around the country in support the legislation--and is implementing new initiatives in solar panel and hemp production to create sustainable jobs and infrastructure in Anishinaabe Akiing.
The "Green New Deal" being introduced in the U.S. Congress is driven in large part by the October 2018 Intergovernmental Panel on Climate Change's "Special Report on Global Warming of 1.5C" and the November 2018 Trump Administration's "Fourth National Climate Assessment"report, both warning of continuing and severe economic and environmental damages, mass migrations, and other global consequences unless more direct action is taken by countries now.
Honor the Earth recently sent an official Letter of Support for the Ocasio-Cortez legislation: "Minnesota is the state in the U.S. that is experiencing and witnessing the effects of rapid climate change, the most dramatically-right now! We are also seeing the rampant poisoning of our water, earth, and air, and we know the time is now to make the decision prophesied by our ancestors-that is to abandon the scorched-earth path of destruction we are currently on, and walk on a new green path that is sustainable for all our relations."
In the Twin Ports, we co-hosted a “Twin Ports Action Summit” on April 27th. In following up with community partners after the events, Honor has realized the need for on-going conversations on the Green New Deal and what it means for the Twin Ports communities. To help continue these conversations, Honor the Earth is working with our partners to establish a Twin Ports Green Drinks Chapter. Green Drinks is an international organization of communities that host a night for folks to gather and discuss environmental issues. To complement these meetings, we are also working with the Labor Network for Sustainability to develop a Twin Ports Transition Plan, outlining the potential routes for job development in the re-tooling of the regional infrastructure.