What is the 1977 Transit Pipelines Treaty?

by Sydney Wendling | Jun 19, 2023 | 6 comments

[Note: this essay is part of a series of six essays on How to Know about Line 5. You can read the series introduction and find links to the other essays as they are posted here.]

Since 2021, articles and discussions of Line 5 have begun to reference an obscure treaty between the United States and Canada from 1977, which the Canadian government formally invoked to prevent a shutdown of the pipeline. Yet despite the frequent mentions of this treaty—especially recently, as the United States and Canada enter their third round of negotiations for it—news reports have had little to say about its background beyond: 1) that it was formed in 1977; 2) that it was designed to keep hydrocarbons moving through pipelines like Line 5; and 3) that it supposedly supersedes the state lawsuits facing Enbridge. In other words, detailed information in public forums about this treaty is sparse. Because of its apparent importance in the Shut Down Line 5 battle, knowing the history of the treaty and why it is being invoked—wrongly, I’d argue—will be helpful in understanding the future legal and political moves the US and Canada make as they address Line 5.

The goal of this post is to address the following questions: What is the 1977 Transit Pipelines Treaty and why was it formed? Why is it relevant to Line 5? What does it say and what are its implications? And perhaps most importantly, what does it mean to invoke a fifty year old treaty that was created to facilitate the flow of hydrocarbons when we are now in the midst of a climate emergency that calls for rapid decarbonization? Or put more simply, what is at stake?

The History of the 1977 Transit Pipelines Treaty

The not-so-well-documented history of the treaty begins with the 1973 Arab oil embargo, in which “Arab members of the Organization of Petroleum Exporting Countries (OPEC) imposed an embargo against the United States in retaliation for the U.S. decision to re-supply the Israeli military.” Naturally, given the United States’s dependence on foreign oil, the embargo caused a period of energy instability in the US, sending oil prices skyrocketing per barrel and shrinking the United States’s domestic reserves. This ironically caused the US to double down on their dependence on imported oil, scrambling to negotiate with OPEC leaders to end the embargo as soon as possible. During this time, the Nixon administration also organized “Project Independence,” an initiative that aimed for the US to become self-sufficient in terms of energy while also “engag[ing] in intensive diplomatic efforts among its allies, promoting a consumers’ union that would provide strategic depth and a consumers’ cartel to control oil pricing.”

Such energy-based diplomatic efforts would come to fruition with a change in administration. On March 30th, 1977, President Jimmy Carter sent a message to the Senate detailing an agreement made between the US and Canadian governments, led then by Prime Minister Pierre Trudeau, that would pave the way for a natural gas pipeline to cross between the US and Canadian borders: “The Agreement negotiated … provides reciprocal protection against interruption in the flow of hydrocarbons in transit, and against discriminatory taxation,” President Carter wrote, “The Agreement is applicable both to existing and future pipelines transiting the United States and to future pipelines transiting Canada.” As President Carter’s message indicates, the big picture of the Transit Pipelines Treaty is that no public official from either country “shall institute any measures … which are intended to, or which would have the effect of, impeding, diverting, redirecting or interfering with” the flow of hydrocarbons between the countries, with such behavior resulting in arbitration.

For almost fifty years since the treaty’s creation, it has not entered the limelight—except for a brief stint in 2009—until the legal battles between Michigan and Enbridge started to become more intense. Seeing a serious possibility of Michigan gaining ground in their suit, the current Trudeau administration submitted an amicus curiae brief into the The State of Michigan v, Enbridge Energy case, mentioning the treaty’s purpose and their intention to invoke it if need be. In October of 2021, Trudeau formally invoked the treaty, allowing Canada to deal directly with the federal government, thus bypassing Governor Gretchen Whitmer and Attorney General Dana Nessel’s lawsuits against Enbridge. Specifically, Canada referenced Article IX of the treaty, which states that “Any dispute between the Parties regarding the interpretation, application, or operation of the Agreement shall, so far as possible, be settled by negotiation between them,” or by arbitration if negotiations do not settle the dispute.

Notable Articles in the Treaty and the Role in the Line 5 Debate

Though Article IX was referenced by Canada for taking the dispute to the federal level, other parts of the treaty are worth looking at as well. For example, I quoted from Article II above when discussing the main point of the treaty: “No public authority in the territory of either Party shall institute any measures, other than those provided for in Article V, which are intended to, or which would have the effect of, impeding, diverting, redirecting or interfering with in any way the transmission of hydrocarbons in transit.” Notable here is the fact that “no public authority” may interfere with the flow of hydrocarbons. In their amicus brief, Canada explicitly cites Governor Whitmer and the court involved in the Michigan v. Enbridge suit who would enforce her shutdown of Line 5 as those public authorities. However, the exception to Article II lies in Article V of the treaty, which stipulates that “in the event of an actual or threatened natural disaster, an operating emergency, or other demonstrable need temporarily to reduce or stop for safety or technical reasons “the pipeline’s flow of hydrocarbons “may be temporarily reduced or stopped in the interest of sound pipeline management and operational efficiency.”

Whitmer’s revocation of the 1953 easement is based on Enbridge violating its terms, for example by ignoring structural issues in the pipeline. Those terms are also relevant to Article V, which states that the flow of hydrocarbons may be halted “in the interest of sound pipeline management” by regulatory authorities in the territory that a “disaster, emergency, or other demonstrable need occurs.” On the other hand, provision 3 of Article V says that the party halting the flow of hydrocarbons “shall not unnecessarily delay or cause delay in the expeditious restoration of normal pipeline operations,” which Canada argues Michigan is doing.

Opponents of Line 5 have also pointed to Article IV of the treaty, which says “the transmission of hydrocarbons… shall be subject to regulations by the appropriate governmental authorities.” This provision clearly acknowledges that the treaty does not exempt cross-border pipelines from complying with local, state, and federal regulations and explicitly recognizes the authority of states (like Michigan).

The final article of the treaty notably details that it “shall remain in force for an initial period of thirty-five years,” but that after those thirty-five years, either nation can dissolve the treaty as long as they give ten years notice to the other party. If this doesn’t happen, the treaty will remain until a side does provide notice. This built-in expiration date indicates that those who organized the treaty recognized even then that the conditions surrounding the agreement might eventually change—it was plainly not meant to be fixed and permanent in its original form. And in fact, conditions have changed. At this point in time the Line 5 movement is over ten years old. Perhaps if the federal government had taken the threat of Line 5 seriously—especially after Enbridge’s disastrous Line 6B spill into the Kalamazoo River—the US could have given ten years notice to opt out of the treaty, and we could have avoided the geopolitical and legal battles we are in now. But while the best time to act on Line 5 may have been ten years ago, the second best time is now. The United States has the power to move against this treaty. It’s tempting to say the US could even just violate it; it wouldn’t be the first time they’ve done so.

Areas of Contention Related to the Treaty

As we’ve begun to see, there are many debates involving the Transit Pipelines Treaty. The first is the aforementioned issues with Articles IV and V of the treaty—Michigan believes they are within their right in terms of ending Enbridge’s easement and Article V’s stoppage clause, but Canada argues that Michigan is unnecessarily delaying the flow of hydrocarbons, and that Enbridge has solved Michigan’s complaints about the damages to the pipeline. Governor Whitmer and protestors have argued that since Michigan is acting in line with the treaty, the invocation of it is a “delaying tactic.”

Other debates arise from whom the treaty does and does not include. Several Tribes and First Nations have spoken out against Line 5, including the Bay Mills Indian Community, who permanently banished Enbridge and Line 5 from their lands; the Sault Ste. Marie Tribe of Chippewa Indians; the Bad River Band, who are in ongoing legal proceedings with Enbridge; the Anishinabek Nation; and ten other federally recognized Nations in Michigan; among others. Members of these Tribal and First Nations have argued that both Line 5 and the Transit Pipelines Treaty explicitly violates their treaty rights: the US is violating the 1836 Treaty of Washington and Canada is violating An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples.

Justin (left) and Pierre Trudeau

As sovereign nations, these Tribes and First Nations argue that they are excluded from the 1977 Treaty and should be included in diplomatic negotiations, since Line 5 trespasses on their lands and threatens their waterways; they have taken their appeal to the United Nations Human Rights Council. Of course, despite lip-service both the US and Canada to acknowledge their histories of settler-colonialism, indigenous groups are still being disadvantaged by settler-colonial epistemologies favoring the economy over sovereignty when it comes to Line 5. In Canada’s case in particular, on one hand Prime Minister Trudeau funds Indigenous-led conservation initiatives, but on the other hand he continues to uphold the legislative decisions his father’s administration made almost fifty years ago—a treaty that specifically violates indigenous treaty rights and has very publicly been rebuked by Tribal and First Nations of the Great Lakes region. As we have seen time and time again, North American settlers just cannot shake their habit of committing settler-colonial violence in pursuit of capital gain and maintaining their “status quo.”

If the Treaty is Upheld—What’s at Risk

As this point about ongoing settler-colonial dispossession suggests, if the 1977 Transit Pipelines Treaty is upheld, it can have horrible implications not only for indigenous sovereignty, but also for the possibility of shuttering transnational pipelines. As cultural critic Imre Szeman explains, pipelines do not function as a form of “statecraft”—that is, energy transport is not something that the US government operates only within the US with its own resources. Instead, pipelines are a form of “extrastatecraft,” with the US supporting private companies and other countries to fuel its energy needs—in this case, using Enbridge pipelines to get their oil. Szeman discusses how the “power of extrastatecraft” lies in its normalcy in our culture. According to this view, the fact that we’re putting all of our trust in Enbridge doesn’t matter, because Enrbidge is just solving our problem of energy transport. Thus, this form of extrastatecraft is “seen as [a] neutral, rational, and technical [solution] to modern problems, and so are seen, too, as devoid of political interest or impact.”

However, time and time again Enbridge and Line 5 have proven they need supervision and to be held accountable. Over its lifespan, the pipeline has leaked over 33 times, accumulating more and more damage over time, with little to no action from Enbridge. We can no longer let Enbridge and pipelines projects in general operate as extrastatecraft, allowing them to lay low despite disaster after disaster and ongoing threats to indigenous lands and waterways. If the 1977 Transit Pipelines Treaty is honored by the Biden administration, we will have no choice but to maintain the status quo of leaks and ruin, and Line 5—among other transnational pipelines—will not be stopped until a rupture occurs.

Is it worth it? Why are we holding onto the pipelines and politics of nearly 50 years ago when our social, cultural, technological, and obviously environmental climates have progressed past the need for these measures? While Enbridge and oil barons might be trying to convince us that we’re in the same age of energy insecurity as the ‘70s, we should know better by now that we need to move away from oil dependence and move towards cleaner and greener energy and different ways of being.

It’s hard to say what the next steps are at this point, but now that the treaty has been invoked, the most important steps seem to lie with the federal government. The Biden administration has yet to step in on the Line 5 controversy, though recently they faced off with the oil industry in a similar case in Colorado. Supporters of shutting down Line 5 hope that due to the similarities between the cases, President Biden may move in favor of revoking the presidential permit for Line 5, but this is still up in the air. Either way, our best point of leverage is at the federal government level. If we can urge the Biden administration to act on Line 5, we might see serious progress in the dismantling of petroculture, the preservation of the Great Lakes and other areas impacted by Line 5, and the acknowledgement of indigenous sovereignty and treaty rights. The United States has the power to start this shift away from oil dependence by putting their policy where their mouth is and starting the process of moving against—and giving notice to pull out of—this outdated treaty.