Black Snake Chronicles: Police, Courts and Victories

By Winona LaDuke
- News From Indian Country (NFIC) -

August was marked by three new landmarks in Native resistance to pipelines, in Canada, Minnesota, and North Dakota.  On August 29, 26 people were cited in downtown Bemidji after stopping traffic for four hours.  Ojibwe women from Red Lake, Leech Lake and White Earth, including Dawn Goodwin, Mary Jourdain, and others, 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 Church leaders from Lutheran and other congregations in the state.

Doug Rasch, a landowner in Clearwater County who faces eminent domain of his land by Enbridge was also cited and charged with disorderly conduct.

Mary Jourdain tearfully spoke about Missing and Murdered women and children, and is the mother of Jeremy Jourdain who has been missing for three years. Pointing to the Man Camps, she expressed deep concerns about the future. Others talked about the need to protect Minnesotans not Canadian corporations, in the first new set of citations, signaling, what will likely be a brutal winter in Minnesota, if Enbridge is allowed to move forward.

Part of the concern, is that Enbridge has agreed to pay for the costs of militarizing northern Minnesota. 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 during October), 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.

Photo by Oregon Dept. Of Transportation

Information received through Data Practices Act requests 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 eight law enforcement agencies, from all levels of jurisdiction, to share information about water protectors.

Beltrami County Sheriff,  Bemidji Police and Minnesota State Patrol were all present for the Bemidji vigil.  At the White Earth Tribal Council meeting on August 26, the Council discussed recusing tribal law enforcement from arresting any tribal citizens, aka Water protectors  protecting the water, and urged other bands to do the same.

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 to the project, with hundreds of arrests.  The Tsleil-Waututh, Squamish and Musqueam First Nations have fought the project in the Court system and committed to fight the pipeline with every means necessary - saying they never consented to the pipeline passing through their lands and amid vital waterways in the first place.

The ruling  puts to a screeching 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.

Grand Chief Stewart Phillip

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. “My faith in the judicial system is somewhat restored today.”

Hopes are high for many in this case. “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.”

It seems that Kinder Morgan had stopped construction on the project this summer, based on the huge opposition and many arrests. 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…”

The project’s delay will undoubtedly 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.

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.”

Finally, in court cases which continue from the Dakota Access militarization; Chase Iron Eyes reached a plea bargain agreement in the  Last Child Camp after a long push to have more evidence released by the state, and using the “necessity defense”, arguing 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 dismissing a misdemeanor criminal trespass charge.

As the legal process moves forward in Canada, North Dakota and Minnesota, it is not clear what the outcome will be, either for corporations or Native people.

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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