Question Period Note: Line 5 (1977 Treaty)

On October 4, Canada formally invoked with the U.S. the dispute settlement provision of the 1977 Transit pipelines treaty, Article IX(1), thereby triggering formal negotiations on Line 5.

• We are committed to keeping Line 5 open, sending energy from Alberta and Saskatchewan to Ontario and Quebec.

• Canada invoked the dispute settlement mechanism of the 1977 Transit pipelines treaty.

• Treaty negotiations with the U.S. will begin soon.
• We have acted to protect Canada's national energy and economic interests.

The Treaty: On October 4, Canada invoked the dispute settlement clause (Article IX(1)) of the 1977 Canada-U.S. Transit pipelines treaty, triggering formal Treaty negotiations. Line 5 is a pipeline covered by the Treaty's provisions, which prohibit interference or blocking of hydrocarbons in transit, i.e. sent from and delivered to the same Party, and transiting through the territory of the other Party. Line 5 sends western Canada hydrocarbons to central Canada, via the U.S. (Michigan).

Michigan v. Enbridge Litigation: In November 2020, Governor Whitmer (D-Michigan) ordered Line 5 to be shut down permanently effective May 12, 2021, by withdrawing an easement that allows the pipeline to run along the bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron. The Governor required, but did not have, court authority to implement her decision. Line 5 remains fully operational.

Canada filed with the U.S. (federal) District Court a first amicus brief on May 11, alerting the Court to the Treaty provisions and implications, informing it of informal bilateral discussions on the issue and requesting it retain federal jurisdiction. On Nov. 5, Canada a second amicus brief: informing the Court of Canada's Treaty action on October 4; expressing support for the Court to hold in abeyance all proceedings relating to Michigan's order to shut down Line 5 for the duration of the dispute settlement process under Article IX; and, expressing support for the Court to take appropriate measures to ensure that a shutdown of Line 5 is not judicially compelled while the Treaty process is taking place.

The U.S. District Court, on November 16, decided on a procedural motion to deny Michigan's request to remand the case to state court, thus retaining federal court jurisdiction. Canada's amicus on the Treaty, was a factor in the Court's decision. On Nov. 30, Michigan dropped this federal case, and revived in state court a case dormant since 2019, that would also result in shutting down Line 5. On Dec. 15, Enbridge filed in federal court to remove the revived state court case to federal court, citing the Nov. 16 decision to that the issue was federal in jurisdiction.

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