But from the outset of Thursday's hearing, it was clear Conley — who ordered the two sides to work together last fall on finding a solution to their impasse — doesn't believe the band is holding up its end of the bargain.
"The band has not helped itself by refusing to take any steps to prevent a catastrophic failure," Conley said as the hearing got underway. "You haven't even allowed simple steps that would have prevented some of this erosion."
The day-long hearing ended without a decision on the band's request for an injunction — and with the clear sense Conley is disinclined to grant one. "It's an extraordinary request to make when the band is doing nothing," he said.
But band lawyer
"Unfortunately, from our point of view, he didn't set that today — he's not shutting it down," Kanji said. "But we will remain hopeful that he will set a standard that will protect the river and its precious resources."
Conley, who has already ruled that the band was entitled back in 2013 to revoke permission for the pipeline, was also unwilling to grant the injunction on the grounds that
"The harder thing to hear was that the judge appears unwilling ... to issue an injunction because of
"It sounds like he's thinking more in terms of financial penalties."
In court documents,
The band argues that several weeks of flooding along the Bad River last month has washed away so much of the riverbank and supporting terrain that a breach is "imminent" and a shutdown order more than justified.
"
"Any flooding and erosion has not, and would not, catch
But
The band has the right under federal law to enforce its own water quality standards, which were "developed by careful evaluation of our relationships, as a people, with different parts of our hydrology in the Bad River watershed," Wiggins told a news conference after the hearing.
"What was kind of put forward today was, 'None of that stuff should matter. None of that stuff should exist. When
"We disagree."
Heavy flooding that began in early April washed away significant portions of the riverbank where Line 5 intersects the Bad River, a meandering, 120-kilometre course that feeds
The band has been in court with
But the flooding has turned a theoretical risk into a very real one, the band argues, and time is now of the essence. Lawyers for the band and its supporters were scheduled to hold a news conference after the hearing.
Line 5 meets the river just past a location the court has come to know as the "meander," where the riverbed snakes back and forth multiple times, separated from itself only by several metres of forest and the pipeline itself.
At four locations, the river was less than 4.6 metres from the pipeline — just 3.4 metres in one particular spot — and the erosion has only continued.
The neighbouring state of
"The alarming erosion at the Bad River meander poses an imminent threat of irreparable harm to
"Without judicial intervention, it is likely that this irreparable harm will be inflicted not only on the band, but also on
The economic arguments against shutting down the pipeline, which carries 540,000 barrels of oil and natural gas liquids daily across
Line 5's defenders, which include the federal government, say a shutdown would cause major economic disruption across the Prairies and the
It also supplies key refining facilities in
A lengthy statement issued Tuesday by the
"The energy security of both
"At a time of heightened concern over energy security and supply, including during the energy transition, maintaining and protecting existing infrastructure should be a top priority."
Talks have been ongoing for months under the terms of a 1977 pipelines treaty between the two countries that effectively prohibits either country from unilaterally closing off the flow of hydrocarbons.
This report by The Canadian Press was first published
— With files from The Associated Press
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