Mapping Data as Bargaining Chip for Indigenous Cooperation?

Lost on many is that over the decade that the Keystone XL (KXL) has been debated, the route has been altered a number of times but the publicly available maps have, either, not been updated or simply redacted altogether. Further, those maps that could be found were available only as non-machine readable PDF’s and were lacking key location information, making them essentially useless to all but the most tenacious cartographer.

Nowhere in the various environmental reports has the location data for thousands of referenced mileposts been made available. Want to know where any of the KXL’s nearly 4,800 waterbody crossings are? The 2019 report now reveals the closest milepost number but not the location data of that milepost. Making this shell game worse is, that as the route is adjusted and changed, the mileposts too change, but no record of changes are published and, thus, one version of the report cannot be reconciled against another. In short, without milepost data the reports and their analysis can not be evaluated.

As you may recall, TransCanada first claimed that the data was being withheld for national security reasons and, after it was pointed out that FERC considered the data public, TransCanada then claimed that they were protecting the privacy of cooperating land owners. Next, the Department of State (DoS) claimed they did not have the data. As this did not jibe with the fact that they required the data for their environmental reports, the DoS corrected themselves and said that while they had the data, they didn’t own it. This claim was not supported by their contract with TransCanada and ERM (the company that prepared the report), which stated that all data required by the report did, indeed, belong to the Department.

As we wait for the next steps to unfold in our ten-year FOIA saga with the DoS, we now discover on page 117 of the 2019 FSEIS, Vol II (App A-E):

“In August, 2018 the Department sent a letter to all consulting parties, including all tribes, announcing the establishment of an on-line Project cultural resources portal that enables large documents to be posted for download and review. In March 2019 the Department sent a letter to all consulting parties, including the tribes, notifying them that a GIS database had been added to the cultural resources portal. The GIS contains spatial data layers on all known cultural resources in relation to the pipeline ROW (right-of-way) as well as the ROWs for all other Project components including power stations, pump stations, power lines, access roads, pipe yards, etc. This allows the viewer to see the cultural resources data in a scalable format in relation to detailed information on the Project. “

From this we learn that TC Energy (formerly TransCanada) and DoS do indeed have the data, can compile the data, and are able to make it available. But there may be a rub.

Skip down to page 175 and we find nearly a hundred pages of comment letters from Indigenous tribes affected by the project. Of the many issues raised in the letters, two are of particular note here. First, the US Government has failed to meet its treaty obligations by not conducting government-to-government consultations. The only public meeting for the 2019 FSEIS was held in Billings, Montana in the midst of a blizzard. This required tribal representatives to travel 300 miles, after which they were made to wait outside in the snowstorm for the meeting to begin. When finally admitted, they were not permitted to ask questions. Second, by giving the environmental review short shrift, while also ignoring claims that the pipeline threatens both tribal drinking and agricultural water supplies, the US government has violated its trustee obligation to the tribes.

Thus, it is of no surprise that the tribes came to the conclusion that the environmental review process was illegitimate and was being conducted in bad faith. According to some, to participate in it would be seen to validate it.

So, in the case of the secret route data, is TC Energy attempting to trade it for tribal cooperation? If the tribes were to actively cooperate with TC Energy so as to receive the route data, could they undermine the defense of their sovereign rights?

To review the tribal letters, all official documents for the 2019 Keystone XL FSEIS can be found on this web page, including the Keystone XL Final SEIS, December 2019, Volume II: Appendix A Through Appendix E (50MB PDF).

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