Free, Prior and Informed Consent: A DAPL Dispute

A great point of contention in the dispute over the Dakota Access Pipeline is whether or not the Standing Rock Nation had the opportunity to be consulted on the pipeline.

The Standing Rock Nation said it did not give its informed consent to the project. The pipeline owners said Standing Rock missed its chance by not engaging in conversation sooner.

However, it appears that Standing Rock did raise objections early in the process, a fact that is only recently coming to light. It undermines the pipeline company’s position.

Let’s try to sort it out.

Let’s start with the expectation for negotiation. Standing Rock deserved more than being consulted. When you are being consulted and don’t have power, that means you go to a meeting and the side with the power does what it wants.

Consider this Nov. 16 article in the Wall Street Journal, Kelcy Warren, the head of Energy Transfer Partners, put the blame on Standing Rock for not engaging in dialogue sooner. The Journal provides the following quote:

“I really wish for the Standing Rock Sioux that they had engaged in discussions way before they did,” he [Warren] said. “I don’t think we would have been having this discussion if they did.

“We could have changed the route,” Mr. Warren added. “It could have been done, but it’s too late.”

It makes it sounds like a negotiation but it wasn’t. What was needed is free, prior and informed consent. A May 2009 report from the United Nations Permanent Forum on Indigenous Issues states:

The free, prior and informed consent of indigenous peoples must be obtained before investments are made on projects affecting their lands, territories

and resources and before such projects are brought into indigenous lands and territories.

Consider that the pipeline is crossing disputed territory, lands that the Standing Rock Nation says were given to the Lakota as part of the Treaty of Fort Laramie and never ceded. Second, the pipeline is crossing the Missouri very near to the Standing Rock’s water supply. Clearly, Standing Rock has a major interest in the project. It should have been incumbent on Energy Transfer Partners to make sure those conversations happened.

Finally, a Nov. 30 article in the Bismarck Tribune and a PBS story note that a September 2014 recording indicates that Standing Rock leaders did express concerns about the pipeline with company officials. The meeting included Chuck Frey, Energy Transfer Partners vice president for engineering, and Tammy Ibach, who had done media relations for Dakota Access,the articles said. The meeting occurred “nearly 20 months before pipeline construction started in North Dakota.”

According to the stories, former tribal council member Phyllis Young said in the 2014 meeting: “Do not underestimate the people of Standing Rock. We know what’s going on, and we know what belongs to us, and we know what we have to keep for our children and our grandchildren.”

In an interview with PBS Newshour, Warren contends that Standing Rock had declined offers to work together. He’s playing the victim card.

Let’s review the timing of changes to DAPL’s proposed route and the Standing Rock meeting with pipeline officials.

• In May of 2014, DAPL was proposed to go north of Bismarck, well away from Standing Rock, according to this story in the Bismarck Tribune.
• In June of 2014, President Obama visited Standing Rock Nation. It does not appear that DAPL was an issue at that time because the pipeline was a long way away.
• In September 2014, out of concern for the risk the pipeline posed to drinking water in Bismarck and other reasons, Energy Transfer Partners rerouted DAPL to cross the Missouri River near Standing Rock, according to the same Bismarck Tribune story.
• That is the same month of the meeting between Standing Rock and pipeline officials where Standing Rock raised its concerns.

Then, in just three months, DAPL apparently concluded its “consultation.” In December of 2014, it filed its NORTH DAKOTA PUBLIC SERVICE COMMISSION COMBINED APPLICATION FOR CERTIFICATE OF CORRIDOR COMPATIBILITY AND ROUTE PERMIT.

This is from page 39 of the report under the headline: “Consultation.”

Dakota Access initiated consultation and coordination with municipal, regulatory, and tribal entities, as well as landowners, within the area that may be affected by the DAPL Project. Consultation and coordination consisted of in person meetings, telephone conferences, mailings, email correspondence, and public meetings to introduce the DAPL Project, provide information about construction and operation of the DAPL Project, and discuss comments and concerns of affected parties. In September 2014,  Dakota Access met with representatives of the Standing Rock Sioux Tribe. Dakota Access also met with the Tribal Historic Preservation Office (THPO) of the Standing Rock Sioux Tribe in October of 2014 to discuss issues the Standing Rock THPO may have with the DAPL Project. Dakota Access shared information regarding the preliminary plans for the DAPL Project and the methodologies being employed to conduct cultural resource investigations. Dakota Access was informed that the Standing Rock Sioux Tribe THPO has not engaged with federal agencies in the establishment or execution of Programmatic Agreements regarding cultural resource investigations and that the Tribe will participate in complete Section 106 Consultations with federal permitting agencies. Discussion of cooperative cultural resource investigations between Dakota Access archaeological field crews and THPO sanctioned tribal monitors was initiated.

Observations:

1. This is a lot of bureaucratic language that really doesn’t say much. Significantly, it fails to report on the concerns raised at the September, 2014 meeting.
2. It appears that the North Dakota State Public Service Commission had little if any concerns about the lack of tribal consultation, too. It apparently said nothing to Energy Transfer Partners — which speaks volumes. They should have been encouraging dialogue.
3. The statement notes that Standing Rock had not engaged with federal agencies in creating agreements regarding “cultural resource investigations.” Perhaps this was a wise choice. As it turned out, as soon as Standing Rock identified sacred sites on a map — in court documents seeking a court injunction against the pipeline — DAPL workers immediately began bulldozing them the next day. (See Democracy Now’s article: Did the Dakota Access Pipeline Company Deliberately Destroy Sacred Sioux Burial Sites?

This behavior reflects a long history of bullying and betrayal of Native American people. The question is not should Native nations be consulted on these kinds of projects. They should. The question is why would they trust a company like DAPL and engage in the conversation to begin with?