In Approving Major Crude Oil Pipelines, Consulting with Native Nations is Not Enough; the Goal is Consent

When it comes to crude oil pipeline projects, Indigenous concerns and opposition all too often get marginalized by decision makers.

Such conduct violates the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, a commitment both the United States and Canada support. The Declaration says that governments should get Indigenous nation’s free, prior and informed consent before “adopting and implementing legislative or administrative measures that may affect them.”

What happens in practice is that the powers-that-be have a “conversation” with Native nations, check the “consultation” box, and think they’re done. That’s not good enough.

The latest example comes from the Standing Rock Sioux Nation in North Dakota. It has found government documents that show how little Indigenous concerns mattered when it came to the Dakota Access Pipeline (DAPL).

Photo from the Water Protector’s Camp, 2016.

The Standing Rock Sioux Nation found U.S. Army  Corps of Engineers documents stating the Corps had concluded the pipeline wouldn’t harm Native nations before it talked to them. This is according to an AP story reported in MPR: Tribe says Army Corps’ Dakota Access pipeline findings preordained.

A federal judge had ordered the Corps to seriously review DAPL’s impact on Standing Rock and three other Native nations that would be affected — and not treat it as a “bureaucratic formality,” the story said. It continued:

One of the documents is a Feb. 4, 2018, draft memo from the Corps to the assistant secretary of the Army for civil works. It states that the agency performed the additional analysis ordered by the judge and “has identified no new information.”

“Therefore, decisions made by the (Corps) were in accordance with the law and neither arbitrary nor capricious,” the memo states.

The draft memo is dated more than three months before the Corps met with the tribes to hear their concerns.

Click on the MPR link above for more details.

Free, Prior and Informed Consent

The United Nations Declaration on the Rights of Indigenous Peoples:

“requires States to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them … States must have consent as the objective of consultation

The United Nations adopted the Declaration in 2007, on a 144-4 vote, with 11 abstentions, Wikipedia said. The United States was one of the four “no” votes. However, on Jan. 12, 2011, President Obama stated the United States’ support for the Declaration, according to a State Department document,

Today, in response to the many calls from Native Americans throughout this country and in order to further U.S. policy on indigenous issues, President Obama announced that the United States has changed its position [on The Declaration on the Rights of Indigenous Peoples]. The United States supports the Declaration, which—while not legally binding or a statement of current international law—has both moral and political force.

Comment: OK, the “not legally binding” language makes it a little fuzzy and disappointing. But it’s a moral commitment.

Other “Consultation”

Enbridge Line 3: The Minnesota Public Utilities Commission (PUC) marginalized Indigenous voices in many ways during the Enbridge Line 3 debate. Here are examples. First, the PUC voted to approve crude oil pipelines’ route before completing a survey of Line 3’s potential impacts on tribal cultural properties. It shows such issues were more afterthought than a primary consideration.

Second, tribal elders were blocked from attending PUC hearings.

Third, the Fond du Lac Band of Lake Superior Chippewa had joined other Anishinaabe bands opposing Enbridge Line 3. At the end of the process, the PUC gave Fond du Lac a lose-lose choice: Either have the new Line 3 run directly through its lands in the current trench, or have it skirt the reservation and open a brand new corridor right next to their lands. The only “choice” it had were two bad options.

Lastly, according to Honor the Earth

Where Enbridge claimed extensive “consultation” the reality was it would make one phone call or send one letter to the Tribal Historical Preservation Officer. The conversation around Indigenous Knowledge and Indigenous Rights was never even allowed to enter the realm of this permitting process because of structural racism.  Honor the Earth has maintained that consultation does not equal consent, that Indigenous Knowledge needs to inform the permitting processes, and that Indigenous Risk Methodology must be used in our environmental review processes.

Trans Mountain Pipeline: Kinder Morgan’s effort to build the Trans Mountain crude oil pipeline from Alberta to British Columbia met with strong opposition, so much so that in May of 2018, Prime Minister Justin Trudeau’s government agreed to buy it to keep the project going.

Like the United States, Canada was one of the four “no” votes in 2007 against the United Nations’ Declaration on the Rights of Indigenous Peoples. Like the United States, Canada ultimately changed its mind, signing on in 2016, according to this CBC story.

Last fall, a Canadian court “overturned approval of the Trans Mountain oil pipeline expansion, ruling that Ottawa failed to adequately consider aboriginal concerns,” according to a story by Reuters. It quoted Andrew Leach, associate professor of business economics at the University of Alberta, saying: “The big takeaway is the duty to consult (indigenous people) is still the most important step in any major project.”

Trudeau’s government decided not to appeal the court’s decision, and ultimately apologized to First Nations people for consultation failures, according to a CBC story.

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