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Why the win at Standing Rock reinforces the need for Indigenous consultation

As the U.S. Army sides with the Sioux and allies, halting the construction of the controversial Dakota Access pipeline, the decision has implications for Canada and the world. 

By: /
6 December, 2016
People celebrate in Oceti Sakowin camp as "water protectors" continue to demonstrate against plans to pass the Dakota Access pipeline near the Standing Rock Indian Reservation, near Cannon Ball, North Dakota, U.S. December 4, 2016. REUTERS/Stephanie Keith
Risa Schwartz
By: Risa Schwartz
Senior research fellow, CIGI

The Sioux Nation’s self-declared “water protectors” at Standing Rock were given reason to celebrate this week when the U.S. Army Corps of Engineers (USACE) released a statement declaring that there would be no approval of an easement for the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. The denial of the easement will allow for consideration of alternate routes as part of an environmental impact statement, which requires further analysis as well as public input.

This historic victory for the water protectors – who have been fighting for their rights as well as taking on the responsibility to protect the sacred gift of water – comes just days after the Canadian government, in contrast, approved the controversial twinning of the Kinder Morgan Trans Mountain pipeline through the Rocky Mountains.

Even though it’s uncertain whether U.S. President-elect Donald Trump will overturn the need to consider alternative routes for the pipeline, these protests have triggered the U.S. government to self-examine its obligations to consult Indigenous peoples on infrastructure developments.

Reports have claimed that up to 10,000 protesters — mostly Indigenous peoples from as far away as Hawaii, Yukon, the Amazon, and Norway — had made their way since mid-summer to the Dakotas in support of the Sioux’s stand to protect water and land that they consider to be sacred.

The tense protests have drawn much attention, with appearances from Hollywood stars such as Mark Ruffalo and Shailene Woodley as well as support from musicians including Neil Young and Jason Mraz. So when word spread that construction had been halted, celebrations poured in on Twitter and Facebook in support of the thousands of water protectors at Standing Rock.

The announcement by the Army Corps came after hundreds of U.S. military veterans converged on the site, following a series of escalating altercations involving law enforcement.

For those who are interested in the evolution of Indigenous rights, the focus should continue to be on the encouraging actions of the U.S. federal government to address the gaps in consultation that were at the heart of the dispute.

Before halting the construction of the pipeline on Sunday, the U.S. government held listening sessions with water protectors to consider how to reform the way they consult Indigenous peoples on infrastructure projects. Tribes have also been invited to government-to-government consultations on questions about how to ensure input from tribes on infrastructure reviews and decisions, which may also include regulatory or statutory changes to increase timely and meaningful consultation. 

U.S. Interior Secretary Sally Jewell praised the USACE’s decision. “The Army’s announcement underscores that tribal rights reserved in treaties and federal law, as well as nation-to-nation consultation with tribal leaders, are essential components of the analysis to be undertaken in the environmental impact statement going forward,” Jewell told the Washington Post.

The concept that governments have an obligation to consult Indigenous peoples takes different forms in national and international scholarship and law. It is expressed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Obama administration considers not to be legally binding but to carry “both moral and political force.”

In Canada, there is already a constitutionally-required duty to consult and accommodate, but Indigenous leaders hope that the Canadian government’s recent embrace of UNDRIP will provide greater protections. 

The protests at Standing Rock have added new urgency to UNDRIP implementation in the United States and in Canada. If the declaration had been in place earlier, it may have prevented the protests from starting in the first place.

UNDRIP requires meaningful consultation with, and consent by, Indigenous peoples. Article 32 of UNDRIP says that states must consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 

Although free, prior informed consent has been described by its detractors as a veto. It has also been described by Chief Wilton Littlechild, commissioner of Canada’s landmark Truth and Reconciliation Commission, as about having the right to say yes.  

While the success at Standing Rock is a significant achievement that may embolden those in British Columbia to take a stand over the approval of the Kinder Morgan pipeline, it is also a reminder that UNDRIP has a vital role to play in implementing and protecting Indigenous rights globally.

This article was first published with the Centre for International Governance Innovation (CIGI)

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