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TWN Info Service on Biodiversity and Traditional Knowledge (Oct17/01)
2 October 2017
Third World Network


Reconciliation needed with indigenous peoples over energy projects
Published in SUNS #8542 dated 29 September 2017


Geneva, 28 Sep (Kanaga Raja) - The issues surrounding energy development in the United States underscore the need for reconciliation between the federal Government and indigenous peoples, according to a UN human rights expert.

In her report presented to the UN Human Rights Council, the UN Special Rapporteur on the rights of indigenous peoples, Ms Victoria Tauli-Corpuz, called on the federal Government to adopt policies to acknowledge and encourage adherence to its treaty obligations and establish a national body for oversight of international treaty obligations with full and effective participation of indigenous peoples on issues relevant to them.

The rights expert noted that tribal leaders and representatives indicate that they are interested in engaging in a programme of reconciliation to remedy the harms they have faced and to improve the government-to-government relationship moving forward.

"Such a programme would acknowledge the historical wrongs inflicted upon the indigenous peoples of the United States and confront systemic barriers that prevent the full realization of indigenous peoples' rights," she said.

The Human Rights Council is currently holding its regular thirty-sixth session here from 11-29 September.

The report of the Special Rapporteur is based on her visit to the United States from 22 February to 3 March 2017.

According to the rights expert, the purpose of the visit was to assess the impacts of energy development projects - including resource development through extractive industries, hydroelectric power, geothermal exploration - and wind and solar projects on Indian tribes living both within and outside of reservations.

Special attention was paid to the Dakota Access Pipeline and its impact on indigenous peoples, including the Standing Rock Sioux tribe and other tribes indirectly affected by the pipeline.

The rights expert noted that energy development is of critical concern for many reasons.

First, when tribes are able to leverage the resources on their land, they can enact economic development in a self-determined manner, which would enable them to exercise their sovereignty.

Second, she said, the impacts and effects of energy development occur on a much larger scale than other types of economic development as it directly affects the lands and territories where indigenous peoples live and which are vital to their society, spirituality and culture.

Currently, nearly 20 per cent of the untapped energy resources in the United States are located on or near Indian lands, which means an even greater potential for renewable energy.

The report noted that encouraging steps are being taken by federal agencies to implement the United Nations Declaration on the Rights of Indigenous Peoples in consultation policies.

For example, the Advisory Council on Historic Preservation issued guidance to federal agencies on how to incorporate the principles set forth in the Declaration when carrying out the Section 106 review under the National Historic Preservation Act, including developing working knowledge of the Declaration and its articles, reviewing and updating agency policies to reflect the principles contained in the Declaration and considering the Declaration as a policy reference in the Section 106 process and beyond.

"However, despite the recommendations made by the previous Special Rapporteur following his visit to the United States in 2012, significant work still needs to be done to implement policies and initiatives to further the rights of indigenous peoples in that country," said the rights expert.

Many of the recommendations made by the previous Special Rapporteur, especially those dealing with the right of indigenous peoples to self-determination and consultation on matters that directly concern them have yet to be realized.

The United States has ratified international treaties relevant to the rights of indigenous peoples, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and has made reservations with respect to those treaties.

The United States has recognized the sovereignty of Indian tribes under its protection and 567 Indian entities with acknowledged "immunities and privileges available to federally recognized Indian Tribes by virtue of their government-to-government relationship with the United States" which are eligible to receive services from the Bureau of Indian Affairs.

The Department of the Interior Bureau of Indian Affairs provides services directly or through contracts, grants or compacts to approximately 1.9 million Indians and Alaska Natives in the 567 federally recognized tribes.

Given the current protection framework, the Special Rapporteur was concerned about the drastic reduction in the Department budget by $1.6 billion annually and in the Environmental Protection Agency budget by $2.5 million.

She recommended that the current administration strongly reconsider those budget cuts which would greatly impact the living standards of indigenous peoples.

The report noted that engagement with indigenous communities in the United States in the context of energy development and infrastructure projects are governed by various domestic statutes, orders, regulations, policies and protocols, each of which must be consulted individually and collectively to determine any specific procedures on how federal departments and agencies should conduct "government-to-government" consultations with Indian tribes.

The order that provides the most direct guidance on consultation with Indian tribes is Executive Order 13175 of 9 November 2000.

It requires federal agencies to adhere to three policy-making criteria, to the extent permitted by law, including, where possible, deferring to Indian tribes to establish standards.

There should also be "an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications."

Since the issuance of the order, the Government of the United States has taken a number of steps to strengthen its consultation regime to ensure the protection of indigenous rights.

In 2009, a Presidential memorandum was issued to enhance meaningful dialogue between the federal Government and Indian tribes.

All federal agencies were directed to develop a detailed plan of action to implement the policies and directives of Executive Order 13175.

Despite those efforts, said the Special Rapporteur, "the order resulted in a disjointed framework that suffers from loopholes, ambiguity, ad hoc application on an agency-by-agency basis and a general lack of accountability. It has failed to ensure effective consultations with tribal governments."

The breakdown in communication and lack of timely and good faith involvement in the review of federal and non-federal projects has left tribal governments unable to participate in meaningful dialogue on projects affecting their lands, territories and resources.

"The shortcomings of the current framework still lead to violations of the rights of indigenous peoples, most notably the right to free, prior and informed consent."

The Special Rapporteur found that the situation faced by the Standing Rock Sioux tribe was shared by many indigenous communities in the United States, as tribal communities nationwide wrestle with the realities of living in ground zero of energy impact.

The Special Rapporteur noted that, in addition to the government-to-government relationship that is the basis of consultation, the United States has a trust relationship with Indian tribes and individual Indians for the resources and rights that the United States holds in trust, as defined by Congress.

She recommended that this relationship remain the legal framework within which to build the capacity of Indian tribes to develop their own initiatives with respect to natural resources and energy.

"Any framework that dispenses with the trust responsibility would be detrimental to indigenous peoples given their unique status as sovereign entities and members thereof."

The Special Rapporteur said that she was very impressed by the remarkable and unshakeable resolve that tribes demonstrate in finding creative ways to self-determine their energy development.

In addition to rich oil and gas deposits across Montana, North Dakota, Texas, Oklahoma, Utah, Colorado, Alaska and New Mexico, indigenous lands have great wind and solar potential, as well as hydroelectric and geothermal resources.

A number of tribes have made entrepreneurial efforts to create tribal utilities for the benefit of their own and neighbouring communities, and are involved in a wide array of energy generation and transmission as large parts of tribal lands serve as throughways for the national electrical grid system.

Indian tribes are owners and operators of new and emerging technologies, breaking the mould of reliance on outside entities.

These examples demonstrate that, by exercising political sovereignty, indigenous peoples can approach energy resource development in diverse ways to support economic sovereignty.

SIGNIFICANT CHALLENGES

The Special Rapporteur however pointed out that Indian tribes continue to face significant challenges in their efforts to harness the possibility of self-determined development.

In particular, tribes universally reported that the legal, regulatory and tax structures currently in place created additional hurdles while reducing the possibility of realizing important benefits.

Of particular concern was the dual taxation regime that allow State governments to tax energy revenues derived from tribal lands without any requirement that those taxes be redeployed to serve tribal communities.

According to the rights expert, this undermines tribes' self-determination as they cannot adequately protect their communities against the negative impacts of development.

Whether it is re-paving destroyed roads, creating adequate environmental mitigation, providing emergency response plans or bulking up the capacity of law enforcement, energy-producing tribes find themselves lacking adequate resources to manage the impacts of development.

While indigenous peoples have a vibrant and enduring relationship to their culture and sacred places, forced relocation and treaty renegotiation has alienated many tribes from their historical territories.

Outside of indigenous control, many of these places have come under threat by energy development projects, said the rights expert, pointing to the examples of Chaco Canyon, Mount Taylor and Bears Ears.

The rights expert also noted the 30-year history of water settlement negotiations favoured by the Government and highly appreciated by indigenous peoples.

Over the last 30 years, the Department completed 36 water rights settlements, four of which were approved by Congress in 2016 for the Blackfeet, Pechanga, Chickasaw/Choctaw and San Luis Rey Nations.

Water stands at the forefront of environmental impacts resulting from energy development on indigenous lands.

In the arid west, where a large number of extractive projects are undertaken, the substantial volumes of water used in drilling operations cause stress on surface water and groundwater supplies.

According to the report, contamination of underground and surface water is also a concern, with many projects threatening vital resources in water-scarce regions.

Activities that compromise indigenous peoples' water supply violate their right to the enjoyment of the highest attainable standard of health, as set forth in article 24 of the Declaration.

A recent study by the Environmental Protection Agency found scientific evidence that activities in the hydraulic fracturing water cycle can impact drinking water resources through spills, faulty well construction, discharge into surface water or disposal into underground injection wells.

One of the most emblematic cases of environmental destruction bearing on indigenous access to water was the Gold King Mine waste water spill near Silverton, Colorado, in 2015.

While the Environmental Protection Agency was conducting an investigation, 3 million gallons of water contaminated with arsenic and cadmium were inadvertently released into Cement Creek and travelled down the Animas and San Juan rivers through New Mexico and across the Navajo Nation to Lake Powell in Utah.

The spill caused severe damage to crops and livestock and threatened the livelihoods of farmers and ranchers.

The long-term environmental and health impacts of the spill are unknown.

The fact that the mine had not been operational for nearly a century underscores the dangers of present-day extractive activities on future generations of indigenous peoples, said the rights expert.

Another effect of energy development that has been borne by indigenous peoples is the dramatic increase in the flaring of natural gas in the Bakken Formation in North Dakota.

Because of the lack of sufficient natural gas pipeline infrastructure in the relatively new production area, many wells in the area have been forced to flare the natural gas product as a method of disposal.

The various hazardous air pollutants emitted during the combustion of the gas flare, including methane, have been associated with a variety of adverse health impacts, including cancer, lung damage and other neurological defects.

These impacts are being felt by the Mandan, Hidatsa and Arikara Nation and surrounding communities.

The report further said that uranium mining continues to have a dark legacy of environmental impacts on Indian tribes, particularly their water supply.

Fuelled by the Cold War, uranium production boomed in the 1960s particularly in the southwestern United States and impacts of decades-old un-reclaimed mines still linger in the form of severe water pollution.

According to the Uranium Mine Location data of the Environmental Protection Agency, to date, approximately 15,000 uranium mines exist in the United States, about 4,000 of which are currently active.

According to the 2012 census, 13 of the states with the highest percentage of Indian populations are in the western United States; over 161,000 abandoned hard-rock mines can be found in 12 western states, 10,000 of which mined uranium.

Although reservations cover only 5.6 per cent of the western United States, one in five uranium mines is located within 10 km of an American Indian reservation, with more than 75 per cent (over 3,200 of 4,600) being within 80 kilometres.

Despite the known environmental and health risks associated with active and abandoned uranium mines with remediation lifetimes of 200 to 1,000 years, with regard to control for disposal sites and uranium tailings sites, respectively, permits have been issued for new uranium projects near the Grand Canyon.

Environmental impacts on Indian tribes are not restricted to extractive energy projects, said the rights expert, pointing out that initiatives to increase the production of hydroelectric power have also had irreversible consequences for tribes.

One of the most destructive impacts was the 1944 Pick-Sloan project to construct and operate several dams to control flooding.

The dams constructed on the Missouri River submerged over 356,000 acres of Indian lands and devastated precious resources.

Displaced indigenous peoples relocated to barren lands as their fertile soils, timber supplies and abundant wildlife were destroyed by the flooding.

The proposed Keystone XL pipeline project also threatens harmful environmental conditions on tribal lands, despite procedural requirements for assessments of environmental impacts.

The Special Rapporteur is concerned about the potential impacts to indigenous peoples that may result from the Presidential memorandum of 24 January 2017 inviting TransCanada to resubmit its construction and operation permit application to the Department of State and directing the Secretary of State to expedite the review process.

She fears that tribal interests are even more likely to be ignored in the expedited review process.

The Special Rapporteur said that she closely reviewed the situation around the Dakota Access Pipeline, which highlights the shortcomings in the United States' policy on consultation.

The 1,168-mile-long pipeline intersects the treaty reservation and traditional territories of the Great Sioux Nation, running near the Missouri River, upstream of the water supply of numerous tribal nations.

A portion of the pipeline runs 100 feet under Lake Oahe, half a mile north of the Standing Rock Sioux Reservation and 70 miles north of the tribe's water supply intake.

As prescribed by the National Environmental Policy Act, the Army Corps of Engineers drafted an environmental assessment of the project, which failed to identify or address the concerns of the Indian tribes located directly downstream of the pipeline.

Maps in the draft assessment initially omitted the reservation or the fact that the pipeline would cross the historic treaty lands of a number of tribal nations.

According to the report, while the issue galvanized many people across the globe in support of the affected tribes, including a proliferation of self-interested native and non-native groups, violence escalated as a result of clashes between local, private security forces and protestors.

While many of the circumstances surrounding the protest constitute examples of poor practices, there were also a number of positive developments.

The Chairman of the Standing Rock Sioux Reservation stated that the protest brought together all seven bands of the Great Sioux Nation for the first time in the last 150 years and galvanized indigenous peoples nationally and from around the globe, who came by the thousands to show their support for the Standing Rock Sioux and other affected tribes.

Another positive development was the series of consultations held by the federal Government with Indian tribes to better integrate tribal views on infrastructure decisions.

The consultations sought to better inform federal agencies about tribal involvement in decision-making that implicates their rights and resources.

In December 2016, the Army Corps announced that it would conduct a full environmental review of the pipeline's impacts to determine the basis on which to grant the final easement needed to complete the pipeline.

These positive steps were overshadowed when newly-elected President Donald Trump issued a memorandum which called for the expedited review and approval of the Dakota Access Pipeline, circumventing the ongoing environmental review.

The Army Corps executed the President's directive, cancelled the environmental impact statement and granted the last easement necessary to begin construction of the pipeline under Lake Oahe.

On 1 June 2017, the pipeline became fully operational, transporting oil through traditional tribal lands and underneath the water supply of the Sioux tribes.

The tribes continued to battle for the protection of their rights in domestic courts and in June 2017, a United States Federal Court agreed with the Standing Rock Sioux that the Army Corps had not adequately considered environmental justice issues nor the risk of oil spill, which could have impacts on treaty reserved hunting and fishing rights.

As is well-documented, said the Special Rapporteur, the controversy surrounding the Dakota Access Pipeline drew thousands of people to the boundaries of the Standing Rock Sioux Reservation as they sought to protect their land and water and uphold tribal sovereignty.

While the actions that took place were mostly non-violent and peaceful, there has been a militarized, at times violent, escalation of force by local law enforcement and private security forces.

Given the impacts of the Dakota Access Pipeline on indigenous peoples, the Special Rapporteur said she remains deeply concerned by the Presidential memorandum of 24 January 2017, which resulted in the granting of the last easement necessary to begin construction of the Dakota Access Pipeline under Lake Oahe and the Notice of Termination of the Intent to Prepare an Environmental Impact Statement

 


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