By UN Office of the High Commissioner for Human Rights
A UN human rights expert has called on all levels of government in the United States to adopt consistent practices when consulting with indigenous tribes on projects that could affect their rights, like the Dakota Access Pipeline.
The appeal was made by the United Nations Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, at the end of a mission to the US to assess the impact of energy development projects. During the visit, Ms. Tauli-Corpuz, noted that, in spite of a US commitment to positive and meaningful engagement with tribal governments, challenges remained.
The Special Rapporteur said: “The legislative regime regulating consultation, while well intentioned, has failed to ensure effective and informed consultations with tribal governments. The breakdown of communication and lack of good faith in the review of federal projects leaves tribal governments unable to participate in dialogue with the United States on projects affecting their lands, territories, and resources.”
Nevertheless, the Special Rapporteur saw encouraging steps being taken by federal agencies to follow procedures set out in the UN’s Declaration on the rights of indigenous peoples. She said: “Since 2012, the federal government has made commendable efforts to develop policies toward more robust measures.
“I also applaud the January 2017 joint report from the Departments of Interior, Army and Justice to solicit recommendations on engaging tribes in infrastructure-related activities. I am encouraged by the process of meaningful consultation with the tribes that the United States undertook in creating this report, and applaud the efforts made by the government to consider ways in which to improve consultation processes.”
In order to meet the obligations of the UN Declaration, Ms. Tauli-Corpuz said the United States should continue to build efforts to incorporate principles of meaningful consultation with the goal of obtaining free, prior, and informed consent from indigenous peoples as set out in the Declaration.
She added that given the impacts on indigenous peoples of the Dakota Access Pipeline, she was deeply concerned by a presidential memo on 24 January clearing away the last hurdle so that construction of the Dakota Access Pipeline under Lake Oahe could begin. The Special Rapporteur also expressed concern about similar issues on other projects.
The Dakota Access Pipeline issue and other examples in Ms. Tauli-Corpuz’s end of mission statement highlight the many water concerns associated with energy development. In places like the arid west, the substantial volumes of water used in drilling operations cause stress on water supplies. Contamination of underground and surface waters is also a concern, with many projects threatening vital resources in water-scarce regions.
Ms. Tauli-Corpuz said: “A recent Environmental Protection Agency study found scientific evidence that activities in the hydraulic fracturing water cycle can affect drinking water resources through spills, faulty well construction, discharges into surface waters, or disposal into underground injection wells. For indigenous peoples, water provides life, subsistence, and has undeniable spiritual significance. In Lakota, they express this belief as ‘Mni Wiconi: water is life’.”
However, the Special Rapporteur says the outlook is not entirely bleak. 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 are used for the national electrical grid system.
“Indian tribes are owners and operators of new and emerging technologies, breaking the mold of reliance on outside entities,” the Special Rapporteur says. “These examples and many more are proving that by exercising political sovereignty, indigenous peoples can approach energy resource development in a diverse way to support economic sovereignty.”
Indigenous communities in the United States want more control over their energy resources as part of their overall desire for self-determination with respect to their lands, territories, and resources. They are committed to balancing many different sets of concerns in their own approaches to energy development.
The tribes rely on the income generated from natural resources to not only support critical government programs, but also to balance the protection of their lands, waters, and sacred places with the benefit of revenue and jobs.
“I have been very impressed by the remarkable and unshakeable resolve tribes have to find creative ways towards self-determination. Two such companies include the Missouri River Resources, a wholly-owned tribal company by Mandan, Hidatsa, and Arikara Nation which is dedicated to using best practices in the oil and gas industry to generate economic benefits for the tribal community through responsible oil development. Similarly, the Red Willow Production Company, a company wholly owned and managed by the Southern Ute Tribe, has been generating revenue through oil and gas development on their reservation since 1992 and continues to maximize benefits for their tribal community while carefully managing their lands and resources.”
The Special Rapporteur says: “Tribes must continue to be supported to develop capacity and resources to realize self-determination to take advantage of their expanded authority in all areas including in energy development and law enforcement.
“I urge the government to continue to honour its treaty and trust obligations to indigenous peoples to ensure that native communities are not further plagued by violence,” said Ms. Tauli-Corpuz, adding that she hoped the government would provide adequate financing.
Finally, I recommend that for any extractive industry project affecting indigenous peoples, regardless of the status of the land, the United States should require a full environmental impact assessment of the project in consideration of the impact on indigenous peoples rights.”
During her official visit to the United States, Ms. Tauli-Corpuz met Government and State officials, a wide range of civil society and human rights organizations working on indigenous rights. She also visited indigenous communities to hear directly from them about their issues and concerns.
The Special Rapporteur will present a comprehensive report containing her findings and recommendations to the United States Government and the UN Human Rights in September.
The Special Rapporteur on the rights of indigenous peoples, Ms. Victoria Tauli-Corpuz (Philippines), is a human rights activist working on indigenous peoples’ rights. Her work for more than three decades has been focused on movement building among indigenous peoples and also among women, and she has worked as an educator-trainer on human rights, development and indigenous peoples in various contexts. She is a member of the Kankana-ey, Igorot indigenous peoples in the Cordillera Region in the Philippines.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
See the UN Declaration on the Rights of Indigenous Peoples
UN Human Rights, country page: United States