President Trump’s Executive Orders Supporting Pipelines Infringe Rights Declared by UNDRIP
The recent announcement that US President Trump signed an executive order supporting the Keystone XL and Dakota Access pipelines comes the day after Saskatchewan’s provincial government reported that a pipeline in the province leaked 200,000 liters of oil onto the lands of an Indigenous nation. This is the second major oil spill from a pipeline in Saskatchewan in the past year. The previous spill from a Husky Energy Inc pipeline leaked 225,000 liters into a river and contaminated the drinking water supply of two cities.
The Keystone XL pipeline is set to run from the Alberta oil sands near Hardisty, Alberta, to Steele City, Nebraska, where it would join an existing pipeline to carry crude oil to refineries on the US Gulf coast. The proposed Dakota Access pipeline would run from North Dakota to Illinois and may adversely affect the water supply and sacred sites of Indigenous nations which hold current and historic claims to land along the proposed route, particularly the Standing Rock Sioux, whose present-day reserve lies just south of the proposed route. Opposition to the Dakota Access pipeline has been a flashpoint of strong Indigenous rights advocacy and grassroots protest movements. The Wall Street Journal has reported that immediately following the inauguration of President Trump, demonstrators began preparing for a new round of protests and clashes with state authorities.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international instrument enshrining rights that, taken together, “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” It was adopted by the UN General Assembly on 13 September 2007, with Canada finally removing its (oft-criticized) permanent objectors status in May of 2016.
There are at least 5 Articles in the UNDRIP that are relevant to the issue of pipelines and Indigenous lands:
States shall 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.
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.
Indigenous peoples have the right to determine the responsibilities of individuals to their communities.
On September 22, 2016, Victoria Tauli-Corpuz, the Special Rapporteur on the Rights of Indigenous Peoples released a statement urging the US to consult with communities affected by the Dakota Access Pipeline in good faith, and to ensure the free and informed consent of these peoples prior to the approval of any project affecting their lands, in accordance with the US commitment to the implementation UNDRIP. On November 15, 2016, the United Nations Human Rights – Office of the High Commissioner issued a statement entitled “Native Americans facing excessive force in North Dakota pipeline protests – UN expert.” This statement outlined allegations of excessive force promulgated by US security forces against the Dakota Access protesters, expressed by Maina Kiai, the UN Special Rapporteur on the rights to freedom and peaceful assembly. The Special Rapporteur supported the September 2016 call of UN Special Rapporteur on the rights of Indigenous peoples, Victoria Tauli-Corpuz, to halt construction on the Dakota Access pipeline. He requested that construction on the pipeline be halted within 20 miles east and west of Lake Oahe, under which the pipeline route travels. The Special Rapporteur recognized the rights of cultural heritage defenders such as the Standing Rock Sioux and their allies.
The Assembly of First Nations explains the relationship of Indigenous peoples to the land from a pan-Indigenous perspective:
The traditional philosophy of First Nations is centered on the holistic view that everything is interconnected. Humanity is part of the ecosystem. First Nation peoples live closer to the land and are more directly affected by environmental degradation than most other Canadians. First Nations recognize the link between the health of the environment and the health of their people. They have experienced the ravages of poor environmental stewardship first hand including contaminated lands, air, water, traditional foods and medicines.
Environmental stewardship is one of Indigenous peoples’ responsibilities within their respective cultures due to the worldview in which all living beings, including plants and animals, are relatives.
Within the Standing Rock Sioux’s spiritual and ecological culture, water protectors have a responsibility for environmental stewardship. These water protectors and their allies will not stand aside and allow their lands and waters to be polluted and destroyed by pipelines. Many other Indigenous nations share this dedication to environmental stewardship; over 200 Indigenous nations have pledged support to the Standing Rock Sioux in their protests of the Dakota Access pipeline.
So long as the Trump administration works to undermine the goals of sustainability and healthy ecosystems, there will be a clash between Indigenous nations and US federal and state governments. In taking these recent executive actions, the Trump administration seems disinterested, at best, in the numerous violations of UNDRIP embodied in the Keystone XL and Dakota Access Pipelines, and will only further set back efforts at reconciliation with North America’s Indigenous peoples.