TransCanada’s multi-billion dollar Keystone XL oil pipeline has been shrouded in controversy since its proposal in 2008. The XL Pipeline, formed as an extension to the existing Keystone Pipeline system, is set to deliver tar sands oil—a variety of crude described as the “world’s dirtiest, most toxic, and most difficult-to-clean-up-when-it-spills”—from British Columbia to the Gulf Coast of Texas. In the process, it will traverse the Sand Hills of Nebraska and the regionally crucial Ogallala Aquifer that lies beneath. However, the Department of State has yet to grant TransCanada a permit to begin construction in the United States.
When pressured by Congress last January to decide on the pending permit request, President Obama rejected the application, citing insufficient time to assess the full impact of the project. With environmental concerns abundant, the Department of State is primarily focused on protecting the quality of the Ogallala Aquifer, which provides approximately 82 percent of drinking water for the region’s 2.3 million population.
In March, President Obama authorized the construction of the southern half of the XL, which stretches from Cushing, Oklahoma to the Gulf Coast. While this portion of the XL pipeline may not cross an environmentally fragile and integral U.S. water source, it does traverse fragile and culturally important indigenous lands. These interests should be given equal consideration with environmental concerns given in particular a growing body of international legal norms recognizing indigenous peoples’ rights to consent to development on their sovereign lands.
The approved section of the XL pipeline will run through the sovereign lands of multiple Native American tribes in Oklahoma and Texas, including the Sac and Fox, Caddo and Choctaw nations. While TransCanada has met with tribal leaders from multiple Indian nations to discuss concerns, and varying levels of support for the project do exist within these communities, there still exists a widespread concern for the sanctity of lands within the pipeline’s route. A study by the Oklahoma Archeological Survey found last year that the Keystone XL pipeline threatens eighty-eight archaeological sites and thirty-four historical structures within the state. Some of these sites, according to Robert Cast, officer of historic preservation of the Caddo Nation of Oklahoma, are considered sacred and “contain burials and specific artifacts of ceremonial use.” Many Native American activists have continued to speak out against the XL pipeline in the region.
On March 22, President Obama announced the fast tracking of this extension of the pipeline from a podium in Cushing, OK, a town located within the Sac and Fox nation. During the press conference, Native American protestors who gathered to express their concerns over the pipeline were forced to protest from an erected cage removed from the press conference site. Some Native American opponents see Obama’s endorsement of “a project that will desecrate known sacred sites and artifacts [as] a real disappointment and betrayal.”
Native tribes in the Untied States are afforded sovereignty over their lands and affairs, at least in principle. An article by the Washington Post last month framed the issue this way: “whether gaining tribal support [can be seen either as] courtesy, as the company [TransCanada] puts it, or a legal obligation.”
While TransCanada has an extensive, although vaguely rhetorical “approach” to Native American relations, there are no international or domestic laws that can bind the corporation to obtaining Native consent. However, this is not the case for the United States, who, although not party to the following international conventions or courts, is compelled by regional and international human rights norms to obtain consent from its indigenous communities before developing projects that interfere with the integrity of their communities.
For the past twenty years, the concept of the Free, Prior and Informed Consent (FPIC) of indigenous peoples to policies and projects that affect their rights has developed within the international community. The International Labor Organization’s Indigenous and Tribal People’s Convention (ILO 169), first recognized the need for FPIC in 1991. The UN Declaration on the Rights of Indigenous Peoples adopted in 2007 also recognized the right of indigenous peoples to FPIC. Additionally, working drafts of the Organization of American States’ American Declaration on the Rights of Indigenous Peoples also include FPIC as a fundamental right of indigenous peoples in the hemisphere.
Additionally, a case decided by the Inter-American Court of Human Rights (IACHR) last July, Sarayaku v. Ecuador, recognizes the right of indigenous people to be consulted by the state before projects which could affect indigenous cultural or property rights are undertaken. According to Amnesty International’s Fernanda Doz Costa, “this sentence will have a far-reaching effect on countries across the region.”
While the United States is not as often associated with issues of indigenous rights as are other countries in the region, it still must reach to uphold the international standards set for interacting with these communities. Although President Obama has been one of the most active modern presidents in relation to Native American issues, much progress still needs to be made. In a country where the Native American population is considerably less prominent in terms of political and social visibility than it is in neighbor countries, we must hope that regional and international precedent will carry weight.