Tar Sands Pipeline, the Mother Earth Accord and the United Nations Declaration on the Rights of Indigenous Peoples

To what extent are legal practitioners and law students in the area of energy law made aware of indigenous rights and how those impact upon energy law? Too often, it seems, legal education and practice treat indigenous legal matters as a discrete and exotic area of law that will not infiltrate into the mainstream practice of law. ( which will be a topic for a future blog post). But nothing could be further from the truth. The controversy over the Keystone XL pipeline, also referred to as the Tar Sands pipeline, shows just how prevalent indigenous rights and issues are in current energy law considerations.
The proposed pipeline would carry oil from Canada to Texas—carrying “tar sands crude oil.” In some quarters, this has been received with good news—it would provide additional resources for oil, easing concerns about shrinking oil availability. But there have been sharp protests to the proposed pipeline by effected indigenous communities. The “Mother Earth Accord” outlines the indigenous concerns about the environmental and health effects of the proposed pipeline. The Accord was presented to President Obama in December 2011. 

The Accord is an example of indigenous activism on legal issues. According to the Newspaper Rock , “The Accord was developed in September [2011] during a Rosebud Sioux tribal summit.” The Accord invokes rights given in the United Nations Declaration on the Rights of Indigenous Peoples to be consulted with and to consent to activities as set out in Article 32 of the UNDRIP.

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall 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.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual
impact.

The Mother Earth accord states, in part, in reference to the UNDRIP:

“We insist on full consultation under the principles of “free, prior and informed consent,” from the United Nations Declaration on the Rights of Indigenous Peoples both in the United States and Canada”

National Geographic is carrying a news item that predicts likely cancellation of the tar sands project through not receiving approval from Obama.  This indicates a deadline of 21 February 2012 for the Obama decision.
This situation is notable for many reasons, not the least of which is the invocation of the UNDRIP in the legal issues about the tar sands pipeline—with the United States which of course was one of the four states to oppose the approval of the UNDRIP in the United Nations General Assembly. The United States has since indicated a change in its position on the UNDRIP. [See ths link here] 

The further developments on this situation bear watching, and updates will be posted to this blog from time to time.

Written by Sarah Sargent.