This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The struggle in Standing Rock North Dakota has played out in many other places around the world as indigenous communities have challenged the conduct of extractive sector corporations. Communities around the world are contesting corporate involvement in violations of global human rights guarantees. Business enterprises operating in or near native lands must assess how their activities affect the rights of indigenous people and must endeavor to avoid abuses.
Had the administrative decisions that led to the dispute in North Dakota been informed by international standards, a more sustainable solution may have emerged. International norms recognize that indigenous peoples have rights and business enterprises have responsibilities particularly where their operations place human rights at risk.
The Standing Rock Sioux protested construction of the Dakota Access Pipeline. An estimated $3.7 billion project, the pipeline was to transport crude oil across four states, and across land sacred to the Sioux. The U.S. Army Corps of Engineers "fast track" permit approval process granted Energy Transfer Partners the go ahead to construct the pipeline, but the permit process did not leave time for the Standing Rock Sioux, the affected community, to express concerns about potential adverse impacts of the pipeline on their ability to enjoy fundamental human rights.
The central concern of the community is in essence existential. The pipeline is to be constructed near the Missouri River, the community's only water source. An oil spill could be catastrophic. Nations of native peoples gathered in North Dakota to say, no. They have the right to do so. The protest over the pipeline in significant part stems from the failure to consult the community and to obtain community's consent to construction.
The prerogatives of indigenous peoples are too often put aside. Because indigenous peoples around the world have suffered abuses and remain among the most disadvantaged and disfavored groups in most societies, international instruments now acknowledge the rights of indigenous communities to self-determination and to participation in decisions which could adversely impact ancestral territories, cultural identity, and the health and survival of a people.
The 2007 United Nations Declaration on the Rights of Indigenous People (UNDRIP) provides minimum standards to protect the survival and dignity of the world's over 350 million indigenous peoples. UNDRIP states that any project affecting the lands or territories indigenous peoples rely on for resources require "FPIC," the Free Prior Informed Consent of indigenous peoples.
At Standing Rock, the demonstrations expressed dissent, not consent. In the end, DAPL was opposed by over 200 Native American groups who converged in North Dakota campsites to prevent the pipeline. Despite a court order to halt construction pending resolution of litigation, the company continued and bulldozed a tribal burial ground. The destruction of graveyards is recognized as a crime in international law.
Private security guards hired to protect the pipeline turned dogs on indigenous protesters trying to protect their dead from desecration. Private security also used pepper spray and detention to dissuade protests. The state government ordered an emergency declaration to deal with protesters.
In 2011, the United Nations Human Rights Council unanimously endorsed a framework and set of guiding principles on business and human rights. The framework provides that governments must protect human rights, businesses must respect human rights, and those whose rights are violated must have access to remedy.
Energy Transfer Partners (ETP), the company responsible for pipeline construction, has maintained in public statements that all construction has been "in accordance with applicable laws, and the local, state and federal permit and approvals we have received." Indeed, this may well be true. Even assuming so, clearly ETP did not earn the approval of the affected community.
In other parts of the world similar protests have been put down with violence and impunity. Pipelines are constructed over the objection of communities affected. To the extent that construction is seen as a victory for business interests, it is a pyrrhic one as operations are often sabotaged. Often other avenues for the expression of objections or the preservation of rights protections remain out of reach for affected communities. The costs of failing to consult indigenous peoples are too often underestimated.
The recent course correction by U.S. courts is encouraging, but local, state and federal procedures can and must do more to ensure meaningful tribal input on environmental impacts and to protect tribal lands, resources and rights. Consultation is rooted in cultural approaches to communication. The conventional approach to consultation from the vantage point of a government official or a corporate officer is often at variance with those of the affected indigenous communities.
The lesson of Standing Rock is that it is no longer business as usual where human rights are at risk. Silencing the interests of indigenous peoples can stop at Standing Rock, business enterprises and government bureaucrats can and must take a more expansive view of information, consultation and participation.
Erika George is a professor at the University of Utah S.J. Quinney College of Law. She has testified before international human rights treaty bodies and foreign governments on international human rights law, racial discrimination and gender violence.