A Protest Upon the Plain: The Stand at Standing Rock

The protest at Standing Rock against #DAPL and talks over a dam in Canada to #MakeMuskratRight add urgency to action on UN declaration

October 28, 2016
(AP Photo)

The protests at the Muskrat Falls hydroelectric project have reached a peaceful resolution in a form of compromise agreement between the Canadian province of Newfoundland and Labrador, the leaders of the Innu Nation, the Nunatsiavut Government and the NunatuKavut Community Council.  The media is reporting that the protesters have left the site, but the Indigenous peoples who have been trying to focus attention on their struggle to mitigate the threat of methyl mercury contaminating their food source do not see themselves as protesters, but as “land protectors”.

The Sioux Nation protesters at Standing Rock North Dakota are also calling themselves protectors of the water.  As described by Chase Iron Eyes of Standing Rock Sioux Tribe, who is running for United States Congress in the upcoming election, the water protectors are fighting for their rights and see the protests as the manifestation of responsibility to protect the sacred gift of water.  The Standing Rock protests are unprecedented in their scale and reach, and have triggered a self-examination by the U.S. government of its obligations to consult Indigenous peoples on infrastructure developments. The protests to stop the construction of the 1880-kilometre Dakota Access Pipeline dwarf other land disputes in recent memory.  Over a thousand Indigenous protesters, from as far away as Hawaii, Yukon, the Amazon, and the Sami from Norway, have made their way since mid-summer to the Dakotas to support the Standing Rock Sioux and protect water and land that they consider to be sacred.

The tense protest itself has drawn much attention, following the recent high-profile detention of young actress Shailene Woodley, who can be seen in Oliver Stone’s new release Snowden, and a reporter, Amy Goodman. Thousands watched on Facebook Live in recent days as skirmishes broke out between authorities and a group of protesters at a site some distance from the main encampment where construction equipment for the pipeline was located.

What should also be of focus in both these protests  – especially for those interested in the evolution of Indigenous rights – are the encouraging actions of the US federal government and the provincial government of Newfoundland and Labrador to take steps to address the gaps in consultation that are at the heart of the disputes. In Labrador, we are seeing Indigenous governments work with the province to find a solution.  And, in direct response to the Standing Rock protests, the U.S. government has moved forward with listening sessions to consider where there should be reforms on how they consult Indigenous peoples on infrastructure projects.  Tribes have been invited to government-to-government consultations for their views on questions that explore how to ensure meaningful input from tribes into infrastructure reviews and decisions, which may also include regulatory or statutory changes to increase timely and meaningful consultation.

The concept that governments have an obligation to consult Indigenous peoples takes different forms in national and international scholarship and law. It is expressed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Obama administration considers not to be legally binding but carries “both moral and political force”.

There is already a constitutionally-required duty to consult and accommodate in Canada, but Indigenous leaders hope that the Canadian government’s recent embrace of UNDRIP will provide greater protections. Perry Bellegarde, National Chief of the Canada's Assembly of First Nations, speaking to Indigenous lawyers at the Indigenous Bar Association’s annual conference in Vancouver, explained that the most important recommendation of the country’s landmark Truth and Reconciliation Commission was to implement UNDRIP.  According to Bellegarde, UNDRIP is a framework for reconciliation.

The protests at Standing Rock add new urgency to U.S. implementation of UNDRIP. Claiming a lack of adequate consultation, the Standing Rock Sioux have brought a court action against the U.S. Army Corps of Engineers, which has jurisdiction over the land that includes an area that the Sioux believe is a burial ground, as well as a lake and river.  The Standing Rock Sioux Tribe also sought an emergency injunction before the United States Court of Appeals (District of Columbia) to halt the pipeline construction. Although the injunction was denied on October 9, the ruling is highly sympathetic to the Tribe and notes that the matter is also separately before federal authorities who have not yet granted necessary approvals.

Unlike what now seems to be a peaceful resolution at Muskrat Falls, at Standing Rock there remains a risky impasse, with the proponent of the project recently restarting construction and nearby ranchers going about their business armed, despite joint calls by the United States government and the Army Corps for a voluntary pause until the Army Corps has finished its review.  UNDRIP implementation might help the parties to find a resolution consistent with meaningful consultation with and consent by Indigenous peoples.  

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

About the Author

Risa Schwartz is a sole practitioner, focusing on international law and the intersections between trade and investment law, environmental law and Indigenous rights. Risa formerly worked as a senior research fellow at CIGI, as counsel to the Ministry of Aboriginal Affairs in Ontario and the Ministry of the Environment, and as a legal officer at the WTO.