THEME: Mediation and International Politics
This article is authored by Srishti Pandey, Akanksha Sinha, and Mritunjay Pathak from Maharashtra National Law University, Nagpur.
Abstract
TransCanada Corporation (currently known as TC Energy) is an energy company in Alberta, Canada which deals with the development and operation of energy infrastructure in Canada, the United States and Mexico. When TC Energy proposed KXL pipeline in 2008, the ultimate fight arose between the indigenous people on one hand and TransCanada and government on the other hand due to land ownership rights, energy security and environment concern. As litigation did not yield any fruit, this hypothesis of solving the dispute through mediation has been adopted. The aim of this contribution is to provide a practical and problem-solving perspective on the dispute surrounding the keystone pipeline development and the rights of the indigenous people. It also provides for why the system of mediation is needed to solve the dispute. First, the problem is defined at length, and an account of the legal and social intricacies involved is provided. Building on this assessment, the method of mediation that should be used is elaborated. Second, the essay while differentiating between the position and the strength of the parties focuses on the interest of the parties which the current dispute entails. Third, the bargaining power of the parties which can affect the process of mediation is highlighted and the issue that needs to be addressed by the mediator is provided for. The full sets of the underlying needs and objectives of the parties are then identified and how solutions may be conceived to meet these needs is expounded. In the end the reasons for the various solutions are elaborated upon.
Introduction
Land and affiliated proprietary interests in the land are, projected on a plane of time. [1]The category of quantity, of duration is applied to them.[2] In this context, the indigenous people have been the custodians of the Native American lands since time immemorial. To quote Donald trump,
“You (Native Americans) were here long before any of us were here. Although we have a representative in congress who they say was here a long time ago. They call her ‘Pochahontas’.” [3]
With the development of the concepts of trust and beneficial ownership and subsequent treaties between the Government of the United States and the indigenous people, there have arisen; more than a few altercations based on land entitlements. This complex patchwork of rights and obligations which is so oft associated with Native American land ownership also includes within its framework, issues associated with industrial development and extraction of natural resources from tribal lands.[4] Presently, there are two kinds of Native American lands, i.e. trust land and fee land.[5] The federal government holds legal title in the trust land, but the beneficial interest remains with the tribe.[6] On the other hand, the fee land is purchased by the tribe which acquires the legal title under specific statutory authority. The concept of Native American natural resource ownership is akin to that of land ownership. [7]
In a series of decision by the Supreme Court of the United States, by Justice Marshall, several important principles of the Native American law have been established.[8] One such principle is the federal trust responsibility, whereby the government charged itself with the moral obligations of the highest responsibility and trust towards the tribes. [9]The government has a fiduciary obligation to protect and preserve the Native American assets and resources.[10] The principle of sovereignty, i.e. the right of self-governance of the tribes is also indispensable to the tribes.[11]
Tracing its roots to the Dawes Act, 1887[12], the practice of land allotment policy has reduced the amount of land owned by the tribes, considerably. To curtail this, the allotment policy was ended by the government in 1934, by the Indian Reorganization Act[13], which extended the trust period indefinitely. In addition to the millions of acres of lands lost often in violation of treaties, inadequately controlled extraction and industrial activities have created concerns regarding the degradation of environmental, cultural and economic iota of the indigenous habitats. This has led to their forced removal from their ancestral territories, for example, the Choctaw, Cherokee were removed from south-eastern United States to the Oklahoma territory in a trek through what has been called a “trail of tears,” in which many of them perished.[14]
Another instance involves the Black Hills in South Dakota, which is home to the Lakota and other tribes, known collectively as the Sioux Nation.[15] These tribes and the US Government had signed Treaties of Fort Laramie via which the land was reserved to the tribes. Soon thereafter, following the discovery of gold in these lands, the Congress passed a legislation reversing the treaty and devolved the land rights of the Black Hills to the government.[16] The tribes did not accept the Supreme Court’s decision in 1980 which bestowed certain compensation for the land and instead continued to request the return of the land. [17]This was despite the fact that they are one of the poorest groups in the nation. The religious significance, self-determination and the tribes’ identity springs from their land[18]. The Special Rapporteur James Anaya, heard concerns about several currently proposed projects that could cause severe irreversible harm to the tribal habitat, including the Keystone XL pipeline and the Pebble Mine project in Alaska’s Bristol Bay watershed.[19]
Amongst other complications, the lack of consultation by the state and federal authorities with the tribes for setting up pipelines, the treaty breach of the 1851 and the 1868 Fort Laramie, loss of lands due to the Dawes Act, and dawdling implementation of the United Nations Declaration on the Rights of Indigenous Peoples[20] are the central impediments faced by the tribes in Native America. In light of this context, which surrounds the construction of the Keystone Pipeline XL, a settlement mechanism is proposed in this essay.
Diagnosing The Problem
Significance of the pipeline
The Keystone XL Pipeline is not a new project. It is a proposed extension of the existing Keystone Pipeline system. This system currently, transports up to 600,000 barrels of oil per day between Canada and the US.[21] The pipeline currently runs from Alberta’s sedimentary basin to refineries in Illinois and Texas.[22] The extended project would connect the existing pipeline system to bring oil from Hardisty, Alberta in Canada to Steele City Nebraska.[23]
The opponents of the project are concerned about the power lines associated with the project that span the migration route of the endangered whooping crane.[24] Not so long ago, the Nebraska Public Service Commission approved the new route that was submitted for approval by TransCanada.[25] This decision was upheld by the Nebraska Supreme Court.
History of the pipeline
In 2005 TransCanada Corporation proposed the Keystone Pipeline project which was to be built in four phases. Amongst which phase 1 acquired presidential permit for facilities at the U.S.-Canada border in 2008.[26] In the same year an application for the extension of the pipeline project, Keystone XL Phase 4 extension was sought (KXL).[27] During this time, opposition was witnessed in Nebraska. This further increased in 2010, after Phase 1 of the pipeline started working. Legislators, scientist, started speaking against the pipeline. Environmental protection agencies questioned the need of the extension. In 2012, Barack Obama rejected the pipeline, and said that TransCanada is free to submit another application.[28] This new route received the permission of the governor and was held as constitutional by the Nebraska Supreme Court in 2015.[29] Before his term ended Obama vetoed the bill for construction of the pipeline and rejected the application of TransCanada to build the KXL.[30]
Trump Era
On Jan. 24, 2017; President Trump issued an executive order to expedite the approval of the Keystone XL Pipeline and the Dakota Access Pipeline.[31] Various tribes, including the Rosebud Sioux Tribe submitted their claims in opposition. The groups argued that the environmental review under the National Environmental Policy Act and the Endangered Species Act is inadequate as it relied on the environmental impact statement from Jan. 2014 and failed to consider certain key information on the project’s impacts.[32] The proposed route crosses the Lakota homelands and treaty territories, endangers the Ogallala Aquifer, which serves as a water supplier for both native and non-native users.[33]
In 2017 the Keystone pipeline system leaked 210,000 gallons of oil in South Dakota due to construction damage.[34] In Nov. 2017, the Nebraska Public Service Commission approved the construction of the pipeline, albeit through a longer, route, but which deemed to have had the least environmental impact. This mainline alternative route after review by the State Department is considered to have potential for environmental impacts, should an accidental release of crude oil from the Keystone XL pipeline or facilities occurs.[35] Subsequently, the U.S. District court for the District of Montana ordered the state department to review the impact of the pipeline and issued an injunction on all preconstruction and construction activities.[36] TransCanada appealed to the U.S. Court of Appeals for the Ninth Circuit which upheld the injunction. In February 2019, the District Court of Montana allowed for limited construction work on the pipeline, outside of the pipeline’s main route. [37]
In an unprecedented move, President Trump issued a presidential permit authorizing the construction, operation, and maintenance of the KXL pipeline. The permit cites only Trump’s authority as President; it does not mention the State Department or the litigation around the previous presidential permit.[38] In a lawsuit filed by the Indigenous Environmental Network and North-Coast Rivers Alliance, the authority of Trump to issue a permit was challenged on April 5, 2019.[39] It was contested that the land at the U.S.-Canada border is under the authority of the Bureau of Land Management after Congress directed BLM to manage the land. TransCanada as a result of this missed the entire 2019 construction season.
On June 6, 2019, the ninth circuit granted TC Energy’s request for vacating the November injunction by the Montana District court due to the new presidential permit.[40] In less than a month, several groups challenged the construction as being short of adequate environmental impact analysis.[41] At this juncture it is important to note that another oil spill took place in North Dakota and was one of the largest onshore crude oil spills in the region in the last decade (383,000 gallons).
The current status
Judge Morris allowed the case to move forward. However, TC Energy was not barred from working on the pipeline as the work will not start before the spring of 2020. On January 21, 2020, the South Dakota Water Management Board approved the water permits for KXL. The permit is to draw water from the Cheyenne, White and Bad rivers.[42] Recently on Jan. 22, 2019, the Department of the interior granted a right of way to TC Energy for thirty years allowing for the construction of the proposed KXL pipeline across 44 miles of federally managed lands in Montana.[43]
The need for a golden mean
Considering the fact that it is a decade old dispute and conflicting decisions from various judicial and quasi-judicial bodies have come up, it is essential to note that a tripartite settlement between the U.S. Government, TC Energy Corp. and the aboriginal people of Native America must be considered. This conflict has not only led towards the loss of taxpayers’ money but also, loss of construction season for the TransCanada Corporation and loss of revenue and instability in the life of the aboriginal people.
The approach
The approach in this essay, as distinctive from the proponents of the Real Divide as propounded by Owen Fiss[44], is based on focusing on the interests and needs of the parties and provides for a problem solving continuum. It is quite apparent that the indigenous people place different values and their preference stems from an emotional perspective placed at the highest pedestal as compared to the U.S. Government which places its focus on developmental goals.[45]
Mediation And International Law
The branch of Public International Law operates outside the contours of municipal law and governs relationship between two or more nations, international organizations and, in certain cases, individuals.[46]The keystone XL pipeline conflict is transnational in nature.[47] The fight to stop the proposed construction of the pipeline has been continuous and caused breach of public tranquility as tens of thousands of people came on the streets; opposing the presidential permit granted to the TC Energy approving them to continue with the construction of the oil pipeline.[48] Settling conflicts by peaceful means is the need of the hour and thus conflict management strategies should be implemented to eschew further harm to both nations’ peace and prosperity and especially the indigenous communities.
Mediation in its diverse forms and styles is mounting rapidly as a dynamic and multi-faceted practice all over the world.[49] Mediation is part of the larger dispute resolution system called the ‘Alternative Dispute Resolution System’ (hereinafter referred as ADR).ADR is not a recent occurrence since in ancient times the concept of parties settling their disputes themselves or with the assistance of third parties is very well known.[50]The ADR system, and especially mediation, is becoming a popular method of resolving a dispute, whether domestic or international in character, since it seeks to provide inexpensive, simple, speedy and accessible justice. Mediation is a diplomatic procedure involving an attempt to resolve the disputes either by the disputing parties themselves or with the help of third parties such as mediators through the use of dialogue and methods of discovering facts.[51]Considering that the fundamental purpose of international law is to preserve peace and security, mediation is the means by which it can be achieved and the authors of this paper proposes mediation as the best course of action.
Consent of the parties
It is not obligatory upon the states to resolve their differences, and this applies in the case of serious legal battles as well as minor political disagreements. Mediation is operative only when the disputing parties consent to it. The writers of this essay believes that the parties would agree to negotiate taking into account the long-standing conflict between the two nations involving complex legal, economic, environmental and social issues.
Existence of dispute
Mediation requires in the first instance the existence of a dispute. Permanent Court of International Justice in the case of Mavrommatis Palestine Concessions (Jurisdiction) Case[52]attempted to define dispute-
‘A disagreement over a point of law or fact, a conflict of legal views or of interests between two persons’.
If ever there was a legal battle exemplifying a game of ping pong, it would be the stop-start story of the keystone XL pipeline.[53]The initiative of oil independence by the US government has gone through seven years of intense citizen opposition and complex contradictory legislative mandates making it one of the largest legal disputes in the world. The presence of a conflict is, therefore, unquestionable.
Mediation Strategy
The mediation process is tedious when there are a wide range of issues involved and the vast number of participants with varying individual and collective interests are party to the conflict. Sometimes such mediations also involve broad issues of public policy, for example Keystone XL Pipeline is an infrastructure project intending to serve larger public interest.[54]Such mediations are marked by high levels of intensity, the need for considerable resources and enforcement of settlement agreements. Nevertheless, the core principles of mediation remain the same, and what varies is the structure of mediation.
Mode of mediation adopted
There will be an amalgamation of different kinds of mediation modes in Keystone XL Pipeline dispute, as one mode cannot be used in isolation with respect to the other. The suggested mediation model that best suits the Keystone XL dispute’s factual framework will be a mixture of transformative mediation, evaluative mediation, and tradition-oriented mediation, as some mediations will begin in one mode and ultimately be transformed into another.[55] In transformative mediation, the mediator helps participants in constructive mediation to address the underlying causes of their dispute with a view to engaging them in discussion and improving their relationship whereas in evaluative mediation, the mediator envisions reaching to a settlement which accords with their legal rights and obligations, industry norms, or other objective social standards. The mediation techniques listed above cannot be separated one from the other. Typically, they overlap to overcome the dispute swiftly. Lastly, the tradition-oriented mediation model will also pitch in due to the fact that indigenous communities and other socio-legal groups such as NGOs are involved. This model is dialogue based and is used in highly structured or hierarchical systems, for example in indigenous settings. Negotiations in the Keystone dispute will be tripartite and therefore the above mediation techniques would be appropriate to resolve the dispute.
Entering The Dispute: American Mediation Process
In U.S. there are no governing bodies for Mediation. The American Arbitration Association and American Bar Association provides for mediation mechanism and professional mediators. The dispute between the government and indigenous people with regards to land has been previously settled and there has been success.[56] The example of Puyallup Tribe in Tacoma, Washington can be taken into consideration as the tribe was given certain parts of Tacoma through a treaty and the government ignored the treaty and took the tribal land for development purpose which lead to expensive and time consuming litigation and therefore negotiation was done between the communities which was successful.[57]
Positions, Strengths And Interests
Position
In a mediation session, the disputing parties hold their respective positions, and demonstrate little or no willingness to compromise on those positions. Position is nothing more than a statement about what the parties want as a result of the mediation session. In the Keystone Pipeline conflict there is a presence of three different parties, two of which are supporters of the oil pipeline development project (the present U.S. government and TC Energy) and the other is the strong opponent (Indigenous tribes).Indigenous tribes do not want to pursue this pipeline project, as they are rising up to protect Mother Earth and maintain their heritage as native landowners. Whereas the state department gave the construction of the pipeline a green light that demonstrated their pro-building stand.[58]
Strengths
The strengths of the disputing parties are nothing more than factual circumstances which support their positions throughout the mediation session. Violation of the principle of free, prior and informed consent recognized in international law[59] and not respecting the indigenous people’s right of self-determination further strengthens their position. Showing no attempt to study how the pipeline project will impact their water systems and sacred lands across their respective territories aggravates their fear and motivates them not to compromise on their guiding principles. At the same time, Government is also using its strengths in order to suppress the voices of those who are against the project and continue with its construction. The Government’s main strength is ‘National Interest’, wherein the power of eminent domain has been used to secure the Keystone XL pipeline. It has been purported that the pipeline would support the wider public interest of generating employment and energy independence.
Interests
Interests reflect not only what is essential to us as an outcome but also the underlying reasons why it is important to us. Interest of any party comprises of their hopes, beliefs, needs and expectations. Disputing parties who agree to participate in mediation proceedings have their individual interests as well as common interests. The greatest common interest of all the disputing parties is to end the conflict peacefully as soon as possible because it has been consuming time, money and other resources. Another common interest of paramount importance is the development of permanent jobs for indigenous as well as non-indigenous people, as it will eventually contribute to the US national economy.
A conflict of interest or the appearance of conflict of interest during or after the mediation process is a common phenomenon since each disputing party has its own goals and objectives. Keystone XL pipeline dispute is no different and there are numerous individual cum conflicting interests involved which have been elaborated hereinafter.
BATNA and WATNA
Other than mediation, negotiation which is fast, cost effective and the best way to solve such disputes as it would be economically viable and would preserve the relation between the parties. Apart from negotiation, arbitration can also be considered. Although arbitration is slightly expensive mode it is most efficient method of settlement as it is final and binding. The worst method would be litigation.
Maintaining A Favorable Climate: The Power Imbalance
The government and TransCanada in the present case have more bargaining power in comparison to the indigenous people. The power of eminent domain arises from the Fifth Amendment of the constitution of U.S. and confers right upon the state, localities and federal government to take lands from private hands. TransCanada used the eminent domain power by claiming national interest as the pipeline is needed to transport the crude oil to Gulf Coast. Due to huge demand from refineries, crude oil supply would be increased from a stable and trade friendly nation.[60] Further, it would give U.S. more oil supply flexibility and will boost the economy by providing jobs.[61]The framers intended the power of eminent domain to be used only when there is a public use or purpose.[62]
Opponents have however, elucidated that the KXL Pipeline is neither for public use or purpose as it is not created for the public but for TransCanada’s exploitation. [63] TransCanada’s authority to obtain and utilize the power of eminent domain is unjust and the permitting process of the government is flawed.[64] Trump’s executive order to approve KXL pipeline without properly following procedures[65] which leads to the violation of National Environment Protection Act (NEPA) as it requires federal agencies to prepare a detailed analysis i.e. Environment Impact Statement (EIS) of any federal action which would affect human environment.[66] There is also violation of National Historic Preservation Act (NHPA) as the Advisory Council of Historic Preservation was not given reasonable opportunity to comment before the proposed project.[67]
The KXL pipeline cuts through the exterior border of the Sioux reservation and runs through Rosebud Sioux spirit camp which is recognized by the above treaty.[68]The United Nations Declaration on the Rights of Indigenous Peoples i.e. UNDRIP, although not a legally binding instrument[69] but is based on the concept of right of indigenous people of self-governance and self-determination.[70] The right of Free, Prior and Informed Consent is another right stemming from UNDRIP and it encompasses the duty of the state to consult and co-operate in good faith with indigenous people before adopting any legislative and administrative measure which may affect them or without granting any project which would affect their land or resources for the purpose of development, utilization of any resources.[71] Furthermore, the U.S. is also required to obtain FPIC under Inter-American Human Right System[72]in relation to any determination with indigenous right.[73]
Issues And Conflicting Interest
The following are some of the issues that need to be addressed by the mediator:
Land ownership and entitlement
The Sioux nation tribe contends that the KXL pipeline will impact their sacred site and ancestral burial land.[74] The pipeline will carry tar sands oil, is acidic in nature, if leaks; it may contaminate the Ogallala Aquifer which is the most important water source in High Plains Region.[75] The aquifer is considered as sacred by Sioux Tribe and they rely on it physically, culturally and spiritually.[76] On the other hand, the supporters contend that the pipeline is in national interest and it would enhance energy security.
Effect on Gas Prices
The opponents of KXL pipeline i.e. the indigenous people and the various NGO claims that the pipeline will result in increase in gas prices rather than decreasing the gas prices as claimed by the supporters i.e. the government and TransCanada.[77] This argument is based on various studies and statistical data as per TransCanada Permit Application in 2008 which states that due to oversupply of heavy crude in U.S. Midwest the price of Canadian crude is low and if there is access to U.S. Gulf Coast through KXL of heavy crude, the oversupply from U.S. Midwest will be cut off and therefore the gas prices will increase.[78] The supporters on the other hand, base their argument on the very basic principle of Economics that more is the supply; less is the price of the goods.[79]
Impact on national security and dependence on foreign oil
The argument of the supporters that building the KXL pipeline will result in reduction of its dependency on foreign oil is a vague argument. KXL will supply oil from a friendlier nation i.e. Canada, a foreign source nevertheless.[80] The supporters on the other hand quote H.R. 1938, which elucidates that U.S. imports more than half of its oil.[81] The U.S.-Canada trade relation will be enhanced by importing more oil. It will be beneficial for political and economic stability of the country.[82]
Impact on Jobs
The U.S. Department of Labor in its reports stated that building the KXL Pipeline will create 3,900 jobs in contrast to 40,000 jobs as claimed by TransCanada.[83] Furthermore, the jobs created will be temporary because construction jobs are not permanent and exist only until the project ends.[84] On the other hand, the supporters of KXL including Jack Gerard, president of American Petroleum Institute said that if the pipeline is approved and Canada’s energy is utilized fully then it would be very beneficial for economic milieu of U.S. and induced jobs up-to 500,000 can be created by 2035.[85]
Tar Sands oil
Extracting and transportation of tar sands oil produces three to four times more carbon pollution than conventional oil.[86] Furthermore, the extraction process involves massive amount of water. The Tar Sands Oil is more corrosive, thick and acidic and therefore there is always a chance of spill and explosion.[87] A study found out that
“between 2007 and 2010, pipelines moving tar sands oil in Midwestern states spilled three times more per mile than the U.S. national average for pipelines carrying conventional crude. Within its first year of operation, TransCanada’s original Keystone Pipeline System leaked 12 times”.[88]
However, the Cambridge Energy Research Associates stated that life cycle Green House Emissions from tar sands oil imported into U.S. were potentially lower than Venezuelan Crude Oil as it accounts for majority of the crude being refined in U.S. Gulf Coast Refineries.[89]
Impact on Environment
TransCanada admits that their system only detects more than 1 percent of the leak, if any; which means that 8000 or 9000 barrels could leak and go undetected which may be detrimental for the water resources.[90] The KXL pipeline is estimated to increase greenhouse gas emission by 22 million tonnes a year.[91] A study in 2007 found out a high rate of deformities in embryo of fish that were exposed to tar sands.[92] Tar sands are estimated to cause an increase in the level of cancer causing agent found in lakes surrounding Alberta’s oil sands.[93]
However the proponents of pipeline claim that there will be a monitoring system to detect leaks up-to 2 percent of flow rates and for leaks below 1.5 percent. The EIS notes that the project
“would have a degree of safety greater than any typically constructed domestic oil pipeline system under current regulations and a degree of safety along the entire length of the pipeline system that would be similar to that required in high consequence areas as defined in the regulation”.[94]
Solutions: A Marlow Perspective
The legacy effects of the construction of the pipeline are considered.[95] The boom and bust effects of the project, the residual effects on the land and communities are long term effects which shall persist even after the construction gets completed.[96] Also, the pipeline is for a non-renewable source of energy which will get depleted in the long run.[97] While nations cannot be stopped from developing, the development must be sustainable. The solution is quite exorbitant, but if contemplated in the context of the increased tax revenue for the government and overall revenue increment of TC Energy is a small price to pay for respecting the US commitment to protect against future harm to the tribes’ natural resources.
First, establishing community legacy funds[98] – the U.S. Government along with TC Energy must first create a fund for financing efforts to build foundation for sustainable livelihood post construction of the pipeline via skill training. Support for renewable projects that will diversify lasting employment and income options are to be provided.
Second, regularizing the jobs created at the construction sites- A contingency unit must be created that should be operational at all times of the day to monitor the pipeline throughout its length. This unit must consist of the casual workers involved in the construction after their adequate skill training upon completion of the project.
Third, recognition of tribal laws- The indigenous people have been agitated by the fact that their opinions have not been taken in the construction of the project. TC Energy must hold public debate and discussion along with the U.S. Government and comply with Rosebud and Fort Belknap Law.
The natural resource paradigm- The pipeline should be shortened from the existing 1204 mile stretch to 875 miles. This route must avoid crossing the Nebraska Department of Environmental Quality -identified sand hills region. The length of the pipeline that crosses the Northern High Plains Aquifer system which includes the Ogallala formation must be reduced or an alternative route after thorough deliberation to be considered. Impact Benefit Agreements as a standard package should be negotiated to protect the interest of the aboriginal people in the resources of the region.[99]
Lastly, prevention and recovery methods in the inevitable event of an oil spill-
a) For prevention: Spill Prevention Control and Countermeasures to be made accessible for the people working in the contingency unit. Methods that prevent the releases of oil or hydrocarbons into the environment are to be developed. Appropriate evacuation zones and procedures to be taught to the aboriginal people and non-natives.
b) For cleanup and recovery: Recovery from an oil spill depends on a number of factors including the type of oil, the temperature of water, etc. A precautionary principle is to be adopted and a comprehensive system of bioremediation should be considered. Furthermore, equipments like skimmers and sorbents to be made accessible.
Conclusion
To take the oil to the gulf coast, the rights of the tribal people need not be compromised with. Inorganic unity raises more difficult questions and must be addressed accordingly. The United States must act as the trustee that it is. Whilst the objective of eliminating America’s energy reliance on nations like Venezuela and the Persian Gulf is legitimate, but not sustainable. The very need for increased oil dependency for a nation that pledges for lesser reliance on non-renewable sources on international platforms is quite the paradox. The tribes represent poor yet socially structured strands that have been dissimilated through various agencies in the past. Also, pipelines that are on the drawing board for doing what Keystone was designed to do, like Endbridge, Northern Gateway and Trans Mountain should also be scrutinized on similar lines. In shalom, it is accepted that power relations are central to determining the process and outcomes of land entitlement struggles. However, this power should be understood as being relational and dynamic. For, if it were not for the tribal agencies, the Native American lands would not have been preserved as they are. These tribes protect not only the land but the resource therein and the land is symbolic if not more, a metaphor of sorts, of freedom, belonging and security.
[1] Pollock and Maitland, History of English Law, Institution of Property, The British Academy, 257-8.
[2] Id.
[3]N. W. Shawnes,U.S. Presidents in their own words concerning American Indians, Native News Reporter, 18 Feb 2019,https://nativenewsonline.net/currents/U.S.-presidents-words-concerning-american-indians/.
[4] National Resources Revenue Data, Native American Ownership and Governance of National Resources, 25 Feb. 2018, https://revenuedata.doi.gov/how-it-works/native-american-ownership-governance/.
[5] Id.
[6] Id.
[7] Id.
[8] Sands, K.,Territory, Wilderness, Property, and Reservation: Land and Religion in Native American Supreme Court Cases. American Indian Law Review, 36(2), 2011, 253-320,www.jstor.org/stable/41784763.
[9] Id.
[10] Id.
[11]Matthew L.M. Fletcher a Short History of Indian Law in the Supreme Court, October 01, 2014, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol–40–no–1–tribal-sovereignty/short_history_of_indian_law/.
[12] Pub.L. 49–105.
[13] Pub L. 73-383.
[14] UN Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, 6 July 2012, A/HRC/21/47, available at: https://www.refworld.org/docid/5051b78b2.html.
[15] Id.
[16] UN Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, 6 July 2012, A/HRC/21/47, available at: https://www.refworld.org/docid/5051b78b2.html.
[17] Id.
[18]Lara Sanpietro, Teaching Negotiation,(2014),https://www.pon.harvard.edu/daily/teaching-negotiation-daily/negotiating-indigenoU.S.-land-rights/.
[19] UN Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, 6 July 2012, A/HRC/21/47, available at: https://www.refworld.org/docid/5051b78b2.html.
[20] Gaetano Pentassuglia, Towards a Jurisprudential Articulation of Indigenous U.S. Land Rights, EJIL, Volume 22, Issue 1, February 2011, 165–202.
[21]CaitlinMcCoy,KeystonXL Pipeline,02/13/2018. https://eelp.law.harvard.edu/2018/02/keystone-xl-pipeline/.
[22] Id.
[23] Harrigan, Ryan “TransCanada’s Keystone XL Pipeline: Politics, Environmental Harm & Eminent Domain Abuse,” University of Baltimore Journal of Land and Development: Vol. 1: Iss. 2, Article 5 (2012).
[24] CaitlinMcCoy,KeystonXL Pipeline,02/13/2018. https://eelp.law.harvard.edu/2018/02/keystone-xl-pipeline/.
[25] Id.
[26] Id.
[27] Id.
[28] Suzanne Goldenberg, Keystone XL pipeline: Obama rejects controversial project, U.S. environment correspondence, (Wed 18 Jan 2012,21.15 GMT), https://www.theguardian.com/environment/2012/jan/18/obama-administration-rejects-keystone-xl-pipeline?newsfeed=true.
[29] Stroud, S. Shane,”The Keystone XL Pipeline and the Dormant Commerce Clause: Would Action by Congress Preclude Adequate Environmental Regulation at the State Level?,” Utah Law Review: Vol. 2015 : No. 1 , Article 6 (2015).
[30] Mitch Smith, Obama Vetoes Keystone XL Pipeline Bill, (Feb. 25, 2015, 2:00 AM IST )/ Updated Feb. 25, 2015, 10:58 PM IST,https://www.nbcnews.com/politics/white-hoU.S.e/obama-vetoes-keystone-xl-pipeline-bill-n311671.
[31] Executive Order 13766, Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects Federal Register Vol. 82, No. 18 Monday, January 30, 2017.
[32] Amber Jamies on and Adam Vaughan, Keystone XL: Trump issues permit to begin construction of pipeline, Fri 24 Mar 2017 12.31 GMT,https://www.theguardian.com/environment/2017/mar/24/keystone-xl-pipeline-permit-trump-administration.
[33]CaitlinMcCoy,KeystonXL Pipeline,02/13/2018. https://eelp.law.harvard.edu/2018/02/keystone-xl-pipeline/.
[34] Mitch Smith and Julie Boseman, Keystone Pipeline Leaks 210,000 Gallons of Oil in South Dakota, Nov. 16, 2017. https://www.nytimes.com/2017/11/16/U.S./keystone-pipeline-leaks-south-dakota.html.
[35] Mitch Smith, Nov. 20, 2017, Nebraska Allows Keystone XL Pipeline, but Picks a Different Path, https://www.nytimes.com/2017/11/20/U.S./nebraska-pipeline-keystone-xl.html.
[36] Pamela King, Federal judge blocks Keystone XL construction E&E News reporter
Friday, November 9, 2018https://www.eenews.net/energywire/2018/11/09/stories/1060105805.
[37]Mitch, KEYSTONE XL: Judge keeps most pipeline work on hold 2019 https://www.eenews.net/greenwire/2019/02/18/stories/1060121269.
[38] Hannah Northey and Timothy Cama, Trump permit revives pipeline work, E&E News reporters, 2019, https://www.eenews.net/eenewspm/stories/1060134441/.
[39] Indigenou.S. Environmental Network and North Coast Rivers Alliance, Plaintiffs, v. President Donald J. Trump, et.al. Case 4:19-cv-00028-BMM Document 1 Filed 04/05/19.
[40]Mitch Smith, Keystone XL Pipeline Plan Is Approved by Nebraska Supreme Court https://www.nytimes.com/2019/08/23/U.S./keystone-xl-pipeline-nebraska.html
[41] Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 19-cv-00044 (D. Mont.).
[42]KEYSTONE XL, S.D. board approves water permits after contentious U.S. hearing, Jan.22,2020,https://www.eenews.net/greenwire/2020/01/22/stories/1062149443.
[43] Interior Approves record of decision for Keystone XL Pipeline, U.S. Department of the Interior Bureau of Land Management, Jan. 2020, https://www.blm.gov/press-release/interior-approves-record-decision-keystone-xl-pipeline.
[44] Owen Fiss, Against Settlement (1984).
[45] Carrie Menkel Meadow, Towards another view of legal negotiation; The structure of problem solving, 1984.
[46]Malcolm N. Shaw, International Law 1, (7th ed., 2014).
[47]Ryan Harrigan, TransCanada’s Keystone XL Pipeline: Politics, Environmental Harm, & Eminent Domain Abuse, 1 U. Balt. J. Land & Dev. 207 (2012).
[48]Dallas Goldtooth, Keystone XL would destroy our native lands. This is why we fight, https://www.theguardian.com/commentisfree/2015/jan/09/keystone-xl-would-destroy-native-lands-we-fight.
[49] Laurence Boulle and Nadja Alexander, Mediation: A How to Guide, 1 (1st ed. 2015).
[50] Hon’ble Justice S.B. Sinha, Judge Supreme Court of India, What is Alternative Dispute Resolution System? ADR and Access to Justice: Issues and Perspective, http://www.tnsja.tn.gov.in/article/ADR-%20SBSinha.pdf.
[51]Shaw, Supra note 46, at 732.
[52]Mavrommatis Palestine Concessions (Jurisdiction) Case, PCIJ, Series A, No.2, 1924, p.11.
[53]Melissa Denchak, What is the Keystone Pipeline?, https://www.nrdc.org/stories/what-keystone-pipeline.
[54] Kurt Gasser, The TransCanada Keystone XL Pipeline: The Good, the Bad, and the Ugly Debate, 32 Utah Envtl. L. Rev. 489, 504 (2012).
[55]Boulle & Alexander, Supra note 49, at 16.
[56] Matt Arbaugh, Making Peace the Old Fashioned Way: Infusing Traditional Tribal Practices into Modern ADR, Pepperdine Dispute Resolution Law Journal, Volume 2, Issue 2 (2002).
[57] Kate Shatzkin, A Historic Day for Puyallup Tribe: $162 Million Settlement Applauded. Denounced After Signing Ceremony, Mar 25. 1990.
[58]Paola Rosa- Aquino, Keystone XL construction to begin next year, but indigenous activists vow to keep fighting, https://grist.org/article/keystone-xl-construction-to-begin-next-year-but-indigenous-activists-vow-to-keep-fighting/.
[59]Id.
[60]Committee On Foreign Relations United States Senate , Keystone Xl And The National Interest Determination,U.S. Government Publishing Office, S. Hrg. 113-553, (March 13, 2014).
[61]Id.
[62] Kelo v. City of New London, Conn., 545 U.S. 469, 511 (2005).
[63] Keystone Pipeline Project, TC Energy, available at (https://www.tcenergy.com/operations/natural-gas)
[64] Ryan Harrigan, Transcanada’s Keystone XL Pipeline: Politics, Environmental Harm, & Eminent Domain Abusese, 1 U. Balt. J. Land & Dev. 207 (2012).
[65] Melissa Denchak, What Is the Keystone Pipeline?, NRDC, April 07, 2017. (https://www.nrdc.org/stories/what-keystone-pipeline).
[66]IndigenoU.S. Envtl. Network. v. U.S. Dep’t of State, F. Supp. 3d 561, 570 (D. Mont. 2018).
[67] Section 106, National Historic Preservation Act, 1966.
[68] Id.
[69] A/HRC/21/47/Add.1, Para 81.
[70] United Nations Declaration on the Rights of IndigenoU.S. Peoples, art. 3, G.A. Res. 61/195, U.N. Doc. A/RES/61/195 (Sept. 13, 2007).
[71]Id, Art 32.
[72] Toledo District v. Belize, Inter-Am. Comm’n H.R., Report No. 40/04, OEA/Ser.L/V/1I.122, doc. 5, rev. Para-1, (2004).
[73] Mary and Carrie Dann v. United States, Case 11.140, Inter-Am. Comm’n H.R., Report No. 75/02, doc. 7, rev.Para-131, (2002).
[74] Mother Earth Accord, http://www.ienearth.org/mother-earth-accord/.
[75] Ogallala Aquifer, Water Encyclopedia, http://www.waterencyclopedia .com/Oc-Po/Ogallala-Aquifer.html.
[76] Lynne Peeples, Keystone XL and Native America: South Dakota Tribes Fight the ‘Black Snake’ HUFFINGTON, http://www.huffington post.com/2013/04/17/keystone-xl-native-americans-tribes.
[77] Kurt Gasser, The TransCanada Keystone XL Pipeline: The Good, the Bad, and the Ugly Debate, 32 Utah Envtl. L. Rev. 489 (2012).
[78]Id.
[79] Paul W. Parfomak et al., Keystone XL Pipeline Project: Key Issues, 10 (Congressional Research Service, Mar. 21, 2011).
[80]Id.
[81]William Kelly, Allan West: Keystone XL pipeline would reduce foreign oil dependence, Palm Beach News (2012),http://www.palmbeachdailynews.com/news/allen-west-keystone-xl-pipeline-would-reduce-foreign-2082892.html?sort=desc.
[82]Gasser, Supra no 1.
[83] Glenn Kessler, Keystone XL pipeline ad suggests Canadian crude will reduce ‘reliance on foreign energy, The Washington Post, (Nov. 20, 2013, 4:30 P.M.) https://www.washingtonpost.com/news/fact-checker/wp/2013/11/20/keystone-xl-pipeline-ad-suggests-canadian-crude-will-reduce-reliance-on-foreign-energy/.
[84] Global Labor Institute, Cornell GLI Study Finds XL Pipeline Will Create Few Jobs, http://www.ilr.cornell.edu/globallaborinstitute/research/Keystonexl.html.
[85] J. Amy Harder, What Factors Should Drive the Keystone Pipeline Decision?(Oct.14, 2011), http://energy.nationaljournal.com/2011/10/what-factors-should-drivekeys.php#2094096.
[86]Melissa Denchak, What Is the Keystone Pipeline?, NRDC, April 07, 2017. https://www.nrdc.org/stories/what-keystone-pipeline.
[87] Andrew C. Mergen, The Mining of the North: A Review of Andrew Nikiforuk’s Tar Sands: Dirty Oil and the Future of A Continent, 21 VILL. ENVTL. L.J. 219, 221 (2010).
[88]Id.
[89] Duff Harper & Sarah Nykolaishen, A Canadian Perspective on the Keystone XL Pipeline, 44 Trends 2 (2013).
[90]Ted Genoways, Tar Sands Showdown in the Nebraska Sandhills, ONEARTH, (Sept.30, 2011), http://www.onearth.org/article/keystone-xl-tar-sands-hearing-nebraska.
[91] Brent Patterson, Council Of Canadians Expresses Solidarity With Indigenous Declaration Opposed to The Keystone XL Pipeline, The Council Of Canadians, (MAY 19, 2017), https://canadians.org/blog/council-canadians-expresses-solidarity-indigenoU.S.-declaration-opposed-keystone-xl-pipeline.
[92]Heather A. Culp, Land Ethic under Attack: Keystone XL and the War over Domestic S(Oil), 3 Envtl. & Earth L.J. 126 (2013).
[93]Ian Austin, Oil Sands Industry in Canada Tied to Higher Carcinogen Level, THE NEW YORK TIMES, (Jan.7,2013), http://www.nytimes.com/2013/01/13/world/americas/oil-sand-indU.S.try-in-canada-tied to-higher-carcinogen-level.html?.
[94]U.S. Dep’t. Of State, Final Environmental Impact Assessment For the Proposed Keystone Xl Project, Executive Summary ES-6 (2011), http://keystonepipeline-xl.state.gov/documents/organization/182010.pdf.
[95]Robert B. Gibson, Turning Mines Into Bridges: Gaining Positive Legacies From Non-RenewableResourceProjects,2014,http://afoa.ca/afoadocs/L3/JAM%20Issues/AFOA%20JAM%2015-ENG-Web_Final_PP.pdf.
[96] Id.
[97] Id.
[98] Id.
[99]Harvey Sands & Ross Castleton, An Introduction to Impact and Benefit Agreements http://afoa.ca/afoadocs/L3/JAM%20Issues/AFOA%20JAM%2015-ENG-Web_Final_PP.pdf. See also, Lara Sanpietro October 2nd, 2017, Teaching Negotiation, https://www.pon.harvard.edu/daily/teaching-negotiation-daily/negotiating-indigenoU.S.-land-rights/, https://www.state.gov/keystone-pipeline-xl/.
