THEME: Mediation and International Politics
This article was authored by Anurathna Mathivanan and Rakshna Natarajan from Tamil Nadu National Law University, Tiruchirapalli.
The Keystone XL Pipeline project has ignited a debate between the need for energy resources and the rights of indigenous peoples. The present legal machinery in the U.S.A. falls short in solving the issues which have been brought to the forefront like environmental impact of oil pipeline projects, cultural and jurisdictional rights of indigenous peoples, and the need for creating sustainable energy infrastructure. There is a demand for inclusive prosperity in the context of future energy requirements. Court based resolution, such as compensations, has limited capacity in addressing the concerns of the indigenous communities. The American paradigm of Mediation also acts to further the divide by not offering a level playing field between the interest groups. This essay takes the position that approaching this conflict with a hybrid strategy of mediation, which combines the diverse cultural practices of the parties, will be successful in alleviating the multilevel concerns raised. The proposed hybrid strategy will allow indigenous peoples to maintain their cultural and political status. This essay will address the inefficiencies in the existing dispute resolution mechanisms available to the indigenous communities. By recognizing the unique position of the indigenous peoples, the essay will propose a customized approach towards mediating the development of Keystone XL Pipeline project.
In the midst of a global pursuit of economic development, interests of diverse groups are involved. Though there are many advantages involved, mediation in cross-cultural conflicts is aversed. This is due to the lack of faith in achieving a peaceful and harmonious resolution among different cultural groups. At the other side of the spectrum, the existing legal machinery has failed to address the concerns of sensitive communities like that of indigenous peoples. In this essay, we battle this idea and present a multifaceted approach to mediating the development of the Canadian Keystone XL Pipeline and the Rights of Indigenous Peoples.
This essay explores how a customized approach to mediation will be a more successful dispute resolution mechanism than pursuing litigation. We propose a ‘hybrid’ approach in the context of mediation due to the interaction of multifaceted issues such as the right to land of the indigenous peoples, the environmental degradation, developmental necessities etc. To be able to achieve justice, there must be a focus on the inequalities existing between indigenous communities and TC Energy, a Canadian infrastructure Corporation. The American Justice system is not easily accessible to the indigenous communities and the complex legal procedure and the delay in the access to justice will only worsen the condition of the indigenous peoples. At the same time, TC Energy, due to the delay in the execution of the Keystone XL Pipeline, will rapidly lose profits and procedural errors committed by the US Government will be a hindrance to their project. The proposed model of mediation will bring together different cultures and will assure a positive exchange of interests of the parties.
Chapter I: Background and Context
The Keystone Pipeline System is an oil pipeline system which runs between the countries- Canada and the U.S.A. The pipeline delivers oil into the Midwest refineries in the U.S.A. and was proposed by TransCanada Corporation (hereinafter, TC Energy). Three successful phases of the pipeline spanning a length of over 4800 kms were completed by 2014. TC Energy had proposed the idea for a subsequent extension to the pipeline in 2008. A formal application was filed in September 2008 and a green signal for the project which was titled ‘Keystone XL Phase’ was given by the South Dakota Public Utilities Commission and permission was also granted by the National Energy Board in early 2010. The proposed pipeline would enter U.S.A. through the state of Montana and travel through South Dakota and Nebraska and rejoin the existing Keystone Pipelines in Steele City, Nebraska.
Energy projects of this scale require painstaking attention in multiple aspects such as land acquisition, community displacement and mainly, the environmental degradation it would consequently bring. The project ran into legal hurdles when the Environment Protection Agency (EPA) passed an order in 2010, to revise the draft Environmental Impact Study (EIS) because the report was inadequate and did not take into consideration the emergency response plans and safety measures in case of an oil spill and greenhouse gas emissions. A year later, in 2011, the final report of EIS was submitted to the EPA and the report contained the following remark- “We assure that the pipeline will pose no significant impact to most resources if environmental protection measures are followed, but it would present certain adverse effects to certain ‘cultural heritage’”.
The original route of the pipeline passed through Sandhills in Nebraska. The Nebraskan Sandhills is an ecologically sensitive zone and it is a designated National Natural Landmark of U.S.A. The entire region is considered to be an intricate wetland ecosystem containing thousands of endangered species of plants, birds, insects and animals. There was a lot of uproar demanding the government to intervene and take an informed decision before granting the permit for the project as it concerned ‘National Interest’. The entire project was stalled due to concerns raised by environmentalists and other organisations. After many rounds of discussions, the project was rejected by the Obama Administration in 2015. But a revival of the same was attempted by the Trump Administration in early 2017 and this was met with large scale protests from environmental activists and across indigenous communities.
This issue doubles up as a new opportunity to explore the interaction between environmental concerns, energy development projects and indigenous rights. The power imbalance between the parties to the dispute is startling and this offers practical lessons to developing countries like India where the number of infrastructural development projects is on the higher side. It opens up conversation regarding effective protection of Indigenous Communities and their cultural assets and the plethora of opportunities that Mediation would present in settling a dispute of such nature.
Chapter II: Dispute Resolution available to indigenous communities
Mainstream Mediation Machinery in the United States
The United States has a rich history with dispute resolution through mediation. From the early 1900s, formal mediation has been approached for civil disputes concerning labour unrest. Following its success in dispute resolution, mediation was also attempted in various forms of disputes. But, the history of mediation in the US had a massive development during the civil unrest of the 1960s. Methods of collective bargaining were attempted by community activists to attempt at a peaceful resolution between different communities. The US Department of Justice offered services to bring together the different communities to talk. Alternative Dispute Resolution (ADR) providers were set up to reduce the futile nature of the unrest created due to racial tensions. At the same time, minor disputes were also proposed to be resolved through court-based mediation. There was an increase in the cases which were settled through mediating rather than approaching legal machineries such as courts.
Community mediation as a field developed rapidly in the 1970s and was recognized to be useful in cases expanding beyond minor cases of misdemeanor to other civil and sometimes, minor criminal disputes. Due to the increasing backlog of cases in court houses, ADR became a viable option for settling many disputes. Mediation has been a successful option till date due to the focus on trust building, autonomy of parties, direct engagement and community-based exercises which were encouraged, to bridge the metaphorical gap between different interest groups. Back then, the concept of mediation suffered from certain inconsistencies and the mediators were strayed from the goals of mediation and were more focused on settling cases rather than ensuring self-determination of the parties. This practice of mediation is highly counterintuitive.
With the booming field of mediation, the National Conference of Commissioners on Uniform State Laws approved the US Uniform Mediation Act, 2003 to bridge the gap caused due to a shift to a settlement-based approach to an autonomy-based approach. These laws were used to streamline and promote an effective use of the practice of mediation as an early form of dispute resolution. The prefatory note recognized the privilege of the parties, public policy favoring the use of mediation and the concept of self-determination which is protected in mediation proceedings. This aided in the development of specializations in mediation in the US.
Unfortunately, the route of mediation is treaded lightly when it comes to disputes across cultures, as in the case of Keystone XL Pipeline dispute. The rapid development of the urban world has left a dangerous impact on indigenous communities and the present legal framework falls short in recognizing the significance of the rights of indigenous people. The available specialization in mediation still remain unsuccessful in resolving inter-cultural disputes concerning indigenous peoples because of the unique cultural practices of these communities. Both court based and community-based programs fall short in dealing with inter-cultural disputes when the interests and the communication styles are different, more of which will be dealt with in the upcoming chapters.
Problems with the Existing Justice System
Indigenous Peoples have often been at the mercy of the existing legal machinery to secure their own rights of self-determination and cultural expression. This puts them at a disadvantage due to various reasons, such as access to legal counsel and covering the legal costs. Further, the justice system is vastly different from the cultural practices of different indigenous communities where there is an element of collective decision making. In R v. Stanley, the issues with the present justice system in Canada was highlighted wherein the lack of a representative jury system was detrimental to the interests of indigenous peoples, which resulted in the acquittal of the Caucasian accused of the murder of an indigenous man. This invisible veil restricts indigenous or aboriginal peoples from accessing their rights which are internationally recognized as being unique to indigenous population all around the world. Even in India, the tribal population suffers when it comes to engaging with the justice process to acquire their rights which are integral to their cultural identity. The report which was submitted by the Standing Committee on Personnel, Public Grievances, Law and Justice on ‘Synergy between tribal justice system and the regular justice system of the country’ identified that the tribal population opted for their customary systems of justice as they were more comfortable with engaging in a judicial process which they are familiar with and found it to be more cost-effective and there was less delay in the delivery of justice. There is an inherent bias against indigenous communities in the US government machineries, right from laws passed for the special protection of the Native American tribes to the court system in the US. The broken machinery doesn’t offer any tangible and accessible solution for the Native American tribes in the US.
There are massive violations of treaties by the governmental agencies which is detrimental to the interests of the indigenous peoples. The Congress has the power to nullify treaties that were signed between the first nation people and the federal government. This remains as a big impediment to indigenous communities who are unable to access justice in these instances. The Right to Self Determination of the tribal people are clamped down by the federal government in the present legal regime and they often exercise unilateral authority over the interests of the Native Americans claiming “public utility” without any consent sought out as provided in the international regime. In the case of Western Shoshone land, the government authorized its use by several industries, not paying heed to the human rights of the Native American population and the environmental impact of the project. The Federal Supreme Court, is restricted by the doctrine of Separation of Powers from scrutinizing the plenary powers of the Congress. Hence, the present legal regime allows for the state and federal requirements to supersede the Human Rights of the indigenous people. The ruling made by the Supreme Court in United State v. Winans of the ‘reserved rights’ doctrine has been often violated by the federal government.
The Keystone XL Pipeline project was federally approved, though it passes through indigenous jurisdiction, without acquiring prior consent from the Indigenous peoples living in Oklahoma and South Dakota, where the projects cover about 16% of the state. Both the Interior Department’s Bureau of Indian Affairs and federal courts are their two existing legal recourse forums, but the tribal leaders are not well versed with the procedures for recourse. The sacred nature of the relationship between the land and the indigenous peoples are often ignored by the industries which seek to develop on tribal land, and this lack of concern negatively affects the already vulnerable tribal communities, as they do not have the monetary power like TC Energy and are not on a level playing field. The indigenous peoples have been fighting against the Keystone Pipeline project for a long time now and had filed a case against the US Government in 2017, but the present legal machinery allows for a lot of loopholes for the indigenous communities to work for a successful outcome, as their rights are balanced against social necessity and are often compromised in the process by the courts.
Unique Position of Indigenous Communities:
The United Nations has defined Indigenous Communities as “those communities as those which have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions, and legal systems.”
One of the most significant factors which helps distinguish indigenous communities from other groups is their continued occupation of their ancestral lands and the significance that they attach to this historical continuity. It is safe to say that the nature of property rights of Indigenous communities is quite diverse and different from that of an average U.S. citizen. Indigenous Communities argue their standpoint as rightful successors to their cultural resources in two different ways; firstly, they either claim the status of “nations” which pre-exist the current state thereby granting them sovereignty and subsequently the right over their cultural heritage. In another scenario, they concede to the sovereignty of the settler state only on the condition of protection of their rights within the state’s human rights framework. Indigenous Groups in the U.S.A. were subjected to a lot of injustice and atrocious treatment in the past. Their identity has always been under constant threat. Over time, these groups were recognized and given protection in the form of treaties and subsequently enforceable treaty rights. Contemporary Native Americans enjoy enhanced and recognized civil and political rights as citizens of the U.S.A. and rightfully vested rights over their ancestral land and cultural resources.
Land is extremely important for Indigenous Communities in two aspects. Firstly, these traditional lands constitute the land of the ‘nation’ and are inseparable from the people, their culture and their identity. Secondly, land and resources, as well as traditional knowledge, are the foundations upon which Indigenous people intend to rebuild the economic status of their community and so improve the socio-economic circumstances of their people. According to Fergus MacKay, “securing effective and collective property rights is of fundamental importance to the physical and cultural heritage and to their livelihoods and sustenance of their people.” Indigenous communities share a deep connection with nature and initiatives taken in the international arena has helped stimulate judicial dialogue addressing the land and resource rights of Indigenous communities. Dispossessing these communities of their natural assets will not just result in loss of cultural heritage, but it will further lead to a detrimental impact on their right to development in accordance with their own needs and interests. According to Roque Roldán Ortiga, “land is not only a physical asset with some economic and financial value, but an intrinsic dimension and part of peoples’ lives and belief systems. The end is not necessarily a material product or a level of economic productivity.” Ortiga’s statement helps us understand that it is important to consider the underlying Human Rights aspect to this issue.
The Modern American Human Rights system revolves around the American Declaration on the Rights and Duties of Man (1948) and the American Convention on Human Rights (1969). The United States, despite not having ratified these instruments and despite these instruments not having the force of a treaty, is bound by the obligations under these instruments by virtue of it being a member of the OAS. A transformative interpretation of the rights vested under these instruments is absolutely necessary.
Further inference can be drawn from the ILO Declaration No. 169 concerning Indigenous and Tribal Groups in Independent Countries (1989) which is considered as lex specialis. The United Nations has also from time to time reiterated the need to protect the social, cultural, spiritual and religious values and practices of Indigenous Communities and to respect the integrity of these values and institutions. Reference can also be made to Art.8 of the UNDRIP which explicitly prevents the forced assimilation of their cultural assets. It also imposes positive obligations on the state to prevent those actions which have the effect of depriving them of assets contributing to their cultural and ethnic identity.
The Native American groups involved in the present dispute have raised concerns over the possible damage that the Keystone XL Pipeline could inflict on their ancient and cultural resources present on their treaty lands (A major chunk of this phase of the pipeline passes through Nebraskan Treaty Lands). Such development projects present a direct threat to the indigeneity pervading these areas. They have highlighted the damage that pipeline spills could inflict on their local water bodies. They have been embroiled in several court cases in the last three years and despite expressing their displeasure over this development project on several cultural and environmental grounds, they feel that their voice has been neglected and silenced. The aforementioned points clearly highly highlight that adopting a traditional approach to this issue will not be capable of delivering a fair and reasoned decision agreeable to all. It is absolutely necessary to consider the positions of both parties to the dispute i.e. the indigenous groups and the energy company – TC Energy in a fair platform.
Chapter III: The Need For A Customized Approach To Mediating Disputes Involving Indigenous Communities
Power imbalance between parties in the present dispute and possible alternative approaches to this dispute:
In the USA, there are many regulatory regimes in place to address individual problems arising within systems e.g. Energy, Food, Transportation, etc. and the interaction between these different segments will often lead to disagreements and conflicts. Many environmental and cultural disputes often stem from political uncertainties. Government bodies have to manage the interests of the citizens and at the same time actively chase the state’s developmental goals.
The indigenous groups are typically on the fringe of governmental decision making, especially in relation to issues concerning land use. They neither have the power nor the resources of business and industry nor the political and strategic skills which are crucial for influencing governmental decisions. Hence, negotiating the Keystone XL dispute with the assistance of a mediator will definitely ensure that on some level, the parties to the dispute are afforded an equal opportunity to be heard. It is important to remember that there are several dimensions which crop up with respect to the present dispute, the most important one being addressing the concerns of the Indigenous groups and environmentalists.
A look at the present scenario surrounding the Keystone XL Project immediately reveals that the conflict between the parties has reached an impasse. There is poor balance of power between the identified parties and in such a situation, justice cannot be achieved in a righteous manner. Mediation must be pursued only if the conditions deem it necessary. To think of it, why do such conflicts arise in the first place? Differences in values is one key motivator, especially the power struggle between the indigenous tribal groups and the energy companies. Both parties come with different expectations and sets of values. To handle a discord of such nature, mere court settlements will not suffice because both parties should have access to an environment where they can discuss the clashes in their fundamental values and as put rightly by Campbell and Floyd (1996)- their worldviews. Mediation reduces the rigidity in the power dynamics between the parties.
One possible route that can be adopted in this situation is Environmental Mediation. Environmental Mediation is a conflict resolution method which focuses on managing environmental disputes by addressing the concerns raised by parties to the dispute through facilitating safe conversation and building collaboration through mediation. Environmental Mediation emerged as a subfield of ADR and the several federal machineries have been set up in the U.S.A. to create and develop an institutionalized force which would work towards the effective resolution of environmental disputes. It is safe to presume that there are multiple linkages between environmental and other policy issues. The prime goal of mediation is to achieve consensus by actively involving the affected citizen groups. Mediation is a far more effective dispute resolution mechanism because of the significantly lower costs involved and the time taken. Again, it is pertinent to mention that unless active measures are undertaken to bridge the imbalance of power between the parties, even Mediation as a recourse will not help achieve the desired compromise.
Environmental Mediation as a sphere has a high success rate overall because parties participate in an environment where they can freely and confidently resolve their legal and factual disputes in front of a neutral third party. Moreover, despite the adoption of a progressive policy in the form of the National Environmental Policy Act (NEPA, 1970); the federal courts in the United States are plagued with numerous cases and controversies, especially with regard to the use of natural resources.
But in the present dispute, one can clearly see that the issue not just the environmental impact of this pipeline, but also the damage to the integrity of the indigenous groups that it would bring. At the same time, the arguments raised by TC Energy and the State must also be paid equal attention. Hence, adopting a complete environmental mediation approach will not be suitable to address all the concerns raised by the indigenous communities and TC Energy. It is apparent that a customized approach must be formulated, which not only takes into account the environmental concerns but also the issues relating to the cultural sustainability of Indigenous Groups.
Environmental impact due to non-cooperation between TC Energy and indigenous communities
There is a lot of uncertainty with regard to the environmental damage that this project could inflict. The controversy surrounding this pipeline has been dragging on for over a decade now. For starters, there were multiple discrepancies recorded with respect to the EIA processes. Further the confusion surrounding the sustainability of the project as to whether the overall social and economic benefits of constructing the Keystone XL pipeline trumps the inconvenience posed to the Indigenous community. We must remember that the mere involvement of indigenous tribes in an issue does not automatically entail that their concerns trump others concerns. Exercise of practical reason is absolutely necessary to understand the concerns of the energy authorities as well. The mediation process should be designed in a mutually beneficial manner, by reducing the possibility of political bias and ensuring that no party is forced into accepting a disadvantageous agreement.
The environment is an integral part of the cultural identity of the indigenous peoples and their knowledge and cultural practices are necessary to protect the environment. The non-cooperation between industries and indigenous communities, due to the different goals and sometimes contradictory interests, is more damaging to the environment. As there exists a cultural asymmetry between indigenous lifestyle and non-indigenous lifestyle, the industries are individually incapable of being environmentally conscious, as their goals do not align with the same. So, the exchange of knowledge between the two parties will act to limit the gap that exists and will in turn push energy industries to act more sustainably. A more practical agreement, will ensure that all is not lost. Sustainable development through mediation will recognize the fundamental rights of indigenous peoples. For these reasons, a hybrid process of mediation is recommended in this essay to achieve a mutually beneficial outcome.
‘Hybrid’ Process of Mediation as a Viable Solution
Hybrid Process of mediation is a strategy wherein there is a synergy of the indigenous paradigm of mediation and the American paradigm of mediation. This process is an attempt to provide a fair and equitable opportunity to the vulnerable indigenous communities which seek relief from the federal policies on development. This approach recognizes the need for development and balancing the needs of the indigenous communities at the same level as industrial giants who have the necessary financial resources. Mediation is in itself a practice which is made successful if the parties have mutual respect. Due to the complicated legal procedure and the potential damage to TC Energy or the indigenous peoples, pursuance of a customized mediation approach allows for their interests to be met with, without collateral damage. Forcefully engaging indigenous communities in the American justice system to acquire their rights, will create a power imbalance amongst the parties. So, for a viable solution, these two systems of justice must be synergized. The tribal dispute resolution systems must be respected and recognized by the non-indigenous parties to pave way for healthy communication. It is essential that the parties honour the differences that exist between them. These practices will ensure the willing participation of the indigenous peoples with non-indigenous parties, because it protects their right to Self Determination. The Keystone XL Pipeline infrastructure infringes on indigenous jurisdiction, and goes against the interests of the indigenous peoples and their rights. So, the customized process is nothing but a Cultural Synergetic form of Transcultural Mediation (CSTM), which allows maximum autonomy by respecting the cultural elements of the indigenous groups and the American model of Mediation.
The Mediation, hence, will have multiple levels, each focusing on the different issues faced by the parties. The form of the mediation will alternate between the exercise preferred by the different parties. These exercises will strengthen the intention of resolution of the conflict in a successful manner. Instead of focusing on a result-based form of mediation, the Hybrid process will give priority to the comfort of the different cultural groups and moderate the expectations of the indigenous communities and TC Energy. Due to their traditional roots in negotiation, it is more preferable to indigenous communities. TC Energy, though an infrastructure company, must respect the internationally and federally recognized special rights of the indigenous peoples and participate in the process, as it protects the financial interests and reduces the time duration of the delivery of a solution. The gap that exists between the two paradigms of justice system, if made into a hybrid will synergize and produce the most opted mechanism for the parties involved in all intercultural mediation, as it reduces on cost, time and increases trust between cultures.
By recognizing the basic principles of Self Determination and free decision, the parties can exercise this hybridized form of mediation, CSTM, for maximizing a long-term benefit for both parties. The transition of the conflict resolution to an acceptable middle ground, is the most practical method for indigenous peoples especially, due to the complex legal system and the poor justice delivery ability in the American courts for indigenous rights. This will not only give the indigenous communities a fairground, must also seeks to familiarize the opposing parties on the systems and culture of the indigenous peoples and will result in a sensitization and a more aware decision making by non-indigenous cultures in the future.
The Hybrid approach will respect the sovereign status of the indigenous communities and boost their autonomous status whilst also granting a more accessible way to TC Energy for resolving jurisdictional and environmental disputes with the indigenous population. This practice is recommended as it bolsters the interdependence of the two parties rather than pitting them against each other, as a pipeline project is disastrous to the lives of indigenous communities and the environment, and the lack of mutuality from the part of TC Energy will only further complicate and delay in the implementation of the project if litigation is pursued.
This transformative approach to the existing style of mediation will be exceptional in creating a win-win situation for the parties in the status quo, looking out for the welfare of the communities and to guarantee a more profitable outcome for the infrastructure and development companies.
Suggestions and Conclusions
In this essay, we have proposed a ‘Hybrid’ approach to Mediation, as a solution to the multi-faceted nature of the concerns raised by the interest groups. In this cross-cultural issue, there is a huge possibility for indigenous voices to be lost in litigation. This process empowers the indigenous communities by providing a fair playing field. The incorporation of the following suggestions will increase the chances of a successful mediation:
- Recognition and sensitization on indigenous dispute resolution practices by the other interest groups will ensure trust-building among the parties.
- The Mediator must attempt to have complete knowledge of the different interests and rights of the parties and must act in an unbiased manner to provide for a successful mediation.
- Communication gaps between indigenous communities and non-indigenous communities must be bridged.
- The mediator must undertake a more holistic approach to provide for a safe and inclusive space for the indigenous community members involved.
- Adequate research carried out by neutral parties must be consulted to gain a comprehensive understanding of the situation at hand.
- Instead of pursuing a result-based approach to mediation, greater priority should be given to individual decision making of the parties for a long term solution.
The multi-stakeholder issue such as the Keystone XL Pipeline case can only be effectively solved if there is a willingness to participate in a mutually benefitting dispute resolution process. The legality must be considered in conjunction with the practical demands of all parties to create a successful mediation wherein all voices are heard and understood. For the very reasons, we suggest, pass the talking stick.
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