THEME: Mediation and International Politics

This article is authored by Bhavisha Sharma and Nishtha Goyal from NALSAR University of Law, Hyderabad.

Abstract

Struggles of the indigenous communities echo from every corner of the world. From Niyamgiri in India where the Dongria Kondh fight against a mining project[1] to Piaçaguera in Brazil where 500 years have passed in the battle for land demarcation,[2] struggle is the only constant in a tribe’s life. With the advent of industrialization and modernization, tribal lands are increasingly being taken over and justified on the basis of the subjective notion of “development.” The overarching question of the cost that our planet and its ecosystem pays of this economic development must be considered. This essay attempts to discern a similar event which has become the epicenter of an enormous environmental and indigenous rights battle and has piqued the concern of the global community. 

The Keystone XL Pipeline aims to transport crude oil from Canada to the USA. The new proposed route violates the territorial integrity of the indegenous tribes from both countries even though the natives have been given special securities under signatory treaties as well as the constitutions. Even though the court has passed orders pausing the constructions, the government has refused to pay heed to them. In this light, this paper attempts to analyse whether mediation can be a beneficial alternative to the traditional litigation strategy. While outlining various features of mediation, the paper shall discuss its application as a pro or con to the current dispute. It will then conclude with some suggestions on how this mediation procedure can be made more efficient and effective. 

 

Introduction

Struggles of the indigenous communities echo from every corner of the world. From Niyamgiri in India where the Dongria Kondh fight against a mining project[3] to Piaçaguera in Brazil where 500 years have passed in the battle for land demarcation,[4] struggle is the only constant in a tribe’s life. With the advent of industrialization and modernization, tribal lands are increasingly being taken over and justified on the basis of the subjective notion of “development.” The overarching question of the cost that our planet and its ecosystem pays of this economic development must be considered. In this essay, we attempt to discern a similar event which has become the epicenter of an enormous environmental and indigenous rights battle and has piqued the concern of the global community.

What is KeyStone XL Pipeline Issue?

The Keystone XL is a cross-border pipeline which runs 1,179-mile (1,897 km) and was proposed by TransCanada. The latter is a Canadian energy infrastructure company, in 2008.  The pipeline is designated to transport 830,000 barrels of bitumen, the world’s dirtiest fossil fuel, from the tar sands in Alberta, Canada to Texas, USA. This is an extension of an already existing pipeline Keystone, but will instead take a shorter route and bolster the oil flow from Canada.[5]

The issues concerning this pipeline revolve around the catastrophic consequences of the project on the environment and the indigenous communities living in the vicinity of the proposed pipeline. The pipeline has witnessed many minor to major spills throughout the years of its operation. Hence, Keystone XL does not command confidence even though it is technologically superior than its counterparts. Additionally, extracting oil from Alberta Oil Sands, Canada requires more energy than traditional methods. Due to this, the project poses a constant threat to the limited energy resources present in the forest which are crucial for the indigenous people to survive. Studies have also found that during the process of pipeline construction, industry chemicals often seep into the ground-water reserves.[6] All of this is coupled with the inherent risks of chemical releases, explosions and fire. Climatologists fear that burning the oil buried in these oil sands will release enough carbon di-oxide to balance the sporadic efforts of humankind to control climate change.[7] Apart from the environment and livelihood concerns, the pipeline is alleged to violate the inherent rights of the indigenous communities under the constitution and various international treaties.

The project has faced rigorous and persistent protests from various organizations, religious leaders, activists, indigenous communities, ranchers, farmers and business owners along the proposed path of the pipeline.[8]  Many leading economists and scientists have raised their voice against the project.[9] Additionally, leaders such as former president Jimmy Carter, Archbishop, Desmond Tutu, Dalai Lama etc. have written letters opposing the proposed project.[10] The US Courts have also repeatedly decided in favour of the indigenous communities. However, President Trump issues a permit after each judgement to essentially nullify the judicial decision and keep the construction of the pipeline going.[11]

Stakeholders and their interests

TC Energy

It is an energy-infrastructure company based in Alberta and is a major player in the oil industry. It initially set up Keystone Pipeline in 2010 and plans to privately finance the extension of the pipeline along with other oil shippers.[12] It sees massive potential and interest in blocking the remaining space on the spectrum of pipelines with Keystone XL. According to TransCanada’s official webpage, the project would boost its capacity to export to the US refineries and contribute towards safeguarding US’s energy dependency.[13] Additionally, it would create thousands of jobs and provide immense economic benefits to the indigenous communities on either side of the border.

Canada

Canada is the only country which has huge oil-reserves but is still not a part of Oil and Petroleum Exporting Countries (OPEC).[14] The Canadian government claims that the Keystone XL would be highly rewarding for the country and revive the struggling energy industry. Currently, 99% of its exports go to the US, where they settle for a bargain owing to the caps on refinery capacity and pipelines. This project will facilitate Canada to boost its exports to Asian countries where it can fetch more money.[15] It would also create thousands of jobs and would be a safer option than rail cars which are widely being used as an alternative.[16]  Justin Trudeau, Prime Minister of Canada, firmly believes that –

The transition off of fossil fuels is going to take a long time. My responsibility now … is making sure Canadians have good jobs, making sure communities are prospering … and doing it in a way that understands our responsibility to the environment and future generations.”[17]

USA

In 2015, former President Barack Obama refused to grant a permit to the project and instead stated that “America is now a global leader when it comes to taking serious action to fight climate change, and, approving this project would have undercut that global leadership.[18] Tables turned after Mr. Donald Trump was elected as the President and Keystone XL was shown a green-flag through a presidential permit. People remark the project as an energy insurance policy to the country which will reduce oil dependency and help lock in cheap supply of oil from a friendly neighbor.[19] It is estimated that the pipeline will also create thousands of jobs and generate millions in property taxes along the route of the pipeline. Additionally, it will extensively contribute to the US GDP and an increase by  $6.5 billion to the personal income of the workers.[20]

Indigenous Communities

The route of Keystone XL essentially disrupts multiple tribal communities on both sides of the border. They raise concerns regarding violation of their inherent rights promised to them since the constitution of the countries. The details of the same would be discussed in a further section.

Environmental problem against Keystone

The broader criticism against the Keystone XL attacks the mere fact that this continuing dependence on fossil fuels would be a setback for the sincere efforts to tackle global warming. In line with this bigger picture, the pipeline poses huge risks for the environment in general as well. As the indigenous tribes live in close proximity of the pipeline, they are directly and severely affected by the environmental risks.

The pipeline raises the major risk of oil spills. Earlier, TransCanada predicted that South Dakota will face an oil-spill no more than once every 41 years.[21] However, the recent spill in 2019, which poured almost 4,07,000 gallons of crude oil into the ground, marked the second spill in the state in the last seven years.[22] These spills, other than the direct harm to the indigenous communities, are harmful for the environment in general. Effects of the damage caused by these spills, even if considered repairable, would at least take a few decades to completely wither. Not only are the spills much more frequent than what was earlier perceived, the fact that the crude oil involved is bitumen makes it all the more worse for the environment.

Rights of the Indigenous Communities

The major legal argument of indigenous communities stem from the treaties they have signed with the state. The Native Americans constitute a separate political classification by the federal government as these legal instruments give them a special status.[23] The treaties pre-date the formation of the present form of the US government and are the reason why these indigenous people, along with their lands, are a part of the US territory in the first place. With the agreement to give their land, the communities were granted certain rights to ensure that their land, lifestyle and life does not change because of them becoming a part of the US. However, these communities have been fighting the battle for their rights being violated in some or the other form for a long time now.

The Canadian indigenous tribes also have similar issues. Canada’s constitution recognises inherent rights for First Nations. The rights are inherent as they flow from the land to which they are considered attached with. Tribes from both countries contend that implementation of this project without getting them on board violates free, prior and informed consent over any activity that affects them, their land or their future.[24] Similarly, fishing rights as well as right to territory have also been protected. Though these rights are not absolute, the restriction amount only to ensuring that the rights of indigenous people themselves are not violated in permitting someone else to exercise their rights. Common example for such situations includes power generation.[25] However, in the present case, the governmental right to use the territories to transport fossil fuel trumps the right of indigenous people to enjoy their lands and resources. The estimated number of spills and contamination of water-body therein also brings health issues as many of these tribes across the border eat fish as their staple food.[26] Their food-patterns will also be disturbed due to the adverse effect on hunting resources and associates tribal economies due to the construction. This construction will also bear disastrous consequences for cultural, historic and sacred sites which are very dearly and proudly held by the indigenous communities.[27] UN recognized the importance of protecting cultural heritage and obligates the state parties to protect them.[28] As all activities are taking place without any consent from the indigenous communities, the activities are also a blot on the territorial and cultural integrity of these tribes which was promised to them years ago.

The US manner of implementation with respect to total disregard of the judiciary by the executive shows that the ignorance towards the needs of these indigenous communities is deeply entrenched.[29] This is governmental misappropriation in the garb of bigger picture of development and increased job-opportunities but the truth has shown that neither benefits them. When the conflict goes down to the ideological facades, which seems to be the case here, it remains to be seen if mediation would be feasible.

The problem of non-recognition of indigenous rights is now being tackled due to the US presidential elections. The US houses approximately 5.2 million Native American persons. Though the number amounts to only 1.7% of the total population, experts estimate that the voting trends of  indigenous community’s votes may determine the winning candidate because of their distribution in the crucial constituencies.[30] In this light along with the nearing US Presidential Elections, the issue of implementation of the rights of the indigenous communities has gained a lot of attention. One example of this is the Frank La Mere Presidential Forum which was organized in September 2019.[31] Multiple Democrats, including two frontrunners for Presidential Candidacy, marked their presence in the event. They heard the problems of numerous people from indigenous communities who travelled long hours just to get a chance to be heard by their probably future leaders. In light of this disregard for the judicial orders and increased political attention, we would now consider whether mediation would be a viable option for resolving the dispute.

Why should this dispute be mediated?

Mediation is an internationally recognized informal process by which a neutral third party facilitates the affected parties to amicably reach a solution.[32] The dispute might either be pending before the court or may display the potential to go to the court. There are many reasons to choose mediation over traditional forms of dispute resolution such as litigation – affordability, voluntary nature, timely resolution, confidentiality, quality of settlement, flexibility, innovative solutions etc.[33]  A major assumption in this process is the belief that the parties are the best judge of the real situation, local needs and whether an adequate solution has been reached. They have the freedom to discuss issues which are not legal in nature but affect them closely.[34]

Environmental disputes constitute one of the most challenging and complex areas of conflict in the modern world. Any environmental conflict essential includes an appropriate  consideration of a variety of disciplines such as sociology, history, economics, science, cultural integrity, property rights etc. The stakeholders can range from private individuals to states and even the global community as a whole. The dispute may involve aspects which have unknown effects & consequences and requires detailed risk analysis on the basis of this unknown information.[35]

Mediation, for environmental issues entangled with indigenous rights, is not unprecedented as the preferred dispute-resolution method. USA witnessed one of the earliest such mediations in 1973, the Snoqualimie river mediation.[36] It was successful as a mutually beneficial decision was agreed upon. Instead of building a land on the whole river which would have impacted the pristine wilderness of the area, it has been built on a smaller portion thus striking a balance between contrasting needs of different sections of the society.

Increasingly many other countries like Canada, China, Thailand etc have started using mediation to resolve environmental disputes. There have been promising legislative efforts around the globe. For example, in the United States, the Environmental Policy and Conflict Resolution Act of 1998 created the United States Institute for Environmental Conflict Resolution.

What will be the Parties to the Mediation?

Till now, TC Energy, US Government and Canadian government have together maintained a similar and positive stance towards Keystone XL. Having implemented earlier projects, the stakeholders are also relying on technological advancements to lower the probability of drastic effects due to the pipeline. In this light, these three entities can together hold the same stance, representing that the pipeline should be built.

Conversely, the indigenous people can be represented as the second party in a manner similar to the one adopted in courts. Indigenous Environmental Network and Native American Rights

Fund[37] have together filed court cases against the construction of this pipeline, and have been successful in receiving an injunction as well. For mediation too, if these organizations and the indigenous communities so concerned agree, the needs of the people may be represented by a group of organizations.

Though this is probably the easiest way to rearrange the parties of this dispute, it has some disadvantages too. The prima facie problem would be that of representation of actual indigenous voices and not simple misappropriation of their interests. For this, it should be ensured that these leaders and organizations representing the people regularly hold fruitful open-houses wherein general community people can express their views. Such discussions are already happening as once, the leaders organized a public-hearing to ensure that all indigenous people are being heard.

The community and the organizations must also together decide certain basic rules in which they will proceed in the mediation. They must also educate groups of people about what can be the possible outcomes and take opinions on whether these mediated settlements will be accepted by the community or not. The mediators and parties involved should also agree to waive-off the confidentiality so that the proceedings of the mediation can be made public for indigenous people to see and participate in the determination of their rights. It is important to implement such ways because unlike court, mediation does not strictly support the side which has legally-strong arguments. Instead, it is about coming to a settlement behind closed-doors and thus, these initial processes must be undertaken to ensure that the interests of the community at large are not trumped by the discussions of a few.

Irrespective of how these parties are arranged, it is imperative that all of them do participate in the mediation. Each one is an important stakeholder and their presence is required to ensure that if they reach a settlement, it is not opposed by someone else at a later point in time.

Factors affecting desirability of mediation

Control and Flexibility

Parties have greater control over the schedule and duration of the process as compared to a court of law where the parties are rather powerless.[38] For mediation, they can specifically design a process which is more relevant and appropriate for their case. They can choose the mediator and will be more likely to commit to a decision which has been arrived at by mutual discussion rather than by imposition[39]. 

Building of trust and communication

Mediation can build the foundations of future dispute resolving. This is because all parties involved, knowing that they will be mediating the dispute with the some legal assistance,  necessarily educate themselves on the concerns and perspectives of others. Even when a settlement agreement is not reached, at least the vindictive nature of the dispute can be somewhat tackled. The parties can even look forward to work in partnerships after that[40].

In our case, the potential gain if a settlement is reached through mediation will outweigh any small compromises either party makes during mediation for now. This is because it is important for our factual scenario that a mutually agreeable decision is reached so that there are no clashes on the disputed land and the settlement can be smoothly executed. Such execution would also require a lot of time, money and dedicated representatives who work on these issues. Unless these executives from different parties work with each other harmoniously, the settlement would never reach its full potential.  One of the classic examples of the same is the Timber Fish and Wildlife (TFW) mediation which was initiated between the Washington tribes, timber agencies, government and environmentalists in 1987. The process has been extremely useful in collectively managing timber resources and building mutual trust amongst the parties. Looking at past examples, we can look forward to a long-lasting cooperative mechanism between the government and indigenous people if a settlement is reached.[41]

Duration and Cost

The duration of the proceeding has a direct impact on its cost. Court cases generally drag on for a long time and even when once decided, are often subject to further appeal. For all this, parties have to bear exorbitant expenses. On the other hand, mediation is generally believed to be the cheaper alternative. However, this is often true only for cases in which the disputes and parties are limited.[42] In cases of environmental disputes, complex social and ecological systems are involved and substantial discrepancy in information exists. Extensive research and distinguished experts are required to target identified issues. Therefore, a lot of time and money goes into gathering and reviewing available information, discussing and debating possible courses of actions and their impacts, analyzing risk etc. Thus, no such concrete conclusion can be drawn regarding whether mediation would be cost-effective alternative in this case or not.

Tackling unpredictability through mutually agreed decision

One of the key offerings of this process is the possibility of a win-win situation for all parties involved. Interests of all stakeholders can be taken into consideration and accommodated as opposed to the risks associated with a court of law, where some party inevitably loses and the other wins. The latter is a high-risk situation given the unpredictable nature of the decision. There have been cases when the litigating environmental non-governmental organization has been asked to pay costs for bringing a suit.[43] Such decisions have bread rampant fears in the litigating parties. Mediating the conflict is an attempt to ensure that neither party loses everything and instead mutually agrees to settle for less in order to secure the rest of its interests. Given that our case concerns multiple environmental organizations spending their own resources to fight the battle, mediation will help them reduce any possibility of losing. This will make their position more secure in the entire conflict resolution process.[44]

Going to mediation will also equip the parties with the opportunity to decide which rights do they value the most. When they go to the court, the court will have single-handed discretion on deciding which of those rights should be granted and may even compromise on some rights and claim to compensate by upholding the other ones. However, this approach will not be best suited to the community’s rights as a whole. On the other hand, in mediation, the indigenous people can themselves decide which right or facet of right or its application are they willing to forego in exchange for a settlement that will be enforced and will protect its other rights. Thus, the process takes away the unpredictable nature and empowers the parties to decide what can they possibly let go and what they hold dear to themselves.

Values and Impact

In a traditional court of law, only the legal angle of the problem gets addressed. However, such disputes which involve consideration of the rights of the public at large are tangled with social, economic and environmental values which often go unaddressed.  The broader issues in such cases are reduced to narrow legal questions in the court to facilitate the judicial decisions. Because of this, the affected parties tend to seek a reflection of their values in law rather than simply seeking answers to legal questions. The courts have often been inept to comment on social or political values in their decisions, and may not even consider the bigger effects an issue might have to simplify its own job. Due to this, the courts do not always satisfy the parties with its decision, or because of the reasons of its decision. Such dissatisfactions can be avoided if the disputes are mediated and parties are given the option to negotiate the extent to which they are willing to compromise their principles to reach an amicable solution.  Courts play a pivotal role in establishing values and norms for the society. It is important that such cases can act as precedents for future litigation and are not left behind closed doors. [45]

This involvement of intrinsic values in human conflicts must be perceived in one other way as well. When there are fundamental and stark differences regarding what principle an individual or entity considers paramount, it is often difficult to reach an amicable settlement. When the issues are of immense importance and the parties are emotionally charged, they tend to take uncompromising stances. In cases like these, it might be necessary to establish a right and a wrong, a win-lose situation in certain cases. Litigation might be fruitful in such matters as it reflects the values which the court upholds over the one which it is willing to forego, often for vague reasons of public good or morality etc. [46]

Confidentiality

The confidentiality of the mediation session is a highly attractive feature of the process. It helps the parties to open up and discuss the real stakes. The mediator is in no circumstance allowed to reveal any information discussed during a session or a caucus without absolute agreement of all the parties. However, this also means that the discussions and the reasons for an outcome remain behind closed doors. In the case at hand, this might be slightly problematic as representatives of multiple stakeholders may deceptively agree to a settlement which is only catering to their self interest. Thus, for such reason, the generic rule of confidentiality needs to be rethought. The parties can sign waiver to confidentiality to ensure that the public, at least the sections directly affected by a possible settlement, know what is happening in the room to ensure their rights are not misappropriated by the ones who claim to protect them.

Sometimes, parties are reluctant to mediate because they fear that some sensitive information may be revealed during the process which may undermine their case in a court of law. This consideration does not have much ground in the present case as most details of the dispute are out in the public. Anyway, such revelations in the mediation proceedings are protected by privilege and the parties are never pressured into revealing information. Thus, those considerations are not applicable here.[47]

Representation of all the affected parties

The prerequisite of a successful mediation is that all stakeholders should have a voice in the process of mediation. The identification of parties and bringing reluctant parties to the table becomes pivotal. The is crucial in the dispute concerning Keystone XL pipeline owing to the multitude of affected parties. It is imperative that all parties are represented so that the legitimacy of the settlement can be established and the same can be enforced.  For encouraging reluctant parties to come to the table, their BATNA (Best Alternative to a Negotiated Agreement) can be discussed so that the parties understand that an attempt to mediate the dispute is a better alternative irrespective of whether a settlement is reached or not.[48]

Guided by subject experts

The technical and scientific complexity lends a unique nature to disputes concerning environmental issues. The decisions determine the manner in which resources should be used impact a wide array of people at the local, state, national and international level. They also have intergenerational impacts. Whenever such issue arises, all eyes turn to experts in the fields. In mediation, the parties can choose the mediator and hence an expert can mediate. The mediator can also take assistance of other experts to facilitate the entire process. Such expert guidance is often lacking in litigation where no expert judge is appointed to carter to the needs of the case. In the present case, this may help the indigenous communities in making legitimate environmental studies accessible to the government, which has not completed its obligation of getting the environmental survey done.[49]

Asymmetric Power and Discrepancy of Information

Inequity between the parties can gravely affect the extent to which any conflict-resolution process is fair, voluntary and representative. In our case, the indigenous communities have far less financial, technical and legal resources when pitted against the mighty corporate and two different states. This factor plays out adversely in litigation as well as wherein powerful parties can buy the top lawyers/ counsels in the field. However, in court, at least the judge makes an active effort to balance this power asymmetry whereas in mediation, the weaker section is just left on its own. The mediator can stop any such power discrepancies only to a certain extent, and a one-sided settlement may be agreed owing to the less-resourceful parties being too scared to ever litigate against the mammoth parties[50].

Would the mediated settlement be binding?

If all goes well and a settlement is reached, then the next challenge involves its recognition and enforcement. The traditional route to enforcement, when the parties refuse to enforce it themselves, of mediated settlements goes through courts. In general, the US as well as Canadian courts take a pro-enforcement stance towards mediated settlements.[51]

However, as the issue involves multiple governments and tribes from two different countries, legal implications of cross-border judicial enforcement need to be considered. In the ideal situation, these problems should not arise if all parties agree to waive any such possible claims which challenge enforcement beforehand itself. However, if such a situation does occur, the regime of enforcement of international mediated settlements needs to be considered. The UN Convention on International Settlement Agreements Resulting from Mediation was signed in Singapore on 7 August 2019.[52] Similar to the New York Convention which deals with enforcement of arbitral awards, this treaty aims to unify recognition and enforcement regime in cross-border and/or international cases all across the globe. But the treaty has not come into force as it awaits ratification from countries.[53] Additionally, the US has signed the treaty but Canada is not even a signatory. Thus, the treaty at best represents a general principle which courts may or may not take into account while deciding whether a mediated settlement should even be enforced in the first place.

In the current circumstances where President Trump has blatantly flouted orders from the Court of Appeal, it is difficult to see if any more court orders will help, at least in the US. Given that the mediation involves public rights or rights of communities at large, there is a possibility that the award is later challenged by any member of the public after a settlement has been reached. Essentially, even before they begin the mediation, there needs to be a certainty that such judicial challenge is not possible. In India, as analysed by experts, availability of writ petition against any possible settlement in the Ayodhya mediation was one reason why the stakeholders themselves did not take the process seriously.[54] If such is the case here too, the incentive for parties to mediate in the first place is lessened and the government should consider thinking a solution for the same.

Conclusion

At present, the dispute stands with contravening judicial and presidential orders and executive blatantly flouting the former as well as the rights. The suggestion of mediation as a dispute resolution mechanism is an attempt to ensure that the parties actually follow the settlement. The present dynamics is such that both parties need this procedure. For the governments and TC Energy, the possibility of settlement of indigenous rights gives them the freedom to proceed with the construction of pipeline without any public hindrances. On the other hand, the indigenous communities know that the judicial orders mean nothing to the executive. In this light, the chances of this settlement being enforced by the government are much higher than any judicial settlement. Because of these reasons, it is suitably inferred that if attempt is made to make all stakeholders realise that mediation is in their benefit, there is a reasonable possibility that parties may come together to mediate.

Once they do, certain things must be checked so as to ensure that the process is appropriate and fair. Representatives in the mediation room must actually represent the intention of the masses. Mediator must be equipped and experienced with mediations between governments and interest groups and should strike a balance to nullify power asymmetry. The discussion can be aided with experts so as to ensure that facts are clarified in front of all stakeholders. Attempt must be made to keep the mediation formal and not very highly charged with emotions, so as to ensure that all points raised are reasonably understood and construed by everyone. Conclusively, the settlement reached inevitably will and should answer the environmental concerns too. Thus, in our limited analysis, mediating this dispute with certain guidelines can be a beneficial measure.

 

[1] Satyasundar Barik, Dongria Kondhs continue to fight bauxite mining in Odisha’s Niyamgiri forests, The Hindu, (Mar. 17, 2019, 9:36 AM), https://www.thehindu.com/society/dongria-kondhs-continue-to-fight-bauxite-mining-in-odishas-niyamgiri-forests/article26544621.ece.

[2]  Mara Budgen, After 500 years of struggle, we won’t stop resisting. The Piaçaguera indigenous’ fight for land and identity in Brazil, Life Gate (Aug. 8 2019) https://www.lifegate.com/people/news/piacaguera-indigenous-brazil-documentary.

[3] Satyasundar Barik, Dongria Kondhs continue to fight bauxite mining in Odisha’s Niyamgiri forests, The Hindu, (Mar. 17, 2019, 9:36 AM), https://www.thehindu.com/society/dongria-kondhs-continue-to-fight-bauxite-mining-in-odishas-niyamgiri-forests/article26544621.ece.

[4]  Mara Budgen, After 500 years of struggle, we won’t stop resisting. The Piaçaguera indigenous’ fight for land and identity in Brazil, Life Gate (Aug. 8 2019) https://www.lifegate.com/people/news/piacaguera-indigenous-brazil-documentary.

[5] Keystone XL pipeline: Why is it so disputed?, BBC News (Jan. 24, 2017), https://www.bbc.com/news/world-us-canada-30103078.

[6] Supra note 3.

[7] Brad Plumer, 9 questions about the Keystone XL pipeline debate you were too embarrassed to ask, Vox (Sep. 22,2015) https://www.vox.com/2014/11/14/7216751/keystone-pipeline-facts-controversy.

[8] Keystone Pipeline Faces Indigenous Trans-Border Opposition, Indigenous Environmental Network (Oct. 18, 2011), https://www.ienearth.org/?s=Keystone+Pipeline.

Keystone XL pipeline, Native American Rights Funds (Dec.20, 2019 https://www.narf.org/cases/keystone.

[9] Id.

[10] Melissa Denchak,What is the Keystone Pipeline, NRDC (Apr. 7, 2017) https://www.nrdc.org/stories/what-keystone-pipeline.

[11] Keystone Pipeline Faces Indigenous Trans-Border Opposition, Indigenous Environmental Network (Oct. 18, 2011), https://www.ienearth.org/?s=Keystone+Pipeline.

[12] Supra note 3.

[13] Keystone XL pipeline, TC Energy, https://www.tcenergy.com/operations/oil-and-liquids/keystone-xl/.

[14] Rahul Kalvapalle, What Keystone XL benefit Canada? Depends on who you ask, Global News (Jan. 25, 2017 12:24 AM), https://globalnews.ca/news/3203600/will-keystone-xl-be-good-for-canada-depends-who-you-ask/.

[15] Jesse Synder, What the building of Keystone XL pipeline will mean for Canada and the Canadian Energy Industry, Financial Post (Mar, 24, 2017, 4:20 PM) https://business.financialpost.com/commodities/energy/what-the-building-of-keystone-xl-pipeline-will-mean-for-canada-and-the-canadian-energy-industry.

[16] Rob Nickel, Laharee Chatterjee, TransCanada sees robust oil shipper interest in Keystone, Reuters (Aug. 2 , 2018) Reuters.com/article/us-innergex-m-a-transcanada/transcanada-sees-robust-oil-shipper-interest-in-keystone-xl-idINKBN1KN19R.

[17] John Paul Tasker, Trudeau welcomes Trump’s Keystone decision, CBC News (Jan.24, 2017 12:52 PM) https://www.cbc.ca/news/politics/trudeau-cabinet-keystone-xl-1.3949754

[18] Supra Note 8.

[19] Kai Nagata, Is Keystone in the National Interest? Of Canada, That Is?, The Narwhal (Feb.4, 2014), https://thenarwhal.ca/keystone-national-interest-canada/.

[20] Benefits of Keystone XL, Global Energy Institute, https://www.globalenergyinstitute.org/benefits-keystone-xl.

[21] Valerie Volcovici & Richard Valdmanis, Keystone’s existing pipeline spills far more than predicted to regulators, Reuters (Nov. 27, 2017) https://www.reuters.com/article/us-usa-pipeline-keystone-spills/keystones-existing-pipeline-spills-far-more-than-predicted-to-regulators-idUSKBN1DR1CS.

[22] Supra Note 11.

[23] Ruth Hopkins,Treaties Between the United States and Indigenous Nations, Explained, Teen Vogue (Nov. 12, 2019) https://www.teenvogue.com/story/treaties-between-the-united-states-and-indigenous-nations-explained.

[24] Dallas Goldtruth, Keystone XL would destroy our native lands. This is why we fight, The Guardian (Jan. 9, 2015) https://www.theguardian.com/commentisfree/2015/jan/09/keystone-xl-would-destroy-native-lands-we-fight.

[25] William Henderson & Catherine Bell, Rights of Indigenous Peoples in Canada, The Canadian Encyclopedia (Feb. 7, 2006) https://www.thecanadianencyclopedia.ca/en/article/aboriginal-rights.

[26] Tim Fontaine, A perilous pipeline’: Indigenous groups line up against Keystone XL, CBC News (Mar. 27, 2017) https://www.cbc.ca/news/indigenous/indigenous-groups-keystonexl-2017-approval-1.4042381.

[27] Natalie Landreth et al., Keystone XL Pipeline Case Updates, Native American Rights Fund (Dec. 20, 2019) Thttps://www.narf.org/cases/keystone/ .

[28] UNESCO, The States Parties to the Convention for the Safeguarding of Intangible Cultural Heritage, https://ich.unesco.org/en/states-parties-00024.

[29] Supra note 21.

[30] Joshua Adams, Politicians keep ignoring Native American voters. It’s a huge mistake, Washington Post (Aug. 5, 2019) https://www.washingtonpost.com/opinions/2019/08/05/politicians-keep-ignoring-native-american-voters-its-huge-mistake/.

[31] Rory Taylor, 6 Native leaders on what it would look like if the US kept its promises, Red Lake Nation News (Sep. 24, 2019) https://www.redlakenationnews.com/story/2019/09/24/features/6-native-leaders-on-what-it-would-look-like-if-the-us-kept-its-promises/83569.html.

[32] Dhruv Shekhar, Mediation for Environmental Disputes in India, Kluwer Mediation Blog (Aug 23, 2017), http://mediationblog.kluwerarbitration.com/2017/08/23/mediation-environmental-disputes-india/

[33] What is Mediation and how does it work?, Find Law, https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html

[34] http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.574.4147&rep=rep1&type=pdf)

[35] Dan Swecker, Applying Alternative Dispute Resolution to Environmental Problems, Mediate India (Jul. 2006), https://www.mediate.com/articles/sweckerD1.cfm?nl=108.

[36] Lee Dembart, Richard Kwartler, The Snoqualmie River Conflict: Bringing Mediation into Environmental Disputes, Taylor and Francis Group, https://www.taylorfrancis.com/books/e/9780429304972/chapters/10.4324/9780429304972-4.

[37] 9th Court of Appeals Throws Out Case Blocking Keystone XL Pipeline, Indigenous Environmental Network (Jun. 7, 2019), https://www.ienearth.org/9th-court-of-appeals-throws-out-case-blocking-keystone-xl-pipeline/.

[38] Jennifer Girad, Dispute Resolution in Environmental Conflicts: Panacea or Placebo?,(1999), https://cfcj-fcjc.org/sites/default/files/docs/hosted/17465-dr_environmental.pdf

[39] Dan Swecker, Applying Alternative Dispute Resolution to Environmental Problems, Mediate India (Jul. 2006), https://www.mediate.com/articles/sweckerD1.cfm?nl=108.

[40] Supra note 38.

[41] Green v. The Queen in Right of the Province of Ontario , 2 US. 396 (H.C 1973).

[42] Daniel Risel, Negotiation and Mediation of Environmental Disputes, OSJDR, https://kb.osu.edu/bitstream/handle/1811/75848/OSJDR_V1N1_099.pdf.

[43] Stephen Higgs, The Potential for Mediation to Resolve Environmental and Natural Resources Disputes, ACCTM, http://www.acctm.org/docs/The%20Potential%20For%20Mediation%20to%20Resolve%20Environmental%20_CONNOR-Higgs_.pdf.

[44] Id.

[45] Supra note 39.

[46] Id.

[47] Supra note 42.

[48] Supra note 38.

[49] Supra note 39.

[50] Supra note 43.

[51] Eric Van Ginkel, Mediation Under National Law: United States of America, IBA Legal Practice Division Mediation Community Newsletter (August 2005) https://mediate.com/globalbusiness/docs/Mediation%20and%20the%20Law%20-%20United%20States.pdf.

[52]UN General Assembly adopts new convention on mediation involving international settlements, International Institute For Sustainable Development News (Apr. 23, 2019), https://www.iisd.org/itn/2019/04/23/un-general-assembly-adopts-new-convention-on-mediation-involving-international-settlements/.

[53] PTI, India signs UNISA; experts call for local laws supporting treaty, The Economic Times (Aug. 7, 2019) https://economictimes.indiatimes.com/news/politics-and-nation/india-signs-unisa-experts-call-for-local-laws-supporting-treaty/articleshow/70572819.cms.

[54] K Raveendran, Ayodhya Mediation was ordained to fail and its award would have been open to legal challenge, National Herald (Aug. 4, 2019), https://www.nationalheraldindia.com/india/ayodhya-mediation-was-ordained-to-fail-and-its-award-would-have-been-open-to-legal-challenge.

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