THEME: Mediation and International Politics


This article was authored by Gurfateh Singh Khosa from the National Law School of India University, Bangalore.


This paper examines the possibility of mediating the development of the Canadian Keystone XL Pipeline in relation to the rights of the indigenous people. By examining this important issue, I argue that the existing mechanism of addressing large scale developmental projects vis-a-vis the rights of the indigenous communities is not adequate. In order to efficiently resolve such disputes, a different mechanism of dispute resolution such as mediation should be adopted. A detailed structure of the Keystone Pipeline has been presented along with the controversies that have taken place surrounding it. Further, a historical trajectory has been studied to highlight the existing problems of delay in resolving the matters, other than that, the issues of political interference and ignorance of the interests of the indigenous people have also been discussed. The significance of mediation for such sensitive matters along with its practical implementation has been pointed out. The paper recognizes that the Keystone XL project is a reflection of several other projects that demonstrate the problem of economic interests versus rights of the indigenous people, it suggests that mediation, if conducted efficiently can provide an equal footing to the parties involved and can help them reach an amicable solution.


Natural resources have been regarded as a vital aspect of economic development over the past two centuries. Although largescale efforts are being made to come up with sustainable methods of producing energy, the current scenario indicates that natural resources such as oil, gas and other important minerals will continue to play a significant role for years to come. The extraction of such natural resources has had a huge impact on the environment as well as on the traditional societies, particularly the indigenous people.

The indigenous societies across the world share a deeply sacred as well as symbiotic relationship with their territories. These territories are home to a plethora of natural resources which makes them vulnerable to exploitation by governments and industrial corporations. More often than not, the spaces that indigenous communities live in are viewed as opportunities for economic growth through extraction of natural resources. Essentially, the lands of the indigenous people which constitute as a fundamental element of their spiritual, cultural as well as physical survival, is at odds with economic interests of the government and corporations.

With the rapid increase in development and industrialization, the relationship between the indigenous people and the industrial corporations has historically been that of conflict. This relationship is further identified by widespread exploitation along with violations of and human rights in regards to the indigenous communities. A recent issue that is an adequate reflection of economic interests versus the rights of indigenous people is that of the ongoing project of the Canadian Keystone XL Pipeline, which is a proposed route in addition to one of North America’s largest petroleum pipelines with great economic potential on one hand and severe environmental as well as social impact on the other.

While the Keystone XL Pipeline is one story of resistance by both indigenous groups and their allies (the environmental activists), there are other similar projects involving oil and gas which are to be built across the world. Further, apart from the economic stakes involved, such projects have attracted important political debates along with legal issues on a global level. Although the Keystone XL Pipeline runs across the United States of America and parts of Canada, two countries that are well equipped with adequate resources and legal institutions to address this matter, the parties have still failed to reach a consensus from the early 2000s. It is pertinent to note, that unlike developed countries, the developing countries wherein the economic benefits are not just interests but a necessity and where protection of environment and indigenous people is a luxury, the scope of facing greater repercussions and delay in resolving such matters is greatly increased. In light of the same, it is argued that the existing mechanisms and institutions are ill suited for resolving matters that involve several stakeholders and deal with legal, social and political issues. Such a scenario with different parties involving different stakes necessitates a different mechanism of dispute resolution such as mediation. Part I of this paper provides a detailed understanding of the Keystone XL Pipeline project. Part II analyses a historical trajectory of the pipeline over the years and highlights the complexity of this issue. Finally, Part III concludes by arguing that mediation might be a more effective method of dispute resolution than the existing mechanisms.

Understanding the proposed Canadian Keystone XL Pipeline


The Keystone Pipeline which is a project initiated by TransCanada, is the most studied cross-border pipeline in the history of North America.[1] It was constructed to transport crude oil from Canada and the United States across a 2,639-mile network.[2] The pipeline originates from Hardisty, Alberta in Canada and then changes its course down south across the border of United States border wherein it crosses the states of North Dakota, South Dakota, Nebraska (wherein the controversy arises), Kansas, Oklahoma and lastly ending at the oil refineries based in Texas situating itself at the Gulf of Mexico. Keystone Pipeline started its operations in the year 2010, which itself was after a delay of 10 years from the initial proposal. The pipeline had already moved more than one billion barrels of crude oil to the U.S. refineries till the year 2017.[3] It is regarded as a modern-day marvel due to its high-strength design along with thousands of data points that accompany its route and send information to a central system.

Interestingly, central to the pipeline project are the oil sands of Alberta which are the country’s most ambitious ventures relating to the petroleum industry. The mentioned region places Canada as third largest oil reserve holder in the world. In order to attain maximum economic profits of this resource, the country has regarded transporting fuel to the potential international market as paramount. Altogether, the project involves four phases, out of which three have been completed and are in practice. It is the fourth phase, which is of interest to the present paper that has delayed TransCanada’s bid to strengthen its oil network across the continent and has subsequently gathered a lot of attention because of various reasons that will be discussed in the paper below.[4]

The mentioned fourth phase of the pipeline which is called the ‘Keystone XL’ segment is estimated to cost up to a massive $8 billion for construction.[5] It would originate at Alberta itself and cover up to 1,179 miles crossing Montana, North Dakota and most importantly Nebraska which is the region that has resisted the development over several years with the efforts of the indigenous rights supports and the environmental activists.

The Proposal

The Keystone XL Pipeline would alone transport up to 800,000 barrels of Canadian tar sands a day.[6] Its supporters state that the pipeline is of great economic significance and constitutes the backbone of America’s energy infrastructure. As per its proponents, the proposed pipeline is amongst the most environmentally suitable ways to transport fuel that powers America.[7] Further, an analysis by the State Department under President Obama estimated that the pipeline would provide with up to 42,000 temporary jobs for up to two years. It has also been stated that several landowners are welcoming TransCanada’s lease offers and different communities are interested in the income that the pipeline aims to generate.[8] The use of oil transported to the refineries in Texas has not been clarified by the administration. However, reports have suggested that it would either be exported further to other countries or it will be used to meet the country’s growing energy demands. Both the cases are likely to be economically profitable to the country which are estimated to about 100 to 600 million dollars annually.[9] Moreover, the US Department of Energy Security in 2011 had highlighted that such a project could eliminate the United States’ dependence on imports from other supplying countries.[10] For Canada which is looking for ways to increase its profits from the potential energy projects, an estimate of a return of nine dollars for each dollar invested has been predicted.[11]

The Opposition

Several groups both from United States and at a global level have objected to the construction of the pipeline. There are largely five issues that the opposition has mostly presented. These include, firstly, the safety of pipelines carrying oil and gas. It has been observed from pipelines across the world and particularly the existing three phases of the Keystone Pipeline that leakages and spills are very common.[12] Such spills severely impact the surrounding wildlife as well human population. Secondly, the long-term impact of the construction of this pipeline in regards to health and environment of humans and wildlife has been pointed out. Further, the pipeline’s economic benefits have also been criticized on the grounds that the project’s primary purpose would be serving the demand for fuel outside America and not within. Similarly, the use and reliance on such a source of energy itself has come into question keeping in mind the climate crisis in the world wherein sustainable as well as cleaner methods of generating energy are being suggested. Lastly, the global discussion and attention towards climate change has led to a lot of opposition for developing such a pipeline. The long-term consequences of such a large-scale project are uncertain, however, one thing is clear the project is only going to harm the environment and not contribute towards sustainability.[13] Such arguments are based on the estimated carbon emissions and other environmental impact that the project carries. The basic material of transportation- tar sands in general is harmful for the environment and emits more greenhouse gas than the regular oil. Adding on to the problem, the tar sands of Canada are regarded as the dirtiest fossil fuels that exist. This is because of the fact that the mentioned sands are thicker than the standard oil and are harder to clean.[14]

Current Scenario

Historical Trajectory and exponential delay

The issue of the Keystone XL Pipeline has become a point of discussion over several years now and reflects both phases of opposition and dissent as well as support and approval. Tracing back to its emergence, the plan for the Keystone pipeline was first announced by TransCanada in 2008.[15] Since it covered Canada and United States of America both, a cross border permit was filed with the U.S. State Department in 2011. A review was conducted for the construction of the pipeline by the same department which concluded that “it would not add significant amount of greenhouse gas emissions to the atmosphere.[16] Political pressure crawled in and President Obama delayed his decision relating to the pipeline until after the elections which were to be conducted in 2012. Thereafter, the permit was rejected by President Obama in 2012 and a new request for a permit was filed in the year 2012 to the U.S. State Department. Following which, the Senate passed the license on grounds of establishing a deficit neutral reserve fund that would promote investment and job growth in the country and would also manufacture, oil and gas production and would bolster other sectors. Another impact statement finding was released in the year 2014 by the U.S. State Department which once again stated that “the pipeline would not significantly exacerbate climate change.”[17] After a series of such permits, the district court of Nebraska intervened and declared the law allowing for the pipeline’s route as unconstitutional. Later in the following years, political approvals were achieved up until President Obama’ vetoed it in the year 2015.

Over the years, various authorities relating to Environmental Protection in the United States declared that the pipeline on its own would not be disastrous for the environment.[18] Lawsuits were also filed against President Obama’s rejection of the Keystone Pipeline, however, incidentally, TransCanada had to shut down a large portion of its Keystone XL phase which reported a large spill of up to 187 gallons of crude oil in the year 2016. As political administration changed in the year 2017, approvals and permits for the Keystone XL took a positive turn as President Trump stated his intent to expedite the final approval of the Keystone XL pipeline. However, once again, the Keystone pipeline leaked up to 210,000 gallons of oil in South Dakota as per TransCanada which was also the largest oil spill of the pipeline ever since it started functioning in the late 2000s.[19] Although political support was achieved, the judicial review objected to the pipeline’s construction. In August 2018, a U.S. District Court ruled that a supplemental environmental review was needed before proceeding with the construction. A year later, the Nebraska Court approved the path of Keystone Pipeline and stated that there was sufficient evidence that the plan was in the interest of the public. Although, protests and opposing forces continue to point out the grave impact that such a construction carries, the Keystone XL pipeline has been achieving permits relating to its construction at present.[20]

Some key observations

As observed from the historical trajectory of the Keystone XL issue, it is understood that because of several factors such as political administration and judicial intervention, there has been an enormous amount of delay in reaching a conclusive consensus for this project. Both governing authorities as well as legal representatives reflect contradicting opinions that have been changing from time to time. Further, escalating the problem is the fact that there are certain aspects of the project that both indigenous people and the constructing party are not clear about. At several occasions have the parties contradicted themselves. The factual data available along with reports from expert bodies indicate new aspects that can in fact provide an amicable solution that suits all the parties involved in this project. Some of these observations have been discussed below:

Energy as well as policy analysts suggest that the widespread debate over the Keystone Pipeline has exceeded the actual significance of the project as a threat to environment or as an engine of the economic success. The pipeline will have a bare minimum effect on climate change, oil production, fuel prices or even the job market of the United States.[21] Scholars have stated that Keystone is not as large an issue in regards to energy or climate change policy for the United States as it is said to be.[22] This is because even though the pipeline in its individuality appears to be voluminous, it consists of just 0.8% of the existing 150,000 miles of other oil pipelines that have been spread across the United States of America. Additional to these pipelines for oil, there includes 2.5 million miles of pipelines transporting natural gas and 100 major refineries which altogether are extracting similar resources, causing widespread harm to the environment and covering similar and in fact larger area than the pipeline in question. Similarly, even the energy dominance or economically beneficial argument presented by its supporters is minimal as the pipeline’s purpose is to help move oil that is produced in Canada to export to the global market. Further, the Obama administration had also stated that apart from the 42,000 temporary jobs for a period of two years that this pipeline would create, there exist only a mere 35 permanent jobs that the project will produce.[23] Similarly, the same state department report stated that the carbon dioxide pollution that this project would carry would amount to less than 1% of the total greenhouse gas emissions in America.

Interestingly, throughout this saga of delay, the indigenous people who will be the most severely affected by such a project have not been given an opportunity to be heard. Although there are several non-governmental organizations and other representative forces who have made a conscious effort to raise awareness and to act as a firm obstacle against the construction of the pipeline, there has been little or no options available for the affected parties to resolve the issue amongst themselves. It is the rights and livelihood of the indigenous people that is under threat and it is best to provide adequate representation to such communities to discuss, present their apprehensions and possible solutions in conversation with the other parties in order to reach a mutual consensus. Therefore, mediating the Keystone XL deal is suggested in order to put a satisfactory end to this ongoing debate and has been discussed in the part that follows.

Mediation: A More Suitable Alternative

Over the past few decades, indigenous people have observed that the modern-day attention and incentives that they receive from wealthy governments do not solve the problems and illnesses that the same government’s policies have inflicted on them.[24] It is not the case of “backwardness” that makes the indigenous people reject the developmental or beneficial policies or projects, instead, it is the rational anxiety about the future.[25] Based on this contention, a new aspect of addressing the issues of indigenous people has emerged- mediation. This process would provide the indigenous societies an equal footing while addressing the problems that concern them, instead of initiatives conducted by an outer body who fails to understand their boundaries and imposes ideas and structures that critically impact the lifestyle of indigenous communities.

More importantly, as pointed out in the observations from the previous part, it is observed that the problem or impact of the Keystone XL Pipeline is not as much as the media and different organizations have presented them to be, instead it is the need to develop a more sustainable and considerate future for the indigenous people and their surrounding environment. If projects such as the Keystone XL Pipeline continue to operate, there would be more similar projects that can worsen the existing situation of the indigenous people. There can be a correlated development of other infrastructures because the developers will be given a free hand in constructing project without looking into the rights of the indigenous persons. The parties do not afford to further delay the project or to not reach a mutually benefitting consensus as the litigation costs along with the constant change in administration and its opinions has impacted all the involved parties without providing a concrete solution.

Therefore, mediation is a promising mechanism for disputes like the Keystone XL Pipeline deal, however, it must be noted that these alternative dispute resolution mechanisms in relation to indigenous people are beneficial if and only if they are designed appropriately. The mediation in the present context must reflect legal traditions, cultural values and processes of the indigenous community involved. Both Canada and America have thoroughly recognized the Aboriginal rights in the past and this provides a platform to the indigenous people to speak up for their rights. On the other hand, the regulating authorities as well as the constructing company ought to consult the indigenous people on activities that impact their constitutional rights. Resolving such disputes out of the courtroom through mediation would itself mean achieving the values that have been respected by the countries. Certain benefits that suggest mediation as a mechanism to address this issue have been discussed below.

Providing an equal platform

It is argued that using mediation, a potential resolution of the Keystone XL dispute can take place by allowing the parties to move from taking positions to voicing suggestions instead that would seek common objectives that deal with the problem. As of now, efforts protecting indigenous rights is perceived as a challenge by groups whose economic self-interests are threatened. Similarly, every attempt that promotes economic development or innovation is looked on to as a potential threat to the delicate ecological balance as well as lifestyle of the indigenous communities.[26] Over time, through the support of a sympathetic public or the judiciary, the indigenous groups have also been given a chance to wield power. Governments and industries on the other hand have also managed to gain public approval through their claims of economic efficiency.

Therefore, through the voluntary process of Mediation the parties can now explore as well as reconcile their differences. The mediator unlike the government administration or judiciary will not have any authority to impose a settlement. The role of a mediator would only be confined to assisting the parties in resolving their own differences. This is adequate since changing administration and views of the judiciary have tried to impose ideas that may benefit one but greatly impact the other. Mediation, on the other hand would allow the affected/interested parties themselves to resolve the issue on their own. Further, the key observations mentioned in part II of the paper can also address the apparent misconceptions of the impact of the Keystone XL Pipeline in reality.

Time and Cost savings

Both the indigenous as well as business interests suffer significant costs because of the delays that are caused by pending litigation and regulatory reviews. The carrying costs on these large-scale projects and the litigation costs for indigenous people who itself are not willing to spend so much because of prolonged legal actions and delayed implementation of existing laws suggest that mediation is an adequate solution. TransCanada has already incurred several losses and has failed to achieve its predicted goals because of the exponential delay that it has faced. The economic factors have impacted indigenous groups in developing a fear of getting involved in such litigation. The public support is also undermined as the economic trade-offs become more severe. Obtaining rights of indigenous people was a social movement in the past, as much as the reasons for equal rights still exist, the public concern has now shifted to problems such as energy, inflation and employment.[27]

Maintenance of Relationship

The need for resolving the differences is important as looking at the recent events relating to the Keystone XL Pipeline, there is not much that the indigenous people can expect from the regulatory authorities. On the other hand, TransCanada, a company which is mindful of its reputation and has constantly attempted to highlight its environmental as well as societal consciousness, would love to address the existing differences and provide with suitable compensation, employment opportunities etc. to the affected indigenous groups. Therefore, we can gauge that the parties are also prepared to make reasonable compromises at this point of time.

Impact on future projects and communities

As mentioned before, the Keystone XL Pipeline is the most widely studied cross-border pipeline in the history of North America. Over time it has gained widespread attention and the delay and its consequences have been observed by scholars and support groups from both sides across the world. Mediating such a dispute in a way that resolves differences and also provides a timely situation can set an example for other similar projects in the future which would ensure free, prior and informed consent as a mode of meaningful consultation between the involved parties. Such free, prior and informed consent is also a central feature of the United Nations Declaration on the Rights of the Indigenous Peoples and must be diligently followed when involving projects that can impact the lifestyle of indigenous communities.


There are several other multi-billion dollar projects that involve oil and gas which are to be built across the world. These projects collectively contribute to a global market of a massive $4 trillion per year.[28]The mentioned plans do not take into consideration the rights of the indigenous people or the surrounding environment. The impacts of such unregulated development exist both on the short term and long-term level. Collectively, the issue of the Keystone XL Pipeline has invited discussion on the aspects of human rights, environment, development, sustainability and politics. These aspects are not only vital for the indigenous communities in the present context but are also crucial for building a sustainable future ahead that takes into account different communities that are being affected. The governments, industrial corporations and the judicial authorities must be conscious about the impact that different projects can have on the environment and indigenous people more importantly because of the fact that the consequences of such projects or decisions are permanent and the impacts of which cannot be erased at any point of time.

The institutional problems with the litigation process such as judicial discretion, time delays, litigating costs and the political intervention are only going to increase with time because of rising demand and very limited resources. The more institutional problems that occur, the more complex their nature will be. It is because of such complexity that the voices of the parties that are actually affected are ignored. The Keystone XL Pipeline reflects a similar scenario wherein even though what seemed to be a situation where no party could be satisfied, there still is a scope for reaching a mutually amicable solution if the affected parties are given an adequate opportunity to mediate. Although the disputes involving indigenous as well as environmental concerns are very sensitive as the consequences are usually irreversible, mediation if conducted efficiently, can help address the problem by assisting the parties in putting aside their differences which could result in avoiding the negative consequences that such largescale projects may entail.



[1] Nick Snow, Nebraska governor approves Keystone XL pipeline’s new route, Oil & Gas Journal, 17 (2013).

[2] Derek R. Moscato, Plains Spoken: A Framing Analysis of Bold Nebraska’s Campaign Against the Keystone XL Pipeline 12 (March, 2017) (unpublished comment) (on file with the University of Oregon).

[3] Derek R. Moscato, Plains Spoken: A Framing Analysis of Bold Nebraska’s Campaign Against the Keystone XL Pipeline 12 (March, 2017) (unpublished comment) (on file with the University of Oregon).

[4] BBC, Keystone XL pipeline: Why is it so disputed? (January 24, 2017)

[5] Derek R. Moscato, Plains Spoken: A Framing Analysis of Bold Nebraska’s Campaign Against the Keystone XL Pipeline 12 (March, 2017) (unpublished comment) (on file with the University of Oregon).

[6] Chris Prandoni, Even Obama’s State Department Knows Keystone XL is not an Environmental Hazard, (July 31, 2013),

[7] Chris Prandoni, Even Obama’s State Department Knows Keystone XL is not an Environmental Hazard, (July 31, 2013),

[8] Chris Prandoni, Even Obama’s State Department Knows Keystone XL is not an Environmental Hazard, (July 31, 2013),

[9] Sevda Payganeh, The Keystone XL Pipeline Dispute: A Strategic Analysis (2013) (unpublished comment) (on file with the University of Waterloo).

[10] Sevda Payganeh, The Keystone XL Pipeline Dispute: A Strategic Analysis (2013) (unpublished comment) (on file with the University of Waterloo).

[11] Canadian Academy of Engineering Energy Pathways Task Force, 2012.

[12] Sevda Payganeh, The Keystone XL Pipeline Dispute: A Strategic Analysis (2013) (unpublished comment) (on file with the University of Waterloo).

[13] Christopher D. Stone, Should Trees have standing? Toward Legal Rights for Natural Objects, Southern California Law Review 45 (1972),

[14] Ken Silverstein, Questionable Economics Threaten the Keystone XL Pipeline- Not Court Rulings, (November 11, 2018)

[15] A chronological history of controversial Keystone XL pipeline project, (January 24, 2017)

[16] A chronological history of controversial Keystone XL pipeline project, (January 24, 2017)

[17] Christopher M. Matthews, Nebraska Court Approves Keystone XL Pipeline, (August 23, 2019)

[18] Timothy Cama, EPA chief: Keystone wouldn’t be a’ disaster’ for climate, (March 30, 2015)

[19] Timothy Cama, EPA chief: Keystone wouldn’t be a’ disaster’ for climate, (March 30, 2015)

[20] Stephen Groves, South Dakota board approves Keystone XL pipeline water permits, (January 21, 2020)

[21] Lisa Friedman, Judge blocks disputed Keystone XL Pipeline in setback for Trump, (November 9, 2018)

[22] Lisa Friedman, Judge blocks disputed Keystone XL Pipeline in setback for Trump, (November 9, 2018)

[23] Irina Ivanova, Who benefits from revived Keystone XL and Dakota Access pipelines? (January 24, 2017)

[24] Stephen Corry, Do indigenous peoples benefit from ‘development’? (November 25, 2011)

[25] Stephen Corry, Do indigenous peoples benefit from ‘development’? (November 25, 2011)

[26] Eric M. Siegel, Reading the public comment: the keystone XL pipeline and future of environmental writing, Iowa Research Online (2014).

[27] L. Susskind, Towards a Theory of Environmental Dispute Resolution, 9(2) Boston College Environmental Affairs Law Review 313 (1980).

[28] Derek R. Moscato, Plains Spoken: A Framing Analysis of Bold Nebraska’s Campaign Against the Keystone XL Pipeline 12 (March, 2017) (unpublished comment) (on file with the University of Oregon).

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