Business and Human Rights: Standing Rock goes to the Inter-American Commission on Human Rights

Volterra Fietta Client Alert
21 December 2016

The Native American Tribes protesting the Dakota Access Pipeline (“DAPL”) took their cause to the Inter-American Commission on Human Rights (the “IACHR”) on 2 December 2016.  The Standing Rock, Cheyenne River and Yankton Sioux Tribes (the “Tribes”) submitted a Request for Precautionary Measures, claiming that the construction of the pipeline poses a serious and urgent risk of irreparable harm to lands and waters that are sacred to them, including the waters of the Missouri River.

The Tribes asked the IACHR to call upon the United States (the “U.S.”) to protect their rights by, inter alia, denying the easement that would allow the construction of the pipeline under the Missouri River at Lake Oahe.  They also asked for measures to guarantee the safety of peaceful protestors concerning the DAPL and to ensure the full enjoyment of their rights to expression and assembly.  Further, they assert that the U.S. should recognise that indigenous peoples have the right to full prior and informed consent (“FPIC”) with respect to governmental decisions affecting them within the meaning of the United Nations Declaration on the Rights of Indigenous Peoples and the jurisprudence of the Inter-American System.  They also take the position that the U.S. should require exhaustive environmental and social impact assessments with the full participation of indigenous peoples.

The Tribes’ claims relate not only to relatively recently-recognised participation and environmental protection rights under international and U.S. law, but also to historical claims of wrongful unilateral treaty breaches by the U.S.  Their request also describes the cultural, spiritual and survival dependence of the Tribes on water and evokes the Inter-American System’s recent work on the right to water, indigenous peoples and conflicts over extractive industry projects that affect them.

The Inter-American System has weighed in to protect indigenous peoples and their lands and waters from large-scale development and investment activities on a number of occasions over the past decade.  For example:

• In the landmark case of the Saramaka People v. Suriname, the Inter-American Court on Human Rights (“IACtHR”) held, in 2007, that Suriname had a duty to obtain the FPIC of the Saramaka People to any major project within their territory.  In the 1990s Suriname granted a number of concessions to multinational groups for the exploitation and extraction of mineral resources and raw materials in Saramaka lands. Suriname granted these concessions in accordance with its 1987 Constitution, which specifies that all non-titled land and resources belong to the State, including therefore the Saramaka People’s lands and resources.
• In 2010, the IACHR granted precautionary measures to 18 Mayan communities, requesting that Guatemala suspend mining at a concession granted to Goldcorp/Montana Exploradora de Guatemala S.A. until the IACHR could rule on the merits of a petition alleging that Guatemala had violated the communities’ FPIC rights.
• Similarly, in the case regarding the Indigenous Communities of the Xingu River Basin, Pará, Brazil, the IACHR granted precautionary measures in 2011, asking Brazil to halt the construction of the Belo Monte hydroelectric power plant until surrounding indigenous communities’ FPIC rights had been met.

Five years on from the Belo Monte case, the IACHR heard the Tribes’ request for precautionary measures relating to the DAPL at a hearing on 9 December 2016.  By then, the U.S. Army Corps of Engineers (the “Corps”) had already effectively put the project on hold, deciding not to grant the easement opposed by the Tribes on Sunday 4 December.

In reaching this decision, the Corps cited concerns over lack of transparency (including with respect to risk analysis), the history of dispossession of the Great Sioux Nation, the environmental effects of the project on Tribal resources and the U.S. Mineral Leasing Act’s direction “to protect the environment” and “those who rely on fish and wildlife in the area for subsistence.”  It resolved to prepare an environmental impact statement to evaluate these and other issues.  The U.S. resolved, in other words, to do many of the things the Tribes asked it to do before the IACHR.

This development raises a number of interesting issues.  One is the question of whether and to what extent the invocation of the IACHR may have played a role, directly or indirectly, in shaping the behaviour of the U.S. Government.  Another is about the ultimate outcome of the Corps’ policy decision to review the route of the DAPL.

One thing is certain: for the time being at least, the Tribes and other proponents of indigenous peoples’ FPIC rights are celebrating their effective advocacy and multipronged domestic and international litigation strategy.  This in itself is a salient reminder of the power that soft and hard public international law norms and procedures can have on commercial activities, including the construction and operation of infrastructure projects and industrial plants.  Commercial actors are increasingly exposed to such norms and procedures and calling upon the expertise of public international law practitioners to assist them.