All posts by : Thomas Andrew O’Keefe

ABA House of Delegates Resolution 108 affirms that civility is a foundation for democracy and the rule of law and calls upon “all government officials and employees… to strive toward a more civil public discourse in…the administration of the affairs of government.” The Report supporting passage of Resolution 108 defines civil public discourse as an engagement that encourages people to vigorously, but responsibly, debate the choices facing a community through deliberative dialogue, respectful communication, and informed public decision-making.

The frequent failure by the federal government to conduct adequate consultations with Native American communities before undertaking decisions or embarking on actions that may impact them has contributed to irreparable human rights violations, grave economic injustice, and violent social conflicts. In response to this tragic history, President Joe Biden issued a Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships within days of taking office.1 The Memorandum reaffirms Bill Clinton’s Executive Order 13175 requiring that all executive departments and agencies engage in regular, meaningful, and robust consultation with tribal officials in the development of federal policies that have tribal implications2 as well as Barack Obama’s Memorandum of 2009 that requires each federal agency to prepare and periodically update a detailed plan of action to implement Executive Order 13175.3

Unlike the earlier Clinton and Obama consultation initiatives, Biden’s effort is noteworthy for categorically acknowledging that “American Indian and Alaska Native Tribal Nations are sovereign governments”. Otherwise, it shares its predecessors’ deficiency in limiting consultations to federally recognized tribes and completely excluding Native Hawaiians. Similarly, it ignores the fact that consultation is a collective right of Indigenous peoples that should be inclusive of a wide cross section of the community and not narrowly restricted to elected or duly appointed officials of Indian tribal governments or authorized intertribal organizations.4 It also provides no means for compelling federal agencies to engage in meaningful consultations. The latter omission can be easily remedied by adopting the provision found in the Requirements, Expectations, and Standard Procedures for Effective Consultations with Tribes, or “RESPECT” Act introduced in the U.S. House of Representatives in May 2021 that allows tribal governments to seek judicial review of a determination made by any federal government agency.

The Biden administration should also consider international legal principles when devising a new federal consultation process. International Labor Organization Convention 169 on Indigenous and Tribal Peoples requires that governments engage in “prior consultations” with Indigenous and tribal peoples in any endeavor that may impact their lives and the lands they occupy or otherwise utilize.5

For its part, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) requires the “free, prior, and informed consent” of Indigenous peoples whenever any activity or project has a significant impact on them and/or their way of life.6 This means “that the relevant consultations should not be a mere formality, but, rather, should be conducted in good faith and with the objective of finding a common agreement.”7 The term free “implies that the process of consultation should be conducted in the absence of any type of coercion and pressure”; prior suggests “that consultations should take place before undertaking an action or implementing a project”; and, informed “means that Indigenous peoples should receive satisfactory information in relation to the relevant measure or project.” 8 Free “also implies allowing sufficient time for the engagement process to occur, so that Indigenous communities do not feel rushed, or believe that the process was mere window-dressing.”9

The inter-American human rights system monitors, promotes, and protects human rights in all 35 member countries of the Organization of American States (OAS), including the United States. Although the U.S. has never accepted the jurisdiction of the American Court of Human Rights in San José, Costa Rica, nevertheless it is significant that the most authoritative body within the inter-American human rights system has “held that the duty of States to consult Indigenous peoples must now be regarded as a general principle of international law” and, in the case of large-scale development or investment projects, governments “have a duty to not only consult with Indigenous peoples, but also to obtain their free, prior, and informed consent.”10

A 2010 report by the Inter-American Commission on Human Rights provides guidance for ensuring that the collective interest of an Indigenous community does not prevail to the detriment or exclusion of individual members.11 The report recommends that all members of a community should be fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or collectively.12

For a new Federal consultation process to have any hope of facilitating genuine consensus building, all federal government officials and employees involved in such dialogue must acknowledge and respect the sovereignty and self-governance of the American Indian and Alaska Native Tribal Nations. Equally as important, the entire process must be adequately funded by the federal government, including providing sufficient training for all participating federal government officials and employees in the body of U.S. law collectively known as “Federal Indian Law” that includes treaties, statutes, executive orders, administrative decisions, and court cases. Undoubtedly, the most critical factor for any consultation to be effective, however, is for the process be conducted in a spirit of mutual civility that encourages deliberative dialogue, respectful communication, and informed decision-making.

ENDNOTES

1 Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships (The White House, January 26, 2021). Available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/

2 Executive Order No. 13175, Consultation and Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 (November 6, 2000). Available at: https://www.govinfo.gov/content/pkg/CFR-2001-title3-vol1/pdf/CFR-2001-title3-vol1-eo13175.pdf Such policies include regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes. (Section 1(a))

3 Presidential Memorandum on Tribal Consultation (The White House, Office of the Press Secretary, November 5, 2009). Available at: https://obamawhitehouse.archives.gov/the-press-office/memorandum-tribal-consultation-signed-president

4 Martin Scheinin & Mattias Àhrén, Relationship to Human Rights, and Related International Instruments, in JESSIE HOHMANN & MARC WELLER, EDS., THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY 67 (Oxford University Press 2018).

5 International Labour Organization, Indigenous and Tribal Peoples Convention No. 169, 27 June 1989, available at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169

6 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, resolution adopted by the General Assembly on 13 September 2007, A/RES 61/295, available at: https://undocs.org/A/RES/61/295

7 Mauro Barelli, Free, Prior, and Informed Consent in the UNDRIP, in JESSIE HOHMANN & MARC WELLER, EDS., THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY, supra note 4, at 248.

8 Id. at 250.

9 AMY K. LEHR, INDIGENOUS PEOPLES RIGHTS AND THE ROLE OF FREE, PRIOR AND INFORMED CONSENT 14 (United Nations Global Compact 2014).

10 Mauro Barelli, Free, Prior, and Informed Consent in the UNDRIP, in THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES: A COMMENTARY, supra note 4, at 257-258.

11 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR ANCESTRAL LANDS AND NATURAL RESOURCES 107 (OAS 2010).

12 Id. at 107. The requirement of full participation is not met whenever: members of a community have not been afforded a full and effective role in the selection, authorization or mandate of those who act on behalf of the community; the corresponding claims are promoted by a particular band, clan or segment of the community; or appropriate consultations among the members of the entire community are not carried out at the moment of adopting substantial decisions affecting the rights or interests of the community. Id. Note 76, at 107.

In no other region of the world have as many countries ratified International Labor Organization Convention 169 – requiring that governments consult Indigenous communities before approving projects that may detrimentally impact them – as Latin America, but human rights due diligence standards adopted by companies involved in investment projects are proving much more effective in guaranteeing adequate and effective consultations rather than government action. This is true even though ILO 169 requires that governments consult with local communities before giving the green light to investment or development projects that affect Indigenous lands, natural resources, and water supplies. 

• Neither Canada nor the United States has ratified ILO 169, and they were among only four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when it came up for a vote in the UN General Assembly in 2007, which endorsed the “free, prior, and informed consent” principle. Colombia was the only Latin American country not to fully embrace the UNDRIP.

Despite widespread ratification of ILO 169 and endorsement of the UNDRIP, Latin America is plagued by social conflicts involving Indigenous peoples who feel they were never adequately consulted. The most infamous example was in 2009 at Bagua in Amazonian Peru, when the administration of President Alan García used lethal force to counter protests by Indigenous peoples opposed to legal changes that facilitated energy, mining, and agricultural concessions on their lands. The violence resulted in the deaths of 34 people (mostly policemen) and hundreds of injured. Many of these social conflicts have delayed the completion of major energy and mining projects throughout Latin America for years, sometimes forcing their abandonment or the revocation by governments of previously granted concessions. The direct financial losses incurred by businesses have been huge, not to mention the damage to corporate branding image.  

• One reason for persistent conflicts throughout Latin America is that ILO 169 offers no definitive answer as to what happens if an Indigenous community vetoes a proposed project. Presumably that wouldn’t occur if the consultation were effective. But ILO 169 is vague on the precise consultation process a government must follow, leading to wide national variations as to who must be consulted and how. Although the UNDRIP implies that Indigenous peoples have the right to reject a project, its provisions are not considered legally binding by most governments unless specifically incorporated into domestic law. Even in Bolivia, one of the few countries where “free, prior and informed consent” is the law of the land, this did not prevent the administration of President Evo Morales from going ahead with a highway through the TIPNIS reserve in eastern Bolivia over the objections of its Indigenous inhabitants.

The growing importance of Environmental, Social and Governance (ESG) criteria in corporate decision-making, including the adoption of internal human rights due diligence policies and practices, may finally lead to effective consultation mechanisms that accept the notion that Indigenous peoples have the final say in either approving or rejecting a project that threatens their way of life or will permanently displace them from ancestral lands. For one thing, good faith consultation with Indigenous peoples is now a recognized international human right. More importantly, businesses are not absolved by a government’s failure to fulfill the obligation to consult Indigenous peoples on projects affecting them.

• Multilateral lending agencies such as the Inter-American Development Bank have developed performance standards that include a consent requirement that must be adhered to by any company seeking their financing for investment projects that may impact Indigenous people. In addition, equity investors with investment risk management concerns are emerging as important guarantors of corporate consultation and consent with Indigenous communities, particularly in the natural resource extraction industry.
• If the ESG criteria weren’t a big enough stick for private sector compliance, there is also an emerging trend in Europe and at the UN to make human rights due diligence principles mandatory for businesses. For example, France passed a law in 2017 that requires companies with a substantial presence in the country to adopt reasonable vigilance measures to allow for risk identification and for the prevention of severe violations of human rights directly or indirectly from the operations of the companies and their subsidiaries.  Businesses that do not meet their vigilance obligations are liable for damages incurred by victims. These emerging legal obligations encompass not only the foreign operations of corporations but increasingly extend to the entire production and supply chain.