Walking in Both Worlds

In Canada, aboriginal people have constitutionally protected aboriginal and treaty rights under section 35 of the Canadian Constitution. These rights are collective individual rights, on– and off-reserve. The Supreme Court of Canada has described the relationship between aboriginal people and the federal government as a fiduciary or trust-like relationship. In the United States, the government recognizes tribes as sovereign nations. This is acknowledged through treaties, congressional acts, executive orders, Supreme Court decisions, laws, and everyday transactions. Native American rights are more focused on the tribes themselves and the reservations on which they live.  

In Canada, relative to pipeline projects, the government delegates the responsibility of consultation to the project applicant through the regulatory and permitting processes. Any decisions to approve pipeline projects or to issue permits in relation to those projects comes from the federal and provincial governments, which expect the applicant to engage directly with aboriginal people. In the United States, the government takes the lead and is responsible for government-to–government consultation. Federal agencies cannot unilaterally delegate their responsibilities to conduct government–to-government consultation with Indian tribes to non-federal entities.  

Every tribe I have ever worked with has told me that the government-to-government consultation process is severely flawed. For instance, as in the case of the Dakota Access Pipeline project, the U.S. Army Corps of Engineers is the lead regulatory agency, but only for the Corps’ jurisdictional lands—usually water crossings. Thus, for over 95 percent of the pipeline, projects do not have a lead federal regulatory agency and permitting is left up to the state. The tribe only has the opportunity for government-to-government consultation on less than 5 percent of that project.  

In Canada, the National Energy Board (NEB), the regulator for federal pipeline projects, determines if an applicant’s consultation has been adequate to address concerns raised by aboriginal people with respect to a project. NEB is an independent federal agency established by the Canadian parliament to regulate international and interprovincial pipelines.  

In the United States, the federal government determines whether there has been adequate consultation for its own agency’s activities. When there are federal lands involved in a proposed right-of-way, jurisdiction falls under one federal agency (commonly the State Department and the Federal Energy Regulatory Commission) and that agency is authorized to grant the right-of-way or permit.  

First, some level–setting before considering a few key questions. It must be understood that, regarding consultation and engagement to Native American tribes, the term consultation refers to the formal federal-tribal consultation process. An applicant’s tribal outreach is considered engagement. Current regulations use the term consultation to refer interchangeably to both the outreach between the project applicant and tribe and formal federal-tribal consultation. This must be clarified first to differentiate between what is engagement and what is consultation.  

Why should pipeline companies want to work closely with tribes and how can that engagement strengthen a permit application and the social license to operate a pipeline?  

Building and operating pipeline projects in the United States can potentially involve many sovereign nations. These include the United States government and various Native American tribes scattered across the continent, all of whom are recognized as dependent sovereign nations enjoying government-to-government relationships with federal agencies. Tribes just like any government, often have their own fire, police, and emergency services and land rights that extend beyond their own reservations to the surrounding areas. Those rights include tracts of land that were negotiated as part of government-to-government treaties and outline, for example, hunting, fishing, and trapping rights that have cultural significance.  

Because of the unique status of tribal governments, it can be beneficial for pipeline companies to formalize their approaches to working with tribal communities by employing tribal engagement strategies for their pipeline projects. Such strategies can be designed to flexibly address the legal, social, and economic realities of tribal communities throughout North America. This entails developing and maintaining collaborative, long-term working relationships through continual communications and engagement with native communities, guided by principles of trust, respect, and responsibility. Pipeline companies can work in partnership with tribal governments to find mutually acceptable solutions to issues and provide benefits to impacted communities. Tribal engagement could be strengthened by building corporate capacity and ensuring key departments and their employees understand tribal issues and the impacts on their businesses.  

Early participation by Native American tribes is also critical. It ensures that there is consideration of tribal concerns in environmental impact statement or environmental assessment documents. At times, some Native American tribes wish to speak directly with their government representatives rather than respond to communications initiated by the project applicant or its consultant. As a result, the first communications with tribes regarding a project typically do not take place until the formal federal-tribal consultation process occurs, which is during a federal environmental review. Tribal participation, however, is necessary much earlier in the process when the project applicant is developing its right-of-way and preparing all necessary information to complete environmental reviews. Early engagement also allows an applicant to address Native American concerns and facilitate a tribe’s active and timely participation in pre-filing and formal permitting processes.  

Early participation by Native American tribes is essential to ensure that tribes identify any cultural resources associated with a project early in the process. This gives the project applicant the opportunity to avoid and mitigate impacts to cultural resources and allows tribes to complete cultural resource surveys themselves. Delayed engagement with Native American tribes can result in a pipeline’s inability to accurately complete cultural resource surveys. If a pipeline company develops relationships with tribes early and the tribes participate in cultural resource surveys, the chances of an unanticipated discovery delaying or stopping a project is greatly reduced. How companies can continue to conduct cultural resource surveys without any tribal involvement is a mystery to me.  

Why are some tribes now wanting to be part of pipeline projects?  

Federally–regulated pipeline projects are deemed to be in the national interest when they are awarded their permit. The majority of the time, if a project gets permitted, it will get built with or without the tribes. Many tribes are realizing this and beginning to look out for their interests. Yet doing so comes at a cost, a cost for which pipeline companies should be willing to foot the bill as it is mutually beneficial and more cost effective. Tribes are seeking long-term relationships with pipeline companies, recognizing that pipelines are in their traditional territories and will be operating for generations to come.  

It is difficult for a tribe to watch a company site a pipeline project very close to their reservation. Too often, this has meant the tribe bears the brunt of the impact but with no financial benefit. A county might collect tariffs, fees, and taxes while the tribe is left with nothing. I wonder if things would be different if companies approached tribes earlier in the development process and proposed running the line through their reservation. I bet many tribes would actually jump at the opportunity. Tribes, then, have no other choice but to protect their interests and work directly with pipeline companies because existing regulations are not tribal–friendly.  

The responsibility to actively pursue relationships with tribes on pipeline projects rest solely in the hands of the pipeline companies themselves, plain and simple. If that does not happen, then the unrest we saw from the Dakota Access project may very well be perpetually repeated. 

Lou Thompson is a tribal relations specialist. He is an owner and founder of Tribal Energy Resource, LLC, which specializes in tribal engagement for energy infrastructure projects and provides archaeology services to federal agencies.