Oceti Sakowin Camp Human Rights Observers 'Consultation and Free, Prior and Informed Consent'
Chairman Archambault (left) and Chief Arvol Looking Horse. Photo by J
From: Oceti Sakowin Camp Human Rights Observers from Cannon Ball, North Dakota
To: International Community and Supporters of Oceti Sakowin Camp, Standing Rock, North Dakota
RE: Free, Prior and Informed Consent
Date: September 19, 2016
"Water is the first medicine that the Creator gave us." -- Lee Plenty Wolf
Greeting Relatives and Friends,
We the Oceti Sakowin Camp Human Rights Observers will continue to bring attention to the
ongoing human rights violations including the use of excessive force against peaceful protectors and the desecration of sacred sites. Dakota Access must be held accountable for this violence.
At this time, we wish to highlight an important development stemming from the Joint-Statement
released on September 9, 2016.
On 9 September, the Federal District Court dismissed the Standing Rock injunction application
and allowed construction of the Dakota Access pipeline to continue. Shortly after, the
Department of Justice, Department of Interior and Army Corps of Engineers released a Joint Statement stating there would be a temporary halt to construction on Army Corps land and under Lake Oahe.
Importantly this Joint-Statement recognizes and accepts that there must be a serious discussion between the government and tribal nations on the way Tribes are consulted in infrastructure projects. The Joint-Statement notes that legislative reform is an option to implement a framework to ensure Tribes’ views are included in infrastructure projects.
More discussion is needed on what the framework might be. However, the acceptance that
reform is needed is an important development which could help to avoid a future Dakota Access situation.
As Indigenous peoples, we emphasize that this discussion must begin by acknowledging that we are sovereign Indigenous nations. We retain our inherent sovereignty as the original peoples and caretakers of the land. This inherent sovereignty exists and continues to this day regardless of whether it is recognized by the State.
Because of that inherent sovereignty no corporation is entitled to construct or extract from the
traditional lands of the nation concerned without its free, prior and informed consent.
The human rights observers remind the State that Indigenous nations are sovereign nations not
communities or Tribes. This distinction is important as it requires something more substantive
than the government-to-government framework suggested in the joint-statement on the
participation of sovereign Indigenous nations in infrastructure projects. Rather any discussion on reform should occur on a sovereign-to-sovereign basis.
The human rights observers accordingly recommend that
1. States and construction and extractive corporations obtain the free prior and informed consent of any sovereign Indigenous nation concerned before planning or proceeding with any extractive processes, just as it would in dealing with any other sovereign nation.
2. States and corporations acknowledge that free, prior and informed consent rather than
consultation is the proper standard to ensure Indigenous peoples participate as sovereign nations.
3. States and corporations acknowledge that the requirement of free, prior and informed consent is not met by a process of consultation designed and controlled by the State.
4. States similarly acknowledge that only sovereign Indigenous nations have the right and
authority to determine what their free, prior and informed consent means in any given
5. States and corporations accordingly accept that no framework for the participation of
sovereign Indigenous nations in infrastructure projects can or should be unilaterally designed and imposed on Indigenous nations by the State as that would constitute a clear and colonizing
infringement upon the sovereignty of the Indigenous nation.
6. States especially take care to respect and acknowledge the sovereignty of Indigenous nations and actively work with them to design, approve and later implement any framework for their participation in infrastructure projects.
7. States especially recognize that as each Indigenous nation is distinct, the framework for how
to obtain free, prior and informed consent may differ from nation to nation.
To prevent another Dakota Access situation, the human rights observers urge the State to take a transformative view on the way Indigenous nations and corporations interact. As suggested, free prior and informed consent must be obtained from the Indigenous nation in accordance with a framework designed and approved by the Indigenous nation. Anything less would undermine tribal sovereignty and result in continued conflict between tribal nations and corporations.
From the plains of the Ocheti Sakowin in prayer for the protection of all our peoples,
Ocheti Sakowin Camp Human Rights Observers
Kevin Hart-AFN Regional Chief
Michelle Cook- Navajo