Here.
News Coverage of Indian Vows to Block Keystone XL Pipeline
Here.
Environmental
New Reports on Energy Resource Development and First Nations Communities in Canada
Anyone who has been watching the news out of Canada is aware that numerous clashes have occurred between First Nations communities and various energy development companies. H/T to a post by First Peoples Worldwide for providing links to two reports released in December 2013 that are specifically about First Nations and resource extraction.
Report one was produced by The Charrette on Energy, Environment and Aboriginal Issues, comprised of a group of 21 leaders from First Nations, the extractive industry, the financial industry, environmental groups, and the Canadian government. The report begins with this quote:
We believe that the responsible development of our energy resources presents a substantial opportunity for Canada; however, virtually all proposed energy resource developments are mired in conflict which threatens that opportunity. We sense a growing frustration with this situation among industry, Aboriginal peoples, the environmental community and Canadians at large. We believe that we are all here to stay and it is imperative that we identify and build on the common ground that exists among us — or the current and future benefits that accrue to Canadians from all forms of energy resource development will be at risk.
Our desire is to change the substance, nature and tone of debates over energy resource development in Canada. We are inspired by the increasing number of innovative approaches being employed across Canada to avert or resolve conflicts or share benefits. Many of these are created outside of the regulatory process by people of goodwill who are trying to secure mutual benefits from energy resource development. It is these types of initiatives which we hope will define the future of energy resource development in Canada.
The report goes on to lay out some of the interests of industry, aboriginal peoples, and environmentalists and proposes some ways to reconcile these varied interests.
Report two was produced by The Fraser Institute. The executive summary of this report says:
It has been estimated that, over the next decade, more than 600 major resource projects, worth approximately $650 billion, are planned for Canada, and First Nations communities have a unique opportunity to benefit from these developments. As this study demonstrates, every oil and gas project currently proposed in western Canada implicates at least one First Nations community, giving them an opportunity to increase employment and eco- nomic prosperity through collaboration in energy development. . . .
Current unemployment rates in First Nations communities suggest that this group has much to gain from development in the energy sector. While the national unemployment rate is 7.1 percent, the unemployment rate for First Nations reserves is a staggering 23 percent. Unemployment rates are particu- larly high (20 percent to over 42 percent) in First Nations communities that are located in areas identified for oil and gas development.
The unique combination of population density in remote, resource-rich areas, a growing and young population, and a high level of unemployment places the First Nations in a unique position to benefit from energy develop- ment in Canada.
The report then goes on to document the geographic locations of First Nations communities close to proposed extractive development projects, unemployment rates, median ages within First Nations communities and the opportunities that this group believes energy resource development projects will bring to the communities.
These reports are important reading for anyone wanting to understand the current conversations going on within Canada regarding energy resource development and First Nations/Aboriginal communities. Like their conclusions or hate them, it is clear that industry and governmental leaders alike are recognizing that extractive industry development cannot move forward without more attention paid to the wishes and needs of these communities.
A question often comes to mind when reading about this issue – what happens if after all of the consultations and discussions and attempts to come to a compromise, a community still says no? What if it doesn’t care about the monetary benefits that may arise and it refuses to give consent under any circumstances? Is a community really free to withhold consent or only to determine some of the conditions under which it gives consent?
First Nations File Suit in Yukon Supreme Court Over Protection of Peel Watershed
Coverage here.
Chief Ed Champion of the Nacho Nyak Dun First Nation said his community is not against mining and development.
“We have lived closely with mining for over 100 years. Many of my people are miners or work in the mining industry. We have excellent relationships with mining companies that we work hard to maintain,” Champion said.
“That said, we do not want to see mining in the Peel watershed. To us, that land and water is sacred and should be preserved for future generations.”
The government’s decision created uncertainty for mining and industrial developers, as well, the groups said.
Ninth Circuit Declares Interior Chukchi Sea Oil Leases Arbitrary and Capricious (in part)
Here are the materials in Native Village of Point Hope v. Jewell:
An excerpt:
The panel reversed the district court’s summary judgment entered in favor of federal defendants in an action challenging the government’s environmental impact statements analyzing the environmental effects of proposed leases for oil and gas development in the Chukchi Sea of the northwest coast of Alaska.
The panel held that the Final Environmental Impact Statement and Supplemental Environmental Impact Statement prepared by the federal defendants properly took account of incomplete or unavailable information. The panel held, however, that the reliance in the Final Environmental Impact Statement on a one million barrel estimate of total economically recoverable oil was arbitrary and capricious.The panel remanded for further proceedings.
Judge Rawlinson concurred in part and dissented in part. Judge Rawlinson agreed with most of the majority opinion, but she did not agree that the federal Bureau of Ocean Energy Management, Regulation and Enforcement acted arbitrarily in selecting one billion barrels of oil as the benchmark for analyzing the environmental affects of the proposed leases.
Briefs are here:
D.C. Circuit Strikes Down EPA’s Indian Country NSR as Applied to Oklahoma
Here is the opinion in Oklahoma Dept. of Environmental Quality v. EPA. An excerpt:
The Oklahoma Department of Environmental Quality petitions for review of a final rule promulgated by the Environmental Protection Agency establishing a federal implementation plan for the attainment of national air quality standards in “Indian country.” See Review of New Sources and Modifications in Indian Country, 76 Fed. Reg. 38,748 (2011) (codified at 40 C.F.R. pts. 49 and 51) (hereinafter Indian Country NSR Rule). Jurisdiction to implement the Clean Air Act lies initially in either a state or an Indian tribe. The EPA may in certain circumstances implement a federal program in Indian country, see 42 U.S.C. § 7601(d), but when it does so, in our view, it is subject to the same jurisdictional limitations as the tribe in whose shoes it stands. Because the EPA requires a tribe to show it has jurisdiction before regulating Indian country outside a reservation, yet made no demonstration of tribal jurisdiction before itself regulating those areas, we hold the agency was without authority to displace Oklahoma’s state implementation plan in non-reservation Indian country. We therefore grant the petition for review and vacate the Indian Country NSR Rule with respect to non-reservation lands.
Briefs are here.
New Scholarship on Land Appropriation from Indigenous Peoples and Energy Resources
The Energy Law Journal has published “Land in the Second Decade: The Evolution of Indigenous Property Rights and the Energy Industry in the United States and Brazil” by Danielle C. Davis.
Arctic Law Symposium Articles Available Online
Articles from the 2013 Arctic Law Symposium held at Michigan State University College of Law have been published in the Michigan State International Law Review. Included in this volume are several articles specifically addressing how Indigenous peoples may be impacted by the current changes and developments in the region including:
Closing the Citizenship Gap in Canada’s North: Indigenous Rights, Arctic Sovereignty, and Devolution in Nunavut
Tony Penikett and Adam Goldenberg
Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development
Rutherford Hubbard
Legal Questions Regarding Mineral Exploration and Exploitation in Indigenous Areas
Susann Funderud Skogvang
Permanent Sovereignty over Natural Resources from a Human Rights Perspective: Natural Resources Exploitation and Indigenous Peoples’ Rights in the Arctic
Dorothée Cambou and Stefaan Smis
Climate Change, Indigenous Peoples and the Arctic: The Changing Horizon of International Law
Sumudu Atapattu
Link to the the full issue here.
Link to previous coverage here.
Extractive Industries Transparency Initiative Online Panel Discussion Today, 12:15 pm EST
Today, January 13, 2014, 12:15 pm EST on Livestream:
Interior’s Office of Policy Analysis monthly speaker series will feature a panel discussion on U.S. implementation of the Extractive Industries Transparency Initiative (USEITI). The EITI is a global standard that promotes revenue transparency and accountability in the extractive sector. Forty-one countries are in various stages of implementing EITI, and many more have committed to sign up.
Link to event information here.
Link to more information about the Extractive Industries Transparency Initiative here.
Wyoming’s Petition Challenging EPA Decision on Wind River Reservation
Wind Energy Blog Commentary on New Eagle Permit Rule
Here.
Turtle Talk 
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