Native Nations are asserting land and resource rights in an increasingly vigorous and unambiguous way. Just this week, 19 November 2013, Lake Huron Regional Chief Isadore Day, Windawtegowinini, announced, "We have determined that 60 per cent of mining resources in Ontario are located on [Anishinabek Nation] traditional lands."
Chief Day called for concerted action: "First Nations must take the lead and have a say in what happens in their traditional and treaty territories. I’m calling on my fellow treaty Chiefs; it’s time to formally assemble, design and organize our interests as a treaty organization specific to issues like mining."
As I write, a conference on "Economic Sovereignty Through Energy Development" is going on at the Northern Lights Community Center in New Town, North Dakota, hosted by Missouri River Resources, the Mandan, Hidatsa and Arikara Nation's oil & gas development company. The CEO of the company, D. David Williams, states, "Energy development of mineral resources is the financial engine for economic development" as a sovereign nation.
In January 2013, the mining industry in Vancouver held its annual Mineral Exploration Roundup. The industry was sharply criticized by Xat’Sull (Soda Creek) First Nation Chief Bev Sellars and Grand Chief Stewart Phillip in an Op/Ed piece in the "Times Colonist," [!!] the oldest daily newspaper in western Canada: "The industry has… [failed] to address the root issues of First Nations rights and the environment. … There are those in the mining industry who, recognizing this, have sought to work with First Nations to develop good relationships. But we are now way beyond tinkering, or even being satisfied with isolated success stories."
Chief Sellars, chair of First Nations Women Advocating Responsible Mining, was an aboriginal issues panel member at the event. Grand Chief Phillip is president of the Union of B.C. Indian Chiefs.
These examples could be multiplied many times, with similar events, statements, protests, and interventions on every continent where Indigenous Nations are challenging exploitation by colonial and neo-colonial governments and corporations. There is no doubt that the days of just taking the abuse and knuckling under to the subjugation of outside forces is over.
Several factors are involved in the resurgence of Native strength. One is the United Nations Declaration on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues, an advisory body to the Economic and Social Council. The Permanent Forum focuses on economic and social development, culture, the environment, education, health, and human rights.
The UN Declaration contains a number of sections regarding land resources: Article 8, 2(b); Articles 25-28; Article 29, 1; and Article 32. The basic principle requires "free, prior, and informed consent" by Indigenous Peoples for "any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."
The UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, has strongly affirmed the principle of "free, prior, and informed consent" in meetings with governments and international organizations. In February 2013, he spoke to the World Intellectual Property Organization, where he pointed to the centuries-long regime of colonization premised on the doctrine of "terra nullius," under which "land occupied…by indigenous peoples was regarded as vacant."
"Terra nullius" is a religious doctrine imported into law, an outgrowth of the concept of "Christian Discovery," which asserted that Indigenous Peoples were subordinate to the colonizers from Christendom. One might suppose that this doctrine, now outmoded, is no longer in effect legally. But that supposition is wrong: In the United States, Christian Discovery is still part of federal Indian law, cited by the Supreme Court as recently as 2005 in its decision against the Oneida Indian Nation.
Another factor supporting Indigenous insistence on land and resource rights is the increase in Native leadership attuned to legal history and the continuance of colonial doctrines. Native leaders who participated in the decades-long development of the UN Declaration were immersed in the international colonial framework that, until the Declaration, had gone almost unchallenged. This new generation of Native leadership is aware of the mechanisms that have subordinated Native Peoples.
It is a testimony to the "rule of law" that at least some challenges to the colonial regime have been made in the courts of states that have previously enforced rules of expropriation against Native Peoples. For example, in a December 2012 ruling cited by Chief Sellars and Grand Chief Phillip in their Op/Ed, the Yukon Court of Appeal found that the Ross River Dena Council must be consulted before mining claims are staked, even when Aboriginal claims are yet unproven. In September 2013, the Supreme Court of Canada dismissed an appeal from that ruling.
Let it be known that favorable decisions like that in the Ross River Dena case may still carry within them the residue of "terra nullius" and "Christian Discovery." The struggle for Native self-determination is ongoing and has yet to eradicate the relics of colonialism from the laws of states around the world.
Nevertheless, the Native challenges are making an impact on mining companies, state agencies, banks, and corporate investors. In the current world of global finance, this impact is a major phenomenon. In a 2013 update of its 2008 position statement on Indigenous Peoples, the International Council on Mining and Metals (ICMM) called on mining companies to show "mutual respect" and deliver "mutual benefit" to Native Peoples. ICMM represents 22 corporate members that operate more than 800 mine sites in over 60 countries.
First Peoples Worldwide, an Indigenous-led organization helping Native communities achieve control over their own assets, including land, cultural rights and intellectual property, released a sharp critique of the 2013 ICMM position statement, calling it a step backward from the 2008 position, and pointing out that the document "uses language that is meant to sound empathetic and accepting but in actuality still maintains that a mining company has the right to enter indigenous territory and begin a potentially highly-destructive project with no regard to responsibility for ensuring the rights of the Indigenous Peoples of the land."
In a related move, First Peoples Worldwide also released its own "Indigenous Rights Risk Report," analyzing 52 U.S.-based extractive companies listed on the Russell 1000® Index and assessing 370 oil, gas and mining sites located on or near Indigenous Peoples land: "The results are eye opening. 92% of the sites posed a medium to high risk to shareholders."
Notice that where the "risk" used to be only to the Indigenous rights and resources, today the "risk" is to investors looking to cash in on Indigenous lands and resources. This is a sea change in global economics. The availability of Indigenous financial analysts is yet another factor in the rise of Native Peoples stern insistence on their rights: they know the economics of extraction.
Make no mistake about it: The centuries-long attack by colonizers and invaders on Native lands and Peoples is not over; it is just beginning to hit its stride. This is a time for heightened vigilance. As an article in the 15 November 2013 Guardian newspaper pointed out, "The notion that [mining companies and Indigenous Peoples] can somehow live together in a harmonious utopia…seems highly optimistic. More realistic, perhaps, is a fragile armistice."
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.