This Changes Everything (61 page)

These rights are real and they are powerful, all the more so because many of the planet’s largest and most dangerous unexploded carbon bombs lie beneath lands and waters to which Indigenous peoples have legitimate legal claims. No one has more legal power to halt the reckless expansion of the tar sands than
the First Nations living downstream whose treaty-protected hunting, fishing, and trapping grounds have already been fouled, just as no one has more legal power to halt the rush to drill under the Arctic’s melting ice than Inuit, Sami, and other northern Indigenous tribes whose livelihoods would be jeopardized by an offshore oil spill. Whether they are able to exercise those rights is another matter.

This power was on display in January 2014 when a coalition of Alaskan Native tribes, who had joined forces with several large green groups, won a major court victory against Shell’s already scandal-plagued Arctic drilling adventures. Led by the Native village of Point Hope, the coalition argued that when the U.S. Interior Department handed out drilling permits to Shell and others in the Chukchi
Sea, it failed to take into account the full risks, including the risks to Indigenous Inupiat ways of life, which are inextricably entwined with a healthy ocean. As Port Hope mayor Steve Oomittuk explained when the lawsuit was launched, his people “have hunted and depended on the animals that migrate through the Chukchi Sea for thousands of years. This is our garden, our identity, our livelihood.
Without it we would not be who we are today. . . . We oppose any activity that will endanger our way of life and the animals that we greatly depend on.” Faith Gemmill, executive director of Resisting Environmental De
struction on Indigenous Lands, one of the groups behind the lawsuit, notes that for the Inupiat who rely on the Chukchi Sea, “you cannot separate environmental impacts from subsistence
impacts, for they are the same.”
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A federal appeals court ruled in the coalition’s favor, finding that the Department of the Interior’s risk assessments were based on estimates that were “arbitrary and capricious,” or presented “only the
best
case scenario for environmental harm.”
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Rather like the shoddy risk assessments that set the stage for BP’s Deepwater Horizon disaster.

John Sauven,
executive director of Greenpeace U.K., described the ruling as “a massive blow to Shell’s Arctic ambitions.” Indeed just days later, the company announced that it was putting its Arctic plans on indefinite hold. “This is a disappointing outcome, but the lack of a clear path forward means that I am not prepared to commit further resources for drilling in Alaska in 2014,” said Shell CEO Ben van Beurden.
“We will look to relevant agencies and the Court to resolve their open legal issues as quickly as possible.” Without Indigenous groups raising the human rights stakes in this battle, it’s a victory that might never have taken place.
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Worldwide, companies pushing for vast new coal mines and coal export terminals are increasingly being forced to similarly reckon with the unique legal powers held
by Indigenous peoples. For instance, in Western Australia in 2013 the prospect of legal battles over native title was an important factor in derailing a planned $45 billion LNG (liquefied natural gas) processing plant and port, and though the state government remains determined to force gas infrastructure and fracking on the area, Indigenous groups are threatening to assert their traditional ownership
and procedural rights in court. The same is true of communities facing coal bed methane development in New South Wales.
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Meanwhile, several Indigenous groups in the Amazon have been steadfastly holding back the oil interests determined to sacrifice new swaths of the great forests, protecting both the carbon beneath the ground and the carbon-capturing trees and soil above those oil and gas deposits.
They have asserted their land rights with increasing success at the Inter-American Court of Human Rights, which has sided with Indigenous groups against governments in cases involving natural resource and territorial rights.
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And the U’wa, an isolated tribe in Colombia’s Andean cloud forests—where the
tree canopy is perpetually shrouded in mist—have made history by resisting repeated attempts
by oil giants to drill in their territory, insisting that stealing the oil beneath the earth would bring about the tribe’s destruction.(Though some limited drilling has taken place.)

As the Indigenous rights movement gains strength globally, huge advances are being made in recognizing the legitimacy of these claims. Most significant was the United Nations Declaration on the Rights of Indigenous
Peoples, adopted by the General Assembly in September 2007 after 143 member states voted in its favor (the four opposing votes—United States, Canada, Australia, and New Zealand—would each, under domestic pressure, eventually endorse it as well). The declaration states that, “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their
lands or territories and resources.” And further that they have “the right to redress” for the lands that “have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.” Some countries have even taken the step of recognizing these rights in revised constitutions. Bolivia’s constitution, approved by voters in 2009, states that Indigenous peoples “are guaranteed
the right to prior consent: obligatory consultation by the government, acting in good faith and in agreement, prior to the exploitation of non-renewable natural resources in the territory they inhabit.” A huge, hard-won legal victory.
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And yet despite growing recognition of these rights, there remains a tremendous gap between what governments say (and sign) and what they do—and
there is no guarantee of winning when these rights are tested in court. Even in countries with enlightened laws as in Bolivia and Ecuador, the state still pushes ahead with extractive projects without the consent of the Indigenous people who rely on those lands.
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And in Canada, the United States, and Australia, these rights are not only ignored, but Indigenous people know that if they try to
physically stop extractive projects that are clearly illegal, they will in all likelihood find themselves on the wrong
side of a can of pepper spray—or the barrel of a gun. And while the lawyers argue the intricacies of land title in court, buzzing chainsaws proceed to topple trees that are four times as old as our countries, and toxic fracking fluids seep into the groundwater.

The reason industry
can get away with this has little to do with what is legal and everything to do with raw political power: isolated, often impoverished Indigenous peoples generally lack the monetary resources and social clout to enforce their rights, and anyway, the police are controlled by the state. Moreover the costs of taking on multinational extractive companies in court are enormous. For instance in the
landmark “Rainforest Chernobyl” case in which Ecuador’s highest court ordered Chevron to pay $9.5 billion in damages, a company spokesman famously said: “We’re going to fight this until hell freezes over—and then we’ll fight it out on the ice.” (And indeed, the fight still drags on.)
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I was struck by this profound imbalance when I traveled to the territory of the Beaver Lake Cree Nation in northern
Alberta, a community that is in the midst of one of the highest-stakes legal battles in the tar sands. In 2008, the band filed a historic lawsuit charging that by allowing its traditional territories to be turned into a latticework of oil and gas infrastructure, and by poisoning and driving away the local wildlife, the provincial and federal governments, as well as the British Crown, had infringed
no fewer than fifteen thousand times on the First Nation’s treaty rights to continue to hunt, fish, and trap on their territory.
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What set the case apart was that it was not about one particular infringement, but an entire model of poisonous, extractive development, essentially arguing that this model itself constituted a grave treaty violation.

“The Governments of Canada and Alberta have made
a lot of promises to our people and we intend to see those promises kept,” said Al Lameman, the formidable chief of the Beaver Lake Cree Nation at the time the lawsuit was filed (Lameman had made history before, filing some of the first Indigenous human rights challenges against the Canadian government). Against the odds, the case has proceeded through the Canadian court system, and in March 2012
an Alberta court flatly rejected government efforts to have the case dismissed as “frivolous,” an “abuse of the Court’s process,” and “unmanageable.”
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A year after that ruling, I met Al Lameman, now retired, and his cousin Germaine Anderson, an elected band councilor, as well as the former chief’s niece, Crystal Lameman, who has emerged as one of the most compelling voices against the tar sands
on the international stage. These are three of the people most responsible for moving the lawsuit forward, and Germaine Anderson had invited me to a family barbecue to discuss the case.

It was early July and after a long dark winter it was as if a veil had lifted: the sun was still bright at 10 p.m. and the northern air had a thin, baked quality. Al Lameman had aged considerably in recent years
and slipped in and out of the conversation. Anderson, almost painfully shy, had also struggled with her health. The spot where the family met for this gathering was where she spent the summer months: a small trailer in a clearing in the woods, without running water or electricity, entirely off the grid.

I knew the Beaver Lake Cree were in a David and Goliath struggle. But on that endless summer
evening, I suddenly understood what this actually meant: some of the most marginalized people in my country—many of them, like all the senior members of the Lameman clan, survivors of the intergenerational trauma of abusive residential schools—are taking on some of the wealthiest and most powerful forces on the planet. Their heroic battles are not just their people’s best chance of a healthy future;
if court challenges like Beaver Lake’s can succeed in halting tar sands expansion, they could very well be the best chance for the rest of us to continue enjoying a climate that is hospitable to human life.

That is a huge burden to bear and that these communities are bearing it with shockingly little support from the rest of us is an unspeakable social injustice.

A few hours north, a different
Indigenous community, the Athabasca Chipewyan First Nation (ACFN), recently launched another landmark lawsuit, this one taking on Shell and the Canadian government over the approval of a huge tar sands mine expansion. The band is also challenging another Shell project, the proposed Pierre River Mine, which it says “would significantly impact lands, water, wildlife and the First Nation’s ability
to utilize their traditional territory.” Once again the mismatch is staggering. The ACFN, with just over one thousand members and an operating budget of about $5 million, is battling both the Canadian government and Shell,
with its 92,000 employees across more than seventy countries and 2013 global revenues of $451.2 billion. Many communities see odds like these and, understandably, never even
get in the ring.
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It is this gap between rights and resources—between what the law says and what impoverished people are able to force vastly more powerful entities to do—that government and industry have banked on for years.

What is changing is that many non-Native people are starting to realize that Indigenous rights—if aggressively backed by court challenges, direct
action, and mass movements demanding that they be respected—may now represent the most powerful barriers protecting all of us from a future of climate chaos.

Which is why, in many cases, the movements against extreme energy extraction are becoming more than just battles against specific oil, gas, and coal companies and more, even, than pro-democracy movements. They are opening up spaces for a
historical reconciliation between Indigenous peoples and non-Natives, who are finally understanding that, at a time when elected officials have open disdain for basic democratic principles, Indigenous rights are not a threat, but a tremendous gift. Because the original Indigenous treaty negotiators in much of North America had the foresight to include language protecting their right to continue living
off their traditional lands, they bequeathed to all residents of these and many other countries the legal tools to demand that our governments refrain from finishing the job of flaying the planet.

And so, in communities where there was once only anger, jealousy, and thinly veiled racism, there is now something new and unfamiliar. “We’re really thankful for our First Nations partners in this struggle,”
said Lionel Conant, a property manager whose home in Fort St. James, British Columbia, is within sight of the proposed Northern Gateway pipeline. “[They’ve] got the legal weight to deal with [the pipeline] . . . because this is all unceded land.” In Washington State, anti-coal activists talk about the treaty rights of the Lummi as their “ace in the hole” should all other meth
ods of blocking the
export terminals fail. In Montana, the Sierra Club’s Mike Scott told me bluntly, “I don’t think people understand the political power Natives have as sovereign nations, often because they lack the resources to exercise that power. They can stop energy projects in a way we can’t.”
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In New Brunswick, Suzanne Patles, a Mi’kmaq woman involved in the anti-fracking movement, described how non-Natives
“have reached out to the Indigenous people to say ‘we need help.’ ”
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Which is something of a turnaround from the saviorism and pitying charity that have poisoned relationships between Indigenous peoples and well-meaning liberals for far too long.

It was in the context of this gradual shift in awareness that Idle No More burst onto the political scene in Canada at the end of 2012 and then spread
quickly south of the border. North American shopping centers—from the enormous West Edmonton Mall to Minnesota’s Mall of America—were suddenly alive with the sounds of hand drums and jingle dresses as Indigenous people held flash mob round dances across the continent at the peak of the Christmas shopping season. In Canada, Native leaders went on hunger strikes, and youths embarked on months-long
spiritual walks and blockaded roads and railways.