Stakeholder Submission DOODA (NO!) DESERT ROCK.

A Non-Governmental Organization of Dine` Civil Society to the UNITED NATIONS WORKING GROUP ON BUSINESS AND HUMAN RIGHTS United States Country Visit, Flagstaff, Arizona 27 April 2013 Working Group Mission The Working Group on the issue of human rights, transnational corporations and other business enterprises was established on 6 July 2011 by United Nations General Assembly Resolution No. A/HRC/RES/17/4. There are eleven mandates for the Working Group, including country visits, work with non-governmental organizations and representatives of indigenous organizations. The methods of work, revised on 30 November 2012, include standards for country visits and field work that require a spirit of promoting constructive dialogue with States and stakeholders about implementing the Guiding Principles and eliciting information from stakeholders to make findings and recommendations that respond to practical and operational realities on the ground for reports and recommendations to the Human Rights Council and General Assembly. There is recognition within the United Nations that the activities of corporations, and particularly extractive industry corporations, raise serious concerns about the human rights of indigenous groups. Aside from events leading up to the General Assembly Resolution that created the Working Group, the Commission on Human Rights identified the problem of the responsibilities of international corporations and human rights in Resolution No. 2005/69 (20 April 2005) as did the later Human Rights Council in Resolution No. 8/7 (18 June 2008). The United Nations Committee on the Elimination of all Forms of Racial Discrimination addressed such issues in its concluding observations on the reports of the United States of America on the subject of Elimination of Racial Discrimination. No. CERD/USA/CO/6 (8 May 2008). CERD identified issues affecting the human rights of indigenous peoples in the United States, including the problem of negative activities involving nuclear testing, toxic and dangerous waste storage, mining or logging in areas of spiritual and cultural significance to Native Americans and the adverse effects of economic activities connected with the exploitation of natural resources ... on the right to land, health, living environment and the way of life of indigenous peoples living (in countries outside the United States). Id., 29, 30. There was a related finding in 19 on the United States failure to deal with the situation of the Western Shoshone [Nevada] indigenous peoples and prior Committee action on it, and it is important because the Committee directed a specific query on that issue that raised the question of whether not the United States complies with its international obligations in Indian treaties. The question is the rights of indigenous groups to lands that remain under their control under treaties and lands where 1

such groups retain usufructuary rights, as in the findings in 29. Dooda Desert Rock and The Forgotten People lobbied the Special Rapporteur on the rights of indigenous peoples, the Hon. James Anaya, on extractive industry human rights issues and their attorney met with Mr. Anaya in Tucson to discuss the particular need for attention to the issue of human rights and extractive industry. Mr. Anayas 11 July 2011 report to the Human Rights Council paid special attention to Extractive industries operating within or near indigenous territories. Report No. A/HRC/18/35 (11 July 2011). It acknowledged the Protect, Respect and Remedy framework of principles previously endorsed by the Human Rights Council, Id. 25, and identified the principles as a foundation for a preliminary plan of work on the issue of extractive industries and human rights. Id., 75-76. The General Assembly of the United Nations stressed the fact that the obligation and the primary responsibility to promote and protect human rights and fundamental freedoms lie with the state and endorsed the General Principles on Business and Human Rights to implement the United Nations Protect, Respect and Remedy Framework in General Assembly Resolution No. A/HRC/RES/17/4 (6 July 2011), second preamble paragraph and 1. Therefore there are international human rights standards that Dooda Desert Rock can utilize in this communication to the Working Group to guide its conclusions and future reports as the result of its visit to the United States of America. Interest and the Issues of the Commentator The two primary issues that Dooda Desert Rock wishes to bring to the Working Groups attention are harmful extractive industry projects in northwest New Mexico, on and near the Navajo Indian Reservation, that are related to coal mining and mine-mouth coal-fired power plants and to the way in which the Navajo Nation is developing an energy policy dictated by extractive industry. Dooda (No!) Desert Rock takes its name from a campaign to block the construction of a minemouth, coal-fired power plant on the Navajo Reservation in New Mexico, near the Four Corners of New Mexico, Arizona, Colorado and Utah. That is an area popularly known as the National Sacrifice Area of the United States for the siting of exploitative extractive industry and dangerous/polluting projects such as uranium mines and coal-fired power plants. The word dooda means no in Navajo but it can also refer to dangerous situations and beings. The Navajo Nation is going through a period of crisis. It was, for many years, a popular national sacrifice area for extractive industry particularly in gas and oil fields in the Four Corners (including Utah) and uranium mining (initially centered in the area near Mount Taylor, outside Grants, New Mexico and later in the Shiprock and Tuba City areas). Two of the dirtiest power plans in the United States, the Four Corners Plant and the San Juan Power Plant, are sited on and near the Navajo Nation close to Shiprock. Scientific studies that show the adverse health impacts of both plants have been ignored. See, Joseph E. Bunnel, Linda V. Garcia, Jill M. Furst, Harry Lerch, Ricardo A. Olea, Stephen E. Suitt & Allan Kolker, Navajo Coal Combustion and Respiratory Health Near Shiprock, New Mexico , 2010 J. Environmental & Public Health Art. ID 260525 (2010). There are proposals to in situ leach uranium mining in areas of the Navajo Nation 2

justice outside Navajo lands (i.e. in an area with mixes of different jurisdictions of land tenure). Uranium and other mining waste and pollution from prior extractive industry projects in the Navajo Nation left a legacy of suffering and death. For example, areas in the western part of the Navajo Nation cause radiation sickness from tailings and the ground water is contaminated and poisoned from uranium mining. Coal mining to feed large power plants brought mixed blessings in terms of some economic benefit, but strains on water resources and dependence on a dirty power source. The Navajo Nation has a lot of poverty and the public corruption that most often accompanies poverty, where rules are relaxed and unfortunate deals are accepted by a ruling elite for its own benefit, but not that of the poor underclass. Corruption spills over to other areas, including leasing for recreational areas for non-residents, wind energy projects, gambling and other kinds of economic ventures; some of which are bizarre in conception. In December of 2006, Elouise Brown, along with friends and family members, set up a road block on their land near the proposed site of the Desert Rock Power Plant at a place known as Chaco Rio on the Navajo Indian Reservation. The venture was a proposed large mine-mouth, coal-fired power plant to be built not far from another large plant, the Four Corners Power Plant, and yet another plant, the San Juan Power Plant, and close to the power source, a large coal mine owned by an Australian mining company. Brown set up a small protest camp and when a drilling truck passed by her site she stepped in front of it. The non-Indian driver got scared, ran to complain to his supervisor and on December 29, 2006 the Sithe Global Power Company of New York City filed an injunction action against Elouise, her organization (Dooda Desert Rock Committee) the Dine` C.A.R.E. environmental rights organization and other individuals. It sought injunctive relief against the organizations from interfering with exploratory drilling operations. Sithe Global Power, LLC, Dine` Power Authority & Desert Rock Energy Company, LLC v. Dine` C.A.R.E., Dooda Desert Rock Committee, Elouise Brown, Lori Goodman, Sarah White, Alice Gilmore, Lucy A. Willie, Tito Gutierrez & Others, No. SR-CV-427-06 (Shiprock District Court of the Navajo Nation). A trial on the injunction was set for January 3, 2007 and it was indefensible, even on free speech grounds, because it was for a court order against future interference under criminal statute standards. It was politically-defensible, however, and on New Years Day of 2007 the groups lawyer negotiated a consent decree to conclude the case. In it, the defendants agreed they would not violate certain Navajo Nation criminal statutes that carried no fine or jail time (under criminal law reforms that decriminalized 65 offenses). Consent Decree, Id., January 3, 2007. That was achieved when Doodas attorney asked the opposing counsel whether he had heard of what happened to the Bechtel Corporation in Cochabamba, Bolivia. He had. Indians and supporters rose up and threatened to overthrow the Government of Bolivia over Bechtels handling of privatized water and sharp increases in water rates. When the Government of Bolivia responded by terminating contracts of the consortium that was largely owned by Bechtel, it filed an international trade complaint against Bolivia. It was not concluded by an international tribunal because of the public uproar over Bechtels excessive actions. The defendants attorney said that when he would arrive at court for the trial he would be 3

accompanied by an elderly Navajo woman on one side, wearing traditional dress and riding in a wheelchair (Alice Gilmore), and on the other would be a beautiful, elderly, silver-haired woman in traditional dress (Sarah White). Their photos had appeared in earlier press accounts of the case. Photos of the two women accompanying their lawyer into the courthouse would be flashed worldwide to show the kind of people who were building the power plant and the appearance of country Navajo women who were being harassed by large corporations (including a Navajo Nation entity). Not all the defendants understood what was done using the Bolivian precedent, but the defense took resolved the injunction and Elouise Brown went on to make herself and Dooda Desert Rock famous worldwide because of their resistance to corporate excesses. The first priority in dealing with the Desert Rock project was addressing a draft environmental impact statement on the power plant with research that showed there was significant harm caused by emissions from the two existing power plants. Dooda discovered a memorandum on health risks to be studied, issued by the Environmental Protection Agency office in San Francisco. See, United States Environmental Protection Agency, Region IX to Harrilene Yazzi, Bureau of Indian Affairs, August 24, 2007 (raising concerns about the evaluation of potential impacts from the placement of coal combustion byproducts in Navajo Mine and air ozone risks noted in a U.S. Geological Service study, along with various environmental justice concerns). Dooda Desert Rock followed that warning with a February 24, 2009 letter to the Bureau of Indian Affairs National Environmental Protection Act Coordinator citing that letter, and advising of a discrimination complaint filed with the Environmental Protection Agency over environmental justice. Those agency and NGO demands were ignored. Officials of the U.S. Environmental Protection Agency Environmental Justice Program invited Brown to participate in discussions of their program, but when Brown related the health risks she discovered and asked how they could be used to achieve environmental justice for Navajos, they had no answers. A telephonic conference with the EPA environmental justice head and its attorney, Suzi Ruhl, showed that while the United States environmental justice program does indeed mobilize communities in opposition to various projects, they admitted that it had no effective force in stopping them. Dooda Desert Rock filed a formal discrimination charge against the Environmental Protection Agency for failing to do anything about revelations of proof of a health risk, and they were informed, by the Civil Rights Division of the Environmental Protection Agency, that no federal law prohibited direct discrimination by any federal agency. United States Environmental Protection Agency, Office of Civil Rights, Rejection of Administrative Complaint, No. 02R-09-R6 (May 5, 2009). In other words, the United States provides no remedy for discrimination and environmental injustice a situation the Working Group should notice and act upon. Dooda actively participated in a good governance movement, Hasaasidi (the Watchmen), that was instrumental in blocking an illegal funding for a casino in Gallup, New Mexico. It also participated in litigation to target corrupt discretionary funds monies. Hadaasidi got a favorable Navajo Nation Supreme Court decision that points out that all lands and income from them belongs to the Navajo People, and there is a fiduciary obligation on the part of the legislature in appropriating monies with a corresponding fiduciary obligation in spending public monies. Nelson v. Initiative Committee to Reduce Navajo Nation Council , No. SC-CV-034

01 (Nav. Sup. Ct. January 4, 2011). *** The Government of the United States, largely through the Committee on Indian Affairs of the United States Senate, has been attempting to frame energy policy for activities in Indian Country, a legal and popular term that describes Indian lands reserved by treaty or set aside for the benefit of Indians. It popularly refers to places of the heart of Indians and Native Peoples in the United States. Those initiatives have not been carried out with effective public notice or the participation of American Indians and Alaska Natives, or off-reservation urban Indians in violation of international human rights principles. The policies that are coming out of Washington, D.C. are largely those dictated by non-native corporate industry. The Navajo Nation is considering an overarching energy policy that is very much related to the Dooda Desert Rock resistance to a specific power plant. As Dooda Desert Rock used public media to seek popular support against the Desert Rock Power Plant it faced consistent pushback from one Frank Maisano, identified as a spokesperson for the corporation constructing the plant. The January 2008 issue of Vanity Fair, a popular United States magazine published in New York City, ran an article with the title A Tale of Two Giulianis . It discussed a law firm set up by Rudy Giuliani, a prominent Republican and spokesperson for industry. The article stated that the Giuliani Law Firm was representing the corporation that was building the Desert Rock Power Plant. A simple search of the firms web pages disclosed that Frank Maisano is a non-lawyer partner in the firm, with a graduate degree in business administration. That law firm, and others, are part of a new wave in law whereby firms are as much development advisors and press flackspin doctors for industry as they are lawyers. One of the attorneys in the law suit to enjoin Elouise Brown, Dooda Desert Rock and others that opposed the siting of a power plant on Navajo lands was Christopher Clark-Deschene, a Navajo lawyer who represented the Dine` Power Authority, a Navajo Nation entity dedicated to power line construction. The Authority was an enterprise that sought to develop an energy corridor across the Navajo Nation and a key to that was promoting energy sources, namely a power plant or plants in northwest New Mexico, with lines across Arizona to metropolitan areas such as Las Vegas and Los Angeles. Clark-Deschene has positioned himself in Arizona politics as a statewide candidate. Important connections were revealed with Christopher Clark-Deschene, former president and Arizona State senator Albert Hale, legislative counsel Raymond Etcitty and Giuliani Law Firm attorney Nancy Appleby appeared on a panel to discuss the Desert Rock Power Plant at the 2008 Annual Conference of the Navajo Nation Bar Association at the Radisson Resort & Casino on June 9, 2008. Panel presenters told a captive audience of lawyers of the wonders of the Desert Rock project, how it was set up by an Oregon law firm and how it would function. A lawyer for Dooda Desert Rock in attention rose to demand equal time for Dooda Desert Rock, given that the presentation was a lengthy commercial. Dooda Desert Rock consistently lobbied against funding appropriations for the Dine` Power Authority, and its ventures for the power plant and feeder lines came to naught because the air 5

permit for the power plant was denied, and the Authority had difficulties obtaining clearances to run power lines across the Arizona portion of the Navajo Nation. The Authority went dormant when the Navajo Nation Council recognized the lack of product from the venture and it went dormant. The current president of the Navajo Nation promulgated a draft of a Navajo Nation Energy Policy on June 20, 2011 and presented it to the public in separate town hall meetings. I met resistance from environmental and good governance groups and individual Navajos. Thereafter, the President, Attorney General and Navajo Nation Justice Department lawyers demonized the federal Environmental Protection Agency, State of New Mexico and NGOs for blocking Navajo Nation economic development and frustrating its sovereignty. Most recently, President Shelly of the Navajo Nation criticized the Navajo Nation Council for failure to approve a subsequent draft of the energy policy. See., Jenny Kane, Navajo president Shelly emphasizes energy in the State of the Nation , Farmington Daily Times, April 16, 2013. The new draft has not been generally circulated and Navajo grassroots and non-governmental organizations have not seen it. Given the past connections of a political lawyer who touts his energy policy expertise and the Giuliani Law Firm with the Dine` Power Authority, it is likely that they are advising the president and attorney general of the Navajo Nation on energy policy and pushing a policy draft authored by energy and extractive industries. That policy is being pushed forward in violation of international human rights standards. Assessment The Working Groups 30 November 2012 methods of work require the team that is visiting Northern Arizona to actively engage with stakeholders to ensure that any findings and recommendations respond to practical and operational realities on the ground. The standards used to assess local conditions are the Declaration on the Rights of Indigenous Peoples and the three overall requirements of the Guiding Principles, as stated in the General Principles at page 1, namely: States existing obligations to respect, protect and fulfil human rights and fundamental freedoms; The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; and The need for rights and obligations to be matched to appropriate and effective remedies when breached.

The Guiding Principles state standards for states, business and remedial bodies and institutions in three sections. The Navajo Nation is a state in the international law sense by virtue of its treaties with the 6

United States of American, and most particularly the Treaty of June 1, 1868 concluded at Fort Sumner, New Mexico Territory, and by virtue of satisfying the elements set out in the Montevideo Convention on Rights and Duties of States (1933), namely having a permanent population, a defined territory, stable government, and independence. See, Ian Brownlie, Principles of Public International Law 72-74 (1990). The objection to independence is answered by the fact that the Navajo Nation has treaties with the United States, and with predecessor states of Spain and Mexico, and it in fact exercises the self-determination guaranteed in the Declaration on the Rights of Indigenous Peoples. The problems shown here demonstrate that the Navajo Nation has not observed its obligations, as a state, and that it is subordinating the public interest to the plans of multinational corporate energy and extractive firms and law firms that serve them. The Navajo Nation Human Rights Commission does not presently have legal enforcement authority to implement its findings and recommendations of violations of human rights. While the Commission has determined that its work is limited by the Declaration on the Rights of Indigenous Peoples, the Navajo Nation has not adopted that document. It has not yet addressed issues of violations of the Guiding Principles, and hopefully its meeting with the Working Group will sensitize it to the need to conduct public hearings on their application in the Navajo Nation. This submission shows that there are serious issues regarding power generation in the Navajo Nation and the coal mines that feed them. There are controversies over granting a new permit to a power plant in the western portion of the Navajo Nation, the purchase of a coal mine that feeds plants in northwest New Mexico, coal energy in general and corporate influence in the governance of the Navajo Nation. Those are serious human rights issues that the Working Group should note and consider in its findings. Conclusion Dooda (No!) Desert Rock thanks the Navajo Nation Human Rights Commission for its invitation for the Working Group to specifically address some indigenous issues at a closed meeting held in Flagstaff, Arizona. Dooda submits these comments to the Working Group at its offices with the High Commissioner in Geneva and requests that the same be considered with making the country report on the visit to the United States. Dooda Desert Rock joins with other non-governmental organizations of Navajos in Navajo Nation civil society, that are largely locked out of effective public discourse in Navajo Nation political institutions, to ask that the United Nations remind the Navajo Nation, as a state under the Guiding Principles on Business and Human Rights (2011), that it owes the Navajo People duties to undertake effective oversight of both non-Navajo business enterprises and Navajo Nation entities, regulate them, and observe relevant international human rights standards as an intimate part of economic development policy. The Navajo Nation is not undertaking human rights due diligence or requiring it of those who propose ventures in the Navajo Nation. That is a large failing that Navajo civil society is addressing, with little response. While Navajo civil society has had some limited success in litigation, to get remedies for public corruption, it largely does not have the resources to engage in litigation for every violated it notes. 7

Given the role of special bodies of the United Nations, such as the Working Group, to elaborate and fine-tune international standards based on empirical evidence gathered in country visits, we ask that the Working Group give special attention to elaborating special standards for indigenous peoples to address and remediate the situations and conditions set out in this submission. Both Dooda Desert Rock and the Forgotten People partner with other grassroots Navajo organizations in attempts to deal with specific problems they include massive failures by the Navajo Housing Authority; corruption in wasting Navajo Nation monies and assets; bungled alternative energy projects; renewing leases for two powers plants without negotiating an adequate return or protection for Navajo workers; and, most recently, a proposal to buy out an Australian coal mining company without adequate due diligence or purpose. Those issues are not environmental in the sense of a policy decision to permit a given form of mineral extraction or polluting industry. Dooda did attempt to draw Environmental Protection Agency attention to the adverse health impacts of two coal-fired power plants in northwest New Mexico but even a formal complaint of agency discrimination was ignored. The Forgotten People have attempted to get at the larger issues of deficiencies in the Navajo-Hopi compact, the bungled needs assessment spearheaded by the executive of the Navajo Housing Authority and breaches of fiduciary obligations by the Secretary of the Interior and a Navajo Nation legislative committee. The Dooda and Forgotten People campaigns attempt to engage official action and public support for macro environmental issues, dealing with undue influence and political corruption to the detriment of the Navajo People. There are emergent issues, including the impacts of energy extraction or other land uses on and near sacred sites and the way in which extractive industries are violating human rights and manipulating ordinary people to support their causes. Throughout, there are issues about Navajo Nation governmental assistance to industries that violate human rights. Dooda Desert Rock thanks the Working Group for its attention and hopes it will address these problems. ***