Consultation doesn't always equal consent
Pauly DenetclawICTUNITED NATIONS — The 24th session of the United Nations Permanent Forum on Indigenous Issues was focused on implementing the Declaration on the Rights of Indigenous Peoples — locally, nationally and globally.'At every stage, the global push for the so-called green transition has intensified demand for critical minerals, lithium, cobalt, nickel and others, many of which lie beneath sacred Indigenous lands and territories,' Aluki Kotierk, chair of the Permanent Forum, said in a speech. 'We cannot ignore (what) this threat poses to our rights, lands and way of life. Extractive activities when carried out in disregard of the right to self determination and the free, prior and informed consent of Indigenous peoples become another form of colonialism. We are not anti-development, but development must be on our terms and must be just.'An important aspect of the declaration, adopted by all 193 UN member states, is free, prior and informed consent.'It ensures that when Indigenous people sit down with a government, a company, or another third party, that they'll have all of the information they need, enough time, and really a fair opportunity to negotiate an outcome that's mutually beneficial to them and the other party,' said Kristen Carpenter, law professor and co-director of the Implementation Project.The Colorado-based project is a joint initiative between the Native American Rights Fund and the University of Colorado Law School to educate and advocate for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. Currently, the United States doesn't use this framework for decision making, opting for tribal consultation where the outcome doesn't have to include consent. However, countries who approved the declaration are required to codify it into their national laws. Native American Rights Fund and the National Congress of American Indians have been advocating for a transition to free, prior and informed consent.Tribal leaders from the United States often don't participate in their capacity as an elected official because the nations would have to apply as a non-governmental organization, which could be seen as a diminishment of tribal sovereignty. Despite this, the largest number of tribal leaders attended this year's forum, according to Carpenter. 'I'm so happy we have more tribal leaders than ever,' Carpenter said.
Tribal leaders play an important role locally, statewide and nationally. This could extend globally. 'It's important for tribal leaders to be here because you have a seat at the table,' said Joe Deere, co-chair of NCAI's international committee. 'Your voice is going to get heard. You're going to be able to communicate with other people across the United States, and now even other countries.'Over the last few years, the two national Indigenous organizations have ramped up their work internationally to advocate for the implementation of free, prior and informed consent in the United States, knowing it could take many years to actualize. 'We need to be ready to run a marathon to make that happen,' said Aaron Jones, co-chair of the international committee for the National Congress of American Indians. 'We're talking about implementing this and I know we're really in the early stages.'
HistoryIn 2007, an overwhelming majority of the countries that make up the UN General Assembly voted in favor of the United Nations Declaration on the Rights of Indigenous Peoples. It's not shocking that the United States, Canada, Australia and New Zealand initially voted against the legal, nonbinding declaration. (Eventually the four countries changed their position on a document that in essence states that Indigenous peoples are human beings with the right to exist in perpetuity.) The most well-known and heralded right listed in the 46 articles is free, prior and informed consent. This principle doesn't just apply to land rights, which it's often conflated with. It also applies to culture, language, food systems, intellectual property, governmental laws and landback. The phrasing is intentional with every word having a principle behind it. Free meaning that consent is given without coercion, threats, violence, manipulation or bribery. Consent is given voluntarily.There are many examples of consent given under threat, violence or coercion in the United States.
Navajo leaders signed the Treaty of 1868 with the federal government after the tribe was death marched over 400 miles from their homelands that span New Mexico, Arizona, and Utah to Bosque Redondo in eastcentral New Mexico where they were placed in a concentration camp. More than 8,000 Navajo people were forcibly kept at Bosque Redondo for three years. During that time, illness, starvation, or exposure took the lives of over 2,000 Navajo people. During the termination era, the federal government passed the Indian Relocation Act of 1956. It would coerce thousands of Indigenous people to leave their homelands with the promise of job opportunities, more pay, and housing. Instead, many were left without work, training or housing. Prior means that Indigenous communities and nations have adequate time to go through the decision-making process well-before governments, companies or other third parties have made a decision. The third word of the phrase, informed, means that Indigenous nations must be completely and fully informed about the environmental, health and social impacts of a planned project.
'For example, in the Philippines, when there was a mining project in one area, and the community said, 'We want to know the details of the project. So if you don't share to us the full information of the project, we cannot come out with an informed decision. We need to know everything,'' said Joan Carling, a renowned Indigenous rights activist and environmentalist. The documentation has to include all the information about the proposed project including size, purpose, scope and time length. Most importantly, the information must be shared in a language the community is most comfortable with, and in a format that aligns with the community's needs. 'What can be the positive and negative impacts of the project? So, it should be complete and accurate information,' said Carling, Kankanaey tribe in the Philippines.The Philippines codified free, prior and informed consent in the Indigenous Peoples Rights Act passed in 1997. A year later, Ecuador passed a new constitution that recognized Indigenous peoples right to free, prior and informed consent. In 2011, Colombia's Constitutional Court, which acts much like the Supreme Court, made a historic ruling that recognized the decision-making framework as a human right for Indigenous peoples. However, its full and fair implementation hasn't come without controversy.ConsentThere is a big difference between consultation and consent. Consultation in the United States doesn't have to include consent but tribal nations have made great strides in this area. Although not required, it's often a goal for the federal government to reach a consensus or agreement with a tribal nation. Historically, this hasn't always been the case. In 1948, the federal government approved the Garrison Dam that flooded 152,000 acres of Mandan Hidatsa and Arikara land in North Dakota, despite objections from the tribe. It forced the relocation of 325 families from the tribe. Last year, a judge ruled against Arizona-based tribes, Tohono O'odham Nation and San Carlos Apache Tribe, in a suit that was challenging the construction of the SunZia transmission line in southern Arizona's San Pedro Valley. The line passes through an area that holds historic, cultural and spiritual significance for the nations. The two tribes have been fighting its construction for years, advocating that it be built alongside land that has already been developed. It crosses 'one of the most intact cultural landscapes in the Southwest,' a 2024 lawsuit by the Tohono O'odham Nation stated. The project was a cornerstone of former President Joe Biden's green energy agenda. 'The SunZia Transmission Project will accelerate our nation's transition to a clean energy economy by unlocking renewable resources, creating jobs, lowering costs, and boosting local economies,' Deb Haaland, former Interior Secretary, said in a 2023 press release. 'Through historic investments from President Biden's Investing in America agenda, the Interior Department is helping build modern, resilient climate infrastructure that protects our communities from the worsening impacts of climate change.'The case was appealed to the Court of the Appeals for the Ninth Circuit. The panel of judges heard oral arguments on March 26. An opinion has yet to be released. Adopting the principles of free, prior and informed consent could help to alleviate legal issues like this. The federal government and companies could avoid lengthy and costly legal battles by engaging in this process. 'One thing we see over and over again, and I'm sure everyone in this room is aware that projects will come in, including now renewable energy projects, there will be human rights violations, violations of the right to (free, prior and informed consent), land rights. People will exercise their right to protest and raise concerns about those harms,' said Christine Dodsen, co-lead of the Civic Freedoms & Human Rights Defenders Programme. 'Then there will be a crackdown against human rights defenders, either directly by the company, by governments, and that will then lead... to financial risks, legal risks for the company. For business actors, this model could lead to reduced risks, and a competitive advantage.'The United Nations Permanent Forum on Indigenous Issues will release a report with recommendations, to the United Nations and member states, based on interventions given during the two-week event. It will be released sometime this year. The forum concluded May 2.
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We were concerned that the tariff situation would cause an outsized impact on Michigan's economy.' Industry consolidation could drive up prices On May 28, the U.S. Court of International Trade ruled that the president had overstepped his authority in imposing 'reciprocal' tariffs globally, as well as duties on Canada and Mexico. Some in the auto industry said they were encouraged by the ruling, until they realized that the tariffs Trump put on autos still apply, providing no relief from the worry over possible supplier consolidation and job losses. The next day, an appeals court ruled Trump can continue to levy tariffs — which are taxes an importer pays on goods when they cross borders — while challenging the court order that had blocked them. Stevens said there are 'absolutely conversations going on' between suppliers and their customers, including automakers, about ways to shoulder the extra tariff costs together. 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They are bigger suppliers that sell directly to automakers. They have a diverse product portfolio to either relocate production and/or pressure the lower-tier suppliers — those companies that sell parts to the Tier 1 supplier — with price-reduction demands while investigating new suppliers in low-to-zero tariff regions. But in times of volatility, there has always been concern that the smaller suppliers will not be able to weather the storm, allowing larger suppliers to buy the distressed suppliers on the cheap and strengthen their product portfolio, McCabe said. As the number of suppliers dwindles, it could allow those that remain to strong-arm carmakers on the prices they pay for the parts, he said. The number of suppliers According to U.S. Census data in 2022, 3,814 firms operated at least one plant classified as producing auto parts in the United States, with a total of 4,846 plants in this industry. Those plants shipped $278.24 billion in parts and employed 575,338 people, said Jason Miller, a supply chain management professor at Michigan State University. Even the small suppliers shoulder big economic muscle. Miller said 3,045 companies with fewer than 100 employees operated 3,111 manufacturing plants that shipped $17.66 billion in parts and employed 54,561 people. In Michigan alone, data from the Upjohn Institute, a nonprofit, nonpartisan research center in Michigan, calculates that the state has 117,675 auto supplier jobs. Team 1: A typical small supplier On an afternoon in mid-May, Grigowski drives down the highway, going from meeting to meeting as he talks on the phone to the Free Press about his ever-growing to-do list to mitigate the impact tariffs will have on his company. The company, Team 1 Plastics in Albion, Michigan, is a small supplier, bringing in about $20 million in annual revenue. Its size represents the bulk of companies that make up the auto parts supplier base, Grigowski said. "We're little companies in little towns," Grigowski said. "We employ 80 people, so it's a big deal in a town of 7,000. And we have one location, so we're making decisions that impact everything." Team 1 makes the plastic vehicle parts such as covers, switch components or underhood components. Its business is "almost 100% automotive with a little bit of plumbing," Grigowski said. It provides parts to suppliers that eventually end up on vehicles made by General Motors, Ford Motor Co., Stellantis, Toyota, Honda and Subaru, he said. The parts they make are links in the complex supply chain that weaves across North America. The good news for Team 1 is that some of the materials it uses to make plastic parts are made in the United States, so the company dodges paying tariffs there. But dies used to make other parts will face tariffs and have "a very big impact" on the company's books, Grigowski said. Team 1's troubles Grigowski said the dies, which are used to shape or form plastic into the parts, are made from suppliers in Canada and India. India is subject to a 10% tariff, but Canada and Mexico got 25%. "That was a big surprise for us — 25% is a lot," Grigowski said. "A typical die cost might be $70,000, so that's going to be $17,500 more. So it's a lot of money. We typically get 10 dies a year from Canada, so that's $175,000 more. That's real money were I come from.' Grigowski said it is unclear whether the dies will be exempt from the Canada tariffs for being compliant with the U.S-Mexico-Canada Agreement because it is not a part, but rather a piece of capital equipment. "It's unclear if that will be covered or not" under the exemption, Grigowski said. "We will have to figure it out in the next week or so" before putting in new orders. If the dies are not exempt, he said the extra cost for the tariff will be passed onto Team 1's customers. As for the dies Team 1 already ordered before the tariffs were applied, it already had quoted its prices to its customers so it will not raise those prices to offset the added expense. He said some companies in Michigan make dies, but they don't have enough capacity to meet all the suppliers' needs. And, as those companies get busier, they will raise their prices too. On top of that problem, Team 1 also needs a new injection molding machine, which is made in Japan. Grigowski ordered a new one even though the 24% tariff on goods coming from Japan tacks on $72,000 to its price tag. He is hoping the tariff on Japan will be lowered to 10%, bring down the bill to $30,000. It would be less of an impact, "but it's still painful," he said. Finally, because Team 1 has added new clients in recent years, it has outgrown its facilities and needs to make a 50% expansion to its plant. It got a construction quote six months ago and had hoped to break ground this summer. But Grigowski said he has to get a new quote now because of the recently imposed 25% tariffs on imported steel and aluminum. "We're using an American company and an American building supplier and they will use as many American parts as they can, but they will probably import some of the steel and even if they didn't, the domestics will raise their price because they can," Grigowski said. "So it's a lot of things for a company our size to keep track of." He said it's a tough situation that feeds his bigger fear, which is "nothing we hear sounds like it's going to lower the price of the car.' "Cars are already super pricey for most customers," Grigowski said. According to Cox Automotive, in April the average transaction price for a new car was $48,699. "Which means, it could lead to lower volumes for us. Lower volume is never good.' A bigger supplier's strategies Across the state in Auburn Hills, Lucerne International, which makes chassis, powertrains and body structural components for passenger cars and commercial vehicles, is a bigger supplier at the tier one and tier two levels. CEO Buchzeiger declined to provide Lucerne's annual revenue or employee count, but she has been grappling with Trump tariffs since 2018 because of Lucerne's scale and reach into Asia. Trump was threatening to boost tariffs on China to 25% back then too. So she has learned a thing or two about mitigating tariffs that she's willing to pass on to smaller suppliers to help them. "The biggest issue with the supply base, especially with paying more cash up front, is cash flow and liquidity," Buchzeiger said. "The smaller suppliers can't pay that up front … it sucks cash flow out of your organization." Buchzeiger said her company has been working to get more of its supplies from domestic providers. She shares other strategies, such as what to do when the goods clear a port, as duties are due within seven to 10 days. Sometimes, the goods "aren't even at our door yet and the tariffs are due," Buchzeiger said. To offset that problem, Lucerne signed up for a U.S. Customs and Border Protection program called Periodic Monthly Statement, Buchzeiger said. That program allows a company to pay all the tariffs on the 15th of the month. So if the parts clear the border on the 16th, the company has a full month to pay it, she said. Buchzeiger said the company is also applying to be a foreign trade zone. "That allows us to bring the goods in and sit on them and not pay duties until they clear our door because we're considered a foreign trade zone," Buchzeiger said. "It's just to save millions of dollars in our cash flow because the longer we hold onto our money, the better." Buchzeiger agrees with the president's goal that more goods should be made in America. But she said to make that happen, tariffs have to be executed strategically. The U.S. aluminum manufacturers, for example, can produce only 15% of the aluminum her company requires, she said. So Lurcerne has to import 85% of it. With the 25% tariffs on aluminum now, "you just made me uncompetitive to manufacture here. To help me manufacture here, you have to understand where raw materials come from.' Find 'a path out' Like Grigowski, Buchzeiger believes tariffs will raise new vehicle prices. Buchzeiger is on the board for MEMA and MichAuto and she said the expectation is tariffs will drive up the average price of a new car by $5,000 to $7,000. As for the impact on jobs, MEMA, the group that represents the auto parts supplier industry, told the Free Press it did not have a precise estimate for supplier job losses so far due to tariffs. But it referred to the Bureau of Labor Statistics' April report that noted a national net decline of 5,800 U.S. jobs in motor vehicle and parts production since February. The bureau does not distinguish between parts and vehicle manufacturing. In March, steelmaker Cleveland-Cliffs Inc. said it would idle some operations at its Dearborn plant this summer, tied to tariffs. It said it will lay off about 600 employees. In a statement at the time, the company said, 'We believe that, once President Trump's policies take full effect and automotive production is re-shored, we should be able to resume steel production at Dearborn Works.' But MEMA spokesperson Megan Gardner said that based on its internal surveys, a growing number of MEMA's 1,000 members have reported reducing U.S. employment — both production and nonproduction — and investment since the tariffs went into effect. She said many indicated they expect to make further cuts if tariffs remain in place over the next year. Still, Grigowski said he is sticking to his plan to hire a couple people this fall to work on that new machine from Japan. He even sees a potential upside to tariffs if some work that is currently done in Mexico shifts over to Team 1. 'That's a very real possibility," Grigowski said. "We've had some additional inquiries from a Canadian company." He also believes the Trump administration will negotiate tariffs country by country and come up with something workable for the auto industry, creating a "path out" of his problems. "It's like COVID. When it first happened, we thought we'd have to shut our plant down. Then we saw a path out," Grigowski said. "Ultimately, if these tariffs were to stay in place and they drove volumes down dramatically, then yeah, we'd have to make adjustments. We have to hope cooler heads will prevail. We're in a good financial position that we can wait for a solution. I feel like it's a significant problem, but a problem we can start to work.' Jamie L. LaReau is the senior autos writer who covers Ford Motor Co. for the Detroit Free Press. Contact Jamie at jlareau@ Follow her on Twitter @jlareauan. To sign up for our autos newsletter. Become a subscriber.
