Beaver Lake Cree February 2019 Hearing: Awaiting Court Decision

11 April 2019; originally published March 8, 2019 by Ana Simeon, RAVEN Trust

It was an emotional moment. The morning of February 19th, Beaver Lake Cree elders and community  members crowded into a packed courtroom, having risen before dawn to make the 3-hour journey from Lac La Biche to the Court of Queen’s Bench in Edmonton. The sense of expectancy was palpable: after waiting for so many years, thwarted by Canada and Alberta at every step, would they finally receive justice?

Throughout the hearing, the court heard affidavit evidence from 10 band members. In submission after submission, Beaver Lake Cree people expressed many painful losses. Elders, knowledge keepers and community members described how, due to unchecked industry, they are no longer able to meaningfully exercise the way of life and culture that was promised to them under Treaty 6. They spoke of the broken promises reflected in the 19,000+ Crown authorizations for tar sands and other industrial development in their territory.

Loss of caribou, pollution of water, fragmentation of culture: over three long days, Beaver Lake Cree witnesses spoke of the tragic consequences of neglected treaty rights in northern Alberta.

It was inspiring to see the resilience of this community that travelled for hours to have their presence felt. Youth sat front and centre, attentively listening and watching the colonial system in action. Elders struggled to hear but seemed to find humour in the evidence; specifically at claims from the province that Beaver Lake does not live in poverty.

Part of what was being debated at the hearing is whether the issues raised by the Beaver Lake Cree are of national importance. Of course, we think that they are: this is a case that goes to the heart of what Canada’s responsibility to uphold the treaties really means. In particular, the case — known as The Tar Sands Trial —  addresses questions about whether Treaty 6 (and all the Numbered Treaties) assures Indigenous Peoples of a way of life, and whether there should be  limits to how much land and resources the Crown can take up, as allowed in the agreement, before the Treaty is infringed.

Meanwhile, the Canadian government denies that the rights asserted by the Beaver Lake Cree even exist. The Crown denies that treaty infringement has taken place. For these hearings, a whole suite of Department of Justice lawyers has been tasked to challenge an under-resourced First Nation’s attempts to secure the funding it needs to go to trial.

“Canada’s position in Court stands in stark contrast to the high-level promises of the Trudeau government to promote reconciliation and to listen to Indigenous people,” says MKarey Brooks, legal counsel for Beaver Lake Cree. “Without this case, and the advanced funding order, these critically important issues will not get resolved.”

It is important to remember that reconciliation has a specific meaning in law: it is about forcing Crown sovereignty to take account with and be reconciled with the pre-existing rights of Indigenous Peoples, reflecting the prior use and occupation of land and resources. The  issues being brought forward by the Beaver Lake Cree are deeply significant for First Nations across the country – and for all Canadians who care about acting honourably and setting right our relationships with Indigenous Peoples.

That’s why we recognize that this small Nation should not have to foot the bill for this fight on their own.

At RAVEN, we are used to quick and nimble fundraising campaigns in support of rapid-response Indigenous legal challenges to pipeline and mining projects. The Beaver Lake Cree case has been different – it’s been legally complex, fiercely denied by Canada and Alberta, lengthy and drawn out.  It’s hard to believe, but the Nation has been championing their treaty rights for more than a decade!

We’re amazed and humbled by that commitment and staying power.  We applaud Beaver Lake Cree leadership for standing up again and again to demand justice. They do so strengthened in the knowledge that so many donors like yourself are at their backs. The wave of support from all across the country this fall and winter has been incredible – we’ve raised $246,000 and counting, more than 90% of it from people organizing, fundraising, and donating to see justice done. Please accept our most heartfelt gratitude.

We couldn’t have done this without movement allies, such as Equiterre, the Leap, and Climate Justice Edmonton, along with online fundraisers who have reached out to family and friends for support  for the Beaver Lake Cree.

As we all wait for the court decision, know that you are doing your part to defend the spirit of the Treaties, and to forge a new way forward for this country that upholds the rights of  the Indigenous Peoples who have stewarded the land, air and water since time immemorial. It is our honour to be standing with you.

With gratitude, Laurie, Ana and the whole RAVEN team

Link to Facebook Live Events here.

Update: August 2018 to April 2019 – Status of the Save Our Wilderness campaign

The wise Greek philosopher observed more than 2500 years ago that change is the only thing that is certain. 

Heraclitus

4 April 2019; original blog by Rob Symons published at Save Our Wilderness

Protesting workers close Tendele mine

On 24 August 2018, placard-waving workers from Tendele Coal Mine in Somkhele, stood outside the Pietermaritzburg High Court protesting against our (Save Our Wilderness organization) application to close the mine for being non-compliant.

On 1 April 2019, eight months later, these same protesters closed the mine themselves! 

Who would have thought this possible? Some people considered the reported closure an April Fool’s hoax. Undoubtedly, the mine would have been happy if this had been so, but it is fact not fiction.

The workers closed the mine because of grievances relating to underpayments in their salaries – in some instances, as much as R10,000 a month. Significant differences in salaries being paid to people doing the same job have also created dissatisfaction. These arise from Tendele’s non-compliance with union rates. Negotiations with the CCMA are ongoing to try and resolve the situation.

How ironic that the workers achieved what our High Court application failed abysmally to do. Not only did we lose our case but Judge Seegobin ordered us to pay the mine’s legal costs.

Our High Court case was challenging Tendele for its non-compliance but, in our case, it related mainly to no Environmental Impact Assessment and no waste management licence. These should surely be mandatory, particularly for such a polluting activity right next to the historic Hluhluwe iMfolozi Park, established over 100 years ago as a sanctuary for the last remaining White Rhino on the African continent. The honourable Judge thought otherwise.

Tendele’s History of Non-Compliance

While Heraclitus is right that change is inevitable, Supertramp, a superb English rock band from the 70s wrote a song called “Some Things Never Change”. This would provide a good title for the long litany of non-compliance associated with Tendele since it started its operations in 2007.

For seven years, the mine operated without a valid water use licence. The mine also exhumed and relocated hundreds of graves without necessary permits and reneged on its agreed compensation to families for the exhumation of the remains of their ancestors – a very serious matter in Zulu culture. The mine has taken the property of hundreds of people without compensating them for their land, only for their homes, arguing that they live on tribal land that belongs to the Ingonyama Trust Board. It turns out the mine is wrong, and that people in tribal areas are entitled to be paid out for their land or relocated to a place that is similar to the land they have had to vacate.

In August 2018, the South African Human Rights Commission released its report on mining affected communities, a document that includes numerous human rights abuses perpetrated by Tendele.

Earlier in 2018, ActionAid conducted an audit of Tendele’s Social Labour Plan and discovered glaring discrepancies between what the mine had committed itself to do and what it has actually done. This is likely to result in court action against Tendele. Compensation claims are also in the process of being compiled against the mine. And so, the list of non-compliance goes on….

So who benefits from Tendele? 

Clearly the workers are not benefitting as they should, hence the closure of the mine on 1 April 2019.

Somkhele residents are definitely not benefitting, particularly those directly affected by the negative impacts of Tendele mine. The general complaint is that the majority of residents are much worse off now than before Tendele started mining in 2007. This complaint is valid and runs counter to the falsely held belief and narrative that mines uplift and develop communities. This is not true.

So, who are the beneficiaries of Tendele’s millions? There are the usual well-paid CEO and top mine managers, and the shareholders when stock markets are strong, but it appears the main beneficiary is an unidentified entity, referred to in Tendele’s Mining Works Programme as “Royalties-Tribe”. From July 2018 to June 2019, it is tabled that the “Tribe” would be paid over R9-million; the government R3.5 million; and Mine Health and Safety Regulations just over R8-million. For the same period, it was anticipated R35,281 would be paid in rates and taxes. Go figure this out.

Where are we now? 

GET/MCEJO Court action

Judge Seegobin’s punitive judgement made in the Pietermaritzburg High Court case against GET, Sabelo Dladla and the Mfolozi Community Environmental Justice Organisation (MCEJO) is on appeal. We are waiting for a date, probably in August, for our appeal to be heard. We are confident we will win, which opens the way for us to take our case to the Supreme Court in Bloemfontein, which we also anticipate winning.

A recent article in the Business Day confirms strong support from the highly respected Centre for Environmental Rights (CER) for our case. They see our application as setting an important precedent for the mining sector to comply with environmental requirements set out in the National Environmental Management Act (NEMA). Currently many mines in South Africa are operating without the necessary authorisations. 

Regarding the costs order, CER’s program head for mining, Catherine Horsfield, expressed grave concern that if this judgement is allowed to stand, it could have “a chilling effect” on civil society’s important watchdog role of bringing legal challenges that are in the public interest to the courts thereby defending our constitutional rights and protecting the environment. 

MCEJO Court Action 

At the same time, MCEJO is calling for a review of the dismissal of its appeal by Minister Gwede Mantashe, who approved the 222 km² mining right granted to Tendele mine in 2016 for 30 years. This matter will be heard in the Pretoria High Court. The date is still to be set.

The mining right incorporates the area north of Tendele’s current mining operations for the full length of HiP, as far north as Centenary gate. The initial application was for 34 km² and the specialist studies also cover this area, which amounts to less than 5% of the total area. The Minister deemed this and the consultation process adequate. Meanwhile none of the affected communities nor Interested and Affected Parties (IAPs) like MCEJO, GET, MACUA, WAMUA, Womin, groundWork, the Wilderness Leadership School, the Wilderness Action Group, WESSA, Wildlands or local tourism operators were informed about this application until GET’s attorney, Kirsten Youens, discovered the mining licence and brought it to everyone’s attention.

Fuleni and Ibutho Coal and Imvukuzane Resources 

On 1 May 2014, GET initiated the Save Our iMfolozi Wilderness (SOW) campaign to support the Fuleni community in its opposition to the proposed Ibutho Coal mine. Fuleni is a tribal reserve on the south-eastern boundary of the iMfolozi Wilderness Area, across the Mfolozi river from Somkhele. This area is held sacred by the Zulu people because it was where King Shaka grew up as a boy and incorporates the hunting grounds reserved for the Zulu Kings. 

After an intense three-year battle, Ibutho Coal seemed to disappear off the scene. Then, in June 2018, Imvukuzane Resources sent out notice that they had applied to prospect the Fuleni Reserve. This was met with a strong response from the IAPs and the Fuleni residents who are steadfast in their resolve not to allow mining on their land.  Nothing further has happened and after several months we discovered that Ibutho Coal is challenging the Department of Mineral Resources for rejecting their application on grounds that they cannot adequately mitigate the impacts their mine would have on the iMfolozi Wilderness area.

Effectively this means Imvukuzane’s application will have to wait until this matter has been resolved. One wonders how the Imvukuzane mine will be able to mitigate its impacts, which are likely to be similar.

Meanwhile a couple of interesting development projects are being initiated by Fuleni residents demonstrating that the people are taking control of their own future. There is a well-managed community goat breeding project that ensures the carrying capacity of allocated land is constantly monitored and not overstepped  Linked to this is fincluding a goat meat processing plant being established by a group of enterprising young women from the area.

So positive change is definitely taking place….proving Heraclitus correct. There is nothing permanent except change.

Call to Action:

Do you care about the Hluhluwe-iMfolozi Wilderness and do you want to make a difference?

Good news: YOU can!

You can donate funds here, if you like.

But wait: we have another way of being that difference. For instance, you can also organize a fun evening and ask your friends and family to donate to your crowdfunding evening; check for more info here.

See You in Court Shell!

FOE Netherlands submits legal summons in historic climate case against Shell.

The Hague, April 5, 2019 – Today Friends of the Earth Netherlands will deliver a court summons to Shell to legally compel the company to cease its destruction of the climate, on behalf of more than 30,000 people from 70 countries. A 236 pagecomplaint will be delivered to Shells International Headquarters in the Hague this afternoon by Friends of the Earth Netherlands, ActionAid NL, Both ENDS, FossielvrijNL, Greenpeace NL,YoungFriends of the Earth NL, Waddenverenigingand a group of 500 co-plaintiffs. 

Donald Pols, Director of Friends of the Earth Netherlands said, “Shell’s directors still do not want to say goodbye to oil and gas. They would pull the world into the abyss. The judge can prevent this from happening.”

In the court summons, Friends of the Earth Netherlands outlines why it is bringing this groundbreaking climate litigation case against Shell, highlighting the company’s early knowledge of climate change and its own role in causing it. Despite acknowledging that the fossil fuel industry has a responsibility to act on climate change, and claiming to “strongly support” the Paris Agreement, Shell continues to lobby against climate policy and to invest billions in further oil and gas extraction.

This is incompatible with global climate goals. 

The 2018 Intergovernmental Panel on Climate Change report, a key piece of evidence in this case, underlines the importance of limiting global warming to 1.5 degrees for the protection of ecosystems and human lives, and outlines the devastating and potentially irreversible impacts of any “extra bit of warming”.

The court summons proves that Shell’s current climate ambitions do not guarantee any emissions reductions, but would, in fact, contribute to a huge overshoot of 1.5 degrees of global warming. The plaintiffs argue that Shell is violating its duty of care and threatening human rights by knowingly undermining the world’s chances to stay below 1.5C.

In addition, the plaintiffs argue that Shell is violating Articles 2 and 8 of the European Convention on Human Rights: the right to life and the right to family life. In the historic Urgenda case against the Dutch state, the Dutch Appeals court created a precedent by ruling that a failure to achieve climate goals leads to human rights violations.

The court ordered the Dutch state to cut its greenhouse gas emissions by at least 25% by the end of 2020.

Roger Cox, who initially represented Urgenda, is now leading Friends of the Earth’s case against Shell. Roger said, “If successful, the uniqueness of the case would be that Shell, as one of the largest multinational corporations in the world would be legally obligated to change its business operations. We also expect that this would have an effect onother fossil fuel companies, raising the pressure on them to change.”

If successful, the court case would rule that Shell must reduce its CO2emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with Climate Paris Accord. This would have major implications, requiring Shell to move away from fossil fuels.  

Friends of the Earth International Climate Justice and Energy campaigner Sara Shaw said, “In leaked company documents from the 1990s Shell predicted that environmental organizations would start suing the company for causing climate change, if it did not listen to the warnings of its own scientists. Well, that day has come. This rising tide of climate litigation will finally call climate wrecking corporations like Shell to account and stop them in their tracks.”

Several lawsuits holding polluting companies to account for contributing to climate change exist globally. In 2016 a Peruvian farmer filed a lawsuit suing German coal company RWE for its contribution to glacier melt. In 2017 several American cities and states started climate cases against Shell, BP, ExxonMobil and Chevron. 

Media contacts:

Lowie Kok, Friends of the Earth Netherlands
 landline: +31 (0) 20 550 7333
 mobile: +31 (0) 63 4930173

Sara Shaw, Friends of the Earth International; +44 (0)7974 008 270; press@foei.org

For general media enquiries:

Amelia Collinspress; [at]foei.org; +447740979709

Last year Friends of the Earth Netherlands launched the climate case with a liability statement sent to Shell: 
 Legal letter to Shell Wednesday 4 April 2018
 https://www.foei.org/wp-content/uploads/2018/06/Milieudefensie_legal_letter_Shell_4-April-2018.pdf 

Shell’s response to legal letter 28 May 2018https://www.foei.org/wp-content/uploads/2018/06/Royal-Dutch-Shell-plc_legal_response_28-May-218.pdf 

Shell rejects climate demands forcing court action Press release: 29 May 2018
 https://www.foei.org/news/shell-climate-demands-court-action 

Shell faces historic legal action in the Netherlands for its failure to act on climate change. Press release 4 April 2018: https://www.foei.org/press/shell-legal-action-netherlands-climate-change
 

About Friends of the Earth International:

Friends of the Earth International is the world’s largest grassroots environmental network, uniting 75 national member groups and some two million members and supporters around the world.

We challenge the current model of economic and corporate globalisation, and promote solutions that will help to create environmentally sustainable and socially just societies: www.foei.org

At The Crowd Versus, we support Friends of the Earth International in their endeavors to bring this climate case. We will post their important updates in our News feed.

Canadian Supreme Court denies justice to Indigenous Ecuadorians

Filed in Environmental justice by Friends of the Earth on April 4, 2019

Picture credit: Tiputini River and rainforest, Yasuni National Park, Amazon, Ecuador. (Pete Oxford/Minden Pictures/Corbis); Read more at Smithsonianmag.com.

On April 4th 2019, the Supreme Court of Canada dismissed the appeal in the historic case of the Indigenous people of Ecuador versus Chevron, which has become known as the “Amazonian Chernobyl” due to its devastating impact on the region.

The Ecuadorian plaintiffs seek to enforce a judgment by Ecuador’s highest court ordering Chevron to pay more than $9.5 billion dollars for clean-up of the pollution  caused by deliberately negligent operation of oil fields.

Canadian court rulings

The ruling represents a step backward for the Union of People Affected by Chevron-Texaco (UDAPT) of Ecuador and victims of corporate crimes around the world. The Supreme Court of Canada could have adopted an innovative forward-looking approach with respect to corporate responsibility, justice and equity by ensuring Indigenous communities have access to justice and reparations.

By denying the appeal, the Supreme court chose to continue with the interpretation of the current laws which favour corporate impunity.

“It’s regrettable that legal technicalities and the lack of money pose obstacles to access to justice for people who are victims of corporate crimes. In spite of the decision in Canada, our quest for justice will continue,  and we will initiate legal proceedings in other countries,” said Willian Lucitante, Coordinator of UDAPT.

The Supreme Court of Canada previously recognized this lawsuit as public interest litigation. But the judges of the Ontario lower court declared that “[t]here is a difference between economic reality and legal reality”, so the laws in force should not be modified.

If the laws are changed, the Ecuadorian lawsuit could affect Canadian companies and force them to prioritize human rights above their business interests.

Pablo Fajardo, the lawyer for the Indigenous people and peasants affected by Chevron said “It is regrettable that, once again, a country demonstrates that justice is structured to protect and guarantee impunity for transnational corporations. The Supreme Court of Canada did not get a chance to hear the merits of the Ecuadorian case and only resolved not to accept the appeal. Our lawyers did not get the opportunity to explain the ramifications of Chevron’s legal structure, which protects it from lawsuits by those impacted by their negligent operations. This is a disastrous precedent for social struggles, for rights and justice”.

Seeking justice for over 25 years

The communities’ lawsuit for justice and reparation has been advancing through the courts for over 25 years. This trial has become an emblematic demonstration of impunity that allows transnational corporations to suffer no consequences when they violate Indigenous and human rights. 

UDAPT organization and background

The UDAPT is a grassroots organization made up of six Indigenous Nations and more than 80 peasant communities, representing over 30,000 people affected by the oil company Texaco and their irresponsible activities in the Ecuadorian Amazon. Texaco, acquired by Chevron in 2001, contaminated more than 450.000 hectares of virgin forest (that is more than 650,000 soccer fields!).

The oil company dumped crude oil, toxic waters and polluting gases that affected ecosystems, the population’s health and cultural systems, security and food sovereignty, which increased poverty and exclusion.

This contamination has had a serious impact on the health of the UDAPT community; causing the highest rates of childhood leukemia in Ecuador. Cancer deaths are one hundred and thirty percent more frequent and the mortality risk is two hundred and sixty percent higher than in other parts of Ecuador. Cancer accounts for thirty two percent of total deaths, 3 times more than the national average.

On top of these challenges, Chevron uses all means to obstruct the communities’ access to justice while  the contamination of the soil and rivers of the Ecuadorian Amazon continues. Every year people die without hope of reparation for future generations.

Working at binding treaty at United Nations level

During the past years, UDAPT along with hundreds of non-profit organizations that stand for human rights has joined with international efforts, whose aim  is to lobby for the creation of a binding treaty on transnational corporations and human rights at the United Nations.

The emblematic battle of the Ecuadorians against Chevron has unveiled the structure of impunity that allows transnational corporations to get away with gross human rights violations and environmental damage.

For additional comments by Willian Lucitante, check the website of texacotoxico.net.

The Crowd Versus will continue to crowdfund for their legal needs

The Crowd Versus will continue to seek donations and crowdfund for this very important case. The indigenous peoples and Ecuadorian people stand at the front line of the defense against climate pollution by irresponsible governments and corporations.

The UDAPT have a judgment and they seek enforcement to achieve justice.

We believe they will prevail.

If you do, too, then show your faith here or become active on their behalf here.

Multi-Award Winning Documentary Highlights the Mining Threat to iMfolozi: Sisters of the Wilderness

THIS SOCIAL IMPACT DOCUMENTARY ‘SISTERS OF THE WILDERNESS’ WON BEST SOUTH AFRICAN FEATURE DOCUMENTARY AT THE DURBAN INTERNATIONAL FILM FESTIVAL AND QUALIFIES FOR THE OSCARS.

The film is mostly set in the iMfolozi wilderness area, within the oldest proclaimed game reserve in Africa and one of the fast disappearing pockets of wilderness where wild nature can be experienced at its purest form.

Since time immemorial this sanctuary has maintained its raw wildness. Here an ageless spirit survives and one can sense a spiritual connection to the land. The iMfolozi valley was the heartland of the Zulu people who lived here in harmony with nature and with great respect (inhlonipho) to Mother Earth and all creation.

This wilderness acts as the main character in the film. Into this wilderness a group of young Zulu women enters on a life-changing journey to experience true wild nature for the first time in their lives.

The young women, mostly from townships and semi-rural communities, aspire to elevate themselves beyond challenging life conditions. They have an interest in nature and a spark of leadership but they lack the opportunity to experience wild nature in their impoverished lives. Accompanied by veteran female wilderness guides, they camp under the stars in big game country, totally surrounded by wild animals such as elephants, rhinos and lions. Exposed to the elements and carrying on their back all they need for the journey, they have to cope with emotional and physical challenges, and learn what it takes to survive in the wild.

A wilderness journey is an intense experience where one can expect to undergo personal transformation. It can enhance personal growth and leadership development; and it is also a soulful experience that has the capacity to heal. The solitary night watch where one is responsible for the entire camp, the solitude contemplation sessions and the possible close encounters with wild animals like a charging rhino, an elephant ambling next to the camp at night, the yellow eyes of a wild cat in the dark of the night, all contribute to enhance one’s sense of connection to nature and encourage self-introspection.

The latter especially occurs whilst one sits around the campfire, listening to the lively Zululand wilderness night, hearing the cough of the leopard, the cry of the hyena or the roar of the lion.

Mentoring the women and initiating them into the wilderness is, KwaMashu born, Lihle Mbokazi, the first black South African woman wilderness guide. Lihle is also deeply interested in reviving indigenous knowledge systems and share the wisdom of the old days with the young women. Along with Lihle we also see Janet and Zondi, the lead wilderness guides, who share nature wisdom with the women.

Long periods of Nature’s ambient sounds help the audience to connect with wilderness and when interweaved with the soulful music of film composer, Ian Arber, transports one into the same inner world of connectivity that nature takes one on.

Link to SistersOfTheWilderness.com for a short trailer.

Despite the tranquil setting, the iMfolozi wilderness is now severely threatened.

An existing open-cast coal mine on the Eastern border of the wilderness is expanding regardless of its devastating impact on the surrounding rural communities and their livestock.

Additionally, a proposed coal mine just 40 metres from the park’s southern boundary threatens to devastate even further this fragile nature gem and the communities.

The park is home to incredibly important populations of both white and black rhino. It is renowned worldwide for being the historical home of the Southern White Rhino, following the successful ‘Operation Rhino’ in the 1960’s driven largely by the park’s then-warden, Ian Player.

Dr. Player’s efforts brought the rhinos back from the brink of extinction. The park now has the largest population of Southern White Rhino in the world.

The success of this program has recently been compromised by a gruesome increase in rhino poaching within the park. This critical threat has not only become a great concern for the park, but for rhino conservationists worldwide.

Link to SaveOurWilderness.org for additional blogs and information about Dr. Player.

Call to action:

At THE CROWD VERSUS we can also use your help. We crowdfund for the litigation pending to stop the permitting of open cast coal mining, or the expansion of older, already present mines (Tendele).

We have several options to create the level of your involvement. You can donate or become personally involved by writing a blog, taking photographs, or entertaining friends with a dinner at home.

We look forward to seeing your ideas!

English and Spanish Video Published about Chevron Vs Ecuador Case

29 February 2019, from Proche d’Amazonie

In February of 2011 the Ecuadorian Courts delivered an historic verdict, sentencing the Big Oil Corporation Chevron-Texaco to pay US$9,500 million dollars for its contamination of the Ecuadorian Amazon (1964-1992).

However, Chevron hit back via the Investor-State Dispute Settlement system (ISDS) and sued Ecuador in the Permanent Court of Arbitration (PCA) based in The Hague, Netherlands. The corporation accused Ecuador of having violated Bilateral Investment Treaties (BITs) it had signed with the US.

In August of 2018, a private arbitration panel for the CPA ruled in favour of Chevron, ordering Ecuador to overturn the sentence it had passed in favour of the affected. At the heart of the matter is an illegal, unconstitutional and inapplicable judgement that contravenes international public order.

Pablo Fajardo and Justino Piaguaje, lawyer and representative of the Union of those affected by the Chevron-Texaco (UDAPT) respectively, explain how this ruling violates Ecuadorian sovereignty and constitutes a major case of corporate impunity that risks setting dangerous precedents for the defence of the natural world and of collective human rights.

From Proche d’Amazonie: http://proche-amazonie.net/fc/viewtopic.php?t=1216&at_id=1216

Call to Action:

If you wish to donate to this case, please use this link. In order to help the Ecuadorian UDAPT group with organizing your own event, try this link for ideas.

Environmental Watchdog Challenges Recent South Africa Ruling

29 March 2019; Published by Tony Carnie

An environmental watchdog has challenged a legal decision by a Pietermaritzburg high court judge, fearing that his ruling will encourage mining companies to disregard the country’s environmental protection laws.

The challenge has been mounted by the Cape Town-based Centre for Environmental Rights, after judge Rishi Seegobin dismissed an application in October to shut down the Somkhele coal mine — owned by Johannesburg-based Tendele Mining — on the periphery of the flagship Hluhluwe-Imfolozi Game Reserve in KwaZulu-Natal.

The centre has lodged an application to intervene as an amicus curiae (friend of the court) in an application for leave to appeal against Seegobin’s ruling.

The centre, represented by attorney Catherine Horsfield, said it was concerned that the ruling “may open the door” to companies disregarding environmental safeguards in the constitution.

The centre believes the Tendele verdict has broad national implications and could have a “profound influence” on the ability of government inspectors to monitor and enforce environmental laws in mining areas.

It could also provide “an excuse” for companies to operate outside the law and to strip legal powers from government enforcement officers.

The ruling may open the door to companies disregarding environmental safeguards …

The centre also said the judge’s punitive costs order against two community-based environmental groups would have a “chilling” legal effect that could cow other vulnerable people from mounting public-interest litigation against powerful mining companies.

In 2018, the Global Environmental Trust, the Mfolozi Community Environmental Justice Organisation and local resident Sabelo Dladla launched an interdict application against mine owners Tendele Mining, arguing that the mine was operating illegally.

Represented by attorney Kirsten Youens, they submitted that the Somkhele mine was operating with no environmental authorisation, no municipal planning approval, no waste disposal licence and no permits to shift ancestral graves.

Dladla also alleged in court papers that several homestead structures were cracking because of daily dynamite blasting at the open-pit coal mine, and several of his livestock had died or disappeared after wandering into mining land that had not been fenced off adequately.

Life had changed forever, said Dladla, with many local residents forced to leave their land and homes to make way for mining. They had lost access to grazing for cattle and other natural resources, and were also worried about the risks to their health from polluted air and water.

The mine painted a different story in court papers, denying that its operations were unlawful and arguing that nearly 1,000 mineworkers would lose their jobs if the mine was forced to close.

Seegobin threw out the application, noting that there had been a number of amendments to mining and environmental laws that took effect in 2014. He said these changes to the law also contained transitional provisions which permitted companies to continue existing operations without obtaining fresh environmental authorisation for listed activities.

If the amended laws did not contain these transitional provisions, said Seegobin, previously lawful mining operations would have been rendered illegal, overnight. “This would have been an unreasonable, insensible and un-businesslike result,” he commented.

Seegobin also suggested that senior officials of the departments of mineral resources and environmental affairs would have intervened against Tendele if they believed the mine was operating unlawfully or causing significant pollution or environmental damage.

Horsfield said the centre recognised that judges had discretion to award cost orders, but the National Environmental Management Act included a clause intended to protect people who sought assistance from the court, provided that they were acting reasonably, in the public interest or in the interests of the environment.

During a landmark public interest case involving the Biowatch Trust and the multinational group Monsanto, the Constitutional Court had reaffirmed the principle of not punishing unsuccessful litigants with crippling legal costs, provided their cases were not “frivolous, vexatious or manifestly inappropriate”.

Horsfield also attacked Seegobin’s assertion that government officials would have taken action against Tendele if they believed the company was contravening environmental obligations. There was no basis to assume that government officials were satisfied with, or had even considered the issues taking place at Somkhele mine.

Seegobin’s approach seemed “tantamount to introducing a standard of deference to functionaries” in the mining and environment departments that was not supported by law.

Responding in court papers, Tendele CEO Jan du Preez said his company did not agree with the legal arguments opposing Seegobin’s main ruling, but would not object to the centre being admitted as a friend of the court — provided it did not try to introduce new evidence.

Du Preez said his company would abandon all claims to the money awarded to it by Seegobin for legal costs.

“I hereby confirm that Tendele unconditionally abandons the costs order granted in its favour by this court…. The issue of the costs order granted in Tendele’s favour need accordingly not feature either in the amicus application, or in the application for leave to appeal,” the company said.

Seegobin has yet to make a ruling on whether he will grant leave to appeal.

This article also appeared in Business DayTimes Select on 28 March, 2019; and in SaveOurWilderness.org on 29 March 2019.

Chevron vs Ecuador: International Arbitration and Corporate Impunity

The infamous story of the environmental pollution of the Ecuadorian Amazon by Chevron-Texaco – which has come to be known as the “Amazonian Chernobyl” – is entering a new phase.

By Aldo Orellana López; Originally published 27 March 2019 in OpenDemocracy.net

Photograph information: Former Pink Floyd front-man and activist Roger Waters shows his support for the affected communities in the Chevron-Texaco case, Quito, Ecuador, October 20, 2018. Photo by: Franklin J�come/PRESSOUTH/NurPhoto/Sipa USA. PA Images. All rights reserved.

Eight years ago, in February 2011, the Sucumbíos provincial court issued a historic ruling in the case known as Lago Agrio against the Chevron-Texaco oil company, sentencing it to pay 9,500 million dollars for polluting the Amazon during its operations there between 1964 and 1992. Since then, however, the Ecuadorian justice system has been unable to enforce the sentence.

What is more, it is now the Ecuadorian government that, as a result of an international lawsuit filed by Chevron under the global system of investment protection, should be paying the company a multimillion-dollar compensation. The arbitration tribunal that admitted the lawsuit and has rendered the award in favor of the company has also ordered Ecuador to annul the sentence of the Sucumbíos court, which it considers unlawful.

In view of this situation, the Union of the People Affected by Texaco-Chevron Operations (UDAPT) in Ecuador – plaintiff in the Lago Agrio case – has denounced the decision of the arbitration panel, accusing it of overriding the rights of the affected communities by imposing the corporation’s right to profits. The Union has warned that if the decision of the arbitrators is implemented, this will set a very dangerous precedent for the global fight to protect the environment and defend human rights.

The Chevron case in Ecuador, along with other environmental and social crimes involving multinational corporations – from the recent breakdown of the toxic mining waste dams of the Vale and BHP corporations in Brazil, to the repression and criminalization of communities and even the murder of environmental defenders, such as the still unsolved murder case of Berta Cáceres in Honduras -, highlights the need for a legally binding international instrument to put an end to the impunity with which the companies operate, and to offer adequate guarantees to the communities that are resisting and protecting the land.

This instrument should make it possible to take companies before international courts and have them respond for their crimes, and also ensure the affected communities effective access to justice and reparation.

The Ecuadorian David and Goliath

According to Pablo Fajardo, a lawyer working for UDAPT, “Chevron operated in the Ecuadorian Amazon with the aim of obtaining the largest possible economic return for the company”. To achieve this goal, it used obsolete techniques and was fully aware of the pollution it was causing. The UDAPT affirm that the company disposed of nearly 650.000 barrels of crude oil and more than 16 billion gallons of wastewater in the rivers and soils of the Amazonian jungle, affecting the health and lifestyles of more than 30.000 indigenous people and peasants in different communities.

Other practices Chevron indulged in include open-air burning of gases and the spilling of oil onto roads – according to them, in order to prevent the raising of dust. The UDAPT lawyer points out that, up to now, at least “2,000 people have died from cancer due to toxins and polluted water and air”.

The Chevron case in Ecuador highlights the need for a legally binding international instrument to put an end to the impunity with which companies operate, and to offer adequate guarantees to the communities that are resisting and protecting the land.

Texaco, which was taken over by Chevron in 2001, arrived in Ecuador in 1964 to drill for oil in the northern Ecuadorian Amazon, specifically in the provinces of Sucumbíos and Orellana. This is a high biodiversity area which is home to dozens of indigenous and peasant communities.

Justino Piaguaje, the president of the Siekopai Original Nation and a spokesperson for the UDAPT, explains that “finding oil was synonymous with wealth. It was thought that all of the country’s financial and social problems were going to get solved – but not so for the native peoples. The problem of pollution started, the rivers got polluted and our land shrank”.

Texaco finished its operations in Ecuador in 1992 and left the country. By then, the impact of almost 3 decades of irresponsible exploitation was all too obvious. Shortly after, 6 indigenous nations and more than 80 affected peasant communities founded UDAPT. Its aim, from the start, has been to seek environmental remediation and reparations for the damages caused by the oil company in the jungle and to hold it accountable for its actions.

To this end, it filed a lawsuit against Texaco in the US in 1993. However, at the request of the company, the suit was transferred to Ecuador and the hearings of what became known as the Lago Agrio case were held at the local Sucumbíos provincial court. Finally, on February 11, 2011, after a litigation that lasted nearly two decades, the Sucumbíos court ruled in favor of the UDAPT and sentenced Chevron-Texaco to pay a 9,5 billions dollar fine to compensate for the harm incurred.

Chevron filed an appeal, but the ruling was ratified by all the judicial instances in Ecuador – including the National Court of Justice and the Constitutional Court, the highest court in the country. As Pablo Fajardo explains, the Constitutional Court’s ruling of July 2018 recognized that “many rights of indigenous peoples and peasants had been violated by the company”, which is something that the UDAPT had been claiming all along – for over 18 years.

Thus came to an end one of the most prominent lawsuits in recent decades: one in which an indigenous and peasant organization brought to court and won a lawsuit against one of the largest multinational corporations in the world – the revenue of which in 2018 exceeded 150 billion dollars, almost twice the GDP of Ecuador.

According to Pablo Fajardo, Chevron’s defense framework during the litigation involved some 2.000 lawyers from more than 60 legal firms and its defense expenses amounted to 250 million dollars per year. Despite all of this, the UDAPT won. “For reason is in our side”, says Fajardo.

However, as soon as this great challenge ended, another one began: that of carrying out the courts’ decision. And this has turned out to be a much tougher path to tread because, over the years, Chevron has not only tried to sabotage the legal process against it, but has taken action to shield itself and protect its assets.

Chevron’s strategies to sabotage the trial

The UDAPT point out that, throughout the process, Chevron carried out a number of actions to try and sabotage it – from political pressure to threatening international legal proceedings. This “strategy of fear” was adopted in order to isolate Ecuador from its international allies, and was reinforced by an aggressive media campaign to discredit the Ecuadorian courts and the UDAPT defense team.

“According to Chevron, the indigenous people, the peasants and their lawyers had unlawfully associated themselves to extort money from the company. And the company took legal actions in that line. That is, the company pictured itself as the victim and the indigenous people and the peasants as the criminals”, Fajardo explains.

In a global and regional scenario where socio-environmental conflicts are multiplying, not only are multinational corporations – who are now playing the role of the victim – active in generating conflicts, but they are also involved in criminalizing and even eliminating environment activists and defenders of the land – no less than 207 in 2017.

“The company pictured itself as the victim and the indigenous people and the peasants as the criminals”.

The UDAPT lawyer explains that when Chevron realized that the communities would continue to push their demand until the very end, it began to withdraw all its assets from the country. “The only thing it left behind was a bank account with 350 dollars in it and nothing else”.

Faced with the impossibility of enforcing the ruling in Ecuador, the UDAPT tried unsuccessfully to get other countries where Chevron owns assets that could be seized to ratify it – Argentina, Brazil, Canada and even the United States. But authorities in these countries rejected this possibility arguing, among other things, that the matter involved in fact different companies: “You cannot charge Chevron Argentina or Chevron Brasil with a debt incurred by Chevron Corporation, which is a different company”, they said.

The problem is that “Chevron Corporation does not own assets in its name almost anywhere in the world”, says Fajardo. In his view, “the legal structure that these companies have been building through auxiliary enterprises and holding companies is simply a structure to evade their responsibility and, in this case, to evade justice” – which is undeniably an adverse scenario for the UDAPT.

Chevron’s lawsuit against Ecuador

During the UDAPT trial, not only did Chevron withdraw all its assets from Ecuador, but it also sued the country in international courts with the aim of sabotaging the trial and seeking financial compensation. In 2009, the company resorted to the Investor-State Difference Arbitration System (ISDS) and sued Ecuador in the Permanent Court of Arbitration (CPA) in The Hague claiming that it had violated the 1993 Bilateral Investment Treaty (BIT) between Ecuador and United States.

The company accused Ecuador of “denial of justice”. Finally, on August 31, 2018, almost 10 years later, a CPA arbitration panel issued an award in favor of the company ordering Ecuador to annul the decision of the Sucumbíos court and ruling, in addition, that the Ecuadorian State should pay Chevron a compensation amount – still to be determined – for the alleged economic and moral damages that it had caused.

This is not the first time that Chevron has sued Ecuador in international courts. It had previously tried to accuse it of polluting, and had even successfully filed once an appeal before the CPA.

However, the problem now is that the 2018 award by the arbitration panel clashes head-on with the decision of the Lago Agrio case in favor of the UDAPT. How can this be? The key is to be found in some agreements that the company had signed with the Ecuadorian governments between 1995 and 1998 which include a contract freeing the company from obligations, financial or otherwise.

Chevron had left the country in 1992. However, it came back in 1995 seeking an agreement that it finally got signed in 1998. According to Adoración Guamán, an expert lawyer for the Campaign to Dismantle Corporate Power – an international coalition grouping more than 200 organizations – the government then and the company signed a “contract for the undertaking of environmental repair work and the freeing of obligations”.

It is a document by which the government frees Texaco from any responsibility “forever”. This is the contract that Chevron used to sue Ecuador in the CPA in 2009 and that not only allowed it to disclaim responsibility for polluting the Amazon, but also helped it to seek economic compensation for having been sued.

Adoración Guamán points out that Chevron’s lawsuit kept on mutating as the lawsuit of the people affected in the Lago Agrio case followed its course and progressed. At the beginning, the company argued that the government of Ecuador, by allowing the UDAPT to take legal action, was in breach of the 1998 agreement – thereby incurring in denial of justice.

But when the ruling in favor of those affected became known, the company changed its line of argument and “accused the victims of having bribed the judges responsible for the decision”. The company claimed that there existed “a plot between the government and the victims to get compensation”.

Guamán says that “the arbitration panel considered that this had been proven” and, on this basis, it ordered Ecuador to annul the sentence and to take measures to prevent it from being executed in other parts of the world – and thus ordered the government of Ecuador to communicate to all the countries where Chevron owns assets that the “Ecuadorian judicial power had committed an illegality.”

Pablo Fajardo maintains that this is “tremendously arbitrary and illegal” and asks: “What is the point of a country’s law if legal decisions can be suspended by decisions of international authorities in processes which the citizens of this country do not have access to?”

Attacking the sovereignty of Ecuador

Chevron’s lawsuit in the CPA was questioned from the very beginning by the UDAPT and its allies. In the first place, as Pablo Fajardo points out, because “the Bilateral Treaty of Investment Protection was applied retroactively – something that is illegal and illegitimate”.

He specifies that Chevron left the country in 1992 and that the BIT between Ecuador and the United States was signed in 1993 and only entered into force in 1997. Despite this, the CPA admitted the claim on the grounds that when Texaco went back to Ecuador in 1995 it supposedly carried out “repair activities which involved investments”.

“So, what legal guarantee, if any, do the victims of corporate crimes have? None whatsoever. Economic power is being imposed and companies are buying impunity”.

Second, Fajardo notes, “the CPA panel has no competence, no legal capacity to order an independent and sovereign State to annul a final criminal sentence ordered by a court under Ecuador’s legal system”. What the CPA panel has done, in fact, is “ordering the Ecuadorian State to violate its own constitution, to break the separation of powers between the executive branch of government and the judiciary, and to get the Executive to interfere in judicial matters in order to have the sentence annulled”.

These are the reasons why the CPA award is, according to him, absolutely inapplicable. Hence, “the judgment of the Lago Agrio case cannot be annulled because there is no legal provision to do so, and therefore is fully valid”, he says.

Those affected say that the CPA award flagrantly violates their rights, because the 1998 BIT contract binds the government but not the UDAPT. In addition, they argue, the Lago Agrio case is a private trial, in which the government did not intervene – therefore, Fajardo points out, the CPA “is affecting the rights of third parties” in the trial.

The UDAPT reasons that the outcome of this case should be of concern not only to those affected and to Ecuador, but also to all the people the world over who are involved in fighting to defend the environment and human rights.

“It affects and violates the sovereignty of States, which is important as a legal precedent”, says Fajardo, and he insists that “if this arbitration award is allowed to go ahead, it could be applied to other States, where national courts of justice will lose the capacity to administer justice before transnational corporations. So, what legal guarantee, if any, do the victims of corporate crimes have? None whatsoever. Economic power is being imposed and companies are buying impunity”, he concludes.

Binding Treaty: an instrument to end corporate impunity

The Chevron case is yet another eloquent example of the impunity with which multinational corporations operate globally. It reinforces the need for an international instrument to put an end to it.

International allies point out that this case highlights the need for mechanisms which not only recognize the obligations that companies have, but also offer adequate guarantees to communities for accessing reparation and justice mechanisms.

At the same time, it shows how multinational corporations are using the international investment protection mechanism to undermine the sovereignty of countries and challenge the decisions of national courts of justice. The global investment system imposes corporate profit over and above respect for human rights and the environment. As Adoración Guamán says, we do need an instrument to change this state of affairs and “give primacy to human rights over trade and investment norms”.

“Justice as such does not exist, especially when the criminal is a transnational corporation and the victims are indigenous peoples, peasants, or nature”.

Experts also question the lack of effectiveness of human rights systems to enforce their mandates. While multinational corporations benefit from international mechanisms to protect investments which are mandatory, compliance with mandates for the protection of human rights and the environment tend to be voluntary or lack the necessary mechanisms to enforce them. “There is a huge legal vacuum here and a binding treaty is absolutely necessary”, says Fajardo.

This is precisely the aim of the Binding Treaty on Transnational Corporations and Human Rights that is currently being promoted within the framework of the United Nations (UN) by international organizations and the Global Campaign to Dismantle Corporate Power – of which the UDAPT is part.

The Campaign has denounced the Chevron case, stating that “three private arbitrators, responding to commercial interests, are throwing out of the window a just claim and undoing 20 years of work by a broad set of plaintiffs”. It declares that the arbitration system “establishes a commercial law which sets as its priority the protection of capital profits over the right to life”.

Adoración Guamán says that the Chevron case has become the banner of the fight for a Binding Treaty. She warns that as long as multinational corporations like Chevron are not afraid of justice and do not see an effective mechanism in place that can put them on trial, sentence them and force them to pay “they will not respect human rights”.

“To Chevron, it is a matter of money and prestige. To the people affected, it is a matter of life”, says Fajardo. What Chevron did “was no accident. It was an intentional crime committed during 26 consecutive years”.

However, despite all the evidence and a due process with a final sentence against it, Chevron is not paying for its crimes. “Justice as such does not exist, especially when the criminal is a transnational corporation and the victims are indigenous peoples, peasants, or nature”, he says.

Fajardo insists that the UDAPT will continue to seek justice with the aim not only of getting Chevron to repair the damage it has caused in the Ecuadorian Amazon but, more importantly, of “setting a precedent, so that this type of crime will not be repeated in any other place in the world”.

A Blog Looking Back at the Cooperation of The Crowd and the Bees

25 March 2019

By Andrea Carta, Greenpeace EU Senior Legal Strategist

My collaboration with “The Crowd Versus” began in September 2016. At that time, I was providing EU law expertise to Greenpeace International, who had intervened in a case that Bayer and Syngenta had started against the EU Commission: the two agrochemical companies were trying to annul a regulation that prohibited the use of three active substances for pesticides (neonicotinoids), which the Commission found to be harmful for bees. 

Together with other NGOs engaging in the protection of bees and pollinators (Bee-Life.eu, Bugslife.org, and Pesticides Action Network-Europe), we decided to intervene in the proceedings in support of the Commission’s ban.

The Crowd Versus made their platform available for a fundraising campaign, to help us pay the costs of the court intervention and to provide communication opportunities around the case. 

Getting the fundraising campaign started was a relatively easy process. The Crowd Versus uses a simple and transparent standard agreement and it provides the parties with all the basic information to develop the crowdfunding page. At the design stage, requests for input on Greenpeace’s side were minimal, and limited to a short description of the legal case and to some pictures. 

The Crowd Versus produced a dedicated webpage and a video. It also took care of the launch of the crowdfunding via social media like Facebook and Twitter. Communication was regular and all the adjustments that proved necessary (text, timeline and target) were made practically in real time. 

On 29 September 2016 we were online and the campaign ended on 15 February 2017 with € 1.680 and 85 individual donors, most of which from the Netherlands, where The Crowd Versus is based.

Considering that we were practically running a pilot, and that The Crowd Versus was mainly counting on its own audience, I think the result of this short campaign was encouraging, even if it did not reach the target that we had initially set. 

What could have we done differently to achieve the target?

Based on my experience with the bees’ case, I think that, beyond a thorough preparation, communication is the factor that can determine the success of a crowdfunding campaign. Here are my two advices:

Communicate frequently and widely around the case

This should be easier for grassroots organisations, whose main focus is on one legal cases (or a small number of them), than for large organisations like Greenpeace, who have many campaigns and initiatives running at the same time. 

Find a way to make (administrative) law appealing

Administrative law is already boring for law students. Don’t expect it to be entertaining for the public unless you put some serious work on it!

Beyond a doubt, our case was important from both the legal and the environmental perspective. However, mobilising supporters was very difficult, given that cases before the EU Court of Justice are very slow, very technical and very quiet. 

With a well-designed and planned communication strategy, a crowdfunding campaign can bring, in addition to the monies that are necessary to run a legal case, a valuable opportunity to mobilise around it and turn a lawsuit into a real campaign.

BIO

Andrea Carta works as Senior Legal Strategist for the European Unit of Greenpeace, where he advices on a broad range of EU environmental law issues, including pesticides, GMOs, energy, access to justice, illegal timber imports and trade policy.

Chevron vs. Ecuador: International Arbitration & Impunity (ISDS case)

21 March 2019; Posted by Pancho Lopez and published at Blogspot

In February of 2011, the Ecuadorian Courts delivered a historic verdict, sentencing the Big Oil Corporation Chevron-Texaco to pay US $9,500 million dollars for its contamination of the Ecuadorian Amazon (1964-1992).

However, Chevron hit back via the Investor-State Dispute Settlement system (ISDS) and sued Ecuador in the Permanent Court of Arbitration (PCA) based in the Hague. The corporation accused Ecuador of having violated Bilateral Investment Treaties (BITs) it had signed with the US.

In August of 2018, a private arbitration panel for the CPA ruled in favour of Chevron, ordering Ecuador to overturn the sentence it had passed in favour of the affected.

At the heart of the matter is an illegal, unconstitutional and inapplicable judgement that contravenes international public order.

Pablo Fajardo and Justino Piaguaje, lawyer and representative of the Union of those affected by the Chevron-Texaco (UDAPT) respectively, explain how this ruling violates Ecuadorian sovereignty and constitutes a major case of corporate impunity that risks setting dangerous precedents for the defence of the natural world and of collective human rights.

Labels: Ecuador vs Chevron Imperialist Justice – Just Us ISDS Private Transnational Arbitration Courts Trampling On Rights of People & Weaker States Utter Pollution Above National Laws