CEDHU rejects the implementation of this extractivistic model that has affected territories with high biodiversity, violating individual and collective rights, and that has exacerbated levels of violence.
The implementation of the Mirador project has led to the dispossession of ancestral territories, pollution, displacement, forced evictions and deaths, causing a serious socio-environmental conflict and criminalizing human rights and nature defenders. In the report prepared by social organizations for the Universal Periodic Review (UPR) of the United Nations in November 2018, 32 evictions of families are registered, representing 136 affected people, of which 52 are children and adolescents, 12 elderly people and 58 adults.
The Mirador project is located in Tundayme, Zamora Chinchipe, in the Cordillera del Condor, one of the most diverse and fragile ecosystems in the world, according to studies that would affect 227 water sources. It is the first large-scale copper, silver and gold project to enter the exploitation phase in the country and one of the most conflictive. The intervention in the zone of influence has been violent, with the participation of dozens of police and private security guards from the company Ecuacorriente ECSA.
In the future, in the 30 years of operating life of the mine and that the State has guaranteed its renewal for the same period, there will be the removal of millions of tons of soil, chemical elements and the use of millions of cubic meters of fresh water, which will also be polluted. The cost of large-scale mining for the country will be high, prioritizing an economic gain in the medium term putting at risk the very lives of human beings who in turn depend on mother earth to survive. We are witnessing vast expanses of land in neighboring countries turned into desert by mining.
The Ecumenical Commission on Human Rights – CEDHU rejects the surrender of our natural resources for the benefit of transnational capital and the implementation of this extractive model that has affected territories with high biodiversity, violating individual and collective rights, and has exacerbated levels of violence.
We call on the authorities and government institutions to take into account the voice of the affected communities, populations and people, to respect the right to prior and popular consultation, and not to implement this extractivist model in an arbitrary, violent manner without the legitimacy of the affected sectors.
Local people seek justice through the courts over forced evictions and lack of consultation at Mirador copper mine
Ever since more than 30 indigenous households were forcibly evicted by police and security personnel between September and December 2015, the River Quimi valley in the middle of the Ecuadorean Amazon has not had a moment’s peace.
Today, where these Shuar and Cañari-Kichwa families once lived, there gapes the gigantic open pit of the Mirador mine. The River Quimi descends from the Cordillera del Condor, a small mountain range in Zamora-Chinchipe province. The government hopes that copper extraction will begin there by the end of this year.
Mirador is the largest mine in Ecuador’s history and one of President Lenín Moreno’s “strategic” projects in a nationwide mining drive. Yet its future is uncertain in the face of a conflict between Chinese company Ecuacorriente and the villlagers of Tundayme, who are intent on recovering what they consider ancestral lands.
The backdrop is a corner of the country that scientists and biologists consider a “lost world” of immense natural wealth.
No one in the Condor can agree on whether Rosario Wari Ampush reached 95, 107 or, improbably, 120 years old. However, all are certain she was the first in her family to die outside her home.
Two years before her death in July 2018, Wari Ampush and her son, who are indigenous Shuar, lost their ancestral home.
“They burned house. Grandparents built years ago. We were growing up and living there. They died there and left to us,” Rosario’s 64-year-old son Mariano Mashendo recounts in a broken Spanish almost devoid of articles. “You born here like trees, and age and die like them. Now, we don’t know what will happen with mining company. I am last of the family.”
Mashendo tells his story from a humble wooden hut, from where can be seen the blue roof of a mining camp occupying the spot where his home once was.
At least 32 families, some 126 people, lost their homes due to evictions which the community and NGOs described as violent. The process was similar each time. Officials arrived at dawn ordering them to hand over their land and saying a cheque for compensation awaited them at the office of mining regulator Arcom.
They were given five minutes to leave. Their houses were demolished, the rubble buried in front of them.
“We filed two suits for cattle raiding, as they took 120 head of cattle and we recovered only 48, but they haven’t acknowledged liability… There has been no response from the government,” says Luis Sánchez Shiminaycela, a prominent community leader who identifies as indigenous Cañari-Kichwa.
Sánchez’s wife, daughter, parents, two brothers, their wives and five children lived in two seized houses on the banks of the Tundayme River.
At the heart of the conflict is a legal designation known as “mining easement”, which enables the government to identify property as necessary for a development project. Instead of expropriating it, the government can mandate it’s rental for up to three decades. In return, landowners receive compensation.
“Even though people may say they don’t want to, or don’t understand the procedure, it doesn’t matter,” says attorney Francis Andrade of the Pan-Amazonian Ecclesial Network (Repam), a Catholic organisation.
Some victims were even Ecuacorriente employees at the time of eviction.
“They knocked my house down and caused me a great deal of pain, emotionally and psychologically. My parents lost their lives trying to leave us something and this company has left us with nothing,” says William Uyaguari, who worked for seven years loading drilling machinery for the mine. Uyaguari says he was fired after suing the company over the eviction.
Like others, Mashendo, Sánchez and Uyaguari rejected earlier purchase offers and, outraged by the eviction, decided not to claim compensation. Instead, they are challenging the mine in the province of Zamora Chinchipe as members of the Amazonian Community of the Cóndor Mirador Mountain Range (Cascomi), which unites indigenous Shuar, Kichwa and peasant families.
No houses remained on the eastern bank of the Quimi River, between the Tundayme and Wawayme tributaries, which flow down from the mountain and into the Quimi. Where the small hamlet of San Marcos once stood, with its church and school, there is a steep headland. Atop the cliff a gigantic hole will soon serve as a tailings pond.
On the horizon is a five-storey building hugging the edge of a hill. Behind it, Ecuacorriente S. A., also known as Ecsa, plans to open the pit to extract copper.
Tongling Nonferrous Metals Group, a mining conglomerate from China’s Anhui province and the country’s second largest copper producer, along with China Railway Construction Corporation (CRCC), one of the largest construction companies in the world, own the mine. Both are state-owned companies.
Tundayme’s story is not unique. Indigenous Shuar, who used to live where the Panantza-San Carlos copper mine now operates in another corner of the Cóndor mountain range 40 kilometres away, complained of similarly violent evictions. The owner of that mine is ExplorCobres S.A. (Exsa), which is also controlled by Tongling and CRCC.
From protests to courts
Powerless to stop the evictions, the indigenous people of Cascomi changed tactics. They took the company and the Ecuadorean state to court.
In Ecuador, as well as in other Latin American countries, local communities are now opting to complain via legal and political challenges, having realised that marches and roadblocks often lead to clashes with the police and criminal proceedings.
Many are winning. Last year, the courts decided that the Kichwa indigenous community of Río Blanco was not consulted on a gold mine in their territory. In October, another court ruled in favour of the Cofán of Sinangoe, who filed a similar complaint against mining concessions. Two months ago, the Waorani of the Amazon won a case against an oil project.
The residents of Tundayme have been less fortunate but continue to explore legal options in the ongoing Mirador conflict. Their case is complex, with at least five cases awaiting judgement.
The first and highest profile legal action argued that environmental rights had been violated.
In 2013, when Rafael Correa was president of Ecuador, four NGOs, a university, and the Shuar communities claimed the mine’s environmental impact assessment had not acknowledged the habitat of two endemic bird species where the mine pit would be.
Ecuador recognised the rights of nature in its 2008 constitution. Exterminating a species is tantamount to a violation of nature’s rights, the plaintiffs argued.
Dismissed by a judge in Quito, the case remains open in the Organisation of American States supranational Inter-American Commission on Human Rights.
At the end 2013, Correa shuttered one of the NGOs involved, the Pachamama Foundation. He accused it of interfering in state policy and threatening national security. In June 2012, the Inter-American Court ruled in favour of an action brought by Pachamama Foundation against the state over its failure to consult the indigenous Kichwa of Sarayaku an oil project.
A year later, high profile Mirador opponent José Isidro Tendetza was found brutally murdered with signs of torture on his body. As Mario Melo, Pachamama’s lawyer, said: “All this shows how sensitive the Mirador issue is.”
Confrontations with mining opponents, who Correa described as “stone throwers” and “backward townspeople” have eased under Moreno. Legal challenges to mines, however, have multiplied.
In February 2018, Cascomi filed a second action, accusing the state of violating their right to decent housing by sanctioning evictions. They demanded Ecsa compensate them.
This suit, supported by Repam and legal NGO Inredh, was based on three arguments.
First, they were never forewarned of the evictions. All they were told was that there would be a process of mining easements and, in some cases, hearings.
Secondly, evictions were arbitrary and violent. They occurred at antisocial times and destroyed property.
Finally, there was no relocation plan. Many families still live in overcrowded conditions in borrowed houses, or pay rent elsewhere with no means of supporting themselves.
The state countered that it does not consider Cascomi to represent an indigenous ancestral community and that Tundayme has no collective land deed demarcating the presence of an ethnic people who had to be consulted. (In Ecuador, like the US, indigenous communities own land under collective land deeds. The state says: no deed, not indigenous.)
The judge ordered an expert anthropological evaluation. But the report was inconclusive. It found that while Cascomi is not indigenous as an organisation, the territory is.
On 15 January 2019, a Quito judge sided with the government and dismissed the case, ruling that Cascomi is not indigenous and that evictions accorded with the law. After an appeal, on June 7 the provincial court of Pichincha upheld the ruling. Villagers are now preparing a final appeal to the constitutional court and will also submit to the UN Committee on Economic, Social and Cultural Rights.
There is also a criminal complaint against Ecuacorriente for environmental damage to water sources, presented by provincial indigenous governor Salvador Quishpe and the Confederation of Indigenous Nationalities of the Ecuadorean Amazon (Confeniae).
There is a request before the constitutional court, the country’s highest court, for risk management assessments that guarantee the dam Ecsa is building on the Tundayme River will not cause a disaster similar to Brumadinho in Brazil. This request is based on a study by US hydrologist Steve Emerman.
Finally, Cascomi and the communities of the nearby Panantza-San Carlos project, filed another action arguing that the state has failed to implement the Comptroller General’s recommendations on prior consultation and mining controls.
Cascomi leaders have spoken at hearings of the IACHR in Washington and at the UN’s periodic review of China’s human rights.
The lost world of the Cóndor
On crossing the Zamora River, mountains of an intense emerald colour suddenly rise up from the ground.
Two scientific expeditions to the El Quimi Biological Reserve, located 10 kilometres from the copper mine as the crow flies, revealed that the Cóndor mountain range is one of the most biodiverse locations in Ecuador.
Among the dwarf plants living on its rocky, flat table-top, scientists came across a minute but eye-catching brown frog with yellow spots. Following two years of study, they announced their discovery in January 2019. It was a treefrog, which they named Hyloscirtus hillisi, a new species. Its most peculiar trait is a large claw at the base of the thumb, a suspected defence mechanism.
They also found two other frogs, a lizard and a rodent in the enigmatic tepuis Amazon ecosystem that rises 2,000 metres above the jungle. These are being documented and are expected to be announced as new species imminently.
“It was such an extraordinary place, where no specimens had been collected before. We need to go back again, because there are so many species waiting to be discovered,” says evolutionary biologist and renowned herpetologist Santiago Ron.
Scientists at the Zoology Museum are still unsure what makes the Cóndor such a biodiverse place but they have several hypotheses. One is the limestone soil comprising millions of tiny seashells, something unusual in the Andes.
It’s comparable to the large rocky tepuis of the Guiana Shield that rise up sporadically in the Amazon, from Colombia to the Guianas of northeastern South America. Another is the strange mineral composition attributable to vegetable tannins that flow from their heights and give it a translucent cola-coloured hue.
As these unique habitats have a high proportion of endemic species, scientists recommended classifying the new treefrog as “critically endangered”, especially given the destruction of its habitat by the nearby Mirador mine.
Such high biological value prompted scientists to call for the designation of a national park in the Cóndor mountain range.
“We have so much to lose and we’re not taking proper care of resources that can benefit all of humanity,” says Santiago Ron.
There is another powerful, political reason why the area’s protection matters.
Between January and February 1995, a hundred people died during a brief war between Ecuador and Peru. The conflict centred on the Cenepa River on the Peruvian side of the Cóndor.
A peace treaty signed by the two countries in Brasilia in October 1998 put an end to more than a century of territorial disputes by promising to create contiguous national parks that would preserve the border area and mitigate future conflict. It even stipulated that indigenous people should be able to travel freely between them.
“We have made the decision, both countries, that where we used to fight, where Peruvian and Ecuadorean soldiers have died, we must honour their memories in the best way we can: by celebrating life. That is why, in that same place, we have created two ecological parks in perpetuity … so that never again can a drop of blood be shed in that part of our territories,” said then Ecuadorean President, Jamil Mahuad.
However, Ecuador has only created two small biological reserves (Quimi and Cóndor), which total 114 square kilometres.
“We feel betrayed because we helped the Ecuadorean government build these roads for the Army to use in the war, and now, when we need them, they abandon us,” says Luis Sánchez.
The scientists who have tried to publicise their findings remain concerned about the risk of open pit mine for Cóndor’s biodiversity.
“In Ecuador we don’t take into consideration the environmental mishaps of mining,” says Ron.
Ecuadorean and Chinese national interests
Faced with dipping global oil prices, Ecuador’s last two governments sought alternative revenue streams and focused on mining.
With 3.18 million tonnes of copper, 3.39 million ounces of gold and 27.11 million tonnes of silver, Mirador is the jewel in the crown of the country’s plans for mining to contribute 4% of GDP by 2021.
Despite this, neither the government nor Ecuacorriente recognise the legacy of social and legal conflict that persists in Mirador and that could hinder its future operation.
The current government blames past mistakes on Correa’s belligerence. “We want to do things differently,” says Benalcázar, vice-minister for mining at the Ministry of Energy and Non-renewable Resources. “We want to have adequate financial, legal and security conditions in place for investors to come, with an understanding of the existing laws and regulations.”
Benálcazar cites Moreno’s 2018 decision to create a super-ministry to promote a long-term policy on hydrocarbons, mining and energy.
For the vice minister, the mine’s advantages are obvious: 3,000 direct and 10,000 indirect jobs; US$211 million in anticipated royalties and taxes; US$5.5 billion total income for the government, with 60% of the royalties to be invested at the local and provincial levels, according to the law.
Partnering with a Chinese company also gives them guaranteed access to the world’s largest copper market.
“I have not witnessed any conflict. What I have seen leads me to think that a good relationship exists. They have very interesting community projects involving environmental and social issues,” says Benalcázar, who used to work in the oil sector in Colombia and Syria.
The ministry, he says, is working with Ecsa to demanding action plans to resolve environmental violations and improve industrial safety after two fatal accidents at the mine in late 2018. It also aims to increase employment of local, rather than Chinese, workers.
Ecuacorriente says it has already invested US$1.4 million in Mirador and acknowledges that relations with the communities were initially tense. It insists that they have improved since channels for dialogue were opened and community projects including folkloric dance workshops invested in.
The company is adamant that the court ruling which declared the lands of public interest justified the evictions.
“If the two parties fail to reach an agreement and the price is unreasonable, the government may resort to the right of easement as a national strategic project. It was not our company that carried it out, but the Ecuadorean government,” says Jun Zhu, Ecsa’s head of community relations.
“They proposed the solution when the project was at a standstill,” Jun says. The company, he explained, paid up to six times the market price for the land and is building the new town of Nuevo San Marcos to relocate affected families.
Neither of the two recognises Cascomi as a valid complainant, insisting that the courts proved it is not an indigenous organisation and does not have collective rights. They also say it has been manipulated by foreign actors.
“South Americans are very decent people, but are easily mobilised by slogans, especially of the spiritual or anti-materialist sort,” says Jun. “Although they are poor in life, they don’t understand that these resources can satisfy their needs, and many NGOs seize on this to promote illusions, such as opposing mining or protecting the environment for future generations. And it is easy to believe their words.”
Like Río Blanco, the Mirador case highlights that indigenous self-identification is complicated. “To be honest, I don’t think it is their own initiative. They are influenced by the NGOs, for better or for worse… It is difficult to deal with NGOs that have extreme positions and are against any kind of development”, says Benalcázar, despite the Ecuadorean government itself promoting self-identification since 2010.
Many social and academic organisations disagree.
“It is often believed that communities do not have self-determination, that their strategies and discourse are those of others who manipulate them, as if they were children or fools,” says Ivonne Yáñez, a biologist with the NGO Acción Ecológica.
“The state believes it is a question of employment, royalties and direct foreign investment, and not the environment”, Yáñez adds.
“That [self-identification] doesn’t mean there isn’t a right, which must be respected and protected, to be consulted and to protect their homes”, agrees Mario Melo, director of the Catholic University’s Human Rights Centre.
The Inter-American Court’s ruling on Sarayaku in 2012 ordered that prior consultation be regulated in Ecuador in accordance with international norms. This motivated an official visit by Victoria Tauli-Corpuz, the UN’s special rapporteur on indigenous peoples, last November. Mirador was one of six places she visited.
Benalcázar confirmed that the government is working on a draft regulation.
Several parties seem unaware of the complexities of a territory where diverse groups have co-existed since the mid-20th century.
The Shuar, who were originally nomads, are the most numerous people of the Ecuadorean Amazon. The first settlers were the Ampush family, in 1910. Four decades later, thousands of Kichwa families migrated from the highlands to the jungle in search of land to cultivate. Among them were Luis’ family from the Sigsig mountains.
Many arrived thanks to agrarian incentives from the military dictatorship that took power in 1963, which sought to guard the border with Peru. However, that policy meant indigenous peoples from the highlands occupying other ethnic groups’ ancestral territories.
The state did not recognise collective land deeds of Amazonian peoples such as the Shuar of Tundayme, paving the way for future conflicts such as that of Mirador.
With an absent state and no space for dialogue, disputes in remote territories can rapidly escalate into open conflicts. When the government becomes aware and reacts, it is often too late.
“Instead of militarising and evicting people, sending machinery and backhoes to bury houses, the state should intervene differently, helping communities to plan,” says Jaime Vargas, Achuar leader and president of the Confederation of Indigenous Nationalities of Ecuador (Conaje).
The environmental issue, meanwhile, seems relegated to second place.
“If the region is so [biologically] rich, if it meets the requirements to be part of the system of protected areas – which is an exhaustive process – and becomes one, we will respect it,” says Benálcazar. “That was the decision of the Ecuadorean people,” he adds, referring to the February 2018 referendum that banned mining in protected areas.
Benálcazar had not heard of the newly discovered frog, nor of the state’s commitment to create a national park in the Cóndor. He did say he wants to work on biodiversity and water management with large international NGOs like the World Wildlife Fund, the Wildlife Conservation Society and The Nature Conservancy.
Ecuacorriente, for its part, insists that Tongling has never had any accidents and that its mine has the highest technical standards.
“The fact that one dam in Brazil collapsed does not mean all the dams in the world will be affected. It must be because they didn’t do their job well,” says Zhu. He says he still hopes for reconciliation with Cascomi and the Tundayme population.
Despite the appearance of tranquillity that the company and the government seek to present, a significant portion of the local population still feel their concerns have been ignored. The number of lawsuits shows that if efforts are not made to diffuse the conflict. Operations at Mirador will begin extracting copper without the community’s consent.
As Melo says: “People have seen that legal actions can be an alternative. That’s good, because if the violence escalates, everyone loses.”
This report, the second in a three-part series on the environmental and social footprint of two Chinese mining projects in Ecuador, received support from the Rainforest Journalism Fund through the Pulitzer Center on Crisis Reporting.
In the personal words of Pablo Fajardo, attorney for the UDAPT Organization, representing the over 30,000 people affected by the oil pollution left behind in Lago Agree, Ecuador:
When we decided to make this agreement with The Crowd Versus, we did so after researching the work they do. Certainly, there have been many offers from various other platforms that attract resources, but it seems to us that the work of The Crowd Versus is perfectly aligned with that of UDAPT, which is a work that is attached to the social struggle, to the defense of the rights of nature, of human rights, of indigenous peoples, and of access to justice. So The Crowd Versus policy is really fully compatible with the dreams, with the aspirations, with the struggle of UDAPT, and this identifies us fully with the work.
Call to Action:
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We welcome the opportunity to help you. On our Be The Difference page, after the philosophy of Mohandas Gandhi, we enable your creative ideas and work to be showcased to help this case.
Share your art and inspirations to make the world a better place for all of us!
Cuando decidimos hacer este acuerdo con The Crowd Versus lo hicimos previa investigación del trabajo que ellos hacen. Por cierto, han existido muchas ofertas de varias otras plataformas que captan recursos, pero nos parece que el trabajo de The Crowd Versus es perfectamente coerente con lo de la UDAPT, que es un trabajo que está pegado a la lucha social, a la defensa de los derechos de la naturaleza, de los derechos humanos, de los pueblos indígenas, y del acceso a la justicia. Entonces la politica de The Crowd Versus es realmente compatible plenamente con los sueños, con la aspiración, con la lucha de la UDAPT, y esto nos identifica plenamente con el trabajo.
Between 1964 and 1990 oil giant Chevron (formerly Texaco) contributed to one of the biggest environmental disasters in the history. A gigantic oil spill contaminated an area of 4,800 square kilometres of the Amazonian rainforest in Ecuador. It destroyed the lands of 30,000 indigenous people and farmers, and the biodiversity in the area. For over 25 years now, they fight a difficult legal battle against Chevron to achieve justice.
25-Year Fight for Legal Justice
In 1993 the 30,000 peasants and indigenous people joined forces in UDAPT (Spanish Acronym of ‘la Unión de Afectados y Afectadas por las Operaciones Petroleras de Texaco’). This organization started litigation to have Chevron (formerly Texaco) pay to create health programs for the affected peoples and to restore the lands and water. The Ecuador National Court ordered Chevron to pay 9.5 billion dollars, but they refused. Instead, Chevron left with all its assets. That is why the plaintiffs have to go abroad to achieve justice, where the legal road is long and exhausting.
Art Students Take Action
Students from the University of the Arts Utrecht took action. They made a short film to create awareness of the situation. To help people to relate to the situation in Ecuador, they show an average European family living in an oil contaminated home and neighborhood.
One of the students, Thomas Paschenegger said: “We are honored to contribute to this important legal battle for environmental and social justice in Ecuador. It would be fantastic if the film creates more awareness and support of the situation of the UDAPT people, and informs people about the crimes committed by Chevron.”
The assignment of this film came from The Crowd Versus. The Crowd Versus is supporting the case of UDAPT against Chevron since 2014.
According to Marco Witschge, platform co-lead: “We are constantly looking for new ways to create awareness and donations for this case. The students of the HKU did a fantastic job. This case is not only of great importance for the people in Ecuador, but also for the world. It will better protect our human rights and the rights of nature, and it shows irresponsible corporations that the law applies to all.”
Want to help? Our Call To Action:
Whatever you like to do, photography, vlog, draw a great cartoon, or cook to create your own fundraising event, know that we would love to enlarge the footprint of your message. You can do more for the indigenous people and farmers of Ecuador by posting your own content and picking the Chevron v. Ecuador case to support with your (artistic) work here.
We've raised €13,891.09 of the €15,000.00 we are trying to raise for this case!
The Crowd Claims The lawsuit against Chevron by the Amazon people raises two fundamental questions for the Canadian court to decide: (1) Should justice prioritize human rights over the interests of transnational…
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.
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.
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”.
OPINION: A promising negotiation is taking place at the UN Human Rights Council. A legally binding treaty on business and human rights could give victims transnational corporations’ malpractice a lot more power to pursue the justice they deserve. The EEB is stepping up its efforts to make the most of this opportunity to achieve environmental justice globally.
By Nick Meynen, European Environmental Bureau (EEB)
In 1993, Ecuadorian citizens sued Texaco (that became Chevron) for leaving behind a massive amount of deadly pollution from decades of oil operations in the Amazon Rainforest. Twenty years and an unprecedented legal ordeal later, Ecuador’s Supreme Court ordered Chevron to pay $9.5 billion to clean up. Chevron refuses and instead paid a vast army of lawyers and PR firms to sue the victim’s lawyers and discredit them and Ecuador’s Supreme Court. The EEB crowdfunded for the lawyers who defend the 30.000 Ecuadorean plaintiffs. They are still proceeding the case in Canada. 26 years after opening a court case that they won at the highest level six years ago, the victims still face massive pollution problems and corporate impunity.
This case explains why it was Ecuador who took a bold initiative. In June 2014, the UN Human Rights Council in Geneva adopted a resolution drafted by Ecuador and South Africa. An open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights, chaired by Ecuador, was established. After three sessions in 2015, 2016 and 2017, a ‘zero draft’ of this new legally binding treaty on business and human rights was presented.
“We regret that that there is no mention of the need to protect Human Rights and Environmental defenders and journalists from abuse, harassment, criminalization and harm. It is often thanks to the work of defenders and the media that victims are able to organize themselves to claim their rights. There should be dissuasive measures on corporations and governments that use methods to silence defenders.”
In the past decade, the number of environmental defenders killed, often on the order of or by the transnational corporations that this treaty tries to regulate, has gone from one a week to four a week.
Carlsson also said that in order to truly have justice for victims, “it is important that they are given the opportunity to ask the courts for injunctive measures, including relief.” She also listed a list of positive elements in the draft that should not get compromised in further negotiation stages. The draft of this treaty attempts to widen the scope of jurisdiction for victims, allowing them to benefit from the most protective legislation. Multinational corporations already have the means to benefit from “forum shopping”, picking the countries with the legislation most favorable for their case.
The legally binding treaty on business and human rights is a promising initiative that could seriously improve global environmental justice. That is sorely needed, given the fast-rising global environmental justice movement, which is linked to the ever increasing amount of environmental conflicts, which the EEB also helps to map in the Atlas of Environmental Justice. The treaty is also a direct opposite of the Investor State Dispute Settlement (ISDS) mechanisms adopted in trade deals, as they expand the powers of transnational corporations. The EEB is one of 100s of organizations behind an European campaign that calls for rights for people and rules for corporations. Aside from stopping ISDS, the organizations behind this campaign want the EU to fully engage with the UN Treaty on business and human rights.
You can join the more than 500.000 Europeans who support this campaign here.
Originally published by Nick Meynen at metamag.org, link here
INTERNATIONAL EXPERTS REQUEST PRECAUTIONARY MEASURES TO AVOID AN ECOLOGICAL CATASTROPHE IN THE CORDILLERA DEL CONDOR, THE ECUADORIAN AMAZONIAN WATERSHED
Published 6 March 2019
The Mirador Copper Mine Project presents a serious and imminent danger to the Rights of Nature in the upper Amazon river basin.
Quito, Ecuador – Last Friday, 1 March 2019, two UN Rights of Nature experts presented a request to the Ecuadorian court to suspend the construction of the tailings dams of the mega open- pit mining project “Mirador “. The tailings dams are located in the Cordillera del Condor of the Amazonian province of Zamora Chinchipe.
David Dene and Julio Prieto, experts recognized by the Harmony with Nature program of the United Nations, presented the request based on a rigorous technical report prepared by Dr. Steven H. Emerman, who is an internationally recognized expert on tailings dams and their structural integrity.
Dr. Emerman points out in his report that the current design of tailings dams – the only barrier that protects Nature from the toxic waste generated by Mirador’s mining operations – is not adequate for the natural conditions of the area, which generates a probability of failure so high that it is imminent. It is a serious and imminent threat of around 100 million tons of highly toxic waste (tailings), which will be discharged directly into the surrounding rivers.
A design similar to that of the dams that are being built at the Mirador Mine project was used in the Brazilian mine of Córrego de Feijão, whose appalling collapse in January of this year caused the death or disappearance of around 300 people, and unquantifiable damage to various ecosystems.
“When the Mirador dams fail, they will completely annihilate the life cycles of the Quimi, Tundayme, Zamora and Santiago rivers, which are tributaries of the Amazon,” said Dene. “The catastrophe in Minas Gerais (Brazil) was caused by the collapse of a dam that is small compared to the dams being built at the Mirador Mine. When the Mirador Mine dams collapse – and there is no doubt that they will collapse – the impact on ecosystems and loss of biodiversity will be catastrophic. “
The request for this precautionary measure explains in detail how the sum of adverse natural conditions and the design of dams is a perfect formula for an environmental catastrophe. “The construction method of the dams that ECSA are building at the Mirador Mine is so risky that its construction is illegal in Chile and a few weeks ago was declared illegal in Brazil,” said Prieto. “If we add to this the high seismicity and rainfall of the sector, and its rugged geography, once the dams of the Mirador project have been built, they will be like a loaded gun, ready to kill. We must intervene before the dams are finished; before the gun is loaded,” he added while discussing the case during a conference on the Rights of Nature at Yale University.
The activists are being represented by Juan Pablo Sáenz, an Ecuadorian lawyer, who stated that “this action is aimed at suspending the construction of tailings dams until their design is re-evaluated and updated, for which best practices and technologies should be adopted that guarantee the protection of the Rights of Nature, recognized by the Ecuadorian constitution “. They also have the advice of the expert in constitutional law, Gabriela Espinoza, who specializes in the application of constitutional rights between private parties. As she explains: “Since rights of nature are constitutional rights, the mining company is constitutionally obliged to respect them. Constitutionally, enforcement is a certainty. There is no constitutional grounds for a refusal”.
The mega open-pit mining project Mirador is built and will be operated by Ecuacorriente S.A., a subsidiary of the Chinese state-controlled China Railway Construction Corporation and the Tongling Nonferrous Metals Group Holding Company.
Ecuacorriente S.A. has been encountering resistance from both indigenous and environmental movements in its operations in Ecuador. Mirador’s works were temporarily suspended in November 2018, due to the death of two Ecuadorian workers caused by a failure to comply with occupational health standards.
Contact information: Ecuador – Juan Pablo Sáenz: firstname.lastname@example.org +593 98 4250 700 USA – Julio Prieto: email@example.com +1 267 356 0298
EU – David Dene: firstname.lastname@example.org +34 699 532842