Human Rights Dialogue (1994–2005): Series 2, No. 2 (Spring 2000): Litigating Human Rights: Promise v. Perils: Articles: The Story from the Oil Patch: The Under-Represented in Aguinda v. Texaco

Apr 6, 2000

When Human Rights Dialogue asked me to write about Aguinda v. Texaco, I hesitated. I am a North American lawyer who has worked in the affected region since 1989, and my research was the basis for environmental allegations in the complaint. I have been drawn into the grassroots politics surrounding the suit. However, I decided to write because the peoples whose rights are being defended often appear as backdrops to a distant drama in which the key protagonists are outsiders: lawyers, government officials, and NGOs. Outside the media spotlight, the lawsuit has a life of its own in a remote Amazon region in Ecuador where its legacy will be direct and enduring. Increasingly, residents are struggling to understand the litigation and make it responsive to their needs.

Since arriving in Ecuador in 1964, Texaco has drilled hundreds of wells and extracted nearly 1.5 billion barrels of crude oil in an area spanning a million acres in the Amazon. Until 1992 it dumped tons of toxic waste into the environment and spilled more oil than the Exxon Valdez. In 1993, U.S.-based class-action lawyers filed a suit against Texaco in a New York federal court on behalf of an estimated 30,000 indigenous and settler residents in the affected areas of the northern Ecuadorian Amazon region.

News of the $1.5 billion lawsuit spread quickly in the oil patch. Notoriety in the press and a steady stream of visitors sparked great expectations among residents. A group of settlers formed the Amazon Defense Front (FDA) to prepare a local institution to administer monies from the suit. However, others, including indigenous peoples, were reserved. There has been a long history of broken promises and exploitation by outsiders in the region. Community members were confused and concerned, and asked me: Why can strangers claim to represent us when we have our own representative organizations? How can they defend our rights and solve our problems without knowing us and our world? Some saw the suit as an effort to use their names and suffering for private gain.

Nonetheless, the suit struck a chord. The allegations echoed longstanding grievances among the Amazonian peoples and elevated their cries for a healthy environment to new levels of national and international attention. Potent ideas spread among the population: poor and indigenous peoples have legal rights; rich and powerful oil companies have obligations to them and are subject to a higher authority, independent of politicians and engineers. The introduction of the principle of equality before the law was revolutionary and resonated deeply. With a lawsuit in Texaco’s home country, many local people hoped their voices would finally be heard. Of course, there were also those who simply saw an opportunity for cash.

There has been considerable confusion, which remains to this day, about who is a representative, who is a member of the proposed class, and, consequently, who can expect to benefit from the suit and have a voice in its conduct. Class-action law permits the named plaintiffs to sue, as representatives of a plaintiff class, on behalf of a large group of similarly situated individuals, but this fact is not understood by the affected communities in Aguinda v. Texaco. The plaintiffs were selected and a proposed class defined by the lawyers without consulting local groups. The complaint, which names some 80 class representatives, has not been translated into Spanish and distributed. During early organizing attempts, when a group of local leaders requested the names of the plaintiffs, the lawyers told them the names could not be published because it might endanger the plaintiffs’ lives.

Over time, the lawsuit seemed to carry the struggle away from the Amazon to distant courts. Many factors made it difficult for residents to participate: the technical nature of litigation, dependency on lawyers, exclusion from legal proceedings, slow progress, the awe and confidence accorded U.S. courts, absence of personal contact with attorneys, lack of information, linguistic and cultural gulfs, poverty, and poor transporta-tion and communication facilities. Assistance from external NGOs and the lawyers could have helped to address some of these barriers and clear up the confusion about the case, but only a limited amount of help was provided.

Initially, it seemed that FDA might help fill this gap. It developed ties with the lawyers and NGOs and helped them pressure Ecuador’s government to drop formal opposition to the suit. It spread the word that the case was the “last chance” for cleanup and organized workshops to educate a group of community leaders, called “promoters,” about oil and the environment. But over time even FDA and its NGO partners essentially left the conduct of the suit to the lawyers, as if a victory in court would automatically benefit Amazonia and its peoples. Supporting the litigation became an end unto itself, rather than one means among others to a greater goal.

In 1996 the lawsuit was dismissed in favor of litigation in Ecuador. The U.S. Court of Appeals later reversed this ruling; since then a decision by a district court in New York on whether to accept the case is pending.

While the case has stalled, a series of events has recently revitalized local organizing. In 1998 a settler group, who had been trained as promoters by the FDA but felt they did not have decision-making power within the organization, formed the Committee of the Affected (Comite). “We have this education,” one participant said, “so now we want to use it.” But FDA felt threatened and accused Comite of causing divisiveness and weakening the plaintiffs’ position in the lawsuit. It issued resolutions designating the president of FDA, another settler, and a Quito activist––none of whom are class representatives––as “official spokespersons” for the lawsuit in Ecuador. The resolutions recognized some indigenous spokespeople, but left out the Huaorani and Quichua, who comprise the majority of indigenous members of the proposed class and do not want others to speak for them. The FDA resolutions further stated that any initiative by outside groups to assist affected communities or participate in the lawsuit must be approved and coordinated by FDA and the official settler spokesperson.

Undeterred, Comite stepped up their organizing activities after learning that the Ecuadorian government had executed an agreement with Texaco a year before certifying that the company had completed cleanup activities. According to the local peoples, the “cleanup” was a sham, and the environmental damage continues. Comite was unsettled by the government’s action and the failure of the lawyers and FDA to inform them of it. (Because FDA had long been involved in the case, Comite believed that it must have had prior knowledge about the agreement.)

In late 1999, sensational news hit the Amazon communities: private negotiations between the plaintiffs’ attorneys and Texaco for a settlement were taking place. After hearing press reports about the negotiations, Comite contacted me to clarify the status of the case. In response to my inquiries, an attorney for the plaintiffs denied the talks; however Texaco revealed that preliminary negotiations had been under way for about a month. Back in Amazonia, FDA stated that no such talks were occurring. Ironically, it is precisely this pattern of closed-door deal making, without participation by affected peoples, that brought environmental devastation in the first place.

In response to the news, the international NGO Accion Ecologica organized a public forum in Quito called “I Too Am Affected.” The forum, held in December 1999, brought together some 60 delegates from indigenous and settler organizations, including Comite. Although invited, FDA declined to attend. Delegates expressed concern about the lack of information and the possibility of a deal that would benefit only a privileged few. They adopted resolutions that they be informed “in a permanent and transparent manner” about the case, and that the litigation seek “the restoration of the affected region, closure of sources of contamination, and measures to resolve health problems of all affected people.” The delegates called for a general assembly among all affected groups to unite positions and seek common strategies. Further, they resolved to solicit my participation as an attorney in the case, to “guarantee clarity and transparency in the process.”

By catalyzing people to action and inspiring calls for unity, the pending negotiation has created an opportunity to make the litigation responsive to the peoples whose rights are being violated and to sow the seeds of an enduring human rights legacy in the region. At the same time, as in any class action, there is a risk that the lawsuit will abruptly end with a collusive settlement or one negotiated in good faith that falls dramatically short of expectations. Such results could set back local struggles for environmental justice by promoting conflict, corruption, and cynicism.

To avoid these dangers, the lawyers must develop creative, participatory, and transparent mechanisms to inform and consult with all affected peoples before a proposed settlement is signed and presented to the court. NGOs can help by assisting local groups to participate in the process and by continuing to pressure Texaco to clean up, regardless of the outcome of the lawsuit. In these ways, the local communities’ nascent ideas of human rights can be nurtured into an empowering and unifying force.

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