LATIN AMERICA-ENVIRONMENT: Local groups using U.S. courts for
redress against multinationals//CORRECTED REPEAT
By Pratap Chatterjee
WASHINGTON, Dec 15 (IPS) - The Inca of Ecuador and Peru were the
first major indigenous group in South America to be defeated by
the Spanish conquistadors in search of gold, silver and land. The
Mapuche peoples of southern Chile were one of the last to be
defeated 350 years later.
Today the descendants of these two groups, as well as a number of
other indigenous communities, are fighting new battles against a
second wave of traders. Like the Spanish before them, the new
arrivals -- energy and mining multinationals -- are attracted by
the untapped mineral wealth of the continent.
The rules of engagement have been set through new free trade
agreements such as the North American Free Trade Agreement (NAFTA)
and MERCOSUR in the southern cone of Latin America. Backing for
these companies comes from the financial might of international
financial institutions like the World Bank.
In Cajamarca, Peru -- the site of the final Inca defeat -- the
Newmont mining corporation has begun to dig for gold with the
financial backing of the International Finance Corporation (IFC),
the private sector affiliate of the World Bank. The Bank's
insurance arm, the Multilateral Investment Guarantee Agency
(MIGA), insures the company against political risk.
The Mapuche are fighting the construction by Endesa, a private
Chilean utility, of the Pangue hydro-electric dam on the Bio Bio
river. The dam is being financed in part by the IFC.
To help them in these battles, the indigenous people of Latin
America have called on new allies -- an emerging group of
environmental lawyers and activists in North America.
The battlegrounds have shifted from the deep forests and high
deserts of Latin America to the austere courtrooms of this
country, as well as the meeting rooms of those monitoring
mechanisms that have been created to accompany the new
international institutions.
''There really is no strong precedent for communities to win
redress against multinationals. The new challenges may well change
this,'' says Garold Crooks, author of ''Giants of Garbage,'' a
book about the global waste trade, who has advised some of the
communities about the pollution caused by multinational
investment.
The people of Cajamarca have sent a list of their complaints
against Newmont to North American activists who are considering
further action. The complaints include land grabs and
environmental hazards caused by chemicals used to extract the
gold.
The Mapuche have gone further. In November, they filed a
complaint with the inspection panel, a new body created by the
Bank, to investigate environmental and social problems created by
Bank projects.
Drawn up with the help of Chilean environmental activists and
lawyers from the Centre for International Environmental Law (CIEL)
in Washington, the complaint has failed its first test.
Last week, the panel turned down the request for an investigation
into the project's environmental problems. The reason cited by
the panel was that it does not have the authority to examine
complaints against bank affiliates, but only against the two core
institutions of the Bank -- the International Bank for
Reconstruction and Development and the International Development
Association.
Challenges accepted by the panel do not necessarily go forward.
In September, the Bank's board of exective directors refused to
accept a recommendation by the panel to investigate charges made
by indigenous groups and others that the Bank had failed to follow
its own environmental rules in creating special forest reserves in
Rondonia in the Brazilian Amazon.
There is still hope for both claims. Last week, the panel met
with Bank president James Wolfensohn who reportedly agreed to
investigate the Mapuche claim. He also agreed to examine a way for
complaints to be brought against the IFC and MIGA, according to
knowledgeable sources.
Last Monday, the panel finished work on a new report on Rondonia
to back up its earlier claim. It will be the basis for a new
appeal to the board.
The second institution that has been created to hear complaints
about international environmental problems is the Montreal-based
North American Council on Environmental Cooperation (NACEC) which
was created to examine violations of environmental laws of the
three NAFTA countries -- Canada, Nexico and the United States.
Three complaints presented to NACEC have been thrown out. The
first was a request to investigate the death of 40,000 birds at a
lake in central Mexico, while the other two challenged new U.S.
laws that permit the logging of fire-damaged trees in government
forests.
NACEC ruled against all three complaints. In the first case,
NACEC investigators said that the birds died as a result of sewage
and not because of industrial activity. The other two were thrown
out on the grounds that NACEC could only examine violations of
existing laws and not new laws.
Some lawyers say that international legal bodies are the wrong
place to challenge multinational and multilateral institutions.
''None of these institutions have any power to enforce their
decisions,'' says Charles Siegel, an environmental lawyer in
Dallas, Texas.
''By far the most effective way to challenge multinationals is to
hit the companies in their pocket books. Product liability
lawsuits are what works in this country because the companies have
to pay out compensation,'' he says. Siegel has been involved in
the first two major lawsuits filed in this country against
multinationals.
The first case was a challenge by 30,000 Ecuadorean indigenous
people in a New York federal court against the Texaco, a Texas-
based multinational. They charged that the oil giant had polluted
of the Amazon's headwaters.
Earlier this year, a second case was brought in local Texas
courts by 25,000 workers from 12 countries -- from Ecuador to the
Honduras -- against Dow Chemical, Shell Oil, Occidental Petroleum.
Del Monte Fruit, Chiquita Brands and Dole Food for using
dibromochloropropane (DBCP) -- a pesticide for banana crops.
Since then, there has been a third challenge, also filed in a
Texas court. Residents of Ilo, Peru, filed a case against the
three North American shareholders of Southern Peru Copper (SPC)
Corporation -- Asarco, Marmion and Phelps-Dodge -- for massive
pollution created by the SPC copper smelter.
The Ecuadorean indigenous people received a favourable verdict in
New York last spring when a judge ruled that the case could go
forward if the plaintiffs could prove that key company decisions
affecting the Amazon were made in the United States.
Siegel says that it will take a few months before this evidence
can be gathered. Meanwhile he expects a Honduran lawsuit in
Ebbronville, Texas, to be heard some time next year.
There has been one other case to add to this growing body of
international environmental law. Last August, a Los Angeles court
ruled that 118 workers in Tijuana, Mexico, could sue American
United Global, a California company that manufactures rubber rings
for machinery, for the acts of its Mexican sub-contractor.
The workers alleged that officials in the Mexican company forced
workers to take part in a bikini contest and then video-taped the
contestants from the waist down.
One of the reasons that the Tijuana case was successful was the
support that the workers received from U.S. lawyers and activists
-- in this case, the United Auto Workers union. The terms of the
settlement were confidential.
Indigenous groups are hopeful that the new legal challenges will
be sucessful. But they say that they still need to work through
other channels.
''We need to work for autonomy and self-government. The Chilean
government recognised our independence in 1763 and we need to
demand this,'' says Nilo Cayuqueo, a Mapuche who started the South
and Meso American Rights Centre in Oakland, California.
(ENDS/IPS/PC/JL/95)