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Having spent seven years litigating toxic pollution cases, including Love Canal, Judith Kimerling was looking for a change in 1989. "I read a book about the rainforest and was fascinated," said Kimerling in a recent interview with SRIC's environmental health specialist, Chris Shuey. "I began to ask myself, 'What can a North American lawyer do to help save the rainforest?'" Kimerling quit her job as an Assistant Attorney General for New York state, moved to Ecuador, learned to speak Spanish, and began what was to become a more than decade-long investigation of the impacts of petroleum development on the indigenous peoples of the Ecuadorian rainforest.
Kimerling made numerous visits to communities in eastern Ecuador, combining her observations and interviews with local people with extensive research into the legal and technical issues of oil development. She said she learned that "the primary engine of environmental destruction and human rights violations in the Amazon region is oil development, led by U.S. and other [transnational] corporations." Her lengthy report on those impacts, Amazon Crude, was published by the Natural Resources Defense Council in 1991. A Spanish language version was published two years later by Kimerling and the Federation of Comunas Union of Natives of the Ecuadorian Amazon (FCUNAE), and distributed widely in the region. The book has been credited by many, including oil industry officials, as leading to substantial reforms in the ways oil companies operate and behave in indigenous communities in tropical forests.
Kimerling continues her research and field work in Ecuador to this day. In her most recent study, she examined the environmental performance and community relations practices of Occidental Petroleum's operations in the Amazonian oil fields. Her work has been published in several academic journals and by U.S.-based nongovernmental organizations (NGOs), and is the basis for the feature article in this issue of Voices. Now a professor of law and policy at the City University of New York (CUNY) School of Law and CUNY-Queens College, Kimerling reflects on her experiences, observations and findings.
Judith Kimerling: I had read in rainforest literature that oil development in and of itself does not cause any harm to the environment. I heard that again when I got to Ecuador, and it just didn't sit well. I managed to get a copy of the environmental management plan for planned operations by Conoco in Huaorani territory. I went to the offices of CONFENIAE [the Confederation of Indigenous Nationalities of the Ecuadorian Amazon] in Quito, and showed them the document. I said, "These are plans for indigenous territories in the Amazon and you can either watch them go forward, or you can try to do something about it." I think I made an impression because I asked questions about the indigenous peoples and how they live, and how they feel about these issues, whereas most other environmentalists had asked them about national parks and the animals in the forest. Most importantly, they asked if they could make a copy of the document, and I said, "Of course." This was the first time that someone had actually shared information with them, instead of just taking it.
CONFENIAE decided to take me to the forest and introduce me to the local organization, FCUNAE. I told them what I had heard, that oil development does not cause many problems. I said I had doubts, and asked if there are problems with contamination. They looked at each other and at me, and asked, "What is contamination?" They had never heard the word before. It doesn't exist in their language. I explained what it means, and they immediately understood. They said that a couple of weeks before, oil had spilled into the Napo River for two days at a place where a pipeline crosses the river. The spill coincided with heavy flooding and for 300 kilometers along the river, peoples' crops were flooded, covered with oil, and soon died. They took me in their canoe, 300 kilometers down the river and back. We stopped at communities along the way and looked at dead crops and talked with people. I asked them if the river had ever flooded their crops before, and they said, "Yes, of course." I asked, "Was it ever covered with oil when it flooded?" They said, "no."
After that trip, FCUNAE took me into a community to see some wells and waste pits. I was appalled by what I saw. It was as if everything we had learned in this country at Love Canal was being ignored in Ecuador. There were big holes in the ground with no lining, containing oily waste. I felt ashamed that U.S. companies would come into someone else's country and home and behave this way. I didn't think that the American public, or the Ecuadorian government, would approve of this if they knew about it. So I wrote what became Amazon Crude to try to get that information out of my mind and notebooks and into the public domain.
Chris Shuey: In the process of expropriation of indigenous peoples' land, the people don't really have a say-so in whether these oil development agreements will be entered into between the companies and the state, do they?
JK: When it comes to the question of development and environmental protection in their territories, they are not participating in decision-making in a meaningful way. They are not negotiating the terms of development and environmental protection. They're not well informed by the companies or the government. This is not informed consent. And when communities try to assert their environmental rights, they are rebuffed. Some companies even say "no" when communities ask to see an environmental impact study.
El Eden is an example of a community that was not opposed to oil development because people there saw it as an opportunity to have access to trade goods and better health care, education and transportation. They did not oppose the company, but they also wanted to protect their natural resources. The company, Occidental, exploited their interest in trade goods and services and deflected their efforts to assert their environmental and participatory rights. It misled them about the operations. And it challenged people who complained about environmental impacts. When a neighboring community complained about pollution, Occidental demanded chemical data to prove their claim. When the community of El Eden tried to send a community monitor to see the operations, the company refused to allow him on the site. As long as oil companies can have land expropriated, and Ecuador is willing to do it at a company's request, there will never be equitable bargaining power between the indigenous peoples and the companies. The process eviscerates indigenous rights and reduces indigenous participation to beads and trinkets.
CS: Has much changed in the ways the companies are perceived and how they conduct themselves since Amazon Crude was published?
JK: Many companies say they have changed, that they are not like Texaco [whose oil-field pollution was highlighted in Amazon Crude]. They say they voluntarily implement international standards and new models of responsible operations that go beyond what's required by the government. In the case of Occidental, I had seen its video showing community projects and happy people. I had seen an article in Oil and Gas Journal that pronounced Occidental's initiatives an "unqualified success." So I was surprised by the discontent I found in the communities during my visits in 1998, 1999 and 2000. I was also surprised at the unwillingness of the company to disclose what its standards are for environmental protection. I wasn't expecting a rose garden, but I didn't think I would find so many snakes.
After Amazon Crude was published, there was a spotlight on the industry. There was a lot of interest by the press and NGOs, by the U.S. government and the Ecuadorian government. But the spotlight has faded. Most NGOs have gone on to other issues. Ecuador has a new constitution that recognizes the rights of indigenous people, but implementation of the law seems to favor the companies. So it remains to be seen whether the rule of law in the oil fields of Amazonia is going to be an instrument of justice or a tool of domination. Until the international community decides to get serious about regulating international corporations and defending and supporting indigenous peoples who are asserting their rights, these kinds of problems are going to continue.
Editor's Note: Not surprisingly, Kimerling's focus on Occidental's operations in Ecuador, and its impact on the indigenous peoples there, was criticized strongly by the company last year. But Occidental's performance is not, per se, the lesson of her studies. Rather, she presents a compelling case that environmental standards must be clear and companies' environmental performance must be open to independent verification. Kimerling also convincingly argues that indigenous peoples will continue to be locked out of resource development decisions as long as developing nations continue to cede their regulatory authorities to transnational corporations, as Ecuador appears to have done in its agreements with Occidental.
Selected Works by Judith Kimerling:
'The Human Face of Petroleum': Sustainable development in Amazonia? Review of European Community and International Environmental Law (RECIEL), 10 (1), 65-81, 2001.
International Standards in Ecuador's Amazon Oil Fields: The Privatization of Environmental Law. Columbia Journal of Environmental Law (New York: Columbia University School of Law), 26 (2), 289-397, 2001.
Uncommon Ground: Occidental's Land Access and Community Relations Standards and Practices in Quichua Communities in the Ecuadorian Amazon. Law and Anthropology, International Yearbook for Legal Anthropology, R. Kuppe and R. Potz (eds) (The Hague: Martinus Nijhoff Publishers), 11, 179-247, 2001.
Corporate Responsibility in Ecuador: The Many Faces of Oxy. Published by the California Global Corporate Accountability Project (Berkeley, CA: Natural Heritage Institute), May 2001. (Available at http://www.n-h-i.org/Publications/Pubs_pdf/EcuadorReport2001.pdf)
Crudo Amazonico. Published by Judith Kimerling and Federacion de Comunas Union de Nativos de la Amazonia Ecuatoriana (Quito, Ecuador: Ediciones Abya Yala), 1993.
Amazon Crude. Published by Judith Kimerling and the Natural Resources Defense Council (New York: NRDC), 1991.
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"Look at the land. Our grandfather lived here. So do we. It is our land here, her we used to live. Stranger, touring around you will not come, you will not come. We lived over these hills, we still do, because the forest is our life."
translated by Laura Rival
"I want to stamp on the ground hard enough to make that oil come out. I want to skip the legalities, permits, red tape, and other obstacles. I want to go immediately and straight to what matters: getting that oil."
1989, taken from Amazon Crude, Judith Kimerling
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