• From February 2007 World Rivers Review

Legal Aid: Lessons Learned from Using the Law in Latin American Dam Cases

The fundamental rights of peoples and the environment are for the most part protected in the constitutions of many Latin American countries and the international agreements they signed. But too often projects are approved that disregard national and international laws on human rights, social issues and environmental protections. Many projects have been slowed, stopped or changed after affected communities filed legal actions to defend their fundamental rights. IRN talked to three lawyers involved in legal actions in Latin American dam cases to see what insights they could share.

Fighting Human Rights Abuses on La Parota Dam, Mexico

The communities living along the Papagayo River in Mexico first heard about plans to build La Parota Dam in their midst back in 1976, but they didn’t really believe it would happen. When the Federal Electricity Commission (CFE) was granted a license to build the dam, the affected people had no more information about the project than when it was first proposed. They did know, however, that they did not want to leave their land, and so they formed the Council of Ejidos and Communities Opposing La Parota Dam (known by its Spanish acronym CECOP). A bloody and dirty manipulation of the process followed. Project developer CFE met with non-affected people from the area and bought their signatures in a corrupt “public approval” process. Police were used to protect the illegal meetings and prevent community members opposed to the project from participating. To date, three people from the affected communities have been killed, and the crimes unpunished. There are seven warrants of arrest for community people who oppose the construction of the dam.

CECOP sought legal representation from Mexican Center for Environmental Law and from Tlachinollan, a human rights organization.

Astrid Puentes works with the Inter-American Association for Environmental Defense (AIDA), which provides legal support for lawyers in Latin America. She spoke with us about her work with CEMDA and Tlachinollan on the legal strategies used on the La Parota Dam campaign.

What specific legal actions were used in the campaign?

First, CEMDA filed an administrative action before the government environmental agency requesting a revision of the EIA, based on violations of Mexican law. Because that was not effective, they filed the case before Mexican courts. Currently the lawsuit has been admitted, but the decision can take months. CEMDA also filled a criminal claim against the CFE for deforestation of the area without required permits. The Federal Prosecutor has not yet sent the case to the judge.

Because the government was conducting irregular meetings with community members of the ejidos (a land tenure unit) to obtain approval for the construction of the project, Tlachinollan requested the legal annulment of meetings where approval for land-use changes and construction were illegally granted by some non-affected peoples and community members. As a result, a local court ordered CFE to stop building in one of the affected communities.

But these actions are taking place in a hostile climate. The community is under constant pressure and the affected people have been divided. This makes it hard to have a unified legal strategy.

In areas where Mexican laws are insufficient or ineffective, the case could be presented to the Inter-American Commission on Human Rights (IACHR) requesting precautionary measures. If presented to the IACHR, we will request measures on the lack of compliance with the American Convention of Human Rights and to the Adjunct Protocol of San Salvador, which address respect for economic, social and cultural rights, including protection of the environment.

What are some of the lessons learned from this case?

The legal actions tried have been useful, to some extent, in protecting the rights of the ejido members, to slow construction of the dam and avoid some irreparable damages. Nevertheless, the political and economic pressures are high, and the courts’ mandates have been only partially complied with. CFE continues to build, even though the court prohibited it.

Regarding harassment and threats, it is clear that the community had too little information about possible legal actions they can take, and not all threats and harassments have been denounced as they should have been. The lack of communication has been a challenge on this issue, since there are so many people affected by the project. It is key to engage community people who can share information within the community on rights and recourse.

Another lesson learned is that the media can be a valuable player in the process. Sharing legal decisions and the perspective of affected peoples with the media are essential.

How can people get the help of lawyers?

Communities could request support from environmental and human rights NGOs.

Support could consist of helping to design and implement a legal strategy. The attorney general, public attorneys, human rights offices and human rights commissions could aahelp call attention to legal irregularities. Law students or local lawyers may be able to help with designing a legal strategy.

It is very important for communities to document their case. Documentation should include information about the project, how it is going to affect communities, what types of impacts are created by various parts of the project, details about financing, details about threats made to community members, lists of who has contacted the community about the project, meetings held, payments offered, land tenure documentation, etc. Since there are often many different groups of affected people, it’s important to establish committees or working groups and divide the tasks among them, including informing others about the legal strategy.

We are working on a guide for the litigation of human rights cases related to environmental impacts and degradation from development projects, and how they can be presented before the Inter-American Commission on Human Rights. This guide (in Spanish) will be on the AIDA web site soon. We hope that this material will contribute in a better understanding of how to do strategic and more effective litigation on these kinds of cases.

Have you ever encountered a situation where a legal strategy failed not because of flawed laws but for political reasons?

Unfortunately, I believe that this is the rule and not the exception. Even with the existence of laws to protect people in these cases – and there are many cases where if the laws had been applied effectively, many of the rights of affected peoples would be protected – politics and powerful interests can influence the application, or lack of application, of the law. If the community does not have a strong political strategy, the legal strategies are doomed to fail.

www.aida-americas.org

US Law Firms Work Pro Bono to Defend Communities

How does EDLC work?

We identify cases where US law firms could be of assistance on a pro bono (free) basis, and then identify premier international firms to work on these matters. We believe that legal systems around the world must protect environmental defenders and recognize the participatory rights of their communities, and that US lawyers can play a critical role in achieving both of these goals.

Here’s an example of one of our cases. At EDLC’s request, a team of attorneys from the law firm of Heller Ehrman, led by Marcia Newlands, a partner in the Seattle office, began working to defend Isidro Baldenegro, a Tarahumara indigenous person from Mexico.

Baldenegro was imprisoned in Chihuahua in 2003 on trumped-up criminal charges filed immediately after he had obtained a court injunction to halt logging of his community’s forests. He spent much of his life defending the forests in a region torn by violence, corruption and drug trafficking.

Newlands immediately accepted the local lawyers’ invitation to travel to Mexico to meet with government officials involved in the case. She quickly began to develop all manner of diplomatic and political contacts. Newlands also generated interest and involvement on the part of staff and members of the Sierra Club, Amnesty International, and numerous Mexican and Latin American environmental and human rights groups. She succeeded in having articles about the case published in Mexican newspapers, obtained UN staff participation, and pressured the Attorney General of Mexico to meet to discuss the case. A more comprehensive and strategic effort could not have been mounted.

These efforts succeeded. Just three months after the firm became involved, Mexican Attorney General Macedo de la Concha held a press conference to announce that Mexico was dropping the charges against Baldenegro and his codefendant, Hermenegildo Rivas. Both men were unconditionally released from prison, and the arresting officers were then charged with wrongful arrest.

We were also successful at enlisting the US law firm Holland & Knight to take on the case of the Maya-Achí affected by the Chixoy Dam in Guatemala seeking reparations for the damages the construction of the dam caused. The firm’s team of lawyers is headed by Washington, DC partner Enrique Gomez- Pinzón and Tallahassee partner Elizabeth Bevington. The team on this case includes over 25 people from eight of Holland & Knight’s offices. The verification of damages and negotiations are still pending.

What other types of assistance does EDLC provide?

File amicus (“friend of the court”) briefs in foreign courts to demonstrate that the laws and decisions of international human rights bodies and foreign courts support the position being taken in specific cases.

File claims with regional or international human rights bodies to remedy violations of the human rights of environmental defenders, or to vindicate the property rights and land claims of indigenous peoples.

Help to draft environmental laws to increase citizen participation in environmental decision-making, environmental impact assessment, etc.

Take action against parties responsible for environmental/human rights violations abroad.

In every case, we bring to bear the prestige and enormous resources of top international law firms, typically with numerous offices around the world and with 700-3,000 lawyers, and often with significant diplomatic and political contacts.

What laws do US firms apply if they are working internationally?

They typically focus on international human rights law and international environmental law, and to some extent, national law from other countries. The local lawyers are of course better able to raise local law arguments. The local lawyers and US lawyers work in a complementary fashion.

What are the lessons learned?

In general, having the assistance of lawyers from other countries tends to “internationalize” a case and “level the playing field.” The local decision-makers realize that the case has attracted international attention, and that their decisions will be scrutinized and perhaps become the subject of further legal proceedings internationally and/or international campaigns. If the actors are US-based, then having lawyers in the US involved on behalf of the local people also enables the concerns of local communities to be conveyed more directly and effectively, and puts the actors on notice that their projects will not go “under the radar.”

Can you offer advice on how to find pro bono lawyers?

Absolutely! We specialize in one approach: getting US private lawyers to work pro bono on these cases. Groups can start at our website: www.edlc.org. Other groups provide legal services in other ways: ELAW in Oregon, AIDA, Earthjustice (which has 8 US offices), local legal NGOs, Earthrights International and the Center for International Environmental Law (both in Washington, D.C.), etc. It is very difficult to obtain pro bono services from private lawyers in developing countries, so the above resources are critical.

Lewis Gordon is an attorney and director of the Environmental Defender Law Center (EDLC). The Center works on behalf of individuals and groups in developing countries whose human rights are violated because of their environmental advocacy, and for people who have been harmed by environmentally destructive practices.

Reparations for the Saramaka People of Suriname

The Saramaka people, descendants of African slaves, settled along major rivers of Suriname in South America after they freed themselves from the Dutch colonial government in 1762. In the 1960s they lost 1,400 square hectares of their forest lands when the government built the Afobaka Dam on the Suriname River, to provide hydroelectricity for US aluminum company Alcoa. More than 6,000 people (mostly Saramaka) were displaced, and only a few received minimum compensation. Then, in the late 1990s, loggers moved into their territory, creating panic and fear. The Saramaka resolved to defend their land and rights.

Fergus Mackay, a lawyer with the UKbased Forest Peoples Programme, spoke to us on the efforts to seek protection for the Saramaka’s rights, and remedy for the damages caused by the Afobaka Dam.    

What specific legal actions were used in the campaign?   

 The 1987 Constitution of Suriname does not recognize or guarantee indigenous and tribal peoples’ rights, and there is no provision for legal recourse should these rights be violated, or ways to challenge the system. The Saramaka do not hold title to their traditional territory, the state is considered to be the owner of their lands, and there is no mechanism for obtaining communal title in the Surinamese law system. Suriname lacks environmental laws, and companies regulate themselves. In the case of logging in Saramaka territory, military personnel operated under the direction of the company to guard the concession. There was no national judicial system to which we could appeal.   

 Instead, in November 2006 we resorted to taking the case before th e InterAmerican Court. The case pleads the Court to instruct the Surinamese government to repair the damages caused to the Saramaka people by the construction of the Afobaka Dam, and for the denial of access to resources where Chinese and local logging concessionaires are installed. Compensation is also sought for the market value of their timber resources, which were harvested and expropriated without the people’s consent by the logging companies authorized by the State. Hearings for the case began in February.    

Describe how you prepared the case

It was important for me to understand who the Saramaka are, what happened to them, and their vision for the future. It became necessary to help build the capacity of the communities, and strengthen their institutions. That organizing process took close to three years. We also worked to produce evidence. Initially, we had to resort to non-legal options, and engaged the state in the process. We enlisted the support of specialists to help us map contemporary Saramaka occupation and use of lands and resources; and updated concession maps produced by the State depicting existing resource exploitation concessions in Saramaka territory. We found out that there were mining concessions granted to companies in their territory, and the Saramaka were unaware of it. We also worked within the United Nations treaty bodies to include the need for protection of the rights of indigenous and tribal peoples in Suriname.     

The outcome of this case is important considering that by 2010 the government intends to expand hydropower production from the Brokopondo reservoir, a part of the Tapanahony River Diversion project. This project as planned will forcibly displace a large number of indigenous and N’djuka Maroon communities living along the Tapanahony River. One thousand or more Saramaka villagers will also be affected on the Upper Suriname River at the southern edge of the reservoir.    

What are some of the lessons learned from this case?    

Communities need to be assertive but careful. The organizing process is very important, as well as creating a network of groups and lawyers that they trust. They need to do their research. Also, groups need to think about what they are going to be dealing with in 20 years and plan for that now, to think about what is the vision for the future of community.     

http://www.forestpeoples.org/