(Writing) the Law of the Jungle
By Jim Oldham
Reproduced from the Summer 2000 issue of After the Fact, the newsletter of the Institute for Science and Interdisciplinary Studies (ISIS). (c) 2002 ISIS, all rights reserved.
Editor’s note: On March 13, 2000, the Secoya Indigenous Organization of Ecuador (OISE in Spanish) signed an Oil Exploration Agreement with Occidental Exploration and Production Company (OXY). After almost two years of negotiations with OXY, pressure tactics from the company and the government, and internal debate within OISE—and four and a half months after the two parties signed a Code of Conduct intended to ensure a fair and "transparent" dialogue between them—the Secoya gave permission for OXY to build up to four oil platforms for drilling exploratory wells, and to do a second round of seismic testing in Secoya territory. (Initial seismic tests were done in 1997). In return, OISE will receive $700,000 in compensation ($600,000 if no oil is found) paid into three funds: $100,000 to divide among Secoya families to meet immediate needs and support individual economic development efforts; $280,000 for infrastructure and development projects; and $320,000 ($220,000 if no oil is found) as seed money for a permanent investment fund. The agreement establishes environmental and cultural safeguards and the right of the Secoya to monitor the oil activities to ensure compliance. It also prohibits the unilateral expropriation of Secoya territory for oil development (a common step in the exercise of oil companies’ concessionary rights) and ensures there will be continued dialogue under the Code of Conduct prior to any oil production in the territory. ISIS’s Secoya Survival Project provided technical and legal support for OISE during the development of the Code of Conduct and the subsequent negotiations for exploratory wells. We have also lain awake nights wondering if our work is facilitating the work of the oil company even as we struggle to defend Secoya rights.
28 May, 2000.
I’m in the rainforest, in the territory of the Secoya people in northeast Ecuador. This weekend I’ve come deeper into the rainforest (away from the banks of the Aguarico river) than I’ve hiked before. Watching monkeys? No, they’ve run away. Ecotourism? We’ve dubbed this petrotourism. My first trip into this part of Secoya territory—the land I was told in 1996 was to be a permanent reserve—is to visit two drilling platforms being constructed by Urazul, a subcontractor to Occidental Exploration and Production Company (subsidiary of Occidental Petroleum Corporation, or OXY). I’m here with two Secoya monitors and their technical advisor (hired by ISIS), along with OISE’s members of the joint Comision de Seguimiento (the Oversight Committee set up with OXY to ensure compliance with the terms of the Agreement), and OISE’s lawyer (also contracted by ISIS).
Yesterday we hiked to the first platform, Cocaya Centro, two hours on an old hunting trail. It was difficult walking because the regular passage of oil workers has churned the trail into a muddy mess. Streams, however, are easy to cross as the company has built a number of bridges with wood from trees they’ve cut along the path.
We are met at the platform by Wilson Gallegos, community relations specialist for OXY and member of the Oversight Committee. We spend several hours inspecting the platform (only a week or so from completion) and interview the supervisors of the work (employees of Urazul). After lunch with the oil workers, there is another three hour walk on a less worn trail, which follows old seismic lines (and passes through a waist deep swamp), to Cocaya 1, the second platform.
Day two of the visit begins with an inspection of Cocaya 1 and an interview with the Urazul supervisor there. We then sit down with Gallegos, two other OXY reps, and the supervisor, to discuss our observations from the two day visit. Two of the most important issues we raise regard access routes to the platforms and the process that led to their creation. Workers are regularly entering by canoe and trail through Secoya territory rather than by helicopter as was initially agreed. Secoya "permission" for this change was obtained by Urazul workers who negotiated directly with individual leaders of the nearest Secoya village, violating several principles of the Code of Conduct and the Agreement for Oil Exploration signed by OXY and OISE: the only oil workers authorized to enter Secoya communities are member’s of OXY’s community relations team, all communication should be in writing and go to all members of the mesa de dialogo (the negotiation group established by OXY and OISE), negotiations are to take place within the mesa, and internal Secoya decision making processes must be respected.
Why am I not surprised when Gallegos tells us that we are making a big deal out of nothing? "The Code of Conduct and the Agreement are one thing, the jungle is another." Things had to get done and they got done; people discussed the issues and worked them out. I’m not even surprised a week later that there is confusion in OISE: part of the new leadership (elected after the code was signed and the agreement with OXY had been negotiated) takes steps to negotiate the access issue directly with Urazul (trading access by land for a laptop computer and help building a bridge) even as the official representatives to the Oversight Committee are setting up a meeting with OXY to resolve the issue according to the rules of the Code of Conduct.
These are mistakes, it is easy to forget that there is a law, even in the jungle, that both sides have agreed to obey. Rule of law is not the norm in the jungle of extractive industries, and it will take time to get used to.
One popular introduction to oil development in the Amazon for readers in this country is Joe Kane’s book Savages. First published in 1993, in The New Yorker, under the title With Spears from all Sides, the story describes relations between the Huaorani (known to their enemies as Auca, a Quichua term meaning savages) and "the Company"—an entity comprised of the multinational oil company itself (in this case Conoco), the government oil company and various agencies, and everyone else associated with oil development. According to Kane, the company, like all outsiders, are dangerous cowode—cannibals—from the point of view of the Huaorani. The article and the book highlight a confused, highly unequal, and, as the titles suggest, confrontational relationship based on mutual misunderstanding in which both sides lose.
Readers of After the Fact are also aware of the history of Secoya experiences with oil exploration. As we have described previously, OXY "has been intermittently active in Secoya territory [since 1995], doing seismic and topographic studies in various parts of the territory. To gain Secoya permission to carry out these activities they have had a series of negotiated agreements with OISE, but these negotiations and agreements have been marked by misunderstandings, contradictions, and lack of Secoya access to information or to independent advisors."1
The experiences of the Huaorani and Secoya are in no way unique. Throughout the Amazon region (as in other previously inaccessible regions of the world) new technologies are taking multinationals in the extractive industries into fragile ecosystems and bringing them into contact with threatened indigenous cultures. The continuing campaign and lawsuit against Texaco for its destructive oil development in Ecuador between 1967 and 1992 has made public one of the most blatant examples of the environmental, social, and cultural impacts of unregulated extractive industries. It has also raised consciousness in Ecuador of the need to change the relationship between extractive industries and communities they affect.2
This shift in understanding is highlighted by Carmen Allauca, President of the Human Rights Committee of the Northern Oriente, quoted by Tamara Jezic in a report for Oxfam America:
When the companies began, the people didn’t know anything about rights, they didn’t know they could denounce oil companies. We told the people, "Don’t be afraid, we must denounce the contamination." When we first started, we faced a kind of disbelief among the people. The State owned the subsurface rights, and the company was the big God; what they said was what you had to do. There was no understanding that you could oppose the company and claim your rights. Now people have begun to realize that they can and they should denounce the contamination and that they don’t have to be afraid. Now people feel supported and they come forward.3
While Allauca focuses on denouncing acts of contamination, there is a similar need for communities to claim rights prior to the entry of multinationals, to prevent at least the worst impacts of oil development or mining. This is the goal that drove the creation of the Secoya Code of Conduct. The Code was designed to protect "the Secoya’s constitutional rights and establish... for them a more equal relationship with [OXY]."4 It started with the recognition that, like many indigenous communities, the Secoya were choosing—whether due to preference or lack of alternatives—to allow the company to enter their territory.
As Martin Scurrah and Cathy Ross of Oxfam America have written:
Most of the affected indigenous populations have opted to negotiate with the companies, placing primary emphasis on [short term] benefits and allocating the negative impacts to a secondary plane... At the same time, it must be recognized that the vast majority of those acquiescent communities probably felt they had little choice as to whether to negotiate with a company or reject its presence and likely lacked complete information about possible impacts at the time when they might have protested.5
Although there are important examples of indigenous communities opposing all oil development in their territories (Scurrah and Ross mention, for example, the U’wa people in Colombia and the Achuar in both Peru and Ecuador), the decision to negotiate is hardly surprising when one thinks of the threats facing communities that don’t reach agreements with the companies. Companies have:
the right, granted by law through a mining [or oil development] concession, to gain access to [oil or] minerals in the subsoil for a specified period of time by occupying and using the land surface in return for compensation to current landowners and on condition that the land is eventually returned to the owners in its original condition. The procedures involved are heavily weighted in favor of the… companies and against farmers and indigenous people: if no agreement is reached… the company can request that a mechanism that is in effect an expropriation process be applied. A government body determines the value of the compensation to be paid for the land and for any lost income and, if the community refuses to accept these terms (which are widely considered to be well below what free market rates would be), the amount may be paid into an escrow account in the name of the community and the company then has the right to undertake its exploration or extraction activities with the support of law enforcement agencies if necessary.6
One recent example in Ecuador involved OXY itself, which took the land of the Quichua community of Eden, on the Napo river, making a payment (paid into an escrow account, over the objections of the community) of just $40 per hectare (2.47 acres). The Secoya Code of Conduct creates an alternative environment by getting the oil company to agree to principles that, while already contemplated in Ecuadorian law (in the constitution and treaties the country is party to) and more or less universally accepted in theory, are not upheld in the specifics of the oil and mining laws. The Code is a vehicle for applying basic rights regarding access to information, legal representation, consultation regarding use of the community’s land, the opportunity to follow traditional decision making practices, and so on. It is difficult for a company, particularly a multinational subject to public pressure, to formally refuse to recognize these rights once they are demanded by the community. It is one thing to benefit from an unequal power relationship, it is another to insist that maintaining the inequality is proper and good.
And, as Scurrah and Ross suggest, a more equal relationship should benefit the company in the long run:
One of the most striking features of the relationship between the resources extraction companies and the local communities is the dramatic inequality in resources of all kinds. If the unequal relationship between multinational companies and most Third World Governments has been a cause for much comment and analysis, this is even more marked when local, especially indigenous, communities are left unprotected or only partly protected by national governments to negotiate with oil, gas or mining companies.
While this situation may present opportunities for exploitation by some unscrupulous companies, for many it represents a genuine problem because it makes it difficult for them to negotiate agreements that will be seen as fair and just by the many stakeholders whom they must satisfy and that will ensure a favorable, predictable and secure local environment within which they can carry out their extraction activities.7
So why does OXY continue to disrespect the Code? One possible answer is directly related to the reason the code is valuable to them: they need agreements that are "seen as fair and just." The biggest danger for the Secoya is a Code that exists to be seen on paper but is not enforced—-a Code (and other negotiated agreements) that give the appearance of protecting rights yet are too weak to really serve that purpose in practice. For that reason the code is just a beginning; the real work will be enforcing it, day by day. After the Code of Conduct was signed, Humberto Piaguaje, then OISE president and leader of the negotiating team, said that "the main difficulty in reaching this agreement was the lack of trust, because oil companies are used to doing whatever they want, without respecting the law."8 It is this habit of disrespecting the law that will make defending the code a long-term challenge. Nevertheless, the code itself is a significant achievement, as recognized by the Latinamerica Press:
Despite the difficulties... the code of conduct established by OEPC and the Secoya organization paves the way for other agreements to protect the rights of indigenous groups in the face of oil drilling.9
So we can hope that future agreements will be stronger, benefiting from our successes as well as learning from our omissions and failures.
1 After the Fact, December 1999.
2 T. Jezic, Oxfam America Report on Texaco Campaign (Draft), 2000.
3 Carmen Alluauca, quoted in Jezic.
4 After the Fact, December 1999.
5 M. Scurrah and C. Ross. Resource Extraction Activities and the Local Community (Draft), at the 2000 meeting of the Latin American Studies Association, Hyatt Regency Miami, March 16-18, 2000
6 Ibid. The authors are describing mining industry in Peru but a similar situation is faced by communities in many Amazonian countries, including Ecuador, facing oil or mining interests.
8 Quoted in Latinamerica Press VOL. 32, Nº 1, JAN. 17, 2000
9 Latinamerica Press VOL. 32, Nº 1, JAN. 17, 2000