In 1993, just a year after Texaco’s contract with Ecuador expired, the company was sued by a group know as the Aguinda plaintiffs. U.S. based attorneys filed the class action lawsuit in federal court in New York. It called for a remediation program where Texaco would help clean up the mess they had left behind in Ecuador. The complaint named seventy-four plaintiffs and the punitive class was defined to contain at least 30,000 persons.
Confusion arose. Often times, the lawyers and NGOs affiliated with the case would create the impression that the case was brought by Indians or indigenous people. This was not true. Though some of the plaintiffs were indigenous people from the Amazon, many more were colonists not native to the region.
In court, Texaco tried to distance itself from the role as “parent” of the consortium that was such a major contributor to environmental and cultural damages done in Ecuador between 1972 and 1992. Texaco attempted to get the case thrown out and was successful after nine years of litigation. On the grounds of forum non conveniens, the case was dismissed. The court’s judge declared that the case had “everything to do with Ecuador and nothing to do with the United States;” the judge decided this with Texaco’s headquarters located only a few miles away.1
The Aguinda lawyers claimed the decision was a victory. For the first time, a giant oil company had to submit to the authority of the national courts of a foreign nation. In May 2003, forty-eight plaintiffs, forty-six of whom were represented in the New York case, filed a new suit against Chevron-Texaco. They did so in the oil town of Nueva Loja (Lago Agrio). The population affected by Texaco, and represented in the new lawsuit, included the Huaorani. Yet, no Huaorani were included among the plaintiffs in the case.
The lawyers of the new case did not call for Texaco to clean up its mess, but rather just to pay for the cleanup. The cash winnings from the case would be directed to an NGO started by colonists in 1994, the Amazon Defense Front, better known as Frente. Someone other than Texaco would create and execute a remediation plan. During the litigation, it was unclear whether such a plan existed or was even in the works. When Judith Kimerling tried to see if such a plan existed, she discovered that it did not nor was it being drafted. The lawyers of the Lago Agrio case were seeking 141 million dollars from ChevronTexaco, but had no plan dictating how the money would be spent once won.
Perhaps a larger problem was the way in which Frente acted in trying to represent indigenous people without their consent or involvement. Relating to Frente: “its efforts to claim a monopoly of representation of all people(s) affected by Texaco and to manage local politics in an undemocratic fashion have alienated many people in the affected communities.”2
In an attempt to incorporate groups such as the Huaorani into the case, the “Assembly of Delegates” was formed. The Assembly was meant to be a way through which all those affected by Texaco could democratically make decisions relating to the Lago Agrio case and damages done by Texaco. Colonists dominated the Assembly and eventually Frente took charge of its proceedings.3
Out of growing frustration with the Lago Agrio case, a new lawsuit was filed in July of 2003. In the Superior Court of Justice of Tena, ninety plaintiffs from Quechua and Huaorani communities filed their own lawsuit against ChevronTexaco. The lawsuit reflected a growing discontent among the indigenous people of the Amazon. Many indigenous groups are tired of having their names and their suffering used as stepping stones for lawyers to help their careers and NGOs to increase their support and improve their name’s value. Also, the indigenous, in particular those involved in the new case in Tena, were tired of having outsiders make decisions for them regarding their legal matters.
On July 14, 2003, the plaintiffs of the Tena case met in Coca. The Quechua and Huaorani agreed to work together and formed an alliance known as Makarik Nihua.4 No colonists were allowed to participate. The Tena lawsuit sought to assert the group’s “special collective rights and grievances as indigenous Amazonian peoples.”5
For arbitrary reasons, the case was dismissed.6 The ruling was attributed to corruption and the case was appealed. The case then lingered in the Supreme Court. In 2006, a new Supreme Court sent the case back to Tena. The plaintiffs were advised it would be foolish to try the same case, in the same court all over again. The case has yet to be tried.
Frente continues to claim a monopoly of representation in the Amazon, despite growing protest from the Huaorani for Frente to stop claiming representation over all groups affected by Texaco. Frente continues to try to silence the Huaorani, offering them things such as boots in return for cooperation. The Huaorani resist and continue to denounce organizations like Frente for claiming to represent them without incorporating them into decision-making processes.
In the most recent legal action, twenty-eight communities of Quechua and Huaorani have tried to intervene in Republic of Ecuador v. ChevronTexaco Corp.7
The Huaorani and Quechua wanted to intervene in order to assert that they had the right to sue ChevronTexaco. They also wanted to intervene to assert new claims that were not addressed in either the Lago Agrio case or the New York Case. The Huaorani claimed that Texaco engaged in ethnocide, trying to wipe out the Huaorani culture, and that they violated the Huaorani’s right to culture. Also included in the grievances against Texaco were common law claims for remediation and restoration as well as medical monitoring.
In November of 2006, the court denied the motion to intervene. They ruled that there was a need for the case to move forward as quickly as possible and intervention would only cause delay.
Legal action in Ecuador on behalf of the Huaorani has arguably led to more problems than solutions. Lawyers and NGOs use Huaorani suffering as a stepping-stone. Yet, in entering the legal realm the Huaorani have become aware of at least some of their rights as indigenous people and as human beings. Though tangible benefits resulting from legal action may be few, the Huaorani are coming to understand a system that might one-day award them tangible benefits they both need and deserve. It is important this happens sooner rather than later as the negative effects on the environment and Huaorani culture from oil exploitation in the Amazon are becoming irreversible.
1 The judge in the case was one judge Rakoff. The plaintiffs asked the judge to disqualify himself from the case once they discovered that he had attended “an all expense paid resort trip and ‘seminar” at a ranch. The trip was sponsored by a foundation that was funded in part by Texaco. The judge, of course, did not disqualify himself, claiming to have known nothing about Texaco’s relationship with FREE, the foundation that paid for his trip. Kimerling, Judith. "TRANSNATIONAL OPERATIONS, BI-NATIONAL INJUSTICE": (472).
2 Kimerling, Judith. "TRANSNATIONAL OPERATIONS, BI-NATIONAL INJUSTICE": (476).
3 The assembly consisted of 24 delegates only five of whom were indigenous, the rest being colonist. Population, length of residence and land ownership were not factored in when deciding on representation breakdown. Potential for abuse within the Assembly was great. Decisions were made by a simple majority of delegates. The “Regulations” of the assembly were written in legalistic language and the Assembly was rushed through them in less than 30 minutes during their second meeting. “The first major decision by the ‘assembly’ – after granting itself decision-making powers – was to ratify a vague summary of a settlement proposal that was apparently prepared by the Aguinda plaintiffs’ lawyers and presented to the group as…already done” (477). Kimerling, Judith. "TRANSNATIONAL OPERATIONS, BI-NATIONAL INJUSTICE." The Assembly did not adequately represent the communities affected by Texaco and represented in the case nor did it truly seek to incorporate them into the legal process.
4 Makarik is a Quechua word meaning fighters; Nihua was a Huaorani warrior.
5 Kimerling, Judith. "TRANSNATIONAL OPERATIONS, BI-NATIONAL INJUSTICE": (480).
6 The complaint hadn’t been translated into English. Texaco was a North American company, thus the complaint should have been in English, the court said. Also, the court judged that affected lands cited in the suit extended beyond the geographical bounds of the provinces in which they were located.
7 In 1994-95 Texaco signed a series of agreements (“Remediation Contract”) that said they would do some minor cleanup in Ecuador. The effort was mostly superficial and little cleanup was actually done. In 1998, the “Final Act” declared that Texaco had performed its duties under the “Remediation Contract” and was no longer obligated to help cleanup the mess it had left in Ecuador. Ecuador argues that Texaco can still be held responsible for its actions via grievances brought by third parties; this occurred in the Lago Agrio case. Texaco argues that Ecuador released the company from all liability in Ecuador by signing the Final Act and the Remediation Contract and that no third part has the right to sue them.