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THE NEW EU DIRECTIVE ON DUE DILIGENCE – A RELEVANT STEP TOWARDS ENDING CORPORATE IMPUNITY?
Published
2 years agoon
This is a critical time at the European Union (EU) when it comes to human suffering and climate impacts caused by transnational corporations, with particular emphasis on fossil fuel corporations, who continue to take deliberate actions to burn the planet. An important new law has been put forward, called the EU Due Diligence Act, which is still being discussed.
However, this law leaves much to be desired, and in its current form, can provide companies, investor states and financial institutions with an easy tick-box exercise, and loopholes, that will enable them to continue creating devastation of the earth, climate and peoples with impunity. The case of the gas industry in Cabo Delgado, northern Mozambique, is a concrete example of how this can happen and is already happening.
Many organisations in Europe including Friends of the Earth Europe have been fighting the passing of this law in its current form and partnered with JA!’s activists at the EU Commission in Brussels in May, to speak to Ministers in the European Parliament (MEP).
To see the full report by Friends of the Earth Europe, ‘‘INSIDE JOB: How business lobbyists used the Commission’s scrutiny procedures to weaken human rights and environmental legislation’’, click here: https://friendsoftheearth.eu/wp-content/uploads/2022/06/INSIDE-JOB_-How-business-lobbyists-used-the-Commissions-scrutiny-procedures.pdf
The majority of players in the Cabo Delgado gas industry are international, and many are from countries within the EU, such as Total from France, Eni from Italy, Galp from Portugal and French, Portuguese, Dutch, Swedish and Danish banks, to name a few.
Many of these oil, coal and gas companies register subsidiaries in the country where they operate, such as Mozambique, and because the current draft EU law says that only ‘big’ companies can be held accountable, this will enable these subsidiaries to get away with their abuses and violations at a domestic level, especially in countries with weakened systems of justice.
Another major issue is that the topic of Free Prior and Informed Consent (FPIC) needs to be clear and strong. For one, it is only mentioned in an annex, and uses the term ‘consultation’ rather than consent, meaning that communities will only have to be informed of the project. It fails to ensure a clear right to say ‘no’, when local communities do not accept a specific project in their territories for fearing its foreseeable impacts. Secondly, it does not take into account the difficulties that come with actually obtaining this consent, the fact that even consent can be bought, coerced or threatened into. This related to what is meant by ‘a legitimate consultation’. For example, in Cabo Delgado, Total’s consultation process with affected communities has been a sham. When Total representatives visited and visit communities for these consultation meetings, they are accompanied by a military entourage. This, along with the presence of leaders who have a beneficial relationship with the company, means that community members are too afraid to speak out and dissent, even if they disagree, and ultimately many signed compensation agreements in public and in a language they did not understand. Yet Total was able to tick the boxes required for a legitimate process.
In general, there is not enough emphasis on preventing harm, and far more on remedy. It does not deal with what should be the foundation of the discussion, which is that there should be no harm or violations committed in the first place, and that appropriate punitive and coercive sanctions must be put in place when they are committed.
Burden of proof is too high.
In many laws, including in this draft EU law, the burden is on the claimant to prove the crime, which in this case means that corporations are innocent until proven guilty, and the assumption is that communities are not telling the truth. Communities are expected to show that their human rights were violated, amongst all difficulties linked to the asymmetry of power and complicity with national governments, while companies will only need to show that they followed the required processes needed for a project to be developed in that area. In order for community complaints to be considered ‘credible’, they are expected to provide information that is not easy for them to come by, such as written documentation and emails, video and photographic evidence, and named testimonies and witnesses, to show that the companies did not act in compliance with the law and international norms and standards. Amidst global overlapping crisis strongly linked to the power and impunity of these transnational corporations, the burden of proof should be on the companies to prove they are not responsible for the harm, or that they cannot control companies in their global value chains.
The legislation does not recognise that people cannot provide this information – they often do not have access to technology, knowledge of the language used, information in writing and in many cases their lives would be at risk for speaking out.
In the case of Cabo Delgado many mainstream media articles coming out toe the government line and there have been instances where journalists who tell the truth have been arrested and tortured, or even disappeared. Media, civil society and government officials who enter the gas area are accompanied by a military and government entourage, which makes it unlikely that communities will talk about their experiences honestly. These obstacles are not taken into account.
And on climate change
The draft EU law is not clear about companies’ compliance with the Paris Agreement and keeping below the 1.5 oC degree emissions target. Instead, it speaks of ‘compatibility’ which leaves much room for industry to claim that the agreement is ‘open to interpretation’ as they have done before several times.
As long as essential issues in the draft EU law are not addressed, including binding law on compliance with climate agreements, the reversal of the burden of proof and the establishment of clear provisions to deal with neocolonial power dynamics and systemically exploitative nature of big transnational companies , it will be yet another stamp with which the industry will show off its deceiving processes to ‘meet requirements’.
When governments are questioned on their unwillingness to sanction companies and financiers, they often claim that ‘holding dialogue’ with these companies is more effective in the long run. They have said, in several instances, that sanctioning companies should be the last resort, and will lead to them having no input into companies’ actions whatsoever. This system of continued dialogue is clearly not working -companies are continuing to act with impunity – and instead, institutions like the EU need to take ‘take responsibility for the harms of its companies, with great impacts in the global South, and take a step further to actually sanctioning them.
The insufficiency and limitations of a regional legislation
At a broader level, and even though EU corporate regulation laws are undoubtedly needed, this Due Diligence directive will not solve the global problem of corporate impunity. A regional directive – especially one linked with such a weak concept as ‘due diligence’ – must complement the process towards a UN legally binding instrument to regulate transnational companies in international human rights law (the ‘UN binding treaty on TNCs’), ongoing since 2014. Surprisingly enough, the reluctance of the EU and most of its member States to adequately engage in the UN binding treaty negotiations has been reaffirmed session after session and, unsurprisingly, heavily criticized by civil society from across the world.
Without a global level playing field, companies will continue choosing the best places to violate human rights and cause economic, social, environmental and climate impacts. Or choosing the best jurisdiction to register their parent companies. Both the EU and UN laws must include direct legal obligations to companies, affirm the primacy of human rights over trade and investment agreements, and establish judicial enforcement mechanisms. The negotiations of these or any laws aimed at regulating corporate activities should logically be protected from corporate capture and influence. The EU must include several key elements in its new directive in order for it to be meaningful – and this effort must be accompanied by the EU finally taking up its responsibility to start engaging actively and constructively in the negotiations for an ambitious and effective UN binding treaty.
Ending corporate impunity must necessarily mean that we close the legal loopholes and gaps which allow transnational corporations to evade responsibility – at national, regional and international levels.
Source: ja4change.org
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Since the early 2010s corporations have acquired over 7 million hectares of land for large-scale, industrial farms in sub-Saharan Africa, with most of these projects focused on producing water-intensive crops in already water-stressed regions. While the media spotlight is often on climate change-induced droughts, little is being said about the corporate-driven water scarcity these projects are inflicting upon people across Africa. Driven by the goal of expanding export production of water-intensive crops, governments are auctioning Africa’s water resources to the highest bidder. The new rush for land on the continent to grow trees for carbon credits is making this worse.
Water plundering
Only in the last 8 years, companies have signed land deals for over 5 million hectares for water-hungry plants in Africa. Take, for example, the New York-based company African Agriculture Holdings. It planned to use massive amounts of water from the Senegal River– the main water source for Dakar and several other major cities in Senegal, to produce alfalfa for export to South Korea and the Gulf states on 25,000 ha of land within a protected wetland. The company also planned to grow alfalfa on up to 500,000 hectares in neighbouring Mauritania, one of the most water stressed countries on the planet, and to plant a million water-hungry acacia trees in Niger to generate carbon credits. While it now appears that the company is heading for financial ruin, its CEO has already announced a new venture to grow maize on over 600,000 hectares in central Africa.
Development banks, like the African Development Bank (AfDB) and the World Bank, are working with African governments to bankroll a massive rollout of new irrigation projects across the continent to facilitate more of these agribusiness investments. In Tanzania, for instance, the government and the AfDB have budgeted hundreds of millions of dollars of public funds for large-scale irrigation projects with the private sector, with a stated goal of irrigating 8.5 million hectares by 2030– which is more than today’s total irrigated land area in all of sub-Saharan Africa.
In Kenya, President Ruto has pledged nearly US$500 million for irrigation projects nationwide, including the Rwabura irrigation project in Kiambu county, the Iriari project in Embu as well as the Kanyuambora irrigation project. The Kanyuambora, like the others, will draw water from the Thuci river and irrigate 400 hectares, which will be used to farm crops such as horticultural produce.
One company that intends to profit big from this expansion of irrigation in Tanzania, Kenya and other countries in eastern and southern Africa is South Africa-based Westfalia. The company, which is particularly active in avocado production, controls 1,200 hectares in South Africa and 1,400 in Mozambique. With support from South Africa’s government-owned Industrial Development Corporation and the World Bank’s International Finance Corporation, Westfalia is promoting the expansion of the avocado industry in countries such as Mexico, Peru, Chile and Colombia, where avocados have already fuelled a severe water crisis. Replicating this model in other African countries promises to create a similar situation.
Africa’s experience to date with large-scale irrigation projects is dismal. Most of the projects implemented over the past decades failed or are in poor condition. And many of the so-called success cases have caused more harm than good. Consider the irrigation project in Lake Naivasha, Kenya, which triggered a boom in foreign investment in flower farms in the 1980s and 1990s that serve the European and Chinese markets. Only six farms now consume over half of the water volume used for irrigation in the lake’s basin. The impact of the flower farms range from pesticide pollution, to biodiversity loss, and hampering access to safe and clean water for local people. In return there have been few benefits, with workers toiling in gruelling and hazardous conditions for meagre wages and the companies avoiding taxes.
In Morocco fruit exports-primarily destined for European and UK markets-are driven by water hungry crops such as berries, watermelon, citrus and avocados. Between 2016 and 2021 these exports more than doubled. The biggest beneficiaries of this boom are corporations as Les Domaines Export, belonging to the country’s elite, alongside foreign companies like Surexport and Hortifrut, all backed by financial players, including pension funds and development banks. Today, Morocco has more irrigated land area than any other country in Africa, aside from Egypt.
Export oriented industrial agriculture consumes 85% of the country’s water resources, intensifying the severe water stress gripping the kingdom, even as the country endures six consecutive years of drought. To cope with the crisis, the government announced the end of fruit subsidies. Yet, the measure will have little impact on large farms, since they have the financial capacity to continue with their operations, whereas small farmers will be the most affected. Other plans include investing in desalination plants. But the high energy and environmental costs make it far from a sustainable long-term solution.
On the opposite end of the continent, South Africa – one of Africa’s richest economy – has long struggled with a persistent water crisis. This is largely due to the fact that 65 percent of the country’s water resources are allocated to industrial agriculture.
Africa’s water custodians
The impact of industrial agriculture’s thirst for water is felt most acutely by African women. Already tasked with managing households, caring for families and farming for food, women and young girls are also responsible for collecting all the water needed for both their homes and farms.
As such, they bear the heavy burden of trekking long distances – sometimes multiple times a day – to collect water. It is estimated that African women collectively spend about 40 billion hours annually fetching water. As more of their water sources are diverted for use on export-oriented industrial farms, it will make it even harder for them to access the water they need for their households.
Paradoxically, those most affected by the water issues affecting the continent may also be the ones with the solutions. Rural women possess invaluable knowledge about local water sources, their usage, storage and conservation. They know, for example, ways of recycling water for washing, irrigation and livestock, like the women pastoralists of the Anuak people in Ethiopia’s Gambela region, know how and when to move their animals from wetter areas to drier ones in the rainy season, allowing local rivers to replenish and maintain its fertility.
In Kenya, Martha Waiganjo, a farmer from the dry lands of Gilgil, is one of many smallholder farmers working with the Seed Saver’s Network (SSN) to take advantage of rain water harvesting and conservation techniques as part of their agroecological practices. Through rain water harvesting, farmers like her are able to collect, store and conserve run off rain water for later use.
The run off water is stored in manually dug up dams that are lined with an anti-seepage layer of plastic commonly known as a dam liner. For Martha, her dam allows her to store close to 40,000 litres of water for her sustenance throughout the year. “[…] Water harvesting has been of great improvement on our farms, we don’t need the rain to plant. We use the water for irrigation and domestic use. The most important thing in water harvesting is that when the area is dry we use the water not only for farming but for the needs of the whole community. It is also of great importance to livestock farming.”[1]
In 2021, the UN estimated that nearly 160 million people in Sub-Saharan Africa (14% of the population) were affected by water scarcity and stress, and, with the effects of climate change now kicking in, the numbers are expected to be even higher in 2025 and beyond.
The fixation of governments, development banks and corporations on large-scale irrigation projects for industrial agriculture in Africa has to end. Water needs to instead be in the hands of the small-scale food producers who feed the continent and who are best able to develop solutions to the challenges posed by climate change.
Cover photo: Kenya 2011. Colin Crowley/Save the Children/ Creative Commons/Flickr
Original Source: Grain
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NGO WORK
Tanzanian High Court Tramples Rights of Indigenous Maasai Pastoralists to Boost Tourism Revenues
Published
1 month agoon
October 31, 2024
- Tanzanian High Court has dismissed a case filed by Maasai communities to return land violently seized by the government in June 2022 to establish the Pololeti Game Reserve for trophy hunting by the Emirati Royal Family in Loliondo.
- In violation of Tanzanian law, impacted Maasai communities were neither consulted nor compensated for being forced from their land, critical for over 96,000 people living in legally registered villages in the area.
- The ruling sets a dangerous precedent for Indigenous land rights across Tanzania and calls into question the independence of the judiciary that openly cited tourism revenues as a factor in its decision.
On October 24, 2024, the High Court of Tanzania dismissed a case (Misc. Civil Cause No. 18 of 2023) from impacted Maasai pastoralists challenging the creation of the Pololeti Game Reserve, which has resulted in crippling livelihood restrictions and widespread evictions to allow for trophy hunting in the area by the Emirati Royal Family. The shocking ruling deals a blow to Indigenous land rights across Tanzania and raises serious questions regarding the independence of the Tanzanian judiciary.
“The ruling has far-reaching consequences not only for the Maasai of Loliondo but to all people near protected areas. With this ruling, Maasai in Monduli, Simanjiro, Longido, and Ngaresero are now also at the risk of eviction without compensation,” said Denis Oleshangay, one of the advocates representing the community in the case.
On June 8, 2022, the government forcefully seized 1,500 square kilometers of land in Loliondo to create the Pololeti Game Controlled Area for the exclusive use of the Emirati Royal Family. Maasai communities protesting the theft of their land were met with violent retaliation by security forces who opened fire on the protestors. At least 30 people, including women, children, and elderly, were wounded. One elderly man was shot and remains missing over two years later while his family is still seeking answers. Thousands were displaced and fled to Kenya where they faced hunger and sickness. To suppress dissent, community members and civil society leaders have been criminalized and imprisoned for months on false charges.
Presiding over the case, Judge N.R. Mwaseba ruled that the needs of local communities should not take precedence over the value of the land to the economy. “The decision to promulgate the Pololeti Game Reserve was executed in good faith by the Government with a view to protect and ensure sustainable conservation in order to protect the natural resources, including the wild animals as a major source of foreign currency in our country…I have demonstrated above that the tourism sector is among the giant sectors contributing heavily to the national budget. It deserves close protection, including protection of the areas reserved for that purpose.”
In September 2023, in response to a separate case brought by impacted villagers (Misc. Civil Cause No. 21 of 2022(link is external)), the High Court of Tanzania ruled that because communities were not properly consulted by the Ministry of Natural Resources and Tourism (MNRT) prior to the land use change, the Pololeti Game Controlled Area was illegal. The victory was short lived as President Samia Suluhu Hassan had also issued a separate decree (GN No. 604 of 2022) to upgrade the same area to become the Pololeti Game Reserve in October 2022. While communities defeated in court the first attempt by the MNRT to seize their land, they were forced to file another case (Misc. Civil Cause No. 18 of 2023) against the President’s Pololeti Game Reserve decree. This was dismissed despite questionable new evidence proving adequate consultation by the government.
“The discrepancy in rulings by the High Court demonstrates how the government can keep shopping for judges until it gets a favorable outcome, making a mockery of justice,” said Anuradha Mittal, Executive Director of the Oakland Institute. “Impacted communities must scramble to take action in the courts and even when they win, the government can still circumvent the ruling by issuing another decree.”
In the dismissed Misc. Civil Cause No. 18 of 2023, advocates for the communities documented how the creation of the game reserve has impacted over 96,000 people whose livelihoods depend on access to land for grazing and watering cattle. Pastoralists have faced massive fines and had livestock arbitrarily seized and killed by wildlife authorities despite the fact that pastoralists play a vital role in protecting the ecosystem. Over a dozen villages are now considered illegal within the Game Reserve, while villagers were neither consulted nor compensated for losing their lands, as required by Tanzanian law.
Despite international condemnation of the government’s violent land demarcation to create the protected area in June 2022, the Judge shockingly concluded that “The allegation that the state apparatuses such as police, army, wildlife rangers harassed the inhabitants of the promulgated area is not substantiated. The featured videos do not show whether they relate to establishment of GN No. 604 of 2022.”
The United Arab Emirates (UAE)-based Otterlo Business Company (OBC) – which runs hunting excursions for the country’s royal family and their guests – will reportedly control hunting in the area despite the company’s past involvement in several violent evictions of the Maasai, including in 2017, burning of homes, and the killing of thousands of rare animals in the area.
“When a government recklessly violates the rights of its citizens, and domestic courts offer little hope for redress, international scrutiny and action is paramount. The US and other donor governments who finance so-called conservation in Tanzania with tax-payer money must take immediate action to help secure justice or be held accountable for their complicity,” Mittal concluded.
Advocates for the impacted villagers have already filed a notice of intention to appeal the ruling.
Original Source: oaklandinstitute.org
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Conference of the Parties to the Convention on Biological Diversity (COP16): Solutions for companies, losses for communities and biodiversity
Published
1 month agoon
October 28, 2024The Conference of the Parties (COP16) to the Convention on Biological Diversity (CBD) is being held from October 21st to November 1st in Colombia. This initiative has failed in its goal of halting the alarming loss of biodiversity. For 30 years, instead of putting an end to extractive companies’ destruction, the CBD’s proposals have worsened the situation – through actions that have undermined both the sovereignty of Indigenous Peoples and communities, and their ability to remain in the territories they inhabit and protect.
The destruction of biodiversity to feed corporate greed is readily apparent through alarming facts and figures: 54 percent of wetlands have disappeared since 1900; land degradation from human activities is causing the extinction of one sixth of all species; and 50 percent of agricultural expansion between 1980 and 2000 occurred on razed areas of tropical forest (1). In Asia, oil palm plantations have been the main driver of forest loss during this period.
32 years ago, during the Earth Summit held in Rio de Janeiro, Brazil, more than 170 countries pledged to take measures to halt this destruction. To this end, they signed the Convention on Biological Diversity (CBD). However, this initiative has failed spectacularly.
Despite their numerous declarations in support of taking action, and their adoption of goals and targets, governments have shown no real interest in taking the necessary measures to stop the destruction of biological diversity. By way of proof, one only has to review the targets established for the decade between 2010 to 2020, known as the Aichi Targets: none of them has been achieved.
The 16th Conference of the Parties (COP) to the CBD is being held in Cali, Colombia, from October 21st to November 1st, 2024. During this gathering, government negotiators aim to evaluate the countries’ progress in achieving the new targets set for the year 2030, which are included in the so-called Global Biodiversity Framework. Yet, over 85% of the countries missed the deadline to submit their new commitments before the start of the COP, revealing their ongoing lack of commitment (2).
To stop devastating biodiversity loss and try to reverse it, it would be necessary to put an end to the destruction in the first place. This destruction is caused by extractive oil companies, mining, agribusiness, plantations, hydroelectric dams, and other industries, as well as by other economic sectors that secondarily benefit from these destructive activities – such as airlines, banking, finance, investors, etc. Yet instead of stopping the destruction, the proposals implemented by the CBD tend to worsen the situation – through actions that undermine both the sovereignty of Indigenous Peoples and communities, and their ability to remain in the territories they inhabit and protect.
One of the concrete ways in which the CBD causes this kind of conflict is through the target known as “30 x 30,” which was promoted by large conservation NGOs. Its objective is for 30 percent of the planet – including the world’s land, fresh waters and oceans – to be declared as protected areas by 2030. However, this objective does not take into account the suffering and resistance of thousands of communities affected by the imposition of conservation areas in their territories – and the serious violations of their rights this has caused. Far from being a solution, this model of conservation without people actually generates conflict and violence, costing lives in the communities that lose control of the territories they inhabit.
Another major and worrisome threat coming from the Convention on Biological Diversity (and the corporate influence over it) is the inclusion of biodiversity offsets and credits as a legitimate mechanism to “repair” the destruction that companies have caused.
Through offsets, polluting industries assume the right to destroy territories, with the excuse that these damages and losses will be “offset” elsewhere on the planet. However, this is not possible. In a recent Statement, hundreds of civil society organizations warned that “biodiversity offsets can create conflicts over the right to own and use lands, fisheries and forests, and can compete with agroecology and smallholder agriculture, undermining food sovereignty. [These offset projects] will likely drive land grabbing, the displacement of communities, increased inequality in access to land, and human rights violations – just like carbon offsets do.”
This Statement warns that biodiversity offsets and credits seek to imitate carbon offsets and credits. But not only are they replicating the faults of carbon offsets and credits; biodiversity credits and offsets intensify negative impacts by including innumerable forms of life in a strategy of financialization. So far, these mechanisms have proven to benefit large corporations that continue to pollute – such as oil, mining and airline companies. They also benefit the associated chain of managers, certifiers, consultants and financiers that implement these mechanisms. Meanwhile, communities are suffering from the deception and impacts of these mechanisms, which have been widely documented by academia, the press, and other sectors.
We invite you to read the full statement, which also presents alternative proposals to another key point on the COP16 agenda: the financing of strategies to stop biodiversity loss.
This bulletin also includes articles about how tree plantations and offset projects are expanding and occupying territories, as well as other articles celebrating the resistance of communities.
One of the articles, from Gabon, documents the power of community resistance to Sequoia’s attempts to install 60,000 hectares of eucalyptus plantations in the Bateke Plateau region that would be used to generate carbon credits. Another article from the Republic of Congo describes how oil companies are grabbing land to set up tree plantations for the carbon market, so that they can greenwash their image. A third article reports from two provinces in Mozambique where eucalyptus plantations have obliterated the biological and genetic diversity of the machambas (traditional cultivation areas). In the wake of the pulp industry, major homogenization occurs, and the expression of the genetic diversity of seeds and local varieties disappears.
Another article analyzes the Thai government’s strategy to implement an offset-based climate policy, a concept which is inherently contradictory and which expands corporate control over community lands. And now the Thai government wants to extrapolate this idea from the climate and apply it to biodiversity. These offset projects would be carried out in “green areas” that would cover more than 50 percent of the country.
Finally, we present the third episode of the podcast entitled “Women’s Struggles for Land,” which aims to highlight the voices of women and their multiple forms of resistance to the occupation of their territories. This third episode, from Indonesia, was jointly produced with the organization, Solidaritas Perumpuan, and it recounts the experiences of women in the Kalimantan region facing plantation projects and REDD projects.
This collection of cases reveals how the kinds of actions proposed at the COPs affect people’s sovereignty over the territories they inhabit. Their sovereignty is indispensable in stopping the biodiversity crisis. In light of this situation, many peoples and communities around the world are reclaiming control of their territories and are fighting to defend them. In so doing, they are defending biological diversity and life itself!
(1) Estado actual y resultados de la IPBES | Biodiversidad Mexicana
(2) COP16: More than 85% of countries miss UN deadline to submit nature pledges – Carbon Brief
Orginal Source: World Rainforest Movement (WRM)
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