Global Governance of the Environment, Indigenous Peoples and the Rights of Nature: Extractive Industries in the Ecuadorian Amazon (Governance, Development, and Social Inclusion in Latin America) 3030815188, 9783030815189

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GOVERNANCE, DEVELOPMENT, AND SOCIAL INCLUSION IN LATIN AMERICA

Exxtracttive Industries in the Ecuadorian Amazon

Liinda Etchart

Governance, Development, and Social Inclusion in Latin America

Series Editors Rebecka Villanueva Ulfgard, International Studies, Instituto Mora, Mexico City, Mexico César Villanueva Rivas, Department of International Studies, Universidad Iberoamericana, Mexico City, Mexico

This series seeks to go beyond a traditional focus on the virtues of intraregional and inter-regional trade agreements, liberal economic policies, and a narrow security agenda in Latin America. Instead, titles deal with a broad range of topics related to international cooperation, global and regional governance, sustainable development and environmental cooperation, internal displacement, and social inclusion in the context of the Post-2015 Development Agenda — as well as their repercussions for public policy across the region. Moreover, the series principally focuses on new international cooperation dynamics such as South-South and triangular cooperation, knowledge sharing as a current practice, and the role of the private sector in financing international cooperation and development in Latin America. The series also includes topics that fall outside the traditional scope of studying cooperation and development, in this case, (in)security and forced internal displacement, cultural cooperation, and Buen Vivir among indigenous peoples and farmers in Latin America. Finally, this series welcomes titles which explore the tensions and dialogue around how to manage the imbalance between state, markets, and society with a view to re-articulating cooperation and governance dynamics in the 21st century.

More information about this series at https://link.springer.com/bookseries/15135

Linda Etchart

Global Governance of the Environment, Indigenous Peoples and the Rights of Nature Extractive Industries in the Ecuadorian Amazon

Linda Etchart School of Engineering and the Environment Faculty of Science, Engineering and Computing Kingston University Kingston upon Thames UK

Governance, Development, and Social Inclusion in Latin America ISBN 978-3-030-81518-9 ISBN 978-3-030-81519-6 (eBook) https://doi.org/10.1007/978-3-030-81519-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover image: © Architectura/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Series Editors’ Preface

This insightful study by Linda Etchart entitled Global Governance of the Environment, Indigenous Peoples and the Rights of Nature in Latin America is the outcome of several years of activism and academic research, maturing into an urgent investigation scrutinizing multiscalar dynamics of power surrounding environmental policies, the rights of nature and the rights of indigenous people, and how empowerment and disempowerment strategies on the part of the various actors involved play out in networks and legal-political processes. In particular, Etchart carefully dissects the use and effectiveness of the consultation mechanism known as Free, Prior and Informed Consent (FPIC) for indigenous peoples in cases featuring multinational corporations and foreign governments, which involve the risk of serious conflict with the rights of nature and/or traditions rooted in the philosophy of sumak kawsay/buen vivir. As a mirror, Etchart looks into the case of Ecuador’s Yasuní national park and the oil drilling activities involving the state-to-state Chinese venture Andes Petroleum Ltd Ecuador, and the protracted settlement of the Texaco/Chevron/Ecuadorian government oil spill lawsuit, begun in 1993, with regard to oil extraction in the north-east Amazon region in Ecuador 1972–1992 (litigation still unfinished due to Texaco “shopping” jurisdiction to avoid accountability for any harms done). Investigating the meanings attributed to sumak kawsay/buen vivir—to live well or to live in plenitude in the context of both the Ecuadorian constitution and the ways of life of indigenous communities, she points out: “Common to v

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these movements was a mobilization away from and also actively resisting, where necessary, unchecked exercise of state power and the power of multinational companies supported by the state”. A principal dilemma that Etchart addresses with great sensibility is that in events involving accusations of violations of rights of nature or indigenous communities, it may not seem obvious which state institution to hold accountable for not monitoring private companies’ abuses of power. Especially for the developing state, where indemnity for companies from prosecution has been signed off by governments … “jurisdictional and liability ambiguities thwart successful prosecution”. Responsibilities were not shared in 2021, the private sector still had the convenience of letting costs be absorbed by the state (though, it should be said, under the UN aegis there was in 2021 an ongoing initiative on binding commitment for multinationals whose operations cover multiple jurisdictions). Etchart is pertinently asking whether we are not witnessing a dilemma of multiple accountability disorder in networked global governance of the environment, where it has become increasingly difficult to pinpoint mechanisms of participation as well as delegation on the part of the actors involved1 . Indeed, “governance dysfunctions” seem to exacerbate the “excess of accountability, monitoring, and evaluation for their own sakes”, making more difficult the proper implementation of environmental standards and regulations. She also points to the problem of siloization contributing to the “accountability paradox”; “the greater the accountability, the less environmental protection”. Ecuador’s dilemma under Rafael Correa’s terms in power (three mandate periods: 2007–2009, 2009–2013, 2013–2017) was that of lack of interest from the international donor community to help the government adhere to its rights-based commitments, coupled with a leftistpopulist agenda (increasing public expenditure in healthcare, education, and social programmes), and the challenge of limiting external debt. Ecuador defaulted on payments on its external public debt in 2008 and 2009, as a result of the global financial crisis and a fall in oil prices, thereby straining its lines of credit. The country therefore had to turn to China as a lender of last resort, and to secure loans on the basis of its oil deposits. Simultaneously, President Correa promoted the image of Ecuador as a

1 Cf. Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics”, American Political Science Review, Vol. 99, No. 1 February 2005.

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world leader in protection of the environment and indigenous peoples’ rights. However, sitting very close to private companies and foreign investors resulted in weakened regulative power of the state. Etchart takes these insights into her questioning to what extent legal principles really are concomitant with political actions. She skilfully unpacks the dilemma involving “state sovereignty over minerals that lie beneath the soil under national law—versus international and national law that purportedly give control over access to indigenous land to indigenous populations who by regional and international law have a right to be consulted under the provision of Free, Prior and Informed Consent (FPIC) institutionalized by the International Labour Organization (ILO), the United Nations, and the Organization of American States (OAS)”. Etchart meticulously contrasts the “small print” of key documents such as the Ecuadorian Constitution and the National Biodiversity Strategy, to sustain her main argument that there is ambiguity built into legal principles and that the state (interest) always has the last say: “that rights are granted to indigenous communities until or unless their decisions do not correspond with the interests of the state or state officials when it comes to economic interests”. The crux is that this understanding can be sustained despite a government’s commitment to ideals and ideas enshrined in the ILO Convention 169 and the FPIC principle under the United Nations Declaration on the Rights of Indigenous Peoples. In the case of Ecuador, not surprisingly, Correa did what many other state leaders did—speak with a forked tongue: “[he] endorsed global environmental initiatives while simultaneously securing loans … in exchange for contracts with oil and mineral companies, whose activities contravened those same treaties and conventions”.2 Correa eventually did not pursue the protective (dis)course and Realpolitik prevailed. Nevertheless, the emblematic case with the issue of keeping the oil in the ground in the Yasuní national park had significant “symbolic value” for its legal, political, and moral-ethical dimensions. Etchart’s perceptive investigation reflects the dilemma at the local level surrounding the meaningful use of the FPIC principle; one involving conciliation: “[F]inancial and material incentives offered to indigenous communities already living under stress and faced with diminishing 2 Cf. Richard Lalander, “The Ecuadorian Resource Dilemma: Sumak Kawsay or Devel-

opment?”, Critical Sociology, First Published December 23, 2014. At: https://doi.org/ 10.1177/0896920514557959

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resources on which to survive, will more often than not secure their consent to the exploitation of protected areas which otherwise they would prefer to be free from mineral and oil extraction”. Her sharp-eyed observations identify the “cash for consent” dilemma, how indigenous communities confront challenges involving expensive and protracted legal processes with uncertain outcomes, the co-option of indigenous community leaders, environmental non-profits being bedfellows with oil companies, and the investment of pension funds in disputed territories, among other issues. But, as Etchart remarks: “It is only when legal challenges in local, state and regional courts against extraction succeed, that decisions are reversed”. We could add then that this is why her study is particularly commendable as it provides (new generations of) environmental and/or indigenous rights activists and NGO representatives with solid knowledge of international legal principles and practices of governments as well as private actors in global governance networks to sustain their claims. Consistent with her critical approach, Etchart provides a historical perspective on the development of global environmental governance principally through the UN institutions, principles, and norms from the UN Conference on the Human Environment in Stockholm via the Brundtland Report, the Millennium Agenda, all the way up to the Reducing Emissions from Deforestation and Forest Degradation (REDD+) programmes, criticized by some observers for being imposed and controlled from above, requiring monitoring and evaluation that becomes “a form of control, effectively disempowering and disciplining indigenous communities”. She also examines the ideas behind the UN Global Compact of 2000, which was reinforced by the development of the 31 United Nations Guiding Principles (UNGPs) on Business and Human Rights endorsed by the UN Human Rights Council in 2011. However, the voluntary nature of these principles and the lack of monitoring and accountability did not change for the better the vulnerable situation of indigenous communities or nature, for that matter. As Etchart shows, it rather contributes to companies’ greenwashing and “CSR-readiness” branding practices. The reader’s attention is drawn to the 2019 report by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES)—featuring UNESCO, UNDP, FAO, and UNEP—arguing that it was “indigenous communities which had been the most effective in preventing habitat and therefore biodiversity loss, even in protected areas, and had contributed to limiting deforestation”. However, the Paris Agreement made “no mention of indigenous peoples’ role in mitigation of

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climate change, only in adaptation to the effects of climate change”, “… giving them the status of victims, rather than their being viewed as potential actors in the quest to combat climate change”. Despite such examples of disempowering or depriving indigenous activists of agency, Etchart’s voice is hopeful since through lived personal experiences and numerous accounts, she knows the road travelled by indigenous organizations across the Amazon, and how the demand for indigenous rights went hand in hand with a greater focus on securing biodiversity and fighting climate change. In this study, she exemplifies how activists and indigenous communities gathered support from transnational activist networks and campaigns by leapfrogging levels of power in order to communicate effectively their causes. She also evidences the role of social media for providing a platform to coordinate resistance and rescale narratives.3 Still, she matter-of-factly concludes that: “While there is clear evidence of multiple small acts at the local level having an impact on global decisions, ultimately the conclusion has to be that attempts of local communities to establish and implement their own rules are constrained by decisions made at higher governance levels and by the structure of the global economy.” Another contribution by Etchart is her insightful scrutiny of corrupt practices by individuals and politicians affiliated with various companies and the Ecuadorian government, details that have become known through investigative journalism (the Panama papers) and legal proceedings (some having connections with the Odebrecht scandals affecting several Latin American countries), for example, with the construction of the Coca Codo Sinclair dam in the Ecuadorian Amazon region (inaugurated in 2016). Hence, she analyses the practices of legal and illegal financing of mega-projects, involving overt and covert “payments, benefits and remuneration to individuals or government administrations who stand to gain from the activities of the extractive industries and from large-scale infrastructural projects such as roads, transit systems and hydroelectric power plants”, whose utility could be put into question (in fact, the Coca

3 Cf. Havard Haarstad and Arnt Fløysand, “Globalization and the power of rescaled narratives: A case of opposition to mining in Tambogrande, Peru”, Political Geography 26 (2007): 289-308, argue that “… oppositional politics can ‘jump scale’ by rearticulating issues at larger scales to mobilize leverage”, making the case for examining “what is the actual relation between jumping scale and empowerment, and what type of empowerment are we talking about?” (Abstract).

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river banks were eroded, and floods forced evacuation of indigenous and non-indigenous communities). Indeed, strong forces are at play; personal greed but also cooperation, as with the Extractive Industries Transparency Initiative (EITI) (established 2003), through which state-owned enterprises (SOEs) are encouraged to become “agents of change” in terms of transparency, accountability, and anti-corruption practices, a commitment to which the state-owned oil company EP Petroecuador became a signatory in August 2020.4 As Etchart points out, since the EITI asked of SOEs to publish all new contracts and contract amendments as of January 1, 2021, this constitutes a major step forward in avoiding hidden payments for contracts. Still, the degree of compliance is yet to be seen (for Ecuador, beyond 2023, when its validation will take effect). We reason that Etchart’s solid criticism presented in this work could be read against the background of a growing concern across scientific boundaries and sectors in society with climate change and systemic challenges, and their potential effects on future pandemics and epidemics. Various factors have been singled out such as demographic transition and the growing urban-rural divide; high concentration of population and animals in confined areas; increasing trade and tourism, travel, and migration augmenting disease transmission; abandoned practices in agriculture and forest-keeping causing adverse effects on ecosystems and environments, resulting from climate change and unsustainable food industry processes.5 Moreover, in developing and least developed countries with underfinanced public health care and higher levels of socio-economic inequality, the consequences of a sudden crisis such as the COVID-19 pandemic pose a serious threat to human security and to nature. Firmly, Etchart conveys how indigenous communities across the Amazon have for centuries understood the relevance of adopting a holistic view, which forms the basis of philosophies such as sumak kawsay/buen vivir. In the scientific international community, however, it has been captured as the approach of “an ecosystem of interactions” in which it is paramount 4 EITI. “Evolving expectations: Why transparency matters for state-owned companies in the extractive sector”, April 13, 2021. https://eiti.org/blog/evolving-expectations-whytransparency-matters-for-stateowned-companies-in-extractive-sector 5 See, for instance, Juliet Bedford, Jeremy Farrar, Chikwe Ihekweazu, Gagandeep Kang, Marion Koopmans, and John Nkengasong, “A new twenty-first century science for effective epidemic response”, Nature, published November 6, 2019; 575(7781): 130–136. doi: 10.1038/s41586-019-1717-y

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to “acknowledge that human, animal and ecosystem health are tightly interconnected and need to be studied in the context of each other”.6 Returning to Etchart, in Chapter 6, she is asking rhetorically whether the Convention on Biological diversity (CBD) has become “a force-multiplier for the extractive industries”. Her critical claim on the multinationals’ responsibility for putting at risk biodiversity in the Amazon and the livelihood of indigenous people (“potential for disharmony with nature”) could also be seen in the light of the global NGO, Action Group on Erosion, Technology and Concentration (ETC) alert that the agro-food industry might be one of tomorrow’s vectors of new virus causing future pandemics.7 The withdrawal of Andes Petroleum Ltd Ecuador in 2019 from its 158,000-hectare oil block 79 concession that overlapped Sápara and Kichwa territory should rightfully be called a victory for the rights of nature and indigenous communities in Ecuador, though in 2021 the Chinese-financed oil company PetroOriental continued to drill exploratory oil wells in Block 14 of the Yasuní national park occupied by indigenous communities living in voluntary isolation in the Zona Intangible Tagaeri Taromenane (ZITT) protected zone. In a world postCOVID-19 hungry for growth and development, and economies indirectly or directly drawn into China’s “One Belt, One Road” initiative, the dilemma is particularly stark for emerging countries taking on huge debts for mega-infrastructure projects. A new extractives boom under current global circumstances might pose an even greater threat to the rights of nature and indigenous communities alike. That is why Etchart’s outstanding work is a necessary read for students, academics, activists, and policymakers in the Americas and beyond. Mexico City, Mexico June 2021

Rebecka Villanueva Ulfgard César Villanueva Rivas

6 Ibid. 7 ETC, Video/podcast #3: Which new normal?, May 21, 2020, at https://www.

etcgroup.org/content/which-new-normal. See also interview with Silvia Ribeiro, ETC Director for Latin America, in La Jornada, “La industria agroalimentaria, fábrica gigante de nuevos virus”, May 17, 2020, at https://www.jornada.com.mx/ultimas/economia/ 2020/05/17/la-industria-agroalimentaria-fabrica-gigante-de-nuevos-virus-2001.html.

For James

Foreword

The initial plan for this research was that it would be participatory, multiauthored, with lightly mediated voices, out of which theory would emerge inductively. There was an element of denial of my own sovereign voice, as the idea was that participants would be free to express their worldviews and interpretation of events without being presented with leading questions. The qualitative methods that were employed for the fieldwork in the headwaters of the Amazon in Ecuador in 2016, and at the United Nations Secretariat in New York in the intervening years, did include in-depth interviews, and participant observation. There are instances of intensive (thick) research that explore the motivations of the participants and their view of their own relations at a local and international level. I took care not to discount findings that did not correspond with my own. The purpose, by not mediating, was to seek “objectivity”, which is actually never attainable, as where we stand depends upon where we sit. So I do not make any claims to objectivity, but at the same time, I would argue that the evidence presented and the selections made have validity and raise questions that would recommend further research. As it turned out, indigenous participants in the headwaters of the Amazon and at the United Nations were well versed in aspects of political science and international political economy, and a number of the theoretical preconceptions appeared to be validated by their contributions.

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On the other hand, over time, silences and absences in particular narratives began to emerge which revealed other stories that had perhaps been downplayed for the purpose of political objectives. The different players tend to talk past each other, failing to make fundamental connections. The research involved the study of discourses, patterns of behaviour, events, beliefs, attitudes in order to analyse social relations and how these impact upon local, regional, national, and global governance. The purpose was to analyse the relationship between events at the micro-level and those at a global macro-level. The assumption was that information and data on their own do not necessarily constitute knowledge; therefore, the project was to analyse data using existing social science theory in this particular field of knowledge. My research therefore ultimately employed tested social science research techniques, looking for reliability, reproducibility, and validity to provide explanations that go beyond anecdote or speculation. It also relied on scientific studies conducted in the field by anthropologists, biologists, cartographers, and geographers. I hope that out of the whole I have constructed a meaningful argument that will stand up to challenges. Deconstruction as developed by Derrida (2001) and structuration reveal the hierarchical assumptions contained within Enlightenment approaches to the world under which certain races, classes, or genders are prioritized and created as the subject: Others, such as women and indigenous people, have often been designated as inferior or rendered invisible, and therefore silenced. It was Foucault who attempted to uncover the hegemonic discourses at work that maintain order in a society, whereby knowledge becomes a tool of power: “power is everywhere”, diffused and embodied in discourse, knowledge and “regimes of truth” (Foucault, 1991). Unintentionally, perhaps, on my part, in examining the dynamics of power operating behind the activities of the extractive industries in the Ecuadorian Amazon, and how they relate to indigenous peoples living in harmony with nature or living in voluntary isolation, there emerged an awareness of a diffuse power embodied in the discourse, knowledge and “regimes of truth” of the extractive industries operating in global economic structures that create driverless vehicles, literally and metaphorically. Caught in these vehicles are presidents, politicians, company directors, investment managers, investors, and pension funds. Holding out against the driverless bulldozers of globalization are small groups of hunter-gatherers/agriculturalists in the headwaters of the

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Amazon, unarmed, some of them having to attempt to avoid drinking from rivers contaminated with oil, and many finding their source of food in the form of game out of bounds for being rare species in need of protection. The present work was embarked upon within a framework of international relations theories, yet in a spirit of resistance to governments, scepticism with regard to the nation-state system and an aim to find alternatives in the form of off-grid communities living in eco-villages in a preand post-development world. It began as an expression of a quest for other sovereignties—a rejection of the assumptions of the Treaty of Westphalia of 1648, colonial boundaries and the imposition of Westminsterstyle parliamentary democracy that in former European colonies tended to lead to marginalization or exclusion of minorities. The philosophy of buen vivir fitted into this anti-state worldview as it incorporated a move away from mass consumption and towards a circular economy, a commitment to a smaller carbon footprint, autonomy, self-sufficiency, and self-determination, respecting and protecting nature. The ideas were developed in the context of working for an intergovernmental organization concerned with the protection of human rights, with high ideals and dedicated programmes to support the rights of women and minorities, good governance and respect for the rule of law, and the achievement of the Millennium Development Goals, which later evolved into the Sustainable Development Goals. All of which are as important as ever. Where the revolution in thought came was a realization of the importance of relational autonomy, rather than pure autonomy, that is, a solidarity at a global level, through communication and interaction. That relational autonomy was perhaps always there, in the form of common aspirations to protect nature from the damage done to it by certain aspects of human civilization, which included the will to dominate others and build empires. One of the main lessons I have learned in the course of this research is the necessity for indigenous communities, as they express it themselves in their own way, to be on-grid, connected with the outside world, informed of what is being done to them and to the environment in the name of progress and development, in order to be able to counter activities that may be illegal under national or international law, and to be creative in constructing alternatives to consumer capitalism through participation and leadership. The correct application of international law

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becomes essential through the functioning of independent judiciaries that can work with and incorporate complementary legal systems, respecting common law and traditional practices. In terms of governance, the extent of the secret diversion of state resources into the bank accounts of individuals within or outside of tax havens revealed through this investigation leads to the conclusion that government business, particularly in the area of procurement, including within public-private partnerships, has to be conducted in the open, with monitoring of local and international financial transactions. With regard to the environment, of note is the immensity of the resources and energy that have been devoted to saving nature over the last sixty years, and the astonishing number of organizations and instruments arraigned for that purpose. There are multitudes of environmental activists genuinely willing to make a change in South and North, yet in many ways until the present they have been prevented from doing so. In the course of engaging in an analysis of buen vivir, the book took an unavoidably unexpected turn and moved into the realms of the internal workings of government procurement, climate finance, and investment management, as an inevitable consequence of tracing the money to find the key to decision-making power at state level (see chapters 7 and 8). In this regard, rather than writing at a purely theoretical level, I have attempted to identify individuals and enterprises, with dates and figures. These are not to be taken personally, as they were used as illustrations of particular phenomena and processes out of which it was intended to make generalizations. In other words, there was a need to provide evidence for theoretical claims by naming names. Being grounded with detail on specific communities and places, the conclusions are provisional, to be contrasted with case studies elsewhere; however, they do raise the question of whether the bulldozers are driverless or not—in other words, is the invisible hand of the market really invisible, or should we look for it. In terms of our engagement with Ecuadorian indigenous representatives in Ecuador and in New York, we have been awed by the commitment through which Abya Yalan individuals have been able to conceptualize and transmit their understandings of international relations and international law, travelling in person and virtually from the headwaters of the Amazon River to the United Nations, to deliver consummate speeches to large audiences, in order to convince the world of the urgency to take action to protect the forests and their inhabitants. Given the support that indigenous land defenders have from environmentalists across the globe, it is

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disturbing that until 2021 indigenous voices did not reach, or were not heard by, many of those concerned corporate individuals who have the capacity to prevent climate change through the protection of the rights of indigenous peoples and of the rights of nature. It is hoped that the present volume will contribute to greater understanding and meaningful policy changes. Kingston upon Thames, UK May 2021

Linda Etchart

References Derrida, Jacques (2001) [1967] Writing and Difference. London: Routledge. Foucault, Michel (1991) The Foucault Effect: Studies in Governmentality with Two Lectures by and an Interview with Michel Foucault, edited by G. Burchell, C. Gordon and P. Miller. Chicago: University of Chicago Press.

Acknowledgements

A great many people have contributed to bringing this book to fruition, as it is a collective enterprise, in which I did not intend to be the sole author, but rather it was intended to be co-authored by those whose voices I recorded in Ecuador, London, and New York, using participatory methods and induction out of which theory would evolve. Theory crept in, however, as it has a habit of doing, and which is essential in analyses of governance, in international political economy, and research into domestic and foreign policy. The work is overall a collaboration with authors past and present, as well as with our peripatetic Ecuadorian friends who travelled the world campaigning for the rights of indigenous peoples and the rights of nature in the days before the onset of the COVID-19 pandemic in 2020–2021, and subsequently. Accompanying me throughout has been my patient husband, James Thackara, who has provided inspiration and support in England, Ecuador, and New York, and the wisdom of a lifetime dedicated to upholding the rights of indigenous peoples and the rights of nature. We owe a debt of gratitude to Leo Cerda, Kichwa of Serena in the province of Napo in the Ecuadorian Amazon, co-author in other projects, and maestro of Ecuadorian political life, through whom we were able to meet key players during a dramatic period in the country’s history, when political and social forces came together and separated in a range of configurations depending on the ebb and flow of the tides. Thank

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you to Steven Donziger, Casey Box of Land is Life, Amazon Frontlines, Amazonwatch, Amnesty International, the Pachamama Foundation, Lindsay Ofrias, Clément Guerra, and Michael Reich. Special thanks are due to all those who took time out to be interviewed. In the Amazon, Alicia Cawiya, Traya Muskuy (Eriberto) Gualinga, Gerardo Gualinga, José Gualinga, Nelson Gualinga, Patricia Gualinga, Manuela Ima, Patricia Nenquihui, Marlon Santi, Felix Santi, Mario Santi, Ayme Tanguila, Franco Viteri, Tupac Viteri are among those were generous in sharing their thoughts and reflections. In Quito, Professors Alberto Acosta and Mario Melo Cevallos in their wisdom provided essential background to the story of Ecuador’s attempts to balance income from oil with the rights of people and nature. We are grateful to Julio Prieto for his advice with regard to the Aguinda v Chevron case. And for those, not least among them MariCarmen Falcon Aide and Julio Etchart, who carefully transcribed recordings in Spanish which at times presented a challenge, with names of unrecorded places and people; also to Jon Polo Iturregui and Ines Castillo; and Gus Mitchell for his English language transcriptions. I am grateful to colleagues at Birkbeck and Kingston for their support and encouragement; to Professor Hazel Smith of the School of African and Oriental Studies, Professor Soyeun Kim of Sogang University in Korea, to Roger van Zwanenberg and Anne Beech of Pluto Press— from times past—and to Kurt Jacobsen, all of whom have kept their sense of humour through the vicissitudes of scholarly life and academic publishing. Thank you also Alina Yurova from Palgrave Macmillan; to Mike Gatehouse of the Latin America Bureau, co-publishers (with Practical Action and Monthly Review Press) of Voices of Latin America: Social Movements and the New Activism (2019), edited by Tom Gatehouse, in which the words of several of the interviewees in this book appeared in my chapter “Indigenous Peoples and the Rights of Nature”. My brave children Alex and Camille have shown fortitude and forbearance in my frequent absences in pursuit of intangibles. Not least deserving of praise are series editors Rebecka Villanueva Ulfgard and César Villanueva Rivas, whose theoretical understanding and critical acuity have been invaluable.

Contents

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Introduction: Indigenous Peoples and Modernity: Identity in the Ages of Empire and Decolonization Introduction Summary of Chapters Methodology Indigenous People’s Incorporation into the Western Human Rights Universe Evolution of Indigenous Rights in Latin America Implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 Under International Law The Relationship Between Modernity and Indigeneity Relational Autonomism: New Social Movements in Latin America Indigenous Peoples at the United Nations: Case Study Ecuadorian Amazonians References Global Governance of the Environment: Multiple Accountability Disorder? Concept and Practice of (Global) Governance Definition of Global Governance Failure of Attempts at “good” Global Governance (of Indebted Developing Countries) in the 1980s

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Intergovernmental Organizations How Do Networks Contribute to Global Governance? International Treaties and Agreements International Non-Governmental Organizations and Other Non-State Actors in Global Governance The Global Compact: The Role of the Private Sector in “good” Global Governance The United Nations, Circular Global Environmental Governance and the “International Community” Private Industry, Big Philanthropy, and Global Governance of the Environment Proliferation of Global Environmental Governance Institutions Conclusions References 3

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Buen Vivir and the Rights of Nature in National and International Law The Urgency of Global Environmental Governance in the Twenty-First Century Definitions of Indigenous and Tribal Peoples Epistemologies of the South: Indigenous Perspectivism and Harmony with Nature The History and Interpretation of Sumak Kawsay and Buen Vivir Ecuadorian Sumak Kawsay and Bolivian Suma Qamaña Rights of Nature and Rights of Indigenous Peoples The United Nations and Harmony with Nature Rights of Nature in International and National Law The Escazú Agreement of Latin American and Caribbean States References Indigenous Peoples’ Rights and Global Governance of the Environment in the Amazon Basin: Case Study Ecuador The Context: Indigenous Peoples’ Engagement with International Global Environmental Initiatives

30 31 33 34 36 41 44 48 50 51 57 57 59 60 64 66 68 70 72 77 79

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International Instruments to Protect the Rights of Indigenous Peoples Including Free, Prior, and Informed Consent Reducing Emissions from Deforestation and Forest Degradation (REDD+) The History of REDD+ and Socio Bosque in Ecuador Indigenous Peoples and International Environmental Agreements Indigenous Resistance in Ecuador The Case of the Yasuní National Park Indigenous Activists, the Media, and International Organizations Conclusion References 5

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Corporate Social Responsibility and the Extractive Industries in the Ecuadorian Amazon: Indigenous Rights and the Environment Chevron/Texaco and the Amazon “Chernobyl” Forum Shopping (and its Consequences for Class Action Suits) The Case against Environmental Lawyer Steven Donziger Competing Interests on the Global Stage: Establishing Environmental Credentials Facebook as a Tool of Indigenous Resistance Morona Santiago, Zamora Chínchipe, and the Shuar: Intra-Indigenous Community Conflicts Resistance to Ecuadorian Government Contracts with Andes Petroleum Ecuador Ltd: The Role of CSR Dangers Surrounding Environmental Impact Assessments Struggles Over the Implementation of Free Prior and Informed Consent (FPIC) Conclusion References Biodiversity, Global Governance of the Environment, and Indigenous Peoples The Convention on Biological Diversity (CBD): A Force-Multiplier for the Extractive Industries?

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121 121 126 128 133 135 137 139 143 146 149 150 157 157

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IPBES Global Assessment on Biodiversity and Ecosystem Services Ecuador’s Bioeconomy: Banking Nature Global Governance in the Protection of Endangered Species The Biodiversity Challenge for Indigenous Peoples: Potential for Disharmony with Nature The Bushmeat Crisis and the Trafficking of Wild Animals Alternative Strategies for the Amazon: The Rise of Ecotourism Conclusion References 7

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Sustainable Funds and “Cuddly Capitalism”: Indigenous Land Defenders and the Greenwashing of Investment Management BlackRock’s Environmental Transformation The year Capitalism went Cuddly The Dawn of Ethical Investment United Nations Environment Program Finance Initiative Watching Their Greenbacks: How Ethical Are Ethical Investments? Naming and Shaming Recalcitrant Private Enterprise The Broad Brush of ESG Compliance: Company Track Records BlackRock: Taking Action Against Climate Inaction? Climate 100+ Letter to the US Federal Reserve and the Securities and Exchange Commission Leading Technology Companies on the Climate Change Bandwagon The Limitations of Green Finance and Carbon offsetting BlackRock, Amazonwatch, Indigenous Peoples, and the Environment Conclusions References Financing for Development: Extra-Official Payments as Incentives for Development Projects The Failure of Environmental Governance in the Amazon Basin: The Context Financing for Development: Ecuador’s Debt Trap

159 164 166 167 169 175 178 178

185 185 189 190 191 196 196 198 199 204 205 208 210 211 214 223 223 225

CONTENTS

The Odebrecht Affair and the Panama Papers in Ecuador Irregular Payments Linked to Hydroelectric Projects The Coca Codo Sinclair Dam Cash for Consent: The Implications for Human Rights and Environmental Protection of Unofficial Payments Global Governance in Combating Financial Crime Extra-Curricular Payments as an Obstacle to the Achievement of the Sustainable Development Goals (SDGs) The Value of Published Contracts and Open Data Conclusions and Recommendations References Index

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226 231 233 235 237

240 244 245 251 259

Abbreviations

ACLU AIDESEP AIGCC APA BEA BFP BIS BP CBD CDES CEDHU CEJIL CELDF CEO CEPAL (ECLAC) CERES (Boston, Mass) CERES (Ecuador) CIDOB CITES CNPC COIAB

American Civil Liberties Union Interethnic Association for the Development of the Peruvian Rainforest Asia Investor Group on Climate Change Amerindian Peoples Association for Guyana Bilateral Environment Agreement Biodiversity Finance Plan BlackRock Investment Stewardship British Petroleum Convention on Biological Diversity Centro de Derechos Económicos y Sociales Comisión Ecuménica de Derechos Humanos Center for Justice and International Law Community Environmental Legal Defense Fund Chief Executive Officer Economic Commission for Latin America and the Caribbean Coalition for Environmentally Responsible Economies Ecuadorian Consortium for Social Responsibility Confederation of Indigenous Peoples of Bolivia Convention on International Trade in Endangered Species China National Petroleum Corporation Coordination of Indigenous Organizations of the Brazilian Amazon

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xxx

ABBREVIATIONS

COICA CONAIE CONCONAWEP CONFENIAE COP CSO CSR CTA CWE DDT DOCIP ECLAC ECOSOC ECUARUNARI EIA EITI EPA ESG ETC ETF ETS EU ETS EXSA EZLN FAO FCPF FEI FENOC FENOCIN FICSH FinCEN FOAG FPIC FRSS FUT

Coordinator of Indigenous Organizations of the Amazon Basin Confederation of Indigenous Nationalities of Ecuador Waorani Organization of Pastaza province Confederation of Indigenous Nationalities of the Ecuadorian Amazon Conference of the Parties Civil Society Organization Corporate Social Responsibility Corporate Transparency Act Chinese [state company] International Water and Electric Dichlorodiphenyltrichloroethane Indigenous Peoples’ Centre for Documentation, Research and Information Economic Commission for Latin America Economic and Social Council of the United Nations Confederation of Peoples of Kichwa Nationality Environmental Impact Assessment Extractive Industries Transparency Initiative Environment Protection Agency (EPA) Environmental, Social and Governance Action Group on Technology and Concentration Exchange Traded Fund Emissions Trading Scheme European Union Emissions Trading Scheme ExplorCobres, a subsidiary of Ecuacorrriente, S.A. Ejército Zapatista de Liberación Nacional Food and Agriculture Organization of the United Nations Forest Carbon Partnership Facility Ecuadorian Indigenous Federation National Federation of Peasant Organizations (Ecuador) National Confederation of Peasant, Indigenous and Black Organizations Inter-provincial Shuar Federation Financial Crimes Enforcement Network Federation of Indigenous Organizations of Guyana Free, Prior and Informed Consent Social Responsibility and Sustainability Fund (Ecuador) Federación de Trabajadores

ABBREVIATIONS

GCF GDP GEG GRI GSIA HSE IACHR IACtHR IBRD ICCAs ICCPR ICSU IEA IEADB IFI IFLS IGGC IGO IIGCC IIPFCC ILO IMF INABIO INEC INGO INTERPOL IOP IP IPBES IPCC IPLC IRS ISO ITLC ITT IUCN LCIPP MDG MEA MSCI

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Green Climate Fund Gross Domestic Product Global Environmental Goal Global Reporting Initiative Global Sustainable Investment Alliance Health, Security, Environment Inter-American Commission on Human Rights Inter-American Court of Human Rights International Bank for Reconstruction and Development (World Bank) Global Consortium for the Territories of Life International Covenant on Civil and Political Rights International Council of Scientific Unions International Environmental Agreement International Environmental Agreement Database International financial institutions Intact Forest Landscapes Investor Group on Climate Change Inter-Governmental Organization Institutional Investors Group on Climate Change International Indigenous Peoples Forum on Climate Change International Labour Organization International Monetary Fund Ecuadorian National Institute of Biodiversity National Institute of Statistics (Ecuador) International Non-Governmental Organization International Criminal Police Organization International Organization Partners Indigenous person Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Intergovernmental Panel on Climate Change Indigenous peoples and local communities Internal Revenue Service International Organization for Standardization Indigenous, traditional, and local communities Ishpingo-Tambococha-Tiputini International Union for the Conservation of Nature Local Communities and Indigenous Peoples Platform Millennium Development Goal Multilateral Environmental Agreement Morgan Stanley Capital International

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ABBREVIATIONS

MSG MST NAFTA NASE NAWE NBSAP NCAI NGO NRDC OAS OCCRP OECD OHCHR OIS OPIAC OPIP ORPIA ORPIO PES PIDA PPP PRB PRI PSHA PSI REDD REPAM SAP SAR SASAC SASB SCOPE SDG SEC SEE

Multi-Stakeholder Group Movimento Sem Terra North American Free Trade Agreement Nación Sápara del Ecuador (Sápara Nation of Ecuador) National Waorani Federation of Ecuador National Biodiversity Strategies and Action Plan National Congress of American Indians Non-Governmental Organization Natural Resources Defense Council Organization of American States Organized Crime and Corruption Reporting Project Organization for Economic Co-operation and Development Office for the High Commissioner for Human Rights Organization of Indigenous People in Suriname Organization of Indigenous Peoples of the Colombian Amazon Organization of Indigenous Peoples of Pastaza Regional Organization of Amazonian Indigenous Peoples (Venezuela) Organización Regional de los Pueblos Indígenas del Oriente Payment for Ecosystem Services Inter-American Plan for Open Data Public Private Partnership Principles for Responsible Banking Principles for Responsible Investment Shuar Arutam People Principles for Sustainable Insurance Reducing Emissions from Deforestation and Forest Degradation Red Eclesial Panamazónica (Pan-Amazonian Ecclesiastical Network) Structural Adjustment Program Suspicious Activity Report State-owned Assets Supervision and Administration Commission (China) Sustainability Accounting Standards Board Scientific Committee on Problems of the Environment Sustainable Development Goal Securities and Exchange Commission Sustainable Stock Exchanges (SSE) (initiative)

ABBREVIATIONS

SEEA SENPLADES SIL SLAPP SOE SPAW SRSG STRP TCFD TEEB UDHR UNCED UNCHE UNCTAD UNDESA UNDP UNDRIP UNEA UNEP UNEP -FI UNESCO UNFCCC UNGPs UNODC UNPFII UNRISD WBCSD WCO WEF WHC WTO WWF ZITT

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System of Environmental Economic Accounting Ecuadoran Secretariat for Planning and Development Summer Institute of Linguistics Strategic Lawsuit Against Public Participation State-Owned Enterprise Protocol Concerning Specially Protected Areas and Wildlife Special Representative of the UN Secretary-General Scientific and Technical Review Panel Task Force on Climate Related Financial Disclosures The Economics of Ecosystems and Biodiversity Universal Declaration of Human Rights United Nations Conference on Environment and Development United Nations Conference on the Human Environment United Nations Conference on Trade and Development United Nations Department of Social and Economic Affairs United Nations Development Programme United Nations Declaration on the Rights of Indigenous Peoples United Nations Environment Assembly United Nations Environment Programme United Nations Environment Programme Finance Initiative United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change United Nations Guiding Principles United Nations Office on Drugs and Crime United Nations Permanent Forum on Indigenous Issues United Nations Research Institute for Social Development World Business Council for Sustainable Development World Customs Organization World Economic Forum World Heritage Convention World Trade Organization World Wildlife Fund Zona Intangible Tagaeri Taromenane

List of Figures

Fig. 1.1 Fig. 1.2 Fig. 4.1

Fig. 4.2 Fig. 4.3 Fig. 4.4

Fig. 5.1 Fig. 7.1

Fig. 8.1

Map of Ecuador (physical) Map of Ecuador (administrative) https://d-maps.com/ carte.php?num_car=3403&lang=en Location of indigenous communities within the Yasuní National Park (Adapted by C. Etchart from Mongabay: Base Map of Yasuní National Park, based on data from EcoCiencia, the Ministry of the Environment, Esri, Planet, and DigitalGlobe) Oil pipelines in Yasuní National Park 2011 (Photo: Julio Etchart) Map of Bobonaza, Pastaza and Puyo rivers, with location of the hamlet of Sarayaku (Source C. Etchart) Alicia Cawiya (left) and Patricia Nenquihui of the Huaorani at International Women’s Day march against the oil industry in Puyo, Ecuador, 8 March 2016 (Photo Mike Reich) Lago Agrio, Sucumbíos province, Ecuador (Source C. Etchart) Demonstration outside BlackRock headquarters, Manhattan, New York, 24 September 2019 (Photo: Linda Etchart) Coca Codo Sinclair dam, Coca and Napo rivers (Source C. Etchart)

8 9

106 107 111

113 122

187 233

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CHAPTER 1

Introduction: Indigenous Peoples and Modernity: Identity in the Ages of Empire and Decolonization

Introduction On 24 September 2019, members of Ecuadorian indigenous communities demonstrated inside the lobby of the New York headquarters of BlackRock, the world’s largest investment manager, to denounce the company for being responsible for investments in the Amazon rainforest that were damaging to the cultures of the indigenous peoples, to the rainforest, and to the climate. Between 2014 and 2018 BlackRock had indeed been among the top three shareholders in 25 of the world’s largest publicly listed “deforestation-risk” companies, and its holdings in these sectors had increased by more than half a billion dollars in those years. By 2019, however, BlackRock CEO and chairperson Larry Fink had taken the lead among the world’s largest investment management companies in attempting to put pressure on company directors to incorporate environmental concerns into their decision-making. This was particularly significant, considering that BlackRock had by this time become one of the most powerful companies in the world, overtaking the influence of even the giant US investment bank Goldman Sachs, popularly known as “Government Sachs” (Beales 2020). Hence BlackRock could be considered as having become an important player in global governance, and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6_1

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by extension, global environmental governance, both with regard to management of investments in the Amazon, and in view of its influence over boards of directors in private industry, as well as its influence on decision-makers within US agencies such as the Federal Reserve (Beales 2020). Fink announced in a letter to CEOs across the globe in 2019: “Climate change has become a defining factor in companies’ long-term prospects. Awareness is rapidly changing, and I believe we are on the edge of a fundamental reshaping of finance”. For environmental activists, and intergovernmental institutions, this change of direction of investment management in 2019 was one of the features of “woke capitalism”, on the rise from at least 2018 (Douthat 2018), but which had been delayed a while, considering more than thirty years had passed since the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil in 1992. There had been milestones along the way. Although it was announced that Big Oil was looking for a career change in 2020 (Blas 2020), British Petroleum (BP) had been making moves towards sustainable solutions even before 2014, when a fall in the price of oil had forced oil companies to seek bailouts. Meanwhile in 2019 and 2020, forests in the Amazon continued to burn at unprecedented rates with illegal logging and mining, land clearances, and wildfires at an 11-year high (Costa 2020). With Latin American countries being those with the highest loss of primary forest, the question had to be asked as to how it took the finance industry so long to realize they had a role to play in bringing about change. Although some responsibility for the climate crisis can be attributed to banks and investment companies globally, there were many other factors at work: this book attempts to explore the dynamics of power involving the range of institutions and the structures of which they are a part which have brought us to this point. The focus is on the role of indigenous peoples, and their relationship to nature, in the construction of the narrative of global governance. Indigenous peoples’ importance in global structures, and the potential of their contribution to protecting ecosystems, were overlooked and excluded from high level global discussions and decision-making through until 2021. At the United Nations Conference of the Parties (COP)26 summit in Glasgow, the role of indigenous communities in combating deforestation that fuels climate change was finally recognized by Western governments and funders, who announced

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the creation of a US$1.7 billion fund to support indigenous peoples and grassroots communities globally (Weston 2021). Through the use of case studies, this book examines the theories, analyses, and the practice of global governance institutions—multinational companies among them—the manner in which they are constructed and reinforced over time, as well as the ways they are entered into, challenged and destabilized by forces on the ground in the form of indigenous peoples and their allies. The following section provides an overview of the themes covered in the book.

Summary of Chapters Chapter 1 examines the concept and embodiment of indigenous peoples in the context of European empires and colonization, with a particular focus on the nations of the Ecuadorian Amazon, the history of their anti-colonial struggles, their transition through independence from Spain, and their encounters with extractive industries in the twentieth and twenty-first centuries. A key element is the relationship between empire, colonization and modernity, and the domination of peoples and nature that was integral to the imperial project, from the Doctrine of Discovery of the fifteenth century through to the Manifest Destiny of the nineteenth. Chapter 2 presents an introduction to the theory and practice of global governance, with a focus on global environmental governance, its origins and history, and the rise of intergovernmental organizations, including the United Nations and the World Bank, in global efforts to protect the environment. Using concrete examples, it interrogates the thesis that the proliferation of international environmental conventions, treaties, and agreements may have resulted in a condition of a “multiple accountability disorder” that has the effect of obstructing, rather than delivering on, the achievement of national and global environmental goals. It examines how global governance has been reconceptualized and reimagined to incorporate new players at the ground level, who have been able to participate in, and contribute to, global governance through travel and new means of communication, including social media, creating networks that have transformed intergovernmental and non-governmental social movements, enabling new political forces to emerge.

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Chapter 3 traces the history of the role of indigenous peoples in global environmental governance, given formal recognition at an international level with the publication of the Brundtland Report, Our Common Future, of 1987. It begins by exploring a selection of the literature on “epistemologies of the South”, indigenous peoples’ own interpretations of their relationship to nature, and the origins of the rights of nature doctrine in the Andean and Amazonian belief systems of sumak kawsay and suma qamaña, translated as “abundance”, which were incorporated into the plurinational constitutions of Ecuador and Bolivia as buen vivir and vivir bien, respectively, in 2008 and 2009. The chapter includes an account of how the rights of nature became incorporated into international law, giving examples from countries of three continents where the rights of nature have been upheld by local courts. Chapter 4 provides an overview of the process of the creation, within international organizations, of international instruments to protect the rights of indigenous peoples, including International Labour Organization’s Convention 169, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007, and the efforts of indigenous peoples themselves to be recognized as equal partners to nation states on the global stage. It documents the history of indigenous communities’ demands to be included in negotiations that led to the adoption of climate change agreements, and for recognition of their role in protecting the world’s forests. The Sarayaku Kichwas’ lawsuit at the Inter-American Court of Human Rights, and the international attempt to protect the Yasuní national park from oil drilling, provide examples of successes and failures in the struggles to achieve effective global environmental governance. The chapter includes a critical assessment of the merits of Ecuador’s Socio Bosque scheme, a payment for ecoservices initiative, which emerged in parallel with the UN REDD + programme. Chapter 5 addresses some of the ways in which achievements in terms of the institutionalization of the rights of indigenous peoples and the rights of nature, through the application of national and international laws and conventions, such as Free, Prior and Informed Consent (FPIC) and the Convention on Biological Diversity (CBD) contain within them the potential to reverse previous gains, to undermine indigenous efforts to preserve autonomy and self-determination and to cause irreparable damage to forests and ecosystems. The chapter reviews the story of the battle between Texaco/Chevron and indigenous peoples affected by oil spills in Sucumbíos province of the Ecuadorian Amazon that date back

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to the 1970s. The initial contamination can be attributed partly to negligence and partly to an absence of environmental safeguards at the time, but there are lessons to be learned from the class action lawsuit that began in 1993 and had not been resolved 2021. The struggle to control the narrative, in the competition between oil companies and their adversaries, is one that was ongoing in 2020, as illustrated by Chinese-owned Andes Petroleum’s Environmental Impact Assessment (EIA) of 2019– 2020 entitled “Energy and the Environment in Harmony”, which set out the legal case for oil extraction in the Ecuadorian Amazon on the basis of international law pertaining to indigenous rights and the environment. Chapter 6 expands on the theme of the moral hazard of the application of environmental regulations, including the Convention on Biological Diversity (CBD) and international treaties and conventions when state and private interests combine to create legal frameworks to enable deforestation and extraction of minerals in areas where biodiversity and indigenous communities are already under threat. The chapter also assesses the risks to Amazonian wildlife from the illegal bushmeat and domestic pet and animal part trade, which exert pressure on indigenous communities to hasten species extinction in the context of diminishing habitat for wild game. The conclusion suggests that the philosophy of sumak kawsay/buen vivir, as practised by a number of indigenous communities in the Ecuadorian Amazon, could provide a starting point for re-imagining economic structures away from currently unsustainable practices of agricultural production, manufacturing, and global trade. The US and European financial sector’s awakening to the climate risk to company profits and investor returns is examined in Chapter 7, which focuses on the rise of Environmental, Social and Governance (ESG) compliant stock portfolios, which in 2020–2021 were in demand from socially aware millennial investors who preferred not to contribute to climate change. As BlackRock’s CEO Larry Fink was the most enthusiastic promoter of ethical stocks from 2019, at a time when his company was presented by environmental campaigners as the greatest threat to the Amazon rainforest, Chapter 7 delves beneath the conflicting narratives to highlight the incommensurability of the arguments. Chapter 8 expands upon issues surrounding legality and illegality in the sphere of development finance, with a focus on payments, benefits, and remuneration to individuals or political parties who stand to gain

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from the activities of the extractive industries and from large-scale infrastructural projects such as roads, transit systems, and hydroelectric power plants. Taking the example of the construction of the Coca Codo Sinclair dam in the Ecuadorian Amazon region that was completed in 2016, the chapter suggests that forces other than a country’s need for energy sources may have incentivized the initiation of the ill-conceived and poorly executed hydro-electric project, which failed to deliver as promised in terms of energy provision. Furthermore, the dam caused erosion of river banks and widespread flooding downstream, forcing the evacuation of indigenous and non-indigenous communities along the Coca river. The chapter also details relevant information derived from the Panama papers that were released in 2016 which implicated, among other Ecuadorian citizens, a number of officials employed by the state oil company PetroEcuador. There was evidence of US$17 million dollars having been paid to secure contracts, and it was estimated that up to US$2 billion of Ecuador’s wealth was relocated to Panama. Prosecutions ensued in both Ecuadorian and US courts, through until 2021, with 11 convictions in the USA connected to the case. Additionally, Ecuador was just one of ten Latin American countries involved in the Odebrecht bribery “lava jato/car wash” scheme, with Odebrecht having been expelled from Ecuador following disclosures of irregular payments with regard to the construction of dams. The intersection of the elements that represent interested parties from within Ecuador and outside, in the public and private sectors, provides evidence of the obstacles facing the numerous institutions, global and local, working separately and together, to protect the Ecuadorian Amazon rainforest, that has implications for forest governance globally. As will be seen, frustration at the lack of progress of individual environmental initiatives, in Ecuador and other rainforest countries, has led to the creation of yet more regulatory instruments in the form of conventions and treaties that make up international law, signed and sealed in good faith, but which appear to be distorted by personal and group agendas dedicated to the pursuit of profit above all else, a practice which in many cases accords with the responsibilities assigned to the agents involved. By tracing the interconnections of forces in which all but those who live in voluntary isolation are caught up, and in examining the engagement and resistance to modernity of alternative epistemologies that stem from indigenous peoples’ concepts and practices, this book suggests alternative

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ways of confronting realities by pursuing and supporting policies that take a more holistic approach to global environmental governance.

Methodology The ideas that inspired the writing of this book emerged from years of teaching development studies, international relations, non-governmental organizations, international political economy, humanitarian intervention and security, conflict transformation, and gender studies. It is interdisciplinary, crossing boundaries, incorporating participatory methods in the form of interviews to minimize interpretation and to enable participants in the study to be heard. Inevitably there will be mediation and selection. In choosing particular individuals and small groups of interviewees, bound in place and time, and focusing on particular locations and case studies, the purpose has been to keep the study limited in scope, despite the breadth of the title, and to illustrate points by the use of concrete examples, findings from which might be applied to other cases in other continents. Texts from interviews with indigenous individuals featured in this book have been published elsewhere: references to published works are found in the reference sections at the end of each chapter. Interviews were conducted in 2016 in the Ecuadorian rainforest, in the hamlet of Sarayaku on the Bobonaza river, and in Puyo, the capital of Pastaza province, which lies on the Puyo river, which flows into the Pastaza river. All are tributaries of the Amazon (see Figs 1.1 and 1.2). In Puyo, we interviewed members from different indigenous communities, and in Quito, we conducted further interviews with Alicia Cawiya, a leader of the Huaorani people (Etchart 2017a). Struggles over control of the rainforest and the narratives surrounding activities of the extractive industries operating there on the part of indigenous communities and the administration of President Rafael Correa were in full force at time, hence an effort was made to interview representatives who had contrasting perspectives, both in Ecuador and in London, England, where we were based at the time. In Quito we interviewed Freddy Ehlers, then Minister of Buen Vivir, former Minister of Tourism, who was on the side of the government in altercations with some Ecuadorian indigenous federations by 2016. We also interviewed Professor Alberto Acosta, former Minister of Energy and Mining, former President of the Constituent Assembly, architect of the new Ecuadorian constitution of 2008 which incorporated indigenous peoples’ rights and

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Fig. 1.1 Map of Ecuador (physical)

the rights of nature into the constitution, and author of numerous articles and books on buen vivir. An interview was recorded in person with Mario Melo, professor and lawyer who represented the Sarayaku Kichwa in their successful class action suit against the Ecuadorian government at the Inter-American Court of Human Rights (IACtHR), Kichwa Indigenous People of Sarayaku v. Ecuador, in a legal process that began in 2002 and ended in 2012.

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Fig. 1.2 Map of Ecuador (administrative) https://d-maps.com/carte.php? num_car=3403&lang=en

The research design plan incorporated the presentation of multiple first-person viewpoints, as well as evidence from secondary sources in the form of government documents, documents from United Nations, the World Bank, and other intergovernmental and multilateral organizations, scholarly articles, and the press, including the financial press, in both English and Spanish. Among the sources were various manifestations of “grey” literature published by a range of organizations, though the boundary between white and grey literature is often blurred. In addition to primary research conducted in Ecuador and London, interviews were conducted at several indigenous events in New York from 2017 to 2019, which included sessions within and outside the UN Permanent Forum

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for Indigenous Issues (UNPFII). Interviews were conducted with indigenous leaders from the Ecuadorian Amazon, as well as from neighbouring countries, Colombia, and Peru, though for the purposes of this research, the ones drawn upon were from Ecuador. Interviews ranged in length from 1–2 hours and were subsequently coded. We received input from United Nations and non-governmental organization representatives, via interviews, exchanges, and communications by different methods, until the 2020 COVID-19 pandemic lockdowns led to a transition to webinars and zooms, which in practice enabled some indigenous representatives to reach even larger audiences than those they would have enjoyed at United Nations and other international agency conferences. Facebook and Instagram postings became another source of research data, taken from a number of indigenous individuals and groups who posted almost daily through 2020 and 2021. The sheer volume of information provided online by the United Nations, the Indigenous Peoples’ Centre for Documentation, Research and Information (DOCIP), the government of Ecuador, the World Bank, NGOs, and by the indigenous communities themselves through their websites, and via their personal Facebook pages, created a challenge in itself. Additional data was obtained through oil and mineral company websites and reports, the Chinese oil company Andes Petroleum’s Environmental Impact Assessment (EIA), and webinars of both international and local organizations. In view of the breadth of the themes, the investigation is therefore limited and selective in choice of sources of data. The study was time-limited: conditions change fast with the onward movement of events and history. The findings are therefore preliminary and subject to change, intended to be a starting point for further research. This book begins with an overview of the colonial experience of the indigenous peoples of the Americas, their positioning within the Western nation state system and the incorporation of indigenous rights into international law within United Nations institutions.

Indigenous People’s Incorporation into the Western Human Rights Universe Between the two world wars and for 40 years following the Second World War, rights of minority peoples were largely off the agenda within international organizations; notably, indigenous representatives had not been party to consultations in the framing of the Universal Declaration

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of Human Rights (UDHR) of 1948—of mixed religious provenance— which was considered by some commentators to be a Western imperial construct, but nonetheless became a building block for international human rights law, including treaties pertaining to the Organization of American States (OAS). In the course of this research, it became evident that indigenous individuals, communities, federations and rights groups in the Ecuadorian Amazon, while adhering to indigenous concepts and principles, at the same time endorsed universal human rights principles as elaborated and ratified by nation states under international law. This could be interpreted as akin to the “double consciousness” conceptualized and interpreted by W.E.B. du Bois (1897) and Paul Gilroy (1993), but one of complementarity, not of conflict, engaging with the Enlightenment, but not derived from the Enlightenment (Coomaraswamy 1996). The hitherto exclusion of indigenous peoples from the Westerndominated international arena as established by the Treaty of Westphalia in 1648 is illustrated by a story involving an attempt by a representative of first nation peoples of the Americas in 1923 to gain acceptance at the League of Nations, the precursor to the United Nations. Cayuga Chief Deskaheh, representative of the Iroquois people in Ontario, of the Haudenosaunee Confederacy, travelled to the headquarters of the League of Nations in Switzerland in 1923 on a mandate from the Government of the Federation of the Six Nations of the Grand River. He requested that the Federation be admitted as a member of the League of Nations, as the Iroquois Confederacy had been functioning as a state since 1643. His purpose was to ensure compliance with a treaty signed in 1784 with the authority of his people and ratified by King George III of Great Britain: he was protesting the overthrow of the Six-Nation government by the Canadian state (Estes 2019: 202). Chief Deskaheh was not received by any officials, nor were his requests discussed (UN 2007). The dismissal of Chief Deskaheh is indicative of patterns of supposed decolonization of areas formerly occupied by European empires. Projects of centralization and concentration of power that had been attempted by the European administrations were subsequently undertaken by those who had succeeded in the struggles for independence. The decolonization process itself in the eighteenth and nineteenth centuries, through to the twentieth century, led to neglect or persecution of minority peoples as the new nation state governments consolidated their power (Fanon 1963 [1961]; Mamdani 1996).

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Despite the notable silence elsewhere around minority rights in the United Nations following the Second World War, the International Labour Organization (ILO) did however make a stand and led the movement calling for protection of minorities, beginning in 1957 with ILO Convention no 107 (Kymlicka 2007: 31). The position of the ILO at the time and that of Convention 107 was that of protecting minorities in the short term with a view to their assimilation in the long term, which would have led to their disappearance altogether (Echo-Hawk 2014). In the USA, Native American organizations such as the National Congress of American Indians (NCAI) that had been founded in 1944 joined the Civil Rights movements in the 1960s, but then drew away from association with the claim for equal rights of African Americans, as they precisely did not want equality under US law: they called for separate status and separate laws. The only capacity in which they appealed for equality was in being recognized as a government on an equal basis with the US government on a nation-to-nation basis, as was enshrined in the US Constitution. The very existence of the Red Indian tribes in the USA (sic Echo-Hawk 2014) almost came to an end between 1943 and 1970, when their previously negotiated land rights were withdrawn. This was the time when first nation assets were liquidated, and the first nation peoples turned over to the jurisdiction and control of individual states. This “Termination” strategy became official policy in 1952 (Echo-Hawk 2014: 10). In contrast, under the administration of US President Richard Nixon, mobilization and direct action brought legal victories which resulted in first nations being awarded a degree of self-determination in 1970, reversing the assimilation policies that were enforced in the previous decades. The Indian Self-Determination Act (1975) affirmed the rights of recognized tribes. In 1974, the United Nations Economic and Social Council (ECOSOC) granted consultative status for the first time to a nongovernmental organization (NGO) of indigenous peoples. In 1977, the Committee on Non-Governmental Organizations held the first International NGO Conference on Discrimination against Indigenous Populations in the Americas at the Palais des Nations in Geneva, Switzerland, and in 1981, the Committee organized the International NGO Conference on Indigenous Peoples and the Land (Telles 2007). Elsewhere, minority rights continued to be an issue largely ignored by the UN and other international organizations until the attempt to introduce the principles of the 1989 ILO Convention 169 into the United

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Nations began to yield results. ILO Convention 169 was a revised version of ILO Convention no 107, but without reference to assimilation, which was no longer considered appropriate. ILO Convention 169 was resisted by the same countries who had declined to sign up to the previous convention. Convention 169 included articles that pertained to land rights and self-government, anathema to state governments still struggling to modernize, centralize administration and consolidate their power (Giddens 1986). Notably, also, individual rights were upheld under the Universal Declaration of Human Rights (UDHR), rather than collective or group rights, and the assumption of the desirability of modernity for all peoples was rarely questioned. Assumptions of universality of values, around a teleological view of human history and human progress, and the inevitability of following the path to modernity and industrialization was embedded in United Nations-constructed worldviews that emerged from the 1940s. Within this paradigm, the “right to develop” was heralded by the UN in 1986 when the General Assembly adopted the “Declaration on the Right to Development”. Amartya Sen, Nobel prize-winning economist whose work had a key influence on UN development policy in the 1990s— though a champion of people’s right to choose and their having the power to choose, questioning the gains to be made in economic development and GDP growth—maintained the desirability of popular participation in social democracy and the advantages of engaging with a market economy (Sen 1999). A tension gradually became visible between the Northern-inspired drive to development, progress and the participation of all peoples in modernity and the global capitalist economy, and the desire of some indigenous and other peoples to follow an alternative path (Escobar 1992, 2012 [1994]; Walsh 2010). By the 1980s, however, there were elements within a number of international organizations, including the United Nations and the World Bank, that had begun to espouse cultural diversity. In 1982, the United Nations Economic and Social Council (ECOSOC) established the Working Group on Indigenous Populations, with the mandate to develop a set of minimum standards that would protect indigenous people, under the auspices of José Martínez Cobo (Martínez Cobo 1983). The Universal Declaration on Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities was adopted in 1992, and the UNESCO Universal Declaration on Cultural Diversity in 2001.

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In the same period, in the 1980s and 1990s, first nation Americans became involved in the international efforts to protect indigenous rights worldwide and played a role in the ECOSOC Working Group as well as in the drafting of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The process of bringing in small and large indigenous communities into the auspices of the UN was crystallized with the foundation of the UN Permanent Forum on Indigenous Issues (UNPFII) in 2000. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Resolution 61/295 of 13 September 2007, was signed by 143 countries, the major dissenters at the time being the governments of Australia, Canada, New Zealand, and the USA, which had substantial minority indigenous populations wishing to expand the areas of formerly held territories under their control. Subsequently all four recalcitrant countries signed up to the agreement, though with clauses that excluded indigenous peoples’ rights over subsoil natural resources, which continued to be a source of conflict in ensuing decades.

Evolution of Indigenous Rights in Latin America In 2020 there were estimated to be around 50 million indigenous people in Latin America belonging to 500 different ethnic groups, though some sources give a higher figure up to 800 ethnicities, with 200 groups living in isolation (Economic Commission for Latin America [ECLAC] 2014). Estimates of population numbers before the European conquest vary greatly, but it is possible that disease reduced the first nation population of the continent by 90 per cent over a period of 130 years (Ibid.: 11). Some protection to indigenous nations was given by the Spanish Crown under the colonial administrations (Castro 2007); their position did not necessarily improve after independence, when many nations lost the self-determination that they had previously enjoyed (Galeano 1977; Newson 1995). The most isolated of indigenous peoples in the Andes and in the Amazon basin were colonized in name only before independence, after which some nationalities were expropriated and colonized by the mestizo population, and excluded from participation in government (Mariátegui 1971 [1928], Wearne 1996). Many communities lost their collective rights over land, with the adoption of legal frameworks which prioritized individual private ownership (ECLAC 2014: 12). A second wave of dispossession and displacement overtook Amazonian indigenous

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communities in the middle of the twentieth century, with the expansion of agricultural and extractive frontiers (Ibid.: 12). Indigenous movements were suppressed under most of the Latin American dictatorships of the 1970s and 1980s. Only in the late twentieth and early twenty-first century did many indigenous populations of Latin America—as elsewhere in the Southern and Northern hemispheres— begin to reassert themselves and take a more strategic role in government. In North America and Australasia, indigenous populations remained colonized through the nineteenth and twentieth centuries, a predicament that Kymlicka (2007) calls a double colonization: first by imperial powers in search of raw materials, slaves, and workers; second by independent whitedominated populations seeking to expand their territory and land claims into the interior (Todorov 1996).

Implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 Under International Law The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007, while not binding under international law, does establish international legal norms. UNDRIP “establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples… [It is a] culmination of generations-long efforts by Indigenous organizations to get international attention, to secure recognition for their aspirations, and to generate support for their political agendas” (Telles/UN 2007). The Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education, and other issues (Telles/UN 2007). It also “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations”. It “prohibits discrimination against indigenous peoples”, and it “promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development” (Telles/UN 2007).

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One of the difficulties of the UNDRIP of 2007 is that, like the UN Declaration of Human Rights, it is internally inconsistent: Articles 3, 4, 9 and 12 and the first part of Articles 5 and 34 with regard to selfdetermination and the right to practise their own customs and ceremonies are inconsistent with the phrase in Article 34 which maintains that these practices have to be in accordance with international human rights standards. Nor is any right given that is contrary to the Charter of the United Nations (Article 46). Moreover, under Article 46, it is stated that the Declaration does not give anyone the right “to encourage any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states” (UNDRIP, article 46). This represents, therefore, a circumscribed self-determination, one bound by international law, and even national law, in that the political unity of a state must not be threatened. The values of the Universal Declaration of Human Rights (UDHR), which is mentioned by name, and of subsequent UN Declarations and Conventions, are held as paramount and override other possible claims for the application of different cultural values. At the same time, the UDHR refers not to states’ obligations towards their citizens, but to humans’ obligations towards other humans on an individual basis, so while group rights are upheld, so too are individual rights (Pinheiro 2008), creating space for a variety of interpretations. In terms of upholding the special and different rights of indigenous peoples compared with the rights of other non-indigenous citizens, while in principle there appears to be a difference, in practice their rights and obligations are remarkably similar. Where there is a difference it is in the right to educate their children in their own language and “to establish and control their educational systems” (Article 14), and “to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies” (Telles/UN 2007: Article 12).

The Relationship Between Modernity and Indigeneity In this context, while Kymlicka regards economic development as a goal which indigenous groups, and particularly national minorities, might want to share with national elites and in which some might want to participate,

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others have viewed economic development as being incompatible with indigenous rights. Modernization has involved expropriation of land from subsistence farmers, indigenous and non-indigenous, the building of roads and dams which bring about the destruction of the habitat of animals as well as the humans who hunt them, and the destruction of the plant environment (Ludlow et al. 2016; Postero 2017). If development means the freedom to choose, for indigenous people to “lead the kind of lives they have reason to value” (Sen 1999: 10) they may wish to forgo elements of modernization in order to be able to survive and to maintain their cultural identity. They may choose to follow a different path, one of alternative development, or the path of sumak kawsay, non-growth rather than de-growth, which can involve autonomy as well as self-determination, or self-determination that includes strategic integration into the global economy (Escobar 2007). Sumak Kawsay—which can be translated as buen vivir/vivir bien, “abundance”, or “plenitude”—was borrowed from the indigenous populations and adopted as a mantra by the governments of Ecuador and Bolivia under Presidents Rafael Correa and Evo Morales—elected in 2005 and 2006—and integrated into the countries’ constitutions in 2008 and 2009, respectively. In the process of being institutionalized, however, in Ecuador sumak kawsay was hollowed out and buen vivir was re-created to represent the opposite of the way in which it was understood at the outset. From conveying the idea of living in harmony with nature and avoiding the destruction of the environment, it was transformed to signify “development” in the sense of economic growth and employment, that is, enjoying the benefits of state-driven modernization (Colleredo Mansfeld 2002; Radcliffe 2012; Morley 2017).

Relational Autonomism1 : New Social Movements in Latin America In 2010, Arturo Escobar posited that with the demise of the dictatorships of the 1970s and 1980s and the purported end of the neoliberal project, there was a rise in alternative styles of government in a number of countries in Latin America. This created possibilities for a re-invention of democracy and a move towards a post-liberal, post-developmental and post-capitalist society. Escobar suggested alternatives to the project of modernization, though not a complete rejection of all modernities

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(1992, 2010). Referring to the work of Eduardo Gudynas (2011) and his concept of buen vivir, which is based upon relational ontologies rather than a dualistic ontology of liberal modernity, Escobar envisaged an alternative to private property and representative democracy. The shift towards an alternative society driven by counter-hegemonic forces was in part a reaction to the damage caused to the environment and indigenous peoples in regions of Latin America by the expansion of global capitalism, the debt crises of the 1980s and 1990s, the re-democratization of a number of countries in the region, and the demand for new sources of energy. The expansion of new social movements in Latin America in the 1990s and 2000s coincided with electoral victories of political parties of the Left and Centre, which came to be known as the “pink tide” (Gatehouse 2019).2 The new social movements, which included indigenous organizations, initially backed, and received the backing of, progressive governments in the region. Later some repressive policies by progressive governments led to disillusionment and resistance. Among the earliest of the new social movements was the indigenous Ejército Zapatista de Liberación Nacional (EZLN)—the Zapatistas—led by Sub-comandante Marcos, who resisted the first North American Free Trade Agreement (NAFTA) that came into effect on 1 January 1994. The Zapatistas were characterized by their wish to gain self-determination and autonomy from the state, and remain local, while not wishing to take the reins of the state. At the same time, they relied on the global press, the Internet, and social media, which was at the time in its early stages, to protect them from state aggression (Earle and Simonelli 2004). The Zapatistas became the role model for many indigenous communities in Latin America, including in the Ecuadorian Amazon. Common to these movements was a mobilization away from and also actively resisting, where necessary, unchecked exercise of state power and the power of multinational companies supported by the state. The response to encroachment by the state or agribusiness in rural areas previously or contemporaneously occupied by indigenous peoples took the form of direct action by indigenous groups or landless labourers for the purposes of survival, as was evidenced in the activities of the Movimento Sem Terra in Brazil (MST). As will be seen in the following pages, the language of theoretical (post)-Marxism and anarchist philosophy percolated through to both intellectual and non-intellectual indigenous individuals from the 1990s onwards.

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Characteristic of many indigenous communities in Latin America in the late twentieth and early twenty-first century was an articulated pride in their history and their cultures, visible in Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Ecuador, Honduras, Mexico, and Uruguay— a self-confidence that expanded within the wave of post-dictatorship and post-Cold War democracies. Presidents Evo Morales, in Bolivia, and Rafael Correa in Ecuador, changed their countries’ constitutions to incorporate indigenous land rights in what became “plurinational” states. Notwithstanding the above, in the following pages the evidence will be presented and the argument made that despite the transformation of the lives and levels of influence of indigenous peoples in Latin America since the early 1990s, including in some cases inclusion in decision-making over development projects, persistent structural inequalities have had the effect of undermining the cultures, traditions, and very survival of indigenous communities, as well as the integrity of the environment which sustains them and which they in turn sustain. It is argued, however, that through a strong sense of identity and selfawareness, conveyed by means of their participation in global governance as well as through social media channels, indigenous peoples’ representatives have been able to engage in global debates around biodiversity and climate change and to exert influence. Operating on a range of levels, they have contributed to the elaboration of global environmental policies even if the implementation of these policies has been slow.

Indigenous Peoples at the United Nations: Case Study Ecuadorian Amazonians In terms of the influence of indigenous peoples’ federations and their representatives on the global stage, where they have organized international conferences of their own as well as in association with transnational human rights and environmental movements, indigenous peoples have benefited from the creation of the United Nations Permanent Forum on Indigenous Issues (UNPFII) in 2000 at whose annual conference Latin American indigenous peoples’ representatives have been protagonists since its inception. Indigenous peoples’ quest for nation state status or, rather, status in decision-making equal to that of states has been ongoing, leading, in May 2017 at the UN General Assembly in New York, to calls for advisory status at the UN in decision-making that affects them (United

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Nations 2017). At the same time, however, indigenous demands for greater sovereignty have been resisted, not least for fear of destabilization of the state system on which the United Nations as an institution is based, and for the threat it implies to state integrity. This study draws on existing scholarly literature, including studies by and concerning Ecuadorian Amazonian indigenous peoples, and from primary research among Cofán, Huaorani, Kichwa, Sápara, Shiwiar, Achuar and Shuar communities of Eastern Ecuador. It is their presence on the national and international stage that has attracted worldwide attention among specific constituencies, and their association with global initiatives to protect the rainforests of the earth, which have enabled them to establish a profile, assert their legal rights, establish a regional and global voice, and exert a level of influence within regional and global social movements (Etchart in Gatehouse 2019) and at the United Nations (Sawyer and Gomez 2008, 2012; Etchart and Cerda 2020). Reference will be made to the experience of indigenous communities living in the north, south and central Ecuadorian Amazon, several communities among which have suffered the consequences of widespread contamination of water sources from oil extraction. The aim of this investigation is to analyse the effects of conflicting elements that arise out of the intersections of community, local, national, regional, and global governance as they relate to indigenous peoples as both subject and object of norms and laws, and the impact of these on the environment. Referring to case studies in the Amazon, the work examines the efficacy of the implementation of Free, Prior and Informed Consent (FPIC) for indigenous peoples where there is involvement of multinational corporations, the state, and foreign governments, and how such initiatives in consultation have the potential to conflict with the rights of nature and the philosophy of buen vivir itself. Local and national government, corporations—state and private— public–private partnerships (PPPs), indigenous organizations, intergovernmental organizations as well as INGOs have declared their interest in protecting human rights and the rights of nature. In 2019–2021, financial sectors in the USA and Europe became increasing concerned about the long-term risks of climate change, and by 2021, US green stocks were described as “white hot” in the financial press (Shell 2021: 22). Green ETFs were “soaring” (Huang 2021a: 31), and the green bond market was estimated to reach US$2 trillion in 2021 (Huang 2021b). But the question remained as to the real value to the earth of green

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investments, and the level of commitment of their vendors to protection of the environment. Evidence gathered in the process of this investigation suggests that intergovernmental and individual state instruments designed to promote sustainable and ethical development, and through which attempts have been made to conform to international human rights and environmental standards, carry the risk of endangering the long-term interests of indigenous and non-indigenous citizens of developing countries. Moreover, these same policies, combined with the pressures exerted by global markets for natural resources, as well as markets for wild animals, have the potential to contribute to increased emissions of greenhouse gases and associated climate change. It is also argued that with regard to environmental protection, the financial sector’s almost exclusive focus on investment in new green technology that reduces carbon emissions, and on carbon trading, diverts attention from additional strategies that are required to combat climate change, such as reducing loss of biodiversity, in which indigenous communities have a key role to play.

Notes 1. The “pink tide” that swept Latin America at the turn of the century resulted in administrations led by Lula da Silva (Brazil 2003), Michelle Bachelet (Chile 2007), revolutionary-minded leftists Evo Morales (Bolivia 2006), Rafael Correa (Ecuador 2007), Daniel Ortega (Nicaragua 2007), and Hugo Chávez (Venezuela 1999). 2. In the context of liberal individualism, the concept of relational autonomy redefines what it means to be an autonomous being, whereby a person can be a free, self-governing agent who is also socially constituted, defining their value commitments in terms of interpersonal relations and mutual dependencies (Christman 2004).

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Estes, Nick. 2019. Our History Is the Future: Standing Rock versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance. New York: Verso. Etchart, Linda. 2017a. “One Woman Against Big Oil and Patriarchy.” New Internationalist, March. Etchart, Linda. 2017b. “The Role of Indigenous Peoples in Combating Climate Change.” Palgrave Communications. August. https://www.nature.com/art icles/palcomms201785. Accessed 19 August 2020. Etchart, Linda, and Cerda, Leo. 2020. “Amazonians in New York: Indigenous Peoples and Global Governance.” City: Analysis of Urban Change, Theory and Action 24: 1–2. https://doi.org/10.1080/13604813.2020.1739440. Accessed 18 May 2020. Fanon, Frantz. 1963[1961]. Wretched of the Earth. New York: Grove. Galeano, Eduardo. 1977[1971]. Open Veins of Latin America. New York: Monthly Review Press. Gatehouse, Tom. 2019. “Introduction: Living Life on Their Own Terms.” In Voices of Latin America: social movements and the new activism, edited by Tom Gatehouse, 1–24. Rugby: Practical Action/Latin America Bureau. Giddens, Anthony. 1986. The Nation State and Violence. Berkeley and Los Angeles: University of California Press. Gilroy, Paul. 1995[1993]. The Black Atlantic: Modernity and Double Consciousness. Cambridge, MA: Harvard University Press. Gudynas, E. 2011. “Buen Vivir: Today’s Tomorrow.” Development 54 (4): 441– 447. https://doi.org/10.1057/dev.2011.86. Huang, Nellie S. 2021a. “How Green Are Your Bonds? Fixed Income Investors Can Make an Environmental Impact.” Kiplingers Personal Finance, April: 28– 30. Huang, Nellie S. 2021b. “Earth First ETFs Are Soaring.” Kiplingers Personal Finance. April: 31–33. Kymlicka, Will. 2007. Multicultural Odysseys: Navigating the New International Politics of Diversity. Oxford: Oxford University Press. Ludlow, Francis, L. Baker, S. Brock, C. Hebdon, and M.R. Dove. 2016. “The Double Binds of Indigeneity and Indigenous Resistance.” Humanities 53 (5): 1–19. Mamdani, Mahmoud. 1996. “Decentralized Despotism.” In Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, edited by M. Mamdani, 37–61. London: James Currey. Mariategui, José C. 1971. Seven Interpretive Essays on Peruvian Reality. Austin: University of Texas Press. Martínez Cobo, José. 1983. “Study of the Problem of Discrimination Against Indigenous Populations.” Final report submitted by the Special Rapporteur,

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Mr José Martínez Cobo. https://www.un.org/development/desa/indigenou speoples/publications/martinez-cobo-study.html. Morley, Joanna. 2017. “‘Beggars Sitting on a Sack of Gold’: Oil Exploration in the Ecuadorian Amazon as Buen Vivir and Sustainable Development.” International Journal of Human Rights 21 (4): 405–441. https://doi.org/10. 1080/13642987.2016.1249140. Newson, Linda A. 1995. Life and Death in Early Colonial Ecuador. Norman and London: University of Oklahoma Press. Pinheiro, Paulo Sergio. 2008. “Sixty Years After the Universal Declaration: Navigating the Contradictions.” International Journal of Human Rights 5: 9. https://doi.org/10.1590/S1806-64452008000200005. Postero, Nancy. 2017. The Indigenous State: Race, Politics, and Performance in Plurinational Bolivia. Oakland: University of California Press. Radcliffe, Sarah. 2012. “Development for a Postneoliberal Era? Sumak Kawsay, Living Well and the Limits to Decolonisation in Ecuador.” Geoforum 43: 240–249. Sawyer, Suzana, and Gómez, Edmund Terence. 2008. “Transnational Governmentality and Resource Extraction: Indigenous Peoples, Multinational Corporations, Multilateral Institutions and the State.” United Nations Research Institute for Social Development. Identities, Conflict and Cohesion. Programme Paper Number 13, September. Sawyer, Suzana, and Edmund Terence Gómez. 2012. Transnational Governmentality in the Context of Resource Extraction. Palgrave Macmillan. Sen, Amartya. 1999. Development as Freedom. Oxford: Oxford University Press. Shell, Adam. 2021. “Profit from Planet-Friendly Companies: Sustainable Stocks Are Going Gangbusters.” Kiplingers Personal Finance, April 28–30, pp. 22– 27. Telles, Edward/United Nations. 2007. “Discrimination Against Indigenous Peoples: Latin American Context.” UN Chronicle XLIV (3). September. http://www.unchronicle.un.org/article/discrimination-against-indigenouspeoples-latin-american-context. Todorov, Tzvetan. 1996[1982]. The Conquest of America: The Question of Other. Harper Perennial. United Nations. 2007. See Telles, Edward. United Nations. 2017. “Draft Resolution by the General Assembly on Enabling the Participation of Indigenous Peoples’ Representatives and Institutions in Meetings of Relevant United Nations Bodies on Issues Affecting Them.” Zero Draft, 19 April 2017. Walsh, Catherine. 2010. “Development as Buen Vivir: Institutional Arrangements and (De)colonial Entanglements.” Development 53 (1): 15–21. Wearne, Phillip. 1996. Return of the Indian: Conquest and Revival in the Americas. Philadelphia: Temple. Weston, Phoebe. 2021. Indigenous Peoples to get $1.7 bn in Recognition of Role in Protecting the Forests. Guardian. 1 November.

CHAPTER 2

Global Governance of the Environment: Multiple Accountability Disorder?

Concept and Practice of (Global) Governance “Government is an activity that undertakes to conduct individuals throughout their lives by placing them under the authority of a guide responsible for what they do and for what happens to them” (Foucault 1997: 68). It takes the form of “techniques and procedures for directing human behavior. Government of children, government of souls and consciences, government of a household, of a state, or of oneself” (Foucault 1997: 82). Drawing on a notion of government defined as the “conduct of conduct”, governmentality asks questions beyond simply “who governs” or how, and seeks to expose the relationship between the government of the state, the governing of ourselves, and of others (Dean 1999: 2). Power can be enacted in the interstices of government, in the multiple interstices created by the multiple accountability of global governance institutions at local, national, regional, or international levels. While there is an art of government, there is also the art of not-beinggoverned (Scott 2009). This raises the possibility of the concept of the art of not-governing, which challenges not only reasons of state, but also reasons of a liberal society, questioning unelected centralized authorities that over-govern in their attempt to manage the natural world in ways © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6_2

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that can become dangerous. Governmental institutions that may appear neutral and independent, and which may have societal wellbeing as their goal, may tend to function within an environmentally damaging developmental framework that is inherent to the structures of which they form an integral part. Power does not have to be top-down, and it does not have to come from the state. Having a “whole variety of authorities [which] govern in different sites, in relation to different objectives” (Rose et al. 2006) enables subsidiarity to work in various directions, enabling the state and the global state, strengthening the legitimacy of both. The “global state”, if it exists at all, is diffuse, fragmented (Shaw 2000) with blurred borders across which global civil society and capital can compromise the sovereignty of individual states, yet does not constitute “global government”. There may be “complex interdependence”, but the state is still key, though buffeted by shifting alliances among governments and private enterprise—operating legally and illegally—and coalitions of interests. “Hamlet” may lack a “prince” (Shaw 2000), but a number of candidates have been in competition for the role. The present study is one articulation of the concept of governmentality, not governmentality as a subdiscipline, but governmentality as it crosses a series of disciplines, challenging the boundaries between disciplines and subdisciplines, as well as the boundaries between theory and practice. It is located within the field of international relations and well as outside, both international, transnational, and global, falling in the literature that transcends the domestic/international dyad (Der Derian and Shapiro 1989) that was integral to International Relations theory before the 1990s (Dean 1999). It is constructivist, with elements of ethnography, in the sense of being partially “based on ethnographic research, but not primarily couched in the subjects’ voices”, using Escobar’s distinction (Escobar 2014: 98). Yet, it has aspirations towards “activist knowledge production” with a degree of distance (Ibid.: 99). While there is an assumption that there is a real “out there” (Ibid.: 101), at the same time it is recognized that social realities are constructed and that discourse can have a disciplinary effect, such that power can determine whose version of events is asserted. Hence the discourse of UN agencies in collaboration with NGOs and with other non-state actors is to create power through creating knowledge (Sikkink 2011), in competition with other forces’ narratives designed to construct different realities. At work are combinations of uniting and

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dividing practices: an absorption of the Other in order to be able to disarm it, the power of inclusion rather than the power of exclusion, as one technique of power. The following chapters are concerned with new images and mechanisms for the future of global governance, which are found in alternative forms of local and plural power/knowledge that challenge capitalist models (Tarascio 2018); are both micro- and macro, and through which existing institutions can be transformed. The dynamics of the formal and legal procedures of government, as well as informal systems of governance with which they interact, are analysed to explore power differentials and the actual and potential challenges to existing hegemonies that can enable common goals to be achieved.

Definition of Global Governance “Global governance” has hitherto referred to existing collective arrangements to solve problems, which was generally viewed as the remit of international institutions. The construction and maintenance of those institutions necessarily involved the participation of representatives of UN member governments. According to Weiss and Thakur, “‘global governance’ is the sum of laws, norms, policies, and institutions that define, constitute, and mediate relations among citizens, society, markets, and the state in the international arena—the wielders and objects of international public power. Even in the absence of an overarching central authority, existing collective arrangements bring more predictability, stability, and order to transboundary problems than we might expect” (2010: 6). The Commission on Global Governance, which began its work in 1992, defined governance as: [T]he sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and cooperative action taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest. (Commission on Global Governance 1995: 2)

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It establishes rights and obligations (Jolly et al. 2005). According to Rosenau (2020), governance is not the same as government, where rule systems are rooted in formal and legal procedures, but rather is characterized by informal rule systems. Global governance affects every aspect of human existence, trade, health, human security, ecosystems, and climate change, each of which impacts upon the other, and all of which involve questions of borders and sovereignty, power, cooperation, and conflict. Global governance systems have become increasingly relevant in contemporary policymaking (Hanegraaf and Poletti 2020) with an expansion in the number of global institutions, players, and epistemic communities. Yet Rosenau’s aspirations “to move communities in the directions they wish to go”, and to achieve global environmental goals with associated human rights protections, appeared still in 2021 to be beyond reach.

Failure of Attempts at “good” Global Governance (of Indebted Developing Countries) in the 1980s “Good” governance in the 1980s was characterized by international financial institutions as the opening up of markets to foreign direct investment or imported manufactured goods under the Structural Adjustment Programmes (SAPs)—coinciding with the heyday of the neoliberal paradigm of market fundamentalism—imposed by the IMF and World Bank on indebted developing countries as loan conditionality under the Washington Consensus (Gore 2000; Rodrik 2006). There was evidence that SAPs slowed down improvements in, or worsened, the health status of people in countries implementing them. The alleged failure of global governance (Khan 2006), coupled with mixed outcomes from massive deregulation and privatization efforts resulted in a move back in the 2000s to a more state-driven development; the Post-Washington Consensus (Chang 2002; Stiglitz 2002; Marquette 2004; Rodrik 2006). The admission of mistakes by the World Bank in 2005 (Rodrik 2006), and the inconsistencies in policies of multilateral institutions—having learned from failed practice and attempting to backtrack—amounted in themselves to poor global governance, that did not inspire trust or confidence on the part of supposed beneficiaries. In 2010, Weiss and Thakur made the point that global governance is not about control, about giving orders, but about finding collective arrangements to solve problems. With regard to the United Nations,

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Weiss and Thakur identified three United Nations: first, the UN General Assembly made up of representatives of states; second, the UN Secretariat (which would include departments and agencies); and third, INGOs and business (civil society). For Weiss and Thakur, it was the (I)NGOs which were the force for change. The United Nations in their view lacked power to manage the adverse consequences of the scope and impact of economic forces and actors: transnational companies could do more or less what they wanted without sanctions or reparation. There was a normative gap: the UN was an essential arena for the codification of norms in the form of resolutions and declarations (soft law); conventions and treaties (hard law) were instituted ultimately to achieve order out of chaos, but instruments to implement regulations or monitor adherence to them were absent. The UN did, however, have the power to be an entrepreneur, and at least to name and shame. Through the UN, a pattern of cascading was established, whereby domestic norms became international norms (Weiss and Thakur 2010). It has to be borne in mind that the United Nations does not make foreign policy. The UN Security Council and the UN General Assembly can make declarations or recommendations, and introduce treaties and conventions, but the only institutions that can implement them are governments, unlike the arrangements within the European Union, for example, where legal instruments and supranational agency are in place (Conca 2015). The UN has often been paralysed by the lack of agreement of its members. There are three phases of policy: formulation, adoption, and implementation. Resolutions are merely policy declarations, so there is a compliance gap in implementation, monitoring, and enforcement; such that, for example, very few countries complied with the Kyoto Protocol of 1997 (Conca 2015). The UN often failed because powerful states and powerful alliances of states vetoed decisions, not least by means of the UN Security Council (Archibugi 2012). Former US Secretary of State Kissinger noted, “ethics is not the guiding force in international politics, and results are only achieved through dialogue with the most powerful” (quoted in Archibugi and Pease 2018: 21). The US government withdrew from UNESCO and from the UN Human Rights Council in 2017–2018, and under the Trump administration (2016) withdrew from the Paris Climate Agreement of 2015, re-joining under the Biden administration in 2021. Multilateralism was both a force-multiplier (Weiss and Thakur 2010) and a force divider.

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Intergovernmental Organizations Intergovernmental organizations (IGOs) are recognized subjects of international law, with separate standing from their member states (Karns et al. 2015: 12). The International Court of Justice, in a 1949 advisory opinion, concluded that the United Nations had functions and rights on the basis of international personality and could operate at an international level (Ibid.:13). This is important in terms of decision-making: although the United Nations is composed of state-directed decision-makers who make decisions in the interests of those states, United Nations officials can give advice and work invisibly to engage in diplomacy to secure agreement to conventions or treaties. Their allegiance may go beyond their loyalty to the states of which they are citizens, and the short- or long-term collective interest may be given priority over the interests of one nation state or its representatives or ambassadors. An individual’s hierarchy of loyalties may change over time. Individuals may also have hierarchies of personal private or career interests that may influence their decision-making, whether that policymaking is on behalf of individual states or alliances of states. Moreover there may be overlapping or conflicting loyalties where individuals representing governments also have commercial private interests, which may or may not be in line with their own state or government interests (Hanegraaff et al. 2019) (see Chapter 8). Furthermore, there may be a blurring of the line dividing private commercial interests from state commercial interests (Burgis 2015). In the workings of global governance, regional organizations such as the European Union, Mercosur, or the Organization of American States (OAS) (see Chapter 4) become significant players. The OAS has over time expanded its involvement in the governance of the Americas in general and in the governance of the global environment. Individuals within regional organizations, too, will be motivated and influenced in their decision-making to different degrees by individual preferences and ideology, personal interest in its various forms, nation state interests, collective regional state interests, and the interests of the regional organization itself as an institution. These interests, too, may evolve and change over time, as loyalty to the organization may increase; individuals will be influenced by structures, by other individuals, and by connections that evolve through networks, both within and outside of the organization (Sikkink 2011). Personnel, ideas, information, knowledge, and science

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change over time, as do channels and technologies of communication, in which networks continue to be key drivers.

How Do Networks Contribute to Global Governance? Notwithstanding the work of Foucault on governmentality, global governance has hitherto been viewed as a top-down function of governments and intergovernmental institutions, rather than a participatory exercise involving voting populations who have tended to remain outside of regional or global structures, thereby creating lack of accountability and a democratic deficit in terms of the representation of taxpayers and other stakeholders. Reconceptualizing global governance as being comprised of an actual and discursive structure of interlocking networks through which information is conveyed vertically from top to bottom, as well as horizontally among individuals and communities at the level of households and village communities beyond or alongside formal party or local government structures, allows for an element of participation and potential influence over high-level decision-making (Sikkink 2011). Networks themselves become actors, hence Kahler (2009) reassessed the power of networks as a force of global governance that had been hitherto neglected in international relations theory. He argued that “if the contest between markets and state hierarchies was an organizing feature of the 1980s, network has emerged as the dominant social and economic metaphor in subsequent decades” (2009: 2). Kahler divides networks into two forms. The first is a network of structures, within which the participants may or may not be aware of the structures of which they form a part, but within which they do not regard themselves as actors, that is, as having an influence over policies or events. In such circumstances, the network may constitute a social or economic hierarchy that is taken as a given, and as being unchangeable, an “omnipresent feature of social life” (2009: 5). Kahler contrasts these more passive networks of structures with his second form of network, which is one of actors, where the actors form or become parts of conscious networks that have the ability to effect change. By mobilizing as part of a network of actors, the participants can have objectives in which they may succeed or fail.

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The concept of networks provides greater flexibility than one simply of markets and states. Networks around markets may tend to be ephemeral, depending on supply and demand, whereas other varieties of networks may endure and evolve in different directions. In a network, an absence of hierarchy may mean that dispute settlement may not be performed by one member of the network (Kahler 2009: 5), but that too is not fixed. Kahler suggests that hybrid forms may emerge, such as where hierarchies as well as non-hierarchical relations may exist in corporate networks. Networks of governments, networks of NGOs, working with or independently of governments, and networks of corporations engaged with international organizations, are elements that inform international and national policymaking (Schwab 2020). Hence individual actors within state organizations may be able to use these networks in the way described by Sikkink (2011: 233), in order to be able to act more autonomously than they might otherwise be able to do, given the many constraints on actors within state bureaucracies. In this way, through having a degree of autonomy, these actors may be able to achieve their own objectives and the objectives of their governments or the international organizations of which they form a part. There are therefore three different types of networked global governance. The first consists of formal membership of international organizations; the second exercises power through informal transnational organizations, rather than through bilateral agreements, which do not constitute “networks” (Sikkink 2011); and a third category in the space in which NGOs and private companies operate. As there are a range of actors with different agendas involved in networks, the network itself becomes a site of negotiations and disputes among the actors, several if not all of whom will make moral claims. Their objectives will vary according to their long- or short-term needs or aspirations, which will impact their decisions, as well as an unequal distribution of finance, resources, and power. Inequalities of power may result in strategic decisions being made by weaker players in supporting powerful players, even though they would have acted differently in more favourable circumstances. Keck and Sikkink (1998) note that because transnational advocacy networks normally involve people and organizations in structurally unequal positions, negotiations will be “politically sensitive” (Keck and Sikkink 1998: 121). Sikkink (2011) also argues that by signing up to a series of trade agreements, powerful states can build up ties to other states in order to use this formally defined social power to persuade other

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actors to change their behaviour in line with what the prestigious state wants, which is a point relevant to Chapters 5 and 8 in this volume.

International Treaties and Agreements Intergovernmental organizations (IGOs) such as the United Nations, or United Nations agencies, have an influence on UN member states, while member states also determine the policies of IGOs in a reciprocal process, which may involve power disparities. For a nation state, or its representatives, being a member of an IGO generates social capital; as does the introduction, negotiation, and accession to international treaties or agreements. Rejecting an international agreement, treaty, declaration, or convention, risks ostracism or opprobrium. Sikkink (2011) argues that in examining the effectiveness of treaties and agreements, it is useful to deconstruct transnational networks of power that operate both within and outside intergovernmental organizations. Networks will form within intergovernmental organizations, and competing groups may emerge, according to state interests. Sikkink (2011) identified a pattern of Northern states in one block competing with Southern states who in the past have formed another block in international relations in the areas of trade and loans, where the interests of North and South have not coincided. Power dynamics between North and South have changed over time; however, such that Hanegraaff and Poletti (2020) challenge the assessment of a North/South divide: they argue that in terms of actual influence on policymaking, it is countries with large economies in terms of GDP, such as China, India, and the USA, which have exerted the greatest influence on intergovernmental institutions’ policymaking decisions, straddling the North/South binary. Hanegraaff and Poletti’s assessments were made in the light of data taken from Climate and WTO summits between 1997 and 2012, but similar power balances pertained in subsequent years (Ibid.). Poor countries (with small GDPs) have greater numerical representation on governmental institutions than their size would merit, but this does not translate into equivalent influence (Hanegraaff and Poletti 2020). Conversely, weak governments may have interests that are in line with the interests of countries with greater economic power, which might mean that they are able to join “transnational interest group communities” (Hanegraaff and Poletti 2020: 8) of state and non-state actors, which can collectively accrue power to exert pressure on governmental

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and intergovernmental institutions. Within these “nestings” as described by Hanegraaff and Poletti (2020: 8), there will be varieties of interests in play, as was argued by Sikkink (2011). In terms of both economically powerful and poor countries, the interests represented by government agents are not necessarily those of the majority of the population; even less so of minorities or marginalized groups (see Chapters 5, 7, and 8). Political exclusion at a domestic level carries with it the likelihood of exclusion from all levels of governance, including global governance, precluding involvement on the part of poorer stakeholders (Agné et al. 2015), although in recent years, structures have evolved which have enabled marginalized communities to engage with global governance in officially sanctioned as well as creative ways (Etchart and Cerda 2020).

International Non-Governmental Organizations and Other Non-State Actors in Global Governance The history of Western NGOs’ involvement with government and governance can be traced back to the early nineteenth century in Britain with the anti-slavery movement, but it was the twentieth century that saw their rise to prominence on the global stage, starting with international associations being given representation at the League of Nations from 1918 (Wallace and Porter 2013). NGOs’ formal status with intergovernmental organizations (IGOs) began with Article 71 of the UN Charter of 1945, which allowed the United Nations Economic and Social Council (ECOSOC) to consult with NGOs. We can see, then, that NGOs have been part of the construction of the UN since its inception with the involvement of non-state actors, social movements, and global civil society. NGOs are on the whole non-violent, non-criminal, and non-commercial although they may not represent the voice of the people any more than governments do (Banks and Hulme 2012). (I)NGOs rose to prominence between 1972 and 1992, culminating in the Rio de Janeiro United Nations Conference on Environment and Development (UNCED) of 1992 at which point they became an integral part of the UN system (Charnovitz 1987). In the era of the rise of (I)NGOs it was argued that they operated independently of state governments and were therefore not beholden

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to, or controlled by them. Hence they were able to take decisions quickly when required. Many NGOs (including GONGOs, governmentorganized NGOs, or BINGOs—pop-up one-person Briefcase-NGOs) were smaller, more specialized, and more organized, and were thought to be able to mobilize more effectively than governments. Over time, however, the larger organizations became hybrid entities, both governmental and non-governmental—for example, the International Labour Organization (ILO), the Red Cross, and Red Crescent. International non-governmental organizations gathered media support and were able to exert pressure on governments, particularly when they had governmental allies (Sikkink 2011). They forced a shift from intergovernmental to more pluralistic systems and “framed issues and participated in the construction of social norms” (Willetts quoted in Ferguson 2012: 386). Where there were competing interests among beneficiaries of development or environmental programmes, or between environmental and human rights objectives, these tended to be elided in the academic as well as in the “grey” literature of advocacy NGOs, where conflict or inconvenient resistance to dominant narratives may have been downplayed. This is where boundaries became blurred in the relationships among states, international organizations, and international NGOs, thereby dispersing and obscuring accountability (Sikkink 2011). Sikkink drew attention to porous boundaries between governmental and non-governmental organizations, as a result of particular individuals, who may be specialists in a field, such as scientists, moving between governmental and nongovernmental organizations as advisors or consultants (2011). Moreover, departments or ministries within Northern governments have not always had the personnel or the expertise to pursue development programmes in health and poverty reduction in the South, nor may have wished to do so: in such cases governments delegated to the individual non-governmental development agencies or consortia to deliver goods and services in areas where non-profits already had established service delivery systems in place, working in collaboration with local or state governments in developing countries (Agné et al. 2015). These kinds of arrangements were extended to private companies, who may take on the responsibility of delivery of healthcare and educational services (see Chapter 5), creating potentially dangerous conflicts of interest (Ofrias 2017a). In one sense, these functional networks engaged in the provision of “development” to developing country governments and citizens, can be distinguished from advocacy networks such as Avaaz, whose sole purpose

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was advocacy in order to exert pressure on governments to reverse policies or to pursue policies that may have the support of global networks of citizen activists; in another sense, the lines between functional and advocacy networks can become blurred, in that governments perforce have to engage in advocacy in order to persuade citizens that the state is implementing policies that may have a moral justification and/or which may ultimately be of economic or political benefit to voters and stakeholders. The previous section examined the changing relationships among governmental and non-governmental organizations. The following section addresses the question of the role of private industry in global governance, and the rise of Corporate Social Responsibility (CSR) as an instrument of power. This theme is also addressed in Chapter 5.

The Global Compact: The Role of the Private Sector in “good” Global Governance Concerns about rising poverty, inequality, abuse of human rights, and damage to the environment associated with the practices of private industry in the processes of globalization led to the evolution of the Global Compact, an initiative supported by Kofi Annan, UN Secretary General, 1997–2006. The development of the Ten Principles of the Global Compact was an exercise in participation of stakeholders at the local and global level, and involved a study of networked governance models. It was designed as a public/private multi-stakeholder mechanism of global governance that would encourage businesses to adopt sustainable and socially responsible practices in line with United Nations goals and values, and to report on their implementation. It was announced at the World Economic Forum on 31 January 1999 and launched at the UN headquarters in New York City in 2000, the year of the launch of the Millennium Development Goals (MDGs) (UN 2020). By 2021, the Compact had more than 12,765 companies and more than 3,000 non-business signatories based in over 160 countries, and 70 Local Networks, being described by the UN as the largest corporate sustainability initiative in the world (UN Global Compact 2021). In April 2019 at a meeting of 40 world leaders at the UN, President Xi Jinping of China endorsed the Ten Principles and encouraged all players in China’s Belt and Road project to support the United Nations 2030 Agenda for Sustainable Development and “pursue economic growth, social progress and environmental protection in a balanced way” (3BLMedia 2019).

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The UN Global Compact was a founding member of the United Nations Sustainable Stock Exchanges (SSE) initiative, the Principles for Responsible Investment (PRI), the United Nations Environment Programme Finance Initiative (UNEP-FI), and the United Nations Conference on Trade and Development (UNCTAD) (United Nations Global Compact 2021). The UN Global Compact was followed by the development of the United Nations Guiding Principles (UNGPs) on Business and Human Rights. The UNGPs, formulated by Professor John Ruggie, Special Representative of the UN Secretary-General (SRSG), in 2008, and adopted by the UN Human Rights Council in 2011, were later incorporated into the Organization for Economic Co-operation and Development (OECD) Guidelines and the ISO 26000 Guidelines on Social Responsibility.1 The purpose of the UN Guiding Principles was to increase accountability of the state and private corporations in terms of human rights violations, and to enable access to remedy for victims of business-related abuses, but the final wording agreed upon involved nonbinding commitments, no sanctions—merely “social expectations” (Deva and Bilchitz 2013), as the commitments were voluntary, and there was no provision for monitoring and enforcement. Sawyer and Gómez (2008) argued that, far from protecting indigenous peoples, for example, signing up to the UN norms gave private corporations official UN endorsement for activities that may have been detrimental to indigenous communities’ interests (see also Chapter 5). UN member governments, particularly those whose revenue stemmed from the export of minerals, meanwhile, remained reluctant to approve enforcement of regulatory mechanisms that might deter would-be investors. With regard to issues of prevention of human rights abuses, which may involve violation of the human rights of indigenous peoples, the wording of the Ruggie Principles indicates a clear understanding of the challenges facing those who would wish to prevent abuses, and potential weaknesses in the position of those who have been victims of abuse for which they seek redress, which include lack of funds with which to pursue litigation. Not least is the question of jurisdiction where legal proceedings may be underway involving companies operating in foreign countries (see Chapter 5). The following quotations from the Ruggie Principles highlight complexities in the practice of global governance. The UN Ruggie Principles note that

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Where transnational corporations are involved, their “home” States therefore have roles to play in assisting both those corporations and host States to ensure that businesses are not involved with human rights abuse. (United Nations Guiding Principles 2008: 9) “Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediation.” (United Nations Guiding Principles 2008: 13) Where a business enterprise contributes or may contribute to an adverse human rights impact, it should take the necessary steps to cease or prevent its contribution and use its leverage to mitigate any remaining impact to the greatest extent possible. Leverage is considered to exist where the enterprise has the ability to effect change in the wrongful practices of an entity that causes a harm. (United Nations Guiding Principles 2008: 21) Practical and procedural barriers to accessing judicial remedy can arise where, for example: The costs of bringing claims go beyond being an appropriate deterrent to unmeritorious cases and/or cannot be reduced to reasonable levels through Government support, “market-based” mechanisms (such as litigation insurance and legal fee structures), or other means; Claimants experience difficulty in securing legal representation, due to a lack of resources or of other incentives for lawyers to advise claimants in this area … Many of these barriers are the result of, or compounded by, the frequent imbalances between the parties to business-related human rights claims, such as in their financial resources, access to information and expertise. (United Nations Guiding Principles 2008: 29)

The response to the Global Compact and Ruggie Principles of developing country governments, caught between opposing arms of intergovernmental organizations, and among intergovernmental institutions, private enterprise, and individual country governments—at the same time being subject to regional courts as well as pressure by INGOs—has been to sign up to a host of global governance initiatives through international and regional organizations, and to subscribe to UN declarations and conventions. As the wording of the UN Principles and Guidelines was generalized, and as the commitments were not binding, signatory governments and associated companies in the North and South were able to interpret the guidelines in a manner which suited their strategic interests or merely to pay lip-service to them (see Chapter 5). Similarly, for example, the Ecuadorian government under President Correa in the first years of his presidency (2007–2013) endorsed global environmental

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initiatives while simultaneously securing loans with governments and private companies in exchange for contracts with oil and mineral companies, whose activities contravened those same treaties and conventions (Hill 2013). The question of where power lies becomes key: Connolly and Kaisershot (2015) noted also that the increasing power of the corporations enabled them to avoid governments’ efforts to regulate them, and that “business practice is increasingly assuming the aspect of economic statesmanship” (2015: 663; see also Pratt and Zeckhauser 1991; Sawyer and Gómez 2008). Linked to the question of agreements being watered down to the lowest common denominator, thereby ensuring that enforceability and the possibility of actual real change are reduced or eliminated, is the issue of who designs the rules and to what end. If federal (state) governments are designing regulations, then the central government’s interests may be prioritized. If states and private companies work together in constructing regulations, then the push from the private sector may be to keep regulations to a minimum in the interests of maintaining profitability. In practice, as Kramarz (2016) argues, “accountability mechanisms tend to be responsive to the realities of power” in terms of designing goals and systems to reach those goals. With regard to the relative power of states versus private companies, Wenar (2016: xl) argues that countries—state governments—have greater power over private industry than private industry has over governments. Evidence suggests, however, that in developing countries dependent on foreign investment and foreign loans in the absence of a solid tax base, governments may follow the instructions given by those who control their source of income (Kimerling 2006; Etchart 2018). Decisions may also be based on, or swayed by, unofficial payments offered to individuals (see Chapter 8). Burgis (2015), for example, provides detailed evidence of sums of money transferred from private Chinese sources— allied to the Chinese government—to individuals and elite groups in Angola, Guinea, Mozambique, and Zimbabwe—channelled through the “Queensway Group” (labelled as such by J. R. Mailey in the Pentagon). Burgis refers to what he calls the “Angola mode” of doing business with “elites in fragile states” where governments may find themselves facing cash shortages, which puts them in a weak position out of which they may not able to secure concessions from Western financial institutions. With regard to the role of the private sector, and its place in global governance, Sawyer and Gómez (2012) state that the imposition of

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neoliberal policies on governments in the 1980s and 1990s, which had deleterious effects on indigenous populations across the continents, was endorsed by Western international financial institutions (IFIs) in support of the activities of multinational companies. In response, opposition forces had emerged on the part of a number of (I)NGOs, in alliance with UN agencies, to resist and mitigate the impact of the activities of extractive industries on indigenous peoples and the environment. These oppositional forces within UN agencies and NGOs began to develop mechanisms for the monitoring and evaluation as well as the mitigation of activities—such as environmental damage caused by extractive industries—conducted by multinational companies in developing countries. In parallel, a selection of the well-funded INGOs, particularly those associated with consortia of multinational companies engaged in philanthropic initiatives, such as the Bill and Melinda Gates Foundation (Schwab 2020), became mechanisms for providing services to un-serviced marginalized peoples. Chinese and multinational companies themselves often provided services, such as employment, basic utilities, health care, and education to communities, for example, in the areas in which they operated. The point has to be made here that if alliances of Western nonprofits engaged in providing development aid to communities affected by oil and mineral extraction are sponsored by companies involved in those same extractive industries and the products that arise from them, such as plastics, in the case of oil, (I)NGOs and charitable foundations are at risk of becoming both gamekeepers and poachers, in terms of conflicts of interest, a concern raised by Keck and Sikkink (1998), Ofrias (2017a), and Cepek (2018). There is also the danger that NGO service providers might become force multipliers for the extractive industries, as occurred when US-based protestant missionaries of the Summer Institute of Linguistics (SIL) “pacified” and forcibly relocated Huaorani communities in the 1960s within Ecuador, which enabled Texaco to move in to Huaorani territory for the purpose of oil drilling (Kimerling 2006: 461; Cepek 2018). In this regard, where the provision of services and employment to indigenous populations, to fulfil basic needs, is managed by oil companies, whose activities may have contaminated water sources, for example, the following quotation from Sawyer and Gómez (2008: 6) is apposite: “[E]ver-growing transnational alliances and networks among an array of civil society associations, advocacy groups and watchdog organizations have

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emerged to monitor the operations of MNCs [multinational companies] and multilateral banks, and the effects of their operations on local populations, especially indigenous peoples. As states increasingly relinquish their former protection for and responsibilities to their citizenry, increasingly, MNCs and to a lesser extent, some NGOs, have assumed dimensions of government”.

The United Nations, Circular Global Environmental Governance and the “International Community” The birth of global environmental governance is located by Keck and Sikkink (1998) in the formation of the United Nations itself, although at the time environmental problems fell under different agencies. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) was created in 1946 to promote educational and scientific activities as well as collaboration among specialists and NGOs. It was associated with the International Council of Scientific Unions (ICSU), a scientific coordinating body created after the First World War. The Scientific Committee on Problems of the Environment (SCOPE) was formed in 1969 (Ibid.) In 1948, the International Union for the Conservation of Nature and Natural Resources (IUCN) was created, comprising states and government agencies as well as non-governmental organizations. It began with 18 state members and 107 conservation organizations. By 1990, the IUCN included 62 states, 114 government agencies, and 436 NGOs. By 2020, it had 1,400 members (International Union for the Conservation of Nature 2020). In 1968, the Swedish government introduced a resolution calling for a United Nations-sponsored conference on the human environment, which it offered to host. The initiative for the conference was prompted by concerns regarding transboundary acid rain from European industry; its purpose was “to focus attention of governments and public opinion on the importance and urgency of this question, and also to identify those aspects of it that can only or best be solved through international cooperation and agreement”. The outcome was the 1972 UN Conference on the Human Environment in Stockholm (UNCHE) at which the United Nations Environment Programme (UNEP) was created. As the conference was highly politicized from the outset, the role of NGOs was

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enhanced: the UN wanted their input without alienating UN member governments and offered facilities for a concurrent environmental forum of NGOs (Keck and Sikkink 1998). Although the 1972 UN Conference is often considered to be the beginning of the process of international environment agreements (IEAs), Mitchell et al. note that even by 1950, states had signed more than 250 IEAs (Mitchell et al. 2020). Keck and Sikkink (1998) make the point that the strained discussions around the relationship between environment and development began with the Club of Rome’s publication of The Limits to Growth in 1972, prefiguring the debates of the 1980s, a decade during which developing countries continued their campaigns for the right to develop. Southern (developing) countries argued that the North’s development had necessitated widespread destruction of the industrialized countries’ own environment, particularly of forests, and that the Southern countries were paying the price by being forced to protect their forests for the sake of the North, which was responsible for the majority of carbon emissions. The same debates continued well into the twenty-first century (Rosenau 2020), albeit in a context in which divisions between North and South, developed and undeveloped, urban and rural, were less distinct (Hanegraaff and Poletti 2020). In March 1980, the IUCN, World Wildlife Fund (WWF), and United Nations Environment Programme (UNEP) launched a joint World Conservation Strategy with simultaneous ceremonies in thirty countries. The organizations recognized that “the separation of conservation from development … [is] at the root of current living problems” (Keck and Sikkink 1998: 15). It was at this conference that the concept of sustainable development emerged, which was later taken up by the World Commission on Environment and Development, the first chairperson of which was Norwegian Prime Minister Gro Harlem Brundtland. The Brundtland Commission, as it was known, published the report Our Common Future in 1987, known as the Brundtland Report (World Commission on Environment and Development 1987). Our Common Future set out proposals for national legislative reforms and conservation goals. By the 1980s, the transnational environment advocacy networks that had evolved had incorporated the idea that humans were a vital component for the protection of nature and that their rights had to be defended as well (Keck and Sikkink 1998). In

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this regard, Keck and Sikkink made the point that elites in developing countries may have had a personal interest in development projects that were not necessarily for the purposes of benefiting the poor, which would include indigenous peoples; they often had a contrary effect (Keck and Sikkink 1998; Ferguson 1990), in that some rural communities were displaced and lost access to resources in others’ pursuit of development projects that benefited particular administrations and their associates (see Kimerling 2006). An extension to this argument, with regard to government policies, one made by James Rosenau in 2020, was that beyond the personal interests of bureaucrats and politicians, the electoral interests of the majority of the voting populace tend to be considered, which may or may not be in the interests of minorities or of protection of the environment. Rosenau (2020) posited also that each nation state government concerned itself with its own population’s interests and the interests of individual politicians and bureaucrats within that state, rather than the wellbeing of other states, authority being vested within states themselves. The difficulty with the state system, according to Rosenau (2020), was that if state governments could barely regulate their own people, it was unreasonable to expect them to be able to regulate people in other countries. He argued that it was not constructive to cast around for those to blame, as the problem was structural; individuals act as they have to act according to their job description, which is to defend the (mostly short-term) interests of those by whom they may have been elected; moreover, employees will act according to the responsibilities assigned to them. The key factor was that economic growth was of greater priority than environmental protection. Growing populations required an income through employment to survive: an assumption was that lack of economic growth would lead to unemployment, social unrest, social breakdown, and ultimately recidivism. In relation to economic development and its impact on the environment, Ken Conca (2015) noted that conflicts arose over control of natural resources in the course of decolonization; that those conflicts continued into the twenty-first century around who had title to land, who had access to land, and who had the power to contest the use of land for resource extraction. This raises the question of state sovereignty over minerals that lie beneath the soil under national law—versus international and national laws that purportedly give control over access to indigenous land to indigenous populations who by regional and international law have a

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right to be consulted under the provision of Free, Prior and Informed Consent (FPIC), institutionalized by the International Labour Organization (ILO), the United Nations, and the Organization of American States (OAS) (see Chapter 5). While Conca argued that the UN had failed to achieve its “core aims of better environmental law between nations and greener development” as a result of a “continued devolution of authority away from sovereign nation-states” (2015: 31), it is useful to refer back to Conca’s earlier work on the possibility for greater environmental efficacy achieved by means of regional environmental governance (2012). It is indeed the InterAmerican Court of Human Rights (IACtHR) which has made rulings precisely in the area that Conca identifies as being side-lined from the global United Nations environmental initiatives: that of human rights, where these also can coincide with the rights of nature (see Chapters 3 and 4).

Private Industry, Big Philanthropy, and Global Governance of the Environment As noted earlier, Northern international NGOs were engaged in intergovernmental initiatives towards global governance of the environment dating back to the 1940s, and by the 1970s, a number of environmental NGOs had been able to establish themselves as powerful actors on the global stage. Over the years, environmental NGOs were able to engage the support of large players in private industry, who provided muchneeded funds. The relationship of Big Business with Big Green is carefully documented by Naomi Klein in This Changes Everything: Capitalism and the Climate (2014), where she traces funding channels from fossil fuel companies to Conservation International, The Nature Conservancy, and the Conservation Fund (Klein 2014: 196). Klein identified links between Conservation International and Walmart, Monsanto, B H P Billiton, Shell, Chevron, ExxonMobil, Toyota, McDonald’s, and BP; the Nature Conservancy had close links with BP America, Chevron, and Shell (Klein 2014: 196), raising questions about the commitment of the larger environmental NGOs to efforts to minimize climate change, as well as broader concerns with regard to moving towards more sustainable economies in terms of consumption and waste (see Newell et al. 2021).

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Despite having been closely aligned with the International Union for the Conservation of Nature (IUCN), the World Wildlife Fund (WWF) has a chequered history in terms of its record in environmental conservation (Vidal 2014). It is notable that Royal Dutch Shell was the World Wildlife Fund’s first corporate sponsor, Shell’s president John Loudon having served as the first president of the WWF in 1961. In the 1970s, the WWF was closely linked with Dr. Anton Rupert of the Philip Morris tobacco company and the Bilderberg Group of bankers, politicians, directors of large businesses and board members from large publicly traded corporations, including IBM, Xerox, Royal Dutch Shell, Nokia, and Daimler, which came together in the 1950s, as well as Prince Bernhard of the Netherlands, who was the organization’s first European president. Dr. Anton Rupert remained on the board of the WWF until the 1990s (Vidal 2014). Moreover, the WWF has been associated with Alcoa, BP, Bank of America, Cargill, Citygroup, Dupont, HSBC, Kodak, Monsanto, and J. P. Morgan (Vidal 2014). Clearly, there were times when associations of large corporations with large non-profits made for uncomfortable bedfellows. When Shell pressured the European Union to lower energy efficiency targets in 2014, it made itself unpopular with other companies such as Unilever, which had supported the targets. Then as Shell came into conflict with the Netherlands government, the WWF began to distance itself from the company (Ottery 2015). The WWF continued to work closely with Coca Cola, however, one of its major partners from 2007 until 2021 (ongoing), collaborating on wildlife protection and water projects in Belize, Guatemala, Honduras and Mexico, as well as on the Yangtze river in China, in pursuit of “ambitious global Water, Climate, Packaging and Agriculture performance goals”… “convening influential partners to solve global environmental challenges” (World Wildlife Fund 2020). The WWF came under criticism in a German book, Silence of the Pandas, by Wilfried Huismann published in 2012, which accused the WWF of greenwashing operations of private companies. The response of the WWF to the re-publication of the book in English in 2014 as Pandaleaks was to explain that the organization had been “exiting relationships with fossil fuel companies” for more than a decade, and that corporate funding was down to 6 per cent by 2013 (Vidal 2014). The WWF acknowledged that there had been forced relocations of indigenous forest peoples in India, associated with sponsors’ programmes, but

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that the WWF had opposed them. A Buzzfeed investigation into the treatment of indigenous people in Cameroon, Central African Republic, and Kenya in 2019, associated with WWF projects, resulted in the WWF’s commissioning high-level independent investigations into alleged human rights abuses, which had not been completed in 2020, but which were mentioned in the organization’s 2019 Annual Review published in early 2020 (World Wildlife Fund 2020). The public position of the WWF, which was supporting projects in Colombia and Peru in 2020, was that it was working with private corporations and governments who held powerful levers of influence and could make significant change happen. Earlier, WWF had stated that they were “much choosier about which interests we accept donations from and which interests we work with” (Vidal 2014). WWF also announced that they were working “with those often closest to the resources vital to humanity and yet, often the most vulnerable to exclusion”, declaring that in 1996, they had been the “the first international conservation organization to adopt a formal policy recognizing the rights of indigenous peoples” (World Wildlife Fund 2008), a position they forefronted in 2020 (World Wildlife Fund 2021). Private companies of all stripes, but particularly oil companies who have come under the most strident criticism, have made efforts to “green” their image and to announce their respect for community, indigenous and environmental rights by endorsing a range of environmental guidelines and spearheading community and environmental initiatives, as evidenced by company reports (see Chapter 7). In terms of binding regulations, companies have been less willing to endorse them, and state governments have resisted laws that would render companies liable for prosecution for human rights violations and environmental damage. This is not surprising, in view of the fact that developing country governments especially have courted foreign direct investment and revenue and have sought to engage in public/private ventures with foreign companies. It follows that if governments are reluctant to commit to regulation that is binding on domestic or foreign investors, the developmental state may not be best placed to oversee the protection of its indigenous communities. This was recognized in the 1990s by UN agencies and a number of NGOs who were not sponsored by multinational companies, who took upon themselves the responsibility of protecting indigenous populations through monitoring MNC and state extractive industry operations.

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It has been demonstrated in a number of cases, not least that of the 30,000 class action plaintiffs demanding reparation for the Chevron/Texaco oil spill in the north-east Amazon region in Ecuador that began in 1973 (Kimerling 2006; Ofrias 2017a, b; Etchart 2018) (see Chapter 5), and over which litigation continued from 1993 until 2021, that in cases of alleged violations of rights, either of nature or of communities—indigenous and non-indigenous—by foreign companies, there was a question of lack of clear jurisdiction, and uncertainty as to which institutions were responsible for oversight of industry activities (Kimerling 2006). A number of indigenous plaintiffs have succeeded in class action litigation against their own governments for human rights violations, such as the Sarayaku Kichwa against the Ecuadorian government in 2012 (Melo Cevallos 2016) (see Chapter 4), but where governments and private companies were jointly responsible for human rights violations or environmental damage, liability may attributable to two or more parties. For legal purposes, this creates complexities. Additionally, where indemnity for companies from prosecution has been signed off by governments, as in the ChevronTexaco case (see Chapter 5), again jurisdictional and liability ambiguities thwart successful prosecution (Kimerling 2006). The question of responsibility for the protection of human rights and the environment, as to whether this lies with the host state or a foreign corporation operating within a territory, is one of significance in terms of implementation of national laws. The website of the Chinese oil company China National Petroleum Corporation (CNPC)/Andes Petroleum Ecuador Ltd, which was operating in the Ecuadorian Amazon in 2020, in the Tarapoa Block in the province of Sucumbíos, and in Blocks 14 and 17 in the provinces of Orellana and Pastaza (Andes Petroleum 2020) illustrates the risks of opacity in contractual obligations. According to the CNPC/Andes Petroleum Ecuador Ltd website, the company was committed to “obeying the laws and regulations of the countries where we operate and fully respecting local customs. Complete honesty and openness with the public regarding our HSE [Health, Security, Environment] performance. Consistency in our HSE concepts wherever we are and in all sectors of our business [sic]”. Andes Petroleum Ecuador Ltd/PetroOriental S.A. claimed that “companies dedicated to hydrocarbon exploration and exploitation activities in Ecuador, are fully committed to protecting the environment and providing the best operation conditions for the safety and health of their employees”. The website further stated:

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Our corporate conduct is defined by equality and transparency, and absolute respect for the State, our shareholders, our employees as well as our neighbors, and the indigenous and settler communities in the Oriente [the Eastern Ecuadorian Amazon region]. By maintaining high technological standards, our operations preserve the environment, and especially inhabitants. With this in mind, we have drafted several clear guidelines to be followed in the case of possible contact. (Andes Petroleum 2020)

In legal terms, however, in 2020, ultimate responsibility for ensuring compliance with human rights and environmental norms rested with the state in which private or state foreign companies were operating; hence the ongoing global-level discussions of potentially binding treaties for multinational companies operating in multiple jurisdictions. A revised draft binding treaty for corporations was published by the UN in July 2019, with a view to its being discussed and voted on by the UN General Assembly (Carrillo Santarelli 2019). A third revised draft was the basis for substantive intergovernmental negotiations of the open-ended intergovernmental working group (OEIGWG) in October 2021.

Proliferation of Global Environmental Governance Institutions In reviewing intergovernmental and global environmental governance mechanisms, Kramarz (2016) commented on the excess of accountability, monitoring, and evaluation for their own sakes, which resulted in what Koppell (2005) labelled “multiple accountability disorder” associated with the existence of numerous global environmental initiatives, each with its own evaluation system. The proliferation of institutions and mechanisms compounded the obstacles facing those wishing to implement global environmental regulations (Koppell 2005: 9). In 2016, Kramarz noted more than 1,200 Multilateral Environmental Agreements (MEAs) and 1,500 bilateral agreements among states covering the global environment, with the levels of duplication not surprisingly leading to “governance dysfunctions” (pp. 9–10). The 2017 International Environmental Agreement Database (IEADB) listed over 1,300 Multilateral Environmental Agreements, over 2,200 Bilateral Environmental Agreements (BEAs), 250 other environmental agreements, and over 90,000 individual country “membership actions” (dates of signature, ratification, or entry into force). There were 3,600 IAEs in

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2020, according to the IEADB (Mitchell et al. 2020). Mitchell et al. describe the environmental agreements listed in IEADB as constituting an “ecosystem of international environmental law”, and as a “major resource for scholars, students, and practitioners from around the world seeking IEA texts and metadata” (p. 105). A concerning phenomenon is discernible at this point. The proliferation of environmental agreements is paralleled by the burgeoning number of databases listing environmental agreements, constituting ecosystems within an ecosystem, with decisions having to be made as to which database to consult and the possibility of duplication of material and waste of resources that could be utilized more effectively elsewhere. For example, the World Bank compiles its own list of environmental treaties (World Bank 2020); as do a range of United Nations agencies (United Nations InfoMEA 2020; United Nations Environment Programme 2020). Yet there is no mention of the IEADB database, for example, in the high level Task Force on Climate-related Financial Disclosures (TCFD) report of 2017, suggesting a siloed landscape of institutions which fail to connect with each other. The siloization contributes to the “accountability paradox” that occurs when the greater the accountability, the less the environmental protection provided (Koppell 2005). Boxes are ticked for the purposes of fulfilling requirements, such as goals for reducing carbon emissions to meet particular targets; Kramarz argues that “evidence is still required to support the argument that any kind of accountability measure has a positive effect on global environmental goals (GEGs)” (2016: 6). Moreover, in terms of monitoring whether states or private entities have complied with environmental or human rights standards in the form of conventions and treaties, state, intergovernmental or nongovernmental environmental regulators have been able to monitor only whether companies or agents of the state have complied with industry-set standards. The impacts of unintended consequences, such as economically beneficial spin-offs of extractive industry activities, which might not always be to the benefit of all parties concerned, including nature, are not monitorable, as they are not within the remit of accountability (see Ofrias 2017a). In monitoring and evaluation, the role of stakeholders is important, in terms of feedback and opinion polls, but decisions have to be made as to who counts as a stakeholder. Those who have voice are not necessarily

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representative of all affected stakeholders. Transparency and accountability to the public may be useful, but there are a range of publics, including the voiceless—who might be indigenous communities living in voluntary isolation, or nature—who constitute silent stakeholders and whose interests should be taken into consideration. Future generations are not-yet-existing stakeholders, who have few advocates with the foresight to speak for them.

Conclusions The proliferation of global declarations, resolutions, conventions and treaties, and other instruments of international law designed to protect the rights of indigenous people and the biodiversity of the places that many of them inhabit, as well as agreements to limit climate change that affects and is affected by indigenous peoples, is an indication of the aspiration of large numbers of citizens, the powerful and the powerless, worldwide, to ensure that future generations of many species, including humans, will survive. The evidence suggests, however, that the 3,600 International Environmental Agreements (IEAs) supposedly in force in 2020 did not make a substantial contribution in proportion to their numbers to reduce deforestation, and associated displacement or dispossession of indigenous forest dwellers, in several parts of the world. It would support Sawyer and Gómez’s conclusion in their UNRISD report of 2008 (p. iii) with regard to the rights of indigenous peoples, that “despite the burgeoning number of international charters, state constitutions and national laws across the world that assert and protect the rights of indigenous peoples, the majority find themselves increasingly subjected to discrimination, exploitation, dispossession and racism”. The work of Global Witness in documenting cases of violence against environment defenders, many of them indigenous, through to 2019 (Global Witness 2020), with numbers remaining constant year on year, leads to the conclusion that existing global governance mechanisms were failing to reach their objectives, and that new approaches were needed. This chapter has provided an overview of theoretical debates around global governance, its institutions and functioning, challenging the view that such governance is only imposed from above by unelected officials employed by intergovernmental organizations. It has examined the history of global governance of the environment, providing examples of

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changing relationships among a range of stakeholders, in order to illustrate some of the power dynamics among the players which have a bearing on environmental and human rights outcomes. The following chapter will examine concepts around the Rights of Nature and their articulation with the practices and institutions of global governance.

Note 1. ISO Guidelines. The ISO is an independent, non-governmental international organisation of experts who develop voluntary “market relevant International Standards”. Membership: 165 national standard bodies (2021). Founded 1947. Based in Geneva, Switzerland. https://www.iso. org/about-us.html.

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CHAPTER 3

Buen Vivir and the Rights of Nature in National and International Law

The Urgency of Global Environmental Governance in the Twenty-First Century The United Nations on 20 May 2020 made an urgent call to save the world’s forests and to protect biodiversity. The UN’s State of the World’s Forests 2020 report recorded that deforestation and forest degradation were proceeding at alarming rates, which was contributing significantly to the ongoing loss of biodiversity (Food and Agriculture Organization [FAO] 2020a). Deforestation continued in Ecuador in 2021 (Montaño 2021) where 2 million hectares of the country’s tropical forest had been lost between 1992 and 2020, a decline of almost 40 per cent, according to a report published by the Ecuadorian National Institute of Biodiversity (INABIO) in February 2021. The Amazonian provinces of Napo, Orellana y Pastaza lost 15.13 per cent of their tropical forest cover in the same period (Montaño 2021). In 2020, the Food and Agriculture Organization (FAO) and United Nations Environment Programme (UNEP) announced that they were preparing to lead the “UN Decade on Ecosystem Restoration” which was to begin in 2021 (Food and Agriculture Organization (FAO) 2020a). Both UN agency heads expressed their commitment to increased global

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cooperation in the race to restore degraded and damaged ecosystems, combat climate change and safeguard biodiversity. The announcement in 2020 included the news that globally 13 million hectares of forest were being destroyed annually, causing 12–20 per cent of the global greenhouse gas emissions that were contributing to climate change. Forests contain 60,000 different tree species, 80 per cent of amphibian species and 75 per cent of mammal species. The UN declared that human action was threatening the survival of 25 per cent of animal and plant groups, and that 1 million species faced extinction in the next decades. The global rate of extinction was tens to hundreds of times higher than it had been averaging in the previous 10 million years (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) 2019). What was surprising about this announcement is that it was not news: risks of species extinction had been broadcast over a range of media for more than 50 years, some early findings having been announced by Rachel Carson with her book Silent Spring (Carson 2002) which was serialized in the New Yorker in 1962, though evidence of the harm inflicted on ecosystems by the chemical DDT had surfaced in 1945 (National Resources Defense Council [NRDC] of the USA (2015). Warnings of man-induced climate change began in early 1970s, having been identified within the scientific community in 1968 by Robinson and Robbins (Robinson and Robbins 1968; Wiles 2018). Many thousands of governmental, nongovernmental, environment, and conservation organizations and agencies have emerged in the 50 years that have passed since those initial warnings, and at least six United Nations agencies were engaged in environmental and conservation activities in 2020. Millions of dollars had been expended; new intergovernmental and private agencies were appearing each year. There were 599 environmental organizations with accredited status at the UN in 2020 (United Nations Environment Programme (UNEP) 2020a). The main title for the fifth United Nations Environment Assembly, 22–23 February 2021, was “Strengthening Actions for Nature to achieve the Sustainable Development Goals” (United Nations Environment Programme (UNEP) 2020b), and the World Environment Day strapline on 28 May 2020 was “Time for Nature”. In 2020, forests continued to burn and to be cleared for agriculture, oil wells, and mining across the continents. In 2019, 3.8 million hectares of tropical primary forest cover were lost, a similar figure to the previous year’s (Weisse and Dow Goldman 2020). Each year new initiatives were

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launched, yet there was little evidence that the numbers of fires and forest clearances were diminishing. In its 2019 report, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), which was comprised of UNESCO, UNDP, FAO, and UNEP as founder members (UNEP 2020b), calculated that one-quarter of the world’s land area is traditionally owned, managed, used, or occupied by indigenous peoples, and that it was indigenous communities which had been the most effective in preventing habitat and therefore biodiversity loss, even in protected areas, and had contributed to limiting deforestation. The IPBES noted, however, that indigenous lands and livelihoods were under continued pressure from resource extraction, commodity production, mining, transport, and energy infrastructure, as well as agriculture, forestry, and fishing practices (IPBES 2019). The IPBES report recognized the contribution of indigenous peoples to environmental governance, and to the “restoration and sustainable use of nature”, which the report presented as relevant to broader society. The IPBES argued that “Governance, including customary institutions and management systems and co-management regimes that involve indigenous peoples and local communities, can be an effective way to safeguard nature and its contributions to people by incorporating locally attuned management systems and indigenous and local knowledge” (IPBES 2019: D5).

Definitions of Indigenous and Tribal Peoples There is no universal definition of indigenous and tribal peoples: they are generally defined by the United Nations as those in former European colonies who have chosen to remain marginalized. “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them” (United Nations Department of Economic and Social Affairs [UNDESA] 2021). According to the International Labour Organization (ILO), there were in 2020 approximately 476.6 million indigenous people in the world, belonging to 5,000 different groups, in 90 countries (International Labour Organization 2021).

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In terms of how to define indigenous peoples, ILO Convention No. 169 of 1989 adopted a practical approach, detailing separately objective and subjective criteria (International Labour Organization (ILO 2021). Subjective criteria included self-identification as belonging to an indigenous people. Their objective criterion was “descent from populations who inhabited the country or geographical region at the time of conquest, colonisation or establishment of present state boundaries” (ILO 2021), and retention of some or all of their own social, economic, cultural, and political institutions, irrespective of their legal status. The ILO categorized separately indigenous peoples from tribal peoples, who do not necessarily have their roots in the place in which they reside. The criterion they used for tribal peoples was that their social, cultural, and economic conditions distinguished them from other sections of the national community. Their status was regulated wholly or partially by their own customs or traditions or by special laws or regulations.

Epistemologies of the South: Indigenous Perspectivism and Harmony with Nature The work of Eduardo Viveiros de Castro (2013) and Boaventura de Sousa Santos (2016) questions Western epistemology and explores indigenous worldviews that begin with a difference premise with regard to man’s relationship to nature. This relationship is embodied in the words of indigenous leaders in North and South America, such as Red Cloud, leader of the Oglala Lakota Sioux (1868–1909), of Black Elk (1863–1950), and Luther, Standing Bear (c.1868–1939): The American Indian is of the soil, whether it be the region of forests, plains, pueblos or mesas. He fits into the landscape, for the hand that fashioned the continent also fashioned the man for his surroundings. He once grew as naturally as the wild sunflowers; he belongs just as the buffalo belongs. (Luther Standing Bear, Oglala Sioux chief)

Baldin (2015: 4) comments: “While harmony is a word which has almost disappeared from moral and political vocabulary of Western thought, it is a founding and essential value for indigenous societies, where the coexistence is based on the idea of equilibrium and balance. In the Peruvian Andes, a guiding tenet of native peoples is kushikuy kawasy, translated

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as principle of relationality or as harmony among human beings, family, community and nature”. The Kichwa of Ecuador similarly seek harmony with nature, sumak kawsay, to strengthen their way of life to secure their society, culture, traditions—sumak kawsay and kawsak sacha, the living forest. “Sumak is the human spirit, in harmony with nature, with the forest, with the beings who protect the forest and the sacred spirits” (Gualinga, Nelson, interview 2016). Western acknowledgement of the value of indigenous knowledge can be viewed in the context of the theoretical work of Eduardo Viveiros de Castro (2013) in which the orientalist anthropological binary of Western and Other is reversed, so that the Western becomes the Other. Western rational thought imbues the indigenous spirit and is transformed, according to Viveiros de Castro: the two perspectives are merged and the Other vanishes, not only the human Other, but also the animal other and inanimate other, the ecosystem, which man has to re-enter as an integral part. Viveiros de Castro cites Bruno Latour’s extension of Derridean thought of not reversing hierarchies and removing binary divisions, but engaging in a process of “undefining”, in a rejection of the accumulation of categorization, of naming (Latour 1993). In his interpretation of non-Western worldviews, Viveiros de Castro thus stresses the absence of the nature/culture distinction, the binary opposition of human and animal. In Viveiros’s conceptualization of Amazonian thought, the “gods, animals, the dead, plants, meteorological phenomena, and often objects or artefacts as well – equipped with the same general ensemble of perceptive, appetitive, and cognitive dispositions” (2013: 23)—together form a soul, which could be described as an ecosystem. For Viveiros de Castro, “All animals and cosmic constituents are intensively and virtually persons, because all of them, it does not matter which, can reveal themselves to be (transform into) a person” (Ibid.: 24), which in some sense confers personhood on creatures, such as sharks, and natural phenomena such as rivers. His interpretation of the indigenous perspective is supported by the words of José Gualinga, elder of the Sarayaku Kichwa community of the Ecuadorian Amazon, interviewed in 2016: The beings who live in the forest, whom we cannot see … are the protectors of the ecosystem. These beings are alive, the earth is alive, the trees and the rivers are alive. From another point of view, with another vision,

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another philosophy, it is possible to begin to gain an understanding [of nature]. (Gualinga, José, interview 2016)

The “personhood” ascribed to natural beings in the words and thoughts of indigenous peoples is one that is reflected in the personhood awarded to trees and rivers in the academic literature as well as in the juridical ecosystems of international law as it pertains to the rights of nature in cases of contamination or damage caused by human action (Stone 1972; Kohn 2013; Cyrus Vance Center 2020). Nature can be a “subject of rights”, a “legal person”, and a “rights-bearing entity”, with the right to exist, thrive, and be restored (Cyrus Vance Center 2020: 6). The rights of nature as a legal concept has evolved within jurisprudence in the twenty-first century and takes a variety of forms that are grounded in both treaty rights and indigenous jurisprudence (Cyrus Vance Center 2020). The rights of nature can take the form of Constitutional Rights, as is the case in Ecuador and Bolivia, and can be encoded within national laws, or can be imposed by executive action. For instance, an Indian court granted legal personhood to the Ganges and Yamuna rivers in 2017, citing the Whanganui Act of New Zealand (Gleeson-White 2018). The rights of nature can also be applied within a human rights framework as has been the case with rights of nature cases in Colombia (Cyrus Vance Center 2020: 7). With regard to the way the environment is perceived among the nonindigenous majorities in the American continent, the rights of nature approach, adopted by the United Nations under Principle 1 of the Rio Declaration on Environment and Development in 1992, stands in contrast to the Doctrine of Discovery that was foundational to the conquest of the Americas that began in the fifteenth century (Miller 2011), and which is encoded in the US Constitution (Berry, Foreword to Cullinan 2003). The Doctrine of Discovery enabled Europeans automatically to acquire property rights in native lands for which it afforded them governmental, political, and commercial rights over the indigenous inhabitants without their knowledge or consent under international legal principle, which still pertained in 2011 (Miller 2011: 330). The US Constitution did not grant protection to any non-human mode of being, such that a legal structure was created that authorized “an assault on the natural world” in the opinion of Thomas Berry (Berry in Cullinan 2003: 13). Indigenous communities resisted both the occupation of their land and the assault on nature. The Doctrine of Discovery has remained federal

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law to the present, according to Miller, being used to limit US American first nation peoples’ governmental and sovereign powers as well as their property rights (Miller 2011: 331). The Doctrine of Discovery was expanded into the Manifest Destiny that was expressly followed by US presidents from 1845, by which the USA had “a mission to redeem the world by spreading republican government and the American way of life around the globe”, on account of a “divinely ordained destiny” (Miller 2011: 332). The two doctrines combined signified that the US colonizers’ culture, race, and religion were superior to all others, creating the conditions for ethnocide as well as ecocide—an attempt at annihilation of the history, culture, and ancestral knowledge of the first nation peoples. Boaventura de Sousa Santos, in Epistemologies of the South, contextualizes the subordination of indigenous knowledge within the framework of conquest and colonization: The destruction of knowledge (besides the genocide of indigenous people) is what I call epistemicide: the destruction of the knowledge and cultures of these populations, of their memories and ancestral links and their manner of relating to others and to nature. Their legal and political forms – everything – is destroyed and subordinated to the colonial occupation. (Boaventura de Sousa Santos 2016: 18)

For De Sousa Santos, the relegation to inferior status of the knowledge of indigenous peoples is a function of the imperative for conquest and domination. The reassertion of the importance of maintaining harmony with nature, therefore, is a direct threat to those who would choose to assert ownership of land and resources for the purpose of extracting resources, agricultural—animal or vegetable—or mineral (Ibid., 2016: 18). De Sousa Santos, in looking at the epistemologies of the South from the perspective of the North, argues that “the epistemologies of the South do not address the idea of what we consider relevant knowledge per se, because they are concerned with things, ways of knowing, that very often do not count as knowledge. They are viewed as superstitions, opinions, subjectivities, common sense” (Boaventura de Sousa Santos 2016: 20). De Sousa Santos takes the position of “rearguard” intellectual, not “vanguard intellectual” (2016: 21). His role, as he sees it, is to learn, not to teach, as articulated by Gayatri Chakravorty Spivak in “Can the subaltern speak” in 1983 (Spivak 1983). “The scientific knowledge that brought

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us here will not be able to get us out of here, we need other knowledges, we need other conceptions of time, we need other conceptions of productivity, we need other conceptions of spatial scale”, De Sousa Santos commented in 2016, with reference to the Amazon River basin peoples. Taking a position close to that of Bruno Latour in 1993, De Sousa Santos’s purpose was not to discount or devalue Western science, but to argue that in the Amazon other kinds of knowledges are required to preserve biodiversity.

The History and Interpretation of Sumak Kawsay and Buen Vivir In his article on Amerindian perspectivism (2013), Viveiros de Castro argued that: “Anthropology is ready to fully assume its new mission of being the theory/practice of the permanent decolonization of thought” (2013: 17). Similarly, buen vivir, in encompassing the rights of nature in deed, if not in word, represented and declared itself to be, a decolonization of thought, decolonization of people, territories, and mindset, as articulated by Ngugi Wa Thiong’o in 1981 (1986), even of those who have never been colonized, or only recently colonized, such that some indigenous Amazonians can claim to be uncolonized—if not “ungoverned” (Scott 2009)—having preserved their languages, way of life, their religion, and leadership structures. Those struggling not to be governed—some of whom aspire to be global spiritual governors—can be located within the epistemological vision of Viveiros de Castro and De Sousa Santos in their efforts to remain living in harmony with nature, according to their philosophy of sumak kawsay. Translated from Kichwa, sumak kawsay means living in completeness (Waldmueller and Rodríguez 2019), which others have described as abundance or plenitude, characterized as “integration between cosmic cycles, spiritual understanding and animated, mutual relationships of humans and nature in community” (Ibid.: 234). Sumak kawsay is ecologistic, postdevelopmentalist, and biocentric, rendered in Spanish as buen vivir by the Uruguayan Eduardo Gudynas (2011), though its interpretation and practice change over time and are contingent. Economist Alberto Acosta Espinosa, former Ecuadorian Minister of Energy and Mines and President of the Constituent Assembly (2007–2008), who was responsible for the incorporation of the Rights of Nature into the Ecuadorian Constitution

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of 2008, in his work conflates sumak kawsay, buen vivir and harmony with nature as follows: Alternative values, experiences and civilisation practices are available, and include those offered by buen vivir (or sumak kawsay in indigeneous language) from indigenous communities of the Andes and the Amazon....These visions require a world in which other ‘worlds’ can enter without risk of being marginalised or exploited, and which calls for another economy based on the harmony, solidarity and reciprocity proposed by buen vivir. (Acosta 2017). Buen vivir has been integral to a long-standing search for alternative ways of living and has been shaped by the struggles of indigenous peoples over the past centuries (Acosta and Martínez Abarca 2018: 133).

Overall, sumak kawsay and buen vivir together constitute a challenge to Western capitalist or even socialist conceptions of development, centred as they are on indigenous traditions that are not based in a belief in modernization, industrialization, the Enlightenment, or a teleological view of human progress (Kauffman and Martin 2014). They rather fit within the rubric of critical development and postdevelopment theories, as elaborated by Escobar (2010). According to Eduardo Gudynas (2011), buen vivir as a means of organizing society is based on ethical values rather than economic ones; it rejects commodification of humans, land, and nature. It does not recognize the possibility of human beings living outside of the community, so it therefore embraces the idea that the wellbeing of the community leads to the wellbeing of the individual. Individuality is expressed through complementarity with other beings in the group, elsewhere described as “relational autonomism”. Work does not concern competition between one individual and another; individual production is not rewarded, and benefits of work are shared with all. There is no separation of public and private: work is happiness (Villalba 2013). It contains the belief that nature has an importance equal to that of human beings, is essential for the survival of human beings and should therefore be protected. Nature, community, and individuals share the same material and spiritual dimensions (Guardiola and García-Quero 2014). Land cannot be commodified (cf Polanyi [1944] The Great Transformation). According to Eduardo Gudynas (2011), twentieth-century development projects in both the Northern and Southern hemispheres had failed according to their own criteria, so that alternative solutions had

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to be found. Gudynas located the failure of “development” in the negative impact that development projects had on both people and the environment. In this way, therefore, buen vivir was incorporated into the Constitution of Ecuador in 2008 and into the Constitution of Bolivia in 2009 as vivir bien. There were a number of factors that contributed to its emergence at that moment in history: it was given traction by the damage inflicted on countries of Latin America by neoliberal policies of the 1990s, and from the subsequent electoral successes of leftist governments who supported and incorporated indigenous interests that had been neglected through the centuries of race and class oppression following the conquest.

Ecuadorian Sumak Kawsay ˜ and Bolivian Suma Qamana Eduardo Gudynas (2011) explains that the Bolivian Constitution contains the idea of an ethical state pursuing and endorsing particular principles, such as “unity, equality, dignity, freedom, solidarity, reciprocity, social and gender equity, social justice, responsibility”, whereas these are expressed within the Ecuadorian Constitution as a set of rights, including the human right to “health, shelter, education, food” (Article 3: 1). The Ecuadorian version of buen vivir is more legalistic and statist, compatible with their post-neoliberal development regime, which initially was presented as prioritizing adherence to political, social, cultural, and environmental standards above economic growth and market forces. The concept of buen vivir in Ecuador, as it was articulated by Eduardo Gudynas, accommodated certain aspects of modernization, allowing for the building of roads and bridges, as long as they were not for the purpose of exporting raw materials abroad. Food, similarly, was for domestic consumption and not for export (Eduardo Gudynas 2011; Guardiola and García Quero 2014). Technology and infrastructure were not to be rejected, but to be used for the benefit of local people and not for the global market. This version of buen vivir involved legal and tax reforms that included environmental accounting (Eduardo Gudynas 2011). While de-growth was not necessarily an objective, it was considered a possibility and was not necessarily unwelcome under the version of buen vivir elaborated by Joan Martínez Alier et al. (2010). The point made by Alberto Acosta was that the model was not one of accumulation through growth (Kauffman and Martin 2014).

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There were further variants of buen vivir—the concept was designed to be flexible, adapting to local circumstances. Sumak kawsay embraced an austere lifestyle with a focus on quality of life; buen vivir, on the other hand, in several of its manifestations, allowed for elements of growth and was concerned not to reduce the means of survival of the poor. Acosta emphasized that buen vivir was not a return to the caves, “cavernas ”, of the hunter-gatherers (Fernandez et al. 2014: 102)—but a question of seeking equilibrium, with market mechanisms being used to encourage citizens to engage in conservation. There were clearly tensions and inconsistencies in the interpretation and practice of buen vivir, driven by the interests of the various adherents involved. While some indigenous groups in Ecuador had been displaced by extractive industries and had resisted incursions into their territories by oil and mining companies, Acosta himself acknowledged that from the point of view of the government, it would not be possible to close down the oil wells overnight: the government would fall instantly, in his opinion—it would last as long as a dog at mass (“un perro en misa”) (Acosta, interview 2016). The framework for Acosta’s construction of this alternative development paradigm contained elements of dependency theory and an aspiration towards autarky—if not import substitution industrialization (ISI)—which did not find a clear echo in the alternative form of life practised by indigenous hunter-gatherers. Acosta was concerned by Ecuador’s over-dependence on exports of primary products, namely oil, cacao, bananas, sea food, and minerals, and the scarcity of “bienes elaboradas ”—manufactured products—he was looking towards a transition to a “knowledge economy” as a means of reducing dependence on primary products. Former Ecuadorian Minister of Higher Education, Science, Technology and Innovation, René Ramírez Gallegos (Ramírez Gallegos 2010) similarly adopted a more socialist stance, bio-social, republican, and egalitarian, within a state institutional framework. Ramírez Gallegos envisaged three stages on the road to bio-socialism. First to build a post-neoliberal society; second, to establish market-based socialism, as he described it; third to evolve to republican bio-socialism. In a variant of this interpretation, Eduardo Gudynas (2011) maintained that buen vivir was post-socialist as well as post-capitalist, although he stated that his version of buen vivir was taking a “left exit” to reach its goal.

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One of the obstacles for those who wished to pursue the path of buen vivir was that communities had different and competing interests, the management of which fell within the aegis of both local and national government. In the case of a buen vivir mode of conflict transformation being practised in Ecuador, cited by Kauffman and Martin (2014), water shortages had led to water conflicts and the possibility of the imposition of water taxes on small farmers, which was regarded as an intolerable burden. By engaging in imaginative thinking, a different approach was adopted that involved compensation for the indigenous people who had claims over the water sources. Compensation took the form of voluntary contributions that did not involve payment to individuals, and the implementation of alternative agricultural strategies that included less cattle rearing, greater focus on alpaca and guinea pigs, and reforestation. For Acosta (2017), as for Ramírez Gallegos, buen vivir involved collective wellbeing, which meant that the concentration of resources such as land, agriculture, and industry in the hands of the few, as was the case with Ecuador, was incompatible with the buen vivirian utopia that he envisaged. Acosta argued that 5 per cent of landowners owned 52 per cent of the agricultural land in Ecuador; that 1 per cent of landowners controlled 64 per cent of the irrigation water; furthermore, 10 per cent of enterprises controlled 90 per cent of sales. As the income tax base and social investment were low, the government was forced to depend on sales of petroleum to sustain itself, having been able to secure receipt of 70 per cent of oil revenue from 2013.

Rights of Nature and Rights of Indigenous Peoples De Sousa Santos points out that the Western concept of rights is one that is incomprehensible to the indigenous peoples of the Amazon, for whom granting of rights to nature is equivalent to the granting of rights to god, which is a tautology: god cannot have rights conferred upon her/him, as god is the source of rights, being the source of all. So, the concept of the rights of nature is a hybrid of non-Western and Western, although Cano Pechorroman (2018: 1) argues that “…the recognition of rights to nature has been already part of customary law for many indigenous populations around the world for centuries”. The law and practice of the rights of nature have, however, evolved into useful tools for both indigenous peoples and environmental activists,

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having been incorporated into the constitutions of a number of countries around the world in the twenty-first century. Certainly, in the case of Ecuador, the rights of nature being added to the rights of indigenous peoples as part of the new constitution of 2008 was regarded by indigenous peoples as strengthening their position. On a global intergovernmental level, the importance of indigenous communities’ contribution to protecting the environment was taken note of as early as 1949 (López-Rivera 2020), though it was not institutionalized until the publication of the Brundtland report Our Common Future in 1987, which called for greater consultation of indigenous peoples in global environmental governance (United Nations 1987). Through the 1970s and 1980s, indigenous movements had grown and established global networks, such that they established a presence at the United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3–14 June 1992, albeit outside of the main conference proceedings. Finding themselves marginalized from UNCED, indigenous representatives organized their own conference nearby, entitled “World Conference of Indigenous Peoples on Territory, Environment and Development” that took place in May 1992 at Kari’Oca, a village on the outskirts of Rio de Janeiro. The indigenous conference resulted in both the Kari’Oca Declaration (1992) and the Indigenous Peoples Earth Charter (1992), the first global indigenous declarations focusing on the environment (López Rivera 2020). Indigenous activist environmental networks subsequently continued to press for indigenous peoples’ inclusion in global environmental conferences, but they remained sidelined, including from the Paris 2015 United Nations COP 21 Climate Change Conference (Etchart 2017), despite the foundation of the International Indigenous Peoples Forum on Climate Change (IIPFCC), in 2008 (Doolittle 2010; International Indigenous Peoples Forum on Climate Change (IIPFCC) 2020). At a local level, indigenous communities had more traction, and it was at the World People’s Conference on Climate Change and the Rights of Mother Earth, held in the Bolivian city of Cochabamba 20– 22 April 2010, attended by 55,000 people from around the world (Hope 2017), that the concept of man’s living in harmony with nature became central to environmental debates. The outcome of the conference, the Universal Declaration of the Rights of Mother Earth, inspired by indigenous cosmologies, and signed on 22 April 2010, became influential in the wording of subsequent United Nations Declarations on Harmony with

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Nature—the texts of which acknowledged a debt to the Cochabamba conference; the UN Declarations were less radical and transformative in their objectives than the Cochabamba Declaration, however—most significantly in the UN Declarations’ assertions that Western science had a role to play in achieving global environmental objectives, which was not a feature of the Cochabamba Declaration.

The United Nations and Harmony with Nature In 2009, the United Nations General Assembly had proclaimed 22 April as International Mother Earth Day, and in the same year, the General Assembly adopted the first of its resolutions on Harmony with Nature. The Harmony with Nature resolutions, the twelfth having been passed in December 2020 (A/RES/75/220), though less overtly anticapitalist than the Universal Declaration of the Rights of Mother Earth, did express a view that an alternative non-anthropocentric development paradigm was required in view of consumption and production patterns being unsustainable in the long term in meeting the needs of the Earth’s growing human population. With regard to indigenous peoples, the UN Declaration of Harmony with Nature of 2011 expressly recognized that “many ancient civilizations and indigenous cultures have a rich history of understanding the symbiotic connection between human beings and nature that fosters a mutually beneficial relationship” (A/RES/66/204: 2). It is notable that the outcome document of the 2012 Earth Summit, the United Nations Conference on Sustainable Development (A/RES/66/288), entitled “The Future We Want” contained the following statement: “We recognize that planet Earth and its ecosystems are our home and that ‘Mother Earth’ is a common expression in a number of countries and regions, and we note that some countries recognize the rights of nature in the context of the promotion of sustainable development” (United Nations Sustainable Development Knowledge Platform, UNDESA 2012: para 39). Parallel with the efforts of environmental governmental, intergovernmental, and non-governmental organizations to protect first biodiversity and later the world’s ecosystems, including the climate, indigenous organizations in the same period continued to be engaged in global networked movements to protect and secure indigenous rights that began to be institutionalized on a global level in the 1970s (Anaya 2009). Their efforts bore fruit in the form of ILO Convention 169 of 1989 and the United

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Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 (see Chapter 1). In terms of indigenous communities’ relationship to conservation initiatives, major players in the conservation community in the world’s industrialized countries had tended to view indigenous peoples as a hindrance to environmental protection, a stance that endured well into the twenty-first century. This position was not substantiated by evidence, in that the remaining forest and wild areas of the world where indigenous peoples lived were precisely the ones which contained the highest degree of biodiversity. Fa et al. (2020: 1), for example, determined that 36 per cent of the world’s Intact Forest Landscapes (IFLs) were within indigenous peoples’ lands “making these areas crucial to the mitigation action needed to avoid catastrophic climate change”. Nevertheless, through the second half of the twentieth century, indigenous peoples were presented not only as being detrimental to the environment, but as being in the way of development also, particularly if they opposed development projects on their territories (Blaser et al. 2004). From whichever perspective, being viewed either as an obstacle to conservation, or as an obstacle to “progress”, indigenous communities risked forced displacement from their homes. Hence, it has been argued that a series of environmental projects, sponsored by Northern NGOs and Southern governments, working in collaboration with governments of the Global North, resulted in the displacement, expulsion, and, in effect, ethnic cleansing,1 of a number of indigenous communities (Büscher and Fletcher 2016). By the 2000s, however, the environmental tide had turned in favour of forest peoples who began to be courted as allies by conservation agencies: the latter found justification for interventions that were considered violations of state sovereignty on the grounds that they had been invited in by threatened individuals and communities who wished to defend their territories against extractive projects pursued by their own central governments. For their part, indigenous communities seized the opportunity to garner support for their continued existence from conservation agencies, both within state apparatuses and outside, and within intergovernmental agencies, foundations, and philanthropic entities, working together with them in person or communicating via networks. Individuals and groups within the networks of institutions could pressure state representatives within intergovernmental organizations as well as influence governments directly (Sikkink 2011). This is a point made by Brysk in 1996 that

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indigenous communities were able to turn “weakness into strength”, using international actors and funding to exert pressure on their own hitherto unresponsive governments to institute domestic reform (1996: 38). Tying indigenous land rights claims to environmental and climate change campaigns continued as an effective strategy in the 2000s (see Chapter 4). Indigenous communities often rejected UN-sponsored carbon trading schemes and the UN-sponsored Reducing Emissions from Deforestation and Forest Degradation (REDD + ) programmes, which they viewed as detrimental to their interests (Reyes García et al. 2018), but they were able to exert some leverage by negotiating their way into REDD + decision-making procedures (Wallbott 2014). Meanwhile, indigenous leaders endorsed the call to keep fossil fuels in the ground to protect their own water and land resources from being contaminated; to maintain territorial sovereignty and integrity; to prevent the construction of roads; to prevent the poaching of wildlife (Nuwer 2018); and to protect wildlife habitat (Etchart and Cerda 2020). Power differentials were key: coalitions of indigenous confederations within and across borders were essential, as indigenous communities were small, and had limited resources to challenge armed state forces who had the monopoly of violence within the territory of the state. Indigenous communities had less political power than urban or even rural trade unions with which to challenge the state or private companies. Fiona Watson of Survival International made the point that REDD + was yet another scheme administered and controlled from above (Watson, personal communication 2020), requiring monitoring and evaluation that became a form of control, effectively disempowering and disciplining indigenous communities (see Chapter 4).

Rights of Nature in International and National Law It was Christopher Stone with his article “Should Trees have Standing: towards legal right for natural objects” (1972) who initiated the process of incorporating the rights of nature into human law. His argument was endorsed by Justice William O. Douglas’s dissenting judgement in Sierra Club v Morton (1972), in which the Justice argued that trees should be granted personhood and have the ability to sue for their own protection (Gleeson-White 2018).

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Another of the early examples of a judgment that effectively constituted a ruling in favour of the rights of nature is found in Karnataka state, north of Kerala, in the South West of India. A number of adivasis (indigenous people) were evicted from the Nagar Hole National Park in the 1990s (Ravi Raman 2004: 119), when they were depicted as trespassers, while the state government continued to allow timber extraction to take place. The state had negotiated lease agreements with the Taj Group of Hotels for eco-development projects with the support of the World Bank. The adivasis mobilized against the government and challenged it in the courts: the High Court ruled in 1997 that the assignment of forest land to the Taj Group was in violation of the laws of conservation and wildlife (Dowie 2009). The most well-known example of a successful claim to a healthy environment that was decided at a local rather than nation state level was that of a case brought by the Community Environmental Legal Defense Fund (CELDF) in the USA. In the borough of Tamaqua in Pennsylvania, in 2006, judges ruled that the dumping of toxic sewage was a violation of the rights of nature (Community Environmental Legal Defense Fund (CELDF) 2018). A number of countries besides Bolivia and Ecuador, including Bangladesh, Brazil, Colombia, Finland, Greece, India, Mexico, New Zealand, Portugal, Spain, and Uganda, have followed the example set by Tamaqua Borough in the USA, in passing laws at federal and local level giving nature legal rights; by 2019, there were numerous examples of local judges’ ruling in favour of nature and against human actors or entities who had engaged in activities that had damaged the environment (Community Environmental Legal Defense Fund (CELDF) 2018). Many of these lawsuits were brought by indigenous peoples, with Australia, New Zealand, Bangladesh, and India at the forefront of rights of nature legislation. In the cases of Australia and New Zealand, the involvement of aboriginal peoples has been an important element in the reclamation of land seized under European empires and by colonizers, the restitution and rehabilitation of nature constituting one element of the decolonization process. Gleeson-White (2018) notes that indigenous and rights of nature claims use Western legal constructs, such as personhood and rights-based approaches, in the prosecution of legal cases in Western juridical systems. Samuel (2019) echoes Christopher Stone’s point that private entities such as companies have enjoyed legal personhood status under Western law

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since the 1880s—therefore to confer legal personhood on a river follows the same logic. This supports the argument made by English Supreme Court Justice Carnwath (Carnwath 2019) referring to the human right to a healthy environment as being a Western norm that can be applied to rights of nature cases. The invocation of individuals’ rights, within Western human rights discourse, provides a tool with which judges can make decisions that do not involve discussions over whether non-human entities have status or value equal to humans. Conversely, indigenous communities are able to invoke traditional indigenous culture, values, and ancestral communal occupation of land— without necessarily the benefit of land titles—as grounds for territorial claims and stewardship of wild areas. The legal case of the 145-kmlong Whanganui iwi River (Te Awa Tupua) on the North Island of New Zealand (Aotearoa) provides an example of legal pluralism under which different ontologies in litigation have been recognized (Charpleix 2018), and where there was an understanding that in M¯aori culture land was not a tradable or disposable item (Cheater 2018). The Whanganui iwi M¯aori first petitioned Parliament in 1840 for compensation for damage to the Te Awa Tupua River and to their livelihoods, and continued to seek justice in the twentieth century. The Te Awa Tupua River was awarded legal personhood on 20 March 2017 under the Te Awa Tupua (Whanganui River Claims Settlement) Act. The river was declared an indivisible and living whole from the mountains to the sea, holding “the rights, powers, duties and liabilities of a legal person”. This followed the Te Urewera forest having been awarded legal rights in 2014 (New Zealand Parliament 2017), as was Mount Taranaki, also on New Zealand’s North Island, in 2017 (Gleeson-White 2018). It can be seen, therefore, that with regard to New Zealand/Aotearoa, as is the case with other situations of indigenous communities’ relationship to the land, human beings cannot be owners of the environment, but are caretakers, stewards—“kaitiakitanga” (Cyrus Vance Center 2020: 7). In other words, under the rights of nature laws that have emerged from, or evolved separately from, indigenous worldviews, human beings have a legal duty to uphold the rights and interests of nature as stewards of the environment. With regard to the Te Awa Tupua case, it was suggested that the river was no longer the property of New Zealand (De Gouyon Matignon 2019), opening up the possibility of the river having been through a process of decolonization.

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Following the example of New Zealand/Aotearoa, in Australia the government passed the Yarra River Protection Act (Wilip-gin Birrarung murron) in 2017, which recognized the river’s intrinsic value and well as its value to humans, and its place within a living integrated ecosystem. Although it was not conferred personhood, the traditional occupiers of the land, the Wurundjeri people, were given advisory status in management of the river (O’Bryan 2018; Samuel 2019). In 2019, Australian parliamentarian Diane Evers introduced a Bill for the recognition of the rights of First Nations Peoples in Australia to speak for and defend their ancestral lands, as well as the Rights of Nature (Community Environmental Legal Defense Fund [CELDF] 2018); Gleeson-White 2018). Again, it is noteworthy that one week after the March 2017 Whanganui iwi ruling in New Zealand, the Uttarakhand High Court in India recognized the River Ganges and the River Yamuna as living entities (Charpleix 2018), though, in July 2017, the ruling was stayed by the Supreme Court (Samuel 2019). In Bangladesh, in July 2019, all the rivers were awarded rights in a ruling by the Bangladeshi Supreme Court, under which polluters may be prosecuted by the National River Conservation Commission (Samuel 2019). But it is in the Americas, North and South, where there has been the greatest progress in bringing the rights of nature into local state and indigenous legislation. In the case of first nations of North America, the Ho-Chunk nation was the first to incorporate the rights of nature into their constitution in 2006, followed by other first nation peoples. In terms of non-indigenous government in the USA, the Home Rule Municipality of Lafayette, Colorado, enacted the first Climate Bill of Rights, in 2017, recognizing the rights of humans and nature to a healthy climate, and banning fossil fuel extraction as a violation of those rights (Community Environmental Legal Defense Fund (CELDF) 2018). In South America, Ecuador and Bolivia were followed by Colombia, in efforts to institutionalize Rights of Nature into national legislation. In 2011, the first Rights of Nature court decision was issued in the Vilcabamba River case in Ecuador, upholding the Rights of Nature constitutional provisions. In 2017, Colombia granted rights to the Atrato River, which flows into the Caribbean near the border with Panama (Cano Pechorroman 2018). Colombia’s Constitutional Court ruled that

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the Atrato River possessed rights to “protection, conservation, maintenance, and restoration”, establishing joint guardianship for the river shared between indigenous communities and the national government (Community Environmental Legal Defense Fund (CELDF) 2017: 1). In April 2018, the Colombian Supreme Court issued an opinion in response to a case brought by a group of young people against the government, declaring that “for the sake of protecting this vital ecosystem for the future of the planet”, it would “recognize the Colombian Amazon as an entity, subject of rights, and beneficiary of the protection, conservation, maintenance and restoration” that national and local governments are obligated to provide under Colombia’s Constitution (Bryner 2018: 1). Since 2006, judiciaries in the Americas have made rulings on the grounds of rights of nature, with Ecuador as the country with the highest number of successful prosecutions. Argentina, Belize, Brazil, first nations of Canada, Guatemala, Mexico, as well as first nations of the USA, have introduced legislation, with proposed legislation pending in other Latin American countries (United Nations Harmony with Nature 2020). On a global level, environmentally concerned judges from across the continents have been collaborating in the construction and implementation of environmental law from 2002, when they held a judges’ symposium in Johannesburg; this was followed by a World Congress on Justice, Governance and Law for Environmental Sustainability in 2012 in Rio de Janeiro—parallel to the Rio + 20 conference—attended by 150 judges, prosecutors, public auditors, and enforcement agencies (Carnwath 2012). Their work behind the scenes in advocating for the harmonization of laws, and particularly for the training of judges in environmental law, for which they created programmes and handbooks, was largely overlooked. The environmental judges argued that it was at the ground level, at the level of decisions by local judges in cases of environmental litigation, that meaningful action to protect the environment had taken place. This has been borne out in practice (Carnwath 2019). A watershed moment in the rights of nature under regional law occurred in 2018 with a judgement by the Inter-American Court of Human Rights (IACtHR) that was made on the basis of Article 11 of the 1989 San Salvador Protocol addition to the 1969 American Convention on Human Rights. The Protocol contains the provision that “Everyone shall have the right to live in a healthy environment and to have access to basic public services” (item 1), and that “2. The States Parties shall

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promote the protection, preservation, and improvement of the environment” (Carnwath 2019). Feria-Tinta and Milnes (2018) have argued that this was the first time that an international court had ruled that a state had a responsibility to the environment. The significance of the protocol was that it had implications for states’ responsibilities to the environment across state borders (Carnwath 2019).

The Escazú Agreement of Latin American and Caribbean States In terms of regional environmental law and governance, a major initiative was finalized on 27 September 2018 with the signing of the “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean”—the Escazú Agreement—which “enacts binding provisions for States to equip their citizens with information, judicial corrections and spaces for public participation in environmental matters concerning them” (Economic Commission for Latin America and the Caribbean (CEPAL/ECLAC) 2020). The treaty, which was adopted on 4 March 2018 by 24 countries in Escazú, Costa Rica, gives environmental rights the same status as human rights in the countries that are signatories to the agreement. It was the first treaty to have emerged from the Rio + 20 Conference and the first time that a legal agreement included an article on environmental human rights defenders (Article 9). The Treaty was initially signed by Antigua and Barbuda, Argentina, Brazil, Costa Rica, Ecuador, Guatemala, Guyana, Mexico, Panama, Peru, St Lucia, Uruguay, Dominican Republic, Haiti and Paraguay (CEPAL/ECLAC 2020). While it was presented as a landmark for the region and the world by its promoters within and outside the UN, INGOs who contributed to the agreement and participated in the signing ceremony, warned that not only did the signatory countries have yet to ratify the agreement within their own legislatures, but that the value would be in the implementation of the agreement (Amnesty International 2018). In order to come into force, the Escazú agreement required ratification by at least eleven states. By the end of 2020, it had been ratified by Antigua and Barbuda, Bolivia, Ecuador, Guyana, Nicaragua, Panama, St Kitts and Nevis, St Vincent and the Grenadines, St Lucia and Uruguay. With the ratification of México and Argentina and the submission of the ratification document to the UN on 22 January 2021, the required

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number had been reached. The Escazú agreement entered into force on 22 April 2021, International Mother Earth Day (Villareal Villamar 2021). At the global rather than the regional level, however, progress was slower in terms of binding environmental legislation. Efforts continued at the UN to bring more environmental protection legislation into the international arena, spearheaded by President Macron of France. The United Nations General Assembly adopted the resolution “Towards a Global Pact for the Environment”, Resolution (https://www.un.org/en/ga/search/ view_doc.asp?symbol=A/RES/72/277) on 10 May 2018. The Global Pact for the Environment involved both rights and duties for individuals and collectivities. Article 1 of the Pact was to consist of the right to an ecologically sound environment: “Every person has the right to live in an ecologically sound environment adequate for their health, wellbeing, dignity, culture and fulfilment”; Article 2 concerned the duty to take care of the environment: “Every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem” (Carnwath 2019). In 2021, the proposed Global Pact for the Environment was being discussed among UN member states, based upon UN General Assembly Resolution 73/33 of 30 August 2019, endorsing the recommendations of the working group of Resolution 72/277 (United Nations Environment Programme 2021). The consultations involved a network of 100 experts from 40 countries, coordinated by the Club des juristes. Global Pact of the Environment (virtual) consultation debates took place on Zoom from 21 to 23 July 2020. These debates were the initiation of a process towards a political declaration on the environment planned for 2022, beginning with a report that listed the names of country governments which were in favour of international environmental law, and which ones were against it. The most important of the naysayers among the latter was the USA, though US scholars were among the experts engaged in the consultations. The US government’s attitude towards the environmental Pact changed under the administration of US President Biden, but progress was slow in 2021. The Chinese government and a Chinese Professor participated in the discussions, as well as a range of representatives of developing country governments including that of Brazil, but Russian and Eastern European participation appeared to be minimal. There was mention of the problem of “perpetual postponed

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aspiration” (as it was characterized by Algerian and French representatives) and an expressed desire to move towards implementation. Among various stakeholders, the civil society group suggested an International Court of Justice for the Environment. The significance of the Pact was that it was to apply to environmental politics as a whole and not to a particular sector, such as climate, biodiversity, or pollution (Global Pact of the Environment 2020). In view of the immense challenge of achieving consensus among nation state governments, and of securing the support from representatives of the most powerful global economies, in deed as well as in word, it was left in the meantime to individual governments, regional intergovernmental organizations, civil society, and the private sector, to fill the gap in taking action on pressing environmental issues, with hopes pinned on the planned COP 26 in Glasgow, Scotland, in November 2021. In 2021, indigenous representatives and organizations, within and outside the United Nations Permanent Forum on Indigenous Issues (UNPFII), and other UN agencies, continued to press for change at the global level, through virtual meetings and social media postings (Ushigua 2021). Indigenous individuals and communities remained in the line of fire, risking their lives to protect their territories, cultures, and the rainforests, with scant support from some of their own governments, which have resisted international efforts to create binding instruments to protect the environment in the face of economic imperatives. The following chapter provides an analysis of case studies from the Amazon basin to examine the dynamics of power behind environmental and indigenous rights campaigns, and their impact on public policymaking.

Note 1. The phrase “ethnic cleansing” has come to denote coercive practices used to remove the civilian population (cf. https://www.un.org/en/genocidep revention/ethnic-cleansing.shtml).

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CHAPTER 4

Indigenous Peoples’ Rights and Global Governance of the Environment in the Amazon Basin: Case Study Ecuador

The Context: Indigenous Peoples’ Engagement with International Global Environmental Initiatives Following the adoption in 1997 of the Kyoto Protocol to reduce global greenhouse gas emissions, indigenous peoples’ representatives had begun to push for engagement in climate change agreements, but they were side-lined from decision-making (Etchart 2017a). Obstacles to their involvement at the Conference of the Parties COP6 in The Hague in 2000 continued through to COP7 in Marrakesh in 2001. It was the creation of the United Nations Permanent Forum on Indigenous Issues (UNPFII) as an advisory body to the United Nations Economic and Social Council (ECOSOC) in July 2000 that signalled a change in indigenous peoples’ status and influence at the institutional level. The remit of the UNPFII was to discuss indigenous issues concerning economic and social development, human rights, the environment, culture, education, and health (Sawyer and Gómez 2008). Although the Permanent Forum did not have the authority to investigate complaints of rights violations nor the power to compel countries to act in accordance with international conventions, it did provide a space

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at its annual conference within which indigenous peoples’ representatives from all continents were able to present their cases to UN agencies and to their government representatives, as well as to engage with their counterparts in exchanges of information and to meet with NGOs with consultative status at the UN (see Chapter 2). The Permanent Forum has a mandate to provide expert advice and recommendations on indigenous issues to ECOSOC among other agencies of the United Nations, through the Council; to raise awareness and promote the integration and coordination of activities related to indigenous issues within the UN system; and to prepare and disseminate information on indigenous issues (United Nations Permanent Forum on Indigenous Issues [UNPFII] 2020). In terms of indigenous participation in environmental protection, one of the sources of their frustration has been that the grounds for their involvement were the assumption that indigenous communities were affected by climate change, for example, giving them the status of victims, rather than their being viewed as potential actors in the quest to combat climate change (Etchart 2017a). By 2004, their involvement was given support by the United Nations Framework Convention on Climate Change (UNFCCC)—the international environmental treaty that was initially negotiated at the Earth Summit in Rio de Janeiro from 3 to 14 June 1992, and which entered into force on 21 March 1994 (UNFCCC 2020). Discussions within the UNFCCC to create a Local Communities and Indigenous Peoples Platform (LCIPP) within the UNFCCC began in 2015, with the first workshop held in 2018 (UNFCCC 2020).

International Instruments to Protect the Rights of Indigenous Peoples Including Free, Prior, and Informed Consent The history of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007, dates back to 1982 with the creation of the Working Group on Indigenous Populations (Anaya 2009: 11) that coincided with the World Bank’s publication of the Operational Manual on Tribal People in BankFinanced Projects Statement (OMS 2.34). In 1991, this was replaced by the World Bank’s new Operational Directive on Indigenous Peoples (OD 4.20), which was updated in 2005 to become the Operational

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Policy/Bank Policy on Indigenous Peoples (World Bank 2005: OP/BP 4.10), the goal of which was to ensure that “the development process fully respects the dignity, human rights, economies, and cultures of Indigenous Peoples” (World Bank 2005: OP/BP 4.10). The Bank recognized “that the identities and cultures of Indigenous Peoples are inextricably linked to the lands on which they live and the natural resources on which they depend”, and that development projects “expose Indigenous Peoples to different types of risks and levels of impacts…including loss of identity, culture, and customary livelihoods, as well as exposure to disease” (World Bank 2005: OP/BP 4.10). Furthermore, because “Indigenous Peoples are frequently among the most marginalized and vulnerable segments of [a national] population”, they are “often limit[ed in] their capacity to defend their interests in and rights to lands, territories, and other productive resources” (World Bank 2005: OP/BP 4.10 para 2). Having adopted this position, the World Bank took it upon itself to safeguard indigenous peoples’ interests by making loans contingent on borrowers obtaining broad community support based on “free prior, and informed consultation” (World Bank 2005: OP/BP 4.10 para 11), and recognizing “the customary rights” of indigenous peoples and “the cultural and spiritual values” they attribute to their lands and resources” (ibid.: para 16). UNDRIP Article 19, obliges states to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent before adopting and implementing legislative or administrative measures that may affect them” (Anaya 2009: 327). Article 32. 2 reads as follows: “States shall consult and cooperate in good faith with the peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources particularly in connection with the development, utilization or exploitation of mineral, water or other resources” (Anaya 2009: 330). ILO Convention 169 of 1989, the UNDRIP (2007), and the later American Declaration on Indigenous Peoples created and approved by the Organization of American States (OAS) in 2016, all acknowledge the need for indigenous peoples to participate in the political, social, and economic life of their country (Organization of American States [OAS] 2016).

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Moreover, UNDRIP Article 4 affirms that: “…in exercising their right to self-determination, [indigenous peoples] have the right to autonomy and self-government in matters relating to their internal and local affairs” (Anaya 2009: 323). At the same time, Article 46.1 states that “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”. Although it was asserted that the affirmation of self-determination in the Declaration (Article 3) was deemed compatible with the principle of territorial integrity and political unity of sovereign and independent states, it is precisely the interpretation of the concept of self-determination that has been the source of conflict in the Ecuadorian Amazon region. The two Declarations and the Convention urge governments to recognize indigenous peoples’ right to participate in decision-making in matters that may have a bearing on their welfare and security. In order to respect indigenous peoples’ right to be consulted on issues affecting them, the UNDRIP urges governments to assign to indigenous representatives the right to participate in discussions and influence relevant legislative or administrative measures. Both the ILO Convention 169 of 1989 and the UNDRIP urge states to obtain Free, Prior, and Informed Consent (FPIC) from indigenous peoples prior to the approval of any project to extract and develop mineral resources from or on indigenous lands (Anaya 2009; Sawyer and Gómez 2012). The 2016 American Declaration on the Rights of Indigenous Peoples in turn recognizes the right of indigenous peoples to self-determination (Article III)… to their ancestral territories, as well as to consultation and free, prior and informed consent (Article XXIII.2), “prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources” (Article XXIX.4) and includes the right not to be subject to assimilation (Article X, 1, 2) (OAS 2016; also UNDRIP 2007, Article 8.1). The American Declaration was the first Declaration to recognize the rights of indigenous peoples in voluntary isolation. Article XXVI states that: “1. Indigenous peoples in voluntary isolation or initial contact have the right to remain in that condition and to live freely and in accordance with their cultures”, and “2. The states shall adopt adequate policies and

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measures with the knowledge and participation of indigenous peoples and organizations to recognize, respect, and protect the lands, territories, environment, and cultures of these peoples as well as their life, and individual and collective integrity” (Organization of American States 2016). This allows for the right not to develop, which is a change from previous policies based on the assumption that indigenous people would wish to be modernized. The Western liberal or neoliberal model has tended to follow the concept of the five stages of development as envisaged by W. W. Rostow in 1960, incorporating a belief in human progress from traditional society towards an age of high mass consumption. This teleological perspective permeated development theory and practice through to the UN Declaration on the Right to Development of 1986. The Declaration, adopted by the UN General Assembly on 4 December of that year, declares that everyone is “entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized” (Article 1.1). The phrasing of the Declaration does, however, avoid suggestions of coercion and leaves space for choice on the part of those living in voluntary isolation to remain isolated. It is notable that Article 2.2 states clearly that “The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources”. Being a Declaration rather than a Convention in this case, however, deprives it of legal enforceability. With regard to indigenous communities who have chosen to live in isolation, the apposite element of the American Declaration on the Rights of Indigenous Peoples, Article XXVI is that it places the onus of responsibility for the care and protection of those in isolation on the state, which has an obligation, in effect, to embrace the concept of an absence of Enlightenment thinking as acceptable, and an obligation to oversee, but not to govern. Indigenous people have therefore been awarded the right under international law not to be governed (Scott 2009), that is, not to be assimilated into modernity. The UNDRIP also acknowledges “that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character…” (UNDRIP 2007: 3

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[Annex]). This statement carries with it the suggestion that the international society of states in the form of the United Nations, for example, or the Organization of American States, might, if it were deemed necessary, involve themselves in what might otherwise be the concern of a sovereign state with regard to treatment of its own citizens. While there is no explicit reference to the rights of nature in the three international law instruments, there is one clause that has the potential to contribute to the protection of the environment: “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination” (UNDRIP Article 29. 1.). Article 29.1, however, does also allow, with the use of the phrase “productive capacity”, for the possibility of agricultural activity on the land, hunting and gathering, planting, harvesting, and animal husbandry, although the implication is that these will be conducted in a manner that will protect the environment. In terms of the institutionalization of indigenous peoples’ rights in the international arena, the adoption of the UNDRIP by the United Nations General Assembly in 2007 was a defining moment in the history of global human rights; the outcome of 50 years of deliberations, in which Professor James Anaya of the Universities of Arizona and Colorado was a key figure, serving as United Nations Special Rapporteur on the Rights of Indigenous Peoples from 2008 to 2014. The UNDRIP encompasses rights to self-determination, equality, property, culture, and economic wellbeing, the right to own and control lands, territories and resources, and the right to Free, Prior and Informed Consent (Anaya 2009). As previously stated, the question of the right to “self-determination” has been a point of contention. Article 3 of the UNDRIP, “Indigenous Peoples have the right to self-determination”, echoes Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) that were adopted by the UN in 1966 and came into force in 1976, which assert that “All peoples have the right to self-determination”. According to Anaya, however, UNDRIP Article 3 does not mean that indigenous peoples have the right to independence or permanent sovereignty over resources. On the contrary, Anaya argues that the UNDRIP negotiations were conducted on the basis of a “concept of self-government within the framework of

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the nation-state” (Anaya 2009: 70–71). It is within those parameters, therefore that, so far, UNDRIP provides for the restoration of rights to culture, traditional knowledge, and the environment (Anaya 2009: 62). As demonstrated in this chapter, it is the provision for Free, Prior and Informed Consent under state and international law that has been fundamental in struggles over rights to resources for extraction in indigenous territories in Latin America, including in the Amazon basin. Central to indigenous rights over resources in forest areas in which they live are government programmes associated with United Nations agencies, such as the Reducing Emissions from Deforestation and Forest Degradation (REDD+) initiative, which is addressed in the following section.

Reducing Emissions from Deforestation and Forest Degradation (REDD+) Indigenous peoples’ representatives participated in the 2007 COP13 Bali conference at which the Reducing Emissions from Deforestation and Forest Degradation (REDD) initiative was negotiated prior to being launched in 2008 (Wallbott 2014). REDD was engineered through a collaboration of the Food and Agriculture Organization of the United Nations (FAO), the United Nations Development Programme (UNDP), and the United Nations Environment Programme (UNEP). The aim of REDD was to protect the forests of the world, but frictions with forest peoples emerged early on as a result of top-down approaches and conflicting agendas (Cabello and Gilbertson 2012). RED (Reduce Emissions from Deforestation) had been established in 2005, to support Southern countries in reducing deforestation, with the extra D for “degradation” added later. It became REDD+ in 2007 when carbon offsets were introduced into the equation as a result of pressure from corporate interests, thereby, in the view of some commentators, transforming conservation of forests for carbon storage into a commercial project (Cabello and Gilbertson 2012). In Poznan in 2008, at the 14th Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC), indigenous representatives demonstrating outside the conference venue had chanted “No Rights, No REDD!!” (Wallbott 2014: 1), in protest at the deletion of reference to indigenous peoples’ rights from the text of the programme document. The alteration was made despite the initiative having been aimed at promoting “informed and meaningful

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involvement of all stakeholders, including indigenous peoples and other forest-dependent communities, in national and international REDD+ implementation” (www.unred.net), implying participation of communities at a local as well as international level. At the 2009 United Nations Climate Change conference in Copenhagen (COP 15), however, indigenous peoples’ rights within the REDD+ programme were formally recognized in that where there would be payments to states, there had to be measuring, reporting and verification systems within National Forest Monitoring Systems that involved full and effective engagement of indigenous peoples and local communities (UNFCCC 2009: 11). Subsequently, however, many indigenous communities remained wary of the implications of REDD+ with regard to their own rights over use of resources on their territories (Seymour 2014; Wallbott 2014). In terms of ongoing indigenous peoples’ representatives’ influence on global governance of the environment, the introduction of REDD+ could be viewed as an opportunity for engagement. Their successful mobilization and construction of solidarity, as well as skill in lobbying and negotiating with international representatives and institutions, on the basis of upholding their human rights, enabled them to exert an influence over decision-making as well as increase their international profile (Wallbott 2014). Partly as a consequence of effective indigenous mobilization, the Cancún Agreement of COP16 in 2010, acknowledged IPs and local communities and their rights and took note of UNDRIP (Wallbott 2014: 2). At the same time, at the local level, in terms of participation, REDD+ remained as an initiative created at the highest levels of global governance and often imposed on those on the ground, thereby limiting their agency, in a context of introducing market-based solutions to environmental protection (Wallbott 2014). REDD+ has been described by some analysts as a “colonial intervention to enclose lands” (Cabello and Gilbertson 2012: 162). Certainly, in terms of protecting old forests and their inhabitants, the involvement of the World Bank and the private sector led to the gradual association of REDD+ with carbon offsetting schemes from Bali 2007 through to the Copenhagen COP15 and beyond. The creation of the Forest Carbon Partnership Facility (FCPF) in 2008, which claimed US$1.3 billion in contributions and commitments in 2020 (FCPF 2021),

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and the Green Climate Fund (GCF) in 2011, designed to enable developing countries to contribute to environmental protection through the UNFCCC—which included administration of REDD+ programmes—led to negative unintended consequences in terms of environment protection. Under such projects, large-scale monoculture plantations were included in carbon offsetting—which had not been the case in the initial stages of the European Union Emissions Trading Scheme, which had been launched in 2005. Under these later REDD+ schemes, primary forests could be replaced with plantations and still qualify as offsets, even though monoculture plantations were often damaging to ecosystems. This fundamental flaw was recognized by the Bolivian government, for example, which opposed REDD+ from the beginning on the grounds that the project violated the rights of nature under the constitution. It was the only country to do so and was marginalized from the discussions as a result (Cabello and Gilbertson 2012). Cabello and Gilbertson (2012) argue that once corporate lobbies, multilateral banks, and conservationist NGOs had entered the REDD+ fray, these organizations were able to use their political leverage to influence decision-making in the global governance of forest conservation in their own interest, as they were able to determine the rules of the game (Cabello and Gilbertson 2012: 168). Moreover, the array of different carbon offsetting institutions, the number of players and methodologies for measuring and monitoring emissions and carbon stocks, creating a “slew of unorchestrated, multi-level, multipurpose and multi-actor projects and initiatives” (Corbera and Schroeder 2011: 91), as well as turf wars among institutions (Cabello and Gilbertson 2012), indicate a possible case of “multiple accountability disorder” which appears to have distracted attention from the actual question of loss of old forests, which was at the heart of the REDD+ initiative. The outcome, in the view of a number of critics of REDD+, was in some cases disempowerment of the indigenous groups involved, which was evidenced by the experiences related by indigenous individuals in Ecuador interviewed for the present work. Impressions varied, however: there were both positive and negative assessments by those affected, depending on community and region, indicating that there were lessons to be learned and examples of good practice to follow. Analyses of the application of REDD+ in other Latin American countries, such as Costa Rica (Tafoya et al. 2020), have demonstrated the

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importance of ceding control to local people and giving them managerial responsibilities over forests to ensure successful outcomes. With or without control by local people, however, the practice of making payments to indigenous individuals and communities, for ecosystem services, itself carried a risk of conflict over the distribution of resources, and over the legitimacy of indigenous community leaders who accepted payment on behalf of their members (Felse 2018). In the case of the Sápara people of the Ecuadorian Amazon, the Socio Bosque scheme, which involved payments for protection of the forest, also allowed for oil exploration to take place, which was resisted by some members of the community, who felt that they had been betrayed in the course of the organizational process. Once the Sápara had signed the Socio Bosque agreement, there was no going back. Sápara leader Gloria Ushigua, who opposed the oil drilling, commented: I think that the Socio Bosque program came to our territory four years ago. They told us that they were going to give us money for what we have always done—care for and conserve the rainforest—up to there all good. But the problem is that we began to see that this program goes hand in hand with the oil [extraction] so some people started to say ‘no’ to Socio Bosque because when we say that we don’t want oil [exploitation], they are going to say that they already bought the territory and how are we going to give the money back? From the start, Socio Bosque divided the communities with money. Since there is not a whole lot of information about it and folks don’t have money, some people said ‘Ok, we want to participate in Socio Bosque.’ The problem is that our territory belongs to all of us, and members of other Nationalities have intervened in these decisions. There are already problems of corruption, and a lack of delivery of the money to the peoples and this all has been denounced. (Gloria Ushigua, Sápara Nation, 11 March 2013 quoted in Ramos 2016: 22)

This example of the manner in which Socio Bosque has been implemented provides evidence of payment for ecosystem services (PES) in some instances having been used as a means to legitimize the activities of extractive industries under the cover of mechanisms created to protect the environment, as well as causing social upheaval in communities unaccustomed to a cash economy, as identified by Felse (2018).

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The History of REDD+ and Socio Bosque in Ecuador Ecuador had begun its engagement with REDD+ in 2010 in the context of the Constitution of 2008 that institutionalized the rights of nature as well as the rights of indigenous peoples, with the country being signatory to the UNDRIP of 2007, to ILO Convention 169 of 1989 and to the Convention on Biological Diversity (CBD) of 1992 (Guedez and Guay 2018) (see Chapter 6). Ecuador was regarded as an appropriate country in which to pilot REDD+ programmes, incorporating national and local actors with a focus on human rights. Government documents were specific in linking indigenous rights, climate change mitigation and the conservation of biodiversity. At the same time as the World Bank and UN agencies were developing the REDD+ programme, the Ecuadorian government had been designing and implementing its own system for payment for ecosystem services under the Socio Bosque programme, launched in 2008, thereby “positioning itself as a pioneer in REDD+ leadership”, according to Pierre-Yves Guedez, Senior Regional REDD+ Technical Advisor of the United Nations Development Programme’s Climate and Forests Team (Guedez and Guay 2018: 1). Guedez claimed that Ecuador was the second country in the world after Brazil, to complete all the requirements to receive results-based REDD+ payments (ibid., 2018). With the support of international donors, such as Germany’s GIZ development agency, which in 2020 had a budget of e3.1 billion (GIZ 2020), Ecuador’s Socio Bosque Program set out a 20-year agreement with indigenous and local people. For example, inhabitants of the Cotocachi Cayapas Ecological Reserve were awarded annual compensation of US$5 per acre compared with the US$2.5 per acre offered by loggers in the area (Felse 2018). By 2012, Ecuador’s Ministry of the Environment had made 1,474 agreements with individuals and 92 with communities, covering a total area of 881,933 hectares and applying to 90,2556 beneficiaries, who were, moreover, given permission to continue noncommercial hunting and gathering (Felse 2018). By 2016, the government claimed that the Socio Bosque scheme had protected 1.5 million hectares through 2800 20-year agreements with private landowners and communities (Initiative 20x20 2021). A 2020 comparative study on the outcome of REDD+ projects financed by Germany, Norway, and the UK came to the same conclusions

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as those reached by Cabello and Gilbertson more than eight years earlier (Cabello and Gilbertson 2012). The report determined that payments were not sufficient: “[F]inancial incentives alone will not suffice; rather, what is needed much more are interventions and investments in private and societal actors’ capability and legitimacy to be change agents within a broader societal transformative process toward sustainability” (Schroeder et al. 2020: 10). The conclusion was that REDD+ was a piecemeal approach that did not address the underlying structures that led to deforestation in the first place; that is, ultimately, the way in which REDD+ had been constructed and had evolved over time had led to its being driven by demand for products and markets outside of the areas concerned. It had become evident that by directing the focus and responsibility on local decision-making without taking into consideration the global forces affecting the conditions in which those local decisions were made, REDD+ would be subject to the vicissitudes of the market for commodities in the wider economy, which constituted a countervailing force.

Indigenous Peoples and International Environmental Agreements The Rio + 20 Outcome Document of 2012 stressed the importance of indigenous peoples and of UNDRIP in the implementation of sustainable development strategies (DOCIP 2015: 3). This followed the disappointment of indigenous peoples having been excluded from the negotiations around the Millennium Development Goals (MDGs) of September 2000, the omission of mention of the UNDRIP in the texts of global climate change agreements, and indigenous representatives’ exclusion from the main events of the COP21 Climate Summit in Paris in December 2015. In Paris, representatives of indigenous communities staged their own sideevents and presented their own platform, fronted by the International Indigenous Peoples Forum on Climate Change (IIPFCC), founded in 2008 (Doolittle 2010; Etchart 2017a; IIPFCC 2020). Possibly as a result of such actions, indigenous peoples were included in the drafting of the Sustainable Development Goals (SDGs) of 2015 (Glennie 2014; Etchart 2017a). The final text of the 2015 Paris Climate Agreement, Article 5, stated that “Parties acknowledge that adaptation action [my emphasis] should

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follow a … participatory approach … guided by … as appropriate, traditional knowledge, knowledge of indigenous peoples”. Note that there is no mention of indigenous peoples’ role in mitigation of climate change, only in adaptation to the effects of climate change, although paragraph 135 of the Paris Agreement established the Local Communities and Indigenous Peoples Platform (LCIPP) for local communities and indigenous peoples through which it “recognized the need to strengthen knowledge, technologies, practices and efforts for local communities and indigenous peoples related to addressing and responding to climate change” (Article 93), which suggests a modicum of agency. Within the United Nations itself, the earlier outcome document of the UN General Assembly World Conference on Indigenous Peoples (A/RES/69/2) of 2014 does state that: 34. We encourage Governments to recognize the significant contribution of indigenous peoples to the promotion of sustainable development, in order to achieve a just balance among the economic, social and environmental needs of present and future generations, and the need to promote harmony with nature to protect our planet and its ecosystems, known as Mother Earth in a number of countries and regions. 35. We commit ourselves to respecting the contributions of indigenous peoples to ecosystem management and sustainable development, including knowledge acquired through experience in hunting, gathering, fishing, pastoralism and agriculture, as well as their sciences, technologies and cultures. 36. We confirm that indigenous peoples’ knowledge and strategies to sustain their environment should be respected and taken into account when we develop national and international approaches to climate change mitigation and adaptation.

In its December 2015 report, the Indigenous Peoples’ Centre for Documentation, Research and Information (DOCIP), a resource centre for indigenous peoples, based in Geneva, Switzerland, reiterated the link between climate change and the rights of indigenous peoples, stating that “Indigenous peoples have been making this link for several decades, taking center stage in its promotion” (DOCIP 2015). At the Sixteenth Session of the United Nations Permanent Forum on Indigenous Issues (UNPFII), 24 April to 5 May 2017 in New York, the International Labour Organization (ILO) once again declared that indigenous peoples had a critical role at the forefront of climate action.

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The ILO’s 2016 Technical Note, “Indigenous Peoples and Climate Change: from Victims to Change Agents through Decent Work”, identifies indigenous peoples as essential to the success of policies and measures directed towards mitigating, and adapting to, climate change (ILO 2016). At the UNPFII 2017 conference, indigenous peoples presented themselves as key players in the achievement of Sustainable Development Goals (SDGs) 13, 14 and 15, which include combating climate change, sustainably managing forests, oceans, and halting biodiversity loss. As is evident from indigenous peoples’ own publications, they have taken their own involvement in combating climate change as vital to achieving globally agreed targets (Tauli Corpuz 2017; Gualinga 2020). Their interest in preventing the violation of their territorial rights by enterprises engaged in fossil fuel exploration and extraction which have in the past also contaminated their water sources and violated their human rights, aligns with the interest of environmental groups and of some UN member state governments in their attempts to reduce greenhouse gas emissions and associated global warming.

Indigenous Resistance in Ecuador Over almost the entire continent of Latin America, environmental and social movements, including those comprised of or including indigenous organizations, and other groupings of indigenous and forest peoples, continued to be drawn into conflicts with government forces and private interests over access to natural resources into the third decade of the twenty-first century. When agents of extractive industries or of the state encroached on their land, indigenous defenders continued to mobilize, engage in direct action, and, aided by social media, were able to garner support among international NGOs and UN agencies (Humphreys Bebbington et al. 2018: 6; Global Witness 2018, 2020). In the case of Ecuador, tensions between colonizers and first nation peoples extended through the colonial period, during the independence struggles (1820–1822) and within the new Republic after independence (Radcliffe et al 2002; Whitten 2003; Whitten and Scott Whitten 2011). The continent’s new republics envisaged and enforced by the liberator Simón Bolívar were dedicated to integrating the population within the entire territory as citizens (Wearne 1996). Under the Spanish monarchy, many indigenous groups in the Andes had enjoyed autonomy

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and sovereignty over their land, which was removed under the new constitutions (ibid.). Under colonial administrations, a large part of the indigenous populations of Ecuador historically paid tribute to the state which gave them special status that separated them from the rest of the citizenry who were counted as individuals, rather than as part of a collective, which was the system under which the indigenous communities were administered. Once independence had been established, therefore, and collective rights reduced, indigenous groups were equally, if not more, vulnerable to those colonizers who wished to exploit their land and their labour, and they continued to resist violently when necessary to defend their territories. At the same time, they were entitled to appeal to the state to defend their interests against local entrepreneurs who wished to violate national law (Becker 2008). Those acculturated indigenous groups who did engage with the state were able to play off against each other internal competing political forces as an alternative to armed resistance, the latter being a strategy that ultimately would not serve them, as they were inferior in numbers and in weaponry. From colonial times to the end of the nineteenth century, the domesticated indigenous peoples in Ecuador formed a labouring class subjected through debt peonage. It was not until the liberal revolution of 1895 when the coastal elites took power from the Andean elites that the system of debt peonage came to an end (Bowen 2008). An indigenous movement, the Ecuadorian Indigenous Federation (FEI) was founded in 1944, succeeding in achieving land reform in 1962, after which the movement declined (Becker 2011). Ecuador was engaged in class struggles in the 1950s and 1960s, during which the peasant and indigenous movements were largely indistinguishable from each other. Military rule gave way to elite domination in the 1970s (Becker 2011). However, unlike in a number of Central and Latin American countries, such as in Argentina, Brazil, Chile, Colombia, Guatemala, Honduras, Paraguay, Peru and Uruguay, the scenario was not one of wide-scale violent repression of revolutionary movements by government forces or para-military forces: in Ecuador, governments (military or civilian) were until 2016 largely conciliatory, having chosen to engage in a strategy of co-option rather than suppression of political opposition and indigenous groups campaigning for land rights (Becker 2011). In Ecuador, peasant and indigenous organizations worked together. The Shuar people of the Amazon were mobilized in the 1960s, when

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new indigenous federations emerged. In the early 1970s, some of the indigenous communities were protected by, and came under the influence of, certain strands of the Catholic Church such as the Salesian Mission (Becker 2011: 6), as well as a small number of Catholic liberation theologians, who were able to assist in raising the political consciousness of the indigenous peoples and support them in defending their land and their access to resources. The Federación Ecuatoriana de Organizaciones Campesinas (National Federation of Peasant Organizations) (FENOC) evolved into the National Confederation of Peasant, Indigenous and Black Organizations (FENOCIN), and subsequently into the National Confederation of Indigenous Peoples (CONAIE) in 1986, which also incorporated the Confederación de Nacionalidades Indígenas de la Amazonía Ecuatoriana (CONFENIAE) in the Oriente (East) and the Ecuador Runacunapac Riccharimui (ECUARUNARI) of the Sierra (Becker 2011; Puente and Fernández 2012; Holst 2016). By the 1980s, the CONFENIAE of the Amazon basin were protesting the activities of the oil companies that were drilling in indigenous lands and therefore contributing to the colonization of the last of the indigenous peoples who continued to live outside of modernity (Scott 2009; Puente and Fernández 2012). Even though class struggle was always one element of indigenous political platforms, protection of the environment was on the agenda of the indigenous confederations as early as 1981, incorporating the concept of conserving nature for humanity. CONAIE had the support of the Federación de Trabajadores (FUT) (Workers’ Federation) and campaigned for agrarian reform, in the form of land rights, access to water, infrastructure, price freezes, debt forgiveness and access to credit, all of which were demands of the mestizo and other marginalized groups as well as being those of the indigenous communities. All the indigenous groups were of a leftist persuasion, though the more conservative elements of the various Christian churches operating in the country were engaged in attempting to establish less Marxist indigenous confederations (Becker 2011). The indigenous groups were not secessionist and did see the need for participation in political and policy decision-making that would affect them, having been historically marginalized from government or even from census statistics. By not featuring in censuses, some of the more isolated indigenous communities of the Amazon were mostly invisible

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until they began their marches to the capital and their occupation of the streets of Quito in the 1990s (Sawyer 1997; Becker 2011). Beck and Mijeski (2001) comment on the significance of the mobilizations in terms of the rise in self-confidence of indigenous communities. In the 1980s, for the first time, indigenous students were able to graduate with college degrees: the “growing and maturing cohort of educated, committed, and experienced indigenous (and some mestizo) leaders created pressure to expand career options, making the already-existing ideas for direct political action more acceptable” (Beck and Mijeski 2001: 4; see also Fernández 2018). Through the 1990s, therefore, in a period when political repression was diminishing, a number of indigenous groups engaged in road blocks, land invasions, occupation of government buildings, and marches on Quito. In 1995, a coalition of indigenous forces formed the political party Pachakutik (Movimiento de Unidad Plurinacional Pachakutik-Nuevo País) which participated in elections and became a serious contender for political power (Beck and Mijeski 2001; Becker 2008). By the 1990s, some indigenous leaders had been elected to Congress as representatives of indigenous communities rather than as citizens and were appointed to the Cabinet in 2002 (Becker 2008). The ability to claim the status of indigenous and be identifiable as belonging to a community with ancestral land rights is salient in terms of having legal rights to challenge concessions to extractive industries (Bermúdez Lievano 2019). Where indigenous communities had migrated, as a result of dispossession of their land during the land reform period of the 1960s and 1970s (Yashar 2005; Becker 2008), land claims were more difficult to uphold, leading to some indigenous land rights not being recognized under the law (Bermúdez Lievano 2019). In the political struggles of the 1990s, the armed forces used CONAIE to further their own interests, and what they viewed as the interests of the nation state (Bowen 2011) at a time of economic crisis, inflation, currency crisis, and a fall in exports, which had sparked popular revolt against government economic policies. The military recruited CONAIE to support them in ousting President Bucaram in 1997, and again in 2000 when Colonel Lucio Gutiérrez led an attempted Indian-backed coup against President Jamil Mahuad, who planned to replace the Sucre with the dollar as the national currency (Beck and Mijeski 2001; Becker 2011). Although the second coup failed, Lucio Gutiérrez was elected president in 2002. Members of CONAIE hoped to gain from the coup

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(Beck and Mijeski 2001) and from Gutiérrez’s election, but they had been used as a partner of convenience to enable the military to claim popular support and were subsequently marginalized (Becker 2011). Four Pachakutik members were appointed ministers, including Nina Pacari, who became foreign minister (Geertsen 2007). Overall, the indigenous movements of Ecuador, through their formation of alliances and recurrent mobilizations, emerged as one of the most powerful social movements in the Americas in the first decade of the twenty-first century, having had “the greatest impact on constitutional reform of any indigenous movement in Latin America” (Van Cott 2005: 139), and having secured the ratification of ILO Convention 169 through the Ecuadorian Congress in 2000. A coup in 2005 was instigated by students, the middle classes and the indigenous movements who joined forces to mobilize against IMF-imposed neoliberal structural adjustment policies. In the elections following in 2006, candidate Rafael Correa, who became president, had the support of the urban workers’ movement, but not of CONAIE, who fielded their own indigenous representative, Luis Macas, who won a mere 2% of the vote. While the indigenous peoples made political and cultural gains under President Correa, there was a trade-off, according to Bowen (2015), as their political participation was limited and carefully controlled. While President Correa, during his 2007–2017 administrations, ostensibly presided over a “plurinational state” that upheld the rights of indigenous peoples and the rights of nature under the constitution, in practice, the government pursued a policy of “developmental aggression”, basing the country’s development on the export of raw materials (to China, predominantly) and prioritizing the urban sectors of the population. The intended “participatory structures” (Becker 2011: 46) were already unravelling by 2007, when protests against the extractive industries at Dayuma in Orellana province led to arrests (Amnesty International 2012). Correa could be said to have engaged in “petro-populism”, which led to his effectively declaring war on indigenous peoples’ movements (Becker 2011: 203). Protests led to the death of a Shuar schoolteacher, Bosco Wisum in 2009, and Sarayaku Kichwa CONAIE President Marlon Santi was criminalized for leading protest marches in 2010, and arrested in 2019 (Becker 2011: 52, 57). The Ecuadorian state under the 2008 constitution was obliged to guarantee indigenous land rights, though as a

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result of developmentalist policies that accrued debts to foreign enterprises and institutions, the government in the 2010s was unable to fulfil its constitutional obligations both to indigenous peoples and to nature. Although the new Ecuadorian Constitution was in some senses reversing the modernizing project of the independent state that emerged from the struggle for independence from the Spanish crown, the government in 2009 found itself in the situation of having to negotiate with oil drilling and mining companies who provided income for the state and employment for Ecuadorian citizens, thereby finding itself with a “bitter choice” between nature and the country’s economy (Becker 2014).

The Case of the Yasuní National Park The attempt to keep the oil in the ground in the Yasuní National Park, one of the world’s areas of greatest biodiversity (Bass et al. 2010; Swing 2012; Suárez et al. 2012) during the Correa administrations, is an illustration of the interplay of power dynamics in global human rights and environmental governance through the intersections of indigenous rights, national and international institutions, national and international environmental and human rights NGOs and social movements. The Yasuní story highlights the ongoing struggle of the indigenous peoples of the Amazon to retain their territory, culture, and access to resources against the forces of a capitalist global economy driven by private and state interests (Fig. 4.1). The Huaorani people of the Ecuadorian Amazon (see Fig. 4.1) had remained largely isolated from the modern world until the discovery of oil reserves in their territory in 1930s. Initially, they were able to drive out Royal Dutch Shell by force, but by the end of the 1960s they had lost 90% of their territory to oil companies as a result of intervention by the US Protestant missionary Summer Institute of Linguistics (SIL), hired by the oil companies to pacify a number of the communities and bring them into the Western orbit (Kimerling 2006; Espinosa 2012). A number of Huaorani communities continued to resist the ongoing project of colonization, joining the indigenous uprisings of the 1990s with the support of local NGOs, particularly Acción Ecólogica, and global environmental movements. They protested the construction of the Maxus oil well access road in 1992, which cut through 140 kms of the park (Brahic 2009). A group of Huaorani occupied the Maxus Energy oil wells in 1995, and environmental activists engaged in direct action in the form of occupying

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Fig. 4.1 Location of indigenous communities within the Yasuní National Park (Adapted by C. Etchart from Mongabay: Base Map of Yasuní National Park, based on data from EcoCiencia, the Ministry of the Environment, Esri, Planet, and DigitalGlobe)

the offices of an oil company in Quito. They argued that the wells would destroy their culture, their territory, and their lives and asked for an oil moratorium (Brahic 2009; Espinosa 2012). The Huaorani were by the 1990s able to incorporate the discourse of global environmental activism into their resistance movement, giving them greater moral force as well as enabling them to engage support from international allies such as the Sierra Club Legal Defense Fund, whom they were able to join in global media campaigns, later given additional leverage through social media. The electoral success of the Alianza País party in 2006, followed by the accession to the presidency of Rafael Correa, initially with the backing of the indigenous confederations and local environmental movements, such as Acción Ecológica, and with the incorporation of indigenous rights and rights of nature into the constitution, provided the conditions for the launching of a campaign to halt the extraction of oil from the Yasuní (Fig. 4.2). By this time, however, some of the Huaorani were suffering

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Fig. 4.2 Oil pipelines in Yasuní National Park 2011 (Photo: Julio Etchart)

from dependence on the oil companies, which included the consumption of alcohol, and were engaged in the selling of bushmeat, which was depleting their source of game (Kimerling 2006; Brahic 2009; Espinosa 2012). The proposal put forward by President Correa’s Minister of Mines and Hydrocarbons Alberto Acosta and NGO allies not to extract 846 million barrels of oil from Yasuní was based around a required contribution of US$3.6 billion to be raised from the “international community”, which was estimated to be half the revenue that would have been earned from the oil wells in the Ishpingo, Tambococha, and Tiputini (ITT) oil fields of the park, which contained 20% of the country’s reserves. By not opening up the wells, an estimated 407 million tonnes of CO2 emissions were to be avoided, and ecosystems would be protected. The ITT project was launched in 2010 and then abandoned by President Correa in 2013 on the grounds that insufficient funds had been raised, which was indeed the case, in that only tens of millions of dollars had been received, and a mere US$300 million promised (Martinez-Alier et al. 2013; Finer et al. 2010; McAvoy 2011).

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Even while the project was being launched, however, President Correa was negotiating concessions with Chinese oil companies as a backstop in case the project failed (Hill 2014; López Rivera 2017). While the Ecuadorian Constitution was being hailed as a triumph by environmentalists worldwide, and the Yasuní ITT project described as a model for the rest of the world to follow, behind the scenes the Ecuadorian experiment was being sabotaged. President Correa blamed the donors for not contributing, which was a valid argument, in that Dirk Niebel, Minister of Cooperation of the German government, allegedly withdrew from the ITT project on the grounds that “Germany will not contribute to a fund that is based on the philosophy of ‘payment for non-action’” (quoted in Martinez-Alier et al. 2013). The German minister also expressed a concern that the financial mechanics of the project would set a precedent for developing countries only fulfilling their international obligations if they received compensation from industrialized countries. For his part, President Correa raised the question of a violation of Ecuador’s sovereignty with regard to the control of the funds, which remained within the United Nations Development Programme (UNDP) (López Rivera 2017). While President Correa’s position was in line with the immediate developmental needs of the Ecuadorian state, relying as it did on income from oil revenues to provide services and maintain the government, in which he was supported by many in his party, it became clear that he had from the earliest discussions around the project not been wholeheartedly in support of ITT initiative. President Correa’s lack of enthusiasm was reflected in his refusal to sign the Memorandum of Understanding for the Trust Fund to be managed by the UNDP, nor did he attend the 2009 Conference of the Parties (COP) in Copenhagen, where the agreement was originally to be signed. When it was signed in 2010 in Quito, President Correa did not attend (Martinez-Alier et al. 2013). The failure of the ITT project demonstrates the fragility of moral and inter-generational concerns in the face of the needs of state governments and the electorates to which they are accountable. It highlights the weakness of developing country economies that are based around primary products, perpetuating an economic dependence on commodities exported to Northern markets, such as fossil fuels, and the ongoing challenge of diversification of economies which, for liberal economists, requires investment, infrastructure, education, as well as markets in an era

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of globalization where modernization and growth have continued to be universal objectives. The debâcle of the ITT project threw into relief the inability of the international society of states to collaborate successfully in environmental initiatives, both within and outside the auspices of the UN, even with the support of international NGOs. The media attention focussed on the project, however, gave impetus to indigenous and environmental activism, particularly in the form of litigation against state entities, which in several instances brought small victories to indigenous plaintiffs.

Indigenous Activists, the Media, and International Organizations Although the campaign to keep the oil in the ground in the case of the Yasuní National Park did not succeed, the story did have symbolic value in that it attracted the attention of the global media. The case to protect the Yasuní was made by Al Gore, former US vice-president, by Indian environmentalist Vandana Shiva, and a number of Hollywood celebrities; ultimately, the US$3.6 billion demanded by the Correa administration to compensate for the country’s loss of oil revenue was beyond the fund-raising capacity of Northern NGOs and the ability of Northern governments to justify the cost to tax-paying voters. It is significant in terms of international awareness of the plight of the Ecuadorian rainforest that Yasuní was categorized as a Grade II national park by the International Union for the Conservation of Nature (IUCN) in 1979, and designated by UNESCO as a biosphere reserve in 1989. These listings, while they may in themselves not be newsworthy, nonetheless can justify and provide impetus for action in the form of mobilization of communities and activists. Where indigenous marches and demonstrations have been recorded by local and foreign press correspondents, as well as by INGOs that have consultative status at the United Nations, they can act as a disincentive for governments to take punitive action against individual land defenders. In addition, the example of Vicky Tauli Corpuz, indigenous Filipina environmental activist, former chairperson of the United Nations Permanent Forum on Indigenous Issues (2005–2010) and UN Special Rapporteur on Indigenous Peoples from 2014 (Somini 2018), has been of value to indigenous communities in the Ecuadorian Amazon, not least as an inspiration to women leaders such as Alicia Cawiya of the Huaorani,

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Mirian Cisneros of the Sarayaku Kichwa, and Gloria Ushigua of the Sápara people (Alicia Cawiya, personal communication 2019). The work of indigenous federations, local scholars and politicians, lawyers and activists, local and international NGOs, and United Nations agencies, has been essential in providing support for small groups of indigenous people who have few resources beyond their belief in themselves, the strength of their families and their culture, and the power of their personalities when confronting local officials, hostile colonizers, state armed forces as well as agents of state and private national and foreign extractive industries. Indigenous environmental activists in Ecuador, among them the Sarayaku Kichwa, were backed by Alberto Acosta, former Minister of Mines and Energy, former President of the Constituent Assembly and architect of the Ecuadorian Constitution, and renowned Buen Vivir scholar; and Catholic University Law Professor Mario Melo Cevallos, who in 2012 succeeded in winning the Sarayaku Kichwa’s case against the Ecuadorian government, for its failure to comply with the principle of Free, Prior and Informed Consent (FPIC), at the Inter-American Court of Human Rights (IACtHR) (IACtHR 2011). As well as having support from Ecuadorian environmental NGOs, such as Acción Ecológica, the indigenous communities enjoyed consistent support from the NGO Amazonwatch, founded in 1996 to protect the indigenous peoples and their habitat in the Amazon basin, and from the US-based NGOs Cultural Survival and Land is Life. Amazonwatch’s strategies to protect Amazonian peoples included media exposure, legal action, and shareholder campaigns to demand corporate social and environmental justice and accountability (Amazonwatch 2012: 5) (see Chapter 7). They also played a role in strengthening the capacity of indigenous activists in the use of media and technology and through donations of equipment needed to enable them to have a voice on the global stage. In 2012, Amazonwatch had more than 165,000 email subscribers, 40,000 Facebook fans, and 15,000 Twitter followers (ibid.: 5), increasing to 191,000 Facebook fans, and 86,000 Twitter followers, in 2021. They were also able to invite indigenous leaders to engage in ambassadorial visits to California. Between 2011 and 2012, Amazonwatch organized and accompanied 10 delegations of indigenous leaders from Amazon countries to North America and Europe to meet with corporate executives, boards of directors, shareholders, NGO allies,

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and senior government officials. The NGO also supported the participation of local and indigenous leaders in key international meetings, such as COP 17 and Rio + 20 (Amazonwatch 2012: 12) (Fig. 4.3). The success of the Sarayaku Kichwa community (see Fig. 4.3) in achieving a ground-breaking ruling against the Ecuadorian state at the IACtHR in Costa Rica in 2012—Kichwa Indigenous People of Sarayaku vs Ecuador (Inter-American Court of Human Rights 2011), on the grounds of the government and private interests’ not having secured the Free, Prior and Informed Consent (FPIC) of the community before engaging in oil prospecting in Sarayaku territory—can be attributed to a number of factors, not least the tenacity of particular individuals such as Marlon Santi of the Sarayaku Kichwa community (Melo Cevallos 2016), but publicity surrounding the case was certainly generated by the activities of Amazonwatch and their NGO allies. During this period, Amazonwatch and Amazon Frontlines continued to target individual companies operating in the Amazon region, such as Chevron, Talisman, Ivanhoe, ConocoPhillips, and Occidental Petroleum (Oxy) as well as institutional investors (Amazonwatch 2012: 11) and investment management companies, such as BlackRock, which was a particular focus of attention (Etchart and Cerda 2020) (see Chapter 7), and against which the BlackRock’s Big Problem campaign (BlackRock’s Big Problem 2021) was launched.

Fig. 4.3 Map of Bobonaza, Pastaza and Puyo rivers, with location of the hamlet of Sarayaku (Source C. Etchart)

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Paradoxically, or coincidentally, BlackRock’s CEO Larry Fink became a leading figure in the investment management world’s crusade for environmental, social, and governance (ESG) investment initiatives to combat climate change, in early 2020 (see Chapter 7). Amazonwatch was also engaged in efforts to put pressure on the Chinese government, whose state oil companies had concessions to drill for oil in and around Ecuador’s Yasuní National Park. Among Ecuadorian indigenous leaders and activists, such as José Gualinga, Patricia Gualinga, Marlon Santi, Mirian Cisneros, Nina Gualinga, Helena Gualinga, Eriberto (Traya Muskuy) Gualinga, of the Sarayaku Kichwa; Alicia (Hueiya) Cawiya and Nemonte Nenquimo of the Huaorani people; and Gloria and Manari Ushigua of the Sápara, several have featured, often more than once, on the pages of El Comercio and El Universo in Ecuador, in the columns of The New York Times, The New Yorker, El País of Spain (McAnarney 2016; Giménez 2016), in the French press (Santi and Merckaert 2017) and in the Guardian in the UK. Eriberto Gualinga received support from Amnesty International in the making and distribution of his 30-minute documentary, Children of the Jaguar, about the Sarayaku, in 2012 (Etchart in Gatehouse 2019). Reaching the press and social media in the Americas, in Europe, and globally, has afforded indigenous environment defenders the protection that has often been denied them under national and international law. Having access to Twitter, Facebook and Instagram has enabled indigenous communities to speak with their own voices, in Spanish and in Kichwa, reaching across spatial boundaries to indigenous communities in Ecuador and surrounding countries, and to human rights and environmental activists, indigenous and non-indigenous, in the rest of the world. Indigenous women leaders have emerged as key figures in resistance to the extractive industries (Fig. 4.4). On 4 October 2013 Alicia (Hueiya) Cawiya, Vice-President of the National Waorani Federation (NAWE) and one of the founders of the Asociación de Mujeres Waorani del Ecuador (Ecuador Waorani Women’s Association) surprised the Ecuador’s Constituent Assembly in Quito by making a speech, first in Huaorani, and then in Spanish, broadcast live on national television, denouncing the Ishpingo-Tambococha-Tiputini (ITT) oil fields on Huaorani territory (Etchart 2017b). Alicia’s performance became an inspiration for indigenous women’s participation in the country’s political life (Etchart 2019), as has the campaigning work of Patricia Gualinga,

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Fig. 4.4 Alicia Cawiya (left) and Patricia Nenquihui of the Huaorani at International Women’s Day march against the oil industry in Puyo, Ecuador, 8 March 2016 (Photo Mike Reich)

International Relations Director of the Sarayaku, who has participated in numerous international fora, including speaking at the International Union for the Conservation of Nature (IUCN) World Conservation Congress in 2016, at the COP 23 in Bonn in 2017, and at the COP 26 in Glasgow in 2021. Patricia is a member of the Women’s Earth and Climate Action network (Etchart in Gatehouse 2019). She was part of a delegation to the Synod of Bishops for the Amazon at the Vatican on 17 October 2019, where she met the Pope (Vatican News 2019). In an article in 2020, she praised the work of the Pan Amazon Ecclesiastical Network (REPAM) in supporting indigenous peoples and stressed the importance of Pope Francis’s “Laudato Si” encyclical on human’s responsibility to protect the environment (Gualinga 2020), thereby bringing animists into a pan-religious alliance within the global environmental governance universe. The respect accorded to Patricia Gualinga, and the high profile of members of her community and of other indigenous

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communities in the centres of power in the Global North, is an indication of shifts in North/South relations that have occurred over the last half century.

Conclusion This chapter has explored the intersection of the anti-colonial struggles of the indigenous peoples of the Americas with the evolution of human rights instruments in international law in the context of the threat to the environment and to the climate from agriculture and from more than 200 years of industrialization based on the burning of fossil fuels. It has highlighted the importance of networks in linking indigenous communities with each other within and across states and regions, and in bringing together indigenous leaders with international NGOs and intergovernmental and religious organizations. In this way, through solidarity and connections from the local to the global, small groups of indigenous hunter-gatherers and agriculturalists in the Amazon rainforest have been able to exert influence on decision-makers in government and in the private sector that have implications for the protection of the planet for future generations.

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López Rivera, Andrés. 2017. “Chronicle of a Schism Foretold: The State and Transnational Activism in Ecuador’s Yasuní-ITT Initiative.” Environmental Sociology 3 (3): 226–236. https://doi.org/10.1080/23251042.2017. 1295836. Martinez-Alier, Joan, Nnimmo Bassey, and Patrick Bond. 2013. “Yasuní Is Dead: Blame President Correa.” www.ejolt.org/2013/08/yasuni-itt-is-dead-blamepresident-correa/. Accessed 15 April 2020. McAnarney, Alex. 2016. “El Pueblo Kichwa, Sarayaku y el Estado Ecuatoriano.” El País, 16 December. McAvoy, Esme. 2011. “Oil or Life: Ecuador’s Stark Choice.” New Internationalist (411) (April). https://newint.org/features/2011/04/01/yasuni. Accessed 15 August 2020. Melo Cevallos, Mario. 2016. “Sarayaku ante el sistema interamericano de derechos humanos: justicia para el pueblo del Medio Día y su selva viviente.” De Justicia. Documentos 27. Bogota. Organization of American States (OAS). 2016. “American Declaration on the Rights of Indigenous Peoples.” https://www.oas.org/en/sare/documents/ DecAmIND.pdf. https://www.oas.org/en/sare/documents/DecAmIND. pdf. Puente, Florencia, and Blanca Fernández. 2012. “Configuración y demandas de los movimientos sociales hacia la Asamblea Constituyente en Bolivia y Ecuador.” Íconos 16(3): 49–65. Radcliffe, Sarah A., N. Laurie, and R. Andolina. 2002. “Reterritorialised Space and Ethnic Political Participation: Indigenous Municipalities in Ecuador.” Space and Polity 6 (3): 289–305. Ramos, Ivonne. 2016. “Working Paper on the Sápara Nation, Its History and a Genocide in the Making.” http://www.saramanta.org/wp-content/uploads/ 2017/03/Sapara-Report-English-FINAL.pdf. Accessed 23 August 2019. Rostow, Walter. 1960. The Stages of Economic Growth: A Non-Communist Manifesto. Cambridge: Cambridge University Press. Santi, Daniel, and Jean Merckaert. 2017. “Vivre en harmonie: le project politique des Sarayaku.” Revue projet 331: 50–55. https://www.cairn.info/. Sawyer, Suzana. 1997. “The 1992 Indian Mobilization in Lowland Ecuador.” Latin American Perspectives 24 (3), Ecuador, Part 1: Politics and Rural Issues (May): 65–82. Sawyer, Suzana, and Terence Gómez. 2008. “Transnational Governmentality and Resource Extraction: Indigenous Peoples, Multinational Corporations, Multilateral Institutions and the State.” United Nations Research Institute for Social Development. Identities, Conflict and Cohesion. Programme Paper Number 13. September. Sawyer, Suzana, and Terence Gómez. 2012. Transnational Governmentality in the Context of Resource Extraction. New York: Palgrave Macmillan.

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Schroeder, Heike, Monica Di Gregorioc, Maria Brockhaus, and Thuy Thu Pham. 2020. “Policy Learning in REDD+ Donor Countries: Norway, Germany and the UK.” Global Environmental Change 63 (July). Accessed 7 February 2021. Scott, James. 2009. The Art of Not Being Governed: An Anarchist History of Upland South East Asia. New Haven, CT: Yale University Press. Seymour, Frances. 2014. “Indigenous People’s Rights and REDD+.” Center for Global Development. https://www.cgdev.org/blog/indigenous-peoplesrights-and-redd. Accessed 22 April 2020. Somini, Sengupta. 2018. “She Stands Up to Power: Now, She’s Afraid to Go Home.” New York Times, May 3. https://www.nytimes.com/2018/05/03/ world/asia/hurman-rights-philippines.html. Accessed 2 November 2020. Suárez, Esteban G., G. Zapata-Ríos, V. Utreras, S. Strindberg, and J. Vargas. 2012. “Controlling Access to Oil Roads Protects Forest Cover, but Not Wildlife Communities: A Case Study from the Rainforest of Yasuní Biosphere Reserve (Ecuador).” Animal Conservation 16: 265–274. Swing, Kelly. 2012. “Science in Yasuní Sheds Light on Impacts of Oil Development in Amazon.” Changing Planet. National Geographic. https://blog.nat ionalgeographic.org/2012/12/26/science-in-yasuni-sheds-light-on-impactsof-oil-development-in-amazon. Accessed 16 August 2020. Tafoya, Kathryn A., Eduardo S. Brondizio, Christopher Eric Johnson, and Peter Beck. 2020. “Effectiveness of Costa Rica’s Conservation Portfolio to Lower Deforestation, Protect Primates, and Increase Community Participation.” Frontiers in Environmental Science 8 (November): 212. Tauli Corpuz, Victoria. 2017. “Statement of Ms. Victoria Tauli-Corpuz Special Rapporteur on the Rights of Indigenous Peoples.” Human Rights Council 36th Session Geneva, 20 September. Microsoft Word—HRC 36-ID-SR indigenous peoples statement English.20.09.2017.pm.final.docx (https://ohc hr.org). Accessed 21 March 2021. UNFCCC. 2009. “Methodological guidance for activities relating to reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.” Decision COP 15/4. United Nations. 2011. “Declaration on the Right to Development at 25.” https://un.org. United Nations Framework Convention on Climate Change (UNFCCC). 2020. “What Is the United Nations Framework Convention on Climate Change?” https://unfccc.int/process-and-meetings/the-convention/what-isthe-united-nations-framework-convention-on-climate-change. United Nations Permanent Forum on Indigenous Issues (UNPFII). 2020. “Permanent Forum.” www.un.org/development/desa/indigenouspeoples/unpfiisessions-2.html. Accessed 18 August 2020.

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CHAPTER 5

Corporate Social Responsibility and the Extractive Industries in the Ecuadorian Amazon: Indigenous Rights and the Environment

Chevron/Texaco and the Amazon “Chernobyl” The outcome of the class action case taken by Ecuadorian Amazon landholders (indigenous and non-indigenous) against a multinational company, Chevron, Aguinda v. Texaco, Inc., beginning in 1993, and Chevron’s response, provides an example of the shortcomings of international law as an instrument to prevent environmental degradation and to protect indigenous and community rights. Texaco (later bought out by Chevron), who were in control of the day-to-day management of oil wells in the Lago Agrio-Nueva Loja region of the Ecuadorian Amazon between 1972 and 1992, were allegedly responsible for the worst oil spill in the history of the world to date—the “Amazon Chernobyl”—estimated to be 80 times larger than the 134 million gallon BP Deepwater Horizon spill in the Gulf of Mexico in 2010 (Zaitchik 2014; Ofrias 2017a; National Oceanic and Atmospheric Administration (NOAA) 2020) (Fig. 5.1). In the area around Lago Agrio (see Fig. 5.1), 13–16 million gallons of oil and 18–19.3 billion gallons of waste and toxic substances were allegedly dumped into unlined pits and directly into rivers and streams between 1972 and 1992 (Kimerling 2006; San Sebastian and Hurtig © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6_5

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Fig. 5.1 Lago Agrio, Sucumbíos province, Ecuador (Source C. Etchart)

2004; Ofrias 2017a; Mella 2017). Dumping oil into unlined pits was at the time and continues to be an illegal practice in the USA, where Chevron is based, and the practice had been discontinued by Texaco and other oil companies in their operations in the USA by 1972. The contaminated area of 1,700 square miles of rainforest, with 340 locations of pollution, was regarded as one of the world’s most contaminated industrial sites (Langewiesche 2007).

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The Ecuadorian government foresaw the possibility of environmental damage from oil drilling before Texaco commenced its operations and in 1971 passed the Hydrocarbon Law, Decree 1459, “requiring oil producers to adopt all necessary measures for the protection of the flora and fauna and other natural resources, and to prevent the pollution of water, the atmosphere and land”, according to Chevron (2018) but, according to Mella (2017: 638), there was a convenient “environmental legal vacuum” at the time. Texaco, contradictorily, claimed that it did have a regulatory system in place at that date. According to Chevron, the Texaco-Gulf consortium established requirements for protection of workers and the environment in the original Concession Agreement with the government of Ecuador in 1964; the 1973 contract with Texaco-Gulf also required environmental protection measures, and it was reported that the Ecuadorian government passed eight laws between 1971 and 1992 in an attempt to mitigate the damaging effects of oil extraction in the country. None of these efforts appear to have had any effect in that there was no evidence of action to limit contamination on the part of either the Ecuadorian government or Texaco. From 1964 to 1992, Texaco dug 340 oil wells, from which they extracted 1.5 billion barrels of crude oil, at the cost of one million acres of deforestation (Kimerling 2006) (2 million hectares, according to Mella 2017). There was also burning of oil and waste from 800 pits (Crasson 2017; Mella 2017). The 13–16 million barrel oil spill, which included, on two occasions, so much oil in the Napo River that the water ran black for a week (San Sebastian and Hurtig 2004), was compared also with the 10.8 million gallons spilled in the Exxon Valdez tanker disaster in 1989 in Alaska, one of the largest sea oil spills recorded (Kimerling 2006; Palast 2011), which led to the 1990 US Oil Pollution Act, which included clauses designed to establish legal liabilities of responsible parties. In the Exxon Valdez case, responsibility was attributed mainly to Exxon which provided US$2.1 billion in funding for restoration. An award against Exxon Mobil for US$2.5 billion in damages to those affected was reduced by the US Supreme court to US$500 million in 2008 (Vicini 2008). In Ecuador, the class action by Amazonian communities—indigenous and non-indigenous—affected by the Chevron/Texaco oil spills was initiated in 1993. Led by the Amazon Defence Coalition, the plaintiffs took on the name “Afectados por Texaco”. They included fifteen Kichwa, twenty-four Secoya, and 37 colonists, though Huaorani, Cofán, and Siona were incorporated, as they were within the geographical area of

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the 30,000 people affected (Kimerling 2006: 476). Initially, people and cattle had become sick with ulcers, and over time contaminated water led to deaths from cancer and leukaemia. The case continued unresolved for more than 25 years. Texaco/Gulf Oil’s first legal response was to carry out an audit to assess the cost. In December 1994, Tex-Pet—the name of Texaco’s subsidiary conducting the oil extraction in the field— and Ecuador signed a Memorandum of Understanding and a settlement was agreed in March 1995 (Mella 2017). The audit of the damage caused by the dumping of oil established that remedial action would cost US$8– 13 million. Tex-Pet was required to take the remedial action. Although some remedial action was embarked upon as a result of the audit, an “Acta Final” indemnifying agreement was signed with the Ecuadorian government in 1998, based on the remediation contracts agreed between 1994 and 1995 (Kimerling 2006: 493) which, according to Mella (2017), absolved Texaco of its responsibilities. The case was further complicated by the fact that the project became a joint venture between Tex-Pet (Texaco) and the Ecuadorian government, which held a majority share, under the name of PetroEcuador. According to Barrett (2014), the Ecuadorian government owned a 62.3% stake in the Texaco Consortium from 1977. Barrett estimated that of the US$30 billion in profits, the Ecuadorian government gained US$23.5billion, and Texaco US$1.6 billion, and that Texaco/Chevron made net profits of only US$490 million, after tax (ibid.). Tex-Pet, as a private company, was the sole operator, however, and was bound by Ecuadorian law, which apparently it chose to ignore. Texaco was also required to carry out oil operations “in accordance with international practices” (Leon Moreta 2015), which it also failed to do. The practices employed by Texaco, such as using unlined pits to dump waste, as previously cited, were already illegal under US Federal Law in 1979 and would not have been applied in any developed country, yet in this case US law was not taken as being indicative of “international practices”. Laws were in place in Ecuador, but they were not implemented. It is clear, therefore, that Texaco was able in this case to take advantage of what Leon Moreta calls “weak governance” (2015). Weak governance could be interpreted as lack of expertise, lack of capacity to implement regulatory mechanisms, or lack of will or power to demand that foreign investors align themselves with international practices to protect the environment. In the 1990s, some effort was made to alleviate the damage on the part of Texaco. Texaco invested what it considered to be one-third of

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the cost of damage repair (the one-third being estimated as its contribution of US$40 million)—as it held one-third of the shares in the joint operation—to provide drinking water and sewage systems, though Texaco continued to challenge the overwhelming scientific evidence of damage to water systems and damage to the health of local peoples, as is evidenced by Chevron/Texaco’s own website (Chevron 2009). Chevron ran its own blog, the Amazon Post, in order to, in their own words, “express the company’s views and opinions on a fraudulent lawsuit against the company in Ecuador” (Amazon Post 2021), and employed academics to support its case through the publication of scholarly articles. Despite the indemnification granted to Texaco in 1998 by the Ecuadorian government, in 2011 and 2013, the Court of Nueva Loja and the National Court of Justice in Ecuador respectively ruled against Texaco for US$18.2 billion and US$9.5 billion in damages. In response to the 2011 ruling, Chevron responded by filing lawsuits against Ecuador in New York, as well as at The Hague International Court which ruled in Chevron’s favour in 2011, ordering the Ecuadorian state to suspend enforcement of the judgement (Deva and Bilchitz 2013). The Hague court ruled that Ecuador had violated international law in the light of the Memorandum of Understanding of 1995. In March 2012, Chevron also filed a counter-case in the Ecuadorian courts (Leon Moreta 2015: 326). The duration and complexities of the litigation embarked upon by the Ecuadorian plaintiffs in this case illustrate the challenges faced by indigenous communities when attempting to defend their land, resources, and cultures from extractive activities that are financed by collaborations among private industry and governments. The indigenous and local communities affected by oil contamination often do not have the knowledge, skills, and experience that are required in negotiations with supporters and with local and international lawyers working on their behalf, who may be embarking on cases that involve huge financial and even personal risk. Conflicts may arise among lawyers and other interested parties in which indigenous land defenders are unwittingly caught up, and from which they may experience adverse consequences. Affected parties may find themselves sidelined by their own lawyers, and municipal authorities may receive payments the benefits of which are not shared by all (see Chapter 6). According to Judith Kimerling, in 1996, the equivalent (in local currency) of more than US$3 million under the remediation agreements was distributed to municipalities in Sucumbíos, but “the destiny of

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most of the monies remains murky” (Kimerling 2006: 512). As in the case of Socio Bosque (see Chapter 4), power inequalities and lack of consultation with regard to payments to communities, as well as uncertainties as to the legitimacy of their representatives (see Cepek 2018), can lead to diversion of funds to individuals whose concern may not be the wellbeing of indigenous communities or the conservation of nature. In the Chevron/Texaco case, the decisions of the International Court at the Hague and of the New York court, as well as the outcome of the Ecuadorian court rulings, demonstrate not only power imbalances in terms of the financing of litigation, but also the limits of international law in terms of international courts, and the question of legal jurisdiction across state borders, which will be addressed in the following section.

Forum Shopping (and its Consequences for Class Action Suits) In 1993, the Ecuadorian plaintiffs had attempted to take the case against Chevron first to a Texas court and then to the New York courts—on the grounds that Chevron’s headquarters were located there—but this initiative failed when the District Court for the Southern District of New York ruled that the case could not be heard on the grounds of forum non conveniens —that is, incorrect jurisdiction in terms of potential for a just outcome for plaintiffs and defendants. New York Judge Rakoff moved the case back to Ecuador. The New York plan then backfired on the plaintiffs in 2013 when Judge Lewis Kaplan of District Court for the Southern District of New York accepted jurisdiction for Chevron’s lawsuit against the Ecuadorian plaintiffs’ lawyer, Steven Donziger, whom Chevron accused of racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO) (Monaghan et al. 2014). The Ecuadorian plaintiffs’ case against Chevron illustrates the ways in which multinational corporations can move hearings from one jurisdiction to another in order to avoid judgments and fines, a practice described by Leon Moreta as “forum shopping” (2015). Burke (2017) notes, however, that although a decision to shift a case to a foreign court involves an acceptance of the adequacy of that country’s judicial system, if the foreign court subsequently rules against the defendant—which occurred in the Chevron case—then the defendant can still challenge the ruling on grounds of the inadequacy of a judicial system that it has previously ruled as adequate. On the one hand, then, the case in question could not be heard in New

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York, on the grounds of forum non conveniens, and on the other, the New York court had the right—took upon itself the right—to make judgments over the competence of judicial systems of foreign states with regard to the same case. Judge Kaplan subsequently declared a worldwide injunction against the plaintiffs taking the case to a court in another country on the grounds that Chevron was “threatened with immediate and irreparable injury” (United States District Court, S.D. [Southern District] New York 2011). It could be argued that the outcome of this particular class action suit, in which the litigants/plaintiffs ultimately (so far to date) lost their claim for compensation from Chevron—despite efforts to take the case to courts in Argentina, Brazil, Canada and the USA—was ultimately determined by the power of the US$2 billion paid by Chevron to their lawyers, against which the group of 30,000 Ecuadorian plaintiffs could not compete in terms of resources or influence (Eisinger 2017). As Judge Kaplan himself said, “Everyone charged with a crime is entitled to the assistance of a lawyer. A defendant with the financial means has the right to hire the best lawyers money can buy. A poor defendant is guaranteed competent counsel at government expense…” (quoted in Eisinger 2017: 138). Beyond this, the case demonstrated the obstacles confronting those who wish to enforce national laws over multiple jurisdictions, particularly where the integrity of national courts can be challenged, as happened in the Chevron case. Litigation falls into a jurisdictional vacuum when one side decides that a chosen jurisdiction is not appropriate under forum non conveniens . The ruling in favour of Chevron by the International Court at The Hague exposed another of the structural flaws in the global political configurations within which transnational economic dynamics intersect with laws of nation states: in this case, the 1998 indemnity agreement, signed by the Ecuadorian government, that absolved Chevron/Texaco from further responsibility for compensation, undermined the plaintiffs’ case. This leads to the conclusion that, from the perspective of The Hague court, in cases where governments have signed indemnity agreements with multinational companies, the consequences for human rights and the environment of the activities of foreign companies may be irrelevant in terms of legal protection of those rights. With or without indemnity clauses to protect private companies, in this particular case in Ecuador, the government was, knowingly or not, party to the activities related to the oil contamination, in that it had

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a majority share in the operations, even though the state was not in charge of management of the oil wells. This illustrates the (in)convenience of shared responsibility for environmental damage: Chevron attributed liability to the Ecuadorian government, and the government shifted alliances according to its political interests and who was in power over the course of the litigation (Kimerling 2006). Administrations needed to deflect attention from the government’s own responsibilities in the case, at the same time avoiding deterring would-be investors in the country. The marriage of private and public interests, of governments working with multinationals, creates a jurisdictional vacuum of itself, as was understood by Donziger, who argued that Chevron was “trying to shift responsibility to the Ecuadorean government as part of a legal strategy” (interview, Steven Donziger, December 2017). Yet Donziger acknowledged that “it is true that the government of Ecuador also bears some responsibility for what happened, given that they gave a licence to pollute to Texaco and the government received what we believe were illegal profits from the operation” (ibid.). He also implicitly acknowledged the problem for the litigants in suing their government and Chevron together: “It is not the responsibility of the communities that have been affected by the awful pollution to sue every bad player….” (ibid.). Even if the litigants had sued the Ecuadorian government, there was the question of who within the government was responsible, and whether one administration is responsible for awarding compensation for actions taken by previous administrations. Donziger also argued that: …you can’t discuss the position of a government with conflicting interest within it; so when you ask what is the position of the government, it is hard to describe. There are different tendencies in the government that move in different ways, and our goal is to make sure the government does not interfere with the private case, and they stay out of it. (interview, Steven Donziger, December 2017)

The Case against Environmental Lawyer Steven Donziger At this point, it is worthwhile to compare the unsuccessful outcome of the Chevron case from the point of view of the litigants, with the successful outcome of Sarayaku Kichwa lawsuit against the Ecuadorian government in 2012, Kichwa Indigenous People of Sarayaku vs Ecuador, for failing to

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comply with the clause of “consulta previa”—Free, Prior and Informed Consent (FPIC) under national and international law (Inter-American Court of Human Rights 2011) (see Chapter 4). Although Free Prior and Informed Consent (FPIC) is a core element of both the International Labour Organization’s Convention 169 of 1989 and of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) of 2007, the law appears to be applied differently according to whether private companies or states are involved, in that international laws may be binding on states, whereas non-adherence to the principles of international conventions, to which private companies adhere, on paper, cannot be sanctioned by means of penalties. The Sarayakans’ lawsuit was filed against one government, the Ecuadorian state. There was only one defendant therefore, with no concurrent litigation against a private company. Moreover, the case was taken to and judged in the Inter-American Court of Human Rights (IACtHR), which does not have jurisdiction over private companies (Melo Cevallos 2016), so the litigation against Chevron, in terms of the contending parties, would not have been accepted by the Inter-American Court of Human Rights on jurisdictional grounds. In the Chevron case, there were two possible defendants, Chevron/Texaco and the Ecuadorian government state oil company, recreated as PetroEcuador in 1989, but a decision was made not to prosecute the Ecuadorian government. There may have been other players attempting to exert influence, which may not ultimately have had a bearing on the case in question, but the existence of which, if there were truth in the allegations made by Steven Donziger, had implications for future prosecutions against private companies for environmental damage. Donziger claimed that Chevron was: constantly lobbying Ecuador officials to try to engage them in corrupt acts to kill off the legal claims of the private citizens. They have been doing [this] both in Ecuador and also in the US, where they have tried to lobby traders and Congress to cancel bilateral trade agreements with Ecuador, as a corporate punishment for letting the government of Ecuador to allow their private citizens to exercise their constitutional and legal rights to sue a foreign company. (interview, Steven Donziger, December 2017)

Even if no evidence were to be supplied to substantiate these allegations, the point raised by Donziger has some validity: governments such as that

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of Ecuador in conditions of dependency and debt have had to tailor their positions to attract foreign trade and investment. Tolerance of class action suits launched against private companies by indigenous communities or others might act as an unacceptable risk factor to would-be investors. Government policy, therefore, would be to discourage the activities of social and environmental movements that might create an obstacle to the operation of extractive industries. There are further elements to the case of Steven Donziger’s lawsuit against Chevron on behalf of the 30,000 Ecuadorian litigants that is relevant to indigenous and other peoples intending to prosecute multinational companies for violation of human and environmental rights in national courts. From 2011, Chevron filed a series of cases against Steven Donziger, including a US$33 million claim against Donziger himself in Chevron Corporation, Plaintiff, v. Steven Donziger, et al., Defendants (United States District Court Southern District of New York 2011, 2020), calculated on the basis of Chevron’s payments to their lawyers at Gibson, Dunn and Crutcher. The lead lawyer of the law firm, Randy Mastro, had been charging Chevron US$1,140 per hour in fees, and the firm billed Chevron for 36,837 hours’ work in 2014 (McRobert and Shay 2018). Chevron wished to recover most of the monies from Steven Donziger himself. Chevron’s personal claim against Donziger was almost as much as the US$40 million that Texaco paid for the inadequate clean-up operation in the Amazon. Chevron’s lawsuit against Donziger was accompanied by legal pursuit of his supporters, which was an example of a SLAPP (Strategic Lawsuit Against Public Participation), the purpose of which is not necessarily to win in court, but designed to “intimidate, harass, demonize, and bankrupt the weaker opponent”, according to Rex Weyler of Greenpeace who, in May 2018, described Chevron’s SLAPP suit as “perhaps the most vindictive SLAPP in history” (Weyler 2018), and also the most expensive (Marr 2017). Chevron’s SLAPP tactics included issuing subpoenas in the USA for emails from 57 of the Ecuadorians’ supporters, including a Boston hedge fund manager and from Rex Weyler himself. Additionally, Judge Kaplan allowed a SLAPP case against Secoya indigenous leader Javier Piaguaje and farmer Hugo Camacho, who were also involved in the case. SLAPP suits had been used for several years against individuals to intimidate NGOs and activists, and were viewed by the American Civil Liberties Union (ACLU) as a means for powerful entities to seek revenge

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against those who might damage their reputations (ACLU 2021). Chevron served subpoenas on Amazonwatch, Google, and Microsoft, in an attempt to track emails of 100 lawyers, students, and academics who supported the case against the company (Weyler 2018). Many jurisdictions have banned SLAPP suits (Weyler 2018), but large companies such as Chevron have the finances to pursue victims for a lifetime, as Chevron threatened to do with the Ecuadorian plaintiffs (Etchart 2018). By January 2020, Donziger had been disbarred from working as a lawyer in New York, had had his passport confiscated, and was under house arrest. From 6 August 2019, he was obliged to have an electronic monitoring device attached to his ankle. His bank accounts were frozen. These were unusual measures for a misdemeanour case (Lerner 2020, 2021). In what was described as a “virtually unprecedented” act by a judge, in July 2019 Judge Kaplan had appointed a private law firm, Seward and Kissel, to prosecute Steven Donziger for contempt of court—after the Southern District of New York court had refused to do so—for not having released under discovery orders information that Donziger claimed was protected under client privilege (Lerner 2020). Seward and Kissel had previously done work for Chevron (Milman 2021). When Donziger was still awaiting trial for contempt of court in February 2021, thirteen human rights and environmental organizations, including Amnesty International, Global Witness, Amazon Watch, and Rainforest Action Network sent a letter to the US Department of Justice, requesting a review of the case and of the unethical tactics used by Chevron against Steven Donziger. The letter was supported by 55 Nobel Laureates, hundreds of international lawyers, and members of the European parliament (Paz y Miño 2021). On 10 May 2021, the contempt of court charge against Donziger was heard by Judge Loretta Preska, who was on the advisory board of the New York Chapter of the Federalist Society, which had been involved in the decision to appoint Seward and Kissel to prosecute the case (Milman 2021). Judge Preska denied Donziger’s request for a jury and for a video of the trial to be streamed (Lerner 2021). Chevron was not directly involved in the contempt of court case, though witnesses for the prosecution included attorneys who had represented Chevron in litigation against Donziger. During the trial, Donziger’s lawyers’ objections were overruled, and the prosecution objections were upheld. One of Donziger’s lawyers, Martin Garbus, who

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in the past represented Nelson Mandela, Daniel Ellsberg, and César Chávez, described the case as “rigged” (Lerner 2021). While Donziger was awaiting a ruling on the case, Chevron was posting advertisements on Google announcing Donziger’s failed appeal: “Ad.www.chevron.com/: An end to his campaign to profit from the fraudulent Ecuadorian lawsuit” (Google advertisement 7 June 2021). Judge Preska sentenced Donziger to six months’ imprisonment on 1 October 2021 (Malo 2021a). The United Nations Working Group on Arbitrary Detention and Amnesty International immediately called for his release. Donziger was committed to the custody of the federal prison in Danbury, New York, on 27 October 2021 (Malo 2021b). Chevron’s SLAPP suit and media campaign against Steven Donziger amounted to a warning to those who might wish to embark upon class action suits against multinational companies: it was clear that Chevron was eager to avoid a precedent by which it might be liable for environmental damage in other parts of the world in which it operated. The Chevron case is significant in several ways. The litigation against the oil company began in 1993 at the dawn of the age of the internet. At the time, the power of indigenous communities was on the rise, but it was before the existence of social media, which later came to have significance for human rights cases. Social media channels have since enabled the emergence of a multitude equipped with new ways to defend themselves and construct their own narratives of particular events by uploading film footage on to media platforms where they can reach a global audience within hours, if not minutes. In the more than 25 years since the Chevron case began, the entire mediascape has been transformed in a way that has enabled anti-government protestors to mobilize and come out on to the streets where they have had an opportunity to attempt to hold governments to account by means of the use of their mobile phones connected to global social media platforms. In terms of dominating the discourse, however, the scale of the media response conducted by Chevron illustrates the significance of inequality of resources in media campaigns. Over and above Chevron’s convoluted and contradictory legal defence in the Donziger case, the ferocity with which Chevron mounted its media campaign against its detractors, the re-emergence of RICO (racketeering charges) in the USA, as well as the SLAPP injunctions against associates of litigators, provide an indicator of the level of fear created within Chevron by the campaign against its activities. It illustrates the importance of media representation and reputation for social movements, governments, and

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companies alike. The scale of the resources devoted to the attempts to destroy the personal reputation of the lawyer Steven Donziger created a meta-conflict that revolved around lawyers, a company’s reputation, and the effectiveness of environmental lobbying and litigation, not directly connected to reparation or restoration to mitigate environmental damage, which had ceased to be of concern to Donziger’s opponents.

Competing Interests on the Global Stage: Establishing Environmental Credentials While challenges to the actions of government and private industry through state legal systems had been ongoing from 1993 in the case of the Ecuadorian Amazonian plaintiffs’ case against Chevron/Texaco, which gradually took on a dimension of significance to global environmental governance, indigenous peoples of the Amazon continued to mobilize at a regional and intergovernmental level to defend their territories against commercial exploitation. It became evident that a number of indigenous representatives had been able to “jump scale” (Haarstad and Fløysand 2007: 290) or leapfrog levels of power in order to communicate directly, not only with the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), but also with United Nations representatives at the UN headquarters in New York, through whose involvement they were able to confront their own governments at the United Nations Permanent Forum on Indigenous Peoples (UNPFII), which is held in New York in April each year (see Chapter 1). The pervasive and overarching narrative presented by indigenous actors at global fora encompassed not only the quest to protect their land rights and their cultures, but also the goals of reducing climate change and the preservation of biodiversity, which correspond with the United Nations Sustainable Development Goal (SDG) number 13: “Take urgent action to combat climate change and its impacts in accordance with agreements made by the UNFCCC forum”, and Goal number 15: “Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification and halt and reverse land degradation, and halt biodiversity loss”, respectively. These objectives applied also, according to company websites and annual reports, to Chinese enterprises engaged in the extractive industries, including the Chinese state petroleum company Sinopec (Sinopec Group), which, significantly, in 2019 and 2020 was second on the list of the Fortune 500 companies in

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terms of revenue (US$414.649 billion in 2019 compared with Walmart’s US$524 billion), with profits of more than US$6 billion in 2021, up to August (Fortune 2021) in the pandemic recovery period. Sinopec’s wish, according to its Facebook pages in February 2018, among a number of other objectives, was “making the world a better place”—a global aspiration (Sinopec 2018). The significance of Sinopec was that they were one of the major players engaged in oil extraction in the Ecuadorian Amazon region under the name of Andes Petroleum Ecuador Ltd, which had operations in and around the Yasuní National Park (Dreher et al. 2017). The strapline for Andes Petroleum Ecuador’s website in 2021 was “Energy and the Environment in Harmony” (Andes Petroleum 2021). In the same period, between 2018 and 2021, indigenous communities were engaged in resisting those same activities in their territories in the Ecuadorian Amazon. They, too, employed social media, mainly Facebook, as a propaganda tool to promote their interests and to defend their actions in moral terms. On the Facebook pages of the Chinese companies, and those of indigenous organizations and individuals, a daily struggle to control the narrative was evident, one that paralleled the bitter competing campaigns of Chevron and its opponents, over a variety of media platforms. In the case of Chinese companies operating in southern Ecuador, Facebook was a forum through which companies such as the copper mining enterprise ExplorCobres in Panantza San Carlos, Morona Santiago province, advertised employment opportunities in 2018–2020 (ExplorCobres Facebook posts 2018–2021). In response, would-be employees of oil and mineral enterprises also used these Facebook pages as a means of seeking a job. Meanwhile, ExplorCobres used Facebook as a vehicle to communicate their activities to support local Shuar communities among whom they were operating, in the way of holiday workshops for children and the provisional of educational grants. The company also used its Facebook posts to make public rebuttals of indigenous protests that were launched against their activities. ExplorCobres posts on 19 September 2019 and 29 March 2020 denounced dynamite attacks on the plant. ExplorCobres employees were in turn invited by the company to post up their opinions on a range of issues. The apparently rare voices–the ones that appeared as comments on Facebook–that were critical of the company were allowed to remain on the sites, though it was not possible to ascertain the degree to which this was managed, or whether they were

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edited at all. On 20 June 2020, a (named) critic of the activities of ExplorCobres posted the following comment: “These enemies of nature conduct this campaign on the pretext of education, because it does not cost them anything… but they are taking the future away from us and our children” (author’s translation from Spanish).1 Facebook postings among indigenous communities who cross-posted among individuals and groups from 2018 to 2021 presented a discourse of ongoing struggle at a local level between those who wished to leave minerals and fossil fuels in the ground, and those who wished for their continued exploitation, according to their interests. Voices monitored— be they companies or indigenous groupings—claimed to wish to protect the environment and to combat climate change. The parties competed for the high ground in terms of upholding human rights and fulfilling community and indigenous aspirations.

Facebook as a Tool of Indigenous Resistance As the promotion of the indigenous philosophy of sumak kawsay gradually vanished from the Ecuadorian government’s agenda from 2013, with the demise of the ITT project to protect the Yasuní National Park from oil extraction (see Chapter 4), indigenous communities from the Amazon basin sought means to reinforce their collective attempts to protect their land rights. The Shuar and Sarayaku Kichwa, already among the most powerful of the indigenous groups resisting mineral extraction within their territories in Ecuador, strengthened their social media presence by setting up Facebook accounts for each of their members, as well as collective Facebook profiles. With the support of Amazonwatch in California, and environmental organizations in Ecuador, the Sarayaku Kichwa were able to build two websites as well as a presence on Facebook. One of the websites was entitled “Pueblo Originario Kichwa de Sarayaku” (Pueblo Originario Kichwa de Sarayaku 2020). The number of their followers expanded. Sarayaku Kichwa musician and film-maker Traya Muskuy (Eriberto) Gualinga had 1,909 friends by October 2018, increasing to 2,323 in March 2021 (Traya Muskuy Gualinga Facebook posts 2018–2020). Among his Facebook friends were numerous relatives, within the Kichwa Sarayaku community—and members of neighbouring indigenous communities, including the Shuar, who comprise around 40,000 people, and the Sápara, who also posted on Facebook (see Chapter 4). The Sápara

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had been placed on the Representative List of the Intangible Cultural Heritage of Humanity by UNESCO in 2003 (UNESCO 2020). The cultures of the Huaorani, Sápara, Sarayaku, and Shuar communities continued to be threatened by mining and oil drilling operations 2019– 2021. The Sarayaku retained good relations with their neighbouring Huaorani, Sápara, and Shuar communities in this period, collaborating with them at a local and international level at demonstrations, delegations, and conferences of indigenous peoples (see Chapter 4). In addition, Eriberto Gualinga of the Sarayaku was a Facebook friend of the group called “Afectados por Texaco”. The Sarayaku used Facebook and their website to promote their Kawsak Sacha (Living Forest) campaign to protect the rainforest, which was re-launched in Quito on 26 July 2018 (Sempertegui 2020). The Kawsak Sacha project was the indigenous organizations’ response to what they perceived as the failure of the government’s project of buen vivir (sumak kawsay) (Altmann 2017), devised under Ecuador’s National Development Plan for 2007–2010 of the National Secretariat of Planning and Development (SENPLADES). In the opinion of the indigenous organizations, SENPLADES had evolved into an institution dedicated to the promotion of mineral extraction in the name of development. Facebook data posted between 2018 and 2021 indicate inter- and intra-community solidarity, with social media providing a platform through which to mobilize joint activities among individuals, groups, and indigenous organizations, in forest areas that otherwise had poor communications. At the same time, Facebook postings revealed elements of discord among and within communities. Indigenous groups’ Facebook pages became a forum on which were aired ongoing struggles within the Shuar communities related to mines in both Morona Santiago and Zamora Chinchipe provinces. Conflicts among the Shuar around resource extraction reached the point of violent clashes, with serious injury being inflicted on 29 July 2018 (Brown 2017; Nathanson 2017; CEDHU 2018).

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Morona Santiago, Zamora Chínchipe, and the Shuar: Intra-Indigenous Community Conflicts The discursive battle between on the one hand, the government, and the extractive industries, and on the other, indigenous representatives resisting the operations of the mining companies, was played out across social media 2018–2019. Facebook postings in the period mentioned the death years earlier of the indigenous activist José Tendetza Antún, whose body was found one day before he was due to attend a Shuar meeting in November 2014. No official investigation was conducted, it was alleged in the postings. The Chinese mining company Ecuacorriente had filed a complaint against Tendetza Antún in February of that same year. He was expected to make a denunciation of Ecuacorriente at the International Criminal Tribunal for the Rights of Nature in Lima, Peru, on 5 December 2014: he died two weeks before he was due to travel to Peru (Watts 2014; Collyns 2015; Castro 2019). There were divisions within the community with regard to the Mirador mine, which provided employment: several of Tendetza Antún’s own family worked for Ecuacorriente. Despite evidence that might have led to prosecutions for the murder, it was left unresolved, and the case was closed (Leifsen et al. 2017; Castro 2019). Another example of tensions between those indigenous people who were in favour of mining and those who were against it is evidenced in the Facebook pages of the Chinese mining company ExplorCobres, which announced in 2018: Elvis Nantip, representing 502 Shuar communities, signed an agreement with Hu Jiandong, EXSA [ExplorCobres, a subsidiary of Ecuacorriente S.A.] executive president. The community has the right to be informed of the advantages and opportunities offered by the mine. (Facebook post, 20 May 2018)

On the Facebook pages of individual Shuar activists, a different story emerged: Domingo Ankwash, a Shuar leader and president of the Asociación Bomboiza, is leading the fight against proposed large scale mines in the Cordillera del Condor. Domingo Ankwash:

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“The government has given away land that is not theirs to give, and we have a duty to protect it. Where there is industrial mining, the rivers die and we lose our way of life. They want us to give up our traditions, work in the mines, and let them pollute our land. But we will give our lives to defend the land, because the end is the same for us either way”. “The world needs to know what is happening in Ecuador, because the destruction of the Condor will have effects for the Amazon, and what affects the Amazon affects the planet as a whole,” said Ankwash. “The world must understand the Condor is not an ordinary patch of jungle”. (Facebook post, 20 May 2018)

Similarly, Shuar leader Federico Presi Fenaship reacted negatively to the appearance of Elvis Nantip in Shuar headdress on ExplorCobres Facebook page in 2019. ExplorCobres’ Facebook page displayed a scan of the contract signed between the company and the Shuar people that featured the signature of Nantip himself. Fenaship referred to the “supposedly legitimate leadership of FICSH presided over by Nantip” (Facebook post, 19 March 2019). A Shuar leader at the UN Permanent Forum on Indigenous Issues (UNPFII) in New York on 25 April 2019 commented (anonymously) in an interview on the divisive policies of the Correa administration, which had resulted in the existence of two Shuar presidents at the same time: In these situations the organization divides when people offer more money. The company offers more money to someone who then says ‘I will continue to be the governor’… This has created a dispute which has divided the Shuar people… When Correa was president he created divisions among the indigenous organizations, among families, close families, between brothers and sisters, on political grounds.

Facebook postings indicating a social media struggle to control the narrative of extraction in the Amazon are supported by the scholarly literature. Wu (2019), in relation to the Achuar people in Ecuador/Peru border region, for example, noted that agents of extractive industries employed divide and conquer tactics with indigenous communities, with or without a paid firm to actively and deliberately create conflict. She cites the case of a Canadian mining company, Talisman, which used a strategy of separating out families and engaging individuals through material donations by which it secured consent from a small number of indigenous Achuar families, enough to claim that a consultation had been conducted and

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consent obtained. Talisman reported that it had spent US$3.7 million on medical facilities and satellite communications in the area in which it was operating. Divisions arose among the Sápara people also, with so-called consultations resulting in six oil contracts entitled “Social Investment Agreements for Sápara Territory”, signed with one person, Basilio Mucushigua, with a schedule of payments and benefits to the signatories valued at US$9,075,000, involving oil concessions to cover the entire Sápara territory on the Ecuador/Peru border (see Chapter 4). The contract was denounced by Kléver Ruiz, President of NASE (Nación Sápara del Ecuador—Sápara Nation of Ecuador)—on 22 February 2013, who commented: Mr. Basilio Mucushigua has signed a contract with the Secretary of Hydrocarbons on behalf of the Sápara Nationality even though he himself is not part of the Sápara Nation, a fact that undermines the legitimacy of the contract in question… A contract was signed between Basilio Mucushigua who is from the Andoa Nationality but purports to be the legal representative of the Sápara Nationality, and the Secretary of Hydrocarbons on behalf of the Sápara People, without having consulted the communities. [Mr. Mucushigua] was reelected with support from the Shiwiar and Achuar who live in our territory. (Interview with Kléver Ruíz, President of NASE, 22 February 2013 quoted in Ramos 2016: 8)

The same Social Investment Agreements were denounced by the Confederación de Nacionalidades Indígenas Amazónicas del Ecuador (CONFENIAE) [Confederation of Indigenous Amazonian Nationalities of Ecuador] who cited the “illegitimacy, illegality and unconstitutional character” of the “consultation” (ibid.: 8).

Resistance to Ecuadorian Government Contracts with Andes Petroleum Ecuador Ltd: The Role of CSR In 2016, when a US$80 million contract was signed for exploration and production in Blocks 79 and 83 between the Ecuadorian government and a consortium of Chinese companies that combined to form Andes Petroleum Ecuador Ltd, indigenous communities of Kichwa, Sápara, Shuar, Achuar, Shiwiar, and Huaorani together signed an open letter

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to the Ecuadorian Minister of Strategic Sectors and Hydrocarbons and the President of Andes Petroleum, declaring that the peoples affected were not consulted in accordance with the Constitution and international human rights law (Ramos, ibid.: 9–10). The signatories referred back to the ruling by the Inter-American Court of Human Rights (IACtHR) in 2012 in favour of the Sarayaku Kichwa people who had not been consulted prior to oil exploration and the placing of dynamite (used for oil prospecting) on their territory. The letter referred to the Cuchiyacu community of indigenous people living within Block 83 as indicated by a map provided to the National Assembly by the Ministry of Justice, according to the signatories. The letter reminded the government ministers and the consortium that it was illegal under the Ecuadorian Constitution of 2008 for extractive industries to operate in the territories of Indigenous Peoples living in Voluntary Isolation, such as the Cuchiyacu, and that, furthermore, Block 83 intersected with the Yasuní National Park and was within territory occupied by the Tagaeri and Taromenane peoples, who also live in voluntary isolation (Ramos, ibid: 13). As these and other disputes ensued, Andes Petroleum Ecuador Ltd, on their website (2018–2020), declared that “Our corporate conduct is defined by equality and transparency, and absolute respect for the State, our shareholders, our employees as well as our neighbors, and the indigenous and settler communities in the Oriente”. The company’s commitments included to “Recognize the concerns of stakeholders on EHS-CA [Environment, Health & Safety and Community Affairs management] matters through consultation; provide them with relevant information related to Company’ policies and practices, in an ethical manner” (Andes Petroleum 2018). Importantly, their first commitment was to “Comply with applicable Ecuadorian legislation, regulations and guidelines on Environment, Health and Safety and Community Affairs, as well as other commitments signed by the Company”. Furthermore, the company website announced that “With this same vision, we sponsor several vulnerable sectors of society. Our contribution is channelled through organizations known for their transparent and efficient work in these sectors. We have developed programs for young people in education, health and wellbeing, aimed at preserving the environment and community development”. However, the Sinopec website from 2018 to 2020 referred to oil Blocks 14 and 17 in the province of Orellana and Pastaza, but did not mention Blocks 79 and 83, parts of which were superimposed over Sápara

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and Sarayaku Kichwa territory and which threatened the Tagaere and Taromenane peoples living in voluntary isolation. Indigenous resistance to the exploitation of Blocks 79 and 83, with support provided by NGOs, continued over a three year period until the Ecuadorian government, in October 2019, conceded that the Block 79 project could not go ahead. The Ministry of Energy and NonRenewable Natural Resources issued a resolution on 10 October 2019 granting a force majeure request by Andes Petroleum Ltd Ecuador, consequent upon the “resistance and social and political opposition” of indigenous peoples potentially affected by the project. The information was made public on 6 November 2019 (Amazonwatch 2019). The successful outcome of three years of lobbying, on the part of the indigenous peoples themselves and the NGOs supporting them, indicated that despite the rights of indigenous peoples and the rights of nature having been incorporated into Ecuador’s constitution in 2008, including the right to Free, Prior and Informed Consent (FPIC), these appear to have been ignored when the contracts for Blocks 79 and 83 were initially signed. Andes Petroleum’s website had expressly stated that they were following the country’s laws and protocols, thereby absolving themselves of responsibility by, in effect, pre-empting potential obstacles. The length of time, energy, and resources required to secure the withdrawal of Andes Petroleum from Block 79 demonstrates the challenges facing those local and global citizens who wish to protect areas designated by UNESCO as biosphere reserves, such as is the case of the Yasuní National Park. It is indicative of both the weakness of governments in their attempts to comply with treaty obligations and the weakness of UN institutions to exert pressure on countries to do so. Moreover, the case reveals the vulnerability of both those affected peoples who can speak for themselves, and those who cannot, such as the Tagaeri and Taromenane communities living in voluntary isolation. Even in countries with strong safeguards and prior rulings against them by international tribunals, such as by the Inter-American Court of Human Rights (IACtHR), these rights have often not been respected. At the same time, successful indigenous campaigns of resistance against the operations of extractive industries also highlight the power of collaborations among indigenous peoples and (I)NGOs, and their ability to generate pressure on governments to comply with international obligations (see Chapter 4). The moratorium on extractive operations within Block 79 was not the first time that resistance to extractive projects forced

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withdrawal of Chinese consortia, which has potentially both positive and negative implications for government economic planning. The case was likely to affect the approach to ongoing projects on the part of governments and private companies seeking to secure consent for extractive operations in culturally and environmentally sensitive areas, if not their actions in practice. Past examples demonstrate the risks to indigenous and environmental rights inherent in state or private attempts to obtain Free, Prior and Informed Consent (FPIC) from a community. These risks apply independently of the merits of projects or the benefits potentially accruing to stakeholders involved. As we have seen, not least among these are the choices made as to who the stakeholders are, who decides to portray themselves as representing stakeholders, and how representatives are chosen—or not—by those they claim to represent. Mis-use of the practice of consulting local people before embarking on extractive activities and the use of Corporate Social Responsibility (CSR)2 programmes as “force multipliers” have been documented from the beginning of the twenty-first century (Sawyer and Gómez 2008; Dunlap 2017; Ofrias 2017b; Wu 2019). In their report for United Nations Research Institute for Social Development (UNRISD) in 2008, for example, Sawyer and Gómez claimed that Corporate Social Responsibility (CSR) programmes were being used to serve the interests of corporations and the state in which they were operational: the authors argued that CSR was in some cases functioning as a means to control and discipline populations, bringing them into the orbit of state administration, and providing communities with goods and services that they may have needed, required, or demanded, or which the government deemed beneficial to them. Their assessment is supported by Ofrias (2017b), and Billo (2012: 221,223), who cites the draw of income and jobs to secure consent: “CSR programs emerged, in part, as a way for the state to control indigenous protests, imposing its will, rather than following indigenous peoples’ [will]… The corporation operates as a trustee, and claims to know what is best for indigenous populations”. Hence, although on the surface CSR programmes may have appeared benign and were presented on company websites as altruistic, they may have been part of a strategy to enhance the power of state and private enterprise over resources and over populations who lived in areas where those resources were located and where opposition from local people was anticipated.

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Dunlap argues that corporations also have an important role in providing justification for governments to use military force to secure their operations and for quelling anti-government resistance, claiming that multinational corporations, through Environmental Impact Assessments (EIAs) and CSR programmes, provide indirect counterinsurgency strategies (Dunlap 2017: 484). Evidence of the militarization of Sápara territory in the Ecuadorian Amazon was provided in the report on the Social Investment Agreement with the Sápara by Ivonne Ramos (2016: 15–16). Large corporations have enjoyed the influence, knowledge, technology, and resources that have enabled them to establish themselves as the authority to decide what they consider appropriate for local populations in consideration of the state’s inability or unwillingness to extend its reach into areas with few routes of communication. By cooperating with the state in contributing to or replacing state provision of public services, the corporation has been able to authenticate its power and influence (Billo 2012), and legitimate its activities. Each bestows legitimacy on the other.

Dangers Surrounding Environmental Impact Assessments As has been demonstrated, global media attention on the responsibilities of governments and of private companies to protect the environment has concentrated on the Amazon basin, which incorporates the Ecuadorian provinces of Sucumbíos, Orellana, Napo, Morona Santiago, Zamora Chinchipe, and Pastaza. The high profile of the class action lawsuit against Chevron from 1993 to 2021, which involved both contamination of the environment and alleged violation of the rights of indigenous peoples, and a number of other prosecutions in the intervening years, during which a series of international agreements have been adopted and ratified, have alerted companies in the extractive sector to the need to comply with national and international law in their operations with regard to human rights and the environment. One of the policymaking consequences of the design and implementation of national and international law with regard to the rights of nature and of indigenous peoples is illustrated by the Environmental Impact Assessment (EIA) conducted by Malacatus Consulting and Training, Quito, for Andes Petroleum Ecuador Ltd, which was completed in 2019 and published in 2020 (Andes Petroleum/Malacatus 2020). The purpose

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of the Environmental Impact Assessment and Management Plan appears to have been to ensure that the Drilling of Six Exploratory Wells at Platform KUPI D, in Orellana Province, in Block 14, complied with state and international law (ibid.). Within its 999 pages, which comprises a detailed study of water sources (the Tiputini River runs into the Marañon, which joins the Amazon River in Peru), vegetation, and fauna of the area, as well as of plans for ongoing work, the EIA contains references to harmony with nature, sumak kawsay, and consultation with indigenous inhabitants of the area. The original licence for the operation of Andes Petroleum was granted in 2010, when work began and an access road was built. The Environmental Impact Assessment is therefore mostly post hoc, in that it is likely that some of the damage caused to the environment as a result of the company’s activities, such as the construction of an access road, was already evident when the study was conducted. The Andes Petroleum/Malacatus EIA (2020) acknowledges the dangers of contamination of water sources from petroleum extraction (Chapter III: 51) and the pressures on forest fauna in the forest canopy and on the ground. It also states that deforestation and the construction of roads have reduced habitat and caused outmigration of species (Chapter III: 122.). The report includes citations from scientific studies that attribute the extinction of species, damage to ecosystems as well as climate change, to road construction. Despite this, one of the EIA’s conclusions is that the area under examination has been preserved, and the forest cover maintained, despite the construction of roads, and that the pressure on hunting game has not been “intense” (Chapter III: 184). This is despite a number of photographs featured in the report showing deforestation and evidence of fresh road construction or expansion in 2019 (Chapter II: 73–74). The report includes details of a consultation with indigenous representatives of mainly Kichwa families, but there were also individuals of Waorani (Huaorani), Shuar, and Sápara nationality (Chapter 3: 318). The Rio [River] Tiputini community cited was comprised of 165 people of three communities, so the numbers were small. All of those who were consulted, in the 20 de Octubre community, were named in the report (p. 351). The results given were as follows: 50% declared that they were against oil exploitation in their territory. This figure was qualified, in that the report (illustrated by a pie chart) indicated that 54% stated that they thought that contamination (from oil drilling) was a problem. According to the survey, only 4% were concerned

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with the flora and fauna in the area. Then, when the same group were asked about what they perceived to be the benefits of oil exploitation, 13% identified infrastructure, 48% road construction, and 26% employment. Those who thought there were no benefits at all constituted 13%. Those who declined to answer (29%) were considered as neutral, that is, not having an opinion. The report also describes in detail the local community’s ailments and medical treatment at the local health centre. Despite the interviewees’ negative view of oil extraction in the forest, the conclusion drawn from the consultation for the purposes of the EIA was that the project had the approval of the local community and that therefore it complied with state and international law in terms of prior consultation. From the interviews with representatives of institutions, local government, and community leaders in the area, the report stated, it was concluded that overall, there was a positive response, mainly as a result of the advantage to local people of improvement in the access road to the well (Pozo [Well] Kupi D), and the potential for employment. The interpretation appeared to be that the negative view of the oil industry was a result of environmental contamination and the failure of the company to fulfil commitments made in its initial project proposal, which carried the implication that this could be remedied, thereby satisfying the naysayers (Chapter III: 352). Chapter 4 of the EIA listed the project’s compliance with articles of the Ecuadorian Constitution, namely 3, 12, 14, 15, 57, 71, 72, 73, 74, 317, 318, 323, 395, 396, 398, 406, 407, 411, 425 (Chapter 4, Section 2: 5–9). Under Ecuadorian Constitution Article 14, the right of the population to live in a healthy and ecologically balanced environment that guarantees sustainability and the good way of living (sumak kawsay) is recognized. Moreover, under Article 57.7, there is a right “To free prior informed consultation, within a reasonable period of time, on the plans and programs for prospecting, producing and marketing nonrenewable resources located on their lands and which could have an environmental or cultural impact on them; to participate in the profits earned from these projects and to receive compensation for social, cultural and environmental damages caused to them. The consultation that must be conducted by the competent authorities shall be mandatory and in due time”. The EIA (Chapter 4: 12–20) cites the project’s compliance with sixteen international conventions, including 1979 CITES Convention (Convention on International Trade in Endangered Species of Wild Fauna and

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Flora, also known as the Washington Convention), ILO Convention 169 (1989) that refers to the rights of indigenous peoples to Free, Prior and Informed Consent, United Nations Framework Convention on Climate Change (UNFCCC), adopted 9 May 1992, the Convention on Biological Diversity (CBD) of 1993 (p. 15), the 1998 Rotterdam Convention on hazardous chemicals and the Paris Climate Agreement of 2015–2016. The detailed study of the area’s ecosystem, the assessment of the environmental impact of the existing roads and oil well, and the consultation with affected stakeholders, together with the comprehensive list of local and international laws with which compliance had apparently been ensured, are an indication of the pressure on multinational companies to be seen to be acting within the law and conforming to international norms. The EIA also highlights the mechanisms by which extractive industries are able to continue to operate in areas where their activities threaten the integrity of old-growth tropical forests with high levels of biodiversity. The plight of the indigenous people consulted within the framework of an Environmental Impact Assessment (EIA), for the purposes of fulfilling obligations pertaining to the securing of Free, Prior and Informed Consent, in this case, illustrates the fragility of indigenous lives and cultures when individuals are offered economic and social benefits provided by extractive industries operating in their territories, a point made by Palast in 2011 with reference to the Exxon Valdez tanker oil spill in 1989 (Palast 2011). It also highlights the vulnerability of ecosystems on which indigenous communities have traditionally depended when decisions of immense importance to the planet are contingent upon a very small group of individuals who may feel pressured to accede to demands made by people in authority. This places an unacceptable burden of responsibility on all concerned. The fact that 50% of those consulted stated that they were against oil drilling in the particular circumstances in which they were interviewed, presents a picture where complex issues have been reduced to “yes” or “no” answers, and where “nature” itself cannot be consulted.

Struggles Over the Implementation of Free Prior and Informed Consent (FPIC) As has been evidenced, the concept of Free Prior and Informed Consent may not necessarily over the long term be advantageous for those it was

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designed to benefit, and may lead to deforestation, contamination of water sources, loss of biodiversity, damage to ecosystems, and possibly to greater climate change. Evidence gathered in Ecuador and elsewhere from 2007 onwards (see Sawyer and Gómez 2008) demonstrates that FPIC, when used in association with financial incentives, can also promote social fragmentation by using public consultations as platforms to legitimize controversial development and extractive projects. With regard to the activities of mining and oil extractive industries in the Amazon region, Chinese companies were able to demonstrate through their Environment Impact Assessments and Facebook pages that they had complied with the requirements of Free Prior and Informed Consent (FPIC) within the UNDRIP to which their government was a signatory, while the means by which the companies were able to secure that consent was open to question, as illustrated by the examples given earlier, and supported by studies in Ecuador and Peru conducted by Wen Yuan Wu (2019). Inadequate preparation, design, and attempted implementation of the process of Free, Prior and Informed Consent are further illustrated by the outcome of litigation that was taken against the Ecuadorian government by Huaorani plaintiffs in 2019, for what they considered as the failure to conduct adequate FPIC consultations in 2012 prior to the sale of concessions for oil drilling on half a million acres of Huaorani territory. Led by Nemonte Nenquimo, and with the support of Ecuador’s Ombudsman, the Huaorani filed a suit against the government in the provincial court in Pastaza in February 2019. On 29 April 2019, a panel of three judges declared that the 2012 consultation was void, and ruled that the consultation with the Huaorani would have to be repeated. Further auctioning of land for oil drilling on Huaorani territory was suspended (Anderson 2019; Riederer 2019). The judges referred to failings in the design and implementation of the consultation, bad faith in the negotiations, and “false reporting in compliance, unintelligible communications, grossly insufficient time allocation, unaddressed complexities of translation, and poorly crafted informatics materials” (Anderson 2019). Importantly, the three judges commented that the government “disregarded the Huaorani’s traditional governance and decision-making practices”; excluded their traditional elder leaders; and failed to provide an opportunity for collective decisionmaking (Anderson 2019). This example of the misuse of the application of the concept and law of FPIC illustrates the risks involved with the implementation of the law even without the offer of sweeteners in the form of

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financial incentives or the promise of essential services. It is notable also that with regard to the Environmental Impact Assessment conducted for Andes Petroleum in 2019 (Andes Petroleum/Malacatus 2020), in view of the majority of the local people affected being Kichwa, a recommendation was made for “culturally appropriate” consultations with Kichwa community leaders, in both Spanish and Kichwa languages (Andes Petroleum 2020). In the Huaorani case decided in 2019, the initial consultation had been conducted in 2012, before the elaboration of a more rigorous consultation process. In the Ecuadorian judges’ decision that the consultation process be repeated, they referred to both national and international law. They also made a requirement that the Ministry of Energy and NonRenewable Resources and the Ministry of the Environment train government officials in the application of FPIC and rights of self-determination before conducting a second consultation (Anderson 2019). The successful outcome of the Huaorani case, to date, from the point of view of the Huaorani, was regarded as a precedent that bode well for other indigenous communities in the Ecuadorian Amazon resisting mineral extraction on their territories. On the other hand, it was unlikely to have been merely the result of a wise ruling by three independent judges on the case and may have been connected with an expanding history of successful prosecutions defending the rights of indigenous peoples under international law that have been recorded and disseminated in the press and on social media. Mitch Anderson of Amazon Frontlines (2019), for example, drew attention to the global digital campaign waged by the Huaorani litigants and their NGO supporters, who included Mr Anderson himself, which may have exerted influence over the Ecuadorian court’s decision. It is notable that the Huaorani had been able to secure the support of 50 environmental and human rights organizations, who had published an open letter calling on the Ecuadorian judiciary to respect national and international law. A petition was drawn up with 110,000 signatures, and 30,000 people sent emails to the Ecuadorian President (Anderson 2019). The way in which the Andes Petroleum/Malacatus EIA of 2020 was conducted, and the (temporary) halting of the expansion of the extractive frontier in the Huaorani case of 2019, which may have been influenced by global social media campaigns, suggest that without the support of international NGOs and provisions under international law, indigenous peoples may have had limited chances of upholding their rights

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of control over their territories. Ultimately, there is a degree of chance, and successful prosecutions depend on a number of factors, including the willingness of particular governments to recognize and comply with international law and to take seriously the power of global environmental campaigns. Key also are the professionalism, skill, and integrity of lawyers and judges who take on such cases (Carnwath 2019). Global communications are essential for both the institutionalization and application of international law, as well as for human rights and environmental campaigns within and outside United Nations agencies.

Conclusion The evidence provided in this chapter would suggest that despite progress in the design, elaboration, and acceptance of international environmental law, as well as of declarations to protect indigenous rights, implemented through the adoption and ratification of United Nations conventions and treaties, the realization of the principles enshrined in the laws and declarations has often been less than satisfactory. Lessons have been learned on both sides, moreover, such that it can be seen that the more comprehensive, detailed, and numerous the international declarations, conventions and treaties, the more adept governments and private companies have become in finding ways to circumvent the spirit of those conventions and use them to the disadvantage of the rights of nature, as well as to create internal conflicts with regard to indigenous aspirations for autonomy and self-determination.

Notes 1. “Siguen asiedo campaña en pretestos de educasion estos enemigos de la naturalesa porqe no les cuentan loque isieron y lo q siguen asiendo en tudayme porque no le dan usyedes las fincas par ellos a ber si les gusta loque ellos asen claro como ustedes nada pierden pero nosotos y nuestros hijos acaba n el futuro” [sic] (ExplorCobres Facebook post, 30 June 2020). 2. “Corporate Social Responsibility is a management concept whereby companies integrate social and environmental concerns in their business operations and interactions with their stakeholders. CSR is generally understood as being the way through which a company achieves a balance of economic, environmental and social imperatives … while at the same time addressing the expectations of shareholders and stakeholders” (United Nations Industrial Development Organization [UNIDO]). https://www.

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unido.org/our-focus/advancing-economic-competitiveness/competitivetrade-capacities-and-corporate-responsibility/corporate-social-responsib ility-market-integration/what-csr. Accessed 9 March 2021.

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Brown, Kimberley. 2017. “Indigenous Leaders Denounce Ecuadorian Government Over Mining Conflicts.” https://amazonwatch.org/news/2017/0313indigenous-leaders-denounce-ecuadorian-government-over-mining-conflicts. Accessed 13 March 2017. Burke, Josh. 2017. “When Forum Non Conveniens Fails: The Enforcement of Judgments in Foreign Courts Obtained After Forum Non Conveniens Dismissal in the United States.” Review of Litigation 36 (1): 248–272. Carnwath, Robert, Lord, Justice of the Supreme Court. (2019). “Human Rights and the Environment.” Institute of International and European Affairs, Dublin. 20 June 2019. https://www.supremecourt.uk/docs/speech-190620. pdf. Castro, Mayuri. 2019. “El secreto que la mina se tragó.” 30 October. Cinco años después nadie sabe quién mató a José Tendetza. https://gk.city/. Accessed 9 March 2021. CEDHU see Comisión Ecuménica de Derechos Humanos. Cepek, Michael L. 2018. Life in Oil: Cofan Survival in the Petroleum Fields of Amazonia. Austin: University of Texas Press. Chevron. 2009. “Petroecuador Responsible for Oil Field Infrastructure.” The Amazon Post, 5 November. http://theamazonpost.com/fact-sheet/ facts-behind-the-environmental-claims-against-chevron-in-ecuador. Accessed 30 August 2018. Chevron. 2018. “Ecuador Lawsuit: The Facts About Chevron and Texaco in Ecuador.” https://www.texaco.com/ecuador/en/responsetoclaims/default. aspx. Accessed 18 January 2018. Collyns, Dan. 2015. “Was This Indigenous Leader Killed Because He Fought to Save Ecuador’s Land?” Guardian, 2 June. Accessed 9 March 2021. Comisión Ecuménica de Derechos Humanos (CEDHU). 2018. “Mining Creates Serious Clashes Amongst Shuar Indigenous Community.” 2 July. https:// www.business-humanrights.org/en/ecuador-two-shuar-indigenous-leadersopposing-mining-were-wounded-in-clashes-with-communities. Accessed 14 May 2020. Court Listener. 2011. Chevron Corp. v. Donziger, 800 F. Supp. 2d 484 (S.D.N.Y. 2011). Crasson, Audrey. 2017. “The Need for an International Crime Against the Environment.” Amsterdam Law Forum 9 (3): 29–48. Deva, Surya, and David Bilchitz. 2013. Human Rights Obligations of Business: Beyond Corporate Responsibility. Cambridge: Cambridge University Press. District Court, S.D. [Southern District] New York. 15 April. Chevron Corp. v. Donziger, 800 F. Supp. 2d 484—https://www.courtlistener.com/. Accessed 15 April 2021. Donziger, Steven, Interview, 26 December 2017.

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CHAPTER 6

Biodiversity, Global Governance of the Environment, and Indigenous Peoples

The Convention on Biological Diversity (CBD): A Force-Multiplier for the Extractive Industries? In view of the interests, national or personal, of governments and their stakeholders, moral hazards arise out of the pressure on governments to sign treaties and conventions in the interests of human or environmental rights. In a twist that is similar to the ways in which the Free, Prior, and Informed Consent (FPIC) clauses that were contained within both International Labour Organization (ILO) Convention 169 of 1989 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007, have provided a legal underpinning for extractive contracts, the United Nations Convention on Biological Diversity (CBD) has created opportunities for governments to legitimize oil and mineral extraction by means of their own biodiversity legislation that was drafted and ratified in accordance with international agreements. The CBD, which entered into force in 1993, and to which 196 countries were party in 2020, is the international agreement “responsible for conservation and sustainable use of biodiversity and the equitable sharing of benefits” (Convention on Biological Diversity [CBD] 2020a). It was dedicated to promoting sustainable development, with three main objectives: (a) the conservation of biological diversity (all ecosystems, species, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6_6

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and genetic resources); (b) the sustainable use of the components of biological diversity; and (c) the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, notably those destined for commercial use (ibid.) (CBD 2020a). The adoption of the CBD that was opened for signature on 5 June 1992 at the United Nations Conference on Environment and Development (UNCED) marked one of the first occasions where conservation of biological diversity was recognized as being relevant to development. There was an acknowledgement that ecosystems, species, and genes brought environmental, economic, and social benefits, such that conservation of the environment carried with it commercial opportunities: hence the evolution of the concept of the value of environmental services that hitherto had not been integrated into economic theory (Anderson in Anderson, ed., 2018). It could be argued that this process is part of an overall strategy to monetize nature, for good or ill (Kenner 2018). At the tenth meeting of the Conference of the Parties (COP) to the Convention on Biodiversity, in Nagoya, Aichi Prefecture, Japan, in 2010, a revised and updated Strategic Plan for Biodiversity for 2011– 2020 was adopted, one that created a framework on biodiversity for the United Nations system and other institutions engaged in biodiversity management and policy development (CBD 2020a). The significance of this for the present research was that the Strategic Plan for Biodiversity included a reference to the role of indigenous peoples. The Strategic Plan included the Aichi Targets,1 number 18 of which related to the role of indigenous peoples in protecting biodiversity (CBD 2020b). On 9 August 2019, Executive Secretary of the Convention on Biological Diversity Dr Cristiana Pa¸sca Palmer announced on the International Day of the World’s Indigenous Peoples at the UN in New York, that the CBD: “… provides the clearest recognition of the links between traditional knowledge and biodiversity conservation through obligations on the 196 Parties to the Convention to: respect, preserve and maintain knowledge, innovations and practices of indigenous peoples and local communities” (Pa¸sca Palmer 2019: 3). There is a proviso within the CBD, however, that is consistent with other UN targets and treaties, that while traditional knowledge and practices are respected, the objectives of treaties are subject to “national legislation” as well as “relevant international obligations”. Hence there is a danger that state interests may override community or international interests.

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IPBES Global Assessment on Biodiversity and Ecosystem Services The IPBES (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services) “Global Assessment on Biodiversity and Ecosystem Services” (Fa et al. 2020) that was being finalized through 2019 and the CBD Global Biodiversity Outlook 5 published in 2020 in collaboration with the United Nations Environment Programme (Convention on Biological Diversity [CBD] 2020c) recognized the contribution of indigenous peoples and local communities (IPLCs), to protecting biodiversity, as had previously the Convention on Biological Diversity (CBD) of 1992. As with other international instruments and treaties, one of the ways in which governments have been able to avoid compliance with the CBD is to claim exemption from clauses which are held to be contrary to constitutions and national customs or laws. Moreover, the weight and approval given to national accountability mechanisms submitted to international organizations, in practice, in the case of environmental law, effectively provide a veneer of institutional endorsement for activities that might otherwise be considered damaging to ecosystems, such as deforestation and mineral extraction in protected areas. Thus, the Convention of Biological Diversity (CBD), at the state level in Ecuador, has worked in a manner that is similar to International Labour Organization (ILO) Convention 169 of 1989 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 (see Chapter 5), in that advantage has been taken of clauses within the government’s National Strategy of Biodiversity 2015–2030 that are contradictory. Where state economic or, in the case of the CBD, “strategic” interests are at stake, as are determined by the government, those interests can take precedence over indigenous interests or environmental protection. The Ecuadorian government’s National Biodiversity Strategy 2015– 2030, created to comply with obligations under the Convention on Biological Diversity (CBD), contains several clauses—including reference to Article 313 of the constitution—which in effect institutionalize the government’s rights over the subsoil in areas of high biodiversity that have been designated as national parks. This has enabled the government to continue to follow policies of mineral extraction (Ecuador 2015) on

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the grounds that Article 313 of the Constitution cited in the National Strategy for Biodiversity designates biodiversity as a strategic sector: Strategic sectors, which come under the decision making and exclusive control of the State, are those that, due to their importance and size, exert a decisive economic, social, political or environmental impact and must be aimed at ensuring the full exercise of rights and the general welfare of society. The following are considered strategic sectors: energy in all its forms, telecommunications, non-renewable natural resources, oil and gas transport and refining, biodiversity … as established by law.

Similarly, in the case of indigenous rights to ancestral territories, their legal right to exercise control over their environment is equally constrained by the Constitution in terms of the interests of “strategic sectors”, such as that of energy and mining. Ecuador’s National Biodiversity Strategy (2015–2030) refers back to the country’s Strategic Plan for Biodiversity (2011–2020) and its Aichi Targets, the rights of nature encoded in the Constitution, and National Development Plan Objective 7 which aims to “guarantee the rights of nature and promote territorial and global environmental sustainability”. The National Biodiversity Strategy refers to the Ecuadorian Constitution, Article 395: 4, which ostensibly assigns precedence to nature over other sectors: “In the event of doubt about the scope of legal provisions for environmental issues, it is the most favorable interpretation of their effective force for the protection of nature that shall prevail [their English translation]”. On the surface, this suggests that environmental protection is to be given precedence over other legal stipulations. The Constitution, Section 2, Article 14, also invests the people with the right to live in “harmony with nature”, in accordance with sumak kawsay, which they phrase [in their English translation] as the right to “the good way of living”, described as follows: The right of the population to live in a healthy and ecologically balanced environment that guarantees sustainability and the good way of living [their translation] (sumak kawsay), is recognized … Environmental conservation, the protection of ecosystems, biodiversity and the integrity of the country’s genetic assets, the prevention of environmental damage, and the recovery of degraded natural spaces are declared matters of public interest.

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Yet the Ecuadorian National Biodiversity Strategy established the state’s absolute sovereignty over nature: it contains caveats that give the government the right to make decisions according to strategic interests of the state. So, although the Constitution “affords an important role to biodiversity and the country’s genetic heritage” (p. 34) it claims them as natural resources that are the “inalienable, imprescriptible and unseizable property of the state” although their use has to be “in strict accordance with the environmental principles established by the Constitution, Article 408” (ibid.: 34). This cuts both ways, in that while it affords absolute power to the state in the area of biodiversity—rather than, say, to indigenous communities in a plurinational state or to any other organization or enterprise—which could be positive or negative—it also gives space for interpretation. The document refers to one of the elements in Article 400 of the Constitution that rules that decisions must be made in accordance with “generational responsibility”, that is, taking into account the interests of future generations (ibid.: 34). With regard to the ecosystem of the Amazon region, page 34 of the National Strategy refers back to Article 259 of the Constitution, which devolves some power to local government, but only in association with the central state: “With the aim of safeguarding the biodiversity of the Amazon ecosystem, the central State and decentralized autonomous governments shall adopt sustainable development policies which shall also offset disparities in their development and consolidate sovereignty”. It is not clear here to whose sovereignty the article is referring, except that on the same page reference is made back to Article 261 no 11 of the Constitution, which “establishes that the State has exclusive rights over biodiversity” (p. 35). Page 35 of the National Strategy establishes clearly and unambiguously that the state has the last say over and above the wishes of local communities in case there are any questions arising from clauses in the Constitution: Article 405 establishes that The national system of protected areas shall guarantee the conservation of biodiversity and the maintenance of ecological functions…The system shall be comprised of state, decentralized autonomous, community and private subsystems, and it shall be directed and regulated by the State. The State shall allocate the financial resources needed to ensure the system’s financial sustainability and shall foster the participation of the communities, peoples,

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and nations who have their ancestral dwelling places in the protected areas in their administration and management.

In effect, although it appears that the National Strategy was designed in such a way as to reinforce the articles of the Constitution that give some autonomy, in the form of self-government, to the indigenous communities, it actually does not give them power to prevent the extraction of minerals from their lands. Article 57, clause 7, of the Constitution, with regard to Free, Prior, and Informed Consent (FPIC), translated as “free prior informed consultation” in the official English translation of the Constitution, ends with an ambiguous statement, that “If consent of the consulted community is not obtained, steps provided for by the Constitution and the law shall be taken”. The answer to the question as to what “steps” these might be, is found in Article 407 of the Constitution, which establishes clearly that the government (with or without a referendum of the citizenry) will ultimately make decisions with regard to the extraction of non-renewable resources in protected areas: Article 407. Activities for the extraction of non-renewable natural resources are forbidden in protected areas and in areas declared intangible assets, including forestry production. Exceptionally, these resources can be tapped at the substantiated request of the President of the Republic and after a declaration of national interest issued by the National Assembly, which can, if it deems it advisable, convene a referendum. (official English translation)

These carefully worded articles, in both the Constitution and the National Biodiversity Strategy, therefore, while appearing to protect indigenous rights, actually enable these rights to be overturned when the government chooses. With regard to biodiversity, Article 57.8 of the Constitution, again, both gives and takes away the power of the indigenous communities: “To keep and promote their [the indigenous peoples’] practices of managing biodiversity and their natural environment. The State shall establish and implement programs with the participation of the community to ensure the conservation and sustainable use of biodiversity”. The National Strategy for Biodiversity (p. 36), by referring back to the Constitution, both reinforces the provisions of these articles and extends them to remove any ambiguities. In case there were any doubt with

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regard to the level of the participation in the administration and management of the protected areas on the part of the communities, peoples, and nations who have their ancestral dwelling places in those areas, the National Strategy adds that “It is clear, therefore, that the central state will make decisions with regard to the control of the protected areas”. What emerges from the interrogation of the small print of both the Constitution and the National Biodiversity Strategy is that they conform to the pattern set by ILO Convention 169 and FPIC under the UNDRIP of 2007, that rights are granted to indigenous communities unless their decisions do not correspond with the interests of the state or state officials in the sphere of the economy. The only exception appears to be the rights of indigenous peoples living in voluntary isolation, who are also protected under Article 57 of the constitution: The territories of the peoples living in voluntary isolation are an irreducible and intangible ancestral possession and all forms of extractive activities shall be forbidden there. The State shall adopt measures to guarantee their lives, enforce respect for self-determination and the will to remain in isolation and to ensure observance of their rights. The violation of these rights shall constitute a crime of ethnocide, which shall be classified as such by law.

The difficulty here is that the extractive industries from 2016 onwards moved their operations deep into protected areas of the Ecuadorian Amazon where isolated groups of connected indigenous peoples as well as operatives of oil companies reported signs and sightings of groups living in voluntary isolation. As the roads were being extended into the Yasuní National Park, as was ascertained by eye witnesses and satellite images, the isolation of those groups was considered likely to be short-lived (Southgate et al. 2009; Espinosa et al. 2014). Kimerling (2006: 461) noted that “By the time Texaco handed over the operations to PetroEcuador in 1990, the area was so degraded by pollution and deforestation from the operations and colonization along the company’s road that the Tagaeri [an isolated group who had been hiding in the forest for 30 years] could no longer live there and were not expected to return”. By 2003, they had ceased to exist as a distinct group (ibid.).

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Ecuador’s Bioeconomy: Banking Nature In terms of government strategies to actively protect biodiversity in practice, at the bureaucratic level, the Ministries of Environment and Water, Finance, and the National Secretariat for Planning and Development were collaborating with the UNDP in 2019 in the creation of a “bioeconomy”, exploring alternatives to activities such as extraction of oil, fisheries, and the cultivation of bananas, cocoa, and flowers, all of which “may endanger the biodiversity richness of the country”. Ecuador’s “bioeconomy” plan was established within the framework of the Biodiversity Finance Initiative (BIOFIN) launched by the United Nations Development Programme (UNDP) and the European Commission in 2012 “in response to the urgent global need to divert more finance from all possible sources towards global and national biodiversity goals, as highlighted during the 2010 CBD COP 10 in Nagoya” (UNDP 2019). By 2014 it had the support of the governments of Germany and Switzerland, Norway, and Flanders [sic] (UNDP 2019).Global investment in biodiversity financing was envisaged at US$130 and $440 billion annually, although in 2019 the global expenditures for biodiversity conservation were estimated at US$52 billion (UNDP 2019). In the case of Ecuador, BIOFIN could be perceived as filling the vacuum left after the failure of President Rafael Correa’s effort to secure contributions from the developed world for his Ishpingo-TambocochaTiputini (ITT) project that had been envisaged to enable his administration to leave the oil in the ground in the Yasuní national park (see Chapter 4). The UNDP BIOFIN website states: “[I]n order to support the implementation of the National Strategy of Biodiversity and its Action Plan for 2016–2021 (NBSAP), the Government of Ecuador together with the BIOFIN initiative developed a Biodiversity Finance Plan (BFP) to mobilize financial resources that will contribute to increase investments from the public and private sector at the national level, as well as from international cooperation”. With technical advice from BIOFIN and UNDP, the Ecuadorian Consortium for Social Responsibility (CERES) (Ecuador) and the Sustainable Environmental Investment Fund (FIAS), the Ecuadorian government proceeded to create a new private trust fund, the Social Responsibility and Sustainability Fund (FRSS), in November 2019. The private trust fund was to receive voluntary contributions from the private

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sector, “supporting sustainable business towards the national objectives of sustainable development, climate change and biodiversity conservation”. In Ecuador, the focus in 2019 was in support of business initiatives backed by the Ecuadorian Association of Private Banks (ASOBANCA) (BIOFIN 2019). Emphasis was on “business, development and investment opportunities”, “green credits” for the industrial and banking sectors. The various financial plans laid out for the Ecuadorian government would conform to the strategy at the level of international financial institutions and the United Nations to privatize and commodify “natural” capital as a way of ensuring funding for local development projects (Anderson 2018). In the case of Ecuador, this was to be facilitated through a newly created Fund for Sustainable Environmental Investments. At the time of going to press, the few concrete schemes named on the BIOFIN website included one to privatize water sources and charge tariffs for water consumption in Ecuador: “[I]mportant assistance was given to identify a raw water tariff that promote[s] the mobilization of resources for biodiversity conservation from local governments” (BIOFIN 2021a). In March 2021 BIOFIN was supporting a crowdfunding scheme to provide sustenance for rangers on the island of Mindoro who had lost their livelihoods due to the COVID pandemic, leaving the rare tamaraw buffalo unprotected (BIOFIN 2021b). One of the propositions in the Policy and Institutional Review (PIR), number 3 in the list of “gaps” and “challenges”, did conform to the concept of buen vivir: “Making a progressive transition towards a clean production of food based on family and peasant agriculture considering that the agroindustrial model prevailing in Ecuador through monoculture, has a high concentration of productive land and water for irrigation [sic]” (BIOFIN 2021b). Elsewhere, the Ecuadorian government’s emphasis on privatization was in line with the “Economics of Ecosystems and Biodiversity (TEEB)” initiative, the purpose of which was to draw attention to the value of nature in terms of provision of ecosystem services (The Economics of Ecosystems and Biodiversity [TEEB] 2020). TEEB is based in Geneva and hosted by the United Nations Environment Programme (UNEP). It advances a System of Environmental Economic Accounting (SEEA) such that the “free” benefits brought to mankind by nature are given economic value in policymaking. Ecuador’s Socio Bosque scheme, which provides finance for local communities in return for protecting forests (payments

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for ecosystem services), falls within the TEEB framework (see Chapter 4). As was suggested earlier, the injection of cash into small communities carries inherent risks and in effect reproduces top-down strategies of control that disempower indigenous communities (Survival International 2009; Wu 2019; Watson 2021) through the creation of dependence, exercises of conditionality, and the selection of particular compliant individuals as representatives, who may undermine the solidarity of the group, as was evidenced in Chapter 5.

Global Governance in the Protection of Endangered Species On an intergovernmental level, there have been a series of Resolutions and Conventions to combat the trade in wildlife. In 2013, the United Nations General Assembly proclaimed 3 March, the day of signature of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as UN World Wildlife Day. In 2015, the General Assembly unanimously adopted a resolution on “Tackling Illicit Trafficking in Wildlife” (CITES 2015). The Sustainable Development Goals (SDGs) launched that year included specific targets to combat poaching and trafficking of protected species, including by helping local communities to pursue sustainable livelihoods. In 2016, a conglomeration of institutions, the International Consortium on Combating Wildlife Crime, comprised of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Secretariat, the International Criminal Police Organization (INTERPOL), the World Bank, and the World Customs Organization (WCO), published the World Wildlife Crime Report: Trafficking in Protected Species (UN Office on Drugs and Crime [UNODC] 2016). According to the report, almost every country in the world plays a role in the trade (p. 16). The solutions, suggested by the UNODC report, were not only implementation of existing laws (pp. 96–97), but the “international community should continue to contribute to the creation and defense of protected areas. Protecting and maintaining wildlife reserves can be an expensive project for developing countries … International bodies concerned with the preservation of these species should consider an expanded role in helping maintain them” (UNODC 2016: 97).

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The Biodiversity Challenge for Indigenous Peoples: Potential for Disharmony with Nature Emergildo Criollo of the Cofán people, one of the communities most affected by the oil drilling in the Lago Agrio area of Sucumbíos province in the north-east Amazon region of Ecuador (see Chapter 5), commented in 2019 that there were no animals left to eat in their territory, and that they needed to acquire more land (Criollo, interview, 25 September 2019). The Cofáns’ long struggles with the oil industry are covered in detail by Cepek (2018). Criollo explained that the community relied on water provided from outside, as oil drilling had poisoned their streams and rivers. He said they used to eat bushmeat as well as sell it to provide an income, but now the animals had all gone. The community plan had been to set aside 3,000 hectares of land so that the animal population could be restored, but the problem for the community, as he related it, was that colonizers came in from outside and hunted the animals. There was nothing the indigenous communities could do to stop the intruders, as they had no resources to pay guards to patrol the boundaries: We have killed deer and guantas [a large rodent also known as “paca”] … and as there is no work, we have sold them in the city. But after six years, there were no guantas left – no animals – so we have set aside an untouchable protected area of 3,000 hectares so that the animals can reproduce, and to preserve the native trees. We have been doing this for 12 years but there are no forest rangers and the colonizers who live around our community come in and kill the animals illegally. (Emergildo Criollo, interview, 25 September 2019)

In 2019, the Cofán community was divided between those who wanted more oil drilling—as a new well was to be opened up by the state company, PetroEcuador, in 2020 (ibid., 2019)—and those who were resisting oil extraction (see also Cepek 2018), resulting in there being two presidents of the same community, as Emergildo Criollo explained: “Some of us are in favour of the oil company, and others are against it. Therefore we cannot organize ourselves well. It is very difficult” (Criollo, interview, 2019). In effect, indigenous communities were being asked to choose between working for the oil company—and therefore contributing to the destruction of the environment and climate change—and the preservation

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of their way or life, their sovereignty, and their culture in precarious conditions of a lack of means for survival. A broader context for the statement of Emergildo Criollo is provided by Vasco Pérez et al. (2015) with regard to pressure on land, and population growth of the Kichwa and Shuar peoples of Pastaza province. The increase in the size of the Kichwa population, which was growing at a rate faster than that of the mestizo population (ibid.), was creating a demand for greater quantities of food at a time when sources of wild food were diminishing. According to Vasco Pérez et al., supported by the results of the research by De la Montaña et al. (2015), both Kichwa and Shuar communities were increasingly dependent on sources of income in the off-farm sector. Vasco Pérez et al. (2015) noted that wages for indigenous people were highest in the oil sector. They also commented that there was potential for off-farm working opportunities to “relax pressures to clear forest” (p. 8) in order to meet household needs. At the same time, however, they reported that legal and illegal logging provided a source of income for members of the Shuar community: “[H]alf of the Shuar participating in non-farm employment are chainsaw owners or timber dealers (often illegal), businesses that offer higher returns than most other business activities” (ibid.: 6). Between 2019 and 2021, the forests of Pastaza were threatened by the boom in the balsa wood market, resulting from a growing demand, mainly from China, for wind-turbines, the blades of which are filled with balsa. Ecuador was supplying more than 90% of the world’s balsa from around 2008 (Timbercheck 2020), 75% in 2020 (Economist 2021). Illegal logging of wood, mainly cedar, in Ecuador was reported to have increased from 1998 when militarization of the border with Peru ended (Aguilar 2017). In 2015, Huaorani, Kichwa and Sápara communities denounced illegal hunting and logging in their territories and in the Intangible Zone (ZITT) of the Yasuní national park inhabited by the Tagaeri/Taromenane communities living in voluntary isolation (Aguilar 2017) (see Fig. 4.1). In 2019 the price of balsa doubled, and seizures of illegal logs by the Ecuadorian authorities tripled (Timbercheck 2020). In 2020 in Pastaza along the Curaray river, there were some violent altercations over balsa, and some members of Huaorani communities attempted to expel illegal loggers in October of that year (Economist 2021). In March 2021 the Sápara were attempting to keep the balsa wood loggers out of their territory, even as neighbouring communities were making deals with them (Ushigua 2021). Although balsa is not an

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important store of carbon, logging was believed to have increased the risk of flooding of rivers and may have been partially responsible for floods in 2020 along the Bobonaza river in Pastaza, which washed away homes of the Sarayaku Kichwa in 2020 (Etchart 2020) (see Fig. 4.3). Until 2021, balsa trees were less protected than some other hardwoods, which meant that permits could be falsified and the wood “laundered”. The Ecuadorian government was planning to tighten regulations in 2021 (Economist 2021). Both regulated and illegal logging of any species of tree from the rainforest encourage the hunting, extraction and trafficking of species, compounding existing biodiversity loss from ranching, agriculture, and the extraction of minerals.

The Bushmeat Crisis and the Trafficking of Wild Animals Elsewhere, evidence from a number of studies of indigenous consumption of wild game has indicated that the hunting of Amazonian mammals by indigenous communities in Ecuador has become unsustainable. The amount of game available has diminished partly through a reduction in the animals’ habitat from the expansion of cattle ranching, some of which has stemmed from the activities of the extractive industries in opening up roads, which in turn have improved access to markets for bushmeat traders (Bergman 2009; Berton 2018; Brahic 2009; Brodie and Gibbs 2009; Josse 2001; Ríofrio 2016; Yuhas 2019; Zapata-Ríos et al. 2009). The field research conducted by Zapata-Ríos et al. (2009), through involving the participation of Shuar hunters, itself contributed to greater awareness among some of the Shuar with whom they were gathering data in an assessment of the risks they were confronting. One of the communities engaged in the research embarked upon strategies to reduce hunting of particular species, through establishing hunting zones, implementing quotas, prohibiting hunting by outsiders, as well as the hunting of highly vulnerable species (pp. 382–383): they signed a treaty to this effect. However, this is not indicative of general practice (ibid.). Nonetheless, Zapata-Ríos et al. (2009) concluded that, as in the case of the Kichwa, an increase in the size of the indigenous population of Shuar, together with other changes was a factor to be taken into consideration. This is supported by an earlier study by the Ecuadorian National Institute of Statistics (INEC) in 2002 that showed an increase in the Shuar population

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in the Miasal area from four to 100 families over 30 years (Zapata-Ríos et al. 2009). Moreover, the Shuar research found evidence that the overhunting of (preferred) larger mammals over time, such as different species of monkey, deer, tapir, and peccary, resulted in the increased exploitation of mediumsized and smaller mammals, such as coatí, consistent with findings in other parts of Ecuador where small rodents and marsupials had become the main source of protein for some communities. The research indicated that of 21 different species of mammals hunted, with sufficient data on 15 of those to reach estimates, only three of the species were not diminishing in number. Looking ahead, the researchers anticipated local and regional extinctions of species, meaning that the communities researched would no longer be able to receive adequate sources of protein from hunting. Indigenous peoples’ recognition of dwindling supplies of wild game is supported by primary data collected in 2016 and in 2019 (interviews, Sarayaku 2016, Emergildo Criollo, Cofán, 2019). Zapata-Ríos et al. (2009) predicted long-term negative ecological and socioeconomic consequences of the hunting of large mammals if it were to continue at the rate recorded in their research. Interestingly, De la Montaña et al. (2015), in comparing bushmeat consumption in two Cofán villages, provided evidence of the benefits to the environment of indigenous communities’ engaging in off-farm activities, that is, waged employment. Their research indicated that the more isolated community of Zábalo, which was part of the study, consumed greater amounts of bushmeat than the Wajosará community, who lived closer to colonizer communities, and therefore were more easily able to buy food with wages earned, rather than hunt for it. The authors determined that higher wages resulted in the reduction of bushmeat killed. Their findings were that if there were a 50% rise in wages, there was a corresponding 50% reduction in the bushmeat harvest. The fluctuations in the price of bushmeat sold illegally—subsistence harvesting of meat was legal—influenced the amount sold: the findings were that a 50% fall in the price of bushmeat resulted in a 90% reduction in sales. Moreover, in cases where there was monitoring of the sale of bushmeat, and penalties imposed, even minimal ones, there was a notable drop in commercial hunting, that is, on the part of the community closest to the bushmeat market, although the authors noted that overall there was very little monitoring of the sale of bushmeat. These findings have important implications for the protection of biodiversity, not only through the monitoring and

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application of laws designed to prevent the illegal sale of bushmeat, but also for the monitoring and prevention of the illegal sale of live wild animals destined for the international pet market. Further examples of the illegal sale of bushmeat are found in other parts of the Ecuadorian Amazon. By 2019, in the case of some of the Huao (Huaorani) communities in Block 16 on the edge of Yasuní, they no longer hunted for subsistence but were engaged in the selling of bushmeat as a commercial activity. The division of the entire Ecuadorian Amazon region into blocks sold as concessions to oil and mineral companies and the construction of roads that were required for the pursuit of extraction activities, therefore, have implications for the continued existence of ecosystems in the region and in the Latin American continent. In the words of Carlos Larrea with regard to the threat of roads to biodiversity: “This is happening on a large scale over the Amazon and is another huge threat to the biosphere” (Larrea, personal communication, 2019). The United Nations Living Planet Report of 2018 stated that it is not only the burning of fossil fuels and the release of other greenhouse gases that were a threat to human existence. Agencies of the United Nations considered biodiversity loss as equally damaging, as expressed by Cristiana Pas, ca Palmer, executive secretary of the UN Convention on Biological Diversity: I tend to refer to [biodiversity loss] as a silent killer … because the impact is not as visible as climate change, but in many respects, it’s a lot more dangerous. (Pasca Palmer, quoted in Briggs 2018)

The links between biodiversity and climate change have to be taken into consideration. Brodie and Gibbs (2009), citing a “bushmeat crisis”, provided evidence in 2009 that overhunting, particularly of large-bodied animals, was having a detrimental effect on tree diversity and therefore forest cover and carbon storage capacity. Large animals are important to disperse large tree seeds, in order to increase tree-wood density. Highdensity of tree wood is important for carbon storage, hence the authors saw a need to conserve tropical mammals to keep carbon in the ground (ibid.). Ecuador has one of the most diverse natural and cultural endowments in the world, with the highest number of vertebrates per square kilometre

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on earth (Josse 2001; Swing 2012), hence the country has multiple significance—as a source of biodiversity, fossil fuels, oxygen, and water—all of which impact the global ecosystem. This is a problem in itself for a country such as Ecuador, as biodiversity—an abundance of diverse wildlife—represents a valuable commodity that can be sold on the global market. In the second decade of the twentyfirst century, the illegal global wildlife trade was generating US$19–23 billion per year, occupying fourth place after the illegal sale of narcotics, weapons, and human trafficking (Ríofrio 2016; United Nations Office on Drugs and Crime [UNODC] 2016). Trading in protected species was less risky than the other activities listed, moreover, as the penalties for illegal trafficking of animals were less than those for trafficking narcotics or people. The UN has continued to attempt to establish mechanisms to prevent the trade in wildlife, and particularly of endangered species, by creating amendments and additional protocols to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Through the Convention’s appendices, the UN claimed in 2020 that such instruments have applied “varying degrees of protection to more than 30,000 plant and animal species” (Convention on Biodiversity [CBD] 2020a), though the adoption or ratification of conventions of protection by a state does not necessarily lead to implementation of the instruments at ground level (see Chapter 6). Illegal wildlife trafficking in the period under study was on a smaller scale in Latin America than in Africa and Asia, but was prevalent in Brazil, Mexico, and Central America, in Colombia and Peru, and Ecuador (Godoy 2016). A study conducted in 14 Latin American countries in the first decade of the twenty-first century found that 30% of parrot nests had been poached; it was estimated that 46 of the 145 parrot species in the Americas were at risk of extinction. The relevance to the question of indigenous communities’ ongoing contribution to the maintenance of biological diversity in Ecuador is that Bergman (2009), in the course of conducting fieldwork, found evidence that Huaorani communities in Ecuador were involved in parrot poaching in their territory by means of felling the trees adjacent to rivers to access the fledglings in their nests in order to sell them live as pets. A joint Ecuadorian Ministry of Environment/UNEP study conducted between 2004 and 2014 reported live frogs being sold mainly to the USA, The Netherlands, and Canada, with the USA being the main importer of

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wildlife from Ecuador (Sinovas and Price 2015: 13). Much of the frog trade is legal and for human consumption. In the period researched, the report documented 15 distinct websites advertising wildlife for sale from Ecuador, native and foreign species, totalling 458 products (Sinovas and Price 2015: 13). Eleven species that were listed as globally “endangered” by the International Union for the Conservation of Nature (IUCN) were advertised for sale as either live animals or, in some cases, as eggs. The endangered species listed included big cats, chimpanzees, lemurs, parrots, macaws, parakeets, cockatoos, frogs, and cardinalfish (ibid.: 13–14). In Ecuador in 2016, parrots and macaws were the most trafficked bird species, and among traded reptiles were boa constrictors, charapas turtles, and their eggs. Monkeys were both eaten and kept as pets by indigenous people and sold as bushmeat, as were sloths. Research conducted by Bergman (2009) demonstrated that indigenous communities, who were by law allowed to use bushmeat for subsistence, were selling armadillos, peccaries, and other protected animals to earn cash. Most trafficked animals in Ecuador came from the Amazon, especially from Orellana, Napo, and Sucumbíos. Parrots were trafficked from Esmeraldas, on the north coast, and other birds from the subtropical zone of Imbabura (Bergman 2009; Ríofrio 2016). Trafficked animals as well as logs derived from illegal felling were transported down the river Marañon—a tributary of the Amazon—from Ecuador to the river port of Iquitos in Peru, where there was less effective government surveillance and monitoring than in Ecuador, according to Bergman. Research by Eduardo Berton (2018) supported this evidence with regard to the centrality of Iquitos as the centre of the wildlife- and animal-parts trade in the region. In Ecuador, the illegal wildlife trade, as in other developing countries, has a long history, and was linked to narcotic trafficking networks (UN Office on Drugs and Crime [UNODC] 2016). When police conducted raids and confiscated narcotics, they found captured animals. Many of the animals trafficked illegally died in transit (Guynup 2016). A UN report of 2016 showed that competition among trappers had resulted in parrot nestlings being taken at increasingly early ages, thus increasing the preexport mortality rate, which was 50% for some species of parrot (UNODC 2016: 76). Regional and international traffickers operating in Ecuador established a network of people, called “extractors,” experts in hunting who knew the location of animals and the type of traps needed to remove them

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from their natural habitat. Karen Noboa, of the Ecuadorian Ministry of Environment Wildlife unit, reported that when the animals arrived at their destination abroad, the price had risen 10 or 20 times from that earned by the person who killed or captured the animal (quoted in Ríofrio 2016). Illegal capture of rare species was ongoing in 2021, as evidenced by police investigations and prosecutions of “environmental crimes” in the province of Napo (Montaño 2021). Existing pressures on both protected and unprotected wildlife populations in the Amazon region have to be viewed in the context of the expansion of the activities of the extractive industries, which have direct and indirect impacts on wildlife habitats, both within and around protected areas. Although on an intergovernmental level, there have been a slew of declarations, resolutions, conventions, and treaties to protect wild areas from deforestation and hunting, reinforced and ratified through state-level initiatives and legislation, on-the-ground projects for the expansion of oil and mineral extraction, and agribusiness, have continued to reduce the territories of indigenous peoples as well as the habitat of the wild game on which they have survived for centuries, as evidenced in Chapter 5. As consumers of the products from dead animals, and those who buy animals as pets, often do not know that trade in a number of species is illegal, one of the tasks ahead may be for information campaigns to reduce the demand for endangered species in the USA and elsewhere. The COVID-19 outbreak in 2020 led to a drop in demand for wildlife and wildlife products worldwide, according to a World Wildlife Fund report in 2021, based on surveys of populations of East Asia and the USA in 2020 (Globescan 2021; World Wildlife Fund 2021). Following the February 2020 Chinese government ban on the consumption of wild animals, the WWF report indicated that nearly 30% of people surveyed in China, Myanmar, Thailand, Vietnam, and the USA, the main markets for wildlife and wildlife products, reported reduced levels of consumption of wildlife because of the global health crisis. There was greater awareness of the risks of zoonotic diseases associated with the consumption of wild animals, of links with deforestation and loss of animal habitat, and an expressed support for government efforts to combat forest loss. In the USA, however, where parrots were the most popular exotic pet, the perceived link between COVID-19 and wildlife was the weakest in the five countries surveyed: 72% of those interviewed said their exotic pet choices would not be affected by COVID (Globescan 2021: 156).

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Alternative Strategies for the Amazon: The Rise of Ecotourism In the long term, as Professor Larrea argued in 2019, a new development paradigm is required, one that avoids dependency on the extractivist economy that is vulnerable to fluctuating commodity prices and which is not sustainable, in view of the limited life of oil and mineral deposits. Larrea advocated taking advantage of Ecuador’s “unique biodiversity and cultural heritage to improve living conditions in a sustainable and equitable way”, learning from the example of Costa Rica in the way of limiting mineral extraction, protecting wild areas, and promoting ecotourism. Larrea was not advocating luxury tourism, but small community-based cultural adventure tourism which encourages ecosystem conservation, such as was provided by the Kichwa Añangu project in Napo province of the Ecuadorian Amazon (2019: 15; Tafoya et al. 2020). In Ecuador from the 1990s onwards, a number of indigenous communities were aware of the fragility of the ecosystem of which they were a part, and were already engaged in schemes, such as tourist eco-lodges, to reduce the hunting of endangered and protected animals. Among the most successful of these projects is the Achuar-owned Kapawi eco-lodge on the Peruvian border, which became operational in 1996 (Crawford and Sternberg 2015). The Achuar took over management of the lodge in 2008. With non-profit financial support, they have established a low-carbon green business model, with solar panels, low-impact waste management systems, local sewage treatment, and an ozonification water purification system, keeping use of fossil fuels and plastic to a minimum. The lodges are made with local materials using traditional building techniques. It is not “no carbon”, but “low-carbon” (Crawford and Sternberg 2015: 94), needing diesel back-up generators. Such projects are one means for warding off incursions by oil, timber, mining, and agribusiness interests. In 2019–2020 the Sápara people of the Ecuadorian Amazon were endeavouring to follow the Kapawi and Añangu examples by constructing cabins for eco-tourists on the banks of the River Conambo (Gloria Ushigua, personal communication 26 August 2019, Facebook postings January 2020–January 2021). This was a collaborative project for six Sápara families, created by Ashiñwiaka, the Sápara women’s association, and the Ripanu community (ibid.), to provide an alternative to being dependent on employment related to oil extraction as their source of

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income. A small step by a small community resisting the advance of the extractive industries through engagement with networks of global environmental communities. Again in 2020 and 2021, Gloria Ushigua was leading a tree planting project on Sápara territory in collaboration with a small US women’s NGO called One Tree Planted, based in Shelburne, Vermont (Lewis 2021). The aim was to plant 150,000 native and medicinal trees on land covering 100 hectares of Sápara territory, initially with a staff of 120 people, many of them volunteers. Through small-scale initiatives, where indigenous individuals are central to decision-making, the philosophy of sumak kawsay endures. The creation of alternative development projects such as these, avoiding large-scale infrastructural projects, the building of roads, or the export of raw materials, contributes to the maintenance of biodiversity and ecosystems. On a larger scale, solidarity networks among indigenous communities, within and across borders, have been an important tool to provide inspiration and support in confronting state and private interests that operate against the principles of harmony with nature. These networks have created pan-Amazonian alliances in attempts to keep the Amazon basin free from the extractive industries. Among these is the “Coordinator of the Indigenous Organizations of the Amazon Basin” (COICA) founded in 1984 by representatives of five national Amazonian indigenous organizations from Peru, Brazil, Ecuador, Bolivia, and Colombia (COICA 2020). Since 1992, they have been joined by the respective national organizations of the indigenous peoples from Bolivia, Peru, Ecuador, Colombia, Brazil, Venezuela, Suriname, French Guiana, and Guyana. Among its members are Interethnic Association for the Development of the Peruvian Rainforest (AIDESEP); Amerindian Peoples Association for Guyana (APA); Confederation of Indigenous Peoples of Bolivia (CIDOB); Coordination of Indigenous Organizations of the Brazilian Amazon (COIAB); Confederation of Indigenous Nationalities of Ecuador (CONFENIAE); Organization of Indigenous Peoples of the Colombian Amazon (OPIAC); Regional Organization of Amazonian Indigenous Peoples (Venezuela) (ORPIA); Federation of Indigenous Organizations of Guyana (FOAG); and Organization of Indigenous People in Suriname (OIS). Amazonian indigenous federations CONFENIAE (Ecuador), AIDESEP (Peru), ORPIA, and COICA also participated from 2019 in the Amazon Sacred Headwaters Initiative, in partnership with the Pachamama Alliance and Fundación Pachamama

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to protect Ecuador and Peru from industrial scale resource extraction (Sacred Headwaters 2019). In 2018, at the 14th UN Biodiversity Conference, held in Egypt, COICA presented its Bogota Declaration to create “the largest protected area on earth”, a “sacred corridor of life and culture” covering more than 700,000 square miles of the Amazon, the “world’s last great sanctuary for biodiversity”, as they described it. It was similar to a plan put forward by the Colombian government in the same year, but the Colombian administration changed, and their efforts were ignored or challenged by the administrations in Brazil, Colombia, and Ecuador which were engaged in pursuing policies of economic development (Corbett 2018; Watts 2018) In December 2020, COICA published an open letter calling for measures that included “Implementation of initiatives and commitments that guarantee access of Indigenous Peoples to alternative, efficient and clean energy and transport, discouraging the use of fossil fuel and promoting the acceleration of the decarbonization of investment and economies”; and “Inclusion of the COICA and its base organizations as protagonists of the goals and the design of ecosystem restoration in 2030 defined by the ONU [United Nations] that should be financed by innovative mechanisms” (COICA 2020, 2021). The letter expressed despair at the failure to approach the Paris COP 21 2015 targets, at continued deforestation of the Amazon, and the intensification of extractive activities in the Amazon during the COVID-19 pandemic. COICA called on the citizens of the world “to understand the importance of the Amazon and the Indigenous Peoples that speak for her for the survival of the planet, and we call to urgent action to help us stop the effects of climate change” (ibid.; see also Etchart 2017). On a smaller scale, a group of indigenous communities resisting oil contamination of their land in Ecuador, formed a separate organization, the Ceibo Alliance, in 2014. It was co-founded by Nemonte Nenquimo, a Huaorani (Waorani) leader, and was initially comprised of members of the Cofán, Siona, Secoya, and Huaorani nations. On 29 September 2020, the Ceibo Alliance was awarded (virtually) the Equator Prize during 75th session of the UN General Assembly (UNGA 75) in New York (Amazon Frontlines 2020). Small victories such as these, on the part of indigenous communities and their NGO allies, to influence publics and institutional bodies, North and South, were addressed in Chapter 4.

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Conclusion This chapter has contrasted the efforts to protect the world’s biodiversity at the intergovernmental level since the United Nations Conference on Environment and Development conference in 1992, with the experience of indigenous Ecuadorian communities on the ground, many of whom continue to resist financial offers from logging enterprises for permission to fell trees on indigenous territory, even as supplies of wild game on which they survive diminish, leaving them with few options to ensure their continued existence. It is clear that there continue to be major challenges facing the Ecuadorian government in protecting the country’s indigenous communities, tropical forests and wildlife, in the context of its having been the first country to encode the Rights of Nature in the constitution, and despite ongoing prosecutions of wildlife traffickers. It is notable that in 2021 the Ecuadorian government was reduced to crowdfunding to protect rare species at a time when the world’s largest investment management companies in Wall Street, in association with multinational corporations, non-governmental organizations, and foundations, were purporting to lead the world in combating climate change, to which logging and loss of biodiversity contribute. Private industry’s involvement in global environmental governance will be addressed in the following chapter.

Note 1. AICHI Targets: “The Purpose of the Strategic Plan for Biodiversity 2011– 2020 was to promote effective implementation of the Convention on Biological Diversity (CBD) through … a shared vision, a mission, and strategic goals and targets (‘the Aichi Biodiversity Targets’), to inspire broad-based action by all Parties and stakeholders. The Strategic Plan was to provide a flexible framework for the establishment of national and regional targets and for enhancing coherence in the implementation of the provisions of the Convention and the decisions of the Conference of the Parties” (Convention on Biological Diversity, https://www.cbd.int/kb/rec ord/decision/12268).

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Etchart, Linda. 2020. “Ecuador’s Sarayaku: First the Floods, Now the Plague.” Latin America Bureau. https://lab.org.uk/ecuadors-sarayaku-first-the-floodsnow-the-plague/. Accessed 18 August 2020. Fa, J. E., N. Burgess, I. Leiper, Z. Molnar, J. E. M. Watson, P. Potapov, T. D. Evans, A. Fernández-Llamazares, T. Duncan, S. Wang, B. J. Austin, C. J. Robinson, P. Malmer, K. K. Zander, M. V. Jackson, E. Ellis, E. S. Brondizio, and S. T. Garnett. 2020. “Importance of Indigenous Peoples’ Lands for the Conservation of Intact Forest Landscapes.” Frontiers in Ecology and the Environment 18 (3) (January): 135–140. https://www.researchgate.net/pub lication/338412873_Importance_of_Indigenous_Peoples%27_lands_for_the_ conservation_of_Intact_Forest_Landscapes. Accessed 14 January 2020. Globescan. 2021. “COVID-19 One Year Later: Public Perceptions About Pandemics and Their Links to Nature.” May. WWF 5-country Survey. https://dropbox.com. Godoy, Emilio. 2016. “Closing the Gaps in Fight Against Wildlife Trafficking in Latin America.” InterPress Service (IPS) News Agency. http://www.ips news.net/2016/06/closing-the-gaps-in-fight-against-wildlife-trafficking-inlatin-america/. Accessed 18 August 2020. Guynup, Sharon. 2016. “EE.UU. destino principal del tráfico ilegal de vida salvaje latinoamericana.” 3 March. https://es.mongabay.com/2016/03/ ee-uu-destino-principal-del-trafico-ilegal-de-vida-salvaje-latinoamericana. Accessed 18 November 2018. International Labour Organization (ILO). “C107—Indigenous and Tribal Populations Convention, 1957 (No. 107).” https://www.ilo.org/dyn/normlex/ en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C107#A6. Josse, Carmen, ed. 2001. La Biodiversidad del Ecuador: Informe 2000. Quito, MAE, EcoCiencia, IUCN. Kenner, Dario. 2018. “Who Should Value Nature?” In Debating Nature’s Value: The Concept of Natural Capital, edited by Victor Anderson. Palgrave Macmillan. Kimerling, Judith. 2006. “Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco, and Aguinda vs Texaco.” Journal of International Law and Politics 38 (3): 413–664. https://nyujilp.org/wp-con tent/uploads/2013/02/38.3-Kimerling.pdf. Larrea, Carlos. 2019. “Extractivism, Crisis and Sustainability in Ecuador: Are There Alternative Options?” Paper presented at Latin American Studies Association (LASA) Conference, Boston, MA, May. Lewis, Jessie. 2021. “Planting Trees to Protect a Way of Life.” One Tree Planted. 28 January. 150,000 Trees Planted with the Sapara Women’s Association in the Amazon. https://onetreeplanted.org. Accessed 12 March 2021.

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Montaño, Domenica. 2021. “Detienen un hombre en Napo por tenencia ilegal de animales silvestres.” GK City, 27 March. https://gk.city. Accessed 29 March 2021. Pasca Palmer, Cristiana. 2019. Opening Statement Eighteenth Session of the United Nations Permanent Forum on Indigenous Issues. Theme “Traditional Knowledge: Generation, Transmission and Protection.” United Nations Headquarters, New York 22 April—3 May. https://www.cbd.int/doc/spe ech/2019/sp-2019-04-22-UNPEII-en.pdf. Accessed 12 March 2021. Ríofrio, Isabel. 2016. “Wildlife for Sale: Is It Possible to Win the Fight in Ecuador?” Mongabay, 16 December. https://news.mongabay.com/2016/ 12/wildlife-for-sale-is-it-possible-to-win-the-fight-in-ecuador. Sacred Headwaters. 2019. “Amazon Sacred Headwaters Initiative.” https://sac redheadwaters.org/. Accessed 18 August 2020. Sinovas, Pablo, and Becky Price. 2015. “Ecuador’s Wildlife Trade.” UN Environment Programme World Conservation Monitoring Centre. English translation of the technical report prepared for the Ministry of the Environment of Ecuador and the German Development Cooperation (GIZ). https://www.unep-wcmc.org/system/comfy/cms/files/files/000/ 000/808/original/Ecuador%C2%B4s_wildlife_trade.pdf. Southgate, Douglas, Robert Wasserstrom, and Susan Reider. 2009. “Oil Development, Deforestation, and Indigenous Populations in the Ecuadorian Amazon.” Presentation, Latin American Studies Association (LASA), Rio de Janeiro, Brazil, 11–14 June. Survival International. 2009. “Climate Change.” https://www.survivalinternatio nal.org/about/climatechange. Accessed 23 March 2021. Swing, Kelly. 2012. “Science in Yasuni Sheds Light on Impacts of Oil Development in Amazon.” Changing Planet National Geographic. Boston University. https://blog.nationalgeographic.org/2012/12/26/science-in-yasuni-shedslight-on-impacts-of-oil-development-in-amazon. Accessed 16 August 2020. Tafoya, Kathryn A., Eduardo S. Brondizio, Eric Christopher, Peter Beck Johnson. 2020. “Effectiveness of Costa Rica’s Conservation Portfolio to Lower Deforestation, Protect Primates, and Increase Community Participation.” Frontiers in Environmental Science (5 November). https://www.frontiersin.org/art icles/10.3389/fenvs.2020.580724/full. Accessed 19 March 2021. The Economics of Ecosystems and Biodiversity (TEEB). 2020. “Making Nature’s Values Visible” http://www.teebweb.org/. Accessed 12 March 2021. Timbercheck. 2020. “Is That Wind Turbine Made from Illegally Harvested Balsa Wood?” TIMBERCHECK™, 27 November. Accessed 11 March 2021. United Nations Development Program (UNDP). 2019. “BIOFIN: The Biodiversity Finance Initiative Ecuador.” www.biodiversityfinance.net/ecuador. Accessed 29 March 2021.

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UN Office on Drugs and Crime (UNODC). 2016. “World Wildlife Crime Report: Trafficking in Protected Species.” https://www.unodc.org/docume nts/data-and-analysis/wildlife/World_Wildlife_Crime_Report_2016_final. pdf. Ushigua, Manari. 2021. “We Don’t Want the Balsa Companies in Our Territory [sic].” Jóvenes Sápara Protectores de la Selva. Manariushigua Instagram post, 28 March. Vasco Pérez, C., R. Bilsborrow, and B. Torres. 2015. “Income Diversification of Migrant Colonists vs. Indigenous Populations: Contrasting Strategies in the Amazon.” Journal of Rural Studies 42: 1–10. Watson, Fiona (Survival International). 2021. Personal communication. 19 March 2021. Watts, Jonathan. 2018. “Amazon Indigenous Groups Propose Mexico-Sized ‘Corridor of Life’.” Guardian, 21 November. https://www.theguardian. com/environment/2018/nov/21/amazon-indigenous-groups-propose-mex ico-sized-corridor-of-life. World Wildlife Fund. 2021. “Consumption of Wildlife Drops Almost 30% Over Perceived Links to Pandemics Like COVID-19.” WWF. https://panda.org. Wu, Wenyuan. 2019. Presentation in “Chinese Oil Investments in Ecuador and Peru: The Role of Indigenous Civil Society and Government Regulations.” In: Chinese Oil Enterprises in Latin America. New York: Palgrave Macmillan. Yuhas, Alan. 2019. “Interpol Operation Seizes More Than 10,000 Animals in Anti-trafficking Campaign.” 10 July. https://www.nytimes.com/2019/07/ 10/world/asia/interpol-wildlife-trafficking.html. Accessed 2 August 2019. Zapata-Ríos, Galo, Carlos Urgiles, and Esteban Suárez. 2009. “Mammal Hunting by the Shuar of the Ecuadorian Amazon: Is It Sustainable?” Fauna & Flora International, Oryx 43 (3): 375–385.

CHAPTER 7

Sustainable Funds and “Cuddly Capitalism”: Indigenous Land Defenders and the Greenwashing of Investment Management

BlackRock’s Environmental Transformation By 2021, BlackRock had been the world’s largest asset manager for a decade, with nearly US$8.7 trillion under management and with its top three asset managers accounting for one-quarter of votes cast at S&P companies (Beales 2020; Christianson et al. 2020; Rathi 2021). Its mutual and exchange-traded funds owned 5% or more of listed US companies, making it the largest shareholder in the USA. Despite BlackRock having had a poor voting record on environmental issues in 2019–2020, its Chairman and Chief Executive Officer, Larry Fink, had become a carbon emissions reduction promoter by 2020, reflected in the content of his January 2020 annual letters to companies and shareholders. Larry Fink invoked his power to influence decision-making by company directors towards achieving carbon neutrality by 2050 through votes against board directors who opposed this goal (Rathi 2021). BlackRock’s position at the top of the food chain stood in contrast to the absence of power of those who were on the receiving end of the unintended consequences of the investment decisions of managers of all the major asset management companies. Among those with the least © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6_7

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resources to question those decisions were the indigenous hunter-gatherer communities of the Amazon region, whose cultures and lives were under threat from ranching, agribusiness, mining, logging, and oil extraction, much of which was linked to overseas investment (Global Witness 2020). Prior to spearheading efforts to combat climate change in the investment world since 2020, BlackRock had been subjected to criticism from environmental and human rights groups from 2016 as the largest investor in the Amazon, having been presented by NGOs as being partially responsible for, or contributing to, the felling of Amazon old-growth forest and the associated dispossession and displacement of indigenous peoples (Amazonwatch 2019). Of the major investment management companies, it was BlackRock which had come under the most sustained fire from Amazonian indigenous environmentalists and their supporters, whose campaign against BlackRock’s investment choices may have contributed to shifting the narrative surrounding the contribution of fossil fuel companies and their investors to climate change. Campaigns against BlackRock incorporated individuals and groups from a number of Amazonian indigenous nations, some of whom took part in activities to convince BlackRock that it should take action to protect indigenous peoples and the planet. One example is the journey to New York in 2018 made by Gloria Ushigua Santi, indigenous leader of the Ecuadorian Amazonian Sápara nation, of whom between 300 and 600 members remain, who issued an address to BlackRock shareholders to appeal to them to save the rainforest: The survival of Amazonian indigenous peoples depends on the health of our forest, rivers, mountains, plants and animals. Yet oil companies want to enter our territories, which would threaten our very existence. The largest investors in these oil companies, including BlackRock, must understand that the Sáparas’ future is at stake, as is the future of all living beings, because the earth cannot survive without forests like the Amazon. We must keep this oil in the ground. (Ushigua, quoted in Friends of the Earth 2018)

On 24 September 2019, BlackRock’s 52nd Street Manhattan headquarters was the scene of a demonstration of environmentalists and indigenous Ecuadorians and Peruvians who had come to participate in events surrounding the United Nations 74th General Assembly and New York Climate Week (Fig 7.1). A petition with 260,000 signatures was

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Fig. 7.1 Demonstration outside BlackRock headquarters, Manhattan, New York, 24 September 2019 (Photo: Linda Etchart)

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delivered to BlackRock representatives, calling on the company to cease investing in extractive industries in the Amazon. Demonstrators filled the BlackRock lobby. Indigenous Amazonian leaders, including Gloria Ushigua, led the protest. Helena Gualinga, 17-year old representative of the Ecuadorian Amazon Sarayaku Kichwa, who number 1,200 people, called to BlackRock employees and passers-by to join the protest: “Whoever is listening, I beg you to stop, to stand with us, as you are killing my people, and killing the world. Shame on BlackRock” (Etchart and Cerda 2020: 14). Following these events, Nemonte Nenquimo, first female leader of CONCONAWEP (Waorani Organization of Pastaza Province), Ecuador, appeared in Vogue in October 2019, alongside Emergildo Criollo of the Cofán, as well as Sandro Piaguaje and Taita Pablo Maniguaje of the Siona people of Putumayo, Colombia (Specter 2019). Emergildo Criollo expressed his admiration for the environmental campaigner Greta Thunberg, to whom he said “We can unite our paths and work together” (Specter 2019). Nenquimo was featured in Time Magazine in September 2020 (Di Caprio 2020), and listed by Vogue India in December of that year as one of the 12 women leaders who had changed the world for the better (Peri 2020). In 2018, Nina Gualinga of the Sarayaku Kichwa had been awarded the World Wildlife Fund (WWF) youth prize (World Wildlife Fund 2018), and in 2020, Vogue India named Helena Gualinga as one of the most influential young activists helping to save the planet (Siganporia 2020). By January 2021, Helena Gualinga had 54,000 followers on Instagram. It could be argued that access to social media, Western and global audiences has, somewhat paradoxically, contributed to enabling indigenous Amazonian communities to maintain self-determination and defend their cultures against development projects. This has been achieved with NGO and UN agency mediation creating a careful balance between the on-grid and the off-grid, indigeneity and modernity being appropriated by a range of actors in a context of advances in communications and science-based evidence of the causes and effects of climate change. The extent to which the attention generated by their presence, and their message on social media, and in person in the capitals of the world, has reached those who have the most power to make significant progress in combating climate change, is discussed in the following section.

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The year Capitalism went Cuddly According to the UK Financial Times, 2019 was the year that “capitalism went cuddly” (Edgecliff-Johnson and Mooney 2019: 1). How far the shift was substantial rather than promotional was difficult to determine, in that perception affected performance. So, although Marc Benioff, editor of Time magazine and head of Salesforce, may have announced in October 2019 that “Capitalism as we know it is dead” (La Monica 2019), the underlying drivers of capitalism had not vanished: capitalism was rather in the process of rebranding itself to appeal to an evolving millennial audience of younger stakeholders and their parents affected by pressing global political and environmental challenges (see Ernst and Young 2016). Milton Freedman had written in 1970 that a company’s sole responsibility was to produce profits for its shareholders, a mantra adopted by boards of directors and investment managers for the following 50 years until in 2019 S&P Global took up the phrase “Beyond the balance sheet” (S&P Global 2019). By 2019, investors were buying shares for a range of reasons, with choice being influenced to include declared (if not actual) adherence by companies and intermediaries to ethical principles and sustainability criteria. By 2021, moreover, small investors and pension funds had begun to challenge the dominance of large investment asset managers and wished to have greater influence in decision-making. Ethical investments had emerged in the 1960s and 1970s, with options for investors to boycott individual companies on human rights criteria. This expanded to include environmental considerations in the 1990s. In the early stages of these developments, returns on ethical investments tended to be lower than those in the defence, pharmaceutical and fossil fuel sectors; in the late twentieth century, therefore, investment managers continued to advocate against ethical investment in order to ensure compliance with their fiduciary responsibilities to their clients, with the achievement of personal and company targets as their priority. It was not until the global financial crisis of 2007–2008 that shareholders became more aware of the fragility of the Western financial system. Disillusionment with the persistence of unseemly levels of compensation for top players that appeared to be unconnected with personal and company performance, following the crash, exacerbated unease among many middle-class voters whose wages had generally remained static in real terms for 30 years.

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In April 2016, residual faith in the integrity of world leaders, people’s representatives in parliaments and high-level bureaucrats, was shaken by the publication of the Panama Papers—the release of emails surrounding business transactions in Caribbean tax havens dating back to the 1970s— which revealed that more than 500 major banks, including subsidiaries and branches, had registered 15,600 shell companies with the firm Mossack Fonseca, with the purpose of concealing assets of tax avoiders and evaders. Those choosing to hide their cash included 12 named heads of state (current or former), their relatives and associates, and businesspeople and other wealthy individuals from around the world (BBC 2016), including a number of government officials from Ecuador (Seter 2019; Gagné-Acoulon 2020). The facility with which government officials and others with high incomes, which had been legally or illegally derived, were able to avoid paying the taxes that were intended to apply to all citizens according to the same rules, further undermined public confidence in various branches of the financial sector and global enterprises as well as in elected officials and structures of government.

The Dawn of Ethical Investment Ethical investment had expanded in the 1990s, with the foundation of the non-profit Coalition for Environmentally Responsible Economies (CERES) investor advisory network in Boston, Massachusetts, following the Exxon Valdez oil tanker disaster in 1989 (CERES 2020). CERES created the Global Reporting Initiative (GRI), which established environmental, social, and governance (ESG) standards for private companies. By 2020, the GRI had been adopted by 13,400 companies, mainly in the USA (CERES 2020). CERES was also one of the founder members of industry-centred Climate Action 100+1 in 2017. By 2021, Climate Action 100+ was supported by more than 570 investment management companies, with more than US$54 trillion in assets under management (Climate Action 100+ 2021). This level of enthusiasm indicated that ethical investments had become mainstream and that any company that did not avowedly embrace ESG guidelines was risking being left behind or being called out for unethical practices in both social and mainstream media. Such that, the largest investment management companies, the foremost being BlackRock, followed by State Street (US$3.9 trillion in

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assets under management in 2021) were the main drivers putting pressure on company directors to give priority to environmental concerns, for financial or altruistic motives. By the Global Sustainable Investment Alliance’s calculations, funds managing US$31trillion—one-quarter of the world’s total—were applying some form of ESG screen to their investments in 2020 (Edgecliff-Johnson and Mooney 2019). The reason for the change was that not only were reputations at stake, but the risks of investing in fossil fuels were becoming greater than investing in ethical funds, whose returns were beginning to outperform investment in traditional sectors. Companies began to reposition themselves, creating compensation incentives for executives to adhere to ESG standards and to set ESG goals. As millennials (those born between 1981 and 1996) began to populate climate change campaigns and mobilizations, it also became imperative for investment management companies to continue to appeal to the pool of graduates from whom they were choosing the next generation of employees, who would also be future investors. Similarly, over the same period, gathering pace in the second decade of the twenty-first century, trade union leaders, workers’ pension fund holders, and student unions across the globe began to ally themselves with divestment campaigns targeted at university endowment and pension fund managers with the goal of achieving a just transition to greener economies (International Trade Union Congress 2020).

United Nations Environment Program Finance Initiative Notwithstanding headlines announcing a watershed decade for investors in terms of climate change and sustainable investments in 2019–2020, work to this end had been in progress since 1992 at the global institutional level. The United Nations Environment Program (UNEP) had been advocating the integration of commitments to environmental sustainability into the financial sector since the Rio Summit in 1992, when it launched the UNEP Statement of Commitment by Financial Institutions on Sustainable Development. Subsequently, the United Nations Environment Program Finance Initiative (UNEP FI) established a series of frameworks within which banks, insurers, and institutional investors were to operate. These were harmonized with the targets of the 2030 Agenda for Sustainable Development and Paris Agreement on Climate

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Change agreed by governments in 2015. The UNEP FI initiatives included the following: • Principles for Responsible Banking (PRB), launched with more than 130 banks collectively holding US$47 trillion in assets, or one-third of the global banking sector, on 22 September 2019. • Principles for Sustainable Insurance (PSI), established 2012 by UNEP FI and in 2020 applied by one-quarter of the world’s insurers (25% of world premium). • Principles for Responsible Investment (PRI), established in 2006 by UNEP FI and the UN Global Compact, applied by half the world’s institutional investors (US$83 trillion) in 2020 (UNEP FI 2020). The UNEP FI continued to work with the World Economic Forum (WEF) and with the Task Force on Climate-Related Financial Disclosures (TCFD), created in 2015, which produced a set of guidelines and recommendations for private companies and the financial sector from 2017 onwards (TCFD 2020). Michael Bloomberg—co-sponsor of the initiative and the first chairperson of TCFD—noted in 2019 that TCFD had 800 public and private sector organizations supporting it, including global financial firms responsible for assets in excess of US$18 trillion (TCFD 2019). The TCFD published its second report in 2019, the result of consultations with 1,000 companies who released information with regard to their efforts to contribute to reducing carbon emissions and to combat climate change. One element of the strategy appeared to be to convince companies that delay in reducing the risks of climate change presented financial risks to the global economy that might amount to the loss of US$1.2 trillion over the following 15 years (TCFD 2019). Within the TCFD scheme, a range of organizations, such as the Institutional Investors Group on Climate Change (IIGCC) and the World Business Council for Sustainable Development (WBCSD) chose to focus on climate-exposed industries, such as the oil and gas industries, to assist them in implementing the TCFD recommendations (TCFD 2019: 111). The degree to which companies had changed their policies in the light of the TCFD recommendations of 2017 was not clear from the TCFD 2019 report, although it was notable that Royal Dutch Shell had agreed to alter the company’s measurement of its carbon footprint and for the

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first time to track emissions that resulted from the use of Shell’s products. This is significant, as those emissions, estimated at 579 million tonnes per year, constituted 88% of the company’s total emissions for 2017 (TCFD 2019: 90). Shell’s target was to reduce its net carbon footprint by 20% by 2035 and by 50% by 2050 aided by a long-term executive compensation incentive reward. Shell had been one of the first companies to concern itself with adverse publicity, integrating environmental concerns into its company reports and website as early as 2009, and being an early subscriber to the Global Compact and the Global Reporting Initiative (GRI) (Royal Dutch Shell 2009). By 2019, pressure from executives of investment management companies against individual company managers, combined with market uncertainties, had begun to have an impact on company activities in terms of compliance with ESG standards. By the end of 2019, yearly net inflows to environmental, social, and governance (ESG) investment funds reached a record high of more US$20 billion, compared with around US$4 billion in 2013. Russel Kinnel of Morningstar declared in June 2020 that sustainable investing strategies had gone “mainstream” (Kinnel 2020). Changes in the mood of investors in this period, particularly in the light of climate movements and social media activity in which millennials were engaged, as analysed in the financial press (Domm 2019; Lokhandwala 2020), now had potential to shift producers towards more sustainable agricultural and manufacturing production. Added to this was the danger of continued class action litigation, against private companies and governments, by communities affected by activities that were damaging to the environment or to human health. Directors of companies were having to reassess shareholder value, which was “increasingly being driven by issues such as climate change, labor practices, and consumer product safety”, according to Cyrus Taroporavela, CEO of State Street Global Advisers, in January 2020 (quoted by Metter and Pugh 2020). Despite the fanfare, however, the bottom line tended to prevail: “Ultimately, we have a fiduciary responsibility to our clients to maximize the probability of attractive long-term returns” (Cyrus Taroporavela, ibid. 2020), although over time the range of goals were no longer mutually exclusive. Precedents were being set through which governments were becoming obliged by regional law, if not by national law, to reduce carbon emissions to protect the public, the public also having newly been designated as stakeholders in companies’ fiduciary responsibilities. The US Business

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Roundtable announced on 19 August 2019 that it was reframing the “purpose” of companies to include the interests of stakeholders broadly, as opposed to only shareholders (Ranawake 2020). BlackRock CEO and Chairman Larry Fink announced in his letter to CEOs across the globe in 2019: “Climate change has become a defining factor in companies’ long-term prospects. Awareness is rapidly changing, and I believe we are on the edge of a fundamental reshaping of finance” (BlackRock 2019). BlackRock announced in 2020 that sustainable investing was at the core of its strategy. It planned to double its investments in sustainabilityfocused funds; divest from portfolio companies deriving 25% of their revenues from coal; vote against management making insufficient progress on ESG matters; and push companies to disclose their climate risks (Gordon 2020). State Street’s CEO Cyrus Taraporevala followed BlackRock CEO Larry Fink’s lead by announcing in January 2020 that three out of four companies had not made meaningful progress on environmental, social, and governance issues, and that they were being put “on notice” (Chasan 2020). State Street announced that they were prepared to take action against board members of companies in the major stock market indexes who have been “consistently underperforming peers” in the company’s ESG performance scoring system (Chasan 2020). In 2020, ShareAction, Follow This, and Climate Action 100+ were able to mobilize support and engage with managements in the hope of bringing about long-term change (Gordon 2020). Activists engaged in a series of strategies in their attempts to move decision-making in an ethical direction, for example by buying shares in companies in order to be able to speak at annual general meetings. Thus, they were able to participate in decision-making over membership of boards of directors as well as to create media campaigns. From the perspective of companies, they stood to lose prospective investors, if they were not seen to comply with ESG standards. Moreover, climate activists sought to convince investment managers that plentiful supplies of cheaper energy from renewable resources such as wind or solar power threatened the market for fossil fuels, leaving investors and investment managers with stranded assets. Playing on the risk factor for investment managers enabled them to view divestment from fossil fuels as an option to reduce potential losses from falls in share prices or dividends. By 2020, the management consultant firm McKinsey had

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assessed that profits of 25% of companies would be affected by their ESG scores, and Citigroup’s prediction that investments in Green Bonds would reach trillions of dollars was proving to be justified. The Swedish Bank SEB had also estimated that 20% of all bonds would be Green within a few years (Ranawake 2020). Overall, the trend appeared to be heading in the direction of the achievement of upholding human rights and environmental objectives, from the perspective of the aspirations of investors, of Larry Fink, investment managers, of company employees, and of environment and land defenders. Moreover, the financial literature, aimed at companies concerned at the possibility of litigation or exclusion from organizations on the grounds of non-compliance with international standards, emphasized the long-term financial benefits of complying with ethical standards. Ranawake noted, for example, that sustainability reporting was a widespread practice among companies, with 85% of the S&P 500 producing sustainability reports in 2019. ESG disclosure was shown to relate to positive changes in stock price (Ranawake 2020). Prior to 2019, returns on investments had been lower from ethical funds than from regular funds, but by the end of 2019 some climate change ETFs had performed better than expected (Domm 2019), so investment managers became less cautious. From a broader perspective, beyond concerns relating to short-term— or even medium-term—profits for investment managers, prospects of real damage to business—among insurers and bankers, for example—from climate change were beginning to instil fears of losses to the economy. Economist Diane Swonk commented in 2019 that weather was a “today problem”, and that “once-in-a-hundred-year storms” were coming every year. “Whether you believe in it or not, it’s something you should hedge against … This is real money. It means real money, a real loss of money and real opportunity”, Swonk said. “What you’ve got at the end of the day is money talks. If people won’t listen to mother nature, they will think of the greenback” (Swonk, quoted in Domm 2019).

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Watching Their Greenbacks: How Ethical Are Ethical Investments? The compliance mechanisms by which companies subscribing to global institutional agreements on Environmental, Social, and Governance standards were measured and implemented were still in their early stages in 2019–2020. A number of companies highlighted the use of third-party auditing of their ESG performance in their annual sustainability reports, but self-reporting continued to be standard practice. Measurement of environmental impacts of particular industries is complex. This was illustrated by the contents of the TCFD report of 2019, sponsored and endorsed by Michael Bloomberg, which indicated that companies who agreed to contribute to the report did so through self-reporting mechanisms, each choosing their own method of evaluation. The complexity, arbitrariness, and opacity of the report’s content is an indication of the challenge of measuring companies’ contributions to reducing carbon emissions and to combating climate change. In practice, sustainability reporting is multi-faceted and labyrinthine. Ranawake noted in 2020 that there was “a bewildering number of standards in use by ESG data providers, asset managers and corporations. Some measure performance against the 169 targets which underscore the 17 United Nations Sustainable Development Goals. Many have established proprietary valuation methodologies such as MSCI [Morgan Stanley Capital International], Sustainability Accounting Standards Board (SASB)2 and the Embankment Project for Inclusive Capitalism”.

Naming and Shaming Recalcitrant Private Enterprise The thinktank Influence Map, formed in 2015 just prior to the Paris Climate Summit, was in 2020 engaging in monitoring the activities of business and finance with a view to supporting them in enabling them to alter their practices in the direction of sustainability. According to their website, the non-profit believed that the asset management sector is key to influencing companies in changing their policies in the light of the “vast portfolios the leading players manage, their interactions with companies in the real economy and power in shaping government policy as a key economic sector in its own right” (Influence Map 2019).

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Their November 2019 report, “Asset Managers and Climate Change”, praised a number of asset management companies for progress in holding companies to account. Of the larger asset management companies, Legal & General, UBS, AXA, Allianz, and Crédit Agricole, all of whom were participants in the Climate Action 100+ initiative, were presented as exemplary, as were smaller companies BNP Paribas and Aviva. Notably absent from the November 2019 list were BlackRock, Goldman Sachs, and JP Morgan Chase. Central to the approach of both Climate Action 100+ and Influence Map was an effort to convince asset managers and businesses that climate change would affect their own profit margins, and that climate change would have an impact on the real economy. Influence Map (2019: 1) noted that “The portfolios held by the 15 largest asset management groups remain significantly misaligned with the targets of the Paris Agreement”. There was evidence of an unwillingness on the part of many investment managers and companies to acknowledge the existence of climate change, its causes, and its effects, but also to address the problem of the constraint of investment managers’ fiduciary responsibility to secure maximum gains for shareholders independent of any ethical or long-term planetary concerns. Hence the careful wording of the Global Investor Statement on Climate Change announced from 2015: As institutional investors and consistent with our fiduciary duty to our beneficiaries, we will work with the companies in which we invest to ensure that they are minimizing and disclosing the risks and maximizing the opportunities presented by climate change and climate policy. (Climate Action 100+ 2021: 1)

The statement enabled asset managers to appear to remain within the bounds of seeking maximum gains both for investors and for the planet. While it is not possible to determine the level of influence of the lobbyists, the influencers, the media, the NGOs, social media, alliances of investors or individuals, regarding this shift, changes were visible at the discursive level in 2019 and 2020 if not at the climatic level, as has been evidenced.

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The Broad Brush of ESG Compliance: Company Track Records The environmental, social, and governance elements of ethical investments offered by BlackRock and the mutual investment management company, Vanguard, included companies whose chief executives had signed joint letters to the US government to urge the US Trump administration (2016–2021) to stay within the Paris Climate Agreement of 2015. Apple, Bank of America, Coca Cola, and IBM were the companies that had signed off on five open letters on ethical issues; other companies who had deferred from signing the joint climate-related letter, such as Procter & Gamble and Johnson & Johnson, remained in the Black Rock—and Vanguard—designated “ethical” camp, nevertheless. State Street of Boston announced the launch of a new sustainable Exchange Traded Fund (ETF) in Australia in July 2020, but although it screened out companies involved in tobacco and “controversial” weapons, as well as those companies with low scores under the United Nations Global Impact project, it was still open to investment in fossil fuels, therefore qualifying for the “ethical light” category, the main purpose of the exercise having been to undercut Vanguard’s high fees for investment in its own ethical shares (Vickovich 2020). In terms of balancing ethics and profits, Morgan Stanley’s 2017 report had indicated that the millennial investors surveyed for their second investigation had a greater awareness of what they understood as a “trade-off” when it came to ethical investing; that is, they understood that there would be a financial price to pay for investing ethically. Notably, in defending the new Australian ethical tracker’s compromise in allowing investments in fossil fuel companies, State Street Executive Vice-President Rory Tobin justified the compromise on the grounds that it was the price to pay for “democratizing” access to ethical and sustainable investing (Vickovich 2020). In 2020, several of the world’s largest and most powerful, or most wellknown, companies featured in Vanguard’s ethical funds, such as Apple, Amazon.com Inc., Facebook Inc., Microsoft, and J P Morgan, none of the names of which would instantly come to mind on a chosen list for ethical investors, except that these companies were not engaged in manufacturing weapons or tobacco. These particular investments could perhaps be considered as ethical, therefore, only on the basis of negatives rather

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than positives in their favour. The tendency towards passive exclusionary— avoiding companies engaging in what some might consider unethical business—evolved into what Vanguard called focused active—not just excluding companies in the alcohol, tobacco, weapons, nuclear power, gaming, and fossil fuel industries, but deliberately selecting companies that demonstrated exemplary management and high ethical standards. Vanguard had a third category for companies that were outstanding in their environmental, social, and governance practices, which they called integrated active. This category did not exclude any industries per se on the grounds of the type of activity they were engaged in, but included companies that followed “leading ESG practices” and which had proven track records of capital allocation (Kinnel 2020). Hence, it should not necessarily be surprising, but is remarkable, that Vanguard chose the mining and oil companies B H P Billiton and Total to recommend as “ethical”. In the case of B H P Billiton, it should be noted, the company was facing a US$5 billion claim in 2020 for the collapse of the Fundão tailings dam at the iron ore Germano Samarco mine in Mariana, Minas Gerais, Brazil, that took place in 2015, B H P Billiton having been involved in the construction of the dam alongside the company Vale, with which it was the co-owner. In 2020, the indigenous Krenak and Guarani tribes who live in the area affected brought a class action suit representing 200,000 people whose livelihoods were affected by the spilling of 44 million cubic meters of mining waste from the collapsed dam into the river, which had been the source of the indigenous communities’ subsistence (Valle 2020).

BlackRock: Taking Action Against Climate Inaction? Financial data between 2014 and 2018 showed that BlackRock was among the top three shareholders in 25 of the world’s largest publicly listed “deforestation-risk” companies—companies active in producing and trading soy, beef, palm oil, pulp and paper, rubber, and timber—and was among the top ten shareholders in 50 more of the world’s largest deforestation-risk companies. The data further revealed that BlackRock’s holdings in these sectors increased by more than half a billion dollars between 2014 and 2018 (Conant and Madan 2020; Stand.Earth 2020). During the year 2019, however, as we have seen, BlackRock appeared to undergo an environmental transformation; in the face of the burning of

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forests in the Brazilian Amazon, where BlackRock was a major investor, it took on board the dire warnings from the science community with regard to climate change. BlackRock had already come under criticism for activities of companies in which it was invested. Some global investors, such as the Norwegian Government Pension Fund, according to Amazonwatch (2019), had blacklisted many of the companies in BlackRock’s portfolios and urged others to address the Amazon fires. Leading pension funds like CalPERS had recognized deforestation as a material investment risk, yet BlackRock had taken no action against companies up to that point, despite the public statements dating back to 2018 by CEO Larry Fink that companies needed to have a “social purpose” (Sorkin 2018). BlackRock did eventually take the decision to move on climate change, and on 14 July 2020, the company issued a report in which it stated that climate risk was investment risk and that sustainability-integrated portfolios, and climate-integrated portfolios in particular, could produce better long-term, risk-adjusted returns (BlackRock 2020a: 3). Earlier in the year, it had taken voting action against 53 companies on climate grounds, including ExxonMobil, Daimler, and Volvo. It announced that it would support shareholder proposals for the companies to adhere to stricter environmental requirements (BlackRock 2020a). The report listed 244 companies which BlackRock considered had not made sufficient progress in integrating climate risks into their business models. “When we vote against a company, we do so with a singular purpose: maximizing longterm value for shareholders”, the report stated (BlackRock 2020a: 9). “We believe sustainability is core to value creation for our clients” (BlackRock 2020b: 2). By the end of 2020, BlackRock had voted against the management of 69 companies, a list that it was planning to expand to 1,000 companies in 2021 (Rathi 2021). In 2020, 191 companies had been “put on watch” (BlackRock 2020a: 4), meaning they faced voting action in 2021 if improvements were not made. BlackRock was urging firms in this cohort to comply with the Task Force on Climate-Related Financial Disclosures’ recommendations and to produce their sustainability reports in line with Sustainability Accounting Standards Board (SASB) stipulations, exhortations reiterated in BlackRock’s February 2021 sustainability announcements (BlackRock 2021). In 2020, BlackRock’s solution to some investors’ desire to invest in stocks of companies that made a positive contribution to the achievement

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of human rights and environmental goals was to provide a choice out of two categories of ethical investment offerings, both under the umbrella category of “sustainable solutions”. The first category was the “avoid” “solution” (equivalent to Vanguard’s “passive exclusionary” category) and second, the “advance” solution, which would be “focused active”, equivalent to “integrated active”, in Vanguardian investment terminology (BlackRock 2020b; Vanguard 2020). “Avoidance [author’s emphasis] involves the elimination of certain companies or sectors that are associated with increased ESG risk or which violate the asset owner’s values”, and “Advance” strategies focussed on increasing exposure to positive ESG characteristics to align capital with certain behaviours or target specific positive social or environmental outcomes” (BlackRock 2020b). BlackRock’s “Advance” strategies in 2020 did include a range of companies invested in the solar power industry—which could be considered a positive. On the other hand, a Brazilian company listed in the “Advance” strategy section included Companhia Energetica de Minas Gerais (CEMIG) of Brazil (US$43.89 million invested in 2020), the primary activity of which was the construction and management of hydro-electric dams, which BlackRock, like Vanguard, included within its “ethical” categories of investment. The construction and operation of dams in Brazil have generated controversy over many years: not only have lives been lost in accidents; dams have also resulted in the forced displacement of indigenous peoples—turning them into “development refugees” (Serpell 2020), and occasioning loss of cultures, loss of biodiversity, and damage to entire ecosystems (Torres and Branford 2018; Cardoso Ribeiro and Branford in Gatehouse, T. (ed.) 2019). There is a history of dam construction in Latin America and elsewhere, where dams have not only resulted in widespread environmental damage but have been operational failures (Roy 1999; Kim 2009; Paz Cardona 2020). Some failures have been attributed to climate change which has affected rainfall and thus river flow patterns (Serpell 2020). Yet over the entire course of the twentieth century, the detrimental effects of dams were recognized (see Chapter 8), with 1,700 having been removed in the USA alone (Matthews 2020). In 2019, 90 dams were removed in a record number of US states (ThomasBlate 2020), and over 2019–2020, more dams were being removed in North America and Western Europe than were being built (Habel et al. 2020).

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With regard to BlackRock’s environmental footprint 2019–2020, it was notable that BlackRock’s Sustainable Funds were remarkably similar to its regular funds, comprising mainly of equities in Apple, Microsoft, Amazon, Alphabet, Facebook, Ali Baba, Johnson and Johnson, and Nestlé, with an ethical line-up very similar to that of Vanguard (BlackRock 2020b; Vanguard 2020). The major difference between BlackRock’s sustainable and non-sustainable funds was that the regular (nonsustainable) funds were invested in a number of companies engaged in activities considered exceptionally harmful to humans and the environment. In 2019, estimates were that 97.5% of BlackRock’s investments were in non-sustainable (regular) non-ESG funds, down only slightly from the previous year’s percentage of 97.9%, and it was still the world’s largest investor in fossil fuels in 2020 (Sammon 2020). Moreover, BlackRock had not supported any shareholder resolutions on CO2 emissions’ disclosure in 2018 and had voted against 89% of all climate-relevant resolutions, according to the World Resources Institute (Christianson et al. 2020). BlackRock’s position had begun to change in January 2020, when the company announced that it would double the number of its sustainable “climate friendly” ETFs to around 150 (Henderson et al. 2020), but as two-thirds of its investments continued to be in the form of passively managed index funds, change was clearly not going to happen overnight. Meanwhile, environmental movement actions against BlackRock persisted. Larry Fink himself was trailed, and there was an occupation of BlackRock’s Paris (France) offices on 10 January 2020 where Youth for Climate France overwhelmed security guards and painted the walls with graffiti in protest at BlackRock’s investments in Vinci SA, Total SA, BNP Paribas SA, and Société Générale SA, companies regarded as having contributed to widespread environmental damage (Sebag 2020). These events were overtaken and somewhat eclipsed by the spread of the COVID-19 virus in March 2020, and the emergence of Black Lives Matter protests, which drove renewed interest in, and an inflow into, ethical funds by mid-year. Blackrock opened up six new ESG ETFs in June 2020, four of which screened out palm oil and prisons-for-profit, as well as fossil fuels and weapons (BlackRock 2020a). The company announced that it would eliminate from its portfolios companies that derived a quarter or more of their revenue from thermal coal, and that over the following ten years it would increase its “sustainable” investments from US$90 billion to $1 trillion.

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In July 2020, however, US$263 million of BlackRock funds were still invested in Wells Fargo, $262 million in Philip Morris, $262 million in Exxon Mobil, and $264 million in Marathon Petroleum Corporation. US$1 million was invested in Royal Gold, which had royalty rights over 12 mines in Latin America in 2020 and rights over gold, silver, copper, lead, and zinc deposits in over 20 countries (Blackrock 2020a). Despite BlackRock’s heavy reliance on what might be considered unethical and climate-unfriendly investments in 2019–2020, BlackRock was still regarded as leading the field in pushing for environmental regulation—both state and private—in 2021. Looking towards the longer term, with regard to BlackRock’s influence over the entire financial sector, Taha Lokhandwala, an editor of the UK’s Telegraph Investor, pronounced in 2020 that Larry Fink’s initiatives were bound to have an influence over investment managers and company directors in view of the fact that BlackRock owned iShares, the world’s largest provider of passive and exchange-traded funds. “Companies that ignore the risk of climate change and do not change their practices will fall behind over the long term. Where BlackRock wants investors to go, markets will follow”, Lokhandwala commented in 2020. No mention was made of divesting from the major oil and gas companies going forward. All the same, by mid-2020, companies’ fears of stranded assets prior to the COVID-19 pandemic had become a reality, as the US benchmark oil price briefly fell to below zero on 20 April 2020. Exxon, once the world’s largest public company, was dropped from the Dow Jones index in August 2020, leaving just one oil company on the list (Horowitz 2020). By 2021, Exxon had been put under pressure from activist investors for its poor shareholder returns and environmental record. In December 2020, a number of Exxon’s institutional investors had called for detailed emissions data, and the company was forced to release Scope 3 (indirect upstream and downstream emissions) as well as Scope 1 and 2 data (Crowley and Rahi 2021). By February 2021, Royal Dutch Shell had laid out a detailed plan for its transition to cleaner energy (Hurst 2021). A landmark decision was made in early 2021, when, under pressure from the NGOs Amazonwatch and Stand.Earth, three European banks, Credit Suisse, Dutch ING, and France’s BNP Paribas, decided to withdraw financing for oil exports from the Amazon, specifically those sourced in Ecuador, with particular reference to the Yasuní National Park (Hughes Neghaiwi et al. 2021). The NGOs had argued in a July 2020 report (Stand.Earth 2020) that the financing of Ecuadorian oil exports

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to US refineries was not compatible with the banks’ declared support for environmental initiatives. Natixis, UBS, and Rabobank remained as financiers for Ecuadorian oil exports (Hughes Neghaiwi et al. 2021). The Ecuadorian state oil company PetroEcuador pushed back against these developments, announcing in response to the withdrawals of finance from some banks that oil exports would continue in 2021 (Reuters 2021). The move taken by the other three European banks to withdraw from existing arrangements, however, demonstrated the potential impact of pressure from indigenous organizations working with local and international environmental and human rights NGOs.

Climate 100+ Letter to the US Federal Reserve and the Securities and Exchange Commission Early subscribers to the Climate 100+ initiative were Legal & General, UBS, AXA, Allianz, and Crédit Agricole. BlackRock, Goldman Sachs, and J P Morgan Chase joined later (Influence Map 2019). J P Morgan appeared in BlackRock’s sustainable list in 2020, and Goldman Sachs signed on to the climate element of a joint open letter, organized by CERES Accelerator for Sustainable Capital Markets, which was published on 21 July 2020. The letter was endorsed by more than 30 fund managers and financial institutions which together managed almost US$1 trillion in assets. It referred to the financial cost of the climate crisis, which the fund managers said “poses a systemic threat to financial markets and the real economy, with significant disruptive consequences on asset valuations and our nation’s economic stability” (Flavell 2020). The joint open letter referred back to CERES’s June 2020 report, which recommended that the US Federal Reserve and the Securities and Exchange Commission (SEC) acknowledge the risks of climate change and ensure mandatory disclosure of climate threats facing companies. The idea was to warn companies that if they did not engage in policies that would reduce carbon emissions, they risked losing access to loans, insurance coverage, and clients. The letter was also signed by the California State Teachers’ Retirement System, CalSTRS, which in 2020 managed US$246 billion; the New York City Comptroller’s Office, which managed pension funds of US$206 billion; and the New York State Comptroller’s Office, which managed the State’s pension funds of $211 billion (CERES 2020).

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The CERES letter may have had a bearing on US Federal Reserve Chair Jerome H. Powell’s announcement in December 2020 that “Climate change is an emerging risk to financial institutions, the financial system and the economy” (quoted by Siegel 2021). Notably also, under the administration of US President Biden in early 2021, the US Securities and Exchange Commission (SEC) named a senior policy adviser to oversee the agency’s work related to climate risk and other environmental issues (ibid.).

Leading Technology Companies on the Climate Change Bandwagon On 21 July 2020, the same date that the letter to the SEC and the Federal Reserve was published, Apple issued a statement by which the company committed itself to reducing greenhouse gas emissions, announcing that by 2030, “the company plans to bring its entire carbon footprint to net zero 20 years sooner than IPCC [Intergovernmental Panel on Climate Change] targets”; and that “every Apple device sold will have net-zero climate impact” (Apple 2020). In its 2020 “Environmental Progress Report” also released on 21 July, Apple announced that it would reduce emissions by 75% by 2030 “while developing innovative carbon removal solutions for the remaining 25% of its comprehensive footprint” (Apple 2020). Apple was planning joint projects to increase renewable energy resources for its suppliers in China. On its website, the company announced that it planned to increase energy efficiency, recycle more components, including rare metals, and to fund reforestation projects. The company stated that it was working with the Conservation Fund, Conservation International, and the World Wildlife Fund (WWF) on projects in Africa and Colombia where, as well as in China, Apple claimed to have a history of supporting projects to manage and improve 1 million acres of forests (Apple 2020). A note of scepticism was called for. Elizabeth Jardim, Vice-President of Greenpeace, welcomed the claims, while at the same time pointing out that much of Apple’s production, apart from data centres, continued to rely on fossil fuels in 2020. Jardim cautioned against taking on face value the phrases “carbon neutral” and “carbon negative”, which often signified offsetting emissions rather than reducing them (Sengupta and Penney 2020b).

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Apple’s environment-friendly announcements were replicated by Amazon, Facebook, Google, and Microsoft—the major technology giants who could not afford to be viewed by millennials as not fulfilling their responsibilities to future generations. Their statements have to be seen in the light of increasing pressure on all the companies concerned from NGOs, investors, and employees. Facebook was accused by its detractors of giving space to climate deniers; Greenpeace denounced Google, Microsoft, and Amazon for allowing the extractive industries to use their platforms for locating deposits of oil and minerals (Sengupta and Penney 2020b). Amazon, Google, and Microsoft had continued to provide services to oil companies, such as Chevron, Exxon, and Total, whose business they were actively courting (Merchant 2019a). Meanwhile, the same companies were also faced with the prospect of their employees walking off the job, as they had in September 2019 when some had joined in Climate Strike protests (Newcomb 2019). Amazon had announced on 19 September 2019 that the company would be carbon neutral by 2040, the day before 1,749 Amazon employees planned to strike in protest at Amazon’s lack of action on climate change and were demanding the company commit to carbon neutrality by 2030 (Amazon Employees for Climate Justice 2019). In response, Amazon chief executive Jeff Bezos committed US$10 billion to fund climate science and advocacy, and announced that he would aim for carbon neutrality in 2040 (Sengupta and Penney 2020a). Meanwhile, Bezos said that he would continue to work with oil and gas companies, though it was announced that the company would be buying 100,000 electric delivery trucks. As with Apple, the carbon-neutrality commitment was to be achieved by carbon offsetting rather than reduction in emissions (Sengupta and Penney 2020a). In the case of Facebook, the company announced in 2019 that it would commit to using 100% renewable energy in its facilities. In its 2019 Sustainability Report, the company claimed that it had achieved a 59% reduction in carbon emissions 2017–2019, that it was using 86% renewable energy, and that it had made sustainability data disclosures since 2011, now third-party verified (Facebook 2019). In the meantime, Google was reported by investigative journalists to have made large contributions to climate deniers, including companies close to the Koch brothers and the administration of US President Donald Trump, in 2019 (Kirchgaessner 2019a), after which 1,000 Google employees presented an open letter asking for the company

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to commit to a “company-wide climate plan” that included cancelling contracts with the fossil fuel industry and halting donations to climate change deniers. The letter called for “zero funding for climate-denying or -delaying think tanks, lobbyists and politicians”. Company employees took part in the September 2019 climate strike. Google activists were critical of the company’s funding of 111 members of the US Congress who, they claimed, voted against climate legislation at least 30% of the time (Wong 2019). The company responded positively to the criticisms and, in January 2020, Google announced plans to reduce emissions. In May 2020, the company announced that it would distance itself from the oil and gas sector and that it would include recycled material in its devices by 2022 (Sengupta and Penney 2020b). In 2020, Microsoft said it planned to capture more emissions than it emitted by 2030, and even to remove all the emissions the company had ever produced since 1975. It had made a commitment in 2019 to invest US$1 billion in so-called climate innovations, but retained its partnerships with oil and gas companies such as Chevron and Exxon (Roberts 2020; Sengupta and Penney 2020b). The company appeared to be taking the same road as Amazon in terms of the gap between words and action, in that the same week that Microsoft committed itself to carbon neutrality, it sponsored an oil conference in Saudi Arabia (Merchant 2019b). Moreover, Microsoft had a problem in that it had for decades presented itself as the leader in climate initiatives and needed to outdo its rivals in climate action. In its bid to exceed the ethical achievements of its rivals, by claiming extravagantly to be able to capture carbon, however, it was pushing credibility to its limits. Microsoft executive Brad Smith estimated in January 2020 that the company’s carbon emissions in 2020 would be 16 million metric tons, 12 million of those in Scope 3, which is the total emissions from the use of its products worldwide (Roberts 2020). The company had been supposedly 100% “carbon neutral” since 2012 and had actually been presented with a prize from the US Environmental Protection Agency (EPA), but as with the other technological companies, neutrality was achieved was through carbon offsetting. With regard to the commitment to carbon capture on a grand scale, the company admitted that the technology did not yet exist to achieve its goals (Roberts 2020). It was clear from the pronouncements of the major technological companies, not surprisingly, as well as those of the fossil fuel companies,

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that the focus of their ESG commitments was to develop new technologies in order to achieve ESG goals, although clearly this was going to take many years to achieve. Of all the companies engaging in campaigns to establish their environmental credentials, it was revealed that Microsoft had the greatest number of contracts with the oil and gas industry, according to Greenpeace’s July 2020 report (Greenpeace 2020). As regards the fossil fuel companies, in order not to have to cease production altogether, in 2019–2020 they committed themselves to ensuring greater efficiency in the production and the consumption of oil and gas as well as to expanding use of solar or wind energy; they continued to confront credibility challenges, however, not least as a result of ongoing reports of threats to the environment posed by the planned construction of pipelines. The 2020 Greenpeace report referred to the use of pipelines to transport oil and gas, which have had detrimental effects on both communities and the environment, particularly in the light of oil spills that continued through 2020 (Greenpeace 2020) (see Chapter 8).

The Limitations of Green Finance and Carbon offsetting The capitalist “just transition” to renewable energy that would bring about a reduction in carbon emissions, as envisaged by Larry Fink, clearly was one that would take some time, in that it was not possible to shut down all oil wells overnight, but it was one that he appeared to believe would solve the climate crisis. With regard to investors, Fink commented that “No issue ranks higher than climate change on our clients’ lists of priorities. They ask us about it nearly every day” (Fink 2021; see also Adamczyk 2020). Although investors’ priorities were of consequence, and Larry Fink was in a position to assist in satisfying investor preferences— in terms of the direction of their investments—his solutions ultimately were going to chip away at the edges of one of the causes of climate change rather than bringing about structural changes to economic and trading practices, changes that were necessary to preserve and maintain ecosystems vital for the survival of the planet. In his 2021 letters to company directors and investors, Fink stressed the importance of both public and private industry engaging in sustainable practices, and for public-private collaboration. The aim was to achieve more than lip-service to the goal of reaching carbon neutrality and to ensure that companies monitored and disclosed their carbon emissions

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in order for improvements to be measurable. The difficulty, indirectly identified by Fink, was the variety of reporting mechanisms that frustrated efforts to compare progress across companies and the need to create a single standard. In 2021, BlackRock continued to work alongside Michael Bloomberg in the creation of the Task Force on Climate-Related Financial Disclosures (TCFD) standards, as well as endorsing SASBaligned reporting, though the details recorded in the 2019 and 2020 TCFD reports demonstrated the challenge of harmonizing the variety of reporting mechanisms used by companies, and the scarce Scope 3 reporting of emissions downstream of production. The slow pace of even agreeing on methodologies and mechanisms to evaluate carbon emissions for the TCFD report and the germination stage of the sustainability reporting proposals put forward by the International Financial Reporting Standards Foundation in its August 2020 Due Process Handbook did not portend speedy action. Even a best-case scenario, however, of perfectly standardized emissions-reporting mechanisms, leading to a reduction of carbon emissions from industry—although the one would not necessarily follow from the other—as a result of improvements in the energy efficiency of manufacturing industry, or of agriculture, would not be a silver bullet for the climate. Nor indeed would be an increase in carbon offsets or carbon pricing, so beloved of sustainable development advocates. Larry Fink’s BlackRock January 2021 letter to clients endorsed the global market for carbon offsets, which it suggested was not a replacement for emissions reduction, but an additional tool towards that end. It could be argued, however, that carbon offsets not only do not contribute to solving the problem of carbon emissions, but provide an incentive not to reduce carbon emissions through entering into the compensatory activity of investing in supposedly environmentally beneficial green projects such as commercially profitable forest plantations in developing countries. In sum, BlackRock’s climate agenda could be viewed from four perspectives: first, as leading the field—after the fact—on the road from Paris 2015 in genuinely supporting global initiatives from governments, the private sector, and social and environmental movements, towards a more sustainable world; second, as creatively harnessing the benefits of the emergence of climate-conscious millennials with investment portfolios that they wish to be ESG compliant; third, as anticipating the decline in profits and dividends from polluting industries such as fossil fuels; or, fourth, as succumbing to pressure from indigenous movements and environmental and indigenous rights’ NGOs such as Amazonwatch and

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Pachamama, which have engaged in campaigns that damage BlackRock’s reputation. From whichever perspective, BlackRock’s strategies on climate, including its support for the Task Force on Climate-Related Financial Disclosures (TCFD), still fell short of what is required not only to protect the environment generally, but to halt climate change.

BlackRock, Amazonwatch, Indigenous Peoples, and the Environment For its part, in early 2021, the NGO Amazonwatch took credit for BlackRock’s progress in pushing companies and investors towards supporting the achievement of environmental objectives. Yet, as has been discussed, Amazonwatch noted—a position not denied by BlackRock itself—that two-thirds of BlackRock’s investments on behalf of their clients continued to be invested in non-sustainable products, e.g. non-renewable energy, although this was not advertised on BlackRock’s main website. Amazonwatch’s response to BlackRock’s January 2021 letters to CEOs and clients was positive, though it observed from NGOs’ analyses of Larry Fink’s letter that there were omissions that would have serious consequences for the environment (Amazonwatch 2021). These omissions were evident also in BlackRock’s July 2020 sustainability report. There were references to issues “beyond climate” as well as “broader sustainability risks” as part of the BlackRock Investment Stewardship (BIS) project (BlackRock 2020: 16), with agribusiness mentioned in passing (p. 5), as well as the racial and ethnic profile of companies’ US workforces (p. 5). Emphasis on the ethnic composition of the US workforce, however, limited the breadth of stakeholders geographically. Although this consideration of “broader sustainability risks” appeared to constitute a departure from the previous focus on emissions targets, there was a continued focus on companies’ “making insufficient progress integrating climate risk into their business models or disclosures” (p. 4), investment “risk” being the operative word. BlackRock’s concept of “broader sustainability” took the form of “community outreach” (p. 20) in the context of building a “diverse, engaged workforce and a strong corporate culture within supportive [emphasis added] local communities” (p. 21) (see Chapter 5 for oil companies’ support of local communities and local communities’ experiences with extractive industries). BlackRock’s reference to these “supportive” local communities begs the question of

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a company’s potential response were a community to be hostile to a company’s proposals. It was not clear whether concern for “external stakeholders on which [companies] depend” (p. 22) might include indigenous communities in the Amazon. In BlackRock’s July 2020 report, “health and wellbeing” (p. 21) as an aspiration for “stakeholders”, appeared to be reserved for care of companies’ employees during the 2020 COVID-19 pandemic.

Conclusions In view of the ESG-focused activities of the Climate 100+ companies, the “Sustainability Investment Forum” and much of the work of CERES, by necessity private industry has been engaged in related research and development, innovation, expanding markets, and global trade, which has led to a quest for alternative energy sources that can compete with fossil fuels in terms of cost and capacity. Over the course of 2020, private sector attention in the environmental sphere tended to be directed towards improvements in efficiency and technology, investment in renewables, and efforts to achieve carbon neutrality within a paradigm of economic growth rather than the achievement of protection of ecosystems. This is where the silences were more significant than the noise, and where there existed a “blind spot” within the TCFD approach of concentrating on measuring emissions and companies’ disclosure of information (Hawkes 2021). As Hawkes noted, the problem is not a lack of reporting, which is what the advocates of TCFD would have us believe, but one of supply chains—in particular, the source of products that are the outcome of deforestation, such as beef derived from ranching on areas of cleared rainforest in the Amazon. Global Witness reported in 2021 that “key cheerleaders of green finance, such as Barclays or ING bank, are in their mainstream operations financing beef traders complicit in tens of thousands of hectares of Amazon rainforest destruction” (Hawkes 2021), meaning that no incentives were in place for companies to adopt more sustainable production models. BlackRock’s CEO letters, its sustainability and stewardship reports of 2020 and 2021, as well as its website, omitted mention of possible sanctions against companies that might have been engaged in practices that encourage deforestation, companies that have invested in environmentally harmful agribusiness in the Amazon region, or which have built or operated hydro-electric dams, the activities of which are likely to involve the

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reduction of the carbon sink function of forests, the emission of greenhouse gases, disruption of ecosystems, and accelerated climate change. The narrow view of climate change as being almost entirely the result of fossil fuel-generated CO2 emissions, to the exclusion of changes to forest cover or to river flows from logging operations or dams, indicates a partial and therefore inadequate approach to wider environmental and existential threats to the climate and the planet. Loss of biodiversity consequent upon the loss of old forests has been identified as one of the key causes of climate change, as argued by Inger Andersen, Executive Director of the United Nations Environment Programme in 2021 (Andersen 2021). BlackRock’s various presentations of its agenda for the future in 2020 and 2021 failed to recognize the damage that had been caused by its investments in industries whose activities in the Amazon basin had adversely affected local people, including indigenous and forest-dwelling communities. The path of seeking technological solutions to reduce carbon emissions without making a connection between extraction, manufacturing, trade and transport, the consumption of disposable products, and the damage to the environment caused by these activities, given the power of corporations and the financial sector to influence policy decisions, creates a disconnect between their purported environmental credentials and the potential for maintaining the balance of the world’s ecosystems. The environmental aspirations of private industry are necessarily constrained by the imperative towards expansion and economic growth, which creates a framework in which alternative de-growth or non-growth models are not seriously entertained, as they necessarily and inevitably often do not align with the interests of either manufacturers, company executives, employees, or investment managers. While intergovernmental organizations and agencies have recognized the importance of indigenous peoples’ stewardship of forests, state-owned industries and private corporations in the agricultural and extractive sectors have been slow to take action to protect indigenous communities’ rights over land and resources, resulting in conflict, violence, and criminal conviction of land and environment defenders. Entering the third decade of the twenty-first century, indigenous peoples were still being regarded by state governments as a development liability rather than as a development asset. During the 2020–2021 COVID-19 pandemic, a number of governments rolled back environmental safeguards to facilitate the operations

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of extractive industries in indigenous controlled areas by making changes to existing laws, such that deforestation globally surged in 2020 (Forest Peoples Programme 2021). Lack of the power of enforcement may have contributed to the failure of efforts of UN agencies and NGOs to halt deforestation in a number of countries, creating a space in which investment management companies, such as BlackRock, might have stepped in to exercise their power and exert pressure on private industry to uphold land rights of indigenous communities in order to protect forests. With more than 500 companies having signed on to the Climate 100+ initiative by 2021, representing 80% of global industrial emissions (Climate Action+ 2021), a critical mass of companies had been created with the potential to contribute to successful global environmental governance. Unfortunately, the preoccupation with industrial emissions was a problem in itself. Furthermore, the restricted brief of the investment management companies in the limited guidance, incentives, and sanctions against clients (companies) that were not making progress in reducing carbon emissions—in that the private sector climate change initiatives had not so far incorporated oversight over community stewardship of forests—had resulted in maintenance of the status quo and even increased levels of deforestation. By not acknowledging the importance of forest peoples’ rights or addressing the issue of loss of biodiversity and its causes, investment management companies, despite the immense resources over which they have some control, showed themselves unable or unwilling to fulfil the role in global environmental governance that was open to them, even when the investment preferences of millennial investors indicated increasing stakeholder commitment to environmental protection.

Notes 1. Launched in December 2017, Climate Action 100+ is an investor-led initiative to ensure the world’s largest corporate greenhouse gas emitters take necessary action on climate change through cutting emissions and strengthening climate-related financial disclosures. The work is coordinated by five regional investor networks: the Asia Investor Group on Climate Change (AIGCC), Ceres, Investor Group on Climate Change (IGCC), Institutional Investors Group on Climate Change (IIGCC) and Principles for Responsible Investment (PRI). Design and development was conducted by representatives from AustralianSuper, California Public

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Employees’ Retirement System (CalPERS), HSBC Global Asset Management, Ircantec and Manulife Asset Management (Climate Action 100+ 2019). 2. The Sustainability Accounting Standards Board (SASB) (Emeritus Chair Michael R. Bloomberg) is an independent non-profit organization that sets standards to guide the disclosure of financially material sustainability information by companies to their investors. SASB Standards identify the subset of environmental, social, and governance (ESG) issues most relevant to financial performance in each of 77 industries. SASB also provides education and other resources that advance the use and understanding of its Standards. https://www.sasb.org/.

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Sorkin, Andrew. 2018. “BlackRock’s Message: Contribute to Society, or Risk Losing Our Support.” New York Times, 15 January. www.nytimes.com. Accessed 12 February 2021. Specter, Emma. 2019. “These Indigenous Activists Are Fighting for the Future of a Ravaged Amazon.” Vogue, 14 October. https://www.vogue.com/article/ indigenous-activists-amazon. Accessed 30 March 2021. Stand.Earth. 2020. “European Banks Financial Controversial Trade of Amazon Oil to the US.” August. www.stand.earth/sites/stand/files/eu-banks-financ ing-amazon-oil-standearth-amazonwatch.pdf. Accessed 19 February 2021. Sung, Jun. 2019. “The Necessity of Protesting on Privileged Ground.” NYU News, 26 November. https://nyunews.com/opinion/2019/11/26/harvardyale-protests-nyu-divest. Accessed 6 August 2020. Task Force on Climate-related Financial Disclosures (Task Force or TCFD). 2019. “June 2019 Status Report.” 2019-TCFD-Status-Report-FINAL0531191.pdf (bbhub.io). Accessed 19 February 2021. Task Force on Climate-related Financial Disclosures (Task Force or TCFD). 2020. “October 2020 Status Report.” 29 October. www.fsb.org. Accessed 19 February 2021. Thomas-Blate, Jessie. 2020. “Record Number of States (26!) Remove Dams in 2019.” American Rivers.org. https://www.americanrivers.org/2020/02/rec ord-number-of-states-26-remove-dams-in-2019. Accessed 16 February 2021. Torres, Mauricio, and Sue Branford. 2018. Amazon Besieged by Dams, Soya, Agribusiness and Land-Grabbing. Rugby, UK: Practical Action. United Nations Principles for Responsible Investment. https://www.unpri.org/ pri/what-are-the-principles-for-responsible-investment. Accessed 12 February 2021. Valle, Sabrina. 2020. “Brazil Tribes Struggling to Survive After Dam Burst to Get Day in Court Against BHP.” MSN, 27 July. https://www.msn.com/engb/news/world/brazil-tribes-struggling-to-survive-after-dam-burst-to-getday-in-court-against-bhp/ar-BB17es99. Accessed 30 March 2021. Vanguard. 2020. Vanguard ESG International Stock ETF (VSGX). Accessed 29 July 2020; Vanguard ESG US Stock ETF (ESGV). Accessed 29 July 2020; Vanguard FTSE Social Index Fund Admiral Shares (VFTAX). Accessed 29 July 2020. Vickovich, Aleks. 2020. “State Street Undercuts Ethical ETF Market.” Financial Review. https://www.afr.com/companies/financial-services/state-streetundercuts-ethical-etf-market-20200723-p55eyu. Accessed 6 August 2020. Wong, Julia Carrie. 2019. “Google Workers Call on Company to Adopt Aggressive Climate Plan.” Guardian, 4 November. https://www.theguardian.com/ technology/2019/nov/04/google-workers-climate-plan-letter. Accessed 3 August 2020.

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World Wildlife Fund (WWF). 2018. “Nina Gualinga, an Indigenous Woman Leader of the Kichwa Community of Sarayaku in the Ecuadorian Amazon, Is the Recipient of this Year’s WWF International President’s Youth Award.” WWF, 8 May. Environmental and Indigenous Rights Activist to Receive WWF’s Top Youth Conservation Award. https://wwf.panda.org/wwf_ news/?327434/Environmental-and-indigenous-rights-activist-to-receiveWWFs-top-youth-conservation-award. Accessed 30 March 2021.

CHAPTER 8

Financing for Development: Extra-Official Payments as Incentives for Development Projects

The Failure of Environmental Governance in the Amazon Basin: The Context The activities of state and private enterprise in the Amazon basin have a direct bearing on the fulfilment of international conventions to protect the environment, including the Convention on Biological Diversity (CBD), which came into force in 1993 (see Chapter 6). Central to the CBD were the twenty AICHI biodiversity targets1 (InforMEA 2020) of the CBD strategic plan 2011–2020—agreed in the prefecture of Aichi in Japan in 2010—none of which were achieved in full by 2020, and only six of which were partially achieved (Greenfield 2020). Target 5 was to at least halve the rate of loss of all natural habitats worldwide, including forests and, where feasible, bring it close to zero, as well as to reduce degradation and fragmentation. Yet in the Amazon basin in the ten years up to 2020, primary forest loss remained high. Global Forest Watch estimated that in 2019 the tree cover loss in the Amazon reached 2.4 million hectares (24,000 km2 ), with the figure rising in 2020, as the global COVID-19 pandemic enabled even greater levels of deforestation (Costa 2020). Ecuador had one of the highest rates of deforestation in Latin America in 2009; an annual average of 1.5% of primary forest was lost between 2001 and 2018, rising during the Correa administration to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6_8

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reach a peak of 21,000 hectares in 2017, decreasing to 13,000 hectares in 2018 after Correa left office (Mongabay 2020). Reasons behind instances of failure to protect indigenous peoples and the environment have been elaborated in the preceding chapters, indicating that power inequalities at the global and local level have contributed to undermining global environmental governance initiatives. In this chapter, a more subtle interplay of forces is examined that again points to external pressures and global economic and political structures that frustrate the plans of well-meaning environmentalists in the public, private, and non-profit sectors. As we have seen in the previous chapters, protection of the environment is not solely the responsibility of governments, and this is salient in the case of developing countries dependent on the export of raw materials. Dependence on oil creates greater vulnerability, leading to companies having more power than governments, as was noted by Judith Kimerling in 2006 with regard to the Texaco/Chevron case (see Chapter 5), where Ecuador’s dependency on oil revenue and the technological expertise of Texaco limited the country’s sovereignty over its environment. In such instances, the global governance role of international organizations and regulatory bodies may come into conflict with the power of multinationals who have in the past been able to circumvent environmental obligations or ignore them in the absence of binding laws. As was seen in Chapters 2, 5, and 7, private and state companies have come under increasing pressure to adhere to international principles, guidelines, and treaties that are designed to hold them accountable for any actions that might be in contravention of national or international law, but in practice, state enterprises such as Andes Petroleum Ltd, which is a subsidiary of Sinopec/CNPC, China’s largest oil company, were not beholden to any entity save the Chinese government in the case of the expansion of the Block 14 oil wells in Orellana province in 2019 (see Chapter 5). Although increasing numbers of private and state enterprises have signed on to the 1997 Global Reporting Initiative; the UN Global Compact of 2000; the Coalition of Environmentally Responsible Economies (CERES); the 2001 World Economic Forum Corporate Citizenship Initiative, and the United Nations Guiding Principles (UNGPs) on Business and Human Rights endorsed by the UN Human Rights Council in 2011 (see Chapter 2), for example, what happens at ground level may not correspond with boxes ticked on paper. In terms of state responsibilities to the environment, governments are signatory to a

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number of conventions to protect biodiversity (see Chapter 6), including the Ramsar Convention of 1971 for the conservation and sustainable use of wetlands; the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973, and the Convention on Biological Diversity (CBD) of 1992. Signatory governments have a responsibility to ensure that private actors on their soil comply with these agreements. Unfortunately, in the case of the Correa administration from its accession to power in 2007, Ecuador’s debt dependence, dating back to the economic crises of the 1990s, left the country vulnerable to manipulation by foreign interests through to 2021, thus in a weak position to negotiate environmental protection measures with creditors and investors. This was a burden additional to the country’s overreliance on oil exports, which accounted for 40 per cent of fiscal revenue 2007–2017, itself posing an environmental risk (Gallagher and Heine 2021). From the point of view of the Correa administration and foreign extractive interests, however, there were benefits for both sides in the expansion of the oil and mineral frontiers, as well as opportunities for employment for local people, working directly for oil and mining companies, as well as deriving income from spin-offs in the service sector (Cepek 2018) (see also Chapter 5). The same argument can be applied to the area of alternative energy sources, transport and communications projects that have required foreign investment and expertise, which may have positive consequences in the short term for some sectors of the population, while potentially having long-term adverse impacts on indigenous and local communities, as well as the local environment, ultimately contributing to the disruption of global ecosystems and weather patterns.

Financing for Development: Ecuador’s Debt Trap In the case of Ecuador, where the government defaulted on its external debt in 2008 in failing to make US$31 million in interest payments to Western financial institutions in the form of Brady Bonds2 (Romero 2008; Koenig 2017), the administration of President Correa had to turn to the Chinese government as a lender of last resort to provide finance—at a punitive rate of interest of 7.25 per cent, though without conditionalities—to enable the government to continue to function and for services to be provided for citizens (Alvaro 2011; Koenig 2017; Casey and Krauss

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2018; Gallagher and Heine 2021). Chinese loans between 2010 and 2018 were estimated to total around US$18 billion, to be paid for with oil. From the perspective of Ecuadorian government officials, an agreement with the Chinese government was essential: oil would provide a source of revenue and tax receipts into the future. The oil export business also provided opportunities for extra-curricular private gain by Ecuadorian government officials, revealed by the publication of the Panama papers in 2016. With regard to the arrangement with China, it was reported that, as part of the oil deal, middlemen took an extra 1 per cent commission per barrel of oil, earning themselves US$69 million (Koenig 2017). Additionally, unconnected with China, investigations into the operations of the Brazilian construction company Odebrecht, which began in 2014, brought to light unofficial payments to Ecuadorian officials by Odebrecht and associated companies. In this way, large-scale infrastructural projects in Ecuador became an opportunity for private gain from procurement arrangements, information regarding which might have remained hidden without the efforts of whistleblowers and investigative journalists combined with judicial investigations which, in some cases, involved collaboration among governments. Investigative work by government agencies, judiciaries, journalists, and NGOs conducted over the span of the Correa administration and beyond, provides evidence of corruption at the highest levels of government. In the following sections, the consequences to people and planet from corruption surrounding development projects in Ecuador will be discussed.

The Odebrecht Affair and the Panama Papers in Ecuador Ecuadorian government officials in the administration of President Rafael Correa were implicated in the Lavajato “carwash” scandal which was, at the time, the “largest foreign bribery case in history” (Pressly 2018), involving the Brazilian construction company, Odebrecht, the judicial investigation of which began in 2014. Odebrecht, and its subsidiary, Braskem, admitted bribery of US$788 million, and agreed to pay fines of US$3.5 billion (ibid.) in a US court in 2016. With regard to Odebrecht’s activities in Ecuador, Vice-President Jorge Glas, who served for seven years as a minister in President Correa’s administrations, was in 2017 convicted by the Ecuadorian courts of accepting US$13.5 million in bribes from Odebrecht on evidence that was alleged

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to have been provided by former members of the administration (Llangari and Valencia 2017). The Odebrecht affair overall involved 12 countries, 10 of which were in Latin America, with payments to 415 politicians in Brazil alone. It began as a money-laundering investigation that eventually led to the imprisonment of former Brazilian president Ignacio Lula da Silva (Lula) (absolved by a court in 2021), the resignation of the president of Peru, as well as the imprisonment of Ecuador’s vice president. Odebrecht had a special department devoted to bribery, according to the former chief executive of the company, Marcelo Odebrecht, who turned state’s evidence in 2016–2017. The most significant plea bargain arrangement resulting from the prosecutions involved 77 executives and former employees of the company (Brazil Institute 2017). Marcelo Odebrecht reported that the special irregular payments department accounted for 2% of the company’s operations, which involved US$600 million allocated to undeclared payments that were made in cash or sent to secret bank accounts (Pressly 2018). Information that had emerged from the Panama papers exposed Odebrecht’s dealings in countries outside of Brazil, including in Ecuador, where three of the seven companies connected to bribes were associated with Mossack Fonseca, a law firm in Panama that was one of the top creators of shell companies used to hide ownership of assets (Slawson 2018). The Ecuadorian tax authorities identified more than 2,000 firms connected to Ecuador within the Panama papers, but it was claimed that there were many more. The Panama papers revealed fraud in Ecuador’s construction and oil sectors, involving the state oil company PetroEcuador, implicated in a bribery scheme that was investigated by Panamanian and US courts (United States Department of Justice 2020; Valle 2020). Irregularities were discovered involving the Ecuadorian attorneygeneral, as well as Ecuador’s ambassador to Panama, who were using shell companies in Panama to conceal ownership of properties in Quito, for example, according to Ecuadorian investigative journalist Monica Almeida (Díaz Struck 2019). The Panama papers also exposed false invoices in connection with foreign companies operating in Ecuador, which involved forgery of technical studies. Initially, the Correa government attempted to discredit the Ecuadorian journalists who were involved in the task of excavating material related to Ecuador from within the Panama papers, but evidence that had emerged

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earlier had already raised suspicions and damaged the government’s reputation. President Correa’s response to the Panama papers was to lead a global campaign against tax havens (Díaz Struck 2019) and to call a referendum in Ecuador July 2016 with regard to the use of tax havens by Ecuadorian public officials. Although the majority vote in the referendum was against the use of tax havens, little action was taken. As he left office, President Correa pardoned those who had held accounts in Mossack Fonseca up to 2016. For their part, the response of Ecuadorians who had companies registered with Mossack Fonseca was to move their money elsewhere, according to Almeida (quoted in ibid.). In 2016, President Correa appointed himself as world leader in anticorruption initiatives, advocating the initiation of legislation to hold foreign companies responsible for human rights abuses. After he had left office, in 2018, Ecuador joined the Global Forum on Transparency and Exchange of Information for Tax Purposes (Díaz Struck 2019); in the meantime, Panamanian and US courts proceeded with prosecutions against Ecuadorian state employees for corrupt practices. There were 13 prosecutions against PetroEcuador officials in the USA, conducted by the US Department of Justice, which resulted in eleven of the accused confessing to participating in a scheme which involved the payment by contractors of US$17 million to company officials. According to information supplied by the Panamanian and US courts, a proportion of the money received was deposited in Pananamian accounts held by Alex Bravo Panchano, manager of the Esmeraldas oil refinery of Ecuador, who was appointed PetroEcuador general manager in November 2015. Bravo Panchano was arrested in May 2016 and later convicted by the Ecuadorian courts. According to El Universo of Ecuador, Bravo Panchano received US$1.4 million from S K Engineering (El Universo 3 February 2020), a Seoul-based petroleum-related construction subsidiary of the S K Group, the third largest conglomerate in South Korea. According to a government-commissioned audit in 2018–2019, approved by the United Nations Development Programme (UNDP), there were 15 unsupported contracts worth US$286.68 million, relating to the Esmeraldas refinery (O&G Links 2019). As a result of the investigations into the activities of all the defendants by the US Department of Justice, in January 2020 the US courts seized real estate assets of the accused in and around Miami worth US$8 million.

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In January 2021, a PetroEcuador contractor, Armengol Cevallos Díaz, was sentenced to three years in prison in the USA, for his part in the laundering of US$4.4 million between 2012 and 2016, in the period when the company was under the leadership of Bravo Panchano and Carlos Pareja Yannuzzelli. Cevallos Díaz was responsible for contracts worth US$110 million, which were administered by Pareja Yannuzzelli. Prosecutions by US courts against Ecuadorian officials were reported by the US Department of Justice. On 22 September 2020, a company by the name of Sargeant Marine based in Florida (chief executive Daniel Sergeant) pled guilty to having paid bribes between 2010 and 2018 to officials in the oil industry sector in Brazil, Ecuador, and Venezuela, to secure the purchase of asphalt, through which the company earned US$38 million (OCCRP 2020; Valle 2020), US$3.2 million of which was derived from the Ecuador contract. The defendants allegedly created false consulting contracts and false invoices and made payments to offshore bank accounts held in the name of shell companies in the name of intermediaries. The conspiracy involved a Bahamas incorporated company, and two Swiss companies, in a joint venture with a European energy trading company (United States Department of Justice, US Attorney’s Office, Eastern District of New York 2020; OCCRP 2020). The company was ordered to pay a US$16.6 million dollar fine (OCCRP 2020; Valle 2020). In another prosecution in New York City, an oil and commodities trader by the name of Javier Aguilar, a Mexican former Vitol Group manager based in Houston, was charged with paying US$870,000 in bribes between 2015 and 2020 to Ecuadorian government officials to secure a US$300 million dollar contract with PetroEcuador. The money was deposited in US and offshore banks (Valle 2020). Vitol was beneficially owned by a Dutch company, Vitol Holding BV. These companies, together with their affiliates within the “Vitol Group”, formed one of the largest oil distributors and energy commodities traders in the world. Vitol S.A. was a Swiss company with its principal place of business in Geneva (United States District Court Eastern District of New York 2020). According to the United States District Court Eastern District of New York (2020), between 2015 and 2020, Vitol, through certain of its employees and agents, “knowingly and willfully conspired and agreed with others to corruptly offer and pay more than $2 million in bribes to, and for the benefit of, officials in Ecuador and Mexico to secure an improper advantage in order to obtain and retain business in connection with the purchase and sale of oil products” (ibid.: 17). There were

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connections with Bahamas- and British Virgin Islands-registered companies established by Ecuadorian “consultant” companies. In the court case “United States of America against Vitol”, it was revealed that Vitol, through employees and agents, including Aguilar, and an Ecuadorian official, discussed having a contract with PetroEcuador to purchase fuel oil on “back-to-back terms”, “bypassing a competitive tendering process” (ibid.: 17). Between May and July 2018, payments were made to bank accounts located in the Cayman Islands and Curaçao that were controlled by Ecuadorians through a correspondent bank account located in New York, and to an account located in Portugal for the benefit of an “Ecuadorian Official” (United States District Court Eastern District of New York 2020: IV. 56: pp. 18–19). It was not only in the petroleum sector that unofficial payments were alleged to have been made. For instance, in the construction sector, Odebrecht was granted the contract to build a new rapid transit system in Quito, the Ecuadorian capital. This became Odebrecht’s largest contract in the country, initially estimated to be worth US$2 billion. Leaked emails suggested that payments had been made to Ecuadorian officials through Meinl bank, the Antiguan branch of which had been bought by Odebrecht in 2010 to facilitate corruption payments via a company called Fortress Investors that was used by Odebrecht for this purpose (Chavkin 2019). Odebrecht was also contracted to build the road from Quito airport to the city: a payment of US$915,000 dollars was being investigated in 2019 (Chavkin 2019). Leaks to the International Consortium of Investigative Journalists (ICIJ), prosecutions in the New York courts, and information from the Internal Revenue Service (IRS) of the USA, also suggested that unofficial payments were made in relation to dam construction in Ecuador. The construction of dams in Ecuador has to be viewed in the context of increasing evidence of their causing damage to ecosystems, as has been recorded in countries around the world—such that thousands of dams have been dismantled in North America and Europe over the last 50 years (Schiermeier 2018; Torres and Branford 2018; Habel et al. 2020; International Rivers 2019; Purtell 2021; Steinbauer 2021) (see Chapter 3). It is notable that among the companies named by Villavicencio and Zuria (2019) as voluntary contributors to Rafael Correa’s Alianza País party was Sinohydro, the Chinese hydroelectric company. Other donors to

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Alianza País included Constructora Norberto Odebrecht (in correspondence under the code number “V7”), SK Engineering & Construction (code number V8), Grupo Azul (V12), Telconet (V11), and China International Water and Electric Corporation-CWE (V9). The total amount donated to the party was estimated at US$11.6 million (Villavicencio and Zurita 2019).

Irregular Payments Linked to Hydroelectric Projects The construction of the Coca Codo Sinclair dam by the Chinese company, Sinohydro, in Ecuador, was initiated in 2007 by the Correa administration, coinciding with the appointment of Aleksey Mosquera as Minister of Electricity and Renewable Energy. In the case of the Coca Codo Sinclair dam, there was evidence of malpractice from the beginning, according to a range of sources (Casey and Krauss 2018; Lozano 2020). Mosquera himself was sentenced in 2018 to prison for 5 years, allegedly for having received and laundered a US$1 million payment from Odebrecht in return for the contract for the construction of the Toachi-Pilatón hydroelectric plant in Ecuador’s Santo Domingo Province (Cuenca Highlife 2018). He was released after serving three years and three months of his sentence (El Comercio 2020). Odebrecht director José Conceição Santos had testified in August 2017 that Vice President Jorge Glas had demanded a personal payment of one per cent of the value of all contracts that he was responsible for. As a result of the Odebrecht testimony, in October 2017, Ecuador Attorney General Carlos Baca opened an investigation into alleged bribes made by CWE, which was the primary contractor for the Toachi-Pilatón hydroelectric plant at the time (Cuenca Highlife 2017). Information leading to the investigation came from the Panama papers and from a Suspicious Activity Report (SAR) delivered in June 2017 to the US Financial Crimes Enforcement Network (FinCEN) the US Financial Intelligence Unit (FinCEN) by the Deutsche Bank Trust Company Americas, which reported that several unusual bank transfers were made by CWE to a large Ecuadorian government contractor. One of the beneficiaries was a Panamanian company, Fernhead Holdings Incorporated, established in 2012 by Ricky Federico Dávalos Oviedo, an Ecuadorian national. Odebrecht had transferred $4.1

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million to Fernhead accounts between 2012 and 2014 (El Universo 2020a). For its part, CWE stated that Dávalos was its economic advisor in the construction of the Toachi-Pilatón plant: information that emerged from the Panama papers indicated Dávalos’s involvement was connected to an arrangement engineered by Mossack Fonseca to reduce taxes payable to the Ecuadorian state, an allegation that was later confirmed by the US Internal Revenue Service (IRS), which investigated a number of false invoices related to the case. In its Suspicious Activity Report, Deutsche Bank Trust Company Americas listed 17 unusual transfers from CWE to a number of companies, between February 2016 and February 2017, totalling US$2.6 million, after which Dávalos was recorded as having bought four apartments in Miami, through a foundation based in Panama (El Universo 2020a). The Panama papers also showed that in 2015 Ricky Dávalos had a registered address in Xin Jian in China (Panama Offshore Leaks 2016). CWE withdrew from the Toachi-Pilatón project in 2019, after which the dam project was taken over by a Russian enterprise (ibid.). It should be noted that CWE had been disbarred by the World Bank in 2014 for three years following an investigation into allegations of sanctionable procurement practices associated with a World Bank-funded hydropower project in Africa and a road project in South East Asia. The company had agreed to improve its internal compliance programme (World Bank 2014). At the time the Ecuador payments were made, although bribery of foreign officials was illegal in China under the UN Convention against Corruption, which came into force in 2005, there had been no known enforcement by China against foreign corrupt practices by its companies, citizens, or residents. This changed in 2017, with guidelines being issued to companies not to bribe foreign officials, and in January 2018, the Chinese State-owned Assets Supervision and Administration Commission (SASAC) announced that the agency would strengthen the investigation and punishment of foreign corruption by centrally owned companies or their foreign subsidiaries (Transparency International 2018: 94). With regard to another dam in the north-west of the country, the Manduriacu hydroelectric plant, Odebrecht testimonies revealed irregular activity associated with the contract for the construction of the plant, which was completed in 2015. The former director of Odebrecht, José Conceiçao Santos, testified that with regard to the tendering for the Manduriacu plant, Dávalos had asked for money for moving the contract

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to Odebrecht (El Universo 2020a). The Manduriacu dam is located in the provinces of Pichincha and Imbabura, in the cantons of Quito and Cotacachi, where poisoning of the river Esmeraldas, attributed to the dam, was reported in 2019 (El Comercio 2020; Punto de Vista 2020).

The Coca Codo Sinclair Dam The Coca Codo Sinclair dam on the Coca River in Napo province (Fig 8.1), one of eight dams constructed under the Correa presidency (Nathanson 2017), completed in 2016, was conceived of as solving the country’s history of electricity shortages, and was regarded as a clean energy solution for the country. It was a vast project, estimated to cost US$2 billion dollars, which had amounted to US$3.2 billion by 2018 (Villavicencio 2018). The contract was initially awarded, without a competitive tendering process, to an Argentinian company, Energía Argentina S.A. Enarsa, created by the former President of Argentina, Nestor Kirchner. The work would have involved the participation of Odebrecht, but the latter company had been expelled from Ecuador in

Fig. 8.1 Coca Codo Sinclair dam, Coca and Napo rivers (Source C. Etchart)

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2008 as a result of problems surrounding the construction of another dam, the San Francisco dam in Tungurahua province on the Pastaza river (Cordero Balarezo 2018). The Argentinian company abandoned the Coca Codo Sinclair dam project in August 2009; it was reallocated to Sinohydro of China in October of that year. A memorandum of understanding was signed with the Export Import Bank of China (Eximbank) in 2009 for financing of the dam. Interest was charged at such a high rate that Vanconez (2020) characterized it as “predatory”. The project was technically fraught, not least because an Environmental Impact Assessment (EIA) in 1998 had rejected the proposal for a dam on the grounds that it was in an area prone to earthquakes and was situated close to a live volcano (Casey and Krauss 2018; Vanconez 2020). An earthquake of a magnitude of 6.9 had occurred in the area in 1987, causing landslides and damage to oil infrastructure (Pelcastre 2019). Prior to the commencement of works on the Coca Codo Sinclair dam in 2007, no geological or hydrological study was conducted. In 2014, cracks in the machinery had already been noted. When the dam was finally inaugurated in 2016, 7,648 cracks in the eight distributors that inject water into turbines were discovered, attributable to “substandard building materials and inferior welds” that were acknowledged by the Comptroller General (Casey and Krauss 2018; Pelcastre 2019). Eleven construction workers had died when a tunnel collapsed in 2013 (China Dialogue 2014; Casey and Krauss 2018), and a release of water cost the lives of two farmers downstream in December 2018 (ibid.). From 2016, it was working at half capacity, incurring blackouts (Vallejo et al. 2018; Vanconez 2020). By 2020, the inevitable silting of the dam, corresponding with the lack of sediment flowing to the lower reaches downstream from the dam, brought about an acceleration of the river flow, which eroded the banks and caused floods. This “hungry water” syndrome probably resulted in the collapse of the San Rafael waterfall—a major tourist attraction—and flooding of homes of indigenous and other local communities along the river; scientists estimated that there would be instability in the river for years to come (Rosero 2020). Sink holes among affected Kichwa communities opened up on 23 February 2021; families had to be evacuated, and the dam was shut down on 25 February in order for repairs to be conducted along the river in the form of the construction of walls of rock in an attempt to reduce erosion (Rosero 2020; Orozco 2021; Pacheco 2021a).

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Earlier floods had caused the rupture of several oil pipelines, thereby contaminating the water used by riverine communities. An oil spill resulting from broken pipelines in April 2020, which had contaminated both the Coca and Napo rivers, had not been remedied by March 2021, when a protest in Quito was organized to demand reparation (Pacheco 2021b). With regard to decisions to initiate the construction of dams or other infrastructural projects, payments to officials or political entities may tilt decision-making in favour of projects that are potentially damaging to people and the environment and which might not otherwise have been commissioned. For example, if a company donates to a political party during an election campaign, the reward could be in the form of a construction contract. Such may have been the case where it was alleged by Fernando Villavicencio in 2019 that Sinohydro had contributed campaign funds to both President Rafael Correa and to his successor, President Lenín Moreno—also of the Alianza País party, who served as Correa’s vice-president—as part of what became known as the “Arroz Verde” affair (Villavicencio and Zurita 2019). The Arroz Verde investigation involved examination of 10,160 documents pertaining to payments to the Correa administration. In relation to the Coca Codo Sinclair dam, it is perhaps telling that most of the Ecuadorian government officials who authorized the construction of the Coca Codo Sinclair dam had by 2020 either been convicted and imprisoned for having accepted bribes, or had left the country, according to Sigrid Vanconez (2020). Notably, Sinohydro was alleged to have made similar kinds of payments to government officials in Peru, where the construction of dams threatened indigenous communities in Loreto and Ucayali. An Ecuadorian company, Hidalgo y Hidalgo, associated with a project in Peru, was also named by Odebrecht officials in depositions connected with the Panama papers (Convoca 2019).

Cash for Consent: The Implications for Human Rights and Environmental Protection of Unofficial Payments In terms of Environmental Impact Assessments (EIAs), particularly the potential impact on local and indigenous populations, companies have been able to deflect responsibility for negative consequences on to state

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authorities of the host countries in which they operate (see Chapter 5). For example, Chinese hydro-power companies, such as China Gezhouba Group Company (CGGC), China Three Gorges, AES, and Sinohydro International, have been able to sign indemnity clauses that absolve them of responsibility for environment and social damage (International Rivers 2019). In reviewing Chinese dam construction projects in several countries 2017–2020, International Rivers concluded that Chinese companies, which accounted for 70% of the dam construction market by 2020, had lacked due diligence in processes to ascertain the appropriateness of projects, such that dams had been constructed in Uganda and Chile, for example, which had submerged protected areas and displaced communities, including indigenous villages, in violation of their rights. It was reported that most of the projects failed to follow international guidelines on disclosure of information (International Rivers 2019: 130). Taking a broader view of development projects, the preceding chapters have argued that foreign investment and technology transfer, even in the best of circumstances, can have deleterious effects on people and the environment. This is especially the case with regard to extractive and infrastructural projects in rainforest and protected areas. Even where unofficial payments are absent, the foreign financing of oil wells and refineries, pipelines, storage and port facilities, as well as of other kinds of infrastructural projects, such as road building and dams, may lead to the accumulation of foreign debt that is likely to drain government resources. Over and above this consideration, where in other situations individual policymakers might have weighed up costs and benefits to the country in the course of their deliberations, offers of extra-curricular payments to government officials with regard to individual development projects may lead to unwise decisions that may be detrimental to indigenous peoples and the environment. These decisions can lead to additional pressure on indigenous communities and local populations already vulnerable to legal offers of benefits in return for their “Free, Prior and Informed Consent” to extractive operations on their land (see Chapter 5). It is here where the question of ownership of responsibility for the protection of people and the environment comes into play and where there are jurisdictional ambiguities. Individual companies engaged in the extractive industries hitherto have been able to sign contracts, comply with legal norms, and adhere to national and international environmental conventions, including regulations around Free, Prior and Informed

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Consent, all the while continuing to clear forest areas and build or extend roads even through national parks and protected “intangible” zones (see Chapter 5). In these activities, there is a degree of complicity between private companies and state institutions, which are likely to be involved in joint ventures where both parties might individually have been running the risk of prosecution for violation of international law, but through operating as a consortia gain a degree of immunity. Where there have been successful prosecutions in the courts, these have tended to be against developing country governments, as was the case of the Kichwa Indigenous People of Sarayaku vs Ecuador completed in 2012 (see Chapter 5). There have in the past been successful prosecutions against multinational corporations such as in the Deepwater Horizon case against BP in 2010, but this was launched by affected communities in the USA, who had greater resources behind them, and where responsibility for the oil spill was more clear-cut. By 2018, BP had paid out US$65 billion in compensation against 390,000 civil claims (Vaughan 2018). In terms of prosecutions for extra-curricular payments, attention has tended to focus on officials in developing countries, rather than on the source of those payments, which is often in the hands of private companies in the global North or South that may have access to required sources of finance. Since the 1990s, however, attribution of responsibility has shifted more towards the source of illicit payments, with a number of intergovernmental and non-governmental organizations working with governments to create instruments to assist in cross-border investigations and state-directed prosecutions (Organized Crime and Corruption Reporting Project (OCCRP) (2020), which will be discussed in the following section.

Global Governance in Combating Financial Crime Non-governmental organizations, including Transparency International, based in Berlin and founded in 1993, which was operating in 100 countries in 2021, and the Organized Crime and Corruption Reporting Project (OCCRP), founded in 2014, have been collaborating over several years with each other and with governmental and intergovernmental officials and institutions, investigative journalists, and individuals within the private sector, to report and investigate financial crimes. In terms of government-to-government collaboration, in its 2018 report, Transparency International stated that Brazil and 55 other countries had made

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484 mutual legal assistance requests between 2014 and June 2018, mostly related to the Odebrecht case (2018: 109). Governments stand to gain from prosecutions from the potential of recovery of assets and to avoid loss of tax revenue. There is clearly an element of deterrence; however, the stated aim of both Transparency International and the OCCRP has been not only to close down loopholes and opportunities for diverting funds, but also to assist stakeholders, including private companies, in combating activities that are not only illegal, but which are also detrimental to the democratic functioning of governments, social justice, and the wellbeing of citizens (Transparency International 2020; OCCRP 2020). This could include damage to ecosystems that can be an unintended consequence of financial crimes. Among the lists of companies prosecuted for financial crimes are several major global corporations who benefit from substantial resources and often have close ties to Northern and Southern governments. Transparency International publishes the Global Corruption Barometer and the Corruption Perceptions Index (Transparency International 2021) which provide indications of which countries are most vulnerable to extracurricular payments. The Organized Crime and Corruption Reporting Project (OCCRP) publishes monthly bulletins with information on ongoing prosecutions. Enterprises found liable for illegal practices include the investment banking company, Goldman Sachs—labelled in 2009 as the “great vampire squid” by Matt Taibi in Rolling Stone magazine (Blackhurst 2020). Although the company has a history of engaging in philanthropic activities, with former managing director, Lloyd Blankfein, declaring that the company had a “social purpose” in creating wealth, the bank also became well-known for its anti-social activities dating back to the 1990s. In 2010, the company was charged by the US Security and Exchange Commission with “defrauding investors” for an alleged failure to disclose an element of its mortgage structures (Braithwaite and Alloway 2012). The extent to which private banks can influence governments is illustrated by Goldman Sachs’ involvement in the Greek debt crisis from 2001 to 2011, through which the company allegedly made US$793 million in profits from contributing to hiding the Greek government’s debt, thereby doubling it, then profiting from the country’s debt default, in effect playing a double game (Connor 2010; Reich 2015). Goldman Sachs was also involved in unofficial payments to foreign officials, for which it was prosecuted in US courts. On 22 October 2020, Goldman Sachs, through

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its Malaysian subsidiary, admitted in a Brooklyn court to having taken part in a scheme to pay US$1 billion in bribes to foreign officials. As a result, the bank was ordered to pay US$5 billion in penalties to regulators around the world. The Malaysian subsidiary of Goldman Sachs conceded that it had knowingly and willingly conspired to violate the Foreign Corrupt Practices Act (Goldstein and Flitter 2020). The examples given are to illustrate the preeminent power exercised by large financial enterprises over country governments at moments when they find themselves in a weak position and are therefore vulnerable to persuasion. Another example of penalties for illicit payments to secure contracts, that took place across what might have been considered competing economic systems, is one concerning Deutsche Bank. On 8 January 2021, Deutsche Bank agreed to pay US federal authorities US$125 million towards investigations, after the US Justice Department and the US Securities and Exchange Commission (SEC) ascertained that the Bank had paid out US$7 million in improper payments from 2009 to 2016 (Goldstein and Enrich 2021). In 2019, the Bank had already agreed to pay US$16 million as a result of SEC investigations into allegations of corrupt practices to secure business in China and Russia. It was reported that it was apparently normal practice “in some corners of the bank” to pay bribes to foreign officials. The New York Times had reported in 2018 that Deutsche Bank had for years been lavishing gifts on Chinese officials to secure lucrative contracts in China (Casey and Krauss 2018). These examples are to illustrate just one of the obstacles faced by those engaged in promoting the “good practice” in state and private enterprise that is essential for effective global governance of the environment. The extent to which unofficial payments to government officials had become common practice, even among long established banks in Western democratic countries, is an indication of flaws in financial systems across continents, irrespective of ideologies and political configurations. Financial secrecy has enabled illicit personal financial gain often to go unnoticed and to continue with impunity. A combination of the activities of whistleblowers; the tenacity of a group of investigative journalists— who benefited from the 2016 release of the Panama papers, for example; the integrity and rigour demonstrated by several courts in the USA, and the active cooperation of a handful of other country governments, has enabled a small number of successful prosecutions to be conducted. The universality of the “cash for contracts” phenomenon has had deleterious effects on the citizens of developing countries in a number of

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ways. First, funds that could have been directed towards the provision of basic needs, health care, education, and environmental protection, for example, have been diverted into personal bank accounts, in tax havens or elsewhere, affecting both the upholding of human rights in terms of governments providing safety nets and basic services, and the integrity of state tax systems. Second, the payment of large bribes to individuals exacerbates existing inequalities of income and wealth. Third, patterns of unofficial perks for individuals working in the public sector undermine trust in systems of government and the rule of law, as well as setting a poor example for the rest of society.

Extra-Curricular Payments as an Obstacle to the Achievement of the Sustainable Development Goals (SDGs) Both the Universal Declaration of Human Rights (UDHR) of 1948 and the International Covenant on Civil and Political Rights (ICCPR) that came into force in 1976, in the spirit in which they were envisaged and formulated, are relevant to discussions of indigenous peoples and the rights of nature, and constitute one of the elements of global governance of the environment that affects, and is affected by, decisions made and actions taken by indigenous individuals and communities. They are also relevant to the issue of individuals and communities having the power to choose the way in which they live, which involves being party to decision-making which affects their lives, armed with the knowledge that is required for them to be able to make informed choices and to take part in public discussion if they so wish (Sen 1999: 109–110). It is therefore beholden upon government officials, of both local and national institutions and agencies, as well as upon private and state enterprises engaged in the extractive industries and in infrastructural projects, to provide citizens, voters, and stakeholders, within and outside of the country—particularly where outsiders beyond a state’s borders may be affected by policies pursued by governments and industry within a state— with information regarding payments made to individuals as incentives to embark upon development projects that carry a risk of adversely affecting indigenous communities and the environment. Article 19 of the Universal Declaration of Human Rights (UDHR) is pertinent in this regard: “Everyone has the right to freedom of opinion

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and expression; this right includes freedom to hold opinions without interference and to seek, receive [my italics] and impart information and ideas through any media and regardless of frontiers”. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 explicitly states in Article 1 that “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law”. Moreover, Article 46: 3 states that “The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”. This means, therefore, that under the UNDRIP, indigenous peoples are entitled to “justice … good governance and good faith” on the part of government officials when decisions are made to embark on development projects that may affect indigenous interests. If unreported or unpublished secret payments are made to particular individuals as a procurement incentive in order for them to select one supplier or construction company in preference to another, in cases where two or more companies are competing for the contract, or to hire a company without engaging in a tendering process, stakeholders may remain in the dark as why certain decisions are made that may have a bearing on their wellbeing in the near future or in the long term. Obstructing those who seek information, or the silencing or intimidation of whistleblowers, could lead towards an environment of “tyranny and oppression” that the 1948 Universal Declaration of Human Rights seeks to avoid in the third paragraph of the Preamble. Within the United Nations Charter of 1945 there is an affirmation that the United Nations will promote “social progress and development” (Article 55a). Social progress and development may not necessarily mean energy at the cost of clean water to drink and clean rivers in which to bathe and fish, and there are possibilities for the development of energy sources for the citizenry without the felling of trees and building of roads in the rainforest. Article 7 of the Universal Declaration of Human Rights (UDHR) states that “all are equal before the law and are entitled to equal protection of the law”. In view of the incentives during the Correa administration to break the law and to divert private or public funds into private accounts in offshore banks, it becomes evident that there was at the time

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a climate of bribery that constituted a disincentive towards ensuring that citizens were treated equally in terms of distribution of revenue entering the country, and that the rules with regard to state tax policies applied to all citizens equally. The International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976, is also relevant to the question of upholding the rights of indigenous peoples who may have been or may in the future be affected by the operation of extractive industries or infrastructural projects on their territory: Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.

Article 3 of the ICCPR, which is relevant to the issue of unofficial payments for projects that may adversely affect the wellbeing of citizens, for example, obliges states that are party to the agreement: a. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity [italics added]; b. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative, or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; c. To ensure that the competent authorities shall enforce such remedies when granted. We can see, in cases of diversion of state resources into offshore accounts of government officials, government agents, contractors or suppliers, and their friends and families, that there often are, as has been outlined above, few avenues for wronged communities or individuals to seek redress for associated violations of civil, political, economic,

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and social rights; there have been insufficient reparations from, or sanctions applied to, those responsible for crimes of corruption (Transparency International 2018). With regard to the aspiration of upholding of human rights as contained within the objectives of the 17 Sustainable Development Goals (SDGs) of 2015, the creation of which could be categorized as an act of attempted global governance, there are four SDGs the achievement of which may be delayed or obstructed by extra-curricular payments to officials that are made for the purpose of securing government or community acquiescence to the initiation of a development project, as follows: Goal 1 Goal 2 Goal 3 Goal 16

End poverty in all its forms everywhere End hunger, achieve food security and improved nutrition and promote sustainable agriculture Ensure healthy lives and promote wellbeing for all at all ages Promote peaceful and inclusive societies for sustainable development, provide access to justice for all [italics added] and build effective, accountable, and inclusive institutions at all levels

As has been evidenced, once politicians gain access to power, they and their officials may encounter opportunities for the granting of government contracts to associates and, in doing so, they may embezzle or divert funds away from where they are most needed; their actions may therefore have damaging consequences in terms of human security, health and wellbeing, all of which may be dependent on a clean environment, which is increasingly regarded as a human right. The tracing and reporting of financial crimes and misdemeanours are challenging tasks: investigative journalists and whistleblowers have often incurred a high price, such as loss of employment, loss of potential employment, harassment, threats, and even death, as well as harassment of families, as a consequence of their work. Many would-be whistleblowers may not want to take the risk, despite efforts, such as the 2019 European Parliament and Council Directive aimed at the “protection of persons who report breaches of Union law” (Official Journal of the European Union 2019: 17).

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The Value of Published Contracts and Open Data In view of the above, efforts have been made on an international level to institutionalize global agreements for the use of Open Data, that would include the registration of all government contracts on open platforms, with lists of companies and biographical data of individuals involved in those contracts, in order to create “Open States”. In 2020–2021, such was the Inter-American Plan for Open Data (PIDA), which was a proposal for a free database to contain information on beneficial ownership of companies, in the manner of the UK data base, Companies House (Marlowe 2021). As a start, one move towards this end was taken in the USA, on 1 January 2021, when a Corporate Transparency Act (CTA) was signed into law by the US Congress. Under the Corporate Transparency Act, new corporations or limited liability partnerships will have to file annually to the Financial Crimes Enforcement Network of the US Treasury Department (FinCEN), listing the names, dates of birth, addresses, and official identification numbers of the beneficial owners of the companies (ibid.). In support of initiatives such as these, by 2020, many country governments had already signed up to agreements for banks and tax authorities to exchange information on citizens with foreign bank accounts. One organization that embodies the Open Data principle is the Extractive Industries Transparency Initiative (EITI) established in Norway in 2002, which counted 55 member states in 2020. Executive director Mark Robinson commented in December 2020 that one-fifth of enforcement actions under the US Foreign Corruption Practices Act originated from oil, gas and mining and that the prevalence of corruption in the sector was an “unfortunate reality” (Robinson 2020). In Robinson’s view, the publication of the terms of extractive contracts was a powerful antidote to corruption, and contract transparency was becoming more widespread. In order to increase adherence to this norm, as of January 2021, the EITI required that its members publish all new contracts and licences, and amendments to existing contracts, on government platforms (ibid.). As one of the largest oil exporters in Latin America, and with five major mining projects in copper, gold and silver, Ecuador applied to join the Extractive Industries Transparency Initiative (EITI) on 14 August 2020, following a scoping study conducted by the World Bank in 2019 (EITI 2019). Although the application was approved by the multi-stakeholder group (MSG) on 15 August 2020 (Extractive Industries Transparency

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Initiative [EITI] 2020), the World Bank report was circumspect. It stated that although there had been improvements in information provided to the public in Ecuador, there was still a long way to go, particularly on the part of PetroEcuador. With regard to the Ecuadorian oil industry, the report stated that although information was technically provided by the industry, in practice it was difficult to access (EITI 2019: 4). The conclusion with regard to mining in Ecuador, was that “transparency was in its infancy” (ibid.: 4). The report recommended changes to the country’s laws to ensure that names of beneficiaries of contracts be made public in order to comply with EITI standards (p. 8). In view of all the changes that were required, it was agreed that validation would begin in July 2023. Meanwhile, the Ecuadorian government was a signatory to the Escazú agreement (see Chapter 3), which came into force on 22 April 2021, Articles 5 and 6 of which concern rights to environmental information, with provision for independent oversight mechanisms (ECLAC 2018: 17–23).

Conclusions and Recommendations Through examining discourses at a range of levels of governance, from the micro to the macro, the foregoing chapters have attempted to interrogate power dynamics among actors engaged in global, national, and local governance down to the level of the community, both in terms of governance of peoples and governance of the environment, each of which impact upon the other. While there is clear evidence of multiple small acts at the local level having an impact on global decisions, ultimately the conclusion has to be that attempts of local communities to establish and implement their own rules are constrained by decisions made at higher governance levels and by the structure of the global economy. A study of the interaction and communication among intergovernmental organizations, within and between agencies within the United Nations and the World Bank, for example, reveals a multitude of agencies, some with conflicting agendas. As Conca (2015) noted, individuals within international organizations may make decisions in the global public interest that are not necessarily in the interests of particular nation states; on the other hand, the evidence suggests a weakness in organizational structures that is associated with the primacy of decision-making by state representatives in association with private interests.

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The examples presented here concern the actions and motivations of individuals and collectivities, at the level of communities, business organizations and operators, as well as within decision-making institutions of state leaders and representatives. The study has put a spotlight on a particular group of small communities of indigenous hunter-gatherers and agriculturalists in the Ecuadorian Amazon, whose situations and views may change from day to day, such that the opinions they have expressed may not endure; interpretation of primary data may also evolve. Similarly, the institutions of the United Nations are not static: there will be a constant interplay of power among United Nations agencies, individual governments, and representatives of indigenous peoples, which will result in variations in positions and policymaking. The interviews with indigenous individuals conducted in the course of this research demonstrate their collective awareness and consecration of their communities’ history and culture dating back more than 500 years to the pre-colonial period. While parts of historical memory will have been lost, continuity in the names of places and people, and the maintenance of languages of indigenous groups, lends credence to some of the claims made with regard to origins of particular communities. An analysis of interview responses, speeches and Facebook postings of indigenous individuals and communities, and statements by nonindigenous representatives in power at state and intergovernmental level, demonstrates the importance of the construction and maintenance of particular discourses within groups, and at the global level, where there are conflicts between those with political and economic power, and those who have almost none. A struggle to control the narrative at the global level is expressed in terms of moral responsibility: that is, who can claim the moral high ground and on what basis, and where to cast blame when supposedly desired outcomes, such as protection of the environment, are not achieved. Subtle changes are evident in the narrative presented by indigenous individuals, and there is a slightly less subtle evolution in the construction of a narrative on the part of oil and mineral companies to justify activities that may be damaging both to people and the environment. Inequalities of power have been fought out at the level of national and international courts, where multinational companies such as Chevron have benefited from substantial resources at their disposal to ensure juridical rulings in their favour (see Chapter 5), which appear to be

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important to them mostly at the level of institutional reputation, as their proceedings fall into a jurisdictional vacuum that cannot be challenged in the absence of meaningful international law in many cases. Moves to incorporate environmental crimes into the jurisdiction of the International Criminal Court languished in 2021 (Alley 2021). The institutionalization of Free Prior and Informed Consent (FPIC) has shown itself to be both a blessing and a curse for both peoples and ecosystems affected by decisions made by representatives of indigenous communities. There is evidence that when financial incentives are involved, these have brought short-term gains for communities in certain respects. It has been seen from the historical precedents where FPIC has been applied in practice, however, that the outcome of consultations has not always been encouraging, taking into account, for example, the consequences for a number of Huaorani communities of the construction of roads through the Yasuní national park. As we have seen, the forces confronting those who wish to challenge both extractive and infrastructural projects can be irresistible, as a consequence of the marriage of government and multinational companies. Financial incentives can work at all levels, for the purpose of electoral campaigns of political parties, for the private gain of individuals in government, and for individuals within indigenous communities. The global economy constitutes a force that exerts power in the sense of providing ongoing markets for petroleum and petroleum products, for copper, silver, and gold, for agricultural products, for timber; and for trafficked animals for pet markets in the Americas and in Europe. Struggles at a local level among and within indigenous communities are evident, as different interests prevail. Contamination of water sources, and diminishing supplies of food in the form of game animals, have exerted pressure on individuals and families to move away from the narrative constructed for them and with them, by governments, NGOs, and intergovernmental institutions in the context of protecting biodiversity and combating climate change. Where communities have found themselves no longer self-sufficient in food, indigenous individuals have had to seek work outside of their communities or have chosen to do so. The various manifestations of the practice of engaging in consultations to secure Free, Prior and Informed Consent (FPIC) for development projects, on the part of those who seek that consent, have an agenda that may prevail, particularly when the legal requirements do not provide space for a negative response on the part of those consulted. It is only

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when legal challenges in local, state, and regional courts against extraction succeed, that decisions are reversed, which was the case for the Sarayaku Kichwa in 2012 and the Huaorani in 2019. Such lawsuits are not unique but are rare and require resources to pay for lawyers, logistics, and media campaigns: many indigenous communities lack those resources. In practice, therefore, over time, the range of choices for those asked to choose—supposedly given the power to choose—one way of life over another has diminished with the gradual advance of the oil and mineral frontiers. Indigenous communities seeking to reverse the colonization process, achieve self-determination, and to follow the precepts of buen vivir, have had to confront the commodification of everything that surrounds them, which is contrary to the essence of buen vivir in the form in which it was first articulated. Communities have also had to commodify themselves as a means of survival. With the Socio Bosque and other stewardship schemes, indigenous communities have taken on responsibilities to protect the forest on behalf of outside entities who have made particular demands reinforced by conditionalities that have tipped the balance of power away from the communities and towards powerful aid agencies. Moreover, the largest environmental non-profits have close connections with oil companies, other MNCs, banks and investment management companies which are often donors, creating conflicts of interest that may delay or circumscribe environmental protection measures. In this way, therefore, indigenous communities have found themselves giving up the sovereignty they fought so hard to retain. As an alternative, in seeking sovereignty, self-sufficiency and selfdetermination, some indigenous communities in the Amazon have initiated new schemes by taking control of handicraft production and owning and managing tourist enterprises in the form of eco-lodges. These projects are vulnerable to the vagaries of the market: they require outside buyers, that is, a regular inflow of tourists into eco-tourist centres, again creating potential dependency. What is often forgotten is that some of the rural indigenous communities have made a conscious choice to live a life of simplicity and austerity, eschewing what the developed world considers as necessities, such as tap water, modern sanitation systems, and roads. The risks of involvement with the outside world were highlighted by the onset of the SARS-CoV-2 virus crisis in Ecuador in 2020. Some communities, such as the Sarayaku Kichwa, had already been affected

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by illegal logging that contributed to the destruction of homes and plantations by river floods in March and April 2020 (Etchart 2020). With Ecuador having been one of the worst affected countries in Latin America in terms of the number of deaths from the SARS-CoV-2 virus as a percentage of the population, and with little prospect of the world travel lockdown ending in the short term, possibilities for expansion of indigenous eco-tourism facilities in 2021 were in jeopardy. Moreover, the loss of income was in danger of forcing some indigenous communities to return to more extensive hunting of wild game as a source of food. The evidence compiled for this investigation depicts a scenario in which a range of forces within different levels of governance and government administration interact with one another to create movements and power blocks both in favour of and against progress in the protection of indigenous cultures and rainforest areas that are essential for the maintenance of biodiversity and the mitigation of climate change. It has been argued that the support of governments, indigenous organizations such as CONFENIAE and CONAIE; local and international NGOs; the Secretariat of Indigenous Affairs at the UN; the UN Permanent Forum on Indigenous Issues (UNPFII), and international associations of judges, combined with indigenous postings on social media and reports in the global press, have enabled the protection of some indigenous cultures and the preservation of parts of the Amazon rainforest, at least temporarily, and have given inspiration to environmental and indigenous rights movements over the globe. At the same time, while indigenous peoples have succeeded in securing meaningful participation in international fora and have attracted increasing attention to their struggle for survival, by presenting their demands on the world stage, with the support of United Nations agencies and the global media, it is not necessarily the case that even the correct implementation of international law with regard to the rights of indigenous peoples, as is being demanded by environment defenders, indigenous and otherwise, will bring about any significant reduction of deforestation, land degradation, contamination of rivers or climate change, in view of the circumstances in which those laws are applied; the contrary may be the case. United Nations agencies, moreover, such as the Human Rights Council, lack the power to enforce international law. The evidence presented above gives credence to the view, expressed by some of the indigenous individuals who participated in this research, that financial and material incentives offered to indigenous communities

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already living under stress and faced with diminishing resources on which to survive, will more often than not secure their consent to the exploitation of protected areas which otherwise they would prefer to be free from mineral and oil extraction. There have been cases, as we have seen, where the correct implementation of national law, in the form of the rights of indigenous peoples as well as the rights of nature, has taken place. These were the result of decisions by local judges, acting independently of central government, which had the effect of halting the activities of mining operations in the Amazon basin. Pressure from local institutions, ecumenical and academic, may have contributed to judges’ decisions and the successful functioning of legal systems. In the same period, however, it continued to be the case that indigenous protestors engaging in direct action against extractive industries in Ecuador, even where the courts had conceded that laws of Free, Prior and Informed Consent (FPIC) had been broken, continued to be harassed, criminalized, and imprisoned by federal government forces. A pattern is discernible of environmental activism moving through physical engagement at ground level up to state and international level at a discursive and legal level, with indications of global support for small initiatives being transmitted back down to the grassroots level of indigenous hunter-gatherer and agricultural communities. From the importance companies and environmental activists attributed to Facebook and YouTube, the evidence presented in this research would suggest that social media has also had a key role in maintaining the integrity of judicial systems and upholding constitutional and international law, which could ultimately contribute to ensuring that indigenous peoples can play their part in conserving biodiversity and reducing climate change. So far, the political will on the part of Western governments to assist them in their task has been largely absent. The outbreak of SARS-CoV-2 globally in 2020 drew attention to one of the disadvantages of globalization in the form of the mass movement of people and goods from country to country, continent to continent, by air, by sea, and by land transport. The ongoing climate crisis in the same period highlighted some of the dangers of the ways in which food and manufactured goods are produced and waste created. The precepts of buen vivir/sumak kawsay include a focus on local production for local consumption; reviving buen vivir/vivir bien in the form in which it was envisaged by the Amazonian and Andean peoples and elaborated by Eduardo Gudynas (2011), and Alberto Acosta (2017) could contribute to

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re-imagining economic structures and societal organization in such a way that unnecessary environmental damage would be avoided and human wellbeing enhanced.

Notes 1. The Aichi Biodiversity Targets were included in the Strategic Plan for Biodiversity for the 2011–2020 period adopted by the 10th meeting of the Conference of the Parties of the Convention on Biological Diversity in Aichi, Japan. 2. Brady bonds are sovereign debt securities, denominated in US dollars (USD), issued by developing countries and backed by US Treasury bonds.

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Index

A Acción Ecológica, 105, 106, 110 Achuar, 138, 139, 175 Acosta, Alberto, 7, 64, 110, 250 Advocacy networks, 35 AES, 236 Afectados por Texaco, 123 Agribusiness, 186, 210 Aguilar, Javier, 229 Aguinda v. Texaco, Inc., 121 Aichi Targets, 158, 160, 178, 223 Alcoa, 45 Alianza País, 106, 230, 235 Ali Baba, 202 Allianz, 197, 204 Almeida, Monica, 227 Alphabet, 202 Alternative development, 67 Amazon, 198, 202, 206 Amazon Employees for Climate Justice 2019, 206 Amazon Post, 125 Amazon Watch, 131, 135, 209, 210

American Civil Liberties Union (ACLU), 130 American Declaration on the Rights of Indigenous Peoples, 89–91 Amnesty International, 131 Añangu, 175 Anaya, James, 92 Andersen, Inger, 212 Andes Petroleum Ecuador Ltd., 5, 10, 47, 134, 139–141, 143, 148, 224 Ankwash, Domingo, 137 Annan, Kofi, 36 Aotearoa. See New Zealand Apple, 198, 202, 205 Armadillos, 173 Arroz Verde, 235 Ashiñwiaka, 175 Atrato river, 75 Aviva, 197 AXA, 197, 204 B Balsa wood, 168

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 L. Etchart, Global Governance of the Environment, Indigenous Peoples and the Rights of Nature, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-81519-6

259

260

INDEX

Bank of America, 45, 198 Belt and Road, 36 Berry, Thomas, 62 Bezos, Jeff, 206 BHP Billiton, 44, 199 Biden, Joe, 78 Bilateral Environmental Agreements (BEAs), 48 Bill and Melinda Gates Foundation, 40 Biocentrism, 64 Biodiversity, 50, 146, 178 Biodiversity Finance Initiative (BIOFIN), 164 Biodiversity Finance Plan (BFP), 164 Black Lives Matter, 202 BlackRock, 1, 190, 194, 197, 204 BlackRock Investment Stewardship (BIS), 210 Blankfein, Lloyd, 238 Bloomberg, Michael, 192, 196, 209 BNP Paribas, 197, 202, 203 Bobonaza river, 7, 169 Bolívar, Simón, 100 Brady Bonds, 225 Bravo Panchano, Alex, 228, 229 British Petroleum (BP), 2, 44, 45, 237 Broader sustainability risks, 210 Brundtland Commission, 42 Brundtland, Gro Harlem, 42 Brundtland Report, 4, 42, 69 Bucaram (President), 103 Buen vivir, 4, 5, 17, 64, 66, 67, 136 Buen vivir/sumak kawsay, 250 Buen vivir/vivir bien, 250 Bushmeat, 167, 169, 170, 173

C CalPERS, 201 CalSTRS, 206

Cancún Agreement, 96 Carbon capture, 209 Carbon neutrality, 207–209 Carbon offset, 96, 97, 208, 209, 211 Carbon trading, 21, 74 Cargill, 45 Caribbean tax havens, 192 Carnwath, Robert, Supreme Court Justice, 74 Carson, Rachel, 60 Car wash, 7 Cash for contracts, 241 Catholic Church, 103 Cattle ranching, 171 Cawiya, Alicia, 9, 111 CBD strategic plan, 225 Ceibo Alliance, 179 CERES Accelerator for Sustainable Capital Markets, 206 Cevallos Díaz, Armengol, 231 Charter of the United Nations, 16, 243 Chevron, 44, 123, 130, 133, 209, 248 Chevron/Texaco, 4, 5, 46, 47, 123, 129, 135, 224, 226 Chief Deskaheh, 11 China, 207 China Gezhouba Group Company (CGGC), 237 China International Water and Electric Corporation (CWE), 233, 234 China National Petroleum Corporation (CNPC), 47 China Three Gorges, 237 Cisneros, Mirian, 111 Citigroup, 45, 196 Class action, 195 Climate Action 100, 192, 196, 212 Climate Bill of Rights, 77 Climate change, 19, 50 Climate movements, 195

INDEX

Climate Strike, 208 Coalition for Environmentally Responsible Economies (CERES), 192, 206, 212, 226 Cobo, José Martínez, 13 Coca Codo Sinclair dam, 6, 233, 235 Coca Cola, 45, 199 Coca river, 237 Cofán, 19, 125, 169, 179 Colombian Supreme Court, 77 Commission on Global Governance, 27 Community outreach, 212 Companhia Energética de Minas Gerais (CMIG), 203 Compensation, 191 Confederación de Nacionalidades Indígenas Amazónicas del Ecuador. See Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENIAE) Confederation of Indigenous Nationalities of Ecuador (CONAIE), 105, 251 Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENIAE), 251 Conference of the Parties (COP), 89, 95, 160 Conservation Fund, 44, 207 Conservation International, 44, 207 Consumer product safety, 195 Convention on Biological Diversity (CBD), 5, 98, 147, 159, 161, 225, 227 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 147, 168, 174, 227 Coordinator of the Indigenous Organizations of the Amazon Basin (COICA), 178, 179

261

COP 26, 81 Corporate Social Responsibility (CSR), 36, 144 Corporate Transparency Act (CTA), 246 Correa, Rafael, 9, 18, 105, 227 Corruption Perceptions Index, 240 Costa Rica, 97 Court of Nueva Loja, 127 COVID-19, 9, 176, 204, 205, 212, 214 Crédit Agricole, 198, 206 Credit Suisse, 205 Criollo, Emergildo, 169, 170, 190 Crowdfunding, 180 Cuchiyacu, 142 Curaray river, 170

D Daimler, 200 Dávalos Oviedo, Ricky Federico, 231 Declaration on the Right to Development, 13 Deepwater Horizon, 237 Deforestation, 144 De-growth, 17, 66 Deutsche Bank, 239 Deutsche Bank Trust Company Americas, 231, 232 Development finance, 5 Doctrine of Discovery, 3, 62 Donziger, Steven, 126, 128–130, 132, 133 Dow Jones, 203 Du Bois, W.E.B., 11 Dupont, 45 “Dutch ING”, 203

E Ecocide, 63

262

INDEX

Economic and Social Council (ECOSOC), 13 Economics of Ecosystems and Biodiversity (TEEB), 165 Ecosystems, 2 Ecosystem services, 96 Ecotourism, 175 Ecuacorriente S.A., 137 Ecuadorian Consortium for Social Responsibility (CERES), 164 Ecuadorian Constitution, 145, 160 Ecuadorian Indigenous Federation (FEI), 101 Ecuador Runacunapac Riccharimui (ECUARUNARI), 102 Ehlers, Freddy, 7 Ejército Zapatista de Liberación Nacional (EZLN), 18 Embankment Project for Inclusive Capitalism, 196 Energía Argentina S.A. Enarsa, 233 Enlightenment, 91 Environmental accounting, 66 Environmental Economic Accounting (SEEA), 165 Environmental Impact Assessment (EIA), 5, 10, 143, 146, 148, 234 Environmental, Social and Governance (ESG), 5, 190, 199 Epistemologies of the South, 4 Equator Prize, 177 Escazú Agreement, 77 ESG performance, 196 ESG standards, 193 Ethical investment, 190 Ethical light, 198 Ethical principles, 189 Ethnocide, 63 European Union, 29, 30, 45 Evers, Diane, 75 Exchange of Information for Tax Purposes, 228

Exchange Traded Fund (ETF), 198 ExplorCobres, 134, 135, 137 Export Import Bank of China (Eximbank), 234 Expropriation of land, 17 Extractive industries, 3, 40, 100 Extractive Industries Transparency Initiative (EITI), 244 Extractive industry, 49 ExxonMobil, 44, 200, 203, 207 Exxon Valdez, 190

F Facebook, 134, 198, 202, 206, 246, 250 Federación de Trabajadores (FUT), 102 Federal Reserve, 2 Fenaship, Federico Presi, 138 Fernhead Holdings Incorporated, 231 Financial Crimes Enforcement Network of the US Treasury Department (FinCEN), 231, 244 Financial secrecy, 239 Fink, Larry, 1, 185, 202, 208 Follow This, 194 Food and Agriculture Organization (FAO), 57, 93 Foreign Corrupt Practices Act, 239 Forest Carbon Partnership Facility (FCPF), 94 Forum non conveniens , 126, 127 Forum shopping, 126 Fossil fuels, 198, 209 Freedman, Milton, 189 Free, Prior and Informed Consent (FPIC), 4, 20, 44, 90, 93, 110, 129, 141, 142, 146, 147, 157, 162, 236, 237, 247, 250 Fundão tailings dam, 199

INDEX

G Ganges river, 62, 75 Germano Samarco mine, 199 Gibson, Dunn and Crutcher, 130 Gilroy, Paul, 11 GIZ, 97 Glas, Jorge, 226, 231 Global Compact, 36, 38, 193 Global Corruption Barometer, 238 Global Forum on Transparency, 228 Global Impact, 198 Global Investor Statement on Climate Change, 197 Global Pact for the Environment, 78 Global press, 249 Global Reporting Initiative (GRI), 190, 193, 224 Global Sustainable Investment Alliance, 191 Global Witness, 50, 131 Goldman Sachs, 1, 197, 204, 238 Google, 206 Gore, Al, 109 Green bond market, 20 Green Bonds, 195 Green Climate Fund, 95 Greenpeace, 130, 205, 206, 208 Green technology, 21 Gualinga, Helena, 188 Gualinga, José, 62 Gualinga, Nina, 188 Gualinga, Traya Muskuy (Eriberto), 135 Guarani, 199 Gudynas, Eduardo, 18, 64, 250 Guedez, Pierre-Yves, 97 Gutiérrez, Lucio, 103

H The Hague International Court, 125 Harmony with nature, 144

263

Harmony with Nature resolutions, 70 Ho-Chunk nation, 75 HSBC, 45 Huaorani (Waorani), 7, 20, 40, 123, 136, 139, 144, 147, 171, 177 Huismann, Wilfried, 45 Human Rights Council, 249 Hunting, 169, 249 Hydro-electric dams, 201 I IBM, 198 Illegal logging, 168, 249 Illegal mining, 2 Illegal wildlife trade, 173 ILO Convention No. 169, 4, 12, 13, 60, 89, 90, 97, 146, 159, 163 Indigenous knowledge, 59 Indigenous Peoples’ Centre for Documentation, Research and Information (DOCIP), 10, 99 Indigenous Peoples Earth Charter, 69 Indigenous Peoples living in Voluntary Isolation, 140 Influence Map, 196 Institutional Investors Group on Climate Change (IIGCC), 192 Inter-American Commission on Human Rights (IACHR), 133 Inter-American Court of Human Rights (IACtHR), 8, 44, 76, 129, 140, 141 Inter-American Plan for Open Data (PIDA), 244 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), 59, 159 Internal Revenue Service (IRS), 232 International Consortium of Investigative Journalists (ICIJ), 230

264

INDEX

International Consortium on Combating Wildlife Crime, 166 International Council of Scientific Unions (ICSU), 41 International Court at the Hague, 126, 127 International Court of Justice, 30 International Court of Justice for the Environment, 79 International Covenant on Civil and Political Rights (ICCPR), 240 International Criminal Court, 247 International Criminal Police Organization (INTERPOL), 166 International Criminal Tribunal for the Rights of Nature, 137 International Environment Agreements (IEAs), 42 International Environmental Agreement Database (IEADB), 48, 49 International Financial Reporting Standards Foundation, 209 International Indigenous Peoples Forum on Climate Change (IIPFCC), 69 International Labour Organization (ILO), 12, 35, 59 International law, 4 International Monetary Fund (IMF), 28 International Union for the Conservation of Nature (IUCN), 41, 42, 45, 109 Iquitos, 173 Ishpingo-Tambococha-Tiputini (ITT), 107, 164 ISO 26000 Guidelines on Social Responsibility, 37 J Johnson and Johnson, 198, 202

JPMorgan Chase, 45, 197, 198, 204 Judges, 249

K Kapawi, 175 Kaplan, Lewis, 126, 127 Kari’Oca Declaration, 69 Kawsak Sacha, 61, 136 Kichwa, 20, 64, 123, 139, 144, 148, 169 Kichwa Añangu, 175 Kichwa Indigenous People of Sarayaku vs Ecuador, 8, 111, 128, 237 Klein, Naomi, 44 Koch, Charles, 206 Kodak, 45 Krenak, 199 Kyoto Protocol, 29, 87

L Labor practices, 193 Lafayette, 75 Lago Agrio, 121 Land clearances, 2 Lavajato “carwash” scandal, 226 League of Nations, 11, 34 Legal & General, 197, 204 Legal pluralism, 74 The Limits to Growth, 42 Loan conditionality, 28 Local Communities and Indigenous Peoples Platform (LCIPP), 88 Logging, 186

M Macas, Luis, 104 Macron, Emmanuel, 78 Mahuad, Jamil, 103 Malacatus Consulting and Training, 143

INDEX

Manduriacu hydroelectric plant, 232, 233 Manifest Destiny, 3, 63 Manufacturing, 212 Marañon, 144, 173 Marathon Petroleum Corporation, 203 Maxus oil well access road, 105 McDonald’s, 44 McKinsey, 194 Melo Cevallos, Mario, 8, 110 Microsoft, 198, 202, 206 Millennium Development Goals (MDGs), 36, 98 Mining, 67, 186 Mirador mine, 137 Monaghan, Maura K., 126 Monsanto, 44, 45 Morales, Evo, 19 Moreno, Lenín, 235 Morgan Stanley, 198 Morgan Stanley Capital International (MSCI), 196 Mosquera, Aleksey, 231 Mossack Fonseca, 190, 227, 228, 232 Mount Taranaki, 74 Movimento Sem Terra in Brazil (MST), 18 Movimiento de Unidad Plurinacional Pachakutik-Nuevo País , 103 Mucushigua, Basilio, 139 Multilateral Environmental Agreements (MEAs), 48 Multinational corporations, 20 Multiple accountability disorder, 3, 48

N Nación Sápara del Ecuador, 139 Nagar Hole National Park, 73 Nantip, Elvis, 138 Napo province, 143

265

Napo river, 235 National Biodiversity Strategy 2015–2030, 159 National Confederation of Indigenous Peoples (CONAIE), 102 National Confederation of Peasant, Indigenous and Black Organizations (FENOCIN), 102 National Congress of American Indians (NCAI), 12 National Court of Justice, 125 National Federation of Peasant Organizations (FENOC), 102 National Forest Monitoring Systems, 94 National Secretariat of Planning and Development (SENPLADES), 136 National Strategy for Biodiversity, 162 Natixis, 204 Nature Conservancy, 44 Nenquimo, Nemonte, 147, 177, 188 Nestlé, 202 “Net-zero”, 205 New social movements, 18 New Zealand, 74 Niebel, Dirk, 108 North American Free Trade Agreement (NAFTA), 18 Norwegian Government Pension Fund, 200 O Odebrecht, Marcelo, 6, 226, 227, 230–232, 238 Off-farm sector, 168 Off-setting, 205 Oil, 67 Oil extraction, 186 Old-growth tropical forests, 146 Open Data, 244

266

INDEX

Open States, 244 Orellana province, 47, 143 Organization for Economic Cooperation and Development (OECD), 37 Organization of American States (OAS), 11, 30, 44, 89, 133 Organized Crime and Corruption Reporting Project (OCCRP), 237 Our Common Future, 69 Outmigration of species, 144

P Pacari, Nina, 104 Pachakutik, 103 Pachamama, 210 Panama Papers, 6, 190, 227, 239 Pan Amazon Ecclesiastical Network (REPAM), 113 Pandaleaks , 45 Pareja Yannuzzelli, Carlos, 229 Paris Climate Agreement, 29, 98, 146, 191, 196 Paris COP 21 2015, 177 Parrots, 173 Pa¸sca Palmer, Cristiana, 158, 171 Pastaza province, 47, 143 Payment for ecoservices, 4 Peccaries, 173 PetroEcuador, 6, 124, 163, 167, 204, 227–229, 245 PetroOriental S.A., 47 Philip Morris, 203 Piaguaje, Javier, 130 “Pink tide”, 18 Pipelines, 208 Platform KUPI D, 144 Plurinationalism, 4, 19 Plurinational state, 104 Poaching and trafficking of protected species, 166

Postdevelopment, 65 “Powell, Jerome H.”, 205 Principles for Responsible Banking (PRB), 192 Principles for Responsible Investment (PRI), 192 Principles for Sustainable Insurance (PSI), 192 Private industry, 36 Procter & Gamble, 198 Public-private collaboration, 208 Puyo, 7 R Rabobank, 204 Racketeer Influenced and Corrupt Organizations Act (RICO), 126 Rainforest Action Network, 131 Rakoff, Jed S., 126 Ramírez Gallegos, René, 67 Ramsar Convention, 225 Ranching, 186 Reducing Emissions from Deforestation and Forest Degradation (REDD+), 5, 72, 93, 95, 97, 98 Renewable energy, 206 Representative List of the Intangible Cultural Heritage of Humanity, 136 Racketeer Influenced and Corrupt Organizations Act (RICO), 132 Rights of Nature, 4, 178 Right to develop, 13 Road construction, 144 Robinson, Mark, 244 Rotterdam Convention (1998), 146 Royal Dutch Shell, 105, 203 Royal Gold, 203 Ruggie, John, 37 Ruggie Principles, 38 Ruiz, Kléver, 139 Rupert, Anton, 45

INDEX

S Salesian Mission, 102 Santi, Marlon, 104 Santos, José Conceição, 231 Sápara, 20, 96, 135, 136, 139, 144, 168, 175, 176, 186 Sarayaku, 7, 136 Sarayaku Kichwa, 8, 47, 110, 111, 128, 135, 140, 248 Sargeant Marine, 229 SARS-CoV-2, 248–250 Scientific Committee on Problems of the Environment (SCOPE), 41 SEB, 195 Secoya, 123, 130, 177 Secretariat of Indigenous Affairs at the UN, 249 Securities and Exchange Commission US, 204, 205, 238 Self-reporting, 196 Sen, Amartya, 13 ShareAction, 194 Shell companies, 44 Shiva, Vandana, 109 Shiwiar, 139 Shuar, 20, 101, 134–137, 139, 144, 168, 169 Sierra Club Legal Defense Fund, 106 Silent Spring , 58 Sinohydro, 230, 231, 234–236 Sinopec/CNPC, 133, 140, 224 Siona, 123, 177 S K Engineering, 228 Social Investment Agreement, 143 Social media, 3, 100, 134, 249, 250 Social movements, 100 Social Responsibility and Sustainability Fund, 164 Société Générale SA, 202 Socio Bosque, 4, 96, 97, 126 Solidarity networks, 176 Spivak, Gayatri Chakravorty, 63

267

Standing Bear, Luther, 60 Statement of Commitment by Financial Institutions on Sustainable Development, 191 State-owned Assets Supervision and Administration Commission (SASAC), 232 State Street, 190, 194, 198 Stone, Christopher, 73 Strategic Lawsuit Against Public Participation (SLAPP), 130, 132 Strategic Plan for Biodiversity 2011–2020, 158, 178 Structural adjustment, 104 Structural Adjustment Programmes (SAPs), 28 Sucumbíos, 4, 47, 125, 143 Sumak kawsay, 4, 5, 17, 61, 67, 135, 136, 144, 160, 176 Suma qamaña, 4, 65 Summer Institute of Linguistics (SIL), 40 Sustainability, 189 Sustainability Accounting Standards Board (SASB), 196, 200, 209 Sustainability data disclosures, 206 Sustainability reporting, 195 Sustainable Development Goals (SDGs), 100, 133, 166, 243 Sustainable Environmental Investment Fund, 164 Swonk, Diane, 195

T Tagaere/Taromenane, 140, 141, 163, 168 Talisman, 138 Tarapoa Block, 47 Taraporevala, Cyrus, 194 Task Force on Climate Related cDisclosures (TCFD), 200

268

INDEX

Task Force on Climate Related Financial Disclosures (TCFD), 49, 192, 209 Tauli Corpuz, Vicky, 109 Tax havens, 240 Te Awa Tupua river, 74 Tendetza Antún, José, 137 Te Urewera forest, 74 Texaco, 123, 163 Tex-Pet, 124 Thunberg, Greta, 188 Time Magazine, 188 Tiputini, 144 Toachi-Pilatón hydroelectric plant, 231 Tobin, Rory, 198 Total SA, 199, 202 Toyota, 44 Transparency International, 237, 238 Trump, Donald, 206 2030 Agenda for Sustainable Development, 191 20 de Octubre community, 144 U UBS, 197, 204 UN Conference on the Human Environment in Stockholm (UNCHE), 41 UN Convention on Biological Diversity, 171 UN Declaration on the Right to Development, 91 UN General Assembly World Conference on Indigenous Peoples, 99 UN Global Compact, 37, 192, 224 UN Human Rights Council, 29 Unilever, 45 United Nations, 3, 9, 20, 29, 246, 249 United Nations Charter, 241

United Nations Conference on Environment and Development (UNCED), 2, 34, 69, 158, 178 United Nations Conference on Sustainable Development (2012 Rio Conference), 70 United Nations Conference on Trade and Development (UNCTAD), 37 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 4, 14, 15, 88, 89, 97, 147, 157, 159, 241 United Nations Development Programme (UNDP), 93, 108, 164 United Nations Economic and Social Council (ECOSOC), 12, 13, 34, 87, 88 United Nations Educational, Scientific and Cultural Organization (UNESCO), 13, 41 United Nations Environment Assembly, 58 United Nations Environment Programme (UNEP), 41, 42, 57, 93, 191, 212 United Nations Environment Programme Finance Initiative (UNEP-FI), 37, 191 United Nations Framework Convention on Climate Change (UNFCCC), 88, 93, 146 United Nations General Assembly, 19, 29, 48, 70, 91, 177 United Nations Guiding Principles on Business and Human Rights (UNGPs), 37, 224 United Nations Living Planet Report of 2018, 171

INDEX

United Nations Permanent Forum on Indigenous Issues (UNPFII), 10, 14, 19, 79, 87, 133, 138, 249 United Nations Research Institute for Social Development (UNRISD), 142 United States Constitution, 62 United States District Court Eastern District of New York, 127, 229 Universal Declaration of Human Rights (UDHR), 11, 13, 16, 240, 241 The Universal Declaration on Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, 13 Universal Declaration of the Rights of Mother Earth, 69 Universal Declaration on Cultural Diversity, 13 UN REDDprogramme, 4 UN Secretariat, 29 UN Security Council, 29 UN Special Rapporteur on Indigenous Peoples, 109 UN’s State of the World’s Forests 2020, 57 UN World Wildlife Day, 166 US Business Roundtable, 194 US Congress, 207 US Constitution, 62 US Environmental Protection Agency (EPA), 207 US Financial Intelligence Unit, 231 US Foreign Corruption Practices Act, 244 Ushigua Santi, Gloria, 96, 175, 176, 186 V Vale, 199 Vanconez, Sigrid, 235

269

Vanguard, 198, 199, 201 Villavicencio, Fernando, 235 Vinci SA, 202 Vitol Group, 229 Vivir bien, 4, 17, 66 Vogue, 188 Volvo, 200

W Waged employment, 170 Wajosará, 170 Walmart, 44 Waorani Organization of Pastaza Province (CONCONAWEP), 188 Wa Thiong’o, Ngugi, 64 Wells Fargo, 203 Western science, 64 Weyler, Rex, 130 Whanganui Act, 62 Whanganui iwi river, 74 Wild animals, 21 Wildfires, 2 Wild game, 169 Wildlife, 166 Wildlife trafficking, 172 Wisum, Bosco, 104 Woke capitalism, 2 Women’s Earth and Climate Action Network (WECAN), 113 Workers’ Federation, 102 World Bank, 3, 9, 28, 88, 166, 232, 244, 245 World Business Council for Sustainable Development (WBCSD), 192 World Commission on Environment and Development, 42 World Congress on Justice, Governance and Law for Environmental Sustainability, 76 World Customs Organization (WCO), 166

270

INDEX

World Economic Forum Corporate Citizenship Initiative, 224 World Economic Forum (WEF), 36, 192 World People’s Conference on Climate Change and the Rights of Mother Earth, 69 World Resources Institute, 202 World Wildlife Fund (WWF), 42, 45, 46, 188, 205

Y Yamuna river, 62, 75 Yarra River Protection Act, 75 Yasuní National Park, 105, 134, 135, 140, 164, 168, 171, 203 Youth for Climate France, 202 YouTube, 250

X Xi, Jinping, 36

Z Zábalo, 170