Huaorani Land Rights in Ecuador: Oil,Contact,and Conservation

I. Introduction

The Huaorani (Waorani) are hunters and gatherers who have lived in the Amazon Rainforest since before written history. Their ancestral lands span some 20,000 square kilometers and include the area now known as Yasuni National Park and Biosphere Reserve, in the Republic of Ecuador. Yasuni is world-renowned for carbon rich forests and extraordinary biological diversity. The Huaorani are legendary, even among other indigenous peoples in Ecuador's Amazon region, for their knowledge about the “giving”1 rainforest and its plant and animal life. They are also renowned for their warriors, and long hardwood spears and blowguns.

In Ecuador, the Huaorani are also known as “Aucas,” a term that means “savages” and is considered deeply insulting by the Huaorani. Their name for themselves, Huaorani, means humanos (humans, or people). They refer to outsiders as cowode, which means desconocidos (strangers). For centuries, Huaorani warriors defended their territory from intrusions by cowode who sought to exploit the Amazon and conquer its inhabitants. The first peaceful, sustained contacts between Huaorani and outsiders were in 1958, when evangelical missionaries from the U.S.-based Summer Institute of Linguistics and Wycliffe Bible Translators (SIL/WBT) convinced Dayuma, a Huaorani woman who was living as a slave on a hacienda near Huaorani territory, to return to the forest where she had lived as a child and help the missionary-linguists relocate her relatives into a permanent settlement, teach them to live as Christians, and translate the Bible into their native tongue.

In 1967, a consortium of foreign companies—wholly-owned subsidiaries of Texaco and Gulf, both now part of Chevron—struck oil in Ecuador's Amazon region, near Huaorani territory. The discovery was heralded as the salvation of Ecuador's economy, the product that would pull the nation out of chronic poverty and “underdevelopment” at last. At the time, the national economy was centered on the production and export of bananas.2

Oil exports began in 1972, after Texaco Petroleum, the operator of the consortium, completed construction of a 313-mile pipeline to transport crude oil out of the remote Amazon region. The “first barrel” of Amazon Crude was paraded through the streets of the capital, Quito, like a hero, and then placed on an alter-like structure at the Eloy Alfaro Military Academy.

But the reality of oil development turned out to be far more complex than its triumphalist launch. For the Huaorani, the arrival of Texaco's work crews meant destruction rather than progress. Their homelands were invaded and degraded by outsiders with unrelenting technological, military and economic power. The first ones came from the sky; over time, they dramatically transformed natural and social environments. Their territory reduced and world changed forever, the Huaorani have borne the costs of oil development without sharing in its benefits or participating in a meaningful way in political and environmental decision-making that affects them. Today, grassroots Huaorani who still live in their ancestral lands in Yasuni are organizing to defend their remaining lands, self-determination and way of life. In addition to encroachments by oil companies and settlers, they face a new threat: conservation organizations and bureaucracies that seek to manage Yasuni and govern the Huaorani.

II. Oil Boom3

Texaco's discovery of commercially valuable oil sparked an oil rush, and petroleum quickly came to dominate Ecuador's economy. Initially, the boom stimulated nationalist sentiments in petroleum policymakers. The government claimed state ownership of oil resources; created a state oil company; acquired ownership interests in the consortium that developed the oil; raised taxes; and demanded investments in infrastructure.

Before long, however, government officials learned that they have less power than is commonly believed. Although relations between Ecuador and Texaco and other oil companies have not been static, at the core of those relationships lays an enduring political reality. Since the oil boom began, successive governments have linked national development and economic policy with petroleum, and the health of the oil industry has become a central concern for the State. At the same time, because oil is a nonrenewable resource, levels of production—and revenues—cannot be sustained without ongoing operations to find and develop new reserves, activities that are capital intensive and technology driven. Oil development has accentuated Ecuador's dependence on export markets and foreign investment, technology and expertise.

When confronted with the realities of governance and oil politics, governments in Ecuador have vacillated over the extent to which petroleum policy should accommodate the interests of foreign oil companies or be nationalistic in outlook. Alarm over forecasts of the depletion of productive reserves has become a recurring theme in petroleum politics, as have the twin policy goals of expanded reserves and renewed exploration, and the corollary need to reform laws and policies to make the nation more attractive to foreign investors. The focus on economic and national development issues has eclipsed environmental and human rights concerns. Even the more nationalistic and populist policymakers have prioritized the need to promote oil extraction, and generally endeavored to maximize the state's share of revenues and participation in oil development, while disregarding environmental protection and the rights of the Huaorani and other affected indigenous peoples.

The initial bonanza and easy money from Texaco's early finds were relatively short lived, and just five years after production began, “a flood of foreign borrowing” was needed to sustain economic growth.4 Ecuador has been able to secure large loans for its size because of its oil reserves, and has accumulated a staggering foreign debt. At the same time, the benefits of oil development have not been well distributed. Income inequality and the percentage of Ecuadorians living in poverty remain stubbornly high.

III. National Integration and Land Rights

When the oil rush began, Ecuador's institutions had very little influence in the Amazon. The Huaorani who lived in the areas where Texaco wanted to operate were free and sovereign, living in voluntary isolation in the forest. The discovery of black gold made the conquest of Amazonia—and pacification of the Huaorani—a national imperative. It also provided infrastructure to penetrate remote, previously inaccessible areas, and monies to support the military and bureaucracy. Ecuador launched a national integration policy to incorporate the Amazon region into the nation's economy and assimilate its native peoples. Successive governments have viewed the Amazon as a frontier to be conquered, a source of revenue for the State, and an escape valve for land distribution pressures in the highland and coastal regions.

The government aggressively promoted internal colonization, and offered land titles and easy credit to settlers who migrated to the Amazon, cleared the forest, and planted crops or pasture—even though most soils in the region are not well-suited to livestock or mono-crop production. Government officials pledged to civilize Amazonian peoples.

On a visit to the Amazon in 1972, Ecuador's President, General Rodriguez Lara, rebuffed an appeal from a neighboring tribe for formal recognition of indigenous peoples in the government's new development policies, and protection of their lands from settlers. The president general said that all Ecuadorians are “part Indian,” with the blood of the Inca, Atahualpa; and insisted that he, too, was “part Indian,” although he did not know where he had acquired his “Indian” blood. “There is no more Indian problem,” he proclaimed, “we all become white when we accept the goals of the national culture.”5 Within ten days, the President's declaration of national ethnic homogeneity was codified by executive decree.6 Despite that, Ecuadorian society has continued to be multi-ethnic and multi-cultural, and both racism against indigenous peoples and extremes of wealth and poverty persist.

Ecuadorian law incorporated the doctrine of terra nullius, a racist doctrine that was used by European colonial powers in the Age of Discovery to provide a legal justification for annexing territories that were inhabited by indigenous peoples and asserting legal and political sovereignty over indigenous peoples. The doctrine of terra nullius has been aptly described by Peter Russell as both “confused and confusing”7—but it has nonetheless had an enduring effect on the way Ecuador has defined its relationship with the Huaorani. Essentially, it is a legal fiction that treats lands that were claimed by discovering European states as uninhabited, despite the presence of indigenous peoples. It denies property and political rights to indigenous peoples based on the racist presumption that even though they lived on the land at the time of colonization, they were “savages” who were incapable of exercising political sovereignty or owning their lands, and their political economies were so “underdeveloped” that their very existence as self-governing societies, in possession of their lands, could be denied.8

In conjunction with the Doctrine of Discovery—a related international legal construct that can be traced back more than five hundred years to papal documents authorizing “discovery” of non-Christian lands, and which states that a Christian monarch who locates, or discovers, non-Christian, “heathen” lands has the right to claim dominion over them9 —the doctrine of terra nullius has served as a legal justification for violating the rights of the Huaorani. In a preliminary study of the Doctrine of Discovery for the United Nations Permanent Forum on Indigenous Issues, then-forum member Tonya Gonnella Frichner identified two key elements of the doctrine, dehumanization and dominance, and found that the institutionalization of the doctrine in law and policy, at the national and international levels, “lies at the root of the violations of indigenous peoples' human rights….and has resulted in State claims to and the mass appropriation of the lands, territories and resources of indigenous peoples.”10 Although Frichner primarily examined the operation of the Doctrine of Discovery and related “framework of dominance”11 in U.S. federal Indian law, her findings are consistent with the experience of the Huaorani in Ecuador. There, a European colonial power and successor nation state similarly used the Doctrine of Discovery, framework of dominance, and legal fiction of terra nullius to assert both a supreme, overriding title to Huaorani lands, territory and resources, and a paramount right to subjugate and govern the Huaorani—and subsequently claimed and appropriated Huaorani lands for oil extraction and internal colonization without consent or compensation. That, in turn, has resulted in dispossession and a number of new problems and challenges for the Huaorani.

This remarkable claim—that the Amazon region was “tierras baldías,” vacant, uncultivated waste lands which belong to the State because they have no other owner, despite the presence of the Huaorani and other indigenous populations—was the prevailing doctrine in domestic law when the oil boom began. It wasn't until 1997 that Ecuador affirmed, in a submission to the Inter-American Commission on Human Rights for a report on human rights in Ecuador, that “the processes of ‘directed colonization’ and the consideration of large tracts of the Amazon basin as ‘tierras baldias' may be considered superseded.”12 By then, oil extraction and internal colonization had displaced the Huaorani from many areas. Moreover, notwithstanding that policy change, the right of the Huaorani to own and control their remaining lands, territory and resources has continued to be limited by laws and policies that control the characterization and granting of title, and by laws and policies associated with development and conservation activities. The Doctrine of Discovery and framework of dominance continue to serve as the foundation of multiple human rights violations in Ecuador, and undermine the land and self-determination rights of the Huaorani.

For the Huaorani, Ecuador's national integration policy meant that their ancestral lands were occupied and degraded by outsiders. As Texaco expanded its operations and advanced into Huaorani territory, Huaorani warriors tried to drive off the oil invaders with hardwood spears. In response, Ecuador, Texaco, and missionaries from the Summer Institute of Linguistics and Wycliffe Bible Translators (SIL/WBT) collaborated to pacify the Huaorani and end their way of life. Using aircraft supplied by Texaco, SIL/WBT intensified and expanded its operation to contact, settle and convert the Huaorani. Missionaries cruised the skies searching for Huaorani homes, dropping “gifts” and calling out to people through radio transmitters hidden in baskets lowered from the air. It was during this period, in the late 1960s and early 1970s, that most Huaorani were “contacted” by outsiders (cowode) for the first time.

More than 200 Huaorani were pressured and tricked into leaving their homes, and taken to live in a distant Christian settlement. Other Huaorani, including many in the region now known as Yasuni, refused to leave area and be “tamed,”13 but were nonetheless dispossessed of large portions of their traditional territory. At least one family group, the Tagaeri-Taromenane, has continued to resist contact with outsiders, and lives in voluntary isolation in the forest. Rosemary Kingsland, a journalist who wrote about the evangelization of the Huaorani with the missionaries' cooperation, described the mood of the time:

The northern [oil] strike was enormous….Nothing would stop them from going in[to Huaorani territory] now and there was talk of using guns, bombs, flame-throwers. Most of the talk was wild, but the result would be the same: a war between the oil men and the Aucas; a handful of naked savages standing squarely in the middle of fields of black gold, blocking the progress of the machine age. If it was to be a question of no oil or no Aucas, there was only one answer.14

The Huaorani who went to live with the missionaries were told that Huaorani culture is sinful and savage and were pressured to change, become “civilized,” and adopt the Christian way of life. Among other hardships, there were epidemics of new diseases (including a polio epidemic); important rainforest products were depleted; and the Huaorani, whose culture values independence and sharing, had to rely on imported foods and medicines obtained by the missionaries. The new foods, medicines and gifts of consumer items that the Huaorani could not themselves produce or obtain from their “giving” rainforest territory created relationships of dependency, inequality, and new needs for trading relationships with cowode.

Many elders recall the time “when the civilization arrived” as a period of great suffering and sickness. When some families returned years later to the land of their ancestors, it was not the same as before. The forest that was their home and source of life had been invaded and degraded by outsiders while they were away. In addition to wells, pipelines, and production stations, Texaco built a 100-kilometer road into Huaorani territory—which it named “Via Auca” (Auca Road)—and settlers used the new road to colonize Huaorani lands.15

As a result of Texaco's operations, the Huaorani lost their political sovereignty and sovereignty over their natural resources, and their territory, lands and resources were significantly reduced. Many remaining lands and resources have been degraded, and pollution is a growing threat for a number of communities. These changes, in turn, have produced a host of new problems and challenges for the Huaorani, including the erosion of food security and self-reliance in meeting basic needs. As a group, the Huaorani have been thrust into a process of rapid change, external pressures, and loss of territory and access to natural resources that endangers their survival as a distinct people. Texaco no longer operates in Ecuador, but its tragic legacy remains, and a growing number of (other) oil companies and settlers continue to push deeper into Huaorani lands.

The missionaries who worked with Texaco had their own, converging interests. SIL/WBT described the “Aucas” as “the world's most murderous tribe,” and its operation to convert them as “one of the most extraordinary missionary endeavors” of the twentieth century, “living proof of miracles brought to pass through God's word.”16 Nonetheless, the forced “contact” and relocation of the Huaorani was also a systemic, ethnocidal public policy and campaign, promoted and aided by Ecuador (and Texaco) with the intent to open Huaorani territory to oil extraction and sever the Huaorani's relationship with their ancestral lands in areas where the company wanted to operate. In addition to disregarding the basic human rights of the Huaorani—and infringing on their rights to property (land), self-determination, culture, health, physical well-being and religion, among others—it was a form of discrimination that denied cultural, political and property (land) rights to the Huaorani based the prejudice of cultural superiority. SIL/WBT was evidently aware of the convergence of interests; in “the ‘inside’ Auca story”17 written by missionary Ethel Emily Wallis, another missionary described one of many helicopter operations supported by “the oil people,” and commented on the expense:

This thing costs $200–300 an hour to run; and it was a three-hour operation—besides the four high-priced employees! The oil people, in turn, are more than willing to do what they can for our operation, since we have almost cleared their whole concession of Aucas. They assure us that they aren't just being generous!18

In 1969, Ecuador established a “Protectorate” for the Huaorani in the southwestern edge of their territory, which included the new Christian settlement but only some 3.3 percent of Huaorani ancestral lands (66,578 hectares, or 665.78 square kilometers). In 1983, the area was titled to the Huaorani. In 1990, a much larger area—6,125.6 square kilometers (subsequently increased to 6,137.5 square kilometers)—was titled to the Huaorani, but with the provision that legal title could be revoked if the Huaorani “impede or obstruct” oil or mining activities.19 In 2001, another 234.89 square kilometers was titled to the Huaorani organization, ONHAE (Organization of the Huaorani Nation of the Ecuadorian Amazon). The decision to award that land title to ONHAE instead of the Huaorani people is curious, and was evidently made without the knowledge or consent of the grassroots Huaorani communities. Together, the titled lands are referred to (by cowode) as the Waorani Ethnic Reserve, and include some 7,038 square kilometers, roughly one-third of traditional Huaorani territory. Other ancestral Huaorani lands have been titled to settlers, and an even greater area—some 10,123 square kilometers—is located in Yasuni National Park and claimed as State land. The Huaorani refer to the reserve, park and some adjacent areas as Huaorani territory, Ome.

In 1998, Ecuador formally recognized the multi-cultural nature of the country and some collective rights of indigenous peoples when it ratified the International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) and included indigenous peoples' rights in a new constitution. The constitutional rights echo provisions in the ILO convention and include some recognition of collective land rights.20 However, under Ecuadorian law, no land titles are truly secure because all subsurface minerals are claimed as property of the state, and oil extraction is permitted in lands that are titled to indigenous peoples without their consent. Current law also claims state ownership of biodiversity and most protected natural areas, including Yasuni National Park.

These restrictions on the rights of the Huaorani over their lands, territory and resources continue to be a major problem for communities in the Yasuni area, notwithstanding the proliferation of laws and policies at the national and international levels that recognize and protect rights of indigenous peoples. Those developments include a new Constitution (adopted in 2008) that arguably strengthens the land and self-determination rights of indigenous peoples in Ecuador, a new government which acknowledges that previous governments have violated the rights of indigenous peoples and claims to be implementing transcendent changes, and a growing body of international norms and jurisprudence. The international law developments recognize that indigenous peoples' rights over their lands, territory and resources are necessary for their survival, and include: the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly in 2007; a General Recommendation by the United Nations Committee on the Elimination of Racial Discrimination (CERD) calling on States to recognize and protect the rights of indigenous peoples, including rights over lands, territories and resources, in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination;21 decisions and “concluding observations” by CERD in response to individual complaints and country reports, respectively;22 and decisions and reports by the Inter-American Court and Inter-American Commission on Human Rights, respectively, interpreting and applying the right to property enshrined in the American Convention on Human Rights and American Declaration on the Rights and Duties of Man to protect the special relationship between indigenous peoples and their territory, and recognizing rights of property over traditional lands and resources based on that relationship and customary norms.23 The enormous gap between what some Huaorani call the “pretty words” in the law and the reality on the ground reflects the chasm between legal ideals and political realities, and the enduring legacy of the Doctrine of Discovery, framework of dominance and legal fiction of terra nullius.

IV. Environmental Protection in the Oil Patch24

Oil exploration and production is an industrial activity. Among other impacts, it generates large quantities of wastes with toxic constituents and presents ongoing risks of spills. Ecuador's Law of Hydrocarbons has included boilerplate environmental directives since at least 1971. Early provisions required oil field operators to “adopt necessary measures to protect the flora, fauna and other natural resources” and prevent contamination of water, air and soil. In theory, those and other, comparable requirements in generally applicable laws offer mechanisms for regulation of significant sources of oil field pollution. In practice, however, Texaco and other oil companies have ignored the laws, and successive governments have failed to enforce them.

When Texaco began its operations, there was little public awareness or political interest in environmental issues. Moreover, environmental protection in the oil patch depends on the use of technology, and Ecuador relied on Texaco, as the operator of the first commercial fields, to transfer hydrocarbon extraction technology. Ecuadorian officials saw Texaco as a prestigious international company with vast experience and access to “world class” technology and capital. They relied on Texaco to design, procure, install and operate the infrastructure that turned Ecuador into an oil exporter. In its contract with the State, Texaco agreed to use “modern and efficient” equipment, train Ecuadorian students, and turn over the operations to Ecuador's state oil company, Petroecuador, when the contract ended in 1992.25

In the environmental law vacuum, Texaco set its own environmental standards and policed itself. As Petroecuador's “professor,” Texaco also set standards for that company's operations. Texaco's standards and practices, however, did not include environmental protection. The company did not instruct its Ecuadorian personnel about environmental matters, and oil field workers who were trained by Texaco were so unaware of the hazards of crude oil during the 1970s and 1980s that they applied it to their heads to prevent balding and gave it to parents who suffered from arthritis. The rumors attributing medicinal qualities to Amazon crude are not entirely surprising, considering its status as the harbinger of a great future for the nation and Texaco's neglect of environmental and human health concerns.

In 1990, when government officials were confronted with a study (subsequently published as Amazon Crude) by an environmental lawyer from the United States (the author) that documented shocking pollution and other impacts from operations by Texaco and other companies, they professed ignorance. Texaco was their “professor,” they explained; the company taught them how to produce oil, but did not teach environmental protection.26

That basic view—that public officials did not realize that industry operations were taking a serious toll on the environment until international environmentalists put a spotlight on the region—has been echoed by others. According to General Rene Vargas Pazzos, who was a key policymaker in the military government that ruled Ecuador when the oil rush began, government officials did not question Texaco about environmental practices because they did not question the company's technical expertise or know that the operations could damage the environment:

We thought oil would generate a lot of money, and that development would benefit the country. But we did not have technical know-how, and no one told us that oil was bad for the environment….The [government's] Hydrocarbons Directorate approved the work, but the technology came from Texaco. It is like contracting a doctor. You go in, and can see that the room is fine. But with the operation, it is beyond your control and know-how….We were happy about the petroleum. We said, “Do it, and tell us what it will cost”….But we did not know about environmental issues.….We thought Texaco used the best methods.…Texaco was the operator. We did not interfere in technical decisions because that was Texaco's responsibility. That is what we paid them for.… We controlled only the production rates, the payment of taxes [and things like that]….27

According to Vargas, all of the work plans and technical specifications for the operations were elaborated and approved by Texaco in the United States. According to Margarita Yepez, who worked for Texaco Petroleum from 1973–1989 and was based in Quito, the operations were closely supervised from Texaco's Coral Gables, Florida office: every department head in Quito had a direct telephone line to a supervisor there; important contracts were approved and signed in the United States; expenditures were closely supervised from the United States; and the Quito office had a full-time employee to microfilm all written materials to send to Coral Gables in a daily mail pouch.

Texaco's international prestige and day-to-day control of field activities, as the operator, gave the company enormous power in the oil patch—power that was compounded by systemic deficiencies in the rule of law and good governance in Ecuador. Texaco's power and the culture of impunity in the oil fields—the belief that companies can do whatever they want and suffer no adverse consequences as long as they get the oil—is illustrated in a remark (to the author) by a worker in 1993, the year after Texaco's contract expired. The man worked for a subcontractor, driving a truck that dumped untreated oil on roads for dust control and maintenance. When asked what he thought about the practice, he replied: “Three years ago, I went to a training course…and a gringo from Texaco told us that oil nourishes the brain and retards aging. He said that in the United States they do this on all of the roads, and people there are very intelligent.” When asked if he believed what the trainer had said, he replied: “It doesn't matter what I think; here, Texaco, and now Petroecuador, manda (gives the orders). Everyone works for them.”

The consortium led by Texaco extracted nearly 1.5 billion barrels of Amazon crude over a period of twenty-eight years (1964–1992). The operations expanded incrementally, and by the time Texaco handed over operational responsibility to Petroecuador in 1990, it had drilled 339 wells in an area that spans roughly one million acres. The facilities were producing some 213,840 barrels of oil daily. They also generated more than 3.2 million gallons of toxic wastewater (oil field brine, also known as produced water) every day, virtually all of which was dumped into the environment via unlined, open-air earthen waste pits, without treatment or monitoring—a practice that has been generally banned in the United States by federal law since 1979. In addition, they generated more than 49 million cubic feet of natural gas every day. Some of the gas was processed for use in the operations; however, most was flared, or burned as a waste, without temperature or emissions controls, contaminating the air with greenhouse gases, precursors of acid rain, ground level ozone, soot and other contaminants.

In addition to routine, willful discharges and emissions, Texaco spilled nearly twice as much oil as the Exxon Valdez from the main pipeline alone, mostly in the Amazon basin. Spills from secondary pipelines, flow lines, tanks, production stations and other facilities were also frequent, and continue to this day. In contrast to the oil industry's typically energetic response to spills in the United States, Texaco's response in Ecuador was limited to shutting off the flow of petroleum into the damaged portion of the pipeline, and allowing the oil already in the line to spill into the environment before making the necessary repairs. No cleanup activities were undertaken, and no assistance or compensation was provided to affected communities. Texaco's pipeline system crosses myriad rivers and streams; as a result, depending on the location and size of the release, in addition to devastating local impacts, spills can cause oil slicks on waterways—and foul water supplies and fisheries of downstream communities—for scores or even hundreds of kilometers. Moreover, because spills are not properly cleaned up, they can become sources of ongoing, chronic pollution in affected watersheds for months or years. The damages caused by Texaco are so serious and widespread that other oil companies now go to great lengths to try to distinguish their operations: “We are not like Texaco, we use cutting edge technology and international standards to protect the environment” has become a common refrain.28

As extraction facilities age, they generate less oil and more produced water. They also require more costly maintenance to maximize production and prevent spills and other releases. Basic oil field economics, then, do not favor environmental protection because the cost of production typically increases as the income stream from facilities decreases. Petroecuador has continued to expand operations in the fields developed by Texaco; in addition, exploration and production by Petroecuador and other companies has expanded in new areas.

In the wake of Amazon Crude, environmental protection has become an important policy issue in Ecuador. Since the early 1990s, both government officials and oil companies must at least appear to be “green.” However, the implementation of environmentally-significant changes in the field has lagged, despite both public pledges by a growing number of companies to voluntarily raise environmental standards, and a clear trend on paper toward increasingly detailed—albeit incomplete—environmental legal rights and requirements, including constitutional recognition since 1984 of the right of individuals to live in an environment “free from contamination,” expanded constitutional group environmental rights since 1998, and constitutional recognition of “rights of nature” since 2008. In addition to the legacy of Texaco, the implementation of environmental law in the oil fields has been hampered by the absence of political will; inadequate financing; lack of technical capacity; undue industry influence and resistance to regulation; corporate control of environmental decision-making29; and the failure of the rule of law and good governance generally.

V. Litigation30

In 1993, a class action lawsuit was filed against Texaco, Inc. in federal court in New York, on behalf of indigenous and settler residents who have been harmed by pollution from the Ecuador operations. The suit, Aguinda v. Texaco, Inc., was filed by U.S.-based attorneys after an Ecuadorian-born lawyer, Cristobal Bonifaz, read about the Amazon Crude study.31

Class action law permits a group of named plaintiffs to sue on behalf of a large group of similarly situated individuals. The complaint named some seventy-four plaintiffs, none of them Huaorani. The putative class was estimated to include at least 30,000 persons.

The complaint did not identify all of the affected indigenous groups or distinguish their claims and injuries from those of the settlers—known locally as “colonos” (colonists)—who are also adversely affected by the pollution and included among the named plaintiffs and putative class. Similarly, it did not include claims based on the specific rights of indigenous peoples. However, in press releases and other public relations and advocacy activities related to the case, the plaintiffs' lawyers and nongovernmental organizations (NGOs) that support the litigation often give the impression that all of the plaintiffs are indigenous Amazonian peoples. As a result, confusion about the plaintiffs and origins of the litigation have characterized many of the media reports about the case—which have been extensive—and it has commonly been described as a lawsuit brought by “Indians” or “indigenous people from the rainforest.”

In response to the lawsuit, Texaco denied any wrongdoing and vigorously fought the legal action. In submissions to the court and in the media, Texaco alleged that the operations had complied with Ecuadorian law and then-prevailing industry practices. Moreover, the company argued, it had not operated in Ecuador since 1990, and any legal claims should be pursued there instead of the United States. In court, Texaco also denied parent company control over the operations, which, as noted above, were carried out by a wholly-owned subsidiary, Texaco Petroleum Company, in a consortium, initially with Gulf and subsequently with Petroecuador. This effort to distance the parent company from the Ecuador operations and assert that it had no role in environmental management there contradicted both the image that Texaco Petroleum had cultivated in Ecuador, of a leading international company based in the United States, and the image commonly promoted by Texaco, Inc. in public relations materials and responses to concerned consumers and NGOs before it was sued, of an industry leader engaged in worldwide operations that is committed to environmentally responsible practices wherever it operates. Texaco's legal submissions further contended that environmental practices were heavily regulated by Petroecuador and Ecuador.

Outside court, Texaco and Ecuador moved quickly to negotiate issues raised by the lawsuit. They signed a series of agreements in 1994–1995. Under the accord, Texaco agreed to implement limited environmental remediation work; make payments to Ecuador for socio-economic compensation projects; and negotiate contributions to public works with municipal governments of four boom towns that grew around the company's operations and, in the wake of Aguinda v. Texaco, sued Texaco Petroleum in Ecuador. In exchange, Ecuador's government and Petroecuador agreed to release Texaco and its subsidiaries and successors from all claims, obligations and liability to the Ecuadorian State and national oil company “related to contamination” from the operations.

The “remedial work” undertaken by the company, however, was limited in scope and largely cosmetic. It did not contain or reverse the tragic environmental legacy of the operations, or benefit affected rural populations. Indeed, the accords—which were negotiated behind closed doors, without meaningful participation by affected communities, transparency or other democratic safeguards—seem more like an agreement between polluters to limit cleanup requirements and lower and divide their costs than a remediation program based on a credible assessment of environmental conditions and the measures needed to remedy them. The final release reflected the enduring political and economic power of Texaco, and the selective application of the law in the oil frontier. Inasmuch as it liberates the company from environmental obligations to the State, it also raises serious questions of law and legitimacy.

In court, after nine years of litigation, Texaco's efforts to dismiss the case were successful, and the Aguinda plaintiffs were essentially told to go home and sue in Ecuador. The lawsuit was dismissed on the ground of forum non conveniens, a doctrine that allows a court to dismiss a case that could be tried in a different court, in the interest of justice or for the convenience of the parties. Dismissal was conditioned on Texaco's agreement to submit to the jurisdiction of Ecuador's courts.32

When a federal court applies the forum non conveniens doctrine, it first determines whether there is an alternative forum, and then balances private and public interest factors to determine which forum is more convenient. In Aguinda, the district court ruled that Ecuador's courts provide an alternative forum, and that the balance of private and public interest factors “tips overwhelmingly in favor of dismissal.”33 Despite the fact that Texaco's headquarters was just a few miles from the courthouse where the case was filed, Judge Jed Rakoff concluded that the case has “everything to do with Ecuador and nothing to do with the United States.”34

Some of the facts used by the court to support its legal analysis are uncontested. For example, there were no allegations of injury in the United States; Texaco built and operated the facilities; and after operations began, Ecuador acquired majority ownership of the assets and continued to operate them after Texaco Petroleum's contract expired. Other facts, however, are in dispute. One area that is especially germane relates to control of the operations. While not determinative, in and of itself, of the legal questions, the factual issue of where decisions were made about the technology and practices that caused the pollution, and who made them, was a material element of the court's analysis, and clearly colored the decision to dismiss.

The proposition, advocated by Texaco and accepted by the court, that Ecuadorians controlled the relevant decisions, that no one from Texaco or anyone else operating out of the United States made any material decisions or was involved in designing, directing, guiding or assisting the activities that caused the pollution, and that environmental practices were heavily regulated by Ecuador, is a recurring theme. The court also distinguished Texaco from Texaco Petroleum (the subsidiary that operated in Ecuador). That distinction, and the portrait of Texaco Petroleum as basically an Ecuadorian company whose operations were far removed from the parent, is dramatically different from the image of “Texaco” in Ecuador and the impression there that the government had contracted with the U.S. company, Texaco. It is also at odds with the portrait cultivated by Texaco prior to the litigation, of a multinational industry leader that transferred world class technology to Ecuador. Altogether, the Aguinda Court's depiction of Texaco's role in the operations is clearly incongruous with reality of oil development in Ecuador, including the environmental law vacuum and culture of impunity in the oil frontier, the experience of Amazonian peoples and other Ecuadorians with the company, and the portrait cultivated by Texaco during its tenure.

In 2001, Chevron acquired Texaco; in 2002, the district court's decision to dismiss Aguinda was affirmed on appeal;35 and in 2003, the plaintiffs' lawyers filed a new lawsuit against ChevronTexaco (now Chevron) in Lago Agrio, the boom town that sprang up around Texaco's first commercial field. The Lago Agrio complaint names forty-eight plaintiffs from two settler and two indigenous communities, and asserts claims on behalf the Huaorani, four other indigenous peoples (Cofan, Secoya, Siona and some Kichwa) and settlers. However, the Huaorani were not consulted about the litigation or included among the plaintiffs, and no relief was requested directly for the affected communities or community members, or even for the plaintiffs. Instead, the complaint asked the court to determine how much a comprehensive environmental remediation would cost and to order Chevron to pay the full amount to a local NGO, Amazon Defense Front (Frente de Defensa de la Amazonia), which would then administer the funds for the ends determined by the judgment. The complaint also claimed a 10 percent share of the remedial monies for the plaintiffs, but requested that those funds also be paid to Amazon Defense Front.

Amazon Defense Front, known locally as “Frente,” was founded in 1994 by a group of colonists in Lago Agrio who heard about the Aguinda v Texaco lawsuit on the radio, and decided to establish a local institution to administer monies that they expected to be forthcoming from the case. The group has developed close ties with the plaintiffs' lawyers and some external NGOs, but is controlled by colonists and is not regarded by the affected indigenous peoples as their legitimate representative.36 Moreover, its efforts to claim a monopoly of representation of all people affected by Texaco and mange local politics in an undemocratic fashion have alienated many people in the affected communities. In addition to issues related to representation, another recurring concern involves possible remedies. Efforts by local residents, at different junctures over the years, to demand “clarity and transparency in the process,” obtain information from Frente and its lawyers, and engage them in a dialogue about remedial plans—in the event of a victory in court or out-of-court settlement—have been rebuffed. The decision to designate Frente, which is not a plaintiff, as the trustee in charge of administering any judgment was evidently made by the plaintiffs' lawyers without consulting or informing the affected communities.

In February 2011, the court in Lago Agrio ruled that Chevron is responsible for widespread pollution that has harmed, and continues to threaten, the environment, public health and indigenous cultures. In a 188-page opinion, the Court ordered Chevron to pay more than $8.6 billion for remedial measures, and an additional $8.6 billion in punitive damages if the company did not apologize to the affected communities within fifteen days. The objective of the punitive damages is to compensate the affected communities for their pain and suffering, and punish Chevron for unreasonable and malicious conduct in the litigation which prolonged the suffering of the victims. The Court also awarded more than $1.7 billion to Frente for its work on the case. The total—if Chevron does not apologize—is more than $19 billion. The judgment further provides that a trust fund should be set up to administer the remedial monies, and that the sole beneficiary of the fund, as well as its Board of Directors, shall be Frente or the person or persons it designates.

Both Chevron and the plaintiffs appealed. The plaintiffs sought additional monies, and Chevron challenged the legitimacy of the decision. In January 2012, the appellate chamber of the Lago Agrio court affirmed the judgment in all material respects. Chevron appealed to Ecuador's highest court, the National Court of Justice; that appeal is pending. However, Chevron does not expect to prevail in Ecuador's courts—at least not while the current President, Rafael Correa, is in power—and it does not have assets in Ecuador. Consequently, the company has been preparing to defend itself against possible enforcement actions in the United States and around the world by also challenging the judgment in two other fora: a lawsuit against the plaintiffs and their lawyers in federal court in New York, and an arbitration proceeding against Ecuador in The Hague.

The arbitration proceeding alleges that Ecuador violated a bilateral investment treaty with the United States by allowing the Lago Agrio lawsuit to proceed (despite the settlement accord discussed above) and by denying due process rights to Chevron in that litigation. It seeks indemnification from Ecuador for any costs or liability incurred by the company as a result of the lawsuit, and a declaration that Chevron has no liability for the pollution that gave rise to the case. In February 2011, days before the court's decision in Lago Agrio, the arbitration panel ordered discretionary interim measures directing Ecuador to suspend enforcement or recognition of any judgment against Chevron in the Lago Agrio lawsuit while the arbitration proceeds.

Chevron's lawsuit in New York is based on allegations of misconduct by the Lago Agrio plaintiffs' litigation team and systemic failures in the administration of justice in Ecuador. It followed extensive discovery proceedings in the United States, which gained force after the release of a documentary film about the Lago Agrio case in 2009. The film, “Crude,” was solicited by the New York lawyer who manages the case for the plaintiffs, Steven Donziger. For three years, the film crew shadowed the plaintiffs' lawyers, shooting some 600 hours of footage. The initial version of the film showed an expert who contributed to what was supposed to be an independent, comprehensive assessment of the alleged damages for the Lago Agrio court working with plaintiffs' counsel. The images of the expert were subsequently edited out, but not before Chevron saw them.

Chevron used those scenes, and some others, to get a court order in the United States compelling the filmmaker to produce all of the outtakes (raw footage that does not appear in the film). The company argued that the Lago Agrio lawsuit is baseless, and that it needed the outtakes to demonstrate that its due process rights are being violated in Ecuador. Chevron also subpoenaed environmental consultants, and even lawyers, who were involved in the case to give testimony and turn over documents. Those discovery actions—in federal courts across the country—are ongoing, but already number in the dozens and are extraordinary in their scope.37

As a result of the discovery, Chevron found evidence that the legal team for the plaintiffs ghostwrote the comprehensive damages assessment that had been presented to the Lago Agrio court as the work of an “independent” court-appointed expert. The company also found outtakes from “Crude” showing Donziger stating that all Ecuadorian judges “are corrupt,” and explaining to viewers:

You can solve anything with politics as long as the judges are intelligent enough to understand the politics….[T]hey don't have to be intelligent enough to understand the law, just as long as they understand the politics.38

Additional revelations from the discovery include evidence that Donziger and Frente made undisclosed agreements with funders and third party investors in exchange for interests in the Lago Agrio judgment.

Chevron's lawsuit in New York names fifty-five defendants. They include Donziger, Frente and its Ecuadorian lawyer (Pablo Fajardo, who is also counsel of record for the Lago Agrio plaintiffs) and the Lago Agrio plaintiffs. The complaint also alleges culpable conduct by a number of non-parties, including the California-based NGO Amazon Watch, which promotes itself as a group that works “directly with indigenous communities” in the Amazon to support indigenous peoples and advance their rights (in addition to protecting the rainforest),39 but works closely with Frente and Donziger in the name of the affected communities and often appears to act as a megaphone for the lawyers.

Chevron's complaint includes racketeering claims against all of the defendants except the Lago Agrio plaintiffs, based on allegations that the Lago Agrio case is a sham lawsuit in an alleged criminal enterprise to obtain a settlement or judgment from Chevron through fraud and extortion. The complaint also asserts claims for fraud, unjust enrichment and civil conspiracy (against all of the defendants), and seeks damages and an injunction barring enforcement of the Ecuadorian judgment in the United States and abroad. Initially, district court Judge Lewis Kaplan issued a preliminary injunction enjoining the defendants from taking any action to enforce the Lago Agrio judgment pending a final ruling on that claim.40 However, the Second Circuit Court of Appeals vacated the injunction and dismissed Chevron's claim for declaratory and injunctive relief.41 The appellate court did not rule on the merits of Chevron's allegations; instead, the Second Circuit held that although New York law would allow Chevron to challenge the validity of the judgment if the Lago Agrio plaintiffs sue to enforce it in New York, the company may not to sue preemptively to declare a foreign judgment void and seek to bar its enforcement anywhere in the world. Litigation on the remaining claims is underway. The defendants are contesting the action on a number of grounds, and have also accused Chevron of misconduct in the Lago Agrio action.

After more than eighteen years of litigation, the impact of Aguinda remains to be seen. If the Lago Agrio judgment is not overturned in Ecuador, the first question will be whether it can be enforced. The likelihood of enforcing the judgment in a U.S. court is uncertain, but does not look promising at this time. The likelihood of collecting the judgment (or portions of it) in other countries where Chevron has assets is impossible to predict—as is the question of whether the parties will settle the case instead of litigating in more courtrooms around the world.

It also remains to be seen whether a victory in court—or settlement through Frente's lawyers—will obtain meaningful remedies for the Huaorani and other affected groups, or simply empower and enrich a new layer of elites and set back local struggles for environmental justice by promoting conflict, corruption and cynicism. The decision to empower Frente to essentially control the monies awarded by the Lago Agrio court reflects and reinforces the failure of the Aguinda litigation elites to allow meaningful participation by the affected indigenous communities in decision-making processes. The Huaorani and other indigenous peoples who have suffered most from Texaco's operations risk becoming symbols of justice without getting justice or adequate remedies.

For now, this new chapter in the litigation appears to be shifting much of the focus of the legal and political contest from allegations about Texaco's misconduct to allegations of misconduct by the lawyers and activists who manage the Lago Agrio case, and from concern about the rights of the affected communities to the rights of Chevron. The alleged misconduct not only has prolonged the litigation, but also seems to have tainted the credibility of the victims' claims (outside of Ecuador) and may have jeopardized their right to a remedy. In addition, it has eclipsed the situation on the ground—where environmental conditions continue to deteriorate, people's rights are still being violated, and no one is accepting responsibility.

VI. The Intangible Zone and Conservation in Yasuni

Since the arrival of Texaco and “the civilization,” much has changed for the Huaorani, and many people now live in cities outside of Huaorani territory or near roads built by oil companies in their ancestral lands. However, other Huaorani families still live in the forest, in harmony with the “giving” rainforest, and at least one family group, the Tagaeri-Taromenane, lives in voluntary isolation.

The Tagaeri-Taromenane and the most traditional of the “contacted” Huaorani live in an area known as The Intangible Zone, a spectacular rainforest refuge which spans more than 7,580 square kilometers of ancestral Huaorani lands and has been designated as a conservation area since 1999. The Intangible Zone is part of the Yasuni Biosphere Reserve, and includes the southern half of Yasuni National Park and a portion of Huaorani titled lands. It is off-limits to oil extraction, mining and logging—at least for now—because those operations could be expected to generate violent encounters with the Tagaeri-Taromenane and likely result in their extermination. Although The Intangible Zone does not include all of the territory of the Tagaeri-Taromenane, and reportedly overlaps with parts of five oil concessions, the designation as “intangible” is nonetheless important because Ecuador allows oil development in other areas of Yasuni National Park and in lands that are titled to indigenous peoples without their consent. The entire northern half of Yasuni National Park overlaps with oil concessions, and at least five oil concessions include some titled Huaorani lands.

The contacted Huaorani who live in The Intangible Zone understand that they need to preserve and defend the forest in order to survive “as Huaorani” and protect their culture and way of life. They see the area, and some adjacent lands that have not yet been occupied by oil companies or settlers, as their last refuge. The importance of the area to them was described by Kemperi, a Huaorani elder, in a “message to people who live where the oil companies come from:”

My message is that we are living here. We are living in a good way. No more oil companies should come, because already there are enough…Many companies want to enter, everywhere. But they do not help; they have come to damage the forest. Instead of going hunting, they cut down trees to make paths. Instead of caring for [the forest], they destroy. Where the company lives, it smells nasty, the animals hide, and when the river rises the manioc and plantain in the low areas have problems. We respect the environment where we live. We like the tourists because they come, and go away. When the company comes, it does not want to leave. Now the company is in the habit of offering many things, it says that it comes to do business, but then it makes itself the owner. Where the company has left its environment, we cannot return. It stays bad. Something must remain for us. Without territory, we cannot live. If they destroy everything, where will we live? We do not want more companies, or more roads. We want to live as Huaorani; we want others to respect our culture.

Kemperi's community, Bameno, is located in the heart of the Intangible Zone. Since 2007, Bameno has been leading efforts to organize the contacted communities in The Intangible Zone to work together to defend what remains of their territory and sovereignty, including the right of community members to continue to live in freedom, as Huaorani, in their ancestral lands, and the right of their “uncontacted” neighbors to be left alone. The communities first came together to remove illegal loggers from The Intangible Zone. They also oppose new oil operations and roads, and see community-managed (and operated) tourism as a better economic alternative, that does not harm the forest or disrespect their culture and way of life. They call themselves Ome Gompote Kiwigimoni Huaorani (We Defend Our Huaorani Territory); for short, they say “Ome Yasuni.”

In the process of organizing themselves and seeking to engage in a constructive dialogue with the cowode, the communities in Ome Yasuni alliance are learning about new threats to their territory and self-determination. Much has been written about violations of indigenous peoples' rights by environmentally harmful “development” in Amazonia. And the Huaorani still face that threat. But the Huaorani who live in The Intangible Zone and Yasuni National Park also face a new threat: conservation NGOs and bureaucracies.

Although Yasuni National Park and Yasuni Biosphere Reserve have existed—on paper—since 1979 and 1989, respectively, for years, the government and conservationists paid relatively little attention to the area. Most Huaorani did not know that a park and reserve had been superimposed on their lands. More recently, however, as international financial support for conservation has surged, there has been growing interest in both the biologically-diverse, carbon-rich forests of Yasuni42 and the Huaorani family group(s) who live in voluntary isolation.

The contacted Huaorani appreciate that a lot of people want to protect the rainforest that is their home. But they are concerned because so many outsiders, in public institutions and NGOs, want to direct programs and projects that make decisions about Yasuni without taking them or their rights into account. Despite international recognition of the value to conservation of the traditional knowledge of indigenous peoples like the Huaorani—and significant commitments by governments and conservation organizations to respect the rights of indigenous peoples in protected area policies and activities around the world—the new projects and programs that purport to protect biological and cultural diversity in Yasuni still follow a technocratic, expert-dominated paradigm that empowers outside professionals and excludes local communities from decision-making processes. This approach not only ignores the rights and interests of community members, but also fails to appreciate that the vital link between the continued existence of the Huaorani, their culture and the “giving” ecosystem that is their home represents a tremendous, and irreplaceable, opportunity for conservation in Yasuni.

At the same time, there are signs of paternalism and belief in robust state intervention in Ecuador's current government. For example, one high-level official explained (to the author) that “the problem in the Amazon is the absence of the State, so the solution lies there; we need to reconquistar (re-conquer) the Amazon.” It is not surprising, then, that there has been a lot of resistance to efforts by the communities to gain access to information, make themselves understood, and engage conservation project managers and public officials in a constructive dialogue—even as those same managers and officials claim to consult with local communities and decorate posters and brochures with pictures of community members.

For example, in March 2011 the Ministry of Environment (MAE) official charged with managing Yasuni National Park, Santiago Bonilla, invited some Huaorani from Yasuni to a meeting in the oil boom town and provincial capital, Coca. A group from Bameno travelled for three days to reach Coca, and was joined by people from other Huaorani communities along the way; the meeting sounded important. They hoped to listen to presentations that would inform them about what the government (and others) are doing in their programs and projects for Yasuni, and then have an opportunity to explain their thinking and concerns and engage in a dialogue about “what is going to happen and how we will live.” But when they arrived, Bonilla told the meeting that he was working with professionals from the United Nations to update the management plan for Yasuni National Park, and divided the participants into groups (two for Huaorani who live on oil company roads and another for Huaorani who live in the forest). Each group was led by two facilitators from UN agencies. When asked for a copy of the current management plan for Yasuni, Bonilla said he did not have a copy, and that it was “not pertinent”—the Huaorani did not need to know what it says in order to participate in the meeting, and if they wanted to know, they could find the plan on the internet (even though there is no internet service in the communities). He instructed the Huaorani to answer questions presented by their group leaders, and said that their answers would be written on large sheets of paper taped to the wall. This methodology offended the group from the forest, who subsequently said they felt “shoved into the groups,” without any opportunity to listen or speak about what was on their minds.

Bonilla described the approach to the author (who accompanied Ome Yasuni to the meeting), in order to explain “the methodological reasons” why she should not make any comments during the meeting. The methodology for the group with Ome Yasuni, Bonilla explained, was being managed by high level officials from the United Nations Educational, Scientific and Cultural Organization (UNESCO) and United Nations World Tourism Organization (UNWTO); they will ask the Huaorani “extremely simple questions” in order to facilitate “comprehension of the problem,” and “it would be harmful to the Huaorani people” if the author spoke, “since they [the Huaorani] have never been taken into account” but now will be “taken into account.”

After the meeting, the Huaorani in the Ome Yasuni alliance felt “sad and concerned” because, as they explained in a formal communication to UN Special Rapporteur on the rights of indigenous people James Anaya (reporting and protesting violations of their rights by Ecuador and the UN agencies):

[I]t was clear to us that the government and United Nations system want to meddle in Yasuni, but they do not understand our culture, thinking, concerns or priorities, and what is more, they do not want to understand. They do not want to engage in a serious dialogue with our communities, instead they seem to think that we are children or animals to manage (and adorn their posters), and they want to impose authorities on us and make us live like children of the government. But we are humans and Yasuni is our home, it is our territory. We have rights and we want to live in freedom, as Huaorani, in our ancestral territory.43

The communication—from twenty-three Huaorani from five communities and Ome Gompote Kiwigimoni Huaorani—also said that the people who managed the meeting “seemed confused about who lives in the park and who lives far away or in the city,” and protested that “they did not inform us about what a management plan is and what their process is to write it and make decisions,” and “they did not want to let us talk about territory, only about the park and their questions.”44 In addition, “the papers they wrote (on the wall) were badly done because they wrote things that changed our words, they did not write other important things that we said, and they made it look like we all agree with everything the papers say even though that is not true.” For example, when Penti, a Bameno community member and coordinator of Ome Yasuni said “we want title to our ancestral territory,” the UN facilitator said “they want demarcation of the park” and began to write that on the paper on the wall.

After the author tried to clarify, saying “it is not the same thing,” Bonilla approached her and said (in a private conversation) that “everyone knows” that Ecuador's Constitution prohibits land titles in national parks, because the parks must be the property of the State. She asked him to explain that to the Huaorani, but he refused—until finally, the author told Penti about the conversation and he told the Huaorani. When Bonilla finally addressed the group, “he spoke as if there is nothing to dialogue about, as if we have no rights,” because the Constitution is the highest law of the land. He did not mention that the same Constitution—and international law—also recognize rights of the Huaorani over their lands, territory and resources. Both Bonilla and his UN advisors were silent about the rights of indigenous peoples, prompting the Huaorani to complain in their communication that they “only informed about the law that favors their programs,” and “it seems that they do not know” that the UN Declaration on the Rights of Indigenous Peoples, and other constitutional and international law which “recognize our rights, exist, or they wanted to hide and disregard our rights and misinform us.”45

The Huaorani communication also protested the lack of information and discussion about future oil development in Yasuni, and underscored their opposition to new operations:

We have asked the government to inform us about its plans and proposals for oil company activities that could affect us and our territory. But it does not tell us anything. The government needs to understand that something of our territory must remain for us, where we can live in tranquility in the way we want to live. Without territory we cannot live.

They concluded by saying that “instead of dialoguing with us with dignity, they [MAE and the UN agencies] tried to manipulate and use us so that afterwards they can say that we grassroots Huaorani who live in Yasuni are participating in their process and Program Yasuni, something that is not true.”46

A brochure that was given to some people at the meeting indicates that the activities were part of a larger project by MAE and six UN agencies, called the Program for Conservation and Sustainable Management of the Natural and Cultural Patrimony of the Yasuni Biosphere Reserve (Program Yasuni). The project was funded by Spain, through the UN Millennium Development Goals (MDGs) Achievement Fund, ostensibly to advance MDG 7 (ensure environmental sustainability), by contributing to conservation of one of the most biologically and culturally diverse regions in the world; MDG 1 (eradicate extreme poverty and hunger), by “promoting community management of biodiversity and natural resources with the objective of generating sustainable means of livelihood”; and additionally, to “contribute to the protection of the fundamental rights of the indigenous peoples who live in isolation” in Yasuni.47

It remains to be seen whether, and how, Program Yasuni and other conservation projects will lead to new law in Huaorani territory—and control over the Huaorani and their lands, territory and resources—and whether any changes will be sustained, because so many important details and decision-making processes are murky and because historically, law and politics in Ecuador have been unstable. In addition, the Huaorani in the Ome Yasuni alliance are learning about the new colonizers, and have vowed to defend their territory and self-determination.

Nevertheless, there is no question that this surge in outside interest, and funding, is fueling decision-making processes that affect the rights and interests of the Huaorani. Those processes, in turn, are creating a climate of insecurity in which community members now worry not only about protecting their territory from oil companies, settlers and loggers, but also fear for their right to continue to live in freedom as Huaorani in their ancestral lands. As Daboto, a Huaorani woman and Bameno community member, explained:

This is our territory. We live here, our parents and grandparents lived here; this has always been our territory. But now cowode (strangers) call it Yasuni and say it is not our land. We want to live here, like our ancestors, in this territory; we want our children to live here. We want to live free; we do not strangers to compel us and tell us how to live.

Those “strangers” include a growing number of Ecuadorian government agencies, international public institutions and NGOs. The public international actors—who have been involved in multi-million dollar-projects—include the United States Agency for International Development (USAID) and at least six UN agencies. In addition to the burgeoning conservation bureaucracy, the Huaorani must now also contend with a rising national human rights regime and military presence in Yasuni, propelled by a legal proceeding at the Inter-American Commission on Human Rights. The proceeding was initiated by four environmentalists in Quito on behalf of the Tagaeri-Taromenane, and prompted the Commission to ask Ecuador to implement “precautionary measures” to protect the right to life and physical integrity of the uncontacted group.48 The communities in the Ome Yasuni alliance agree with the objectives of the precautionary measures—to respect the right of the Tagaeri-Taromenane to live in isolation and protect their territory. Nonetheless, they want the government (and petitioners) to recognize and respect their rights, too, and reach agreements with them on how to implement the measures instead of making unilateral decisions and imposing them on community members. Major concerns include the growing presence of the Ecuadorian state, and further encroachments by oil companies and settlers in areas that lie outside of The Intangible Zone but within the territory of the Tagaeri-Taromenane. Those areas include the oil block known as Armadillo, which is currently slated for development despite the likelihood of violent encounters with the Tagaeri-Taromenane and the threat to the survival of the uncontacted group.

Even greater sums of money for conservation and human rights programs for Yasuni are possible in the future from a government proposal to combat climate change, called The Yasuni-ITT Initiative. Under the proposal, Ecuador would “leave the oil in the ground” in one oil block in Yasuni National Park—known as ITT (Ishpingo-Tiputini-Tambococha)—if the international community provides it with some $3.6 billion over thirteen years, through donations and/or trading in carbon credit markets.49 Although it remains to be seen whether those monies will be forthcoming, international funding for conservation is also expected to increase dramatically as a result of other emerging market-based mechanisms to combat climate change, including the REDD (Reduced Emissions from Reduced Deforestation and Forest Degradation) schemes that are being developed by the United Nations and World Bank to maintain carbon storage in forests by reducing deforestation and forest degradation rates.

In addition to seeking to manage Huaorani territory, lands and resources, and govern the Huaorani, the conservation project managers also seem to be trying to decide who should represent the Huaorani, by supporting efforts to create a supreme tribal authority that could speak for all Huaorani—and if needed, legally represent the Huaorani and sign agreements with outsiders who seek to manage or extract their natural resources. Those efforts began with the oil companies and USAID, working with the Huaorani organization NAWE (Waorani Nation of Ecuador, formerly ONHAE), but now appear to be gaining support from Ecuador, UN agencies and some NGOs. Increasingly, those outsiders need new intermediaries (other than the missionaries) to legitimize their activities and deal, in their way, with the Huaorani. The effort to impose a chief legal and political representative on the Huaorani thus appears, at least in part, to be a response to the mounting recognition of indigenous peoples' rights in national and international law and policy—which seeks to vest the rights of the Huaorani over their lands, territory and resources, and their right to participate in decision-making that affects them, in a legal body that is controlled by a small circle or even one person.

ONHAE was founded in 1991 by a group of young Huaorani men who had attended secondary school together—and learned some Spanish—in an effort to engage with the outside world on new terms and enable the Huaorani to speak for themselves. In 1993, the president of the organization signed a “friendship agreement” with the oil company Maxus (now part of Repsol-YPF50) and opened an office in a town, outside of Huaorani ancestral lands. The officers of ONHAE began to leave their communities to work in the city, and both the organization and its directors became dependent on funding from the oil company and increasingly disconnected from the Huaorani communities. In 2007, the directors changed the name of the organization to NAWE, reportedly because ONHAE had a bad reputation and was widely regarded (by outsiders and in the communities) as notoriously corrupt.

NAWE's bylaws have never been approved by the Huaorani people, but the Huaorani generally regard NAWE as “a social organization that should help the communities,” and not as a tribal authority or legal representative of the communities or their members. A fundamental, and deeply held, norm of Huaorani culture is that “no one goes to the home of another to obligar” (oblige them, or tell them what to do). In addition, although the Huaorani people have a sense of shared identity and territory, there are distinct extended kinship groups within the tribe (and Yasuni) who have ties with clearly defined areas of traditional Huaorani territory, and according to customary law, local communities have the right to manage and control the territory they inhabit and defend.

It is not surprising, then, that the effort to transform NAWE into a tribal government and authority pursuant to cowode law is a stealthy—and mysterious—external process that does not have the free, prior and informed consent of the Huaorani people. As a general matter, the attempt to attribute political and legal “authority” to NAWE in Yasuni is generating considerable concern in the communities, and growing conflict within the tribe between grassroots Huaorani who want to live in peace in the forest, and an emerging urban political elite who want a piece of the action and see Huaorani lands and resources, and conservation and development projects by cowode, as a source of cash income.

In August 2010, the press reported that Ecuador had signed an agreement with the United Nations Development Programme (UNDP) to set up a trust fund to receive contributions for the Yasuni-ITT Initiative. In response to that news—and another report, in the government newspaper El Ciudadano, that the then-President of NAWE and his brother met with officials in the Presidential Palace in Quito to present a proposal for an indigenous oil company51—Ome Yasuni organized a gathering where community members agreed to produce a written document to communicate their views about the ITT proposal and conservation and oil development in Yasuni. The communication begins by explaining that the Huaorani communities in Yasuni are concerned about the future of the area, and have “2 very important things to say.”52 The first is that the oil in the ITT concession, and other parts of Yasuni where the forest has not yet been destroyed, “must stay in the ground” regardless of whether the government gets the monies it is seeking, “because it is our home.” The “second thing” is that

[W]e want everyone to understand…that the forest in Yasuni is our home, it is our territory, and we, the Waorani [Huaorani] families of Yasuni, are working to defend the forest and our human rights, including the right of the Tagaeri-Taromenane Waorani family to live free in the forest without contact. We demand that the government and everyone with interest in Yasuni recognize and respect our rights, including our right to manage our territory and continue to live our culture in freedom in our ancestral lands. Do not come to bother us or impose projects and programs that have not been agreed to by the Waorani communities who live in Yasuni.53

The document explains that the communities appreciate that “many people want to protect the forest” and that the government now says “it wants to change the history of the Ecuadorian state in order to respect the rights of indigenous peoples and conserve the forest,” and continues:

But we are also concerned because so many outsiders want to manage Yasuni and negotiate in the name of Yasuni and our Tagaeri and Taromenane neighbors without taking us into account and without respecting our rights. They work in ministerios (government agencies), NGOs, companies, and other public and private organizations, and are national and international. They say they want to conserve the forest and defend the rights of the indigenous communities who live in her, but they are working in a paternalistic way, without informing, consulting, or reaching agreements with the communities of contacted Waorani who live in Yasuni, and without understanding our reality and what territory means for us….54

The communication calls on the government to “listen to the voices of the Waorani communities who still live in our ancestral lands in Yasuni, change your history and policy regarding the Waorani people, and dialogue and work with us to reach written agreements with the communities to protect…Yasuni and make the rights of the Waorani people, including our territorial rights, a reality.” It demands that the government “leave the oil in the ground” in the ITT and other areas of Yasuni, and that it “correct” the Yasuni-ITT Initiative and other programs and projects in the area “in order to recognize and respect the rights of the Waorani communities who live in Yasuni…” It also demands that other groups, including UNDP, UNESCO, USAID, NAWE and the national indigenous organization CONAIE (Confederación de Nacionalidades Indígenas del Ecuador, Confederation of Indigenous Nationalities of Ecuador), inform the communities about their activities related to Yasuni and the Tagaeri-Taromenane, respect the rights of community members, and reach agreements with the communities “before continuing your projects and processes.”55

VII. Ome Yasuni Postscript

Since this article was written and presented, the communities in the Ome Gompote Kiwigimoni Huaorani alliance have intensified their efforts defend their rights and make their concerns understood. For example, after learning that the government was using images of Bameno community members in a video on YouTube to promote the Yasuni-ITT Initiative, Ome Yasuni posted a series of (three) video messages from Bameno on YouTube.56 In May 2012, the group posted an online petition to the President of Ecuador on the social action platform Change.org, to reach out to viewers and apply international pressure on the government to “Stop Destroying [the] Yasuni Rainforest” and work with the grassroots Huaorani communities to make human rights and conservation a reality in Yasuni. The introduction by Ome Gompote Kiwigimoni Huaorani to the petition letter closes by explaining: “Our fate and the fate of Yasuni are one. Without territory and self-determination, we cannot survive. Without the Huaorani to defend and care for her, the Yasuni Rainforest cannot survive.”57

VIII. Conclusion

Texaco's discovery of commercially valuable oil in the Amazon Rainforest in Ecuador was heralded as the salvation of Ecuador's economy, the product that would pull the nation out of chronic poverty and “underdevelopment.” The discovery ignited an oil rush that made the conquest of Amazonia and pacification of the Huaorani a national policy imperative, and petroleum quickly came to dominate Ecuador's economy and quest for progress.

But the reality of oil extraction has been far more complex than its triumphalist launch. For the Huaorani who have lived in the Amazon Rainforest since time immemorial, the arrival of Texaco and “the civilization” meant destruction and ethnocide rather than development and progress. Their ancestral homelands were invaded and degraded by outsiders who also sought to force them to live in contact with “strangers” (cowode) and end their way of life. The strangers used their legal fiction to assert a supreme, overriding title to Huaorani lands, territory and resources, and a paramount right to subjugate and govern “the People” (Huaorani). With their world changed forever and their territory reduced, the Huaorani have borne the costs of oil extraction without sharing in its benefits and without participating in decision-making by outsiders that affects them.

Notwithstanding those changes and challenges, many Huaorani who live in the area now known as Yasuni have maintained their culture and relationship with their “giving” rainforest territory, and want to “leave [their] own history” for their children. In The Intangible Zone, uncontacted and contacted Huaorani family groups are actively defending their way of life and what remains of their territory against further intrusions by cowode, each in their own way—but both nonetheless impelled by their shared interest in protecting as much forest as possible for future generations, and their right to continue to live as they wish in their ancestral lands. For the Huaorani who still live on the land, territory is much more than a physical place and healthy environment. It is a space in which they can exercise genuine political self-determination, maintain their culture and identity, and live as Huaorani, without strangers spoiling the forest or trying to dominate the People and tell them how to live.

Despite significant changes in cowode law, at the national and international levels, that recognize rights of the Huaorani over their lands, territory, resources, culture and development, an enormous gap remains between the promises in the law and the reality on the ground. Moreover, the arrival of new law and politics in the name of conservation and indigenous peoples' rights in Yasuni is fueling, and funding, the “reconquista” of Huaorani territory and the People. This distressing distortion of well-intentioned—and essential—legal ideals reflects and reinforces gross inequities in law and governance, and the enduring legacy of the Doctrine of Discovery and legal fiction of terra nullius. It also shows the wisdom of the conclusion, and response, by the Huaorani of Ome Yasuni, as explained by Penti:

Before, our territory was big, big. Now we have less but the government wants more oil companies to enter, and many cowode want to impose their projects and law and tell us how to live. The cowode law has pretty words but does not respect the Huaorani or protect our territory Ome. Yasuni is here today because we [the Huaorani] defended this territory.

They all need to understand that something of this rainforest territory must remain for the Huaorani, where we can continue to live freely and in accordance with our culture, without oil companies, settlers, roads, military and security forces, loggers, ministerios (bureaucrats), or other outsiders damaging the forest or telling us how to live. Without territory, we cannot live.

For the rule of law to serve as an instrument of justice, the rules must be fair. When rules and rule-making processes are inequitable, the rule of law can be an instrument of aggression and destruction, rather than democracy and development. Until Ecuador recognizes and respects the rights of the Yasuni Huaorani over their lands, territory and resources, including the right of local community members to free, prior and informed consent before development—or conservation—projects go forward in their territory, the kinds of abusive practices that began with Texaco and are still going on today can be expected to continue, and the rights of the Huaorani will be continue to be violated by state and nongovernmental parties with impunity.

At the same time, Ecuador needs to engage in a dialogue with the communities of contacted Huaorani in Yasuni, in order to address the problems and threats that imperil the Huaorani and the carbon-rich, biologically diverse forest that is their home; ensure that the right of the uncontacted Huaorani family group(s) to live in isolation is respected; and change the relationship between the Huaorani and the colonizing state, to establish a “just relationship”58 that would allow the Huaorani to engage (or not) with strangers on their own terms in their own territory. Effective conservation and genuine, sustainable development—and justice and equal protection of the law—cannot be achieved by imposing a supreme and dominant cowode law in Yasuni, but rather will require political agreements that Huaorani community members and cowode “construct together”59 in freedom and respect.