EDF lawsuit (re indigenous rights in Mexico, filed in France)
Snapshot: In October 2020, representatives of the indigenous Zapotec community of Unión Hidalgo and two NGOs filed a lawsuit against Electricité de France (EDF). The lawsuit alleges that the energy company failed to establish and implement appropriate measures to prevent human rights abuses and adverse environmental effects in the course of its Gunaa Sicarú windpark project according to France’s 2017 duty of vigilance law. EDF denies the allegations. The case is ongoing.
In 2013, the Mexican market opened to private investment of renewable energy companies. In 2015, Electricité de France (EDF) and its local Mexican subsidiaries, who were already operating three wind farms in the region, began planning the Gunaá Sicarú wind park on lands of the Zapotec community of Unión Hidalgo allegedly before consulting or informing the Zapotec community.
They initiated various legal proceedings in Mexican courts in 2017. They also filed a complaint before the OECD French National Contact Point in 2018, and withdrew it in 2019 because they felt that the process was ineffective.
In October 2020 representatives of the indigenous Zapotec community of Unión Hidalgo, two NGOs (ProDESC and the European Center for Constitutional and Human Rights (ECCHR)) filed a lawsuit in France against EDF. They alleged EDF failed to respect the right to effectively consult the indigenous community about the Gunaa Sicarú wind park project in violation of the indigenous community’s right to free, prior, and informed consent (FPIC).
In 2017, France passed a new corporate duty of vigilance law, that requires large French companies to establish and implement “reasonable vigilance measures adequate to identify risks and to prevent severe impacts on human rights and fundamental freedoms, on the health and safety of individuals and on the environment.” in their own business activities as well as for companies under their control, subcontractors and suppliers.
The plaintiffs, representatives of the indigenous Zapotec community of Unión Hidalgo, ProDESC and the European Center for Constitutional and Human Rights (ECCHR), are bringing the lawsuit under the French Corporate duty of vigilance law (2017) that requires large companies to ensure human rights are respected by identifying risks and taking adequate and effective steps to prevent human right abuses or environmental damage that could result from their activities.
The plaintiffs allege that EDF interfered with a meaningful FPIC of the indigenous community with respect to its wind park project failing to comply with its duty of vigilance. The complaint further alleges that EDF’s vigilance plan contains only a fragmented and non-specific identification of risks, with no appropriate measures to prevent possible violations resulting from the Gunaá Sicarú project, therefore violating FPIC and leading to internal division, escalating into violent conflict.
The claimants are seeking an injunction for EDF to comply with its duty of vigilance, by effectively preventing future violations of indigenous human rights resulting from its project. They also request compensation of the damages that have already resulted from the windpark project.
According to Bloomberg, EDF said that it has scrupulously complied with Mexican laws and recognises a UN-supported position that indigenous people have the right to give or withhold their consent to projects that may affect them or their land - the duty of vigilance law. EDF further claims to have collaborated with Mexican authorities in charge of conducting the community consultations and to have “a relationship of trust and proximity with the local communities.” In a letter dated 20 December 2019, EDF’s stated that its “2018 vigilance plan fully meets the requirements of the law of 27 March 2017 on the duty of vigilance” and “the prevention and mitigation measures included in the Group’s vigilance plan have been effectively made known.”
In October 2020, representatives of the indigenous Zapotec community of Unión Hidalgo and two NGOs filed a lawsuit against EDF, in France. The case is ongoing before a civil court and under a preliminary proceedings phase. In February 2021, the claimants requested an injunction of interim relief, to suspend EDF’s wind park project until a decision is taken on the merits of their claim. A hearing on this request for conservatory measure and exceptions raised by EDF took place on 26 October 2021.
In November 2021, as part of its pre-trial proceedings, the Paris civil court (tribunal judiciaire) dismissed the request from the claimants that EDF suspends the construction of the wind park, citing procedural grounds. The court however, confirmed the competence of the judicial court in matters relating to the duty of vigilance law.
EDF denies Mexican court ruling over indigenous land challenge will affect wind farm, Windpower Monthly, 27 Sept 2021
Wind Project Splinters a Mexico Region Prized for Powerful Gusts, Bloomberg, 9 July 2021