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Opinion

29 Oct 2021

Author:
ProDESC

Unión Hidalgo: An indigenous community's legal journey to defend their rights and resist the irresponsible wind power industry

The Binnizá community of Unión Hidalgo is located in the Isthmus of Tehuantepec, in southern Mexico. It is an indigenous community that, like many in Mexico, preserves its own forms of socio-political organisation, an identity link with its territory and particular traditions and worldviews. Also, due to its climatic and geographical characteristics, Unión Hidalgo and other communities in the Isthmus region of Oaxaca are the scene of an invasion of pharaonic business projects for the production of wind energy. The wind industry has been established in a context of human rights violations, stigmatisation and violence against community leaders and human rights defenders.

Although the Mexican state has a legal framework that protects the right of indigenous peoples to self-determination and respect for their livelihoods and territories, and has ratified Convention 169 of the International Labour Organisation since 1991, reinforcing the state's commitment to the rights of indigenous peoples, human rights violations are committed in connection with business activities in the region. Transnational corporations play a leading role in directly perpetrating, contributing to or supporting various abuses of indigenous peoples' rights and acts of violence against environmental and land defenders who oppose large-scale corporate projects.

It is not uncommon for corporations to be found to intentionally influence community decision-making processes on economic projects, for example by promising benefits or interfering with participatory mechanisms. These lobbying strategies create division and encourage violent social conflict. Moreover, companies often continue with their projects despite the failure of the State to guarantee the protection of human rights and the rights of communities affected by such projects.

Since 2013, Unión Hidalgo has been fighting for its territory and natural assets against corporations that seek to install parks by committing abuses. The struggle began against the Piedra Larga project of the Spanish company Renovalia Energy which, despite not having been consulted, was inaugurated in 2012, in the midst of attacks against defenders and litigation (still ongoing) for the illegal signing of usufruct contracts on communal lands.

Subsequently, in 2017, a legal process against the intention to install a park on their territory, without the free, prior and informed consent of the community. Electricité de France (EDF) initiated negotiations on the Gunaa Sicarú wind project with specific individuals in the community, applied for a power generation permit, signed power purchase agreements and memoranda of understanding with authorities. All these actions took place without prior consultation with the community of Unión Hidalgo, instead encouraging division among the inhabitants and creating an atmosphere of violence.

The judicial authorities in Mexico recognised the violation of prior consent in Unión Hidalgo and in October 2018 ordered to undertake a consultation process that adheres to the highest standards in this area; however, so far, the implementation of this resolution is insufficient. As a consequence of the lack of effective community participation, members of comuneros and comuneras assembly and defenders have been stigmatised as opponents to the development and growth of the community, labelled as "anti-eolian" or as having a hidden agenda to oppose projects, threatened during their participation in assemblies, and harassed or assaulted to dissuade them from continuing their demand for human rights. Civil organisations, public human rights organisations and international experts have called on governments and the companies involved to protect the defenders of Unión Hidalgo.

In parallel to the aggressions and persecution, it is alleged that representatives of the companies and their partners have deployed strategies to separate the community, although the company denied such claims. It is for this reason that since 2011, Unión Hidalgo defenders have been beneficiaries of precautionary measures from the local ombudsperson due to their situation of risk in the face of the wind energy projects, and that these measures have been accompanied by a request from the National Human rights commission to suspend a consultation that did not comply with international standards.

In 2018, community representatives filed a complaint against EDF with the French National Contact Point (NCP). However, the petitioners abandoned the process after denouncing the lack of results and the questionable performance of the NCP. Against this backdrop, the defenders of Unión Hidalgo, ProDESC and the ECCHR approached EDF using the French law of vigilance, a mandatory due diligence law, to seek a favourable outcome in the French justice system. On 13 October 2020 they filed a legal action and almost a year later they are waiting for their second hearing for the judge to decide on jurisdiction and to endorse the preventive character of this law.

Obstacles such as corruption, lack of information about the projects and the actors involved, the evident asymmetry of power between international corporations and communities, coupled with the absence of mandatory corporate accountability mechanisms, due diligence procedures that are not effective but rather simulations or box-ticking exercises, and a historical and structural situation of discrimination against indigenous peoples, undermine the path for communities affected by business projects to obtain comprehensive reparations and justice for violations of their human rights.

These shortcomings are not coincidental but evidence of a corporate capture of the State. Even, as in the case of Unión Hidalgo, when communities are able to bring their claims to court, there is little assurance that the process will take these inequalities into account, and it demands a standard of expertise from communities that only distances them from obtaining reparations.

For this reason, the community and ProDESC implement a comprehensive defence that takes into account the organisational process of the community in order to rebuild community ties, strengthen the identity link with the territory, rescue historical memory such as the assembly of comuneros and recognise themselves as human rights defenders. In the same sense, the linking actions with other communities in the region whose struggles converge with those of Unión Hidalgo have been important to counteract the aforementioned inequalities.

Finally, we emphasise that when organisational defence actions are based on a critical and counter-hegemonic vision of human rights, they constitute an ideal tool for struggle and social change, particularly because they are resistances built from the knowledge of the affected communities themselves. The community of Unión Hidalgo and many communities in the Global South are resisting and drawing the keys to imagining a future with social and environmental justice.