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French Court dismissal of case against TotalEnergies shatters hope
Kampala, Uganda | RONALD MUSOKE | On Feb.28, the Paris Civil Court dismissed a landmark case filed by six French and Ugandan NGOs against French oil major, TotalEnergies, for the oil project it is currently developing in Uganda.
The environmental groups wanted the court to order TotalEnergies to stop the east African projects under France’s duty of vigilance law. The 2017 statute requires companies to identify human rights and environmental risks in their global operations and supply chains and to take measures to prevent them.
TotalEnergies has two main projects in east Africa; namely, the Tilenga oil development project in Uganda’s Lake Albert region with reserves estimated at over one billion barrels and the East Africa Crude Oil Pipeline (EACOP) which is a joint venture project to build and operate a buried heat-traced 1443km long crude oil pipeline from Uganda, across Tanzania to the Indian Ocean port of Tanga.
Given the “social and environmental urgency in Uganda and Tanzania,” the six NGOs had chosen to bring the case before the interim relief judge (“juge des référés”) in 2019 with the hope of obtaining an instant decision. However, a lengthy procedural battle ensued, ultimately leading to the involvement of the French Supreme Court which is France’s highest court for civil matters.
Those suing TotalEnergies included Friends of the Earth-France, Survie (Survival) and four Ugandan civil society organisations; the Africa Institute for Energy Governance (AFIEGO) of Dickens Kamugisha, Civic Response on Environment and Development (CRED) of Bashir Twesigye, National Association of Professional Environmentalists (NAPE) of Frank Muramuzi together with Friends of the Earth-Uganda (which is affiliated to Friends of the Earth International), and Navigators of Development Association (NAVODA).
In their 2019 suit they had argued that the development of the East African Crude Oil Pipeline (EACOP) failed to adhere to ‘a duty of vigilance’; which is a French legislation introduced in 2017 that compels transnational corporations like TotalEnergies to avoid endangering the health, human rights, safety (of people) and the environment.
The NGOs also accused TotalEnergies of “taking land from more than 100,000 project-affected people without adequate compensation.” They also said the company intended to drill wells in Murchison Falls National Park, which would endanger one of the most biodiverse protected areas in Africa.
The court’s verdict was long-awaited by civil society since it was the very first case based on the French law on the duty of vigilance of transnational corporations.
However, the Paris Court— ruling in summary proceedings— argued that the NGOs’ case could not be admitted because their current claims were “substantially different from the claims” made in the initial formal notice sent to the defendant (TotalEnergies) in 2019.
The court also noted that the NGOs that filed the suit did not correctly follow court procedures against the French energy corporation. It said the plaintiffs submitted accounts to the court in December, last year, that were substantially different from those that were presented to TotalEnergies in a formal notice in 2019 when the case was initiated.
The court’s ruling was welcomed by TotalEnergies. “The court has found we formally established a vigilance plan comprising the five items required by the duty of vigilance law, in sufficient detail so as not to be considered purely summary,” the corporation noted in a statement sent to French publication, Le Monde.
Unhappy civil society
But the civil society organisations that filed the case were left disappointed. They noted in a statement issued on March 1 that “the judges did not rule on the core elements of the case, namely Total’s serious failures to meet its duty of vigilance obligations to identify and properly prevent the risks of human rights violations and environmental damage associated with its Tilenga and EACOP projects in Uganda and Tanzania.”
The NGOs also contested the assertion that they have substantially modified their claims, stating that they have only clarified their requests and arguments while providing more than 200 documents. “The amount of evidence provided is proportionate to the issues at stake and necessary to update their complaint due to the prolonged procedural battle initiated by Total in 2019,” they said.
According to Dickens Kamugisha, the Chief Executive Officer of the African Institute for Energy Governance (AFIEGO), “the decision is a huge disappointment for the associations and affected communities in Uganda and Tanzania who had placed their hopes in French justice.”
“The human rights violations and environmental damage continue and are getting worse. We will continue to work harder than ever in the courts and elsewhere to put a stop to them and hold Total accountable for the consequences of its activities.”
Juliette Renaud, a senior campaigner at Friends of the Earth France argued that “the French courts have missed an opportunity to put an end to the multiple violations taking place in Uganda and Tanzania.”
“It is essential that this summary judgment procedure, which allows for faster judgments, be effective in order to achieve the central objective of this law: to prevent human rights violations and environmental damage before they occur.”
“Judicial delays are piling up, and every passing month is wasted time in putting an end to the serious human rights violations caused by Total’s mega-oil project in Uganda and Tanzania, and preventing an environmental and climate disaster from occurring.”
Pauline Tétillon, the co-chair of Survie (Survival), another French NGO that was part of the suit also noted that “while Total’s devastating oil mega-project in Uganda and Tanzania is being criticized from all sides, from journalists to academics, from the European Parliament to UN rapporteurs, and while civil society mobilization has taken on an international dimension, the judges are still postponing a decision on the heart of the matter: the consequences of this project on the population, the environment and the climate.”
“We have been denouncing them for more than three years, the disaster must stop as soon as possible, while we are only a few weeks away from the first drillings in the heart of the protected natural park of Murchison Falls,” she said.
The NGOs insist TotalEnergies should bring its vigilance plan into compliance with the law by including all the risks of serious harm associated with the Tilenga and EACOP projects, as well as the appropriate vigilance measures to be developed to address these risks; effectively implement these vigilance measures, including emergency measures such as immediate payment of compensation and food support for communities deprived of their livelihoods.
And although the development of the oil projects is ongoing, the NGOs want, as a precautionary measure, work on the Tilenga and EACOP projects suspended until the associated risks of serious harm have been properly identified and measures to stop human rights violations and prevent environmental and climate disaster have been developed and effectively implemented.
Janepher Baitwamasa, a human rights advocate at the Navigators of Development Association (NAVODA) noted in the NGOs’ joint statement that: “There is no denying that oil exploitation and the infrastructure associated with it have impacted the environment in the Albertine region.”
“Small pockets of ‘forests and streams have been destroyed, making access to firewood and clean water difficult. Today, women have to walk long distances to access firewood and water. This is gendered injustice. If courts don’t act fast enough to compel Total to put in place adequate mitigation measures for its projects, this gender injustice will be perpetuated.”
For Kamugisha of AFIEGO, the French court verdict was a setback but the NGOs remain hopeful that when the case is heard on its merits, justice will be delivered. “Everyone everywhere must be doing everything to protect communities and the environment in Uganda and Tanzania from oil threats. On our part, we remain committed to seeking justice from courts.”
