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Monday, September 25, 2023

Tilenga and EACOP: CSOs kick as French court dismisses lawsuit against TotalEnergies

After more than three years and a lengthy procedural battle, the interim relief judges in the Paris Civil Court on Tuesday, February 28, 2023, issued a summary judgment following a legal action brought by Friends of the Earth France, Survie and four Ugandan civil society organisations (AFIEGO, CRED, NAPE/Friends of the Earth Uganda and NAVODA) against French oil giant TotalEnergies, regarding its oil mega-projects (Tilenga and EACOP) in Uganda and Tanzania.

East Africa crude oil pipeline
Total is participating in the controversial East Africa Crude Oil Pipeline (EACOP), in partnership with Tullow Oil and China National Offshore Oil Company (CNOOC)

The judges dismissed the case on controversial procedural grounds.

The plaintiffs have deplored the decision and are said to be consulting with affected communities to determine the appropriate next steps.

The verdict was long awaited by civil society, as it was the very first case based on the French law on the duty of vigilance of transnational corporations.

According to the activists, the judges did not rule on the core elements of the case, namely Total’s 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 Paris Court – ruling in summary proceedings – considered that the CSOs’ legal action could not be admitted because their current claims were “substantially different from the claims” made in the initial formal notice sent to the defendant.

The CSOs contest 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 CSOs explain that 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.

Given the social and environmental urgency in Uganda and Tanzania, the six CSOs had chosen to bring the case before the interim relief judge (“juge des référés”) in 2019 in the hopes of obtaining a swift decision.

However, a lengthy procedural battle ensued, ultimately leading to the involvement of the French Supreme Court (i.e., France’s highest court for civil matters).

The judgment also states that the CSOs’ claims exceed the interim relief judge’s competence and should be “be examined in depth” by a civil judge following a regular procedure on the merits.

However, this decision does not rule in favour of Total either, as the Court did not rule on the core issue, which is whether or not the company has fulfilled its duty of care.

Since 2019, the six Ugandan and French CSOs have carried out several field investigations and reportedly compiled evidences and testimonies against the oil major: partial or total eviction of more than 100,000 people, deprived of their livelihoods even before receiving any compensation; more than 130 drillings planned in a protected natural area; and construction of a heated pipeline through seismic zones and fragile ecosystems; in a context of harassment of environmental and human rights defenders.

Dickens Kamugisha, Director of AFIEGO, said: “This 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, senior campaigner at Friends of the Earth France, said: “We strongly deplore this decision. Once again, the French courts have missed an opportunity to put an end to the multiples 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, co-chair of Survie, stated: “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.”.

In their summons, the CSOs asked the court to order Total to:

  • bring its vigilance plan into compliance with the law by including all the risks of serious harms 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,
  • as a precautionary measure, suspend work on the Tilenga and EACOP projects 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.

While citizen mobilisation against Total’s projects has been growing in recent years, this decision comes just before the first drillings start in the Murchison Falls national park in Uganda. The plaintiffs are reserving the right on the follow-up to be given to this judgment, in consultation with affected communities.

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