Learning from environmental disputes

Mediation for the resolution of conflict can be best illustrated in cases where a positive outcome is seemingly intractable. However, mediation, effective dialogue and progressive and collaborative negotiation can break deadlock.  Cases that involve environmental disputes are good examples of this.

In 2014, CEDR Founder President Dr Karl Mackie CBE mediated a case under the Organisation for Economic Co-Operation and Development (OECD) Guidelines for Multinational Enterprises – via the National Contact Point (NCP) of the UK Dept. of Business & Skills (BIS) – between an oil and gas exploration company (’the Company’) and a leading environmental pressure group (‘NGO’).

The case concerned oil exploration rights in the Virunga National Park in the Democratic Republic of Congo (DRC), the first UNESCO World Heritage site.  The Company believed that they were assisting the government in understanding their natural resources and had the right to do so through licensing and monitoring under scientific study exemptions. Moreover, they stated that Uganda (country bordering the national park) was able to exploit their reserves within their own territory. The NGO countered that all such activities were forbidden in UNESCO World Heritage sites under International Law and furthermore breached environmental sustainability and stakeholder engagement guidelines and human rights. The Company replied that they were acting legally, through the monitoring of their activity by the park management and given other examples such as the fact that the UK had, at the time, allowed permission for oil exploration on the Dorset Jurassic coast, another World Heritage site.

Despite a major media campaign by the NGO (where the Company stated false claims were made), both parties were brought together for fair and frank discussions, and subsequently, progress was made towards a more consultative process. Dialogue and collaboration across all areas of concern resulted in swift progress and although there were sticking points, a settlement was reached. The settlement resulted in the Company ceasing exploration and withdrawal from the area as the hydrocarbon extraction was incompatible with World Heritage status, yet seismic surveys by themselves were not incompatible.

This case illustrates that, by encouraging parties to liaise directly and above all collaboratively on their interests and the detailed issues affecting them including documentation (eg. public statements), a resolution could be reached far more quickly. Dr Mackie says: “The advantage of mediation was to enable structured dialogue between the Company and the NGOs, such dialogue in cases like this allows for companies to consider changes in policy such as publishing human rights statements on their website or using their influence more with local politicians in developing economies.”

In a similar example, and again for the UK Dept. of Business & Skills (BIS) and OECD, Dr Mackie mediated between an NGO and a consortium of oil and gas multinationals in Kazakhstan regarding the relocation of households on/near their oilfield. Dr Mackie facilitated dialogue between all parties and managed to secure a meeting with all representatives from both sides, despite the challenges of significant international travel for many of the attendees. As a result of opening up lines of communication between parties, dialogue was made possible and steps were made towards reconciliation and the possibility of a settlement. However, in this instance, the mediation was not successful as a negotiated settlement was not achieved within the timeframe, but significant progress was made and a satisfactory outcome was achieved some years later.

What this Kazakhstan case illustrates is that even when the outcome wasn’t successful (within the original timeframe), the processes involved in the mediation played a pivotal role in an outcome for all parties years later. Further information about this case can be read here.

The use of mediation in environmental disputes is not unprecedented, with one of the earliest cases relating to a dispute regarding a dam project on the Snoqualmie River in the US in 1973. Since then, mediation as a mechanism for dispute resolution for environmental disputes has been used more widely and has found further support in treaties and international charters such as the United Nation Convention On Laws Of The Sea (UNCLOS), Vienna Convention for Protection of the Ozone Layer and the WTO Dispute Settlement Regime [1] to name a few. Furthermore, there has been an increased appetite by jurisdictions around the globe to implement new legislation to employ mediation as a mechanism for environmental disputes. The use of mediation in these circumstances, while not the only mechanism, is certainly attractive not least because litigation will likely leave at least one side empty-handed and invariably increase the likelihood of further discord.

As the world heads towards the climate cliff edge, driving more severe storms, migration, poverty and hunger, environmental disputes will increase and invariably find their way into courts around the world. But what we see in these cases is that mediation and the adoption of key mediation techniques and effective dialogue can, through the engagement of vital stakeholders, provide a cost-effective, mutually beneficial and enduring resolution.

Read my next blog in June when I will be writing about the role of mediation in climate change disputes, linked to discussions taking place on this subject at the CPR European Congress in London at the end of May.

www.cedr.com 

[1] http://mediationblog.kluwerarbitration.com/2017/08/23/mediation-environmental-disputes-india

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