On 8 February 2018, representatives from the Zapotec community of Union Hidalgo in Oaxaca, Mexico filed a complaint with the French NCP against Electricity of France (EDF Group) for breaching the OECD Guidelines. The complainants allege that EDF Group and its subsidiary in Mexico, Eolica de Oaxaca, S.A.P.I de C.V., have violated the indigenous community of Union Hidalgo’s right to free, prior and informed consent (FPIC), amongst other human rights, with the possible construction of the Gunaa Sicaru wind farm on their land, which would be the fourth wind park of EDF in Mexico. In the complainants’ press release on 12 February, they express concern over the critical voices regarding the French NCP’s state of ineffectiveness and express hope that the NCP operates in accordance to the OECD Guidelines and resolves the case in an impartial, equitable, accessible, transparent and participatory manner. The complainants are asking the NCP to offer mediation to discuss the human rights violations and ensure that EDF acts in compliance with the OECD Guidelines and with its responsibility to ensure dialogue with the community.
Relevant OECD Guidelines
On 2 May 2018, the French NCP accepted the complaint for further consideration. The French NCP engaged in dialogue with both parties. However, on 29 July 2019, having spent a year and a half in the mediation procedure while achieving no substantial results, the complainants withdrew from the process. The complainants published a statement explaining their withdrawal, which they said resulted from poor procedures of the French NCP.
The complainants felt the NCP spent too much time assessing issues that either were not at stake in the specific instance or are indicated as requirements by the Guidelines and the NCP’s bylaw. The NCP also required a very high level of confidentiality from the interested parties, limiting the predictability and equitability of the procedure. The complainants felt the NCP pushed the complainants to reach a superficial agreement with the company before any resolution of core issues had been achieved and only two meetings with the company held. Complainants were also concerned the NCP could not prompt a temporary cessation of the harms at the site while the complaint was ongoing, something they felt was necessary to ensure equitability in the procedure and preservation of the substance of the complaint under discussion. Finally, the complainants observed serious threats to human rights defenders in Union Hidalgo as a consequence of EDF’s installation of wind farms in the community. But when the complainants raised their security concerns to the French NCP, they asserted the French NCP did not address the issues or propose any responsive or preventative action as a part of its good offices.
Following their withdrawal from the NCP proceedings, the complainants decided to file a complaint against EDF under the French Duty of Vigilance Law. The case is novel in France for several reasons: first, the law itself is new and, prior to this complaint filing, had been used just twice before. Second, this complaint raised some new issues and arguments around FPIC and other rights of the Indigenous communities. The court complaint seeks application of human rights standards to all industries, “green” (such as windfarms) or otherwise.
On 13 October 2020, complainants filed their complaint in court in Paris, France.