YPFB Transporte S.A. and their Bad Faith
1) On 6 January 2012, the daily newspaper El País (Tarija, Bolivia) published information indicating that they had had access to a private document submitted by the APG IG to YPFB Transporte (YPFBT) SA (formerly Transredes SA), which allegedly was a draft that the APG IG had sent to the official representative of YPFBT SA, Mrs. Sintia Yáñez, on 21 March 2011.
YPFBT SA never provided any response to this document, arguing verbally that the Ministry of Hydrocarbons had ordered that no negotiations be held with the APG IG; this version of the facts is compatible with the notification made to the APG IG by Petrobras Bolivia SA by means of a letter [dated 20May11] addressed to the indigenous organisation. Therefore, using as public information a draft document that is not under negotiation is one more proof of the manifest bad faith of the corporate successor of Transredes SA and of the Tarija-based newspaper El País.
In the proposal document approved by the APG IG, and which officially constitutes a "draft agreement" -which is, therefore, a draft for internal use and negotiation purposes only, or a working document commonly known in legal practice and in the practice of the oil industry, which thus is open to good faith negotiation-, three prices are proposed:
- The first price relates to the hectares of land being occupied that are precisely defined and refer to temporary camps, work sites or permanent installations, and with respect to which a price of 2,500 dollars per year per hectare is proposed.
- The other two prices refer to the pipeline easements and rights of way (for the construction of paths or roads). In this respect, no amounts were proposed per kilometer or fraction per year per pipeline easement, or for rights of way, but were left open to negotiation.
These two prices that are pending specification, are the prices that affect the oil pipeline. According to what we have been informed verbally regarding the technical conditions of the project - and assuming that this information has been relayed truthfully - no permanent installations are foreseen by YPFBT SA within the Itika Guasu TCO (Original Community Territory).
In this case, the act of bad faith lies in the manipulation of information contained in a private working document that has never been discussed, making deliberately artificial calculations that cannot be technically supported in any way, which YPFBT SA has preferred to discuss with the press rather than with the APG IG.
2) In terms of the compensation relating to Phase I [of the Extension of the Villamontes-Tarija Gas Pipeline] to which reference is made in the same newspaper article, it is based on an agreement signed by Transredes SA but with which it did not comply, and whose content is reproduced in the submitted draft agreement. Therefore, it is not a new claim, but rather a confirmation of the company's failure to comply with the terms of the first agreement, which must now be dealt with by YPFBT SA as a result of its being the corporate successor of the activities of Transredes SA, in addition to the clear fact that the license granted to them at that time is affected by the defect of nullity.
The same scenario is recurring in Phase II [known as 1b], with respect to which Transredes SA never consulted the APG IG or signed any easement contracts for the use of the territory, which is property of the APG IG, nor did they offer any compensation. As such, YPFBT SA, as the corporate successor of Transredes SA, must take responsibility for the amounts due and face the undeniable fact that the license granted to them previously is affected by the defect of nullity.
Luis Fernando Vincenti
3) The statement made by the current president of YPFBT SA (formerly Transredes SA), Luis Vincenti, and YPFB advisor, Luis Lafuente, according to which the negotiations are blocked because of a monetary claim by the APG IG for 20 million dollars, is entirely false. This statement, deliberately false, is part of the campaign denounced by the APG IG in its communiqué dated November 15 and 22, 2011, where the indigenous organisation explains the reasons for the blocked negotiations; the statement is also false that the APG IG included in its negotiation proposal said quantity.
4) The "international" documents to which El País makes reference are common and the appropriate ones to be used in view of indigenous rights, human rights, environmental practices and Bolivia's domestic law, and are the following:
International standards, treaties, conventions and agreements:
- i) Universal Declaration of Human Rights;
- ii) International Covenant on Civil and Political Rights;
- iii) International Covenant on Economic, Social and Cultural Rights;
- iv) Convention on the Elimination of All Forms of Discrimination against Women;
- v) Convention concerning Indigenous and Tribal Peoples in Independent Countries (N. 169);
- vi) International Labour Standards (ILS) of the ILO;
- vii) Extractive Industries Transparency Initiative (EITI);
- viii) United Nations Global Compact;
- ix) OECD Guidelines for Multinational Enterprises;
- x) Convention on Biological Diversity;
- xi) guidelines of the International Association of Oil & Gas Producers, including Report No. 2.74/265 from August 1997, "Principles for impact assessment - The environmental and social dimension";
- xii) Pact of San José, Costa Rica (American Convention on Human Rights)
Domestic Laws and Regulations
- i) Constitution of Bolivia;
- ii) Hydrocarbons Law of May 17 2005;
- iii) Environmental Law of 27 April 1992;
- iv) Agrarian Law 3545 of the "Communal Reorganisation of Agrarian Reform", amended by Law 1715;
- v) Implementing Rules pertaining to Law No. 1333 on the Environment, Regulations concerning Environmental Impact Assessments and Environmental Quality Control ("Reglamento para la Prevención y Control Ambiental");
- vi) Implementing Rules pertaining to Law No. 1333 on the Environment, General Regulations on Environmental Management;
- vii) Implementing Rules pertaining to Law No. 1333 on the Environment, Regulations concerning Water Pollution;
- viii) Supreme Decree No. 29033 of 16 February 2007, which led to the enactment of "Regulations for Socio-environmental Monitoring of Hydrocarbon Activities within the Territory of the Original Indigenous Peoples and Peasant Communities".
This lists of laws and regulations was already included in the draft before the Constitutional Court notified the APG IG of its Judgment 2003/2010-R on 12 April 2011. This notification alters the nature of the negotiations with YPFBT SA (formerly Transredes SA) and the legal obligations to which the corporation is bound given its duty to execute the mandate contained in said judgment. As such, any proposal for negotiation, should the case arise, must abide by this constitutional judgment.
Entre Ríos, January 6, 2012
Assembly of the Guaraní People of Itika Guasu
Informes sobre DDHH en Bolivia
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