36 Indigenous Communities of the TCO Itika Guasu – Repsol YPF E&P Bolivia SA – 2010 – Friendship and Cooperation Agreement

Basic information

Country

Bolivia

Community party

36 Indigenous Communities of the TCO Itika Guasu, located in the provinces of O’Connor of the department of Tarija and Sud Cinti and Hernando Siles of the department of Chuquisaca, represented by the Asamblea del Pueblo Guarani de Itika Guasu

Company signatory

Repsol YPF E&P Bolivia SA

Resource(s)

Hydrocarbons

Project phase covered

Industry

Hydrocarbons

National government: signatory?

No

Local government: signatory?

No

Was the agreement required by law?

No

Term

Agreement ends after fulfillment of the conditions in Art. 7

Date of contract signature

29/12/2010

Language

Español

Location

Itikia Guasu Indegenous Territories

Source: URL

Reports

OpenCorporates ID

Listings in other databases

Listing of the parent contract at ResourceContracts.org or OpenLandContracts.org

Summary of contract

  • Negotiation, representation, and other relevant context

    The 36 indigenous communities of Itika Guasu are represented exclusively by the Assembly of the Guarani Communities of Itika Guasu ("Assembly"). The Assembly is represented by a Directorate elected according to the indigenous customs and recognized by the Bolivian State. The agreement is signed by the President and the Vice-president of the Assembly on behalf of the communities of Itika Guasu. The communities of Itika Guasu agree to facilitate the oil operations by Repsol according to the terms of the agreement and the applicable regulations. The communities represented by the Assembly express their willingness to enable Repsol to perform, under the terms of this agreement, the oil activities provided under the agreement between Repsol, BG Bolivia Corporation Sucursal Bolivia and PAE E&P Bolivia (Preamble). The Assembly commits to promote and ensure that the money received under the agreement is invested according to the agreement (Art. 3.1.3). The delay or no exercise of a right stipulated in the agreement does not imply renouncement of other rights, and the exercise of a right will not exclude the exercise of other rights (Art. 21). Repsol YPF will designate a person in charge of the communication with the Directorate of the indigenous communities, and that person will keep regularly inform the Directorate about all projects and plans related to the oil operations. All communications from Repsol YPF have to be addressed to the Directorate (Art. 8.2).

  • Governance, implementation, dispute resolution

    The parties recognize the right to Consultation and Participation of the Assembly of the Guarani Communities of Itika Guasu as established in the domestic legislation. The Assembly declares that all duties and compensations derived from the environmental licenses described in Article 10 of the agreement are fulfilled (Art. 10) Repsol YPF will track its duties to mitigate, prevent, minimize, remediate and compensate the damages caused by its operations (Art. 4). Repsol YPF will be responsible for negligent or intentional actions of its employees, agents, contractors, affiliates, and partners that cause damages or injuries to any member of the Guarani Communities of Itika Guasu, their property or their land. Any damage caused by the breach of the agreement by any party and/or the oil operations will be limited to the damage suffered by the claimant part. (Art. 5). Within two months of validity of the agreement, the parties will appoint an external and experienced auditor, who will conduct an audit of the compliance of the oil operations with the environmental and legal duties since 1997. The auditor will present a final report binding to the parties in which the auditor will identify the environmental impacts pending reparation and establishing the undertakings to remediate them. This type of audit will be conducted every 5 years unless the parties agree in written form no to do it, and Repsol YPF will pay the cost of the audit (Arts. 6.1, 6.5 ). Repsol YPF will deliver to the Assembly of the Guarani Communities of Itika Guasu an Annual Report of the corporation, including a report on operations to be conducting during the following year, the areas were they will be perfoming them and the expected impacts and actions to minimize such impacts. The community can request aditional information if deemed necessary (Arts. 8, 13). If a party does not fulfill its obligations after the requirement of compliance by the other party and the non-compliance persists for more than 30 days, the affected party can terminate the agreement (Art. 16). If the parties cannot settle a dispute directly, it will be taken to an arbitral tribunal governed by the Bolivian law and the ICC Arbitration Rules. The arbitral decision will be final (Art. 17).

  • Fiscal obligations: content

    Repsol YPF will deposit US $13,500,000 to the “Fund for the Development of the Assembly of the Guarani Communities of Itika Guasu” for the implementation of the contract’s development plan approved by YPFB and to promote the development of the Assembly and the communities of Itika Guasu (Arts. 3.1.1, 9.1). If Repsol YPF needs to increase its production of gas and its investments, the parties will meet again to establish the new sum that Repsol YPF should deposit to the Fund. The new amount of money will be determined by applying the factor 0.75% to the new investments (Art. 9.1). Repsol YPF will pay US $2,000,000 to the Assembly of the Guarani Communities of Itika Guasu with the following purposes: to improve the relation with the communities, to guarantee the implementation of the plan for the development of the Caipipendi area, for the oil operations conducted in the communal land of the communities up to date, and as a compensation for two new environmental licences that are subject to the performance of consultation and participation processes (Art. 3.1.2., 9.2., 10). The money will be deposited at the formalization of the agreement (Art. 9.1). The parties agree that the payment for the easements that may be needed in the communal land of the Itika Guasu after signing this agreement will be calculated on a base of US $1,500 per hectare (Art. 3.2.1). The Assembly of the Guarani Communities of Itika Guasu will manage the money independently (Art. 9.3.) The Assembly will use the earned interest to cover its administrative fees (Art. 11).

  • Environmental and social protection

    The “Fund for the Development of the Assembly of the Guarani Communities of Itika Guasu” finances the economic, social, cultural and educational promotion of the communities and the improvement of their quality of life. The money in the fund will be spent according to the decision of the Assembly of the Communities which will become appendix E of this agreement (Art. 11). The easements can only be used for the purposes of the oil operations and any other use has to be authorized by the Directorate of the Assembly of the Guarani Communities of Itika Guasu. Repsol YPF agrees to minimize any adverse effect caused by the easements and to restore the land and facilities to the state they were at the beginning of the operations, as well as prevent, repair and indemnify the damages according to the agreement and the law (Art. 3.2.3). The community will receive $US1,500 per hectare as compensation for any new easements (Art. 3.2.1). Repsol YPF will comply with all regulations regarding health, safety, and environmental protection according to the best prudent industry practices, and will be responsible for the compliance of its employees, agents, contractors, subcontractors, affiliates and partners. Repsol guarantees the respect for the communities’ customs and traditions (Arts. 4.1.-4.2.). Repsol YPF will implement measures and plans to control the impacts identified in the environmental licenses. Repsol YPF will develop and present in written form to the Assembly of the Guarani Communities strategies to mitigate, prevent, minimize, remediate and compensate the adverse effects of its operations (Art. 4.4.). After 2 months of validity of this agreement, the parties will designate an internationally known environmental/oil and gas auditor to assess whether Repsol has complied with the relevant environmental licenses and local laws that were valid as of the day of issuance of such licenses. The auditor will issue a final and mandatory final report that will identify the environmental impacts that are pending to be remediated and will set remediation guidelines. Such guidelines will comply with the current Bolivian law at the time. Unless otherwise agreed between the parties, this audit will be done every 5 years (Arts. 6.1 and 6.5).

  • Transparency or confidentiality

    Due to the confidentiality of Repsol's oil operation contract, it cannot deliver a copy of the plan for the development of the Caipipendi area approved by YPF; therefore, it will deliver a certified summary containing the public and relevant information of the plan. All references to the plan made in the agreement are confined exclusively to that summary and the Assembly of the Guarani Communities of Itika Guasu has to keep it confidential (Art. 3.1.1). Repsol YPF acknowledges that the communities of Itika Guasu are the exclusive owners of the communal land and nothing in the agreement can be interpreted against or limiting that right of property.(Art. 3.1.1). The parties can report to the indigenous communities the payments and performance under the agreement but all the previous meetings and negotiations will remain confidential (Art. 12.4). The Assembly of the Guarani Communities of Itika Guasu agrees that all information is confidential but it authorized, according to their customs and traditions, the publication of the agreement as a response to the racist attacks against the Guarani community of the Assembly by a local newspaper (note in the agreement dated 09/22/14).

  • Reference to investor-state contract

    Since 1997 Repsol YPF and its predecessors (Maxus and Chevron) have conducted oil operations in the communal lands of the Itika Guasu Community (Preamble). The oil operations were authorized by the Bolivian Government through environmental licenses. The Assembly of the Guarani Community of Itika Guasu has no claim against those environmental licenses (Art. 2). In October 2006, Repsol, BG Bolivia Corporation, and PAE E&P subscribed a contract with YPFB through which Repsol became the oil operator -exploration, evaluation, development, drilling, exploitation, and abandonment- of the Caipipendi area (Preamble).

  • Other noteworthy clauses

    Repsol YPF can assign the agreement as long as it ensures that the transferee has the financial and technical capacity to fulfill the obligations (Art. 14). The parties agree that Repsol's corporate social responsability policies and the following international instruments on human rights are integrated and become part of the agreement: UDHR, ICCPR, ICESCR, ILO 196, ACHU as well as the internal Repsol’s instruments on corporative social responsibility (Art. 4.3.).