Forklift Truck Fatality (Britain)

An employee was using his forklift truck to load a lorry trailer outside his factory workplace when another lorry reversed into the side of his vehicle. The forklift overturned, killing him instantly.

Britain’s Health and Safety Executive (HSE) found that forklift truck drivers had regularly driven onto a public road to load lorries, without the company putting any safety measures in place.

The company had not carried out an adequate assessment of the risks to its employees or visiting drivers using the ‘Goods Out’ area. Drivers were also not given any information, instruction or training on how to load the lorry trailers safely, and there was poor supervision.

Speaking after the hearing, HSE Inspector Deborah Walker said:

“Our investigation revealed a chaotic and dangerous system, and sadly it was entirely foreseeable that someone was at risk of being badly injured or killed.

“Neither Mr Moran nor the lorry driver had any way of knowing they were both about to start operating their vehicles, and sadly Mr Moran did not have time to get out of the way when the HGV began to reverse.

“Following the incident, the company created a no-parking zone along the ‘Goods Out’ area by Davy Road which means there is now space for forklift truck drivers to load trailers without having to come out into the road. The firm also set up a booking-in system for vehicles delivering to the factory.

“If these simple measures had been in place at the time of the incident then Mr Moran’s tragic death could have been avoided.”

AAK UK Ltd, of King George Dock in Hull, was fined £140,000 and ordered to pay £22,657 in prosecution costs after pleading guilty to breach of Section 2(1) of the Health and Safety at Work etc Act 1974.

Section 2(1) of the Health and Safety at Work etc Act 1974 states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

The HSE press release is here.

Gas Cylinder Fatality (Britain)

Safety failings led to the death of an experienced fire-fighter while he was moving a pressurised gas cylinder during work to clear out a number of disused shipping containers.

Britain’s Health & Safety Executive (HSE) investigated the circumstances and identified that there was no assessment or consideration of the risk by the employer with regards to how the fire suppression system would be decommissioned safely.

As part of the process, a number of redundant gas cylinders, which were formerly part of a fire suppression system, needed to be removed. An earlier trial heard that the employee was attempting to move a large freestanding cylinder weighing 65kg when the gas in the cylinder discharged very rapidly. This caused the cylinder to spin round violently striking him on his head and body leaving him with fatal injuries.

The Court was then told 13 May that had the removal work been suitably assessed and managed the incident could have been avoided.

Kemble Air Services Ltd, of Cotswold Airfield, Kemble Nr Cirencester was fined £75,000 and ordered to pay £98,000 in costs after being found guilty of two breaches of Regulation 3(1) of the management of Health and Safety at Work Regulations 1999.

Regulation 3(1) of The Management of Health and Safety at Work Regulations 1999 states that: “Every employer shall make a suitable and sufficient assessment of (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.”

The HSE press release is here.

EHS in International Trade Agreements

Law suits to find actionable EHS rights in international trade law may be looking to:

– The North American Free Trade Agreement (NFTA).

Lone Pine Resources Inc v the Government of Canada is an example.

This claim uses NAFTA Chapter 11 to sue Canada for losses alleged to arise for Lone Pine due to “Quebec’s arbitrary, capricious, and illegal revocation” of the company’s “valuable right to mine for oil and gas under the St. Lawrence River.” Chapter 11 of NAFTA allows private companies to sue governments (party to the agreement) when laws (later enacted) hurt their expected profits (investor protection).

– The Transatlantic Trade and Investment Partnership (TTIP).

TTIP is not yet agreed, the status of negotiations from the EU perspective is here.

These actions may be additional to those brought to the International Centre for Settlement of Investment Disputes (ICSID) under the World Bank ICSID Convention – information about the work of the ICSID is here.

Land Rights (Tribal and Indigenous Peoples) (Extractive Industries)

The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR, Court) are the two principal and autonomous organs of the Organization of American States, whose mission is to promote and protect human rights in the American hemisphere.

IACHR document (30 December 2009) – Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources, norms and jurisprudence of the Inter-American Human Rights System is here.

The IACtHR press release of its decision (2012) in Sarayaku v Ecuador is here.

The IACtHR, Court decision (2007) in Saramaka v Suriname is here.

These judgements address the rights of indigenous peoples when faced with commercial projects on their ancestral lands.

In summary, the Inter-American human rights system addresses the rights of indigenous communities in the following manner.

The Inter- American Commission decides petitions on the merits, issues precautionary measures, holds thematic hearings, and publishes reports concerning indigenous peoples throughout the hemisphere.

It has also refers various matters to the Inter-American Court for binding resolution. In response, the Court issues provisional measures and judgments with respect to indigenous rights.

There is no Court derived definitive and exhaustive definition of indigenous peoples, although self-identification is stressed, and the Court identifies as significant (for the purposes of determining who if any will have rights): peoples who own “social, cultural and economic traditions different from other sections of the national community,” who “[identify] themselves with their ancestral territories,” and who “[regulate] themselves, at least partially, by their own norms, customs, and traditions.” (Saramaka related to tribal peoples)

Saramaka’s interpretations permit commercial projects that do not “fully extinguish” a way of life, or that do not endanger the “very survival” of a people. But observers identify this is at variance with the Court’s radical affirmation of Article 21 (American Convention) as a self- determination principle “calling for [a people’s right] to freely determine and enjoy their own social, cultural and economic development.” They also conflict with earlier case law, which, inter alia, required special measures of protection to achieve a vida digna for indigenous populations.

In Sarayaku the State had granted a communal property title to the Sarayaku (Kichwa indigenous people of Sarayaku, Ecuadorean Amazon), but it had reserved a number of rights, including rights to subsurface natural resources. Ecuador then signed a contract with a foreign company to initiate oil exploration.

In this case, the Court found the State responsible for violating rights of the community of Sarayaku, their ancestral lands and cultural identity, for not granting effective legal protection, and for having placed their life and personal integrity in danger in the presence of seismic explosives within their territory.

The Sarayaku judgment key elements:

– Article 21 protects rights to communal property
– the indigenous community itself suffered the collective property violation
– the Sarayaku, as a group, experienced other rights violations as well.

NB: In previous judgments, the Court had only found violations “to the detriment of the [individual] members” of a community, even if the right to communal property was breached. Such a formulation recognized the Convention’s Article 1, the central provision that obligates States Parties to respect and ensure the treaty’s rights to “all persons subject to their jurisdiction”—”person” defined as “every human being.”

In this sharp break with the past, the Sarayaku Court has apparently adopted a wider definition of “person,” following the views of bodies such as the U.N. Committee on Economic, Social and Cultural Rights.

– Article 1 of the ICCPR and ICESCR (international treaties in the area) no longer serves as a reference point, despite the fact that Ecuador had already ratified both treaties. NB: the Court avoided the term ‘self-determination’ altogether.

– The judgment acknowledged Saramaka’s three safeguards: effective participation, reasonable benefits, and the impact assessment.

NB: it did not examine the concept of benefits, also the Court’s standard on consent was ignored. Saramaka had held that, in specific circumstances, the “effective participation” of the indigenous community actually required the group’s consent for a project to move forward.

Sarayaku devoted a great deal of attention to the baseline of effective participation: the state obligation to consult indigenous populations before projects begin. Saramaka had already asserted that this constituted a “right to consultation” for communities whose traditional lands were threatened. The Court in Sarayaku noted that Ecuadorian law “fully recognized this right.” Sarayaku then surveyed regional law on this subject, and recognized its status in international instruments such as the ILO No. 169. The Court’s assessment sought to establish the right to consultation not only as a norm protected in the American Convention, but also as a “general principle of international law.”

The above text is informed by analysis found here.

Planning Policy Guidance (Wind Farms) (England & Wales)

Written Ministerial Statement 9th April 2014:

The Secretary of State for Communities and Local Government (Mr Eric Pickles): This coalition Government have reformed the planning process so that communities themselves have the opportunity to influence the decisions that affect their lives. We have abolished regional strategies, and their top-down renewable energy targets, and are encouraging local councils to work with their communities to set out in their local plan where developments for renewable energy should and should not take place. We have also been very clear that the views of local communities should be listened to.

We have published planning guidance to help ensure planning decisions on green energy get the environmental balance right in line with the national planning policy framework. The guidance is designed to assist local councils in their consideration of local plans and individual planning applications. In publishing the guidance, we have been quite clear that the need for renewable energy does not automatically override environmental protections and the planning concerns of local communities. We have also introduced a new requirement for compulsory pre-application consultation with local communities for more significant onshore wind applications—that is, of more than two turbines or where the hub height of any turbine exceeds 15 metres. This requirement took effect in December.

PP Guidance is here.

The compulsory pre-application consultation legal obligation is in Article 3A of the Town and Country Planning (Development Management Procedure) (England) Order 2010.

Subscribers to the paid-for Cardinal Tailored EHS Legislation Registers have the consolidated TCP (DMP) Order included as standard in the Land Management Register.

The PP Guidance on Appeals is also updated.