Bolloré facing the landless peasants

Seuil | 10 octobre 2019 [FR]

(Excerpt from the book "Who Killed Your Jobs?" by Fyodor Rilov with Alexia Eychenne)

Bolloré facing the landless peasants
(GRAIN loose translation with Deepl)

Four hundred kilometres separate Phnom Penh, the capital of Cambodia, from the commune of Bousra, but it takes more than ten hours by car to cover them. In Mondulkiri province, in the east of the country, a two-lane road winds its way through hills covered with green groves that bring back the redness of the earth. The road then winds its way through the forest to huge plots of land that have been marked out with lines. Less than 10 kilometres as the crow flies from Vietnam, thin-trunk trees line up as far as the eye can see. Here we are in the heart of the rubber plantations, whose bleeding causes the natural rubber to flow over the bark.

In the car, on this day of 2015, Samin Ngach accompanies me. This law student, in his twenties, is one of the main leaders of an association supporting Cambodian indigenous youth. The road passes through the seven villages of Bousra. There live 850 families, more than 90 per cent of whom, like Samin, belong to the Bunong tribe. These people have a specific language, culture and beliefs, different from the Khmer. The Bunongs live off the land through shifting subsistence farming. Much of the land is left fallow in rotation to allow them to regenerate. The field, which they call mir, is used as a place of life and worship. Their animist rites sacralize the forest where the ancestors rest. For them, nature is not just a means of subsistence. It is at the heart of the community's identity and social organization.

In Cambodia, the rubber tree is both green gold and a curse. The government sees the development of its cultivation as an opportunity to enrich the country. The authorities support the projects of foreign private companies in this sector with all their heart and soul. For the Bunongs, it's a completely different story. The rubber tree has caused a catastrophe. Rubber producers seized their land to convert it to rubber cultivation without any real consultation or environmental and social impact study. The free and informed consent of the farmers was not obtained. Some received derisory compensation, in the order of $200 per hectare. This is little in exchange for the destruction of agrarian practices, rites and traditions. Nearly a thousand Bunongs are now struggling to regain their territory, a battle I will join in.

Mediation at an impasse

In Bousra, it is no longer a question of labour law or job destruction, but of the monopolization of arable land. I am not out of place, however, because once again it is the multinationals that are responsible, whose misdeeds I am fighting more and more. The motive for their crimes is the same: the quest for profit. This time the resources and the way of life of a community are sacrificed, just as elsewhere jobs are put to death. But I already have the habit of attacking them for actions imputed to their subsidiaries. To help the Bunongs to resist, my approach will be the same, in a reversed logic: I no longer accompany French victims in the face of a foreign multinational, but foreign victims in the face of a French multinational. And not just any multinational. Vincent Bolloré's sprawling group, which operates in transport and logistics as well as electricity storage and media.

One day I receive a phone call from Leigh Day, a London law firm famous for its fights against the parent companies, mainly British, of multinationals operating in developing countries. Leigh Day works regularly with Global Witness, an NGO specialising in the fight against the plundering of natural resources. The latter is itself linked to some of the Bunongs. They are thinking together about a legal procedure that could help them recover at least part of their rights. In addition, since 2012, a mediation has been bringing together around a table members of the tribe and those responsible for the land grabbing, under the leadership of NGOs. But the process is stalling. After three years, the Bunongs are still waiting for concrete results. Worse still, Socfin-KCD, the Cambodian subsidiary that owns the rubber plantations, is at the same time continuing its offensive on their territory. This local company is officially the subsidiary of a Luxembourg company, Socfin, in which the Bolloré group is the main shareholder. This is why Leigh Day is looking for a French lawyer. In the United Kingdom and the United States, many legal actions have already been brought at home against Western parent companies by victims from developing countries. In France, this is an unexplored field. The objective is to cooperate with the FIDH to consider a lawsuit. We agree to meet again together, Leigh Day, the FIDH and me, as soon as our agendas allow it.

An FIDH report [1] has begun to untangle the threads of the companies involved in the exploitation of rubber trees. In 2008, the Cambodian government awarded a first concession to KCD, a large local construction company. The latter then formed a joint venture with the Luxembourg-based Socfin, which resulted in the creation of Socfin-KCD. In 2010 and 2013, two new concessions were granted to the latter, bringing the surface area of their empire to 7,000 hectares. The first challenge of the forthcoming legal battle will be to demonstrate that it is Bolloré, from Paris, that directly manages Socfin-KCD in Bousra. And therefore bears full responsibility for the events that take place on the plantations.

Contacts in Phnom Penh

Weeks go by. I haven't heard from Leigh Day or the FIDH. The more I think, the more I examine the elements at my disposal, and the more it seems to me possible for the Bunongs to bring a civil liability action in France against the Bolloré group. We can try to demonstrate that this lead structure takes and implements decisions that harm the victims, even if its organisational chart suggests that it only plays a remote role in the case. I've been calling the London lawyers again and again. Until the day they tell me that FIDH considers a legal action to be very premature and that it is therefore not on their agenda for the immediate future. What a strange turn of events. My first reflex is to think that the French NGO finally preferred to entrust the case to a lawyer from its own network. But another hypothesis crosses my mind. The mediation between the Bunongs and Socfin is still underway. Until now, French NGOs have not shown a fierce willingness to go to court against multinationals and to import the practices of their Anglo-Saxon counterparts into our country... I come to think that their refusal may rather be due to a strategic divergence. But if the Bunongs themselves are no longer satisfied with mediation, I believe it is up to them to decide whether or not they wish to take action.

A month later, mutual contacts put me in touch with Samin Ngach, the young head of the Cambodian NGO for the defence of indigenous populations. Samin confirms that many farmers are considering taking legal action. He's a nice guy, but very cautious. Rightly so. There is no evidence to prove to him that I am not being sent by the other side. Confidence only grows with every call we make. To finish testing me, Samin and one of his colleagues finally offer me to join them in Phnom Penh. I pack my bags and take off for Cambodia. Appointment is given the day after my arrival, at breakfast time. The two young men meet me at my hotel and we discuss the main points again. I begin to gain their trust for good. So much so that Samin and his colleague offer to take me to Bousra immediately. A third man comes to pick us up by car. We left for a ten-hour drive.

At the end of the day, our driver dropped us off at the edge of a forest, a stone's throw from the plantations. We are invited to a meeting in the heart of the jungle. A wooden platform planted in the middle of the trees serves as an agora for the Bunongs. I explain to them, with Samin as translator, that a lawsuit seems possible against Socfin, but especially against Bolloré, who seems to me to be the real power holder within Socfin-KCD. The trial must take place in France. If they wish to take action, I must receive a mandate from them. It is then that a young man takes the floor. In fluent English, he explains that my proposal seems counterproductive to him. He has just returned from a trip to France, he assures us, during which he met "Vincent". He is now convinced that only through mediation will his people be able to regain at least part of their land. I'm stuck. Until now, none of my interlocutors had mentioned the Bolloré group, much less the first name of its CEO. The only opponent they identified was Socfin. Now, Samin tells me, the young man is none other than the local correspondent of the FIDH... His intervention sows disorder in the audience. No one among the peasants seems to be aware of the young man's recent escapade to France. The representatives of the community immediately dismissed me to deliberate.

Samin and I are going back to the hostel where we put our luggage down while we wait for the outcome of the debates. A phone call from the other Bunongs arrives around 10 p.m.: the exchanges are interrupted for the night, but will resume the next day. The morning passes, then the afternoon. My plane takes off the next evening and I have to be back on the road at dawn to reach Phnom Penh in time. Samin calls the members of the board back. The Yalta intensifies... until late at night the Bunongs decide in favour of legal action. To keep myself busy, I had spent part of the day at the village cybercafé, preparing written warrants in case their decision was positive. My office had sent me the document, which Samin translated into Khmer, and we printed about 50 copies. Appointments are made at dawn to give them to the farmers. Daylight is barely breaking, but bicycles and mopeds are already lining up along the path leading to the main road. The farmers have made the trip by the dozens. I leave for Paris that evening, but will return several times to meet more Bunongs willing to join us. Thus, as of July 2015, 77 of them are suing the Bolloré company at the high court of Nanterre for land grabbing.

No land titles or papers

From Paris to Phnom Penh, a huge battle is opening for us. We must first establish precisely the area taken over by Socfin-KCD to convert it into rubber fields. Then we have to gather evidence to prove that the farmers owned plots of land there, which they had been cultivating for generations. This is a problem for several reasons.

The Bunong are not familiar with the concept of private and individualised land ownership. They practice collective land ownership. The Khmer authorities themselves lack information about the area. Although cadastral documents existed during the French colonial period, they disappeared under the Khmer Rouge. We lack evidence as we understand it in our western judicial systems, i.e. evidence that each victim was personally wronged. We have to gather a lot of testimony, including statements by traditional chiefs. One man plays a decisive role throughout this case: the Cambodian lawyer Sophorn Sek. Based in Phnom Penh, and a specialist in human rights and the defence of indigenous populations, the Bunongs consider him their lawyer. He took me to Bousra on my second trip and without hesitation agreed with my approach. Without him, things would have been very different. The trust he gave me was decisive in winning the farmers' trust.

The second difficulty we face is the identity papers of the victims. Some of them do not have any when they give me their mandate. They request them, and they get them, but the papers are written phonetically in Khmer from the Bunong, hence contradictory versions in the transcripts. These are all new problems that I have to learn how to solve. In the meantime, our opponents are happy to exploit these difficulties and delay the process. The longer it drags on, the more time the multinationals have to convince the Bunongs to back off. While we gather the documents that show the harm done to each of the victims, our adversaries are recruiting Cambodian lawyers to convince the communities to drop the case. Some of them withdraw from the lawsuit, but others join. By the time we’re ready, more Bunongs have put their names on the complaint than have pulled out.

The intriguing tenant of the Bolloré Tower

On the strict terrain of the law, too, we explore a virgin forest. The battle of the Bunongs is the first attempted in France against the parent company of a group for acts imputed to a structure under its control. Bolloré, of course, refuses to have anything to do with our case. He claims to own only a minority of the capital of Socfin, the company present in the rubber plantations through the joint venture Socfin-KCD. He in fact holds only 38.7% of its capital, which makes him its main, but not majority, shareholder.

However, this argument is not sufficient to exonerate him from any liability. It is moreover undermined by the OECD [2]. This international organization has a conciliation body, called the "Contact Point", and Socfin victims in Africa have referred their case to it. They consider themselves wronged by Socapalm, one of its subsidiaries, in the land grab for the production of palm oil. Now, the Contact Point has acknowledged that Bolloré has a controlling influence in the organisation of Socfin's activities. Why should it be any different in South-East Asia? We want to demonstrate that the group's responsibility is not linked to the number of shares it holds in the subsidiary to which misconduct is attributed. Rather, it is lodged in the informal decision-making channels that enable it to manage the day-to-day activities of another company thousands of kilometres away from Paris. In another case, the British High Court of Justice has also issued a decision to this effect. This is a huge step forward, as its case law was previously less clear-cut.

For months, I have therefore been accumulating evidence of the interference of the structures we are questioning, right down to the rubber tree fields. The organizational charts alone are revealing. Vincent Bolloré, head of the company and of the group of the same name, sits on the board of directors of Socfin-KCD. So does Hubert Fabri, a Belgian businessman who is none other than the chairman of the supervisory board and number two in the Bolloré group. Such attention on their part is quite exceptional when you know the extent of the Bolloré nebula! It is hard to believe that Socfin-KCD is just another subsidiary of the gigantic company. It is also the Bolloré group that presides, from its Parisian headquarters, over the mediation undertaken with the victims of plantation activities, in South-East Asia as well as in Africa.

But another document will prove to be decisive. It arrives in my mailbox. A source who I didn't know promised it to me earlier on the phone. These few pages of text document in black and white everything I had purported so far on the invisible thread that links Bolloré to the plantations. It is a banal report of the general meeting of a company whose name had never appeared in the file: Terres Rouges Consultant.

At the time of the takeover of the Bunong territory, this company had it offices in the Bolloré tower, the group’s headquarters in the heart of the La Défense business district. Its field of work? Agro-industry in developing countries. Its corporate purpose? To manage the rubber tree fields in Mondulkiri, via Socfin-KCD. Once again, its managers and those of the Bolloré companies merge: the two main directors of Bolloré SA are also directors of Terres Rouges Consultant. The latter and Socfin-KCD share the same chairman.

Terres Rouges Consultant was liquidated in 2012, but it is the period between 2008 and 2012 that interests us. Bolloré assures us that this company was only a subsidiary of Socfin. But all these clues lead me to believe that this is the entity through which the Bolloré group, and in particular Bolloré SA, exercised their management power in the plantations from their Ile-de-France headquarters. What else was it doing in the Bolloré tower? I am asking our opponents' lawyers to provide us with the lease. We are still waiting for it. If Terres Rouges Consultant did not pay any rent, or a derisory amount, we will find it hard to believe that it was more than a branch under the power of the group. And what floor was it on? How could its activities be distinguished from those of Bolloré? Did it have enough employees to manage the rubber tree fields on its own from Paris?

For the truth to come out, we need to go behind the scenes of a multinational corporation once again. And to do this, we need to get our hands on all the documents that make it possible to understand the links between Terres Rouges Consultant and Bolloré. The decision is once again in the hands of the judge. We have asked her to order our opponents to send us Terres Rouges Consultant's lease, its personnel registers, the list of its directors, their employment contracts and their mandates in the other entities of the group.

The trial was scheduled to begin in February 2019, but a new obstacle was placed in the way of the Bunong's struggle for justice. Nine of them had planned to travel to France to attend the hearing. From Cambodia, lawyer Sophorn Sek had struggled to prepare for their visit, funded by two NGOs. Their return air ticket was booked when the French consulate in Phnom Penh decided to refuse their visas on the official grounds that they did not have sufficient resources. However, their stay was not supposed to last more than a few days... It was not conceivable that the Bunongs would not be able to attend their own trial. We therefore requested that the hearing be postponed until they were allowed to join us. The judge agreed, despite the fierce opposition of Bolloré and his lawyers, who had only one wish: that the hearing be held in the absence of the victims. In the name of the right to a fair trial, no one, let alone the state, can deprive the plaintiffs of participating in the hearing. The court perfectly fulfilled its role as guardian of individual liberties. This was a first victory in what promises to be a long struggle with considerable stakes. A few months later, the battle opened in a new theatre. I was also contacted by Cameroonian peasants, who have been mobilised for almost a decade against Bolloré and the dramatic consequences of palm oil exploitation in Africa. Several dozen of them gave me a mandate and have now joined the lawsuit launched by the Cambodians.

[1] "Cleared land, trampled rights", FIDH, 6 October 2011.
[2] The Organisation for Economic Co-operation and Development.

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