By Paula Companioni, Revista RAYA, December 26, 2023

(Translated by Eunice Gibson, CSN Volunteer Translator)

Even though there are a dozen court decisions, Carbones de Cerrejón Limited has no respect for the rights of the indigenous Wayúu of La Guajira, who live beside the open pit mine. The diversion of the Bruno River for the exploitation of coal took away their access to potable water, endangered their food security, and continues to affect their health. What will happen to these communities if the coal company pays no attention to the most recent decision of the Constitutional Court?

During the United Nations Conference on Climate Change (COP28) held in December in Dubai (United Arab Emirates), human rights and environmental organizations issued an international alert to demand that the Cerrejón coal mine comply with the Constitutional Court decision in Colombia that ordered them to suspend their manipulation of the fresh water of the Bruno River. Thirst is an urgent issue in La Guajira, and worse in these days of drought and the heat wave of the “El Niño phenomenon”.

The 2017 decision ordered the mining company to suspend its intervention in the water supply, and it supported the fundamental right to water, to food security, and to the health of the Wayúu communities La Horqueta, La Gran Parada, and Paradero. It also ordered 15 government agencies to create an inter-agency work group to carry out a study that would result in an answer to the question: “Is it sustainable to divert the course of the Bruno River?”

In spite of the fact that the response of the communities was negative, the river was diverted some 700 meters toward the north in La Guajira for a project to expand the largest open pit mine in Latin America. Cerrejón accelerated the work on the diversion and “captured” the Colombian government through lobbying of the agencies by Cerrejón executives. That process was denounced by the Alvear Restrepo Lawyers Collective (Cajar in Spanish). In fact, the lobby effort was able to get the inter-agency work group to conclude that the diversion of the river was sustainable.

This “capture of the government” is more in effect now than ever. Cajar has filed national and international complaints, citing at least two examples of the impunity in which Cerrejón has been the protagonist. For example, the civil rights actions in which the indigenous people won favorable decisions from judges who found that the respiratory effects the children are suffering are because of the dumping grounds for the mining residues. Neither the health care agencies nor Cerrejón have complied with the judges’ orders. So, in 2023 the river continues to be diverted and not only the communities, but also the ecosystem continue to suffer the consequences.

Water and dreams

The Bruno River arises in the high part of the Serrania del Perijá (within the Montes de Oca Forest Reserve) and it flows through the municipalities of Maicao and Albania, in the Department of La Guajira. It’s a tributary of the Ranchería River and furnishes water to several surrounding communities.

It’s also considered a biological corridor between the Perijá and the Sierra Nevada de Santa María. Historically, it has been a source of water and cultural and spiritual wellbeing for the Wayúu indigenous people that live in northern Colombia. They have seen their Security Plan affected and the way that the lives and culture of their people are in danger, says the Wayúu family mediator Andrónico Urbay.

When the Wayúu greet each other in their native language, wayuunaiki, there is a form of greeting that means “What did you dream?” (“Kasamüinyaada?”) For these people, by means of dreams, the spirit that guides the water will be made manifest and they can pray.

The water is a sacred place, says Misael Socarrás, a Wayúu leader. “With the water is the way we carry out our spiritual duties of healing through dreams. We will make payments, take baths, and find our medicinal plants; our dreams tell us where we should go, which plants we should take, where we should bathe. But with this diversion, we no longer have the spiritual connection between the water and the earth.” However, this spiritual connection was not considered either by Cerrejón or by the Inter-agency work group, in spite of the fact that the Court ordered them to make a technical study to decide if the river should be returned to its natural course.

Aura Robles and Misael Socarrás, in their character as persons directly affected and experts cognizant of their territory, informed the High Court that they could notice the changes in the landscape, in the reduction of streamflow, in the sinking of the subterranean waters, and the drying up of wells. All of this creates uncertainty about the coming droughts and the effects on cultural, productive, and ancestral practices in a territory like La Guajira where water is becoming more and more scarce.

The failure to comply with the Court’s orders in Decision SU 698 in 2017 by the government agencies and by the company, is not an isolated case. In Colombia there are several court decisions where there are recurring mentions of the notion of environmental justice and its relationship with discrimination and racism.

According to Attorney Rosa María Mateus—a member of Cajar—in this country there persist practices and imaginations in which some human lives are of more value than others. These concentrate the injustices on population groups that live in conditions of vulnerability, who are impoverished and dispossessed, and whose territories are considered “areas to be sacrificed”.

El Cerrejón, an executioner of La Guajira

Diverting a river in order to produce coal is a textbook case on how to create and worsen the current climate crisis. In 2017, when the Constitutional Court ordered El Cerrejón to stop the work of dispossession, which is what the company had done—besides accelerating the work and ignoring the nation’s sovereignty—they filed suit against Colombia. They wanted to force the government to pay them millions in damages because with the court decision, they had to suspend the expansion of one of the work sites at the coal mine.

“This kind of dispute and even just a threat of filing a suit has had a deterrent effect, a chilling effect, or even a shakedown, whose intention is to subordinate the national sovereignty of Colombia’s government and to oppose the adoption of environmental protection measures that would slow climate change. Likewise, the disputes undermine the rights of the communities and the peoples to obtain justice for the abuses and the serious violations by the big corporations that remain in impunity,” states the declaration by several different human rights organizations, including Cajar, to the international community in February of this year.

The gigantic Cerrejón open pit mine is responsible for the forced displacement of indigenous and Afro-Colombian communities in La Guajira. In addition, its contaminants are consistently in the air in the territory. The mining exploitation has contaminated the water sources, which has resulted in high concentrations of heavy metals being found in the blood of people who live near the mine. These substances are so contaminating that they can generate serious diseases such as cancer.

Throughout the thirty years of history of Cerrejón, there are several court decisions that have been ignored by the company. Those decisions show that more than 25 communities have been displaced from their territory, that more than 20 rivers that come away from the Ranchería River have been diverted, and that the air is contaminated with particulate matter because of the mine’s aspersions.

The mine, which produces more than 30 million tons of coal every year, generates huge excavations of earth, which implies the deforestation of an area where water sources are found. The company that owns this mine (now the Swiss multinational Glencore, previously its peers, Angloamerican and BHP Billiton) has been involved in rights violations since its founding, not only in the neighboring communities, but also in the ecosystems they are exterminating.

A historic decision

The civil rights action filed by the Wayúu people who live on the shores of the Bruno River, with the help of Cajar, was filed in 2017, and the Constitutional Court made a historic decision. It was the first time in Latin America that it was decided not only that decisions regarding an ecosystem had to be made together in agreement with the communities, and in addition, incorporated key concepts like ecosystem services.

According to the United Nations Food and Agriculture Organization (FAO) ecosystem services make human life possible, by providing nutritional food and clean water, for example, by regulating sicknesses and climate, by supporting pollinizing of crops and formation of soils, and offering recreational, cultural, and spiritual benefits.

“We contend that this is an innovative decision in Latin America, because it’s the first time that a tribunal uses a focus based on ecosystem service to protect the environmental rights of the ethnic communities,” states an article in the scientific magazine “Environmental Management”, by Luisa Gómez Betancourt, Sandra Vilardy, and David Torres, published in May 2021. In spite of that, the Court’s decision is nothing but paper, and the communities, with Cajar support, are continuing to insist that the mining company comply with its obligations to Guajira society.

In February of 2023, the Controller General of Colombia issued a new report, warning that the management by the Minister of Environment, the National Environmental Licensing Authority (ANLA), Corpoguajira, and the National Mining Agency have not carried out the orders issued by the High Court in favor of the rights of the Wayúu people caused by the threats of destruction of the Bruno River.

In one of its seven Findings, the Controller’s Office pointed out weaknesses and deficiencies in the guarantees and mechanisms for the participation by the communities, “because this has not been effective, either for the plaintiffs, or for the technical intervenors, who haven’t even all been called together, and the considerations that they offered in the report ordered by the eighth order, and also by the fifth order, have been ignored.

After they were notified of the decision about the Bruno River, they have sent numerous reports to judicial authorities about the failure to comply and their disregarding the orders in the Court’s decision, without receiving any answer at all from the coal company or the government agencies. On the contrary, Cerrejón has promoted publicity campaigns furnishing disinformation to the community about the diminution of the volume of the Bruno River.

“In spite of the fact that we have complained that, after the river was diverted, its volume has been diminishing significantly, until it almost disappears in times of drought, the company continues to do publicity about a possible artificial canal, which has no spiritual connection, and access to which would be restricted by the company’s private security and by the Army,” complained Cajar. With the endorsement that Cerrejón has for maintaining its diversion of the channel of the Bruno River, the only thing left for the communities that live on its shore is to insist on their struggle for the return of the river to its natural course. Fortunately for the Wayúu people, their struggle for their rights has lasted millenia, and for the José Alvear Restrepo Lawyers Collective Corporation, the battle is a necessary one. Meanwhile, the companies and corporations are free to continue diverting the channels of rivers because there is not a water law that punishes unmeasured advantage by the affluent, as opposed to the thirst suffered by the human beings.

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