#LaVerdadDelCarbon: Constitutional Action on the right to participation in mining in Colombia

Press release
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Local communities of Guajira (Colombia), FIDH member CAJAR (Colectivo de Abogados “José Alvear Restrepo”) and its partners launched a constitutional action seeking for the fulfilment of the right to participation for communities affected by coal mining.

The Facts

Four decades of coal mining have dramatically affected the communities and the environment of the Guajira peninsula in Colombia, which hosts the largest open-pit coal mine in Latin America. The mine is operated by Carbones del Cerrejón, a company based in the British West Indies and owned by multinational firms Anglo American, BHP Billiton and Glencore.

It is estimated that about half of the population of La Guajira belongs to ethnic and Indigenous groups — these include the Wayuu, the largest group, the Wiwa, Arhuaco and Kogui peoples — as well as Afro-descendant and peasant communities. These communities have suffered serious violations of human rights, affecting their right to a decent life, to water, to health, to food security and sovereignty, to information, to participation and to free prior and informed consent, among others.

In 2016, the Constitutional Court ordered an “official scientific and sociological study of the impacts of mining activities on the ecosystems of Colombia.” To carry out this research, it requested government authorities to form an inter-institutional working group, “which could involve public and private entities, research centers and members of civil society.” However, affected communities of La Guajira were denied effective participation in the elaboration of the study, which was published in 2020. The only channel available they had to comment on the draft study was an excel form uploaded to the Working Group’s website, which was neither adequate nor culturally appropriate given their limited access to technology. On the other hand, the Working Group selected people with obvious conflicts of interest to conduct the study, such as the directors of environmental management of Drummond, another coal mining giant, and of Carbones del Cerrejón itself.

Furthermore, in 2013 the Constitutional Court ordered the Ministry of Environment and Sustainable Development to promote an action plan to build “a national integral policy to optimise and enforce the prevention and control of air and water pollution caused by the exploitation and transport of coal”. Here too, communities affected by coal mining in Guajira were not granted any space for information, and participation in the development of the policy, while the participation of coal companies was favored.

The Action

Members of the ethnic, Indigenous, Afro and peasant communities of La Guajira together with CAJAR and Corporación Geoambiental TERRAE filed a tutela action against the national authorities and institutions involved in conducting the study and national policy.

The tutela action is a constitutional mechanism which allows any person to claim immediate judicial protection of their fundamental rights before a judge, at any time and in any place.

The plaintiffs allege that the fundamentals rights to participation and to access to truthful and impartial information of the affected communities of La Guajira have been violated, both in the development of the study on the impacts of mining by the Working Group and on the development of the National Integral Policy. These violations threaten the principles of democracy and environmental justice in a region with a recognized water crisis and high vulnerability to the effects of climate change.

The Asks

The plaintiffs ask the constitutional courts to order the defendants to:

• Open meaningful and inclusive spaces for the participation of local communities, so that their knowledge and experience can be incorporated into the specific chapters on La Guajira in the Study and National Integral Policy.

• Take special care in order to prevent the undue influence of the company Carbones del Cerrejón in public decision-making processes, generation of information, studies, environmental impact assessments, formulation and implementation of public policies of control, regulation or measures aimed at the protection of rights in the context of the impacts of mining in La Guajira.

• Adopt from now on a standard of impartiality, rigorousness and independence in official studies and public policies related to the impacts of open-pit coal mining.

Timetable and next steps

The tutela action has been filed on 22 July 2021

Learn more

Press Release by CAJAR: https://www.colectivodeabogados.org/con-tutela-exigimos-derechos-a-la-participacion-y-la-justicia-ambiental-en-estudio-y-politica-publica-sobre-impactos-del-carbon-en-la-guajira/?preview=true

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