#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 human rights violations, 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 to them to comment on the draft study was an Excel form uploaded on 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 environmental management directors 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 developing the 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 alleged that the fundamental rights to participation and access to truthful and impartial information of the affected communities of La Guajira had been violated, both in the Working Group’s development of the study on the impacts of mining and 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 asked 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 to prevent the undue influence of the company Carbones del Cerrejón in public decision-making processes, the 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.

The outcomes

The tutela action was filed on July 22, 2021. It was subsequently dismissed in the first and second instance on the grounds that it was "inappropriate" to issue rulings in this regard because there were already other judicial decisions that had dealt with violations in Guajira, in which "a solution to the environmental problems generated by mining throughout the national territory is provided for".

However, despite the indication that the tutela action concerned different plaintiffs, facts, fundamental rights and claims from those addressed in other previous tutela proceedings, these arguments were not taken into account.

Another questionable argument for dismissing the action was that the company’s undue interference "is nothing more than a hypothesis that has no evidence that would lead to the conviction that it occurred". This argument ignored the compelling evidence provided in support of the action.

However, in April 2022, the Court was asked to follow up on another ruling, the 2017 SU 698 ruling it issued on the Bruno River. The Court confirmed that there is a serious risk of serious or irreversible damage to the Bruno River’s ecosystem and water-related services: "This situation is not insignificant in a region where it has been proven that water is a scarce vital resource, to the point of endangering the lives of subjects enjoying special constitutional protection, such as Wayúu children and adolescents.” In addition, the Court referred to the 2017 T-302 judgment, which highlighted the widespread, unreasonable and disproportionate violation of the fundamental rights to health, drinking water, food and food security.

Although it did not refer to the right to participation as such, the Court concluded that urgent measures had to be taken to ensure the protection of the applicants’ rights to health, access to drinking water and food security, and called on all parties to provide new evidence. To that end, the Comptroller’s office (Contraloría General de la República) published a new audit report in February 2023 confirming that the environmental authorities were not complying with decisions protecting the Bruno River and the communities of La Guajira. In particular, its findings revealed weaknesses and gaps in the safeguards and mechanisms for the participation of affected communities and technical stakeholders.

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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