“..the circular insanity of allowing the destruction of one of the most beautiful bio diverse places on this planet, to get access to the water that will allow further coal extraction, the burning of which is contributing to rising global temperatures and which has directly contributed to the scarcity of water in the dry tropical forests of Northern Colombia…” Brendan O’Hara MP

On 25 May 2022, ABColombia and the Colombian Caravana of UK Lawyers presented an Amicus Curiae to the Colombian Constitutional Court in support of the ongoing struggle for the protection of the rights of the Wayúu Indigenous Peoples and the Arroyo Bruno (Bruno Stream). As the Carbones de Cerrejón Coal Mine (Cerrejón ), whose parent companies until January 2022 were the multinational British registered giants, Anglo-American, BHP and Glencore seek to exploit the Arroyo Bruno. since January 2022 Glencore has been sole owner of Cerrejon.

Our thanks go to Sue Willman, senior partner at Deighton Pierce Glynn and Chair of the Human Rights Committee of the Law Society of England & Wales; Jelia Sane, Dr Keina Yoshida and Camila Zapata Besso barristers at Doughty Street Chamber; Dr Yoshida and members of the King’s Legal Clinic at the Dickson Poon School of Law, King’s College, University of London who prepared this Amicus Curiae.

In 2020, Cerrejón’s activities were denounced by a number of United Nations (UN) Special Rapporteurs, independent experts who assist the UN Human Rights Council in promoting and monitoring human rights worldwide. David Boyd – the UN Special Rapporteur on human rights and the environment – remarked that ‘the situation that was brought to my attention recently regarding the El Cerrejón mine and the Wayúu indigenous people is one of the most disturbing situations that I have learned about in my two and half years as Special Rapporteur on human rights and the environment.’

This is part of a legal struggle undertaken by the Wayúu Indigenous Peoples and the Afro-Colombian Communities whose rights are allegedly being violated by Cerrejón.

Constitutional Court Case

In 2015, representatives of the Wayúu Indigenous Peoples in La Guajira filed a legal petition before the Constitutional Court against government authorities and the Cerrejón Coal Mine. The constitutional claim was for the threat to the fundamental rights to water, food, and health of more than 30 Wayúu communities that depend on the Arroyo Bruno for access to water. As well as, the importance this water source has for the municipalities of Albania and Maicao, and whose diversion in order to expand coal-mining operations, would directly affect more than 200,000 people.

In 2017, the Constitutional Court upheld the communities rights, in Court Ruling SU 698/2017 determining that there were several technical uncertainties that threaten the rights to water, food, and the health of communities that rely upon the Arroyo Bruno watershed and the ecosystem services it provides. It therefore, ordered the suspension of activities related to the Arroyo Bruno diversion project until its orders had been fulfilled.

In one Court Order created an Inter-institutional Technical Workgroup, to asses the impacts of the stream’s diversion on the fundamental rights of the affected communities. FOr this to be assessed a range of technical studies and consultation processes must be carried out.

The Inter-institutional Technical Round table Working Group between the government, company and communities were to undertake Technical Studies to determine ten uncertainties:
(i) the consequences of intervention in a dry tropical forest;
(ii) the current health of dry tropical forest in the country;
(iii) the impacts of climate change and global warming on the Department of La Guajira, and the
consequences of intervening in an area that is already vulnerable to these phenomena;
(iv) the type and magnitude of exploitation already realized in the department of La Guajira by
extractive activities that now give way to the diversion of the Arroyo Bruno, and the subsequent harm
to ecosystems;
(v) the impacts of the interventions Cerrejón has carried out on water sources of La Guajira throughout
its history, and of those that the company currently has planned;
(vi) the impact of the diversion on the guarantee of cultural uses, supply, regulation, and maintenance
of the Arroyo Bruno;
(vii) the impact that the diversion could have on the waters upstream (viii) the impact that the depletion of the aquifers and the diversion of surface water into other channels
of different geomorphologic characteristics would have on the water supply;
(ix) the possibility that Cerrejón would intervene at other points along the Arroyo Bruno and the
accumulative effects of subsequent interventions of the same river;
(x) the biological value of the Arroyo Bruno basin in the context of the Development and Management
Plan of the Ranchería River Basin and of the Territorial Management Plan of the municipality of
Albania

Background in 2017

An extremely concerning scenario occurred ahead of the SU698/17 ruling. Cerrejón accelerated the division works for the Arroyo Bruno whilst the judicial process was before the Constitutional Court awaiting a decision.

The Wayuu had been petitioning the Constitutional Court to re-open the case because of grave concerns that they had about the way in which the Court ruling of 2017 was being interpreted and carried out by the Inter-institutional Technical Roundtable Working Group. The Court therefore announced on 6 April 2022, it would reopen Ruling SU698/17 and to re-assume oversight of compliance with, and completion of, the orders given in that ruling. Just as the Constitutional Court agreed to reopen the case of the Arroyo Bruno, the Inter-institutional Technical Roundtable put out a statement saying that Cerrejón had met with the technical requirements of the Court Ruling (fifth order).

Amicus Curiae

This Amicus Curiae examines Human Rights Law related to the: right to a healthy environment and its relationship to human rights; the right to: water, adequate food, health, culture and the right of indigenous peoples to prior consultation and free, prior and informed consent. As well as, areas of International Environmental Law: the Precautionary Principle and Interim Measures and the Prevention Principle.

The Cerrejón mine is one of the largest open pit coal mines in the world, covering approximately 69,000 hectares of land in La Guajira, Colombia. The persistent expansion of the mine over the past four decades has led to ruinous environmental degradation with serious human rights impacts. The air in La Guajira contains particulate matter in excess of the limits recommended by the WHO and those imposed on Cerrejón by the Colombian courts.

Annually there are over 400 emergency room visits and over 336,000 respiratory symptom cases in La Guajira directly attributable to the mine. Studies have shown that air pollution is driving elevated levels of cellular damage, in turn raising the risk of cancer, DNA damage, and chromosomal instability for those living in the region. As well as contaminating the air in La Guajira, the mine consumes and contaminates significant quantities of water. It uses approximately 24 million litres of water per day. In 2019, it dumped 578 million litres of liquid waste into natural bodies of water.

Studies on the Ranchería River have found unsafe levels of harmful metals in the water, including mercury
and lead. Cerrejón’s diversion, consumption, and contamination of water has led to water scarcity, food scarcity, and health impacts for those who live in La Guajira.

OECD Complaint

An OECD Complaint is also filed against the Parent Companies of Cerrejón Anglo American, BHP and Glencore in relation to human rights abuses and environmental damage that it has caused to the Wayuu Indigenous and the Afro-Colombian communities living around the mine.

Cerrejón until 2021 was jointly owned by British registered multinational giants BHP and Anglo American and the Swiss company Glencore. Since 2021 Glencore is the sole owner of this mine. The complaints were filed simultaneously, against the parent companies BHP in Australia, Glencore in Switzerland and Anglo American in the UK.

UK MPs and Irish TDs have also expressed their concerns about what is happening in La Guajira

• Public Statement
• Brendan O’Hara in UK Parliament “the circular insanity of allowing the destruction of one of the most beautiful bio diverse places on this planet, to get access to the water that will allow further coal extraction the burning of which is contributed to rising global temperatures and which has directly contributed to the scarcity of water in dry tropical forests of Northern Colombia”
• Claire Hanna MP “the violent vista of the [Cerrejon] mine… they have had the air around them the soil under their feet, and the air that they breath polluted… we visited the Arroyo Bruno… coal is noisily and dustilly trucked out…”
• Gary Gannon TD “I am standing in what was once a thriving riverbed …For 20 years the coal we took [Ireland] from Cerrejon…we have a responsibility to these communities we cannot be indifferent to their plight”