LAG Colombia
Indigenous communities of the Wayúu people in La Guajira, in response to the diversion of the Bruno stream by the Carbones del Cerrejón company, have begun a campaign to defend this important waterway. The Bruno stream is a major tributary of the Ranchería River, the principal river of this Colombian department, and is surrounded by the tropical dry forest, a strategic ecosystem given its endangered status. This stream is one of several water bodies—including streams, ponds, and floodplains—that have been diverted and destroyed to allow for the expansion of the open-pit coal mine.
The diversion was carried out to exploit the natural channel of the Bruno stream, an aquifer that feeds a semi-desert region highly vulnerable to climate change and embroiled in a well-known and severe humanitarian crisis due to water scarcity in the department of La Guajira. The stream was destroyed to intensify open-pit coal mining, which had been ongoing for over 30 years.
With the support of the José Alvear Restrepo Lawyers' Collective, the Wayúu indigenous communities in La Guajira filed a tutela action that reached the Constitutional Court. After the evidentiary hearings, the rights to water, health, and food sovereignty were protected through ruling SU 698 of 2017. The Colombian High Court found that environmental impact assessment standards were not applied, nor were the existing restrictions on the Ranchería River watershed respected.
In its ruling, the Court determined that in authorizing this project, significant social and environmental impacts, which it identifies in terms of uncertainties, had been disregarded. These constitute a threat to the protected rights of the communities dependent on the ecosystem services of the Bruno stream. One of these uncertainties lies in the relationship between the diversion of the stream and "the impact of climate change and global warming in the department of La Guajira, in the dry forest and in the Ranchería River basin, considering that throughout the world and throughout the country, but especially and with greater severity in the department of La Guajira and in the dry forests, climate change alters the level of precipitation, and with it, all the processes that underlie the functioning of the ecosystem . "
The Constitutional Court's ruling ordered the continuation of the so-called Inter-institutional Roundtable, made up of approximately 17 national and regional institutions, which also includes the company Carbones del Cerrejón, and decided to include representatives of the indigenous community and academic organizations that participated in the litigation, leaving it in the hands of this body to carry out a technical study that offers an informed response to the uncertainties in order to reassess the environmental viability of the diversion, which remains unfinished.
Even with this ruling final, the national government considered this project as one of the 35 of "priority and strategic interest for the sustainable reactivation of the mining sector and to boost the country's economy hit by the pandemic."
The Constitutional Court, after several requests from national and regional organizations, made a decision that, as it itself has stated, is unusual in relation to orders issued in protection rulings: it opted to reassume jurisdiction to verify compliance with ruling SU-698 of 2017. Through Order 100 of 2022, the highest court considered that it should reassume jurisdiction due to the importance of the case and the inactivity on the part of the court in charge, given that more than four years have passed since the orders of the ruling were notified and the compliance procedures have not yet been carried out.
In March 2023, the Constitutional Court ordered a judicial inspection, which was carried out in La Guajira, specifically in the community of Paradero and the area where the Bruno stream is diverted. During this process, a series of questions were posed to the Inter-institutional Technical Committee, the Carbones del Cerrejón company, and the affected communities to ascertain the current status of the process for protecting the three fundamental rights established by the ruling (the right to water, the right to food security, and the right to health).
Having concluded the presentation of this evidence, the Court ordered a technical session, which was held in two parts, to clarify certain doubts the Court had regarding the merits of the petition filed by both the plaintiff communities and the civil society organizations, which alleged non-compliance with the court's orders. On this occasion, the Court analyzed five aspects related to the orders issued: participation, development or suspension of mining operations by Carbones del Cerrejón, impact on the communities, water quality in both the diverted stream and the natural watercourse, and the possibility of clearing the diversion.
Once this evidentiary phase is complete, the full Constitutional Court will decide whether or not there has been a breach of the orders issued in its ruling. The Court's decision will focus on determining whether or not there was non-compliance on the part of the institutions comprising the Inter-institutional Technical Committee. It will also analyze whether the report submitted by the Inter-institutional Technical Committee has clarified the uncertainties identified in the ruling. This decision could authorize the diversion and exploitation of the Bruno stream's natural channel, or it could determine the need to return the 3.4-kilometer section that was diverted to its natural course.
Climate change is a key factor in this litigation, as it is one of the uncertainties to be addressed in the study ordered by the Constitutional Court. This study must include the participation of local communities, technical experts, and academics. To support the court's decision, various issues were addressed regarding the lack of consideration given to climate change in the approval of the mining project, particularly in relation to the specific conditions of the area to be affected. It was emphasized that the municipality lacked a comprehensive climate change plan and, consequently, had not developed adaptation mechanisms to address water scarcity in the region.
It was also argued that the project's development failed to consider the current regional climate change and drought scenario, posing a serious risk to the preservation of life, given the region's water stress and the water balance and supply problems faced by communities. For example, it was stated that:
The project's analysis and design disregarded the ecosystemic context in which the intervention was intended. Among other things, the effects of climate change, the water deficit in La Guajira, the desertification process affecting the region, and the specific conditions of the tropical dry forest, which make it especially vulnerable to human intervention, were underestimated. In Colombia, 90% of its forest cover has been lost nationwide. Ignoring these contextual variables is particularly serious in the current scenario, since in tropical subxerotrophic zonobiomes, total rainfall is less than evapotranspiration. Therefore, intervention in ecosystem processes is an extremely delicate operation that, if not carried out with the necessary care, can result in irreversible damage to this type of ecosystem, which is fundamental for regulating the hydrological cycle in the department of La Guajira .
The territory of La Guajira is characterized by high temperatures, water scarcity, and semi-desert conditions in some areas, among others. These factors make it highly vulnerable to climate change. Therefore, a climate change adaptation plan is necessary for this region, which, at a minimum, must include the protection of the remaining water bodies. In this regard, the legal action aimed to halt the exploitation of the natural watercourse and to highlight the damage the company has already caused and plans to cause, ultimately leading the Court to recognize these serious harms.
Ethnic and cultural biodiversity has been defended within this process, as the Wayúu communities, throughout their millennia-long history, have based their beliefs on their relationship with water sources. Failure to adapt to climate change in this region would mean the disappearance of cultures, ecosystems, ecosystem services, and life forms found only in this part of Colombia. In this regard, the Court recognized the risk that climate change poses to La Guajira.
Climate change is having an increasingly decisive impact on natural processes; to this extent, the department of La Guajira has been considered the department where the phenomenon of global warming has had and will have the most devastating effects, making it essential to incorporate this variable into the project analysis.
According to the Constitutional Court's order, the Inter-institutional Technical Committee was tasked with studying whether the effects of the Bruno stream diversion would be amplified, mirroring the current state of the Aguas Blancas stream, also diverted by Cerrejón. In this regard, during the compliance process, state entities cited a lack of correlation between the current state of the Bruno stream and the effects on the Aguas Blancas stream, while civil society organizations emphasized the importance of these waterways in the context of extreme hydro-climatic events, such as El Niño, which occur within the context of a climate crisis.
In the technical session, the Ministry of Environment and Sustainable Development studied the need to prefer the conservation of a natural channel, as opposed to the creation of an artificial channel, because the disruption of the interconnectivity of the ecosystems and the groundwater of the stream could increase the climate vulnerability conditions of the region.
- Wayuu communities of La Horqueta, La Gran Parada and Paradero.
- Carbones de Cerrejón Limited.
- Home Office.
- Autonomous Regional Corporation of La Guajira.
- National Environmental Licensing Authority.
- Ministry of Environment and Sustainable Development.
- Ministry of Mines and Energy
- Remaining entities of the Interinstitutional Working Group
Coal mining in the department of La Guajira has generated a socio-environmental conflict. One of the central resources in this conflict is water. In 2015, Carbones del Cerrejón reported consuming more than 45,000,000 liters of water per day, while the population has access to only 0.7 liters of water per person per day. Therefore, the problem in the region is not only one of scarcity but also of inequality in access.
Furthermore, the mining advance by Carbones del Cerrejón has meant a direct impact, and in different ways, on the water network of La Guajira, this is extremely serious, if one takes into account the conditions of high temperatures, and water fragility that coincide in this territory.
The communities of La Gran Parada and Paradero are located in a rural area highly vulnerable to climate change. The expansion of the open-pit mine and the implementation of the Cerrejón Coal project have created a factor that could increase the area's climate vulnerability, as evidenced by regional and local mapping of the implications of the climate crisis.
According to international organizations, such as REDESCA, the arrival of hydro-climatic phenomena such as La Niña or El Niño could worsen the conditions of social vulnerability within territories that are already highly vulnerable to climate change, which would lead to an impact on the fundamental rights of the communities that live in these areas, thus aggravating the territorial context that the plaintiffs must face.
Rules:
- Political Constitution of Colombia
- Law 388 of 1997, Territorial Development Law
- Paris Agreement – Colombia's international commitments
- National, sectoral and territorial climate management plans of Colombia
- National Policy for the Integrated Management of Biodiversity and its Ecosystem Services
Beginning
- Caution
- In dubio pro ambiente
- The polluter pays
- Stake