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Amicus curiae brief on international human rights and environmental law filed in Wayúu indigenous peoples’ claim against mining company in Colombia

Monday 14 September 2020

The amicus was drafted by Camila Zapata Besso of the Garden Court International Team with Jelia Sane and Dr Keina Yoshida of Doughty Street Chambers, instructed by Sue Willman of Deighton Pierce Glynn.

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On 27 August 2020, ABColombia and the Colombian Caravana intervened in an action brought by the Wayúu indigenous communities of Paradero and La Gran Parada regarding continued human rights violations caused by mining activities in La Guajira, Colombia.

The case concerns the Bruno River (‘Arroyo Bruno’) which flows through La Guajira, a semi-desert region of Colombia that is highly vulnerable to climate change and is currently suffering an acute humanitarian crisis due to water scarcity. The Bruno River and its surrounding ecosystem is an essential resource for indigenous and tribal peoples in the region, to whom it provides a crucial source of food and water, as well as being a central element of their cultural identities, spiritual lives and traditional activities.

Carbones del Cerrejón, a British-owned coal mining company, operates the Cerrejón coal mine in La Guajira, the largest open-pit coal mine in Latin America. Its continued expansion over the last thirty years has resulted in a number of serious human rights violations against local indigenous and afro-Colombian groups, including forced displacement, as well as environmental contamination and damage which has had devastating effects on the health of these vulnerable communities.

In 2012, Carbones del Cerrejón applied for a licence to divert the Bruno River from its natural course in order to expand its mining activities. In 2015, members of affected indigenous groups including the Wayúu communities of Paradero and La Gran Parada brought an action for the protection of their constitutional rights (‘Acción de Tutela’) against Carbones del Cerrejón and relevant state entities, with the support of the José Alvear Restrepo Lawyers Collective (CCAJAR), a leading Colombian human rights organisation. In spite of the ongoing proceedings, Carbones del Cerrejón effected the diversion of the Bruno River, which in turn dried up.

In its judgment SU-698 of 2017, the Constitutional Court of Colombia ruled that the diversion of the Bruno River violated the indigenous communities’ fundamental rights to water, health and food security. The Constitutional Court ordered the state and Carbones del Cerrejón to conduct a full environmental impact assessment with the participation of the indigenous communities, and to consider returning the river to its original bed in the interim. However, the indigenous communities state that the defendants have since failed to comply with the Court’s orders by maintaining the diversion of the Bruno River following an erroneous decision-making process and failing to observe the rights of the indigenous communities to participation. Therefore, their fundamental rights continue to be violated.

CCAJAR has brought the matter before the Court of Execution of Penalties and Security Measures in Bogotá, Colombia, which oversees the implementation of the Constitutional Court’s ruling. ABColombia and the Colombian Caravana have intervened by way of an amicus curiae brief which sets out important standards under international human rights law and international environmental law that are relevant to the case.

The amicus focuses on the rights to a healthy environment, water, adequate food and health; the rights of indigenous peoples to their culture, free, prior and informed consultation and consent; the rights of nature and the precautionary and prevention principles under international environmental law, and demonstrates how these protect indigenous communities and their environments from the adverse effects of extractive development projects. The amicus concludes by emphasising that the protection of the environment and its natural entities is inextricably linked to the ways of life of indigenous peoples, who have special connections to their territories. Careful scrutiny is thus required to ensure that the intrinsic value of rivers and the fundamental rights of indigenous peoples are protected.

Camila Zapata Besso of Garden Court Chambers was instructed by Sue Willman of Deighton Pierce Glynn, alongside Jelia Sane and Dr Keina Yoshida of Doughty Street Chambers, to advise on and draft the amicus, with research assistance from the King’s Legal Clinic at the Dickson Poon School of Law, King’s College London. 

The amicus in Spanish can be read here. More information about the intervention can be read on the London Mining Network website and the CCAJAR website.  

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