In a decision issued on April 8, the Constitutional Court ruled that it would verify compliance with the orders of the SU 698 ruling it issued on the Bruno stream. The Court confirmed in its decision that there is a serious risk of serious or irreversible damage to the ecosystem and water services of the Bruno stream, a situation that is no less important in an area where it has been proven that water is a vital scarce resource, which has reached the point of endangering the lives of subjects of special constitutional protection such as the Wayúu children and adolescents.
The petition for the Court to resume hearing the sentence had been filed since mid 2021 by the José Alvear Restrepo Lawyers Collective -Cajar- on behalf of the plaintiff Wayuu communities of Paradero and La Gran Parada. Before making this decision, the Court requested reports from the Government, the company, the 20th Court of Execution of Sentences and Security Measures of Bogota, the Attorney General’s Office, the Comptroller General’s Office and the Ombudsman’s Office.
The company Carbones del Cerrejón opposed the request for the Court to take up the case again and the government institutions defended that the orders had been complied with. However, the three control entities informed the Court about the main controversies and irregularities in the compliance with the ruling.
The Office of the Comptroller General of the Republic once again ratified its audit report in which it gave a rating of inefficient compliance with the orders, finding 14 administrative findings, 7 with possible disciplinary connotations.
The Ombudsman’s Office reported that, despite the fact that the entity has made requests to the Intersectoral Roundtable to guarantee the effective participation of the communities, the problem persisted and made the recommendation that, in accordance with the sentence, it should “guarantee the existence of an authentic open, broad and diverse debate on the environmental viability of the stream diversion, in which it overcomes a one-dimensional vision of the problem.”
For its part, the Office of the Attorney General Delegate for Environmental and Agrarian Affairs, submitted a report on the preliminary version of the technical study of the fifth order with which the institutions of the so-called Inter-institutional Roundtable resolved the uncertainties in favor of the continuity of the diversion, warning that with this document “.... the uncertainties raised by the honorable Constitutional Court are not fully and thoroughly answered and serious questions are exposed related to the diversion of the Bruno stream and the exploitation of the La Puente pit located under its bed and its effects on an area that is characterized by presenting a water deficit most of the year. ”
In general terms, the Attorney General’s Office expressed its disagreement with the methodologies used, the absence of studies on the hydrobiological status and the lack of a substantive response to the Court’s questions, among others.
In view of the uncertainty about the impact on the water supply due to the removal of the aquifers where the natural channel of the Bruno stream is located and the realignment of the waters in another channel, he indicated that:
“It is considered that an adequate response to this uncertainty is not given, since the impacts of the diversion works on the aquifer are evaluated, but not those generated by the advance of the mining pit on the original bed of the Bruno stream, since for the development of the mining activity there is a removal of soil and underlying geological formations, which implies the loss of the related aquifer, which as shown in some sections of the document has a direct relationship with surface water, particularly in the dry season. Finally, it must be taken into account that in an area with an evident water deficit for most of the year and a trend towards a reduction in precipitation that may cause less recharge and therefore the depletion of the aquifer, the possibility of supplying water to the communities in places other than the catchment sites currently used is denied, arguing that, by using an aquifer other than the one affected by the mining activity, they would not have problems of supply in the future, ignoring the precautionary principle”.
The Court also took note of the complaints filed by social organizations regarding the resumption of mining activities near the creek bed. It also referred to the critical situation in the Department of La Guajira due to poverty rates, lack of access to water sources and the main causes of death associated with infectious and parasitic diseases due to the lack of water resources.
Finally, it referred to Judgment T-302 of 2017, which evidenced the widespread, unreasonable and disproportionate violation of the fundamental rights to health, drinking water, food and food security of Wayúu children in the municipalities of Riohacha, Manaure, Maicao and Uribía.
The reasons that led the Court to make this decision were summarized in four points:
- Despite the fact that verification of compliance with the Court’s ruling on the stream had been in the hands of the Bogota Sentence Enforcement Court since 2019, the Court was able to establish that to date this judicial office had not adopted concrete measures to obtain compliance with what was ordered in its ruling.
- This is a decision involving complex orders that require special attention.
- The risk of violation of the rights to health, food security and water of the plaintiff Wayuu communities persists.
- And the control bodies, designated to monitor and follow up on the orders of the judgment, state that non-compliance persists.
“More than two years have passed since the judgment was notified and, to date, according to the information provided, not all orders have been complied with, so the risk of threat or violation of the rights of the Wayuú communities seems to be even greater,” said the Court and added, “according to what has been stated in various writings of the control bodies and other intervening parties, as time goes by the environmental effects on the stream and the rights of the intervening parties may be irreparable”.
Based on the foregoing, the Court concluded that urgent measures should be taken to ensure the protection of the rights to health, access to drinking water and food security of the plaintiffs and requested new evidence from all parties, this time, making an individual appeal to the technical staff involved in the proceedings prior to the judgment.
In particular, the high court requested the National Agency for the Legal Defense of the State to inform it about the investment arbitration claims related to Ruling SU-698 of 2017, by the multinationals Glencore and Angloamerican, shareholders of Carbones del Cerrejón, and the actions that have been taken so far to ensure the safeguarding of national interests and the current status of the litigation.
A few days after this decision was communicated by the Court, the board integrated by different government entities and the company Carbones del Cerrejón had requested the Court of Bogotá to comply with the main order on the study that clears the way for the exploitation of the stream.
We hope that, with this decision to resume monitoring compliance with the sentence, the Court will be able to verify all the arbitrary acts and non-compliance that have been committed in this case and adopt provisional measures to stop the Cerrejón company’s intentions to definitively destroy the natural course of the stream.
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