In October 2015, the Colombian Caravana filed an amicus curiae brief with the Municipal Court in Barrancas (Guajira Department), in a constitutional rights protection case (tutela) relating to the ill health of a young boy from the indigenous Wayuu community of Provincial, caused by pollution from the nearby Cerrejón open pit coal mine. Many thanks to Paul Dowling of Leigh Day Solicitors, who drafted the amicus. Read the amicus brief here in Spanish The plaintiff’s lawyers from the José Alvear Restrepo Lawyers’ Collective (CAJAR) have released the following statement:
Judge orders Carbones del Cerrejón to reduce pollution levels
To prevent deterioration in the health of a Wayuu child
Tuesday 17 November, 2015 José Alvéar Restrepo Lawyers Collective (CCAJAR) A Judge from Barrancas ordered Carbones del Cerrejón to reduce pollution levels in a legal claim for the protection of constitutional rights (tutela), in favour of Moisés Guette, an indigenous Wayuu child, who has severe respiratory problems resulting from environmental pollution.
In the ruling on the tutela on November 10 in favour of the two-year old Wayuu indigenous child Moisés Daniel Guette, who suffers from serious respiratory problems, the Judge from Barrancas (Guajira) ordered Carbones del Cerrejón to reduce pollution levels. The child is a member of the indigenous community of Provincial in the south of the Guajira department, located less than 2 km away from the mining areas of Patilla, Comuneros and pit 100, and at a similar distance from areas used by the mine to dump materials.
The Cerrejón open-pit coal mine, one of the largest in the world and which involves the removal of large amounts of land through explosions which occur daily, to transport the coal to the loading port. The blasts generate enormous clouds of dust that are scattered by the atmosphere and tremors that shake the surrounding communities and their homes.
For Moisés’ community, access to water, land and a healthy environment has been altered by mining activities. The little rain water that falls and that they manage to collect is contaminated and for the same reasons the groundwater and surface water are not accessible to the communities. Moses has experienced health problems such as affects on his respiratory system and lungs as well as haemoglobin disorders. Doctors who have treated him have determined that his health situation is due to the environment in which he lives, and have advised changing the place where he lives, which would mean losing his culturally appropriate territory in which he lives and practices his ancestral traditions.
The court determined that the environmental authorities must apply the precautionary principle and ensure that the company Carbones del Cerrejón reduces its emissions of particulate matter and gases in a maximum period of two months. The court also ordered that the company treats related damages that have occurred in the homes situated in the so-called mining corridor.
The judge ordered that the child’s health service make the appropriate referrals to medical specialists who are independent from the Carbones del Cerrejón mining company and that all relevant medical tests and treatments for the child’s recovery are carried out. The Cerrejón coal complex is the largest and oldest open pit mining activity in Colombia (30 years) and is publicly described as a company with the highest standards of Corporate Social Responsibility. However, the department of La Guajira has one of the highest poverty rates, malnutrition and illiteracy in the country. The Colombian State, meanwhile, despite its obligations of prevention, guarantee, monitoring and regulation, are increasingly flexible in their responsibilities in these areas.
In its judgment, the court referred to the lack of studies in the department to determine scientifically the effects suffered by communities due to mining, indicating that “it has been demonstrated in graphs showing infant morbidity due to respiratory infections that in this Department, as is the case in most municipalities, it is children under five (5) years old who are the most affected, and that the Cerrejón has been carrying out open pit mining activity for more than thirty-six (36) years in our Department, and the Ministry of Environment, Housing and Territorial Development, created in 1993, has made no scientific study in this Department [….] that shows that they are not affecting legal rights or risking specially protected legal norms, such as the rights of children, indigenous people and seniors to health, to a healthy environment and to a dignified life”.
The boy’s mother appealed the sentence because in the absence of scientific studies in the country that offer certainty about the safety of the mining activity, she states that the closest pits to the communities should be closed, at least provisionally, while this certainty is ascertained, according to the precautionary principle which the Colombian State is obliged to respect. We also call upon the Cerrejón’s parent companies to monitor the behaviour of the consortium, especially with regard to respect for the rights of communities who have been displaced by mining activity, and who inhabit the surrounding areas. The catastrophe of Rio Doce in Brazil[1] caused by companies belonging to the same group (BHP Billiton)[2], confirms the risks for the environment and the communities caused by these mega-projects, large-scale mining and damming and diversions of watercourses.
Moisés’ family thanked the people, groups and organisations in Colombia and around the world who have expressed their solidarity and support for his cause.
Read Cajar statement in Spanish here Watch a video about Moisés case here
[1] https://www.youtube.com/watch?v=3Ov7ebf8ACU
[2] http://www.americaeconomia.com/negocios-industrias/bhp-billiton-revisa-emprendimientos-conjuntos-en-colombia-y-peru-tras-desastre-d