Last month, several international and Colombian NGOs filed simultaneous complaints against Glencore, BHP, and Anglo American, parent companies of the Cerrejón coal mine in Colombia, alleging serious human rights violations and devastating environmental pollution. The complaints were filed with the National Contact Points (NCPs) of the OECD in Australia, Switzerland, and the United Kingdom. An additional complaint was filed with Ireland’s NCP against Dublin-based Coal Marketing Company (CMC), a major purchaser of coal from Cerrejón in the last two decades.
The complaints against Cerrejón join a stack of claims, Colombian judicial decisions, and denunciations against the company, as well as a recent public call for a halt of its mining operations by a group of United Nations’ experts. Despite these actions and ongoing public denouncements by several Colombian and international groups, Cerrejón continues to operate with impunity. How does Cerrejón get away with it?
In this blog, we discuss the fact that Cerrejón continues to operate with impunity, despite several actions and official judicial decisions against the company. We also provide an overview of the human rights abuses and serious environmental degradation taking place in Cerrejon’s area of operation, in La Guajira, Colombia, home to the Wayúu, an indigenous community.
Colombia: a coal-producing land coveted by Glencore, BHP and Anglo American
Cerrejón, the largest open-pit coal mine in Latin America, has operated in the department of La Guajira, Colombia since the 1980s. A former Exxon subsidiary, Cerrejón was acquired by Anglo American, BHP Billiton, and Glencore in the early 2000s. Today, Cerrejón is one of the top three coal-producing companies in Colombia, along with Drummond Co., and Glencore. The company is also considered one of the top ten largest coal mines in the world, with the vast majority of its coal exported to Europe.
La Guajira is a major coal-producing region. The sub-soil in this region is rich in coal, and concessions for mining were highly coveted despite the region’s status as a protected sanctuary for indigenous communities. The Wayúu indigenous people have inhabited the region for centuries. This community’s livelihood – as well as the livelihood of other minorities – has been caught between these mining concessions and the armed conflict.
There is a dark history of forced displacement, violence, and harm to the community’s health linked to Cerrejón’s operations. For example, in 2001, armed security forcibly displaced the entire Afro-Colombian village of Tabaco to benefit Cerrejón’s mining project. The community remembers this involuntary resettlement as one of the most brutal evictions linked to a mining project in Colombia. Pollution and water scarcity — connected to Cerrejón’s water consumption — are the biggest threat for children and the overall Wayúu community.
Non-compliance with judicial orders
Complaints against Cerrejón show how the company has interfered with the right to life, a healthy environment, water, health, food security, and the right to free, prior and informed consent in connection to resettlements. These violations are attributed to Cerrejón’s excessive water consumption; aggressive efforts to divert rivers; pollution caused by continuous coal mining; ambitious expansion projects; water contamination; and a lack of engagement with communities to conduct adequate consultation processes. Affected communities claim that Cerejón’s actions have also caused severe cultural and social damage to their community. Many of these issues have occurred within the context of the country’s decades-long armed conflict.
In recent years, to increase coal production, the company expanded its pit coal mine. This expansion process involved removing aquifers and soil, clearing forests, and deviating rivers, including the Arroyo Bruno, a major water source for several communities.
In 2015, indigenous leaders of three Wayúu communities (La Horqueta, La Gran Parada, and Paradero) filed a rights-based legal action, known as Tutela, claiming that the diversion project of Arroyo Bruno (Bruno Stream) threatened their constitutional rights to water, food security, and health, as well as the right to prior consultation and to develop and maintain their cultures. The Wayuú claimed that the environmental studies that supported the project were unreliable and that the company had failed to involve the communities in the decision-making process, even though the communities were directly affected by the deviation.
The court found and later reaffirmed, through a judicial inspection, that the deviation project did not comply with proper protocols to assess its environmental impact. The justices noted that the company had failed to take into account the fragile ecological conditions of the region — over 75% of La Guajira's area is desertified, precipitation levels are low, fresh water is scarce, and the region is highly exposed to climate crisis effects. Moreover, it was noted that Cerrejón also failed to consider the cumulative environmental effects of more than thirty years of large-scale mining activities in the area. In all, Cerrejón adopted a convenient piecemeal approach to determine the effects of the project and had disregarded the sum of all similar projects on the region. The court also found that the company had violated the communities’ right to water, food security, and health.
Unfortunately, by the time the court made its findings in December 2017, Cerrejón had already started deviating Arroyo Bruno. As part of this decision, the court ordered the establishment of an “'inter-institutional roundtable” to address the issue, with the involvement of affected communities. However, three years after the decision, Cerrejón has failed to comply with the ruling. Last July, the Colombian Auditor General established that the Inter-Institutional Board had decided not to return the waters of the stream to its natural course and to maintain the diversion based on weak, superficial, incomplete and biased information, without generating spaces for participation and without considering the irreversible damage that it could cause for [communities] interacting with [Arroyo Bruno] ecosystem.
How did this happen? Most of the documents used to support the Board’s conclusion were provided by Cerrejón. Today, Cerrejón continues to deny any wrongdoing and claims that the company has carried out its work to the highest standards, despite the court and auditor general’s findings demonstrating otherwise.
Cerrejón has also either delayed compliance or failed to comply with multiple other judicial decisions. In 2015, a judge ruled in favor of Moises Guette, a two-year-old Wayu, who suffered from acute respiratory problems attributed to air contamination caused by Cerrejón’s mine. Despite Cerrejón’s denial of responsibility, the judge (again) ordered Cerrejón (and the Colombian government) to take measures to reduce contamination levels in its area of operation. However, two years after this decision, communities report a lack of adequate efforts by the company to address this matter. In fact, the communities claim there has been an increase in pollution levels.
In a separate case, Colombia’s Constitutional Court ruled in favor of indigenous communities, finding that Cerrejón had violated the communities’ right to Free Prior and Informed Consent (FPIC, as established under international obligations - ILO169). Although Cerrejón claimed that the Wayúu community at issue was not part of the company’s “zone of influence,” the court rejected this argument and ordered Cerrejón to conduct appropriate FPIC procedures and to revise its internal protocols to properly address environmental impacts. Years after this decision, communities report that Cerrejón has still not fully complied.
A recent study published by the Center for Research and Popular Education (CINEP) details both Cerrejon’s historical patterns of human rights violations against communities and provides a thorough list of judicial decisions against the company. The study includes an account of fourteen judicial decisions against Cerrejón and discusses the company’s lack of full compliance. Responding to the study, Cerrejón again denied responsibility for these violations and claimed that they have acted in good faith while implementing acceptable standards of conduct.
A call to halt mining in La Guajira and to protect the Wayúu community
In September 2020, UN experts called on Colombia’s government to suspend some of Cerrejón’s operations, given their negative impacts on the environment and human health. David R. Boyd, the UN Special Rapporteur on human rights and the environment, stated that not enough had been done to protect the Wayúu people and called for a halt to mining close to the provincial reserve. Six UN Special Rapporteurs and four members of the UN working group on business and human rights echoed this call.
UN experts emphasized that the Cerrejón mine is one of the largest water polluters in the region. Together with air and soil contamination, the company diverts streams, uses countless rivers, and pours water contaminated with heavy metals and chemicals back into the waterways. This explosive mix of breathing polluted air and not having enough clean water, especially during a global pandemic, could be deadly for the Wayúu people. Despite this urgent call, there is no evidence that Cerrejón has taken serious measures. As of February 2021, at least 1,211 Wayúu community members have become infected with COVID-19. The lack of access to clean water is one of the major reasons that makes prevention measures for COVID-19 impossible for the Wayúu.
Will Cerrejón continue to get away with impunity?
Cerrejón is an expert at denying wrongdoing (despite court findings showing otherwise), not complying with judicial decisions, delaying processes through strong PR campaigns, and interfering with official processes to obtain a favorable outcome. This is how Cerrejón gets away with impunity. However, the latest complaints filed with the OECD show a turning point in this ongoing saga -- at least this is the hope for thousands of victims, countless affected communities, and several national and international civil society organizations.
The story of Cerrejón demonstrates the importance of finding strategic and creative solutions to address human rights abuses and environmental harms in light of Cerrejón’s evident lack of compliance with official judicial decisions. It also sheds light on the potential impact that evolving international standards could have on these types of cases where national laws and even judicial orders are not enough. For instance, the case of Cerrejón has been used to illustrate the crucial role that a UN Binding Treaty on Transnational Corporations could play in improving conditions for vulnerable groups. Now that legal practitioners and advocates are turning to the international arena, such as the OECD, for accountability, we’ll be able to examine whether these instruments will actually pave the way forward for victims of human rights abuses and environmental harms.
Tatiana Devia is a Staff Attorney at Corporate Accountability Lab and Luisa Gomez Betancur is a member of CAL’s Brain Trust.
A Spanish version of this blog is also available here.
