The Comptroller’s Office points out breaches Colombia’s Constitutional Court ruling SU-698 of 2017, which orders the protection of the right to water, food sovereignty and health, of the Wayúu indigenous communities, rights that have been violated with the diversion of an important water source -the Arroyo Bruno – in the department of La Guajira

Colombia’s Comptroller General insists that the Arroyo Bruno be returned to its natural course in compliance with Constitutional Court ruling SU-698. The Cerrejon coal mining company owned by companies registered on the London Stock Exchange, multinationales: BHP, Anglo American and Glencore. The Bruno Stream is the main tributary of the Rio Rancheria important water sources for the local populations in a semi-arid region of Colombia. Cerrejon is the largest opencast coal mine in Latin America. It has had a profound impact on the local communities, relocating local communities, diverting important rivers like the rancheria and now its proposal for the diversion of the Arroyo Bruno.

The following is a Public Statement made by the Wayuu Indigenous Peoples and the Afro-Colombian Communities in the Guajira working to defend the Arroyo Bruno (Bruno Stream), the Lawyers Group Jose Alvear Restrepo (CCAJAR), the Centro de Investigación y Educación Popular- CINEP/Programa por la paz and CENSAT (Friends of the Earth Colombia). Read the original in Spanish

The highest fiscal control body of the State (Comptroller) presented to the Monitoring Court an audit report about environmental aspects of the diversion of the Bruno stream by the Cerrejon Coal Mine, one of the largest open pit coal mines in the world, owned by BHP, Anglo American and Glencore. The Comptroller’s Office points out breaches of orders of the SU-698 of 2017 ruling from Colombia’s Constitutional Court, which orders the protection of the rights to water, food sovereignty and health of the Wayúu indigenous communities, rights that have been violated with the diversion of an important water source in the department of La Guajira.

According to audit results, the report obtained a final grade that corresponds to the rank of INEFFICIENT, finding a total of fourteen (14) administrative findings of which seven (7) have a possible disciplinary implication. Also, it was noted that these deficiencies impact on compliance with the sentence handed down by the Constitutional Court.

In fulfillment of its mandate to seek the proper use of public resources and goods, the control body evaluated the management of the Ministry of Environment and Sustainable Development, the National Authority for Environmental Licenses -ANLA, Corpoguajira, who among other public institutions form an “inter-institutional” Public Panel of which, absurdly, the the Company Carbones del Cerrejón Limited is part. The Comptroller’s report focuses on the deficient report presented by the entities and Cerrejón to justify keeping the Bruno stream diverted, instead of releasing the water into its natural course.

The Comptroller’s Office states that the report of the inter-institutional Panel deviates from what is ordered by the Constitutional Court, regarding the provisional measure, and there is no “strict compliance with what is required in the Sentence SU 698/17, as required by Order Eight.” In other words, there is no sustained and participatory decision on the part of the Inter-institutional Panel to keep the stream Bruno diverted, and this would mean contempt of what was ordered by the Constitutional Court.

It is important to recall that the Constitutional Court had foreseen that the measure of returning the waters to their natural course could be adopted if it was necessary from the environmental point of view and in application of the precautionary principle to maintain the integrity of the Bruno stream, while carrying out a study ordered in the Sentence intended to address 7 uncertainties that were not taken into account when authorizing the diversion and destruction of the stream.

In particular, the Comptroller’s Office makes a reservation about the lack of respect for the culture and spirituality of the Wayuu people. The report acknowledges that:

“Disregarding the rights of the communities brings with it an effect or impact on their culture and an underestimation of the spiritual relationship that the Wayuu community has, taking into account that their interaction with nature is not only due to being next to the Stream, but that interactions exist far beyond this; as they themselves put it, “the Wayuu people would break their roots and that communication that exists between those from the mountains and those from below”.

It is important to understand the people-ecosystem interaction as a whole, and not limit it to a space in itself, which demonstrates a lack of true knowledge of the natural territory and the ecosystemic benefits it offers. The Wayuu community understands the territory, taking into account cultural and spiritual elements, which implies that the stream is seen as “a living being, important in its entirety and not in fractions or sections.”

The audit also questions whether the decision to keep the Bruno Stream diverted was influenced to a high degree by a purely economic point of view, and in this way, questioned the rigor of the use of Cost Benefit Analysis as the most appropriate tool, taking into account ecological values that are at stake: “The ecological elements of a highly sensitive, divided and decimated ecosystem such as the Dry Tropical Forest, or in particular as the Arroyo Bruno with its structures and functions, have ecosystem services without substitutes for the communities. Which means that no matter how much you try to calculate its value from the perspective of the Market Economy, it will tend to infinity due to its immeasurable characteristics. These are higher values ​​that could hardly enter into the logic of a Cost Benefit Analysis.”

The administrative findings with possible disciplinary connotation account for the fragile environmental institutions, and prove the communities in their historical denunciation of the government’s business co-optation in public decisions that undermine rights and condemn populations while favouring multinational companies. An example of the above is synthesized by the Comptroller’s report, supporting what was reported on countless occasions by the communities:

1. It emphasized the seriousness of the fact that the Inter-institutional Panel had concluded not to return the water of the stream to its natural course and to maintain the diversion based on weak, superficial, deficient and partial information, without generating spaces for participation, nor considering the irreversible damage that this can mean the population that interacts with this ecosystem.
2. It stressed that the report presented to support the diversion of the Bruno Stream lacks information regarding the monitoring of the natural course, groundwater, aquifers, fauna and flora affected in the natural course.
3. It insisted that there is a risk of power asymmetry and possible moral risks with the information given that the development of the report of the Inter-institutional Panel is based on documents and information predominantly provided by the same Cerrejon Coal Mine.
4. It confirmed and reiterated that State Institutions and the Company have disregarded what the Constitutional Court ordered in terms of community participation.
5. It acknowledged that no compensation measures have been established by the company that really correct the impacts of the intervention in areas of great ecological value. This is impossible for the communities given the irreparable damage and the need to protect the stream from being exploited.
6. It reaffirmed that the report of the Inter-institutional Panel preferentially uses the information about the construction and operation of the artificial canal built for the diversion, leaving aside information on the natural course of the stream that was affected by the diversion.
7. It highlighted the non-observance on the comparative advantages and disadvantages of returning or not returning the waters temporarily to their natural course.
8. It questioned the fact that no observations were made to present and evaluate the environmental and social benefits of temporarily returning the flow of water to the natural channel section, such as the restoration of natural conditions and their benefits that have been lost.
9. It insisted that the needs and requirements of the communities were not taken into account to guarantee their right to water, nor was it related to the risks of possible depletion of local and regional water resources due to the diversion project and progress of the mining pits.
10. It stressed that nowhere in the report are the data on the water supply flows of the stream throughout the year in its lower basin or the data on the demand flows of each community. It is not clear whether these are supplied with the related sources or not. The ecological flow of the Arroyo Bruno is not defined either and what are the deficiencies or the conditions of water supply required for the communities.
11. It observed that with the construction of the new channel the modification of the hydrogeological system started and recognized that temporarily returning the waters to the natural channel implies the eventual restoration of natural conditions and the recovery of environmental benefits that were affected or lost with the diversion.
12. It recalled that Corpoguajira has failed to comply with the review, adjustment and / or modification of compensatory measures established to the Cerrejon Coal Mine, for the works related to the diversion of the Bruno stream, which had been identified by the Comptroller in an audit carried out in 2017.

What has been reported by the Comptroller supports what has been denounced by Wayúu indigenous communities, the Afro-Guajiro people, social organizations, environmentalists, academics and human rights defenders who for years have opposed the diversion of the Bruno stream to increase the exploitation of coal by the Cerrejon Coal Mine with the permission of institutions of the Colombian State.

The Bruno stream cannot be replaced. We will continue to raise our voices so that the disaster they have caused does not continue and that one of the tributaries of the main river in La Guajira, the Ranchería river, is not exploited and destroyed.