Project
Photo: Alberto Peña KayProtecting the Santurban Páramo from mining's damages
In the Andean region, high-altitude forests and wetlands called páramos capture water from fog and supply it to lowlands. In Colombia, nearly two million people rely on the Santurbán páramo for their freshwater supply.
Healthy páramos also capture large amounts of carbon, mitigating climate change, and provide refuge for hundreds of threatened species, including the iconic spectacled bear.
The land in and around the Santurbán páramo contains gold and other minerals. A Canadian corporation, Eco Oro minerals, wants to build a gold mine that would leak large amounts of cyanide and arsenic into the water coming from the páramo.
AIDA’s advocacy helped to convince the Colombian government to:
- Deny an environmental license for the Angostura mine in May 2011.
- Protect, in 2013, 76 percent of the Santurbán páramo from industrial activities—a much larger percentage than originally proposed
Together with our partners, AIDA advocated for the World Bank's divestment from the Angostura mining project, which we achieved in December 2016.
We also supported litigation that led Colombia’s highest court to reaffirm in February 2016 that mining in páramos is prohibited.
However, 24 percent of the Santurbán remains unprotected because it was not officially designated a páramo during the government's delimitation process, which was invalidated by a court system in November 2017 due to failure to consult with affected communities.
The government must now realize a new delimitation process in consultation with residents of the area. Meanwhile, the threats to Santurbán continue, with Eco Oro still angling to build its mine and another mining project seeking establishment nearby.
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International Arbitration Tribunal rules in favour of a Canadian company and puts foreign investment above Colombia's legitimate right to protect Santurbán
Bucaramanga, Bogotá, Washington, Ottawa. National and international civil society organizations are widely rejecting the decision made by the International Centre for Settlement of Investment Disputes (ICSID) on September 10 in the case of Eco Oro v. Colombia, for at least three reasons: we consider that (i) it is inconsistent and reflects a profound ignorance of the socio-environmental complexity of the case; (ii) it is the result of an unfair and widely discretionary investment arbitration system that allows for arbitrary decisions made by those who oversee these cases and, (iii) increases the risk of further arbitrations being brought against the State of Colombia at the ICSID. ICSID is one of the institutions responsible for resolving disputes between States and international investors — in this case, within the context of the Canada-Colombia Free Trade Agreement. In the case of Eco Oro v. Colombia, the ICSID Tribunal concluded that, although the protection measures of the páramos adopted by Colombia were legitimate and did not constitute an expropriation of the rights of the Canadian company Eco Oro, its actions in the delimitation of the Páramo de Santurbán did violate the “minimum standard of treatment” to foreigners. The Tribunal has yet to decide on compensation for damages to Eco Oro and has asked both parties for more information to inform its decision. The Tribunal’s decision was the result of a process initiated by a supranational arbitration claim filed by the Canadian company Eco Oro against Colombia in 2016, which questioned the decisions made by the Colombian government to protect the páramos — the natural source of water for 70% of inhabitants. The Canadian investor [Eco Oro] intends to construct the Angostura gold mine in the Santurbán páramo, located in the northeast of the country. An inconsistent decision that ignores the socio-environmental complexities of the case. The majority of the Tribunal held that the decisions made by the Colombian government were in accordance with Colombian national law and were made with the legitimate aim of protecting the environment. In addition, the Tribunal recognized that the páramos are being threatened by both human intervention and climate change and that the possibility of their recovery from mining activities is very low, which is why it is necessary to protect them. As a result, the Tribunal rejected Eco Oro’s argument that the precautionary principle was not applicable, and pointed out that the Santurbán case was an example where it was, in fact, relevant. This was the grounds for rejecting one of Eco Oro’s claims that its rights had been indirectly expropriated by the State of Colombia. On the contrary, the Tribunal found that the measures adopted by the country were a legitimate exercise in environmental protection. However, when examining a second claim, the Tribunal explained that the inconsistency, hesitation and inaction of the State of Colombia in the delimitation of the Santurbán páramo had thwarted Eco Oro's investment expectations without any “apparent legitimate justification,” and had therefore not granted the investor "fair and equitable treatment" in accordance with the "minimum standard of treatment" for foreigners. This last ruling of the Tribunal is inconsistent. It ignores the socio-environmental complexity of the case and the challenges of materializing the right to environmental participation within the process of delimitation of the páramo. Although the decision recognizes that the delimitation involves managing widely disparate interests throughout the process, in the end — in a ruling far removed from the reality of Santurbán and its communities — the Tribunal took this process lightly, dismissing its complexities, and appears to have not taken it as legitimate and sufficient justification. An unpredictable, limiting and unfair arbitration system. "The Tribunal's decisions are not predictable, since decisions in one case do not bind future rulings on environmental issues. There is no precedent set, as traditionally understood in the system. The breadth of the clauses and the arbitrators' freedom of interpretation are excessive, which is problematic not only for Colombia but for all countries in the region," said Yeny Rodriguez, a lawyer with the Interamerican Association for Environmental Defense (AIDA). This decision allows mining investment to prevail over the Colombian State's obligation to protect the environment and the water of Colombians. We question the fact that the Tribunal has made its decision but has not judged the lack of due diligence by the Canadian company who knew from the beginning that its mining project overlapped with a páramo zone — a sensitive ecosystem protected by national law. This case demonstrates the arbitrary and overreaching nature of the supranational arbitration system, and the way in which it disciplines and punishes the governments of the Global South. It’s worth remembering that in February 2019, the Tribunal rejected the possible participation of the Santurbán Committee in the process. Uncertainty for Colombia. Carla García Zendejas, Director of the People, Land and Resources Program of the Center for International Environmental Law (CIEL) stated, "The legal uncertainty that the supranational investment arbitration system represents for Colombia is enormous. The high levels of arbitrariness that characterizes the system leads to penalizing States for any circumstance in which expected profits are affected. And this is especially critical for Colombia, as there are other lawsuits against the country resulting from extractive projects linked to Santurbán and other fragile ecosystems. This could mean a domino effect of lawsuits and heavy penalties against Colombians." Two other lawsuits are currently underway before ICSID against the country by Canadian mining companies — Red Eagle Exploration and Galway Gold — for measures taken to protect the Santurbán páramo. There are also other lawsuits filed by Cosigo Resources, South32 Investments Limited, Gran Colombia Gold, Glencore International and Anglo American in connection to other extractive projects. We call on the Colombian State to denounce the free trade agreements and bilateral investment protection agreements to which it is party and to refrain from signing such instruments in the future. It is for these reasons above that today the Comité para la Defensa del Agua y el Páramo de Santurbán (Committee for the Defense of Water and the Páramo of Santurbán) is holding a day of protest in front of the Canadian Embassy in Bogotá, demanding that ICSID respect their legitimate fight for the defense of water, Santurbán and the páramos of Colombia. Likewise, we are also in front of Congress, demanding that the Investment Protection Agreements with the United Arab Emirates-Minesa be rejected. press contacts Comité para la Defensa del Agua y el Páramo de Santurbán, [email protected], +57 3012080622 Carla García Zendejas, Center for International Environmental Law (CIEL), [email protected], +1 202 374 2550 Yeny Rodríguez Junco, Interamerican Association for Environmental Defense (AIDA), [email protected], +57 3107787601 Jamie Kneen, MiningWatch Canada, [email protected], +1(613) 761-2273 Manuel Pérez Rocha, Institute for Policy Studies, [email protected], +1 240 838 6623
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Colombia: Holding virtual hearings violates communities' right to participation
In the context of the pandemic, and since the beginning of Colombia's obligatory isolation, businessmen have asked the Colombian government to "simplify environmental procedures." On April 3, 25 entrepreneurs sent a letter to President Iván Duque asking for the simplification of processes including prior consultation, environmental licenses and royalities. One of the first measures undertaken was the attempt to simplify the prior consultation, proposing to make it virtual. In response, indigenous communities and the Ombudsman's Office requested that the Ministry of the Interior respect human rights and reverse the measure, which it did. However, the quest to change the way consultations are conducted continues. At the request of the Ministry of the Environment, the National Environmental Licensing Authority (ANLA) is promoting several virtual environmental hearings, even proposing they be held on radio and digital platforms such as Facebook and YouTube. These are hearings to address key environmental issues in the country. The problem is that communication on these platforms is unilateral, denounced the organization DeJusticia, thus eliminating the possibility of discussing technical issues, and presenting an obstacle for those with limited access to the Internet. On April 13, 2020, ANLA issued Resolution 642, which opened the way for virtual participation processes. Days later, the licensing authority scheduled a virtual hearing to discuss a very important issue for the region: the return of aerial spraying with glyphosate, a toxic herbicide. The hearing, scheduled for May 27, was intended to address the modification of the glyphosate environmental management plan. But, thanks to a legal action, on May 18 a judge from the department of Nariño suspended the hearing. As evidenced, there exists an ongoing intention to carry out similar proposals during the pandemic. Many have been halted by the early warnings of citizens, judicial actions or statements by control authorities. On 20 May, the Administrative Court of Santander ordered the Ministry of the Environment to plan virtual working groups. It has also called for a virtual public hearing on the Santurbán páramo, where a mega-mining project threatens to harm this strategic ecosystem, which is vital for local water supply and the mitigation of the climate crisis. Holding virtual hearings implies a damage to the rural, indigenous and urban communities affected by a project, and to Colombian society in general. In addition to being in the midst of the worst crisis in recent history, these communities lack access to the internet and the basic necessities that could guarantee their virtual participation. In Colombia, and across the region, the rights of access to information, justice and participation are among the most violated. We must stand at high alert so that the pandemic does not become an excuse to continue abusing them. All remaining proposed virtual proceedings must be immediately suspended, until there exists guarantees for the due exercise of the right to participation and the exercise of national and international oversight in these matters.
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Coal or life: Walking where a stream once ran
The appointment was on a hot Sunday in July. Together with Wayuu indigenous and Afro-descendant communities displaced by coal mining, members of social and human rights organizations, employees of Cerrejón, and government officials, I walked for more than five hours over the barren land where the Bruno Stream once ran. What I saw in my path were the remains of snails that died of thirst, stuck to the mud, and the lifeless body of a tigrillo that showed us so clearly what mustn’t happen again. The Bruno is a vein of water that once irrigated the department of La Guajira, located in Colombia’s far north, a region hit years ago by extreme drought. It is a major tributary of the Ranchería River, one of the department’s most important water sources, and forms part of the underground water systems that have long given life to the region’s communities. It was painful to walk where the Bruno once flowed free, and to think—while doing so—that what is now a dry riverbed was once abundant with life. That Sunday, we also toured the area intended to be the artificial channel of the stream. In 2014, the National Environmental Licensing Authority authorized Cerrejón to divert 3.6 kilometers of Bruno’s flow to favor ongoing coal exploitation in La Guajira. Several things made on impact on me that day. One of them was that, although the rivers belong to us all and natural water sources are public, we were accompanied the entire time by employees of the company. While walking the stream, we entered the land “owned” by the coal-mining concessionaire. Communities that used to travel freely along the banks of the stream can no longer do so today. Although the Bruno is one of few streams in Colombia’s driest department and one of the scarce sources of fresh water for communities living there, its channel was clogged and diverted to facilitate mining. An engineering project has altered one of the most important streams for a thirsty region and created an artificial path through which not a single drop of water flows. “If they carry water, they’re rivers; if not, they’re roads,” a verse from Guatemalan indigenous poet Humberto Ak’abal teaches us. The new “channel” of the Bruno is not a river, but “a barren road” attesting to the deterioration of a sensitive ecosystem. The “road” does not recover or mitigate the damages from the stream’s diversion. On the contrary, it produces new ones. The world is facing a climate crisis, and coal mining is one of its primary causes. While many countries are replacing the use of coal in their energy matrices with cleaner options, Colombia has decided to dry up a river to exploit more and more coal. Walking paths of justice The day after the walk, the frustration of the absurd did not prevent me from embracing a glimmer of hope. On Monday, I joined representatives of indigenous communities and local organizations at a public hearing convened by several Congressmen to discuss what happened with the Bruno. The strength and dignity of their words, in which decades of resistance were encrypted, fed my soul. “This territory is ours, our rivers are our life and we care for life—for our children, for our present, for our future and that of the world.” As it has done many times before, La Guajira spoke to the country and the world. They told the Congressmen that it’s not possible to prioritize the use of water for mining over human consumption. They warned that the country must transition to an energy production that doesn’t cause the damages that coal mining has to the climate, human rights, and the species and ecosystems that sustain us. The stream must return to its channel, the snails must drink again from its waters, and no tigrillo should die due to the intentional destruction of its natural habitat. In a 2017 ruling, the Constitutional Court demonstrated that uncertainties exist as to the environmental and social impacts of the Bruno Stream riverbed modification project. The Court ordered the creation of an Inter-Institutional working group to resolve the complaints of the affected people. Communities will continue to demand compliance with that ruling and demonstrate that the uncertainties are, in fact, certain damages that will continue to undermine their lives. AIDA, along with our partner organizations, will continue to accompany this struggle to demonstrate the harms of coal mining and promote clean alternatives that respect both people and the environment.
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