Representatives of indigenous communities presented constitutional claims against government authorities and a mining company (Cerrejón) for threatening their fundamental rights to water, food sovereignty, and health by diverting a 3-kilometer section of a stream (Arroyo Bruno) in order to expand coal-mining operations in an arid region of the Department of La Guajira in Colombia. The Court explains that, although the initial coal-mining operations were authorized in 1983, which makes them and subsequent modifications (including the proposed modification to expand operations by diverting Arroyo Bruno) exempt from the current legal framework requiring and governing environmental impact assessment (in accordance with the transitional legal framework contemplated in Law 99 of 1993), the impacts of the stream-diversion project have not been sufficiently assessed to guarantee the affected communities’ rights to water, food, and health. Considerations 5.1.3 & 5.2.5.
The Constitutional Court of Colombia determined that there are several uncertainties regarding the social and environmental impacts of the stream-diversion project and the potential threats they pose to the affected communities’ rights to water, food security, and health due to the authorities’ failure to adequately identify or estimate relevant variables before authorizing the stream-diversion project. Considerations 5.1.3 & 5.1.4.
Among the category it labeled “context conditions,” the Court listed four variables that should have been considered when evaluating the viability of the stream-diversion project: (1) the characteristics and conditions of the ecosystems in which the project is proposed; (2) the effects of climate change in the Department of La Guajira and the specific ecosystems of the Ranchería River watershed (which contains Arroyo Bruno); (3) the cumulative effects of past, present, and future projects, especially those affecting water bodies in Department; and, (4) the geomorphological conditions that underlie the original/natural and new/artificial streambeds. Consideration 5.1.3. See also Consideration 5.4.
Among the category of variables it labeled “ecosystem services”, the Court explained that environmental impact analysis should consider, as broadly as possible, the whole spectrum of direct and indirect services, “including regulation, stabilization and maintenance services, such as regulation of the climate and protection against droughts and floods, provision services, such as provision of biomass for crops and livestock and water for human consumption and energy, and cultural services, which allow, for example, tourism, scientific research, and religious activities.” Consideration 5.1.3 (unofficial translation, original emphasis). The Court determined that the environmental impact studies “underestimated all of these benefits, and failed to consider specifically the way that each of these would be impacted by the project.” Id. (unofficial translation). See also Consideration 5.5.
Among the third and final category of variables not adequately addressed before authorizing the stream-diversion project, “related to environmental impacts of the modifications to be caused by the diversion”, the Court highlighted three modifications: “(1) diverting the surface waters into a channel that lacks a riparian forest that traditionally has served to protect the water resource from evapotranspiration; (2) diverting the surface waters into a channel that has different geomorphological composition and lacks the aquifers that previously fed them; and, (3) diverting the surface waters into a channel of greater width, favoring evapotranspiration, as well as greater drainage of the stream downstream, reducing the volume upstream.” Consideration 5.1.3 (unofficial translation). See also Consideration 5.6.
Due to the authorities’ failure to adequately identify or estimate said variables before authorizing the stream-diversion project, the Court determined there are several technical uncertainties that threaten the rights to water, food, and health of communities that rely upon the Arroyo Bruno watershed and the ecosystem services it provides that satisfy their needs. Considerations 5.1.4 & 5.7.1.
Recognizing the Arroyo Bruno watershed provides important services, such as generating potable water for human consumption, and also recognizing the reduction and fragmentation of the riparian forest and vegetation will consequently reduce communities’ access to forest resources and edible plants, the Court explained that
“the greatest services that the stream provides to the communities . . . are related to the regulation and maintenance of environmental conditions, among them those associated with the control and regularization of the climate, humidity, and the composition of the atmosphere and the soil, all of which could be affected by the removal of the forest and the re-accommodation of the surface waters of the stream, … [T]he presence of the forest and the river, and the maintenance of the watershed, make possible the agriculture and husbandry upon which the non-mining-dependent communities are dependent, therefore, an impact in this regard could imply a threat to carrying out these activities and, thus, [the communities’] own food security.”
Consideration 5.7.3 (unofficial translation). Accordingly, the Court concluded that “the existence of these uncertainties about the environmental viability of the project to divert Arroyo Bruno constitutes a concrete, certain and direct threat to the rights to water, health, and food security and sovereignty of the communities dependent upon Arroyo Bruno.” Consideration 5.7.4 (unofficial translation).
In light of this conclusion, the Court upheld a lower court’s injunction suspending activities related to the stream-diversion project until the following orders are complied with by a judicially created Inter-Institutional Workgroup composed of governmental and non-governmental actors: (1) ensure the participation in said Workgroup of civil society and academic actors that intervened in the judicial proceedings; (2) identify and assess the uncertainties related to the stream-diversion project in order to establish the measures that should be adopted; (3) within a month of notification of this sentence, develop a detailed schedule of the activities to be carried out, as well as the specific actor responsible for carrying out each activity, in order to identify and assess the uncertainties related to the stream-diversion project; (4) in case the Workgroup determines the stream-diversion project is environmentally viable, incorporate the conclusions resulting from its technical study of uncertainties into Cerrejón’s Integral Management Plan so that Cerrejón adopts measures to prevent, mitigate, control, compensate, and correct environmental and social impacts. Considerations 5.8.3-5.8.7.
The Court ordered the National Ombudsperson’s Office, the Government Accountability Office, and the Attorney General’s Office to oversee compliance with the Court’s orders. Consideration 5.8.8.
The Court also authorized the Workgroup to order the restoration of the flow of Arroyo Bruno’s surface waters to its natural streambed while the technical study of uncertainties is being carried out, if the Workgroup considers it necessary to do so in order to preserve the integrity of the river in light of the precautionary principle. Consideration 5.8.5.
Regarding the order to ensure participation in the Workgroup, the Court explained:
la Corte entiende que la intervención de las comunidades indígenas en el debate constitucional no sólo tiene por objeto garantizar su derecho a la participación, sino que esta también es instrumental al objetivo de determinar los efectos ambientales del proyecto de desviación del arroyo, teniendo en cuenta el conocimiento ancestral del entorno natural, por parte de estos grupos.
Lo propio puede advertirse con la intervención de las instancias técnicas y académicas que se integraron al proceso judicial, las cuales alimentaron un debate que hasta antes de la interposición de la acción de tutela parecía resuelto, al menos desde el punto de vista ambiental. …
De este modo, la Corte considera que la participación de estas instancias es indispensable para garantizar la existencia de un auténtico debate abierto, amplio y diverso sobre la viabilidad ambiental del arroyo, que en el que supere una visión unidimensional de la problemática. Así las cosas, la Mesa Interinstitucional deberá dar participación a las comunidades y a los demás intervinientes en el proceso judicial, para que hagan parte activa del debate que debe estructurarse en su interior sobre las incertidumbres ambientales identificadas en este proceso judicial.