Colombia: Multinationals and Indigenous People Part I – The Wayúu

Written by Daniel Edgar exclusively for SouthFront

The following is a translation of a report concerning recent developments affecting the Wayùu people, as well as an interview with one of their leaders. The Wayúu are an Indigenous people whose ancestral territories are located in the province of La Guajira in the far northeast of Colombia (and northwest of Venezuela).

The Wayúu have managed to maintain their culture and occupancy of a large part of their ancestral territory despite over 500 years of colonization that has constantly sought to take over their lands, maritime territories and resources, and incorporate (enslave) the inhabitants into the colonial (globalized) systems of ownership and production. However, the threats to their continuity have only intensified with the passage of time; most recently (since the 1980s) a huge open-cut coalmine (‘El Cerrejón’, jointly owned by Anglo American, Glencore-Xstrata and BHP Billiton since 2002) has expropriated a significant portion of their territory and had devastating social, economic and environmental consequences for the communities in the region.

The facilities and infrastructure that make up the mining project of El Cerrejón include a 150 kilometre railway line to the port that exports the coal (Puerto Bolivar), several airports and roads as well as other major industrial, commercial and residential facilities, all owned and operated by the consortium. The complex also includes large swathes of adjacent land in the region, acquired by the systematic expropriation and in some cases forced displacement of local communities and farmers combined with the purchase of ranches and other properties; in total the companies hold title to approximately 70,000 hectares of land.

In particular, the coal mining operations have diverted the principle river in the region and the project uses enormous quantities of water in its daily operations, which it receives on a priority basis. The result is a substantial reduction in the quality and quantity of water available to the inhabitants in the region for domestic and agricultural purposes (a very arid climatic zone), as well as for the survival of the natural ecosystems that have traditionally provided abundant amounts of natural resources. Exacerbated by the loss of access to traditional territories, natural resources and employment caused by the mining project, the ongoing social and armed conflict in Colombia and endemic poverty in which the Indigenous peoples and their territories continue to suffer disproportionately, the Wayúu are facing one of the most difficult periods since the onset of European colonization over 500 years ago.

A recent judgment of the Constitutional Court (discussed in the interview below) denounces numerous violations of the rights of the Wayúu people by all levels of the Colombian State (national, provincial and municipal) and the consortium that owns El Cerrejón. This is the third time that the highest courts of the country have declared such violations of the rights of the inhabitants in the region.

Both of the earlier legal proceedings resulted in decisions in favour of the residents of the communities involved. One case was decided by the Colombian Supreme Court on the 7^th of May 2002 concerning the expropriation and forced displacement of the community of Tabaco by security personnel deployed by the companies and the government in 2001. The other case (Sentencia T-528, pronounced on the 18^th of September 1992) was initiated in the Constitutional Court by the residents of Caracolí and Espinal, two other communities displaced due to the expansion of mining. In both cases the court found in favor of the residents and made specific orders to resolve the grave breaches of the constitutional and legal rights of the residents that have occurred, but in each instance the companies and successive Colombian governments (municipal, departmental and national) have failed to comply with most of the measures specified in the court orders.

In separate proceedings, communities affected by successive expansion phases of the mining project applied to the National Contact Points in the home countries of the multinationals that are members of the OECD (Australia, the United Kingdom and Switzerland) pursuant to the OECD guidelines for foreign investors seeking respect for their constitutional and human rights and that the companies comply with all relevant national and international laws and standards. The judgments of the Supreme and Constitutional Courts and the OECD review procedure are discussed in more detail in a previous report by the author (Daniel Edgar, 2015).

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630 days of resistance by the Wayúu Nation in La Guajira: Katsaliamana Resists.

The attacks continue against leaders of the social movement ‘Wayuu Nation’

By Olga Mendoza, Kanuliaa Jieru Organization

So far in 2018, Mr. José Silva, president of the Wayúu Nation movement, has already been the victim of three attempts on his life. At the same time, our comrades Matilde López Apshana and Ramón Viecco have also suffered assassination attempts. The response of the State has been to remove the few inadequate measures that were previously provided by the Unit of Protection to some of our companions, considering that there is not enough PROOF that their lives are at risk.

For almost two years, the Wayuú Nation Indigenous Movement has been constructing a process of resistance in the Katsaliamana region, where they seek respect for their rights to prior consultation in the administration of State resources for early childhood care by the Colombian Institute of Family Welfare. This situation arose as the movement became aware of the large amounts of money that were given to the operators, contrasting with the malnutrition conditions that prevail in the area. Despite the resources provided, the economic, social and environmental crisis persists. There are multiple causes, among the most important of which are:

1. Mining activity in the region, which has altered the traditional methods of subsistence and water supply of the inhabitants in the region (communities report that more than 26 water sources have dried up and been contaminated by mining activity). All this has led to a breakdown of the social fabric, which has led them to seek assistance and has created a dependence on the State and other organizations, significantly reducing their autonomy as a community.
2. The dam ‘El Cercado’, which was constructed with promises to bring water to nine municipalities in the region. The communities have been waiting in vain since 2010, the year in which the dam was finished, for the second part of the project (aqueducts to bring the water to the communities) to be carried out. Instead, this water is being used for irrigation, violating the fundamental right of the communities to water, who should be the first to have access to the vital liquid. At the same time, according to allegations by the journalist Gonzalo Guillén, the dammed water also serves the interests of the multinational El Cerrejón, who uses it to suppress coal dust during mining operations.
3. State corruption: that allows royalties to disappear and ensures that those involved are not held accountable for their disappearance.

The Constitutional Court in its judgment T 302 of 2017, declares a STATE OF UNCONSTITUTIONALITY IN LA GUAJIRA, and demands that the State immediately rectify the violations of the constitution that have produced a crisis for the Wayúu, by guaranteeing access to water, and elaborating a structural solution to the dramatic situation that this ethnic group of the country is experiencing. It is October of 2018, and the situation continues with no change to the conditions that have also been denounced by the Ombudsman’s Office, the Inspector General’s Office, and various investigators, journalists and activists since 2014.

All these factors are affecting communities to the point of generating large numbers of deaths due to malnutrition of minors (in the course of 2018 the communities report more than 60 cases, without counting the children who live with this scourge without dying). The WAYUU NATION movement has participated extensively in legal processes and accompanied the communities in defence of their fundamental rights in these issues, yet the response has been the numerous attacks, kidnappings and murders that their leaders have experienced.

“The resistance continues, and the corresponding complaints will continue to be raised, until all the judgments, laws and other constitutional and institutional mechanisms for the reinstatement of the rights of the Wayuu ethnic group in the department of La Guajira have been implemented, overcoming the crisis to which we have been subjected as an ethnic group. We do not want state or organizational assistance. We want our autonomy again, and that is why we will continue fighting. We will continue to denounce the situation at the national and international levels, where our voices have begun to have strength, and where the support of organizations gives us the courage to continue”. This was expressed by a spokesman of the movement reacting to the continuing violence that they must endure.

630 days of resistance in Katsaliana

Interview with José Silva, a leader of the social movement Wayúu Nation and organizer of the judicial fight waged in numerous institutions of the Colombian State

By Olga Mendoza, Kanuliaa Jieru Organization

On June 7, 2018, 540 days of peaceful resistance were commemorated in Katsaliamana, from where the Wayúu Nation movement has been created and strengthened, integrating more than 100 ancestral authorities and a multidisciplinary group of lawyers, psychologists, anthropologists, economists, social workers and chemical engineers, who have been working with their own resources and voluntarily, elaborating legal actions and protests for the defence and vindication of their rights to their territory, water, autonomy, prior consultation and rehabilitation of the environmental, social and cultural damage that they have suffered during 40 years of exploitation of the El Cerrejón mine, which annually produces 34 million tons of coal, and which is owned by the multinationals BHP Billiton, Glencore and Anglo American.

In an interview with José Silva, leader of the movement and manager of the legal struggles before the different institutions of the Colombian State, he told us about the main advances, the results obtained, and the challenges and goals that remain.

K.J: Last March 5 you received a visit from the Attorney General evaluating the current situation in the province. Also in April, ‘Operation Guajira’ was announced by the ICBF (a Colombian State agency). Are the public reports that resulted from these visits available, and what are the commitments that the State has made to resolve the crisis that still continues today.

J.S: Unfortunately there is no official and updated report that allows an independent assessment of the situation of the communities. There have been a series of visits by State officials including the Attorney General, and recently ‘Operation Guajira’ was announced, pursuant to which 600 officials were deployed to different communities between April 3 and 18 of this year. The reality is that children continue to die in front of a State that does not stop generating reports, giving figures and promising solutions. However, the situation has not changed since it was first recognized internationally and reinforced by the protective measures that the IACHR ordered the Colombian State to adopt in 2015. Despite the various reports, the situation persists, and it continues to be evaluated without decisive actions to resolve it. They come, take pictures, give water, wellness (food supplement) packages, and promise the same promises. The last one was: ‘This plan of attention will reach some 4,000 families, belonging to 240 indigenous communities, who will be offered the institutional offer with differential focus that the ICBF has, to work hand in hand with the communities and jointly build processes of attention that guarantee the integral protection to the boys and girls of the communities respecting their traditions and their culture’.But the State has made similar commitments with the communities since 2013, when the Auditor General released a report on the crisis, then the Ombudsman’s Office, and in 2016 the Inspector General’s Office, from which a series of immediate recommendations were generated to resolve the multiple crises. All of the recommendations remained on paper, and here we are waiting for them, five years later and counting, and generating additional legal actions, both nationally and internationally, to be given due compliance.Tired of so many visits and reports generated by the State, we saw the need to create an autonomous initiative that we have called Truth and Reality of Wayúu children, as a counterpart to the ‘Operation Guajira’ of the ICBF. We began to visit the communities and to generate press releases and reports that allow us to document the violation of the fundamental human rights suffered by our children. We were already in the communities of Alijotes, Remedios, Patagonia, Montep and Triyachón, where we found more than twenty children in a state of malnutrition, and without timely or differential attention from the ICBF.From these visits arises the determination not to be part of the problem but rather to be part of the solution, so we selected 10 communities that have the gift of experienced farmers, and to whom Mr. Ramón Vieco, leader of the movement, gave the land that was available and they went to plant. There are already 3 hectares of yucca, next to the river Tapias, which aim to generate a means of subsistence in accordance with our traditions.It must be understood that in La Guajira there has always been the problem of the scarcity of water, but before the communities knew that the seasons clearly existed, and that from April to June there was rain, filling the traditional reservoirs and other sources of water. Then we had water. People prepared their gardens, their farms, and they cultivated beans, corn, yucca, and raised animals. There were still sources of water that were reserved for the subsistence of the animals and for consumption and planting, there was no alteration in the modus vivendi. Then the climate began to change, compounded by the construction of the El Cercado dam, whose second stage, which promised to bring water to 9 municipalities, never arrived. We have been waiting for this solution since 2010, which means that, in these nine municipalities, more than 300,000 people do not have access to the vital minimum of water. This has led to the deaths of children, adults, our animals and our gardens.Previously we as Indigenous people did not pay attention to the State programs because we produced our food since we had water.In addition, three ports operated, where ships with merchandise from different parts of the world docked, arriving in Maicao as a free port and generating more than 5,000 jobs, mostly indigenous. There was food. For Uribia and Manaure there was the salt mine, which was also managed by the indigenous Wayúu, who processed and sold it. Then we had the royalties of the coal, but they did not pay attention to them, because we lived from the commerce and our orchards and animals. But the State removed the administration of the royalties, and between Pastrana and Uribe (Colombian presidents during the 1990s and 2000s) closed the ports of upper Guajira, and delivered the administration of the salt mines of Manaure to ‘Big Group’. When the government interrupted these sources of work and employment, the problems began. On the other hand, the producers of rice, tobacco, yucca, corn, which were concentrated in the municipality of Matitas, had to stop planting, because now everything is brought from outside at a lower price. For this reason, the ICBF was not previously paid attention, because the indigenous inhabitants had food, and did not need health care because there were traditional methods of subsistence, health care and treatment. Formerly, in terms of education there were two boarding schools that provided excellent services in the region, but then the government commercialized education. When education is commercialized, schools begin to have a war of interests, and that has generated disputes between clans.When all our old methods of survival were altered, that’s when we started to complain to the State, having no alternative. We realized that the ICBF had been administering billions of pesos that the State has turned over to that agency and we perceived that corruption means that this money has not been seen by the communities. Cerrejón, for their part, tells us: ‘We are paying, we give the royalties to the Colombian State.’ That may be true, but we remain trapped between the impacts of mining and corruption and State abandonment.In the midst of this process, it is worth highlighting the support we have received from Richard Moreno, Ethnic Delegate Procurator, who has helped us in understanding and meeting the requirements of the ICBF, and whose assistance has enabled services to arrive in 30 communities up until June 30 (on that day the existing contract ends due to the change of presidents). Also, we managed to have a meeting with the Inspector General on June 15 to obtain commitments regarding issues that violate human rights: health, education, the environment, early childhood, and water.K.J: At the end of March, you started a historic series of reconciliation meetings with Cerrejón, in compliance with sentence T 302/17 (of the Constitutional Court) pursuant to which the company must engage with the Wayúu people in the reparation of social, cultural and environmental damages caused by coal mining and related activities and infrastructure in the region. What are the concrete commitments that the multinational has agreed to with the communities and how has it been reflected in progress in plans, programs and reparation projects?J.S: Fortunately the dialogue is flowing. The delegates are conducting visits to determine if the communities are inside or outside the area of ​​influence. They are going to implement a baseline study in July to identify the communities where the process of prior consultation and the repair of the damages caused by the mining activity will be carried out.At this moment, they are geo-referencing those affected and those who are outside the baseline study area, to assess the indirect effects. Theis will be done in a coordinated manner with the members of the movement. They will go to all the communities within the area of ​​influence. 100 communities at least will be visited, accompanied by the Wayúu Nation. The results of this baseline study are those that we are going to bring to the table to be discussed in the framework of the prior consultation, therefore this meeting has a legal nature. We ask for and we are confident of receiving national and international accompaniment with respect to the implementation of the advances and commitments on the part of Carbones El Cerrejón in the creation of an action plan to guarantee the fulfillment of this sentence, that initiates the process of rehabilitating the damages caused in the communities by the impacts of mining activities.KJ: In the past few days you had a formal dialogue with the ICBF, where the State would commit itself to conduct prior consultation in the allocation of the operators for the quotas for early childhood care, but as we have seen in the comment in social networks, the State failed to attend the meeting. What legal implications does this have, and what are the actions that you are willing to undertake?J.S: On 23 January 2018, the Superior Court of Riohacha ordered the ICBF to consult 52 communities concerning the means for service provision and attention, which means that the communities must participate actively in the choice of operators, what the children should eat, who should attend them, and the Indigenous foundations that they want to choose in the framework of the differential approach. On the 16^th of April, the Ministry of the Interior through the office of prior consultation installed the consultation procedures, attended by the ethnic procurator, national and regional ICBF where they committed to comply with a methodological route in 8 days. It is the backbone of the process. They were responsible for running all the logistical expenses to be able to start that methodological route, but they failed to comply with the first meeting scheduled for this on the 5^th of June. On that day, the workshop on measures and impacts was to take place, and the agreements were to be formalized. Automatically they are in contempt in court. The ICBF violated the legal process by not participating in approving the methodological route. They obstructed the process. They are procrastinating. As long as they do not approve the elaboration of procedures, they can not be commenced, which causes them to commit a fraud by judicial resolution and prevaricate by omission, which are criminal offenses. What is coming is the presentation of the denunciation for contempt of court and the criminal complaints before the Attorney General’s Office and the Inspector General’s Office. K.J: By various means of communication you have denounced the constant threats, attacks and assassinations against leaders of the movement or leaders of other movements that have requested the reparation and restoration of their fundamental rights as an ethnic group. What kind of protection have they received in this regard from the State?J.S: As a result of the criminal and disciplinary complaints that we have been leading as a movement since 2016, a persecution has been launched, with the aggravating circumstance of systematic attacks against the integrity of the different leaders. The requirements have been presented before the State agencies, but there has been no effective and permanent protection for the leaders of the movement.K.J: On the 7^th of June, 540 days of resistance by the Wayuu Nation movement in Katsaliamana were celebrated. What are the achievements and what are the challenges that you face as a movement today?J.S: One of the topics that can be taken as an achievement is the series of dialogues and negotiations that was established as a historical event on the 15^th of March with El Cerrejón, where the issues of relations between the multinational and the communities of the Wayúu Nation are currently being discussed. For its part, the Colombian State through its institutions such as the ICBF (Colombian Institute of Family Welfare), DPS (Department of Social Prosperity), and different ministries, do not recognize the fundamental rights of the Wayúu Nation as Indigenous people. The State’s responsibility with respect to the crisis is enormous, especially concerning access to water, health, and education. We perceive the exhaustion of the judicial mechanism of the nation, where the different courts have ordered the State to resolve the crisis, and even the precautionary measures issued by the IACHR, but due to conflicting political and economic interests, the State has disregarded the courts’ orders.K.J: What is the support that you request as a movement from other organizations, human rights foundations and environmental movements generally around the world for the continuation of the struggle and the achievement of your objectives?J.S: We ask for accompaniment and awareness raising, support to continue this fight and resistance and to bring our case before the criminal courts, and in due course the European Parliament, to denounce the violations of the human rights of the Wayúu people, supported by the international agreements to which Colombia is registered.

Original Report in Spanish

Olga Mendoza, 2018, “Ya van 630 días de resistencia de la Nación Wayúu en La Guajira”, Organización Kanuliaa Jieru, Reproduced by Resumen Latinoamérica 3 Octuber 2018