Cerrejón responds to a report from the NGO colectivo de abogados Jose Alvear Restrepo

July 14, 2023. On November 2022, the NGO Colectivo de Abogados José Alvear Restrepo (CAJAR) published the report “When impunity becomes landscape: 12 examples of corporate impunity of coal multinationals in La Guajira”, seeking to call “on the national government to comply with the constitutional mandate to defend life and human rights above profits, and to be consistent with its commitment to decarbonization and energy transition that respects human and nature rights”.

With the objective of contributing to inform the public and contextualizing the complex issues relating to the sustainable development of La Guajira, we would like to provide clarity on some of the inaccuracies and accusations found in the report.

Initially, we would like to take this opportunity to mention that Cerrejón is respectful of Colombian legislation and its institutions and is committed to complying with regulations and rulings. Therefore, it is important to clarify that the accusations directed at government institutions regarding their responsibility to protect human rights and to carry out rulings, studies, and reports are outside of Cerrejón´s responsibility, for which it considers necessary to consult with Government authorities.

Our respect for human rights is a significant part of all our activities. This commitment is formalized in our Human Rights policy, published for the first time in 2005 and reformulated in 2011 to align with the United Nations Guiding Principles on Business and Human Rights (UNGP), as well as in our Social Management Policy. In this process we have been continually implementing standards, such as the Voluntary Principles on Security and Human Rights, the International Finance Corporation performance standards, and the Sustainability Framework from the International Council on Mining
& Metals (ICMM), among others, and we have a system to ensure compliance through internal and external oversight.

In accordance with these principles, we carry out our legal and social obligations in a responsible and diligent manner and seek to add value to our stakeholders and the communities in our area of influence in the pursuit of their own objectives, including the sustainable development of La Guajira with respect for human rights.

EIn regard to the 12 cases mentioned in the report we would like to mention the following:

1. Status of Ruling of the Constitutional Court T-704 of 2016

We firmly reject the claim that we have been “carrying out prior consultations without the consent of the community and the evasion of a binding and decisive character, which continues to deny their real participation.”

In compliance with the stipulations of Constitutional Court Ruling T-704 of 2016, we are carrying out the consultation processes and implementing the compensations and projects agreed upon. The challenging task of carrying out consultations with over 400 indigenous communities and afro descendants required the company to make the appropriate preparations, that were slowed down caused by the pandemic. However, once activities were resumed in 2021 significant progress has been made. As of June 2023, 309 agreements have been formalized with indigenous communities in our area of influence, and 42 others are in progress. In addition, Government authorities have formally
closed 203 consultation processes, after delivering the mitigation and compensation measures agreed. As of June 29th, 2023, over 1,993 projects have been implemented in 7 lines of investment: Infrastructure for water solutions, Infrastructure for education, Infrastructure for basic sanitation, Income generation projects for communities, Infrastructure for general community benefit, Cultural protection projects and Support for educational tuition.

Cerrejón is aware of its responsibility to comply with the legal requirements established in Ruling T-704 but also considers these consultations as an opportunity to the generation of social value. The signing of these agreements and the implementation of agreements led by communities themselves is the result of a joint effort to generate trust and promote the conservation and wellbeing of these ethnic groups.

Cerrejón is respectful of the decision from these communities to count with the legal and technical advice of their choice during the process These consultative processes are accompanied by local, regional, and national guarantors, as well as by control agencies, who attend the meetings summoned by the Directorate of the National Prior Consultation Authority of the Ministry of the Interior.

Within the framework of its own projects and/or compliance with court rulings, Cerrejón has participated in consultation processes that have been aligned with the guidelines of Convention 169 of the International Labor Organization, Law 21 of 2001, the ICMM Position Statement on Indigenous Peoples, the 2012 IFC, the United Nations Declaration on the Rights of Indigenous Peoples, Presidential Directives 1 of 2010, 10 of 2013 and 8 of 2020 and Colombian constitutional jurisprudence.

2. Status of the partial diversion of Bruno Creek. Ruling SU-698 of 2017

We celebrate the opportunity to share the way this project was carried out and the accomplishments it has achieved. Five years after carrying out the modification of its channel, the Bruno Creek has become a biodiversity corridor with more than 390 species of fauna and thousands of trees belonging to more than 70 native species of tropical dry forest.

The Bruno Creek, a seasonal waterbody that reduces its flow during the dry seasons of the year, is 22 kilometers long and is the sixth tributary of the Ranchería River and the eleventh body of water in the department of La Guajira in order of importance. The diverted section is 3.6 kilometers long, which was moved to a maximum length of 700 meters to the north, with respect to the original channel.

Since the new channel began to operate, water (surface and underground) monitoring has been carried out in the area and, according to IDEAM data, it has been confirmed that the amount of water that currently flows is equivalent to that which used to flow in the old channel prior to the modification. In addition, it is evident that there is no impact on the
groundwater or surface water of the stream basin. Flora and fauna monitoring has also demonstrated the presence 380 aquatic species, 46 fish species, 66 ant species, 42 dung beetles, 125 butterflies species, 19 amphibious species, 46 reptiles species, 218 bird species and 51 mammals species in the area. The communities of El Rocio and Tigre Pozo, living upstream of the diversion continue to use Bruno Creek as they did prior to the diversion. They have benefitted from projects that were part of the diversion's Comprehensive Offset Plan, through conservation activities and protection of properties in the upper and middle basin of Bruno Creek.

The project established to conduct prior consultation with the Wayuu community of Campo Herrera, the only downstream community defined by the Ministry of the Interior as potentially being impacted by the diversion due to their sporadic subsistence fishing. The consultation was completed in 2014 and it was closed in 2022 with 100% compliance of the agreements reached. In addition, the Council of State required to carry out consultation with three upstream communities: 1) La Horqueta: an agreement was reached in 2020 establishing commitments to provide land to allow for expansion of their territory, support for a traditional productive project, creation of a community nursery, and monitoring of the project through community oversight, 2) El Rocío: an agreement was reached in 2022 establishing the selection of environmental watchman to follow-up on rehabilitation activities, participation in environmental off-set plans, support to cattle livelihood projects, and implementation of a cultural strengthening program are under implementation, and 3) Tigrepozo: the consultation is in progress.

In addition, throughout the project, more than 7,000 people have visited the modified section of the Bruno stream bed and have been able to verify its proper functioning.

The participation of the communities has been very important in this work, being allies in the project voluntarily and without intimidation. Cerrejón, Corpoguajira and 37 families from the communities of Tigre Pozo and El Rocío work to conserve 259 hectares of forest located within the middle and upper basin of the Bruno stream. In that area, the
company has planted more than 33,500 trees. These restoration processes contribute to the connection of strategic ecosystems such as the Sierra Nevada de Santa Marta, Montes de Oca and Perijá.

Furthermore, as part of Carreon’s relationship with the La Hoqueta community, Cerrejon has trained in the production and commercialization of native plants in a commercial nursery, which has helped the families of La Hoqueta, Campo Herrera, Cerrejón 1 and coveñas generate incomes through the “AWAVICHOR” association.

3. Status of Rulings of the Civil Chamber of the Supreme Court of Justice of May 2002 and ruling of the Constitutional Court T-329 of 2019 on Tabaco community

Cerrejón has maintained active participation in the committee in charge of monitoring the agreements with the Municipality of Hatonuevo and the Social Tabaco Committee. To date, Cerrejón is waiting to build the community centre, as well road layouts, however, the community has decided that both actions will not be implemented until the construction of the village is started.

In 2017, the Constitutional Court reconfirmed the decisions taken by the Supreme Court of Justice that established that the municipality of Hatonuevo was responsible of the construction of the houses in the plot selected by the community and bought by Cerrejón an already donated to the municipality for this purpose. It also ordered that the members of the Tabaco rotating fund to revise the status of the credits they manage.

Although we are aware that Tabaco representatives issued a statement in October 2020 making further requests to Cerrejón as they consider that the scope of the ruling is different and the compensation provided by Crerejón twice to all Tabaco families in the past to be inadequate, Cerrejón reaffirms its commitment to continue working with the community in order to comply with the Constitutional Court in the ruling T-329 and participates actively in the Follow-up Committee established by the Constitutional Court. To date, progress has been made by expanding the number of community spokespersons from one legitimized representative to nine and by providing support to the ongoing process to characterize the number of beneficiaries of the project.

Currently, we continue to talk with all the stakeholders involved to find a solution that satisfies everyone based on the judicial decisions.

4. Tutela action filed by Luz Angela Uriana of the Provincial Wayuu indigenous regarding the health of her youngest son Moisés David

The claim was legally dismissed by the Judge on the grounds that there was no evidence to prove that it was the mining operation impacting the minor’s health. The Judge did request that the medical institution responsible of the case provide the health services required diligently. It is worth mentioning that Cerrejón offered assistance in facilitating care for Moisés, but the family chose not to accept this offer.

5. Status of ruling T-614 of 2019 on Provincial indigenous reservation

Constitutional Court Ruling T-614 of 2019 did not determine that there were health impacts on the indigenous reservation of Provincial due to the mining operation of Cerrejón but ordered the company and various public authorities to implement additional measures regarding prevention and mitigation strategies for water, air, and other forms on
contamination.

Recognizing the specific conditions of the Provincial community, the Constitutional Court ordered Cerrejón to implement additional measures to prevent impacts on the community of Provincial including: to prevent contamination of water sources, decrease noise levels, carry out cleaning activities in the homes, water wells, and vegetation surrounding the community, enhance particulate matter emissions, implement an air quality standard agreed upon with the Provincial community, and monitor ignited seams in a radius of five kilometres around the Reservation.

Cerrejón has fulfilled these orders and to date has achieved:

• Completed the design and installation of a groundwater monitoring network with 13 stations along the river to analyse the quality and groundwater levels of the Rancheria River.
• Completed the construction of additional perimeter channels for water management on the internal face of the landfill that borders the Patilla pit and a discharge channel from the Patilla pond.
• In order not to exceed 65 decibels during the day or 55 decibels at night, it was decided to stop using the Patilla landfill, which was the closest to the Provincial community. In addition, a real-time environmental noise monitoring station was installed at the Reservation.
• In order to strengthen control of emissions at the Patilla pit, the closest to Provincial, activities were increased to wet the mining routes and for circulation of light equipment, new water cannons were installed, and the process to rehabilitate land at the Patilla pit has been accelerated.
• To control the spontaneous combustion of coal, which produces odours that bother the community, Cerrejón has taken preventive actions, such as the periodic sealing of seams with bitumen, and corrective actions, such as the use of machinery to extinguish fires, use of filling inside the pit, and control of spontaneous combustion by advancing the mining.

The implementation measures for cleaning houses, water reservoirs, crops, and areas around the reservation, as well as defining the final air quality standard that applies to this community, required agreement with the community, reached in March 2021 with all the families from Provincial, the Traditional Authorities, the Town Council Governor, and Cerrejón, within the framework of the practices and customs of the Wayuu ethnic group, regarding the obligations required by Constitutional Court Ruling T-614.

In addition to complying with the orders from the ruling, Cerrejon and the community of Provincial reached an agreement to implement additional activities and projects including: an extension of the cleaning program for 3 additional years until 2024, the support to a nursery that is currently providing over 180,000 plants per year to the Cerrejon land rehabilitation program and employing 70 people in the planting process, and the construction of a health center within their community, to be inaugurated in April 2023, built directly by the community based on their designs that comprise western and
traditional medicine, and fully equipped by Cerrejon.

Cerrejón has also complied fully with the voluntary agreements reached with the Governor of the reservation and their traditional authorities, and recognizes and respects that representatives from a few families manifest different opinions within their group towards the agreements reached.

6. Status of the lawsuit against the legality of the environmental permit presented before the Council of State.

As mentioned in the report, this lawsuit has not yet been resolved by the Council of State and, as such, Cerrejón would rather not comment on an active legal proceeding.

7. Tutela action for the claim of diversion of the Ranchería River. Judgment of the Criminal Cassation Chamber of the Supreme Court of Justice, of September 13, 2012

It is worth to clarify that the project associated with the diversion of the Rancheria River was not carried out and no environmental license for that purpose has been requested. In that sense the prior consultation was suspended by the Director of Prior Consultation of the Ministry of Interior in 2012.

8. Status of ruling T 256 of 2015 regarding the communities of Patilla and Chancleta.

Cerrejón participated in the negotiations with the communities of Patilla and Chancleta to resettle 46 and 51 families each. Families from both communities moved to the new sites after reaching agreements. However, as negotiations continued, families from these communities filed tutela lawsuits also including squatters who arrived after the resettlement process had begun and who had not been eligible for resettlement. Prior to the awarding of the tutela, Cerrejón had already reached agreement with 57 of the 58 families within these two communities.

The consultation process was done in 2016 and the agreement was formalized on 14 December 2016, reaching an agreement with 60 out of 62 families who delivered their plots and left their original sites. All of the compensations to the families have been fully delivered. The two families that did not sign the agreement were subject to a decision by a third party, the Barrancas judge. The Judge ruled that the two families that did not sign an agreement should accept the agreement. Thus, at the beginning of 2017 the consultation process finished. The consultation process was verified by the prior consultation authority in Colombia and concluded that all agreements were fulfilled.

It is therefore unclear why CAJAR states that today, those families consider that the ruling has not been complied with.

9. Status ruling from the Council of State of October 13, 2016 on the consultation with La Horqueta regarding the Bruno creek Diversion

Details on the consultation and agreements reached with La Horqueta are found in point 2 above.

10. Declaratoria del Estado de Asuntos Inconstitucionales en relación con la garantía de los derechos fundamentales de los niños y niñas del pueblo Wayuu a través de la Sentencia T-302 de 2017.

Esta declaración no se aplica al Cerrejón y se dirige a las autoridades gubernamentales y

This declaration does not apply to Cerrejón and is directed to Government authorities and their duty to protect the rights of Wayuu children.

11. Tutela action in favor of the communities of Caracolí and Espinal. Judgment T 528 of 1992

According to tutela action, it is important to mention that the ruling does not include orders to Cerrejon, nor do we have
pending obligations to comply with. It is therefore not possible for us to make a statement

12. Extrajudicial mechanisms at the international level

a. Comunicación urUrgent communication before the UN rapporteur processes

Cerrejón responded dutifully to the UN rapporteur request for detailed information on our policies in relation to social, environmental and human rights matters, our practices and processes for the prevention, mitigation or compensation of impacts, our engagement with surrounding communities and, specifically, on the situation of the Provincial indigenous community.

Additionally, as was expressed in our public response to the UN press release, we would like to repeat our willingness to have an open, respectful, and constructive dialogue about the concerns that were expressed then.

Cerrejón’s public response can be found here.

b. Complaint to the OECD

With regards to this complaint, it should be clarified that the Swiss NCP offers its services to facilitate a mediation between the parties. The Cerrejón shareholders engaged in the development of terms of reference by the Swiss NCP and indicated their willingness to engage in a mediation subject to the terms of reference being acceptable to all parties. A first mediation discussion focused on the terms of reference was scheduled, from which the complainants withdrew at short notice, following which in August 2022, the complainants withdrew from the process prior to any direct discussion with the former Cerrejón shareholders and Glencore.

It is pertinent to note that the Swiss NCP issued a final statement in October 2022. It did not conduct any investigation in relation to the allegations made by the complainants. Instead, it recommended that Glencore should maintain a dialogue with stakeholders and ensure that its due diligence policies and measures foster responsible business conduct in Cerrejón. Glencore accepts these recommendations, which are in line with the established business practices.

Swiss NCP statement can be found her aquí