From Lord Avebury P0704033
Tel 020-7274 617
March 4, 2007
Dear Mr Bickham,
I have now had an opportunity of considering your letter of February 27 in detail, and I must begin by reiterating my thanks for the trouble you have taken in responding to the concerns which were raised in my Question.
You say that at the time, individual compensation rather than collective resettlement reflected the wishes of the majority of rights holders in the village. Maybe, based on the information they had, that was the case, but I wonder if they had the facts, particularly on what the payments would buy? Community representatives say that the compensation régime was not understood; that the amounts were not enough to buy equivalent agricultural property, and that in many cases the first installment was reinvested in the property that was to be expropriated because the 'rights holder' did not understand that he or she would have to move away.
It is also alleged that people were hurried into signing agreements for individual compensation because that was the preferred alternative. You say there was an option of collective resettlement and I would be interested to know what evidence there is that people made an informed choice, and that the majority opted for individual compensation by a democratic process. My information is that it was not an unfettered choice, and that people were influenced by a variety of methods to choose individual compensation. For example, they were told that if they did not accept individual compensation they would receive nothing, or that social services would take away their children. Some were apparently also told they also had to cease using the services of Armando Perez as their lawyer. It may be difficult to establish exactly what did happen at the time, but the least one can say is that there were strong pressures on the inhabitants, which they were not empowered to resist.
Our contacts say that the list of ‘rights holders’ of the settlement of Tabaco, relied on by the company, included a number of people who did not live in Tabaco but were moved into the area by the company and then compensated; on the other hand it excluded people who had lived in the village for a long time but lived in mud and timber shacks rather than more substantially built houses, or who lived in areas that were suddenly designated ‘public spaces’ by the municipal government of Hatonuevo.
The 1997 survey is not accepted as an authentic record, but no doubt it would be more productive if the flaws are discussed by people on the ground, who were there at the time.
That the relocation was carried out on conformity with Colombian law is precisely what has been challenged in the courts by Armando Perez since August 9, 2001 when the evictions took place. Mr Perez argues that the initial administrative order for the handing over of the community (entrega de tierras) was made at national level on the basis of false information presented by the then mine owners, implying that the area was agricultural land empty of human dwellings, whereas in fact it was a well established settlement with houses, gardens, a school, church, cemetery, clinic, playground and communications centre.
Mr Perez says that the order made for ‘expropiación en cabeza’, an instrument providing for the transfer of property which is to be legally expropriated at a later date when the amount of compensation has been agreed, was highly irregular. He says this procedure is the prerogative of public authorities and should not have been allowed in the case of a foreign company (at that time, Intercor, 100% owned by the Exxon corporation of the USA). Its primary purpose is to facilitate what we would term compulsory purchase, where the property is required for essential purposes in the public interest, where the order prevents any damage being done to the property before formal expropriation can occur. Mr Perez says that it was unprecedented to use this procedure to hand over an entire village to be destroyed, and he says that the judge acted outside ultra vires.
You say that the evictions of some of the rights holders was not precipitate since it occurred four years after negotiations had begun. But given the normal use of expropiación en cabeza to safeguard property before compulsory purchase, as explained, the community and its legal representative were expecting no more on August 9, 2001 than a formal handover of legal control of the village. They had no idea that bulldozers would demolish their homes, sometimes with residents still in them. Nor were they expecting the presence of hundreds of armed security personnel, including police, army and private security guards; the attack by helmeted riot police with batons and riot shields, or the impounding of their possessions, including sacred objects such as the statue of St Martin de Porres which had stood in the village church.
You mention the video footage of the eviction. I haven’t seen it, but I have asked for a copy, which I understand confirms what I have said about the heavy-handed behaviour of the security forces, and includes interviews with residents of Tabaco before and after the eviction. This video was shown at a public meeting held at Amnesty UK during the recent visit by the Colombian delegation, and aroused much indignation.
Given that in Colombia, where coercion often involves extreme brutality by the armed forces themselves or by paramilitaries and militias linked to them it is understandable that you should describe the process as having been carried out with ‘minimal use of force’. However, one needs to judge the process not by Colombian standards, but objective criteria such as those laid down by the Worl Bank, or the OECD Guidelines.
The ‘minority group’ to which you refer acknowledge that they do not speak for all the former residents of Tabaco, but they are not asking for preferential treatment. They want a just settlement for all, but particularly for those who got nothing at all because they were not acknowledged by the local municipality or the company as residents of the village. They are not seeking a settlement of benefit only to themselves, and they are surely entitled to pursue their claim through the courts, as well as seeking publicity and support for their cause, as civil litigants in compensation cases often do in the UK.
It is certainly possible as you say that some people mismanaged their compensation payments. The introduction of relatively large amounts of cash into mainly subsistence farming communities has caused problems elsewhere in the world. And people in this situation need good advice. For instance, as noted above, some Tabaco residents didn’t properly understand that acceptance of a first installment of compensation entailed an obligation to move, and some of them invested that money in the property which they were to lose.
But the bottom line is that the amounts offered, though large in comparison with the amounts of cash that villagers normally handled, was insufficient to buy equivalent property in another rural location and continue their agricultural way of life. The company’s ‘social investment interventions’ have so far failed to address this fundamental injustice.
You refer to the court order that was issued against the municipality of Hatonuevo relating to compensation received for former municipal buildings and its alleged failure to provide satisfactory education and health facilities. The Supreme Court decision of May 2002 ordered a comprehensive plan for the reconstruction of Tabaco, noting that:
‘… the re-location of the former community of Tabaco implies carrying out concrete and immediate actions, as advised by the official from the Human Rights Ombudsman’s Office, who contributed to the appeal being determined. This appeal will overturn the trial court’s ruling and will prescribe protecting the fundamental rights mentioned above, by ordering the mayor of Hatonuevo to initiate the appropriate procedures to … initiate the construction of community infrastructure, as well as the development of a housing plan, for the members of the community of Tabaco, township of Hatonuevo (Guajira), which assists in the housing and education needs of the minors belonging to the petitioning families.’
It ordered the mayor of Hatonuevo (Guajira) to initiate, within 48 hours and in accordance with applicable regulations, the procedures to bring about effective solutions to establish community infrastructure and develop a housing plan for the benefit of the community members of Tabaco, township of Hatonuevo (Guajira), and assist in the housing and education needs of the minors belonging to the petitioning families. Additionally, the Court ordered the mayor to implement this investment immediately once the plan was approved.’
The Mayor of Hatonuevo said he didn’t have the resources to comply with this ruling, and insists that the companies that now own the mine should provide the money to enable him to do so.
I understand that the company did make 57 hectares of land available to the municipality of Hatonuevo for the resettlement of people from Tabaco, but some of that land formed part of the Indian Reservation of Lomamato and 22 hectares were owned by other third parties. Former residents of Tabaco were therefore reluctant to move there for fear of conflict with the legal owners. The municipality of Hatonuevo subsequently offered the community urban land for relocation, which was similarly inappropriate.
The community has now identified suitable land at La Cruz, which the owners are willing to sell at a sum of just over £0.5 million equivalent. I am not sure whether this has been discussed with the company, but if not, perhaps the idea can be pursued. It would certainly be one way of making early progress, nearly five years after the May 2002 Supreme Court ruling that a start to be made within 48 hours.
'Cerrejon has an active human rights programme..... which has involved facilitating human rights training for several hundred members of the security forces.'
I was interested to know about the human rights training which the company is facilitating and would be grateful for some further details of its design. As you know, the Colombian military has an appalling reputation, detailed year after year by Human Rights Watch and Amnesty International, and it has happened in the past that training badly led soldiers has made the situation worse (eg in Guatemala in the seventies as I recall from personal experience). This is now being officially acknowledged in Colombia, and army and government personnel face prosecution for their close and illegal links with paramilitary forces.
Edward Bickham Esq,,
Executive Vice President, External Affairs,
Anglo American plc
20 Carlton House Terrace,
London SW1Y 5AN