Women leading the fight on climate change litigation: the power of dreams

Climate Change

Women leading the fight on climate change litigation: the power of dreams

The Wayúu Women: The Ouutsü, or Dreamers

In the midst of the pandemic I was contacted, as a matter of urgency, by Rosa María Mateus, a lawyer from the José Alvear Restrepo Lawyer’s Collective (CAJAR), one of the most respected human rights organisations in Colombia. She was seeking to instruct me on a case concerning the largest open pit coal mine in Latin America (and one of the largest in the world): the Cerrejón mine.

The facts of the case sounded almost like a story out of a Gabriel García Márquez book. The Cerrejón mine is in the midst of indigenous Wayúus’ ancestral land, covering an area of approximately 69,000 hectares of land, and uses approximately 24 million litres of water a day. 1 The mining diverts and uses an enormous number of streams and tributaries, the water returns contaminated with heavy metals, chemicals and sediments. The mine operates 24 hours a day, every day of the week and contaminates not only water but also air. The facts appeared to me like a description of hell.

I learned that with the water scarcity, fruits that the indigenous communities relied on for nutrition, such as the Guáimaro, have disappeared, part of the deforestation resulting from the mining activity. For centuries the fruit of the Guáimaro tree sustained animals and humans in La Guajira. More disturbingly, I learned that the community I was asked to represent (which was located right next to the mine) had no access to water (other than handouts), lived in the middle of coal dust, and watched how a stream (Bruno stream), which was under threat of permanent diversion because the company wanted to mine the coal beneath. Respiratory diseases were rampant and the most vulnerable were the children.

Luz Angela Uriana Epiayu, a Wayúu woman whose children have contracted diseases as a consequence of the contamination by the mine, is leading the community’s fight against Cerrejón. She said: “the water they bring us by tank car to some communities is a bit of the water that they have stolen from us and polluted”. 2

Luz Angela was supported by the Ouutsü or “dreamers” of the community

In Wayúu culture only women (as opposed to men) can “dream”; that is, being a spiritual guide, healing the community and being the interpreter of messages important to the survival of the community which come to them in dreams. The world of dreams in Wayúu culture is considered to be just as important as conscious reality, and whilst the Wayúu women are dreaming, the deity of sleep, ‘lapü’ visits them to transmit important messages.

Cristina Epiayú, leading with Luz Angela the fight against Cerrejón, stated: “I know traditional medicine, but as the multinational is ending the health of our children, so is traditional medicine ending, because there was a sacred hill where our grandparents went to look for plants, there are no more and if there are, they are few and they cannot be given to children because they are contaminated, dirty with coal dust. With the vibrations (of the mine) we no longer dream as we dreamed before, we no longer sleep well because the noise sounds every night.”

Some traditional authorities of the community had opposed bringing a claim against Cerrejón. But this did not stop the women. Carmen Uriana said: “We are victims, a little girl of mine had her little lung burst. We don’t have our liquid to be healthy, we have a little river, but every now and then they are threatening that they are going to divert it because it has coal beneath. We are like children when they are hungry and cry, we are asking to be seen.”

Owned by three multinational companies two of which are registered on the British Stock Exchange: Anglo American (British Company), BHP Billiton (Australian Company) and Glencore (a Swiss Company), the coal extracted from the mine is sold to Europe (Germany, Turkey etc) and other parts of the world from Cerrejón’s office in Ireland It was even more disturbing to learn that our I-pads and laptops in Europe were being powered, possibly, with energy obtained at such a high human cost.

I worked feverishly. I was assisted by Rosa María and Luz, a young lawyer from CAJAR. I was impressed by their stamina and their commitment.

The health emergency COVID-19 aggravated and deepened the vulnerable conditions of the Wayúu de Provincial community. I threw myself into the evidence and drafting a petition before the United Nations. I filed a case before the United Nations Special procedures. In September 2020, the UN, in an unprecedented step, called on the mine to halt its operations during the pandemic. The Wayúu women had won.

The legal fight of the Wayúu women continues, but the first step which internationalised their plight had been won because of their courage and determination, and because advocacy of the highest calibre had been done for them.

Soon after filing I happened to attend a zoom meeting in which lawyers working on environmental matters across Latin America were giving presentations. I realised that they were all women – highly represented in environmental Non-Governmental Organisations. It was that moment that I realised women were leading as lawyers, as defenders and as guardians of the natural world, the fight for the right to a healthy environment.

In my mind, women leading the legal fight against climate change, are like Wayúu women, Ouutsü: seers, dreamers:-

■ There are influential female lawyers, the brains behind landmark cases (Roda Verheyen, Julia Olson, Melinda Janki)

■ There are influential female plaintiffs (Greta and other teens, Swiss Senior Women, indigenous women etc).

■ There are academics (Christina Voigt and many others) producing thought leadership bringing the law to serve fundamental principles for the existence of humanity.

Roda Verheyen

Roda Verheyen, a German Rechtsanwältin, is the legal brains behind one of the most fascinating cases to emerge challenging climate change, Lliuya v REWE. On 24 November 2015, Saúl Luciano Lliuya, a Peruvian farmer, brought proceedings against energy giant REWE, one of the largest emitters, over the melting of glaciers in the Andean city of Huaraz, Peru, before a German court. He recently stated: “Five years ago we started a battle with an opponent that spreads in the atmosphere in the form of CO2. This opponent is a threat to the civilization on this planet that we inhabit. Five years later, I realize: It is easy to destroy the Earth, but very difficult to heal it again.”.

Roda conceived the case as a tort case. Nothing like that had been done before the Huaraz case reached German courts. As such, it broke new legal ground. By now, it has made it to the evidentiary stage and is a test case that is known globally and has a symbolic effect like no other lawsuit.

Melinda Janki

Melinda Janki, a former oil lawyer, is behind one of the most important cases recently brought before the Constitutional Court in Guyana, challenging ExxonMobil’s largest oil development outside of the Permian Basin. The company is pushing to extract over 9 billion barrels of oil and trillions of cubic feet of gas from ultra-deep wells off Guyana’s coast. Melinda, who leads the legal team for the applicants, emphasizes the project’s global significance: “Guyana’s petroleum production is a potential 3.87 gigatonne carbon bomb, putting Guyana at the forefront of the fight to save the planet from oil and gas.”

The Torres Strait Islanders Climate change taken to the human rights courts:

I too consider myself to be like the Ouutsü, or Wayúu dreamers: possessing knowledge and seeing what others did not see before, and putting this to the service of the wider community.

Towards the end of 2018, I attended a conference on Small States as a speaker. I delivered a presentation called “Melting glaciers, disappearing States, and endangered populations: International Dispute Resolution for Climate Change”. My key submission was that contrary to the assumption that international courts of “limited jurisdiction” (as opposed to courts of general jurisdiction such as the International Court of Justice) were “unlikely to contribute in a material way to a broader response to climate change challenges”, the opposite was true. I foresaw that international human rights organs/courts not only would be adjudicating climate change claims but argued that they were equipped to do so under international human rights treaties. I gave as an example, the possible jurisdiction of the United Nations Human Rights Committee. Present in the room, there were some lawyers from ClientEarth. They instructed me soon after as Counsel on what became the first international case on climate change, the Torres Strait Islanders case.

At the time there was no blueprint to argue a case of this sort in an international human rights court. I have this image of myself, drafting the pleadings, on my laptop, for nearly 10 days, using everything I knew, acquired in 20 years of practise as international lawyer, crafting the arguments for my clients, First Nation peoples; seeing a remedy that could save their sinking island homes, and with them possibly their world. As I write, we are expecting a decision which to my mind, does not come soon enough.

COP26 is upon us and the urgency of action is again in the news, I want to celebrate the women that are challenging inaction, those that are in the frontline, like the Wayúu women and the Torres Strait Islanders, in particular.

I want to celebrate the “dreamers” who have been leading the causes and crafting the arguments to preserve the natural world and with it, humanity. ■

Monica Feria-Tinta

Monica Feria-Tinta

Barrister (Public International Law Specialist) at Twenty Essex

1. CAJAR, 2019 Report “Diez Verdades sobre Carbones de Cerrejón”, p.9. Available here: https://www.colectivodeabogados.org/?10-verdades-sobre- Carbones-del-Cerrejon

2. The plight of Luz Angela Uriana Epiayu was featured in a recent documentary by DW “Colombia: The curse of coal” (2017) which can be watched in the following link: https://www.youtube.com/watch?v=t1xLZWp2eBc