Solution to the Tabaco

Solution to the Tabaco
Case begins



Explanation of the Agreement

Some history and annexes on the Agreement that will allow reconstructing Tabaco



Armando Pérez Araújo
May 2009

SOLUTION TO THE TABACO CASE BEGINS

1. CONTEXTUALIZATION
2. DISTRUST
3. WHERE WE STARTED
4. THE FACILITATOR
5. CRITERIA
6. PRE-AGREEMENT
7. AGREEMENT
8. THE MONEY
9. ANNEXES
1. PANEL’S REPORT
2. PRE-AGREEMENT
3. AGREEMENT
4. COVENANT MADE WITH THE OFFICE OF THE MAYOR








CONTEXTUALIZATION

The context under which it was decided the realization and signing of the Agreement between the Junta Social Pro Reubicación de Tabaco (“Social Board Pro-Relocation of Tabaco”) acting in representation of the majority of the community affected of the aforementioned village, on one part, and the company Carbones del Cerrejón Limited, on the other part, is preceded by different circumstances that gave atmosphere and determined one way or another, we would say in sufficient amount, the course of the dialogued negotiation that, finally, characterized the subsequent decision-making and signing of the respective documents:

First, we must state that the achievement of the aforementioned Agreement was immediately anteceded by certain general recommendations, that we catalogued as well-intended, clearly suggested in the February 2008 Report subscribed by Dr. John Harker and other members of the so-called Independent Panel or Independent Committee for Review of the Social Programs (“Comité Independiente de Revisión de los Programas Sociales”), related to the well-know Tabaco Case, which since then was qualified as the most severe conflict of all those found and examined at that time by experts and researchers on the matter.

Let us highlight and advise that only some of those recommendations and, mainly, its implicit message were the driver for the search for the Agreement, because we did not integrally share the entirety thereof with respect to the Tabaco Case, or some premises or appreciations of its contents. The Panel mentioned consisted of distinguished figures of a recognized background in the promotion and defense of human rights and, at the same time, reputed as respectful academicians of outstanding intellectual solvency at international level (John Harker, President and Vice-Chancellor of Cape Breton University in Canada; Salomón Kalmanovitz, Dean of the Department of Economic Sciences at Universidad Jorge Tadeo Lozano in Colombia; Nick Killick, from International Alert, in England; and Elena Serrano, of Fundación Casa de la Paz in Chile), as well as the organizations or entities they were enrolled in or represented at that time.

The diagnosis and preliminary consultations made to the affected community and to the different leaders of the claim were conducted by experienced social technicians, members of Social Capital Group, an expert Peruvian NGO, supported with Peruvian and Colombian officers and specialized field personnel. We must note that the conformation of the aforementioned Independent Panel was unilaterally decided by Cerrejón and the partner companies of the mine (Anglo American, BHP-Billiton, Xtrata), obviously, forged as a consequence of the great national and international debate that we have posed on the undisputable negative impacts of the Cerrejón’s coal project, more than ten years ago, above all the one that arose after the violent facts that led to the illegal and violent destruction of the village of Tabaco.

The former disquisition helps highlight the existence of some degree of pressure in different places of the geography, qualified enough and extended, as a matter of fact, oriented to the search for a prompt and effective solution, regardless of the fact that it is also fair to recognize a good degree of undeniable vocation for settlement by the current management of the partner companies and of Cerrejón, headed by Teicher.


DISTRUST

It is indubitable that old and influential negative forces remained, and still remain inside Cerrejón, which tried and will try to make nugatory any valid efforts to mitigate and remediate the strong impacts caused by the devastation of the affiliate of Exxon Mobil to the community of Tabaco and to the society in general, and, why not saying it, inclusive, to the decent standards of the international mining industry. It is fair to value this ingredient in its actual proportion, because it would allow understating the high level of negative pressure to which it has been subject the decision of Mr. Leon Teicher’s management of starting and carrying forward the solution of historically-accumulated severe problems, and the huge challenge that he and his team of collaborators will be exposed to, in the arduous task of solving obstacles and implementing the commitments and restoring aids for the displaced community with high-impact and sustainability social projects.

Another indispensable element in the analysis and valuation of the Agreement is the existence of the ruling of the Civil Cassation Room of the Supreme Court of Justice, that since 2002 (a little less than one year after the illegal destruction), ordered, on head of the Municipality of Hatonuevo, actions tending to the reconstruction of the social fabric of the village, including the housing, and to guarantee them the protection of other, likewise, fundamental rights of the fragile affected community. The compliance with the aforementioned ruling has become an additional severe fact that worsened, even more, the little credibility of the authorities, inclusive, the image of the very mining company.

WHERE WE STARTED

Sitting down to look for an Agreement with Cerrejón, by itself, was the challenge of breaking-up with a large tradition of mutual aggressions. For us, additionally, it meant to overcome the incredulity on the mining company officers, that had been generated by a long chain of former frustration, such as the one that arose as a consequence of the big “step-on-the-brakes” imposed by Mr. Calderón Zuleta’s administration to the simple expectations that arose from the instructions given at an Anglo American’ General Stockholders’ Meeting, after some questions that were formulated by Mr. Richard Solly to the President of that multinational company in London. Or, just as that even more recent, when we, José Julio and me, came back from Europe, hopeful of the compliance with some promises made by Mr. Marc Gonsalves, top executive of Xstrata with whom we met at London in the presence of Richard, in the sense that, very soon, the three partner companies of Cerrejón (as it was natural, given the tripartite ownership structure) would articulate a joint order to overcome the barriers that were notoriously numbing of the Company’s social responsibility policies with the affected communities, especially the one displaced from Tabaco.

Being aware of the human barriers settled in the entrails of Cerrejón, Mr. Gonsalves asked full secrecy from us, up to the point that José Julio and me accepted to keep our mouths closed on this difficult point for as long as it were necessary for the sake of honoring the prudence recommended by the Xstrata executive. At that time, face-to-face with that executive, we examined the deep historical contradictions existing between the communities and the mining companies in the coal exploitation at Cerrejón, especially the severity of the facts and subsequent developments related to the so-called “attack on Tabaco”. We highlight that this meeting was characterized by an absolute respect between the parties and very focused on the need to defeat the very difficulties, coming from the indisputable hostile attitude of those people who came and were following the old doctrine of the US company Intercor (Exxon Mobil). An immediate conclusion was that it was impossible for a sustainable, autonomous and definitive solution to spontaneously sprout from within Carbones del Cerrejón Limited, given the concentrated and explicable, but never justifiable, aggressiveness of those people who participated in the preparation, design, and execution of the erroneous strategy of, abruptly, eliminating Tabaco, on one hand; and the amount of administrative and judicial issues settled by government organizations in favor of Intercor, Cerrejón and public entities involved in the diverse facts being investigated, that pretended to help suggest the existence of a res judicata, in spite of the fact that it had been strongly erected the notion of an imprescriptible nature of the criminal actions arising from the very grave violation of Human Rights.

Our effort to honor that commitment made in London of finding any opportunity for settlement and concord was not good, because it was, intelligently and with astuteness, destroyed by the enemy forces domiciled in the mining camps of Albania, and still encysted within the Company.

One good day, a friend gave me the mobile number of Mr. Andrés Soto, then Vice President of Public Affairs at Carbones del Cerrejón Limited, and, say that out of curiosity and need, I called him under the understanding that he was a good way to clarify to Company hierarchies – specially to President Teicher – that our vocation was not to abandon the pursuit of a definitive and fair solution for the community of Tabaco and also that our desire was to keep attentive to explore any reconciliatory possibility, provided that we started from the basis that we would never renounce to the idea of Reconstructing Tabaco -an immovable matter to us – and to recognize to community members the respective indemnification for damages, regardless of the mandatory application of coherent and fair social responsibility policies for the fractured and displaced community, both by the Company and the authorities, required by the May 2002 ruling of the Supreme Court of Justice.

The task of encouraging the probability of formally sitting down to find the indispensable balance was well done by Mr. Soto. The first step he took was to introduce me to Julián González, recently appointed by León Teicher as the Manager of the Social Responsibility Department. He was introduced as the person chosen by the Company to settle the conflict existing with the community of Tabaco, among other difficult issues. Then, it followed the need for José Julio and me to meet with Teicher, which was just as locating ourselves, once again, in the expectations path. Little by little, Julián González started weaving the scenario and advancing in the most complicated matter - i.e., building the necessary trust ground and awakening an indispensable degree of certainty – until it came the time to meet at Bogotá, Teicher and González, on one hand, and José Julio and me, on the other hand.

We can now say it with the most clarity that we felt, for the first time that the Company wanted to commit itself with the community of Tabaco to find a definitive, fair and complete solution. Definitive, because the previous strategy had been to break to pieces the unity of the group, generating, what it generated, i.e., restlessness in the community and the magnification of the outrage. Fair, because nobody could expect less than a god integral repair that lead to indemnify, individually and collectively, the people displaced from Tabaco, including the Reconstruction issue – I insist, the most important and significant matter. And complete, which meant that the opportunity had to be taken advantage of not to live anything or anybody outside the settlement’s coverage.

THE FACILITATOR

One of the important decisions we had to make was accepting the intervention of a FACILITATOR – a figure that arose in the Panel’s recommendations – and then getting into the task of participating in the selection of the name of a person who could accept this difficult role, without that representing a distrust by the Company or by us. We thought that first we should resort to the advice of our main allies, mainly the indispensable touch of the international allies, to obtain the adequate and well informed help on this matter, considered as essential in the construction of the indispensable mutual trust. The latter, taking into account the high probability of difficulties the participating parties from both sides would be exposed to, given the evident contradictions existing between the eventual Company spokespeople and those of us who would integrate the Working Table in defense of the interests of the community of Tabaco.

Out of these consultations, three opinions arose, summarized below: One, that the Facilitation could perfectly be done by the aforementioned Panel, considered an informed collective group and somehow experts on the Tabaco case; two, could be a member of the very Panel, for identical reasons; and three, the possibility that our Swiss allies helped select a good candidate to act as Facilitator, hired and paid by the Swiss Government, and, obviously accepted by the mining company.

An advantage of the first two options proposed was that the candidates/postulants perfectly knew the contradictions existing on the Tabaco Case, inclusive they had the clear perception of what both parties defended and felt with respect to an eventual solution. However, they also faced the censorship or suspicion that might arise from the fact that they had been hired or linked, one way or another, by the company Carbones del Cerrejón Limited for purposes of the alluded Review. And something even more saying was that we had not absolutely and integrally accepted the Panel’s Report, because we had some very respectful objections on certain algid points that we clearly expressed in due time, punctually and publicly.

The third option was not subject to any questioning other than the delay and block that most likely could generate the normal discussion of the apparently simple fact of convincing the Company about the convenience of submitting itself to the facilitation of someone whose nomination and selection came from sectors traditionally critical of the social responsibility policies of the mining companies around the coal mine of Cerrejón, in La Guajira. We, José Julio and me, also thought it was very risky and useless to subject ourselves to the debates of a new confrontation that, surely, represented an additional delaying instance.

Additionally, we received from Canada and the United States good references of Doctor John Harker, reputed academician, and, as already said, who had acted as the President of the Panel and, for that elementary reason, deeply knowledgeable of the severity of the subject. Notwithstanding the foregoing, when we presented our points of view before León Teicher, President of Cerrejón, we likewise expressed our support to the three aforementioned alternatives. Of course, we understood that in case Harker or any other Panel member, or the very collective group, accepted to assume the responsibility of conducting the FACILITATION, that imposed on them the peremptory obligation of abandoning the defense of those positions or criteria proper of the Panel or theirs, with respect to the Tabaco Case and, consequently, accept the role and performance of the new obligation. Finally, and after the customary examination with President Teicher and his advisors on this matter, we agreed upon the advantage offered for this situation the formula with Harker. And at that moment, the Company accepted our postulation and agreed to contact him, learn about his availability for the mandate and his points of view on the other circumstances merited by this case. To summarize, having finally defended the selection of Harker resulted being a good decision, because, the difficult performance had no faults, and during the long conversations, he arose as an equitable guarantee for the discussion of the parties, avoiding blocks, delays, and traumas susceptible of entangling the delicate central objective of the conversations.

CRITERIA

1. The members of the Table, including the Facilitator, unanimously decided that, first, it was indispensable to organize the roadmap of the conversations; for that purpose it was necessary adopting the most practical and ethical criteria and parameters possibly existing, sheltered on the international recommendations on best or better social practices. The criteria used by the parties to advance in the processing of the conversations were always chaired by good faith rules and effectiveness in the management of the proposed agenda.
2. Environment: About this particular issue, the Table concentrated efforts on the need to cover the entirety of the Tabaco people affected. For that purpose six (6) groups were classified, taking into account the different factual situations, videlicet:

a) group i: list of people expropriated/easement that had not reached a mutual agreement with the Company up to September 2008 (they appeared in the census of Tabaco conducted with the Municipality of Hatonuevo in 1998)
b) group ii: list of people that according to the CRT possessed land plots with/without improvements in Tabaco – some of them reported in the Exchange Market (“Lonja”) 2000 report
c) group iii: list of people that negotiated mutual direct agreements with Intercor (former operator of CZN)
d) group iv: list of people who negotiated mutual direct agreements with Cerrejón in 2003-2005, after the legal processes had been closed
e) group v: list of people who obtained indemnities through mutuums of family members or relatives
f) group vi: list of people who resided at Tabaco and had not possession rights

3. Rationality: It helped that the table adopted the criterion that the Agreement being pursued was fundamentally transitional in nature, i.e., the starting point towards better repair and collective justice levels. In other words, that the Agreement would unchain, in addition to the Reconstruction of Tabaco and the agreed-to indemnities, the scenario for an attractive pole of sustainable projects for the community, of government and private origin. The latter avoided unchaining sterile discussions on difficult topics. Believing and protecting this approach helped a lot to save the continuation of the conversations and approach the consensus on what was finally signed.

THE MONEY

Talking about the money that the community would receive was always a complicated task. Notwithstanding, at a certain point, we approached, as possible, sort of a rational equilibrium, with respect to the different groups formed, mentioned above. Further, the Company had a documented file that demonstrated the existence of numerous transactions during more than ten years. Additionally, José Julio and me, were able to obtain that the company Cerrejón assumed the money amount that corresponded to the professional legal fees that community members would have to pay for legal services and other defense expenses incurred in by the Board Pro-Relocation of Tabaco throughout several years, as well as the tax imputations that might be generated against the net money amount agreed-to.

CLAIMS

We agreed that it was necessary to open a direct-claim instance, given the circumstance that there could be any errors due to the simple human ability of being wrong. So it was done, and the Company, in that sort of new instance or review, found some errors that it corrected on a timely basis.

DISCLOSURE OF THE AGREEMENT

The Agreement was publicly presented before the community and adequately disclosed through the communication media. The summon to inform the community and deliver the indemnities, as well as to process the claims, was systematically promoted through more than a ten of radio stations, with influence on the region. Part of this Agreement is the need for it to be transparent enough, at national and international levels, so that the procedure serves as case study, as possible of example or good reference, especially with respect to that which means to promote and defend the possibility of a peaceful reconciliation on a case without any backgrounds in the universal history of the mining industry.
THE TABLE

I must recognize that the members of the Table: José Julio Pérez, accompanying me in the defense of community interests; Julián González, Edgar Sarmiento, and Eduardo Lozano, defending the Company interests, were able to put on top the interest of successfully finishing the Agreement before any other consideration. Many times it was not easy to advance. The Facilitator, John Harker, and his assistant, Collin Harker, played a magnificent role. I must make a special recognition of professionalism to Mr. Antonio José Godoy, who had a good performance in his role as interpreter.


ANNEXES
PANEL REPORT
PRE-AGREEMENT
AGREEMENT
COVENANT MADE WITH THE OFFICE OF THE MAYOR OF HATONUEVO