Judge Calls License in Controversial Amazon Dam Project Illegal

International Rivers and Amazon Watch
Tuesday, October 18, 2011

Brazilian federal judge votes for indigenous rights; argues Belo Monte Dam violates Constitution and international conventions

Brasilia, Brazil―In a landmark decision on Monday, a federal judge in Brazil voted that the environmental licensing of the controversial Belo Monte Dam is illegal given the lack of consultations with affected indigenous communities. The vote is the first step in a long-awaited decision by a federal circuit court regarding a lawsuit filed in 2006 by the Federal Public Prosecutors’ Office that could ultimately bring the case before Brazil’s Supreme Court.

In agreement with Public Prosecutors, federal judge and rapporteur Selene Maria de Almeida concluded that a 2005 legislative decree that authorized construction of Belo Monte is illegal because a consultation process with threatened indigenous communities―guaranteed under Article 231 of the Brazilian Constitution―was not previously carried out by Congress. According to her interpretation, Brazil’s Congress has a special responsibility to weigh the possible benefits of a development project such as Belo Monte against its negative consequences for indigenous peoples.

Almeida’s decision cited the need for Brazil to comply with its commitments to ILO Convention 169 and other international agreements that require free, prior and informed consent among indigenous peoples regarding projects that significantly affect their territories and livelihoods. Almeida’s decision spotlights a major gap between domestic and international legal frameworks regarding indigenous rights and their effective implementation within current practices of dam-planning and licensing in Brazil.

In Monday’s federal court hearing, Almeida’s decision discarded arguments by lawyers representing the Brazilian government that the Belo Monte Dam infrastructure and reservoirs would not be physically located on indigenous lands and, as a result, there was no need for consultations with indigenous peoples. Citing overwhelming evidence from official sources and independent researchers, Almeida concluded that the diversion of 80% of the Xingu River into artificial channels and reservoirs would have devastating impacts downriver for the Arara, Juruna and Xikrin Kayapó indigenous peoples, given inevitable losses to the tribes' ability to catch fish, raise crops, and navigate freely. As such, prior consultations by the Brazilian Congress with indigenous communities are required before the dam project can be legally authorized.

Judge Almeida concluded that the Brazilian Congress should have also based its decision concerning authorization of Belo Monte on the conclusions of the project’s environmental impact assessment, including anthropological studies on its consequences for indigenous peoples.

Following Almeida’s initial vote, Judge Sebastião Fagundes de Deus interrupted the court hearing, requesting additional time to examine the lawsuit’s documentation. Critics believe the request by Fagundes de Deus, a conservative judge who previously worked as a lawyer with the parastatal energy company Eletronorte, may be seeking to transform the Belo Monte Dam project into a fait acccompli. It is likely that the final vote on the lawsuit will take in the next couple weeks. All signs indicate that no matter how the final votes fall, the case is headed to the Supreme Court. If Almeida’s decision is upheld, the Belo Monte project will be immediately suspended.

“The initial decision by Judge Almeida was a good start,” said Federal Prosecutor Felicio Pontes, co-author of the lawsuit. “She recognized that the licensing process of Belo Monte is invalid and that indigenous communities were not effectively consulted, despite the fact the project will have devastating impacts on their lands and livelihoods. Now it is important the judgment be reinitiated as quickly as possible.”

“I see this as a partial victory,” said Sheyla Juruna, a leader of one of the indigenous communities threatened by Belo Monte. “Now more than ever we need to pressure the government. What I fear most is that the next judgment will allow the government to avoid compliance with its highest laws that guarantee us our right to prior and informed consent. The final decision of this lawsuit will show to the Brazilian and international public whether the Brazilian government truly respects indigenous rights or not.”

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