Source: International Rivers

On Monday, federal judge Selene Maria de Almeida voted in a landmark opinion in Brazilian courts that the Belo Monte Dam licenses are illegal and must be cancelled due to what is now widely-accepted evidence that the Brazilian government did not hold proper consultations with indigenous tribes that would be affected by the project. De Almeida argued that while the dam reservoirs do not flood indigenous territories, the project's diversion of the Xingu River will directly impact the tribes' abilities to reproduce physically, culturally, and economically, as 80% of the Xingu River would be channeled away from their lands to the reservoirs. The vote shined a stark spotlight on the project's astronomical risks, and on a growing gap between the implementation of Brazil's legislative framework and the standards of international best practice.  



Her vote opened the trial of the second of 12 lawsuits filed by the Public Prosecutors of the state of Pará that allege illegality in the planning of Belo Monte. The Public Prosecutors claim that the Arara, Juruna, and Xikrin Kayapó tribes were not appropriately consulted before the project's environmental and installation licenses were issued by environmental agency IBAMA.  


De Almeida agreed with the Public Prosecutors, arguing that Article 231 of the Brazilian Constitution requires consultations with indigenous people to be held before congressional approval. Congress, she argued, can only give its approval based on the information obtained through prior consultations, anthropological studies, and environmental assessments on the project's impacts.  



What happened in the Belo Monte Dam was the opposite. The Congress started by passing Decreto Legislativo 788 in the year 2005, a decree that arbitrarily approved Belo Monte before the EIA had even begun. It was only three years later, in 2008, when Eletrobras, Camargo Corrêa, Andrade Gutierrez, and Odebrecht published the EIA, including an anthropological report called the "Indigenous Component" that described the characteristics of the tribes in the areas that would be affected by the project. Then IBAMA and Eletronorte held poorly-attended public hearings on four occasions, which indigenous leaders have described as "explanations, not consultations." 

In the court hearing, government lawyers claimed that consultations with indigenous people did not have to occur prior to congressional approval, but could be held during the process of environmental licensing, led by the developer, IBAMA, and FUNAI. Yet in de Almeida's interpretation, the Brazilian Congress alone has a special responsibility to measure the benefits of a development project against its possible genocidal effects on indigenous people, and the Congress cannot devolve this responsibility to institutions of the executive branch such as IBAMA and FUNAI.

At the heart of de Almeida's opinion is the fact that the Brazilian Congress and executive branch (Eletronorte, IBAMA, FUNAI, Advocacia Geral da União, and other institutions) are not complying with the Brazilian Constitution. She argues that compliance on this issue must take into account Brazil's adherence to the UN Declaration of the Rights of Indigenous Peoples (UNDRIP) and ILO Convention 169, which the government officially ratified on 2007 and 2002 respectively. In a passionate defense of the principles of ILO 169, de Almeida stated that "Prior consultation is not simply about holding meetings; nor is it an end in itself; it is an instrument of dialogue. Before all else, the place for discussion, reflection, and evaluation of a legislative or administrative measure proposed by the government should be within the very community, which should be previously informed of all aspects of the project and its effects on their lives." The huge gap between UNDRIP and ILO 169's understanding of free, prior and informed consent (FPIC) and a real lack of implementation under Brazilian law presents a troubling problem for Brazilian lawmakers, and should be a red flag to international finance institutions, companies, and governments that seek to invest in Brazilian infrastructure.

At the trial, the government lawyers could only respond by desperately back-tracking to an argument they made in 2010, claiming that indigenous people in fact never needed to be consulted, because Belo Monte would not flood nor be built on indigenous lands. It sounds like the lawyers didn't read the IBAMA or FUNAI reports, or even Norte Energia's "Indigenous Component," which clearly spell out the downstream impacts that the three tribes would face as the river is diverted and waves of migration put pressure on the precarious security of their land tenure. The lawyers must have been aware that they were contradicting the government's own claim that tribes were consulted about Belo Monte's impacts.

The trial is now on hold as a second judge, Sebastião Fagundes de Deús – whose record shows he has previously defended Eletrobras – predictably responded to de Almeida's opinion by asking for a delay, adding time for the government to build a fait accompli case for building the dam. The trial may reconvene in the next 15 days, at which point Fagundes de Deús will be forced to give his opinion, followed by that of Maria do Carmo Cardoso, the third and final judge. All signs indicate that no matter how the final two votes fall, the case is headed to the Supreme Court. And that's good news for indigenous people and their right to FPIC.