Belo Monte's Latest Legal Challenge – Will It Stand?
- August 14, 2012
- Maira Irigaray
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The construction of the Belo Monte Dam has been suspended again! What? Could it be true? My colleague Andrew woke me up early this morning with what could be the best news ever. I needed to confirm this news and understand it before getting too excited. I remember celebrating other court-ordered suspensions of the dam only to find out shortly after that these were overturned within a matter of days or even minutes. I just wanted to be more cautious this time before calling for celebrations.
Reading the flurry of emails, I see that indeed the dam was suspended by a group of judges. I would like to acknowledge one judge in particular here, named Souza Prudente. He has a reputation for being good and fair. I was honestly pleased that the case ended up in his hands. This particular motion is one of the 16 different civil public actions filed highlighting many mistakes during all process for approving the license of this dam. This case related to the failure to obtain free, prior and informed consent of the indigenous populations. According to the Brazilian Constitution, consultations should have happened before Congress approved the construction of the dam. That never happened.
In 2006, Judge Campelo approved a preliminary injunction about indigenous consultation suspending the dam's licensing while the full case was being heard, but his decision was quickly overturned by the First Regional Federal Tribunal (known in its Portuguese acronym as TRF1). Five years later in November of 2011, the actual case was finally heard by a panel of 3 judges, where two of them absurdly ruled that the consultation could happen after construction, and not necessarily prior to anything. Meanwhile construction of the dam continued. The Public Ministry appealed this decision, and yesterday, a group of judges from the same TRF 1 court unanimously decided on the suspension of the construction. In yesterday's ruling, Judge Prudente ruled that:
"The National Congress edited decree 788 of 2005 without hearing the indigenous communities, contrary to requirements of the ILO and the 3rd paragraph of the Brazilian Constitution, and authorized construction saying that the consultation could have been done later. However there is nothing on our Constitution talking about a consultation after the fact. What it says there is about a previous consultation. That's why the license issued by IBAMA is invalid."
And he added: "Now the government just needs to have morality, putting in practice its democratic discourse".
So yes, it is time for celebration! Although this decision can be overturned anytime, it is indeed historic. It is the first time in this case where a decision like this is made by higher court judges on the case itself, and not only on the injunction. The decision already means a lot for future references in regards to projects affecting indigenous areas. But as Judge Prudente highlighted "may justice be eternal while it lasts".
Yesterday's decision can be appealed to Brazil's Supreme Federal Tribunal, where some judges are President Lula appointees, and let's remember that Lula was the mentor of current President Dilma Rousseff who is the "Mother" of the Belo Monte dam project. Most absurd is that the President of the Supreme Federal Tribunal can unilaterally decide to allow construction to resume even before the Tribunal has a chance to formally rule on the case. And that is what we call justice in Brazil!
We will have to wait now and see what comes next in this story, hoping that somehow we will witness the downfall of Belo Monte dam. There should be always room for hope and for believing that we can, one way or another, win the battle for justice and human rights and stop environmental rights abuses that are being perpetrated in name of a so-called "development".
For recent updates on our work in Brazil, check out "Let the River Run."