Brazilian Judge Rules Belo Monte Dam Illegal

BRASILIA, Brazil, October 19, 2011 (ENS) – A federal judge in Brazil has ruled that the environmental licensing of the Belo Monte hydroelectric dam on the Xingu River in the Amazon is illegal due to the lack of consultation with affected indigenous peoples.

In Monday’s court hearing, Federal Regional Appeals Court Judge Selene Maria de Almeida rejected arguments by Brazilian government lawyers that because the Belo Monte dam infrastructure and reservoirs would not be physically located on indigenous lands, there was no need for consultations with indigenous peoples.

Artist’s rendition of the Belo Monte dam (Image from promotional video created by Electrobras)

Citing evidence from official sources and independent researchers, the judge concluded that the diversion of 80 percent of the Xingu River into artificial channels and three reservoirs would have devastating impacts downriver for the Arara, Juruna and Xikrin Kayapo indigenous peoples. There would be inevitable losses to the tribes’ ability to catch fish, raise crops, and navigate freely, she said.

The vote is the first step in a federal circuit court decision in a lawsuit filed in 2006 by the Federal Public Prosecutors’ Office that could ultimately bring the case before Brazil’s Supreme Court. If Judge Almeida’s decision is upheld by the high court, the Belo Monte dam project will be suspended immediately.

If it is ever built, the 11,000-megawatt dam in the state of Para would be the third largest in the world after China’s Three Gorges dam and the Itaipu dam on the Brazil-Paraguay border.

In her decision, Judge Almeida agreed with public prosecutors that the 2005 legislative decree authorizing construction of the Belo Monte dam is illegal because a consultation process with threatened indigenous communities – guaranteed under Article 231 of the Brazilian Constitution – was not first carried out by Congress.

Judge Selene Maria de Almeida (Photo courtesy Dicas de Brasilia)

Judge Almeida ruled that Brazil’s Congress has a special responsibility to weigh the benefits of a development project such as Belo Monte against its negative consequences for indigenous peoples.

“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.”

In her ruling, Judge Almeida cites the need for Brazil to comply with its commitment to the International Labour Organisation’s Convention 169, a treaty that requires free, prior and informed consent among indigenous peoples regarding projects that affect their territories and livelihoods.

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

Following Judge Almeida’s vote, another judge, Judge Sebastiao Fagundes de Deus, interrupted the court hearing, requesting more time to examine the lawsuit’s documentation.

Sheyla Juruna (Photo courtesy Amazon Watch)

Critics of the dam believe the request by Judge Fagundes de Deus, a conservative who previously worked as a lawyer with the state-run energy company Eletronorte, may be seeking to transform the Belo Monte dam project into a done deal.

It is likely that the final judicial vote on this lawsuit will be taken within weeks.

“I see this as a partial victory,” said Sheyla Juruna, a leader of one of the indigenous communities threatened by the Belo Monte dam. “Now more than ever we need to pressure the government.”

“What I fear most,” said Juruna, who is touring the United States pleading the cause of her people, “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.”

Red dot marks the location of the Belo Monte dam siteon the Xingu River (Map courtesy Wikipedia)

The Belo Monte dam has reached this stage after a series of contentious stops and starts. Plans for the dam began in 1975 but were halted by controversy; they were later revitalized in the late 1990s.

The Norte Energia consortium won the rights to build and operate Belo Monte in an auction held in April 2010.

The consortium is controlled by the state-owned power company Eletrobras, which directly (15%) and through its subsidiaries Eletronorte (19.98%) and CHESF (15%) controls a 49.98% stake in the consortium. In July 2010, Eletrobras listed 18 partners in the consortium.

The dam complex is expected to cost upwards of US$16 billion and the transmission lines another $2.5 billion, funded largely by the Brazilian Development Bank.

On August 26, 2010, a contract was signed with Norte Energia to construct the dam once the Brazilian Institute of Environment and Renewable Natural Resources, IBAMA, issued an installation license. Under pressure to grant a full installation license, IBAMA President Abelardo Bayma Azevedo resigned in January 2011. A partial license was granted days later on January 26, 2011.

One of many public protests against the Belo Monte hydroelectric dam, August 19, 2011 (Photo courtesy Survival International)

On February 25, the Federal Public Prosecutor filed its 11th lawsuit against the dam, suspending IBAMA’s partial installation license, on the grounds that the Brazilian Constitution does not allow for the granting of partial project licenses. The prosecutor also argued that the 40 social and environmental conditions tied to IBAMA’s provisional license of February 2010 had yet to be fulfilled, a prerequisite to the granting of a full installation license.

On March 3, that decision was overturned by a higher court, which allowed preliminary construction to begin.

A license to construct the dam was issued on June 1, 2011 but construction was again blocked by a federal judge on September 27 when Judge Carlos Castro Martins ruled in favor of fisheries groups and placed limits on dam construction.

Judge Martins’ decision bars the Norte Energia consortium from “building a port, using explosives, installing dikes, building canals and any other infrastructure work that would interfere with the natural flow of the Xingu River, thereby affecting local fish stocks.”

Also on September 27, the mayor’s office of Altamira, a former supporter of the dam, requested that the national government headed by President Dilma Rousseff suspend the project until her government can meet its guarantee to mitigate the social and environmental impacts.

In addition to the dam’s impact on fisherfolk’s livelihoods, Judge Martins cited the harm the dam could cause to the region’s indigenous peoples, for whom local fish are a staple food.

According to the nonprofit Survival International, the Kayapo tribe has warned that if the dam is built, the Xingu could become a “river of blood.”