In a decision which has fundamental implications for the Brazilian government’s relationship with indigenous people, the Federal Regional Court 1 (TRF1) in Brasilia unanimously upheld an earlier decision by the Federal Court in the State of Pará on appeal. The court ruled that the 2005 Congressional Decree which allowed the Belo Monte dam project to be developed was illegal, and accordingly annulled it. The effect is that all of the subsequent environmental licensing process is also invalid. The appeal court also upheld the lower court’s decision that the Government acted in flagrant breach of the United Nations International Labour Organisation Convention 169, of which Brazil is a signatory and which is therefore incorporated into Brazilian Law.
This decision is extremely important. It recognises that the Brazilian government has failed to respect fundamental issues of legality, including its own constitution, its own human rights and environmental legislation, and its international obligations. It was handed down unanimously by three judges sitting in a higher court in the capital. It is made on the basis of the legislation and irrespective of the government’s overriding ambitions. And it is unequivocal in its condemnation.
The court imposed an immediate halt to the construction of the dam, with a daily fine of R$500,000 for any breach. In an interview following the ruling, Judge Souza Prudente was damning; “We are not fighting the government’s acceleration project,” he said. “But it cannot be a dictatorial process. The communities are crying out to be heard but they continue to be ignored. The model of preliminary authorisations followed by studies after the event for hydroelectric dams needs to be looked at again because it is authoritarian and unacceptable.”
Public Prosecutor Felicio Pontes, the author of the original action, said “The legislative decree which authorised Belo Monte without consulting the Indians was a truly monumental affront to the Constitution.” According to him, because the judgement relates to the constitution, the only recourse open to the government now is an appeal to the Supreme Court.
If it chooses to respect this decision, the government will have to go back to the beginning and instigate properly-constituted consultations with the indigenous communities involved, which have to be carried out by Congress and not by the partisan organisations which have so far been involved with the consultations – such as they were – carried out as part of the licensing process. It will then have to go through the steps of obtaining approval from the government agencies involved before it can issue new licenses, since those already in place are no longer valid.
But it is unlikely that the government will be willing to take this legal and democratic route. The same court handed down a judgement a week earlier on another dam project, on the Teles Pires River, in which its judgement was based on the same issues. Again the judgement was unanimous and unequivocal. But just a week later the President of TRF1, Mário César Ribeiro, sitting in chambers, set aside the injunction and permitted the continuation of work on the Teles Pires pending a further appeal. It seems likely that we will see this same process of a judge sitting secretly in chambers overturning the decision of a panel of judges sitting under public scrutiny in an open court in the case of Belo Monte.
Nonetheless, this decision is a great triumph for the cause of the environment, indigenous people and Brazilian democracy and justice. It represents a landmark in the relationship between the executive and the judiciary, with the judiciary finally being prepared to stand up for their own independence and authority in the face of enormous pressure from the Rousseff government.