Prof. Solange Teles da Silva, Mackenzie/CNPq Fernanda Salgueiro Borges, Mackenzie Scholarship South Africa, 2011

Do Brazilian High Courts take into account social and environmental issues in their decisions dealing with water conflicts? I – Dams cases in Superior Courts of Appeal - Brazil II– Belo Monte Dam and the role of Public Prosecutors and Judges, Civil Society and IACHR

The Brazilian Judiciary State JusticeFederal Justice State Court (26) Regional Federal Courts (5) Superior Court of Justice (Superior Tribunal de Justiça – STJ) Federal Supreme Court (Supremo Tribunal Federal -STF) Constitutional cases

 Ownership of Water = All Brazilian Waters are publicly owned: a) Public Property of the Union (Federal Waters); b) States Waters  The water can be used and explored by an administrative act (concession of use, authorization of use and permission of use).  Article 176. Mineral deposits, under exploitation or not, and other mineral resources and the hydraulic energy potentials form, for the purpose of exploitation or use, a property separate from that of the soil and belong to the Union, the concessionaire being guaranteed the ownership of the mined product.  Ministry of Mines and Energy – a) Inventory Hydraulic energy potential studies; b) Feasibility Studies of Hydroelectric Projects; c) Bidding process.  Ministry of Environment – a) Declaration of Water Availability Reservation (DRDH), obtained from the governing bodies of water resources, ANA or state institutions; b) Environmental License: IBAMA (Brazilian Institute of Environment and Renewable Natural Resources) or States Environmental Agencies. The legal treatment of waters in Brazil

= STF: 11 DECISIONS 2 = STJ: 106 DECISIONS 3 = TRF: 438 DECISIONS I - Dams cases in Superior Courts of Appeal Brazil

Study of “555” Dam’s Cases presented to the Superior Courts of Appeals ( ) Different Cases social security, taxes, crimes, administrative misconduct (14) and other cases Total = 196 Procedural issues (administrative and judicial competences, and others) Total=144 Environmental impact assessment = 23 Lack of indigenous hearings = 8 Total = 31 Liability: environmental damage = 82 displaced people = 102 Total = 184

Hydroelectric plants MAP OF ANEEEL.COM.BR Sources: potential above 10MW’s and untill 10 MW’s. The little potential dams don’t need Union’s authorization to be constructed.

II – Belo Monte Dam and the role of Public Prosecutors and Judges - “Belo Monte and Indigenous Lands”

II – Belo Monte Dam and the role of Public Prosecutors and Judges 1 st Phase -1975: Hydroelectric Inventory Studies of the Xingu River Basin Completed the report Hydroelectric Inventory Studies of the Xingu River Basin: a) megawatts (MW) = half of the Brazilian hydroelectric capacity at the time; b) the flooding of more than km2 and reached Indians, 12 Indian Lands, beyond the isolated groups in the region – This report is approved Held the 1st Meeting of - Indigenous Peoples of the Xingu -

II – Belo Monte Dam and the role of Public Prosecutors and Judges 2 nd Phase New Project. The plant's reservoir, for example, is reduced from 1,225 km2 to 400 km2, avoiding the flood of Indigenous Area Paquiçamba – 11 Actions in Justice (Public civil action – Public Prosecutors) - environmental impact assessment - indigenous rights (indigenous hearing’s procedure) - environmental license procedure - public hearings - bidding procedure

II – Belo Monte Dam, Civil Society and IACRH November 2010 – Brazilian humans rights and environmental organizations submitted a formal petition to the Inter-American Commission on Human Rights (IACHR) denouncing grave and imminent violations upon the rights of indigenous and riverine communities that will be affected by the construction of Belo Monte Dam April On April 1 st, the IACHR granted precautionary measures for the members of the indigenous communities of the Xingu River Basin in Pará, Brazil. The request for precautionary measure alleges that the life and physical integrity of the beneficiaries is at risk due to the impact of the construction of the Belo Monte hydroelectric power plant. The IACHR requested that the State of Brazil immediately suspend the licensing process for the Belo Monte Hydroelectric Plant project and stop any construction work from moving forward until certain minimum conditions are met..

II – Belo Monte Dam, Civil Society and IACHR The State must (1)conduct consultation processes, in fulfillment of its international obligations—meaning prior consultations that are free, informed, of good faith, culturally appropriate, and with the aim of reaching an agreement—in relation to each of the affected indigenous communities that are beneficiaries of these precautionary measures; (2) guarantee that, in order for this to be an informed consultation process, the indigenous communities have access beforehand to the project's Social and Environmental Impact Study, in an accessible format, including translation into the respective indigenous languages; (3)adopt measures to protect the life and physical integrity of the members of the indigenous peoples in voluntary isolation of the Xingu Basin, and to prevent the spread of diseases and epidemics among the indigenous communities being granted the precautionary measures as a consequence of the construction of the Belo Monte hydropower plant. This includes any diseases derived from the massive influx of people into the region as well as the exacerbation of transmission vectors of water-related diseases such as malaria

“Hydroelectric plants planned to be constructed in Amazon Region until 2016 ”