Legal World: Claims of dammed lies as Brazil faces up to energy vs environment debate

It is one of more than a dozen tributaries forming the Amazon Basin which, one after another, pour out their waters into that single, great river: each one winding its way through a combined area of more than three million square miles of dense, tropical rain forest. To put it in context, that’s just a fraction less than the entire land mass of the United States.

The Xingu joins the Amazon from the south, close to its Atlantic delta, and any picture of it tends to reflect the classic Amazonian image we all have: muddy waters snaking through forests so vast they are difficult to comprehend, while the indigenous people wave from their waterside clearings, or paddle close to the banks.

Of course, that image is only one aspect of modern Brazil. Another is Brazil’s ‘economic miracle’: the country clawed itself back from a financial abyss to the point, last month, where it edged ahead of the UK to become the world’s sixth-largest economy. Like all growing economies (and indeed, like many mature ones) Brazil needs energy.

Part of the solution, decided upon in 2010 by the Brazilian government, is a green light for the construction of what has been named the Belo Monte hydroelectric dam on the lower reaches of the Xingu. When completed, it will rank as the third-largest on Earth behind China’s Three Gorges dam (completed in 2006) and the Itaipu complex on the Brazil-Paraguay border (completed in 1991). It will see a vast stretch of the Xingu in front of the proposed dam dry up permanently, while a 200 square mile area behind it will be submerged. Following a tendering process, the Brazilian government last June awarded a licence to the public/private Norte Energia consortium to build and operate the dam.

The government has said the project will provide a source of clean, renewable energy, while indigenous groups and high-profile environmentalists (apparently including Sting, film director James Cameron and actress Sigourney Weaver) claim the dam will devastate wildlife, destroy the livelihoods of 40,000 people and deal a further hammer blow to the delicate Amazonian ecosystem.

Both prior to and after the June licence grant, those groups have backed legal action to stop the project going ahead and a confusing game of legal cat and mouse has ensued. Despite legitimate claims of lack of consultation among the people to be affected, and key failures brought to light in the environmental impact assessments, Brazil’s higher courts have given their blessing and in November confirmed the project can proceed.

While this is clearly a project which the government sees as vital to the national interest, the planning and implementation aspects appear fraught and rather crude when measured against European standards of planning law. For example, nothing akin to a public inquiry preceded the government’s decision, all the more surprising, perhaps, when reflecting that this is, after all, the Amazon rainforest which is being discussed. At least one federal judge last year pointed out that the Brazilian government, in its handling of the project, was in breach of its treaty obligations under the International Labour Organisation’s Convention 169 – a treaty that requires free, prior and informed consent among indigenous peoples regarding projects which affect their territories and livelihoods.

But can we be too judgmental of another sovereign state when it comes to the handing of what are, after all, its own resources? I suppose it might be argued that detailed and exhaustive planning laws are the preserve of already overdeveloped countries with limited space; and that countries such as Brazil, having vast areas of unspoilt land, need not trouble themselves with the minutiae. But, standing back for a moment and considering how precious the wildernesses of the world are today, isn’t that more than a little ironic?

• Stephen O’Rourke is an advocate depute and member of Terra Firma Chambers.