Arayara Association of Education and Culture and others v. FUNAI, Copelmi Mineração Ltda. and FEPAM (Mina Guaíba Project and affected indigenous communities)
Jurisdiction: 9th Federal Court of Rio Grande do Sul
Side A: Poty Guarani Indigenous Association
Side A: Arayara Association of Education and Culture
Side B: FEPAM
Side B: Copelmi Mineração Ltda
Side B: FUNAI
Core objectives: Whether the permitting of a open-pit coal project has been conducted without the participation of indigenous communities and considerations of GHG emissions.
On September 27, 2019, the Arayara Association of Education and Culture and the Poty Guarani Indigenous Association filed a Public Civil Action, with a request for a preliminary injunction, proposed by against FUNAI (the Brazilian agency for Indigenous groups), Copelmi Mineração Ltda., a mining company, and FEPAM (the state environmental agency). Subsequently, CAPG and the Comunidade da Aldeia Guarani Guajayvi joined the claim as plaintiffs. The plaintiffs ask the court to suspend and cancel the environmental permitting process for the Guaíba Mina Project, led by Copelmi, considered the largest open-pit coal project in the country. The authors claim that there is non-compliance with legal norms and omissions in the Environmental Impact Study (EIA), as well as the absence of prior, free and informed consultation with the indigenous people of the Poty Guarani Indigenous Association, especially the Aldeia (TeKoá) Guajayvi of the MByá Guarani people, located in Charqueadas/RS, less than 3 kilometers from the project site. When the case was filed, the project was in the preliminary permitting phase with FEPAM. According to the Consultation Notices referring to the environmental impact assessment, four public hearings were held. After the first two hearings, the period for sending public comments related to the project began. The authors allege that Aldeia Guajayvi submitted a request to submit comments, but was not heard. The plaintiffs therefore intend to prevent the development of the environmental permitting procedure while there is no proper assessment of the technical and locational feasibility of the project, including considering the State Policy on Climate Change (State Law 13,594/2010).
The plaintiffs claim that coal mining generates relevant social and environmental impacts to nearby communities, and can cause irreparable environmental damage to these populations, especially due to atmospheric emissions of methane gas, spills and leaks of GHG, effluents and contamination of surface and underground waters, acid mine drainage, among others. They understand that national and international norms relating to indigenous rights have been violated, especially Convention 169 of the International Labor Organization (ILO). In this sense, they argue that the absence of consultation with the indigenous community leads to the nullity of the EIA, requiring the suspension of the permitting process and subsequent annulment, so that specific consultation protocols are installed for the indigenous people who inhabit the region. They further claim that the Guaíba Mine will directly and permanently affect the indigenous community, violating their rights established by the constitution and international standards, generating several impacts. The plaintiffs claim that the defendants did not adopt measures aimed at allowing the maintenance of the indigenous community's ways of life. Further, FUNAI remained silent throughout the process, since it did not adopt preventive measures to safeguard the regular compliance with the permitting procedure, or support the indigenous people in the defense of their interests. The plaintiffs requested an injunction to immediately suspend of the permitting process until the final judgment. On the merits, they required the declaration of nullity of the permitting process.
On February 21, 2020, the court of first instance granted the injunction and suspended the environmental permitting process, until the analysis by FUNAI of the Study of the Indigenous Component (ECI) is included in the EIA, prior to the issuance of an eventual permit by FEPAM, due to the following main reasons: (i) the continuity of the Project's licensing procedure without the inclusion of the ECI in the EIA and the lack of hearing from the affected indigenous communities will cause irreparable damage, based on ILO Convention 169; (ii) FEPAM should have asked FUNAI opine on the permit before issuing the permit, as there was no analysis by the ECI and prior hearing of the affected indigenous communities; (iii) FEPAM, before issuing the permit, must await the preparation and analysis of the ECI, as well as prior, free and informed consultation with the affected indigenous communities.
On November 4, 2020, Copelmi filed a defense alleging, preliminarily, that (i) the request does not logically follow from the cause of action, which would give rise to the termination of the permitting process and that (ii) there is a lack of interest on the part of the plaintiffs. The company claimed that there was still no pronouncement from FEPAM regarding the environmental feasibility of the project and that, therefore, the agency has not yet decided on the possible granting of a permit. It argued that the case seeks to interrupt the evaluation by FEPAM and transfer to the judiciary the analysis of the merit of the environmental permitting process. The company further claimed that the damages presented by the authors do not exist and that part of them were contemplated and incorporated in the permitting, and FUNAI issued the terms of reference to carry out an ECI. In addition, it stressed that the only indigenous land around the project would be more than 8 km from the site, with no need for FUNAI to participate in the permitting conducted by FEPAM, nor for ECI to be carried out. However, after FUNAI confirmed the need for its participation and the preparation of an ECI, the company continued with the procedure. Therefore, it observed the prior consultation provided for in ILO Convention 169. Moreover, it stated that the process is still in the early permitting phase, and there can be no claim on the nullity of the permit. Finally, it requested: (i) the dismissal of the process without judgment on the merits, due to the ineptitude of the initial petition and lack of procedural interest; and (ii) the dismissal of the request. FEPAM, on the other hand, contested the claim and stated that there was no reason to be a defendant, since it does not oppose the intervention of FUNAI or an indigenous community in the permitting process. It claimed that it held two public hearings, which were widely publicized, guaranteeing the participation of interested parties. It highlighted that it has not yet concluded the analysis of the EIA presented by Copelmi. It defended the regularity of the project's environmental permitting process and the absence of environmental damage resulting from the project. It reinforced that there was no opposition regarding the participation of indigenous groups or the elaboration of the ECI. Finally, it requested the dismissal of the process without judgment on the merits in relation to FEPAM and that the demand against the agency to be dismissed.
FUNAI claimed it intervened in the permitting process to protect the interests of indigenous peoples, and it was not possible to allege an omission. It highlighted that, in April 2020, the terms of reference for the preparation of the ECI was forwarded to FEPAM. However, due to COVID-19 pandemic, entry into indigenous lands was suspended. It requested (i) the recognition of its illegitimacy as a defendant, with the extinction of the process without resolution of the merits, and (ii), on the merits, the recognition that there was no omission by FUNAI in monitoring the licensing.
On February 8, 2022, the federal court of Rio Grande do Sul handed down a ruling. The upheld the requests of the Arayara Association of Education and Culture and the Poty Guarani Indigenous Association to declare the nullity of the Mina Guaíba Project permitting process, ratifying the decision on the injunction. It rejected the preliminary allegations of incompetence of the Federal Court, of lack of procedural interest of the plaintiffs and of illegitimacy of FUNAI as a defendant. On the merits, the Court recognized the rights of indigenous communities to participate in decisions that may affect their way of life and culture. It concluded that the project's permitting process is already at an advanced stage, having carried out an EIA that disregards the existence of an indigenous community and that there was no participation in the discussions. It understood that the mere formal manifestation of FUNAI does not meet the need for hearing from the indigenous community potentially affected by the activity to be authorized. Thus, it accepted the plaintiff's requests to declare the nullity of the licensing process for the Mina Guaíba project.