On 5 November, the communities in Brazil who were affected by the collapse of the Fundão tailing dam marked the 9th anniversary of this disaster which took away 19 lives and caused massive environmental damage, polluting the waters and wildlife of Rio Doce from the mountains to the sea in 600 km downstream. The communities argue that the tailings dam collapse was not a disaster but a crime, as it could have been prevented with adequate safety measures and management.
The open cast iron ore mine in the State of Minas Gerais was operated by Samarco, a joint venture between Brazil’s Vale and formerly Anglo-Australian, now only Australia-based BHP. After the catastrophe, the mine reopened in 2020 and operates today under the same ownership. A court case against BHP, a class action representing more than 600,000 affected, is currently taking place at the High Court in London, alongside a number of other legal legal actions in Brazil and beyond.
Just days ago, on 25 October, a compensation settlement titled “Repactuação Rio Doce” (“Rio Doce Renegotiation”) was signed between The Federal Government of Brazil, State of Minas Gerais, State of Espirito Santo on the one side, and the companies in question: Samarco Mineração S.A., BHP Brasil and Vale S.A. It was lauded as a success by the authorities and the company representatives, and Brazil’s President Luiz Inácio Lula da Silva was present at the signing at the Presidential Palace. In their press release, Vale calls this a “Definitive Settlement” of claims, “the result of a high-level mediation process.”
Pogust Goodhead, the law firm leading the class action against BHP in London, issued a statement regarding the announced settlement deeming that it was “a desperate attempt by BHP to avoid being held accountable in court,” and warned that it will not impact the trial. They further claim: “Our clients were not included or consulted at any time during the settlement process in Brazil, which has been conducted behind closed doors and under confidentially since the beginning.”
Movimento dos atingidos por barragens (MAB – “The Movement of People Affected by Dams”) and Associação Nacional dos Atingidos por Barragens (ANAB – “The National Association of People Affected by Dams”) submitted a petition to the Federal Supreme Court questioning Repactuação settlement, reasserting the lack of participation of all affected communities and individuals in the process, as well as the form of recognition of indigenous peoples, peoples and traditional communities, and questioned the necessary observance of ILO 169, among other violations.
We reproduce below their statement in full, translated from Brazilian Portuguese:
MAB GOES TO THE FEDERAL SUPREME COURT FOR POPULAR PARTICIPATION AND RIGHTS IN THE RENEGOTIATION
Petition to the STF questions various points of the Agreement and asks for a suspension of individual indemnity clauses
The Movement of People Affected by Dams (MAB) and the National Association of People Affected by Dams (ANAB) have sent a petition to the Centre for Consensual Conflict Resolution (NUSOL) of the Federal Supreme Court (STF), presenting questions and requests regarding the Rio Doce renegotiation agreement, which has reached the court and is awaiting ratification.
The petition questions points relating to the necessary observance of the National Policy for People Affected by Dams (PNAB) and the State Policy for People Affected by Dams in the State of Minas Gerais (PEAB) and Convention 169 of the International Labour Organisation (ILO). It also discusses the situation of informal workers and the non-recognition of territories in Espírito Santo and southern Bahia. Finally, it asks for the exclusion of the discharge clauses relating to the Definitive Indemnity Programme (PID).
The Rio Doce renegotiation involves a set of actions totalling around R$130 billion in new resources to repair the individual and collective damage that has occurred since 5 November 2015 and which will be the responsibility of governments and mining companies until 2045.
The document, which is over 1,300 pages long, only came to the attention of those affected on the day it was signed in Brasilia on 25 September. A careful reading shows that “more than one and a half million people affected by the dam collapse did not participate in the Agreement. Although they insistently demanded a seat at the renegotiation negotiating table, they were not granted the right to participate,” says the MAB in a petition.
The petition cites the articles of the PNAB and PEAB/MG, which were violated in the process, and asks that the right to participation and negotiation provided for in art. 3, IV, of the PNAB and art. 3, III and IV of the PEAB be respected in the present procedure before NUSOL, which, given its experience, could promote due inclusion and bring effectiveness to the right legally guaranteed to individuals to participate in the reparation procedure. It also asks that, when the renegotiation is ratified, a Local Committee be set up to monitor its implementation, under the terms of art. 3, §1, art. 5, sole paragraph and art. 7 of the PNAB.
Another point of questioning is the way in which indigenous and traditional peoples and communities are recognised. Despite the progress made in guaranteeing this historical reparation fund, the fact that it only serves communities recognised by the Inter-Federative Committee (CIF/IBAMA) leaves many communities without access to the right, including those recognised by the Palmares Foundation.
“We know that the Renova Foundation has made it very difficult for traditional communities to access programs throughout the Basin. In the middle Rio Doce region alone, 33 communities are served by technical advisors, and the vast majority are not included in the Agreement,” says Thiago Alves, a member of the MAB coordination team.
For the MAB, the Brazilian state’s omission is blatant. “The ILO Convention establishes that self-recognition as a traditional community should be the criterion for determining the groups to which the law applies. In this case, both the traditional communities recognised by the state and the self-recognised communities located in the affected territories must be covered by the renegotiation. This is what we are demanding in the petition,” adds Thiago.
Against abusive clauses and discrimination in the Definitive Indemnity Programme (PID)
The petition sent to the STF also questions several points of the new individual indemnity process, which offers the amounts of R$35,000 and R$95,000 with final settlement of present and future damages. MAB and ANAB denounce that the requirement for a National Family Farming Register (CAF) or Declaration of Aptitude to the National Programme for Strengthening Family Farming (DAP) and a General Fishing Register (RPG) in order to apply for specific compensation in the amount of R$95,000.00 gives unequal treatment to people who carry out the same activities, just because some of them don’t have the documents required by the mining companies.
“The treatment that will be given is a step backwards from what was practised by the Renova Foundation, since it had already established a flow of assistance and compensation for fishermen, even when it was not possible to present the RPG. In the petition, we demand that clauses 56 to 65 of Annex 2 of the Agreement be amended to extend the programme to family farmers and informal artisanal fishermen. This is very important to avoid injustices and the exclusion of many people,” says Letícia Faria, a member of MAB’s national coordination.
Another key issue is the final discharge. For the movement, with regard to the Definitive Indemnity Programme (PID), the broad and unrestricted discharge clause provided for in the Agreement cannot be ratified, because the Definitive Indemnity Programme (PID), as provided for in the Renegotiation, violates the PNAB in more than one respect. “As stated in the petition, it is absolutely unacceptable for a compensation programme designed without the participation of those affected to have broad and unrestricted discharge. Articles of the PNAB and PEAB have been ignored, as well as forcing those affected to forgo seeking justice by other means,” emphasised Thiago Alves.
At the end of the document, the petition reaffirms the requests:
a) prior to homologation, that the right to participation and negotiation provided for in art. 3, IV of the PNAB and art. 3, III and IV of the PEAB be respected in the present procedure before NUSOL;
b) when the renegotiation is ratified in due course, that a Local Committee be set up to monitor its implementation, under the terms of art. 3, §1, art. 5, sole paragraph and art. 7 of the PNAB;
c) in accordance with the provisions of ILO Convention 169, the renegotiation should include all the communities certified by the Palmares Foundation in the territories affected, as well as other traditional communities that are self-recognised;
d) that clauses 56 to 65 of Annex 2 of the Agreement be amended to extend the compensation programme to family farmers and artisanal fishermen;
e) that the criteria for recognising the status of fishing communities located on the coast of the state of Espírito Santo be reviewed, in order to guarantee full fair compensation and equal treatment for all fishermen affected by the collapse of the Fundão dam;
f) that the Agreement be amended so that mechanisms are created to enable the municipalities of southern Bahia – Nova Viçosa, Caravelas, Alcobaça and Prado – and their fishing communities to participate in reparation and compensation programmes;
g) that mechanisms be set up to monitor and control decisions rejecting individual compensation claims;
h) items 3 (Discharge) and 4 (Waiver of Claims and Legal Actions) of Appendix 2.10 of Annex 2 of the Agreement not be ratified.
“This document is one of the tools for continuing the struggle in this new phase in the history of repairing the damage to the Doce River Basin. We’re not giving up the fight. At the same time, we will be gathering in Mariana for another day of street mobilisation, to remember and continue strengthening grassroots organisation to understand the agreement, take ownership of it and fight to make the advances effective and overcome the limits and problems,” says Thiago Alves.
MAB’s Journey of Struggles in the nine years since the collapse of the Fundão dam has as its motto “Fight and organise for rights to be won,” with an agenda of interventions starting in Bento Rodrigues at 9am. At the same time, a plenary session will be held at Arena Mariana with more than 500 people affected from Minas Gerais, Espírito Santo and southern Bahia to discuss the Repactuação. At 2.30pm, the movement will march through the city, ending at Minas Gerais Square.
(The statement was machine-translated, for further use please refer to the original.)