The Federal Court emphasizes the importance of the Local Commissions of Affected People being attentive to the creation of a plural and democratic space and determines the measures that must be taken to consolidate them.

 

In a court decision of May 24, 2023 on Priority Axis 7, which deals with issues related to registration and compensation, the 4th Federal Civil and Agrarian Court of the Judiciary Section of Minas Gerais determined the measures that must be taken to consolidate the Local Commissions of Affected People and integrate them into the work of the Independent Technical Advisors (ATIs). Click here to access the full document.

In the decision, the Federal Court recognizes the importance of the role played by the various Commissions of Affected People in the reparations process. And, in line with the  manifestation of the Justice Institutions, she highlights the need for the Local Commissions of Affected People to be attentive to the creation of a plural and democratic space that guarantees broad participation and a diversity of opinions, with transparent action, under the terms determined by the TAC Governance.

The TAC Governança is an extrajudicial instrument for alternative conflict resolution, established in 2018, with the aim of swiftly executing the legal demands proposed in the Samarco case. This instrument was designed so that those affected can take control of the process of full reparation for the damage caused by the collapse of the Fundão dam, and no longer remain on the sidelines and at the mercy of the will and decision of the companies Samarco Mineração S/A, Vale S/A and BHP Billiton, and the Renova Foundation.

With the new court decision, the aim is for the various Commissions of Affected People that were set up as part of the reparations process to be consolidated into a single Local Commission of Affected People for each municipality. This model would take into account the municipalities covered by the TTAC and CIF Resolution No. 58 of 2017; the structure provided for in the TAC Governance.

The Local Commissions will continue to have the duty to ensure the participation of any affected person in their municipality who is interested in the process of reparation for the Rio Doce Basin. They will also have to commit to establishing Internal Regulations to regulate their activities, and to report to the justice institutions every six months on the activities carried out.

Consolidation of Local Commissions and work with ATIs

In order to consolidate the Local Commissions, TAC Governance provides for the support of the Independent Technical Advisors (ATIs) and their Methodological Coordination. Once consolidated, it will be the affected people’s organizational spaces that will enable them to legitimately participate in the reparations process and its governance structure. 

Seeking greater transparency and communication between the various groups and institutions working to repair the damage caused by the collapse of the Fundão dam, the Federal Court is calling on the Commissions of Affected Parties that have obtained or sought recognition of their legitimacy in legal proceedings, whether municipal or district, to provide a set of documents and clarifications in their respective proceedings aimed at proving their legitimacy, with a view to consolidating the Local Commissions of Affected Parties, under the terms of the TAC Governance. 

In this sense, the Commissions of Affected Parties at district level, which have claimed or had their legitimacy recognized in the reparations process, must also comply with the court orders and seek their integration and/or consolidation at municipal level, in the structure provided for in the TAC Governance. The Commissions of Affected Parties covered by the court decision must prove that they are in dialog with the respective Independent Technical Advisors of their territories, and can count on their support in drawing up the report on the activities carried out in order to comply with the court decision.

Risk of suspension for non-compliance

According to the decision, unjustified failure to comply with the order to provide information and documents and to maintain contact with the Independent Technical Advisors will result in the immediate suspension of the legitimacy of the Commission of Affected Parties to manifest itself in the proceedings and to participate in meetings of the Inter-Federative Committee (CIF) and hearings, until they comply with the determinations of the decision.   

With regard to local and district commissions with recognized legitimacy but which are located in places where there is no active ATI at the moment, they should limit themselves to providing the clarifications and documents requested by the Justice Institutions, in the respective files where their legitimacy was recognized.

The Federal Court also establishes that if the information requested, aimed at proving the consolidation of the Local Commissions under the terms established by the TAC Governance, is not provided, a direct consultation procedure will be carried out with the population, with the participation of the Independent Technical Advisors, the Brazilian Bar Association (Ordem dos Advogados do Brasil – OAB) and local executive bodies, in order to initiate a new procedure for confirming representativeness, through the creation of a new Local Commission of Affected People that represents the locality, for all purposes, within the scope of the reparation process.

In order to systematize the documentation and information that will have to be handed over to the Federal Court and in dialogue with the proposal made by the Justice Institutions, the decision groups  the committees of those affected according to the stage of recognition of their legitimacy in the judicial sphere:

i)  Local Committees  and District Committees with legitimacy recognized in legal proceedings; 

ii) Local and District Commissions with legitimacy recognized in legal proceedings, in territories without Independent Technical Advisory currently active;  

iii) Local and District Commissions that have claimed their legitimacy in legal proceedings, without recognition in the respective proceedings (located in the area of TTAC and CIF Deliberation 58).

The following table shows the documents and information that must be submitted within 30 days  to  Justiça Federal by the Local and District Commissions included in groups i, ii and iii above.  

In order to meet the objectives of the court decision and help consolidate the Local Commissions, under the terms set out in the TAC Governance, the Commissions of Affected Parties participating in the reparation process who have never applied for recognition in a judicial process, should contact the Technical Advisory Office in their territory, until July 18, 2023, to submit information regarding their performance and interest in joining and/or consolidating as a Local Commission in the respective municipality.

i) Local and District Committees WITH legitimacy recognized in legal proceedings.

They must provide the following data and documents on files in which their legitimacy has been recognized:

1) Provide the full address of the current headquarters of the Commission of Affected People, as well as the names and contact details (e-mail and/or telephone) of its members.

2) Inform us if any of its members have ever received or are receiving any kind of remuneration to work in the Commission of Affected People, including any percentages for referrals of clients to lawyers.

3) Demonstrate the procedures for choosing the members who currently make up the Commissions of Affected People, highlighting the actions to guarantee gender parity in their composition.

4) Inform where the meetings of the Commissions of Affected People were and are held.

5) Demonstrate how the meetings of the Commissions of Affected People were publicized, in sufficient time to guarantee the participation of any interested affected person, showing the means of communication used.

6)  Bring together the memories, minutes or recordings of the meetings already held by the Local Commissions of Affected People, especially those that refer to the rounds of negotiations held with the polluting companies (Samarco, Vale and BHP) and the Renova Foundation, in which no consensus was reached, which were mentioned by the decisions that set NOVEL for the respective territory of action, handed down in cases separated from Priority Axis No. 07, in which the Local Commissions are plaintiffs.

 7) Share information with the Federal Public Prosecutor’s Office and other entities/institutions provided for in Clause Fifteen of the TAC/GOV, pertinent to the reality of the territory in which the respective Local Commissions of Affected People operate, highlighting the problems detected.

8) Draw up, with the support of the ATIs, a report on the activities carried out by the Local Commissions of Affected People. As stipulated in Clause Fifteen of the TAC/GOV, the document should be sent to the Federal Public Prosecutor’s Office, the State Public Prosecutor’s Offices and the Public Defender’s Offices of the Federal Government and the states of Minas Gerais and Espírito Santo.

9) According to the decision, the Commissions must also present evidence of the actions taken to promote the integration of the spaces for consolidating the Commissions into a Commission with municipal representation, allowing the participation of affected people from the entire locality, in order to respect the limit established by the TAC/GOV of matching the number of Local Commissions with the number of municipalities impacted.

10) Finally, the Commissions should also contact the Independent Technical Advisors installed in their respective territories in order to establish communication between the leadership and the ITAs, providing telephone, e-mail and other means of contact for future projects.

ii) Local and District Committees WITH legitimacy  recognized in legal proceedings, in Territories WITHOUT an active ATI at the moment.

They must provide the following data and documents on files in which their legitimacy has been recognized:

1) Provide the full address of the current headquarters of the Commission of Affected People, as well as the names and contact details (e-mail and/or telephone) of its members.

2) Inform us if any of its members have ever received or are receiving any kind of remuneration to work in the Commission of Affected People, including any percentages for referrals of clients to lawyers.

3) Demonstrate the procedures for choosing the members who currently make up the Commissions of Affected People, highlighting the actions to guarantee gender parity in their composition.

4) Inform where the meetings of the Commissions of Affected People were and are held.

5) Demonstrate how the meetings of the Commissions of Affected People were publicized, in sufficient time to guarantee the participation of any interested affected person, showing the means of communication used.

6)  Collect the memories, minutes or recordings of the meetings already held by the Local Commissions of Affected People, especially those that refer to the rounds of negotiations held with the polluting companies (Samarco, Vale and BHP) and the Renova Foundation, in which no consensus was reached, which were mentioned in the decisions that established NOVEL for the respective territory of action, handed down in separate cases of Priority Axis No. 07, in which the Local Commissions are plaintiffs.

 7) Share information with the Federal Public Prosecutor’s Office and other entities/institutions provided for in Clause Fifteen of the TAC/GOV, pertinent to the reality of the territory in which the respective Local Commissions of Affected People operate, highlighting the problems detected.

8) Draw up a report on the activities carried out by the Local Commissions of Affected People. As stipulated in Clause Fifteen of the TAC/GOV, the document should be sent to the Federal Public Prosecutor’s Office, the State Public Prosecutor’s Offices and the Public Defender’s Offices of the Federal Government and the states of Minas Gerais and Espírito Santo.

9) According to the decision, the Commissions must also present evidence of the actions taken to promote the integration of the spaces for consolidating the Commissions into a Commission with municipal representation, allowing the participation of affected people from the entire locality, in order to respect the limit established by the TAC/GOV of matching the number of Local Commissions with the number of municipalities impacted.

As there is no Independent Technical Advisory Service active in the territory at the moment, there is no need to communicate with the ITAs.  They must provide all the clarifications and documents indicated in the respective legal proceedings in which their legitimacy was recognized.

iii) Local and District Commissions that have claimed their legitimacy in legal proceedings, WITHOUT recognition in the respective proceedings (located in the area of TTAC and CIF Deliberation 58).

They must provide the following data and documents in the case file in which they claim recognition of their legitimacy:

1) Provide the full address of the current headquarters of the Commission of Affected People, as well as the names and contact details (e-mail and/or telephone) of its members.

2) Inform us if any of its members have ever received or are receiving any kind of remuneration to work in the Commission of Affected People, including any percentages for referrals of clients to lawyers.

3) Demonstrate the procedures for choosing the members who currently make up the Commissions of Affected People, highlighting the actions to guarantee gender parity in their composition.

4) Inform where the meetings of the Commissions of Affected People were and are held.

5) Demonstrate how the meetings of the Commissions of Affected People were publicized, in sufficient time to guarantee the participation of any interested affected person, showing the means of communication used.

6)  Collect the memories, minutes or recordings of the meetings already held by the Local Commissions of Affected People.

7) Share information with the Federal Public Prosecutor’s Office and other entities/institutions provided for in Clause Fifteen of the TAC/GOV, pertinent to the reality of the territory in which the respective Local Commissions of Affected People operate, highlighting the problems detected.

8) Draw up, with the support of the ATIs, a report on the activities carried out by the Local Commissions of Affected People. As stipulated in Clause Fifteen of the TAC/GOV, the document should be sent to the Federal Public Prosecutor’s Office, the State Public Prosecutor’s Offices and the Public Defender’s Offices of the Federal Government and the states of Minas Gerais and Espírito Santo.

9) According to the decision, the Commissions must also present evidence of the actions taken to promote the integration of the spaces for consolidating the Commissions into a Commission with municipal representation, allowing the participation of affected people from the entire locality, in order to respect the limit established by the TAC/GOV of matching the number of Local Commissions with the number of municipalities impacted.

10) Finally, the Commissions should also contact the Independent Technical Advisors installed in their respective territories in order to establish communication between the leaders and the ITAs, providing telephone, e-mail and other means of contact for future projects.

 

JUNE 16, 2023 – BY BRAZIL HUMAN RIGHTS FUND