In a decision issued on October 27, 2023, following a lawsuit filed by Vale, Samarco and BHP, challenging the recognition of areas in the municipalities of Fundão, Serra, Aracruz, Linhares, São Mateus and Conceição da Barra, in Espírito Santo, as affected, Judge Ricardo Machado Rabelo, unexpectedly and contrary to what the first-degree judge had decided, suspended the validity of CIF Deliberation No. 58 until new expert opinions are carried out.  It is worth noting that the decision was taken on the eve of the eight-year anniversary of the collapse of the Fundão dam, considered the biggest socio-ecological disaster in Brazil’s history. 
 
Historical recovery:  

On November 5, 2015, the Fundão dam broke in Mariana, in the state of Minas Gerais, releasing 45 million cubic meters of mining waste into the Rio Doce Basin and affecting thousands of people, as far as the coast of Espírito Santo. 
 
After almost eight years since the dam burst, those affected in the Rio Doce basin and on the Capixaba coast report that the problems resulting from the arrival of the mud have only increased, as has the lack of agility in legal actions on behalf of the people. The decision suspending Deliberation 58 is worrying, as it represents the denial that the coast of Espírito Santo has been – and continues to be – damaged by the tailings from the toxic sludge that are accumulating in the tributaries, in the watersheds adjacent to the Rio Doce, and in the sea. 

On March 31, 2023, the judge in the case at the time, Michael Procópio, ordered Samarco, Vale and BHP to deposit more than 10 billion reais, in installments, in a judicial account to guarantee reparation for the territories of Deliberation No. 58, which covers areas of Conceição da Barra, São Mateus, Linhares, Aracruz, Serra and Fundão. As a result of this decision, the companies filed their own lawsuits for each municipality and made court deposits with amounts that they themselves stipulated. In favor of the municipalities of Aracruz, São Mateus and Serra, R$ 7 million was deposited for each, R$ 5 million for the municipality of Conceição da Barra and R$ 4 million for the municipality of Fundão.  

On October 17, 2023, the judge currently in charge of the case, Vinicius Cobucci, ruled that the municipalities could receive a transfer of these amounts – which represented a historic victory for the affected people of these areas, who have been seeking recognition and respect for their rights for years and with much struggle.  

But in parallel to this, the polluting companies have also filed a lawsuit challenging the technical studies that were used by the CIF to support Deliberation No. 58, with the aim of making this deliberation invalid. This is the request that was accepted by the judge and that suspends the recognition of these areas of the ES coastline. This decision can still be appealed.  

In the opinion of the Renova Foundation and Samarco, Vale and BHP, the recognition of the coast of Espírito Santo as affected was wrong, since the technical studies on which this decision was based contained different conclusions to those of the Renova Foundation.  

For the judge, however, the conclusion regarding the inclusion of new affected areas cannot be based on doubtful circumstances, arguing that new technical studies would establish the issue in a definitive manner. For this reason, it ordered the suspension of the decision that recognized the validity of Deliberation No. 58 until an expert’s report is carried out. 

Setback 
 
The judge’s decision to suspend the validity of Decision No. 58 and to order an expert’s report could be a huge setback in guaranteeing the rights of the affected population on the coast of Espírito Santo. Any change to the resolution could be extremely damaging for the people affected in these areas, such as the municipalities losing the possibility of using these amounts for reparations, and losing their already restricted access to the Renova Foundation’s programs, or even their right to independent technical advice from the companies that caused the damage. 

Forensics can be a tool to help better understand the size and severity of the damage in these areas. However, eight years after the dam collapse, with studies having already been carried out that have found serious damage and risks of damage in these areas, and with the evident drop in the quality of life and living conditions of the population, it is embarrassing to say that there is doubt as to whether or not there is damage in this region. The people affected know the damage caused because they face the consequences of the disaster on a daily basis to this day.  

It is necessary to wait for more concrete information on the effects of this decision, as well as on the deadlines for determining the expertise indicated.  

Mobilization: for the recognition of the people affected in the estuarine, coastal and marine regions of the estuary and the coast of Espírito Santo. 

Two fundamental points in the discussion of full reparation for the damage caused by the disaster are: the centrality of the suffering of the victims and the quest to ensure that those affected do not experience a similar violation of their rights or a process of re-victimization. If the judge’s decision to suspend the validity of Deliberation No. 58 is upheld, the affected population of these areas will once again be going through the process of having to revisit, reaffirm and prove that they have been suffering for eight years from the series of damages caused – socio-environmental, cultural, socio-economic and moral damages, among others. 

How long and how much more damage will the people affected have to suffer to be repaired? It’s time to move forward on the agenda of those affected by rights and, to do so, the judiciary needs to be agile and aware of the reality of the people affected. The Espírito Santo institutions have 30 days to appeal the decision.  

The dissatisfaction and the risk of the curtailment of rights suffered by the affected population in these areas as a result of the recent decision must be brought to the attention of the Justice Institutions and the Judiciary. The invisibilization of those affected in these areas will be tantamount to re-victimization for the damage suffered, as well as preventing them from accessing any reparation measures – including their rights to information and participation.  

You who are affected: what do you think of this decision? Put your demands out into the world, look for the Advisory Service in the territories and let’s fight for justice in the comprehensive reparations process. Being recognized as affected in order to have access to reparation measures is a right. And rights are not lost: they are won and guaranteed. No right less. 

Adai’s Technical Office for those affected is following the process to ensure that the people are informed.