Case Name: Instituto Arayara, APIB e Terra Indígena Rio dos Pardos Aldeia Kupli vs. ANP, IBAMA, União Federal e outros (4th cycle of permanent concession offering and affected indigenous lands)

Summary

This is a Public Civil Action (ACP) with a request for urgent relief proposed by the Arayara Institute of Education and Culture for Sustainability, Articulation of Indigenous Peoples of Brazil (APIB) and Rio dos Pardos Aldeia Kupli Indigenous Land against the National Agency of Petroleum, Natural Gas and Biofuels (ANP), Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) and the Federal Union. This action is part of a set of 6 ACPs proposed against the 4th Cycle of Permanent Offer of Concession of oil exploration blocks. The aim is to challenge the bidding auction for oil exploration blocks carried out through the 4th Cycle of Permanent Offers. It is argued that the inclusion of blocks AM-T-38, AM-T-83, AM-T-107, AM-T-113, AM-T-114, AM-T-131, AM-T-132, AM-T-133, AM-T-148, AM-T-149, AM-T-150, AM-T-152, PAR-T-335 and PAR-T-344, located in the Paraná and Amazon Basins, in the auction is illegal, as they overlap with areas of influence or restriction of 23 indigenous lands, and there was no prior, free and informed consultation process. The blocks also overlap areas of direct influence of indigenous lands where isolated peoples live. It is understood as a configuration of environmental racism, given that the proximity of exploratory blocks to indigenous lands presents risks to health, the environment and the use of the territory by the people who live there. It is argued that the climate crisis scenario requires an energy transition to clean energy and the reduction of carbon dioxide emissions, which is incompatible with the expansion of oil exploration. Furthermore, it clarifies that indigenous lands are essential to combat this crisis, as they are barriers against deforestation and forest degradation and their inhabitants are the main guardians of the environment. The administrative act issued jointly by the Ministry of Mines, Energy and the Ministry of the Environment and Climate Change that authorized the offer of the aforementioned blocks is also contested. It is requested, as a preliminary measure, the suspension of Joint Manifestations 17/2020, 12/31/2018 and 08/2020 and the suspension of the offer of the contested exploration blocks in the 4th Permanent Offer Cycle, until a new Joint Manifestation is held that observes the protection of indigenous rights. In the final instance, it is requested (i) the recognition of the nullity of the Joint Manifestations with regard to the exploratory blocks; (ii) the determination of the exclusion of the contested blocks from the Bidding Cycle until a new Joint Statement is issued that observes the protection of the affected indigenous rights.

The court denied the preliminary request, arguing that a more in-depth analysis of the issues was necessary. Partially rejected the initial petition with regard to blocks PAR-T-335 and PAR-T-344 located in the Paraná Basin, as it was understood that this was not within the functional jurisdiction of the judicial section. It was stated that there was no longer any procedural interest in challenging some exploratory blocks since, with the auction, only blocks AM-T-107 and AM-T-133 were sold, and the process should continue only with regard to these. It included the company Atem Participações SA as a necessary passive joint party, as it was the successful bidder for exploratory blocks. He ordered FUNAI to be summoned to respond.

IBAMA and ANP filed a response, in which they stated that there is no overlap between the blocks offered and the indigenous lands and that the preliminary procedure for Environmental Assessment of Sedimentary Areas (AAAS) should not be confused with the subsequent environmental licensing process, in which the viability, restrictions and control measures for the project will be assessed. They highlighted the economic benefits of oil exploration for Brazilian society and that in the International Energy Agency's NetZero 2050 scenario, the energy matrix will still rely on oil and natural gas as primary energy and that the impacts of greenhouse gas emissions from projects can be assessed in the environmental licensing phase under the financial burden of the entrepreneur. The ANP clarified that it promotes shareholder participation before promoting bids for granting oil and natural gas exploration rights. They highlighted that the simple bidding process does not pose a risk to the environment. They requested recognition of the connection with court records from the 4th Federal Civil Court of SJRN; the recognition of IBAMA's passive illegitimacy; the recognition of the active illegitimacy of the authors and that the action be judged inadmissible.

In response, the Union, in addition to addressing the licensing issues already addressed by other federal bodies, alleged that the offer of the contested blocks is technically supported by the rules issued by the competent bodies. IT requested that the claims be declared unfounded.

Atem Participações SA filed a response in which it highlighted that holding a bidding process does not pose any risk to the environment and that all impacts of the projects to be explored will be assessed during the environmental licensing phase. It requested that the claims be ruled inadmissible. 

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Main norms mobilized

• Article 170 of the Federal Constitution (CRFB/88)
• Article 225 of the Federal Constitution (CRFB/88)
• Article 231 of the Federal Constitution (CRFB/88)
• ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)

Case timeline

Case documents