National Policy on the Rights of People Affected by Dams

In summary
On December 15, 2023, Federal Law No. 14.755/2023 was published, establishing the National Policy on the Rights of People Affected by Dams. This is a complementary law to the National Dam Safety Policy and aims to establish the rights of People Affected by Dams, the Program for the Rights of People Affected by Dams, as well as rules for the social responsibility of entrepreneurs.

More details

The National Policy on the Rights of People Affected by Dams (“PNAB” in Portuguese) is a complementary norm to the National Dam Safety Policy (“PNSB” in Portuguese) and aims to ensure greater protection and participation of groups affected by the adverse effects of dam operations.

In this regard, the provisions of the PNAB are applicable to dams foreseen by the PNSB, that is, dams intended for the accumulation of water for any use, the final or temporary disposal of waste (including mining tailings) or the accumulation of industrial waste, which have at least one of the following characteristics:

  1. Height of the massif greater than or equal to 15 meters;
  2. Total reservoir capacity greater than or equal to 3,000,000 m³;
  3. The reservoir contains hazardous waste, in accordance with applicable technical standards; and
  4. It is classified in the category of medium or high associated potential damage or is characterized as a high risk dam, as established by the inspection body.

Therefore, the law does not restrict its application to tailings dams, but also to dams destined to the accumulation of water and industrial waste.

The law defines People Affected by Dams (“PAB” in Portuguese) as all those affected by the construction, operation, decommissioning or collapse of the dams covered by the law. The list of impacts provided by the law includes, for example, cases in which the operation of the dam causes the affected groups to lose or have its property devalued, the loss of productive capacity of land, the prolonged interruption or alteration of water quality, or the alteration of indigenous populations and traditional communities ways of life.

Many of these impacts will have to be verified on a case-by-case basis and will probably require specific studies to be defined. In any case, the law foresees that the occurrence of only one of the impacts listed is enough to characterize the affected group as PAB.

The PNAB law also specifies the rights guaranteed to the affected populations. These rights will be agreed in a process of informed participation and negotiation and will be set out in the Program of Rights of People Affected by Dams (“PDPAB” in Portuguese), which must be approved by a local committee created for each specific case. Among the rights of the PAB are reparations and compensation, collective resettlement, free and informed choice of reparation alternatives, negotiation on forms of reparation and independent technical advice at the entrepreneur’s expense.

In this respect, it should be emphasized the greater participation by affected communities and stakeholders in an informed manner, negotiation within the PDPAB to define the rights of the groups affected, as well as the creation of local committees.

The institution of the PNAB will have a collegiate body at national level, of an advisory and deliberative nature, with the aim of monitoring, supervising and evaluating its formulation and implementation. In addition to the creation of a national body, the law also establishes the creation of local committees to monitor the programs of rights in each concrete and specific case.

The rules for the creation and attributions of such bodies, likewise, will still have to be detailed in a regulation, which should establish general rules for the preparation of PDPABs in each specific case, as well as the formation of local PNAB committees.

In general, the PNAB law seeks to guarantee greater protection and participation of the populations affected by the operation of dams by forecasting impacts, negotiating rights with affected groups and creating bodies to approve and monitor mitigation measures.

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