Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Brazil (Ratification: 2002)

The Committee notes a communication received on 27 August 2008 and sent to the Government on 5 September 2008, containing observations on the application of the Convention from the Union of Rural Workers of Alcántara (STTR) and the Union of Workers of Family Agriculture of Alcántara (SINTRAF). It also notes another communication from the Single Confederation of Workers (CUT) received at the ILO Office in Brasilia on 1 September 2008 and sent to the Government on 18 September 2008. This communication also attaches comments made by the following indigenous organizations: the Coordinating Committee of the Indigenous Peoples of the North-East, Minas Gerais and Espírito Santo (APOINME), the Indigenous Council of Roraima (CIR), the Coordinating Committee of the Indigenous Organizations of Brazilian Amazonia (COIAB) and the Warã Brazilian Indian Institute. The Committee notes that the Government’s report was received on 31 October 2008, and it was therefore too late for it to be fully examined at this meeting. The Committee notes that the Government has not yet replied to the abovementioned communications. The Committee notes the communication dated 18 September 2008 from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), which it will examine next year together with any comments the Government wishes to make.

Article 1(1)(a) of the Convention. Scope of application. Black rural Quilombola communities. Both communications refer to the Quilombola communities and maintain that the remaining Quilombola communities constitute tribal peoples within the meaning of Article 1(1)(a) of the Convention. They indicate that these are social groups whose origins lie in the resistance movement to slavery in Brazil and to racial discrimination, and whose ethnic identity is based on common ancestry and a differentiated way of life. The Brazilian Constitution of 1988 guarantees to Quilombola communities their right to ownership of their lands and recognizes the importance of such communities for the cultural heritage of Brazil. The CUT indicates that, even though the executive and judicial authorities have recognized in documents or rulings that the Convention applies to the Quilombola communities, the Government merely provides information in its report on the situation of the indigenous peoples covered by Article 1(1)(b) of the Convention. The CUT claims that there is a pressing need to include information on the realities of life for the Quilombola communities in the Government’s report with reference to Article 1(1)(a) of the Convention and guarantee the effective application of the Convention to these communities. The General Land Registry of the Remaining Quilombola Communities, under the responsibility of the Palmares Cultural Foundation, has registered the existence of 1,228 Quilombola communities, but the National Coordinating Committee of the Black Rural Quilombola Communities, indicates the existence of more than 3,000 communities scattered over all the regions of the country.

Article 1(2). Undermining of the application of the criterion of self-identification. The CUT also states that the criterion of self-identification established in Article 1(2) of the Convention was incorporated in national law by means of Decree No. 4887/2003, which regulates the procedure for granting titles regarding lands occupied by the remaining Quilombola communities. Nevertheless, the Government is allegedly undermining self-identification by means of subsequent legislation (Decree No. 98/2007), thereby preventing issues regarding land titles from being settled since doing so depends on registration of communities. It is, according to the trade union, more and more difficult to obtain registration and thus secure the application of other rights, in particular with regard to land. The violation of the criterion of self-identification is also visible in the dispute between the Quilombola community of Isla de Marambai and the Navy. The communities identify themselves as indigenous and claim the protection afforded by the Convention. Although occurring less frequently, the indigenous identity of the Indians of the North-East is sometimes not recognized either, and this makes the recognition of their rights to the lands they have traditionally occupied more difficult. In the light of the information received, the Committee considers that the Quilombola communities appear to meet the requirements laid down by Article 1(1)(a) of the Convention, according to which the Convention applies to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations”. Article 1(2) states that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups for which the provisions of this Convention apply”. The Committee requests the Government to provide information on the application of the Convention to the Quilombola communities, and should the Government consider that these communities do not constitute tribal peoples within the meaning of the Convention, the Committee requests the Government to state the reasons for its viewpoint.

Communication from the CUT

Articles 2, 6, 7 and 33. Consultation and participation. The communication indicates that although there has been an increase in social dialogue, the effectiveness of such forums is questioned by the indigenous peoples because of their defining features (places which are difficult to access, convocations issued with little notice or superficial discussions) and the impression exists that the sole purpose of such consultations with the peoples, when they are actually held, is to rubber-stamp public policies. The Committee reminds the Government, as it has done repeatedly, that consultation and participation must not just be formal and devoid of content but must constitute a genuine dialogue, by means of appropriate mechanisms, so that they can result in projects including those in which the peoples covered by the Convention may participate in their own development. The Committee requests the Government to examine the existing mechanisms for consultation and participation, in cooperation with the indigenous organizations, so as to ensure that they are in conformity with the Convention, and to supply information in this respect.

Article 6. Consultation and legislation. The communication indicates that no consultation takes place with regard to the legislative and administrative measures referred to in Article 6 of the Convention. Examples of this are Decree No. 98/2007 concerning the Palmares Cultural Foundation referred to above, the draft Act concerning mining on indigenous lands (PL No. 1610/1996) and draft Decree No. 44/2007, which suspends the application of Decree No. 4887/2003 regulating the procedure for granting titles regarding Quilombola lands. The Committee notes that governments have the obligation to consult the peoples covered by the Convention whenever consideration is given to legislative or administrative measures which may affect them directly, and requests the Government to supply information in this respect.

Article 14. Lands. The CUT points out that the Constitution guarantees for Indians and Quilombola communities the right to the lands which they occupy but, although there are 343 indigenous territories and 87 Quilombola territories which are registered, land titles have still not been regularized for most of the lands; 283 indigenous lands and 590 Quilombola lands are the subject of administrative proceedings and 224 indigenous lands have not even reached this stage. The number of indigenous persons who have been killed has increased, particularly in Mato Grosso do Sul, as a result of unresolved land disputes. The Committee requests the Government to supply information on the application of Article 14 of the Convention with regard to the Quilombola communities.

Articles 6, 7 and 15. Participation, consultation and natural resources. Detailed reference is made to five projects in which there has been no participation or consultation: (1) the Belo Monte hydroelectric project, (2) diversion of the River San Francisco, (3) draft Act No. 2540/2006, which proposes authorization for a hydroelectric project at the Tamanduá Falls on the River Cotingo in the Raposa Serra do Sol indigenous territory, (4) the Guaraní-K’iwoá indigenous territory, where 12,000 indigenous persons live confined to reserves such as Dourados, living in abject poverty, with projects and policies implemented without any consultation or participation, (5) mining in the Cinta Larga indigenous territory, which will be severely affected by the draft law on mining, regarding which there has been no consultation with the peoples concerned. The Committee expresses its concern regarding the allegations and reminds the Government that, under the terms of Article 7, it must ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee requests the Government to supply detailed information regarding the cases referred to above.

Communication from the STTR and SINTRAF

Quilombola communities of Alcántara. This communication alleges a blatant failure to comply with the Convention with respect to the Quilombola communities of Alcántara in the state of Maranhao on the part of the Brazilian Space Agency (AEB) and Alcántara Cyclone Space (ACS), a bi-national company jointly owned by Brazil and Ukraine, on account of the establishment and expansion of the Alcántara Launch Centre (CLA) and the Alcántara Space Centre (CEA) on territory traditionally occupied by Quilombola communities, without their being consulted and without their participation.

The Government of the state of Maranhao is alleged to have expropriated 52,000 hectares via Decree No. 7320 during the 1980s, and in 1991, by another Decree of the Presidency of the Republic, the area expropriated for the space centre was increased by 62,000 hectares. Agrarian communities were forcibly displaced, without any technical assistance in agriculture being provided or access to the sea being granted. Fishing represents a substantial part of their economy. In order to reach the sea, they have to travel 10 kilometres and cross the enclosed area of the space centre. Twenty years on, they are living in conditions of extreme poverty and the remaining communities which were able to stay do not have titles in respect of their lands and suffer from the impact of the space centre’s activities. No environmental impact study was carried out with regard to the activities resulting from the establishment of this centre. The Government approved the addition to the initial launch site of another six commercial launch sites, which would occupy 14,303 hectares superimposed on the areas currently used by the Quilombola communities for farming, housing, stock rearing, worship and religious events.

In particular, the communication alleges that two agreements were signed with Ukraine without previous consultation which will have strong repercussions on the communities. The first of these is the “Technological safeguards agreement” connected with the launch centre, signed in January 2002 and promulgated by Decree No. 5266 of 2004. The other is the “Treaty on long-term cooperation in the use of the Cyclone-4 launch vehicle”, signed on 21 October 2003 and promulgated by Decree No. 5436 of 2005.

According to the communication, since 1999, the Chief Federal Public Prosecutor of Maranhao is reported to have been questioning the environmental aspects of the expansion of the space centre and the failure to issue land titles to the communities in respect of the lands they occupy. In September 2006, an agreement was signed between the Chief Federal Public Prosecutor and the Federal Government in the context of judicial proceedings, which determined that the process of granting land titles should be initiated and concluded within a period of 180 days. The land titles proceedings were launched by the National Institute for Settlement and Agrarian Reform (INCRA) and this was due to be completed on 31 October 2007. To the present date, the technical study on identification and demarcation has not been published. Only from the date of publication of this study are the parties concerned able to launch an appeal. However, the Government is reported to have already started activities to establish and expand the centre.

The organizations also state that in May 2008, the Chief Federal Public Prosecutor of Maranhao instituted legal proceedings against the AEB, ACS and the Foundation for the Application of Critical Technologies (ATECH) to “guarantee the rights of the Quilombola communities of Alcántara against actions committed by the defendants, which represent damage to the integrity of possession of ethnic territories and affect the environmental resources of the region and also the activities and way of life of the members of the ethnic groups”. The Chief Federal Public Prosecutor’s Office also stated that companies must refrain from prospecting, drilling or demarcation operations until the process of identification, recognition, delimitation and granting of land titles is completed.

The communication from the organizations highlights the intrinsic connection between lands, environment, life, religion, identity and culture. It repeats the request that the rights of these peoples to the lands should not be considered only from the point of view of ownership but also in terms of interdependence with other rights, as provided for by Article 13 of the Convention.

The Committee refers to the points made in the second paragraph of this observation, according to which the communities in question appear to meet the requirements for being covered by the Convention and they identify themselves as tribal peoples within the meaning of Article 1(1)(a) of the Convention. The Committee points out that, in as much as these communities appear to be covered by the Convention, the Government is required to apply Articles 6, 7 and 15 on consultation and natural resources and Articles 13 to 19 on land. The Committee refers in particular to Article 7(3), which requires the Government to ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee also draws the Government’s attention to its obligation laid down in Article 4(1) of the Convention to adopt special measures as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. The Committee hopes that the Government will supply detailed information in this regard. The Committee requests the Government to send its comments on these communications, together with its reply to the present comments. Noting that the Government’s report does not provide a reply to the questions posed by the Committee in its 2005 direct request, it requests the Government to also include a reply to the 2005 comments.

[The Government is asked to reply in detail to the present comments in 2009.]