Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO. The Committee notes the report of the tripartite committee (GB.304/14/7) set up to examine the representation made by the Union of Engineers of the Federal District (SENGE/DF), referring to Bill No. 62 of 2005 on the administration of public forests (PLC/62 2005) and alleging that the indigenous peoples were not consulted on the impact the adoption of the Bill would have on their rights. The Committee notes that in paragraph 62 of the abovementioned report, the tripartite committee recommended to the Governing Body that it approve the report and:

• (a) request the Government to adopt the measures needed to complement the consultation process concerning the impact of timber concessions envisaged in the Act concerning the administration of public forests on the indigenous people likely to be affected, taking into account the terms of Article 6 of the Convention and the Committee’s conclusions set out in paragraphs 42–44 of the Report;
• (b) request the Government to adopt in particular the relevant regulatory and practical measures to implement the consultation process laid down in Article 15(2) of the Convention, including the procedural requirements stipulated in Article 6, before licences are granted for the timber exploration and/or exploitation envisaged in the Act concerning the administration of public forests;
• (c) request the Government to ensure that the consultation process required under Article 15 of the Convention is implemented in relation to the lands referred to in paragraph 52 of the Report, whatever their legal status may be, provided that they comply with the criteria of Article 13(2) of the Convention (lands which the peoples concerned occupy or otherwise use);
• (d) invite the Government, under the terms of Article 7(1) of the Convention, to guarantee the participation of the indigenous peoples in the formulation, implementation and evaluation of plans and programmes related to the logging activities referred to, including the determination of the land to be excluded under the terms of section 11(IV) of the Act concerning the administration of public forests;
• (e) request the Government, in accordance with Article 7(3) of the Convention, to ensure that studies are carried out, in cooperation with the peoples concerned, with a view to assessing the social, spiritual and environmental impact on the peoples concerning of the logging activities envisaged in the Act;
• (f) request the Government to ensure that the indigenous peoples affected by logging activities participate, whenever possible, in the benefits of such activities and receive fair compensation for any loss or damage they may sustain as a result of such activities;
• (g) request the Government to ensure that logging activities do not affect the rights of ownership and possession laid down in Article 14 of the Convention;
• (h) request the Government to adopt special measures to safeguard the persons, institutions, property, labour, cultures and environment of the peoples affected by logging activities;
• (i) recommend that the Government request ILO technical assistance and cooperation, if it considers it appropriate, in order to implement, in cooperation with the social partners, the recommendations set out in the present report, and to promote dialogue among the parties;
• (j)entrust the Committee of Experts on the Application of Conventions and Recommendations with following up the questions raised in this report with respect to the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169); and
• (k) make this report publicly available and close the procedure initiated by the representation of the complainant alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

Called on to follow up on the representation, the Committee observes that the Government has sent no information in this regard. The Committee therefore asks the Government to send detailed information on all the questions raised by the tripartite committee in its report of March 2009 (GB.304/14/7).

Article 1 of the Convention. Self-identification. The Committee welcomes the Government’s acknowledgement that the Convention applies in full to the Quilombola communities and in its report sends extensive and detailed information on programmes and policies intended to safeguard the cultural, social and economic integrity of these peoples. The Committee requests the Government to continue to provide information on these matters, including an evaluation of the practical impact of the programmes and policies, particularly their effects on the development of the Quilombola communities, specifying the number of Quilombola communities and its members covered.

Articles 6, 7, 15 and 16. Consultation and participation. Legislation. In its previous comments, the Committee reminded the Government of the obligation to consult the peoples covered by the Convention whenever consideration is being given to legislative or administrative measures which may affect them directly, and asked it to examine the existing mechanisms for consultation and participation, in cooperation with the indigenous peoples. The Committee notes in this connection that, according to the Government, a tripartite dialogue has been initiated on the establishment of a mechanism for consultation. The Government indicates that although various state bodies already use consultation mechanisms, there is no uniformity in the scope of the consultations or the form they take. Since all sectors have recognized the need for such a mechanism, a seminar was planned for the purpose of drafting, with the participation of the indigenous peoples, a proposal for a law or decree on consultation. The Committee requests the Government to take the necessary steps to ensure proper consultation and participation of the indigenous peoples in developing the consultation mechanism and to send information on all progress made in this regard. It also asks the Government to indicate how indigenous peoples are currently consulted whenever consideration is being given to specific legislative or administrative measures which may affect them directly.

Quilombola communities of Alcantara. The Committee has for a number of years been referring to the situation faced by the Quilombola communities of the municipality of Alcantara (State of Maranhao) owing to the establishment of the Alcantara Launch Centre (CLA) and the Alcantara Space Centre (CEA) on land traditionally occupied by Quilombola communities, without them being consulted and without their participation (in 1980, 52,000 hectares were expropriated and in 1992 that figure increased to 62,000 hectares). According to the communities, there has never been an environmental impact study. The Committee noted that in the context of a Technical Study on Identification and Demarcation, in which the relevant Government institutions took part, it was established that 78,105.34 hectares would be considered as territory of the Quilombola communities, which would benefit 3,500 families. As the Committee understood matters, the land traditionally occupied by the communities would be reduced as a result. The Committee accordingly concluded that there was a dispute because part of the land claimed by the Quilombola overlapped with land assigned for the CLA and the CEA, to which the Quilombola are denied access on grounds of national security. The Committee notes that according to observations submitted on 6 November 2009 by the Union of Rural Workers of Alcantara (STTR) and the Union of Family Agriculture Workers of Alcantara (SINTRAF), the land demarcated did not include the 8,700 hectares on which the CLA is established. The abovementioned organizations also refer to the impact studies carried out to date with the participation of the indigenous peoples, but which have not been approved as yet by the competent authorities and which have not determined the damages to be awarded to the Quilombola communities. The Committee notes in this connection the Government’s statement that: (1) the land regularization process was remanded, in 2009, by the Procurator (AGU) to Federal Arbitration and Conciliation Chambers (CCAF) to settle the matter of overlapping interests between the regularization of Quilombola lands and the extension of the space launch area; (2) several Government entities have participated in these proceedings; (3) according to the Procurator, use of the land for launching could imply the relocation of 1,000 Quilombola families; (4) the Conciliation Chamber held seven meetings prior to October 2010 and suggested, following the finalization of the definitive proposal, holding a ministerial meeting and consulting the Alcantara Quilombola communities on the matter before referring its conclusions to the President of the Republic. The Government further indicates proceedings on the same matter are also pending at the Inter-American Commission on Human Rights (IACHR) and refers the Committee to the Government’s submissions to that Commission.

The Committee observes that the information supplied by the Government, although referring to negotiations held between different state bodies (some of them responsible for indigenous affairs), affords no evidence that consultations were held at any stage with the representative organizations of the Quilombola communities about the establishment of the CLA and the CEA, neither on the identification or demarcation of lands, nor about the cooperation agreement concluded with Ukraine in 2002 and 2004 which involves an extension of the area in question, or about settlement of the dispute once it was realized that interests overlapped. There is also no evidence that participation of indigenous peoples was ensured in the decisions that led to the establishment of the CLA and the CEA or in the impact studies carried out in that connection. The Committee must recall that the Government has a duty under Article 6(1)(a) and (2) of the Convention to consult the peoples covered by the Convention through their representative institutions whenever consideration is being given to legislative or administrative measures which may affect them directly, so that agreement can be reached or their consent obtained regarding the measures proposed. The Government must also, pursuant to Article 7(3), 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 Committee is bound to emphasize that the results of these studies are to be considered as fundamental criteria for the implementation of such activities. The Committee also refers the Government to Article 16 of the Convention should the need arise to transfer indigenous peoples from the lands they occupy. The Committee requests the Government to send information on the following:

• (i) all the consultations carried out to date in the context of the dispute regarding the lands traditionally occupied by the Quilombola communities of Alcantara and which were assigned for the establishment of the Alcantara Launch Centre (CLA) and Alcantara Space Centre (CEA), particularly the consultations held to follow up to the procedure undertaken by the Federal Conciliation and Arbitration Chamber.
• (ii) the manner in which participation by the Quilombola communities was ensured in the Technical Study on Identification and Demarcation of lands, and the progress made in identifying and demarcating lands traditionally occupied by Quilombola communities so as to guarantee the ownership and possession rights of these communities over their traditional lands and safeguard their right to use lands that are not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities; and provisional measures taken pursuant to Article 4 of the Convention to safeguard the persons, institutions, property, labour, cultures and environment of the communities concerned for as long as the recognition and demarcation of their lands is pending.
• (iii) the studies conducted, in cooperation with the peoples concerned, to evaluate the social, spiritual, cultural and environmental impact that the establishment and expansion of the CLA and the CEA may have on the communities affected, and the manner in which the Government guarantees the cultural, social and economic integrity of the Quilombola communities affected in reconciling the conflicting interests of the various parties involved in the matter at hand;
• (iv) the results of any actions pending in this matter before any national judicial authority; and
• (v) the decisions that imply relocation of the communities and the measures taken pursuant to Article 16 of the Convention.

Belo Monte hydroelectric plant. The Committee notes the extensive information supplied by the Government on the Belo Monte hydroelectric plant construction project and the studies and participation processes carried out on the project’s implementation. The Committee notes in particular that: (1) construction of the plant is part of the Government’s commitment to reduce CO2 emissions while maintaining energy production by means of renewable resources; (2) the licence was awarded after the environmental assessment by the competent bodies for implementation in the Xingu river basin; (3) the project is not located on indigenous lands, (as shown by the environmental assessment studies, and after the area to be flooded was reduced from 1,225 km2 to 516 km2 (-60 per cent), of which 228 km2 constitute the current river bed); (4) it does not involve flooding of indigenous lands or relocation of indigenous peoples; (5) the entire process was monitored by the National Foundation for Indigenous Affairs (FUNAI), as well as other governmental bodies and the interested indigenous communities; (6) the Presidential Decree of 19 November 2009 established an Inter-Governmental Working Group (GTI) consisting of 19 federal bodies and entities in addition to 27 bodies of the state of Pará, municipalities and members of civil society, and the group drew up a Sustainable Regional Development Plan for the Xingu river basin. A bipartite committee was given responsibility for the monitoring of the implementation of the plan. The Committee is composed of 15 governmental representatives, and 15 representatives of civil society, two of whom are representatives of indigenous peoples. The enterprise responsible for the construction is, according to the Government committed to the economic development of the Xingu river basin, thus investing 500 million reals in the plan.

As to effective participation by the indigenous peoples in the process, the Committee notes the Government’s statement that: (1) on 25 May 2005 the environmental impact studies were made available for public consultation, and in 2009, hearings were held in several of the towns affected, and in 2008 and 2009, 20 workshops were organized in which local communities including indigenous peoples participated to allow them to clear up any doubts, and receive information on the project’s content and effects and on mitigation measures; (2) the Brazilian Environmental Institute (IBAMA) conducted workshops with indigenous peoples between 19 August and 2 September 2009 to acquaint them with the conclusions of the environmental impact study in which 5,000 people participated, 200 of whom were “indigenous representatives”; (3) on the basis of FUNAI technical studies, Opinion No. 21/CNAM/CGPIMA was issued, analysing the licensing procedure and the impact studies, and imposing certain measures of support for the reinforcement of institutions and the development of communities affected by the project. Lastly, the Committee notes the Government’s statement that a case pertaining to the project is pending before the Inter-American Commission on Human Rights. The Committee notes that in the course of these proceedings the Inter-American Commission issued precautionary measures on 1 April 2011 (MC 382-10). The Committee notes that the Inter-American Commission asked the Government to suspend the licensing process for the project and prevent the implementation of any works until certain minimum conditions are met, including that of fulfilling the obligation to undertake consultations in accordance with the American Convention on Human Rights. The Committee also notes that by a decision of 28 September 2011, a Federal Judge of Pará issued a provisional order prohibiting the builder from making any alterations to the river bed, whether dams or any other works that would interfere with the natural course of the river and adversely affect the fish fauna as a result. While noting the information supplied, the Committee points out that according to Article 15 of the Convention, the Government has an obligation to consult the indigenous peoples before undertaking or permitting any programmes for the exploitation of resources pertaining to their lands. It further observes that the hydroelectric project could have consequences such as alteration of the navigability of rivers, flora and fauna and climate, that affect the peoples living on the lands where the project will be located, and which go further than the flooding of lands or the displacement of the peoples concerned. The Committee also recalls that, according to Article 6, governments shall consult the peoples concerned in particular through their representative institutions, rather than individuals, and that such consultations are to be undertaken in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures. In its general observation of 2010, the Committee considered that consultation procedures and mechanisms should allow the full expression of the viewpoints of the persons concerned, in a timely manner and based on their full understanding of the issues involved, so that they may be able to affect the outcome and a consensus can be achieved, and be undertaken in a manner that is acceptable to all parties. In the same general observation, the Committee went on to say that ad hoc consultation on certain measures may not be sufficient to meet the Convention’s requirements and that the communities affected should participate even in the preparation of environmental impact studies. On the strength of the documents and information supplied by the Government, the Committee takes the view that the procedures carried out so far, while extensive, fall short of the requirements set in Articles 6 and 15 of the Convention as described above, and that there is no evidence that they enabled the indigenous peoples to take part effectively in determining their priorities, in accordance with Article 7 of the Convention. The Committee asks the Government as follows:

• (i) to take the necessary steps to carry out consultations with the indigenous peoples affected, in accordance with Articles 6 and 15 of the Convention, on the construction of the Belo Monte hydroelectric plant before the harmful effects of the plant may have become irreversible;
• (ii) in consultation with the indigenous peoples, to take measures to determine whether the priorities of these peoples have been respected and whether their interests will be adversely affected and to what extent, with a view to adopting appropriate mitigation and compensation measures;
• (iii) to provide information on the results of the proceedings pending before the Federal Judge of Pará.

Transposition of the San Francisco river. The Committee notes the information supplied by the Government about the San Francisco River Integration Project, under which the San Francisco river is to be joined to the basins of the north-east region, and about FUNAI’s participation in the process so that the indigenous peoples can be informed and have their say about the project and so that mitigation and compensation measures may be applied. The Committee notes that both IBAMA and FUNAI issued guidelines for the drafting of an environmental impact study in which they took account of the Truká, Tumbalalá, Pipipan and Kambiwá indigenous lands. The study identified problems and put forward proposals regarding health, education, infrastructure, economic activities and indigenous organization among other subjects. Observing, however, that the Government provides no information on the consultations with indigenous peoples carried out in accordance with Articles 6 and 15 of the Convention, or on the participation of these peoples in the impact studies and various measures and programmes as provided by Article 7 of the Convention, the Committee requests the Government to send detailed information on these matters.

Proposal for a law on the construction of a hydroelectric plant on the Cotingo river in the indigenous territory of Raposa Serra Do Sol. The Committee notes that, according to the Government, the debate on Legislative Decree No. 2540/06 on the dam project has resumed in Congress and the Bill is currently before the Mines and Energy Committee and will eventually be submitted to the Justice and Constitution Committee. Once approved by the committees, it will be referred for examination to the plenary of Congress. The Government indicates that the Decree seeks to consolidate the right of indigenous peoples to consultation and participation in the discussions and provides for hearings for the indigenous communities affected, approval by Congress of agreements proposed to these communities, the establishment of measures to protect the physical, socio-economic and cultural integrity of the communities and for environmental impact studies to be carried out. According to the Government, FUNAI has defended before Congress the need for free and informed consultation with the indigenous peoples before there is a vote on the Bill. The Committee notes that according to the note issued by FUNAI, No. 560/COLIC/CGGAM/10, included with the Government’s report, the indigenous peoples who occupy the areas affected by the project are opposed to it. The note emphasizes that the project would have irreversible effects on the peoples concerned and FUNAI accordingly advises consulting them. The Committee requests the Government to ensure that the indigenous peoples are fully consulted on the project and that their views, priorities and interests are taken into account when decisions are adopted. The Committee hopes that the peoples concerned will be able to cooperate in the impact studies to be carried out, in accordance with Article 7 of the Convention. It asks the Government to send detailed information on all progress in this regard.

Mining on the lands of the Cinta Larga indigenous people. The Committee notes that the Government states that the measures adopted are aimed at recovery of the traditional indigenous lands by expelling the invading prospectors and miners, in cooperation with the indigenous peoples. FUNAI operates controls in the area with the assistance of the affected peoples themselves and studies are being conducted on their development. The Committee requests the Government to continue to provide information in this regard.

Article 14. Lands. Situation of the Quilombola communities. The Committee notes that, according to the Government, pursuant to Ordinance No. 98/2007, which empowers the Palmares Cultural Foundation to set up an administrative procedure for certifying lands and to organize the land register of self identified indigenous or tribal communities, 1,635 land titles have been certified and awarded since 2003 to Quilombola communities. The National Institute on Settlement and Agrarian Reform (INCRA) has opened a total of 996 land titling processes since 2003. The Government also sends abundant information on the programmes and policies devised for these communities. The Committee asks the Government to continue to send information on land certification and titling processes for the Quilombola communities, pursuant to Article 14 of the Convention. It also asks the Government to provide information on the specific measures taken to safeguard the persons, institutions and assets of the peoples concerned pending the titling of the lands.

Situation of the Guaraní peoples in Mato Grosso do Sul. Guaraní Kaiowá peoples. In its previous comments, the Committee referred to the extremely serious situation facing the Guaraní Kaiowá communities with respect to the lands they traditionally occupy. The Committee notes that in observations dated 1 September 2010, the International Trade Union Confederation (ITUC) stated that procedures for demarcating the lands traditionally occupied by these peoples were slow and that soya and sugar cane cultivation was encroaching on these lands, causing the displacement of the peoples affected. The ITUC also refers to acts of violence – including murder – and threats against members of the Kaiowá community. It also refers to violations of the labour rights of indigenous peoples working on the plantations. The Committee notes in this connection that the Government acknowledges that disputes over lands have led to violations of human rights of the members of this community and indicates that since 2000, there have been 13 court cases pertaining to serious disputes between indigenous people and plantation owners. It also acknowledges their plight as victims of poverty. The Government states that the proceedings for the protection of indigenous lands in Mato Grosso are slow and that FUNAI is in the meantime dealing with emergency situations. It has established six working groups for identifying and demarcating traditional lands. On 24 April 2011, on the basis of Ordinance No. MJ/GMN 499 the Guaraní Kaiowá community were granted permanent possession of Jatayvary land in the municipality of Ponta Porã covering a surface area of 8,800 hectares. The Government indicates that these communities occupy some 30,000 hectares and that FUNAI will undertake the necessary measures to demarcate the indigenous land and obtain approval from the President, in accordance with the law. The Government also provides information on the various demarcation processes conducted so far. The Committee notes in this context the Report of the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, which refers to the extreme poverty and marginalization plaguing the Guaraní Kaiouwá peoples, the high infant mortality rate and acts of violence, including homicide, perpetrated against their members (A/HRC/12/34/Add.2, 26 August 2009). The Committee requests the Government to:

• (i) take the necessary measures to secure, without delay and in collaboration with the indigenous peoples affected, the demarcation of the lands they traditionally occupy with a view to recognition of their rights to ownership and possession, in accordance with Article 14 of the Convention;
• (ii) adopt the necessary specific measures to safeguard the persons, institutions and assets of the peoples concerned pending demarcation of the lands, including measures to provide adequate protection of the physical integrity and safety of the members of the communities against threats or acts of violence;
• (iii) take the necessary steps to investigate the acts of violence reported; and
• (iv) send information on all these matters.

The Committee also asks the Government to provide information on the situation of the Guaraní Mbyá community of Eldorado do Sul referred to in the observations of 19 September 2008 by the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), to which the Committee referred in earlier comments.