Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes that the Government’s report received in September 2012 contains up-to-date information relating to the observation made in 2011. In addition, the Government sent detailed communications in April and May 2012 providing information on the process for the regulation of prior consultation. The Committee invites the Government, when preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention (Parts VII and VIII of the report form). The Committee hopes that the Government will submit a report in 2013 containing updated information on the issues raised in the present observation and in the observation made in 2011 and on the results achieved by the measures taken to give effect to each of the provisions of the Convention.

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted comments in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Regulation of consultation mechanisms. The Committee notes with interest the publication in January 2012 of Inter-ministerial Order No. 35 of the General Secretariat of the Office of the President of the Republic and the Ministry of Foreign Affairs establishing an inter-ministerial working group (GTI) for the formulation of the proposed regulations on the right to consultation. In July 2012, new government institutions (the Ministry of Culture and the Chico Mendes Institute) were invited to participate in the process and mechanisms were set up for dialogue between the GTI and civil society. A Facilitation Committee was created composed of 12 indigenous representatives and 12 Quilombola representatives with an equal number of members representing government bodies (24 representatives). The GTI intends to maintain an ongoing and high-quality dialogue with indigenous peoples, Quilombola communities, other traditional communities and civil society. Under the auspices of the GTI, various activities were carried out with indigenous leaders and new entities were included in the consultation process. The Government has provided information on the consultations planned for 2013 and intends to prepare proposed regulations for 2014. The Committee invites the Government to include in its next report detailed information on the progress of the consultations held to give effect to Articles 6, 7, 15 and 16 of the Convention.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO). Legislation relating to public forests. In its 2011 observation, the Committee noted the report of the Governing Body (document GB.304/14/7, March 2009) on a representation submitted in October 2005 by the Union of Engineers of the Federal District (SENGE/DF). In this representation, it was alleged that no consultations had been held with indigenous peoples, as required by the Convention, with regard to draft legislation on the administration of public forests. In the report received in September 2012, the Government indicates that the draft legislation became Act No. 11284/2006 and that Decree No. 7747 of 5 June 2012 established a National Policy for the Environmental and Territorial Management of Indigenous Lands (PNGATI). The Government indicates that this is an innovative process of consultation with indigenous peoples which will enable them to strengthen their effective contribution to the conservation of biodiversity through the traditional community management of natural resources. The Committee refers to the recommendations made by the Governing Body in paragraph 62 of document GB.304/14/7 of March 2009 and invites the Government to include up-to-date information in its next report which will enable it to examine:

• (a) the measures adopted to complement the consultation process concerning the impact of timber concessions envisaged in the Act concerning the administration of public forests on the indigenous peoples likely to be affected, taking account of Article 6 of the Convention and the conclusions of the tripartite committee set out in paragraphs 42–44 of the report;
• (b) the regulatory and practical measures planned 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 timber exploration and/or exploitation as envisaged in the Act concerning the administration of public forests;
• (c) the manner in which it is ensured 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, provided that they comply with the requirement set out in Article 13(2) of the Convention (lands which the peoples concerned occupy or otherwise use);
• (d) the manner in which it is ensured that the indigenous peoples participate in the formulation, implementation and evaluation of plans and programmes related to the logging activities referred to above, including the determination of the lands to be excluded under the terms of section 11(IV) of the Act concerning the administration of public forests (Article 7(1) of the Convention);
• (e) the manner in which it is ensured that, in accordance with Article 7(3) of the Convention, studies are carried out, in cooperation with the peoples concerned, with a view to assessing the social, spiritual and environmental impact on the indigenous peoples concerned of the logging activities authorized by the Act;
• (f) the manner in which it is ensured that the indigenous peoples affected by logging activities participate, wherever possible, in the benefits of such activities, and receive fair compensation for any loss or damage which they may sustain as a result of such activities;
• (g) the manner in which it is ensured that logging activities do not affect the rights of ownership and possession laid down in Article 14 of the Convention; and
• (h) any special measures adopted to safeguard the persons, institutions, property, labour, cultures and environment of the indigenous peoples affected by logging activities.

Relocation of Quilombola communities (municipality of Alcantara, State of Maranhao). With reference to the observations that have been made for many years, the Government provided further information in September 2012 on the establishment of the bi-national enterprise Alcantara Cyclone Space (ACS) on lands traditionally occupied by Quilombola communities. The Government recalls that in the Technical Study on Identification and Demarcation of the Quilombola Territory, published in the Diario Oficial in November 2008, around 78 million hectares were attributed to 3,350 Quilombola families. Moreover, the Palmares Cultural Foundation issued a technical opinion in 2010 calling for all the direct and indirect impacts associated with the project to be identified and for measures to be taken to mitigate and compensate for the impact of the project on the Quilombola communities. In the framework of the legal action taken by the Office of the Federal Attorney-General in August 2003, alleging that the relocation of the Quilombola population for the construction of the Cyclone-4 complex had overlooked the rights of the communities affected, the federal Government convened a conciliation hearing on 6 March 2009, during which the ACS enterprise formally recognized the land rights of the Quilombola communities of Alcantara and accepted that the operations of the Cyclone-4 complex would be limited to the surface area occupied by the launch base. The Committee notes that, in October 2011, in the context of that legal action, the federal Government asserted that the process of the demarcation of the lands had not yet been completed and, according to the indications provided in the latest report, the legal process is following its course. The Committee requests the Government to continue providing information on current legal actions. It hopes that the Government will provide more specific information in its next report on the measures that guarantee the effective protection of the rights of Quilombola communities to the lands that they traditionally occupy in the municipality of Alcantara (Article 14). Please indicate whether Quilombola communities have been removed from their usual lands, and the measures taken for their relocation and compensation (Article 16). As requested in the report form, please describe the steps taken in that case to obtain their free and informed consent.

Belo Monte hydroelectric plant (Pará State). In its previous comments, among other points related to the construction of a hydroelectric plant, the Committee noted that the Inter-American Commission on Human Rights had issued precautionary measures on 1 April 2011 (MC-382-10), calling for the suspension of the licensing process until certain minimum conditions had been met relating to the consultation of the indigenous peoples affected. Furthermore, a federal court in the State of Pará ordered a precautionary measure in September 2011 prohibiting the construction company from making any alterations to the river bed affected by the construction of the hydroelectric plant. In the report received in September 2012, the Government indicates that the surface that would be flooded by the project has been reduced from 1,225 square kilometres to 516 square kilometres. In contrast with the projects that were designed in the 1980s and 1990s, the Government indicates that indigenous lands would not be flooded. The National Foundation for Indigenous Affairs (FUNAI) held 42 meetings with indigenous communities between December 2007 and October 2009, as well as other activities to provide information on the environmental impact of the project. The FUNAI is intervening to ensure that the concerns of the communities affected are taken into account by the enterprise responsible for the project and that relevant information on the project is disseminated. The Government also recalls that the Supreme Labour Court authorized the continuation of work on the hydroelectric plant. The Committee requests the Government to continue providing information on current legal actions in relation to the Belo Monte hydroelectric plant. It invites the Government to indicate the manner in which the effective protection is ensured of the rights of indigenous communities to the lands that they traditionally occupied and which are allocated for the construction of the hydroelectric plant (Article 14). As requested by the report form, please indicate whether steps have been taken for the relocation and compensation of the communities affected if they have been removed from their traditional lands and describe in particular the steps taken in that case to obtain their free and informed consent (Article 16).

Transposition of the San Francisco river. The Committee notes the information provided by the Government in the report received in September 2012 on the measures adopted by the FUNAI to consult and inform the indigenous peoples that may be affected by the project for the transposition of the San Francisco river (PIRSF). The FUNAI had the opportunity to undertake studies and programmes for the communities liable to be affected by the impact of the project. The Committee invites the Government to provide with its next report a copy of the “Prognóstico das Modificaçoes no Cenário Sociocultural dos Grupos Indígenas”, the study that identified the principal problems in the Truká, Tumbalalá, Pipipan and Kambiwá lands. Please indicate the manner in which the indigenous peoples concerned participated in the studies and programmes undertaken by the FUNAI and how their interests and priorities have been taken into account. The Committee hopes that the Government will also include information on current legal actions and, in particular, on the decision on the constitutionality of the project for the transposition of the San Francisco river, which is currently before the Federal Supreme Court of Justice.

Construction of a hydroelectric plant on the Cotingo river. The Government recalls, in the report received in September 2012, that the project for the construction of a hydroelectric plant on the Cotingo river, located on indigenous land at Raposa Serra do Sol (Roraima State), is still awaiting authorization by Congress. The Committee notes that, even though a draft Legislative Decree is under examination, the hydroelectric plant is not referred to in the National Energy Plan 2030 or in the Ten-Year Plan for Energy Expansion. The Committee once again requests the Government to ensure that any projects affecting indigenous lands are subject to full consultation with indigenous peoples and that their views, priorities and interests are taken into account when decisions are taken. The Committee reiterates the hope that the peoples concerned will be able to cooperate in the impact studies that are carried out in accordance with Article 7 of the Convention. The Committee invites the Government to provide detailed information in its next report on any developments in this respect.

Mining on the indigenous lands of the Cinta Larga people. The Government states that the Laje garimpo (small-scale mine), from which it had been necessary to expel intruders who had violated the rights of the indigenous community, has been closed since March 2012. The Committee notes that joint measures were taken by the FUNAI and the federal police to investigate the situation in the garimpo. The Committee invites the Government to continue providing information on the measures taken to protect the Cinta Larga indigenous communities. Please also provide information on the findings of the investigations carried out by the federal police and the penalties ordered in proven cases of intrusion (Article 18).

Situation of the Guaraní Kaiowá peoples in Mato Grosso do Sul. Guaraní M’byá community in the municipality of Eldorado do Sul (Rio Grande do Sul State). The Government indicates that at a meeting coordinated by the FUNAI and held in Dourados (Mato Grosso do Sul) on 28 November 2011, the Office of the Federal Attorney-General, the Human Rights Secretariat of the Office of the President and the General Secretariat of the Office of the President of the Republic discussed strategies to overcome the legal obstacles created by non-indigenous agricultural landowners and to find solutions to speed up pending cases concerning indigenous lands. The FUNAI published studies recognizing the traditional occupation of the Panambi – Lagoa Seca indigenous territory by the Guaraní Kaiowá peoples. In addition, police presence in the region was increased in order to protect the indigenous communities. The Committee invites the Government to continue providing information on the demarcation of the lands traditionally occupied by indigenous communities in the southern cone of Mato Grosso do Sul and on the results achieved by the public security plan to ensure the physical integrity and security of the indigenous communities in the region. Please also provide information in the next report on the situation of the Guaraní M’byá community in the municipality of Eldorado do Sul referred to in the comments by the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), which were forwarded to the Government in November 2008.

Article 14. Demarcation and titling of lands for the Quilombola communities. The Government has supplied up-to-date information on the initiatives taken by the National Institute on Settlement and Agrarian Reform (INCRA) to conduct 1,167 land certification processes for the Quilombola communities. The Committee notes that 121 titles were issued, enabling the certification of nearly 1 million hectares for 109 territories, 190 communities and nearly 12,000 families. Nearly half of these territories are located in Pará State. The Palmares Cultural Foundation (FCP), associated with the Ministry of Culture, is participating in the process of self-identification of the Quilombola communities. The FCP is supporting 154 court cases concerning 56 remaining Quilombola communities in 19 states in the country. According to the Government’s report, the regulations on the right of ownership sometimes makes it difficult for the communities to obtain definitive ownership title. The Committee notes that a Federal Supreme Court of Justice ruling is pending on the constitutionality of Decree No. 4887/2003 of 20 November 2003 regulating the procedure for the demarcation and titling of lands for the remaining Quilombola communities. The Committee invites the Government to continue providing information on this matter.