Irony Presides at UN Indigenous Rights Briefing as Brazil Response to OAS Rebuke Remains Confidential

In an ironic twist, a Brazilian diplomat this week addressed a United Nations briefing on indigenous rights and the need for free, prior and informed consent (FPIC) in mining and development projects. The briefing, by the UN Department of Public Information, was for non-governmental organizations in advance of next week’s session of the Commission on Sustainable Development. The irony stems from Brazil’s initial "astonished” response in early April to a rebuke by the Organization of American States for its failure to consult appropriately and in advance (FPIC) with indigenous groups that will be affected by the Belo Monte hydroelectric dam project. Brazil’s official response to the OAS, submitted just a few days ago following weeks of delay, remains confidential.

The OAS rebuke came in the form of Precautionary Measure issued by the Inter-American Commission on Human Rights (IACHR). According to the IACHR website, it may, in "serious and urgent situations,” request a State to adopt "precautionary measures to prevent irreparable harm to persons” Precautionary Measure PM 382-10 (URL) was granted on 1 April for a dozen indigenous communities living in the Xingu River basin, which it names specifically, in response to a request made by a group of civil society organizations. This Measure calls on Brazil to completely halt the licensing of the Belo Monte project until, among other things, it has fulfilled its international obligations under certain international agreements to "conduct consultation processes meaning prior consultations that are free, informed, of good faith, culturally appropriate, and with the aim of reaching an agreement (emphasis added)” and to take several specific actions for the protection of the indigenous communities.

In addition to ratifying the OAS Charter, as an OAS Member State, Brazil is also a party to the American Convention on Human Rights, and has obligations under both treaties. On 8 March 2005, the OAS adopted resolution 1/05, which reaffirms "the international obligation that member States have to comply with precautionary measures issued by the Inter-American Commission on Human Rights.”

The UN Special Rapporteur on the Rights of Indigenous Peoples has also weighed in on the subject, and in a report dated 15 September 2010 (A/HRC/15/37/Add.1) pointedly insists that he "remains concerned that the indigenous peoples affected by the Belo Monte project have not been adequately consulted about the dam and in particular were not included in the processes leading to the decisions to initiate and implement the project.”

Protective Actions in PM 382-10

In addition to FPIC consultations, the Precautionary Measure also asks Brazil to take specific steps intended to protect the affected indigenous groups, including:

- to provide affected indigenous groups with the Social and Environmental Impact Assessment in an appropriate, accessible language,

- to adopt "vigorous and comprehensive measures” to protect the lives and personal integrity of the members of the indigenous groups recently observed in voluntary isolation in the Xingu River basin (these groups were observed for the first time only in 2010), and

- to adopt measures, also "vigorous and comprehensive,” to prevent the spread of diseases and epidemics which would likely be caused by a massive influx of new population into the area.

Brazil’s Response

In its initial response posted on the website of the Foreign Ministry on 6 April, Brazil "noted with astonishment” the measures requested by the IAHCR to "’safeguard the lives and personal integrity of members of indigenous peoples’ supposedly threatened by the construction of the Belo Monte hydroelectric plant (emphasis added).” Brazil states that it recognizes the need for technical, economic and environmental feasibility studies and for consultations with the affected indigenous communities, names Brazil’s environmental agency (IBAMA) and its National Indian Agency (FUNAI) as the competent bodies responsible for carrying out these studies and consultations, and insists "the applicable standards are being strictly observed” It concludes that the IACHR requests are "premature and unjustified.”

Current situation

According to numerous experts and civil society observers, including the two relevant agencies of the Brazilian government and the United Nations Special Rapporteur on the Rights of Indigenous Peoples, and despite statements to the contrary by Brazil, the above conditions have not been met.

- All the indigenous peoples that will be affected by the project have not been consulted with. In fact, the United Nations Special Rapporteur on the Rights of Indigenous Peoples found problems with the consultation and public information procedures that were carried out: Concerning four public audiences arranged by IBAMA, they were in urban areas, and due to the cost and difficulties of travel from remote areas inhabited by the indigenous peoples, who then could not attend and who consequently remain uninformed about the project.

- The Social and Environmental Impact Assessment, which consists of 36 volumes and some 20,000 pages, was made public only two days before the meetings, and has not been translated into languages that are accessible to the majority of the affected indigenous peoples, many, if not most, of whom do not speak Portuguese.

- Concerning the recently observed indigenous groups still living in voluntary isolation a mere 70 kilometres from the proposed dam site – by far the most vulnerable group – their territory has not even been determined, much less demarcated, and thus none of the appropriate and necessary measures for their physical protection, and to ensure their continued survival, have been taken.

- No attempts have been made to provide the physical protection that might prevent the spread of diseases or epidemics brought in by an influx of population., nor have steps been taken to provide specific measures requested by indigenous groups – such as the posting of guards to protect their territories from the invariable and unwanted influx of newcomers to the area looking for wood, food, water and places to live.

The last item is in addition to one specifically raised by those indigenous communities that have been in communication regarding Belo Monte. Typically in areas surrounding similar development project, thousands of people, often with their families, move into the area, looking for food, water, wood, and often go on to establish homesteads where they clear land and begin to farm or to ranch – two activities that are destructive to the Amazon rainforest and destructive to the territories inhabited by the indigenous peoples. In the past this sequence of events has taken place repeatedly with devastating repercussions. Some of the indigenous groups in the Belo Monte region have entered into consultations, and have specifically requested protection from just such an influx. No such protections have been instituted.

Halts to Licensing Nothing New

All along, the project has been plagued by problems, from internal legal challenges based on Brazil’s constitution to vast organized international opposition, including a documentary by James Cameron, the director of Avatar, and it is currently the subject of 11 lawsuits. According to Federal Prosecutor Ubiratan Cazetta of the state of Pará, "There is no doubt that Belo Monte will reach the Supreme Court eventually.” He expressed concern about the 2005 authorization of the project by Congress, based on the fact that at least ten indigenous groups reside there and protections of the rights of indigenous peoples and their territories are enshrined in Brazil’s constitution. But, he says, he fears the rush to build Belo Monte is just part of a government strategy to create a fait accompli, in which case the question of constitutionality would be a mere exercise in academic theory.

Also among the many challenges, Brazilian officials from both IBAMA and FUNAI have repeatedly expressed reservations and stipulated conditions that must be met before the project can go forward, but which to date have not actually been met.

In spite, or perhaps because, of the official approval of the Brazilian Government of the project, at least three officials have resigned, supposedly due to high level political pressure to approve Belo Monte. Two senior IBAMA officials, Leozildo Tabajara da Silva Benjamin and Sebastião Custódio Pires, resigned in 2009, and IBAMA President Abelardo Azevedo resigned in January 2011. Roberto Mesias, a previous president of IBAMA, also stepped down, but pointed to pressure from both sides of the issue – the Government and environmental organizations – as his reason.

If completed, the Belo Monte dam will be the third largest in the world and the second largest in Brazil, behind the Three Gorges Dam in China and the Itaipu dam shared by Brazil and Paraguay.

Efforts to acquire Brazil’s official response of 28 April have been unsuccessful.