Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes the communication from the International Trade Union Confederation (ITUC), dated 1 September 2010, which was sent to the Government on 8 September 2010 for their comments thereon.

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the communication from the Union of Rural Workers of Alcántara (STTR) and the Union of Family Agriculture Workers of Alcántara (SINTRAF), of 20 October 2009, forwarded to the Government on 6 November 2009. The Committee will examine this communication at its next session together with the observations of the Government in this regard. The Committee requests the Government to respond to the communication of the STTR and SINTRAF.

The Committee recalls that on 27 August 2008 it received a communication from the STTR and SINTRAF on the application of the Convention in the country, which was sent to the Government on 5 September 2008. It also recalls that, on 1 September 2008, it received a communication from the Single Confederation of Workers (CUT) sent to the Government on 18 September 2008. This communication also attached 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. Furthermore, the Committee recalls that it received a communication, dated 19 September 2008, from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), forwarded to the Government on 4 November 2008.

Quilombola communities of Alcántara. The Committee notes that by means of a communication of 26 December 2008, the Government provided information with regard to the observations formulated by the STTR and SINTRAF. The Committee notes that the information submitted by the Government only refers to one of the issues raised by the STTR and SINTRAF, namely the situation of Quilombola communities in the face 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 Committee notes that, according to what emerges from the information submitted by the Government, the Technical Study on Identification and Demarcation was published. Following an administrative conciliation procedure between the governmental institutions concerned (Ministry of Science and Technology, Ministry of Agricultural Development, National Institute for Settlement and Agrarian Reform (INCRA), the Brazilian Spatial Agency and the Alcántara Space Centre), the Study established that 78,105,3466 hectares will be considered as territory of the Quilombola communities of Alcántara. The Committee understands that this entailed the reduction of the territory occupied by Quilombola communities and notes that the indications regarding the extent of such reduction differ. The Committee also notes that, according to article 11 of Decree No. 4887/2003, when the lands occupied by descendants of Quilombola communities overlap with, among others, national security areas, appropriate measures shall be taken to ensure the sustainability of these communities, conciliating, at the same time, States’ interests. In this regard, the Committee notes that according to the Advisory Opinion/AGU/MC/N.1/2006 of the Attorney General, in the event of overlapping interests, conflicts shall be settled in the light of the principle of “reasonableness”.

The Committee recalls that, as indicated in its previous observation, 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. Inasmuch as these communities meet the requirements set out in Article 1 of the Convention, the Articles of the Convention shall be applied when addressing the issue which is the object of the communication. The Committee recalls the special importance for the cultures and spiritual values of the peoples covered by the Convention of their relationship with the lands or territories which they occupy or otherwise use and the obligation of governments to respect that relationship. The Committee considers that the recognition and effective protection of the rights of these peoples to the lands that they traditionally occupy in accordance with Article 14 of the Convention is of vital importance for safeguarding the integrity of these peoples and, consequently, for respecting the other rights established in the Convention.

Likewise, the Committee emphasizes that governments have the obligation, 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, with the objective of achieving agreement or consent to the proposed measures. The Committee also draws the Government’s attention to the fact that, pursuant to Article 7(3) of the Convention, governments shall 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 cannot overemphasize that the results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee notes that the information provided by the Government does not contain any reference to the participation of the affected communities in the procedure mentioned above. Neither does it contain references to their consultation. In light of the above, the Committee asks the Government to provide detailed information on:

(i)... the way in which the participation and consultation of the Quilombola communities affected were ensured, through their representative institutions, with the objective of achieving agreement or consent about the solution of the case, including information on the participation of these communities in the elaboration of the Technical Study on Identification and Demarcation;

(ii).. the way in which due account was taken of the obligation to ensure the cultural, social and economic integrity of the Quilombola communities affected when reconciling the conflicting interest of the parties involved in the issue at hand;

(iii). the measures adopted to carry out studies in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of the establishment and expansion of the CLA and the CEA, including with a view to ensuring the viability of the traditional activities of these communities;

(iv).. the progress made in identifying and demarcating the lands traditionally occupied by the Quilombola communities following the adoption of the Technical Study on Identification and Demarcation and the measures adopted to guarantee the rights of ownership and possession of these communities over their traditional lands and to safeguard their right to use lands not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities; and

(v)... the special measures adopted, in accordance with 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.

Communication from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), dated 19 September 2008. The Committee asks the Government to reply to the communication from SINTUFSC so as to allow the Committee to examine it in detail at its next session.

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 Article1(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 the CUT alleges 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.

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 Committee hopes that the Government will make every effort to take the necessary action in the near future.