Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the detailed replies received from the Government in September 2013 in relation to the matters raised in the observation of 2012. The Committee also notes the observations from the Single Confederation of Workers (CUT) on the application of the Convention which were transmitted to the Government on 25 September 2013. The Government indicates that the report on the Convention was sent to the social partners on 17 October 2013. The Committee again requests 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).

Regulation of consultation mechanisms. The Government reports in detail on the activities carried out in 2012 and 2013 by the inter-ministerial working group (GTI) relating to the formulation of the proposed regulations on the right to consultation. With the support of the Secretariat-General of the Government, the Foreign Ministry and other government bodies, a total of 27 information meetings on the Convention were held, with a special emphasis on the issues relating to consultation. The GTI also held regional meetings with the Quilombola communities. The results of the initiatives launched by the GTI include the setting up of a dialogue round table with the indigenous peoples by the President of the Republic on 22 August 2013. The Government indicates that a consensus has been reached on the principles and procedures to be followed with respect to the future regulatory instrument. The Government stresses that it has always sought to provide the material conditions necessary for dialogue with the indigenous peoples and is aware that there are still major challenges with regard to the full application of the rights and guarantees of the Convention, particularly regarding access to land and the regularization of land titles in traditional territories. The GTI intends to prepare the text of a future decree regulating prior consultation. The Committee invites the Government to send the text of the regulations concerning consultation, once they have been adopted, and also to provide information on the use that has been made of existing consultation and participation procedures pending the adoption of new, appropriate procedures. The Committee requests the Government to provide information enabling it to evaluate the manner in which the new legislation ensures the effective participation of the indigenous peoples in decisions which may affect them directly and gives full effect to Articles 6, 7, 15 and 16 of the Convention.

Diversion of the São Francisco river. The Committee notes the studies provided by the Government concerning the socio-cultural and historical characterization of the Kambiwá, Pipipã, Truká and Tumbalalá peoples. The Committee observes that the communities consulted have expressed considerable resistance and doubts regarding the impact of the project for the diversion of the São Francisco river. The Government indicates its ongoing commitment to consulting the peoples affected. The Committee invites the Government to include up-to-date information in its next report on the efforts made to ensure that the interests and priorities of the indigenous communities affected by the diversion of the São Francisco river have been taken into account (Articles 7 and 15 of the Convention). The Committee refers to its previous comments and requests the Government to continue to provide information on current legal proceedings and, in particular, on the decision regarding the constitutionality of the project for the diversion of the São Francisco river, which is currently before the Federal Supreme Court.

Construction of a hydroelectric power plant on the Cotingo river. In reply to previous comments, the Government indicates in its report that there were no modifications to the project for the installation of a hydroelectric power plant on the Cotingo river in the Raposa Serra do Sol indigenous territory (State of Roraima). In its observations transmitted to the Government in September 2013, the CUT recalls that the demarcation of the area of the Raposa Serra do Sol indigenous land gave rise to a historic decision of the Federal Supreme Court (STF) published in March–June 2009, whereby the lands were ordered to be handed over to the peoples affected. Nevertheless, the CUT expresses concern at the position adopted by the Federal Public Prosecutor’s Office and the STF in the follow-up to the case. The Committee requests the Government to indicate in its next report the manner in which any project affecting indigenous lands is the subject of full consultations with the peoples affected and how their views, priorities and interests are taken into account when decisions are adopted. The Committee reiterates its hope that the peoples concerned will be associated with the impact studies to be carried out, in accordance with Article 7 of the Convention, and that they will participate in the benefits of the new ventures (Article 15). The Committee requests the Government to include detailed information in its next report on all progress made in this regard.

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 2012 observation, the Committee asked the Government to indicate the manner in which Decree No. 7747 of 5 June 2012, which established a National Policy for the Environmental and Territorial Management of Indigenous Lands (PNGATI), had enabled the issue to be resolved which had been raised in the report of the Governing Body (GB.304/14/7, March 2009) on a representation submitted in October 2005 by the Union of Engineers of the Federal District (SENGE/DF). The Government reiterates in its report received in September 2013 that no forestry operations which affect indigenous lands can be authorized under Act No. 11284/2006 on the administration of public forests. The PNGATI has reinforced the guarantee of indigenous peoples’ right to consultation, as required by the Convention (section 3(XI) of Decree No. 7747). The Government also refers to article 231 of the National Constitution, which recognizes indigenous peoples’ “original rights with regard to the lands that they traditionally occupy”, with the result that logging activities cannot be undertaken on indigenous lands. The PNGATI also includes a commitment to territorial and environmental protection and to improving the quality of life in areas reserved for indigenous peoples and on indigenous lands (section 3(VI) of Decree No. 7747). According to 2012 data from the National Foundation for Indigenous Affairs (FUNAI), an area in excess of 109 million hectares (some 12.9 per cent of the national territory) corresponds to indigenous lands which have already been identified (104,117,642 hectares have been regularized and for the remainder the regularization process is under way). The Government also indicates that FUNAI is closely involved in combating illegal logging on indigenous lands, undertaking monitoring activities and capacity building. In May 2013, the Federal Police conducted an operation on the Alto Rio Guamá indigenous land (State of Pará) against fraudulent activity in the logging industry. In August 2013, on the Sararé indigenous land (State of Mato Grosso), a fine of US$10 million was imposed for material damage resulting from the illegal clearance of more than 5,600 hectares of vegetation. The Committee invites the Government to provide in its next report information on the measures taken pursuant to Decree No. 7747 of 5 June 2012 in relation to logging activities. Please continue to provide information in future reports enabling the Committee to evaluate the extent to which the indigenous peoples affected by forestry operations have been consulted and have been able to participate in the benefits of logging activities, in accordance with Articles 6, 7 and 15 of the Convention.

In a direct request, the Committee is examining the effect of the establishment of a space agency centre on the Quilombola communities, the construction of the Belo Monte hydroelectric power plant, and the situation of the Cinta Larga people and Guarani communities.

[The Government is asked to reply in detail to the present comments in 2015.]