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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

The Committee repeats the content of its direct request adopted in 2019 which read as follows.

Articles 2 and 7 of the Convention. Coordinated and systematic action. The Committee notes the adoption of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples included in the federal Multi-year Plan of Action (PPA 2016–2019). It notes that the programme is divided into five main themes, namely: promotion of social, cultural and citizens’ rights; promotion of land and environment management in indigenous lands; guarantee of full ownership of the lands; preservation and promotion of the cultural heritage of indigenous peoples; and promotion of access to health services. Each of these themes has specific targets to achieve and initiatives to develop. The Committee notes that the PPA 2016–2019, in the part describing country context, recognizes that one of the greatest challenges for the indigenous policy of Brazil is to better integrate actions at different levels and improve synergies between them.The Committee requests the Government to provide information on the implementation of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples, indicating the measures taken in order to achieve the targets set. Please indicate whether evaluations on the implementation of the programme and the results achieved have been carried out, and on the manner in which indigenous and tribal peoples participated.

Article 2(2)(b). Measures to promote the full realization of the social, economic and cultural rights of indigenous peoples. In its previous comments, the Committee noted the information concerning the Bolsa Familia, a direct income transfer programme which benefits families throughout the country in situations of poverty and extreme poverty with access to education and health services. It noted that an agreement was concluded with the National Indian Foundation (FUNAI) to include indigenous and Quilombola families in this programme and support them. The Committee requested information on the impact of the programme on the full realization of the social, economic and cultural rights of indigenous peoples, and on how they were involved in the development of the programme. The Government indicates that in 2018, 114,903 indigenous families (almost half) were beneficiaries and that the programme had made it possible to improve the living conditions of numerous indigenous communities and to provide better access to health and education services. The Government indicates that, following ethnographic studies conducted in indigenous communities, a report on programme implementation among indigenous peoples was presented to the various indigenous communities and the situation was evaluated with their participation, with a view to proposing adjustments at the local level so that indigenous people are provided with more appropriate treatment. Thus, for example, rules that are more flexible have been introduced with regard to the documents required to register members of indigenous communities in the Single Registry for Social Programmes. The Committee welcomes the inclusive approach adopted to ensure that the particular features of indigenous and tribal peoples are taken into account so that they can become part of the Bolsa Familia programme.The Committee requests the Government to continue to provide information on the number of indigenous and tribal families that are part of the Bolsa Familia programme and the extent to which their inclusion has had an impact on their access to the health and education services available to them.

Articles 7 and 15. 1. Diversion of water from the São Francisco river. The Committee notes the detailed information provided by the Government on the hydraulic project, the completion of environmental impact studies and the social and environmental programmes planned and budgeted for in the context of implementing the project.The Committee requests the Government to indicate how the indigenous and tribal peoples concerned participate in the development and implementation of these programmes when they may be affected by them. With regard to the measures taken to protect and preserve the environment of the territories they inhabit, please indicate how the cooperation of indigenous and tribal peoples is ensured.

2. Belo Monte hydroelectric plant (Pará State). The Committee requested the Government to continue to report on developments in the Belo Monte hydroelectric plant project, including information on measures taken to ensure the effective protection of the rights of indigenous communities affected by the construction and activities of the hydroelectric plant. The Government indicates that in 2015, a cooperation agreement was signed between the FUNAI and the enterprise Norte Energia concerning the implementation of the Plan for the Territorial and Environmental Protection of the Indigenous Lands of Médio Xingu. As part of the process of granting a licence to the hydroelectric plant, consultations coordinated by the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and supported by the FUNAI were held with the indigenous communities affected, concerning all of the villages in the 11 indigenous lands affected. A considerable number of meetings and public hearings with indigenous communities have been held and the measures proposed by indigenous communities have been taken into account in the Basic Environmental Project for Indigenous Communities (PBA-CI). The Government considers the consultation to be an ongoing process in which communities are provided with information and support in order to ensure that they participate effectively and enable them to express their views on the project and its impact. The PBA CI includes a management plan and ten programmes, including an institutional capacity-building programme for indigenous organizations. The Government indicates that the foundations have thus been established to mitigate and compensate for impacts on affected communities and to promote their involvement and participation in decision-making spaces.

The Committee further notes that in September 2019, a first conciliation hearing was held before the Conciliation and Arbitration Chamber of the Office of the Attorney-General of the Union (AGU). Conciliation forms part of the public civil action brought in 2004 by the federal prosecution service concerning the impact of the construction of the plant. The parties reached two agreements that will serve as the basis for further discussions; they agreed on the creation of an oversight committee for the PBA-CI and that the enterprise would audit the damage caused by the works to all indigenous peoples of Médio Xingu, with a view to the payment of compensation.The Committee requests the Government to provide information on the results achieved in the context of the conciliation process, in particular on the results of the audit and the manner in which indigenous peoples are compensated. Please also continue to provide information on the manner in which indigenous peoples participate in the implementation of the PBA-CI project and associated programmes.

3. Cinta Larga people. Unlawful mining and logging. With regard to the need to protect the indigenous people of Cinta Larga, established on the indigenous land of Parque do Aripuanã (State of Mato Grosso), from intrusion by third parties on their lands, the Government refers to a number of monitoring visits carried out by the Office for the Coordination of Territorial Control (CGMT), which is linked to the territorial protection department of the FUNAI, to prevent and monitor intrusions, illegal timber extraction activities or any other damage. The Government indicates that the present context remains difficult and that there is a long and recurrent history of unlawful practices. Consequently, sustained action is needed to protect territories on a continuous basis and limit such practices.The Committee requests the Government to continue to take all necessary measures to ensure the protection of the rights of the indigenous people of Cinta Larga to the lands that they traditionally occupy, as well as their resources. It requests the Government to provide information on the means available to the CGMT to carry out monitoring activities and to specify whether the public prosecution service and/or the police participate in these activities. Recalling the importance of combating impunity, the Committee requests the Government to provide information on judicial proceedings brought against persons who illegally enter the lands and exploit the resources of the people of Cinta Larga and, as applicable, the convictions handed down.

Articles 26 and 27. Education. The Committee notes that the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples recalls, in the part describing the country context, that the access of indigenous peoples to a differentiated and quality education at all levels is the responsibility of the Union and the federal States, which are required to develop specific indigenous educational programmes. According to this document, indigenous school education is addressed through one-off, sporadic measures and dialogue with indigenous peoples; training courses for teachers are inadequate and curriculums and calendars are not appropriate to indigenous schools; and the rate at which schools are built and specific teaching materials are developed is low.The Committee requests the Government to take the necessary measures to ensure that members of indigenous peoples and Quilombola have access to quality education at all levels on an equal footing with the rest of the national community, and that education programmes are developed with these peoples. Please provide statistical information on school attendance rates among indigenous children at the primary, secondary and higher levels, as well as on school drop-out rates, if available, disaggregated by ethnic group, gender and age.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Single Confederation of Workers (CUT), received on 2 September 2022, which contain new information concerning issues already raised by the Committee in its previous comments. The Committee requests the Government to provide its response to these observations. Furthermore, the Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which contain general comments on the application of the Convention; the joint observations of the IOE and the National Confederation of Industry (CNI), received on 31 August 2018; the observations of the National Confederation for Typical State Careers (CONACATE), which include general comments on the application of the Convention received on 28 August 2017, and the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include a report by COICA (a Peruvian indigenous peoples’ organization) on the application of the Convention in various countries.

Representation made under article 24 of the ILO Constitution. Right of Quilombola communities to the lands they traditionally occupy. Alcântara space launch centre. For many years, the Committee has been examining the question of the impact of the establishment of the Alcântara space centre (CEA) and the Alcântara launch centre (CLA) on the rights of the Quilombola communities of Alcântara. The Committee notes that the Governing Body at its 337th Session (October–November 2019) decided that the representation made under article 24 of the ILO Constitution by the Union of Rural Workers of Alcântara (STTR) and the Union of Family Agriculture Workers of Alcântara (SINTRAF), alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. The Committee observes that the allegations in the representation refer to the consequences of the extension of the area covered by the Alcântara space launch centre on the rights of the Quilombola communities and the lands traditionally occupied by them.In accordance with its usual practice, the Committee has decided to defer the examination of this issue until the Governing Body adopts its report on the representation.

Article 3 of the Convention. Human rights. The Committee observes that certain United Nations bodies and the Inter-American Commission on Human Rights (IACHR) have expressed concern in recent years at the situation of conflict surrounding territorial claims and at threats and attacks on the rights and integrity of the indigenous peoples of Brazil. The Committee notes the press release of 8 June 2017 of the Office of the United Nations High Commissioner for Human Rights (title: “Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn”) in which three UN Special Rapporteurs and a IACHR Rapporteur stated: “In the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country. […] Indigenous peoples are especially at risk”. The Committee notes that the IACHR, in its preliminary observations of 12 November 2018 concerning its visit to Brazil, emphasized that harassment, threats and murders characterized land disputes and forced displacements. The IACHR noted with concern that the impunity surrounding these acts of rural violence was contributing towards their perpetuation and increase. Furthermore, at the time of its travel to Mato Grosso state, the IACHR observed the grave humanitarian situation faced by the Guarani and Kaiowá peoples, largely due to violations of their land rights. The IACHR visited the Dorados-Amambaipeguá indigenous lands, and received information on the victims of the “Caaraó massacre”, during which one person was killed and another six members of the community were injured, as well as reports of frequent armed attacks by militias. The Committee also notes that the IACHR granted precautionary measures on 29 September 2019 in favour of members of the Guyraroká community of the Guarani Kaiowá indigenous people, since they had prima facie evidence that families of the community are in a serious and urgent situation because their rights to life and physical integrity are at serious risk. The IACHR takes into consideration reports concerning the high level of conflict between members of the community and landowners and concerning death threats (Resolution 47/19, Precautionary Measure (PM) 458/19). The Committee notes this information withconcern. The Committee urges the Government to take all the necessary measures to protect the life, physical and psychological integrity, and all the rights guaranteed by the Convention to indigenous and tribal peoples. The Committee considers that indigenous and tribal peoples can only assert their rights, particularly with regard to possession and ownership of the lands they traditionally occupy, if adequate measures are adopted to guarantee a climate free of violence, pressure, fear and threats of any kind.

Articles 6, 7, 15 and 16. Consultations. In its previous comments, the Committee referred to the process for regulation of the indigenous and Quilombola peoples’ right to consultation which had been under way since 2012. In this regard, the Government indicated that the process of negotiation with the peoples concerned had encountered certain difficulties and that the Secretariat-General of the Government was endeavouring to restore the dialogue. The Government was considering the possibility of proposing a potential consultation mechanism on the basis of a practical case. The Committee also noted that the CNI and the IOE had emphasized that the absence of regulation on the consultations required by the Convention was generating legal uncertainty for enterprises. In its report, the Government indicates that in recent years a number of indigenous peoples have taken initiatives in this area, indicating to the State the manner in which they wish to be consulted. In this context, they have drawn up their own protocols for prior consultation in which they formalize the diversity of procedures for building dialogue enabling effective participation in decision-making processes that can affect their lives, their rights or their lands. The Government refers in particular to the support given by the National Foundation for Indigenous Affairs (FUNAI) for drafting protocols for consultations involving the Xingu indigenous peoples in 2016, the Krenak indigenous people in 2018 and the Tupiniquim people in 2018, and to discussions under way in the Roraima Indigenous Council (CIR). In this regard, the Committee observes that, according to information on the website of the Public Prosecutor’s Office, other communities have adopted protocols of this type. Moreover, regarding policies, programmes, actions and projects relating to social assistance for indigenous peoples, the Government indicates that FUNAI is intensifying efforts to sign agreements with provider institutions in order to ensure respect for the particular social and cultural characteristics of these peoples and to respect their right to free and informed prior consultation where appropriate. The Government also points out that there is growing demand for infrastructure from indigenous communities (for electric power, water storage and distribution or road construction). In this regard, FUNAI ensures that all actions, activities or projects respect the right to free and informed prior consultation, so that relations between the Brazilian State and the indigenous communities are not vertical. The Government indicates that FUNAI, through its decentralized units, supplies technical, logistical and at times financial support to partner bodies and municipalities under whose jurisdiction indigenous lands are located in order to organize the necessary meetings. The Committee welcomes the drawing up of consultation protocols by certain communities and the role played by FUNAI in this respect.The Committee requests the Government to provide further information on the status of these protocols and to indicate how it is ensured in practice that the protocols are applied in a systematic and coordinated manner through the country whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly. The Committee also encourages the Government to continue its efforts with a view to the adoption of a regulatory framework on consultations which will enable the indigenous and Quilombola peoples to have a suitable mechanism guaranteeing them the right to be consulted and to participate effectively whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly, and which will be conducive to greater legal certainty for all stakeholders. The Committee recalls the need to consult the indigenous and Quilombola peoples as part of this process and to enable them to participate fully through their representative institutions so as to be able to express their views and influence the final outcome of the process. It requests the Government to provide information on the consultation processes undertaken, including on the basis of the consultation protocols developed by the various indigenous communities and the results thereof.

Article 14. Lands. The Committee recalls that the two bodies responsible for the identification and demarcation of lands and the issuing of land titles are FUNAI (for lands traditionally occupied by indigenous peoples) and the National Institute for Settlement and Agrarian Reform (INCRA) (for lands traditionally occupied by the Quilombola peoples). The procedures are regulated by Decree No. 1775/96 and Decree No. 4887/03, respectively. The Government describes the various stages of the procedure, including: the request to open an administrative procedure for regularization; the preparation of a zone study (containing anthropological, historical, cartographic, land ownership and environmental elements); the declaration of limits; the opposition phase; the physical demarcation; the publication of the recognition order establishing the limits of the territory; and the registration and concession of the titles of collective ownership to the community by decree. The Committee notes the statistical information sent by the Government on land demarcation procedures in the states of Mato Grosso and Rio Grande do Sul. It observes that in Rio Grande do Sul, of a total of 48 procedures, 20 have resulted in regularization and 28 are in progress (at the study, declaration or demarcation stage). Regarding Mato Grosso, of a total of 50 procedures, 24 have resulted in regularization and 26 are in progress. The Committee also notes that, according to information on the FUNAI website, 440 lands have been regularized in the country as a whole. Moreover, 43 lands have had their limits identified, 75 lands have had their limits declared and nine lands have had their limits certified. Lastly, for 116 lands, the procedure is at the study stage. The Committee notes that CONACATE refers in its observations to Constitutional Amendment Proposal No. 215/2000, under examination by the National Congress, the aim of which is to confer exclusive authority on the National Congress to approve the demarcation of lands traditionally occupied by indigenous peoples and also to ratify demarcations which have already been certified. CONACATE indicates that the final decision on any new demarcation of these lands would no longer be under the authority of the competent ministry but under the authority of the National Congress, where agri-industry is heavily represented. The Committee also observes that, according to the information available on the website of the Federal Supreme Court (STF), in September 2019 FUNAI filed an extraordinary appeal (1.017.365/SC) with the Supreme Court on the issue of the “time frame”. The “timeframe” approach followed by certain jurisdictions means that only lands actually occupied on 5 October 1988, the date of promulgation of the Constitution, should be recognized as lands traditionally occupied by indigenous peoples. Since the STF recognized the general scope of the constitutional issue under examination, its final decision will have binding force in all instances of the judiciary. Moreover, the Committee notes that, according to information on the Congress website, two interim measures were adopted in 2019 aimed at transferring the authority to identify, delimit, demarcate and register indigenous lands from FUNAI to the Ministry of Agriculture, Livestock and Supplies (MPO 870/2019 and MP 886/2019). The first measure was rejected by the National Congress and the second measure was deemed unconstitutional by the Supreme Court. The Committee observes that the IACHR, in its preliminary observations of 12 November 2018 relating to its visit to Brazil, stated that it had received various testimonies concerning the difficulties and long delays which indigenous communities face regarding access to land ownership. The result of these difficulties was that public lands intended for these communities were occupied by landowners or private mining enterprises, and this gave rise to conflicts involving expulsions, displacements, invasions and other forms of violence. The IACHR also expressed concern at the weakening in recent years of institutions such as FUNAI. The Committee recalls that Article 14 of the Convention provides that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. In this regard, the Committee emphasized in its General observation of 2018 that recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based.The Committee trusts that the Government will continue taking all necessary measures to ensure the full application of the Convention with regard to the ownership and possession rights of indigenous and tribal peoples over all the lands which they traditionally occupy. It requests the Government to take the necessary measures to follow up in the very near future on the procedures pending before FUNAI concerning the delimitation, demarcation and registration of indigenous lands and before INCRA concerning lands traditionally occupied by Quilombola communities. The Committee in particular requests the Government to provide information on the measures taken regarding the situation of the Guarani and Kaiowá peoples. The Committee further requests the Government to provide information on the human and material resources allocated to both FUNAI and INCRA to fulfil their mandate at every stage of the procedure – studies, delimitation, demarcation and registration of lands.

The Committee is raising other matters in a request addressed directly to the Government.

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

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee repeats the content of its direct request adopted in 2019 which read as follows.

Articles 2 and 7 of the Convention. Coordinated and systematic action. The Committee notes the adoption of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples included in the federal Multi-year Plan of Action (PPA 2016–2019). It notes that the programme is divided into five main themes, namely: promotion of social, cultural and citizens’ rights; promotion of land and environment management in indigenous lands; guarantee of full ownership of the lands; preservation and promotion of the cultural heritage of indigenous peoples; and promotion of access to health services. Each of these themes has specific targets to achieve and initiatives to develop. The Committee notes that the PPA 2016–2019, in the part describing country context, recognizes that one of the greatest challenges for the indigenous policy of Brazil is to better integrate actions at different levels and improve synergies between them. The Committee requests the Government to provide information on the implementation of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples, indicating the measures taken in order to achieve the targets set. Please indicate whether evaluations on the implementation of the programme and the results achieved have been carried out, and on the manner in which indigenous and tribal peoples participated.

Article 2(2)(b). Measures to promote the full realization of the social, economic and cultural rights of indigenous peoples. In its previous comments, the Committee noted the information concerning the Bolsa Familia, a direct income transfer programme which benefits families throughout the country in situations of poverty and extreme poverty with access to education and health services. It noted that an agreement was concluded with the National Indian Foundation (FUNAI) to include indigenous and Quilombola families in this programme and support them. The Committee requested information on the impact of the programme on the full realization of the social, economic and cultural rights of indigenous peoples, and on how they were involved in the development of the programme. The Government indicates that in 2018, 114,903 indigenous families (almost half) were beneficiaries and that the programme had made it possible to improve the living conditions of numerous indigenous communities and to provide better access to health and education services. The Government indicates that, following ethnographic studies conducted in indigenous communities, a report on programme implementation among indigenous peoples was presented to the various indigenous communities and the situation was evaluated with their participation, with a view to proposing adjustments at the local level so that indigenous people are provided with more appropriate treatment. Thus, for example, rules that are more flexible have been introduced with regard to the documents required to register members of indigenous communities in the Single Registry for Social Programmes. The Committee welcomes the inclusive approach adopted to ensure that the particular features of indigenous and tribal peoples are taken into account so that they can become part of the Bolsa Familia programme. The Committee requests the Government to continue to provide information on the number of indigenous and tribal families that are part of the Bolsa Familia programme and the extent to which their inclusion has had an impact on their access to the health and education services available to them.

Articles 7 and 15. 1. Diversion of water from the São Francisco river. The Committee notes the detailed information provided by the Government on the hydraulic project, the completion of environmental impact studies and the social and environmental programmes planned and budgeted for in the context of implementing the project. The Committee requests the Government to indicate how the indigenous and tribal peoples concerned participate in the development and implementation of these programmes when they may be affected by them. With regard to the measures taken to protect and preserve the environment of the territories they inhabit, please indicate how the cooperation of indigenous and tribal peoples is ensured.

2. Belo Monte hydroelectric plant (Pará State). The Committee requested the Government to continue to report on developments in the Belo Monte hydroelectric plant project, including information on measures taken to ensure the effective protection of the rights of indigenous communities affected by the construction and activities of the hydroelectric plant. The Government indicates that in 2015, a cooperation agreement was signed between the FUNAI and the enterprise Norte Energia concerning the implementation of the Plan for the Territorial and Environmental Protection of the Indigenous Lands of Médio Xingu. As part of the process of granting a licence to the hydroelectric plant, consultations coordinated by the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and supported by the FUNAI were held with the indigenous communities affected, concerning all of the villages in the 11 indigenous lands affected. A considerable number of meetings and public hearings with indigenous communities have been held and the measures proposed by indigenous communities have been taken into account in the Basic Environmental Project for Indigenous Communities (PBA-CI). The Government considers the consultation to be an ongoing process in which communities are provided with information and support in order to ensure that they participate effectively and enable them to express their views on the project and its impact. The PBA CI includes a management plan and ten programmes, including an institutional capacity-building programme for indigenous organizations. The Government indicates that the foundations have thus been established to mitigate and compensate for impacts on affected communities and to promote their involvement and participation in decision-making spaces.

The Committee further notes that in September 2019, a first conciliation hearing was held before the Conciliation and Arbitration Chamber of the Office of the Attorney-General of the Union (AGU). Conciliation forms part of the public civil action brought in 2004 by the federal prosecution service concerning the impact of the construction of the plant. The parties reached two agreements that will serve as the basis for further discussions; they agreed on the creation of an oversight committee for the PBA-CI and that the enterprise would audit the damage caused by the works to all indigenous peoples of Médio Xingu, with a view to the payment of compensation. The Committee requests the Government to provide information on the results achieved in the context of the conciliation process, in particular on the results of the audit and the manner in which indigenous peoples are compensated. Please also continue to provide information on the manner in which indigenous peoples participate in the implementation of the PBA-CI project and associated programmes.

3. Cinta Larga people. Unlawful mining and logging. With regard to the need to protect the indigenous people of Cinta Larga, established on the indigenous land of Parque do Aripuanã (State of Mato Grosso), from intrusion by third parties on their lands, the Government refers to a number of monitoring visits carried out by the Office for the Coordination of Territorial Control (CGMT), which is linked to the territorial protection department of the FUNAI, to prevent and monitor intrusions, illegal timber extraction activities or any other damage. The Government indicates that the present context remains difficult and that there is a long and recurrent history of unlawful practices. Consequently, sustained action is needed to protect territories on a continuous basis and limit such practices. The Committee requests the Government to continue to take all necessary measures to ensure the protection of the rights of the indigenous people of Cinta Larga to the lands that they traditionally occupy, as well as their resources. It requests the Government to provide information on the means available to the CGMT to carry out monitoring activities and to specify whether the public prosecution service and/or the police participate in these activities. Recalling the importance of combating impunity, the Committee requests the Government to provide information on judicial proceedings brought against persons who illegally enter the lands and exploit the resources of the people of Cinta Larga and, as applicable, the convictions handed down.

Articles 26 and 27. Education. The Committee notes that the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples recalls, in the part describing the country context, that the access of indigenous peoples to a differentiated and quality education at all levels is the responsibility of the Union and the federal States, which are required to develop specific indigenous educational programmes. According to this document, indigenous school education is addressed through one-off, sporadic measures and dialogue with indigenous peoples; training courses for teachers are inadequate and curriculums and calendars are not appropriate to indigenous schools; and the rate at which schools are built and specific teaching materials are developed is low. The Committee requests the Government to take the necessary measures to ensure that members of indigenous peoples and Quilombola have access to quality education at all levels on an equal footing with the rest of the national community, and that education programmes are developed with these peoples. Please provide statistical information on school attendance rates among indigenous children at the primary, secondary and higher levels, as well as on school drop-out rates, if available, disaggregated by ethnic group, gender and age.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations of the Single Confederation of Workers (CUT), which were received on 31 October 2020. The Committee observes that the CUT, in addition to providing information on issues already raised by the Committee in its previous comments, refers to the impact of the COVID-19 pandemic on indigenous peoples. The CUT claims that as a result of racial and socio-economic inequalities, and lack of assistance from the State, indigenous peoples, in particular Quilombola communities and isolated or recently contacted indigenous peoples, are in a situation of great vulnerability and heightened risk from the effects of COVID-19.

The Committee notes the Government’s response to the observations of the CUT relating to the impact of COVID-19, received on 4 December 2020. Given that this response was received too late for examination by the Committee at its current meeting, the Committee proposes examining both communications in due course. In addition, the Committee requests the Government to provide its responses to the remaining observations presented by the CUT.

Furthermore, the Committee reiterates the comments adopted in 2019 which are reproduced below.

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which contain general comments on the application of the Convention; the joint observations of the IOE and the National Confederation of Industry (CNI), received on 31 August 2018; the observations of the National Confederation for Typical State Careers (CONACATE), which include general comments on the application of the Convention received on 28 August 2017, and the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include a report by COICA (a Peruvian indigenous peoples’ organization) on the application of the Convention in various countries.

Representation made under article 24 of the ILO Constitution. Right of Quilombola communities to the lands they traditionally occupy. Alcântara space launch centre. For many years, the Committee has been examining the question of the impact of the establishment of the Alcântara space centre (CEA) and the Alcântara launch centre (CLA) on the rights of the Quilombola communities of Alcântara. The Committee notes that the Governing Body at its 337th Session (October–November 2019) decided that the representation made under article 24 of the ILO Constitution by the Union of Rural Workers of Alcântara (STTR) and the Union of Family Agriculture Workers of Alcântara (SINTRAF), alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. The Committee observes that the allegations in the representation refer to the consequences of the extension of the area covered by the Alcântara space launch centre on the rights of the Quilombola communities and the lands traditionally occupied by them. In accordance with its usual practice, the Committee has decided to defer the examination of this issue until the Governing Body adopts its report on the representation.

Article 3 of the Convention. Human rights. The Committee observes that certain United Nations bodies and the Inter-American Commission on Human Rights (IACHR) have expressed concern in recent years at the situation of conflict surrounding territorial claims and at threats and attacks on the rights and integrity of the indigenous peoples of Brazil. The Committee notes the press release of 8 June 2017 of the Office of the United Nations High Commissioner for Human Rights (title: “Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn”) in which three UN Special Rapporteurs and a IACHR Rapporteur stated: “In the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country. […] Indigenous peoples are especially at risk”. The Committee notes that the IACHR, in its preliminary observations of 12 November 2018 concerning its visit to Brazil, emphasized that harassment, threats and murders characterized land disputes and forced displacements. The IACHR noted with concern that the impunity surrounding these acts of rural violence was contributing towards their perpetuation and increase. Furthermore, at the time of its travel to Mato Grosso state, the IACHR observed the grave humanitarian situation faced by the Guarani and Kaiowá peoples, largely due to violations of their land rights. The IACHR visited the Dorados-Amambaipeguá indigenous lands, and received information on the victims of the “Caaraó massacre”, during which one person was killed and another six members of the community were injured, as well as reports of frequent armed attacks by militias.

The Committee also notes that the IACHR granted precautionary measures on 29 September 2019 in favour of members of the Guyraroká community of the Guarani Kaiowá indigenous people, since they had prima facie evidence that families of the community are in a serious and urgent situation because their rights to life and physical integrity are at serious risk. The IACHR takes into consideration reports concerning the high level of conflict between members of the community and landowners and concerning death threats (Resolution 47/19, Precautionary Measure (PM) 458/19).

The Committee notes this information with concern. The Committee urges the Government to take all the necessary measures to protect the life, physical and psychological integrity, and all the rights guaranteed by the Convention to indigenous and tribal peoples. The Committee considers that indigenous and tribal peoples can only assert their rights, particularly with regard to possession and ownership of the lands they traditionally occupy, if adequate measures are adopted to guarantee a climate free of violence, pressure, fear and threats of any kind.

Articles 6, 7, 15 and 16. Consultations. In its previous comments, the Committee referred to the process for regulation of the indigenous and Quilombola peoples’ right to consultation which had been under way since 2012. In this regard, the Government indicated that the process of negotiation with the peoples concerned had encountered certain difficulties and that the Secretariat-General of the Government was endeavouring to restore the dialogue. The Government was considering the possibility of proposing a potential consultation mechanism on the basis of a practical case. The Committee also noted that the CNI and the IOE had emphasized that the absence of regulation on the consultations required by the Convention was generating legal uncertainty for enterprises.

In its report, the Government indicates that in recent years a number of indigenous peoples have taken initiatives in this area, indicating to the State the manner in which they wish to be consulted. In this context, they have drawn up their own protocols for prior consultation in which they formalize the diversity of procedures for building dialogue enabling effective participation in decision-making processes that can affect their lives, their rights or their lands. The Government refers in particular to the support given by the National Foundation for Indigenous Affairs (FUNAI) for drafting protocols for consultations involving the Xingu indigenous peoples in 2016, the Krenak indigenous people in 2018 and the Tupiniquim people in 2018, and to discussions under way in the Roraima Indigenous Council (CIR). In this regard, the Committee observes that, according to information on the website of the Public Prosecutor’s Office, other communities have adopted protocols of this type. Moreover, regarding policies, programmes, actions and projects relating to social assistance for indigenous peoples, the Government indicates that FUNAI is intensifying efforts to sign agreements with provider institutions in order to ensure respect for the particular social and cultural characteristics of these peoples and to respect their right to free and informed prior consultation where appropriate.

The Government also points out that there is growing demand for infrastructure from indigenous communities (for electric power, water storage and distribution or road construction). In this regard, FUNAI ensures that all actions, activities or projects respect the right to free and informed prior consultation, so that relations between the Brazilian State and the indigenous communities are not vertical. The Government indicates that FUNAI, through its decentralized units, supplies technical, logistical and at times financial support to partner bodies and municipalities under whose jurisdiction indigenous lands are located in order to organize the necessary meetings.

The Committee welcomes the drawing up of consultation protocols by certain communities and the role played by FUNAI in this respect. The Committee requests the Government to provide further information on the status of these protocols and to indicate how it is ensured in practice that the protocols are applied in a systematic and coordinated manner through the country whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly. The Committee also encourages the Government to continue its efforts with a view to the adoption of a regulatory framework on consultations which will enable the indigenous and Quilombola peoples to have a suitable mechanism guaranteeing them the right to be consulted and to participate effectively whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly, and which will be conducive to greater legal certainty for all stakeholders. The Committee recalls the need to consult the indigenous and Quilombola peoples as part of this process and to enable them to participate fully through their representative institutions so as to be able to express their views and influence the final outcome of the process. It requests the Government to provide information on the consultation processes undertaken, including on the basis of the consultation protocols developed by the various indigenous communities and the results thereof.

Article 14. Lands. The Committee recalls that the two bodies responsible for the identification and demarcation of lands and the issuing of land titles are FUNAI (for lands traditionally occupied by indigenous peoples) and the National Institute for Settlement and Agrarian Reform (INCRA) (for lands traditionally occupied by the Quilombola peoples). The procedures are regulated by Decree No. 1775/96 and Decree No. 4887/03, respectively. The Government describes the various stages of the procedure, including: the request to open an administrative procedure for regularization; the preparation of a zone study (containing anthropological, historical, cartographic, land ownership and environmental elements); the declaration of limits; the opposition phase; the physical demarcation; the publication of the recognition order establishing the limits of the territory; and the registration and concession of the titles of collective ownership to the community by decree. The Committee notes the statistical information sent by the Government on land demarcation procedures in the states of Mato Grosso and Rio Grande do Sul. It observes that in Rio Grande do Sul, of a total of 48 procedures, 20 have resulted in regularization and 28 are in progress (at the study, declaration or demarcation stage). Regarding Mato Grosso, of a total of 50 procedures, 24 have resulted in regularization and 26 are in progress. The Committee also notes that, according to information on the FUNAI website, 440 lands have been regularized in the country as a whole. Moreover, 43 lands have had their limits identified, 75 lands have had their limits declared and nine lands have had their limits certified. Lastly, for 116 lands, the procedure is at the study stage.

The Committee notes that CONACATE refers in its observations to Constitutional Amendment Proposal No. 215/2000, under examination by the National Congress, the aim of which is to confer exclusive authority on the National Congress to approve the demarcation of lands traditionally occupied by indigenous peoples and also to ratify demarcations which have already been certified. CONACATE indicates that the final decision on any new demarcation of these lands would no longer be under the authority of the competent ministry but under the authority of the National Congress, where agri-industry is heavily represented.

The Committee also observes that, according to the information available on the website of the Federal Supreme Court (STF), in September 2019 FUNAI filed an extraordinary appeal (1.017.365/SC) with the Supreme Court on the issue of the “time frame”. The “timeframe” approach followed by certain jurisdictions means that only lands actually occupied on 5 October 1988, the date of promulgation of the Constitution, should be recognized as lands traditionally occupied by indigenous peoples. Since the STF recognized the general scope of the constitutional issue under examination, its final decision will have binding force in all instances of the judiciary. Moreover, the Committee notes that, according to information on the Congress website, two interim measures were adopted in 2019 aimed at transferring the authority to identify, delimit, demarcate and register indigenous lands from FUNAI to the Ministry of Agriculture, Livestock and Supplies (MPO 870/2019 and MP 886/2019). The first measure was rejected by the National Congress and the second measure was deemed unconstitutional by the Supreme Court.

The Committee observes that the IACHR, in its preliminary observations of 12 November 2018 relating to its visit to Brazil, stated that it had received various testimonies concerning the difficulties and long delays which indigenous communities face regarding access to land ownership. The result of these difficulties was that public lands intended for these communities were occupied by landowners or private mining enterprises, and this gave rise to conflicts involving expulsions, displacements, invasions and other forms of violence. The IACHR also expressed concern at the weakening in recent years of institutions such as FUNAI.

The Committee recalls that Article 14 of the Convention provides that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. In this regard, the Committee emphasized in its General observation of 2018 that recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based. The Committee trusts that the Government will continue taking all necessary measures to ensure the full application of the Convention with regard to the ownership and possession rights of indigenous and tribal peoples over all the lands which they traditionally occupy. It requests the Government to take the necessary measures to follow up in the very near future on the procedures pending before FUNAI concerning the delimitation, demarcation and registration of indigenous lands and before INCRA concerning lands traditionally occupied by Quilombola communities. The Committee in particular requests the Government to provide information on the measures taken regarding the situation of the Guarani and Kaiowá peoples. The Committee further requests the Government to provide information on the human and material resources allocated to both FUNAI and INCRA to fulfil their mandate at every stage of the procedure – studies, delimitation, demarcation and registration of lands.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 2 and 7 of the Convention. Coordinated and systematic action. The Committee notes the adoption of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples included in the federal Multi-year Plan of Action (PPA 2016–2019). It notes that the programme is divided into five main themes, namely: promotion of social, cultural and citizens’ rights; promotion of land and environment management in indigenous lands; guarantee of full ownership of the lands; preservation and promotion of the cultural heritage of indigenous peoples; and promotion of access to health services. Each of these themes has specific targets to achieve and initiatives to develop. The Committee notes that the PPA 2016–2019, in the part describing country context, recognizes that one of the greatest challenges for the indigenous policy of Brazil is to better integrate actions at different levels and improve synergies between them. The Committee requests the Government to provide information on the implementation of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples, indicating the measures taken in order to achieve the targets set. Please indicate whether evaluations on the implementation of the programme and the results achieved have been carried out, and on the manner in which indigenous and tribal peoples participated.

Article 2(2)(b). Measures to promote the full realization of the social, economic and cultural rights of indigenous peoples. In its previous comments, the Committee noted the information concerning the Bolsa Familia, a direct income transfer programme which benefits families throughout the country in situations of poverty and extreme poverty with access to education and health services. It noted that an agreement was concluded with the National Indian Foundation (FUNAI) to include indigenous and Quilombola families in this programme and support them. The Committee requested information on the impact of the programme on the full realization of the social, economic and cultural rights of indigenous peoples, and on how they were involved in the development of the programme. The Government indicates that in 2018, 114,903 indigenous families (almost half) were beneficiaries and that the programme had made it possible to improve the living conditions of numerous indigenous communities and to provide better access to health and education services. The Government indicates that, following ethnographic studies conducted in indigenous communities, a report on programme implementation among indigenous peoples was presented to the various indigenous communities and the situation was evaluated with their participation, with a view to proposing adjustments at the local level so that indigenous people are provided with more appropriate treatment. Thus, for example, rules that are more flexible have been introduced with regard to the documents required to register members of indigenous communities in the Single Registry for Social Programmes. The Committee welcomes the inclusive approach adopted to ensure that the particular features of indigenous and tribal peoples are taken into account so that they can become part of the Bolsa Familia programme. The Committee requests the Government to continue to provide information on the number of indigenous and tribal families that are part of the Bolsa Familia programme and the extent to which their inclusion has had an impact on their access to the health and education services available to them.

Articles 7 and 15. 1. Diversion of water from the São Francisco river. The Committee notes the detailed information provided by the Government on the hydraulic project, the completion of environmental impact studies and the social and environmental programmes planned and budgeted for in the context of implementing the project. The Committee requests the Government to indicate how the indigenous and tribal peoples concerned participate in the development and implementation of these programmes when they may be affected by them. With regard to the measures taken to protect and preserve the environment of the territories they inhabit, please indicate how the cooperation of indigenous and tribal peoples is ensured.

2. Belo Monte hydroelectric plant (Pará State). The Committee requested the Government to continue to report on developments in the Belo Monte hydroelectric plant project, including information on measures taken to ensure the effective protection of the rights of indigenous communities affected by the construction and activities of the hydroelectric plant. The Government indicates that in 2015, a cooperation agreement was signed between the FUNAI and the enterprise Norte Energia concerning the implementation of the Plan for the Territorial and Environmental Protection of the Indigenous Lands of Médio Xingu. As part of the process of granting a licence to the hydroelectric plant, consultations coordinated by the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and supported by the FUNAI were held with the indigenous communities affected, concerning all of the villages in the 11 indigenous lands affected. A considerable number of meetings and public hearings with indigenous communities have been held and the measures proposed by indigenous communities have been taken into account in the Basic Environmental Project for Indigenous Communities (PBA-CI). The Government considers the consultation to be an ongoing process in which communities are provided with information and support in order to ensure that they participate effectively and enable them to express their views on the project and its impact. The PBA CI includes a management plan and ten programmes, including an institutional capacity-building programme for indigenous organizations. The Government indicates that the foundations have thus been established to mitigate and compensate for impacts on affected communities and to promote their involvement and participation in decision-making spaces.

The Committee further notes that in September 2019, a first conciliation hearing was held before the Conciliation and Arbitration Chamber of the Office of the Attorney-General of the Union (AGU). Conciliation forms part of the public civil action brought in 2004 by the federal prosecution service concerning the impact of the construction of the plant. The parties reached two agreements that will serve as the basis for further discussions; they agreed on the creation of an oversight committee for the PBA-CI and that the enterprise would audit the damage caused by the works to all indigenous peoples of Médio Xingu, with a view to the payment of compensation. The Committee requests the Government to provide information on the results achieved in the context of the conciliation process, in particular on the results of the audit and the manner in which indigenous peoples are compensated. Please also continue to provide information on the manner in which indigenous peoples participate in the implementation of the PBA-CI project and associated programmes.

3. Cinta Larga people. Unlawful mining and logging. With regard to the need to protect the indigenous people of Cinta Larga, established on the indigenous land of Parque do Aripuanã (State of Mato Grosso), from intrusion by third parties on their lands, the Government refers to a number of monitoring visits carried out by the Office for the Coordination of Territorial Control (CGMT), which is linked to the territorial protection department of the FUNAI, to prevent and monitor intrusions, illegal timber extraction activities or any other damage. The Government indicates that the present context remains difficult and that there is a long and recurrent history of unlawful practices. Consequently, sustained action is needed to protect territories on a continuous basis and limit such practices. The Committee requests the Government to continue to take all necessary measures to ensure the protection of the rights of the indigenous people of Cinta Larga to the lands that they traditionally occupy, as well as their resources. It requests the Government to provide information on the means available to the CGMT to carry out monitoring activities and to specify whether the public prosecution service and/or the police participate in these activities. Recalling the importance of combating impunity, the Committee requests the Government to provide information on judicial proceedings brought against persons who illegally enter the lands and exploit the resources of the people of Cinta Larga and, as applicable, the convictions handed down.

Articles 26 and 27. Education. The Committee notes that the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples recalls, in the part describing the country context, that the access of indigenous peoples to a differentiated and quality education at all levels is the responsibility of the Union and the federal States, which are required to develop specific indigenous educational programmes. According to this document, indigenous school education is addressed through one-off, sporadic measures and dialogue with indigenous peoples; training courses for teachers are inadequate and curriculums and calendars are not appropriate to indigenous schools; and the rate at which schools are built and specific teaching materials are developed is low. The Committee requests the Government to take the necessary measures to ensure that members of indigenous peoples and Quilombola have access to quality education at all levels on an equal footing with the rest of the national community, and that education programmes are developed with these peoples. Please provide statistical information on school attendance rates among indigenous children at the primary, secondary and higher levels, as well as on school drop-out rates, if available, disaggregated by ethnic group, gender and age.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019; the joint observations of the IOE and the National Confederation of Industry (CNI), received on 31 August 2018; the observations of the National Confederation for Typical State Careers (CONACATE), which include general comments on the application of the Convention received on 28 August 2017, and the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include a report by COICA (a Peruvian indigenous peoples’ organization) on the application of the Convention in various countries.

Representation made under article 24 of the ILO Constitution. Right of Quilombola communities to the lands they traditionally occupy. Alcântara space launch centre. For many years, the Committee has been examining the question of the impact of the establishment of the Alcântara space centre (CEA) and the Alcântara launch centre (CLA) on the rights of the Quilombola communities of Alcântara. The Committee notes that the Governing Body at its 337th Session (October–November 2019) decided that the representation made under article 24 of the ILO Constitution by the Union of Rural Workers of Alcântara (STTR) and the Union of Family Agriculture Workers of Alcântara (SINTRAF), alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. The Committee observes that the allegations in the representation refer to the consequences of the extension of the area covered by the Alcântara space launch centre on the rights of the Quilombola communities and the lands traditionally occupied by them. In accordance with its usual practice, the Committee has decided to defer the examination of this issue until the Governing Body adopts its report on the representation.

Article 3 of the Convention. Human rights. The Committee observes that certain United Nations bodies and the Inter-American Commission on Human Rights (IACHR) have expressed concern in recent years at the situation of conflict surrounding territorial claims and at threats and attacks on the rights and integrity of the indigenous peoples of Brazil. The Committee notes the press release of 8 June 2017 of the Office of the United Nations High Commissioner for Human Rights (title: “Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn”) in which three UN Special Rapporteurs and a IACHR Rapporteur stated: “In the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country. […] Indigenous peoples are especially at risk”. The Committee notes that the IACHR, in its preliminary observations of 12 November 2018 concerning its visit to Brazil, emphasized that harassment, threats and murders characterized land disputes and forced displacements. The IACHR noted with concern that the impunity surrounding these acts of rural violence was contributing towards their perpetuation and increase. Furthermore, at the time of its travel to Mato Grosso state, the IACHR observed the grave humanitarian situation faced by the Guarani and Kaiowá peoples, largely due to violations of their land rights. The IACHR visited the Dorados-Amambaipeguá indigenous lands, and received information on the victims of the “Caaraó massacre”, during which one person was killed and another six members of the community were injured, as well as reports of frequent armed attacks by militias.

The Committee also notes that the IACHR granted precautionary measures on 29 September 2019 in favour of members of the Guyraroká community of the Guarani Kaiowá indigenous people, since they had prima facie evidence that families of the community are in a serious and urgent situation because their rights to life and physical integrity are at serious risk. The IACHR takes into consideration reports concerning the high level of conflict between members of the community and landowners and concerning death threats (Resolution 47/19, Precautionary Measure (PM) 458/19).

The Committee notes this information with concern. The Committee urges the Government to take all the necessary measures to protect the life, physical and psychological integrity, and all the rights guaranteed by the Convention to indigenous and tribal peoples. The Committee considers that indigenous and tribal peoples can only assert their rights, particularly with regard to possession and ownership of the lands they traditionally occupy, if adequate measures are adopted to guarantee a climate free of violence, pressure, fear and threats of any kind.

Articles 6, 7, 15 and 16. Consultations. In its previous comments, the Committee referred to the process for regulation of the indigenous and Quilombola peoples’ right to consultation which had been under way since 2012. In this regard, the Government indicated that the process of negotiation with the peoples concerned had encountered certain difficulties and that the Secretariat-General of the Government was endeavouring to restore the dialogue. The Government was considering the possibility of proposing a potential consultation mechanism on the basis of a practical case. The Committee also noted that the CNI and the IOE had emphasized that the absence of regulation on the consultations required by the Convention was generating legal uncertainty for enterprises.

In its report, the Government indicates that in recent years a number of indigenous peoples have taken initiatives in this area, indicating to the State the manner in which they wish to be consulted. In this context, they have drawn up their own protocols for prior consultation in which they formalize the diversity of procedures for building dialogue enabling effective participation in decision-making processes that can affect their lives, their rights or their lands. The Government refers in particular to the support given by the National Foundation for Indigenous Affairs (FUNAI) for drafting protocols for consultations involving the Xingu indigenous peoples in 2016, the Krenak indigenous people in 2018 and the Tupiniquim people in 2018, and to discussions under way in the Roraima Indigenous Council (CIR). In this regard, the Committee observes that, according to information on the website of the Public Prosecutor’s Office, other communities have adopted protocols of this type. Moreover, regarding policies, programmes, actions and projects relating to social assistance for indigenous peoples, the Government indicates that FUNAI is intensifying efforts to sign agreements with provider institutions in order to ensure respect for the particular social and cultural characteristics of these peoples and to respect their right to free and informed prior consultation where appropriate.

The Government also points out that there is growing demand for infrastructure from indigenous communities (for electric power, water storage and distribution or road construction). In this regard, FUNAI ensures that all actions, activities or projects respect the right to free and informed prior consultation, so that relations between the Brazilian State and the indigenous communities are not vertical. The Government indicates that FUNAI, through its decentralized units, supplies technical, logistical and at times financial support to partner bodies and municipalities under whose jurisdiction indigenous lands are located in order to organize the necessary meetings.

The Committee welcomes the drawing up of consultation protocols by certain communities and the role played by FUNAI in this respect. The Committee requests the Government to provide further information on the status of these protocols and to indicate how it is ensured in practice that the protocols are applied in a systematic and coordinated manner through the country whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly. The Committee also encourages the Government to continue its efforts with a view to the adoption of a regulatory framework on consultations which will enable the indigenous and Quilombola peoples to have a suitable mechanism guaranteeing them the right to be consulted and to participate effectively whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly, and which will be conducive to greater legal certainty for all stakeholders. The Committee recalls the need to consult the indigenous and Quilombola peoples as part of this process and to enable them to participate fully through their representative institutions so as to be able to express their views and influence the final outcome of the process. It requests the Government to provide information on the consultation processes undertaken, including on the basis of the consultation protocols developed by the various indigenous communities and the results thereof.

Article 14. Lands. The Committee recalls that the two bodies responsible for the identification and demarcation of lands and the issuing of land titles are FUNAI (for lands traditionally occupied by indigenous peoples) and the National Institute for Settlement and Agrarian Reform (INCRA) (for lands traditionally occupied by the Quilombola peoples). The procedures are regulated by Decree No. 1775/96 and Decree No. 4887/03, respectively. The Government describes the various stages of the procedure, including: the request to open an administrative procedure for regularization; the preparation of a zone study (containing anthropological, historical, cartographic, land ownership and environmental elements); the declaration of limits; the opposition phase; the physical demarcation; the publication of the recognition order establishing the limits of the territory; and the registration and concession of the titles of collective ownership to the community by decree. The Committee notes the statistical information sent by the Government on land demarcation procedures in the states of Mato Grosso and Rio Grande do Sul. It observes that in Rio Grande do Sul, of a total of 48 procedures, 20 have resulted in regularization and 28 are in progress (at the study, declaration or demarcation stage). Regarding Mato Grosso, of a total of 50 procedures, 24 have resulted in regularization and 26 are in progress. The Committee also notes that, according to information on the FUNAI website, 440 lands have been regularized in the country as a whole. Moreover, 43 lands have had their limits identified, 75 lands have had their limits declared and nine lands have had their limits certified. Lastly, for 116 lands, the procedure is at the study stage.

The Committee notes that CONACATE refers in its observations to Constitutional Amendment Proposal No. 215/2000, under examination by the National Congress, the aim of which is to confer exclusive authority on the National Congress to approve the demarcation of lands traditionally occupied by indigenous peoples and also to ratify demarcations which have already been certified. CONACATE indicates that the final decision on any new demarcation of these lands would no longer be under the authority of the competent ministry but under the authority of the National Congress, where agri-industry is heavily represented.

The Committee also observes that, according to the information available on the website of the Federal Supreme Court (STF), in September 2019 FUNAI filed an extraordinary appeal (1.017.365/SC) with the Supreme Court on the issue of the “time frame”. The “timeframe” approach followed by certain jurisdictions means that only lands actually occupied on 5 October 1988, the date of promulgation of the Constitution, should be recognized as lands traditionally occupied by indigenous peoples. Since the STF recognized the general scope of the constitutional issue under examination, its final decision will have binding force in all instances of the judiciary. Moreover, the Committee notes that, according to information on the Congress website, two interim measures were adopted in 2019 aimed at transferring the authority to identify, delimit, demarcate and register indigenous lands from FUNAI to the Ministry of Agriculture, Livestock and Supplies (MPO 870/2019 and MP 886/2019). The first measure was rejected by the National Congress and the second measure was deemed unconstitutional by the Supreme Court.

The Committee observes that the IACHR, in its preliminary observations of 12 November 2018 relating to its visit to Brazil, stated that it had received various testimonies concerning the difficulties and long delays which indigenous communities face regarding access to land ownership. The result of these difficulties was that public lands intended for these communities were occupied by landowners or private mining enterprises, and this gave rise to conflicts involving expulsions, displacements, invasions and other forms of violence. The IACHR also expressed concern at the weakening in recent years of institutions such as FUNAI.

The Committee recalls that Article 14 of the Convention provides that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. In this regard, the Committee emphasized in its general observation of 2018 that recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based. The Committee trusts that the Government will continue taking all necessary measures to ensure the full application of the Convention with regard to the ownership and possession rights of indigenous and tribal peoples over all the lands which they traditionally occupy. It requests the Government to take the necessary measures to follow up in the very near future on the procedures pending before FUNAI concerning the delimitation, demarcation and registration of indigenous lands and before INCRA concerning lands traditionally occupied by Quilombola communities. The Committee in particular requests the Government to provide information on the measures taken regarding the situation of the Guarani and Kaiowá peoples. The Committee further requests the Government to provide information on the human and material resources allocated to both FUNAI and INCRA to fulfil their mandate at every stage of the procedure – studies, delimitation, demarcation and registration of lands.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 14 of the Convention. Land demarcation and titling for Quilombola communities. The Committee notes with interest that, pursuant to Resolution No. 397 of 24 July 2014, the National Institute for Settlement and Agrarian Reform (INCRA) set up a national committee as a support measure for the policy on Quilombola land regularization. In accordance with the resolution, the committee holds bimonthly meetings and together with the Quilombola seeks local alternatives to prevent, mitigate and manage disputes in Quilombola lands. In its report the Government also describes four instances of land disputes settled through conciliation and mediation to the satisfaction of all parties. Land titles accounting for just over 1,033,462 hectares have been awarded to Quilombola communities, benefiting 15,000 families in 189 territories. The Committee requests the Government to continue to report on progress made in securing the regularization of land titling for the Quilombola communities.

Guaraní Kaiowá and Guaraní Mbya peoples. Demarcation. The Government recalls in its report that there is strong resistance on the part of certain political leaders and of the non-indigenous population of the region to initiatives for the identification of indigenous peoples and to the activities of the National Foundation for Indigenous Affairs (FUNAI). This situation gave rise to various proceedings that were only concluded in 2010 through a decision by the Supreme Federal Court. The Government indicates that despite these difficulties, the analysis of the detailed report on the Ñandevapeguá indigenous lands has been completed and technical approval is awaited for the detailed reports on the anthropological and environmental aspects of the Dourados-Amambaipeguá I indigenous lands. The Committee notes the publication, on 20 July 2015, of an agreement between the Union and the State of Mato Grosso do Sul to strengthen preventive and repressive measures in areas of the Dourados and Caarapó municipalities where indigenous communities live. The Committee notes that the necessary studies were completed in order to identify and demarcate the lands of the Guaraní people in the municipality of El Dorado do Sul in the State of Río Grande do Sul. The Committee requests the Government to provide further information on the demarcation of lands traditionally occupied by indigenous communities in the States of Mato Grosso do Sul and Rio Grande do Sul. Please continue to report on the activities undertaken to ensure the security of the indigenous communities of these two States and the personal safety of their members.

Articles 6, 7 and 15. Diversion of the San Francisco River. In its report, the Government provides up-to-date information on the activities undertaken by the FUNAI and other bodies involved to protect the interests of the indigenous communities affected by the diversion of the San Francisco River (the Truká, Timbalalá, Pipipă and Kambiwá indigenous communities). The Committee notes that a decision by the Federal Supreme Court on the application regarding the constitutionality of the project is still pending. The Committee requests the Government to continue to provide information on the manner in which consideration is given to the interests and priorities of the indigenous communities affected by the diversion of the San Francisco River, and the outcome of the case before the Federal Supreme Court.

Forest exploitation. Overlap of concessions with indigenous lands. In its previous observation, the Committee asked for information on the impact on forestry activities of the National Policy for the Environmental and Territorial Management of Indigenous Lands (PNGATI), established in June 2012. In its report, the Government indicates that Act No. 11284 of 2006 excludes the possibility of granting licences for the exploitation of indigenous land and areas inhabited by local communities. Moreover, the FUNAI intervenes to defend indigenous rights where a forestry concession could potentially affect indigenous lands. The Government states that in many cases it is the presence of traditional communities or indigenous peoples that allows the conservation of biodiversity. The Government also provides information on the rehabilitation of degraded areas of the Sararé indigenous lands and on other measures envisaged to tackle unlawful logging, involving the FUNAI and training officials and indigenous persons in land protection. According to the Government, between 2012 and 2013 the deforestation of indigenous lands in the Amazon decreased by 16 per cent per year, on average. The Committee requests the Government to continue to provide up-to-date information enabling it to examine the manner in which indigenous peoples affected by forestry concessions have been consulted and participate in forestry activities under the conditions required by the Convention.

Belo Monte hydroelectric plant (State of Pará). The Government indicates in its report that in 2015 there were no court decisions ordering the suspension of work at the Belo Monte hydroelectric plant. The Government adds that the enterprise Norte Energía and the FUNAI reached an agreement, with the participation of indigenous leaders, and in addition to other measures to supplement the project, to build schools and basic health facilities for the communities that benefit from the indigenous component of the project. The Committee requests the Government to continue to report on developments in the Belo Monte hydroelectric plant project, including information on measures to ensure effective protection of the rights of indigenous communities over lands they have traditionally occupied and which are affected by the construction of the hydroelectric plant.

Cinta Larga people. Mining and unlawful logging. The Government recognizes in its report that the Cinta Larga people settled in the Parque de Aripuaná indigenous territory (State of Mato Grosso), is under pressure owing to the mining and forestry potential of its lands. The FUNAI is engaged in information-gathering, prevention and supervision activities in the indigenous lands in collaboration with the Federal Police and the Federal Public Prosecutor’s Office, while seeking the support of the members of the communities. The Committee requests the Government to continue to send information on the measures taken to ensure effective protection for the Cinta Larga indigenous people, the results of the investigations conducted by the Federal Police and the penalties applied in any confirmed cases of intrusion.

Article 16. Relocation of Quilombola communities (municipality of Alcántara, State of Maranhao). With regard to the establishment of a space industry plant liable to affect an area of approximately 3,000 hectares claimed by a Quilombola community in the municipality of Alcántara, the Government reports that legal proceedings seeking recognition of the Quilombola community identified in an anthropological report are still pending. At administrative level, the Government indicates that on 2 September 2015, at a meeting held in the Presidency’s General Secretariat, a deadline was set for the production of a timetable for the implementation and completion of works which includes the relocation of Quilombola communities that may be affected. The Committee notes that, according to the Government, the timetable must meet the requirements of the Convention. The Committee points out that when the removal or relocation of peoples is considered necessary as an exceptional measure, the Convention requires measures to be taken for their return or their compensation. It also requires measures to obtain their free and informed consent. The peoples affected must be provided with lands of quality and legal status at least equal to that of the lands they previously occupied and that is suitable to provide for their present needs and future development. The Committee requests the Government to report on the procedures followed in any instances where it was necessary to proceed with the removal and relocation of Quilombola communities in the municipality of Alcántara and on the manner in which it is ensured that full effect is given to the requirements of the Convention in these matters.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the National Confederation of Industry (CNI) and the International Organization of Employers (IOE), received on 1 September 2015.

Article 2(2)(b) of the Convention. Measures to promote the full realization of the social, economic and cultural rights of indigenous peoples. The Committee notes the detailed information provided by the Government in its report on the Bolsa Familia Programme (PBF), a direct income transfer programme which benefits families throughout the country in situations of poverty and extreme poverty, and whose family income per capita is less than 77 Brazilian Reales (BRL) a month. In July 2015, a total of 140,256 indigenous families were identified, of which 111,167 are beneficiaries of the PBF, which corresponds to 448,250 persons (based on the 2010 population census, indigenous peoples have 896,917 persons). The Government indicates that, with reference to the criterion of “self-identification” set out in the Convention, the PBF developed a single register of the population which made it possible to identify 17 traditional groups, including indigenous peoples, Quilombola communities, gypsy communities and groups belonging to territorial communities. The PBF includes an “active search” for families to offer them registration under the PBF, explain the benefits provided and their consequences. The National Citizen’s Income Secretariat (SENARC), which is responsible for the PBF, has concluded an agreement with the National Indian Foundation (FUNAI) on cooperation for the implementation of joint activities for the inclusion of indigenous families under the PBF and the provision of support to beneficiary families. The Committee notes with interest the information provided and welcomes the approach of the PBF, which entails progress in the application of the Convention. The Committee requests the Government to continue providing information on the impact of the Bolsa Familia Programme in promoting the full realization of the social and economic rights of indigenous peoples. Please also indicate the manner in which indigenous peoples and other beneficiaries participate in the development of the PBF, particularly in relation to the health and education services received by families which are beneficiaries of the PBF.

Articles 6, 7, 15 and 16. Consultations. The Government indicates that among the federal authorities there are no divergent views on the self-application of the Convention, which is recognized as an important instrument for the defence of the rights of indigenous peoples. With reference to the regulation of the right of consultation, which commenced in January 2012, the Government reports that the time limits were extended and that nine information meetings were held with the quilombola communities. However, the indigenous communities broke off negotiations when the Attorney General of the Nation issued Decision No. 303, of 16 July 2012, applying to all indigenous lands the “safeguards” set out by the Federal Supreme Court in a ruling of 19 March 2009 (Pet. 3388) in the case which arose in the Raposa Serra do Sol indigenous land (state of Roraima) concerning land disputes and public security, mining, environmental rights and land use. The Committee notes that on 23 October 2013 the Federal Supreme Court found that the conditions set out in its ruling of March 2009 were only applicable to the Raposa Serra do Sol indigenous land. The Committee also notes that the above decision does not constitute a binding precedent for other cases, although it “serves as an important guideline for the State authorities, and not only the judiciary, when they have to resolve similar issues” (agreed by the Plenary of the Supreme Federal Court on 23 October 2014, Pet. 3388 Roraima, attached to the Government’s report). The Government recognizes that the conditions have not been favourable to continuing the negotiation process with indigenous peoples and that the General Secretariat of the Office of the President is seeking to re-establish dialogue and to set a positive agenda. Taking into account the procedure followed for the consultations on the Tapajós hydroelectric plant, the Government is examining the possibility, based on a specific case, of proposing a possible consultation mechanism. In their observations, the CNI and the IOE refer to Article 231 of the Political Constitution of 1988, which recognizes the right of indigenous peoples to the lands that they traditionally occupy and the protection of their rights. The CNI and the IOE express concern with regard to the possible impact on enterprises of decisions affecting indigenous communities, and the current absence of regulation of the consultation procedure envisaged in the Convention, which gives rise to legal insecurity for enterprises. The Committee requests the Government to strengthen its efforts to establish appropriate procedures, which may include regulations, that allow for the right to consultation and participation, as required by the Convention, and to continue providing information on the negotiations with indigenous peoples and the Quilombola communities in this regard. Please also provide information on the manner in which a practice is developed to ensure the effective participation of indigenous peoples in decisions which may affect them directly and that full effect is given to all the corresponding provisions of the Convention.

Natural resources. Construction of a hydroelectric plant on the Cotingo river (Roraima). The Government provides with its report the opinion of the rapporteur of the Constitution, Justice and Citizenship Commission of the National Congress, adopted on 12 March 2015, which found unconstitutional the draft Legislative Decree No. 2540/2006 issuing the authorization for a hydroelectric plant in the area of the Cotingo river and therefore, there is no prospect of the legislative authority approving this project in the short term. The Committee also notes that the plan for a hydroelectric plant in the region of the Cotingo river is not included in the national energy plans which, due to the lack of governmental permission, makes it impossible to implement the project. For its part, the Government indicates that the new undertakings must be the subject of consultations with peoples who are likely to be affected directly, through the appropriate procedures, and particularly through representative institutions. With reference to the current negotiations to regulate consultation procedures, the Committee requests the Government to continue providing information on how it is ascertained that any project which affects indigenous lands has been submitted to full consultation with the peoples concerned and that their viewpoints, priorities and interests are taken into account in the decisions adopted on this subject. The Committee once again hopes that the peoples concerned will collaborate with the impact studies carried out in accordance with the Convention and that they will participate in the benefits of new ventures.

The Committee is raising other matters in a request addressed directly to the Government.

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

Relocation of Quilombola communities (municipality of Alcântara, State of Maranhão). In the report received in September 2013, the Government states that, between 2003 and 2013, there were no relocations of Quilombola communities in the municipality of Alcântara. The Committee notes that the situation is subject to conciliation proceedings coordinated by the Advocate-General of the Union with a view to resolving the conflict of interests arising from the overlap between a national security area and the territory of the Quilombola communities. The Committee invites the Government to continue to provide information on the pending judicial proceedings and Federal Arbitration and Conciliation Chamber (CCAF) proceedings relating to the Alcântara space centre.

Belo Monte hydroelectric power plant (State of Pará). In its previous comments, among other points related to the construction of a hydroelectric power plant, the Committee noted that the Inter-American Commission on Human Rights (IACHR) issued precautionary measures (MC-382-10) on 1 April 2011. The Government indicates that on 29 July 2011 the IACHR modified the objective of the measures and, inter alia, ordered that steps should be taken to ensure prompt completion of the regularization of the ancestral lands of indigenous peoples in the Xingu river basin and to ensure effective protection for the aforementioned ancestral territories from invasion and occupation by non-indigenous persons, and also from the exploitation and destruction of their natural resources. In addition, the IACHR decided that the debate between the parties regarding prior consultation and informed consent with regard to the Belo Monte project had turned into a discussion of substantive matters that went beyond the issuing of precautionary measures. In the report received in September 2013, the Government also indicates that 22 court cases are in progress in relation to the Belo Monte hydroelectric project, which is evidence of the State’s vigour in protecting the rights of those who consider themselves affected by the venture. The Government also points out that the fact that none of the judicial proceedings have resulted in suspension of the project demonstrates the capacity of the state bodies for verifying the legality of the project and ensuring compliance with the law. The Government declares that none of the ten indigenous lands located in the area impacted by the project will be flooded, which implies that there will be no relocation of the peoples. The minimum monthly flow of the Xingu river will be 700 cubic metres, which would exceed the 400 cubic metres recorded over the last 80 years. The Government provides up-to-date information on the activities undertaken by the National Foundation for Indigenous Affairs (FUNAI) in relation to the isolated indigenous peoples in the Médio Xingu river area, the comprehensive health programme for the indigenous communities of the Xingu river basin, and the follow-up to the ethno-ecological studies conducted by the consortium involved in the construction of the hydroelectric dam and the various parties concerned. The Government also supplies information on progress made concerning regularization of the ancestral lands of indigenous peoples of the Xingu river basin. The Committee invites the Government to continue to provide information on the judicial proceedings in progress relating to the Belo Monte hydroelectric project. The Government is also invited to continue to supply information to enable the Committee to evaluate the steps taken to guarantee the effective protection of the rights of indigenous communities to the lands which they traditionally occupy and which are affected by the construction of the Belo Monte hydroelectric power plant (Article 14).

Mining on the lands of the Cinta Larga indigenous people. The Government provides new information on the situation in 2012 and 2013 at the Laje garimpo (informal mining site). The Committee notes that the Cinta Larga people resumed the dialogue with the authorities and joint measures were taken to ensure the safety of persons and promote the collection of natural resources. The Federal Public Prosecutor’s Office took steps to close down logging operations established on three indigenous lands. The Committee invites the Government to continue to provide information on the measures taken to protect the Cinta Larga indigenous communities. The Government is also requested to include information on the outcome of the investigations conducted by the Federal Police and the penalties imposed for proven cases of intrusion (Article 18).

Situation of the Guaraní Kaiowá peoples in the State of Mato Grosso do Sul. Guaraní Mbyá community in the municipality of Eldorado do Sul (State of Rio Grande do Sul). The Committee notes the new information provided by the Government concerning the progress made on the regularization of indigenous lands of the Pyelito Kue and Mbarakay communities in the municipality of Iguatemi (Mato Grosso do Sul). Moreover, a public safety plan was drawn up to protect the physical integrity of these communities. With regard to the events of July 2008 that caused damage to a Guaraní Mbyá community in the municipality of Eldorado do Sul, the Committee notes that in November 2011 the Federal Judge ordered the State of Rio Grande do Sul to pay compensation to the families affected. The Government indicates that the Guaraní Mbyá families were able to return to a place close to the location where they had previously established their camp. FUNAI set up a technical group with a view to identification and delimitation of the lands occupied by the abovementioned communities. The Committee invites the Government to continue to provide information on the demarcation of the lands traditionally occupied by indigenous communities in the southern region of Mato Grosso do Sul and on the results achieved by the public safety plan in ensuring the physical integrity and safety of the indigenous communities in the region. The Government is also requested to include information on the work of the technical group set up by FUNAI to deal with the situation of the Guaraní Mbyá community in the municipality of Eldorado do Sul.

Article 14 of the Convention. Demarcation and titling of lands in favour of the Quilombola communities. The Government indicates that 2,187 communities have been certified by the Palmares Cultural Foundation and 100 certificates have been issued in 2013. Certification is the first step towards guaranteeing the right to land. The land titles issued cover a total of 995,000 hectares. The Committee notes that a case is pending before the Federal Supreme Court concerning the constitutionality of Decree No. 4887/2003 of 20 November 2003, under which regulations had been issued governing the procedure for the demarcation and titling of remaining lands for the Quilombola communities. In April 2012, the Union maintained that the basis for the aforementioned Decree is Article 14 of the Convention. The Committee invites the Government to continue to provide information on the progress made towards the regularization of land titling for the Quilombola communities.

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

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

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.]

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

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.

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

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.

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

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.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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 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.

Noting the Government does not provide information in respect to the other points raised in its previous observation, the Committee is bound to repeat its previous observation, which read in relevant parts as follows:

Article 1, paragraph 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 Government is asked to reply in detail to the present comments in 2010.]

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes a communication received on 27 August 2008 and sent to the Government on 5 September 2008, containing observations on the application of the Convention from the Union of Rural Workers of Alcántara (STTR) and the Union of Workers of Family Agriculture of Alcántara (SINTRAF). It also notes another communication from the Single Confederation of Workers (CUT) received at the ILO Office in Brasilia on 1 September 2008 and sent to the Government on 18 September 2008. This communication also attaches 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. The Committee notes that the Government’s report was received on 31 October 2008, and it was therefore too late for it to be fully examined at this meeting. The Committee notes that the Government has not yet replied to the abovementioned communications. The Committee notes the communication dated 18 September 2008 from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), which it will examine next year together with any comments the Government wishes to make.

Article 1(1)(a) of the Convention. Scope of application. Black rural Quilombola communities. Both communications refer to the Quilombola communities and maintain that the remaining Quilombola communities constitute tribal peoples within the meaning of Article 1(1)(a) of the Convention. They indicate that these are social groups whose origins lie in the resistance movement to slavery in Brazil and to racial discrimination, and whose ethnic identity is based on common ancestry and a differentiated way of life. The Brazilian Constitution of 1988 guarantees to Quilombola communities their right to ownership of their lands and recognizes the importance of such communities for the cultural heritage of Brazil. The CUT indicates that, even though the executive and judicial authorities have recognized in documents or rulings that the Convention applies to the Quilombola communities, the Government merely provides information in its report on the situation of the indigenous peoples covered by Article 1(1)(b) of the Convention. The CUT claims that there is a pressing need to include information on the realities of life for the Quilombola communities in the Government’s report with reference to Article 1(1)(a) of the Convention and guarantee the effective application of the Convention to these communities. The General Land Registry of the Remaining Quilombola Communities, under the responsibility of the Palmares Cultural Foundation, has registered the existence of 1,228 Quilombola communities, but the National Coordinating Committee of the Black Rural Quilombola Communities, indicates the existence of more than 3,000 communities scattered over all the regions of the country.

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 Article 1(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 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.

Communication from the STTR and SINTRAF

Quilombola communities of Alcántara. This communication alleges a blatant failure to comply with the Convention with respect to the Quilombola communities of Alcántara in the state of Maranhao on the part of the Brazilian Space Agency (AEB) and Alcántara Cyclone Space (ACS), a bi-national company jointly owned by Brazil and Ukraine, on account 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 Government of the state of Maranhao is alleged to have expropriated 52,000 hectares via Decree No. 7320 during the 1980s, and in 1991, by another Decree of the Presidency of the Republic, the area expropriated for the space centre was increased by 62,000 hectares. Agrarian communities were forcibly displaced, without any technical assistance in agriculture being provided or access to the sea being granted. Fishing represents a substantial part of their economy. In order to reach the sea, they have to travel 10 kilometres and cross the enclosed area of the space centre. Twenty years on, they are living in conditions of extreme poverty and the remaining communities which were able to stay do not have titles in respect of their lands and suffer from the impact of the space centre’s activities. No environmental impact study was carried out with regard to the activities resulting from the establishment of this centre. The Government approved the addition to the initial launch site of another six commercial launch sites, which would occupy 14,303 hectares superimposed on the areas currently used by the Quilombola communities for farming, housing, stock rearing, worship and religious events.

In particular, the communication alleges that two agreements were signed with Ukraine without previous consultation which will have strong repercussions on the communities. The first of these is the “Technological safeguards agreement” connected with the launch centre, signed in January 2002 and promulgated by Decree No. 5266 of 2004. The other is the “Treaty on long-term cooperation in the use of the Cyclone-4 launch vehicle”, signed on 21 October 2003 and promulgated by Decree No. 5436 of 2005.

According to the communication, since 1999, the Chief Federal Public Prosecutor of Maranhao is reported to have been questioning the environmental aspects of the expansion of the space centre and the failure to issue land titles to the communities in respect of the lands they occupy. In September 2006, an agreement was signed between the Chief Federal Public Prosecutor and the Federal Government in the context of judicial proceedings, which determined that the process of granting land titles should be initiated and concluded within a period of 180 days. The land titles proceedings were launched by the National Institute for Settlement and Agrarian Reform (INCRA) and this was due to be completed on 31 October 2007. To the present date, the technical study on identification and demarcation has not been published. Only from the date of publication of this study are the parties concerned able to launch an appeal. However, the Government is reported to have already started activities to establish and expand the centre.

The organizations also state that in May 2008, the Chief Federal Public Prosecutor of Maranhao instituted legal proceedings against the AEB, ACS and the Foundation for the Application of Critical Technologies (ATECH) to “guarantee the rights of the Quilombola communities of Alcántara against actions committed by the defendants, which represent damage to the integrity of possession of ethnic territories and affect the environmental resources of the region and also the activities and way of life of the members of the ethnic groups”. The Chief Federal Public Prosecutor’s Office also stated that companies must refrain from prospecting, drilling or demarcation operations until the process of identification, recognition, delimitation and granting of land titles is completed.

The communication from the organizations highlights the intrinsic connection between lands, environment, life, religion, identity and culture. It repeats the request that the rights of these peoples to the lands should not be considered only from the point of view of ownership but also in terms of interdependence with other rights, as provided for by Article 13 of the Convention.

The Committee refers to the points made in the second paragraph of this observation, according to which 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. The Committee points out that, in as much as these communities appear to be covered by the Convention, the Government is required to apply Articles 6, 7 and 15 on consultation and natural resources and Articles 13 to 19 on land. The Committee refers in particular to Article 7(3), which requires the Government to 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 also draws the Government’s attention to its obligation laid down in Article 4(1) of the Convention to adopt special measures as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. 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 Government is asked to reply in detail to the present comments in 2009.]

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with interest the Government’s detailed first report, prepared with the participation of the National Indian Foundation (FUNAI), and the ample documentation attached to the report, all of which is indicative of the attention the Government accords to applying the Convention.

1. Legislation. In its last comments on Convention No. 107, the Committee noted that the Executive had submitted to the National Congress a proposal to consolidate the legislation on indigenous peoples, which implements virtually all the constitutional provisions on indigenous matters and serves as a framework for indigenous policy in Brazil. The Committee notes that the legislation has not as yet been consolidated. It hopes that during the debate on consolidation, the Government will take into account the recent ratification of Convention No. 169, particularly Article 6, under which governments are required to consult the peoples concerned through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The Committee invites the Government, should it see fit, to request technical assistance from the ILO, in consolidating the above legislation, to ensure that the various Bills are compatible with the Convention.

2. Article 1 of the Convention. Self-identification. The Committee notes that, according to the Government’s report, there are approximately 400,000 Indians in Brazil, with more than 180 languages and living in 220 villages distributed throughout the country. The Committee notes that Act No. 6,001 "Indian Statute" of 19 December 1973 indicates, in section 3, that for the purposes of the Act the following definitions apply: "Indians or forest dwellers: persons of pre-Colombian origin and ascendancy who identify themselves and are identified as belonging to an ethnic group having cultural characteristics that distinguish it from the national society". The Committee would be grateful if the Government would specify how this Article of the Convention is applied in the various censuses conducted to determine the number of indigenous persons in Brazil. It also asks the Government to provide information on indigenous peoples who have not been contacted, and particularly on the measures taken or envisaged to protect and safeguard these peoples from undesired contact with outsiders, such as timber enterprises or foreign religious missions.

3. The Committee notes that article 231 of the Federal Constitution of 1988 provides that the social organizations, customs, languages, beliefs and traditions of Indians shall be recognized, as well as their rights of origin to the lands that they traditionally occupy. However, Act No. 6,001, which is still in force as it has not been officially repealed, regulates, in section 1, the legal status of "Indians or forest dwellers and indigenous communities, with a view to preserving their culture and integrating them, gradually and harmoniously, into the national community". The Committee wishes to draw the Government’s attention to the fact that this provision of section 1, as well as others of the said Act, is contrary to the spirit of the Convention and the principles it embodies, and points out that the preamble to the Convention states: "Considering that the developments which have taken place in international law since 1957, as well as the developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards, and Recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live". The Committee hopes that the Government will bear these comments in mind in consolidating the legislation on indigenous matters and that it will keep the Committee informed in this regard.

4. Articles 2 and 33. Coordinated and systematic action with the participation of the indigenous peoples. The Committee notes that the FUNAI and the Federal Office of the Public Prosecutor are responsible for protecting the rights of indigenous peoples and that, together with the General Coordination of the Defence of Indigenous Rights (CGDDI), they have responsibility for receiving and initiating procedures for complaints of abuse of indigenous rights. The Committee would draw the Government’s attention to the fact that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of the indigenous peoples to protect the latter’s rights, and establish that programmes affecting indigenous peoples shall include: (a) the planning, coordination, execution and evaluation, in cooperation with the peoples concerned, of the measures provided for in this Convention; and (b) the proposing of legislative and other measures to the competent authorities and supervision of the application of the measures taken, in cooperation with the peoples concerned. In other words, the Convention establishes the participation of indigenous peoples, from planning through evaluation, in measures that affect them. The Committee would be grateful if the Government would provide information on the participation of indigenous peoples in the FUNAI and on the latter’s role where legislation and programmes affecting indigenous peoples are adopted, indicating in particular the role played by the FUNAI in legislation adopted during the period covered by the next report. To sum up, the Committee would be grateful if the Government would provide information on the manner in which it ensures, with the participation of the indigenous peoples concerned, the coordination of existing programmes at all stages, from planning through evaluation, in accordance with Articles 2, paragraph 1, and 33, paragraph 2(a) and (b), of the Convention.

5. Article 4. Special measures. The Committee notes that an "interministerial technical cooperation group" has been set up, in which the FUNAI takes part, to set priorities and determine emergency actions for indigenous peoples. Please provide information on the priorities established and the actions carried out. Please indicate whether the priorities include the health situation of indigenous children, particularly in areas with high mortality and malnutrition rates, and the coordination of policies with the Ministry of Health.

6. Article 5. The Committee notes the provisional measure MP No. 2186-16 of 23 August 2001, which, in Chapter III, establishes the protection of traditional knowledge through the Management and Genetic Heritage Council (CGEN) with the participation of the FUNAI. Please indicate, for instance, whether any intellectual property has been registered for indigenous communities and whether the latter benefit therefrom.

7. Article 6. Consultations. The Committee notes that the Federal Constitution (article 231(3)) provides that the peoples concerned must be consulted before the Congress issues authorizations, in instances where the indigenous population is affected as in the case of use of water resources and the exploration and exploitation of mineral resources. Since this information concerns consultations regarding natural resources, the Committee will come back to the matter in examining the application of Article 15. Article 6 is more general in scope and concerns procedure. The Committee points out that under this Article, the peoples concerned must be consulted whenever consideration is being given to legislative or administrative measures which may affect them directly. Please provide information on the manner in which the legislation provides for consultation in the event of administrative and legislative measures, in accordance with Article 6(1)(a) of the Convention. Please also provide information on the manner in which such consultations are conducted, particularly in the light of the basic requirements for consultations (prior consultations, conducted through representative institutions of the indigenous peoples concerned and by means of appropriate procedures).

8. Article 7. Participation. The Committee notes that, according to the report, indigenous peoples have the greatest interest in the protection of their territories and that, consequently, members of such communities are included in any supervisory and protective measures conducted on indigenous land. It notes the examples of participation cited, including that of the Kapayó and Pará Indians. The Committee would be grateful if the Government would send detailed information on how it provides for participation by indigenous peoples in the administration of state-owned forest areas. Please also indicate whether legislation provides for such participation in all cases, indicating any exceptions, and whether studies have been carried out in cooperation with the peoples concerned to assess the social, spiritual, cultural and environmental impact on these peoples of development activities planned on land they occupy or otherwise use.

9. Articles 8 to 12. Administration of justice. The Committee notes that the Federal Constitution provides, in article 232, that indigenous peoples and their communities and organizations may legitimately take part in legal proceedings to protect their rights and interests, with the Public Prosecutor intervening at all stages of the proceedings. It notes, however, that sections 7-11 of the Indian Statute, "Assistance or Guardianship", establishes legal guardianship of indigenous peoples and their members. It also notes that according to section 9, any indigenous person may apply to the competent judge for release from guardianship and assume full civil capacity provided the following requirements are met: minimum age of 21 years; knowledge of the Portuguese language; ability to carry out a useful activity in the national community; reasonable understanding of the national community’s customs and habits.

10. The Committee further notes that in section 56, the Indian Statute provides that where an indigenous person is convicted of a criminal offence, the penalty shall be mitigated and that, in executing it, the judge shall take into account the degree of the person’s integration in a forest community (integración silvícola). Section 57 provides that, in the case of tribal groups and in accordance with the latter’s own institutions, the imposition of penal or disciplinary sanctions on their members shall be allowed provided the sanctions are not cruel or degrading, the death penalty being prohibited in all cases.

11. The Committee points out that legal guardianship by the Union of Indigenous Peoples, while affording these peoples some protection, is in direct conflict with the Convention and with article 231 of the Federal Constitution as referred to above in view of the protectionist nature of guardianship and the emphasis placed on autonomy in the Convention. For example, it conflicts with Article 8, paragraph 3, according to which the application of paragraphs 1 and 2 of this Article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties. It notes, however, that indigenous people may relinquish guardianship voluntarily. Please indicate the percentage of indigenous people under guardianship and the consequences of release from guardianship in terms of the rights laid down in the Convention. The Committee also repeats its previous observation that it hopes that the Government will take into account its comments when consolidating the legislation on indigenous issues and that it will keep the Committee informed in this respect.

12. The Committee also points out that there is an obvious contradiction between section 9 of the Indian Statute and Article 12 of the Convention which provides that the peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights and that measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means. Nevertheless, under section 9 of the Indian Statute, the Portuguese language is a requirement for release from guardianship, whereas Article 12 of the Convention establishes an individual and collective right for indigenous peoples to take legal action in their own language. In the Committee’s view, to require an indigenous person to speak Portuguese in order to be released from guardianship and take legal action appears inconsistent with the Convention. It would be more consistent with the Convention if, as well as being able to take legal action in her or his own language, indigenous people were afforded assistance and protection by the FUNAI or the Ministry of the Interior in a manner other than that provided by guardianship. The Committee would be grateful if the Government would state whether studies have been conducted on this matter and would comment on this paragraph indicating any possible alternatives to guardianship.

13. Land. The Committee notes that the criteria for identifying and establishing borders for indigenous lands are set forth in Decree No. 1775/96 and Ordinance No. 14/MJ of 1996 and that the work of establishing borders is carried out in accordance with the Handbook of Technical Standards for Demarcating Indigenous Lands. It notes that, at present, more than 70 per cent of indigenous lands recognized in Brazil have been demarcated and approved. It also notes that of the lands demarcated or in the process of approval, 90 per cent are located in the "Legal Amazon". Please indicate how Article 14, paragraph 3, of the Convention is applied with regard to procedures for resolving land claims by the peoples concerned. The Committee notes that the problem is not one of demarcation and approval, but of how to respect in practice the integrity of demarcated and approved indigenous lands: as noted in the Committee’s comments under Convention No. 107, there are problems linked to the presence of private owners, timber and agricultural and stock-raising enterprises setting up on indigenous lands. The Committee would be grateful if the Government would indicate, out of the total area of land demarcated and approved, the area of the land which is free of dispute and in which indigenous peoples can live in peace, and the percentage of land in which there is dispute and in which, despite regularization, it is still not possible to ensure that the peoples concerned are able peacefully to exercise their rights over the land. Please also indicate the strategy for resolving these problems, as stipulated in the Convention.

14. Raposa del Sol. The Committee notes the information supplied by the Government in response to its comments on Convention No. 107, indicating the decision of the Federal Supreme Court for "discontinuous" approval of the indigenous land Raposa del Sol in Roraima, and that the FUNAI and the Federal Office of the Public Prosecutor are exploring ways of preventing these lands from being divided into islands. Please continue to provide information on the development of this situation and in particular about the conflicts that have arisen between agricultural producers and indigenous people. In the same comments, the Committee noted persistent reports of several serious problems caused by the construction of a military base in Roraima, opposed by the Yanomami indigenous tribe, a particularly vulnerable population which has been seriously affected. The Committee requests the Government to provide information on further developments in this matter.

15. Article 15. Consultation and natural resources. With regard to forestry exploitation, the Committee notes that provisional measure No. 2,166-67 of 2001 provides for amendment of the Forestry Code of Brazil to allow exploration for forestry resources in indigenous lands and that the forestry management plan is to be examined by the FUNAI and by Ibama. With regard to mineral exploration and exploitation, the Committee notes the information in the report concerning the monopoly of the Union, and notes that exploration for these resources is subject to authorization from Congress and consultation of the communities affected. According to the report, the matter is highly complex because major public and private interests are involved. The Committee could be grateful if the Government would state how the legislation makes provision for the consultations established in Article 15, the purpose of which is to ascertain whether and to what degree the interests of the peoples concerned would be prejudiced, before undertaking or permitting any programmes for exploration, and how it ensures that the peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damage. Please provide information on the participation by these peoples in the benefits and compensation provided pursuant to this Article of the Convention and article 231 of the Constitution.

16. Article 16. Relocation. The Committee notes that article 231(5) of the Constitution prohibits the relocation of indigenous peoples except in the event of a disaster or epidemic endangering the population or the interests of sovereignty, and guarantees the right to return. Please indicate any relocations during the period covered by the next report, stating their causes and describing the circumstances in which they were carried out.

17. Article 18. Intrusion upon indigenous lands. The Committee notes the various actions undertaken by the FUNAI together with the indigenous people against intrusion by independent gold seekers (garimpeiros), and notes that the actions are ongoing in Roraima. This is a matter that the Committee has been examining for several years under Convention No. 107. Please provide information on the unlawful occupation of land by garimpeiros and by estate owners, who sometimes acquire indigenous land unlawfully. Please indicate the measures for preventing lands in the process of approval from being appropriated by private persons or used without consultation of the indigenous peoples.

18. The Committee notes the documents attached to the Government’s report containing information on assaults and killings of indigenous persons over issues of land, for which complaints were filed with the FUNAI, and on indigenous lands, maps and the relationship between crime and land disputes. It notes with concern the number of killings of indigenous people, including representatives of the indigenous communities of Rondonia and members of the Pataxó Hã-Hã-Hãe. It also notes the killings of Truká indigenous people in the northwest of Brazil in 2000, including the community chief and his son. According to the FUNAI, these crimes are not isolated incidents. The Committee requests the Government to provide information on the measures taken to prevent these crimes related to land disputes and to identify and try the perpetrators and impose dissuasive sanctions.

19. Article 19. National Agrarian Programmes. The Committee notes that in 2004 representatives of the Federal Government and indigenous organizations, with the participation of financial agents, established a working group to facilitate access to agricultural credit for indigenous peoples. What makes this a complex matter is that the indigenous peoples - although land regularization has been completed - have usufruct, not ownership, of the land. The Committee would be grateful if the Government would provide information on the follow-up of this issue and on developments regarding the Programme of Technical Assistance and Rural Extension.

20. Article 20. Recruitment and conditions of employment. The Committee would be grateful if the Government would indicate the main problems encountered in applying this Article to indigenous workers, and the role played by the FUNAI, with regard to indigenous people not under guardianship. Please provide information on the activities undertaken by the labour inspectorate in supervising the application of this Article of the Convention to indigenous workers.

21. In its previous observation on Convention No. 107, the Committee noted with interest the Community Charter on Social Rights in Indigenous Labour Relations, concluded on 2 May 2002 by indigenous representatives, the government of Mato Grosso do Sul, the FUNAI, other state institutions, the Order of Attorneys of Brazil, the Regional Indian Missionary Council and enterprises in the State of Mato Grosso. It noted that, while allowing individual contracts, the Charter establishes that recruitment of indigenous persons shall take place by means of team contracts, to be recorded in the Registers of Labour and Social Insurance, and determines the applicable laws, establishes a fine of 100 UFIRS (payable to the indigenous communities) per worker and per infringement in the event of failure to comply with any clause of the Charter and contains other provisions on medical examinations, the number of workers, periods of leave and the promotion of this type of contract. The Committee expressed the hope that team contracts would make an effective contribution to combating the unlawful employment of indigenous people in the State of Mato Grosso. The Committee requests the Government to continue to provide information on the use made of such contracts in practice, indicating whether a signification number of enterprises and indigenous workers have signed team contracts, and pointing out any problems that may have been encountered, any infringements reported and sanctions imposed, together with any other information which may help to provide a better appreciation of the practical results of team contracts. The Committee notes the information supplied by the Government on the activities of the CGDDI with regard to the work situation of indigenous people in Mato Grosso do Sul. It notes that there are approximately 400 labour disputes involving indigenous persons and that agreements were reached for compensation or retroactive entry in the register. The Committee requests the Government to continue to provide information on this matter and to state whether any indigenous workers are being subjected to forced labour practices in Mato Grosso and Mato Grosso do Sul or in other regions.

22. Articles 21 to 23. Vocational training, handicrafts and rural industries. The Committee notes the various programmes referred to in the report, and the activities of the Micro- and Medium-Sized Enterprises Support Service (SEBRAE) and the National Industrial Apprenticeship Service (SENAI), inter alia. The Committee also notes that UNESCO has set up a cooperation contract with the FUNAI to develop and strengthen indigenous cultures in Brazil. The Committee would be grateful if the Government would continue to provide information on the measures taken to apply these Articles.

23. Social security and health. The Committee notes that since 1999 the Ministry of Health, particularly the National Health Foundation (FUNASA), has been responsible for indigenous health. This means that the structure whereby the FUNAI provided support for indigenous health through the Casas do Indio, has been transferred to FUNASA, removing from the FUNAI an essential element for providing indigenous healthcare. One serious problem is that there are no shared data between FUNASA and the FUNAI allowing the provision of comprehensive care to these peoples. According to FUNASA data, infant malnutrition is not confined to indigenous villages in Mato Grosso do Sul and is to be found in other states. The child mortality rate is higher than that of black children or white children. The highest child mortality rates are to be found in the communities of Alto Rio Juruá (AC), Xavante (MT) and Rio Tapajós (PA). The Committee notes further that in Maranhão, in March 2005 alone, 14 Guajajara children died of malnutrition. The Committee observes that the problem is multifaceted and involves among other factors the high mortality rate among indigenous children in several states and death from malnutrition among indigenous children. The Committee is bound to note that FUNASA is an organ of the Ministry of Health, apparently without specialization on indigenous questions which would allow it to deal with these serious problems in a comprehensive manner. The Committee accordingly asks the Government to indicate whether the special emergency measures it referred to previously include mechanisms for coordination between the policies of the FUNAI and the Ministry of Health, and urges the Government to take measures rapidly to reactivate the health system for indigenous peoples, if it has not already done so. It would be grateful if the Government would provide information on this matter, and particularly on measures taken or planned by both institutions - and the coordination between them - to deal with the above problems of death from malnutrition and infant deaths which, although public health issues, are also related, inter alia, to the maintenance of lands traditionally occupied by indigenous peoples which are essential to their survival and contact with the dominant society.

24. Education and the media. The Committee notes that according to the UNDP report "Democracy in Latin America: Towards a citizen’s democracy", published in 2004, significant progress has been made in a number of countries in protecting indigenous rights and, although several constitutions recognize the multinational and pluriethnic nature of their societies, the legislation is wanting and their languages continue to go unrecognized as official languages. Table 23 of the report indicates that, in Brazil, no indigenous language has been given recognition as an official language of the State. The Committee would be grateful if the Committee would indicate the manner in which the development and practice of indigenous languages is promoted and asks it to continue to provide information on the application of the Articles included in this section.

25. Article 32. Contacts and cooperation across borders. The Committee notes the Project on the Protection of Indigenous Lands and Peoples of the Legal Amazon (PPTAL), which is part of the pilot programme for the protection of tropical rainforest under the responsibility of the presidency of the FUNAI. The Committee would be grateful if the Government would indicate whether other governments of adjacent countries and indigenous peoples participate across borders in the above project or other joint projects. The Committee notes that according to the Government, the possibility of joint operations between Brazil and the Bolivarian Republic Venezuela is being studied with a view to combating unlawful mining on indigenous lands. The Committee would be grateful if the Government would provide information on developments in the above discussions and agreements with Venezuela for affording the protection laid down in the Convention to peoples separated by international borders.