Court Rules Against Indigenous Rights in Belo Monte Hearing

International Rivers and Amazon Watch
Wednesday, November 9, 2011

Decision violates Brazil’s Constitution and international human rights convention;
appeal to Supreme Court expected

Brasilia, Brazil –A district federal court in Brazil ruled today that indigenous communities threatened by the controversial Belo Monte Dam complex—under initial construction since July on the Xingu River in the Amazon—do not have the right to free, prior and informed consultations regarding the project despite guarantees in the Brazilian Constitution and international human rights agreements to which Brazil is a signatory.

In a tie-breaking vote that clashed with a previous decision by the court in the same lawsuit, Federal Judge Maria do Carmo Cardoso claimed that there was no need for prior consultations with indigenous communities affected by Belo Monte since dam infrastructure and reservoirs would not be physically located on indigenous lands. Her statement was based on arguments presented by dam proponents within the Brazilian government and conservative Judge Fagundes de Deus, a former legal counsel with the parastatal energy company Eletronorte.

“This decision surprised us because the result of this judgment is contrary to what the court had previously decided about the same lawsuit, with regard to a restraining order back in 2006,” said Federal Prosecutor Felicio Pontes, one of the authors of the lawsuit. “Now it’s up to the Supreme Court to decide whether the Federal Constitution is valid or not in Brazil.”

In October, Federal Judge and rapporteur Selene Maria de Almeida cast an initial vote on the merits of the lawsuit filed by the Federal Public Prosecutor’s office, in which she agreed that a 2005 legislative decree that authorized construction of Belo Monte was illegal, since prior consultations with indigenous communities—guaranteed under Article 231 of the Brazilian Constitution—were not carried out by Congress. Almeida’s decision also cited the need for Brazil to comply with its commitments to ILO Convention 169 and other international agreements that require free, prior and informed consent among indigenous peoples regarding projects that significantly affect their territories and livelihoods.

Citing overwhelming evidence from official sources and independent researchers, Almeida concluded that the diversion of 80% of the Xingu River into artificial channels and reservoirs would have devastating impacts downriver for the Arara, Juruna and Xikrin Kayapó indigenous peoples, given inevitable losses to the tribes' ability to catch fish, raise crops, and navigate freely. As such, prior consultations by the Brazilian Congress with indigenous communities were required before the dam project could be legally authorized.

In sharp contrast to Almeida’s decision, Judge Cardoso justified her dissenting vote by arguing that the project’s impact studies, and meeting conditions for an environmental license, would fully mitigate any possible harm on indigenous communities. She downplayed the importance of prior consultations with indigenous peoples threatened by infrastructure projects such as Belo Monte, claiming they are “informative” and irrelevant for congressional decisions on whether to authorize mining and hydroelectric projects on indigenous lands. Cardoso further stated that while unnecessary in the case of Belo Monte, indigenous peoples should consider themselves “privileged” to be consulted about large projects that affect their livelihoods. In her statement today, no mention was made of international agreements on indigenous rights, such as ILO Convention 169.

“To suggest that consultations with indigenous peoples can take place after the authorization of a project like Belo Monte is disrespectful to the point of absurdity,” said Ubiratan Cazetta, head of the Federal Public Prosecutor’s office in the state of Pará, where the Belo Monte Dam is being built. “We firmly believe this is not the spirit of the Brazilian Constitution and international human rights agreements, such as ILO 169, that hold the status of law in our country. Consultations are not a privilege; they are a question of survival for indigenous peoples that is assured by the Constitution and that cannot be abolished by the judiciary.”

“Today’s decision by Judge Cardoso proves that there is no independent judicial system in our country,” said Sheyla Juruna, a leader of the Juruna indigenous community located near the Belo Monte Dam site. “With political pressure and money, the government gets anything it wants. We have no more illusions about the government and judiciary’s respect for the Brazilian Constitution when our rights are at stake. Judge Cardoso can be sure that we will never forget the harm she caused us today. This vote will weigh against her forever.”

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