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.”
For further information:
www.internationalrivers.org
www.amazonwatch.org
www.xinguvivo.org.br
###
|