UPDATED, November 10, 2011: A Brazilian court on November 9, ruled that indigenous communities do not have the right to free, prior and informed consultation in regards to the Belo Monte Dam because the infrastructure and reservoirs will not be located on tribal lands.

The announcement about the dam that will flood some 40,000 hectares of rainforest, displace more than 10,000 people and block 80 percent of the Xingu river was immediately denounced by those who oppose the dam.

“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, referring to Federal Judge Maria do Carmo Cardoso, who cast the deciding vote in today’s decision according to an article at mongabay.com. “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.”

Hundreds of indigenous people, fisherfolk and other residents of villages along Brazil’s Xingú River staged a day-long protest at the site of the huge Belo Monte dam on October 27, halting construction work for about 15 hours.

Some 600 people were demonstrating against the hydroelectric project, which they say is already disrupting their lives, and which they fear will cause irreversible social and environmental harm.

Destruction of the forest to build three camps housing more than 10,000 workers “is highly visible,” said Sheyla Juruna, a Juruna leader from the village of Boa Vista, who was in Washington, D.C., for a meeting with Brazilian government representatives and members of the Inter-American Commission on Human Rights.

That meeting was scheduled for October 26, but the Brazilian government boycotted the session, a move Juruna said showed “a lack of responsibility.”

“The government does not want to dialogue with the communities affected by the Belo Monte dam. We don’t accept being treated this way,” Juruna said at a sidewalk press conference outside the Organization of American States (OAS) headquarters, where the meeting was to be held. “Brazil is violating its own laws, international law, and indigenous rights.”

The Brazilian government has been at odds with the OAS since April, when the international body criticized the 11,000-megawatt dam project. On October 17, a Brazilian judge ruled the licensing of the dam unconstitutional because of its impact on indigenous communities, which she said were not properly consulted about the plans.

But Juruna and Jacob Kopas, a lawyer with the Inter-American Association for Environmental Defense (AIDA), a non-profit environmental and human rights organization representing affected communities, said construction is continuing as the Brazilian suit works its way through the courts.

Activists and celebrities like Avatar director James Cameron have taken up the Belo Monte cause, making it one of the highest-profile indigenous rights cases in the Amazon basin.

But it is far from the only conflict between national governments’ development plans and indigenous communities’ rights to their lands.

Oil exploration, mining and dams also threaten indigenous territories in Ecuador, according to Humberto Cholango, president of the Confederation of Indigenous Nationalities of Ecuador (CONAIE), that country’s largest indigenous umbrella organizations.

Cholango was also in Washington for a hearing on a case involving the Armadillo oil lease in the southern part of the country, which indigenous leaders say will affect the Tagaeri and Taromenane people, who live in isolation, shunning contact with the outside world. There is evidence that members of those tribes use land that is included in the lease.

Similar warnings about the impact of oil drilling on isolated tribes have been sounded across the border in neighboring Peru.

Ecuador is putting a dozen oil leases out for bid in October, mainly in the central and southern Amazon basin, on lands inhabited by seven Indigenous Peoples, Cholango said. The government has also approved major mining concessions totaling some 15 million acres. Two of the largest projects are in Shuar territory in the mountainous area known as the Cordillera del Condor, Cholango said.

Besides the impact on the indigenous communities’ environment and lifestyle, Cholango expressed concern about crackdowns on and harassment of opponents of such projects, which he said reflect a government tendency to “criminalize protest.”

Cholango said about 200 grassroots and indigenous leaders, including the former president and current vice president of CONAIE, face legal charges of “sabotage and terrorism” stemming from their protests against oil and mining projects. “Many are in hiding,” he said.

Although Ecuador, like most of its neighbors in South America, has signed International Labor Organization Convention 169 on the rights of tribal and Indigenous Peoples, which calls for such groups to be consulted about any plans or projects that would affect their lands or lifestyles, Cholango and other activists say governments sidestep the requirement.

Even countries like Ecuador and Bolivia, which specifically included indigenous rights in their recently approved constitutions, have been slow to put those provisions into practice.

“There is a systematic tendency to ignore the right to consultation,” said Mario Melo, program adviser to the Pachamama Foundation, which is supporting CONAIE in the Armadillo case.

In a region that has historically been rich in natural resources, but with large portions of the population living in poverty, countries like Ecuador, Bolivia, Peru and Brazil have been cashing in on oil, gas and minerals to increase their revenues.

Leaders such as former Brazilian President Luiz Inácio Lula da Silva, Bolivia’s Aymara President Evo Morales, Ecuador’s Rafael Correa and Peru’s new President Ollanta Humala were elected on platforms that pledged more equitable distribution of national wealth to their countries’ disenfranchised groups.

But Cholango said the Ecuadorian government’s interest in oil and mining projects leads to foot-dragging on consultations of indigenous groups that will be affected.

“The government is supposed to consult, but because it is an interested party, it doesn’t want to consult,” said Cholango, who called for an independent form of consultation, possibly organized by the communities themselves.

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Brazil court approves controversial dam construction

Dan Taglioli, JURIST (Legal News & Research)

10 November 2011

A Brazilian federal court ruled Wednesday that work on a dam being constructed on the Xingu River in the Amazon jungle may continue. The Federal Court of the First Region had ordered that dam construction cease until indigenous groups are consulted and given access to environmental impact reports, but the court reversed that decision in a 2-1 vote, upholding the decree issued by Para state authorizing the dam’s construction. Maria do Carmo Cardoso, a court judge, held that the indigenous communities are entitled to be consulted, but the law does not say that this must be done before approval of the work. When completed the $11 billion, 11,000-megawatt dam will be the world’s third largest behind China’s Three Gorges dam and the Itaipu, which straddles the border of Brazil and Paraguay. The project is expected to employ 20,000 people directly in construction, flood an area of 500 square kilometers (200 square miles) along the Xingu river and displace 16,000 persons. Environmentalists and indigenous groups say the dam will devastate wildlife and the livelihoods of as many as 40,000 people who live in the area to be flooded. The government says the dam will provide clean, renewable energy and is essential to fuel the South American country’s growing economy. The federal prosecutors’ office in Para plans to appeal the ruling to the Supreme Court.

Last month JURIST Guest Columnist Pedro Sousa of Carneiro de Almeida & Pires Advogados wrote that the Belo Monte dam violates the constitutional mandate to protect indigenous peoples and the environment. In September the Malaysian Federal Court unanimously ruled against indigenous people challenging a similar hydroelectric dam. The indigenous people argued that they received inadequate compensation for the Sarawak government’s seizure of their land to build the dam. The judges stated that if the plaintiffs were not satisfied with the amount of compensation then that is a matter for arbitration, not for the court. In December 2010 the US government pledged to support the UN Declaration on the Rights of Indigenous Peoples, a non-binding UN treaty expressing support for the rights of indigenous peoples. The US was the last member to lend its support to the treaty. In August of that year UN Secretary General Ban Ki-moon called on governments to improve the living conditions of indigenous peoples and support the UN Declaration on the Rights of Indigenous Peoples.