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

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

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.