Last month, a Judge at the Brazilian Federal Court of the State of Mato Grosso declared a license for the construction of a hydroelectric power plant to be null and void, because of the lack of consultation with affected indigenous populations. The Teles Pires Hydroelectric Plant, on the river with the same name (which makes the border between the Sates of Mato Grosso and Pará) is meant to produce 1820 MW (by comparison, the Three Gorges Dam in China produces 21000 MW), and its reservoir would cover an area of about 152 km2.
|Teles Pires river|
According to Judge Célia Regina Ody Bernardes, the sacred meanings they attribute to the area, and the uses of the area for indigenous livelihood, should have been taken into account by the governmental authorities who green-lighted the project, especially in light of provisions of ILO Convention No. 169 which require indigenous consultation, and provisions of the Brazilian Federal Constitution.
The judgment highlighted that the Brazilian Environmental Agency (IBAMA, for its name in Portuguese) authorized the construction of the dam, but did not follow up with the Brazilian Indigenous Foundation (FUNAI, for its name in Portuguese), to see whether any of the affected indigenous populations had anything to say on the matter. This case is a classic example of the panoply of regulatory agencies that affect any one indigenous community, and how anyone trying to understand the workings of indigenous law (or any area of law, for that matter) must be able to navigate an incredible maze of regulation in a series of cognate areas. Background rules are just as important as foreground rules, and, by failing to observe them, it is easy for important things to fall through the cracks. This judgment, incidentally, is still subject to appeal. So, let’s see how this story unravels...
And then there’s another thing I’m not quite sure what to make out of: the focus on the religious / sacred uses of the area that would be flooded. While I understand that this focus simply derives out of factual matters (that is, that the affected communities indeed have a religious attachment to that site, and this connection should be preserved), I also worry about how this can be spun by those who still want to push for the project (I am guessing there are plenty of unhappy shareholders of the electric company out there), and about the long-term impacts of this narrative. While it seems for the most part laudable that cultural considerations are paramount in this case, at the same time non-cultural factors are nowhere to be found, which in a way orientalises the affected communities, and presupposes that it is only because of their spiritual connection that the land must go untouched. That necessarily leads to the conclusion that, should this connection cease to exist, the dam could go ahead. So, in a certain way, the idea of translating indigenous participation claims into cultural ones limits the debate, and obscures what should really be at stake: indigenous sovereignty over the area. Adopting a somewhat radical standpoint, I do not think indigenous sovereignty over the area should be conditioned to a religious connection, it should be granted in a full, no-strings-attached manner. But, perhaps that’s just naiveté, and the compromise found by this judgment is the best one can hope for (at least for now). I guess the call still stands, though: however important this victory is, one should know that it is not enough, and that it is only one step towards full sovereign recognition to indigenous peoples.
Written by Lucas Lixinski.