Stop that Damn Dam! Indigenous Participation, Culture and Development in Central Brazil

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.

Source FUNAI.

Written by Lucas Lixinski.

Just Say No: Obama rejects the permit for the Tar Sands Pipeline and hearing on the Haskell Wetlands

On 19 January, President Obama of the United States rejected a permit that was needed for the construction of the proposed Keystone XL pipeline, also known as the tar sands pipeline. Considerable environmental concerns as well as health concerns had been raised in opposition to the creation of the pipeline, and were the subject of some earlier blog postings here. There have been a large number of indigenous groups arguing against the construction of the pipeline, including the Mother Earth Accord (at this link, and calls to support the Mother Earth Accord by such groups as the Indigenous Alliance without Borders (information about their support of the Mother Earth Accord at this link)).

The mainstream press is filled with arguments for and against the Obama decision. Some argue that the Obama decision has destroyed the possibility of jobs and cheaply available energy with this decision; others argue that the claims of jobs and cheaply available energy were mere chimera—without basis in fact.

An article is carried on the website of Indian Country today (here) that has the reactions of politicians and indigenous leaders about the Obama decision. At this link

One of the concerns raised by the Mother Earth Accord was whether appropriate “free, prior and informed consent” had been obtained from those indigenous peoples whose land and lives would be impacted by the construction of the pipeline. The standard of free, prior and informed consent is found in the UN Declaration on the Rights of Indigenous Peoples, at Article 19 and Article 32.

There is another important event today, and that is the oral arguments scheduled in the United States Tenth Court of Appeal on the Haskell Wetlands in Lawrence, Kansas, USA, which have been the subject of prior posts on this blog. (here and here)

The UNDRIP principles are just as important to the Wetlands as they are to the lands under threat by the tar sands pipeline construction,

And Article 27 seems especially applicable to the Wetlands situation:

“ States shall establish and implement, in conjunction with indigenous
peoples concerned, a fair, independent, impartial, open and
transparent process, giving due recognition to indigenous peoples’
laws, traditions, customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands,
territories and resources, including those which were traditionally
owned or otherwise occupied or used. Indigenous peoples shall have
the right to participate in this process.”

The unique history of the Wetlands as adjacent to the Haskell boarding school, now a four year university, certainly fit within the ambit of Article 27—and the occupation and use of these Wetlands must be respected under the spirit and the letter of the UNDRIP.

Some good news today with the Obama rejection of the pipeline, at least for now, and hopes that similar protections and respect can be granted by the Tenth Circuit District Court to the sacred space of the Wetlands.

Written by Sarah Sargent.