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.

Brazilian High Court on Indigeneity and the Role of the State in Mediating Indigenous Relations to Settler Society

A few days ago, the Brazilian High Court (Superior Tribunal de Justiça or STJ) issued a judgment determining that indigenous persons must always be represented by the National Indigenous Peoples Foundation (Fundação Nacional do Índio or FUNAI) in court proceedings.

In this case, an indigenous person of the kokama people, based on the border between Brazil and Colombia, was arrested in Manaus (capital of the Amazonas state in Brazil, the largest city in the Amazon rainforest area) in possession of cocaine. FUNAI applied to the local court for the status of third party intervening on behalf of the indigenous person, but its request was denied, on the grounds that the indigenous person, by possessing a wide array of civilian and military personal documents (such as a taxpayer’s code, military draft registration, and voter’s card), showed that he was sufficiently integrated in society, therefore not requiring representation by FUNAI.

The Brazilian High Court disagreed, saying that, since the 1988 Constitution, rules on civilian capacity of an indigenous person are irrelevant, and that it is the duty of the State to represent indigenous peoples and assist indigenous individuals before the judicial system. The judge who wrote the Court’s opinion said that there is a presumption of indigeneity, and that the first instance judge erred by not taking into account the fact that the person identified himself primarily as indigenous, despite all his documents showing he was integrated in society.

The first instance court in this case seems to work from an indigenous / non-indigenous dichotomy that suggests that a person will only be considered indigenous if it is not at all in contact with settler society, or takes any part in the settler polity. Or at least this seems to be the understanding of the first instance court, by using an outrageously antiquated rule on civilian capacity in Brazilian law, which deems indigenous peoples to have the same legal capacity as a five-year old. In all fairness to the Brazilian legislator, the 2002 Civil Code attempted to correct this: while the 1916 Civil Code plainly said that indigenous persons had no capacity whatsoever, the 2002 Code simply determines that indigenous capacity will be determined by special legislation. But then the special legislation in question is the “Indian Rights Act”, an incredibly assimilationist piece of legislation dating back to 1973, which, when regulating capacity, simply repeats the rules of the 1916 Civil Code. A new statute on the rights of indigenous peoples is currently under discussion by the Brazilian Congress, but the 1973 act is still good law until then. Unless, of course, the law was to be applied in light of the 1988 Constitution, which grants some form of recognition to indigenous peoples, and tries to move away from the assimilationist tone of the 1973 statute. But then the implementation of the 1988 Constitution still happens through the 1973 act, which makes the prevailing tone still one that is rather assimilationist, or at least paternalistic.
And then comes the High Court’s decision, which agrees with FUNAI in that they should be representing the indigenous person, because no degree of “integration into the national communion” (language of the 1973 act) can deprive a person of their indigenous identity.

So far, so good, except that the tendency is to translate a duty of assistance that should come only so as to correct informational, cultural and power imbalances between indigenous peoples and settler society into a paternalistic take of indigenous people as those poor little individuals who could not possibly take full responsibility for their actions. While attempting to combat the exclusion of indigenous individuals, this attitude disenfranchises them, victimizes indigenous persons and strips them of the agency the law should be guaranteeing them.

While the High Court’s decision is a welcome step in securing the achievements of indigenous peoples in Brazil, it also shows there is still a long way to go, as far as the law is concerned, in order to put indigenous peoples in their rightful place as full participants of society, as opposed to marginalized beings who need coddling by a State operating under still alarmingly assimilationist rules and impulses.

Source STJ.

Some of the Brazilian Legislation can be found here.

Written by Lucas Lixinski.