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.

Sacred Spaces: Litigation and Access to Justice

The Wetlands in Lawrence, Kansas, USA are not the only indigenous sacred spaces subject to litigation. In Australia, there is on-going litigation to prevent mining which is said to put many sacred sites at risk.

The article Aboriginal Group Challenges Mining Project published here contains comments from Professor Jon Altman who points out the disparity in power and resources that indigenous peoples face when it comes to litigation with large corporate interests.

This points out a very real dilemma for indigenous peoples. Access to courts can be expensive, and as the Wetlands litigation points out might conceivably go on for years. It is well and good to have laws on the books—even the “soft law” of the United Nations Declaration on the Rights of Indigenous Peoples. But those laws—as discussed in my earlier posts about the Indian Child Welfare Act-- are rendered meaningless in reality where there is no implementation or compliance with them, or when the protections that they offer are difficult to reach. But the concerns about indigenous rights is more than a point about barriers to reaching the laws or faulty implementation of laws on the books. As a report from Amnesty International (at this link) points out “Indigenous human rights defenders who speak out face intimidation and violence, often with the collaboration of the state.”

Any discussion or contemplation of indigenous rights and the exercise and access to those rights must keep in mind that the claiming and utilisation of rights is far more than an academic exercise. It is a real problem that confronts people in their every day lives. At times it seems that the academic study of indigenous rights runs the risk of being a “fad”-- the topic de jure with much ivory tower theorising—which will fade when the next major international instrument is passed. Any discussion of indigenous rights must keep in mind that there is a very human element to the discussion and that should not be forgotten.

There are many studies done that focus on the practical and real problems indigenous peoples face in accessing and exercising rights. Rachel Sieder and Maria Teresa Sierra have a paper on “Indigenous Women’s Access to Justice in Latin America”, which can be accessed at this link. The International Labour Organisation has a publication from 2009, “Indigenous and Tribal Peoples’ Rights In Practice”, which focuses on ILO Convention 169, and can be accessed at this link.

Written by Sarah Sargent.

Sacred Spaces: Under Threat in Lawrence, Kansas

In a few short weeks, a hearing will be held in the United States 10th Circuit Court of Appeals over the fate of sacred space in Lawrence, Kansas, USA. The Wetlands that are the subject of the law suit have a unique existence that catalogs the past destructive assimilationist policies of the US government towards indigenous peoples and their ability to not only survive but transcend those. It is shocking to realise that the Wetlands are still under threat.

Haskell Indian Nations University in Lawrence, Kansas, USA began its existence in the late 1800’s as an Indian boarding school. These schools were set up as part of the government policy of the assimilation of the indigenous peoples in the United States. The official policy and acts of assimilation supposedly came to an end with the enactment of the federal Indian Child Welfare Act. My earlier posting on this blog points to resources that indicate that the implementation of this Act remains problematic, and assimilationist attitudes towards indigenous peoples were not erased by the simple enactment of a federal law.

Haskell Indian Nations University has been transformed into a unique higher education institution, where “traditional knowledge and teaching methods are integrated into higher education curriculum” (Wetlands Preservation Organization, Student Life, Haskell Indian Nations University).

On the southern edge of Lawrence, there is a bridge that leads to nowhere. It was part of a planned road development plan that would have built new high speed roads across the southern edge of a town that was bursting at the seams from the growth of McMansion neighbourhoods and suburban sprawl. The planned road would have cut through wetlands that have become a sacred space to the indigenous community at Haskell Indian Nations University and beyond. Years of litigation has ensued. The case is currently at the 10th Circuit Court of Appeals, with oral arguments scheduled for 19 January 2012. ( see here for more information).

The wetlands have become a sacred space, and the way in which this happened is poignantly described in a way that reflects the history of destruction and assimilation that indigenous peoples have survived: “Since the children were not allowed to visit their families, and since families who came to visit weren’t allowed to stay in town due to prejudices at the time, the wetlands became a meeting place for them. Children would escape to the wetlands to hear news from home and to pass on messages. The wetlands were also where children escaped to get away from the harsh boarding school…The wetlands became a sort of sanctuary for those children who sought to escape forced assimilation” ( Jessica Lackey, “Summer Intern Shares Environmental Concerns: Save the Wetlands”). The wetlands are in active use today as a sacred space for indigenous peoples.

Sacred spaces should be respected, not under threat, and it is alarming that this particular sacred space continues to be under threat. Attacks on the cultural heritage of indigenous peoples should have been consigned to the shadowy pages of history some time ago, but instead they continue in the present day--with no sign of abating.

This video here captures the special beauty of the Wetlands and provides information on the history of the Wetlands litigation.

Written by Sarah Sargent.