Cases examined by the Special Rapporteur (June 2009 – July 2010)
A/HRC/15/37/Add.1, 15 September 2010
VI. Brazil: Situation of the planned transposition of the São Francisco River
54. In a letter dated 6 April 2010, the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, James Anaya, called to the attention of the Government of Brazil information received in relation to two development projects that significantly affect indigenous peoples in the country: the construction of the Belo Monte dam in the state of Pará (addressed in the previous section) and the planned transposition of the São Francisco River. This communication followed the report of the Special Rapporteur on the situation of Indigenous peoples in Brazil (A/HRC/12/24/Add.2), made public in 2009, which made reference to these two situations. The Government of Brazil responded to the 6 April letter in a communication dated 8 June 2010. Additionally, the Special Rapporteur met with the President of the Brazilian National Foundation for Indigenous Issues (FUNAI) during the session of the Permanent Forum on Indigenous Issues in April 2010, during which he received further information on the issues raised in his letter. The following provides the content of the information exchange in relation to the São Francisco River project.
Allegations received by the Special Rapporteur and transmitted to the Government on 6 April 2010
55. In his communication of 6 April 2010, the Special Rapporteur transmitted to the Government the information received concerning the São Francisco River transposition project, and requested that the Government respond to the allegations contained in the communication in light of relevant international standards.
56. According to the information and allegations received:
a) The São Francisco River Integration Project aims to address problems caused by droughts affecting the northeast semi-arid region of Brazil. The project is considered to be the largest infrastructure project of the Brazil Government’s “Accelerated Growth Program,” which will significantly alter the river and surrounding ecosystem by transposing the river’s flow.
b) The transposition of the waters of the São Francisco River will have major social and environmental impacts. The river represents 60 percent of water reserves in the northeast region of Brazil and supplies water for the states of Minas Gerais, Bahia, Pernambuco, Alagoas, Sergipe, and Goias.
c) The project includes the construction of two hydroelectric dams (Pedra Branca and Riacho Seco), nine pumping stations, 27 aqueducts, eight tunnels, and 35 water reservoirs. It will also include the construction of two large channels, each over 600 km in length, to supply 12 million people and 268 cities with water and to irrigate 300,000 hectares of land.
d) The project is intended to supply water to locations that at present have no easy access to water, referred to as “diffuse populations.” However, observers have expressed concern that only 4 percent of transposed waters will reach these “diffuse populations.” By comparison, 26 percent will be dedicated to urban and industrial use and 70 percent to irrigation projects.
e) From headwaters to its bay, in its 2,800 km extension, the river crosses an extensive area where 32 indigenous peoples—an estimated 70,000 persons—traditionally live. These groups include the: Kaxagó, Kariri-Xocó, Tingui-Botó, Akonã, Karapotó, Xocó, Katokin, Koiupanká, Karuazu, Kalankó, Pankararu, Fulni-ô, Xucuru-Kariri, Pankaiuka, Tuxá, Pipipã, Kambiwá, Kapinawá, Xukuru, Pankará, Tupan, Truká, Pankararé, Kantaruré, Atikum, Tumbalalá, Pankaru, Kiriri, Xacriabá, Kaxixó and Pataxó.
f) Some estimates indicate that approximately 8,000 indigenous people will be directly affected by the project. Nevertheless, the environmental impact study prepared by the Brazil Institute of Environment does not mention any impact on indigenous communities. Nor does the study recognize any potential damage to the local ecosystem and or any negative effects on indigenous peoples’ access to natural resources or ability to continue with their traditional practices.
g) The Government has not adequately consulted the indigenous peoples affected by the transposition project. While a few public hearings were held in the state capitals, they were far away from the directly affected indigenous communities, who could not afford transportation costs to attend.
h) Furthermore, the transposition project was never submitted to the National Congress for authorization as required by article 231 paragraph 3 of the Federal Constitution relating to the use of water resources within indigenous lands.
i) FUNAI has delayed demarcation of indigenous territories within areas that are to be directly affected by transposition project in the area. Some believe that the delays were intentional, in order to facilitate the transposition project. As a result, several indigenous peoples such as the Anacé, Pipipã and Tumbalalá have not had their territory demarcated.
Response from the Government of 7 June 2010
57. The Government of Brazil responded to the above information and allegations in a letter of 7 June 2010. The following is a summary of the Government’s response:
a) FUNAI has acted to ensure that the indigenous people are heard and informed about the transposition project and the related mitigation and compensation measures, as required by the Environmental Impact Study.
b) The Environmental Impact Study was conducted by the Integration Ministry and the contracted consultant companies Ecology Brasil, JP Meio Ambiente, Agrar and Logos Concremat; it was not carried out by the Brazil Institute of Environment. While the study was in process, the Brazil Institute of Environment was restricted to issuing basic guidelines for the study, through a report called the “Reference Term.” FUNAI also issued a specific Reference Term report to guide the ethnical and ecological studies used to evaluate the social and environmental impacts of the project on indigenous communities.
c) FUNAI’s Reference Term report covered the following indigenous lands: Truká, Tumbalalá, Pipipã, and Kambiwá. The study is summarized in a report entitled “Impact of the Changes in the Indigenous Groups Social and Culture Scenarios,” which identified the main problems on indigenous lands and proposed programs to improve living conditions for indigenous communities. The report identified a number of major concerns relating to: health; education; infrastructure; economic activities; material property; environment; and land regularization. The report also includes recommendations for programs that could mitigate these concerns.
d) FUNAI has adopted several information and consultation measures in regards to the indigenous populations potentially affected by the Sao Francisco River transposition project. In 2005, the Truká, Tumbalalá, Pipipã, and Kambiwá indigenous peoples were consulted during the completion of ethnic and ecological studies that registered the indigenous position on the project. Indigenous peoples were also informed about the environmental licensing process. Between 2005 and 2010, meetings took place with indigenous peoples both on indigenous territory and at FUNAI headquarters, in Brasilia. Between 2005 and 2010, meetings were held between FUNAI staff, the project developers and indigenous communities to discuss compensatory measures.
e) The process of demarcating indigenous lands will require many steps, including: anthropological and complementary studies to identify land; the assertion of indigenous land boundaries before the Ministry of Justice officially demarcates them; removal of non-indigenous tenants from demarcated areas; resettlement of these non-indigenous tenants; indemnification of evicted people for the improvements they made on the land; and, registration of demarcated land in a property registry notary with the relevant ministry.
f) Considering the many steps that must be fulfilled, as well as the number of interested parties, the demarcation process often takes a long time. The Anacé, Pipipã and Tumbalalá indigenous land claims mentioned explicitly in the Rapporteur’s letter are all at different stages of the demarcation process.
g) The Anacé indigenous land demarcation request was filed recently, in 2008, and is therefore still in the early stages of being processed. In 2009, anthropological studies were conducted, and currently, a specialized technical team is being put together to perform the complementary ethnic, historical, sociological, cartographical, environmental and legal studies, as well as the land analysis necessary for the demarcation.
h) As per the Tumbalalá indigenous land demarcation request, answers are currently being drafted to concerns raised by interested parties. Once these answers are issued, the request will be sent to the Ministry of Justice, which is responsible for ultimately issuing the declaratory decree regarding titling. In 2009, the summary of the report presented by the specialized technical group that took part in the land identification and demarcation studies was published in the Federal Official Newspaper and the State Official Newspaper where the demarcated land is located.
i) The Pipipã indigenous demarcation request is being considered by the specialized technical team, which is currently finalizing its report for publication.
Observations of the Special Rapporteur
58. The Special Rapporteur thanks the Government of Brazil for its response of June 2010 to his communication of 6 April 2010. Still, the Special Rapporteur has outstanding concerns regarding the extent to which the information and consultation procedures reported comply with the relevant international standards, especially in regard to the objective of obtaining the agreement or consent of the indigenous peoples concerned to the aspects of the project affecting them. The Special Rapporteur recalls article 32 of the Declaration on the Rights of Indigenous Peoples, which affirms: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization of exploitation of mineral, water or other resources.”
59. The Special Rapporteur will continue to follow up with the Government in this regard. Also, while the Special Rapporteur is pleased to hear that the Anacé, Pipipã and Tumbalalá people’s land demarcation requests are being processed, he hopes that all necessary steps will be taken to finalize the demarcation expeditously and that steps will be taken to complete the demarcation of the lands of other any other affected communities that still do not have their land rights secured. The Special Rapporteur will continue to monitor the situation and may in the future make further observations.