James Anaya





Cases examined by the Special Rapporteur (June 2009 – July 2010)

A/HRC/15/37/Add.1, 15 September 2010

V. Brazil: Situation of the Belo Monte dam in the state of Pará

46. 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’s 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, and the planned transposition of the São Francisco River (addressed in the following section). This communication followed the Special Rapporteur’s report 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.

47. The Government of Brazil responded 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 Ninth session of the Permanent Forum on Indigenous Issues in April 2010, during which he received additional information about the issues raised in the 6 April 2010 letter. The following provides the content of the information exchanged in relation to the Belo Monte dam.

Allegations received by the Special Rapporteur and transmitted to the Government by the Special Rapporteur on 6 April 2010

48. In his communication of 6 April 2010, the Special Rapporteur transmitted to the Government the information received and requested that the Government respond to the allegations contained in the communication in light of relevant international standards.

49. According to the information and allegations received:

a) The construction of the hydroelectric dam in Belo Monte would directly affect the indigenous peoples located in the Xingu river basin, including the following communities: Kaiapo, Xavante, Juruna, Kaiabi, Suia, Kamaiura, Kuikuro, Ikpeng, Panara, Nafukua, Tapayuna, Yawalapiti, Waura, Mehinaku and Trumai (in total, some 13,000 persons).

b) The dam would reduce the water level of the river, diminishing fishing resources that indigenous communities rely on for their daily subsistence. Further, since the river is the only means of transportation for nearby communities, it is expected that the dam would also contribute to the geographic isolation of the indigenous peoples of the Xingu river basin, thereby depriving them of access to needed social services. The change in the river level would also have considerable ecological impact as it constitutes an important ecological regulator in the region. It is also expected that the increased population in the area, brought by the dam construction, would incense conflict over lands and natural resources and would increase land speculation in the area. The arrival of a large external population could also lead to an upsurge of sexually transmitted diseases, alcoholism and drug use and availability in the area.

c) On 12 July 2005, the Brazilian Congress, by Legislative Decree 788, approved the request for construction of the Belo Monte dam. Following this, the National Foundation for Indigenous Issues (FUNAI) conducted a study on the expected social and environmental impacts of the projects. However, while identifying a number of serious impacts threatening indigenous lands in the region of Altamira, the FUNAI study reportedly underestimates the social and environmental impacts of the dam and fails to take into account all the indigenous communities that would be affected by its construction.

d) The study identifies three types of zones affected by the dam: the directly affected zone (which is comprised of the dam infrastructure, access roads, and flood areas); and the zones of direct influence and indirect influence. However, it is unclear how the zones of direct influence and indirect influence were determined and defined. Of the indigenous lands affected by the project, only two are considered by the FUNAI study to be within the zones of direct influence. Furthermore, the FUNAI report did not include reference to downstream areas where the quality of the water will be greatly altered by the dam’s turbines.

e) There is also a lack of clarity in relation to the mitigation and compensation mechanisms proposed by the FUNAI study. For example, there is no indication about where the people of Altamira, Vitória de Xingu y Brasil Novo whose dwellings would be inundated, would be relocated. Nor is there information provided on compensation for future displaced populations.

f) Furthermore, there were problems with the consultation and public information procedures carried out. In September 2009, the Brazil Institute of Environment organized four public audiences in urban areas. However, the people who live in these areas will not be directly affected by the construction of the dam. Additionally, given the cost and difficulties of travel from remote to urban areas, affected indigenous people could not participate in the public audiences and were consequently not informed about the project. Also, the environmental study conducted in relation to the dam, which comprised 36 volumes and 20,000 pages, was made public only two days prior to the public meetings, making it impossible for people to be fully acquainted with the very complex and highly technical project.

g) Despite these shortcomings, FUNAI concluded its study by asserting that the construction of the Belo Monte dam was feasible. Latest reports indicate that the Brazil Institute of Environment is about to authorize the construction of the Belo Monte Dam.

Response from the Government of 7 June 2010

50. 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) Some of the facts in the Special Rapporteur’s communication relating to the Belo Monte Hydroelectric Project are inaccurate.

b) Plans for a hydroelectric plant to be built over the Xingu River date back to the 1970s, when construction for three stations was planned. The original project required flooding three large areas, totaling over 1,500 square kilometers. On account of the renewed environmental demands of both the Government and Brazilian society, and technological advances, the project was rewritten to lessen the social and environmental impacts on the region. The present proposal calls for the construction of only one hydroelectric facility over the Xingu River (the Belo Monte station), including one main barrage and one secondary barrage. The project will only require flooding approximately 500 square kilometers total, a third of the area that would be flooded under the original proposal.

c) The Belo Monte Hydroelectric power station will not decrease available fish in the region by way of reducing the flow of the Xingu River. Considering the project will cause the flooding of only one area, the Xingu’s flow will be reduced only in the part named Volta Grande do Xigu, and not in its entirety.

d) The National Congress’ authorization of the hydroelectric use of Belo Monte, contained in Legislative Decree 788, was conditioned on the completion of an environmental impact assessment (EIA) study. One of the main objectives of the EIA was to complete an indigenous impact study which could then be used to establish a communication program for indigenous communities. Communications would be aimed at explaining the differences between the previous project plan and the current one, which is in the process of being fully licensed.

e) The potentially affected indigenous communities were the subject of multidisciplinary studies, completed by qualified researchers as required by Brazilian law. Among other factors, the following were taken into consideration: the history of the project planning process; the scope of the project area; other projects in the region and findings in their EIAs; the existing ethnic groups in the area; and the regional pressure on indigenous lands.

f) In addition to ongoing communication with the potentially affected indigenous people, including the creation of specific materials and visits to the communities, many meetings took place between the technical team of the FUNAI and the project coordinators to clarify the project’s evolution over time. Various meetings with indigenous communities, public hearings, and other relevant meetings in regards to the environmental licensing of the Belo Monte hydroelectric project, were conducted. Some meetings also took place between the technical team of the Brazil Institute of Environment and FUNAI in an effort to integrate both agencies’ activities.

g) The project involves at least ten different indigenous territories and about eight different ethnic groups, each with their own social system, cosmology and social organization. In spite of the deadlines and human resources limitations, FUNAI always aims to respect this social diversity, in accordance with its institutional mission.

h) When meeting with indigenous communities, FUNAI employed a consistent methodology. This methodology included: explaining the environmental licensing procedure and relevant regulations; explaining the general licensing steps and purposes of the meeting; presentations by the project developer on the Belo Monte Hydroelectric construction project (focusing on the available biotic and socio-economic data); and, discussions of indigenous communities’ right to speak out about their doubts and/or confusions regarding the project. All indigenous communication meetings were conducted by FUNAI and were documented in audio and video format.

i) In order to lessen the negative effects of the Belo Monte hydroelectric power station, the EIA highlight the importance of changing the initial engineering plan as presented in the 2002 Viability Study. Suggested changes include: (1) building 2,000 houses for station employees in Vitoria, Xingu City instead of in the residential village where they were initially planned to be constructed; (2) building 500 houses planned for site employees in Altamira city, instead of a closed village; (3) construct a canal, instead of a fish stair, next to the main barrage to further enable fish to pass; (4) construct a mechanism next to the main barrage so the boats can cross from one side of the dam to another on the Xingu river; 5) define an ecological hydrograph for the section of the Xingu River between the main barrage and the power house, allowing for better navigation and increased survival of plants and fish species.

j) Based on the conclusions of the FUNAI, the Belo Monte project is considered to be viable, so long as the changes and mechanisms suggested by the EIA are rigorously implemented.

k) It is important that the impact of an increase in the local population on indigenous lands is duly controlled. Special attention should be paid to possible increases in illegal fishing and hunting, wood and mining exploration, encroachment on indigenous land and the transmission of diseases. To address these threats, the State must act to assure the protection of all affected indigenous lands by conducting surveillance and creating conservation units to patrol their borders.

l) The complexity of the situation, illustrated by the information collected by FUNAI, demands much more than the implementation of a basic environmental plan. Recognizing that indigenous lands in the region are already vulnerable (heavily impacted by deforestation and mining, coupled with the Brazilian state’s insufficient presence and monitoring efforts), FUNAI recommended that both emergency and long term mitigation measures are designed to protect indigenous lands; these measures should be implemented by both public institutions and the private companies involved in the project.

m) The following measures should be taken to protect indigenous interests:
• Public institutions should implement the following measures before the project bid: create a discussion group for coordination and articulation of government actions regarding the indigenous peoples and lands impacted by the Project; undertake meetings to identify the available areas in the Altamira/PA region with the aim of promoting the re-allocation of non-indigenous tenants from the Apyterewa indigenous land; elaborate and technically construct a commitment team between FUNAI and the Brazilian Electric Company, Eletrobras, to work on a covenant that would strengthen, in the long run, in-depth support and assistance programs for affected indigenous lands and peoples.

• Public institutions should implement the following measures after the project bid: strengthen FUNAI’s presence and control over the land regulating process and indigenous land protection; reverse intrusion on the Arara da Volta Grande and Cachoeira Seca indigenous lands; redefine borders in the Paquicamba Indigenous Land, ensuring access to the reservoir; relocate all the non-indigenous tenants of the indigenous lands involved in the Project; demarcate all indigenous lands; designate the Xingu isles, between the Paquicamba and Arara da Volta Grande do Xingu indigenous lands, for exclusive use by these indigenous communities; establish an ecological path connecting the indigenous lands Paquicamba, Arara da Volta Grande do Xingu and Trincheira-Bacajá and, as part of this process, widen the Paquicamba indigenous territory; elaborate an educational proposal for the impacted communities, together with the Education State Department of Pará and the Ministry of Education; reorganize a fully functional health service program in the region.

• Private companies should take on the following responsibilities, among others: implement programs recommended in EIA studies, particularly the programs to help impacted communities immediately after the signing of the contract for hydroelectric use of Belo Monte; create and begin implementing an Emergency Surveillance and Vigilance Plan to protect all indigenous lands; ensure funds for the execution of all the plans, programs and actions mentioned in the EIA; create a communication plan with the indigenous communities, including plans to transmit information on every phase of the Project; create an indigenous committee to control and monitor the flow of the River on indigenous lands and establish mechanisms for follow-up on the monitoring, including trainings; create an Indigenous Managing Committee to manage compensation programs related to the Belo Monte project; design a documentation and recording system for the project implementation process; and, contribute financially and technically to the structural improvement of FUNAI.

n) FUNAI, by hosting public hearings in indigenous communities during the environmental licensing process, fulfilled its mandated role in the indigenous consultation process. Nevertheless, indigenous communities have formally asked for public hearings about the Belo Monte in the National Congress.

o) Considering the indigenous interest in further consultations at a national level, a meeting should be held between the representatives of all affected indigenous groups and representatives from the Minorities and Human Rights Commission, as well as the Amazon Commission, so that indigenous peoples can have the opportunity to express their opinions on the project again, this time in front of congressmen.

p) Though the indigenous communities have taken an active role in the public hearings, when it comes to their position regarding the implementation of the hydroelectric use of Belo Monte, there is no consensus between them.

Observations of the Special Rapporteur

51. The Special Rapporteur is grateful for the detailed information provided by the Government of Brazil in its letter of 7 June 2010, as well as for the information provided by the president of FUNAI during the session of the Permanent Forum on Indigenous Issues in April 2010. The Special Rapporteur appreciates the significant efforts being undertaken by the Government through FUNAI to address the concerns of indigenous peoples about the Belo Monte Dam project.

52. Still, the Special Rapporteur remains concerned about reports that the indigenous peoples affected by the Belo Monte project have not been adequately consulted about the dam and in particular were not included in the processes leading to the decisions to initiate and implement the project. Such concerns were raised in his 2009 report on the situation of the indigenous peoples in Brazil (A/HRC/12/24/Add.2, para. 57). The Special Rapporteur notes the consultation efforts reported by the Government, yet concerns remain about whether the consultations were aimed at obtaining the agreement or consent of the affected indigenous communities to the decision to initiate or move forward with the project. In this regard, the Special Rapporteur calls attention to article 32 of the Declaration on the Rights of Indigenous Peoples, which provides: “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.

53. Especially given the magnitude of the Belo Monte dam project and its potential effects on indigenous peoples in surrounding areas, the Special Rapporteur notes the need for concerted efforts to carry out adequate consultations with these peoples, and to endeavour to reach consensus with them on all aspects of the project affecting them. With regard to minimum stepts to be taken, the Special Rapporteur notes the conditions set forth in the 2002 Viability Study and the mitigation and land demarcation measures proposed by FUNAI. The Special Rapporteur will continue to monitor the situation and may, in the future, offer further observations.

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