Today, the 30th November 2012, representatives of 141 Brazilian civil society organisations will deliver to Brazil's Supreme Court judges a carefully reasoned letter pointing out the absurd legal inconsistencies which are allowing construction of Belo Monte to continue.
The letter details the loopholes which Norte Energia and the Brazilian government are exploiting to bulldoze through, both literally and metaphorically, the construction of Belo Monte despite the existence of 13 outstanding legal cases, most of which have resulted in injunctions to prevent the continuation of work. These injunctions have been set aside one by one by a single judge sitting in chambers using a draconian and undemocratic law passed by the generals of the military dictatorship era, fifty years ago.
The dam builders are betting on those cases not reaching the Supreme Court until the dam is a fait accompli. Their actions have no place in a modern democracy which claims to respect human rights and the rule of law. All the Brazilian organisations are asking is that the Supreme Court should adjudicate these cases; we don't think that is too much to ask!
63 international organisations have endorsed the letter, including Tribes Alive.
Movimento Xingu Vivo Para Sempre, the lead organisation, has established an on-line petition (in English), which is open to be signed by individuals from around the globe:
Xingu Vivo Petition
Not unexpectedly, but still disappointingly, the President of the Supreme Court, Carlos Ayres Britto, has suspended the injunction which halted work on the dam.
In a move which represents a total capitulation of the Supreme Court to the wishes of the Executive he refused to comment on the legal aspects, but nonetheless suspended the injunction until the case reaches a full Supreme Court hearing.
How is this a total capitulation? According to Norte Energia, the company building the dam, the government has already spent the major part of R$5 billion through the largely nationally-owned companies which form the core of Norte Energia, and it is incurring further costs daily. Immense damage has already been done in terms of the destruction of the physical, social, cultural and food security of the indigenous tribes affected. The environment suffers more with each day that work progresses. We are at, or very close to, the point where the damage done is irreversible, and the investment so huge that no judgement from any court could stop the Leviathan's progress.
No date has been set for a hearing in the Supreme Court. The case is unlikely to reach the Court for months or even years, by which time the dam will be more or less built, the destruction will have already have been done, the indigenous cultures will have been wiped out, and therefore the case will be no more than academic.
Ayres Britto seems to be blind to the fact that the government has succeeded in bypassing the country's constitution and huge swathes of its environmental and human rights legislation. Because of the enormity of the project, judging that a fait accompli was carried out illegally can do nothing to reverse the damage done. The Supreme Court will have no sanction available; at worst the government may receive a slap on the wrist, which it will simply shrug off on its march towards the next illegal mega-project on the next river.
It is sad to see Brazil's young democracy suffer such degradation. Without a proper balance between the Three Powers - which are so iconically at the heart of Brasilia, where the Executive, the Judiciary and Congress all sit on the Square of the Three Powers - Brazil is reverting to a dictatorship, with a Judiciary cowed into submission by an all-powerful Executive, which in turn is endorsed by a supine and submissive Congress, influenced and financed by corporate interests.
We watched through the 1980s as Brazil left the years of dictatorship behind. We were in awe as the country swept into a new age of enlightenment, enacting progressive laws to protect the rights of its citizens, whether rich or poor, black or white, immigrant or indigenous. The adoption of the 1988 Constitution was a high point, and the hosting of the 1992 United Nations Earth Summit was a triumph. Brazil was seen throughout the world as a bright star, a shining example of how a young democracy could vigorously defend what was good and humanitarian.
How sad to see such promise dashed. Mired in wave after wave of corruption at the highest level - ironically the Supreme Court cannot judge the Belo Monte case because it is embroiled in the Mensalão case, which is about corruption in the highest ranks of the government - Brazil's burgeoning wealthy elite are following the worst example of their gurus in the developed world and enriching themselves with no thought for those who are paying the price for their riches.
The government is enthusiastically endorsing policies and legislation which has no other intention but to take away the safeguards built so painstakingly into the fabric of the modern Brazilian state. First, the courageous and far-reaching (if poorly enforeced) Forest Code was watered down, paving the way to rising deforestation and increased conflict over land tenure. Now there is a project to change the constitution (known as PEC 215) which will transfer responsibility for demarcation of indigenous territories from FUNAI to the National Congress, where each and every proposal will be bogged down for years unless it is simply dismissed at the outset. There is the crazy AGU 303 decree referred to in another article here. And there are the multiple mega projects planned for the Amazon which will result in no more nor less than cultural genocide.
President Dilma Rousseff appears disinterested in anything which might impede her developmentalist agenda for the Amazon. She seems to look upon anyone and anything which is not part of the rich, new world of Brazilian economics and business as a trifling impediment to be brushed aside, whether they be indigenous people, rural settlers, threatened species or ecosystems. She has her priorities and nothing and no-one may be permitted to stand in her way.
In a decision which has fundamental implications for the Brazilian government's relationship with indigenous people, the Federal Regional Court 1 (TRF1) in Brasilia unanimously upheld an earlier decision by the Federal Court in the State of Pará on appeal. The court ruled that the 2005 Congressional Decree which allowed the Belo Monte dam project to be developed was illegal, and accordingly annulled it. The effect is that all of the subsequent environmental licensing process is also invalid. The appeal court also upheld the lower court's decision that the Government acted in flagrant breach of the United Nations International Labour Organisation Convention 169, of which Brazil is a signatory and which is therefore incorporated into Brazilian Law.
This decision is extremely important. It recognises that the Brazilian government has failed to respect fundamental issues of legality, including its own constitution, its own human rights and environmental legislation, and its international obligations. It was handed down unanimously by three judges sitting in a higher court in the capital. It is made on the basis of the legislation and irrespective of the government's overriding ambitions. And it is unequivocal in its condemnation.
The court imposed an immediate halt to the construction of the dam, with a daily fine of R$500,000 for any breach. In an interview following the ruling, Judge Souza Prudente was damning; "We are not fighting the government's acceleration project," he said. "But it cannot be a dictatorial process. The communities are crying out to be heard but they continue to be ignored. The model of preliminary authorisations followed by studies after the event for hydroelectric dams needs to be looked at again because it is authoritarian and unacceptable."
Public Prosecutor Felicio Pontes, the author of the original action, said "The legislative decree which authorised Belo Monte without consulting the Indians was a truly monumental affront to the Constitution." According to him, because the judgement relates to the constitution, the only recourse open to the government now is an appeal to the Supreme Court.
If it chooses to respect this decision, the government will have to go back to the beginning and instigate properly-constituted consultations with the indigenous communities involved, which have to be carried out by Congress and not by the partisan organisations which have so far been involved with the consultations - such as they were - carried out as part of the licensing process. It will then have to go through the steps of obtaining approval from the government agencies involved before it can issue new licenses, since those already in place are no longer valid.
But it is unlikely that the government will be willing to take this legal and democratic route. The same court handed down a judgement a week earlier on another dam project, on the Teles Pires River, in which its judgement was based on the same issues. Again the judgement was unanimous and unequivocal. But just a week later the President of TRF1, Mário César Ribeiro, sitting in chambers, set aside the injunction and permitted the continuation of work on the Teles Pires pending a further appeal. It seems likely that we will see this same process of a judge sitting secretly in chambers overturning the decision of a panel of judges sitting under public scrutiny in an open court in the case of Belo Monte.
Nonetheless, this decision is a great triumph for the cause of the environment, indigenous people and Brazilian democracy and justice. It represents a landmark in the relationship between the executive and the judiciary, with the judiciary finally being prepared to stand up for their own independence and authority in the face of enormous pressure from the Rousseff government.
Brazil's Indigenous communities depend on the land they occupy. Their whole way of life depends on the natural resources it provides - food, medicinal plants, building materials and the materials to make many of the everyday objects they use. But it also depends on their spiritual connection with the land, the air, the rivers, the forests and the earth, all of which have a spiritual identity as well as a material one.
The Brazilian government Attorney General's office last month issued a decree, number 303, which effectively removed most of the rights the Indians enjoy as the original owners of Brazil and as citizens of the country, and demonstrates a clear lack of understanding of the spiritual nature of the indigenous people's reltionship to the land they occupy.
There is no democratic mandate for them to do this, and there is no justification for the dictatorial powers the government is claiming by this instrument. It would allow them to reduce the size of indigenous territories, permit the installation of infrastructure projects - roads, hydroelectric dams, army bases, for example - without leaving the indigenous peoples any recourse to the Brazilian judicial system, and with no prior consultation, let alone any idea of obtaining 'prior informed consent', as required by the United Nations International Labour Organisation Convention 169 - of which Brazil is a signatory.
The Attorney General's staff arrived at this breathtakingly absurd decree by a perverse and twisted process. They took the conditions imposed by the Supreme Court on one specific decision, on the exceptional case of the Raposa-Serra do Sol in the extreme north of Brazil, and tried to apply them indiscriminately to all indigenous territories throughout Brazil, using an explicitly anti-indigenous interpretation of each point. Those conditions were never intended to have any application other than in the very restricted circumstances of Raposa Serra do Sol. Even a cursory reading makes it very clear that to attempt to apply them more widely would be completely at odds with the thinking of the court. Yet that is exactly what this decree set out to do.
Thankfully we quickly discovered that there remain some people in authority in Brazil with some sense of balance. It was quickly accepted that the decree was flawed, and it has now been suspended until the 24th September, pending consultations. We are hopeful that it will now be quietly dropped, but we must remain aware that it could rear its ugly head again next month.
If this decree is not withdrawn completely it will make it very much harder for Tribes Alive to continue our work with the communities we support. We are passing this on to you at the specific request of two of our partner organisations, Instituto Kabu and Instituto Raoni. We'll keep you up to date through the website and through Facebook.
Against the odds the occupation of the 'coffer dam' site by indigenous people from 21 villages continues. It is now in its 16th day. Amazon Watch has a report here: http://amazonwatch.org/news/2012/0706-day-16-reflections-from-the-belo-monte-occupation.
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The Belo Monte hydroelectric dam is under construction on the Volta Grande section of the Xingu River. It is already having a substantial impact on the lives of the Juruna, Arara and Xicrin indigenous people who live there. Since the construction of a 'coffer' dam - a temporary dam to enable construction work on the main installations to take place - the water quality has deteriorated dramatically. The river is the principal source of drinking water and is the bathing place for these villages, so the dramatic rise in the amount of sediment in the water is a serious issue, directly affecting their health, their hygiene and their ability to feed themselves.
The dam construction company was supposed to provide alternative sources of clean water before they undertook work which would affect the river in this way, but they have failed to do so. Several other provisions were included in an 'emergency fund' package and a Basic Environmental Plan, but so far nothing has been put in place. The company has not even ensured the maintenance of river transport, the vital and only connection the villages have to town for emergency medical treatment, purchasing goods and trading products.
"They are not complying with what they promised to do in our villages," said indigenous leader Mukuka Xicrin, "principally the [legally required] conditions [imposed by Brazil's environment agency], everything is being left to fall behind. We are seeing that the destruction of nature and of the river is very great, and we are not going to let them carry on with the work any more. We need the press to come here to let the whole world know what is happening here. The government keeps saying that we are OK, but no, the situation here is really bad, we people who will bear the impact don't have any guarantee about our rights whatever. And we're asking the courts to call a halt to the works of Belo Monte."
Indigenous groups have occupied the site for over a week in an attempt to force the construction company to fulfill its legal undertakings. While the occupation was taking place in the Amazon, a group of over 1,500 indigenous people and their supporters made a sympathetic living work of art on Flamengo beach during the Rio+20 People's Summit, joining their bodies together to make the design of an Indian chief holding his hand up symbolically to the sun. This followed a similar protest at the site of the dam, where people formed the words 'Pare Belo Monte' (Stop Belo Monte) using their bodies. They also dug a symbolic break through the temporary dam.
The construction company has attempted to get the courts to order the forcible removal of the protestors, but the local court sided with the protestors and ordered the company to enter into negotiations. It remains to be seen if they will comply, or merely appeal the ruling to a judge in Brasilia. In past cases judges in the capital have been more amenable to the company's views than the local judges, who have a direct understanding of the situation. A report from the inter-American lawyer's organisation which is supporting the protestors can be found here.
If anyone was relying on Rio+20 as a landmark I would suggest investing in a satnav, because the only thing remarkable about this landmark is its insignificance.
Cynicism aside, parallel to the UN conference was the People's Summit, an hour away in Rio's Flamengo Park, where there was visibly more commitment, passion and action. It was at the People's Summit that the indigenous delegations spent most of their time, and they were a powerful and influential presence. They drew massive support and respect from the general public. More than 1,500 indigenous people from all over Brazil, South America and the world were here.
Though our Just Giving campaign to raise funds to help some of the communities we work with to attend was a massive disappointment, we did receive substantial grants from the Roddick Foundation and Artists Project Earth at the last minute, which helped two communities to send representatives whose voices would not otherwise have been heard. We extend our thanks from them to the few who did donate; your money went to help feed those who were here when it became apparent that the food provided for them was both very poor quality and vastly insufficient.
Inevitably there was much discussion and several peaceful but forceful actions about the Belo Monte hydroelectric dam, which is moving ahead despite legal challenges from Brazil's public prosecutors, the UN and the Inter American Committee on Human Rights. We went to the launch of 'Xingu: A Declaration of War', a full-length documentary film. I recommend it to anyone interested in indigenous peoples, human rights, the Amazon environment - or sustainable development - it runs 1hr 44mins, is free to distribute and is sobering. Because we know practically all of the people who feature in the film personally, we can vouch for its accuracy in representing their views. Here's the link to the site:
You can see some of Sue Cunningham's photos from Rio+20 on her commercial website:
and Patrick Cunningham submitted a report to the Latin America Bureau website: