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October 08 2012
Brazil has been facing criticism from international institutions and non-profit organisations regarding the environmental and social impacts of the implementation of hydropower projects in the Amazon. Concern mainly arises in relation to the country's supposed non-compliance with International Convention 169 on Indigenous and Tribal Peoples in Independent Countries, issued by the International Labour Organisation and ratified by over 20 countries. As a result, Brazil is at risk of jeopardising its long-term energy plan.
The country has a large renewable energy sector, with over 47% of its overall energy originating from renewable sources. In order to support the economic growth expected over the coming years - driven by several infrastructure projects and events, such as the World Cup and Olympic Games - a large number of new hydropower plants are expected to be installed in the next 30 years. However, 70% of the non-explored hydropower potential (an estimated 174,000 megawatts) is located in environmentally sensitive areas, mainly in the Amazon and the Brazilian savannah.
Approximately 20% of the Amazon Basin corresponds to indigenous territory. Assessing the impact of the installation of hydropower projects relies on public consultation with local affected communities, in line with the Brazilian Constitution and the convention.
The convention, enforceable in Brazil as an ordinary law, establishes that indigenous people must be previously heard whenever any administrative or legal decision may affect their interests, based on the principle of free previous informed consent. In addition, according to the convention, indigenous people must be considered in a benefit share from the project and must receive fair compensation for damages that may be sustained during the exploitation of their land.
However, there is no precise definition of what would be considered an intervention on indigenous territory, or of how, when and who will be responsible for those consultation procedures and how such compensation will be calculated.
As the current regulation does not supply such definition, some important ongoing energy projects have been threatened by legal actions, putting at risk the related investments.
Public prosecutors have taken legal action questioning the validity of environmental permits issued for hydropower plants, suggesting that constitutional and international legal requirements of proper consultation procedures were disrespected and there was no effective participation from affected indigenous communities.
Based on this argument, on August 1 2011 the Brazilian Federal Court cancelled the environmental permit for Teles Pires Hydropower Plant, one of the biggest hydropower projects in Brazil. Although the matter is currently being litigated before the Supreme Court, other energy companies are already showing their concern about the possible consequences that the opened precedent may bring to other hydropower projects that are in the middle of the environmental licensing process.
With responsibility for the construction and operation of Belo Monte Power Plant, Norte Energia Company has argued that the environmental, social, labour and economic losses will result from a possible halt of the installation of the project, by similar decisions based on a supposed non-compliance of Convention 169.
In line with the environmental licensing process, hearings and public consultations were undertaken with the participation of the affected communities. A total of 38 public meetings were undertaken with 24 Indian tribes, going way beyond the four public hearings executed in the cities of Novo, Vitória do Xingu, Altamira and Belém. Furthermore, with regard to the Indian tribes of Xikrin, Parakanã, Araweté, Arara and Assurini (which do not speak Portuguese), Norte Energia hired expert translators in order to guarantee their right to proper access to information.
Nonetheless, the International Labour Organisation has already published a report asking the Brazilian authorities about compliance with Articles 6 and 15 of the convention during the environmental licensing process, as well as suggesting that indigenous people should have participated on the elaboration of the environmental impact assessment of Belo Monte from the start, in order to uphold the principle of free previous informed consent.
Despite the specific particularities behind Belo Monte's project, which make it one of the world's most controversial energy projects, the social-environmental conflict that conducts the debate is an international issue. According to a report prepared by the Social and Environmental Institute (a Brazilian non-profit organisation that specialises in environmental protection), other Latin America countries - such as Colombia, Venezuela, Peru, Ecuador, Bolivia and Suriname - also face similar challenges regarding compliance with the convention.(1)
The northern hemisphere demonstrates a better record. For example, in certain cases in Canada, companies and indigenous communities were allowed to negotiate the terms of the intervention in their territory and the related offset measures by themselves, provided that these transactions were checked by the local government. In such cases, some indigenous communities became minority shareholders in the hydropower companies and therefore helped to guide the project actions and benefits toward the indigenous interests.
Although future strategies are yet to be established in Brazil, legal uncertainty involving the environmental impacts of the exploration of hydropower threatens the country's strategic interests in energy expansion. In order to guarantee development of the national economy, by combining sustainable growth and environmental and indigenous right protection, the government, indigenous communities, entrepreneurs and civil society should aim to organise a new Iegal framework, bringing such conflicts to a safer and more stable environment, instead of relying on controversial decisions and interpretations.
For further information on this topic please contact Maria Alice Doria or Erika Breyer at Doria Jacobina Rosado e Gondinho by telephone (+55 21 3523 9090), fax (+55 21 3523 9080) or email (firstname.lastname@example.org or email@example.com).
(1) In 2008, the Colombia Supreme Court declared the Forest Law of Colombia unconstitutional for failing to fulfil the principle of free previous informed consent, as stated in Convention 169. In addition, the Inter-American Court of Human Rights condemned Suriname for the omission of previous consultation with indigenous people in relation to the installation of a hydropower plant in quilombolas (slave descendants') territory.
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Maria Alice Doria
Erika Borba Breyer