Jaichand Sampaio

HUMAN RIGHTS QUARTERLY

Dam and Be Damned: The Adverse Impacts of Belo Monte on Indigenous Peoples in Brazil

Vinodh Jaichand* & Alexandre Andrade Sampaio**

ABSTRAcT

In June 2011 the license to build Belo Monte—what the Brazilian govern-ment claims to be the third largest dam in the world in terms of electric power generating capacity—was granted. Since the 1970s, when the plans to build the dam were first made public, the project has encountered great opposition. Indigenous peoples and others who would adversely be affected by the construction of the Belo Monte Dam were supported by national and international NGOs that tried to halt the project through numerous strategic paths, one of which was by filing a case before the Inter-American Commission on Human Rights. Finally, in April 2011, the Commission granted an injunction in favor of the indigenous peoples of the Xingu River Basin that would be impacted by the dam, requesting the government to stop Belo Monte’s construction. However, Brazil argued that these peoples would not be affected and disregarded the request. This article, by looking at indigenous peoples’ substantive and procedural rights, assesses the pos-sible adverse impacts on the indigenous peoples. Special attention is given

* Vinodh Jaichand B.A., S.T.D. (UD-W); LL.B. (Natal); LL.M. (Miami); LL.M. (magna cum laude), S.J.D (summa cum laude) (Notre Dame). Professor and Director of the International Human Rights Exchange School for Social Sciences, University of the Witwatersrand, former Deputy-Director of the Irish Centre for Human Rights at the National University of Ireland Galway and National Director of Lawyers for Human Rights, South Africa.

** Alexandre Andrade Sampaio is a Brazilian lawyer and holds an LL.M. (first class honors) in International Human Rights Law from the National University of Ireland, Galway. He is an active member of the Human Rights Commission of the Brazilian BAR Association of Campinas and has contributed to the work of the Special Procedures Branch of the United Nations Of-fice of the High Commissioner for Human Rights and the Center for Justice and International Law. He is currently the Right to Information Programme Officer of Article 19 South America.

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, the aformentioned organizations.

Human Rights Quarterly 35 (2013) 408–447 © 2013 by The Johns Hopkins University Press

2013 Dam and Be Damned 409

to the profound connection indigenous peoples have with their lands and how this connection impacts on their unique rights to self-determination, property, and culture. Considering the analysis of these rights, indigenous peoples’ right to be consulted in a free, prior, and informed manner is as-sessed. This article concludes that the adverse impacts that would result from Belo Monte’s construction are evident and the State’s conduct in car-rying on with the project is in violation of national and international law.

“God only makes a place like Belo Monte once in a while. This place was made for a dam.”1

Engineer involved in the planning of Belo Monte Dam

“This dam kills the river. In killing the river, it kills us with it. So, we will die fighting.”2 Indigenous Kaiapó leader who objects to the building of the dam

I. INTRoDUcTIoN

This article deals with the contrasting views of protagonists on the question of the right to self-determination, land, and other human rights, where each side legitimizes their respective views legally and politically. On 1 June 2011,3 Eletronorte,4 a Brazilian governmental agency, was granted a license to build what is claimed to be the world’s third largest dam in terms of electric power generating capacity—Belo Monte.5 The battle to obtain the license began two decades ago when the plans to build the Belo Monte dam first became public.6 Studies conducted since 1975 demonstrated the great hydroelectric

1. Phillip M. Fearnside, Dams in the Amazon: Belo Monte and Brazil’s Hydroelectric Development of the Xingu River Basin, 38 Environ. MgMt. 16, 19 (2006).

2. Indigenous Kaiapó benajoro (leader) warning Mr. Pontes, Attorney General of the Re-public in State of Pará, about the indigenous peoples’ objection to the construction of Belo Monte. Felício Pontes Jr., Belo Monte de Violências (V), BElo MontE DE violEncias (14 Jul. 2011), available at http://belomontedeviolencias.blogspot.com/search/label/histórico%20judicial. All the translations from Portuguese to English in the present work were made by Alexandre de Oliveira Andrade Moraes Sampaio and are not official.

3. Julio C. Garcia, Ibama Ignora MPF e OEA e Libera Licença Para Obras de Belo Monte no Xingu, instituto socioaMBiEntal (2 June 2011), available at http://www.socioambiental.org/nsa/detalhe?id=3350.

4. Eletronorte is a subsidiary of Eletrobras, a Brazilian power utility company that was appointed to build Belo Monte after the private sector refused to fund the project due to its doubtful economic viability. See, e.g., Renée Pereira et al., Eletrobrás Comanda Leilão de Belo Monte, Jornal o EstaDo DE são Paulo at 25 (2010).

5. Application for Precautionary Measures, Indigenous Communities of the Xingu River Basin v. Brazil, Inter-Am. Comm’n H.R., PM 382/10, (2010) [hereinafter Indigenous Communities Application for Precautionary Measures], available at http://www.aida-americas.org/sites/default/files/refDocuments/Medida%20Cautelar%20UHE%20Belo%20Monte%20Brasil.pdf. The Brazilian government claims that Belo Monte has the potential to generate up to 11,223 MW, although specialists argue that the dam would not gener-ate more than 4,719 MW due to the river’s low level of water flux during long periods of the year. See id.

6. Id. at 2.

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capacity of the Xingu River and suggested Belo Monte as the best starting point to build an integrated complex of six dams.7 By the time these studies were made public, the adverse effects of Belo Monte alone were projected to include the flooding of a 1,225 Km2 area by its reservoir,8 and along with the five other dams, the flooding of thirteen indigenous peoples’ territories.9 The reaction of the indigenous peoples and others who would be adversely affected by the project resulted in the notable 1989 1o Encontro das Nações Indígenas do Xingu (First Encounter of the Indigenous Nations of the Xingu), a protest with worldwide repercussions due to its large public attendance and media coverage, which put a halt to the government’s plans to build the dam at that stage.10 However, the state’s ambition to build the Belo Monte project was not abandoned.

The utilization of hydroelectric power as the country’s main electricity production asset is convenient as Brazil has extensive river networks and the greatest hydropower potential in the world.11 In addition, it is argued that the project would keep the country’s pledge to generate clean energy.12 Moreover, utilizing Belo Monte’s electricity generating capacity is asserted by the government to be essential “to achieve some of the fundamental objec-tives pursued by the Brazilian Federal Constitution, such as the promotion of human dignity, national development, eradication of extreme poverty, and the reduction of social and regional inequalities.”13 These are the rea-sons given for why Belo Monte was never off the government’s agenda and today is considered one of the leading projects of the Growth Acceleration Programme (PAC),14 a program developed by President Luiz Inácio “Lula”

7. Ministério DE Minas E EnErgia, MME & cEntrais HiDrElétricas BrasilEiras s.a., ElEtroBras. nacional DE EnErgia Elétrica 1987/2010 (1987), available at http://www.planalto.gov.br/ccivil_03/decreto/1980-1989/anexo/and96652-88.pdf.

8. Response from the State of Brazil, Indigenous Communities of the Xingu River Ba-sin v. Brazil, Inter-Am. Comm’n H.R., PM 382/10, at 25 (2011) [hereinafter IACHR Response from State of Braz.], available at http://www.xinguvivo.org.br/wp-content/uploads/2010/10/Resposta_do_Estado_MC_030520111.pdf.

9. The study predicted that the reservoir area of the whole complex would be of 18,000Km2. See id.; Especial Belo Monte: Cronologia do Projeto, Instituto SocioaMBiEntal (14 Jul. 2011), available at http://www.socioambiental.org/esp/bm/hist.asp. [hereinafter Chronology Project].

10. John Ahni Schertow, Indigenous People Set to Begin “The Xingu Encounter,” intErconti-nEntal cry, 13 May 2008, available at http://intercontinentalcry.org/indigenous-people-set-to-begin-the-xingu-encounter/.

11. See Recursos Hídricos, Portal Brasil (15 Jul. 2011), available at http://www.brasil.gov.br/imagens/sobre/geografia/recursos-hidricos.

12. Andréia Sadi, Brasil se Compromete a Cortar Emissões de Gases Entre 36,1% e 38,9% até 2020, r7 notícias, 13 nov. 2009. Brazil has made a voluntary pledge to reduce its percentage of greenhouse gasses emissions by 2020.

13. IACHR Response from State of Braz., supra note 8, ¶ 24. 14. Diamond and Poirier state that: “Belo Monte . . . is PAC`s flagship project.” Sara Diamond

& Christian Poirier, Brazil’s Native Peoples and the Belo Monte Dam: A Case Study, NACLA rEPort on tHE aMEricas 25 (2010).


da Silva’s government to boost the Brazilian economy while bringing social inequalities to an end.15

Hence, the study that attested to Belo Monte’s hydroelectric capacity was submitted to systematic revisions so that the flooded area by the dam’s reservoir would not only be reduced to a minimum, but also not include any indigenous lands.16 The more recent edition of the study, which envisages the reservoir flooding an area of 516 Km2 that is uninhabited by indigenous peoples, was the basis for the Bill that sought the authorization to build the Belo Monte dam.17 The Bill was submitted to Congressional scrutiny and approved in a record time of less than a month.18 During this accelerated legislative process, the government argued that it was unnecessary to con-sult with indigenous peoples as neither the dam, nor its reservoir, would be located within their demarcated lands.19

Since the approval of the Bill authorizing Belo Monte’s construction, the Federal Prosecutor’s Office20 has tried to halt the project by filing several lawsuits claiming a number of irregularities in the way the enterprise is be-ing conducted. 21 As a result of the fear of the ineffectiveness of the national judicial system, NGOs have joined the cause and taken action.22 Other efforts made to cancel the project include letters sent to Brazil’s president demonstrating the adverse effects of Belo Monte23 and a communication sent

15. Conheça o PAC, Portal Brasil (15 Jul. 2011), available at http://www.brasil.gov.br/pac/ o-pac/. PAC has been continued by Dilma Roussef, Lula`s former Chief of Staff who assumed the presidency of the country in 2011. It falls outside the scope of this work to assess the shortcomings of this governmental program. For a criticism of the program in relation to the construction of Belo Monte and other dams in Brazil, see Pedro I. Simões, Brazil’s PAC 2 Spells Environmental Disaster, int’l rivErs (29 apr. 2010).

16. IACHR Response from State of Braz., supra note 5, ¶¶ 25–27. 17. Decreto No. 788, de 13 de julho de 2005, Diário oficial Da união, [D.O.U.] de 14.7.2005

(Braz.) [hereinafter Braz. Legislative Decree No. 788], available at http://www.in.gov.br/visualiza/index.jsp?jornal=1&pagina=1&data=14/07/2005.

18. The Bill was proposed on 29 June 2005, and by 13 July 2005 it had been approved by both the Chamber of Deputies and the Senate. See id.

19. IACHR Response from State of Braz., supra note 8, ¶ 32. 20. The Federal Prosecutor’s Office is the organ assigned by the Federal Constitution to

protect the interests of indigenous peoples in the national courts. See constituição fEDEral [c.f.] [constitution] art. 129 (Braz.).

21. Even though the first lawsuit was filed in the beginning of 2006, as of July 2011 all of them were still waiting a final decision. See Pontes, Belo Monte de Violências, supra note 2.

22. See Indigenous Communities Application for Precautionary Measures, supra note 5, at 36–38.

23. Letter from Amazon Watch et al. to Luiz Inácio Lula da Silva, President of the Federative Republic of Brazil (15 Mar. 2010), available at http://www.ecodebate.com.br/2010/03/15/em-carta-dirigida-ao-presidente-lula-140-entidades-internacionais-denunciam-belo-monte/; Letter from Abogadas y Abogados para la Justicia y los Derechos Humanos et al. to Dilma Vana Rousseff, President of the Federative Republic of Brazil (8 Feb. 2011), available at http://www.ecodebate.com.br/2011/02/08/belo-monte-nao-carta-para-dilma-rousseff/.


to the United Nations reporting threats made to judges and public prosecu-tors by the secret service.24 Organizers also planned a Second Encounter of the Indigenous Nations of the Xingu.25

The most significant effort to date is the filing of a case before the Inter-American Commission on Human Rights (Inter-American Commission) requesting precautionary measures taken against Brazil.26 Numerous human rights violations that were considered to have already occurred, and those that were likely to occur after the construction of the dam, were reported to the Inter-American Commission. The claim, which was based on national and international legal instruments, addressed human rights violations against all vulnerable groups living in the Xingu River Basin who were, or would be, affected by the construction and operation of the Belo Monte dam.27 The Inter-American Commission analyzed the government’s response to the claim and ruled in favor of the NGOs, requesting the government to “suspend the licensing process for the Belo Monte hydroelectric project and prevent the implementation of any material works.”28 In justifying their decision for precautionary measures against Brazil, the Inter-American Commission explained that it considered that the state had not fulfilled the following obligations: to carry out free, prior, and informed consultations with the affected indigenous peoples in accordance with the jurisprudence of the Inter-American system; to adopt substantial measures that would guarantee the personal integrity of indigenous peoples and their collective existence as such; and to take appropriate measures to prevent the spread of diseases among indigenous peoples as a result of the construction of the dam and of the massive population influx that the project would cause.29

The Brazilian Senate, Department of Foreign Affairs, and President consid-ered the Inter-American Commission’s request surprising and unacceptable.30

24. Representação à ONU sobre Ameaças a Procuradores e Juizes no Caso Belo Monte, Xingu vivo (14 Jul. 2011), available at http://www.xinguvivo.org.br/2010/10/24/representacao--a-onu-sobre-ameacas-a-procuradores-e-juizes-no-caso-belo-monte/.

25. The Second Encounter of the Indigenous Nations of the Xingu took place in May 2008. See Chronology Project, supra note 9.

26. Indigenous Communities Application for Precautionary Measures, supra note 5. 27. Id. 28. Indigenous Communities of the Xingu River Basin v. Brazil, Inter-Am. Comm’n H.R., PM

382/10, ch. III, ¶ 32 (2011) [hereinafter IACHR Commission’s Request to Government], available at http://www.oas.org/en/iachr/docs/annual/2011/TOC.asp.

29. Id. ¶ 33. 30. Id. See Paulo S. Vascos, Aprovado Voto de Censura à OEA por Declaração Contra

Belo Monte, agência sEnaDo, (10 June 2011), available at http://blogbelomonte.com.br/2011/06/10/aprovado-voto-de-censura-a-oea-por-declaracao-contra-belo-monte/; Press Release, Belo Monte Provoca Crise Internacional, Ministério das Relações Exteriores (6 Apr. 2011); Press Release, Luiza Damé & Eliane Oliveira, Governo diz que Manterá Belo Monte, Ministério das Relações Exteriores (8 Apr. 2011). Note that the Brazilian government did not comply with the Inter-Amercan Commission`s request, and the license for the construction of the dam has been granted. See Garcia, supra note 3.


In response to this request, Brazil withdrew its candidate for Commissioner in 2012 and threatened to cut its funding to the Inter-American Commission and to leave the regional organ.31 Fearing Brazil’s reaction, the Organization of American States (OAS) Secretary-General asked the Inter-American Com-mission to reconsider its findings.32 In the meantime, the decision to construct the Belo Monte dam appears unchanged as Brazil flexes its diplomatic and economic muscle in the region and internationally.

Although the human rights of others may also be endangered by the enterprise, the indigenous peoples’ vulnerability provides the most cause for concern. A careful assessment of their unique situation and the effects the dam would have on their communities is required if their lives, cultures, and other human rights are to be preserved. This article will attempt to undertake such an assessment. In order to do so appropriately, emphasis must be drawn to some of the relevant international legal instruments that Brazil has voted for, signed, or ratified. Brazil voted in favor of the Universal Declaration of Human Rights (UDHR) in 1948.33 In 1992, it ratified the American Conven-tion on Human Rights (ACHR),34 the International Covenant on Economic, Social and Cultural Rights (ICESCR),35 and the International Covenant on Civil and Political Rights (ICCPR).36 Brazil later ratified the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights in 199637 and the Convention Concerning Indigenous

31. Ricardo Noblat, Dilma Retalia OEA por Belo Monte e Suspende Recursos, Jornal o gloBo, (30 apr. 2011), available at http://www1.folha.uol.com.br/fsp/mercado/me3004201117.htm.

32. Júlia D. Carneiro, Comissão da OEA Deve “Revisar Decisão” Sobre Belo Monte, diz Secretário-Geral, BBc Brazil, 5 May 2011, available at http://www.bbc.co.uk/portugue-se/noticias/2011/05/110502_insulza_jc.shtml. The Brazilian governmental pressure on the IACHR seems to have had the expected result. On 29 July 2011 the Commission reconsidered its decision on PM 382/10 and affirmed that debating about prior and informed consultations had turned into a discussion on the merits of the case, which went beyond the scope of precautionary measures. See IACHR Commission’s Request to Government, supra note 28, ¶ 33.

33. Universal Declaration of Human Rights, adopted 12 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc A/810 91 (1948) [hereinafter UDHR].

34. American Convention on Human Rights, signed 22 Nov. 1969, O.A.S. Doc. OEA/Ser.L/V/II.23, doc. 21, rev. 6 (1979), O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 (entered into force 18 July 1978) [hereinafter American Convention].

35. International Covenant on Economic, Social and Cultural Rights, adopted 16 Jan. 1966, G.A. res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR].

36. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. res. 2200A (XXI), U.N. GAOR, 21st Sess., UN Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR].

37. Additional Protocol to the American Convention on Human Rights in the Area of Eco-nomic, Social and Cultural Rights, OAS. Treaty Series, No. 69, (entered into force 16 Nov. 1999) [hereinafter Protocol of San Salvador].


and Tribal Peoples in Independent Countries in 2002.38 Most recently, Brazil voted in favor of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.39

Keeping these legal instruments and other national legislation in mind, this article aspires to assess the government’s obligations towards indig-enous peoples who could be affected adversely by the Belo Monte project and whether these peoples’ rights would be, or already are, threatened by the project. The first section of this study will attempt to evaluate the situation through the lens of indigenous peoples’ substantive rights to self-determination, property, and culture. Taking the results garnered from this exercise into account, the second section will consider how the right to free, prior, and informed consultation should be applied to the present case. The final section will address how the state’s conduct stands in relation to its national and international obligations, focusing on its attitude towards the Belo Monte project vis-à-vis the indigenous peoples of the region in which the dam would be constructed.

Before delving into the merits of the discussion, it is essential to em-phasize the nature of the connection that indigenous peoples have with the lands they utilize and the implications of this in relation to the following discussion.40 Special Rapporteur James S. Anaya and Robert A. Williams, Jr. state that the “rights of indigenous peoples cannot be fully understood without an appreciation of the profound, sustaining linkages that exist be-tween indigenous peoples and their lands.”41 In her 1999 study, Erica-Irene A. Daes pointed out that the deep relationship between indigenous peoples and their lands is “at the core of indigenous societies.”42 Accordingly, Ana Valéria Araújo notes that guaranteeing indigenous peoples land rights is a prerequisite for the guarantee of all their other rights.43

38. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), adopted 27 June 1989, 1650 U.N.T.S. 383 (entered into force 5 Sept. 1991) [hereinafter ILO Convention 169].

39. Declaration on the Rights of Indigenous Peoples, adopted 2 Oct. 2007, G.A. Res. 61/295, U.N. GAOR, 61st Sess., U.N. Doc. A/Res/61/295 (2007) [hereinafter Declaration on Indigenous Peoples].

40. The term “lands” from hereon will be utilized as proposed by the ILO Convention 169, supra note 38, art. 13.2, meaning “the total environment of the areas which the peoples concerned [indigenous and tribal peoples] occupy or otherwise use.”

41. S. James Anaya & Robert A. Williams, Jr., The Protection of Indigenous Peoples’ Rights Over Lands and Natural Resources Under the Inter-American Human Rights System, 14 Harv. HuM. rts. J. 33, 49 (2001).

42. Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, U.N. ESCOR, Comm’n on Hum. Rts., 52d Sess., Agenda Item 8, ¶ 11, U.N. Doc. E/CN.4/Sub.2/1999/18 (1999) [hereinafter Working Paper on the Relationship and Distinction].

43. araúJo, ana valéria Et al., Povos inDígEnas E a lEi Dos “Brancos”: o DirEito à DifErEnça 49 (2006).


The assertions of these experts, which have been affirmed by national and international judicial systems,44 reflect the current respect for a multi-cultural world to which Brazil has consented to be bound. The evolution of an increased understanding of the relationship between indigenous peoples and their lands has displaced the archaic idea that such persons must be assimilated into more advanced societies.45 Apart from highlighting the im-portance of lands for indigenous peoples’ physical survival, contemporary legal standards emphasize other aspects, such as the cultural importance of these lands for indigenous peoples to exist as such.46 Consistently, advance-ments in the comprehension of the matter determine that any project affect-ing indigenous peoples’ lives must take their rights into account, even if the project is not located within their lands.47 This contemporary understanding undermines the Brazilian government’s claims that just because the dam and its reservoir are to be located away from indigenous peoples’ demarcated habitats, its construction will have no adverse effects on them.48 The blocking of the river’s waters and the deviation of up to 80 percent of its flux through two concrete canals that will cut through the Amazon forest is predicted to have some ascertainable impacts. One of the foreseeable outcomes of the project is the substantive reduction of the water flow downstream in a region known as the Volta Grande (Big Bend) where two indigenous com-munities rest by the Xingu’s shores.49 A water flow reduction of that size will clearly have a direct impact on these communities, as they are highly dependent upon the river. A group of thirty-eight international and national

44. Chief Justice Menezes de Direito of the Brazilian Supreme Federal Tribunal in his judgment in Raposa Serra do Sol case stated: “There is no Indian without land. The relationship with the ground is the characteristic mark that is the essence of the Indian. Hence the importance of the ground to the guarantee of other rights, all linked, one way or another, to the land.” S.T.F., No. 3388, Relator: Carlos Britto, 19.03.2009, 2375–1, Diario do Judiciario Electronico [D.J.e], 25.09.2008, (Braz.) [hereinafter Raposa Serra do Sol]. See also Chief Justice Celso de Mello in id. at 20; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, Inter-Am. Ct. H.R.(ser. C) No. 79, (31 Aug. 2001). [hereinafter Awas Tingni].

45. See the out-dated Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, adopted 5 June 1957 (ILO No. 107).The need for such an evolution had been pointed out by Erica-Irene Daes in her 1999 study. See Working Paper on the Relationship and Distinction, supra note 42, ¶ 10.

46. See, e.g., constituição fEDEral, art. 231; ILO Convention 169, supra note 38, art. 13.1; Declaration on Indigenous Peoples, supra note 39, pmbl.

47. CEACR, Individual Observation concerning Indigenous and Tribal Peoples Convention, 1989 (No. 169) Guatemala, ¶ 5, ILO Doc. No. 062007GTM169 (2007); stefania Errico, The Controversial Issue of Natural Resources: Balancing States’ Sovereignty with Indig-enous Peoples’ Rights, in REflEctions on tHE un DEclaration on tHE rigHts of inDigEnous PEoPlEs 329, 348 (stephen allen & alexandra Xanthaki eds., 2011).

48. Supra note 8, and accompanying text. 49. Indigenous Communities Application for Precautionary Measures, supra note 5, at 2.

The indigenous communities living in this area are called Juruna and Arara.


independent specialists who assessed the Belo Monte construction called attention to this impact.50 Other evident adverse effects not addressed by the government are the “substantial losses of aquatic and terrestrial fauna.”51 These losses will have a definite negative impact on the indigenous peoples’ hunting and fishing activities.52 Moreover, the studies conducted by the gov-ernment predict an influx of 100,000 people to the region, while the dam project will only be capable of employing a maximum of 19,000 people.53 The lack of opportunity is likely to result in the invasion of a large number of job seekers onto indigenous peoples’ lands who may engage in illegal logging activities or settlement.54

These are only some of the examples illustrating that, despite the fact that the dam and its reservoir will not be located within indigenous peoples’ demarcated lands, the impacts of the Belo Monte project will directly and adversely affect these areas along with the indigenous peoples living within them.55 The Brazilian government, although arguing otherwise, is clearly aware that the interconnectivity of indigenous peoples’ lands and other rights is such that the project will surely affect them. In 2002, Chief Justice Marco Aurélio of the Supreme Federal Tribunal assessed the new version of the study on which the project’s Bill was based, and asserted that “the designed deviation on the Xingu’s River Big Bend directly impacts on the Paquiçamba indigenous area.”56 In addition, the very legislative decree that passed the Belo Monte Bill into law highlights the need to take affected indigenous peoples of the region into account before construction begins.57 Furthermore, the government admits that it tried to establish a dialogue with the indigenous communities that it considered would be affected by the project.58

50. PainEl DE EsPEcialistas, análisE crítica Do EstuDo DE iMPacto aMBiEntal Do aProvEitaMEnto HiDrE-létrico DE BElo MontE 11 (2009).

51. Diamond & Poirier, supra note 14, at 26. 52. Id. at 26–27; PainEl DE EsPEcialistas, supra note 50, at 46, 175. 53. Federal Prosecutor’s Office claim, 9th District Court of the State of Pará, Ministério Público

Federal v. Norte Energia S/A case, judgment pending, No 0018026-35.2011.4.01.3900, at 8.

54. Id.; Indigenous Communities Application for Precautionary Measures, supra note 5, at 24-26.

55. Besides the two communities mentioned above, Juruna and Arara, the project is consid-ered to be capable of adversely affecting at least eight other indigenous communities. See Indigenous Communities Application for Precautionary Measures, supra note 5; IACHR Commission’s Request to Government, supra note 28. See Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Addendum: Report on the Situation of Human Rights of Indigenous Peoples in Brazil, GAOR, Hum. Rts. Council, ¶ 154, U.N. Doc. A/HRC/12/34/Add.2 (2009) (by James Anaya) [hereinafter Report on the Situation of Human Rights of Indigenous Peoples in Brazil].

56. S.T.F. (Braz. Supreme Federal Tribunal), União v. Tribunal Regional Federal da 1ª Região, Monocratic decision by Chief Justice Marco Aurélio (2002), No. 2604 (Pet/PA).

57. See Braz. Legislative Decree No. 788, supra note 17, art. 2, § 3. 58. IACHR Response from State of Braz., supra note 8, ¶¶ 35–38.


As evidenced, the deep connection between indigenous peoples and their lands form an interconnected web of rights that can easily be disturbed and violated by projects such as Belo Monte. The compartmentalization of these rights into categories such as self-determination, property, and culture surely does not reflect the reality of the complex interconnectivity that indigenous peoples’ rights present. As Daes noted in her study, a different conceptual framework would be necessary in order to understand the singularities of indigenous peoples’ reality.59 However, the current operational human rights system has the International Bill of Human Rights as its main framework,60 and the lack of participation of indigenous peoples in its development, coupled with the failure to give the due attention to indigenous peoples’ particular circumstances, resulted in an inappropriate categorization of rights dealing with this specific subject.61 The following sections maintain this compartmentalization only to the extent possible,62 even though the inextricable overlapping of indigenous peoples’ rights make such a frame-work inadequate to analyze this optimal example of the true meaning of the indivisibility and interdependency of human rights.63

II. INDIGENoUS PEoPLES’ SUBSTANTIVE RIGHTS

A. Indigenous Peoples’ Right to Self-Determination

As mentioned previously, in the late 1980s and early 1990s Brazil aban-doned its outdated policy of assimilation and enacted legislation determin-ing that indigenous distinctiveness must be respected.64 Article 231 of the

59. Working Paper on the Relationship and Distinction, supra note 42, ¶ 10. 60. asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in EconoMic, social

anD cultural rigHts 9 (Asbjørn Eide, et al. eds., 2d ed. 2001). 61. It should be noted that the active participation of indigenous peoples on the formulation

of the United Nations Declaration on the Rights of Indigenous Peoples does not take away the fact that the instrument follows the same conceptual framework as that which constitutes the International Bill of Human Rights.

62. Kingsbury notes that indigenous peoples claims may fall into several categories at once, “and that the totality of these claims as a genre cannot and should not be understood as belonging exclusively to any one or other category.” Benedict Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law, 34 n.y.u. J. int’l l. & Politics 189, 191–92 (2001–2002).

63. See JéréMiE GilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law: froM victiMs to actors, at xx (2006). See also Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331, § 5 (entered into force 27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969).

64. Sara G. Moore & Maria C. Lemos, Indigenous Policy in Brazil: The Development of Decree 1775 and the Proposed Raposa/Serra do Sol Reserve, Roraima, Brazil, 21 HuM.rts. Q. 444, 445 (1999).


1988 national Constitution determines that “Indians shall have their social organization, customs, languages, creeds and traditions recognized.”65 None-theless, after a country visit to Brazil, Special Rapporteur Anaya stated that “despite the[se] notable advances . . . indigenous peoples’ human rights, beginning with their fundamental right to self-determination, have yet to be fully realized.”66 In fact, indigenous peoples’ right to self-determination is not recognized by national legislation. Still, it could be argued that an in-terpretation, combining paragraph 2 of Article 5 of the national Constitution and Common Article 1, which is binding on Brazil, would impose on the state the obligation to recognize this right to “all peoples.”67 Paragraph 2 of the aforementioned constitutional article states, “The rights and guarantees expressed in this Constitution do not exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party.”68

As Alexandra Xanthaki notes, the UN Human Rights Committee has al-ready clarified that “indigenous peoples should be considered beneficiaries”69 of Article 1 of the International Covenants.70 The Inter-American Court on Human Rights has also considered Article 1 common to the International Covenants as applicable to indigenous peoples.71 Hence, pursuant to the above method of interpretation,72 the Brazilian legal system could be regarded as contemplating the right of indigenous peoples to self-determination be-cause it derives “from international treaties in which the Federative Republic of Brazil is a party.”73 However, the Supreme Federal Tribunal in Raposa Serra do Sol highlighted that the Brazilian Constitution does not admit such a reading. The Tribunal held that international treaties are only applicable when they are in conformance with the constitutional order and that when the Constitution makes reference to peoples, it does so in order to address the country as a whole.74 Therefore, the Court emphatically underscored that

65. constituição fEDEral, art. 231. 66. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note

55, ¶ 21. 67. ICESCR, supra note 35, art. 1; ICCPR, supra note 36, art. 1 (common art.). 68. constituição fEDEral, art. 5, § 2. 69. alEXanDra XantHaki, inDigEnous rigHts anD tHE unitED nations stanDarDs: sElf-DEtErMination,

culturE anD lanD 259 (2007). 70. See, e.g., Consideration of Reports submitted by States Parties under Article 40 of the

Covenant, Concluding Observations of the Human Rights Committee, Hum. Rts. Comm., 65th Sess., ¶ 8, UN Doc. CCPR/C/79/Add. 105 (1999).

71. Saramaka People & Suriname Case, 2007 Inter-Am. Ct. H. R., (ser. C). No. 172, ¶ 93 (28 Nov. 2007).

72. For the possibility of such method of interpretation in relation to constituição fEDEral, art. 5, §2, see flavia PiovEsan, DirEitos HuManos E o DirEito constitucional intErnacional 91–92 (7th ed. 2006); Chief Justice Celso de Mello’s opinion in constituição fEDEral coMEntaDa E lEgislação constitucional 199 (Nelson Nery Jr. & Rosa M. A. Nery, eds., 2009).

73. constituição fEDEral, art. 5, § 2. 74. Raposa Serra do Sol, supra note 44, ¶¶ 5, 7. This interpretation does not conform to the

Vienna Convention, supra note 63, art. 27, which provides that a state “may not invoke


indigenous peoples do not have legal grounds to be recognized as peoples or even nations in Brazil.75

This conservative position of the Supreme Court can perhaps be ex-plained by the peculiarities of the situation it was faced with in Raposa Serra do Sol. In this case, the Tribunal had to assess the constitutionality of the demarcation of indigenous lands in the state of Roraima.76 These lands corresponded to almost half of the territory comprising the northernmost state of the Federal Republic of Brazil, encompassing Roraima’s borders with Venezuela and Guyana.77 The risk of recognizing the demarcation of such a broad part of the country, especially in such a strategic region, was emphasized by the Armed Forces, who alleged that the security of the state would be compromised in the event that the Court decided in favor of de-marcation.78 Environmentalists and NGOs in the region were reported to be acting in the interest of other countries that had their eyes on the Amazon.79 Chief Justice Marco Aurélio deemed it suspicious that so many NGOs were interested in helping indigenous causes in the Amazon while so few paid attention to the poor situation of Brazilians in the country’s northeast region.80

For these reasons, legitimate or not, the Court expressed a distinct fear of secessionism in its judgment. Hence, it deemed it suitable to assert that by ruling in favor of the demarcation, there were no legal grounds for indig-enous people to consider that they had a right to self-determination, which was regarded by the vast majority of the judges to imply the basis for claims that could threaten the territorial integrity of the country.81 The judgment, therefore, carefully explains that terms such as “peoples” and “territories,” which could consequently be taken to signify a right to self-determination, were not contemplated by the Constitution in relation to indigenous com-munities.82 By asserting that those terms were inapplicable to indigenous

the provisions of its internal law as justification for its failure to perform a treaty.” The duty falls upon Brazil to establish the legality, as treaties are instruments entered into by states in good faith.

75. Raposa Serra do Sol, supra note 44, ¶ 5.2. It should be emphasized that the ILO Con-vention 169, which is binding on Brazil, clarifies that “the use of the term peoples in t[he] Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.” See ILO Convention 169, supra note 38, art. 1.3.

76. See Moore & Lemos, supra note 64, at 456. 77. Id. 78. Id. at 451. 79. See Judgment of Chief Justice Marco Aurélio, Raposa Serra do Sol, supra note 44, ¶¶

41–54. 80. Id. 81. See, e.g., the Judgments of Chief Justices: Carlos Britto, ¶¶ 16–19, 22–27; Menezes de

Direito, ¶¶ 38–41; Cezar Peluso, ¶¶ 3–4; Marco Aurélio, ¶¶ 41–54, Raposa Serra do Sol, supra note 44, ¶¶ 3–4, 16–19, 22–27, 38–54.

82. Id. ¶¶ 5, 7.


peoples, the Court considered the ruling to counter any threat of secession posed by the indigenous peoples.83

Due to the government’s misguided perceptions of the meaning of the right to self-determination, as expressed through the aforementioned judgment of its Supreme Federal Tribunal, the right is not recognized as applicable to the indigenous peoples of Brazil.84 Anaya’s analysis seems to fit this case perfectly: “At bottom, the resistance toward acknowledging self-determination as implying rights for literally all peoples is founded on the misconception that self-determination in its fullest sense means a right to independent state-hood.”85 The Brazilian government’s idea of self-determination, expressed through the aforementioned judgment, confuses the meaning of the right with a remedy that was deemed suitable to address its violation in the past,86 failing to recognize the evolutions on the interpretation of how such a right can be enjoyed.87 Secession was the appropriate remedial option to deal with colonialism—a system that in the UN era was no longer accepted due to the “impermissible territorial expansion of governmental authority.”88 However, the interpretation of forms of enjoyment of self-determination was adapted later to confront the problem of regions ruled by racist regimes.89 Although secession was still considered a valid remedial option, the emphasis of the interpretation was on the enjoyment of equality and of representative governments.90 In the context of indigenous peoples, Joshua Castellino and Jérémie Gilbert assert that the option of secession does not address their needs.91 They are not in a geographical or economic situation that would make secession attractive and the result of an unlikely independence would surely be detrimental to them.92

Thus, it is clear that self-determination in the present context demands yet another evolutionary interpretation on how the right can be enjoyed.93

83. Id. ¶ 7. 84. For a source confirming the Brazilian government`s failure to acknowledge indigenous

peoples’ right to self-determination, see Hans-Joachim Heintze, Direitos Humanos Co-letivos, in Manual Prático DE DirEitos HuManos intErnacionais 304 (Sven Peterke ed., 2009).

85. JaMEs s. anaya, inDigEnous PEoPlEs in intErnational law 80 (2000). 86. Id. 87. Anne-Christine Bloch, Minorities and Indigenous Peoples, in EconoMic, social anD cultural

rigHts, supra note 60, at 374–76. 88. anaya, inDigEnous PEoPlEs, supra note 85, at 82. 89. Geoff Gilbert, Autonomy and Minority Groups: A Right in International Law?, 35 cornEll

int’l l. J. 307, 309 (2001–2002). 90. Declaration of Principles of International Law Concerning Friendly Relations and Co-

operation Among States in Accordance With the Charter of the United Nations, adopted 24 Oct. 1970, G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., pmbl, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292 (1970).

91. Joshua Castellino & Jérémie Gilbert, Self-Determination, Indigenous Peoples and Minori-ties, 3 MacQuariE l. J. 175 (2003).

92. XantHaki, inDigEnous rigHts, supra note 69, at 168. 93. Quane calls attention to that fact. See Helen Quane, The UN Declaration on the Rights

of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?, in REflEctions on tHE un DEclaration, supra note 47, at 276.


In order to do so, it seems appropriate to question what is considered to be the internal and external aspects that compose self-determination. Anaya has criticized this external and internal dichotomy of self-determination for being “premised on the conception . . . of a limited universe of ‘peoples’ comprising mutually exclusive spheres of community (i.e. states).”94 However, Xanthaki explains that the utilization of these two spheres of the right does not necessarily imply the denial of the wide variety of human associations of today’s world.95 Moreover, the dichotomy is still largely utilized by academic experts96 and was endorsed by both states and indigenous peoples through the approval of the UNDRIP.97

B. The External Aspect

The external aspect of the right to self-determination has often been equated to secession.98 This implies that if indigenous peoples were to have their right to self-determination recognized, it would be as a qualified one—a right to the internal aspect only.99 It is true that current international law limits the possibility of indigenous peoples to claim secession. Such a claim could be made only as a last resort after all diplomatic instances fail and the govern-ment severely discriminates against the indigenous group.100 Nonetheless, as Xanthaki puts it, equating this aspect of the right to secession “disregards the raison d’être for human rights: human rights are established to protect human beings, rather than states. . . . [S]elf-determination is a peoples’ right and not a government’s right.”101 An evolutionary comprehension of the right to self-determination denotes that its external aspect can be enjoyed in many other ways, such as indigenous peoples’ autonomous representation in the

94. anaya, inDigEnous PEoPlEs, supra note 85, at 81. 95. XantHaki, inDigEnous rigHts, supra note 69, at 169–73. 96. See, e.g., id. at 157–59; Allan Rosas, The Right of Self-Determination, in EconoMic, social

anD cultural rigHts, supra note 60, at 111–18; Heintze, supra note 84, at 210. 97. While the Declaration on Indigenous Peoples, supra note 39, arts. 3–4, recognize the

internal aspect of the right to self-determination, Article 36 recognizes elements included on the external aspect of self-determination. See Declaration on Indigenous Peoples, supra note 39, art. 36. See infra notes 108–112, and accompanying texts.

98. XantHaki, inDigEnous rigHts, supra note 69, at 166. 99. Id. at 167. 100. Gilbert, Autonomy and Minority Groups, supra note 89, at 333. See also Alexandra

Xanthaki, The Right to Self-Determination: Meaning and Scope, in MinoritiEs, PEoPlEs anD sElf-DEtErMination 15, 23–24 (Nazila Ghanea, & Alexandra Xanthaki eds., 2005) (discussing more requirements that make secession an unlikely possibility for indigenous peoples).

101. Xanthaki, The Right to Self-Determination, supra note 100, at 23.


international arena in matters related to them,102 and the development of these peoples’ contacts and cooperation across states’ borders.103

Nonetheless, the Brazilian Supreme Court has interpreted this very limited part of the external aspect of the right to self-determination, which is secession, to mean the right as a whole.104 Due to its misconception of the right to self-determination, in trying to prevent giving a legal basis to any indigenous peoples’ claim of secession, the Court ended up denying them the enjoyment of the other possible elements of the external aspect of the right, but also of the internal one. Chief Justices Gilmar Mendes and Carmen Lúcia pointed to this flaw in the majority’s interpretation of the right.105 While Mendes asserted that in the case of indigenous peoples, it is only the internal aspect of the right to self-determination that should be applicable,106 Lúcia seems to have indicated that even the external aspect of their right could be recognized, as in her understanding this should not be taken as a threat to the state’s sovereignty.107 Although Lúcia’s position shows the most thorough understanding of the right, Mendes’s view seems to be enough to address issues related to disagreements caused by projects such as the Belo Monte project.

c. The Internal Aspect

The internal aspect of the right to self-determination in the present context signifies, at its core, a right to meaningful participation in matters that are

102. Indigenous peoples became true actors in the international arena and stand on almost equal footing to states when dealing with subjects related to them. See Erica-Irene Daes, The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal, in REflEctions on tHE un DEclaration, supra note 47, at 11.

103. The Declaration determines: “Indigenous peoples, in particular those divided by in-ternational borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.” Declaration on Indigenous Peoples, supra note 39, art. 36.

104. See supra note 81, and accompanying text.105. See Judgment of Chief Justice Gilmar Mendes, Raposa Serra do Sol, supra note 44, ¶

44.106. Id.107. In order to repel the fears of secession, Lúcia mentions that Article 46 of the United

Nations Declaration on the Rights of Indigenous Peoples guarantees the territorial integrity, political unity, and sovereignty of all states. See Judgment of Chief Justice Carmen Lúcia, id., at ¶¶ 38–41. It should be mentioned that Chief Justice Menezes de Direito mistakenly identifies indigenous peoples’ right to participate on discussions on the international arena as corresponding to the internal aspect of self-determination, which he deems admissible. Hence, even though unintentionally, de Direito recognizes the external right of indigenous peoples to self-determination. See Judgment of Chief Justice Menezes de Direito, id. ¶¶ 38–39.


in the indigenous peoples’ interest.108 Such participation could materialize in various forms depending on the degree of control indigenous peoples are given over “affairs of special concern to them.”109 This control should not be interpreted as a basis that could potentially destabilize the political unity of the country in which it is exercised. Positions based solely on Article 3 of the UNDRIP,110 which claim that the government should recognize that indigenous peoples should have total control over matters affecting them, advocate for a kind of autonomy that risks causing a clash between the will of such peoples and state sovereignty.111 This view disregards the general rules of interpretation112 and is not considered appropriate by states who voted for the Declaration.113 A more cohesive position is one that applies a systematic interpretation and takes what is determined by Article 4 of the Declaration into account. Hans-Joachim Heintze points to the fact that Article 3 of the Declaration deals with the right to self-determination in its full meaning, while Article 4 determines that indigenous peoples have rights that are already included in the internal aspect of the right self-determination.114 He explains that Article 4 should be interpreted as lex specialis in relation to Article 3, which would mean that the internal aspect of the right to self-determination for indigenous peoples is confined to the limitations imposed by Article 4.115 Article 4 establishes that “indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in mat-ters relating to their internal and local affairs.”116 Coupled with Article 46

108. Quane, supra note 93, at 282–83. Anaya also emphasizes the importance of indigenous peoples’ meaningful participation in matters of their interest in order to realize their right to self-determination. See Anaya, inDigEnous PEoPlEs, supra note 85, at 82.

109. XantHaki, inDigEnous rigHts, supra note 69, at 164.110. The Declaration reads: “Indigenous Peoples have the right to self-determination. By

virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Declaration on Indigenous Peoples, supra note 39, art. 3.

111. For an example of such claims, see gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErna-tional law, supra note 63, at 246–47.

112. The Vienna Convention on the Law of the Treaties determines: “A treaty shall be inter-preted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (emphasis added). Vienna Convention, supra note 63.

113. Brazil, for example, when voting in favor of the Declaration, underscored “that the exercise of the rights of indigenous peoples is consistent with respect for the sover-eignty, political unity and territorial integrity of the States that they inhabit.” Tribute to the memory of Ms. Angie Brooks-Randolph, President of the twenty-fourth session of the General Assembly, and Mr. Gaston Thorn, President of the thirtieth session of the General Assembly. U.N. GAOR, 61st Sess.,107th mtg, at 26, U.N. Doc. A/61/PV.107 (2007). It is also conceded that the obligations for a state under a declaration fall short of those in a treaty.

114. Declaration on Indigenous Peoples, supra note 39, arts. 3–4.115. Heintze, supra note 84, at 319.116. Declaration on Indigenous Peoples, supra note 39, art. 4. ILO Convention 169, supra

note 38, pmbl, is even more restrictive and only recognizes the aspirations of these


of the same instrument, it is clear that the degree of control that should be recognized was never intended to threaten states’ overall political control over their territories. Nonetheless, it is far from clear the kind—political, cultural, economic—or degree of autonomy that should be recognized. The lack of a legal definition117 and the differing practices of states118 fail to bring clarity to the matter. However, it is clear that this aspect of the right to self-determination should minimally oblige the state to establish a dialogue with indigenous peoples when contemplating policies that could affect them,119 and that their opinions should affect decisions related to such policies.120

From the analysis above, it seems evident that Anaya’s assessment of the current status of indigenous peoples’ right to self-determination in Brazil was an understatement.121 For this right to be “fully realized”122 it needs to be recognized first. In Raposa Serra do Sol, the judicial branch of Brazil completely denied indigenous peoples’ right to self-determination, as the majority of the Court mistakenly equated it to a right to secession.123 In the case of Belo Monte, the legislative and the executive branch denied them the enjoyment of the internal aspect of the right by not seeking to establish a dialogue in relation to a project that will surely adversely affect their lives.124 If a meaningful dialogue had been established, taking the considerations of the indigenous peoples into account while seeking to address problems highlighted by them, Brazil may not be facing such hardship on the national and international arena.125 Castellino’s assertion that the recognition of in-digenous peoples’ right to self-determination would be beneficial to both them and the state in which they are located seems clearly to apply to the present case.126

It should be noted, however, that the current position of the government towards the recognition of this right is not likely to change in the foreseeable

peoples to exercise their right to self-management “within the framework of the States in which they live.” See intErnational laBour organization, ilo convEntion on inDigEnous anD triBal PEoPlEs, 1989 (no.169): a Manual 10 (2003).

117. Neither ILO Convention 169 nor the Declaration on Indigenous Peoples clarifies the meaning of autonomy, self-government, or self-management.

118. For some examples on different degrees of autonomy recognized by states, see XantHaki, inDigEnous rigHts, supra note 69, at 165.

119. Supra note 108, and accompanying text.120. On effective participation, see Section IV, infra.121. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note

55.122. Id.123. Supra note 81, and accompanying texts.124. Supra notes 14, 19, 50, 51, 52, 53, and accompanying texts.125. On the pressure faced by Brazil due to the construction of Belo Monte, see supra notes

20–30, and accompanying texts. 126. Joshua Castellino, Conceptual Difficulties and the Right to Indigenous Self-Determination,

in MinoritiEs, PEoPlEs anD sElf-DEtErMination, supra note 100, at 67.


future. The judgment of Chief Justice Carlos Britto in Raposa Serra do Sol, which was followed by the majority of the Tribunal,127 applied an interpre-tation that dismissed the applicability of this right to indigenous peoples based on where their rights are located in the national Constitution.128 As their rights are not located in Title III (The Organization of the State), he consequently held that indigenous peoples could never claim any kind of autonomy,129 which is only recognized as applying to the union, the states, the municipalities, and the federal district composing the Federative Republic of Brazil.130 Such an understanding creates a barrier to the evolution of the interpretation of human rights, disregarding the fact that rights are social phenomena that need to adapt to “current living conditions”131 and not to function as dated formulas that are rigidly applied to all cases ad eternum.

The adoption of a legally binding instrument explicitly recognizing in-digenous peoples’ right to self-determination could potentially push for this interpretation to be abandoned. While it is true that international bodies have interpreted common Article 1 to apply to indigenous peoples,132 it could be argued that their positions, although carrying authoritative weight, are not binding.133 In any case, the Brazilian Supreme Court already expressed its reluctance to accept such a reading.134

As for the UNDRIP, the government’s position is in accordance with the view of the majority of academics, which asserts that a General Assembly resolution cannot be considered binding on states that have signed it.135 Opinions advocating for the recognition of this Declaration as a binding instrument should be taken with great care.136 General Assembly resolutions are important instruments in the lawmaking process of the international arena and build momentum for the eventual adoption of a legally binding

127. Raposa Serra do Sol, supra note 44, ¶¶ 12–15.128. See Judgment of Chief Justice Carlos Britto, id. ¶ 24.129. Id.130. constituição fEDEral, art. 18.131. Awas Tingni, supra note 44, ¶ 146. 132. Supra notes 70–71, and accompanying texts.133. XantHaki, inDigEnous rigHts, supra note 69, at 200, 241.134. Supra notes 74–75, and accompanying texts.135. See, e.g., Castellino, supra note 126, at 67–86; Emmanuel Voyiakis, Voting in the Gen-

eral Assembly as Evidence of Customary International Law? in rEflEctions on tHE un DEclaration, supra note 47, at 209; Stephen Allen, The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project, in REflEctions on tHE un DEclaration, supra note 47, at 225.

136. Gilbert and Doyle, for example, argue that the Declaration only recognizes pre-existent indigenous peoples’ rights. See Jérémi Gilbert, & Cathal Doyle, A New Dawn over the Land: Shedding Light on Collective Ownership and Consent, in REflEctions on tHE un DEclaration, supra note 47, at 326. Burger, on the other hand, asserts that even though the Declaration is not binding, its principles are. See Julian Burger, The UN Declaration on the Rights of Indigenous Peoples: From Advocacy to Implementation, in REflEctions on tHE un DEclaration supra note 47, at 55.


instrument.137 A strong advocacy strategy that tries to impose such resolutions as binding legal instruments, although well intentioned, could potentially backfire and prevent states from adopting them in the future.138

III. INDIGENoUS PEoPLES’ RIGHT To PRoPERTY

Throughout history, indigenous peoples’ right to property was trampled upon by civilizations that disregarded their connections to their lands.139 In Brazil, the result of such action was the reduction of an indigenous population from 5 million to 700,000 persons and the disappearance of more than 1,100 languages spoken by ethnicities that were extinguished.140 Hence, Asbjørn Eide seems to be correct when he emphasizes the importance of the right to property in the following terms: “On the one hand, this right serves as a basis for entitlements which can ensure an adequate standard of living, while on the other hand it is a basis of independence and therefore of freedom.”141 For indigenous peoples, the right to property over the lands they traditionally occupy and utilize carries great importance. As seen above, these peoples’ right to land is interconnected with every other human right to which they are entitled.142 The legal provisions by which Brazil is currently bound not only recognize these peoples’ right to land property, but also its communal character.143 While Article 17.1 of the UDHR clarifies that “[e]veryone has the right to own property alone as well as in association with others,”144 Article 14 of the ILO Convention 169 and Article 26 of the UNDRIP refer to property rights belonging to these peoples, expressly recognizing its collective character.145 Article 21.1 of the ACHR, on the other hand, makes no men-

137. Voyiakis calls attention to the importance of the “softness” of such resolutions, which should not be considered as committing states that vote in favor of them. See Voyiakis, supra note 135, at 220.

138. Voyiakis emphasizes the possibility of such an outcome. See id. This kind of strategy has already been criticized by the Brazilian Supreme Tribunal. See, for instance, the vote of Chief Justice Menezes de Direito, with which the majority agreed in Raposa Serra do Sol, supra note 44, ¶¶ 39–40.

139. The Declaration recognizes that “indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources.” Declaration on Indigenous Peoples, supra note 39, pmbl.

140. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note 55, ¶¶ 7–8.

141. Eide, supra note 60, at 18.142. Supra notes 41–46, and accompanying texts.143. The importance of recognizing this character was emphasized by the Inter-American

Court of Human Rights: “among indigenous peoples there is a communitarian tradition regarding a communal form of property of the land, in the sense that ownership of the land is not centred on an individual, but rather on the group and its community.” Awas Tingni, supra note 44, ¶ 149. This understanding is in fine tune with the respect that is due to these peoples’ traditions and beliefs. See id.

144. UDHR, supra note 33, art. 17.145. ILO Convention 169, supra note 38, art. 14; Declaration on Indigenous Peoples, supra

note 39, art. 26.


tion as to whether such a right could be enjoyed in a collective manner.146 Nonetheless, the Inter-American Court of Human Rights explained in Awas Tingni that by combining Article 21.1 with Article 29(b) of the instrument, the American Convention clearly recognized the communal character of indigenous peoples’ right to property.147

The Brazilian Federal Constitution seems to be in compliance with these international standards and also guarantees indigenous peoples’ collective right to land property. Article 231 recognizes indigenous peoples’ original rights over the lands they have traditionally occupied.148 Paragraph 1 of this article clarifies that the areas utilized for their “productive activities . . . indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction, accord-ing to their uses, customs and traditions”149 are included in this concept of original property rights, to which they are entitled.

By including such a broad area as composing indigenous peoples’ property and emphasizing the original character of the right, the national legislation tries to redress the historical injustices committed against these peoples and seeks to preserve the richness of their cultural diversity.150 It is through these lenses that paragraph 2 of Article 231 should be looked at. This paragraph establishes that “the lands traditionally occupied by Indians are intended for their permanent possession and they shall have the exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein.”151 While at first sight, the provision might be seen as a limitation of indigenous rights to property, for they only have possession and usufruct, but not owner-ship, over the lands, it in fact exists to strengthen such a right.152 In Raposa Serra do Sol, the Federal Supreme Tribunal explained that indigenous peoples’ property rights over the lands they traditionally occupy are sui generis in nature, and cannot be equated to what are normally the concepts of usu-fruct and possession.153 Under Brazilian civil law, usufruct and possession are temporary property rights, which can eventually be terminated by the owner.154 However, under Brazilian constitutional law, even though the state

146. American Convention, supra note 34, art. 21.1.147. Awas Tingni, supra note 44, ¶ 148.148. constituição fEDEral, art. 231.149. Id. art. 231, § 1.150. Luiz Armando Badin, Sobre o Conceito Constitucional de Terra Indígena, 190 arQuivos

Do Ministério Da Justiça 127 (2006).151. constituição fEDEral, art. 231, § 2.152. All indigenous peoples’ lands are owned by the Brazilian state. See constituição fEDEral,

art. 20(XI).153. See the Judgment of Chief Justice Carlos Britto, which was followed by the majority of

the Court in Raposa Serra do Sol, supra note 44, ¶ 25.154. 5 carlos r. gonçalvEs, DirEito civil BrasilEiro—DirEitos Das coisas 40–43, 205–07, 444–58

(2006).


is the owner of indigenous peoples’ lands, it cannot alienate or dispose of them, for indigenous property rights are not subject to any limitation.155 Acts with a view to occupy, possess, or establish domain over these lands are null and void.156 Therefore, Brazil’s land tenure legislation appears in line with what is expected from states in order to protect indigenous peoples’ right to property. This is evidenced by the following examination made by the ILO Committee of Experts:

The ILO’s experience with indigenous and tribal peoples has shown that when communally owned indigenous lands are divided and assigned to individuals or third parties, the exercise of their rights by indigenous communities tends to be weakened and generally end up losing all or most of the lands, resulting in a general reduction of the resources that are available to indigenous peoples when they keep their lands in common.157

Marco A. Barbosa, therefore, correctly affirms that indigenous peoples’ right to possess the lands in Brazil is even stronger than the right to own them.158 This constitutional system is the legal basis that guarantees indigenous peoples’ exclusive property right over 13 percent of Brazil’s lands.159 While the same cannot be said in relation to the state’s obligation to protect and fulfill indigenous peoples’ right to lands, by legally assuring such exclusivity over properties, the national Constitution seems to be in compliance with the obligation to respect this aspect of indigenous peoples’ rights.

In relation to its obligation to fulfill such a right, Article 231 of the 1988 Brazilian Constitution clarifies that the state has the responsibility of demarcating indigenous peoples’ lands.160 Article 67 of the Temporary Constitutional Provisions Act determined that the state had to “conclude the demarcation of the Indian lands within five years of the promulgation of the Constitution.”161 However, as noted by the UN Human Rights Committee, the demarcation is still not completed.162 The indigenous land, Cachoeira Seca,

155. constituição fEDEral, art. 231, § 4.156. Id. art. 231, § 6.157. Report of the Committee set up to Examine the Representation Alleging Non-Observance

by Peru of the Indigenous and Tribal People’s Convention, 1989 (No. 169), General Confederation of Workers of Peru (CGTP), No. 161997PER169 (1998) (emphasis added).

158. Marco Antonio Barbosa, Os Povos Indígenas e as Organizações Internacionais: Insituto do Indigenato no Direito Brasileiro e Autodeterminação dos Povos Indígenas, 1 rEvista ElEtrônica História EM rEflEXão 7 (2007). See also vote of Chief Justice Celso de Mello in Raposa Serra do Sol, supra note 44, ¶¶ 17–18.

159. IACHR Response from State of Braz., supra note 8, ¶ 11.160. constituição fEDEral, art. 231.161. Id. Temporary Constitutional Provisions Act, art. 67.162. Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant,

Concluding Observations of the Human Rights Committee: Brazil, U.N. GAOR, Hum. Rts. Comm., 85th Sess., ¶6, U.N. Doc. CCPR/C/BRA/CO/2 (2005); 9th District Court of the State of Pará, Ministério Público Federal v. Norte Energia S/A case, supra note 53, at 12.


for example, is an area that would be adversely affected by the construction of Belo Monte,163 and it still lacks demarcation. As already asserted by the Public Prosecutor’s Office, the government’s failure to demarcate these lands prevents the state from protecting the areas and, therefore, the indigenous peoples that possess and utilize them.164 On this subject, Daes points to the fact that “purely abstract or legal recognition of indigenous lands . . . can be practically meaningless, unless the physical identity of the property is determined and marked.”165

Nonetheless, even the above-mentioned abstract legal protection of indigenous peoples’ lands, which was already deemed in compliance with international standards, can be considered flawed and therefore insuffi-cient to protect such a right adequately. When paragraph 2 of Article 231, which guarantees the indigenous peoples’ land rights protection,166 is read in conjunction with paragraphs 3 and 6 of the same constitutional article, the deficiency of the system becomes evident. Paragraph 6 of Article 231 explains that indigenous peoples’ land rights are limited by the “relevant public interest of the Union.”167 In Raposa Serra do Sol, the Supreme Court pointed to the fact that such a legal provision is in compliance with Bra-zil’s international obligations.168 Article 21.1 of the ACHR clarifies that the enjoyment of the right to property is “subordinate[d] . . . to the interest of society.”169 As neither the Brazilian Constitution nor the American Con-vention explain the meaning of the terms “public interest” or “interest of society,” the state’s margin of appreciation seems to be wide.170 Paragraph

163. IACHR Commission’s Request to Government, supra note 28.164. See 9th District Court of the State of Pará, Ministério Público Federal v. Norte Energia S/A

case, supra note 53, at 12. Cachoeira Seca has numerous land invaders and, therefore, conflicts over lands. See id.

165. Special Rapporteur, Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and Their Relationship to Land, Hum. Rts. Council, 53d Sess., Agenda Item 5, ¶ 50, U.N. Doc. E/CN.4/Sub.2/2001/21 (2001) (by Erica-Irene A. Daes). The Brazilian Supreme Court agrees with this assertion. See vote of Chief Justice Carlos Britto which was followed by the majority of the Court in Raposa Serra do Sol, supra note 44, ¶ 30.

166. Supra notes 150–158, and accompanying texts.167. constituição fEDEral, art. 231, § 6.168. See Judgment of Chief Justice Menezes de Direito in Raposa Serra do Sol, supra note

44, ¶ 40.169. See American Convention, supra note 34, art. 21.1.170. It should be emphasized that the ILO Convention 169, supra note 38, art. 7.1, estab-

lishes the rights of indigenous peoples to exercise control over their lands only to the extent possible. Article 16 allows the state to relocate them when necessary. See ILO Convention 169, supra note 38, art. 16.2. The lack of specifications on the meaning of these provisions seems to allow the same kind of interpretation as American Convention, supra note 34, art. 21.1. UDHR, supra note 33, art. 17.2, determines that no arbitrary deprivations shall occur, also allowing for interpretations such as the aforementioned. The Declaration on Indigenous Peoples does not provide for such a limitation of the right. However, it was already argued that its binding effect should be advocated with care and is not accepted by the Brazilian state. See Gilbert & Doyle, supra note 136; Voyiakis, supra note 135, and accompanying text.


3, however, explicitly exemplifies that one such interest is the generation of energy through the exploitation of water resources located on lands utilized by indigenous peoples.171 If such a legal provision is interpreted at the government’s will, any dam construction project, even if unnecessary, could be justified by the public interest reasoning. It is upon this reasoning that the Brazilian government based its strongest argument for opposing the Inter-American Commission’s request to halt the construction of Belo Monte. Even though indigenous peoples may be adversely affected, the project is claimed to be in the interest of the Brazilian society as a whole, promoting national development through which fundamental constitutional objectives, such as the promotion of human dignity and the reduction of inequalities, can be achieved.172 By utilizing this justification, the government makes use of its admittedly wide margin of appreciation provided by national and international legislation. This governmental reasoning is far from innovative.

The Panamanian case of the Chan-75 hydroelectric dam is illustrative. The Government of Panama did not consult indigenous peoples who were going to be negatively impacted by construction of the dam. When reprimanded, the government argued that the project was of imperative public interest for providing a renewable source of energy that would benefit millions of people and contribute to national development.173 It also argued that by reducing the Panamanian reliance on fossil fuels, the dam would minimize Panama’s impact on climate change.174 The similarities are evident between the Brazil-ian and the Panamanian governments’ arguments to build dams adversely affecting indigenous peoples in the name of the public interest. Projects justi-fied on the same basis are so recurrent that Julian Burger identifies them as “modern forms of colonization.”175 However, it is largely accepted that even though such claims might be made, a balance needs to be found “between the burden placed on the individual [in this case, indigenous peoples] and the benefits of the interference for the general public.”176 Catarina Krause suggests two possible paths that can be employed in order to find such a balance: pondering the case in relation to the social function of the property or making a proportionality assessment of the matter.177

171. constituição fEDEral, art. 231, § 3.172. Supra note 19, and accompanying text.173. See Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of

Indigenous People, Addendum: Summary of Communications Transmitted and Replies Received, GAOR, Hum. Rts. Council, ¶ 154, U.N. Doc. A/HRC/12/34/Add.5 (2009) (by James Anaya).

174. Id. ¶ 157.175. Burger, supra note 136, at 48. For more examples, see also Errico, supra note 47.176. Catarina Krause, The Right to Property, in EconoMic, social anD cultural rigHts, supra

note 60, at 203.177. Id.


IV. THE BALANcING PATHS

A deliberation analyzing the social function of land178 could be considered inappropriate because it would be hard to weigh whose interests should prevail—those of the indigenous peoples or those of the rest of the country’s population (assuming that the benefits of Belo Monte would actually be in the interest of the rest of the population and not of a small portion of it).179 Moreover, the Constitutional provision guaranteeing equality among all per-sons180 seems to indicate that any finding based on such a method would be unconstitutional and, in fact, a discrimination against whomever is on the purported losing side.181 Nonetheless, indigenous peoples of Brazil constitute only 0.43 percent of the population and are, therefore, considered a minor-ity.182 This renders such an analysis not only appropriate, but also necessary. In Minority Schools in Albania, the Permanent Court of International Justice clarified that true equality “may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.”183 Equality in law and equality in fact were held to be clearly distinguishable and, in relation to minorities, the Court found that unequal treatment might be necessary in order to guarantee the preservation of the essence of the minority group.184 When choices of a dominant group endanger the non-dominant group’s very existence, it is widely accepted that the latter should be entitled to special rights so as to “ensure equality of circumstances and redress [its] vulnerability.”185 As seen above, the relationship between indigenous peoples and their lands constitutes the essence of their existence as such.186 It is open to the Brazilian courts to interpret the “social function” of land to include the state’s obligation to protect indigenous peoples’ lands through consultation with them.

178. While Item XXII of Article 5 of the Brazilian Constitution guarantees the right to property, Item XXIII determines that every property has to fulfill its social function. See constituição fEDEral, art. 5, items XXII–III.

179. Fearnside believes that this would not be the case, as he seems convinced that if Belo Monte were constructed, the real beneficiaries “would be the construction and consult-ing firms and the Aluminium industry.” Fearnside, supra note 1, at 19.

180. Article 5 determines that: “[a]ll persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviola-bility of the right to life, to liberty, to equality, to security and to property.” constituição fEDEral, art. 5.

181. The constitution clarifies that one of the fundamental objectives of the Republic of Brazil is to promote the well-being of all, without prejudice. Id. art. 3.

182. See Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note 55, ¶ 7, 67. See also Raposa Serra do Sol, supra note 44, ¶ 9.

183. Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6), at 13.

184. Id. at 11.185. XantHaki, inDigEnous rigHts, supra note 69, at 16.186. Supra notes 41–46, and accompanying texts.


Based on the aforementioned line of thought, the vulnerability in which indigenous peoples of Brazil find themselves,187 and the threat that Belo Monte represents to their existence as such, seems to indicate that their opinion on how the property should fulfill its social function must prevail. For this reason, this assessment of the situation seems to prevent the project from, if true equality is to be respected as a fundamental objective, being pursued by the state.188 Nonetheless, granting indigenous peoples’ interests such weight might be considered a step toward a kind of control that approxi-mates autonomy, which the government appears not to be keen to accept.189

Therefore, the proportionality assessment of the matter proposed by Krause seems useful, as both the Brazilian Supreme Federal Tribunal and the Inter-American Court of Human Rights consider it an appropriate man-ner of dealing with such situations.190 Virgílio Afonso da Silva proposes a method of interpretation to assess the legal proportionality of an action that finds support in the Brazilian legal doctrine, including the one followed by the former President of the national Supreme Court, Chief Justice Gilmar Mendes.191 The suitability of this method for the specific case of Belo Monte is uncontestable as it was developed to “be employed especially on cases in which a state’s action, designed to promote the realization of a fundamental right or a collective interest, implicates on the restriction of other or others fundamental rights.”192

Accordingly, the interpretation of the case should be undertaken by looking at the adequacy, necessity, and proportionality (in its strict sense) of the action. First, the interpreter should evaluate the adequacy, analyzing whether the means utilized by the state can be considered fit to achieve the proposed aim.193 Second, by analyzing the necessity of the act, the interpreter engages in a comparative examination by which it is assessed whether there are other means of achieving the same aim that cause less harm.194 Third, in analyzing the proportionality in its strict sense, the interpreter is required to consider whether the importance of the aim to be achieved can justify the intensity by which fundamental right(s) are going to be restricted.195 The order

187. Besides being a minority, many surviving indigenous peoples of Brazil live in poor con-ditions, lack political participation in decision making, and are subject, for example, to violence and discrimination. See Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note 55, ¶ 9.

188. Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (6 Apr.), at 13.

189. See Section I of this article. 190. See Gilmar Mendes, O Princípio da Proporcionalidade na Jurisprudência do Supremo

Tribunal Federal: Novas Leituras, 1 rEvista Diálogo JuríDico 1, 1 (2001); Inter-Am. Court H. R., Saramaka People v. Suriname, supra note 71, ¶ 127.

191. Mendes, supra note 190.192. Virgílio Afonso da Silva, O Proporcional e o Razoável, 798 rEvista Dos triBunais 24 (2002).193. Id. at 36.194. Id. at 38.195. Id. at 40.


of the analysis is extremely important, for there is a subsidiary relationship between adequacy, necessity, and proportionality in its strict sense. If the state’s action is regarded as inadequate, it should be considered unreason-able and there is no need to carry on with the interpretation. Similarly, if the action is deemed adequate but unnecessary, the assessment of the matter stops, for the action must be acknowledged as unjustified.196

In applying this model to Belo Monte’s case, the action of the govern-ment seems to be adequate as by constructing the dam more electricity will be generated, which in turn could be utilized for the pursuance of the constitutional objectives previously mentioned.197 Thus, the means utilized would be able to achieve the proposed aims. However, Felício Pontes Jr., the Public Prosecutor of the state of Pará, who has been involved in filing lawsuits demonstrating the irregularities of the project,198 has consistently shown that alternative means to achieve the same aim are not only avail-able, but would also be financially more advantageous.199 In addition to avoiding environmental and social impacts, the government would spend less money to generate the same amount of energy Belo Monte is expected to be capable of if it employs solar energy exploitation.200 Accordingly, by engaging in a comparative examination, it is clear that Belo Monte fails the necessity test and, as such, should be considered an unjustified project.

Nonetheless, a skeptic might argue that the alternative means indicated by Pontes Jr. could not truly substitute the energy generating capacity of the dam201 or that its monetary cost would surpass the one of Belo Monte.202 Supposing these claims were legitimate, for the sake of argument, the inter-pretation method suggested by Afonso da Silva would require the propor-tionality in its strict sense to finally be analyzed. In order to do so, the other indigenous peoples’ rights—apart from their right to property—that could be restricted by the construction of the dam must be specified. Only then could there be a balancing as to whether the intensity of the restriction on indigenous peoples’ rights could be justified in order to achieve the proposed governmental aims. Hence, the following section of this work seems to be of assistance, as it will try to establish other indigenous peoples’ rights that could be restricted by the project.

196. Id. at 34–35.197. Supra notes 11–13, and accompanying texts.198. constituição fEDEral, art. 129; Pontes, Belo Monte de Violências, supra note 2 and ac-

companying texts.199. Felício Pontes Jr., O custo de Belo Monte, Jornal o gloBo, 18 Apr. 2011.200. Id.201. As seen above, the electric power generating capacity of Belo Monte is highly debatable.

Indigenous Communities Application for Precautionary Measures, supra note 5.202. The Belo Monte dam’s cost is not certain, but the government is expected to spend at

least $31.2 billion, plus indemnifications, and the cost of the deforestation of the dam and reservoir areas. See Pontes, Belo Monte de Violências, supra note 2.


Based on this analysis, it can safely be assumed that even though the national constitutional provisions seem to be in accordance with the inter-national legal instruments to which Brazil is bound, they are inappropriate to protect indigenous peoples’ right to property over their lands in cases such as the construction of the Belo Monte dam. Regardless of conduct-ing an assessment through the social function of the land or through the proportionality of the matter, indigenous peoples’ land property rights are certainly going to be restricted if such projects are carried out.

V. INDIGENoUS PEoPLES’ cULTURAL RIGHTS

Article 1 of the 2001 Universal Declaration on Cultural Diversity clarifies that, as the common heritage of humankind, cultural diversity is as neces-sary for humanity as biodiversity is for nature.203 For this reason, Article 4.1 of ILO Convention 169 determines that special measures are to be taken in order to preserve indigenous peoples’ cultures.204 Accordingly, Brazil has recognized the importance of protecting the richness that these peoples’ cultural diversity represents to the country.205 Therefore, paragraph 1 of Article 215 of the Brazilian Constitution is set to guarantee its legal protection.206 Factually, nonetheless, indigenous peoples’ cultural rights are poorly protected in Brazil.207 Belo Monte is only one case that could serve to illustrate the matter, if the project is continued. By restricting indigenous peoples’ right to property over their lands for the construction of the dam,208 the Brazilian government will inexorably impose adverse impacts on these peoples’ cultural rights, given the fact that the latter are inextricably linked to the former. As such, Anaya and Williams state, “rights to lands and re-sources are property rights that are prerequisites for the physical and cultural survival of indigenous communities.”209 In other words, when indigenous peoples’ property rights over their lands are not respected, their culture is consequently adversely impacted.210 These assertions are certainly applicable

203. Universal Declaration on Cultural Diversity, UNESCO, 41 I.L.M. 57, art. 1 (2 Nov. 2001).204. ILO Convention 169, supra note 38, art. 4.1.205. Badin, supra note 150. See also IACHR Response from State of Braz., supra note 8, ¶

11.206. “The State shall protect the expressions of popular, Indian and Afro-Brazilian cultures.”

constituição fEDEral, art. 215, § 1.207. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note

55, ¶ 9.208. See closing observations of Section II above.209. Anaya & Williams, supra note 41, at 53.210. gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law, supra note 63, at xiv;

Report on the United Nations Permanent Forum on Indigenous Issues: Report on the Sixth Session, ESCOR, ¶ 5, U.N. Doc. E/2007/43, E/C.19/2007/12 (2007).


to the case under analysis, as Lisa Valenta notes that “land is at the centre of the distinct cultures of Brazil’s indigenous peoples. Land provides not only a means of physical survival, but it also forms the basis of a cultural and social identity.”211

This section will be devoted to analyzing some of the most serious violations of indigenous peoples’ cultural rights that could occur by the government’s restriction of these peoples’ property rights over their lands in its pursuit to build Belo Monte. It is not the objective of the following analysis to establish an exhaustive list of cultural rights that could be ad-versely affected by the construction of the dam, but only to highlight the most evident ones. In order to do so in a comprehensive manner, Gilbert’s method seems appropriate. Based on indigenous peoples’ right to use their lands, the author asserts that their cultural rights can be subdivided into three categories, all of which need to be respected in order to guarantee their cultural integrity.212 The categories are the following: “land rights as a right to access to the means of livelihood and the minimum standard for sustenance; . . . land rights as protection of a particular way of life; . . . [and] land rights as means of cultural protection.”213 In approaching these categories in relation to the construction of Belo Monte and its possible adverse consequences for indigenous peoples’ cultural rights, the following analysis will indicate which national and international provisions protect these rights, according to the legal instruments by which Brazil is bound.214 However, it falls outside the scope of this work to do a thorough analysis on every one of these provisions, although the application to the present case could be justified.

A. LAND AND cULTURAL RIGHTS AS THE RIGHT To AccESS To THE MEANS of LIVELIHooD AND THE MINIMUM STANDARD foR SUSTENANcE

Under this heading, indigenous peoples’ cultural rights are looked at through the lens of the right to life, which is explicitly guaranteed by Article 3 of the

211. Lisa Valenta, Disconnect: The 1988 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil, 38 tEXas int’l l. J. 644 (2003). Confirming Valenta`s affirmation, see Raposa Serra do Sol, supra note 44, ¶ 11.3; Judgment of Chief Justice Celso de Mello in id. ¶¶18–19; Badin, supra note 150, at 128.

212. gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law, supra note 63, at 116–17.213. Id.214. The relevant provisions of the United Nations Declaration on the Rights of Indigenous

Peoples, adopted 13 Dec. 2007, G.A. Res. 61/295, U.N. GAOR 61st Sess., U.N. Doc. A/RES/61/295 (2007), will also be indicated, although it has already been seen that it would be hard for such an instrument to be considered as binding in general and on Brazil specifically. See Castellino, supra note 135; Gilbert & Doyle, supra note 136; Voyiakis, supra notes 137, 138.


UDHR,215 Article 6.1 of the ICCPR,216 Article 4.1 of the ACHR,217 Article 7 of the UNDRIP,218 and Article 5 of the Brazilian Constitution.219 The reason for the protection of indigenous peoples’ cultural rights through this viewpoint is that the right to life, to be sufficiently protected, needs to be understood in a broad manner.220 States are considered to have the positive obligation of, for instance, “adopting measures to eliminate malnutrition and epidem-ics.”221 Hence, through a non-restrictive angle, the right to life can be seen as encompassing, for example, the right to food and the right to health. With this in mind, it is clear that the connection between indigenous peoples’ cultural rights and their right to life lies in the access to their traditional lands.222 These lands are the source for them to obtain, for instance, food, potable water, and traditional medications in their own time-honored manner.

In the present case it does not matter whether the Brazilian government chooses to accept the right to life in a broad sense, as recommended by the UN Human Rights Committee.223 In relation to the right to health, the state is also obliged to guarantee protection due to its binding obligations, which arise from Articles 25 of the UDHR,224 Article 12 of the ICESCR,225 Article 10 of the Protocol of San Salvador,226 Article 7.2 of ILO Convention 169,227 and Article 21 of the UNDRIP.228 As for the right to food, the state finds itself under an obligation to guarantee the right by virtue of Articles 25 of the UDHR,229 Article 11 of the ICESCR,230 Article 12 of the Protocol of San Salvador,231 Article 7.4 of ILO Convention 169,232 and Article 29.1 of the UNDRIP.233 Moreover, “health and the right to food . . . are social rights” guaranteed by Brazil’s own Constitution.234

215. UDHR, supra note 33, art. 3.216. ICCPR, supra note 36, art. 6.1.217. American Convention, supra note 34, art. 4.1.218. Declaration on Indigenous Peoples, supra note 39, art. 7.219. constituição fEDEral, art. 5.220. General Comment No. 06, The Right to Life, adopted 30 Apr. 1982, U.N. GAOR, Hum.

Rts. Comm., 16th Sess., ¶ 5 (1982).221. Id.222. In Awas Tingni, the Inter-American Court on Human Rights asserted that indigenous

peoples’ right to land is also protected by the right to life. See Awas Tingni, supra note 44, ¶ 140.

223. On the non-binding effect of international bodies’ interpretation of laws, see XantHaki, inDigEnous rigHts, supra note 69, at 200, 241.

224. UDHR, supra note 33, art. 25.225. ICESCR, supra note 35, art. 12.226. Protocol of San Salvador, supra note 37, art. 10.227. ILO Convention 169, supra note 38, art. 7.2.228. Declaration on Indigenous Peoples, supra note 39, art. 21.229. UDHR, supra note 33, art. 25.230. ICESCR, supra note 35, art. 11.231. Protocol of San Salvador, supra note 37, art. 12. 232. ILO Convention 169, supra note 38, art. 7.4.233. Declaration on Indigenous Peoples, supra note 39, art. 29.1.234. constituição fEDEral, art. 6.


Numerous possibilities of indigenous peoples’ health being undermined by the construction of Belo Monte have been highlighted. By reducing the water flow of the Big Bend region,235 the dam is expected to create stagnant pools of water, creating an environment that will stimulate epidemics of malaria, 236 a deadly disease that already poses a grave problem for indig-enous peoples of Brazil.237 Moreover, the projected influx of people equal to Altamira’s current population238 is not only expected to overburden the already precarious health system of the region,239 but also to worsen the epidemic scenario to which indigenous peoples will be subjected.240 This picture is aggravated by the accumulation of substances on the Xingu River that the dam would cause. This would render the water unsafe to drink and would further promote disease epidemics, which would likely occur as a result of the ingestion of, for instance, E. coli.241 By creating such a situation, the government would not only violate Article 6,242 but also Article 196 of the Brazilian Constitution, which states that it is an obligation of the state to reduce the risk of illnesses.243

Foreseeable restrictions on indigenous peoples’ right to food caused by the construction of Belo Monte have also been underscored. The physical barrier created by the dam is expected to reduce the availability of terrestrial and aquatic fauna, which are essential to these peoples’ nutrition.244 The population influx, in turn, is expected to stimulate illegal fishing and hunting on indigenous lands, which would further reduce the availability of these resources.245 Also, as a consequence of such an influx, the price of food is expected to soar, making it inaccessible for indigenous peoples given their

235. Indigenous Communities Application for Precautionary Measures, supra note 5, at 2.236. Indigenous Communities Application for Precautionary Measures, supra note 5, at 17–18;

PainEl DE EsPEcialistas, supra note 50, at 77–78.237. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note

55, ¶ 62.238. Indigenous Communities Application for Precautionary Measures, supra note 5, at 23.239. Id.240. Among other diseases that are expected to result from the population influx are dengue

and AIDS. See Claudio Emidio Silva et al., EIA/RIMA—AHE Belo Monte: Estudo Socio-ambiental Componente Indígena—Grupo Juruna Km 17, at 156 (Maria E. G. Vieira ed., 2009).

241. Indigenous Communities Application for Precautionary Measures, supra note 5, at 21.242. constituição fEDEral, art. 6.243. Id. art. 196.244. Supra notes 49–52, and accompanying texts. Some fish species are expected to be

extinguished as a result of Belo Monte`s construction. See S.T.F. (Braz. Supreme Federal Tribunal), União v. Tribunal Regional Federal da 1ª Região, supra note 54. See also Interview with the Kuikuro, Altas Horas, TV Programme, Rede Globo Channel (28 May 2011), an indigenous group that does not eat any flesh other than fish and are considered to be potentially impacted by the extinctions the dam could cause. This group was not referred to on the case filed before the Inter-American Commission on Human Rights.

245. Silva et al., supra note 240, at 141.


non-existent or low income.246 Hence, Belo Monte could only worsen the already poor nutritional situation of indigenous peoples reported by Anaya as a serious issue in Brazil.247

The examples given above do not exhaust the numerous adverse impacts on indigenous peoples’ right to food and health, and consequently their right to life, which are foreseeable in case the Belo Monte dam is constructed. Nonetheless, the few examples provided seem capable of demonstrating the hazardous situation regarding this aspect of indigenous peoples’ cul-tural rights. The Public Prosecutor’s Office, when addressing the totality of the restrictions that this aspect of indigenous peoples’ cultural rights would be subjected to, stated that the situation is capable of bringing about the decimation of these groups.248

B. Land and cultural Rights as Protection of a Particular Way of Life

Under the current heading, indigenous peoples’ cultural rights consist of their right to live in a manner different to that of the majority of the state’s population. It is these peoples’ traditional economic activities, constituting an essential element of their culture that finds protection under this aspect of their cultural right.249 Specifically addressing indigenous peoples who are considered minorities in the states they inhabit, the UN Human Rights Com-mittee has clarified that such traditional activities that are key to preserving their way of life find protection under Article 27 of the ICCPR.250 As indig-enous peoples constitute a minority in Brazil,251 their traditional economic activities are protected by the aforementioned legal provision. The UNDRIP has numerous provisions envisaging such protection.252 Equally protective of this aspect of indigenous peoples’ cultural rights is item II of Article 216 of the Brazilian Constitution, which guarantees the protection of the “ways of . . . living”253 of “the various groups that form the Brazilian society.”254

246. Id. at 140.247. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note

55, ¶ 62.248. S.T.F. (Braz. Supreme Federal Tribunal), União v. Tribunal Regional Federal da 1ª Região,

supra note 56.249. gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law, supra note 63, at 129–31.250. See General Comment 23, The Rights of Minorities (Art. 27), adopted 6 Apr. 1994,

U.N. GAOR, Hum. Rts. Comm., 15th Sess., ¶ 3.2, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994); see also ICCPR, supra note 36, art. 27 (legal provision that protects the rights of cultural, religious and ethnic minorities).

251. Supra note 182, and accompanying text.252. See, e.g., Declaration on Indigenous Peoples, supra note 39, art. 11, 12.253. constituição fEDEral, art. 216(II).254. Id. art. 216.


For several indigenous peoples who would be adversely affected by the construction of Belo Monte, activities such as fishing and hunting constitute their main traditional economic activities and are an essential element of their culture.255 As seen above, these activities would be severely undermined by the construction of the dam, which could bring about the extinction of several aquatic and terrestrial species.256 Such an impact could bring the above-mentioned traditional economic activities of peoples, such as the Juruna and the Arara, to an end.257 The operation of the Belo Monte dam would also result in the isolation of the Paquiçamba region, which Juruna peoples inhabit. The reduction of the water flow would make it impossible for them to utilize their only means of transportation, river navigation, in order to sell nuts they collect, which is the most essential form of traditional economic activity they possess.258

From the few examples discussed above, it is evident that the construc-tion of Belo Monte dam would result in the denial of indigenous peoples’ cultural way of life. The UN Human Rights Committee has already asserted that development activities that impact indigenous peoples’ way of life to a certain extent could be tolerated; however, the state does not possess a margin of appreciation that would allow it to pursue a kind of development that would amount to a denial of these peoples’ rights as protected by Article 27 of the ICCPR.259 Therefore, looking at indigenous peoples’ cultural rights from this angle, it seems that Belo Monte could not be legally constructed.

c. Land and cultural Rights as Means of cultural Protection

Indigenous peoples’ cultural rights protected under the current heading are a result of these peoples’ attachment to their lands, which “is often a key-stone to their spiritual and cultural view of the world.”260 The focus of this protection is on traditional activities, other than the economic ones, that are an essential element of indigenous peoples’ culture. Gilbert refers to these activities as the “cultural heritage” of indigenous peoples, including, for example, their languages, songs, and cults, which are all linked to the lands they occupy and utilize.261 In Awas Tingni, the Inter-American Court

255. See, e.g., Silva et al., supra note 240, at 140–41.256. Supra notes 51–52, 244–245, and accompanying texts.257. See, e.g., Fundação Nacional do Índio, UHE Belo Monte—Componente Indígena—

Parecer Técnico No. 21: Análise do Componente Indígena dos Estaudos de Impacto Ambiental 37–41, 51–53 (2009) [hereinafter Parecer Técnico 21].

258. Id. at 38.259. Länsman et. al. v. Finland, Comm. No. 511/1992, U.N. GAOR, Hum. Rts. Comm., 52d

Sess., ¶ 9.4, U.N. Doc. CCPR/C/52/D/511/1992 (1994).260. gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law, supra note 63, at xiv.261. Id. at 134. Daes defines “cultural heritage” as “everything that belongs to the distinct

identity of a people,” which would also include the traditional economic activities of


recognized that the need to protect indigenous peoples’ land rights also found a basis in the duty to preserve their cultural heritage.262

As the Inter-American Commission on Human Rights already clarified, this aspect of indigenous peoples’ cultural rights is also protected by Article 27 of the ICCPR.263 While the Brazilian Constitution only recognizes the exis-tence of indigenous peoples’ “social organization, customs, languages, beliefs and traditions,”264 the same instrument determines that the state is obliged to guarantee the protection of these peoples’ cultural manifestations.265

By constructing the Belo Monte dam, the Brazilian government is surely going to violate this aspect of the Arara’s cultural rights, an indigenous group that lives on the Arara da Volta Grande area, located on the Big Bend region. The Arara consider that any environmental modification causes cosmological impacts.266 Because of the profound impact Belo Monte is expected to cause, they assert that the spirits inhabiting the Xingu River, which are necessary for the balance between the group and the environment, will leave the area in search of a new home.267 In this specific case, Brazil would not only breach the aforementioned legal provisions, but also paragraph VI of Article 5 of the Brazilian Constitution and Article 21 of the ACHR. The former article states that all religions and beliefs shall be protected along with their places of worship,268 while the latter was interpreted by the Inter-American Court as encompassing indigenous peoples’ right “to enjoy their particular spiritual relationship with the territory they have traditionally used and occupied.”269

It should not be forgotten that a probable result of the infringements upon indigenous peoples’ cultural rights that were addressed in sections above is their involuntary displacement.270 If this does in fact occur, numer-ous other cultural rights may be violated. If they are forcibly removed from where their ancestors are buried, indigenous peoples’ family rights would be breached.271 Such a right would be further violated if the individuals of

indigenous peoples that were already subjected to an analysis on the previous section. Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, Erica-Irene Daes, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fifth Sess., Agenda Item 14, U.N. Doc. E/CN.4/Sub.2/1993/28, ¶ 24 (1993).

262. Awas Tingni, supra note 44, ¶ 149.263. Inter-Am. Commission H.R., Yanomami v. Brazil, Judgment of 1985, ¶ 7. On Article

27 of the ICCPR and its applicability to indigenous peoples of Brazil, see supra notes 250–251, and accompanying texts. For some of the provisions envisaging the protection of this aspect of indigenous peoples’ cultural rights, see also Declaration on Indigenous Peoples, supra note 39, art. 11, 12.

264. constituição fEDEral, art. 231.265. Id. art. 215, § 1, 231.266. Parecer Técnico 21, supra note 257, at 250.267. Id. at 50.268. constituição fEDEral, art. 5, § 6.269. Inter-Am. Court H. R., Saramaka People v. Suriname, supra note 71, ¶ 95.270. Indigenous Communities Application for Precautionary Measures, supra note 5, at 14–15.271. See the concept of family given by the UN Human Rights Committee. Francis Hopu

and Tepoaitu Bessert v. France, Comm. No. 549/1993, U.N. GAOR, Hum. Rts. Comm., 16th Sess., ¶ 10.3, U.N. Doc. No CCPR/C/60/D/549/1993/Rev.1 (1997).


the group did not manage to continue to live in community, which would be the probable outcome once these peoples were removed from their lands. As a consequence, languages, traditional stories, songs, customs, and other aspects of indigenous peoples’ culture would most likely be lost. Thus, it seems evident that if Belo Monte were to be constructed, indigenous peoples’ cultural heritage would be greatly threatened by the violations that would follow the government’s numerous infringements of national and international law.

It is apparent that the construction of Belo Monte would entail the viola-tion of indigenous peoples’ cultural rights through every possible angle. Such an infringement on their cultural rights would clearly amount to a denial of their dignity as human beings.272 Moreover, the illegality of continuing to pursue the project’s conclusion is not only evident from a cultural rights perspective. As a result of this section’s analysis, the assessment on the proportionality of the project through Afonso da Silva’s method can now be concluded.273 It seems safe to assume that Belo Monte would impose such an intense restriction on indigenous peoples’ cultural and property rights that even in the unlikely event that it was considered necessary, it could never be rendered proportional in the strict sense. Thus, the construction of the dam would be disproportional and cannot find any legal justification.

VI. INDIGENoUS PEoPLES’ PRocEDURAL RIGHT

A. Indigenous Peoples’ Right to free, Prior, and Informed consultation

It can be discerned from the above analysis that in the context of indig-enous peoples’ substantive rights, Belo Monte is doomed to be an outright violation of national and international legislation. Nonetheless, a thorough assessment of the current Brazilian policy in relation to the pursuance of mega-projects such as the present one vis-à-vis indigenous peoples that are going to be adversely affected by them seems advisable. Belo Monte sets a precedent for numerous other projects the Brazilian government intends to initiate.274 Therefore, the following analysis of indigenous peoples’ procedural right is no less important than the examination of such peoples’ substantive rights conducted above. The compliance with indigenous peoples’ right to

272. Elsa Stamatopoulou, Taking Cultural Rights Seriously: The Vision of the UN Declaration on the Rights of Indigenous Peoples, in REflEctions on tHE un DEclaration, supra note 47, at 388.

273. Mendes, supra note 190, at 1; Silva, supra note 192, at 24.274. For the government plans on building more than fifty dams over the next few years, see

Simões, supra note 15.


be consulted in a free, prior, and informed manner when projects would adversely affect them has been considered a prequisite to avoid the violation of all their substantive rights.275

The procedural right under analysis can be considered as deriving from all the substantive ones looked at above. First, indigenous peoples’ right to self-determination obliges the government at least to engage in a meaning-ful dialogue with these peoples and allow their opinions to affect policies under consideration.276 Second, being a minority in Brazil, indigenous peoples right to property, when looked at through the social function that their lands need to fulfill, demands that a particularly strong participatory right be recognized, if real equality and democratic legitimacy are to be respected by the government.277 Third, if Article 27 of the ICCPR is to be complied with and indigenous peoples’ cultures are to be preserved, the state has to guarantee their effective participation in any decisions affecting them. The right to be consulted in a free, prior, and informed manner is also an autonomous right that derives directly from Articles 6 and 15.2 of ILO Convention 169. These legal provisions determine that the government shall consult with these peoples whenever a project affecting their interests is being considered.278 Article 231, paragraph 3 of Brazil’s own constitution not only recognizes such as an independent right, but establishes that the consultation needs to be performed by the National Congress in order to be valid.279

B. The True Meaning of the Right in Belo Monte’s context

Despite the above-mentioned legal provisions that guarantee procedural rights, Anaya noted that indigenous peoples’ participation in decisionmak-ing is still a problem in Brazil.280 The Belo Monte case illustrates Anaya’s

275. Declaration on Indigenous Peoples, supra note 39, art. 10. 276. Quane, supra note 108, at 282–83; Anaya, inDigEnous PEoPlEs, supra note 108, at 82;

XantHaki, inDigEnous rigHts, supra note 69, at 164–65; Declaration on Indigenous Peoples, supra note 39, arts. 3–4; gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law, supra note 111, at 246–47; Vienna Convention on the Law of the Treaties, supra note 63, art. 31.1; Tribute to the memory of Ms. Angie Brooks-Randolph, supra note 113, at 26; Heintze, supra note 115, at 319; ilo convEntion on inDigEnous anD triBal PEoPlEs, 1989 (no.169): a Manual, supra note 116, at 10.

277. constituição fEDEral, art. 3, 5, items XXII–III; Fearnside, supra note 1, at 19; Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note 55, ¶ 7, 9; Raposa Serra do Sol, ¶ 9; Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64, at 11, 13 (6 Apr.); XantHaki, inDigEnous rigHts, supra note 69, at 16.

278. ILO Convention 169, supra note 38, arts. 6, 15.2.279. constituição fEDEral, art. 231, § 3.280. Report on the Situation of Human Rights of Indigenous Peoples in Brazil, supra note

55, ¶ 9.


assertion. The first reaction of the government, when reprimanded for not consulting with indigenous peoples who were going to be adversely affected by the construction of the dam, was to allege that none would be directly impacted, and therefore consultations were not an obligation of the state.281 However, such an argument could easily be rebutted by the previous analysis; so in an attempt to make its policy appear more legitimate, the government controversially stated that it had in fact conducted consultations with the affected groups, by either promoting public hearings where the project was exhibited to the society282 or by establishing a dialogue with indigenous peoples through meetings that took place on their lands.283

This last assertion is flawed and makes it clear that the government’s actions fall short of its obligations under national and international law. The public hearings conducted by the government had the aim of informing the Brazilian society on how the project was going to be carried out and clarifying eventual doubts the population could have.284 By organizing only four public hearings, very few people out of the 40,000 families that would be adversely affected by the Belo Monte dam had their questions answered.285 Moreover, no translators were provided for the indigenous peoples who managed to attend the meetings.286 It seems clear that such hearings were not conducted with the aim of consulting indigenous peoples. As for the government’s claim that a dialogue was established with these peoples through meetings on their lands, the assertion undermines the very point it tries to make. It should be remembered that the Brazilian Constitution determines that consultation with indigenous peoples must be performed by the National Congress.287 By confirming that the above-mentioned meetings took place on indigenous peoples’ lands, the government makes it clear that these peoples were not consulted accordingly. In fact, the meetings were conducted by FUNAI,288 a governmental agency created with the aim of protecting indigenous peoples’ interests. The records of these encounters prove that their purpose was to inform and answer questions, but not to consult with these peoples,289 which could only be done by Congress. It should also be kept in mind that neither the public hearings nor the meetings conducted by FUNAI were performed in a free, prior, and informed manner. First, the presence of hundreds of armed Federal and Military Police and National Security Forces impeding peoples’ access to public hearing sites amounts to a form of coercion that prevents

281. IACHR Response from State of Braz., supra note 8, and accompanying text. 282. Indigenous Communities Application for Precautionary Measures, supra note 5, at 30–32.283. Id. at 27–30.284. Id. at 32.285. Id., at 31.286. Id.287. See id.288. Id. at 27.289. Diamond & Poirier, supra note 14, at 27.


these gathering from being regarded as “free” consultations. The constant threats to the lives of indigenous peoples who oppose the construction of the dam are equally problematic in relation to any meetings organized on their lands without providing them proper protection.290 Second, no environmental or social impacts assessments were made available to indigenous peoples before their meeting with FUNAI.291 An assessment containing 20,000 pages was provided to the population, including indigenous peoples, only two days before the public hearings took place, which made it impossible for the documents to be entirely analyzed in advance.292 Moreover, no copies were made available in any indigenous peoples’ languages.293 Therefore, it seems that the gatherings cannot be regarded as complying with the “prior” requisite. Third, the assessment provided by the government is considered “misleading and incomplete,”294 and it surprisingly does not analyze the social and cultural impacts on the indigenous peoples located on the Big Bend region.295 Hence, any consultation based on such assessment could never be regarded as an informed one. The requirement to consult must amount to a meaningful negotiation that respects the dignity of the indigenous peoples and must not be a bureaucratic perfunctory exercise.

It can be concluded beyond doubt that the dialogues established with indigenous peoples did not comply with the state’s obligation to consult them in a free, prior, and informed manner. Even if there had been no coercion, if the assessment was accurate, translated to indigenous languages, and provided in due time, the meetings would fall short of the government’s duty in relation to national and international law. As stated above, the gatherings were not performed by the National Congress, which is considered a breach of the constitutional provision that determines how consultations should take place.296 Moreover, in Saramaka People v. Suriname, the Inter-American Court clarified that in relation to matters that affect them, indigenous peoples need to be consulted “at the early stages of a development or investment plan, not only when the need arises to obtain approval from the community.”297 The government not only conducted the relevant studies, but also approved the Bill that allowed the Belo Monte dam to be constructed without consulting these peoples, which is clearly at odds with internal law as the interpreta-tion above demonstrates.

290. Lideranças que Lutam Contra Belo Monte são Ameaçadas de Morte, rEvista sina, 10 June 2011.

291. These meetings took place between 10 December 2007 and 16 September 2009. See IACHR Response from State of Braz., supra note 8, ¶¶ 35–38.

292. Indigenous Communities Application for Precautionary Measures, supra note 5, at 31. The public hearings took place between 10–15 Sept. 2009. See id. at 32.

293. Id. at 32.294. Diamond & Poirier, supra note 14, at 28.295. Id.; PainEl DE EsPEcialistas, supra note 50, at 11, 43.296. constituição fEDEral, art. 5, § 6.297. Inter-Am. Court H. R., Saramaka People v. Suriname, supra note 71, ¶ 133.


Considering what has been said so far, the government could choose to comply with its own national legislation and the aforementioned interpreta-tion by canceling the project’s license, starting new studies after consulting indigenous peoples, and eventually allowing the Belo Monte dam to be con-structed, if it is so determined. As Chief Justice Menezes de Direito asserted, the state has the obligation to consult, but not to comply with indigenous peoples’ requirements.298 However, when requesting Brazil to comply with its obligation to consult these peoples in a free, prior, and informed manner, the Inter-American Commission on Human Rights explained that this should be done in accordance with how this procedural right is interpreted by the Inter-American System.299 The Inter-American Court has already determined that in relation to projects of Belo Monte’s magnitude, which “would have a major impact within [indigenous peoples’] territor[ies], the State has a duty, not only to consult with [such peoples], but also to obtain their free, prior and informed consent.”300 In fact, such a requirement seems to be in compliance with what the majority of the Brazilian Supreme Tribunal con-sidered appropriate when it asserted that development programs that disre-gard indigenous peoples’ rights are at odds with the Brazilian Constitution’s fundamental objective of Item II of Article 3.301 This provision determines that any such program must be not only environmentally balanced, but also humanized and culturally diversified in a manner that respects indigenous peoples’ reality and rights.302

298. See vote of Chief Justice Menezes de Direito in Raposa Serra do Sol, supra note 44, ¶ 43. Compare this with the South African Constitutional Court’s approach to “meaning-ful negotiation” in Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v. City of Johannesburg and Others where Justice Yacoob, ¶ 10, stated:

The proposition that rights are interrelated and are equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if reasonableness of State action concerned [with housing] is determined without the fundamental constitutional value of human dignity. . . . In short I emphasise that human beings are required to be treated as human beings.

299. Inter-Am. Court H. R., Saramaka People v. Suriname, supra note 71, ¶ 137. It should be noted that it falls outside the scope of the present work to engage in a thorough analysis on the discussions of whether indigenous peoples right to be consulted includes a right to veto. It suffices to assert how the right has to be applied in the present case, which is under the complementary jurisdiction of the Inter-American Court on Human Rights. For more on consultancy versus the right to veto, see XantHaki, inDigEnous rigHts, supra note 69; See also gilBErt, inDigEnous PEoPlEs’ lanD rigHts unDEr intErnational law, supra note 63.

300. Indigenous and Tribal People’s Rights Over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, Inter-Am. C.H.R., Doc. No. 56/09, OEA/Ser.L/V/II, ¶ 330 (2009), available at http://www.oas.org/en/iachr/indigenous/docs/pdf/AncestralLands.pdf.

301. Raposa Serra do Sol, supra note 44, ¶ 10.302. Id.


It appears that in relation to indigenous peoples’ right to be consulted in a free, prior, and informed manner, Brazil has three options: it complies with its legal obligations as interpreted by Chief Justice Menezes de Direito, canceling Belo Monte’s license and starting a new study after consulting indigenous peoples through the National Congress; it complies with its legal obligations as interpreted by the Inter-American Court on Human Rights and the majority of the Brazilian Supreme Tribunal, recognizing indigenous peoples’ right to veto the development of Belo Monte; or it disregards all of its national and international obligations while carrying on with the construction of the dam.

VII. coNcLUSIoN

The analysis of how the construction of the Belo Monte dam would affect indigenous peoples of Brazil and how the government is conducting itself accordingly is revealing. Most conflicts over land are complex and require them to be dealt with sensitively and fairly. The state demonstrates that in its pursuit of development, it will deny indigenous peoples the minimum amount of control they should have as a result of their right to self-determination, leading to the restricting of their right to property, directly threatening their right to life, overriding their right to live in a different manner in community with others, or to practice their own cults and to keep their own language. While these are foreseeable rights Brazil will inexorably trample upon if it continues to seek the construction of the dam, indigenous peoples’ proce-dural right to be consulted in a free, prior, and informed manner has already been violated. With such an attitude, Brazil seems to be going back to a colonization policy of obliterating natives’ rights for what it deems to be the interest of society—an unfortunate step backward on the road to a peaceful and multicultural world. In its path toward digression, the government makes it clear that neither international organs nor national movements will stand in its way. Surely, the protection of the rights of indigenous peoples should be in the broader interest of Brazilian society, and the continued occupation of their land by them regarded as a necessary social function of such land.

The Inter-American Commission’s independent request has already been disregarded and actions such as protests and formal complaints appear to be incapable of halting the state’s plans. Democracy and legitimacy do not appear to be on the government’s development agenda. Not even during its dictatorial military regime, when the intentions to build the Belo Monte dam first became public, was the government so inflexible and disrespectful toward Brazil’s indigenous peoples. As a response, indigenous peoples of


the Xingu region are preparing for war,303 and maybe now, after threatening indigenous peoples once more with physical and cultural annihilation, the government could justify its fears of secession as it so intensely and mistak-enly did in Raposa Serra do Sol.

As a result of the government’s approach toward the IACHR’s decision, Brazil and other OAS states initiated a process directed to weaken the powers of the Inter-American Human Rights system. Countries like Ecuador and Ve-nezuela were also unhappy with the impartial and autonomous decisions of the Inter-American Organizations and initiated a working group discussion that tried to impose changes to the way this institution works.304 These states have also built a parallel human rights systems at UNASUR in what appears to have been an attempt to deligitimize the work of the OAS system. 305 If that threat causes Brazilian civil society organizations to withdraw from confronting the government over the rights of indigenous peoples, or chills the debate over the construction of the Belo Monte dam, this would be a severe setback for human rights in the region.

303. Diamond & Poirier, supra note 14, at 28. A more violent approach to the problem has already been initiated by the indigenous peoples. During Rio + 20, a UN conference on sustainable developmnet held in Brazil in 2012, indigenous peoples of the Xingu and their supporters staged a number of protest meetings at the People`s Summit and invaded the headquarters BNDES (one of the main banking institution financing projects such as Belo Monte) while shooting arrows at the security guards. Diana Brito, Índios Saem da Cúpula dos Povos e Invadem Prédio do BNDES no Rio, folHa DE são Paulo, 18 June 2012. Also during Rio + 20, indigenous peoples located on the Xingu area invaded Belo Monte`s contruction sight and later kidnapped two contruction workers. See Índios Fazem Dois Reféns na Central Hidroelétrica de Belo Monte, a Bola.Pt, 7 July 2012.

304. See American University Panel on the Future System of Human Rights (20 Jun. 2012), available at http://media.wcl.american.edu/Mediasite/Play/007401f8f028422d95cab36b08339dd51d.

305. See UNASUR Secretary General, Creacion de una Instancia de Derechos Humanos en UNASUR se Discute en Quito, unasur (20 Jun. 2012), available at http://www.unasursg.org/index.php?option=com_content&view=article&id=661:creacion-de-una-instancia--de-derechos-humanos-en-unasur-se-discute-en-quito&catid=66:noticias-unasur.

Jaichand Sampaio

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