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Repetition The Committee repeats the content of its direct request adopted in 2019 which read as follows.Articles 2 and 7 of the Convention. Coordinated and systematic action. The Committee notes the adoption of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples included in the federal Multi-year Plan of Action (PPA 2016–2019). It notes that the programme is divided into five main themes, namely: promotion of social, cultural and citizens’ rights; promotion of land and environment management in indigenous lands; guarantee of full ownership of the lands; preservation and promotion of the cultural heritage of indigenous peoples; and promotion of access to health services. Each of these themes has specific targets to achieve and initiatives to develop. The Committee notes that the PPA 2016–2019, in the part describing country context, recognizes that one of the greatest challenges for the indigenous policy of Brazil is to better integrate actions at different levels and improve synergies between them.The Committee requests the Government to provide information on the implementation of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples, indicating the measures taken in order to achieve the targets set. Please indicate whether evaluations on the implementation of the programme and the results achieved have been carried out, and on the manner in which indigenous and tribal peoples participated.Article 2(2)(b). Measures to promote the full realization of the social, economic and cultural rights of indigenous peoples. In its previous comments, the Committee noted the information concerning the Bolsa Familia, a direct income transfer programme which benefits families throughout the country in situations of poverty and extreme poverty with access to education and health services. It noted that an agreement was concluded with the National Indian Foundation (FUNAI) to include indigenous and Quilombola families in this programme and support them. The Committee requested information on the impact of the programme on the full realization of the social, economic and cultural rights of indigenous peoples, and on how they were involved in the development of the programme. The Government indicates that in 2018, 114,903 indigenous families (almost half) were beneficiaries and that the programme had made it possible to improve the living conditions of numerous indigenous communities and to provide better access to health and education services. The Government indicates that, following ethnographic studies conducted in indigenous communities, a report on programme implementation among indigenous peoples was presented to the various indigenous communities and the situation was evaluated with their participation, with a view to proposing adjustments at the local level so that indigenous people are provided with more appropriate treatment. Thus, for example, rules that are more flexible have been introduced with regard to the documents required to register members of indigenous communities in the Single Registry for Social Programmes. The Committee welcomes the inclusive approach adopted to ensure that the particular features of indigenous and tribal peoples are taken into account so that they can become part of the Bolsa Familia programme.The Committee requests the Government to continue to provide information on the number of indigenous and tribal families that are part of the Bolsa Familia programme and the extent to which their inclusion has had an impact on their access to the health and education services available to them.Articles 7 and 15. 1. Diversion of water from the São Francisco river. The Committee notes the detailed information provided by the Government on the hydraulic project, the completion of environmental impact studies and the social and environmental programmes planned and budgeted for in the context of implementing the project.The Committee requests the Government to indicate how the indigenous and tribal peoples concerned participate in the development and implementation of these programmes when they may be affected by them. With regard to the measures taken to protect and preserve the environment of the territories they inhabit, please indicate how the cooperation of indigenous and tribal peoples is ensured. 2. Belo Monte hydroelectric plant (Pará State). The Committee requested the Government to continue to report on developments in the Belo Monte hydroelectric plant project, including information on measures taken to ensure the effective protection of the rights of indigenous communities affected by the construction and activities of the hydroelectric plant. The Government indicates that in 2015, a cooperation agreement was signed between the FUNAI and the enterprise Norte Energia concerning the implementation of the Plan for the Territorial and Environmental Protection of the Indigenous Lands of Médio Xingu. As part of the process of granting a licence to the hydroelectric plant, consultations coordinated by the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and supported by the FUNAI were held with the indigenous communities affected, concerning all of the villages in the 11 indigenous lands affected. A considerable number of meetings and public hearings with indigenous communities have been held and the measures proposed by indigenous communities have been taken into account in the Basic Environmental Project for Indigenous Communities (PBA-CI). The Government considers the consultation to be an ongoing process in which communities are provided with information and support in order to ensure that they participate effectively and enable them to express their views on the project and its impact. The PBA CI includes a management plan and ten programmes, including an institutional capacity-building programme for indigenous organizations. The Government indicates that the foundations have thus been established to mitigate and compensate for impacts on affected communities and to promote their involvement and participation in decision-making spaces. The Committee further notes that in September 2019, a first conciliation hearing was held before the Conciliation and Arbitration Chamber of the Office of the Attorney-General of the Union (AGU). Conciliation forms part of the public civil action brought in 2004 by the federal prosecution service concerning the impact of the construction of the plant. The parties reached two agreements that will serve as the basis for further discussions; they agreed on the creation of an oversight committee for the PBA-CI and that the enterprise would audit the damage caused by the works to all indigenous peoples of Médio Xingu, with a view to the payment of compensation.The Committee requests the Government to provide information on the results achieved in the context of the conciliation process, in particular on the results of the audit and the manner in which indigenous peoples are compensated. Please also continue to provide information on the manner in which indigenous peoples participate in the implementation of the PBA-CI project and associated programmes.3. Cinta Larga people. Unlawful mining and logging. With regard to the need to protect the indigenous people of Cinta Larga, established on the indigenous land of Parque do Aripuanã (State of Mato Grosso), from intrusion by third parties on their lands, the Government refers to a number of monitoring visits carried out by the Office for the Coordination of Territorial Control (CGMT), which is linked to the territorial protection department of the FUNAI, to prevent and monitor intrusions, illegal timber extraction activities or any other damage. The Government indicates that the present context remains difficult and that there is a long and recurrent history of unlawful practices. Consequently, sustained action is needed to protect territories on a continuous basis and limit such practices.The Committee requests the Government to continue to take all necessary measures to ensure the protection of the rights of the indigenous people of Cinta Larga to the lands that they traditionally occupy, as well as their resources. It requests the Government to provide information on the means available to the CGMT to carry out monitoring activities and to specify whether the public prosecution service and/or the police participate in these activities. Recalling the importance of combating impunity, the Committee requests the Government to provide information on judicial proceedings brought against persons who illegally enter the lands and exploit the resources of the people of Cinta Larga and, as applicable, the convictions handed down.Articles 26 and 27. Education. The Committee notes that the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples recalls, in the part describing the country context, that the access of indigenous peoples to a differentiated and quality education at all levels is the responsibility of the Union and the federal States, which are required to develop specific indigenous educational programmes. According to this document, indigenous school education is addressed through one-off, sporadic measures and dialogue with indigenous peoples; training courses for teachers are inadequate and curriculums and calendars are not appropriate to indigenous schools; and the rate at which schools are built and specific teaching materials are developed is low.The Committee requests the Government to take the necessary measures to ensure that members of indigenous peoples and Quilombola have access to quality education at all levels on an equal footing with the rest of the national community, and that education programmes are developed with these peoples. Please provide statistical information on school attendance rates among indigenous children at the primary, secondary and higher levels, as well as on school drop-out rates, if available, disaggregated by ethnic group, gender and age.
Repetition The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which contain general comments on the application of the Convention; the joint observations of the IOE and the National Confederation of Industry (CNI), received on 31 August 2018; the observations of the National Confederation for Typical State Careers (CONACATE), which include general comments on the application of the Convention received on 28 August 2017, and the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include a report by COICA (a Peruvian indigenous peoples’ organization) on the application of the Convention in various countries.Representation made under article 24 of the ILO Constitution. Right of Quilombola communities to the lands they traditionally occupy. Alcântara space launch centre. For many years, the Committee has been examining the question of the impact of the establishment of the Alcântara space centre (CEA) and the Alcântara launch centre (CLA) on the rights of the Quilombola communities of Alcântara. The Committee notes that the Governing Body at its 337th Session (October–November 2019) decided that the representation made under article 24 of the ILO Constitution by the Union of Rural Workers of Alcântara (STTR) and the Union of Family Agriculture Workers of Alcântara (SINTRAF), alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. The Committee observes that the allegations in the representation refer to the consequences of the extension of the area covered by the Alcântara space launch centre on the rights of the Quilombola communities and the lands traditionally occupied by them.In accordance with its usual practice, the Committee has decided to defer the examination of this issue until the Governing Body adopts its report on the representation.Article 3 of the Convention. Human rights. The Committee observes that certain United Nations bodies and the Inter-American Commission on Human Rights (IACHR) have expressed concern in recent years at the situation of conflict surrounding territorial claims and at threats and attacks on the rights and integrity of the indigenous peoples of Brazil. The Committee notes the press release of 8 June 2017 of the Office of the United Nations High Commissioner for Human Rights (title: “Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn”) in which three UN Special Rapporteurs and a IACHR Rapporteur stated: “In the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country. […] Indigenous peoples are especially at risk”. The Committee notes that the IACHR, in its preliminary observations of 12 November 2018 concerning its visit to Brazil, emphasized that harassment, threats and murders characterized land disputes and forced displacements. The IACHR noted with concern that the impunity surrounding these acts of rural violence was contributing towards their perpetuation and increase. Furthermore, at the time of its travel to Mato Grosso state, the IACHR observed the grave humanitarian situation faced by the Guarani and Kaiowá peoples, largely due to violations of their land rights. The IACHR visited the Dorados-Amambaipeguá indigenous lands, and received information on the victims of the “Caaraó massacre”, during which one person was killed and another six members of the community were injured, as well as reports of frequent armed attacks by militias. The Committee also notes that the IACHR granted precautionary measures on 29 September 2019 in favour of members of the Guyraroká community of the Guarani Kaiowá indigenous people, since they had prima facie evidence that families of the community are in a serious and urgent situation because their rights to life and physical integrity are at serious risk. The IACHR takes into consideration reports concerning the high level of conflict between members of the community and landowners and concerning death threats (Resolution 47/19, Precautionary Measure (PM) 458/19). The Committee notes this information withconcern. The Committee urges the Government to take all the necessary measures to protect the life, physical and psychological integrity, and all the rights guaranteed by the Convention to indigenous and tribal peoples. The Committee considers that indigenous and tribal peoples can only assert their rights, particularly with regard to possession and ownership of the lands they traditionally occupy, if adequate measures are adopted to guarantee a climate free of violence, pressure, fear and threats of any kind.Articles 6, 7, 15 and 16. Consultations. In its previous comments, the Committee referred to the process for regulation of the indigenous and Quilombola peoples’ right to consultation which had been under way since 2012. In this regard, the Government indicated that the process of negotiation with the peoples concerned had encountered certain difficulties and that the Secretariat-General of the Government was endeavouring to restore the dialogue. The Government was considering the possibility of proposing a potential consultation mechanism on the basis of a practical case. The Committee also noted that the CNI and the IOE had emphasized that the absence of regulation on the consultations required by the Convention was generating legal uncertainty for enterprises. In its report, the Government indicates that in recent years a number of indigenous peoples have taken initiatives in this area, indicating to the State the manner in which they wish to be consulted. In this context, they have drawn up their own protocols for prior consultation in which they formalize the diversity of procedures for building dialogue enabling effective participation in decision-making processes that can affect their lives, their rights or their lands. The Government refers in particular to the support given by the National Foundation for Indigenous Affairs (FUNAI) for drafting protocols for consultations involving the Xingu indigenous peoples in 2016, the Krenak indigenous people in 2018 and the Tupiniquim people in 2018, and to discussions under way in the Roraima Indigenous Council (CIR). In this regard, the Committee observes that, according to information on the website of the Public Prosecutor’s Office, other communities have adopted protocols of this type. Moreover, regarding policies, programmes, actions and projects relating to social assistance for indigenous peoples, the Government indicates that FUNAI is intensifying efforts to sign agreements with provider institutions in order to ensure respect for the particular social and cultural characteristics of these peoples and to respect their right to free and informed prior consultation where appropriate. The Government also points out that there is growing demand for infrastructure from indigenous communities (for electric power, water storage and distribution or road construction). In this regard, FUNAI ensures that all actions, activities or projects respect the right to free and informed prior consultation, so that relations between the Brazilian State and the indigenous communities are not vertical. The Government indicates that FUNAI, through its decentralized units, supplies technical, logistical and at times financial support to partner bodies and municipalities under whose jurisdiction indigenous lands are located in order to organize the necessary meetings. The Committee welcomes the drawing up of consultation protocols by certain communities and the role played by FUNAI in this respect.The Committee requests the Government to provide further information on the status of these protocols and to indicate how it is ensured in practice that the protocols are applied in a systematic and coordinated manner through the country whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly. The Committee also encourages the Government to continue its efforts with a view to the adoption of a regulatory framework on consultations which will enable the indigenous and Quilombola peoples to have a suitable mechanism guaranteeing them the right to be consulted and to participate effectively whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly, and which will be conducive to greater legal certainty for all stakeholders. The Committee recalls the need to consult the indigenous and Quilombola peoples as part of this process and to enable them to participate fully through their representative institutions so as to be able to express their views and influence the final outcome of the process. It requests the Government to provide information on the consultation processes undertaken, including on the basis of the consultation protocols developed by the various indigenous communities and the results thereof.Article 14. Lands. The Committee recalls that the two bodies responsible for the identification and demarcation of lands and the issuing of land titles are FUNAI (for lands traditionally occupied by indigenous peoples) and the National Institute for Settlement and Agrarian Reform (INCRA) (for lands traditionally occupied by the Quilombola peoples). The procedures are regulated by Decree No. 1775/96 and Decree No. 4887/03, respectively. The Government describes the various stages of the procedure, including: the request to open an administrative procedure for regularization; the preparation of a zone study (containing anthropological, historical, cartographic, land ownership and environmental elements); the declaration of limits; the opposition phase; the physical demarcation; the publication of the recognition order establishing the limits of the territory; and the registration and concession of the titles of collective ownership to the community by decree. The Committee notes the statistical information sent by the Government on land demarcation procedures in the states of Mato Grosso and Rio Grande do Sul. It observes that in Rio Grande do Sul, of a total of 48 procedures, 20 have resulted in regularization and 28 are in progress (at the study, declaration or demarcation stage). Regarding Mato Grosso, of a total of 50 procedures, 24 have resulted in regularization and 26 are in progress. The Committee also notes that, according to information on the FUNAI website, 440 lands have been regularized in the country as a whole. Moreover, 43 lands have had their limits identified, 75 lands have had their limits declared and nine lands have had their limits certified. Lastly, for 116 lands, the procedure is at the study stage. The Committee notes that CONACATE refers in its observations to Constitutional Amendment Proposal No. 215/2000, under examination by the National Congress, the aim of which is to confer exclusive authority on the National Congress to approve the demarcation of lands traditionally occupied by indigenous peoples and also to ratify demarcations which have already been certified. CONACATE indicates that the final decision on any new demarcation of these lands would no longer be under the authority of the competent ministry but under the authority of the National Congress, where agri-industry is heavily represented. The Committee also observes that, according to the information available on the website of the Federal Supreme Court (STF), in September 2019 FUNAI filed an extraordinary appeal (1.017.365/SC) with the Supreme Court on the issue of the “time frame”. The “timeframe” approach followed by certain jurisdictions means that only lands actually occupied on 5 October 1988, the date of promulgation of the Constitution, should be recognized as lands traditionally occupied by indigenous peoples. Since the STF recognized the general scope of the constitutional issue under examination, its final decision will have binding force in all instances of the judiciary. Moreover, the Committee notes that, according to information on the Congress website, two interim measures were adopted in 2019 aimed at transferring the authority to identify, delimit, demarcate and register indigenous lands from FUNAI to the Ministry of Agriculture, Livestock and Supplies (MPO 870/2019 and MP 886/2019). The first measure was rejected by the National Congress and the second measure was deemed unconstitutional by the Supreme Court. The Committee observes that the IACHR, in its preliminary observations of 12 November 2018 relating to its visit to Brazil, stated that it had received various testimonies concerning the difficulties and long delays which indigenous communities face regarding access to land ownership. The result of these difficulties was that public lands intended for these communities were occupied by landowners or private mining enterprises, and this gave rise to conflicts involving expulsions, displacements, invasions and other forms of violence. The IACHR also expressed concern at the weakening in recent years of institutions such as FUNAI. The Committee recalls that Article 14 of the Convention provides that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. In this regard, the Committee emphasized in its General observation of 2018 that recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based.The Committee trusts that the Government will continue taking all necessary measures to ensure the full application of the Convention with regard to the ownership and possession rights of indigenous and tribal peoples over all the lands which they traditionally occupy. It requests the Government to take the necessary measures to follow up in the very near future on the procedures pending before FUNAI concerning the delimitation, demarcation and registration of indigenous lands and before INCRA concerning lands traditionally occupied by Quilombola communities. The Committee in particular requests the Government to provide information on the measures taken regarding the situation of the Guarani and Kaiowá peoples. The Committee further requests the Government to provide information on the human and material resources allocated to both FUNAI and INCRA to fulfil their mandate at every stage of the procedure – studies, delimitation, demarcation and registration of lands.
The Committee notes the communication from the International Trade Union Confederation (ITUC), dated 1 September 2010, which was sent to the Government on 8 September 2010 for their comments thereon.
The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:
The Committee notes the communication from the Union of Rural Workers of Alcántara (STTR) and the Union of Family Agriculture Workers of Alcántara (SINTRAF), of 20 October 2009, forwarded to the Government on 6 November 2009. The Committee will examine this communication at its next session together with the observations of the Government in this regard. The Committee requests the Government to respond to the communication of the STTR and SINTRAF.
The Committee recalls that on 27 August 2008 it received a communication from the STTR and SINTRAF on the application of the Convention in the country, which was sent to the Government on 5 September 2008. It also recalls that, on 1 September 2008, it received a communication from the Single Confederation of Workers (CUT) sent to the Government on 18 September 2008. This communication also attached comments made by the following indigenous organizations: the Coordinating Committee of the Indigenous Peoples of the North-East, Minas Gerais and Espírito Santo (APOINME), the Indigenous Council of Roraima (CIR), the Coordinating Committee of the Indigenous Organizations of Brazilian Amazonia (COIAB) and the Warã Brazilian Indian Institute. Furthermore, the Committee recalls that it received a communication, dated 19 September 2008, from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), forwarded to the Government on 4 November 2008.
Quilombola communities of Alcántara. The Committee notes that by means of a communication of 26 December 2008, the Government provided information with regard to the observations formulated by the STTR and SINTRAF. The Committee notes that the information submitted by the Government only refers to one of the issues raised by the STTR and SINTRAF, namely the situation of Quilombola communities in the face of the establishment and expansion of the Alcántara Launch Centre (CLA) and the Alcántara Space Centre (CEA) on territory traditionally occupied by Quilombola communities, without their being consulted and without their participation.
The Committee notes that, according to what emerges from the information submitted by the Government, the Technical Study on Identification and Demarcation was published. Following an administrative conciliation procedure between the governmental institutions concerned (Ministry of Science and Technology, Ministry of Agricultural Development, National Institute for Settlement and Agrarian Reform (INCRA), the Brazilian Spatial Agency and the Alcántara Space Centre), the Study established that 78,105,3466 hectares will be considered as territory of the Quilombola communities of Alcántara. The Committee understands that this entailed the reduction of the territory occupied by Quilombola communities and notes that the indications regarding the extent of such reduction differ. The Committee also notes that, according to article 11 of Decree No. 4887/2003, when the lands occupied by descendants of Quilombola communities overlap with, among others, national security areas, appropriate measures shall be taken to ensure the sustainability of these communities, conciliating, at the same time, States’ interests. In this regard, the Committee notes that according to the Advisory Opinion/AGU/MC/N.1/2006 of the Attorney General, in the event of overlapping interests, conflicts shall be settled in the light of the principle of “reasonableness”.
The Committee recalls that, as indicated in its previous observation, the communities in question appear to meet the requirements for being covered by the Convention and they identify themselves as tribal peoples within the meaning of Article 1(1)(a) of the Convention. Inasmuch as these communities meet the requirements set out in Article 1 of the Convention, the Articles of the Convention shall be applied when addressing the issue which is the object of the communication. The Committee recalls the special importance for the cultures and spiritual values of the peoples covered by the Convention of their relationship with the lands or territories which they occupy or otherwise use and the obligation of governments to respect that relationship. The Committee considers that the recognition and effective protection of the rights of these peoples to the lands that they traditionally occupy in accordance with Article 14 of the Convention is of vital importance for safeguarding the integrity of these peoples and, consequently, for respecting the other rights established in the Convention.
Likewise, the Committee emphasizes that governments have the obligation, under Article 6(1)(a) and (2) of the Convention, to consult the peoples covered by the Convention, through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly, with the objective of achieving agreement or consent to the proposed measures. The Committee also draws the Government’s attention to the fact that, pursuant to Article 7(3) of the Convention, governments shall ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The Committee cannot overemphasize that the results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee notes that the information provided by the Government does not contain any reference to the participation of the affected communities in the procedure mentioned above. Neither does it contain references to their consultation. In light of the above, the Committee asks the Government to provide detailed information on:
(i)... the way in which the participation and consultation of the Quilombola communities affected were ensured, through their representative institutions, with the objective of achieving agreement or consent about the solution of the case, including information on the participation of these communities in the elaboration of the Technical Study on Identification and Demarcation;
(ii).. the way in which due account was taken of the obligation to ensure the cultural, social and economic integrity of the Quilombola communities affected when reconciling the conflicting interest of the parties involved in the issue at hand;
(iii). the measures adopted to carry out studies in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of the establishment and expansion of the CLA and the CEA, including with a view to ensuring the viability of the traditional activities of these communities;
(iv).. the progress made in identifying and demarcating the lands traditionally occupied by the Quilombola communities following the adoption of the Technical Study on Identification and Demarcation and the measures adopted to guarantee the rights of ownership and possession of these communities over their traditional lands and to safeguard their right to use lands not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities; and
(v)... the special measures adopted, in accordance with Article 4 of the Convention, to safeguard the persons, institutions, property, labour, cultures and environment of the communities concerned for as long as the recognition and demarcation of their lands is pending.
Communication from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), dated 19 September 2008. The Committee asks the Government to reply to the communication from SINTUFSC so as to allow the Committee to examine it in detail at its next session.
Article 1(2). Undermining of the application of the criterion of self-identification. The CUT also states that the criterion of self-identification established in Article 1(2) of the Convention was incorporated in national law by means of Decree No. 4887/2003, which regulates the procedure for granting titles regarding lands occupied by the remaining Quilombola communities. Nevertheless, the Government is allegedly undermining self-identification by means of subsequent legislation (Decree No. 98/2007), thereby preventing issues regarding land titles from being settled since doing so depends on registration of communities. It is, according to the trade union, more and more difficult to obtain registration and thus secure the application of other rights, in particular with regard to land. The violation of the criterion of self-identification is also visible in the dispute between the Quilombola community of Isla de Marambai and the Navy. The communities identify themselves as indigenous and claim the protection afforded by the Convention. Although occurring less frequently, the indigenous identity of the Indians of the North-East is sometimes not recognized either, and this makes the recognition of their rights to the lands they have traditionally occupied more difficult. In the light of the information received, the Committee considers that the Quilombola communities appear to meet the requirements laid down by Article1(1)(a) of the Convention, according to which the Convention applies to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations”. Article 1(2) states that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups for which the provisions of this Convention apply”. The Committee requests the Government to provide information on the application of the Convention to the Quilombola communities, and should the Government consider that these communities do not constitute tribal peoples within the meaning of the Convention, the Committee requests the Government to state the reasons for its viewpoint.
Communication from the CUT. Articles 2, 6, 7 and 33. Consultation and participation. The communication indicates that although there has been an increase in social dialogue, the effectiveness of such forums is questioned by the indigenous peoples because of their defining features (places which are difficult to access, convocations issued with little notice or superficial discussions) and the impression exists that the sole purpose of such consultations with the peoples, when they are actually held, is to rubber-stamp public policies. The Committee reminds the Government, as it has done repeatedly, that consultation and participation must not just be formal and devoid of content but must constitute a genuine dialogue, by means of appropriate mechanisms, so that they can result in projects including those in which the peoples covered by the Convention may participate in their own development. The Committee requests the Government to examine the existing mechanisms for consultation and participation, in cooperation with the indigenous organizations, so as to ensure that they are in conformity with the Convention, and to supply information in this respect.
Article 6. Consultation and legislation. The communication indicates that no consultation takes place with regard to the legislative and administrative measures referred to in Article 6 of the Convention. Examples of this are Decree No. 98/2007 concerning the Palmares Cultural Foundation referred to above, the draft Act concerning mining on indigenous lands (PL No. 1610/1996) and draft Decree No. 44/2007, which suspends the application of Decree No. 4887/2003 regulating the procedure for granting titles regarding Quilombola lands. The Committee notes that governments have the obligation to consult the peoples covered by the Convention whenever consideration is given to legislative or administrative measures which may affect them directly, and requests the Government to supply information in this respect.
Article 14. Lands. The CUT points out that the Constitution guarantees for Indians and Quilombola communities the right to the lands which they occupy but, although there are 343 indigenous territories and 87 Quilombola territories which are registered, land titles have still not been regularized for most of the lands; 283 indigenous lands and 590 Quilombola lands are the subject of administrative proceedings and 224 indigenous lands have not even reached this stage. The number of indigenous persons who have been killed has increased, particularly in Mato Grosso do Sul, as a result of unresolved land disputes. The Committee requests the Government to supply information on the application of Article 14 of the Convention with regard to the Quilombola communities.
Articles 6, 7 and 15. Participation, consultation and natural resources. Detailed reference is made to five projects in which the CUT alleges there has been no participation or consultation: (1) the Belo Monte hydroelectric project; (2) diversion of the River San Francisco; (3) draft Act No. 2540/2006, which proposes authorization for a hydroelectric project at the Tamanduá Falls on the River Cotingo in the Raposa Serra do Sol indigenous territory; (4) the Guaraní-K’iwoá indigenous territory, where 12,000 indigenous persons live confined to reserves such as Dourados, living in abject poverty, with projects and policies implemented without any consultation or participation; (5) mining in the Cinta Larga indigenous territory, which will be severely affected by the draft law on mining, regarding which there has been no consultation with the peoples concerned. The Committee expresses its concern regarding the allegations and reminds the Government that, under the terms of Article 7, it must ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee requests the Government to supply detailed information regarding the cases referred to above.
The Committee hopes that the Government will supply detailed information in this regard. The Committee requests the Government to send its comments on these communications, together with its reply to the present comments. Noting that the Government’s report does not provide a reply to the questions posed by the Committee in its 2005 direct request, it requests the Government to also include a reply to the 2005 comments.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.
The Committee recalls that on 27 August 2008 it received a communication from the STTR and SINTRAF on the application of the Convention in the country, which was sent to the Government on 5 September 2008. It also recalls that on 1 September 2008, it received a communication from the Single Confederation of Workers (CUT) sent to the Government on 18 September 2008. This communication also attached comments made by the following indigenous organizations: the Coordinating Committee of the Indigenous Peoples of the North-East, Minas Gerais and Espírito Santo (APOINME), the Indigenous Council of Roraima (CIR), the Coordinating Committee of the Indigenous Organizations of Brazilian Amazonia (COIAB) and the Warã Brazilian Indian Institute. Furthermore, the Committee recalls that it received a communication, dated 19 September 2008, from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), forwarded to the Government on 4 November 2008.
The Committee notes that, according to what emerges from the information submitted by the Government, the Technical Study on Identification and Demarcation was published. Following an administrative conciliation procedure between the governmental institutions concerned (Ministry of Science and Technology, Ministry of Agricultural Development, National Institute for Settlement and Agrarian Reform (INCRA), the Brazilian Spatial Agency and the Alcántara Space Centre), the Study established that 78,105.3466 hectares will be considered as territory of the Quilombola communities of Alcántara. The Committee understands that this entailed the reduction of the territory occupied by Quilombola communities and notes that the indications regarding the extent of such reduction differ. The Committee also notes that, according to article 11 of Decree No. 4887/2003, when the lands occupied by descendants of Quilombola communities overlap with, among others, national security areas, appropriate measures shall be taken to ensure the sustainability of these communities, conciliating, at the same time, States’ interests. In this regard, the Committee notes that according to the Advisory Opinion/AGU/MC/N.1/2006 of the Attorney General, in the event of overlapping interests, conflicts shall be settled in the light of the principle of “reasonableness”.
Likewise, the Committee emphasizes that governments have the obligation, under Article 6(1)(a) and (2), of the Convention, to consult the peoples covered by the Convention, through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly, with the objective of achieving agreement or consent to the proposed measures. The Committee also draws the Government’s attention to the fact that, pursuant to Article 7(3) of the Convention, governments shall ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The Committee cannot overemphasize that the results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee notes that the information provided by the Government does not contain any reference to the participation of the affected communities in the procedure mentioned above. Neither does it contain references to their consultation. In light of the above, the Committee asks the Government to provide detailed information on:
(i) the way in which the participation and consultation of the Quilombola communities affected were ensured, through their representative institutions, with the objective of achieving agreement or consent about the solution of the case, including information on the participation of these communities in the elaboration of the Technical Study on Identification and Demarcation;
(ii) the way in which due account was taken of the obligation to ensure the cultural, social and economic integrity of the Quilombola communities affected when reconciling the conflicting interest of the parties involved in the issue at hand;
(iii) the measures adopted to carry out studies in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of the establishment and expansion of the CLA and the CEA, including with a view to ensuring the viability of the traditional activities of these communities;
(iv) the progress made in identifying and demarcating the lands traditionally occupied by the Quilombola communities following the adoption of the Technical Study on Identification and Demarcation and the measures adopted to guarantee the rights of ownership and possession of these communities over their traditional lands and to safeguard their right to use lands not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities; and
(v) the special measures adopted, in accordance with Article 4 of the Convention, to safeguard the persons, institutions, property, labour, cultures and environment of the communities concerned for as long as the recognition and demarcation of their lands is pending.
Communication from Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), dated 19 September 2008. The Committee asks the Government to reply to the communication from SINTUFSC so as to allow the Committee to examine it in detail at its next session.
Noting the Government does not provide information in respect to the other points raised in its previous observation, the Committee is bound to repeat its previous observation, which read in relevant parts as follows:
Article 1, paragraph 2. Undermining of the application of the criterion of self-identification. The CUT also states that the criterion of self-identification established in Article 1(2) of the Convention was incorporated in national law by means of Decree No. 4887/2003, which regulates the procedure for granting titles regarding lands occupied by the remaining Quilombola communities. Nevertheless, the Government is allegedly undermining self-identification by means of subsequent legislation (Decree No. 98/2007), thereby preventing issues regarding land titles from being settled since doing so depends on registration of communities. It is, according to the trade union, more and more difficult to obtain registration and thus secure the application of other rights, in particular with regard to land. The violation of the criterion of self-identification is also visible in the dispute between the Quilombola community of Isla de Marambai and the Navy. The communities identify themselves as indigenous and claim the protection afforded by the Convention. Although occurring less frequently, the indigenous identity of the Indians of the North-East is sometimes not recognized either, and this makes the recognition of their rights to the lands they have traditionally occupied more difficult. In the light of the information received, the Committee considers that the Quilombola communities appear to meet the requirements laid down by Article1(1)(a) of the Convention, according to which the Convention applies to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations”. Article 1(2) states that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups for which the provisions of this Convention apply”. The Committee requests the Government to provide information on the application of the Convention to the Quilombola communities, and should the Government consider that these communities do not constitute tribal peoples within the meaning of the Convention, the Committee requests the Government to state the reasons for its viewpoint.
Communication from the CUT
Articles 2, 6, 7 and 33. Consultation and participation. The communication indicates that although there has been an increase in social dialogue, the effectiveness of such forums is questioned by the indigenous peoples because of their defining features (places which are difficult to access, convocations issued with little notice or superficial discussions) and the impression exists that the sole purpose of such consultations with the peoples, when they are actually held, is to rubber-stamp public policies. The Committee reminds the Government, as it has done repeatedly, that consultation and participation must not just be formal and devoid of content but must constitute a genuine dialogue, by means of appropriate mechanisms, so that they can result in projects including those in which the peoples covered by the Convention may participate in their own development. The Committee requests the Government to examine the existing mechanisms for consultation and participation, in cooperation with the indigenous organizations, so as to ensure that they are in conformity with the Convention, and to supply information in this respect.
[The Government is asked to reply in detail to the present comments in 2010.]
The Committee notes a communication received on 27 August 2008 and sent to the Government on 5 September 2008, containing observations on the application of the Convention from the Union of Rural Workers of Alcántara (STTR) and the Union of Workers of Family Agriculture of Alcántara (SINTRAF). It also notes another communication from the Single Confederation of Workers (CUT) received at the ILO Office in Brasilia on 1 September 2008 and sent to the Government on 18 September 2008. This communication also attaches comments made by the following indigenous organizations: the Coordinating Committee of the Indigenous Peoples of the North-East, Minas Gerais and Espírito Santo (APOINME), the Indigenous Council of Roraima (CIR), the Coordinating Committee of the Indigenous Organizations of Brazilian Amazonia (COIAB) and the Warã Brazilian Indian Institute. The Committee notes that the Government’s report was received on 31 October 2008, and it was therefore too late for it to be fully examined at this meeting. The Committee notes that the Government has not yet replied to the abovementioned communications. The Committee notes the communication dated 18 September 2008 from the Workers’ Union of the Federal University of Santa Catarina (SINTUFSC), which it will examine next year together with any comments the Government wishes to make.
Article 1(1)(a) of the Convention. Scope of application. Black rural Quilombola communities. Both communications refer to the Quilombola communities and maintain that the remaining Quilombola communities constitute tribal peoples within the meaning of Article 1(1)(a) of the Convention. They indicate that these are social groups whose origins lie in the resistance movement to slavery in Brazil and to racial discrimination, and whose ethnic identity is based on common ancestry and a differentiated way of life. The Brazilian Constitution of 1988 guarantees to Quilombola communities their right to ownership of their lands and recognizes the importance of such communities for the cultural heritage of Brazil. The CUT indicates that, even though the executive and judicial authorities have recognized in documents or rulings that the Convention applies to the Quilombola communities, the Government merely provides information in its report on the situation of the indigenous peoples covered by Article 1(1)(b) of the Convention. The CUT claims that there is a pressing need to include information on the realities of life for the Quilombola communities in the Government’s report with reference to Article 1(1)(a) of the Convention and guarantee the effective application of the Convention to these communities. The General Land Registry of the Remaining Quilombola Communities, under the responsibility of the Palmares Cultural Foundation, has registered the existence of 1,228 Quilombola communities, but the National Coordinating Committee of the Black Rural Quilombola Communities, indicates the existence of more than 3,000 communities scattered over all the regions of the country.
Article 1(2). Undermining of the application of the criterion of self-identification. The CUT also states that the criterion of self-identification established in Article 1(2) of the Convention was incorporated in national law by means of Decree No. 4887/2003, which regulates the procedure for granting titles regarding lands occupied by the remaining Quilombola communities. Nevertheless, the Government is allegedly undermining self-identification by means of subsequent legislation (Decree No. 98/2007), thereby preventing issues regarding land titles from being settled since doing so depends on registration of communities. It is, according to the trade union, more and more difficult to obtain registration and thus secure the application of other rights, in particular with regard to land. The violation of the criterion of self-identification is also visible in the dispute between the Quilombola community of Isla de Marambai and the Navy. The communities identify themselves as indigenous and claim the protection afforded by the Convention. Although occurring less frequently, the indigenous identity of the Indians of the North-East is sometimes not recognized either, and this makes the recognition of their rights to the lands they have traditionally occupied more difficult. In the light of the information received, the Committee considers that the Quilombola communities appear to meet the requirements laid down by Article 1(1)(a) of the Convention, according to which the Convention applies to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations”. Article 1(2) states that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups for which the provisions of this Convention apply”. The Committee requests the Government to provide information on the application of the Convention to the Quilombola communities, and should the Government consider that these communities do not constitute tribal peoples within the meaning of the Convention, the Committee requests the Government to state the reasons for its viewpoint.
Articles 6, 7 and 15. Participation, consultation and natural resources. Detailed reference is made to five projects in which there has been no participation or consultation: (1) the Belo Monte hydroelectric project, (2) diversion of the River San Francisco, (3) draft Act No. 2540/2006, which proposes authorization for a hydroelectric project at the Tamanduá Falls on the River Cotingo in the Raposa Serra do Sol indigenous territory, (4) the Guaraní-K’iwoá indigenous territory, where 12,000 indigenous persons live confined to reserves such as Dourados, living in abject poverty, with projects and policies implemented without any consultation or participation, (5) mining in the Cinta Larga indigenous territory, which will be severely affected by the draft law on mining, regarding which there has been no consultation with the peoples concerned. The Committee expresses its concern regarding the allegations and reminds the Government that, under the terms of Article 7, it must ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee requests the Government to supply detailed information regarding the cases referred to above.
Communication from the STTR and SINTRAF
Quilombola communities of Alcántara. This communication alleges a blatant failure to comply with the Convention with respect to the Quilombola communities of Alcántara in the state of Maranhao on the part of the Brazilian Space Agency (AEB) and Alcántara Cyclone Space (ACS), a bi-national company jointly owned by Brazil and Ukraine, on account of the establishment and expansion of the Alcántara Launch Centre (CLA) and the Alcántara Space Centre (CEA) on territory traditionally occupied by Quilombola communities, without their being consulted and without their participation.
The Government of the state of Maranhao is alleged to have expropriated 52,000 hectares via Decree No. 7320 during the 1980s, and in 1991, by another Decree of the Presidency of the Republic, the area expropriated for the space centre was increased by 62,000 hectares. Agrarian communities were forcibly displaced, without any technical assistance in agriculture being provided or access to the sea being granted. Fishing represents a substantial part of their economy. In order to reach the sea, they have to travel 10 kilometres and cross the enclosed area of the space centre. Twenty years on, they are living in conditions of extreme poverty and the remaining communities which were able to stay do not have titles in respect of their lands and suffer from the impact of the space centre’s activities. No environmental impact study was carried out with regard to the activities resulting from the establishment of this centre. The Government approved the addition to the initial launch site of another six commercial launch sites, which would occupy 14,303 hectares superimposed on the areas currently used by the Quilombola communities for farming, housing, stock rearing, worship and religious events.
In particular, the communication alleges that two agreements were signed with Ukraine without previous consultation which will have strong repercussions on the communities. The first of these is the “Technological safeguards agreement” connected with the launch centre, signed in January 2002 and promulgated by Decree No. 5266 of 2004. The other is the “Treaty on long-term cooperation in the use of the Cyclone-4 launch vehicle”, signed on 21 October 2003 and promulgated by Decree No. 5436 of 2005.
According to the communication, since 1999, the Chief Federal Public Prosecutor of Maranhao is reported to have been questioning the environmental aspects of the expansion of the space centre and the failure to issue land titles to the communities in respect of the lands they occupy. In September 2006, an agreement was signed between the Chief Federal Public Prosecutor and the Federal Government in the context of judicial proceedings, which determined that the process of granting land titles should be initiated and concluded within a period of 180 days. The land titles proceedings were launched by the National Institute for Settlement and Agrarian Reform (INCRA) and this was due to be completed on 31 October 2007. To the present date, the technical study on identification and demarcation has not been published. Only from the date of publication of this study are the parties concerned able to launch an appeal. However, the Government is reported to have already started activities to establish and expand the centre.
The organizations also state that in May 2008, the Chief Federal Public Prosecutor of Maranhao instituted legal proceedings against the AEB, ACS and the Foundation for the Application of Critical Technologies (ATECH) to “guarantee the rights of the Quilombola communities of Alcántara against actions committed by the defendants, which represent damage to the integrity of possession of ethnic territories and affect the environmental resources of the region and also the activities and way of life of the members of the ethnic groups”. The Chief Federal Public Prosecutor’s Office also stated that companies must refrain from prospecting, drilling or demarcation operations until the process of identification, recognition, delimitation and granting of land titles is completed.
The communication from the organizations highlights the intrinsic connection between lands, environment, life, religion, identity and culture. It repeats the request that the rights of these peoples to the lands should not be considered only from the point of view of ownership but also in terms of interdependence with other rights, as provided for by Article 13 of the Convention.
The Committee refers to the points made in the second paragraph of this observation, according to which the communities in question appear to meet the requirements for being covered by the Convention and they identify themselves as tribal peoples within the meaning of Article 1(1)(a) of the Convention. The Committee points out that, in as much as these communities appear to be covered by the Convention, the Government is required to apply Articles 6, 7 and 15 on consultation and natural resources and Articles 13 to 19 on land. The Committee refers in particular to Article 7(3), which requires the Government to ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. The Committee also draws the Government’s attention to its obligation laid down in Article 4(1) of the Convention to adopt special measures as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. The Committee hopes that the Government will supply detailed information in this regard. The Committee requests the Government to send its comments on these communications, together with its reply to the present comments. Noting that the Government’s report does not provide a reply to the questions posed by the Committee in its 2005 direct request, it requests the Government to also include a reply to the 2005 comments.
[The Government is asked to reply in detail to the present comments in 2009.]
The Committee notes with interest the Government’s detailed first report, prepared with the participation of the National Indian Foundation (FUNAI), and the ample documentation attached to the report, all of which is indicative of the attention the Government accords to applying the Convention.
1. Legislation. In its last comments on Convention No. 107, the Committee noted that the Executive had submitted to the National Congress a proposal to consolidate the legislation on indigenous peoples, which implements virtually all the constitutional provisions on indigenous matters and serves as a framework for indigenous policy in Brazil. The Committee notes that the legislation has not as yet been consolidated. It hopes that during the debate on consolidation, the Government will take into account the recent ratification of Convention No. 169, particularly Article 6, under which governments are required to consult the peoples concerned through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The Committee invites the Government, should it see fit, to request technical assistance from the ILO, in consolidating the above legislation, to ensure that the various Bills are compatible with the Convention.
2. Article 1 of the Convention. Self-identification. The Committee notes that, according to the Government’s report, there are approximately 400,000 Indians in Brazil, with more than 180 languages and living in 220 villages distributed throughout the country. The Committee notes that Act No. 6,001 "Indian Statute" of 19 December 1973 indicates, in section 3, that for the purposes of the Act the following definitions apply: "Indians or forest dwellers: persons of pre-Colombian origin and ascendancy who identify themselves and are identified as belonging to an ethnic group having cultural characteristics that distinguish it from the national society". The Committee would be grateful if the Government would specify how this Article of the Convention is applied in the various censuses conducted to determine the number of indigenous persons in Brazil. It also asks the Government to provide information on indigenous peoples who have not been contacted, and particularly on the measures taken or envisaged to protect and safeguard these peoples from undesired contact with outsiders, such as timber enterprises or foreign religious missions.
3. The Committee notes that article 231 of the Federal Constitution of 1988 provides that the social organizations, customs, languages, beliefs and traditions of Indians shall be recognized, as well as their rights of origin to the lands that they traditionally occupy. However, Act No. 6,001, which is still in force as it has not been officially repealed, regulates, in section 1, the legal status of "Indians or forest dwellers and indigenous communities, with a view to preserving their culture and integrating them, gradually and harmoniously, into the national community". The Committee wishes to draw the Government’s attention to the fact that this provision of section 1, as well as others of the said Act, is contrary to the spirit of the Convention and the principles it embodies, and points out that the preamble to the Convention states: "Considering that the developments which have taken place in international law since 1957, as well as the developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards, and Recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live". The Committee hopes that the Government will bear these comments in mind in consolidating the legislation on indigenous matters and that it will keep the Committee informed in this regard.
4. Articles 2 and 33. Coordinated and systematic action with the participation of the indigenous peoples. The Committee notes that the FUNAI and the Federal Office of the Public Prosecutor are responsible for protecting the rights of indigenous peoples and that, together with the General Coordination of the Defence of Indigenous Rights (CGDDI), they have responsibility for receiving and initiating procedures for complaints of abuse of indigenous rights. The Committee would draw the Government’s attention to the fact that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of the indigenous peoples to protect the latter’s rights, and establish that programmes affecting indigenous peoples shall include: (a) the planning, coordination, execution and evaluation, in cooperation with the peoples concerned, of the measures provided for in this Convention; and (b) the proposing of legislative and other measures to the competent authorities and supervision of the application of the measures taken, in cooperation with the peoples concerned. In other words, the Convention establishes the participation of indigenous peoples, from planning through evaluation, in measures that affect them. The Committee would be grateful if the Government would provide information on the participation of indigenous peoples in the FUNAI and on the latter’s role where legislation and programmes affecting indigenous peoples are adopted, indicating in particular the role played by the FUNAI in legislation adopted during the period covered by the next report. To sum up, the Committee would be grateful if the Government would provide information on the manner in which it ensures, with the participation of the indigenous peoples concerned, the coordination of existing programmes at all stages, from planning through evaluation, in accordance with Articles 2, paragraph 1, and 33, paragraph 2(a) and (b), of the Convention.
5. Article 4. Special measures. The Committee notes that an "interministerial technical cooperation group" has been set up, in which the FUNAI takes part, to set priorities and determine emergency actions for indigenous peoples. Please provide information on the priorities established and the actions carried out. Please indicate whether the priorities include the health situation of indigenous children, particularly in areas with high mortality and malnutrition rates, and the coordination of policies with the Ministry of Health.
6. Article 5. The Committee notes the provisional measure MP No. 2186-16 of 23 August 2001, which, in Chapter III, establishes the protection of traditional knowledge through the Management and Genetic Heritage Council (CGEN) with the participation of the FUNAI. Please indicate, for instance, whether any intellectual property has been registered for indigenous communities and whether the latter benefit therefrom.
7. Article 6. Consultations. The Committee notes that the Federal Constitution (article 231(3)) provides that the peoples concerned must be consulted before the Congress issues authorizations, in instances where the indigenous population is affected as in the case of use of water resources and the exploration and exploitation of mineral resources. Since this information concerns consultations regarding natural resources, the Committee will come back to the matter in examining the application of Article 15. Article 6 is more general in scope and concerns procedure. The Committee points out that under this Article, the peoples concerned must be consulted whenever consideration is being given to legislative or administrative measures which may affect them directly. Please provide information on the manner in which the legislation provides for consultation in the event of administrative and legislative measures, in accordance with Article 6(1)(a) of the Convention. Please also provide information on the manner in which such consultations are conducted, particularly in the light of the basic requirements for consultations (prior consultations, conducted through representative institutions of the indigenous peoples concerned and by means of appropriate procedures).
8. Article 7. Participation. The Committee notes that, according to the report, indigenous peoples have the greatest interest in the protection of their territories and that, consequently, members of such communities are included in any supervisory and protective measures conducted on indigenous land. It notes the examples of participation cited, including that of the Kapayó and Pará Indians. The Committee would be grateful if the Government would send detailed information on how it provides for participation by indigenous peoples in the administration of state-owned forest areas. Please also indicate whether legislation provides for such participation in all cases, indicating any exceptions, and whether studies have been carried out in cooperation with the peoples concerned to assess the social, spiritual, cultural and environmental impact on these peoples of development activities planned on land they occupy or otherwise use.
9. Articles 8 to 12. Administration of justice. The Committee notes that the Federal Constitution provides, in article 232, that indigenous peoples and their communities and organizations may legitimately take part in legal proceedings to protect their rights and interests, with the Public Prosecutor intervening at all stages of the proceedings. It notes, however, that sections 7-11 of the Indian Statute, "Assistance or Guardianship", establishes legal guardianship of indigenous peoples and their members. It also notes that according to section 9, any indigenous person may apply to the competent judge for release from guardianship and assume full civil capacity provided the following requirements are met: minimum age of 21 years; knowledge of the Portuguese language; ability to carry out a useful activity in the national community; reasonable understanding of the national community’s customs and habits.
10. The Committee further notes that in section 56, the Indian Statute provides that where an indigenous person is convicted of a criminal offence, the penalty shall be mitigated and that, in executing it, the judge shall take into account the degree of the person’s integration in a forest community (integración silvícola). Section 57 provides that, in the case of tribal groups and in accordance with the latter’s own institutions, the imposition of penal or disciplinary sanctions on their members shall be allowed provided the sanctions are not cruel or degrading, the death penalty being prohibited in all cases.
11. The Committee points out that legal guardianship by the Union of Indigenous Peoples, while affording these peoples some protection, is in direct conflict with the Convention and with article 231 of the Federal Constitution as referred to above in view of the protectionist nature of guardianship and the emphasis placed on autonomy in the Convention. For example, it conflicts with Article 8, paragraph 3, according to which the application of paragraphs 1 and 2 of this Article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties. It notes, however, that indigenous people may relinquish guardianship voluntarily. Please indicate the percentage of indigenous people under guardianship and the consequences of release from guardianship in terms of the rights laid down in the Convention. The Committee also repeats its previous observation that it hopes that the Government will take into account its comments when consolidating the legislation on indigenous issues and that it will keep the Committee informed in this respect.
12. The Committee also points out that there is an obvious contradiction between section 9 of the Indian Statute and Article 12 of the Convention which provides that the peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights and that measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means. Nevertheless, under section 9 of the Indian Statute, the Portuguese language is a requirement for release from guardianship, whereas Article 12 of the Convention establishes an individual and collective right for indigenous peoples to take legal action in their own language. In the Committee’s view, to require an indigenous person to speak Portuguese in order to be released from guardianship and take legal action appears inconsistent with the Convention. It would be more consistent with the Convention if, as well as being able to take legal action in her or his own language, indigenous people were afforded assistance and protection by the FUNAI or the Ministry of the Interior in a manner other than that provided by guardianship. The Committee would be grateful if the Government would state whether studies have been conducted on this matter and would comment on this paragraph indicating any possible alternatives to guardianship.
13. Land. The Committee notes that the criteria for identifying and establishing borders for indigenous lands are set forth in Decree No. 1775/96 and Ordinance No. 14/MJ of 1996 and that the work of establishing borders is carried out in accordance with the Handbook of Technical Standards for Demarcating Indigenous Lands. It notes that, at present, more than 70 per cent of indigenous lands recognized in Brazil have been demarcated and approved. It also notes that of the lands demarcated or in the process of approval, 90 per cent are located in the "Legal Amazon". Please indicate how Article 14, paragraph 3, of the Convention is applied with regard to procedures for resolving land claims by the peoples concerned. The Committee notes that the problem is not one of demarcation and approval, but of how to respect in practice the integrity of demarcated and approved indigenous lands: as noted in the Committee’s comments under Convention No. 107, there are problems linked to the presence of private owners, timber and agricultural and stock-raising enterprises setting up on indigenous lands. The Committee would be grateful if the Government would indicate, out of the total area of land demarcated and approved, the area of the land which is free of dispute and in which indigenous peoples can live in peace, and the percentage of land in which there is dispute and in which, despite regularization, it is still not possible to ensure that the peoples concerned are able peacefully to exercise their rights over the land. Please also indicate the strategy for resolving these problems, as stipulated in the Convention.
14. Raposa del Sol. The Committee notes the information supplied by the Government in response to its comments on Convention No. 107, indicating the decision of the Federal Supreme Court for "discontinuous" approval of the indigenous land Raposa del Sol in Roraima, and that the FUNAI and the Federal Office of the Public Prosecutor are exploring ways of preventing these lands from being divided into islands. Please continue to provide information on the development of this situation and in particular about the conflicts that have arisen between agricultural producers and indigenous people. In the same comments, the Committee noted persistent reports of several serious problems caused by the construction of a military base in Roraima, opposed by the Yanomami indigenous tribe, a particularly vulnerable population which has been seriously affected. The Committee requests the Government to provide information on further developments in this matter.
15. Article 15. Consultation and natural resources. With regard to forestry exploitation, the Committee notes that provisional measure No. 2,166-67 of 2001 provides for amendment of the Forestry Code of Brazil to allow exploration for forestry resources in indigenous lands and that the forestry management plan is to be examined by the FUNAI and by Ibama. With regard to mineral exploration and exploitation, the Committee notes the information in the report concerning the monopoly of the Union, and notes that exploration for these resources is subject to authorization from Congress and consultation of the communities affected. According to the report, the matter is highly complex because major public and private interests are involved. The Committee could be grateful if the Government would state how the legislation makes provision for the consultations established in Article 15, the purpose of which is to ascertain whether and to what degree the interests of the peoples concerned would be prejudiced, before undertaking or permitting any programmes for exploration, and how it ensures that the peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damage. Please provide information on the participation by these peoples in the benefits and compensation provided pursuant to this Article of the Convention and article 231 of the Constitution.
16. Article 16. Relocation. The Committee notes that article 231(5) of the Constitution prohibits the relocation of indigenous peoples except in the event of a disaster or epidemic endangering the population or the interests of sovereignty, and guarantees the right to return. Please indicate any relocations during the period covered by the next report, stating their causes and describing the circumstances in which they were carried out.
17. Article 18. Intrusion upon indigenous lands. The Committee notes the various actions undertaken by the FUNAI together with the indigenous people against intrusion by independent gold seekers (garimpeiros), and notes that the actions are ongoing in Roraima. This is a matter that the Committee has been examining for several years under Convention No. 107. Please provide information on the unlawful occupation of land by garimpeiros and by estate owners, who sometimes acquire indigenous land unlawfully. Please indicate the measures for preventing lands in the process of approval from being appropriated by private persons or used without consultation of the indigenous peoples.
18. The Committee notes the documents attached to the Government’s report containing information on assaults and killings of indigenous persons over issues of land, for which complaints were filed with the FUNAI, and on indigenous lands, maps and the relationship between crime and land disputes. It notes with concern the number of killings of indigenous people, including representatives of the indigenous communities of Rondonia and members of the Pataxó Hã-Hã-Hãe. It also notes the killings of Truká indigenous people in the northwest of Brazil in 2000, including the community chief and his son. According to the FUNAI, these crimes are not isolated incidents. The Committee requests the Government to provide information on the measures taken to prevent these crimes related to land disputes and to identify and try the perpetrators and impose dissuasive sanctions.
19. Article 19. National Agrarian Programmes. The Committee notes that in 2004 representatives of the Federal Government and indigenous organizations, with the participation of financial agents, established a working group to facilitate access to agricultural credit for indigenous peoples. What makes this a complex matter is that the indigenous peoples - although land regularization has been completed - have usufruct, not ownership, of the land. The Committee would be grateful if the Government would provide information on the follow-up of this issue and on developments regarding the Programme of Technical Assistance and Rural Extension.
20. Article 20. Recruitment and conditions of employment. The Committee would be grateful if the Government would indicate the main problems encountered in applying this Article to indigenous workers, and the role played by the FUNAI, with regard to indigenous people not under guardianship. Please provide information on the activities undertaken by the labour inspectorate in supervising the application of this Article of the Convention to indigenous workers.
21. In its previous observation on Convention No. 107, the Committee noted with interest the Community Charter on Social Rights in Indigenous Labour Relations, concluded on 2 May 2002 by indigenous representatives, the government of Mato Grosso do Sul, the FUNAI, other state institutions, the Order of Attorneys of Brazil, the Regional Indian Missionary Council and enterprises in the State of Mato Grosso. It noted that, while allowing individual contracts, the Charter establishes that recruitment of indigenous persons shall take place by means of team contracts, to be recorded in the Registers of Labour and Social Insurance, and determines the applicable laws, establishes a fine of 100 UFIRS (payable to the indigenous communities) per worker and per infringement in the event of failure to comply with any clause of the Charter and contains other provisions on medical examinations, the number of workers, periods of leave and the promotion of this type of contract. The Committee expressed the hope that team contracts would make an effective contribution to combating the unlawful employment of indigenous people in the State of Mato Grosso. The Committee requests the Government to continue to provide information on the use made of such contracts in practice, indicating whether a signification number of enterprises and indigenous workers have signed team contracts, and pointing out any problems that may have been encountered, any infringements reported and sanctions imposed, together with any other information which may help to provide a better appreciation of the practical results of team contracts. The Committee notes the information supplied by the Government on the activities of the CGDDI with regard to the work situation of indigenous people in Mato Grosso do Sul. It notes that there are approximately 400 labour disputes involving indigenous persons and that agreements were reached for compensation or retroactive entry in the register. The Committee requests the Government to continue to provide information on this matter and to state whether any indigenous workers are being subjected to forced labour practices in Mato Grosso and Mato Grosso do Sul or in other regions.
22. Articles 21 to 23. Vocational training, handicrafts and rural industries. The Committee notes the various programmes referred to in the report, and the activities of the Micro- and Medium-Sized Enterprises Support Service (SEBRAE) and the National Industrial Apprenticeship Service (SENAI), inter alia. The Committee also notes that UNESCO has set up a cooperation contract with the FUNAI to develop and strengthen indigenous cultures in Brazil. The Committee would be grateful if the Government would continue to provide information on the measures taken to apply these Articles.
23. Social security and health. The Committee notes that since 1999 the Ministry of Health, particularly the National Health Foundation (FUNASA), has been responsible for indigenous health. This means that the structure whereby the FUNAI provided support for indigenous health through the Casas do Indio, has been transferred to FUNASA, removing from the FUNAI an essential element for providing indigenous healthcare. One serious problem is that there are no shared data between FUNASA and the FUNAI allowing the provision of comprehensive care to these peoples. According to FUNASA data, infant malnutrition is not confined to indigenous villages in Mato Grosso do Sul and is to be found in other states. The child mortality rate is higher than that of black children or white children. The highest child mortality rates are to be found in the communities of Alto Rio Juruá (AC), Xavante (MT) and Rio Tapajós (PA). The Committee notes further that in Maranhão, in March 2005 alone, 14 Guajajara children died of malnutrition. The Committee observes that the problem is multifaceted and involves among other factors the high mortality rate among indigenous children in several states and death from malnutrition among indigenous children. The Committee is bound to note that FUNASA is an organ of the Ministry of Health, apparently without specialization on indigenous questions which would allow it to deal with these serious problems in a comprehensive manner. The Committee accordingly asks the Government to indicate whether the special emergency measures it referred to previously include mechanisms for coordination between the policies of the FUNAI and the Ministry of Health, and urges the Government to take measures rapidly to reactivate the health system for indigenous peoples, if it has not already done so. It would be grateful if the Government would provide information on this matter, and particularly on measures taken or planned by both institutions - and the coordination between them - to deal with the above problems of death from malnutrition and infant deaths which, although public health issues, are also related, inter alia, to the maintenance of lands traditionally occupied by indigenous peoples which are essential to their survival and contact with the dominant society.
24. Education and the media. The Committee notes that according to the UNDP report "Democracy in Latin America: Towards a citizen’s democracy", published in 2004, significant progress has been made in a number of countries in protecting indigenous rights and, although several constitutions recognize the multinational and pluriethnic nature of their societies, the legislation is wanting and their languages continue to go unrecognized as official languages. Table 23 of the report indicates that, in Brazil, no indigenous language has been given recognition as an official language of the State. The Committee would be grateful if the Committee would indicate the manner in which the development and practice of indigenous languages is promoted and asks it to continue to provide information on the application of the Articles included in this section.
25. Article 32. Contacts and cooperation across borders. The Committee notes the Project on the Protection of Indigenous Lands and Peoples of the Legal Amazon (PPTAL), which is part of the pilot programme for the protection of tropical rainforest under the responsibility of the presidency of the FUNAI. The Committee would be grateful if the Government would indicate whether other governments of adjacent countries and indigenous peoples participate across borders in the above project or other joint projects. The Committee notes that according to the Government, the possibility of joint operations between Brazil and the Bolivarian Republic Venezuela is being studied with a view to combating unlawful mining on indigenous lands. The Committee would be grateful if the Government would provide information on developments in the above discussions and agreements with Venezuela for affording the protection laid down in the Convention to peoples separated by international borders.