Legality of Belo Monte is Built on a House of Cards
In June of this year in Foz do Iguaçú, Brazil, at the International Hydropower Association's bi-yearly Congress, Eletrobras Director Valter Cardeal declared: "All of the indigenous people, even the Kayapó who live upstream from the area of impacts, are in favor of Belo Monte." Cardeal made the declaration with a straight face, speaking to the audience of dam industry CEOs, financial officers, and government representatives who were probably ecstatic to hear such a development. Too bad it wasn't true. Sitting in the front row were indigenous leaders Sheyla Yakarepi Juruna and Patxon Metuktire. In fact, they said, indigenous people were not properly consulted. And that's against the law.
"All the Tribes are in Favor"
Cardeal supported his claim by using a powerpoint presentation that juxtaposed photos of indigenous leaders Raoní, Tuíra, and Megaron – well known opponents of Belo Monte – with other leaders from the area of impacts on the "Big Bend" in the Lower Xingu Basin, next to a list of meetings held with indigenous people. The data was culled from a report called the "Indigenous Component," in which indigenous leaders' attitudes towards Belo Monte were studied and categorized. The report was added to the Belo Monte EIA in 2009 after the studies were completed, and the government has controversially used the report since then to argue that tribes were properly consulted.
When it comes to ascertaining whether or not tribes were properly consulted, live testimony works so much better than powerpoint data. Listening to Cardeal speak was Sheyla Yakarepi Juruna, an indigenous leader of the Juruna tribe of Km-17, a tribe that will be affected. Sheyla figures prominently in the 2009 report, as the agency visited and interviewed her a number of times in the territory of the Juruna of Km-17.
In Iguaçú, Sheyla decried Cardeal's lie:
"It's easy for you to claim that we're in favor, isn't it. The fact is that there were no indigenous consultations. There were no indigenous consultations. There were small meetings to inform us of the situation at the time. But how will our lives change after the dam is built? This whole time we've demanded to be heard by the National Congress. And we're still waiting for that to happen. The government used us, took advantage of our good faith, and together with FUNAI they went into our communities only to study us. And based on that they said we were consulted. That's a huge lie."
A Legal House of Cards
The lack of indigenous consultations is one of many reasons why the Belo Monte Dam Complex is illegal. Holding proper indigenous consultations is federally mandated by Section 3, Article 231 of the Brazilian Constitution, which I'll keep in the original Brazilian Portuguese: (Here's an English version)
"O aproveitamento dos recursos hídricos, incluídos os potenciais energéticos, a pesquisa e a lavra das riquezas minerais em terras indígenas só podem ser efetivados com autorização do Congresso Nacional, ouvidas as comunidades afetadas, ficando-lhes assegurada participação nos resultados da lavra, na forma da lei."
Many interpret Section 3 of Art. 231 to mean that the members of Congress must hold a public hearing in which Congress hears the affected indigenous communities before issuing its approval or rejection of a project. And in the case of Belo Monte, that didn't happen. What did happen is that Brazilian Congress issued a legislative decree in 2005 to declare Belo Monte a project of national strategic importance. But the second part, "ouvidas as comunidades afetadas," didn't occur before then. In fact, the FUNAI report, which the government uses to substantiate its claims that consultations happened, was not finished until 2009.
And the report, in reality, is a collection of studies about the affected indigenous tribes, not a summary of their positions of rejection or consent. Sheyla summed up the problem: "It's not enough to study us. Consultations were never made."
Another reason why the Belo Monte Dam is illegal is because the government doesn't actually know how Belo Monte will impact the physical and social reproduction of indigenous territories – something that is also protected by the Brazilian Constitution. Section 1 of Article 231 of the Constitution defines the inalienable right of indigenous people to territory and resources for their physical and cultural reproduction:
"São terras tradicionalmente ocupadas pelos índios as por eles habitadas em carácter permanente, as utilizadas para suas atividades produtivas, as imprescindíveis á preservação dos recursos ambientais necessários a seu bem-estar e as necessárias a sua reprodução física e cultural, segundo seus usos, costumes, e tradições."
The Juruna families of the Paquiçamba indigenous territory, the Arara families of the Arara da Volta Grande territory, and the Kayapó families of the Xikrín do Bacajá territory all live on a 100km stretch of the river known as the Trecho de Vazão Reduzida (TVR), or Stretch of Reduced Flow. And if Belo Monte is built, this 100km stretch will only receive at the most 20% of what's left of the Xingu after the water flows through the dam's spillway. This water, in effect, is dead on arrival, while the rest of the river is diverted to the reservoir. The tribes' survival and reproduction of their cultural patrimony will depend on the quality of the dead water coming out of the spillway. And the government doesn't know how that water quality will impact those families.
Instead, the government has stated that it's taking a "wait and see approach" to understanding the impacts of reduced water quality and flow on the TVR. In other words, first build the thing, then figure out how it's impacting those families.
By favoring investment deadlines over due diligence, the government is adding more cards on top of its already fragile house.
Risks and Lies
Needless to say, the legal risk of the project continues to be quite strong. Internationally, the Inter-American Commission on Human Rights (IACHR) has already stated that the project violates international norms, including the Right to Free, Prior, and Informed Consent. Domestically, if Brazilian lawyers were to ever successfully argue that Belo Monte violates Art. 231 in the Federal Supreme Court, the government would face a certain nightmare. According to a recent conversation I had with a contact in Brazilian finance, if such a scenario were to occur, the whole project would be shut down completely. Costs would skyrocket, and the political reverberations would be extremely damaging.
So government reps, including Cardeal from Eletrobras, take to telling a huge lie – "all of the tribes are in favor"– even if, loud and clear, the affected indigenous people are telling us otherwise. It's a huge lie, a huge PR campaign, to cover up the government's dirty secret.
But don't take my word for it. Listen to Sheyla yourself. Watch this YouTube video below to hear Sheyla's response to Cardeal's lie (so far in Portuguese only). Here are a couple of excerpts, in English, of her testimony:
"What is just? To do things only the way the government wants? By ignoring its own laws? Ignoring ILO Convention 169? The international accords to which Brazil is a signatory? Indigenous rights? The Federal Constitution? The Dilma government, the Brazilian government, is violating all of this."
"You see what he's doing? Lying to me in front of my face! I don't believe it. You should all know that Belo Monte is a farce, and we on the Xingu will not let Belo Monte be built by any way! Because the Xingu is our life, the Xingu is our home! The Xingu is our life!"