Framing Prior Consultation in Brazil: Ethnographic Perspectives on Limits of Participation and Multicultural Politics 9783839441756

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Charlotte Schumann (ed.) Framing Prior Consultation in Brazil

Culture and Social Practice

Para a Kantuta, um mundo sem igual

Charlotte Schumann (ed.)

Framing Prior Consultation in Brazil Ethnographic Perspectives on Limits of Participation and Multicultural Politics

D 188

© 2018 transcript Verlag, Bielefeld Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de Cover Layout: Maria Arndt, Bielefeld, based on the concept of Gonne Kühl Cover illustration: © Gonne Kühl, Berlin, 2017 Printed by docupoint GmbH, Magdeburg Print-ISBN 978-3-8376-4175-2 PDF-ISBN 978-3-8394-4175-6

Contents I.

Presentation of the work and contexts for the regulation of prior consultation in Brazil

1. Introduction 11 1.1. Problem of study, research questions and theoretical positioning . . . 15 1.2. Methods and data of this study . . . . . . . . . . . . . . . . . . . . 18 1.3. Structure of this work . . . . . . . . . . . . . . . . . . . . . . . . . 19 2. Facets of prior consultation – building a theoretical toolkit 2.1. Interpretive approaches to legal anthropology . . . . . . . . . . 2.2. Legal pluralism and the anthropology of human rights . . . . . 2.3. The judicialization of politics . . . . . . . . . . . . . . . . . . 2.4. Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5. Multiculturalist politics . . . . . . . . . . . . . . . . . . . . .

. . . . .

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23 24 31 36 39 43

3. Methods 47 3.1. Access to the field and places of research . . . . . . . . . . . . . . . 50 3.2. Gathering and processing field data . . . . . . . . . . . . . . . . . . 58 4. Historic contexts for debating prior consultation in Brazil 61 4.1. The International Labour Organisation and indigenous peoples . . . . 62 4.2. From Convention 107 to Convention 169 . . . . . . . . . . . . . . . 68 4.3. The ILO and participatory rights in Brazil until 2012 . . . . . . . . . 87

II. Actors’ and observers’ perspectives on the process of legal regulation in Brazil 5. Representatives of the right holders in the regulation 99 5.1. Indigenous organizations: COIAB & APIB . . . . . . . . . . . . . . 99

5.2. The National Coordination of Quilombola Communities – CONAQ . 113 5.3. Traditional peoples’ representatives – the CNPCT . . . . . . . . . . 126 5.4. Strategies of the subjects of rights and their representatives . . . . . . 132 6. The Interministerial Working Group (GTI) – the legislators 6.1. The Ministry of Mines and Energy (MME) . . . . . . . . . . 6.2. The National Indian Foundation (FUNAI) . . . . . . . . . . . 6.3. The Palmares Cultural Foundation (FCP) . . . . . . . . . . . 6.4. The Special Secretariat for the Promotion of Racial Equality (SEPPIR) . . . . . . . . . . . . 6.5. The National Department for Transport Infrastructure (DNIT) . . . . . . . . . . . . . . . . . . . . . 6.6. The Ministry of the Environment (MMA) . . . . . . . . . . . 6.7. The General Secretariat of the Presidency (SGPR) Head of the Working Group . . . . . . . 6.8. Actors, arenas, discourses . . . . . . . . . . . . . . . . . . .

141 . . . . 145 . . . . 153 . . . . 160 . . . . 163 . . . . 168 . . . . 172 . . . . 178 . . . . 190

7. Civil society actors – two NGOs 203 7.1. The Catholic Indigenist Missionary Council (CIMI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 7.2. The Instituto Socioambiental – (ISA) . . . . . . . . . . . . . . . . . 214 7.3. Between cooperation and resistance: strategies of the civil society organizations . . . . . . . . . . . . . . 218 8. Observers: international, national & disciplinary experts 8.1. International observers: ILO and the OAS . . . . . . . . . . 8.2. National legal experts: The Office of the Federal Public Prosecutor (MPF) . . . . . . . . . . . . 8.3. Brazilian anthropologists – the disciplinary experts . . . . . . . . . . . . . . . . . . . 8.4. Spreading information and mediating rights . . . . . . . . .

223 . . . . . 224 . . . . . 233 . . . . . 240 . . . . . 244

III. Discussion and Conclusions 9. Discussion I: The implementation of law 253 9.1. Competing discourses on frames for prior consultation in Brazil . . . . . . . . . . . . . . . . . . . . . . 254

9.2. Interlegality and vernacularizers in the regulation process . . . . . . . . . . . . . . . . . . . . . . . 264 9.3. Juridical and political processes as different ways of managing the dispute on prior consultation . . . . . . . . . . . . . 270 10. Discussion II: Prior consultation in Brazil 275 10.1. The practicalities of participation . . . . . . . . . . . . . . . . . . 276 10.2. The Interweaving of law, anthropology and multiculturalist politics in the right to prior consultation . . . . . . . . . . . . . . . . . . . 287 11. Conclusion

295

Acknowledgements

303

A. List of Abbreviations

305

Bibliography

313

Part I. Presentation of the work and contexts for the regulation of prior consultation in Brazil

1. Introduction

The recurrent clashes between indigenous peoples’ organizations and their respective nation-states about infrastructure projects and the use of land and resources are prominent in daily news as well as in scholarly work on Latin America. Implicit in many of these cases are the struggles of indigenous peoples to exercise their right to “free, prior, and informed consent” in consultations with their governments. “Free, prior, and informed consent” (FPIC) today is a basic principle of international human rights and is considered an expression of the fundamental right of indigenous peoples to self-determination. The only international binding legal document that defines indigenous and tribal peoples’ rights to consultation is Convention 169 of the International Labour Organisation (ILO). ILO Convention 169 was adopted by the ILO’s General Assembly in 1989 and is currently ratified by 22 countries worldwide, 15 of them in Latin America1 (International Labour Organization, 1996-2012). In Article 6, the Convention establishes prior consultation as the means through which the agreement of indigenous and tribal peoples to projects or measures affecting them shall be obtained by the governments of the ratifying countries. The topics of consultations are defined in Article 6 as “legislative or administrative measures which may affect [indigenous and tribal peoples] directly”. Article 6 further stipulates general principles for consultations: “The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances [. . . ]” (International Labour Organization, 1996-2012). Since 1989, prior consultation as a right of indigenous and tribal peoples has been taken up and extended in several international

1 | The ratifying countries of ILO Convention 169 include: Argentina, Bolivia, Brazil, the Central African Republic, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, the Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, and Venezuela (International Labour Organization, 1996-2012).

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human rights documents such as in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, adopted in 2007) or the Convention on Biological Diversity (CBD, 1993). In addition, regulatory instruments issued by the World Bank or the International Finance Cooperation increasingly demand prior consultation and participation of indigenous peoples in development projects and policies. Indeed, one could speak of a genuine global career of the principles of FPIC and prior consultation in international law and jurisprudence (Rodríguez-Garavito, César, 2010). Still, the existence of this international legal framework seems far from resolving the ongoing conflicts over resource use and self-determination of indigenous and tribal peoples. This well-known definition of ILO Convention 169 is the foundation for many claims to apply consultation processes all over the world, but especially in Latin American countries (Yrigoyen Fajardo, 2009) where most ratifications exist and the categories of “indigenous peoples” – povos indígenas/ pueblos indígenas – as well as their rights are well established in legal frameworks and public discourse. In Latin America, Convention 169 has been the basis for an increasing number of claims for the application of prior consultation, especially in conflicts involving indigenous peoples, as recent studies show for Brazil (de Andrade, 2008; Yrigoyen Fajardo, 2009; Garzón, 2011), Colombia (Laborde Rubio, 2009; Rodríguez-Garavito, César, 2010), Bolivia and Peru (Flemmer and Schilling-Vacaflor, 2015; Schilling-Vacaflor and Flemmer, 2013; Perreault, 2015). Venezuela, Bolivia, Ecuador, and Colombia included the definition of indigenous and tribal peoples as well as principles of participation contained in ILO Convention 169 into their constitutions (Courtis, 2009; Yrigoyen Fajardo, 2009). Yet more detailed regulations, mostly via decrees, exist only in specific areas such as oil exploration in, for example, Ecuador and Bolivia (Garzón, 2009; Schilling-Vacaflor, 2013). Peru has been the only country in Latin America that attempted a systematic implementation by creating a national law on prior consultation, yet this law and consultation procedures continue to be strongly contested in the country (Garzón, 2009; Schilling-Vacaflor and Flemmer, 2013). Partly caused by this lack of legal regulations of clear guidelines for consultation, many conflicts over consultations that arose in the last decade have been brought before domestic courts in Latin American countries or the Inter-American Commission and Court of Human Rights (Courtis, 2009)2 . These cases show that

2 | Famous examples of decisions of legal experts addressing Convention 169 are the decision of the Colombian Supreme Court to annul the national forest code for lack of consultation (Corte Constitucional de Colombia 2008) or the decision of the Inter-American Commission of Human Rights to demand precautionary measures with regard to the implementation of the

INTRODUCTION | 13

struggles for the recognition of rights defined in ILO Convention 169 continue and so far have not been preventing conflicts between indigenous peoples and their national governments. They rather show that consensus on the meaning of free, prior and informed consent as well as procedures for prior consultation is missing, and that these principles of international human rights law lack institutionalization in national regulations. In addition, the growing visibility and application of the principle of prior consent and consultation have “raised the stakes” in its definition on an international level, as David Szablowski rightly indicates (Szablowski, 2011, p.116). The present study analyzes the process of creating a national norm on prior consultation in Brazil between 2012 and 2014. The Brazilian government ratified ILO Convention 169 in 2002 after already having included many of the contained definitions and participatory rights for indigenous peoples in the Federal Constitution of 1988 (Courtis, 2009, p.56), (Lobão, Ronaldo, 2012, p.76), and (Guimarães, 2006). Yet no consultation has been realized in the country without severe protests of social movements, especially by indigenous organizations3 . The most famous struggle over prior consultation in the country is surely the conflict involving the implementation of the hydroelectric power plant Belo Monte at the Xingu River in the Brazilian Amazon. The construction as well as the commissioning of the hydroelectric power plant have been continuously interrupted by judicial decisions demanding consultation of the affected indigenous peoples (cf. e.g. the collection of important court rulings on (JusBrasil, 2016)). Continuing protests against the social and environmental impacts of the power plant are being led mainly by Brazil’s social movements and indigenous organizations. Apart from claims to apply consultation as defined in ILO Convention 169, demands for prior consultation in Brazil also invoke the Constitutional Article 231, granting territorial rights as well as the right to consultation to indigenous peoples and the Article 68 of the Temporary Constitutional Provisions

hydroelectric power plant Belo Monte in Brazil (IACHR 2011). In another famous case, the conflict between the Sarayaku people and the state of Ecuador about oil production was finally decided on by the Inter-American Court of Human Rights in 2012, confirming the Sarayaku’s right to prior consultation (Inter-American Court of Human Rights 2012). 3 | One of the few cases of consultation under Convention 169 that is widely recognized, yet still contested, was the attempt of the Brazilian government to consult the normative rule that should regulate the process of land titling for Afro-Brazilian quilombola communities (comunidades quilombolas) in 2008. Non-governmental organizations (NGOs) as well as the political organizations representing the consulted quilombola communities raised severe questions and protests against how the process was recognized as “consultation” under ILO Convention 169 (de Andrade, 2008).

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Act (Ato das disposições constitucionais transitórias – ADCT) of the Constitution, granting territorial rights to Afro-Brazilian communities. Thus, experiences with consultations in Brazil have been at least ambivalent. While the very detailed Constitution of Brazil acknowledges explicit rights to territory and participation in matters affecting indigenous and quilombola communities, current consultation processes in Brazil are described as realized on short notice, in inadequate conditions, and without offering real opportunities for indigenous peoples to influence final decisions on the object under consultation (Garzón, 2011, p.63). Summing up the manifold critiques on state measures assuring the right to consultation in Brazil, Biviany Rojas Garzón, legal scholar and activist for indigenous peoples’ rights in Brazil, concluded in 2011 that while the Brazilian state formally recognizes the right of indigenous peoples to discuss public policies aiming at them, it denies them this very right when it comes to actual decisions on infrastructure projects and resource use that affect indigenous peoples’ territories (Garzón, 2011, p.63). While this situation made Brazil just one more case in the long line of conflictive relationships between indigenous peoples and their national governments in Latin America, the governmental announcement to elaborate a legal regulation of prior consultation as defined in ILO Convention 169 appeared to signal change. In January 2012, the Brazilian government created an Interministerial Working Group (Grupo de Trabalho Interministerial – GTI) with the task to set up a draft law for the legal regulation of the proceedings for prior consultation (consulta prévia) in Brazil. Finally, it seemed like the government had decided to listen and discuss the issue with the social movements. The established Working Group consisted of all governmental agencies that deal with indigenous and quilombola communities in the country. Members ranged from the Ministry of Mines and Energy (Ministério de Minas e Energia – MME) to the National Indian Foundation (Fundação Nacional do Indio – FUNAI), all in all the numbers of participating state institutions amounted to an impressive number of 22. The Working Group initiated a participatory process that was meant to include and consult the future right holders already in the creation of the draft law. While this initiative was generally applauded in Brazil and by international observers, the initial steps of the participatory process to create an agreement on the format, scope and general organization of prior consultation already gave a first impression of the challenges of realizing participatory processes in the context of powerful discursive and institutional structures in Brazil. During three years, the Working Group as well as social movements and civil society institutions tried to negotiate a framework for prior consultations in the context of on-going struggles for land and resource use as well as controversial policies regulating these contested issues continued to influence state-civil society relations. In 2014, the mandate of the Working

INTRODUCTION | 15

Group expired without being able to present a proposal for a regulating norm. While no draft for a legal regulation of prior consultation has been officially established and agreed upon to this day, the negotiations and debates have revealed and changed the very complex set of contexts within which prior consultation is interwoven in Brazil.

1.1. P ROBLEM

OF STUDY, RESEARCH QUESTIONS AND THEORETICAL POSITIONING

My point of departure for analyzing the dynamics of regulating prior consultation in Brazil is the conceptualization of law as it is discussed in interpretive approaches to legal anthropology. In line with this literature, I consider law to be part of a group of symbols that are constantly being interpreted and appropriated (Geertz, 2000; Merry, 1990, 1992, 2006b). I address the regulation of prior consultation in Brazil as the confluence of several processes of social negotiation and creation of publicly accepted definitions of a broad range of issues related to prior consultation such as the attributes of free, prior and informed consent (FPIC). Instead of analyzing legal definitions or political conditions for prior consultation, this study focuses on the actors’ struggle to define what prior consultation is about. I analyze what prior consultation meant for the actors of the regulation process and how their institutional and discursive repertoire influenced the construction of the legal framework for prior consultation in Brazil. Important frameworks for applying and discussing prior consultation as a form of dialogue and a way to implement differentiated rights in Brazil were being established in this process of discussing and negotiating a publicly consented understanding of prior consultation. I use Sally Engle Merry’s approach to processes of law application as the negotiation of “frames of meanings”(Merry, 2006b) in order to analyze the discursive strategies used by the participants and observers of the regulation process. With the help of this analytical tool, I argue that processes of law application are not free of friction4 , but they always imply powerful processes of negotiation regarding what a certain norm could or should mean in a specific situation and within the context of already existing norms (Wilson, 1997a). My study presents and discusses the form, impact and origin of these frameworks for establishing a consented

4 | Anna Lowenhaupt Tsing (Tsing, 2005) has coined the term “friction” for processes of global interconnectedness, pointing especially to the fact that translation (e.g. of norms) between different spheres of locality does not happen smoothly or without transformation of the object being translated.

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understanding of prior consultation in Brazil. Thereby, my work traces the process of creating meaning in the regulation of prior consultation in Brazil. Starting from this analysis of the social dynamics of the interpretation of law, the study goes further in asking for the influence of the judiciary on this political process of negotiation. In taking up a discussion led by my research partners, I present aspects of a judicialization of politics in the process of regulating prior consultation in Brazil and discuss the influence of this tendency on the regulation process. In addition, I embed this actorcentered approach by examining the historical and recent attempts of the institutions that discuss and propagate prior consultation on an international level as well as in Brazil. I discuss the different legal sources defining prior consultation in the context of what Boaventura de Sousa Santos named “interlegality” (Santos, 1987) – the interpenetration and interaction of different spheres of legality. I argue that in a situation of modern legal pluralism, competing national and international regulations offered a wide range of possibilities for the interpretation of prior consultation in Brazil. In this context, I refer to Merry’s concept of “vernacularization” as the process of creating differentiated local meanings of transnational concepts (Merry, 2006b; Levitt and Merry, 2009) in order to analyze the crucial role of intermediaries that act between these different spheres and hold ambivalent positions of power and dependency. With this approach, my study addresses a research demand frequently formulated by many anthropologists working in the field of human rights. Richard Wilson (Wilson, 1997a, 2007), for example, cites the necessity to study the interconnectedness and interaction of legal processes operating on different levels, including processes of resistance and appropriation of transnational law. He calls specifically for an exploration of how rights-based normative discourses are produced, translated and materialized in a variety of contexts (Wilson, 1997b, p.13). Pointing to the same gap in research, Sally Engle Merry states that anthropological work on law tends to focus on areas of social life that seem more “traditional” – local disputes and informal conflict management processes, while ignoring important legal institutions such as the police, lawyers, social security systems or administrative regulations (Merry, 1992, p.371). This gap in the focus on legal institutions is exactly what my study aims to fill. Further, in focusing on the perspective of actors negotiating a national norm for prior consultation, I leave behind the classical “village” focus of (legal) anthropology, instead choosing to examine the opportunities and challenges of interpreting law on the national level. This perspective on the national level of application of Convention 169 implies a research focus on administrative and other political centers of power. With the focus described above, this study takes on a perspective on prior consultation not yet covered in the vast body of literature on prior consultation and the various forms of implementation of ILO Convention 169 in Latin America. On the

INTRODUCTION | 17

one hand, this literature is dominated by an enormous body of legal analysis of the international legal framework for indigenous rights and related jurisprudence (Anaya, 25.04.2013, 2004; Courtis, 2009; Niezen, 2003; Brysk, 1996); on the other hand, there is a large amount of studies on existing national legal frameworks for prior consultation (Alcoreza; Amparo Rodriguez, 2011; Clavero; Laborde Rubio, 2009). My critique of both kinds of analysis is that they ignore the fact that the meanings of prior consultation, as well as the conditions for its implementation, are the result of interpretations and of processes of negotiating significations. The present work is situated within the field of anthropological studies on concrete procedures, understandings and discourses on prior consultation (SchillingVacaflor, 2013; Fulmer et al., 2008; Perreault, 2015). These studies deal with the issue of interpretations of internationally discussed and legalized conceptions of human rights to concrete conflict cases and analyze their manifold levels of negotiated meanings. Within this field of study, my work stands out as it addresses the first step of the translation and application of human right principles to concrete cases – the step of creating a national norm. Here, the notion of prior consultation encounters a variety of possible frameworks to integrate and adapt the abstract language of international law to a concrete national setting. Beyond these discussions, my work addresses two specific problems inherent in the principle of prior consultation as it was defined in ILO Convention 169 and adopted to the reality of Brazil: Prior consultation aims at granting the right for indigenous and tribal peoples to participate in decisions affecting them. Yet, this participation is defined in vague words in the text of Convention 169 and poses serious challenges to established practices of dialogue and state-society relations on the national level. I delineate and discuss these practical problems of realizing prior consultations under ILO Convention 169 as they appeared in the complex regulation process that included the design of guidelines for consultation in the same time that it was meant to be a process of consultation. Also related to the principle of prior consultation is the second problem that appeared in the discussion and the attempt to design of a regulation of ILO Convention 169 in Brazil: In its very core, multiculturalist conceptions of culture and difference present the foundations for the legitimacy of this specific right granted to indigenous and tribal peoples. I present the theoretical and practical problems that arose from this legalization of anthropological categories of difference in the context of Brazil.

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1.2. M ETHODS

AND DATA OF THIS STUDY

This study is localized between methodological concepts of anthropology and microsociology. On the one hand, this was conditioned by the field of study and the limited options of access it granted to researchers. On the other hand, this mix can be considered a methodological principle that is built on a more distant than classical ethnographic approaches. The analytical perspective is based on this rather distant position that research with administrative representatives and political leaders implies. The process of regulating prior consultation in Brazil was approached through mixed methods which are reflected in my material. Classical ethnographic material resulting from participatory observation could be collected on public events in Brazil between 2012 and 2016. I participated in different public debates and presentations of the Working Group that introduced the topic to a wider public and staged discussions between the official participants of the regulation procedure. I consider these public events as stages used by the different actors to establish authoritative accounts on the meaning and context of prior consultation and I use this material to analyze the presentation of different definitions of prior consultation. Apart from this, I use more than 55 public statements and publications of the actors as additional material for my analysis, considering them within the framework of “preferred self-images” (Nader, 1972, p.308). However, the main material on which this work is built is a body of 30 in-depth interviews I conducted with the representatives of the right holders of ILO Convention 169, government officials, civil society organizations and national as well as international experts that were participating in and observing the regulation process. This interview material allows for a reconstruction of the regulation procedure and its distinct steps via their representation in the accounts of participants. Furthermore, the interview material is used to show the different meanings and contexts attributed to prior consultation and allows for further inquiry into the underlying structures of the negotiations on the topic. Finally, I worked with extensive historical material, especially archival records from the ILO, in order to delineate the historic institutional trajectory of the discourses on Convention 169 and the development of their main concepts. With the help of detailed transcripts of the Committee meetings in the International Labour Organization, the historic process of revising Convention 107 and creating ILO Convention 169 in 1988 and 1989 is traced and fundamental that continue in the debates on a national draft law in Brazil are presented in detail.

INTRODUCTION | 19

1.3. S TRUCTURE

OF THIS WORK

Following this introduction, Chapter 2 starts with a review of the relevant literature on prior consultation by identifying main theories and concepts in the different fields of study that address the process of implementing prior consultation. Interpretive approaches to the application of law are introduced in Chapter 2.1, with a special focus on Sally Engle Merry’s approach to processes of framing conflicts during the negotiation of law application (Merry, 1990). In this chapter, I show how Merry builds on Geertz’ approach to law as a model of and for society and how she expanded this perspective with the introduction of the concept of competing discourses. In Chapter 2.2, I discuss the implementation of prior consultation as a situation shaped by legal pluralism – many different national and international regulatory frameworks competed on the authority to define rules and procedures for the situation addressed by ILO Convention 169. Here, I will present recent discussions on this issue by authors from the area of anthropology of human rights as well as Boaventura Sousa Santos’ concept of “interlegality” (Santos, 1987) in order to give account of the situation of concurring references for a legitimate interpretation of prior consultation in Brazil. In Chapter 2.3, the recent debate on the judicialization of politics in Latin America is presented and explored regarding its effects and scope in Brazil (Couso et al., 2010; Sieder et al., 2005). In Chapter 2.4, I present studies in the anthropology of knowledge that have been discussing the conceptualization of different modes of knowledge and the powerful mechanisms at work when integrating scientific and “traditional knowledge” (Sillitoe, 1998; Sillitoe et al., 2002; Nadasdy, 1999; Ingold, 2011). Results of these studies as well as works by Andrea Cornwall on participation and its forms (Cornwall, 2002, 2008) are used in order to develop a framework for analyzing structures and imaginaries of participation during the regulation process in Brazil. In the last step of the literature review, I show in Chapter 2.5 that the legitimacy of the right to prior consultation can be considered to be based on a notion of cultural difference arising from cultural relativism and fostered by multicultural politics in many countries in Latin America (Bocarejo, 2012; Hale, 2004; RodríguezGaravito, César, 2010; Sieder, 2002). Chapter 3 presents the methods and methodological approaches of this study. I locate this study at the intersection of anthropology and microsociology and give a detailed account of my access to the field and the circumstances and places of my research. I further comment on problems of positioning that arose from the setting of my study in the working field of government officials, staff of international organizations, anthropological and legal experts as well as national political leaders. In the second part of Chapter 3, I present the methods used to gather and process the

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material of this study. I describe the circumstances of my participant observation and interview situations as well as the methods of content analysis and coding used to analyze the material I collected. Chapter 4 presents a historic reconstruction of the creation of ILO Convention 169 and its reception and implementation in Brazil until the beginning of the time frame of this study in 2012. I present the results of my analysis of archive material from the ILO national office in Brasília, where I accessed the documents and reports produced in the process of revising ILO Convention 169’s predecessor, Convention 107. Understanding the history of the ILO’s institutional framework is crucial for understanding Convention 169’s field of agency and regulatory aim. As I show in Chapter 4, the discussions of the ILO Revision Committees on crucial issues such as the definition of the right holders of the Convention as well as the scope and deliberative power of consultations reappear in the regulation procedure; they are re-dressed and adapted to national discussions. In the final part of Chapter 4, I delineate the interactions between the Brazilian government and the ILO until the start of the regulation process in 2012. Chapters 5 to 8 are the empirical core of this study, they contain the reconstruction of the regulation process with the help of my field material. Based on my interview material, observations and public statements of my research partners, I give a detailed account of the different actor groups and their positions in the negotiation of ILO Convention 169, the course of the regulation procedures as well as the strategies and arenas of interaction. I organized this account into four actor categories: subjects of rights, the Interministerial Working Group, civil society actors, and observers. Chapter by chapter, each actor category is presented separately and gained insights are summarized in a final subchapter that discusses and organizes the information and presents further material for contextualization. Each of these chapters presents the institutional link of the respective agency with the topic of prior consultation, the institution’s task within the cabinet of Brazil, and my specific interview partner of each institution. I begin in Chapter 5 with the representatives of the subjects of rights of ILO Convention 169 in Brazil, which were initially indigenous peoples (Chapter 5.1), quilombola communities (Chapter 5.2), as well as traditional peoples (Chapter 5.3). Chapter 6 presents the perspective of a selection of the state actors via material gained in interviews with members of the Interministerial Working Group that were officially in charge of drafting a legal regulation for prior consultation. This selection reflects the main conflicting institutionalized interests, as represented by the Ministry of Mines and Energy (MME, Chapter 6.1), the National Indian Foundation (FUNAI, Chapter 6.2), the Palmares Cultural Foundation (FCP, 6.3), the Special Secretariat for

INTRODUCTION | 21

the Promotion of Racial Equality (SEPPIR, Chapter 6.4), the National Department for Transport Infrastructure (DNIT, Chapter 6.5), The Ministry of the Environment (MMA, Chapter 6.6), and the General Secretariat of the Presidency (SGPR, Chapter 6.7). Chapter 7 presents two NGOs that were very prominent during the regulation process, one by its absence (CIMI, Chapter 7.1) and the other by its participation (ISA, Chapter 7.2). Chapter 8, the last of the ethnographic chapters, deals with the different kinds of observers that influenced the debate on a regulation of prior consultation in Brazil. International (Chapter 8.1) and national observers (Chapter 8.2) are presented as to their positions and the role of their expertise in defining prior consultation practices for Brazil. Chapter 8.3 presents Brazilian anthropologists and their role as disciplinary experts in the regulation process. The discussion of my material in Chapter 9 and 10 is structured in two parts. In Chapter 9 I deal with general aspects of the implementation and interpretation of international law, while I address the specifics of implementing prior consultation in Chapter 10. I argue in Chapter 9.1 that the manifold disputes around interpreting prior consultation in Brazil involved attempts to construct what Merry called “authoritative images of social relationships and actions” (Merry, 1990, p.8). Chapter 9 aims to show by which “frames of meaning” – powerful ways of speaking about actions and relationships – the actors of the regulation process struggled to influence the process of interpretation of the ILO norm for prior consultation in Brazil. Chapter 9.2 discusses the impacts of the situation of interlegality on the debate on prior consultation in Brazil, with a special focus on the role of intermediaries and their role of translating between different spheres of legality. Chapter 9.3 discusses the role of the judiciary and legal actors in a wider sense during the regulation as a case of judicialization and evaluates the impact of this strong presence of legal conflict resolution mechanisms on the regulation process. In Chapter 10, I go beyond general aspects of the implementation of international law by discussing specific features of the right to prior consultation that shaped the regulation process in Brazil. To start with, I discuss in Chapter 10.1 the “practicalities of participation”. I analyze the challenges of finding an adequate format for dialogue with regard to a model for prior consultation as well as during the negotiations on the law draft itself. I show the politics of power inherent in constructing a “fair” dialogue for “culturally different” groups as well as the different arenas established for this dialogue. With the help of Cornwall’s classification of participatory spaces (Cornwall, 2002), I show how the strategies of participation and non-participation within the process of regulation were linked to the possibilities and limitations that different spaces of participation provide. In Chapter 10.2, I address the problems connected to the very basis of the right to prior consultation: defining cultural difference

22 | FRAMING PRIOR CONSULTATION IN BRAZIL

as the foundation for the legitimacy of differentiated rights. I explore the problems emerging from that linkage such as the need for maintaining and determining cultural difference in order to access rights granted on the condition of this difference. I further show how anthropologists and their findings are conventionalized as powerful “judges of difference” within this setting and argue that political decisions are being reified by this practice. I state that voices questioning the notion of culture and identity that is implicit in ILO Convention 169 run the risk of attacking the basis for the access of “indigenous and tribal peoples” to vital resources and territories. Finally, Chapter 11 summarizes the empirical results of this work in relation to the research problem and draws on broader implications for the implementation of prior consultation. I elaborate on the theoretical contributions of this work to theoretical debates on the interpretation of law and the implementation of international indigenous rights and point out various options for further research.

2. Facets of prior consultation – building a theoretical toolkit

In the existing literature on the topic, prior consultation is often constructed as a problem of proper implementation. This literature mainly stems from the fields of legal advisory, political science or legal studies and can be said to rely predominantly on two perspectives: the legal perspective and the political perspective. The legal perspective leads the authors to ask for the “true” (legally justifiable) meaning of the concepts involved in the discussion of prior consultation with such questions as: What is the meaning of consent? Is there a notion of the right to veto in Convention 169? (see for example (Lâm, Maivân Clech, 2000; Szablowski, 2011; Yrigoyen Fajardo, 2009; Anaya, 25.04.2013)). Many of these works seem to be written with the intention to inform indigenous people about their rights consist of collections of judicial decisions (García, 2012; Clavero). The political perspective proposes to analyze the necessary political conditions for a “legitimate” or “correct” implementation of ILO Convention 169 on a national or regional level (Yrigoyen Fajardo, 2009; Schilling-Vacaflor and Flemmer, 2013; Colchester and Ferrari). Much of the literature does both: By comparing the “legally correct” (determined by a distinct juridical authority) definition of prior consultation and its requirements with actual cases of conflict, the missing conditions for correctly implementing prior consultation in a country are shown (Amparo Rodriguez, 2011; Rodríguez-Garavito, César and Orduz Salinas, Natalia). While neither of these approaches seemed entirely wrong for my case study, I still decided on a different approach in order to analyze my field in Brazil. The question with which I decided to approach the issue arose during my first months of fieldwork and interviews in Brasilia. At this point, I had already decided to not focus on the perspective of one of the involved groups of the regulation procedure, but to try to grasp a more comprehensive picture of the interactions and negotiations among the participating and observing groups. I therefore met and interviewed actors with very different positions and access to the regulation procedure. In their talking about prior

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consultation as well as in actions during the regulation process, I perceived the diversity of ways to define the issue of prior consultation as a question of a distinct field, interpreting the situation at hand and the involved actors in very different ways. This observation drove me to look initially for attempts to understand the implementation of law as a problem of the interpretation of law.

2.1. I NTERPRETIVE

APPROACHES TO LEGAL ANTHROPOLOGY

Since its beginnings, legal anthropology has concurred and interacted with legal studies in exploring the meaning and functioning of law and norms in general. In this ongoing disciplinary exchange, it has been prominently the specific attention to localized practices and understandings that is considered anthropology’s contribution to conceptualize law, especially with regard to international law (Merry, 2006a). Since the 1960s, legal anthropologists have successively adopted a process-oriented perspective on law, focusing on the actions of litigants and the meaning of the distinct steps of the process of law application. Sally Falk Moore’s work Law as Process (Moore, 2000) can be seen as a milestone for the establishment of this new concern with processes of negotiation and norm reformation within legal anthropology, leaving behind rationalist notions of rules as forces that control society and peoples’ decisions throughout (Schuch, 2009, pp.58-59). This breakthrough understanding shifted the attention of legal anthropology towards processes of negotiation, circumvention and interpretation of law, and thus created the theoretical framework within which I explore the topic of prior consultation in this study. This work mainly operates with an interpretive perspective on law in the way that it analyzes processes of meaning making during the process of legal regulation of prior consultation in Brazil. Interpretive approaches in anthropology in general have studied processes of assigning meaning to symbols and ritual or mythological processes since Clifford Geertz and Victor Turner. Integrating insights from hermeneutics, interpretive anthropology departs from the assumption that humans attribute meaning to objects in the world, meanings that do not precede the situation of intersubjective action and communication (Bachmann-Medick, 2009) – access to the world and the man-made web of significations is considered possible only via interpretation. In Local Knowledge: Further Essays in Interpretative Anthropology (Geertz,

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2000), Geertz explains the implications of such an approach for the enterprise of anthropology: Interpretive explanation – and it is a form of explanation, not just exalted glossography – trains its attention on what institutions, actions, images, utterances, events, customs, all the usual objects of social-scientific interest, mean to those whose institutions, actions, customs, and so on they are. (Geertz, 2000, p.22)

In line with his general outline of an interpretive approach to anthropology, Geertz argues in this canonical volume that law is a system of classification “for” as well as “of” society like any other cultural phenomenon, and thus can be considered a species of social imagination. He claims that law is a form of local knowledge, an expression of place-based characterizations of facts and rules (Geertz, 2000, p.215-217), or, put differently, it is a way of “making sense” of specific events at specific places (Schuch, 2009, p.62-63)1 . For the study of legal processes, this approach implies a focus on the way in which actors organize their actions as well as on the understanding of the rules of interaction, as the Brazilian anthropologist Luis Roberto Cardoso de Oliveira states (Cardoso de Oliveira, 2010). According to Cardoso de Oliveira, the interpretive analysis of legal processes pays attention to claims of the validity of rights, the institutional course of conflicts, as well as the different contextual dimensions of the greater symbolic universe which serves as a frame for the analyzed conflict, the patterns of norm application and the adherence of the specific situation studied to these patterns (Cardoso de Oliveira, 2010, p.456-466). This is one way of engaging in the description of the processes of transforming the specific, and relational (“the fact”) into something general and rule-governed (“the norm”), a goal which Chris Fuller describes as typical for interpretive approaches (Fuller, 1994, pp.11-12). In this light, the regulation process in Brazil can be described as an attempt to establish a set of rules that should govern the procedures for prior consultation in Brazil for many different peoples and communities alike. This process of abstraction does create fears, as expressed in my interview material. There are innumerable accounts of the representatives of the future subjects of rights in my interviews as well as in public statements that express the necessity to consider

1 | By this interpretation, Geertz confronted understandings of law that are basically functionalist. These approaches consider law a means of implementing pre-existent social values and serving social peace – a perspective that was prevailing in social science discussions at the time of the publication of his essay.

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the large number of different peoples and communities, their languages, decisiontaking procedures, as well as existing regulations that define their relationship with the state. The process of connecting rule and reality then can be considered a process that potentially implies the danger of not being heard or considered in this decision for specific ways of connecting the two spheres – with very real consequences. Geertz’s interpretive approach shaped a whole generation of anthropologists and initiated what became known as the interpretive turn in anthropology. But this perspective on cultural expressions in the broadest sense has also been criticized for not considering rivaling notions or models for social practice, nor their historic development and change, for example from the viewpoint of the anthropology of religion (Asad, 1983). Geertz conceptualization of culture as text has also been criticized (Kuper, 1999). With regard to the applicability of this approach to the realm of law, anthropologists like Richard Wilson claimed that Geertz’s approach overemphasizes the perspective that law is a way of thinking and is blind for processes of the exertion of power (Wilson, 1997a, p.16). Especially with regard to property rights, he states that beyond representing a form of thought, legal categories are important instruments for institutions of social control (Wilson, 1997a, p.16). Aiming at a combination of interpretive approaches with discussions of power, Wilson calls for an analysis that is “looking at how power inhabits meaning” (Wilson, 1997a, p.16). From attempts of combining this interpretive perspective with approaches based on Foucault’s notion of discourse2 , the anthropological debate on “frames” arose (Wilson and Mitchell, 2003, p.5). Frame approaches in legal anthropology ask “how a rights regime creates certain types of subjectivities and certain types of acts” (Wilson and Mitchell, 2003). Sally Engle Merry’s analysis of legal disputing as the establishment of “frames of meaning” is based on the premises of interpretive legal anthropology while expanding it with regard to the critiques named above. Her approach uses Geertz’s argument that law – like all cultural expressions – is a form of social imagination. Different from Geertz then, Merry does not consider this as given in a kind of legal culture, but she points to the powerful forces activated in the creation and negotiation of the form of this social imagination. According to Merry, this social imagination is shaped by the discourse in which symbolic and linguistic repertoire a problem or conflict is being discussed. The following citation summarizes her (clearly interpretive) approach to legal issues:

2 | This study works with an understanding of discourses as the operation of a regime of truth with accepted rules of evidence, as presented by (Foucault, 1996, 2007).

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“Law works in the world not just by the imposition of rules and punishments but also by its capacity to construct authoritative images of social relationships and actions, images which are symbolically powerful. Law provides a set of categories and frameworks through which the world is interpreted.” (Merry, 1990, p.8)

In Getting Justice and Getting Even: Legal Consciousness Among Working Class Americans (Merry, 1990), Merry analyzes the process of meaning making within legal conflicts in American courts in the 1980s as a process of issuing “authoritative images” of the interpersonal problems brought to judgment. She describes how interpersonal problems were being framed as legal cases (or not) during their movement through courts. In her understanding, the litigants search for judgment and judicialization of their problem, while judges and clerks tend to establish other forms of conflict management because they consider these problems out of place in the court. Merry describes the perspective of the court personnel as considering the interpersonal problem brought to them as “private problems in a public domain” (Merry, 1990, p.14): The help sought by constructing cases out of these quarrels on better treatment and respect is perceived as hard to provide for by the court because the facts are hard to determine, and the cases are seen as unpredictable and emotional by the court personnel and for this are considered difficult and “dirty”. Basically, these cases are avoided by clerks and prosecutors and “only when they see the problem as involving a fundamental legal right do they feel justified in taking legal action” (Merry, 1990, p.16). The plaintiffs, on the other hand, are described by Merry as coming to courts seeking legitimization of their claims. The look for help and the “rule of law” as they perceive it to be just. The negotiations between the court personnel and the plaintiffs on defining the “interpersonal problems” as a case for judgment, therapy or mediation represent a struggle for control over accepted frames of meanings as well as resistance to authority. Merry finds the three discourses of law, therapy, and morality activated by distinct actors of the court processes: every discourse implies different notions of the situation, the relevant actors and their relationships, and of course, adequate conflict-solving mechanisms. While the therapeutic discourse pictures problematic behavior as environmentally caused and withholds judgment at the price of professional tutelage (e.g. psychiatric treatment), the moral discourse talks the language of responsibilities and obligations of social relationships and debates aspects of reputation and respect. The legal discourse envisions judgment, and for this it requires evidence in order enter the area of legal relations and procedures(Merry, 1990, p.114-115). Law and legal discourse, then, are pictured by Merry as one way of talking about actions and relationships.

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In her work, Merry considers law as an ensemble of symbols that are constantly being appropriated and interpreted. She conceives conflicts about interpretations of law as processes of the construction of meaning. In her perspective on the implementation of law, then, hegemonic meanings are being configured and realized via the establishment of powerful “frames of meanings”. To be used as a frame to contextualize a problem, Merry considers as one function of discourses (Merry, 1990, p.110-111). She defines discourses as [. . . ] systematic, impersonal modes of talking which govern the production of culture. A discourse is a specialized language, a particular jargon. It is usually signaled through phrases or modes of explanation but rarely spelled out. Every discourse, as I am using the term, contains a more or less coherent set of categories and theories of action: a vocabulary for naming events and persons and a theory for explaining actions and relationships. Each discourse consists of an explicit repertoire of justifications and explanations and an implicit, embedded theory about why people act the way they do. (Merry, 1990, p.110)

These discourses are used in the process of naming events and situations, Merry explains, and they constitute frames of meanings that imply different solutions for the conflict in question. Whether for example a teenager in a legal conflict situation would be denominated as “acting out adolescent”, “irresponsible kid” or “criminal” implicitly defines possible conflict resolutions (Merry, 1990, p.130) These processes do not only shape negotiations on naming and framing in courts, but they influence legal meanings in various settings. I argue in the present work that crucial insights can be gained on the process of implementing international law when looking for the attempts and strategies of the participating and observing actors to shape the topic in question with the help of such frames. Comparable approaches include the rather implicit acknowledgement of the construction of frames in political negotiations, for example in (Cornwall, 2002) as well as in the established field of “frame analysis” as propagated by Erving Goffman (Goffman, 1974) or David Snow and Robert Benford (Snow and Benford, 1988). Goffman’s “frame analysis” was part of a broader group of theoretical and practical inquiries into social movements and their mobilization strategies in the 1970s and 1980s (Klandermans, 1988). The core question of frame analysis is centered on how framing attempts of organizations are successful in the public discourse. Frame analysis searches for factors of cross-cultural success in framing (Snow and Benford, 1988), while Merry’s argument – and that of interpretive anthropology in general

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– is that cultural and situational contexts are the bases for strategies and successful attempts of framing conflicts. Still, both attempts share interest in how authoritative pictures of events and actors are being established, and in both approaches, discourses can be regarded as central in this endeavor (Steinberg, 1999). In her detailed description of the functioning of frames in legal disputing (Merry, 1990), Merry does not refer to the authors of “frame analysis”, but still develops concepts that are very much in line with Goffman’s and Snow’s notion of frame. She uses the concept of framing in several later works on processes of creating local meanings of human right concepts (Merry, 2006b; Levitt and Merry, 2009) when she claims that: [frames] are not themselves ideas but ways of packaging and presenting ideas that generate shared beliefs, motivate collective action, and define appropriate strategies of action. (Merry, 2006b, p.41)

“Framing” understood as a process of “giving name” is stressed by Merry as a form of exerting power. This is an assumption based on insights gained from “law and language”, a field in legal studies based on the claim that language is the dominant meaning through which law does its work (cf. (Conley and O’Barr, 2005, pp.12)). Law and language analyses of power focus on discourse and linguistic analysis, considering language in the same time an instrument of legal power as well as the representation of legal power itself (Conley and O’Barr, 2005, p.14). Law and language scholars argue that disputes, in order to enter the legal system, have to pass through a process of framing: [. . . ] [A] dispute does not exist in isolation from the contexts in which it is expressed. Rather, the account of a dispute that is given at any point in time is the dispute. All the contexts in which a dispute is expressed are interactional, and each such context shapes the dispute in unique ways. (Conley and O’Barr, 2005, p.94, emphasis added)

Merry uses this approach in her analysis of processes of naming and authority in judicial negotiations: Naming can be considered a face of domination, a way in which power is exerted in the relations between third parties and disputants and among the disputants themselves. There is domination both in the labeling and in the consequences which flow from that labeling. The struggle to name, to establish a reigning discourse, involves all the participants in the discussions, although they have unequal resources and authority. (Merry, 1990, p.131)

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This approach points to the important power of law to define a conflict beyond its mere resolution. Still, this leaves open the question of how actors actually gain the power to establish powerful narratives. Merry states that the formal argument of establishing one or another discourse as a frame of meaning for an interpersonal conflict is its “adequateness” (Merry, 1990, p.150); this, too, leaves us to wonder what makes a frame adequate and for whom. Legal framing appears in Merry’s account also as a language of power that plaintiffs can learn by repeated attempts to enter the legal system and have their conflicts declared as legal cases. The power of naming is further described by Merry as a “particular kind of power, different from coercive power or violence” (Merry, 1990, p.132), and in this context she remarks that it is “less the categories themselves, however, than the discourses in which they are embedded which constitute subtle processes of cultural domination” (Merry, 1990, p.133). It is then the discursive narrative that stands behind a particular framing of a conflict that lends power and authority. Moreover, Merry hints to a second aspect of power: the authority which is rooted in external factors that precede the negotiation. A judge is, via his or her position, a final authority within the court exerting control over the definition of the addressed problems. He can be said to have a privileged access to control regarding whether a frame of meaning becomes relevant. Nevertheless, his institutionally established power of decision is not free of any need to legitimize his decision – it will encounter cooperation or resistance by the plaintiffs. The success of a frame depends partially, but not entirely, on the institutional authority of actors in this process. Still, the power to establish a discourse cannot be simply reduced to institutional authority; if that were the case, there would be no debate, and no attempts to contest interpretations issued by powerful actors. In addition, Merry states that the power of law lies in its function as a symbolic system that offers different options for conflict resolution than other societal power relations such as class or gender: Many of these fights are weaker parties’ challenges to the hierarchies of authority controlling their lives, while others are efforts by embattled superior parties to maintain control. Some arise out of challenges to established relationships of control. [. . . ] The use of law is an important part of the demand for change and resistance to change. Conflict here both challenges the status-quo distribution of power and leads to the creation of a new order. (Merry, 1990, p.86)

Concluding, three mechanisms of power lend authority to attempts of establishing frameworks for the interpretation of a conflict or a rule in Merry’s account. First, there is the power of the addressed discourse that lends authority to a framing. Second,

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there is the power of a symbolic system offering an alternative to other powerful mechanisms of classification like class or gender. Third, there is the institutional power of the issuing actor, the latter representing most closely the material aspect of power defined as access to resources and their control. In sum, these factors influence the success of certain frames, as I showed in the paragraph above. I found Merry’s approach very useful to make sense of the negotiations in which the actors and observers of the regulation process tried to narrow the open field of possible frameworks within which a legal regulation should be discussed. As I will show, this openness can be understood as a strategic field of struggle, in which actors, their conflicts and possible solutions for these are being defined.

2.2. L EGAL

PLURALISM AND THE ANTHROPOLOGY OF HUMAN RIGHTS

Beyond being a process of norm interpretation in the general sense presented above, the regulation of prior consultation in Brazil implied the implementation of an international norm within a national legal system, thus it represented a specific form of norm interpretation. The setting of the regulation process was characterized by the coexistence of a range of national and international norms that define aspects of the rights of indigenous and tribal peoples to participation and self-determination, as I will show throughout the present work. This co-existence of different legal norms presenting themselves as interpretive frameworks for the implementation of prior consultation is a situation designated as “legal pluralism” in the literature. Within legal anthropology, the concept of legal pluralism initially referred to situations of intersection between indigenous and colonial (mostly European) legal systems. More recent studies within the area of legal pluralism have widened the discussion of the interweaving of different legal systems beyond the identification of “indigenous” or other “local” legal systems, to a broader understanding of legal pluralism "as relations between different sets of cultural practices and discourses" (Merry, 1992, p.360). This of course implied a widening of the initial definition of what is to be considered part of a legal system, a concept that today is considered to include the whole aggregate of governmental and non-governmental norms of social control on different scales (Moore, 2007; Günther and Randeria, 2001). Furthermore, interactions between different legal systems as well as between legal systems and social life have been reconsidered. While early studies of legal pluralism conceptualized different normative orders as parallel and autonomous, scholars of the 1970s explored the power of law to reshape other normative systems as well as social

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life, and more recent studies focus on the dialectic, mutually constitutive relation of different normative systems (Merry, 1988). By this, a research field emerged that Sally Engle Merry called “new legal pluralism” (Merry, 1988). Scholars of new legal pluralism advocate a concept of interwoven legal systems. One of these scholars is the sociologist Boaventura Sousa Santos who describes such situations with the term “interlegality”. He defines interlegality as [. . . ] the conception of different legal spaces superimposed, interpenetrated, and mixed in our minds as much as in our actions, in occasions of qualitative leaps or sweeping crises in our life trajectories as well as in the dull routine of eventless everyday life. We live in a time of porous legality or of legal porosity, of multiple networks of legal orders forcing us to constant transitions and trespassings. Our legal life is constituted by an intersection of different legal orders, that is, by interlegality. (Santos, 1987, pp.297-298)

Interlegality represents a perspective on law as a network of legal spaces. This network acts on different scales: on the local, the national, and the level of “world legality” (Santos, 1987, pp.283-297). Between these scales, different norm settings interact and offer competing sets of norms beyond the classic state law monopoly. While Santos describes this norm interaction as very different from case to case, the legal scholar Gunther Teubner grasps the situation of interlegality as a situation of different normative orders that all claim that their regulations for a certain topic or social behavior are prevalent, causing thus a norm “collision” that should be governed by “collision norms” (Teubner and Korth, 2009). According to Teubner, a growing sectorial fragmentation in the legal regulation of social life abandons the classic territorial structure of state law and leads to new situations of overlapping different legal regimes, for example national and transnational systems. Teubner states that this overlap create norm collisions without clear norms regulating these situations (Teubner and Korth, 2009). Both Teubner and Santos see the increasing fragmentation of law, especially transnational law, as one source of overlapping legal regimes. Human rights law is by definition a legal regime that crosses state boarders and intervenes in areas historically reserved to national law. International indigenous rights, then, constitute a classical example of a sectorialized law regime that does not stop at national borders and interacts with legislations on the national scale. The approach of interlegality conceives these different legal orders to be poles that coexist and interpenetrate, representing different spacialities and temporalities to which human beings are subjected in the creation of meaning and social life. In an attempt to account for the different character of these poles, Sousa Santos (Santos,

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1987) compares laws with maps, claiming that their function in the representation of reality are based on similar mechanisms. In the context of the implementation of international law, a closer look at the question of scale can help understand the interactions and different “regulation patterns” (Santos, 1987, p.289) of national and international legality. With regard to maps, Sousa Santos states that scale means the ratio of a specific distance on the map to the corresponding distance on the ground; he describes the factor of scale as a decision to filter details (Santos, 1987, pp.283–97). In the same way, Sousa Santos claims that scale determines the criteria and features used to create a legal object, as well as the details of the activity to be regulated that are considered meaningful by the different scales of legal regulation: “They establish different networks of facts. In sum, they create different legal realities” (Santos, 1987, p.287). This point is very important when considering the different notions and possibilities that international and national norms create in the scenario of regulating ILO Convention 169 in Brazil, as I am going to show in Chapter 9.2. I agree with Sousa Santos that different notions and strategies of participating actors and institutions cannot be reduced to conflicting interests or questions of class consciousness (Santos, 1987, p.288). The fact mentioned by Teubner that national norm systems cover a comprehensive reality and construct a thick net of norms while transnational norms are usually regulating specific sectors of social action(Teubner, 1986)3 is also important when considering the diverging notions of actors in the regulation process and their respective relationships. On the other hand, human right norms as one example of transnational norms “have a special kind of appeal in their reference to the international, to the legitimacy of collective production, to universality that makes them useful as political statements.” (Levitt and Merry, 2009, p.458). Thus, appeals to norms on different scales imply different perspectives on the regulated issue as well as a wide range of authority and legitimacy for distinct political statements. In summary, the concept of interlegality gives theoretical access to situations of conflict and competition for competence on the regulation of matters of indigenous peoples between national and international law. This situation is not accounted for in classical theories of law that conceptualize national and international law in a clear hierarchical order, within which either the authority of national law is derived from international law or vice versa (Tuori, 2014, p.13). In the classical theory of law per-

3 | I think Sousa Santos refers to the same point when calling local norm systems “large-scale legalities”, which he describes as rich in details and contextualization, and international legal systems “small-scale legalities”, skeletonised descriptions of behaviors according to his account (Santos, 1987, pp.287-289).

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spective, no space for hybrids and mutual dependence is foreseen. It is exactly this hybrid situation of overlapping and conflict of national and international norms that the approach of interlegality addresses. I consider this notion essential to account for the many interactions that appeared between the Brazilian norms that regulate situations or definitions linked to prior consultation within the country and the internationally codified concepts as well as attempts of international judicialization. As I will present in Chapter 4, the relation between national and international law was already being questioned fiercely in the process of revising the predecessor of ILO Convention 169, which was Convention 107. The ILO constituencies struggled over exactly the same questions highlighted by the discussion on interlegality: How to perceive the source of authority of national or international law, respectively, and how disparities between the many national legislations and international law should be dealt with in the context of the definition and the rights of indigenous peoples. Interlegality offers a conceptual framework for the description of interaction between different legal systems beyond the “solipsism of radical pluralism” (Tuori, 2014, p.41). Furthermore, I think the perspective of Sousa Santos on legal pluralism as interaction and competition of legal systems can be useful to grasp an important aspect of the possibilities that international law generates: it opens up new options for action in the negotiation of social conflicts. International law is pictured in this approach as contested by and competing with national regulations in the process of conflict resolution. The interlegality approach describes and brings to light situations of encounters between different normative systems, within which individual as well as collective actors negotiate the terms of their application. Another approach to this situation of legal pluralism is to be found in works of the anthropology of human rights. The declared goal of this approach is to take on a local perspective and carry out situational analysis on interpretations of international norms (Wilson, 1997a, p.12). Sally Engle Merry coined the term “vernacularization” for the process of connection of human rights ideas with specific localities, a process in which new attributes are integrated in globally circulating concepts and, at the same time, international law formulations and concepts are introduced to the local setting (Levitt and Merry, 2009, p.446). In this process of mutual adaption, intermediaries play a crucial role due to Merry: A key dimension of the process of vernacularization is the people in the middle: those who translate the discourses and practices from the arena of international law and legal institutions to specific situations of suffering and violation. Intermediaries or translators work at various levels to negotiate between local, regional, national, and global systems of meaning. Translators refashion global rights agendas for local contexts

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and reframe local grievances in terms of global human rights principles and activities. (Merry, 2006b, p.39)

Sally Engle Merry calls these translators and interpreters “vernacularizers”: persons that convey ideas from one context to another while adapting and reframing the topic in question to different contexts (Levitt and Merry, 2009, p.449)4 . Merry sees the act of translating between international law and institutions and specific situations as implying ambiguous positions for translators: Translators negotiate the middle in a field of power and opportunity. On the one hand, they have to speak the language of international human rights preferred by international donors to get funds and global media attention. On the other hand, they have to present their initiatives in cultural terms that will be acceptable to at least some of the local community. (Merry, 2006b, p.42)

Different kinds of vernacularizers exist in many settings of vernacularization according to Merry: “The anointed” for example is an individual singled out and invested in by the international community (Levitt and Merry, 2009, pp.449-450). These types of vernacularizers are highly dependent on fitting into schemes of their donors, as I will show in the next chapters. Especially for social movements that depend on external funding for their mobilization, this type of vernacularizer is very common. Apart from this, Merry names cosmopolitan elites and local beneficiaries of training programs, for instance, as translators that convey ideas from one setting into another (Levitt and Merry, 2009, pp.449-450). All these vernacularizers have powerful positions in the process of translating international human rights to local contexts. As this work will show, this role can be difficult for political leaders that struggle with their position “in between”. The setting of my study of the regulation of prior consultation is located mainly in a national administrative center. Its actors – namely leaders of social movements as well as governmental representatives and (mainly anthropological) scholars – are experienced in political negotiations. They translate issues of participation, territory and identity between the different scales of their fields of action: from Brasïlia to the villages, from the villages to international human right forums and from these settings back to the villages. These actors have important resources at their command,

4 | As becomes clear from this definition, “translation“ in the context of this work is used in a wider sense than just to denominate the technical “transportation” of content from one linguistic structure to another. Translation as used in this study includes processes of cultural translation.

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such as the representation of a large number of peoples. They suffer hardships as well, though, having to cope with the demands of the different legal systems that meet within the process of the legal regulation. Furthermore, they have to grasp the structures differentiating international law from national law in order to access the different legislations and claim their enforcement. The human rights discourse represents for them a discursive repertoire. This perspective of human rights as “travelling ideas” also highlights the potential empowerment and strategic access of marginalized groups to the resources of the human rights discourse.

2.3. T HE

JUDICIALIZATION OF POLITICS

The legal scholar Robert Wai rightly points to the fact that in situations of overlapping or competing normative systems, disputants often expect national courts to solve conflicts on jurisdiction and law (Wai, 2008, p.119). An interdisciplinary debate based on anthropological, legal and political studies developed a debate on such practices of “judicialization” (Couso et al., 2010, p.4). Very broadly speaking, the concept of judicialization denominates the increased use of legal discourse, judicial practices and institutions in managing social conflicts (Couso et al., 2010; Sieder et al., 2005). In the literature, this phenomenon is referred to under different aspects. First, scholars such as Sieder, Schjolden and Angell speak of judicialization in situations in which “lawmaking and policy implementation is increasingly displaced from the executive and congressional branches towards the judiciary” (Sieder et al., 2005, p.6). As to the role of courts, the sociological and political debates on judicialization present their role as a recent trend of the 20th and 21st century, which refers to the widening of the sphere of influence of the judiciary, taking over tasks of the legislative or executive in resolving political conflicts (Hirschl, 2009; Arantes, 2005; Couso et al., 2010). Judicialization in this case relates to the democratic ideal of a balance of the three powers legislative, executive, and judiciary. The concept describes a renunciation of political institutions from the responsibility to resolve social conflicts. In Cultures of Legality (Couso et al., 2010) the legal scholars Javier Couso and Alexandra Huneeus, together with the social anthropologist Rachel Sieder develop a second perspective on judicialization, which focuses on the growing use of law, judicial practices and discourse by a broad range of actors beyond courts, such as politicians or social movements (Couso et al., 2010, p.8). The authors stress that judicialization is a phenomenon that also unfolds outside the formal legal system in ways that shape and influence politics (Couso et al., 2010, p.4-5). In a contribution

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to this anthology, Sieder points out that the debate on these dynamics of law, politics and society has been shaped by its initial focus on advanced capitalist economies and welfare states (Sieder, 2010, p.161). In line with this, (Couso et al., 2010) state that the salience of law and courts for politics – instead of being considered a recent development – should be considered a founding motif of Latin American politics (Couso et al., 2010, p.9). Nevertheless, some important aspects of a new relation of law and politics in Latin America can be stated. According to (Couso et al., 2010), processes of judicialization are to be found in the many political struggles on redistribution claims in Latin America, which in the past would have unfolded in the political sphere or via non-state channels. Now struggles for social justice turn to legal struggles, for example in the context of access to medicine, education, or also for the recognition of cultural groups (Couso et al., 2010, pp.9-11). In the discussion of the judicialization of politics and society in Latin America, explicit reference is made to the various new constitutions and the stronger power of courts laid down therein in a number of Latin American countries (Sieder et al., 2005; Couso et al., 2010), especially with regard to policies aiming at indigenous peoples. Indeed, many Latin American countries that reformed their constitutions in the 1990s attempted to incorporate basic notions of ILO Convention in their charters such as the right to cultural identity and the concept of pluriethnic nations: Colombia in 1991, Mexico in 1992, Paraguay in 1992, Argentina in 1994, Ecuador in two reforms of 1996 and 1998, and Venezuela in 1999. The most recent constitutions of Bolivia (2008) and Ecuador (2008) already tried integrating advanced notions of the meaning of pluriethnic states and legal pluralism based on intercultural dialogue (Yrigoyen Fajardo, 2009, pp.26-29). Brazil is always seen as the avant-garde in this respect, already including far reaching rights for indigenous peoples in the Federal Constitution of 1988, while later constitutional reforms have to be considered as more outreaching with regard to rights to territory and participation. As to the reasons for judicialization, the list of factors that favored a stronger presence of legal discourse, institutions and practices in current social relations is long in the relevant literature. Processes of democratization and neo-liberal reform, globalization and the related diffusion of norms, institutionally weak states and the rise of multiculturalism are among the most mentioned reasons for this development in Latin America (Couso et al., 2010, pp.9-11). In an attempt to explain the growing judicialization of politics in this region, (Sieder et al., 2005) cite O’Donnell’s statement that the fact that social claims are increasingly pursued through the courts or court-like structures (situation which he calls the judicialization of social relations) has to be seen as part of the juridification of social relations, in other words the strong

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texturing of social relations by formal rules (Sieder et al., 2005, p.8). In line with this argument, Stuart Kirsch argues in his article “Juridification of Indigenous Politics” (Kirsch, 2012) that the “emergence of the ‘indigenous’ as an international legal category has opened up new avenues for claims to recognition and redistribution” (Kirsch, 2012, p.23) – in most cases, legal ones. Richard A. Wilson states this dynamic as a general tendency for human rights: With the relative success of this [the legalization] strategy, especially in the 1990s, many more local moral claims have been reformulated in the language of human rights and this has exacerbated the tendency to channel societal discord into the legal process, and thereby to channel societal discord into the legal process. (Wilson, 2007, p.351)

Indeed, no account of indigenous claims for social justice leaves out ILO Convention 169 or the UN Declaration on the Rights of Indigenous Peoples as important milestones of the political struggle of the last decades. The existence of these formal definitions channels newly formulated claims to address resource conflicts or struggles for territorial recognition in legal terms. Kirsch formulates many reservations on the process of growing legalization of the category of “indigenous peoples” and their rights: the legal domination of new spheres of life, the reduction of opposition to the language of jurisprudence signifying a consolidation of hegemony, the addressing of past injustices without ideological criticism of the institutions themselves, among others (Kirsch, 2012, pp.23-24). Nevertheless, he sees the possibility to define the terms of contestation and claims of recognition as well as redistribution, and, last but not least, the opportunity to put state power on trial as positive effects of these processes (Kirsch, 2012, p.39). With regard to Brazil, the political scientist Rogério Arantes enlists several factors generally seen as causes for the proliferating judicialization of politics in Brazil. First – and consistent with the comment of (Sieder et al., 2005) on Latin America in general – Arantes names the recent and extensive Brazilian Constitution with a charter of rights containing 1,855 provisions. With the Federal Constitution of 1988, a large number of social rights became legal norms in Brazil, involving provisions aiming at civil participation, land reform and differentiated rights (Arantes, 2005, p.232). In addition, Arantes names the increasing number of interest groups demanding judicial solution for collective rights as well as the general political system in Brazil as enhancing factors (he characterizes the political system in Brazil as one with fragile minority coalitions that are prone to use the judiciary for fights between opposition and government) (Arantes, 2005, p.232). Still, Arantes sees the most significant condition for the judicialization of politics in Brazil rooted in the constitutional model

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that delegates the protection of individual and collective rights to the judiciary and the Office of the Public Prosecutor (Ministério Público – MP). I will present the special role of this institution in Chapter 8.2. Arantes further perceives a “political voluntarism” of the Brazilian judiciary as reaction to its constitutionally defined tasks, by which the judiciary becomes a very influential political actor (Arantes, 2005, p.232). He shows the extraordinary growth of activity of the Federal Supreme Court (STF) after the adoption of the new Federal Constitution in 1988, and how these activities even led even to a case overload of the STF (Arantes, 2005, p.238). As a further catalyst for judicialization, Arantes sees the constitutional profile that Brazil adopted after 1988: “[. . . ] the constitutionalization of public policies is one of the main driving forces behind the judicialization of politics in Brazil” (Arantes, 2005, p.233). According to Arantes, this is especially true for collective rights whose enforcement the Constitution entrusts to the Office of the Federal Public Prosecutor (MPF). In Arantes view, the result of this development is that [. . . ] the Brazilian justice system has been turned into an important arena for collective conflicts, and the protagonism of the MP has drawn attention of analysts concerned with assessing the potentials and limits of this institutional model. (Arantes, 2005, p.248)

Arantes calls the Office of the Federal Public Prosecutor one of the main agents in the judicialization of politics in Brazil. As I will show in the ethnographic chapters, the special position of the institution facilitated a very prominent interference with the public debate of prior consultation in Brazil. By looking at the regulation procedure and some actors’ strategies as cases of judicialization, light is shed on the power of the sphere of law, its institutions and conflict resolution instruments. In addition, another aspect of implementing international law can be illuminated: The growing body of norms – on human rights, for example – actually seems to foster the depolitization of social struggles, leaving them to the sphere of law.

2.4. PARTICIPATION Apart from the above-discussed issues of implementing and negotiating national and international law, the process of regulation of prior consultation in Brazil also pointed towards specific issues of the implementation of the right to prior consultation that deserve further inquiry. Prior consultation is defined in ILO Convention 169 as a

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means for the free participation of the rights holders. I inquire into the practical challenges of realizing the forms of participation envisioned in Convention 169 as they occurred during the regulation process from two perspectives. To start with, the notion of dialogue of indigenous and tribal peoples with the national governments, used as a symbol for successful consultations by many actors, deserves further attention. This form of exchange was conceptualized as an “intercultural dialogue” during the regulation procedure in Brazil, and it created challenges for organizing participatory formats that would do justice to this ideal. In the present work, I want to address these challenges as the paradox of any “intercultural dialogue”, namely the balance between allowing for different forms of raising topics and expressing views while avoiding discriminating forms of “authenticating” this difference by defining it beforehand. I approach this problem with the help of anthropological studies exploring the production and use of “indigenous” or “traditional” knowledge in environmental management and participatory development (Philip, 2001; Sillitoe, 1998; Sillitoe et al., 2002; Nadasdy, 1999). In order to shed light on the difficulties in defining the object of integration in participatory planning and co-determination, these studies ask what this “indigenous knowledge” that shall be consulted is and how its carriers should be approached. The claims of indigenous movements worldwide have called for the integration of their knowledge and self-governance in land and resource politics for quite some time. Nevertheless, while many international agencies started to include this knowledge integration as mandatory for the adherence to their programs, the project of interacting with “indigenous knowledge” has been shown to be far from conflict free. In “The Politics of TEK – Power and The ‘Integration’ of Knowledge” (Nadasdy, 1999), Paul Nadasdy points to the underlying power relations implied in integrating local knowledge in infrastructure or natural resource management projects. The problem of communication between project managers, company leaders or government representatives and indigenous community members or leaders is displayed as a technical problem of two incommensurable knowledge systems by these projects, goes the critique of Nadasdy, instead of acknowledging the political dimension of “the management system into which the new integrated knowledge is inserted” (Nadasdy, 1999, pp.2-5). He states that the term “traditional” as used by most of the non-native participants of such endeavors implied the idea of a frozen cultural practice stemming from a distant past, which allowed for the dismissal of contemporary practices as “inauthentic”, as well as facilitated the disregard of the possibility that indigenous peoples might have a distinct cultural perspective on modern industrial activities (Nadasdy, 1999, p.4). On the other hand, Nadasdy states that the technical perspective applied in most knowledge exchange situations disregards the cultural processes

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in which “traditional” or “indigenous knowledge” is embedded and allows for an expression only within already existing institutions and processes of scientific resource management (Nadasdy, 1999, p.5). In looking at the politics of the integration of different knowledge formats during the regulation of prior consultation in Brazil, romanticized notions of a “free, prior and informed dialogue” between state agencies and indigenous and tribal peoples can be scrutinized. I want to inquire into the practical implications of this notion for the implementation of a participatory process. Apart from this question on the conditions of exchange among the participants of prior consultation, the meeting spaces in themselves are worth examining. In addressing the role of the different arenas for participation involved in the regulation of prior consultation in Brazil, I approach these as temporal as well as spatial phenomena. My main reference here is the work of Andrea Cornwall, who has written extensively about democratization and participation and conducted fieldwork on this topic in Brazil. In “Making Spaces, Changing Places: Situating Participation in Development” (Cornwall, 2002), Cornwall offers a perspective on participation as the creation of space: Efforts to engage in participation can be thought of as creating spaces where there were previously none, about making room for different opinions to be heard where previously there were very limited opportunities for public involvement, and about enabling people to occupy spaces that were previously denied to them. (Cornwall, 2002, p.2)

Drawing on Lefebvre’s notion of space as a social product pervaded by means of control and domination, Cornwall hints to the power structures that prevail the construction of participatory spaces (Cornwall, 2002, p.7). In order to deal with the many arenas of negotiation of the meaning of prior consultation in Brazil, I want to follow Cornwall’s argument that: Who determines the form participation takes in any given space – who initiates, chooses methods or techniques, facilitates, takes part – is critical for assessing the contributions participatory initiatives can make to democratic practice and understanding their power dynamics. (Cornwall, 2002, p.8)

Defining frames for these conditions for participation is crucial here, as I stated above. Cornwall suggests a perspective on participation as “making room for different opinions to be heard” (Cornwall, 2002, p.2), and she states that new participatory spaces cannot be perceived as really novel in the sense of “empty”, since they come predeter-

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mined by assumptions, meanings, expectations and traces of social relations in other spaces (Cornwall, 2002, p.7). Cornwall develops a typology of time-space formats for participation. In this scheme of durability of spaces for participation, she differentiates between “regularized relations”, “fleeting formations”, “alternative interfaces” and “movements” (Cornwall, 2002, pp.17-22). In “regularized relations”, citizens become part of the machinery of governance in constant spaces of interface with state authorities (Cornwall, 2002, p.17). Cornwall describes “regularized relations” as bounded spaces in which a restricted number of members meet with a previously set up mandate. By such restrictions, these spaces run the risk of merely legitimizing already taken decisions, while they also imply the chance of creating networks and establishing new ways of talking about – even if not deciding upon – an issue. In the long term, Cornwall states, new policy discourses as well as coalitions may rise from these spaces (Cornwall, 2002, pp.17-18). “Fleeting formations”, on the other hand, are normally used as a starting point for the institutionalization of participatory spaces. Cornwall calls them “liminal spaces” that are opening up deliberation rather than already making decisions. She mentions public consultations as an example for these more volatile formats with usually weak accountability (Cornwall, 2002, pp.20-21). While regularized relations and fleeting formations are set inside the state sphere, the third type, “alternative interfaces”, denominates spaces for participation that exist autonomously from the state. Affiliation to such interfaces involves acts of identification and placing oneself within these spaces of advocacy and dissent; this is why they may become exclusive with regard to their members. The fourth and less durable type of spaces for participation is described by Cornwall as “movements”. According to Cornwall, movements can be defined as "any expression of voice outside the structured spaces of invited participation of the regularized institutions of ‘civil society’" (Cornwall, 2002, p.22). Cornwall describes these spaces as more flexible and spontaneous than other alternative interfaces, created out of a momentary identification with an issue. As participatory spaces, “movements” often stand in concurrence to consultative gestures of governments and development organizations (Cornwall, 2002, p.22). I use Cornwall’s typology in order to account for the distinct arenas that shaped existing interactions as well as newly created participatory spaces during the regulation of prior consultation in Brazil. With this perspective, I want to address what (Cornwall, 2002) called the “micro-politics of participation”: bureaucratic practices, organizational and discursive strategies as well as issues of representation. By understanding the structure of the different but connected arenas and their overarching institutionalized relationships, the dynamics of interaction during the negotiation of

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the legal interpretation of prior consultation in Brazil can be grasped. I aim to show that while consultations can be understood as a “technology of government, meant to promote participation of a sort, through a narrowly defined set of rules and practices, in order to produce a ‘convenient’ alignment of people and things” (Perreault, 2015, p.447), it is necessary to take a more differentiated view on these spaces and analyze the options for resistance and agency that they offer.

2.5. M ULTICULTURALIST

POLITICS

In a last step, I want to go deeper in the foundation of the right to prior consultation in ILO Convention 169 on notions of cultural difference, a point that already appeared in the discussion of participation as an intercultural dialogue. César Rodríguez-Garavito shows in his analysis of “Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields” (Rodríguez-Garavito, César, 2010) that the growing legalization of indigenous peoples’ claims to political and cultural rights, such as the right to prior consultation, can be seen, among others, as the result of the rise of multicultural constitutionalism in Latin America. This confirms much of the scholarly work showing that within the context of multiculturalist policies on the national as well as global level, the principle granting rights on the basis of “otherness” has entered many Latin American politics (Bocarejo, 2012; Costa, Sérgio, 2012; Costa, Sérgio and Leite Gonçalves, Guilherme, 2011), influencing governmental policies (Hale, 2004) as well as the politics of international funding (Ramos, 1994). As a whole, these authors consider multiculturalist politics as the way in which the assertion of cultural difference became the basis for a group of very unequally accessible rights for specific social groups. In her analysis of “The Spatialization of Difference and Urban Ethnic Contestation in Colombia”, the anthropologist Diana Bocarejo (Bocarejo, 2012) considers multiculturalism “the decision-making process through which plurality is recognized, rendered visible and accountable" (Bocarejo, 2012, p.665). Social identity categories established as addressees of rights granted by multiculturalist politics can be used to discipline voices of social movements today. With regard to indigenous peoples, Bocarejo states that "multicultural policy has used and imposed a specific relationship between being an indigenous subject and living within a particular territory" (Bocarejo, 2012, p.665). In the different multiculturalist policies implemented in Latin America, Bocarejo sees "reified old imaginations regarding the territorial ‘enclosure’ of ethnic difference." (Bocarejo, 2012, p.672). In a similar way, Charles Hale uses the term “indio permitido” – “permitted Indian” – to describe the ways in which

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Latin American governments and international institutions are using cultural rights to “divide and domesticate indigenous movements” (Hale, 2004, p.17). Multiculturalist politics, Hale states, installed mechanisms that granted new rights to indigenous and black peoples in Latin America, while in the same time taming movements of protest: Latin American states developed a mode of governance based on a unitary package of citizenship rights and a tendentious premise that people could enjoy these rights only by conforming to a homogeneous mestizo cultural ideal. (Hale, 2004, p.16)

This cultural ideal deserves further attention. In “Multiculturalism, Individualism and Human Rights: Romanticism, the Enlightenment and Lessons from Mauritius”, Thomas Hylland Eriksen (Eriksen, 1997) reviews the concept of culture invoked in multiculturalist thought. He writes that it is first and foremost the idea of distinct, homogenous and unique cultures, a classic cultural relativist approach, that underlies these politics of difference (Eriksen, 1997, p.173). The principle of cultural relativism was made popular by the German-American cultural anthropologist Franz Boas and his students in the beginning of the 20th century. Boas contested ideas of a universal cultural evolution of manhood prevalent at that time in scholarly debates with the assertion that cultural ideas and values should be considered in their context of use and creation and cannot be judged according to a universal scale of “cultural evolution” (Boas, 1983). This problem addressed by early anthropologists – the idea of universal development and values vs. distinct culturally rooted values – continues to be discussed by more recent anthropological approaches in relation to law and cultural translation (Nader, 1997; Merry, 2006b). While Boas’ approach can be seen historically as an important step to counter ideas about a “cultural evolution” of all cultures following Western models, cultural relativism has also encountered profound criticism in social sciences. Eriksen names a short list of the most common critiques of cultural relativism. First, there is the problem of an assumed homogeneity of cultural groups – an assumption that stands little comparison with the structuring of social life in groups of men and women, poor and rich and so on. Second, by conceptualizing distinct and unchanging ways of life of bounded groups, culture is reified as an immutable object and its procedural character is denied. Third, the idea of one way of life for a certain group implies the danger of being instrumentalized not only by minorities, but also by powerful elites using the idea of “national culture”, for instance, as a justification for oppressing ethnic minorities (Eriksen, 1997, p.174). To these known critiques that the multiculturalist model of culture has encountered, Eriksen adds the argument that multiculturalism discriminates cultural hybrids (for example inter-ethnic

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brokers), which he sees as a classical problem of cultural relativism (Eriksen, 1997, p.178). As I will show in my present work, cultural difference and its conceptualization appeared as a problem during the regulation of prior consultation in Brazil in the crucial debate on identities of right holders and the legitimacy of their representatives. Further, the model of many “bounded cultures” contradicts the basis of the idea of universal human rights. In the implementation of international human rights, then, multiculturalist ideals guiding national politics often collide with “universalist” human rights ideals (as they are laid down for example in ILO Convention 169). Eriksen calls this situation the paradox of today’s “polyethnic societies”: On the one hand all members of a liberal democracy are (in principle if not in practice) entitled to the same rights and opportunities. On the other hand, they also have the right to be different – and in the 1990s, the rights of minorities to maintain and promote their cultural specificity, and to be visible in the public sphere, including the media, school curricula and so on, are increasingly insisted on. A crucial challenge for multi-ethnic societies therefore consists in allowing cultural differences without violating common, societally defined rights; in other words, the challenge consists in finding a viable compromise, for the state as well as for the citizens [. . . ], between equal rights and the right to be different. (Eriksen, 1997, p.173-174)

The process of regulating Convention 169 in Brazil implied an attempt to apply the notions of cultural distinction expressed in its text (see Chapter 4) to the social situation in the country. Starting from the assertion that the framework that gives legitimacy to the definitions used in ILO Convention 169 can be understood as being part of the mindset of multiculturalism and its assumptions on fixed, bounded “cultures”, I want to inquire into the “making of” the conceptual basis of prior consultation as defined in the Convention. I will argue that the relativist notions of culture implied in the connection between special rights to cultural difference as set in Convention 169 are the result of a specific interweaving of anthropology, politics and law. Once understood as a constructed network that produces powerful images of otherness, it becomes clear why these images, for example of indigenous peoples, cannot be easily contested without paying the price of destroying the foundation for the legitimization of rights such as the right to prior consultation – rights that have been historically established on this notion of otherness.

3. Methods

To begin with, this study is set at the intersection of anthropology and microsociology. I consider my study anthropological basically because of its open approach to the topic. Trying to understand and observe how prior consultation was grasped and negotiated by the actors involved in the regulation process was the prior aim of my study. The theoretical discussions I engage with in Chapter 9 and 10 are derived from summing up and ordering the material presented in the previous chapters and structured according to what I perceived as repeatedly emerging issues. I discuss topics related to the problem of prior consultation that matter to the people I researched, and these topics were generated in a process of exchange of ideas, generating hypotheses and giving feedback. My research question evolved together with the regulation process and adapted to its course and its participants’ interactions with me. Still, the way this research was conducted and the material it finally is based on deviates from the idea of classical fieldwork in anthropology, which according to George Marcus carries a “heavy symbolic, identity-defining load” within the discipline (Marcus and Okely, 2007, p.354). Marcus argues in “How Short Can Fieldwork Be?“ (Marcus and Okely, 2007) for a perspective on fieldwork beyond the classical, year-long initiation experience of anthropologists, and he refers to anthropology as an endeavour going well beyond the activity of living among peoples “in the field”. Several authors have also argued in this direction, (Elwert, 2002) for example asserts that distance from the research object is a basic condition for the capability of observing it. He describes the process of fieldwork, especially the fieldwork on and in conflict situations, as the permanent balance between involvement and distance. This distance, he argues, is indeed much easier to keep up with several, shorter field stays (Elwert, 2002, p.15).

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The discussion about the disciplinary association of anthropology with different kinds of ethnography is a discussion that goes beyond the scope of this work1. For our purposes, however, I conceive of “fieldwork” as a data collection method that is used by many variations of qualitative and quantitative engagement with “real people” instead of the use of material assembled and recorded by others. “Ethnography” is understood here as the activity of observation and interaction with peoples in a place considered as “the field” of the ethnographer. When leaving this field, and putting distance between himself and the field, the process of writing and presentation of the material produced by the ethnographer starts (Ingold, 2008, p.88). I engaged partly in ethnographic work, participating in public events and meeting the protagonists of this study in different settings. Still, I did not do classical anthropological fieldwork which (Marcus and Okely, 2007) ironically describe as the researcher venturing to “learn to milk cows, climb trees, use a blow pipe, pound millet, ride camels or appear as character witness in the Old Bailey for someone charged with attempted murder” (Marcus and Okely, 2007, p.359). The greater part of the lives of my research partners happened outside of the events I participated in, and I did not follow or participate in most of their private lives. What I did was gain an idea of the “life” of the institution some of the actors represented, as such as FUNAI, and this helped immensely to conceive of the different strategies and discourses of its representatives in a contextualized way. “Anthropology”, then I consider with Tim Ingold, is a kind of search for the perspective of a stranger on a topic, an act of “defamiliarizing” the experiences made and the processes observed: It is the constant awareness of alternative ways of being, and of the ever-present possibility of ’flipping’ from one to another, that defines the anthropological attitude. It lies in what I would call the ’sideways glance’. Wherever we are, and whatever we may be doing, we are always aware that things might be done differently. It is as though there were a stranger at our heel, who turns out to be none other than ourselves. (Ingold, 2008, p.84)

Following this perspective, anthropological activity is not limited to being in the field. It rather includes activities beyond ethnography that Ingold describes as processes of “creating correspondence” between the observed and the “experiences of habitation” (Ingold, 2008, p.88). My study, as well as many of the authors and discussions I

1 | See on this debate among others: (Ingold, 2008, p.88), (Nader, 1972), (Faubion, 2009), and (Clifford, 1988).

METHODS | 49

approach in this work, has generated its thesis and narratives in the context of this broader understanding of the anthropological endeavor. Furthermore, this current study can also be located in the area of microsociology, based on its strong foundation on interview situations. Studies in the area of symbolic interactionism (Goffman, 1974) for example ask very similar questions to the ones approaches by Sally Engle Merry and interpretive studies in anthropology. As does Merry, I treat my interview material as instances of talk ”in which individuals present images of both themselves and events in ways designed to justify and convince" (Merry, 1990, p.9). In the context of sociology, qualitative studies often face claims for representativity of their results, for “lessons learned” that can be applied to every case considered similar. As will become evident from the description of my fieldwork, the results presented in this work are heavily based on the time and the context of political, social and economic circumstances during my fieldwork in which the topic of my study was embedded, and this context represents the framework for the interactions between me and my research partners. Still, the usefulness of the results generated in my work is not limited exclusively to my encounter with the actors of the regulation of prior consultation in Brazil. I want to take up the argument made by (LeCompte and Goetz, 2001) that the explicit display of methods, analytical categories and circumstances of a study can generate a situational basis on which ethnographic accounts can be correlated and discussed in the light of each other. LeCompte and Goetz see comparability and translatability as two conditions of research that can facilitate comparison beyond the limited case study, but which are not based on simple generalizations: Comparability requires that the ethnographer delineate the characteristics of the group studies or constructs generated so clearly that they can serve as a basis for comparison with other like and unlike groups [Wolcott, 1973]. Translatability assumes that research methods, analytic categories, and characteristics of phenomena and groups are identified so explicitly that comparisons can be conduced confidently. Assuring comparability and translatability provides the foundation upon which comparisons are made. For ethnographers, both function analog to the goals of more closely controlled research: generalizability of research findings and production of causal statements. (ibid. 103)

This kind of transparency contributes to a form of comparability and translatability that does not fall back on a classification of societal variables in fixed, comparable features, but it can instead facilitate the exchange between different accounts of explicitly described field situations and results.

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3.1. ACCESS

TO THE FIELD AND PLACES OF RESEARCH

The present study was rendered possible by the research consortium Carbiocial2 that studied interdependencies between climate change and land use by using the highway BR 163 in the Southwestern Brazilian Amazon as a case study between 2012 and 2016. In the case of BR 163, land and resource conflicts had been interacting with the legal framework on the state and national level in the most varying (legal and illegal) ways, and more or less participative policies for sustainable land and resource management had been continually coming and going in the region (Schönenberg, Regine and Hartberger, Korbinian and Schumann, Charlotte and Benatti, José Heder and Fischer, Luly da Cunha, 2015). Working for Carbiocial was not only my source of funding, but it provided an inspiring point of departure for inquiring into the “making off” a legal regulation that, like many others before, was going to constitute a normative framework for the settlement of land conflicts at BR 163. When working at BR 163 within the research consortium project Carbiocial, quarrels about land use among a great variety of local resident groups, along with deception regarding participatory instruments that were presented as a solution for development planning were ubiquitous experiences. In beginning of 2011, the notice about the national regulation of a norm that should set a framework for consultation procedures then seemed promising in this context. I took notice of the regulation when an international seminar was promoted via newsletter in March 2012, and I had the chance to stay in Brasília during the time of the seminar. I attended the live stream from an office of the German corporation for international cooperation “Deutsche Gesellschaft für Internationale Zusammenarbeit” (GIZ), with which I had worked before. This office of GIZ was settled inside of the National Indian Foundation (FUNAI) office in Bras´lia with which GIZ cooperated during that time. So my access to the field of “indigenous politics” and prior consultation in Brazil was initially facilitated mostly via the state agency promoting these policies, together with a supporting international aid organization; much of the staff in both institutions was trained as development workers and anthropologists. This setting of course influenced my perspective from the outset, but it also allowed for insights into the day-to-day work of the National Indian Foundation (FUNAI) especially in the contested field of demarcation and management of indigenous areas and their resources. The balancing act of satisfying the demands of the bureaucratized field of public administration and ad-

2 | The project Carbiocial – “Carbon-optimized land management strategies for southern Amazonia” – is a research project funded by the Federal Ministry of Education and Research in Germany (www.carbiocial.de).

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dressing the needs and claims of the many different indigenous peoples and leaders was the daily business of many staff members I met there. Interviews and observations in FUNAI made very clear that state agencies and their strategies towards indigenous peoples’ rights cannot be considered one homogeneous block, but they should be rather thought of to represent a highly complex web of differentiated institutional interests and political strategies. In addition, the institutional history and staff structure of FUNAI (see Chapter 6.2) shows that in considering actors of the federal administration, it is often too simplistic to draw a clear boarder between state and civil society actors since individual actors switch from one to the other, and state agencies are often created out of civil society movements and incorporate movement leaders. After this stay at FUNAI, my next field stay occurred during the United Nations Conference on Sustainable Development called “Rio+20” in Rio de Janeiro in June 2012, where I attended several public events on prior consultation, on the regulation process, as well as on land and resource conflicts organized by different state and non-state actors, among them FUNAI, the Commission for Traditional Peoples and Communities (CNPCT), the Ford Foundation, but also the indigenous organizations COIAB and APIB, as well as the Movement of People Affected by Dams (Movimento dos Atingidos por Barragens – MAB). All of these events took place at the People’s Summit – which is the biggest side event to the UN Conference organized by civil society organizations, collectives and social movements from all over the world – or in other places that were not at the official UN Conference venue where only accredited guests were allowed. I did not attempt an event-ethnography of the Rio+20 Conference in the sense in which Paul Little approached the first UN Conference on Sustainable Development in 1992 (Little, 1995), but rather I tried to integrate my ethnographic and interview material about the statements and interactions at the UN Conference into a general approach to the negotiations on a regulation for prior consultation in Brazil. In this context, I consider the UN Conference a setting that allowed for (mostly social movement) leaders from other countries to present their experiences with “sustainable development” and consultations among others. Prior consultation appeared as an important topic for indigenous representatives from many different Latin American countries, and it served as a common denominator for the claims issued by indigenous movements from, for example, Brazil and Canada. In subsequent field stays from August to November of 2012 and from April to June 2013, I started to base my “field office” in the University of Bras´lia (UnB) in a space granted by the Department of Anthropology. So my environment partly changed, as I started to become more acquainted with the academic field and discussions of social sciences in Brazil. From the UnB, I went to interviews, public

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discussions and other events related to prior consultation in Brasília. I repeatedly interviewed representatives of the General Secretariat of the Presidency (SGPR) who figured as the heads and major organizers of the regulation process. As the topic of prior consultation at the time of my study was very much debated in the context of the licensing procedures for infrastructure and energy projects, I contacted the Ministry of Mines and Energy (MME), the National Department for Transport Infrastructure (DNIT), and the Ministry of the Environment (MMA). With regard to the groups to which the regulation should apply, I approached the National Indian Foundation (FUNAI), the Palmares Cultural Foundation (FCP) as well as the Commission for Traditional Peoples and Communities (CNPCT), whose representative in this case was employed by the Ministry of Social Development and Fight Against Hunger (MDS). During the regulation process, the institutions dealing with quilombola communities gained more importance since the consultations on a regulatory norm were realized exclusively with them. In order to know more about these events, I approached the Special Secretariat for the Promotion of Racial Equality (SEPPIR). With regard to civil society actors, I first tried to understand the field of NGO-approaches to the topic of prior consultation and then decided that the Socio-Environmental Institute (ISA) and the Missionary Indigenist Council (CIMI) would present two poles of the existing attitudes and schemes of involvement of organized civil society organizations. With regard to indigenous and quilombola leaders, I tried to encounter them as much as possible for interviews and get together, in the headquarters of their movements, at public events on prior consultation or other topics to get an idea of their working field. Along with the formal interviews, I continued to meet with FUNAI and GIZ staff for informal conversations. In addition, my new association with the University of Brasilia allowed for increasing interaction and discussion of my research and fieldwork questions with the professors and students of the Department of Anthropology who deeply enriched my perspective on the matters 3 . Following the process My fieldwork approach can be labeled as a “follow the process” method, where I tried within the financial possibilities of my funding to follow the proceedings of the

3 | I also associated myself with the department, which was a very complex bureaucratic act, but it was completely worth the effort: An association with the DAN (Department of Anthropology of the UnB) was definitely a quality label that opened doors for a foreign doctoral student inquiring for interviews with the high-level administration in Bras´lia as well as for getting in contact with social movement leaders who, to a large extent, are involved in projects that cooperate with the DAN or other institutes of the UnB.

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regulation process. In addition to its main setting in Brasília, events related to the national regulation in Rio de Janeiro and Montes Claros pointed to the “multi sites” of the negotiations on a legal definition for prior consultation. Still, my research stayed focused on the perspective of the actors who were involved in these discussions in Brasília. In order to give a more complete picture of the arenas for negotiating prior consultation in Brazil, I present two concrete conflict cases outside of the capital – the hydroelectric dams Belo Monte and São Luiz do Tapajós region – as side stages for these negotiations. I accessed these recurrent conflicts primarily via secondary material such as public statements, and written reports of the actors present4 . I decided to include these incidents in my research since the conflicts around these two dams flared up time and again during the negotiations and demanded concrete and immediate solutions for the application of prior consultation – of the norm that was being debated on an abstract level in Brasília, especially by the staff of the General Secretariat of the Presidency (SGPR) or of the Ministry of Mines and Energy (MME). While on the one hand, short term solutions were pressing, these cases were also regarded by the members of the Working Group (GTI) in a positive way as interesting fields for testing procedures and ideas on prior consultation. I treat these cases of conflict very much in the way Gluckman and other proponents of an “Extended Case Method” (ECM) considered to be [. . . ] particular situations of conflict as complexes of connected incidents that were occurring in the field, in order to isolate and identify the actual mechanisms underlying the development of conflict. (Evens and Handelman, 2006, p.2)

Representatives of the Manchester School of British Social Anthropology working in the area of legal anthropology introduced ECM in the 1960s and 1970s in order to redirect the focus from structures of ordering society to actual events taking place. The works of the Manchester School were directed at showing the discrepancies between norms and everyday practice (Burawoy, 04.03.1998, p.5). The idea was to take the actors and their roles in any particular incident and trace these self-same actors through other incidents, in this way linking the varied incidents to one another and identifying the actual mechanisms (as logically distinct from the normative principles) operating in the relevant order. (Evens and Handelman, 2006, p.2)

4 | In the case of Belo Monte, my interview partner at the ISA provided with lively accounts of the daily conflicts and situations of participation that she witnessed as representative of the NGO.

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I apply this structuring principle of ECM to the regulation process in order to grasp its meaning and course in the interplay of its different arenas and side stages. Place & Positioning Having said this, it is important to stress that the main locale of my fieldwork, Brasília, cannot be considered “one place” in this context. The city with its population of 2.7 million has many faces, of course, and a large range of social spaces that differ significantly and vary in their possibilities of access – for me and everybody else. I consider access an important factor for understanding the conditions that Brasília presented to my topic of study5 . First, the capital itself is quite isolated within the Brazilian Cerrado, the vast arid region of Central Brazil with its few sierras. Additionally, the structure of Niemeyer’s famous airplane-city is not comparable to any other Brazilian city: Living area blocks are separated by highways from sectors for amusement, hotels, banks, administration – all connected via highways without traffic lights – pedestrians risk their lives entering this never-ending flow of traffic. Transport in Brasília is feasible mostly via car. Public transport – meaning almost exclusively bus rides – is uncomfortable and unsafe at night. In the administrative center where many meetings took place, busses do not even stop. At BR-163, I met several indigenous leaders describing their bewilderedness when coming to Brasília for the first time. Apart from being a large city like any other large city, Brasília is definitely a city that is difficult to access. Then there was the whole machinery of administration, which granted access to many (even public) events only via registration and association to an organization. These factors contributed to creating a rather exclusive space for discussing prior consultation. Apart from these questions of spatial access, another kind of political positioning was important for the orientation in my field of study, one of a political rather than geographical orientation: “Which side are you on? Which perspective are you looking

5 | Sally Engle Merry proposes a “deterritorialized ethnography” for studying global law and its circulation between the local, regional, national and global scale: “My current project is an effort to do what I have called deterritorialized ethnography. It is similar to what others have called multi-sited ethnography, but insofar as it is focused on information flows, the Internet, and global conferences, it is not restricted to sites” (Merry, 2000, p.130). However, my study had its main base in Brasília, and it constructed a perspective in interaction with actors that were mainly based there. It is from the perspective of Brasília that my work constructs an approach to prior consultation in Brazil, without specifically focusing on the urban context or the structure of city life. Robert V. Kemper calls this the difference between research in a city and research on urban systems (Kemper, 1991, p.374), a perspective with which I agree.

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from?” appeared to be among the more important questions during my field research. Since I belonged to a group of professionals that was strongly involved in the debate and defense of several of the issues involved in negotiating the interpretation of prior consultation in Brazil, almost all of my interview partners expected a clear position towards the contested questions or simply assumed my position as one in defense of the acts and strategies of the indigenous and quilombola movement. For some of my interview partners who worked in institutions habitually at conflict with positions that defend the priority of rights to territory and self-determination of indigenous peoples, such as the Ministry of Mines and Energy (MME) or the Department of Infrastructure of Transport (DNIT), I was initially considered part of a group of actors attacking and delegitimizing their work. Also from social movement leaders, NGO representatives and anthropological colleagues6 , a clear position was often expected from me in order to be recognized and accepted among them. This possibility of integration had to be weighed constantly against the position of an external observer and a scholar attempting to be as unbiased as possible. Research with experts This study does not inquire into a specific case of consultation on an infrastructure project or contestation of an administrative regulation, but it accompanied the attempts to define and agree on notions of consultation on a more abstract level. These definitions and notions matter since they set the framework within which actors negotiate during concrete cases of norm application. This work then presents many perspectives of government officials, international staff, anthropological and legal experts as well as representatives of social movements and NGOs on a national level who are involved in debating a generalizable rule in the national context of Brazil. This study then integrates in a larger body of anthropological works that were crafted since the 1970s in following and debating Laura Nader’s call to [. . . ] study the colonizers rather than the colonized, the culture of power rather than the culture of the powerless, the culture of affluence rather than the culture of poverty. (Nader, 1972, p.289)

6 | Many Brazilian anthropologists I met were to a large extent involved in political activism aside from their academic work. Alcida Ramos states this as a general tendency for Brazilian anthropologists: “The privileged focus of Brazilian ethnology on interethnic relations is, like most things, linked to a specific social interest and historical context. It is associated with an attitude of political commitment to the defense of the rights of the peoples studied.“ (Ramos, 1990, p.453)

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While opening up new perspectives on a wide range of issues – providing new ethnographic material on the constellations of bureaucratic power being just one among many – fieldwork in formalized and institutionalized settings provided some restrains in terms of my research methods. One restraint was access to the field. The length of my field stays was dependent on the time schedule and funding of the research project Carbiocial. During 2012 and 2014, I tried to match my stays in Brazil with important events like the UN Rio+20 Conference or the consultative meetings organized by the General Secretariat of the Presidency (SGPR), but of course during my absence, negotiations and meetings continued. Adding to these circumstances was the restriction of access which internal governmental processes represent for any outsider. In general, I did not attempt to collect insider-material from within the different arenas that were closed for non-members. To these spaces I had no access and information on meetings and documents emanating from these spaces are a scarce currency in Brasília; they only circulate between trusted people inside the government or people with references, and both these resources I did not possess during at least half the time of my field study, leading me to focus on more accessible material such as interviews, public statements, archive material and participation in public events. I therefore assumed an outsider-position of somebody who perceived the regulation process as it appeared in the Brazilian public sphere. The current work includes a study of government regulatory agencies, which is an explicit desideratum for research expressed by (Nader, 1972) and still a rare topic of anthropological fieldwork. In the anthropology of human rights and studies on prior consultation, this perspective is only touched upon lightly; studies in this field tend to focus on the locales of conflict around specific cases of claims to consultation or on debates of the rights deriving from an analysis of the existing legal (mostly international) references on human rights (Schilling-Vacaflor, 2013; Schilling-Vacaflor and Flemmer, 2013; Anaya, 25.04.2013). This study thus provides insights into the complex inner-governmental diversity of actors and positions, and presents the institutional context that shape positions and interpretations of a successful implementation of prior consultation in Brazil. Still, the study aims at presenting these perspectives of political decision makers along with the viewpoints of social movements, NGOs, and, last but not least, legal and anthropological experts. Reflecting with peers Legal anthropologists in the field of indigenous rights act and research in constant comparison with legal scholars. Naturally, it is assumed, they know more and “better” about the issue of implementing law: while anthropol-ogists are considered the experts on culture, lawyers and legal scholars hold a clear

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position of authority on the evaluation and opinionating on legal processes in the perception of the public. The following quote is a tongue-in-cheek picturing of the kind of meetings I also shared with legal scholars: The difficulty of this task should not be underestimated, particularly when novel issues are involved. We have often observed lawyers listening to anthropologists and then commenting, ‘Of course – that’s obvious!’ Our response, usually given sotto voce, is always the same: ‘Then why didn’t you think of it?’ (M. Conley and M. O’Barr, 1993, p.63)

It is the continuing proposal of legal anthropology to introduce critical perspectives on the topics apparently solved and declared as “obvious” by legal scholarship. Instead of struggling for ultimate recognition of the different kinds of expertise produced, I consider attempts of collaboration and exchange more fruitful for the study of law. Anthologies such as the recent volume on law and anthropology by (Souza Lima, 2012) present the fruits of such cooperative projects. Apart from this competition among disciplinary experts, reflecting with peers also meant an intense and very fruitful exchange of perspectives with some of my research partners. For example, encounters with my research partner from the NGO SocioEnvironmental Institute (ISA) for example was a very important source of knowledge on innergovernmental discussions as well as the larger picture of indigenous politics in Brazil and Latin America in general. We never met in a formal interview situation but for lunch or at a bar with colleagues. This gave me more insight in the professional environment of the ISA, but it also prevented a clear interview situation in which I could concentrate on taking notes and would be given the time to work with pre-prepared questions. We engaged more in informal conversations, I tested my initial hypotheses and asked for evaluations of the ongoing processes or for reports on events in which I was not allowed to participate. My research partner at ISA constantly gave opinions on my work and suggested fields for further inquiry. This situation constitutes the classic benefit and challenge of the study of and with experts: Being confronted with peers and research partners theorizing in similar yet different academic and activist frameworks meant a constant explication and justification of this research and, consequently, its defense and rethinking because many of my research partners did not agree to being studied “passively”.

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3.2. G ATHERING

AND PROCESSING FIELD DATA

As described above, this study is based to a large extent on the interviews I carried out during my stays. All in all, I conducted 33 interviews with participants and observers of the regulation procedure. 13 interviews were conducted with members of the different governmental institutions of the Working Group that led the regulation process. I did semi-structured interviews with four indigenous leaders and two quilombola leaders. In addition, I conducted two group interviews with representatives of the ILO and one with a representative from the MPF. The interviews took place mainly in the Ministries or institutions and were mostly formal interview situations, in which I conducted open or semi-structured interviews with my research partners7 . The interviews usually started with assessing the position of the institution represented by my research partner in the regulation process together with him or her, including its participation in the Interministerial Working Group (GTI) entrusted with the task to construct a draft law, and the relevance of future consultation processes for the working of his or her institution. Afterwards, conversations revolved around experiences made with consultative processes as well as expectations on the regulation process, possible formats of participation, evaluations of the regulation process and its actors, as well as legal frameworks for consultation and the access to territory in Brazil. Of course, all my interview partners approached the topic differently and I tried to follow their path in the conversations and present the exact position of my interview partners in order to give an idea of the relational context of their accounts (Emerson and Polnner, 2001, pp.142-143). Apart from the interviews, the public debates in Brasília, the many seminars and presentations during the Rio+20, and the consultative meetings within the context of the official regulation process were the events which allowed for participatory observation of the practices and interactions of this legislative process. Most of these events were structured in a very similar way: a table of discussants in the front would normally include a representative from a high-level governmental institution that was directly involved in the regulation, such as the General Secretariat of the Presidency (SGPR) or the Ministry of Foreign Affairs (MRE). In addition, one indigenous or quilombola leader was normally invited, as was as an anthropologist, sometimes a representative of the private sector, and a representative of the more involved Min-

7 | As described above, meetings with my interview partner at the ISA fell completely out of this arrangement; they were mostly informal meetings over lunch or the like. This of course had a strong influence on the kind of information passed in these situations.

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istries such as FUNAI or the MME. The observable interactions during these events turned out to be very valuable information that I used to contextualize or question my interview material and develop new questions. Nevertheless, it has to be considered what kind of discourses and situations were observable in this context. Here again, the study is not based on insider protocols of meetings behind closed doors, where I am sure that issues were framed differently. My study is rather based on the observable, the accessible, on the public space and discourses, interpretations and interactions that were possible within this space. In addition to this field material, I had access to different records of past events on prior consultation in Brazil, such as the preparatory events for the regulation or civil society events before 2012. These events, as well as public events during the regulation process which I could not attend, were to a large extent documented via video or written transcript. Further, I use public proclamations and statements such as newsletters and open letters of the actors and observers of the regulation process for my work. I consider this material the “preferred self-image” of these actors as described by (Nader, 1972, p.308). Especially my presentation of the protests against the two hydroelectric power plants, Belo Monte and São Luiz do Tapajós, as well as the case of the consultations of quilombola leaders, are based partly on this material. It is clearly separated from my analysis of the material generated in personal encounters. Moreover, I used archive material that I found in the ILO Office in Brasília on the revision process within the International Labour Organization in 1988 and 1989 in order to understand this important “conglomerate of actors” and the historical construction of the main issues of Convention 169 which continue to form discussions and attempts of implementation. Last but not least, my research partners published an impressive body of grey literature, legal comments as well as academic writings on the topic of prior consultation. These were important guidelines for the exploration of the topic and points of departure for conversations and exchange on perspectives on the topic during my field stays. My approach to the collected material was generated and transformed in the course of my fieldwork and during first attempts to analyze my field material, both in Brazil and home at my desk. In analyzing this material, I used classical methods of coding and thematic organizing around themes that were key moments for my approach to the topic. This moment of interpretation of field material is still quite a black box in the literature. Much has been written about behavior and strategies in the field, but the interpretation of field material seems to be still one of the secrets of anthropological work. It is covered only by manuals that explain the process of

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disassembling the material until a point in which meaning “magically” emerges or by flowery description of moments in which anthropologists “understood” the real issue of their fieldwork. In contrast, my present study attempts a compromise in the sense that the interviews were summarized and coded in thematical strands, and strategies and discourses were identified based on this material (Mayring, 2010). On the other hand, fundamental directions of this inquiry were steered by crucial moments in fieldwork, in which interactions or answers did not fit with what I had been taken for granted, and I had to set up new explications and perspectives in order to make sense of the observed interactions or interview statements. These scenes are described and analyzed within this work. The ethnographic part of this work (Chapters 5-8) follows the institutional structure that formed the field of negotiation for an interpretation of prior consultation in Brazil. As stated above, I interviewed a selected group of representatives of these institutions. In order to protect my research partners, their names have been changed, but institutions are of course reproduced with their real names and functions. Naturally, “meeting an institution” means actually meeting representatives in specific situations. Of course, their individual relationship towards the institution they represent cannot simply be generalized. The relationship and experience that binds a social movement leader with its movement might be different from the relation of an official towards the Ministry that he or she represents. This context constitutes an important factor for the evaluation of interactions with institutional representatives, as Robert Emerson and Melvin Polnner state: For on the one hand, ethnographers must treat members as capable of providing authoritative knowledge about the ways and workings of their social worlds. [. . . ] On the other hand, the very occasions in which such knowledge is elicited are themselves interactionally and organizationally significant events; as such, they are constituted and constrained by the process involved in all such events. In this reflexive mode, the researcher reviews the dialogue as an accomplished expression of the very organizational order she studies. (Emerson and Polnner, 2001, p.146)

This organizational influence was evaluated in every case. In some cases, a change of a specific government representative might not be crucial for continuation of their Ministry’s project while other processes can be inseparably linked to specific persons in the institutions. Nevertheless, I hope to show that many positions expressed in the interviews and public statements can be considered to arise out of long-lasting institutional relationships and the continuous function of certain Ministries within the political texture of the country.

4. Historic contexts for debating prior consultation in Brazil

This chapter examines the creation of the global norm under discussion in my case study on the legal regulation of prior consultation in Brazil. Consultations of indigenous and tribal peoples on measures affecting their territories are defined in Convention 169 of the International Labour Organization (ILO). I herein describe the history of the ILO’s involvement with indigenous rights as well as the process of creating its first convention on indigenous rights: Convention 107, predecessor of ILO Convention 169. I present a detailed reconstruction of the becoming of Convention 169 out of a revision of Convention 107 with special focus on the debates that continue vivid up to today. In a third step, I summarize the interactions between the Brazilian state and the ILO concerning participatory rights until the start of the object of my field research, the legal regulation of prior consultation in the country, in 2012. Information in this chapter is mainly based on the extensively filed material that the ILO provides as well as on Luis Rodríguez-Piñero’s landmark study on Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919-1989) (2005) that presents an unprecedented documentation of archive material on the development of the ILO’s international law “regime” on indigenous peoples. I attempt to access the situation in the Conference halls in Geneva in 1988 and 1989 via the comprehensive protocols of the official meetings before and during the drafting of Convention 169 as well as the many official statements of ILO bodies on the topic. Apart from presenting the institutional arrangement implied by the organization of the International Labour Organisation, I also aim at showing how both Convention 169 and its predecessor (Convention 107) are expressions of ongoing discussions about (de)colonization, state sovereignty and development, configurations of which are currently being renegotiated in the regulation process in Brazil. In order to get a clearer idea of the full conceptual and institutional “arsenal” of the different actors in Brazil today, it is necessary to understand the origins of international debates on

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indigenous peoples as well as the history of the ILO’s commitment in this area. In this sense, this chapter is also a historic re-construction of the notion of “indigenous peoples” in international law.

4.1. T HE I NTERNATIONAL L ABOUR O RGANISATION AND INDIGENOUS PEOPLES The International Labour Organization was founded in 1919 at the Peace Conference in Versailles following World War I and initially integrated as a permanent body of the League of Nations. Since 1946, it is seated in Geneva and part of the United Nations system as a specialized agency. Its main founding mission was to secure labor peace which was regarded as essential to global prosperity. Today, the ILO also lists social justice and the enforcement of internationally recognized human and labor rights among their objectives (ILO 2014). Since its establishment, the most distinctive feature of the ILO has been its tripartite structure: In its main body, the annual International Labour Conference (ILC), every member state is represented by two government delegates, one worker delegate and one employer delegate. The conference is often referred to as a sort of parliament, where the important decisions on conventions and recommendations – the two main instruments of the ILO – are finally discussed and adopted. The tripartite structure of the ILO is further provided for in its Governing Body, the executive council of the ILO. China, Brazil, France, Germany, India, Italy, Japan, Russia, the UK as well as the USA have a permanent seat here; the rest of its members are elected by the International Labour Conference (2008: 2). Within the ILO structure, the Governing Body’s general task is to establish strategic objectives and policies (2008). This task includes the control over the International Labour Office, the management and administration board of the ILO (for example by electing the Director General), and playing a leading role with regard to the functioning of the ILO itself. The latter includes the controlling over member’s compliance with the organization’s standards as well as the preparation of the annual conference (1919. Constitution of the International Labour Organization). As an international with no executive power, the ILO realizes its mission of setting standards through negotiated agreements of its member states (185 by 2013, see (International Labour Organization, 2013)). Basically, this happens via two instruments: Conventions, which are open for ratification and afterwards have binding character, and recommendations, which are more specific than conventions and not binding like the former. Both of these standard-setting instruments are adopted by the main ILO organ, the International Labour Conference (ILC) that meets annually in

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its special tripartite form. Important (“fundamental”) ILO Conventions cover topics like the workers’ right to associate and organize themselves, the opposition to forced and child labor, remuneration and discrimination in employment relationships. In June 2015, the standardizing body of the ILO consists of 189 conventions and 203 recommendations on general labor issues as well as very specific technical questions (International Labour Organization, 2015b). Despite this rather clear thematical focus, the ILO adopted in 1957 an “Indigenous and Tribal Populations Convention” (No. 107) that provides norms for the employment and recruitment of these populations, but also comprised articles on land, social security and means of communication. Out of a concern for indigenous workers, an integral body of rights addressing very different aspects of indigenous lifestyles beyond classical labor issues had grown. In the next paragraphs, I want to delineate briefly how the International Labour Organization came to deal with indigenous people. From the outset, it should be said that the ILO’s engagement with indigenous people evolved via the topic of slavery, forced labor and finally something called “native labor”. The ILO’s authority in dealing with working and living conditions of “indigenous and other tribal and semi-tribal populations in independent countries” (C107, 1957. Indigenous and Tribal Populations Convention) has to be seen as the result of various overlapping processes of institution building, mobilization of agendas and "testing terrain" until a widely recognized competence in dealing with indigenous issues was established. The basic mechanisms to achieve a widely accepted competence seem to have been the conduct of studies and, through this, the creation of expertise. As Rodríguez-Piñero states, the organization’s interest in the fate of indigenous workers was “colonial in nature” (Rodrígues-Piñero, Luis, 2005, p.18), a form of disciplining indigenous workforce in the colonies. Important first steps towards the establishment of the ILO’s expertise in this realm came from a study that the ILO conducted on native labor in 1921 and the subsequent creation of the Committee of Experts on Native Labour in 1925 with the task to investigate the matter. These activities strongly adhered to a concept of indigenous peoples that Rodríguez calls the “classical notion of indigenousness”, based on the 19th century evolutionist idea of different scales of civilization within which “indigenous” was equal to primitive (cf. (Rodrígues-Piñero, Luis, 2005, p.40); on the problem of a conceptual continuity between primitive and indigenous cf. Kuper (2003)). Based on this conceptualization of indigenous peoples, the doctrine of “trusteeship” gained power as a legitimizing discourse for the regulation of ‘native labor’: a humanitarian concern about populations perceived as “backward” (Rodrígues-Piñero, Luis, 2005, p.19).

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With the end of World War II, the start of the decolonization movement and the establishment of new principles such as equal rights, self-determination and human rights in the UN Charter, the international perspective on indigenous peoples started to shift from a personal to a geographical definition: the legal status of territories, and not peoples, became central in dealing with the ‘Indian question’ (Rodrígues-Piñero, Luis, 2005, p.36,50). Within the ILO, this transformation was supported by a new influence in the organization’s thematic orientation: through repeated regional American Labour Conferences, the ILO’s bureaucrats started to meet with Ameri-can Indigenism, which constituted at this time of a vivid network of ideas, activists and government institutions that formed the relations between states and indigenous peoples significantly (Rodrígues-Piñero, Luis, 2005, pp.69-70). The ILO debate on the issue of native labor started to be influenced by an “epistemic community” of anthropologists and sociologists that regarded the “Indian problem” as one of cultural change and found the institutionalization of their claims in the creation of the InterAmerican Indian Institute in Mexico City in 1942 (Rodrígues-Piñero, Luis, 2005, pp.54-57). Relying more and more on the “scientific tools” that scholars introduced in the discussions, the ILO started to develop an Indigenous Labour Programme that was directed at the development and integration of indigenous groups into the national state. This was also made possible by the new, (“ill-defined”, as (Rodrígues-Piñero, Luis, 2005, p.22) calls it mandate of the organization. Widening the original charge of the organization to secure labor peace, the Declaration of Philadelphia of 1944 re-invented, to some extent, the International Labour Organization in modifying the concept of labor to include interest in the general welfare and living conditions of workers (Rodrígues-Piñero, Luis, 2005, pp.67-70). Provided with that new mission, the ILO launched a study on “Indigenous Peoples: Living and Working Conditions of Indigenous Populations in Independent Countries” (1956), and implemented a “vast, multiyear, and multiagency development endeavour under the Office’s technical leadership” (Rodrígues-Piñero, Luis, 2005, p.98), the Andean Indian Programme (AIP) that operated from 1952 to 1972. This programme aimed at the integration of indigenous groups living in the Andes, via research and development pilot projects. It was a joint effort of various UN bodies, the World Health Organization (WHO) and Food and Agriculture Organization (FAO) under the leadership of the ILO (cf. (RodríguesPiñero, Luis, 2005, pp.98-111)). This development gave a new direction to the ILO’s activities in the realm of indigenous peoples: The ‘indigenous problem’ was thus constructed as a problem of ‘underdevelopment’, falling within the objectives of the newly started regime of development aid, to the ex-

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clusion of alternative approaches to indigenous issues. (Rodrígues-Piñero, Luis, 2005, p.87)

Up to the 1950s, the ILO intervened basically through technical assistance (like the Andean Indian Programme) and reports, recommendation and the like. As a first tangible step towards the adoption of an international standard on the issues arising from these activities, a new committee was formed in 1946: The Committee of Experts on Indigenous Labour. As a result of the Committee’s work, in 1956 the topic of indigenous populations was put on the agenda of the annual Labour Conference (ILC) in a form that superseded the initial technical focus of labor and social questions. The Committee pointed to cultural factors of development that were not in the direct competence of the ILO, but necessary to reflect upon in the eyes of the Committee’s members (Rodrígues-Piñero, Luis, 2005, pp.94-98). The topic raised several controversies in the plenary of the ILO’s constituency. The organization’s competence to deal with the issue of “indigenous peoples” in such an open form (and possibly interfering in affairs of state sovereignty) was questioned (Rodrígues-Piñero, Luis, 2005, pp.129-137). Advocating the organization’s legitimacy in dealing with the suggested draft, representatives of the ILO Office argued on the one hand with the gained expertise and experience of the Andean Indian Programme and on the other hand with the complex nature of the “indigenous problem”, which only could be solved in an integral approach (Rodrígues-Piñero, Luis, 2005, pp.126-132). A second point of discussion was the instrument to be chosen. Of the two possible standard-setting instruments, the flexible form of a recommendation without binding obligations was preferred by the governments of nations with large indigenous populations (Canada, New Zealand, USA) and the employers’ group, while the “urgent need to come to terms with the indigenous problem on a global scale” (Rodrígues-Piñero, Luis, 2005, p.137) was put as an argument in favour of a Convention by the USSR, Belgium and, interestingly, many governments of Latin America (Rodrígues-Piñero, Luis, 2005, pp.134-137). These states, which also have enormous indigenous groups on their territories, showed a tendency to support the ILO in its efforts to create a binding instrument on the “problem” of indigenous peo-

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ples worldwide1 . Finally, Convention 107 was adopted together with the recommendation 1042 . Summing up the ILO’s concern and work on the issue of indigenous peoples, Rodríguez-Piñero states that [. . . ] the crystallization of specific international concern for indigenous peoples throughout this period [aftermath of World War II] provided the basis for the emergence of the contemporary international regime of indigenous peoples, which may be considered a historical by-product of the international development regime. (Rodrígues-Piñero, Luis, 2005, p.88)

Rodríguez-Piñero describes this as an interesting discourse shift: The paradigm of “integration” lost the fight for a conceptual space within the broader discourse of “development”, partly to the concept of “community development”, but mainly to the paradigm of “rural development”, into which the idea of integration was simply absorbed, especially in the context of the Andean Indian Programme3 . Convention 107 Within Convention 107, what Rodríguez-Piñero calls the “modern” notion of indigenous peoples – distinct groups living in independent countries – as opposed to “peoples living in colonies” (“colonial notion”) or “primitives” (“classical notion”) is

1 | Rodríguez-Piñero takes this as the result of their primarily positive experience with the ILO’s practical engagement in this area via the Andean Indian Program mentioned above (Rodrígues-Piñero, Luis, 2005, pp.129-137,98-111). 2 | This final result of adopting a convention in combination with a recommendation is described as a common solution for ILO standard-setting activities by Rodríguez-Piñero. He states that recommendations are a common resort when no agreement can be reached on the provisions of a draft convention can be reached. In such a case, only the most vague and general provisions are included in the binding instrument, while more controversial contents are worded only as a recommendation (Rodrígues-Piñero, Luis, 2005, pp.138-139). RodríguezPiñero further states that due to this open format and the fact that little or no time had been spent on debating the provisions of the recommendation, it received almost no further attention (“soon came to join the list of the ILO’s dead letters” (Rodrígues-Piñero, Luis, 2005, p.139)). 3 | Of course, this “field encounter” between ILO bureaucrats and the circumstances of indigenous peoples in particular countries (mainly Peru, Bolivia and Ecuador) consolidated the understanding of an entanglement of living and working conditions (Yrigoyen Fajardo, 2009, p.19).

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used for the first time in a legal definition of “indigenous” (Rodrígues-Piñero, Luis, 2005, p.41). In its text, the Convention addresses a) members of tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the 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; b) members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong. (NORMLEX)

This definition of indigeneity reproduces the approach of several ILO Office working definitions as well as the general ILO attitude adopted towards the problem of defining “indigenous peoples”; it avoids a conceptual approach by instead joining descriptive elements. Rodríguez-Piñero calls this a “functional definition” (RodríguesPiñero, Luis, 2005, p.158). This definition also constitutes the final internationalization of a concept of indigeneity that had been developed mainly in the Latin American context and that with this codification was applied finally to indigenous groups worldwide in countries that had passed the process of decolonization and gained independent statehood. Apart from providing a first legal definition of the objects of intervention, Convention 107 represented the first multilateral agreement addressed at the issue of indigenous peoples per se (Rodrígues-Piñero, Luis, 2005, p.18) citing (Hannum, 1988) including provisions on social security, health, education and even the most controversial issue of land ownership of indigenous peoples (NORMLEX). The most important goal of Convention 107, however, was facilitating the integration of tribal and semi-tribal populations into their national state’s societies, lifestyles and economic reproduction modes. This originated in the very conceptualization of indigenous peoples as described above: underdeveloped groups with no real chance of survival. When indigenous peoples started to gain a voice on the international stage and perceptions of development and human rights started to change, this integrationist notion was no longer maintainable. Convention 107 had been ratified by 29 countries when it was closed for ratification after its revision in 1988/1989 (ILO.1988, 1988). Approximately 50% of the ratifications came from countries in Latin America, within the first two years after

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Convention 107 entered into force4 . Other ratifications came from newly constituted Sub-Saharan African countries, as well as from Asia, Belgium and Portugal. The Convention was not ratified by countries with significant indigenous populations such as the USA, Australia, Canada or New Zealand, nor by the USSR or other European countries than the two mentioned above (ILO.1988, 1988). Due to lack of conceptual clarity on the issues in the text (the ILO accepted quite some claims of countries declaring “the Indian problem” as solved in their country) and some denunciations (China and Portugal), the countries effectively supervised on the implementation of Convention 107 were reduced to 14. This meant that the Convention’s precepts could not be applied to a number of groups claiming to be right holders of Convention 107 (Rodrígues-Piñero, Luis, 2005, pp.234-242). As a result, the shortcomings of a geographically biased concept of “indigenous populations” became more evident (cf. (Rodrígues-Piñero, Luis, 2005, p.220)). In contrast to these failed attempts of implementation via technical cooperation, the legal aspect of Convention 107 recovered after a phase of invisibility. After 20 years of being relegated to the margins of the organization’s supervisory machinery, mainly NGOs rediscovered the convention as a legally binding instrument usable to actually protect indigenous rights and became gradually involved in its supervision.

4.2. F ROM C ONVENTION 107

TO

C ONVENTION 169

There are many ways of looking at the development of the international human rights and indigenous rights framework, its actors and discourses in the last decades. Surely, one of the main actors in this realm has been the United Nations Organization, especially in the last decades of the 20th century. In his review of international legal literature from 1945 to 1993 on indigenous peoples and international institutions, Christ Tennant describes the decades of 1971 to 1993 as an UN-dominated phase in international law, as opposed to the two decades following World War II, which he describes as dominated by the ILO. He states further that with UN leadership in international law, the focus on indigenous peoples shifted from justifying practices of development and concrete claims to substantial rights towards processes (of participation, for example) and towards a new perspective on indigenous peoples as “victims

4 | Rodríguez-Piñero sees the reasons for this concentration of ratifications in Latin America in a perceived “continuity between the instrument and their own domestic policies in indigenous affairs” (Rodrígues-Piñero, Luis, 2005, p.235) which in turn had been influenced by the ILO Andean Indian Programme in many cases.

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of progress” (Tennant, 1994, pp.12-13), a tendency that can be seen in the discussions of the revision Committees debating new standards for indigenous rights to be defined in Convention 169. One important milestone in this shift of perspective was certainly the Martínez Cobo study on the discrimination of indigenous people. In 1986, several of his reports as UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities were jointly published as “Study of the Problem of Discrimination against Indigenous Populations” (1986). This study had been requested by the UN Commission of Human Rights5 and its main findings centralized the lack of self-determinations of these people as the root of their discrimination (Lâm, Maivân Clech, 2000, pp.42-45). With this report, an important step was taken in acknowledging the continuing existence and persistence of indigenous populations and their cultures. In gathering definitions from all over the world, Martínez Cobo concludes in his study that “indigenous populations” should be defined as [. . . ] those which having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. (1986: Chapter V)

Important steps of including and dialoguing with indigenous groups were thus taken in the decades following the negotiations of the ILO Convention 107. Nevertheless, the Convention stayed the only binding international standard. The process of revising Convention 107 started in September 1986, when the ILO Governing Body called for a Meeting of Experts on the revision of Convention 1076 – 18 experts were appointed after consultations with the tripartite members of

5 | The UN Commission of Human Rights was founded in 1946. It launched several initiatives that helped stimulate open discussions with indigenous representatives, such as the creation of the UN Working Group on Indigenous Populations (WGIP) in 1982. The UN Commission also launched a Working Group with the aim of establishing a Permanent Forum for Indigenous Peoples, which was successfully established in 2002 (Lâm, Maivân Clech, 2000, pp.42-45). 6 | In the Standing Orders of the International Labour Conference, the procedural steps for adopting and revising ILO instruments are regulated. Following these provisions, it is the role of the Governing Body to put any identified problems on the agenda of the International

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the Governing Body (ILO.1988, 1988, p.100). These experts held a 10-day meeting in Geneva7 . They were called upon to discuss a working document that had been prepared by the ILO Office and contained background information on international activity relating to indigenous rights (including initiatives taken by the ILO) as well as on the rising number of non-governmental s representing indigenous and tribal peoples. The document further contained an overview of the situation in the member states with regard to indigenous rights and called for the analysis of cases of violations of the rights of indigenous peoples around the world. The Office text already contained a call to remove the notion of integration from the Convention (ILO.1988, 1988, p.101). The experts were especially invited to opine on the revision of Article 5 of Convention 107, which dealt with consultation processes. Finally, the document clearly stated the aspired goal of the revision: Finding a balance between “the ideal, the requirements of flexibility and adaptability to different situations, and the basic needs of the populations it was intended to protect and to assist” (ILO.1988, 1988, p.103). The experts rapidly agreed on the necessity of revising the older Convention in order to conform it to changed circumstances and views (ILO.1988, 1988, p.105) – the document was generally perceived of as outdated, but back in the 1950s adopted to the best of that time’s knowledge and belief. The basic principles that should substitute the notion of integration were defined as the right to difference, collective

Labour Conference. A Meeting of Experts can be called upon in order to generate material and arguments to legitimize such a step. It is then the function of the ILO Office to prepare a law and practice report with a questionnaire on the content of a possible new instrument. The constituencies of the ILO (governments, workers and employers) will receive this questionnaire and give their opinion on it. Again it is the ILO Office’s task to summarize and comment the received answers and prepare a document for the annual conference. Through the procedure of delegating discussions within the Conference, a Committee is normally set up to pre-debate the relevant issues and present them later to the conference plenary. The result of the discussions in the Labour Conference is resumed again by the Office and a report, including proposals on the new instrument is sent to the tripartite members. Their comments are included in a new report prepared by the Office and a second discussion within the following year’s Labour Conference should lead to the adoption of the new instrument, pending at least a two-thirds majority in favor of it (ILO.2012/1919, 2012). 7 | Representatives of the World Health Organisation (WHO), the Food and Agriculture Organisation of the UN (FAO), the World Bank and the Inter-American Indian Institute also attended the meeting as well as several other specialized bodies of the United Nations Organization. As observers, several international trade unions and employers’ organizations, as well as several NGOs were admitted (ILO.1988, 1988, p.100).

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rights, and the right to self-determination (although with very different interpretations on the scope of “self-determination”) (ILO.1988, 1988, pp.106-108)8 . In their discussions, the Meeting of Experts already put the most contradictory topics involved in the discussion of rights of indigenous and tribal peoples in the ILO context on the table: The question of reference to “populations” versus “peoples”, the problem of land rights and notions of property in general, the rejection of removal of indigenous or tribal peoples from their land if not plainly necessity, with their consent and accompanied by compensation, as well as the question of how to enforce the existing rights in the ratifying states (ILO.1988, 1988, pp.105-116). These topics can be regarded as one part of a thread that would span the following revision negotiations as well as the regulation debates in Brazil and other Latin American countries (Garzón, 2009). They constitute the basic canon of “contentious issues” when debating rights of indigenous peoples within the context that the ILO provides. Apart from these classical issues, the Meeting of Experts dealt with the intricate issue of translation, language and power. The discussions on notions of ownership among the experts give a good example of how hegemony works through language: Although indigenous and tribal peoples’ representatives expressed several times the incompatibility of the notion of ownership as used in national legal systems with their notion of trusteeship in relation to land (and the significance of this special relation with their lands is stated at various occasions), the group of experts emphatically stated that the concept of ownership must be integrated in a revised convention in order to provide effective protection of indigenous and tribal peoples’ land rights (ILO.1988, 1988, p.111). This is a good example of how the integration of different forms of knowing – in this case on territoriality – is not happening outside of the dominant power relations: in order to protect indigenous peoples’ right to a different territoriality, this territoriality needed to be formulated in a language and in reference to notions of property that contradicted what indigenous representatives described as indigenous peoples’ relations to land.

8 | It is interesting to take notice of the suggested absence of power in the context of the ILO Meeting of Experts. The tenor of any official reference to the older Convention and its stains of colonialism comes across as ‘in those days, states reigned over indigenous peoples, today they have representations and new concepts developed in the international community – that is why they deserve more rights today’. There is no acknowledgement of historic guilt to be found. International law in this context is framed as merely reflecting the status quo while the inherent fight for developing and changing definitions in this context is stripped of any notion of power, hegemony or colonialism.

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Another recurrent topic is to be found on the level of legitimization of claims: The ILO experts recognized the legitimacy of indigenous claims to the right of selfdetermination parallel to the legitimacy of member state’s claims to national identity and a notion of sovereignty that includes territorial as well as decision-making sovereignty in questions that might affect the whole population of the country in question. In the 1950s, the doctrine of self-determination in international law had been primarily applied to independent states (Rodrígues-Piñero, Luis, 2005, p.140). David Szablowski describes the development of national and sub-national indigenous movements claiming this right to self-determination for their peoples as the quest for [. . . ] a new constitutional order in which states recognize their overarching obligations to indigenous peoples. FPIC is an important part of this order. It expresses part of what is meant by indigenous self-determination: the recognition by states and other actors of an effective sphere of indigenous governance that must be engaged meaningfully. (Szablowski, 2011, pp.114-115)

“Free, prior and informed consent” as the condition for the fulfillment of a selfdetermined development is being implemented in the form of two “regimes”, Szablowski states. “Consultation regimes” aim at consultations as a means of exchanging information on a proposed project but keep the power to decide on the deliberative force of these consultations outside of the control of the consulted party (Szablowski, 2011, p.116). “Consent regimes” instead, Szablowski continues, would engage in a form of "sharing or transfer of authority" (Szablowski, 2011, pp.116-117). As in the case of the revision of Convention 107 becomes vividly evident, many states perceive the principle of FPIC as potentially dangerous for its potential to limit state sovereignty and control over territories and natural resources, respectively the potential power to veto for indigenous groups in cases of conflicts on development projects that serve the national interest. An insoluble controversy remained even among the ILO experts as to “whether indigenous and tribal groups would have the right to full control of the development process as it affected them” (ILO.1988, 1988, p.110) and what would be the relation to the state’s power of decision (ILO.1988, 1988, p.113). Because of the delicacy of the issue, the right to self-determination remained at the margins of the experts’ proposals – they recommended a revision that would be limited to social, economic and cultural considerations (ILO.1988, 1988, p.118). Following the experts’recommendation, the Governing Body decided to place the item "Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107)" on the agenda of the 75th International Labour Conference in 1988. It also defined that this revision shall have the form of a double-discussion procedure which is defined in Article 34 of the Standing Orders of the ILO Conference (“Gen-

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eral Provisions”) as the standard procedure (1919. Constitution of the International Labour Organization). The double-discussion procedure was followed step by step in the process of revising Convention 107. As implied in its name, this procedure involves various discussions and two drafting rounds. First, the recommendations and discussion of the experts were re-formulated in a first draft – the Report VI (1) – including a questionnaire to be filled out by the governments 12 months before the conference in June 1988. The questionnaire distributed by the ILO Office9 covered the points introduced by the experts as presented above and asked generally for suggestions for revision of particular provisions from the perspective of the member countries. As answers to the questionnaire, the Office received replies from 53 states10 . As to the topic of the replacement of the term “populations” with “peoples”, a vast majority of answers were actually affirmative. Negative replies stated that the word “peoples” would raise the issue of political self-determination that would not belong in an ILO Convention. Its foggy definition is stated as another argument against or at least not in favour of the use of the term “indigenous peoples”. Nevertheless, the Office perceived the sum of replies as positive (ILO.1988b, 1988, pp.13-14). Regarding the crucial question of consultations, most countries supported the inclusion of a requirement to realize consultations. Some governments called for a clear obligation, while others referred to the necessary development of general liberties and political participation of indigenous peoples. Answers of indigenous groups and NGOs that were included in some of the government’s answers stated that the principle of consultation was in itself insufficient without a focus on the right to self-determination

9 | The ILO Office, officially the center of administration and management of the organization that is meant to implement the objectives and policies decided by the Governing Body, had an interesting role in the revision process. The Office summarized and processed the extensive discussions in ever new reports, at first glance being a mere reporter, but at a closer look steering many processes through the silent “power of reporting” – by introducing new concepts in working documents, or suggesting procedures, for instance. 10 | A quite large group of states replied that the revision was of no concern to them since there were no indigenous or tribal populations on their territories (Austria, Bahrain, Burundi, GDR, Federal Republic of Germany, Guinea-Bissau, Hungary, Ireland, Mozambique, Portugal, Yugoslavia), which the Office did not in all cases consider congruent with their information (ILO.1988b, 1988, p.3). The government of Chile considered the revision unnecessary since there would be no difference between indigenous and non-indigenous peoples (they even saw danger of discrimination), while the government of India felt that the ILO Conference should first decide upon the necessity of the revision (ILO.1988b, 1988, p.4).

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and consent (ILO.1988b, 1988, p.30). As in the Meeting of Experts, the issue of land rights is one extensively commented on by the member countries: here, too, the question of territory11 is raised along with the different meanings of “possession” and “use”, as well as “ownership” – collective and individual (ILO.1988b, 1988, p.48). Several countries referred to the necessity of a general principle of flexibility as when asked which difficulties in the practical application of the instruments outlined in the questionnaire could be expected. The Brazilian government communicated the answers of the National Industry Confederation (CNI) in addition, but separately from its own comments. The comment of the Brazilian CNI states that the adaption of ILO Conventions to national conditions should be delegated to each member state (ILO.1988b, 1988, p.98) while other countries argue that some populations should not be addressed by the Convention or that appropriate forums should address mismatches between national constitutions and the Convention’s content (ILO.1988b, 1988, p.99). First round of negotiations in 1988 At the beginning of the 75th International Labour Conference, on 2 June 1988, the responsible Selection Committee set up a “Committee on the Revision of the Convention N◦ 107”, responsible for preparing a draft that would be discussed later in the Conference12 . The Committee on the Revision of the Convention N◦ 107 initially comprised 73 members – 40 Government members, 10 Employers’ members and 23 Workers’ members (ILC.1988b, 1988, 5/1)13 . Apart from these member groups, representatives of several international organizations (UN, Interamerican Institute of the

11 | Crucial for this question is whether to include resources beyond land in the realm considered to be under control of the addressed groups. To this question, affirmative and negative replies almost equal (ILO.1988b, 1988, p.50). 12 | The Committees established during the Conferences work outside of the Conference plenary in order to prepare drafts and agreements on complex topics. Normally, the Committee’s report and conclusions are only being adopted afterwards in the plenary (cf. (Boockmann, 2000, p.16). 13 | This apparent disequilibrium has been rebalanced by allotting a different amount of votes to each group: in the end, all three groups had 920 votes. The constellation of the Committee was slightly changed as the Committee reports later (ILC.1988b, 1988).

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Organization of the American States) and international non-governmental organizations14 were present in the meetings, giving opinions on the discussions. In the following weeks, the Revision Committee met 17 times (“held sittings” in the ILO language) and discussed the Office reports. This is where the real negotiations on the revision took place. The main part of these meetings, then, was the examination of the proposed conclusions that were presented as the last part in the above mentioned Office Report that summarized the debates of the ILO experts together with the reprocessed answers of the ILO members to the questionnaire (ILO.1988b, 1988). Point by point, members of the Committee presented their amendments – proposals that contained demands for the reformulation or deletion of parts of the proposed text or requests to include new passages. Proposed amendments have to follow a certain form in order to be considered by the Committee. They are prepared in pre-sittings or in meetings held outside of the Committee. The chairman organizes the order in which the amendments (and subamendments) to every point are debated. After debating a point in the draft text, it can be adopted (with or without amendments or changes) – either by consensus or by majority15 . Adoption includes voting, with the special form of record voting, where the vote of each member is registered by name. Members can request a record vote as well as register their reservations on majority decisions (or on consensus decisions from which they abstained to vote). In the case that no agreement can be achieved, the point can be passed on to a committee-within-the-Committee, called the Working Party. The Working Party will meet in an even smaller circle, trying to find a compromise and then report back to the Committee, or to the conference plenary, which seems like the last option since it shows the Committee’s inability to reach a solution. In discussing the contents of the revision of Convention 107, this whole range of procedural options was exhausted by the Revision Committee.

14 | Mentioned throughout the protocol are the World Council of Indigenous Peoples, the Inuit Circumpolar Conference, the Four Directions Council, the Indigenous World Organization, the Nordic Same Council and the Indian Council of South America. 15 | In all texts about and by the International Labour Organization, decisions on a consensus basis are described as the preferable, stronger decisions. This issue reappears of course in the text of Convention 169, where consultations shall aim at the consent of the consulted groups, and even the ILO expert committee CEACR takes its decisions on a consensus base – even if the experts disagree with each other. I think the ideological value of consent decisions in the context presented in this work would be a very interesting issue to study further (Boockmann, 2000; Reinalda, 2004).

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In the way described above, the Committee passed 72 points. Although I will not repeat them here, I want to delineate the most controversial points and the way they were discussed by the Committee. To start with, doubts were again expressed about the competence of the International Labour Organisation to deal with the questions that were being addressed in the revision of Convention 107. Especially about questions concerning the right to self-determination and the degree of control to be exercised in decision-making processes, several governments expressed the view that this was the kind of standard-setting activity that would better fit the mandate of the United Nations and that the ILO should stick to giving more technical definitions on issues connected to its realm – the working world (ILC.1988, 1988, 32/13). As I have shown above, this doubt has accompanied the very constitution of the issue of indigenous peoples within the ILO context since its inception. As in the 1950s, the assertion of the urgency and complexity of the topic serve as legitimizations for the search for ILO standards beyond labor issues. Another point of discussion in the Revision Committee of 1988 was how international standards could or should relate to national legal systems. Is it the representatives of the national governments among themselves, who in comparing their legal frameworks find the minimum common base and define this as international standard, or is it the international s (and with this, non-state actors as well) coming up with new definitions and standards? And does it then befit the national states to follow in adapting their national frameworks? The fact that international s in turn gain their governing power through legitimization by nation states further complicates the problem. This is a known problem of the area of international relations. Hopkins states in his analysis of “The Inter-American System and the Rights of Indigenous Peoples” (2009) that classical international law was developed as a law of nations, and groups such as indigenous peoples initially did not appear as actors in this realm. It is human rights law that discovered non-state actors and their rights (Hopkins, 2009, pp.140-143). (Rodrígues-Piñero, Luis, 2005) states on this problem that the indigenous rights discourse became very recently part of the standard discussion of human rights from an international legal perspective (Rodrígues-Piñero, Luis, 2005, pp.4-5). The discussion of the borders of legitimate intervention of international standards or organizations in the affairs of national sovereignty is old and persistent. This issue is taken up in Chapter 9.2, in which I discuss how the existence and interaction of different legal systems, especially on the international and the national level, interacted in the negotiations for a legitimate interpretation of prior consultation in Brazil. While the above-mentioned issues touched on the outer sovereignty of state, the debates in the Revision Committee of 1988 also called into question the state’s inner sovereign decision-making within its territory. As one of the main points in revising

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Convention 107, we can consider the attempt to reformulate the balance between the sovereignty of national decision-taking and the commitment (or the obligation) of the governments to seek the consent of indigenous and tribal peoples affected by these very decisions. In different words, the question was how to define the degree of their participation. Whether it should be a governmental commitment or obligation to seek the consent of indigenous peoples was exactly the point being discussed in 1988, and was again centre of heated debates in the regulation process in Brazil. This subject is dealt with in a strongly revised article in Convention 107 that initially dealt with the collaboration that governments should seek with the populations and had been reformulated in the ILO Office draft to suggest that governments should seek the consent of the concerned people whenever legal or administrative measures could affect them. This caused heated debates on whether the word “consent” should stay in this formulation. Governments of almost all countries and the Employers’ group opposed the wording by pointing out the possibility of this implying a “right to veto to indigenous populations over government action”, as the Employers’ group formulated it (ILC.1988, 1988, 32/10). The Workers’ group by contrast supported the formulation with the alleged goal to give indigenous people “a real influence on decision-making” (ILC.1988, 1988, 32/10). When after some discussion the US government submitted an amendment substituting “seeking the consent” by “full consultation” and gained wide support (among others, by the Brazilian delegation) for this, the proposal was accepted. Nevertheless, the point stayed a tricky affair during the whole revision process. The next difficult question was the naming of the group of right holders: Whether the addressed groups in the revised Convention were to be considered as “peoples” or as mere “populations” turned out to be no less disputed due to the vague body of rights connected to the concept “peoples” in international rights discussions. The term “peoples” had been introduced by the ILO Office in the Report text after 26 of the received 32 replies to that proposal in the questionnaire had been affirmative (ILO.1988b, 1988, p.12). NGOs representing indigenous groups pointed out that this reflected their own perspective on themselves and the Workers’ group, supporting the use of “peoples” as well, highlighted the fact that 300 million people worldwide could not simply be called “population groups” (ILO.1988b, 1988, p.2). Most governments and the Employers’ group strongly opposed the inclusion of the term “peoples” though. They claimed that its use in the international context was unclear and could imply rights that went beyond the scope of the Convention, which could inhibit future ratifications (ILO.1988b, 1988, p.3). At the very beginning of the discussion, the government of Canada came up with the deal: they proposed to use the term “peoples” and add an amendment to explain that this use would not imply the

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right to self-determination as that term is understood in international law (ILC.1988, 1988, 32/5)16 . Although some governments and the Employers’ group now could agree, several governments (among them the Brazilian) continued to state serious reservations and no consensus was finally reached – the Committee decided to use the double-term “peoples/populations” in the revision proposal and to hold further deliberations next year (ILC.1988, 1988, 32/6). I want to comment shortly on the different discourses and argumentative strategies that were used during the negotiations in the Committee presented above. One strong argument in these debates was the threat of the new Convention suffering “poor performance” (low level of ratifications); this was mainly used by governments in order to block radical conceptual changes and, of course, in order to prevent conflicts on a national level, for instance with national or supreme courts. Therefore, flexibility in implementation, and with this, the most general wording possible was in constant friction with the idea of international standard-setting (see (ILC.1988, 1988, 32/9), for example). With regard to the “performance” of the represented governments, it should be noted that among the most active and articulated states17 were

16 | Although Canada’s compromise became the final offer on the negotiation table, several interesting attempts to resolve this conflict beforehand were undertaken: Due to the Record of Proceedings, the next step was the introduction of a not further specified “Legal Adviser” who was called upon to explain the possible implications of the term “peoples”. He explained that the term “people” had no legal definition but carried political implications (as named in the UN Charter, for example) and that the use of the term would not have any implications in respect to the right to self-determination of peoples under foreign colonial dominations, since the Convention was pointing to peoples within independent states. He concluded that the notion was not yet fully established within the UN framework and its definition beyond the competence and control of the ILO (ILC.1988, 1988, 32/6). All the same, continuing reservations on the wording “peoples” were expressed by government members. The issue then was referred to a Working Party with four members of each group (workers, governments & employers) (ILC.1988, 1988, 32/6). The Working Party agreed on the use of “peoples” together with a remark neglecting the recognition of the right to self-determination as understood in international law for these groups (ILC.1988, 1988, 32/6). 17 | This is a very rough evaluation. It is based on the mentioning of the country’s contribution in the Record of Proceedings (ILC.1988, 1988, 32/6) and of course does not include the important “floor talks” and other kinds of informal involvement. It is also restricted to government representatives since workers’ and employers’ representatives – although also representing interests connected to the situation in their countries – are only registered in relation to their membership. The above stated tendency still represents a trend, in my opinion.

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predominantly those with significant (and politically active) indigenous populations: Canada, the USA, New Zealand and Australia. None of them has ratified Convention 107 or the revised Convention (169) until today18 . The least active countries were representatives of Middle Eastern states: Iraq, Jordan, Kuwait, Libya, and Qatar (ibid.). Brazil figures in the middle of this “field of action”, and the Brazilian government’s positions were mostly in line with the representatives of the most active countries mentioned above: Representatives of the Brazilian government expressed reservations about the use of “peoples” (ILC.1988, 1988, 32/6); do not want to stress “self-determination” as a fundamental criterion for determining the groups to which the provisions of the Convention should apply (ILC.1988, 1988, 32/7); oppose the inclusion of “consent” at various occasions (ILC.1988, 1988, 32/7,32/10); and it emphasize the need to have a convention which would be widely ratified (ILC.1988, 1988, 32/11). Still, the Brazilian government stresses the high significance of existing rights of indigenous populations in Brazil to a “portion of the Brazilian territory” (ILC.1988, 1988, 32/16). The Report of the Committee to the Conference was finished and signed by the chairmen of the Committee on 18th of June of 1988 and presented three days later to the plenary of the Conference. As the two most contested issues, the question of “peoples/populations” and the problem of land rights were presented and the reporter and chairman of the Revision Committee proposed further discussion of the topic at the next session of the ILO Conference in 1989. A resolution to put the issue on the agenda of the 76th ILC was adopted by the plenary. Second round of negotiations in 1989 The next (76th ) International labour Conference was held from 7 to 28 June 1989. On its second day, the Committee on Convention 107 was set up again. Almost the same representatives from the last negotiations were elected as officers. Although a limited number of interventions of international non-governmental s were accepted as a new procedure this time, such limited access did not seem to satisfy the present

18 | Generally, there are not many sources about the reasons why countries have or have not ratified the Convention. In the case of Australia, representatives of indigenous peoples themselves were initially opposing ratification due to the process of development of the Convention as well as its alleged failure to affirm the right to self-determination (Nunkuwarrin Yunti, 2015). About Canada and the USA, there is at least one source stating that the inability of the international community to enforce the instruments was one alleged reason for these country’s governments not to ratify Convention 169 (Hanson, 2009). Still, it is noteworthy that exactly these four countries voted against the UN Declaration of the Right of Indigenous Peoples in 2007.

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indigenous spokespersons. The World Council of Indigenous Peoples is cited in the record as believing that [. . . ] the limitations which were imposed by the terms of reference of the ILO were clearly reflected in the process of setting-standards affecting indigenous peoples without allowing them to participate fully. (ILC.1989, 1989, 25/5)

While in the previous year discussions centred on the fundamental clashes of interests, the negotiations in 1989 were much more about the details of formulating the provisions. Of course, the unresolved issues of last year’s negotiations emerged with a great deal of influence, and after a short summary on the state of affairs of the revision process, the groups started to focus in their general statements on exactly these contested points of the Convention: Was it “peoples” giving “consent” to measures affecting their “territories” – or “populations” being “consulted” on the use of their “lands”? Following the points as they appeared in the proposed Convention text, the first question to be dealt with was the “peoples/populations”-controversy since the problem already appears in the first paragraph that regulates to whom the provisions of the future Convention will apply. The ILO Office had used the term “peoples” in the proposed text, notwithstanding the agreement of 1988 to use the double-phrasing “peoples/populations” until reaching an agreement, as the Employers’ group stated “surprised” (ILC.1989, 1989, 25/4). 19 amendments had been submitted to revise this first article and after the introduction and discussion of each one of them, consultations were held among the groups, including outside meetings (ILC.1989, 1989, 25/7). In their statements on this problem, governments express their concerns: India questioned the universal applicability of the term “indigenous peoples”; Canada pointed to the danger of re-opening already settled conflicts, and Denmark hinted to the linguistic character of the problem to formulate land rights – all these dangers are seen as intrinsically linked to the problem of naming its inhabitants “peoples” as being too similar to “sovereign nations” (ILC.1989, 1989, 25/3). Indigenous organizations such as the Network of Indigenous Organizations of the Amazon Basin (Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica – COICA) – objected to this fear explaining that indigenous and tribal peoples “had never expressed the wish to create a state within a state” (ILC.1989, 1989, 25/6). International NGOs collectively doubted the legal grounds for governments’ opposition to use of the term “peoples” and recalled the support of many governments for the term in their comments of the first Office draft. NGO speakers strongly insisted on the use of the term “peoples” without any qualifications (ILC.1989, 1989, 25/6). In search

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of a solution, the Chairman offered three wording options: “populations”, “peoples”, or an amended use of “peoples” that would include a new paragraph stating the specific meaning of the term in the Convention (ILC.1989, 1989, 25/7). The latter was accepted as a solution, the amendment to the term “peoples” in the new Convention states: “The use of the term ‘peoples’ in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law” (ILC.1989, 1989, 25/26)19 . The next contested issue among the members of the Revision Committee of 1989 was the Article 6 that deals with consultation processes. A speaker from the World Council of Indigenous Peoples made an opening statement noting that in his point of view, this article was not about transferring more control to indigenous and tribal peoples, but was addressing a new relationship between these peoples and their states, one built on the mutual acceptance of being equal. Through this relationship, states and people could step back from the old model of oppressor and oppressed that had dehumanized both sides. He strongly supported the sovereign power of veto for indigenous and tribal peoples to programs affecting them (ILC.1989, 1989, 25/10). This attempt to lift up the apparent irreconcilable differences mainly between the employers’ and governments’ groups on the one hand and the observers’ and workers’ group on the other hand was not decidedly taken up in the discussion. The negotiations stayed on the bargaining level of “gaining” and “losing” as we will see in the following paragraph. The ILO Office proposal on this matter had integrated quite some of the reservations expressed by the Governments’ and Employers’ group in 1988: The notion of “seeking consent” in the first paragraph of the Article 6 had been replaced by the obligation to “consult” in “good faith” and “with the objective of achieving consent”. Further, consultation processes had been defined as applicable with regard to measures affecting indigenous and tribal peoples “directly”. This definitely represented lowering the threshold for states to accept these provisions. A governmental member of Norway then considered the Office draft as adequately representing the discussions of the past year while the Workers’ group tried reversing this trend back to the use of the wording “obtain the consent of”. An amendment brought forward with this intention was not adopted (ILC.1989, 1989, 25/11). Other governments tried to soften even more the provisions laid down. Brazil for example submitted an amendment to

19 | This does not at all mean that a satisfying compromise was found on the topic; it rather means that the opponents of the wording “joined in the spirit of the consensus” as the Brazilian delegation formulated it (ILC.1989, 1989, 25/8). Argentina and Venezuela insisted on registering their reservations.

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replace the notion of “consult” with the expression “to hear” as it was used in the new national Constitution and thus, so went the argument, could facilitate acceptance of the Convention (ILC.1989, 1989, 25/11). This amendment was also withdrawn after objections from the Workers’ group. The following discussion between the tripartite members of the Committee continued to debate the meanings of “consult” as opposed to “seek or obtain consent” as well as negotiated alternative phrasings such as “agreement.” A government representative of Argentina summed up the governments’ concerns well in a statement clarifying that [. . . ] the draft text submitted by the Office would give indigenous and tribal peoples opportunities to veto governments’ decisions. States would have to obtain the consent of these peoples before taking decisions; such a procedure was not feasible (ILC.1989, 1989, 25/12).

The General Secretary then explained the Office’s intention in using the word “consent” in the draft text as the attempt to express an objective for the consultations and not in order to define the necessary result of these meetings (ILC.1989, 1989, 15/12). Finally, the concerned terms stayed the way the Office had proposed them. Thus, the mixed notion of a consultation aiming at the consent of the affected indigenous and tribal peoples without obliging states to obtain it continued as a basic definition in the text of the new Convention. This ambiguity opened the floor for discussions on the weight of the different parties of a negotiation in Brazil. In the current debates on the regulation of Article 6 in Brazil, the debates on translating this complex wording into national positive law focus exactly on this problem. “Part II” of the old and new Convention’s text deals with the question of land. To this part, the Committee had to deal with the unusually high amount of 101 amendments and decided to refer it entirely to a Working Party20 . After this step, four international NGOs were heard by the Committee. These statements summed up once more the arguments for using the term “territories” as well as offered some general perspectives on the debate on land rights. The NGO Nordic Sami Council stated that the term “territories” represented the indigenous and tribal peoples’ own concept of their collective rights and the NGO Indigenous Peoples’ Rights expressed the opinion that the question of land rights was a “question of restoring rights previously denied, not of granting or creating new rights” (ILC.1989, 1989, 25/16). Some speakers ex-

20 | The Working Party consisted of five government representatives (Argentina, Australia, Canada, India, Norway), five Employers’ members and five Workers’ members (ILC.1989, 1989, 25/16).

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pressed worries about the revision process actually having the aim of preserving the governments’ power over indigenous and tribal peoples as well as their territories (ILC.1989, 1989, 25/16). After these speeches, the Working Party presented its work to the Committee. The chairman of the Working Party delineated the main points of discussion starting with the governments’ expressed need to arrive at a widely applicable text without strong legal constraints to ratification. The Employers’ group had expressed the same point of view while the workers’ group had stated the importance of not diminishing already existing land rights through the revision process (ILC.1989, 1989, 25/16). This of course, applied especially to the use of the terms “land” and “territories;” the deletion of the latter had been subject to several of the amendments considered by the Working Party (ILC.1989, 1989, 25/16). In the context of Article 13 that dealt with the recognition of cultural and spiritual values of indigenous and tribal peoples, the double-phrasing “lands or territories, or both as applicable” had received wide acceptance within the Working Party. In the following articles dealing with the ownership of land and/or resources though, this consensus had not been possible – governments tried to introduce additive formulations while the Workers’ group members were fighting against the dilution of the force of the provisions. These items were referred back to the Committee. The chairman then proposed the adoption of a package: the Office’s draft text, by the majority using the expression “lands and territories”, apart from the article dealing with actual ownership, in which the Office restrained the wording to “lands”, as well as in the cases of transmission of land rights, intrusion and national agrarian programmes. This package was adopted by consensus with the countries of Brazil21 , USA, Ecuador, India, Venezuela, Canada, Portugal, Peru, Japan and Argentina registering their reservations, most of them because of the phrase “right of ownership and possession” over land in Article 14 (ILC.1989, 1989, 25/21). After having dealt with the remaining Articles of the draft text, the governments of Denmark, Finland, Norway and Sweden submitted a “resolution on ILO action concerning indigenous and tribal peoples” that sought increased ILO activity on the matters of the Convention and was adopted unanimously.

21 | Having stated before that “the solution which has been found with regard to ownership in Article 14 would create insurmountable problems for Brazil and would practically remove the possibility of his country ratifying the Convention” ILC (ILC.1989, 1989, 25/21), Brazil – exemplary for several of the governments named above – nevertheless joined the consensus of adopting exactly the text it referred to as an “insurmountable” obstacle for acceptance.

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On June 26 1989, the Committee Report and the proposed resolution were pre-sented to the Conference plenary by the Committee’s reporter Mr. Helms, govern-ment advisor of Denmark. In his speech, he stresses the extra-ordinary scope of the proposed Convention in trying to address the “major problems faced by indigenous and tribal peoples, without breaking these problems up into small segments to suit the fields of competence of the s of the United Nations system” (ILC.1989, 1989, 31/1). Mr. Helms stresses the issue of language, which had to be balanced to fit the ambitions of indigenous and tribal peoples on the one hand, and produce a “realis-tic text” that would be widely ratifiable on the other hand (ILC.1989, 1989, 31/1). He presents the three most difficult issues of the discussions (the use of “peoples”, “consent” and “territories”) in relation with the way the Committee adopted a position towards them: the use of the term “peoples” was accepted without voting, the requirement to consult with the objective of achieving consent was adopted by vote, while the package of land rights was again adopted by consensus22. In the end of the reporter’s overall positive presentation, he highlights the importance of the participation of several organizations representing indigenous and tribal peoples (ILC.1989, 1989, 31/1). This point was underlined by several speakers of the tripartite members in the following general statements. But when it came to the NGOs remarking on the revision process, this positive image became severely cracked. To start with, the NGO speakers criticized the tripartite ILO structure as outdated: The principle of social partnership is still basically sound, but the nature of the relevant social partners has been changing, and it must change. The revision of the ILO Convention No. 107 involves far more than labour standards. It involves, and it must involve, redefining and revitalizing the concept of social partnership by bringing indigenous and tribal peoples into co-operation and partnership with governments, workers and employers at both the national and international level. [. . . ] So you must understand that indigenous peoples are discriminated against as whole societies, not just as workers, or any other category within the current tripartite structure. (Representative of Four Directions Council, in (ILC.1989, 1989, 31/8)

The conflict of the tripartite structure of the ILO with the dualistic conceptualization of indigenous identity23 became obvious at various occasions in this plenary meeting,

22 | This presentation again hints to the overall importance of “consensus” as a decision-making format within the ILO. 23 | Different from the tripartite structure that is built on a certain role in employment relations (government, worker or employer), the structure of indigenous representation functions via two

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for example when a representative of the Workers’ group identified herself in front of the plenary as “indigenous person representing approximately half a million people in Canada” (ILC.1989, 1989, 31/9) 24 . The representative then continued stating that “Being a Workers’ adviser was a small way in which indigenous peoples could have input in this process” (ILC.1989, 1989, 31/9) before stating that while the ILO called for all kinds of experts, the indigenous peoples were not called explicitly upon as experts on the matter of themselves during the revision process (ILC.1989, 1989, 31/9). The procedural questioning went so far to doubt the legitimacy of the whole decision-making within this framework on issues connected to indigenous and tribal peoples given the limited possibilities for participation of the concerned groups. Mr. Crate, representing the International Organization of Indigenous Resource Development, stated: We did not come here to be passive observers while diplomats, labour leaders and executives decided what to do with us. We did not come here to give your deliberations our tacit approval by our presence. Finally, we did not come here so that the International Labour Organisation could tell the world it had consulted indigenous peoples during the revision of Convention No. 107. Because in [sic!] point of fact we have not been consulted. (ILC.1989, 1989, 31/6)

Real negotiations, another speaker of the indigenous groups complained, had been taking place behind closed doors (ILC.1989, 1989, 31/6). The present NGOs, without exception speaking as representatives of the concerned “indigenous and tribal peoples”, also harshly criticized the oppression of the leading role of international law in the elaboration of norms and standards through the continued declarations of states that domestic law are sacrosanct. Specific notion was given to the argument that much national legislation actually legalizes the abuse of human rights (ILC.1989, 1989, 31/6). “If existing national law establishes the basis for your standards, why do you come here?” asked Mr. Crate from the International Organisation of Indigenous Resource Development (ILC.1989, 1989, 31/6) the conference plenary. He also challenged the way in which issues such as territoriality and consent had been discussed in this meeting by recalling the contractual bonds that states once made with indigenous peoples as equal partners while now rejecting the possibility of these people being sovereign: possible roles: Being indigenous or not. These two structures are difficult to combine as we see in the negotiation process. 24 | In another moment, an Employers’ advisor of the United States said he participated also as a member of the Lakota people (ILC.1989, 1989, 31/11).

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When and how did we cease to be sovereign? When did our territories become yours? By what process did you gain ownership and possession other than by your own proclamation? (ILC.1989, 1989, 31/6)

More and more, the whole institutional approach of the ILO towards the issue of indigenous and tribal peoples’ rights was questioned, reaching its climax by describing the revision process as controlled by a “colonialist and despotic spirit” (ILC.1989, 1989, 31/7), especially fostered by the governments’ and employers’ delegates, who, according to the representative of the Indian Council of South America, behaved like a “representative of the old empires which despoiled the Americas, denying us the right to exist and express our identity as peoples” (ILC.1989, 1989, 31/8)25. A Worker’s group member from Canada (who had also previously identified herself as indigenous representative, see paragraph above) described that decisions even as a member of the formal Committee groups boiled down to choosing between the lesser of two evils: a standard that is not high enough or no new standard at all which ends up with existing, even lower standards (ILC.1989, 1989, 31/10). None of these speakers, however, urged the plenary openly to reject the Convention, and after some more presentations lining out the governments’ positions towards the resulting text, both the Resolution and the text of the revised Convention – article by article – were adopted. The final vote on the “Convention Concerning Indigenous and Tribal Peoples in Independent Countries” has been recorded and so we can com-prehend its result: The revised text received 238 votes in favour, 39 abstentions and one vote against, coming from the Employers’ representatives of the Netherlands26. The governments that explained their abstentions named different reasons for doing so: While Bangladesh still saw the older Convention 107 as the Convention

25 | Other governments‘ representatives, especially those of Botswana, Colombia, Portugal and Ecuador are being paid tribute to for their commitment and determination to establish appropriate international norms, as well as the Nordic countries for their “spirit of co-operation” (ILC.1989, 1989, 31/7). 26 | The Council of Netherlands Employers’ Federations (RCO) already made a strict comment against the use of the term “peoples” in the first Office questionnaire: “The ILO should not try to be modernistic. An ILO Convention contains a legal text. The word "peoples", which has a political connotation, does not belong in an ILO Convention” (ILO.1988b, 1988, p.13). In contrast the other groups that abstained from voting, the RCO did not explain this vote any further.

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that better maintained the “delicate balance between national interests and international responsibility” (ILC.1989, 1989, 31/11), Argentina and Peru point to clear and pos-sible interpretations of the used terms that would violate their constitutions. The permanent representative of Brazil in Geneva also gave a longer explanation of the abstention vote of the whole Brazilian delegation. He complained that many provi-sions of the new Convention had been adopted as a package deal and that the majority of the articles had been accepted without discussion or amendments. Therefore, he continued, the text would be technically imperfect in many regards and conceptually inadequate. He and his delegation regarded the abstention vote as the best way to reflect “difficulties and problems which the text presents to us and which are mainly of constitutional nature” (ILC.1989, 1989, 31/12).

4.3. T HE ILO AND UNTIL 2012

PARTICIPATORY RIGHTS IN

B RAZIL

By June 2015, ILO Convention 169 has been ratified by 22 countries, 15 of which in Latin America (NORMLEX). The contained definition of “indigenous peoples” as well as “territories” and “self-determination” are among the reasons most frequently given by states for non-ratification. In some cases, indigenous organizations themselves opposed the national ratification because of the lack of participation of indigenous groups in the establishment of the Convention. Aborigines in Australia for example mobilized against the adherence of Australia to Convention 169 when the government considered ratification in the beginning of the 1990s (Nunkuwarrin Yunti, 2015). In general, the critique of indigenous movements worldwide addressed the following topics: the non-recognition of the full right to self-determination, blurry regulation of consultations as to their deliberative power and legitimate representation of the concerned actors, no absolute ban of resettlement of indigenous peoples and the implied limitation of the control of natural resources for indigenous peoples on their territories (Keppi, p.7). Despite these developments contrary to the acceptance of ILO Convention 169, it has had a significant impact on defining indigenous rights on the international level, as well as in many national states. In some regard, the recognition of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 can be considered an indirect approval of many of the principles of the Convention which were integrated in the declaration’s text. Nevertheless, different from the Declaration which has a political weight, the Convention’s text is legally binding. Boanada Fuchs sees in this different enforcing power the reason why in the Convention, only “con-

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sultation” is secured and set, while in the UN Declaration “consent” is explicitly used (Boanada Fuchs, 2013, p.18). In spite of this difference, Canada, USA, Australia and New Zealand opposed the UN Declaration and have not ratified Convention 169 until present. Although this could be interpreted as a “weak performance” and a deficient implementation of Convention 169 (Yrigoyen Fajardo, 2009, p.21), there are voices that hint at its many usages as an authoritative source of rights mentioned in court decisions among others. Christian Courtis explored the implementation of ILO Convention 169 in Latin America (2009) and states that many Latin American countries that changed their constitutions between 1980 and 2000 incorporated indigenous rights in their Magna Charta27 . Courtis sees a strengthening of the Inter-American Human Rights System by the dissemination of the rights set in the Conventions 169 and the related recognition of the rights of indigenous peoples in the constitutions of the region. He sees many of the new constitutions in Latin America inspired by the international human rights standards as set, among others, in Convention 169: Part of the Convention’s influence is reflected in the aspirational character of the constitutional and legal reforms related to indigenous peoples in the region – in the sense that many of the concepts articulated therein, such as “indigenous peoples and communities,” “self-identification,” “traditional territories,” “autonomy,” “consultation,” and “uses and customs,” amongst others – are incorporated in one way or another in the constitutions and legal norms of various countries in the region. (Barié, 2003) cited in (Courtis, 2009, p.56)

Depending on the date of the reforms, the new Latin American constitutions of the last 30 years integrated different phases of the international discussion on indigenous peoples’ rights. With regard to the constitutional reforms in Latin America in the 1980s-2000, Raquel Fajardo identifies three phases: In the 1980s, when Guatemala (1985) and Nicaragua (1987) renewed their constitutions, the right to cultural identity was the main novelty being codified, while in the second wave of constitutional reforms in the 1990s, the right to cultural identity was combined with a multiethnic conceptualization of the concerned nations, and legal pluralism was fixed in many of the Constitutions originating from this decade: Colombia (1991), Mexico (1992), Paraguay (1992), Argentina (1992), Ecuador (1996) and Venezuela (1999). Brazil’s Federal Constitution of 1988, Farjardo sees still more rooted in the first group, while

27 | Hereby, it is interesting to note the difference between monist traditions that integrate ratified human rights treaties in the domestic law and countries like e.g. Bolivia, Colombia and Peru that integrate human rights norms in their constitutional block (Courtis, 2009, pp.54-56).

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first discussions emanating from the reform of Convention 107 and the establishment of Convention 169 are reflected (Yrigoyen Fajardo, 2009, pp. 26-29). In a last wave, of the 00er years, Bolivia (2007-2008) and Ecuador (2008) formulated new constitutions with the attempt of widening the concepts of pluriethnic states and legal pluralism based on intercultural dialogue. This of course is to been seen in the context of the structural economic reforms of the 1990s, often going along with territorial dispossession of indigenous groups and the resulting protests of the social movements. In these latest Constitutions, Fajardo sees the crisis of the neo-liberal economic adjustments materialized, towards which especially indigenous groups claimed their right to participation and not only to difference (Yrigoyen Fajardo, 2009, pp. 26-29). Much of these developments also influenced participatory rights, especially for indigenous peoples, in Brazil. In her survey article on participation in Brazil, (Cornwall, 2008) affirms that the Federal Constitution of 1988 formulated extensive participatory rights together with a detailed framework for the pursuit of social justice (Cornwall, 2008, p.35). After the end of two decades of military dictatorship, Brazil’s new participatory institutions have given rise to international attention, Cornwall states (Cornwall, 2008, p.3). Nevertheless, she characterizes the situation today as ambiguous: Brazil combines a fully functioning liberal representative democracy with a unique depth and breadth of opportunities for citizen engagement in governance, while simultaneously maintaining extreme inequalities of power, wellbeing and income. (Cornwall, 2008, p.7)

Two landmarks, Cornwall states, have shaped experiences with participation in Brazil. On the one hand, the “Citizen Constitution” of 1988 contains a detailed framework for the pursuit of rights and social justice, especially with regard to participatory democracy in the executive branch. This focus has given rise to important participatory spaces such as councils, public hearings (audiências públicas), and participatory conferences. On the other hand, Cornwall names the strong, well organized and vocal social movements as characteristic for Brazilian experiences with participation: She describes civil society organizations (religious movements, trade unions, as well as the indigenous and landless movement, for example) as having played a crucial role in the strengthening of the “democratic social fabric” (Cornwall, 2008, p.8) in Brazil. As to the influence of ILO Convention 169 on the Brazilian Constitution of 1988, it can be said that social identities and related rights to territory and participation were set very much in concordance to what was adopted in the International Labour Conference in almost the same year. For indigenous peoples in Brazil, Article 231

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of the Federal Constitution is always cited as the paragraph regulating their right to cultural difference and territory. In this article, indigenous peoples are granted the inalienable right to “have their social organization, customs, languages, creeds and traditions recognized, as well as their original rights to the lands they traditionally occupy” (2010. Constitution of the Federative Republic of Brazil). Further, their right to full enjoyment of soil, river and lakes on these territories is defined in the article. The right to consultation is already defined here and the removal of indigenous groups from their territories is forbidden except for cases of emergency or in the interest of national sovereignty. Any new norm regulating consultations in the country is of course debated and negotiated in reference to this existing constitutional norm. Apart from indigenous peoples, Quilombola communities were considered in the regulation process as falling under the category of “tribal groups” that ILO Convention 169 addresses as legal subjects. Their right to territory is also defined in the Brazilian Constitution, in Article 68 of the Temporary Constitutional Provisions Act (ADCT), which states that “[f]inal ownership shall be recognized for the remaining members of the ancient runaway slave communities who are occupying their lands and the State [sic!] shall grant them the respective title deeds.” (2010. Constitution of the Federative Republic of Brazil)28 . It is only in 2003 that the Decree 4887 will define with more detail the definition of quilombola communities as well as the process of demarcation of their territories. Yet for quilombola communities, no right to consultation is set in the Constitution of 1988. In addition to the Federal Constitution, Federal Public Prosecutor Deborah Duprat names the Convention on Biological Diversity (Article 8j) and the Article 30 of the UN Declaration on the Rights of Indigenous Peoples as legal sources for a right to consultation in Brazil (Eckert et al., 2012, p.393). These sources define their subjects more openly as for example “local communities” in the case of the Convention on Biological Diversity, which could be interpreted to include Quilombola communities in Brazil. Apart from these aspects of indirect influence of ILO Convention 169 on participatory rights for indigenous and tribal peoples in Latin America and especially in Brazil, the first step towards ratification of ILO Convention 169 in Brazil was taken by a request for ratification of the Convention sent by the Ministry of Foreign Affairs (MRE) to the National Congress in 1991 (Keppi, p.7). Two years later, several Committees of the House of Representatives had consented to ratification, when the issue arrived in the Senate, respectively in the Committee for Foreign Affairs and Defense.

28 | Different from indigenous peoples then, quilombola communities can acquire the full land titles of their property, which excludes however any state responsibility for the protection of these territories.

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The senators of this Committee expressed doubts about the constitutional conformity of Article 14 of ILO Convention 169 that grants right to ownership and property of their territories to the beneficiaries of the Convention, while in Brazil indigenous peoples are granted only right of usufruct on their territories (Keppi, p.7-8). In subsequent discussions in this Committee and the Committee of Constitution, Justice and Citizenship of the Senate, concerns were raised as to whether the right to resources as set in the Convention could extrapolate limitations set in Article 231 of the Federal Constitution (as to subsoil minerals etc.). Aside from these concerns about principles of Convention 169 extrapolating the limitations of the new Constitutions, other doubts referred to a possible setback of indigenous rights in Brazil with regard to removal of indigenous groups from their territories (the exclusion of this possibility was perceived as laid down stronger in the Constitution) or with relation to the possibility of transmission of land, which is forbidden by the Constitution (Article 231) except for very clear-cut situations and not as strongly denied in Convention 169, in the eyes of the senators (Keppi, p.7-11). Discussions took more than ten years, but ended 2002 with the final adoption of Decree 143 in the plenary of the Senate that ratifies the Convention in Brazil (June 2. Decreto Legislativo n◦ 143)29 . The adherence of Brazil to the Convention implies the obligation of regularly reporting on the situation of implementation to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), which is the responsible body for the appreciation of implementation reports within the ILO30 . Brazil sent his first implementation report in 2005, and presented his second report in 2008 to the civil society. In the report of 2008, Brazil answers to a direct request of the Committee of Experts of 2005.

29 | (Araújo and Leitão, 2002) state that the final ratification was linked to the discrete withdrawal of a latent governmental opposition towards the Convention in the surroundings of the UN Conference on Racism in 2001 and as a result of the agency of the State Secretariat for Human Rights. The ratification also was of use for easing the limited progress in the aproval of the rights of indigenous peoples that President Fernando Henrique Cardoso’s government had showed (Araújo and Leitão, 2002, p.27). 30 | Fajardo hints rightly to the point that these reports are prepared by the Ministry of Labour and Employment (MTE), which is not the responsible institution for policies affecting indigenous or tribal peoples in Brazil. The reports represent a summary of inputs by different government institution, as the National Indian Foundation (FUNAI), the Ministries of Education and Health and the Ministry of Agrarian Development (MDA). This leads to coordination as well as planning problems, Fajardo asserts (Yrigoyen Fajardo, 2009, p.42-44).

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These first exchanges of reports and comments between the CEACR discuss sev-eral issues of the relation between the Brazilian legislation for indigenous peoples and rights defined in Convention 169, partly taking up issues of reports of Brazil on the former Convention 107. Among these topics are the Brazilian Indian Statute (see Chapter 6.2) and its outdated definition of indigenous peoples as well as the concept of legal guardianship. Another recurrent topic is the line of action of the National Indian Foundation (FUNAI) and the participation of indigenous peoples in the establishment of indigenist policies in this context. Reflecting the broad range of issues covered in Convention 169, information is asked for on issues of health, on intellectual property issues, credits and agricultural assistance as well as measures aiming at the recognition of indigenous languages (Committee of Experts on the Application of Conventions and Recommendations, 2005). With regard to consultation procedures, the problem of a missing regulation for consultations on administrative and legislative measures within the Federal Brazilian Constitution is pointed at by the ILO Experts (the above explained Article 231 only provides for consultations on projects affecting indigenous territories directly). Basic safeguards for consultations are inquired, and the experts express their perspective that territorial integrity of indigenous territories is the prime challenge in this context. The case of the demarcation of the indigenous territory Raposa Serra do Sol appears quite prominently in the experts’ requests as well as in the governmental report. This is the only part where in their comments, the experts explicitly request more information, in contrast to other topics, where they “encourage” further implementation or “hope” to stay updated etc. (Committee of Experts on the Application of Conventions and Recommendations, 2005). The governmental report of 2008 tries to provide information and explanation on all the issues mentioned above, showing conflicts of the Convention with the existing legislation as well as pointing to the acting of the other democratic forces in the country (especially the judiciary) (República Federativa do Brasil - Ministério do Trabalho e Emprego, 2008). The latter report was publicly presented in 2008 and encountered not very euphoric responses. The NGO Socio-Environmental Institute (ISA) for example published this rather negative evaluation of the first years of effect of the Convention in Brazil: After more than 5 years being valid, its is inevitable to acknowledge that the euphoria with which the promulgation of Convention 169 was celebrated did not go beyond first seminars and articles written to praise it. It is possible to identify several cases in a row of non-compliance of its dispositions, specifically cases that brought innovation

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related to the Brazilian legal system, as it is the case for the right to prior consultation. ((Instituto Socioambiental, 2013), own translation)

In line with this critique, several comments on the situation of the application of Convention 169 in the country were sent to the CEACR. One of these was prepared by the Central Workers’ Union (CUT) (Central Única dos Trabalhadores, 2008). With reference to two appendices prepared by indigenous and quilombola organizations and their support groups and containing detailed case descriptions, the CUT comments on the application of ILO Convention 169. It starts by stating that the issue of self-identification set in the Convention was being violated by various attempts of the administration to establish “objective rules” for recognition as indigenous or quilombola community. Further, the comment claims that participation of these groups was still realized in general merely formally, leading to inadequate public policies for indigenous and quilombola communities. Pending land legalization for indigenous and quilombola territories is among the main points of criticism, as well as the related issue of malnutrition and health. In sum, the document states that the recognition of ILO Convention 169 stayed on a mostly symbolic level in Brazil, while an outdated legislative and administrative apparatus continues to govern the concerned rights for indigenous and quilombola communities in the country (Central Única dos Trabalhadores, 2008)31 . In the same year, the CEACR publishes comments on the situation of Convention 169 in Brazil, taking up the denunciated cases and requesting more information primarily on the situation of quilombola communities in the country, demanding a positioning of the Brazilian government towards the application of the Convention to these communities, as well as existing mechanisms to guarantee their rights (Committee of Experts on the Application of Conventions and Recommendations, a). The Committee requests the government to examine the existing mechanisms for consultation and participation in cooperation with the indigenous organizations and expresses its concern with regard to the denunciated cases of projects being implemented without participation or consultation of the affected groups: the hydroelectric power plant Belo Monte, the diversion of the São Francisco river, the GuaraníKaiowá indigenous territory, and a mining project on the Cinta Larga indigenous territory are named as concrete cases. The Committee requests detailed information

31 | This document arrived at the ILO Office in Geneva together with communications of two rural workers unions, which also filed complains about the implication of the Convention in the country.

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on all of them (Committee of Experts on the Application of Conventions and Recommendations, a). In the following years, the comments of the Committee gain a more and more serious tone with regard to the cases cited above – also in the light of pending positioning of the Brazilian government to points raised in earlier comments – until its states in 2011: [. . . ] The Committee requests the Government to take the necessary steps to ensure proper consultation and participation of the indigenous peoples in developing the consultation mechanism and to send information on all progress made in this regard. (Committee of Experts on the Application of Conventions and Recommendations, f)

This request was published after a tripartite committee had already been set up by the Governing Body of the ILO in March 2009 to investigate the non-observance of ILO Convention 169 by Brazil32 . In this respect, it can be stated that the relation between the ILO Expert Committee (CEACR) and the Brazilian government representatives was starting to become tense before an informal commitment of the Brazilian government to create a national regulation for the procedures of prior consultation was made. On the national level, too, the evaluations of civil society organizations on the implementation of the rights granted in Convention 169 stayed rather negative. Biviany Rojas Garzón describes the situation of prior consultation in 2011 as still on a very initial stage apart from a few exceptions33 . The recognition of a right of indigenous peoples to consultation in case of legislative and administrative measures would still deplete in a general recognition of the necessity to institutionalize mechanisms of exchange between the Brazilian state and indigenous peoples, while the realized consultations on projects would meet in no aspect the safeguards established in ILO Convention 169:

32 | The stumbling block for this escalation had been another report to the ILO Office, issued by the Union of Engineers of the Federal District (SENGE DF) on a law project (N◦ 62/2005) regulating the management of the public forests and claiming impact on indigenous peoples without the consideration of their voice (ILO Office 2009). 33 | Garzón names the negotiations on the revision of the Indian Statute in 2008 and the participatory process of establishing the National Policy of Environmental Management in Indigenous Territories (Política Nacional de Gestão Ambiental em Terras Indigenas – PNGATI) in 2009 and 2010 as positive, yet singular experiences (Garzón, 2011, p.63)

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The consultations implemented until today, consist primarily of gigantic assemblies of several people, with long and complex agendas to be covered in a few dazes, without any type of prior information or preparation. In this way, there is little opportunity for indigenous peoples to influence final decisions. ((Garzón, 2011, p.63), own translation)

In the case of development projects and constructions affecting the legal subjects of ILO Convention 169, Garzón states that these happen still in an unilateral way, the agency of indigenous peoples being limited to representing the object of anthropological studies within the context of FUNAI’s contributions to the environmental impact studies prescribed by the licensing procedures (Garzón, 2011, p.63). As the main excuse for this non-implementation of the right to prior consultation, a lack of sufficient guidelines in legal provisions is argued by the public administration, states Garzón, despite of the repeated judiciary reaffirmation of the self-enforcing character of right to consultation (Garzón, 2011, p.64). Summarizing, it can be stated that the prospects for a generally satisfying implementation of Convention 169 did not look good when the Brazilian government decided to initiate the legal regulation of prior consultation in 2012. As I will show in the next chapters, the most contentious issues debated during the process of formulating ILO Convention 169 continued to be debated at the national level during the attempt to regulate prior consultation in Brazil. Of course, they were renamed on the national level: The question of the wording of “peoples” or “population” reappears in questioning the degree of self-determination that indigenous and tribal people are allowed in the ILO member state Brazil. The fears connected to addressing the legal subjects of Convention 169 as “peoples” re-appear in the negotiations during the regulation in Brazil, for example in the campaigns launched in 2014 that aimed at a renunciation of Brazil from the Convention, maintaining the argument that national sovereignty would be at stake (Monteiro, 2014)34 . In the same way as it happened during the revision process of the ILO, the couple “people(s)/populations” is closely connected to the issue of “lands/territories” in Brazil. The latter reappeared on the

34 | The Commission of Agriculture, Cattle Breeding, Supply and Rural Development of the House of Representatives of the Brazilian Congress debated a possible renunciation of Brazil in June 2014 without any further deliberations. As defined in the handbook of procedures of the ILO, denunciations are normally possible only at certain points (mostly after subsequent periods of ten years after ratification, during a one-year interval), and the reasons for denouncing have to be communicated to the Governing Body. The vast majority of denunciations happen in context of the revision of a Convention (Boockmann, 2000, p.36). While several countries denounced Convention 107, no denunciations of Convention 169 exist until today.

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national level in the debate of national sovereignty and its clash or co-existence with the above-mentioned doctrine of self-determination of peoples, in this case of indigenous and tribal peoples. The hotly debated issue of a “right to veto” for the concerned groups in Brazil appeared in the ILO context formally during the revision of Convention 107, when the principle of self-determination was internationally being discussed in all its facets. And finally, the question as to which point the ILO is competent as a standard-setting agency in this topic continues to be debated from a national point of view in the form of trying to define the way international law enters the Brazilian national legal system. In addition, it can be stated that processes of framing took place already on the level of international law, for example when the topic of indigenous rights was “moved” from the context of national integration to being a topic of development policies in the aftermath of World War II. As I showed in this chapter, this new discursive embedment prepared the ground for indigenous rights being treated within the institutional structure of the International Labour Organization.

Part II. Actors’ and observers’ perspectives on the process of legal regulation in Brazil

5. Representatives of the right holders in the regulation

I start this ethnographic part of my study with an introduction of the different groups of right holders that were discussed during the regulation of prior consultation in Brazil. These right holders appeared in the regulation procedure via their political representatives; political organizations of indigenous peoples, quilombola communities, and traditional peoples. I present each organization as to its creation out of historic political movements as well as its current situation, and subsequently outline the different positions and strategies of the right holders of ILO Convention 169 adopted in the negotiations of the regulation process in Brazil.

5.1. I NDIGENOUS

ORGANIZATIONS :

COIAB & APIB

The organizations of the indigenous movement in Brazil represent peoples that are explicitly mentioned in the title of ILO Convention 169 as subjects of rights of the Convention. Indigenous peoples in Brazil form 0.4% of the total population of the country according to the last census (Instituto Brasileiro de Geografia e Estatística, 2010). These peoples declare themselves as indigenous and live predominantly in Brazil’s North (almost 40%). 63.8% of Brazilian indigenous peoples live in rural areas, in the northern region1 the Brazilian Institute of Geography and Statistics (Instituto Brasileiro de Geografia e Estatística – IBGE) found more than 80% of the indigenous peoples living in rural areas (Instituto Brasileiro de Geografia e Estatística, 2010). Overall, the IBGE counts 305 indigenous groups in 2010 (Instituto Brasileiro

1 | The IBGE defines as northern region the states of Roraima, Acre, Amazonas, Rondônia, Pará, Amapá and Tocantins (Instituto Brasileiro de Geografia e Estatística, 2016).

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de Geografia e Estatística, 2010), while the Brazilian NGO Socio-Environmental Institute (Instituto Socioambiental – ISA) accounts for 240 different peoples (Instituto Socioambiental, 2015c). Among these groups, the IBGE counts 274 different languages (the ISA counts 150). In 2010, 57.7% of the indigenous peoples lived in one of the 505 indigenous territories in the country; all in all they occupied 106 739 936 ha (7.98% of the national territory) (Instituto Brasileiro de Geografia e Estatística, 2010). The French anthropologist Bruce Albert points to the fact that around 20% of the Amazon and more than 50% of the national tropical rain forest is integrated in indigenous territories (Albert, 2000, p.199). Hence although the share in the overall population is relatively small, it is important to consider the geographic significance of the indigenous population in Brazil. It is not surprising then that the question of territories and land in Brazil was among the most important triggers for the historical process of creating a political movement by indigenous leaders in opposition to state politics (Albert, 2000, p.198-199), (Oliveira Filho, João Pacheco de and Freire, Carlos Augusto da Rocha, 2006). While claims of indigenous peoples were formulated in an isolated way and focused principally on the necessities within their respective communities until the 1970s, the creation of the Union of Indigenous Nations (União das Nações Indígenas – UNIND, later named UNI) in 1980 represented a first step to formulate vindications on a national level . It was via UNI that some indigenous leaders participated in the negotiations of the new Federal Constitution starting in 1986 (Ramos, 1998, pp.168-177). Among other important new provisions in the Constitution, indigenous organizations were enabled to register as legal entities with the new rights laid down in the Federal Constitution of 1988, which contributed significantly to the strengthening of these organizations (Albert, 2000, p.197). Especially when confronted with the extensive plans for the hydroelectric exploitation of the Xingu River in the 1980s, the indigenous movement assumed a new discourse that considered granting civil rights to traditional communities as connected to the defense of the environment2 .

2 | Several authors offer different comments on the role of the state administration in the formation of a political movement of indigenous leaders. On the one hand, state retraction from direct management of indigenous issues is described as mobilizing political claims in the 1970s by (Albert, 2000, pp.197-199). On the other hand, João Pacheco de Oliveira stresses the role of the governmental agency National Indian Foundation (FUNAI) in suppressing a political articulation of indigenous peoples for a long time. In Pacheco’s perspective, the formation of a political indigenous movement depended strongly on church and non-governmental organizations, with the Catholic Indigenist Missionary Council (Conselho Missionário Indigenista –

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This discursive tactic was widely strengthened by the deliberations of the United Nations Conference on Environment and Development in Rio de Janeiro in 1992 (also known as the Earth Summit or Eco 92). In his review of the development of indigenous organizations and their claims in Brazil, Bruce Albert describes this time as the “routinization” and of the ethnic discourse on political rights within the international rhetoric of sustainable development (Albert, 2000, p.198-199). This professionalization led to what he calls the “ethnicity of results”: In contrast to the informal, ethno-political movements and organizations of the 1970s and 1980s, Albert states that there has been a qualitative change of the indigenous movement and its claims starting in the 1990s. After 2000, he sees identity affirmation as a backdrop for the search of the indigenous movement for access to national and international “markets of projects” (Albert, 2000, p.198-199). This of course demanded changes within their internal organization. Most of the indigenous organizations of today are registered at the notary, have a statute and a bank account. As their new prime task, these organizations face the maintenance of complex socio-political networks of funding and the management of their territories, while the task of claiming the demarcation of territories seems to have lost its position as unique raison d’être for the movement (Albert, 2000, p.198-199). The legacy of the Eco-92 Conference in Brazil also changed the general public policy structures within the country in a comprehensive way. New collaborations with international agencies like the World Bank or with the European Union drew the Brazilian government to participate in international forums that dealt with the integration of development and environmental issues. Within this framework, indigenous territories started to become represented as hot spots for environmental conservation. On the other hand, international development agencies started to cooperate directly with their target organizations, bypassing the state and bringing money to the many new organizations representing indigenous peoples. Multilateral cooperation agencies then started to become important sources of funding for the growing number of indigenous organizations; aside from bilateral cooperation agencies, religious funds and related NGOs, projects were supported by “conventional” companies (like The Body Shop) or Fairtrade companies. On a national level, cooperation agreements with public administration, compensation payments by state or formerly state companies and funding via national NGOs are until this day financial sources of indigenous organizations (Albert, 2000, p.198), (Souza Lima, 2007, pp.19-20). These growing options of international cooperation is considered one factor for the proliferation of

CIMI) figuring as a prominent example (Oliveira Filho, João Pacheco de and Freire, Carlos Augusto da Rocha, 2006, p.193).

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indigenous organizations starting in the 1990s, together with the effects of a new legal framework after 1988 and the tendency of growing decentralization of indigenist state services (Albert, 2000, p.97). By 1990, more than 100 local and regional organizations had replaced the former national supremacy of UNI; by 2000, 183 indigenous organizations existed only in the Amazon region (Oliveira Filho, João Pacheco de and Freire, Carlos Augusto da Rocha, 2006, pp.195-196). One of these organizations is the Coordination of the Indigenous Organizations of the Brazilian Amazon (Coordenação das Organizações Indígenas da Amazônia Brasileira – COIAB). The COIAB was founded in 1989, the year that the Federal Constitution came into effect. The organization formulates its mission as the monitoring, defense and promotion of the rights of indigenous peoples (Coordinação dos Organizações Indígenas da Amazônia Brasileira, 2015). During its more than 25 years of existence, the COIAB has been involved in many cooperation projects with international organizations, representing the shift within the indigenous movement in Brazil towards professionalization: From a very weakly institutionalized, politically active movement bolstered by charismatic leaders (such as Raoni, the famous Kayapó leader that led the protest against the hydroelectric power plant Belo Monte), the movement started to be recognized among the actors of regional socio-environmental development and increasingly negotiated in official forums with actors of public administration, the international development cooperation, NGOs and companies (Albert, 2000, p.198). According to its own statements, the COIAB today counts 75 member organizations in the nine states that form the Brazilian Amazon3 (Coordinação dos Organizações Indígenas da Amazônia Brasileira, 2015). Although the COIAB can be understood as a regional organization of the indigenous peoples of the Amazon region (its headquarter is located in Manaus), the organization has a strong representation in Brasília. COIAB leaders participate in the debate of national politics for indigenous peoples, and the organization has an agenda clearly focused on national issues of politics for indigenous peoples. The COIAB and the indigenous peoples of the Amazon that the organization represents dominated the public image of “the indigenous” for quite some time. Some of my interview partners regarded the COIAB as the only legitimate representation of indigenous peoples until this day. That is why I do not consider the COIAB a merely regional organization like the Federation of the Indigenous Organizations of the Rio Negro River (Federação das Organizações Indígenas

3 | The states forming “Legal Amazonia” are Amazonas, Acre, Amapá, Maranhão, Mato Grosso, Pará, Rondônia, Roraima and Tocantins.

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do Rio Negro – FOIRN) or Indigenous Council of Roraima (Conselho Indígena de Roraima – CIR) that have a clearer local focus. The traditionally strong national presence of COIAB may also have to do with the fact that the National Organization of the Indigenous Peoples of Brazil (Articulação dos Povos Indígenas do Brasil – APIB) was founded only very recently in 2005. During that year’s Acampamento Terra Livre, the annual meeting of the country’s indigenous leaders in Brasília, the lack of an explicitly national coordination of the many regional movements was perceived as a great weakness in the struggle for the guarantee of indigenous territories, state services and political participation (Montejo, 2005). Apart from the COIAB being one of the movements that the APIB tries to integrate, regional organizations from outside of the Amazon Region, from the South, Southeast and Northeast, are also members of the APIB4 . The leaders of the indigenous movement were the most obvious actors in negotiating the conditions of prior consultation in Brazil, as the whole regulation process was framed very much towards regulating the procedures of implementation of infrastructure projects and development in the country. Today, indigenous peoples have become known as the victims of these projects. This orientation of the debate was heavily supported by indigenous leaders. Their protests against several of these projects had been visible for some time and now became connected to the regulation procedure. That is why they are predominant in my account of actors and their proposals. On the other hand, after July 2012, their presence in the regulation procedure was reduced to the role of external protesters (that had excluded themselves). Their account cannot inform on the later steps of the regulation procedure. I interviewed four representatives of indigenous organizations in Brazil during my field research. All of them were very approachable, open for interviews with me and experienced in giving interviews as well as being present in media and the news. Only one of them was a woman. Rosana started her political career early in her own state and had to compete with men for political offices all her life. She did several trainings and courses and has always been interested in national mobilization and in participating in the debates in Congress, so when she started to act in the APIB, everybody assumed she had already been doing this for some time. She was a very important informant within

4 | On its website, the APIB names the following organizations as members: Articulação dos Povos Indígenas da Região Sul, Articulação dos Povos Indigenas do Pantanal e Região, Coordenação das Organizações Indígenas da Amazônia Brasileira, Articulação dos Povos Indígenas da Região Sudeste, Aty Guassu (Grande Assembléia Guarani), and Articulação dos Povos Indígenas do Nordeste, Minas Gerais e Espírito Santo (APIB 2014).

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the indigenous movement, for one reason because she was interested in exchanging ideas on strategies and events. Also as a member of the coordination of the APIB, she participated in almost all public events in Bras´lia, was well informed on ongoing political debates and had access to many high-profile meetings with governmental institutions. That is why her account is central in this section. Tonio, another indigenous leader whom I met several times, represented the COIAB in a special commission in Brasilia, the National Commission for Indigenist Politics (Comissõ Nacional de Política Indigenista – CNPI). This commission was set up in 2006 in order to create a forum for indigenous leaders and government agencies to debate policies that affect indigenous peoples. Tonio talks of deadlocked situations within the CNPI with regard to the demarcation of indigenous territories and even of ruptures of dialogue when the indigenous representatives decided to withdraw from the commission because they were dissatisfied with the course of the negotiations taking place there. Apart from the CNPI, Tonio also works for an international development cooperation that supports the National Indian Foundation (Fundação Nacional do Indio – FUNAI) in their work for and with indigenous organizations. Therefore Tonio has a kind of double role with regard to which organization or movement he is representing where. Alberto is the eldest indigenous leader that I interviewed. He participated actively in the process of reconstructing the Brazilian Federal Constitution in 1988/89 and had formerly taken part in UNI when it acted as an institutional anchor for participation of indigenous peoples in debates on the re-democratization of Brazil and their claims to territory and citizenship. Mário is the youngest of the leaders I met. At the time of our interview he was working in the administration of COIAB. Together these four leaders give a comprehensive sample of organizations that form the indigenous movement in Brazil, their perspectives and challenges. In relation to the regulation process, Rosana describes the uncertain implementation of laws as a difficult situation for indigenous leaders such as herself who have to guide and align strategies of interaction with the governmental institutions at the grass root level of their movement: “We have many different laws that are not being observed, and now there is going to be one more that also will not be observed, right? And nobody has an answer to this. Who is going to tell? Nobody. [. . . ] There is no way for us to know. We stay in doubt and indecision if we are going or not going, if we do it or don’t [participate in the regulation process]. Really, nobody here knows. . . if its good or better if everything stays the way it is. This is really complicated for us, the leaders of the movement, at the front of the

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movement, how do we guide people? We need to guide. At the end of the day, people ask us, ‘But what do you think? Is it good to do or not?’ You end up having to take a position.” (Interview, own translation)

Also with relation to the regulation of prior consultation, one major doubt of the indigenous leaders is whether legal regulation is actually leading somewhere in a context where indigenous rights in general are perceived as not being implemented in Brazil. In order to understand the perspective of social movement leaders on this process, it is important to take into account this situation of uncertainty described by Rosana. To learn the strings of the current legal and administrative questions is one reason among others why the leaders of the national indigenous organization stay long periods of time in Brasilia, participating in meetings, discussions and demonstrations. This can lead to a situation of “getting stuck” with not enough time to go to the villages. In these cases, the already complicated process of translating indigenist policies to the reality in the villages and awakening the interest of local village leaders for these problems becomes even more difficult. Rosana says that in these situations she tries to establish links with topics that induce anger, such as the question of territories, and gives an example of how she tries to interest local leaders in legal questions: “We were at an assembly in the indigenous territory Araribóia, speaking about the question of the land. [. . . ] There I spoke up. And I spoke up in a way that they understood and got worried. Because I put it like this: ‘We are here in our territory, right? Everybody together. Even if these provisions5 today are not valid, look at the exploitation we are already suffering today. Look at what the farmers do. . . But today we have a law at our disposal, even if it is not observed, it gives us back up to fight

5 | Rosana is referring here mainly about Ordinance 303. Ordinance 303 was published by the Office of the Federal Attorney General (AGU) in July 2012. It oriented attorneys of the AGU to apply the conditions established for the indigenous territory Raposa/Serra do Sol by the Supreme Court in 2009 to all indigenous territories in the country. These restrictions included impeding the enlargement of the indigenous territory (originally relating to the Raposa/Serra do Sol territory), the management of parts of indigenous territories that overlapped with protected areas by the institution responsible for the management of the latter (Instituto Chico Mendes de Conservação da Biodiversidade – IcmBio), as well as the suspension of the obligation to have prior consultation in cases of strategic interests in construction on indigenous territories (Advocacia Geral da União 2012).

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our fight, to go there and charge, pressure for it being observed. And if we lose this law, to what are we going to hold on to charge? There won’t be any legal instrument to exert pressure, nothing that we could use to charge people. So we need to fight for this, in order not to lose the rights we already established, the rights that are written in the Constitution. Those articles written there are small, but they are there. And even if our territory is publicly acknowledged today, and we feel save because we have our land, if one of these provisions is endorsed, the decision to acknowledge our territory can be revised and the territories can be reduced, or they can one day decide to start mining in our territory. Because this provision guarantees the entry of mining. This provision can allow for ‘Ah, now lets explore timber with management. Let’s plant here, one of these areas [. . . ] and so on. So all of this is a threat, because we can lose this any hour, if we don’t fight for this law that is written in the Constitution’. I spoke like this of every threat, always using territory. . . the house, everything, the exploitation. And they understood everything, right away.” (Interview, own translation)

Rosana here presents law in general as a kind of heritage, an achievement of former fights that can serve as support for today’s claims and prevent possible legal backlashes in the future, even if not applied in the present. She relates to administrative struggles as threats that currently stay vague but can aggravate the already existing situation of exploration if the struggle of the indigenous movement to defend existing safeguards is lost. Then, she concludes, even already demarcated territories can be lost. In this way, Rosana tries to bring the national debates and fights to the villages and tries to show connections between life in the villages and the capital. During our conversation, she references various legal projects that the indigenous movement is fighting against, such as the Proposal for Constitutional Amendment (Proposta de Emenda á Constituição – PEC) 215 that aims to transfer the power to declare indigenous territories from the Executive to the Legislative Force, or law projects defining “national interest” and its favored position regarding special rights such as the right to consultation. She describes the indigenous leaders as very divided in relation to all these kinds of political questions. This division also applies to the question whether they should cooperate with a regulation procedure for prior consultation. Relating these complex questions back to the protection of territories is also a way to unite the very diverse positions, says Rosana. This has not been possible yet with regard to ILO Convention 169. Rosana describes uncertainty among the political leaders of the indigenous movement as to whether regulation procedures are necessary or if the self-enforcing aspect of the Convention means that no efforts should be invested in participating in its regulation

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in Brazil6 . Alberto, one of the elder leaders of the indigenous movement, formulates this even more drastically: “Prior consultation was never practiced. Not because of lacking existence – it exists. The problem is that the authoritarianism of the government today is even stronger than during the military regime. Under the current government we lost more leaders than during the dictatorship, we have more conflicts and we continue to be treated the exact same way: Unfaithful to the international commitments that the Brazilian state took on.” (Interview, own translation)

As stated very clearly in this citations, one part of the indigenous leaders believes that the problem is much more based in the attitude that the Brazilian government takes towards indigenous peoples and their rights, despite international norms’ provisions being valid in Brazil. In addition to these international norms, Alberto alludes to the Brazilian Magna Carta’s two articles that define the obligation to consult indigenous peoples7 . He blames the “fragile Brazilian democracy” for allowing the current trampling of these rights. Alberto perceives public pressure as the main instrument to influence powerful players such as FUNAI and the Congress. Not all the leaders appreciate the international norms in the way Alberto does. With regard to the content of ILO Convention 169, Rosana actually perceives it as an insufficient source for regulating prior consultation. “[. . . ] because the [Convention] 169, while being good on the one hand, it also opens breaches . . . . Because it speaks for example about the right to veto, which doesn’t exist, right. It says it is necessary to build consensus, we need to build consensus. But what if there is no consensus? What to do? I don’t know, I think this stays very unclear, very fuzzy.” (Interview, own translation)

Rosana and the indigenous movement are defending a right to deny their consent to projects that the consulted communities do not approve of. She does not see this pro-

6 | My first interview with Rosana took place in October 2013. When I wrote her in 2014 to ask how things were evolving, Rosana had become more convinced that regulation procedures are redundant: “we are increasingly convinced that what is needed is not a regulation, it would be enough to observe the law.” 7 | Alberto refers here to Article 231 and 232 of the Federal Constitution that recognizes indigenous peoples in Brazil as culturally different groups and guarantees them the right to their territories (Constituição, 1988. Constituição da República Federativa do Brasil).

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vision represented in the Convention text and deems it questionable for this reason. Rosana understands prior consultation as defined in Convention 169 to be more a method of informing people and of convincing them until they accept the proposed measure then a procedure whose results can be opted out of. In addition, she speaks about the impression that the government wants to create a standardized instrument, namely with regulation as a sort of legitimization procedure, as a way to formally prove that international standards are being applied in the country. Rosana gives the famous example of Belo Monte, a hydroelectric power plant project in the Amazon that has caused social and juridical fights for more than 30 years, as an example of this nominal fulfillment of the requirements for a legitimate consultation process: “There they make use of what we call bad faith, to go there, inform, speak and afterwards already use this material as if that would have been a consultation. That’s what happened in Belo Monte and this is what continues to happen. They use whatever assembly to say that they consulted us. And that is very confusing for everybody, for the government as much as for us.” (Interview, own translation)

In this citation, Rosana reverses one of the attributes of prior consultation as defined in ILO Convention 169 – “good faith” – in order to describe practices of using a merely informative meeting to claim that consultations have been realized. When our interview took place, the regulation process had been running for more than a year, and Rosana’s evaluation of it was rather negative, based on exactly the same points for which she criticized Belo Monte consultations: As to Rosana, the government approached the indigenous organizations with ready-made procedures for the regulation process and with a clear concept for the structure of the Interministerial Working Group that should prepare a draft for legal regulation. Suggestions that the APIB tried to make – such as establishing a proper indigenous working group, or widening their participation in the official Working Group, or even augmenting the number of planned countrywide meetings to inform the indigenous peoples about the regulation – were not integrated. Rosana expresses her frustration in relation to the general dialogue between the indigenous movement and the government, and she especially expresses regret that she and the indigenous movement in general are not being heard. In general, Rosana criticizes the behavior of the government as intransparent, which according to her contradicts the “spirit” of Convention 169. As an example, she relates several attempts that have been made to circumvent the APIB and their representatives during the negotiations of the regulation procedures by contacting regional indigenous organizations and trying to organize meetings directly and exclusively with them,

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bypassing the representative structures that the APIB asserts to be the national representation of indigenous peoples in Brazil. As another example of the poor dialogue between the indigenous movement and the government, Rosana describes the release of the Ordinance 303 (portaria 303) of the Office of the Federal Attorney General in July 2012 as the last difficulty that made this already fragile relation unbearable, especially because it was perceived as contradicting all efforts to establish a consensus on consultation procedures by limiting existent procedures via top-down control. The indigenous movement decided thereupon to withdraw from participating in the regulation process: “And when the [Ordinance] 303 was published, it was finished. We published a statement saying that we would not discuss anything anymore related to the [Convention] 169, because the 303 was totally opposed to the 169. Because the 169 secures the right to consultation and the 303 takes it away. So, when the 303 was out, we stopped the process entirely.” (Interview, own translation)

Afterwards, Rosana describes this non-participation as a strategy of political pressure that the indigenous movement used while being aware of the international pressure on the Brazilian government to resolve the question of prior consultation. The absence of the indigenous movement from participation in the regulation process appears to have functioned as leverage in the conflict on the revocation of Ordinance 303. With this strategy of blockade, Ordinance 303 was linked to the regulation process in demanding the revocation of the former as a condition for the return of the indigenous movement to the negotiation table: “[. . . ] because we realized. . . not realized, we had it concretely covered, that Brazil had this commitment and had a deadline to fulfill with the ILO to realize this regulation, right? That Brazil had a limited time period to regulate. And so, because of this they were in such a hurry to do it by any means, right? [. . . ] Well, when we realized this, that they had this pressure, we decided to block here, among others to achieve the revocation of the [Ordinance] 303. We were holding back all the time, more in this sense, right, against the 303 that was in that moment very strong. [. . . ] And it was this that we blocked in the [Convention] 169, in order to bring it down. We did not manage to bring it down, but we managed to weaken it.” (Interview, own translation)

The protests of the indigenous movement against Ordinance 303 finally led to its suspension in September 2012, with the aim to await a decision of the Supreme Court on the issue, but the protests only led to its suspension, not to its revocation. Despite

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having served well as an emergency-solution, Rosana’s personal evaluation of the blockade strategy in the case of the regulation of prior consultation is not entirely positive, since the construction projects affecting indigenous territories and requiring consultations continue to be implemented: “Because in the same moment that we are here, withdrawing and not conversing, while we are not having this dialogue to create this model, right, this method to consult, at the same time we charge that we want consultation, but we don’t say how we want it. [. . . ] What happens is that independently of doing or not doing consultations, the construction works move on, anyways. Not one project was stopped because of lack of consultation until today.” (Interview, own translation)

With regard to political strategies, Rosana laments the lack of the movement’s own proposals, a factor which she links to the situation of always having to react to threats. In her point of view, the strategy of blockade has to be reconsidered in favor of a more constructive use of the Convention and also in order to prevent unilateral interpretations of which the plurality of the indigenous peoples disapproves: “I don’t know exactly how, but we need to evaluate and have a little more mature conversation on how we should move on. . . if we really now fight for the [Convention] 169 being considered self-enforcing and use it right away, charge consultations in the regions, like for example in the Tapajós – which is now catching fire because they want to rush things over there – if we use it like this, as self-enforcing to do the consultations over there and in other regions as well. Or if we start to think the process of a regulation, you know.” (Interview, own translation)

Tonio also states that even under conditions considered inadequate, he understands participation of the indigenous movement in meetings, commissions and even the regulation procedures to be of the upmost importance in order to stay informed on schedules and debates. This paradox is to be found in all three interviews of indigenous leaders who participate actively in the negotiations on the regulation of prior consultation in Brazil (Alberto is not directly involved): On the one hand, the past experiences led to negative expectations of interactions with the government, Belo Monte always being the prime example. Indigenous leaders point out that during all the conflicts in the last decade, Convention 169 was already ratified and theoretically in effect in the country. The problem is more a question of political will to “respect” and to implement it. On the other hand, the regulation process is seen as an opportunity to come to binding agreements on participation and – against all odds – decision

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power for affected indigenous peoples. For now however, governmental strategies are perceived as trying to avoid transparent negotiations on an even level with the whole indigenous community, as Mario, one of the younger leaders puts it: “I am searching for an exit for me, to understand what the government wants with us. It’s difficult because. . . they don’t do consultation, in none of the indigenous territories, nothing. When they want it, where they want it, the date that suits them, they do it. When we say no, that we can’t do it like this, that we need to be consulted, they say: ‘Let’s divide into groups.’ They co-opt two, one, three, four and in the next meeting everybody is divided. When it gets difficult, they use this strategy.” (Interview, own translation)

“Cooptar” – to integrate, to win, to co-opt is used by Mario in this context in order to describe a governmental strategy considered illegitimate: To convince single leaders in group sessions during a consultation, which is a situation where they should form an opinion on their own and as a group. This is a common accusation coming from different sides towards several of the actors of the regulation process in Brazil. When I asked him about his perspective on prior consultation, Tonio states that it is important to define publicly what consulta prévia means, especially in order to avoid an implementation of it just for the record. This would be the largest gain with legal regulation, he says. At the same time, he does not seem to believe in changes being caused by a possible regulation process: “Consultation, in my point of view, is more a mechanism to be able to say that the Brazilian state foresees a procedure of consultation, you know. But if we analyze what is happening, with or without consultation, the state would do the same thing.” (Interview, own translation)

While the indigenous movement is much divided with regard to the right attitude towards the regulation efforts of the government, Rosana indicates that this also holds for the group of their supporting organizations, mostly NGOs. Some of these groups decided to collaborate with the governmental efforts, effectively going over the heads of the indigenous leaders, Rosana states. She sees a problem in the effort of some NGOs to speak and act in the name of the indigenous movement during the regulation process: “I believe that many NGOs are partners, they help a lot to discuss, right, and sometimes this facilitates a lot the activities to happen and everything, but they have to understand

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that their place is to support, is partnering, not protagonism. Who needs to assume this is the indigenous movement.” (Interview, own translation)

Rosana experiences this role confusion as a common problem, not only in the context of meetings in Brasilia, but also in the indigenous villages, especially with regard to the leaders that are chosen (financed, to be more precise) to bridge the divide between the political center and the reality of life in the villages: “And in places where NGOs work, almost in all, right, where the NGOs operate, they end up. . . well, I don’t want to say the word manipulating, but they end up directing a lot the indigenous point of view. They don’t leave them the authority to speak and decide. The leaders then come and speak, but according to the influence they received, over there, via the NGOs. In many, many cases this happens, in regions that are places where NGOs operate. They [the indigenous leaders] don’t come with their own mindset, with their own decision over things. They come guided by the NGO. According to what is believed by them, you know. And these NGOs, in their areas of operation, they form those people that are their people. And it will always be these people that come, that speak in the name of the others, but they express THEIR thinking. Understand? They don’t tell what they think themselves.” (Interview, own translation)

Rosana sees differences and conflicts within the indigenous movement related to the influence of these NGOs. Conversely, Alberto refers more positively to the cooperation with supporting agencies, especially in relation to the historical opening of the international policy field for actors of indigenous movements. He relates to his vast experience in addressing international agencies in order to claim rights and denounce violations – he participated in several international trials and UN hearings as a witness. These experiences provided new information and opportunities for the movement and were facilitated by non-governmental organizations. He states: “It were these wandering that taught us a lot – the world was opening for us. Today we have the Convention 169 that we are discovering gradually, discovering that Brazil is actually signatory of this Convention. Unfortunately the Brazilians are not reading these important articles in order to defend the social question and the environment.” (Interview, own translation)

Alberto relates that only after the Earth Summit 1992 in Rio de Janeiro did debates on the content and application of ILO Convention 169 arise. In accordance with the tenor of this UN Conference, Alberto strongly relates social and human rights with

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ecological development. He even states that in the 1980s, ecological concerns were perceived as an exclusively indigenous topic and that until this day, environmental issues figure as central in the claims of indigenous peoples. Concluding our conversation, Rosana states that she believes a re-evaluation of the strategy of the indigenous movement to be necessary. She appears divided between fighting simply for a proper implementation of the international norm and engaging in the project of a national regulation process, which she also believes as possibly dangerous. A single procedure for all indigenous peoples could end up affecting negatively the necessary adaption of consultations to different realities.

5.2. T HE N ATIONAL C OORDINATION OF Q UILOMBOLA C OM MUNITIES – CONAQ The second group of the subjects of rights is that of the quilombola communities, a group that was defined during the regulation process as being addressed by the term “tribal peoples” in the title of ILO Convention 169, although Brazil never defined this officially to the International Labour Organization. The concept of quilombola communities has undergone many changes during the history of Brazil. Initially, “quilombo” designated the villages and social networks of fugitive black slave communities in Brazil, and “quilombolas” became the term for the members of the networks who were also inhabitants of the villages (Hofbauer, 1989). There is no space here to delineate the conceptual changes that the black movement has achieved in and outside of Brazil8 , but is important to understand the quilombola movement as being one group within the bigger formation of the Brazilian black movement. The term “quilombo”, and especially the most famous quilombo of the 17th century led by the black leader Zumbi dos Palmares, has been used as a symbolic reference by the black movement in various ways long before it became established as a political and legal category in the Constitution of 1988 (Arruti, 2006, pp.70-76), (Leite, 2012, pp.358-359), (Hofbauer, 1989, pp.34-52). The first supra-regional organization of the Black movement, the Brazilian Black Front (Frente Negra Brasileira – FNB), founded in the 1930s, referred to the quilombo Palmares as a national symbol for freedom, equality and independence as well as an exemplary model of a functioning authoritarian political system (Hofbauer, 1989, pp.39-42). This was in line with the goals of the FNB that were directed towards access and integration of the black pop-

8 | For literature on this question, cf. (Costa, Sérgio, 2006) and (Guimarães, 2001).

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ulation in a society perceived as predominantly white (Hofbauer, 1989). The image of a „racial democracy“ – the idea of a country without racial prejudices and discrimination, granting full opportunities for personal fulfillment to everybody – figured as the great promise of equality (Guimarães, 2001, p.161). While during the „Estado Novo“ (1937-1945) as well as during the military regime (1964-1985) political activism was very reduced, the creation of the Unified Black Movement (Movimento Negro Unificado Contra a Discriminação Racial – MNU) in 1978 marked the reorganization of the national Black movement. The MNU had a quite different perspective on the role of the black population in Brazil as well as on the historic meaning of quilombos than the FNB had. Black culture in general and quilombos specifically were considered bulwarks against the repression of the political and social system in Brazil (Hofbauer, 1989, pp.44-46). The historic quilombo Palmares was idealized as a black democracy and upheld as symbol of ethnic belonging for the Afro-Brazilian population (Hofbauer, 1989). An important figure of this new black movement was the black intellectual Abdias de Nascimento, who attacked the image of a peaceful racial democracy in Brazil (Guimarães, 2001, p.150-151). His texts, as well as his theater group Black Experimental Theater (Teatro Experimental do Negro) played an important role in the resignification of “quilombos” as decidedly black forms of resistance which were not oriented towards simply accessing the predominantly white Brazilian society (Hofbauer, 1989, pp.34-52). During the negotiations of the new Federal Constitution of 1988, the black movement claimed compensation for the long time of oppression and enslavement of blacks in Brazil, and demanded to adopt measures that would stop the continuing generation of exclusion and discrimination of blacks (Leite, 2008, p.969). It was with the inclusion of Article 68 of the Temporary Constitutional Provisions Act (ADCT) in the Constitution of 1988 that the category of “remanescentes das comunidades dos quilombos” (Constituição, 1988. Constituiccão da República Federativa do Brasil)9 was officially recognized and granted the right to ownership of their territories. This act in combination with the new situation of the growing interest of international donors as described in the previous chapter triggered the formation of a whole new group of actors that “claimed” the field of specific rights for quilombola communities – such as NGOs, state institutions, legal and academic professionals (Arruti, 1997, p.14), (Guimarães, 2001, p.159). As another result of the mobilization of the black movement, the Palmares Cultural Foundation (Fundaccão Cultural Palmares – FCP)

9 | The official English translation became “ancient communities of runaway slaves” (Chamber of Deputies, 2010).

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was created in 1988 with the mission to defend and watch over the recognition of rights for the black population of Brazil. Despite these promising steps, the Constitutional Article 68 defining rights for quilombola communities initially passed as one more act in the wake of the festivities of the centennial of the abolition of slavery in Brazil in 1988, without great effect on the living conditions of black rural communities (Arruti, 1997, p.7). It was only after 1995, tercentenary of the death of Zumbi and year of many public affirmative actions of the black movement, that the term quilombo (of course, in relation with the quilombo Palmares) and the related legal definitions saw a comeback as an actual identity category communities would use as a reference in their claims to social rights. 1995 was also the year of the foundation of the National Coordination of Quilombola Communities (Coordenação Nacional das Comunidades Quilombolas – CONAQ) as a result of the National Meeting of Rural Black Quilombola Communities in this year on the occasion of a large march in honor of the great black resistant leader Zumbi in Brasilia. A provisional Commission was created at the meeting, which resulted one year later in the creation of CONAQ by representatives of regional quilombola organizations (Souza, 2008, p.110). Souza stresses the distinctive feature of the newly created CONAQ as a social movement and not as a NGO, political party or union (Souza, 2008, pp.110-113). The National Coordination of Quilombola Communities today consists of a wide variety of regional and local organizations, federations, and commissions, which continue to work autonomously and with the primary focus on their home communities (Souza, 2008, p.149). Today, CONAQ represents organizations in 25 states (Coordenação Nacional de Articulação das Comunidades Negras Rurais Quilombolas, 2011). Varying information exists about the current quilombola population in Brazil. While in 1988, expectations were on a low and in future decreasing number of communities of quilombos (French, 2003, p.49), the Palmares Cultural Foundation counted more than 2600 communities that officially registered as such until 2016 (FCP 2016). The procedure for the recognition of quilombola territories was based on ethnic expert assessments for a long time, until in 2003, Decree 4887 defined auto-identification as the legitimate basis of the recognition of quilombola communities and their territories. Apart from regulating Article 68, Decree 4887 also represents an attempt to implement basic precepts of ILO Convention 169 such as the auto-identification of quilombola communities (O’Dwyer, 2005, pp.107-108). The process as defined in Decree 4887 prescribes that an identity certificate should be issued after a collective statement of auto-identification by a community has been sent to the Palmares Cultural Foundation and after a representative visited the community to verify the claims. However, this certification is a mere recognition of belonging to

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the category “comunidades quilombolas”; recognizing the status of quilombola community via the Palmares Cultural Foundation is just the first step to receive a land title. A complex administrative path – in cases of federal lands that includes a case analysis by the National Institute of Colonization and Agrarian Reform (INCRA), for state lands the responsible agency on state level (Comissão Pro-Indio São Paulo, 2015) – leads to the reception of a land title for a quilombola territory. Current studies count between 150 (Comissão Pro-Indio São Paulo, 2015) and 207 existing land titles in the country Comissão Pro-Indio São Paulo (2013). The fight for the guarantee of land ownership of quilombola communities is today one of the major aims of CONAQ Costa. At the time of my field research, the seat of CONAQ in Brasília was situated in a commercial center in the heart of the city, at the margin of its monumental boulevard. From the outside, the building looks somewhat like the impressive shopping mall at the other side of the boulevard, but it is full of union offices, small chancelleries, and other official agencies. CONAQ was not on the list of the businesses displayed by the doorman, and he at first did not know who they are. During my first visit, CONAQ shared the office with the fast growing movement “passe livre” that would lead the famous demonstrations in June 2013 (Gohn, 2014) where thousands of young people paralyzed the major cities of the country for weeks, claiming a political reform in the country. I was looking for Martin, a member of the national secretary of the quilombola organization, when I dropped by the office for the first time. I wanted to interview somebody from CONAQ on the upcoming consultations that the Interministerial Working Group, especially the General Secretariat, was promoting in order to establish a participatory legislative draft for prior consultation. Martin was recommended to me by former interview partners in the General Secretariat of the Presidency (SGPR) as a known figure representing quilombola communities in several boards. Apart from the Working Group on prior consultation (GTI), he also participated in the National Commission for the Promotion of Sustainable Development of Traditional Peoples and Communities (Comissão Nacional de Desenvolvimento Sustentável dos Povos e Comunidades Tradicionais – CNPCT)10 . Martin was not in the office at the time, but there were some people to whom I started talking about the regulation process. At a certain point I asked if I could record the conversation, and Rodrigo, one of the younger leaders of the movement, agreed to have an interview with me. Later, I returned for two interviews with Martin.

10 | The CNPCT was created in Brazil in 2006 as a panel for debates and negotiations between representatives of traditional peoples and communities and government representatives.

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The Quilombola movement took part in the regulation process mainly through participation in what was named the “Extended Working Group” consisting of the members of the GTI and representatives of NGOs and social movements. Established to widen the activity of the official Working Group (GTI) in 2012, Rodrigo complains that this Extended Working Group barely met in 2013. Apart from these few meetings, CONAQ accessed what was being debated inside the GTI only via the agencies that work in continuous cooperation with the quilombola organizations: the Special Secretariat for the Promotion of Racial Equality (SEPPIR), the National Institute for Colonization and Agrarian Reform (INCRA), the Palmares Cultural Foundation (FCP) and the General Secretariat of the Presidency (SGPR). But even with these agencies lobbying quilombola claims, Martin also describes the situation within the GTI as difficult due to diverging institutional interests. Different from indigenous peoples, the quilombola communities are not explicitly mentioned as subjects of rights of the norms defined in ILO Convention 169, but had been dealt with as a group to be included since the beginning of negotiations on the regulation of prior consultation in Brazil. The quilombola communities’ adherence to the Convention was considered an “unwritten law” at the time of my research and the regulation process was regarded a way to legalize this assumption. The assertion of their inclusion in the group of “indigenous and tribal peoples” figures dominantly in Rodrigo’s as well as in Martin’s accounts. Rodrigo stresses the idea that both groups suffered the same injustice; because of this, they both have a legitimate claim to the rights set down in the Convention. He frames their relationship as “brotherhood” and claims that their common goal today would be settling the question of territories. Rodrigo introduces the third group under discussion, the newly established group of traditional peoples: “We don’t understand that its only us, the traditional peoples and communities also need to be consulted, and . . . but the state needs to recognize this. Moreover, we the CONAQ and the APIB, the official representatives of indigenous peoples, acknowledge that traditional peoples need also to be consulted about enterprises and projects.” (Interview, own translation)

This expression of solidarity with the claims for rights expressed by the very recently established group of traditional peoples11 appears repeatedly in the statements of CONAQ representatives, both in interviews as well as in public statements. Martin

11 | For an overview of the legal framework concerning traditional peoples and communities, see chapter 5.3.

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also expresses the opinion that traditional groups should be granted the right to prior consultation, but due to their different living conditions should be treated separately. He states: „However similar we are, the traditional communities of Brazil, they all have comparable facts, but we have very different realities and historic processes, so I support the idea to separate them, not to divide them. Separated, but walking side by side.” (Interview, own translation)

Still, even the recognition of quilombola communities to the group of subjects of rights of Convention 169 is unsure, as Martin underlines, since there is no binding national or international term that defines them more specifically than “indigenous and tribal peoples”. This fact would leave the decision in the hands and benevolence of judges, and in the regulation process Martin sees a possibility to escape the dependency on judiciary decisions. As a strategy in the regulation process, Martin states that a dialogue and united statement of the potential subjects of rights would have strengthened common claims but was missing in the debates on the regulation of ILO Convention 169. As examples of struggles that were fought separately but in solidarity, he mentions the protests against Ordinance 303 and Constitutional Amendment 215: “We the quilombolas are as much against [Ordinance] 303 as the indigenous peoples are. Both want to revocate the 303. Both want it archived. Both. But our political strategies were different. [. . . ] I always say that within an orchestra, different people play different instruments, but the same melody. This way, maybe we used different instruments, but the melody was the same. Maybe. Or maybe we played the same instruments. In this moment, we are with different instruments but with the same melody: That the 303 must be revocated, and that the [Constitutional Amendment] 21512 must be archived.” (Interview, own translation)

Rodrigo summarizes his concerns with regard to the meaning of Ordinance 303 for quilombola communities: “Ordinance 303, it is the premise, or how we would say here in the Brazilian judiciary system, it opens a precedent. Jurisdiction. And this is very difficult. Because if the

12 | For an explanation of abbreviations and law projects, see the list of abbreviations annexed to this work.

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same condition, is being . . . because the government always copies. First extends to one and later to others.” (Interview, own translation)

Commenting on the adoption of Ordinance 303, Rodrigo thus characterizes the state as the principal violator of the indigenous’ and quilombola’s rights. Martin in turn presents a more complex picture of the relation between the quilombola movement and the Brazilian state. The perceived violations of existing rights to selfdetermination and of the integrity of quilombola communities before development and infrastructure projects13 discredit the representativeness of the government for these communities and diminish the community members’ will to cooperate on discussions of the interpretation of rules that they see violated every day, Martin says. Both Martin and Rodrigo describe the government action as ambivalent. On the one hand, governmental representatives would arrive in the communities or nearby local centers to talk about rights; on the other hand, government agencies order projects and general actions that heavily threaten the survival of quilombola communities. Rodrigo illustrates this perception with the image of the government driving on a two-way-street in both directions: “So, it appears to be a two-way street, but in reverse direction, right? The government is going there to regulate, but on the other side, in another lane the government comes and the same government causes destruction, disrespecting everything that it is trying to regulate.” (Interview, own translation)

Combined with the government’s apparent ambivalence regarding their goals and actions, a mixed relationship of opposition and dependency that links the quilombola movement to the government is repeatedly described in all interviews. Especially executive power is perceived as possibly threatening the rights of quilombola communities, but being currently within the area of influence of the movement: “Because if you analyse it, all the Brazilian legal landmarks for traditional peoples and communities are being contested, do you understand? Except for Convention 169. Who is able to touch its applicability is the executive. Its the only branch that can

13 | The cases of the hydroelectric power plant Belo Monte, the aerospace launch center Alântara and the land use conflict between the Brazilian Navy and members of the quilombola community Rio dos Macacos are repeatedly mentioned during the different interviews in this context.

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tamper with its applicability. But we believe that the executive, in this very moment, is still a place where we can excert some pressure.” (Interview, own translation)

Of course the possibilities to exercise political pressure on the executive power are different in the case of an international convention than in national struggles because of the attention the issue arises in international panels. This visibility presents a factor to be considered by the government in response to national claims for the implementation of ILO Convention 169, different from conflicts including the implementation of national legislation. In Martin’s perspective, it was political pressure that initially triggered the regulation efforts as a whole. It was indeed CONAQ, among other representatives of social movements, which participated in the preparation of a shadow report for the Committee of Experts of the International Labour Organization (CEACR), contradicting several points in the official report from the Ministry of Labour and Employment (MTE) in 2008. Martin sees this as the initiative that led the state to negotiate with the quilombola movement. These expressions of opposition are contrasted by the strong financial dependence of the quilombola organization on external funding. The political movement of quilombola communities heavily depends on financial resources for their infrastructure and logistics, sometimes for their sheer existence. Therefore, the movement tries to seize meetings with the government for their own purposes: “The quilombola movement is made by warriors. We don’t have a budget guaranteed, within our institution, like a budget that allows us to do at least five assemblies a year. We don’t have this. [. . . ] [Our meetings are] many times patrocinated by the Brazilian state and we take this for us. For example a conference on the promotion of racial equality and we bring 50 quilombolas. Of course, the quilombolas will assembly for various days in order to define next internal steps and discuss how to improve our institution.” (Interview, own translation)

For the political leaders working on cooperation projects and programs with governmental institutions, this leads to difficult situations of divided loyalties, being in collaborative relations with some governmental agencies while on the other hand organizing protests against them. Martin puts it this way: „Many times I have to dialogue with the state in one way and then communicate with the communities saying: ‘Listen, we need to mount a picket on the highway.’ Find a way to hold president Dilma back. But on the other side, I say to the state: ‘Listen, you

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need to support a project for our capacity building.’ So, thats difficult.’ “ (Interview, own translation)

Through this situation, an ambivalent relationship of resistance and dependency characterizes the quilombola movement’s relationship to the state, which Martin considers as the main oppressor of the quilombola communities and their main ally at the same time. “[. . . ] Many times, the state is our principal opressor, but also, in many many times, our principal ally. Do you understand? So, I am saying to you that its difficult to lead, in the last assembly I said: ‘Listen, we are in a very delicate situation, sometimes we bite, sometimes we ease the fire.” (Interview, own translation)

This ambivalence was also perceivable during the consultations of quilombola community members’ that were part of the regulation process. The consultations addressed the legislatory draft for a legal regulation of prior consultation in Brazil as well as generally discussed interpretations of ILO Conventions 169. These consultations on consultation – I will henceforth use the term meta-consultations14 – were part of a strategy of the Interministerial Working Group (GTI) to implement the precepts of ILO Convention 169 already in the process of regulating prior consultation in the country. All future subjects of the Convention were planned to be consulted on the legislatory draft of a legal regulation. As already sketched briefly above, because of political conflicts and changes in focuses on the process, only quilombola communities were consulted. Martin describes the consultations organized to collect subsidies for legislative proposal as “strategic constructions” because the consultations on the regulation process are simultaneous with the presentation of the “Programa Brasil Quilombola” (PBQ) that deals with policies in favor of quilombola communities in Brazil, which are policies that mostly never arrive at the communities, he mentions. He said that the discussions of the Program PBQ before discussing the consultations were used to get their concerns off their chest first, in the sense of opening the floor for claims and complaints about the situation in the communities. When this was done and

14 | I use the term “meta-consultations” as defined by (Schilling-Vacaflor and Flemmer, 2013) to describe dialogues on the institutionalization of prior consultation. These dialogues implied high levels of abstraction to think and discuss consultations not with specific regard to a conflict or participating actors but within the general legal and discursive framework on indigenous and tribal peoples in Brazil.

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(formally) registered, the meetings proceeded to present and discuss Convention 169 and collect subsidies for a regulatory text afterwards. In general, Martin lauds the didactic methods used by the government representatives present in the consultations, some of them being part of quilombola communities themselves. Before and after these consultation meetings, CONAQ was able to hold intern meetings with the present quilombola representatives, discussing principally next steps and the role of quilombola communities in this process. For Martin, the most important result of the consultations was the chance to unite so many community members and spread the word on the existence and the content of ILO Convention 169 which is still unknown in many of the rural communities. The consultation meetings gave a forum to inform on this legal text: “Today, this is an official number, we have more than 12,000 quilombolas spread throughout Brazil that have direct access to the text of Convention 169. And thats very important, to give information. Information is power for these communities.” (Interview, own translation)

In general, Martin perceives that village leaders today start to be more aware of rights as instruments for security: “These days, if I arrive in a community, and I see that the people have Convention 169 as their bedside book, that the leaders debate on the text – many know parts of the text by heart -, this gives juridical security and many other things to the community: ‘Well, we got Decree 4887’ – ‘No, Decree 4887 is being contested in the Supreme Court’. ‘But we have article 68 of the Constitution’ – ‘No, but there is [Decree] 215 that transfers it’ – ‘But we have Convention 169’. So, if you have leaders that are able to reproduce this, automatically the debate with our oppressors changes profoundly.” (Interview, own translation)

This clearly changes the picture of negotiations with people that Martin not quite specifically describes as “oppressors”. He counts a knowledge circulation-success story of a gas pipe project being hindered by the spreading of information on rights defined in Convention 169: “In the meeting in Salvador, we met a gentleman, I don’t remember his name but I insist on sharing his name later on, a gentleman of 72 or 73 years already, that told he went to one of these early meetings that we had in Brasília, he went to that meeting and he took Convention 169 with him. There was a PAC project being debated, a gas

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pipeline was going to cross [one of the quilombola territories], and he stopped a PAC project simply with that text, without any juridical knowledge, saying this in front of the contractor: ‘Look, here it says that you need to hold a consultation, which you didn’t. Your project is going to be stopped.’ Of course the guys dived into the topic and realized that they were committing an error. The project is stopped until today, since over 3 years, and did not cross the territory of the community. So, I think that the meetings were important also in this sense, to promote the text, to speak about the rights that these communities have access to.”15

I cannot judge whether this gentleman indeed stopped a pipeline with the Convention’s text, but I think more important than this is the symbolic meaning of this narrative. Stories like this one serve as proof in Martin’s story that the interaction with the government and benefits gained from this process of debating Convention 169 go beyond the outcome of the regulation process, especially with regard to informing on the rights of “traditional people” in general. He sees options to bring new cases to consultation, for example the Rural Environmental Register CAR (Cadastro Ambiental Rural). Yet this process of empowerment via the consultations again was the result of a struggle with the government that had different plans, Martin reports. In his eyes, the government aimed to use the informative meetings to collect subsidies for a regulation draft on prior consultation in the country. The quilombola movement recognized this strategy, Martin says, and prevented its application. Benefits for both sides were settled in a negotiation, and the movement came out strengthened from these meetings. “The government wanted to leave that place with a consultation model [. . . ] that’s what they wanted. But this was impossible, because we knew that this was the strategy and we did not let this happen at any moment, that the strategy was applied. On the contrary, the state came back with information, but we also used the state, in order to inform our people. [. . . ] So there was an exchange, the state won on one side, but we also came out of this strengthened, because we got to know this text, something that the movement could not have done on its own.” (Interview, own translation)

Martin describes the effect of knowledge circulation as an important benefit for the

15 | PAC refers to the Brazilian Growth Acceleration plan (Plano de Aceleração de Crescimento), an ambitious development plan involving hundreds of infrastructure and energy generation projects.

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government, which has also been recognized as such by the General Secretariat of the Presidency who in his words is learning about the peoples of Brazil. “The Brazilian state is very uniform, the things are done thinking about one people, which is not the reality of the country, so the General Secretary is learning a lot with this, they told me this, to get to know this people, its reality, what is the journey of this people” (Interview, own translation)

In general, both quilombola leaders whom I interviewed see the regulation process critically, one year after its official start. Both leaders point to the necessity of respecting the temporality of the different involved groups and of the process itself, especially the time needed to consult in an adequate format and via proceedings adjusted to local realities. The international pressure put on the Brazilian government to come forth with a regulation cannot rush the process in their point of view. Yet Martin points to the possibility that a different government elected in 2014 would not even cooperate minimally in the way the present government does. This possibility makes a prompt solution attractive for the movement. A second point that the two leaders are in agreement about is the importance of in fact reaching the rural quilombola communities with the consultations. Meetings that happened within the context of the regulation procedure were mainly organized in capitals, or middle range cities, but there would need to be more assemblies that happen in the actual communities in order to effectively consult the members, especially in light of the bureaucratic challenges implied when organizing meetings outside of the communities that are financed by the government: Long processes and complicated structures (e.g. the necessity to issue fiscal notes) are the bases on which money, for example to mobilize and transport quilombolas community members to a meeting, can be passed on: “The state structure is not prepared to work directly with these communities, neither the quilombolas nor the indigenous, nor any community – none of those that live in the rural areas.” (Interview, own translation)

Rodrigo repeatedly claims a right to veto granted to all subjects of Convention 169, while Martin states several times that the regulation proposal of the government needs to be analyzed together with the lawyers supporting the movement and subsequently should be consulted with the affected right holders instead of a consultation on the Convention itself.

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When asked about their expectations towards the regulation process, Rodrigo points to good examples from other countries in Latin America (e.g. Ecuador), but hints to the specific context of development in Brazil that is taking an entirely different course than considered adequate by traditional people. Martin names legal certainty as a possible benefit of legal regulation but is doubtful as to whether this process will finish before a new government is elected, from which he expects no positive outcomes in general: “a next government will only receive and discuss with the big landowners”. To give the entire regulation process “the face of the quilombolas” is what Martin sees as the prime task of CONAQ in this context. He also relates to a recent case in which he thinks that CONAQ failed in this task, which was a consultation in São Paulo a few weeks before our meeting that caused fierce contestations from the support groups (NGOs) and some quilombola representatives. In this case, Martin reports, a preparatory dialogue with the participants and the mobilization of “the right people” by representatives of CONAQ was deficient. On the side of the support groups (“assessors”), this led to wrong expectations of consultations being a place to discuss daily problems as well as to a “climate of war”. Martin recalls a culmination of what was going wrong when one of the assessors tried to correct a quilombola representative: “[. . . ] to the extent that a quilombola community member took the microphone and gave a speech and somebody who was not a community member said ‘no, he wanted to say . . . ’ Do you understand? This is very bad, when this happens.” (Interview, own translation)

Despite negative experiences with some consultations, Martin judges participation and negotiation as the better strategy for his claims: “We don’t believe that when we withdraw from a dialogue we do this to secure rights, not to dialogue with the convention does not mean I am securing rights.” (Interview, own translation)

As stated above, Martin focuses more on the benefits for the development of the movement itself. He directly compares this strategy to the strategy of the indigenous movement, whose inclusion in the Convention’s subject is out of question. For the indigenous movement, Martin sees it easier to use a blockade strategy in order to carry through their claims since their adherence to the group of legal subjects of the

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Convention is out of question, meaning that their participation will be claimed by national and international organizations. Besides the indigenous movement’s organizations, CONAQ adds to the complexity of the field of actors involved in discussing prior consultation in Brazil, showing remarkably different features and experiences with regard to the interpretation of ILO Convention 169 as well as with regard to their organizational structure and relationship towards governmental agencies.

5.3. T RADITIONAL THE CNPCT

PEOPLES ’ REPRESENTATIVES

–

The group of traditional peoples and communities (povos e comunidades tradicionais – PCTs) is the third social category that was initially under consideration of being included in the group of right holders of ILO Convention 169 in Brazil. Only recently has this collective identity category been gaining force in the debates on social and cultural rights for groups in Brazil. (Barreto Filho, 2009) describes the origin of the current concept of traditional peoples and communities as based in the process of rethinking on an international level the problem of human groups living in areas designated for environmental conservation. Leaving behind the idea of environmental protection as opposed to human occupation, “traditional peoples“, their knowledge and lifestyles were re-conceptualized as possibly co-existing, or even co-creating many ecosystems to be protected (Barreto Filho, 2009, p.105). In this way, international conservation organizations discussed rights for traditional communities in the 1980s on the condition of their contribution to environmental protection (Barreto Filho, 2009, pp.101-103). These debates materialized in the conventions and international agreements adopted in the wake of the Eco-92 Conference in 1992 in Rio de Janeiro. The Convention on Biological Diversity (CBD) was one prime example of the conceptual convergence of conserving biodiversity and fostering sustainable development of indigenous as well as traditional peoples within the international discourse on environmental issues (Cunha and Almeida, 2000, p.322). In Brazil, the time of the Eco-92 was also the peak of one of the first social movements being addressed by and claiming adherence to what constitutes the conceptual core of the idea of “traditional peoples”: the movement of rubber tappers. This movement was represented by the famous figure of Chico Mendes, who initiated a political union called Alliance of the Peoples of the Forest (Aliança dos Povos da Floresta). This alliance held a large encounter in 1989, in Rio Branco, Acre, where they presented their claims to territorial and social

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rights. The Alliance integrated various existing social movements such as the indigenous movement via UNI (Cunha and Almeida, 2000, p.321) and (Pimenta, 2007, pp.639-641). The constitution of this first movement shows the significant openness of the category of traditional peoples and communities. Since its’ inception, the category has been used in order to imply the connection of traditional peoples’ lifestyles with the environment. Theoretically, the term comprises the categories of indigenous peoples and quilombola communities, although the term “traditional peoples” is based less on the link of cultural difference and special rights than the current notions of “indigenous peoples” or “quilombola communities” in Brazil (Barreto Filho, 2009, p.113). Baretto calls the category an umbrella term that “actually subsumes all of those categories – and others besides – whose cultural distinctiveness is expressed in terms of specific territorialities.” (Barreto Filho, 2009, p.96). Furthermore, the vindications of the rubber tappers and the Alliance of the peoples of the forest were also clearly focused on territorial claims that were legitimized by the confirmation of the territorialities mentioned by Barreto. Thus, they could rely on the Federal Constitution that granted land rights to the occupants of “terras tradicionalmente ocupadas” (Almeida, 2012). The category of traditional peoples and communities experienced institutionalization16 with the creation of the National Commission for the Promotion of Sustainable Development of Traditional Peoples Communities (CNPCT) in 2004. The Commission was re-adapted after public hearings in 2006 and became a forum for debate between representatives of traditional peoples and communities and government representatives. Within the Commission, a National Policy for Sustainable Development of traditional peoples and communities (Política Nacional de Desenvolvimento Sustentável dos Povos e Comunidades Tradicionais – PNPCT) was worked out and adopted in 2007. The decree installing these policy packages also contains elements delineating a definition of the group of traditional peoples and communities in Brazil: [. . . ] culturally differenciated groups that recognise themselves as such, who possess own forms of social organization, who occupy and use territories and natural resources

16 | Barreto mentions other, earlier institutionalizations with the creation of the National Centre for the Sustainable Development of Traditional Populations (Centro Nacional para o Desenvolvimento Sustentado das Populações Tradicionais – CNPT) within the Ibama or the adoption of the National System of Conservation Units (Barreto Filho, 2009, pp.120-121). I omit these processes here because they are partial definitions (CNPT) or definitions later being vetoed (SNUC).

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for their cultural, social, religious, ancestral and economic reproduction, using skills, innovations and practices generated and transmitted through tradition. (February 7. Decreto N◦ 6.040)

Basically four elements constitute the definition of traditional peoples and communities in Brazil today: 1) they differentiate themselves culturally from other groups; 2) they recognize themselves as traditional peoples or communities17 ; 3) they are described to have their own forms of social organization; 4) they depend on their territories for their cultural, social and economic reproduction. The Brazilian anthropologist Alfredo Wagner de Almeida was named in several of my interviews as having had an enormous influence and authority on the definition of the category of traditional peoples in Brazil. His project “Nova Cartografia Social da Amazônia” is repeatedly mentioned as generating public attention for traditional peoples and communities in the Amazon. In a preface to (Neto, 2007) Direito dos povos e das comunidades tradicionais no Brasil – Declarações, Convenções internacionais e dispositivos jurídicos definidores de uma política nacional, Almeida gives an open list of groups that are considered part of the traditional people of Brazil: [. . . ] indigenous peoples, quilombolas, riverside communities, babaçu coconut shellers, rubber tappers, wood gatherers, pasture grazing communities, pomeranians, gypsies, inhabitants of the Cerrado, tidewater settlers, piaçabains, nonindustrial fishermen, inhabitants of the Pantanal, afro-religious and other emerging social subjects, whose collective identities are based on territorial rights and a cultural self-conscience. (Almeida, 2007, p.7-8)

The question of the rise and definition of the collective identity category of traditional peoples and communities in part reflects discussions on the definition of the category of indigenous peoples on an international level (Cunha and Almeida, 2000). The openness of the category is seen in the literature as an opportunity as well as a challenge for its institutionalization and for its utility in the struggle of social move-

17 | This latter point is clearly derived from the right of self-identification laid down in ILO Convention 169. In the literature, the ratification of ILO Convention 169 in 2002 is mentioned as crucial for the integration of the criteria of self-identification in the national body of cultural rights for traditional communities (Almeida, 2007, p.9), (Lobão, Ronaldo, 2012, p.77-78). Article 1§2 of Convention 169 states: “Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply” (ILO, 1989. Indigenous and Tribal Peoples Convention 169).

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ments (Cunha and Almeida, 2000). The many facets of this situation also show in the process of regulating ILO Convention 169 in Brazil. In the regulation process, the presence of leaders representing specifically traditional peoples and communities as a group of its own apart from indigenous and quilombola groups was very marginal. Their representation occurred more via NGOs, academics such as Alfredo Wagner de Almeida, and Ministries defending what was considered to be their position and their rights. Being officially recognized as part of “groups with cultural rights” so recently, no united movement of the different groups has yet been founded, and I did not interview leaders of particular movements. When appearing in seminars connected to prior consultation, the few representatives of “traditional peoples” basically stressed the necessity to be informed more and have time to understand and learn about mechanisms that are able to support them (such as Convention 169), their claims to livelihood and their safety. In order to debate the treatment and participation of traditional peoples and communities in the regulation process and because of the lack of a unified national movement of these peoples, the CNPCT was designated as a partner of dialogue for the Interministerial Working Group. Although the direct account of leaders of traditional communities will not be present here, including the perspective of a member of the Commission on Sustainable Development of Traditional Peoples and Communities (CNPCT) who represented traditional peoples in the administrative procedure is beneficial to this analysis because its presents a closer account on the process of negotiating legitimate legal subjects of Convention 169. Kamila represented the Ministry of Social Development and Fight Against Hunger in the Interministerial Working Group (GTI) as well as in the Commission of Traditional Peoples and Communities (CNPCT). She works as a Secretary advisor in the MDS. I came to meet her in search for information on the dialogue between traditional peoples and the government on the regulation procedures. Kamila describes traditional peoples as a kind of umbrella term that includes indigenous and quilombola peoples and communities. However, she also identifies a group of approximately 50 “segments” that do not unite in a single movement and are not well known by the governmental agencies. It is very much through academic research that the government and the responsible agencies are getting to know the traditional communities, Kamila ads. Research projects such as Alfredo Wagner’s “Projeto de Nova Cartografia Social” produce data and knowledge on these people and foster awareness on existing rights among these groups. Apart from the questions about the actual identity of traditional peoples, the question whether traditional communities were to be considered subjects of rights of Convention 169 by the Brazilian administration was unclear in 2012. Kamila sees

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the regulation process as one means of pushing forward a definition of “tribal peoples” in the country which includes the group of traditional communities. “If you take the definition of tribal [peoples] that is to be found in Convention 169, it is applicable to our traditional peoples and communities. There is in fact still no document by the Brazilian government or the ILO that they are subjects of rights, this is a construction arising from this process of regulation, and this is how they are gaining more visibility. There is a series of policies from 2003 on that principally gives more visibility to these segments.” (Interview, own translation)

Very soon, indeed, the initiative to include the group of traditional peoples was dropped by the GTI. My interview partners in the General Secretariat of the Presidency told me that there was an attempt to incorporate the group of traditional peoples in the debates of the Working Group, but that the concept was so large that it “scared everybody”. In other words, defining rights to participation for a group of people as open as the traditional peoples and communities of Brazil involves a high degree of uncertainty for planning processes18 . Kamila describes the Commission on Sustainable Politics for Traditional Peoples (CNPCT) as part of the series of policies that try to enlarge the visibility of traditional peoples in Brazil. As mentioned above, the CNPCT was called to represent the social movement of traditional people in addition to the facilitation committee of indigenous and quilombola representatives that should co-construct and debate the regulation process with the Interministerial Working Group. This idea arose during the first official meeting of government and civil society during the opening seminar in Brasilia in March 2012. The Commission was named principal representative of the group of traditional peoples since it consists of 15 leaders of traditional peoples, including quilombola and indigenous peoples. The latter group actually has another committee at their disposal to discuss politics that concerns them, which is the already mentioned National Commission for Indigenous Politics (CNPI)19 . Kamila describes the two Commissions (CNPI for indigenous peoples and CNPCT for traditional peoples) as actually fulfilling the same tasks and being partly overlapping since indigenous peoples are represented in both.

18 | There were a small number of meetings planned to discuss the regulation process, but all of them were canceled. 19 | There were a small number of meetings planned to discuss the regulation process, but all of them were canceled.

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When asked about a possible strategic union of these groups, Kamila answers that she sees the reasons for the absence of a united movement of the subjects of rights of Convention 169 – quilombola, indigenous, and traditional representatives – in the form that the agrarian reform is realized these days. Many groups that are defined as “traditional peoples” in the strict sense depend on programs and projects that are based on the core family, while territorial rights for quilombola and indigenous peoples are mostly defined in terms of communities or larger collectives. Comparing the different movements, Kamila also stresses the disparity in experience, knowledge and degree of organization between them: traditional peoples figure in the lower end with participation in political discussion forums just starting in the past years, while Kamila sees indigenous peoples with their much older movements as the more powerful movement. This might be the reason, Kamila continues, for a fear of the loss of rights in this negotiation on the side of the indigenous peoples. When the group of beneficiaries is widened to a large extent, of course it becomes ever more difficult to make actors with contrary interests accept compromises. The other two groups, she states, have more to win with a collective regulation of prior consultation. Kamila also describes the strategy of withdrawal of some indigenous organizations from the negotiations with the Working Group after Ordinance 303 was published. This was related to events in the above-mentioned Commission on Policies for Indigenous Peoples CNPI, when the indigenous members of the Commission also decided to withdraw from the dialogue because negotiations on demarcations of indigenous territories were not going to their satisfaction. Some of these “committed leaders” of the CNPI, as Kamila calls them, had been called back to the dialogue by the debates on the regulation of Convention 169. Especially with these leaders, conversations have been going slowly and difficultly since the publication of Ordinance 303, tells Kamila. She recounts that the Ministries had been surprised by the publication; no previous dialogue had announced this step of the Attorney-General (AGU). She sees the possibility of re-establishing a dialogue between indigenous and quilombola communities in leaving aside the discussion on the Ordinance, and she sees an opportunity to take better advantage of the slowdown of the process to capture resources by testing the regulation design with “pilot meetings”. She says that she believes in the regulation process. Traditional peoples and communities figure as marginal actors in the regulation process. Nevertheless, the initial attempt of including them stimulated the debate on a definition of “tribal peoples” and of the category itself, as well as on the opportunities and challenges of the formation of a larger movement of “traditional peoples” that is understood as including indigenous and quilombola communities.

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5.4. S TRATEGIES

OF THE SUBJECTS OF RIGHTS AND THEIR REPRESENTATIVES

This first chapter of the ethnographic section has shown that the three groups of possible subjects of rights of Convention 169 in Brazil started from very different points in the negotiations entailed in the debates on a legal regulation of the right to prior consultation. These positions seem to have shaped their strategies. Indigenous peoples, officially recognized as beneficiaries of the rights defined in ILO Convention 169, already had a long trajectory of articulating a political movement that represents their vindications when the regulation procedure was initiated. It becomes very clear from the presented material that representatives of indigenous organizations perceive themselves as “actors” in the regulation process and not as passive beneficiaries of potential rights. As actors, rights manifested in laws are regarded as weapons in political struggles, either in claiming their implementation or in using blockades as pledges in order to negotiate the outcomes of parallel conflicts. Also supporting this argument is the critical stance that the interviewed leaders took towards Convention 169. Tonio and Rosana state that there is no right to veto which is guaranteed in the convention, but in their point of view, indigenous people should have this right, and therefore they consider the Convention insufficient as unique source of rights. Also, the reproach that civil society organizations would co-opt indigenous community members implies sensitivity towards actions that could possibly limit their full range of actions as political representatives of the indigenous movement. The indigenous movement in Brazil looks back on a series of historic accomplishments in its fight for self-determination. A set of rights on territories and the recognition of cultural difference of indigenous peoples are laid down in the Brazilian Constitution as well as in international law to which Brazil is signatory. “Povos indígenas” is an established political and legal category in Brazil, endowed with responsible governmental institutions that are in charge of watching over the implementation of the above-named rights and civil society advocacy groups. Claims by the indigenous movement to implement prior consultation in Brazil precede legal regulation and have forums other than the Interministerial Working Group. The interest of the movement and the organization of indigenous peoples in a discussion of the right to prior consultation within that framework of the creation of law can be described as primarily avoiding any cut in the existing national framework of rights. Perceiving the pressure that international attention on the regulation process (e.g. by the ILO Expert Commission – CEACR) generates for the Brazilian government, indigenous organizations consciously used strategic withdrawal from the participa-

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tory process of debating the regulation of Convention 169 as an attempt to enforce the removal of legal projects that they perceive as threats to their rights. However, looking more closely at this tactic, it seems not to have reached the respective actors within the government with the desired force. The governmental agencies that pursue political paths by which the indigenous movement felt threatened – in this case, the AGU which published Ordinance 303 that directed all attorneys of the AGU to apply the Supreme Court’s restrictions on the indigenous territory Raposa/ Serra do Sol to all indigenous territories in the country – is not directly put under pressure by the withdrawal of the indigenous movement from a participatory process led by the General Secretariat of the Presidency. On the contrary, it threatens the realization of a political project of the General Secretariat who is a part of the government that focuses on dialogue and integration of the social movement’s claims and is from within the government already under pressure because of the requirements that this mission creates for the other Ministries. From the side of the indigenous movements, the obstructive strategy seems to have been more an option chosen by the national representation than by regional organizations. As a whole, the strategy became questioned after some time and Rosana points to the necessity of developing alternatives instead of continuing to obstruct the regulation of a law that could favor indigenous peoples after all. It is very interesting to notice that while participation has always been one of the major claims of the indigenous movement both in Brazil and worldwide, participatory spaces can also be perceived of as dangerous if they do not provide the conditions necessary to accept and agree to the outcome of negotiations as binding. This blockade strategy implies the undeniable legitimate right of indigenous peoples to the precepts defined in the Convention. In the literature, the process by which these rights are created is seen as partly linked to a discursive correlation of cultural rights and environmental protection. Especially Alberto strongly stressed the connection between ecologic ideas and indigenous peoples. He participated most actively in the building of the indigenous movement in the 1980s, a time in which the Colombian anthropologist Astrid Ulloa locates processes of “matchmaking” between global environmental networks and Latin American indigenous movements (Ulloa, 2005). This, of course, implied processes of framing (or representing) images of indigenous peoples as ecological natives in order to gain global support for indigenous rights. While Alberto strongly emphasizes this idea, the younger leaders seem to be less interested in this discursive strategy. For the quilombola communities, the picture was very different. Although they were publicly recognized as legal subjects of ILO Convention 169, the government only expressed approval without taking much significant action through formalizing

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the standards. In this context, the question of the conceptual foundations for an adherence to the group of subjects of rights is raised and in most of the accounts linked to the definition of a wider collective social category that refers to “traditional peoples”. Nevertheless, a united group of “subjects of rights” is not a realistic aim for quilombola leaders, as their different historic trajectories led to different relations with the state, expressed in specific legal regulations, such as for the demarcation of territories. The political movement defending rights of quilombola communities in Brazil is much younger than in the case of indigenous peoples and lacks their financial support. Governmental funding is named as one major source of financing for the CONAQ and for countrywide meetings of the regional quilombola organizations. In the face of this situation of legal uncertainty and financial dependency, the movement opted for a bargaining strategy that might be best named “give a little – gain a little”: The CONAQ engaged in mobilizing quilombola leaders for the consultative meetings that the General Secretariat wanted to organize within the regulation procedure, while these meetings were used for the dissemination of knowledge on the existence and wording of Convention 169 and the contained rights for quilombola communities. This rather instrumental interest in the regulation procedure appears to be the main driving force for the continuing participation of the quilombola movement in the regulation procedures. Furthermore, the CONAQ senses the political climate in Brazil as developing in unfavorable ways and tries to make binding deals with the current government, expecting harder times to come for the vindication of their claims. As for the third group of traditional communities, this wide collective social category has been established only very recently in Brazil. As a political-legal category, it is still under construction, and it brings both opportunities and uncertainty for the peoples addressed by its definition as well as for the interaction with them. An articulated political movement of traditional communities on a national scale does not exist, and within the process of regulation of prior consultation, the CNPCT, which is part of a public policy, was chosen to represent these communities. No agency of its own was given or is publicly claimed by traditional peoples and communities in the context of the regulation of ILO Convention 169. Notwithstanding this representation via the CNPCT, the issue of integrating traditional communities in the regulation process was dropped, apparently due to the unsure scope of the concept. At the same time, Kamila presents the term as a kind of conceptual umbrella for all groups that possibly fall under the category of subjects of rights of ILO Convention 169, including indigenous peoples and quilombola communities. Theoretically, this would offer the possibility to form a union, at least with regard to territorial and participation rights being discussed in the Convention. But the legal as well as political framing of the rights of these three groups seems to impede such a union. Especially indigenous

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peoples have achieved many of their victories under the banner of indigeneity and seem not interested in losing this important vocabulary as well as symbolic universe, while of course quilombola and other traditional groups would have to gain a great deal of rights by being considered as part of a group to which indigenous people adhere. In general it can be stated that while ILO Convention 169 shaped the historic process of the establishment of these three collective identity categories, the adherence of at least two of them to the group of beneficiaries of the Convention is contested in the process of its legal regulation. As for the regulation process as a whole, an important characteristic seems to be the entanglement of the various arenas of interaction between the different movements and the government that makes it difficult to single out one of these processes because they seem to influence each other heavily. Specifically, trouble in the negotiations in the different Commissions affects the dialogue on prior consultation as well as the publication of an ordinance only partly (and not openly) related to the topic. In order to understand one “setting”, it seems that one has to understand the situation of dialogue in which the actors of the regulation process are involved in general. During our interview, Kamila tried to open up the different arenas of traditional peoples and pointed to the importance of constructing a dialogue of “good faith” in all of these arenas in order to develop participatory public policies. The National Commission for the Promotion of Sustainable Development of Traditional Peoples and Communities (CNPCT) and the National Commission for Indigenist Politics (CNPI) are two examples of forums in which topics related to prior consultation – such as the dialogue of the indigenous movement with the government – were negotiated in parallel. Apart from the definitions and strategies of the subjects of rights of Convention 169, two problems of interaction occupy a prominent place in the accounts. First, there is the problem of representation within the social movements of indigenous peoples and quilombola communities. This topic presents itself in many ways in the interviews. On the one hand, respondents relate to the struggles to establish and maintain a system of representation within the social movements in Brazil, giving account of the different realities of life and representational cultures in the different groups. Representative organizations also concur with each other, and new groups struggle for representative power in a wide range of forums and committees. On the other hand, there is the problem of representation by support organizations and their relationship to the groups they advocate. In several interviews, respondents mentioned the thin line between supporting indigenous peoples and quilombola claims and disciplining their voices, in which the behavior of supporting NGOs is perceived as sometimes surpassing the limits of support and taking over the role of protagonists.

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The question of representation is already debated in anthropological literature on the topic (cf. e.g. (Ramos, 1994)), and it is enacted in many ways, playing with this public discourse, as shown below in a short scene observed in a public discussion of prior consultation. During my research, many public discussions were held in Brasília on the question of development projects and participation. The Light Institute (Instituto Acende) is an organization of the Brazilian Electric Sector. In November 2012, the Institute called for the 8th Forum – an event series on controversial topics related to the electric sector – with the title “Indigenous Peoples and the Electric Sector”. The group of participants of the roundtables on consultation and repartition of benefits consisted of a representative of the Ministry of Mines and Energy, a renowned representative of the Ministry of Foreign Affairs, an anthropologist from a federal Brazilian university, an indigenous leader, and a director from GDF SUEZ Brazil, which is a French multinational electric utility company. A moderator, Sidney, hosted and led the discussion. Everybody on the roundtable had the chance to present his or her perspective on prior consultation in Brazil in an opening round. I had the impression that many expectations were directed at the indigenous speaker Taravy Kayabi after the speakers before him gave an elaborate presentation of the need for development in which they basically stressed the ease of coming to terms with affected groups. Taravy erroneously thanked the government for one more chance to be present at events the government considers important and for and presenting the fight of his people against several hydroelectric power plants in Mato Grosso (the moderator corrected him by saying that the Institute was not part of the government but brought different actors together.) Taravy then made a point of stating that he was not against development if everybody would grow together. In the audience, many representatives of indigenist organizations20 were assembled, sitting together, chatting, and commenting on what was said. An exchange of blows was in the air when the moderator opened up the discussion by distributing little papers to note questions. The moderator was asking several questions to the guests, and finally one to Taravy Kayabi: Sidney: “Now we have a question here for Taraví Kayabi, its from Lu-

ciana, she says the following: ‘Why is the demonstration of insatisfaction with the FUNAI, the government, public health, land demarcation processes

20 | “Indigenist organizations“ is used here to describe a group of mostly NGOs fighting for the implementation and retention of legal rights for indigenous peoples. For a more sophisticated picture of the history of indigenism as a political ideology in Brazil, see chapter 5.4.

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discharged on the entrepreneur if it is principally the power plant that brings regional development?’ Did you understand her question? What I understood is that she asks that when insatisfaction is discharged on the entrepreneur thats somehow injust, because it is the [power] plant that brings regional development. Taravi: Yes, I think in many cases the indigenous, especially the chiefs, they

are more traditional, they are pressured very much by the organizations that are against the project. So they blame the entrepreneurs. I think that this happens a lot of the times with the chiefs, right, with the more traditional chiefs. Many times we end up not really following and then we support the more traditional chiefs in the community because many times we, that are more . . . closer to the government, they think we are already in favour of [the project], so we support the chiefs many times. Thats what I think is happening very often. Sidney: Interesting, that you are so frank about this matter, very transparent

way of answering this.” (Field notices, own translation) In this excerpt, the moderator enhanced the questioning of the protest Taravy presented against projects on his people’s territory – at least they bring development and other important benefits that Taravy also mentioned as missing: education and health care. Taravy in his answer blames “the traditional” leaders, their lack of knowledge, and the pressure exerted by organizations mobilizing against the kind of enterprises typically interfering in indigenous territories – the indigenist organizations were alluded to by Tarvavy’s statement, but not directly addressed. Whispering in the room also suggested the indigenist organizations felt referred to. After Taravy’s response, the moderator complimented him for his critical standpoint. A jolt went through the audience when Taravy made his statement, and devastating comments on this situation arose during the coffee break. Some commentators called him the wrong representative of indigenous peoples. This piece of field material shows the ambiguous relationship indigenous groups have towards the “indigenist groups” in Brazil, a relationship of both empowerment and tutelage, as outlined above, in which shifting power relations of defining the “correct” indigenous representative as well as playing with the well-known reproach of paternalism constitute just two examples of a wide repertoire of strategies of interaction. A third aspect of issues of representation would be the ambivalent relations that the political representatives of legal subjects seem to have to the state agencies. For example, the ambivalent relationship of the CONAQ with the state, which is at times

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resistant, and other times dependent, emerges from the situation of scarce resources. In the context of defining a new format of dialogue between these actors, issues of representation in the field of prior consultation question who should be legitimized to speak in the name of whom during the consultations. On the one hand, holding large and numerous meetings in remote territories in which community members can appear and speak for themselves is often described as an overdrawn demand from the perspective of governmental institutions. These institutions point to the passage in Article 6 of ILO Convention 169 that calls for consultations through “representative institutions” (ILO, 1989. Indigenous and Tribal Peoples Convention 169). On the other hand, political leaders and support organizations consider a mere consultation of the representative bodies of the subjects of rights in Brasília to be an inadequate implementation of the right of participation and self-determination as defined in the same Article of Convention 169. Connected to these problems with the structures of representation are the moments in which representation mostly occurs, situations of participation in public policies or decision making processes in general. Here I would like to address these challenges of interaction. As stated above, the movements of legal subjects took on very different strategies when facing the conditions and possibilities to participate in the regulation procedure. While the indigenous movement opted for an exit strategy, using other political projects as bargaining chip for their adherence to the process, the quilombola movement decided to continue to debate the regulation of Convention 169 with members of the Interministerial Working Group (GTI). The arenas for these moments of participation in the regulation procedure apart from meetings in Brasilia were the consultative regional meetings organized in cooperation with the “Programa Brasil Quilombola” (PBQ). Nine of these meetings happened in different states; I participated in one meeting in Montes Claros, Minas Gerais. From interviews with the governmental bodies that organized and participated in these events (mostly SEPPIR and SGPR) as well as reports from other participants, it becomes clear that the main procedure of all these meetings was to present ILO Convention 169 and its history in Brazil, and afterwards discuss ideas for defining the character of prior consultation of quilombola communities in small groups in order to create subsidies for a regulatory draft. My interview partner from the CONAQ, Martin, evaluated these meetings rather positively in terms of the opportunity to gather many leaders and discuss Convention 169 and the rights contained in it, as well as more general issues of the quilombola movement. However, Martin also described the struggle to define the character of these meetings, as they were constructed from a mix of informative and deliberative meetings, simultaneously presenting the Convention and its content to many leaders for the first

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time, and immediately asking them to interpret and appropriate this right. As one of the participants in Montes Claros stated, many of the community representatives did not know to read Convention 169. Some of the represent communities did not even dare to declare themselves as quilombolas but were asked at this event to discuss the application of the convention. This situation touches immediately on the question whether “informed consent” as basic goal for consultations implies a separation of the processes of information and deliberation in two different moments of participation21 . Moreover, the meeting in Montes Claros made clear that the concern of many of the quilombola leaders was first and foremost with any kind of access to decision making on their territories. Discussing procedural questions of how to best structure and organize consultations appeared for many of them as a waste of time since these meetings were not happening at all. A large part of the two-day event was taken by calls for urgent action on the behalf of local communities’ struggle to maintain their territories or gain access to basic state services. This moment of getting daily problems off their chest in front of federal governmental representatives coincided with the local communities’ expressions of great frustration with the sluggishness of bureaucratic processes concerning the implementation of right for quilombola communities by the present leaders. After these moments of “venting”, and a presentation of the Convention’s precepts by Tácio (in the name of the General Secretariat), groups were formed to collect ideas answering three guiding questions: What are the principal threats to the communities? How do the communities overcome these threats (with which instruments, with the help of which institutions)? And third, how can Convention 169 help in this process? What then happened in the groups and was finally compiled in the plenary was a collection of experiences with participative processes, especially with local administrators and enterprises. As for the moderator and promoters’ conduct of the discussion, the talks were obviously limited by the general level of knowledge on the character of the rights defined in Convention 169. Sometimes the talks even switched to asking what the communities would like to have. The question of veto, for example, was discussed without once considering its legal possibility, not by looking in the text and interpreting it, nor by consulting legal experts on the point. The proposals in the final round of the session very much reflected the blurriness of roles and possibili-

21 | There was a plan to rediscuss and consult the integration of the suggestions arising from these encounters in subsequent meetings, so the process of deliberation was not planned to be entirely limited to these meetings. Still, the consultations of quilombola leaders represented a mix of informing and interpreting the Convention’s principles.

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ties of the event. Thus, at the same time that knowledge circulation was described as a large problem at all levels – the level of communities as well as at state and municipal levels of administration – the difficulties of addressing the right persons and taking into account their current situation as well as past experiences became quite visible. The event in Montes Claros showed the difficulty of participative processes whose limits are not being defined clearly: The lack of a definition of the questions under consultation in this meeting led to a situation of creating apparent wish lists that were accepted and annotated during the events but have little hope of being integrated in legal regulation. All these aspects present the varieties of difficulties faced when trying to organize consultations as processes of reciprocal knowledge exchange and dialogue instead of events organized around the dissemination of knowledge.

6. The Interministerial Working Group (GTI) – the legislators

In this chapter, the group of actors I will introduce are the members and the collective of the Interministerial Working Group (Grupo de Trabalho Interministerial – GTI) established in January 2012 by an Interministerial Ordinance published jointly by the General Secretariat of Presidency of the Republic (SGPR) and by the Ministry of Foreign Affairs (MRE) (January 21. Portaria Interministerial N◦ 35). In the Ordinance, it states the task of the Working Group: [. . . ] the purpose to study, evaluate and present a draft for the regulation of Convention N◦ 169 of the International Labor Organization on indigenous and tribal peoples, regarding the proceedings of prior consultation of indigenous and tribal peoples. (January 21. Portaria Interministerial N◦ 35, own translation.)

For this task of producing a proposal to regulate ILO Convention 169 with regard to prior consultation, the Ordinance conceded a period of 180 days to the Working Group. The Ordinance further assigned 22 governmental agencies to become members of the Working Group, naming chair holders and substitutes representing each entity, and nominated the General Secretariat of the Presidency and Ministry of Foreign Affairs as head of the Working Group1 . After one year, in February 2013, a new Ordinance named other representatives for some Ministries, extended the time frame

1 | The 22 entities were: Ministry of Planning, Budget and Management (MP), Ministry of Defense (MD), Ministry of Health (MS), Ministry of Transport (MT), Ministry of Mines and Energy (MME), Ministry of Justice (MJ), Ministry of the Environment (MMA), National Department of Infrastructure of Transport (DNIT), Civil Office (Casa Civil), Ministry of Social Development and Fight Against Hunger (MDS), Ministry of Foreign Affairs (MRE), Ministry of Labor and Employment (MTE), Special Secretariat for the Promotion of Racial Equality

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for the Working Group until January 2014, and transferred the power of integrating new agencies in the Working Group to the Executive Secretary of the General Secretariat of the Presidency (February 20. Portaria Interministerial N◦ 9). The Ministry of Culture (MINC) and the Chico Mendes Institute for Biodiversity Conservation (Instituto Chico Mendes de Conservação da Biodiversidade – IcmBio) were included soon after this. The Working Group’s mandate came to an end with the passing of the Ordinance’s deadline in 2014 without the publication of a regulatory document. This Working Group was a closed space of inner-governmental meetings in which I could not participate. There are registries of the internal debates within the group and oral reports of the members of the GTI, of which I interviewed 10 representatives. I repeatedly interviewed representatives of the General Secretariat of the Presidency that figured as head and major organizer of the regulation process. Because prior consultation in the context of licensing procedures for infrastructure and energy projects was very much debated at the time of my fieldwork, I contacted the Ministry of Mines and Energy (MME), the National Department for Transport Infrastructure (DNIT), and the Ministry of the Environment (MMA). With regard to the groups to which the regulation should apply, I approached the National Indian Foundation (FUNAI), Palmares Cultural Foundation (FCP) as well as the Commission for Traditional Peoples and Communities (CNPCT), whose representative in this case was employed by the Ministry of Social Development and Fight Against Hunger (MDS)2 . During the regulation process, the institutions dealing with quilombola communities gained more importance since the consultations on a regulatory norm were realized with them. In order to know more about these events, I approached the Special Secretariat for the Promotion of Racial Equality (SEPPIR). SEPPIR was primarily responsible for organizing the meetings with quilombola communities in 2013/2014, discussing two primary dimensions: the combination of public policies under the name “Programa Brasil Quilombola” (PBQ), and interpretations of the right to prior consultation as defined in ILO Convention 169. I also was able to participate in some public discussions and presentations of the Working Group, mainly led by Tácio, a young anthropologist working in the General

(SEPPIR), Palmares Cultural Foundation (FCP), National Indian Foundation (FUNAI), National Institute of Colonization and Agrarian Reform (INCRA),Ministry of Education (MEC), Brazilian Institute of Environment and Natural Resources (IBAMA), Secretariat for Human Rights of the Presidency of the Republic (SDH), General Secretariat of the Presidency of the Republic (SGPR), Office of the Attorney General (AGU) and the Ministry for Agrarian Development (MDA). 2 | The account of the MDS I presented in chapter 5.3 on traditional communities.

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Secretariat of the Presidency. In most of the public events I attended, he represented the GTI, explaining the current state of the regulation process as well as the GTI’s mandate and its limits, especially when the discussions touched on the right to veto. Tácio stressed several times in these meetings that the limits of the governability granted to this Working Group were surpassed by a debate on the right to veto measures or projects. The indigenous leaders I interviewed complained about not being able to really form the regulation procedure in cooperation with the Working Group because they were just informed about ready-made schedules and member structures. To a great extent, they describe their protest as being directed to this kind of closed decision-making structure of the GTI. As for the actions of the GTI, their first public appearance was during a seminar that the General Secretariat of the Presidency organized in Brasilia called “Convention 169 – Experiences and Perspectives” in March 2012. The seminar was meant to be a commencement event for the regulation process. Methodologies and chronograms were meant to be approved and agreed upon with the social movements representing the different actors and other civil society actors. The General Secretariat of the Presidency had prepared a scheme of interactions that included meetings with a “Committee of Civil Society” that was meant to comprise indigenous and quilombola representatives who would discuss and assess the regulation procedure and results. The traditional communities were planned to be represented by the CNPCT, and with NGOs and other civil society institutions, public meetings were foreseen as well. This proposal encountered severe protests especially from the side of indigenous representatives calling for an indigenous working group and more possibilities to influence and participate with the same influence as governmental representatives in the debates (Articulação dos Povos Indígenas do Brasil, 2012a). Their demands were not met in this regard, and from the side of the indigenous organizations, the representatives for a civil society committee were never nominated. At the seminar, the GTI’s intent to implement the instrument of prior consultation already in this regulatory act was also made public, meaning that the regulation text was to be constructed in collaboration and interaction with the affected groups. After the seminar, the GTI was involved in several random informative meetings presenting the topic in the most diverse settings to various groups including NGOs, the International Labour Organization, committees and councils, regional encounters of indigenous, as well as traditional and quilombola communities3 . When the Office of

3 | In a presentation available online (Juliana Mirandes, 2012), the SGPR lists her activities in 2012: Workshops with international legal experts, preparatory meetings with indigenous and quilombola leaders, the International Seminar of 2012, meetings of the Interministerial Work-

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the Attorney General published Ordinance 303 in June 2012, the interactions with the indigenous movement were reduced to protests. After this rupture, the Interministerial Working Group set up a plan for the consultation of quilombola communities in fall of 2012 because indigenous organizations had decided to withdraw from participation in the regulation process as an expression of their protest against Ordinance 303. Governmental institutions dealing with quilombola communities, such as the Palmares Cultural Foundation (FCP), the National Institute of Colonization and Agrarian Reform (INCRA), the Ministry of Education (MEC), and the Special Secretariat for the Promotion of Racial Equality (SEPPIR) organized the consultations. The Working Group was closed after the end of its deadline in January 2014. After this, the General Secretariat (SGPR) continued trying to establish a regulation draft with the quilombola communities. The presidential elections in fall 2014 overshadowed these efforts and the personal changes occurring even after the confirmation of president Dilma Rousseff seem to have put a silent end to the regulation efforts. Both my interview partners in the General Secretariat changed to another Secretary. In each of the presentation of the positions, experiences and expectations of officials of the Ministries that were member of the GTI, I included a short introduction of how each institution was involved with bureaucratically regulated interference in the issue of prior consultation. In these presentations, the positions of government officials are treated just as the accounts of social movement representatives regarding their experiences and discursive strategies in the process of creating an interpretation of the right to prior consultation. However, regarding the expectations they stated in front of me and their actual personal and professional scope of action with regard to regulation, of course their accounts have a different context than those of the social movement leaders. Still, the influence of my interview partners on the regulation process cannot be generalized as it varies according to their personal position and to the position of the governmental agency for which they work. Below, I provide information on this for every one of my research partners (as far as possible maintaining a certain degree of anonymity) in order to allow for a differentiated evaluation of their individual accounts.

ing Group (GTI) – possibility to disseminate knowledge on the content and debates around ILO Convention 169 among government officials, sectorial meetings with indigenous, quilombola and traditional leaders on several levels, meetings of the GTI with civil society representatives, participation of the General Secretariat in meetings of the CNPCT and CNPI, as well as reports on ILO Convention 169 to several participatory councils and several meetings with representatives of the congress are listed as activities of the Working Group in 2012 (Juliana Mirandes, 2012).

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6.1. T HE M INISTRY

OF

M INES

AND

E NERGY (MME)

The Ministry of Mines and Energy (Ministério de Minas e Energia – MME) is one of the older Brazilian Ministries. It was founded in the 1960s, and in 1992 it was re-founded after two years of abolition, by then being severed from the Ministry of Infrastructure. With an annual budget of 29.1 billion e in 2015 (Congresso Nacional 2014), it is one of the most well-equipped Ministries of the federal administration. Its mission today includes the formulation, induction and supervision of public policies in the area of mineral and energetic resources, exploitation of hydropower, mining and metallurgy, and petroleum, fuel, electric and atomic energy. Furthermore, watching over the equilibrium between supply and demand of energy resources in the country is one of its core competencies (Ministério de Minas e Energia, 2015a). These competencies suggest that the Ministry has a large stake in debating indigenous and tribal peoples’ participation in and power of decision on the use of a wide range of territories and related resources within the country, especially with regard to the rivers in the Amazon and their potential for hydro power. Internally, the MME is organized in Secretaries that deal with the individual areas of its competencies; externally, the Ministry is related to three kinds of public institutions. First, there are the autarquias4 , which are the National Department of Mineral Production (Departamento Nacional de Produ¸ão Mineral – DNPM), the National Agency for Electrical Energy (Agência Nacional de Energia Elétrica – ANEEL) and the National Agency for Petroleum, Natural Gas and Biofuels (Agência Nacional de Petróleo, Gás Natural e Biocombustíveis – ANP). The second kind of entities the MME is related to is semi-public companies such as Petrobras and Eletrobras. Third, it is related to public companies such as the Mineral Resources Research Company (Companhia de Pesquisa e Recursos Minerais – CPRM), the Energy Research Company (Empresa de Pesquisa Energética – EPE), and the Brazilian Company for Oil and Natural Gas Administration AS (Empresa Brasileira de Administração de Petróleo e Gás Natural S.A. – PPSA) (Ministério de Minas e Energia, 2015b). The relation between the MME and these different agencies is most easily demonstrated by the interactional processes in one of the Ministry’s fields of duty: besides defining the guidelines of energetic policy in the country, the MME interacts with different agencies in the implementation of projects. Figures 6.1 illustrate this using the example of the steps of the installation process for hydroelectric plants in Brazil, one of the country’s most important sources for electric energy (Empresa de Pesquisa

4 | Autarquias are agencies of indirect public administration in Brazil (Governo Federal Brasileiro- Portal Brasil, 2015).

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Energética)5 . With a short digression into the procedures for constructing and receiving licenses for these power plants, I want to show the ways in which the MME already was involved in participative meetings and present the specific character of these formats of participation; from this I aim to point out the institutional interests of the MME in the legal definition of procedures for prior consultation. To begin with, Figure 6.1 shows the process as implemented via the MME and its associated agencies.

Figure 6.1.: Steps for the installation of hydroelectric power plants in Brazil (Ministério de Minas e Energia, 2007, p.25) As this schedule shows, the Ministry starts with the preparations for the implementation of the planned projects. In the case of a hydroelectric power plant, the full cycle of planning, installation and operation takes 10 years, my interview partners at the MME reported. Actually the process starts earlier than pictured here, with the planning of the energy matrix of the country, in which the MME partakes. The Ten Year Energy Plan (Plano Decenal de Expansão de Energia – PDE) is the synopsis of Brazil’s energy planning for the next ten years. In this plan, the targeted projects are defined and their contribution to the predicted energy demand is set. Starting the implementation of a project, three kinds of studies are undertaken in the first phase of planning: First, an analysis of the hydroelectric potential of the envisioned watershed

5 | I also chose this example because at the time of my study, the implementation of hydroelectric power plants was the most controversial issue in relation to prior consultation in Brazil. Time, conditions and possibilities to implement consultations as prescribed in ILO Convention 169 were fiercely contested by local inhabitants of the projects as it was by members of the responsible governmental agencies.

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is undertaken. This analysis identifies optimal positions for power plants which then have to be registered with the regulating agency ANEEL. Second, after ANEEL’s approval an inventory of the expected costs, electric benefits and socio-environmental impacts of the project is realized. Third, a study of the economic viability including the location of the power plant, and a possible supporting infrastructure is studied. The research company EPE is subsiding all three studies with a mix of field and secondary data (Empresa de Pesquisa Energética, 2009). Figure 6.2 illustrates the parallel operation of the installation preparations by MME and related organs on the one side and by the environmental agencies on the other side.

Figure 6.2.: Sectorial roles in the environmental licensing process in Brazil (World Bank, 2008, p.17, my emphasis) As shown in this schema, the results of the above-mentioned studies on environmental damage, its mitigation and the costs of compensatory measures have to be resumed and illustrated in a final environmental impact report (Estudo e Relatório de Impacto Ambiental – EIA/RIMA). This report has to be sent to the governmental agency responsible for the targeted area. In the case of federal territories, the responsible agency for issuing a preliminary license (Licença Prévia – LP) is the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA).

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Mostly, this approval involves presenting and discussing the EIA/RIMA with the interested audience in a public hearing called “audiência pública”6. This format of public hearing is the major channel for public participation and citizen’s influence on the installation of projects in Brazil (Instituto Brasileiro de Meio Ambiente e dos Recursos Naturais Renovaveis, 2014). Audiência pública is considered an impor-tant step to the environmental licensing by the Resolution 1/86 of the National Environmental Council (Conselho Nacional de Meio Ambiente – CONAMA)7, while the subsequent CONAMA Resolution 9/87 defines its goal as exposing the project under discussion, clarifying concerns and gathering critiques and suggestions (Conselho Nacional do Meio Ambiente, 1987, 9/87). Considering these and other legal sources, analyses of this format of participation often characterize public hearings as an important, non-deliberative form of fulfilling the imperative of making public policies transparent, a principle explicitly upheld by the constitutional provisions. Public hearings are characterized as a collective form of debate between all parties interested in the project in question (Fonseca et al., 2013, pp.9-11). After these hearings, it is at the discretion of IBAMA (in the case of federal territories) to issue a prior license that then opens the path to public procurement, which will in many cases involve the above-named semi-public companies that in a last step participate in the elaboration of a final project plan. In most cases, they also at least partly have to guarantee the fulfillment of mitigation measures defined in the EIA/RIMA. The MME supervises the ongoing fulfillment of the settled measures. In a group interview with Cynthia and Lelio, both working at the MME, the comparison and differentiation of goals and possibilities of these public hearings and prior consultations played an important role. My two interview partners both had been representatives of the Ministry in the GTI – Lelio was nominated as substitute and Cynthia had held this position before – and both worked in their departments with public policies and socio-environmental management. Both have worked on the same topic at IBAMA before coming to the MME. Cynthia, a socio-environmental advisor in the MME, describes public hearings as arenas for discussing the impacts of the project in question – a project that is already consolidated and about which infor-

6 | These kinds of public hearings can be called for by IBAMA itself, the Public Ministry (Ministério Público), or by a group of more than 50 citizens (Instituto Brasileiro de Meio Ambiente e dos Recursos Naturais Renovaveis, 2014). 7 | The National Environmental Council (CONAMA) is responsible to edit regulations and standards for environmental protection, and it is an integral part of the national environmental system created in 1981.

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mation has already been generated through studies. She describes prior consultation as “the playful search for a consensus” from planning to the actual project proposal. “Public hearings don’t deliberate anything, they are consultative: You go there, present and discuss the impacts with the population [. . . ] We discuss the project in more details, not least because in the public hearing you have more information because you already have the environmental study produced and handed in to the responsible governmental agency. You also already have the technical viability study, so you have a series of information about the project and also some requirements of the population in relation to this. Consultations, I think they are more playful, a broader discussion about what can be entailed from the planning until the project proposal [. . . ]”8 (Interview, own translation)

In comparing the two formats, Cynthia stresses the fact that – in contrast to public consultations – public hearings (audiências públicas) are related to the environmental licensing process, which especially the Ministry of the Environment would like to maintain as conceptually separate from prior consultations. The critical question seems to be the moment for consultations, the definition of “prior”. Cynthia states that there are divergent positions on the definition of “prior” within the government: some say prior implies a time earlier than the entire implementation process, while others agree with the position of Lelio, namely that prior consultation should occur parallel to environmental licensing. In any case, both firmly make the point that neither the obligation to consult and discuss projects, nor the current regulation process can, in their point of view, obstruct their duty as a governmental agency responsible for the planned guarantee of a national energy supply:

8 | In a following characterization of consultation versus hearing, Cynthia used the expression consulta pública (public consultation), an apparent mixing of audiência pública (public hearing) and consulta prévia (prior consultation). There is a participative format of public consultation in Brazil, but unlike public hearings and prior consultation, it is an individual format of consultation without public meetings. This consists more in the possibility of commenting in written form on governmental decisions or steps laid out for consultation. Ordinance N◦ 8342 of 2014 defines public consultation in the following way: “public consultation – participative mechanism, to be implemented within a determined period, of consultative nature, open do anybody interested, that aims to receive written contributions by the civil society about the given matter, defined by its convocation” (September 5. Decreto n◦ 8243, own translation).

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“The thing is: We cannot stop. [. . . ] We cannot await a regulation to start the whole [planning] process, as I told you, its a long process of 10 years, we have the obligation to inject into the energy system enough for the growth of the country.” (Interview, own translation)

For both Cynthia and Lelio, an important aspect of this regulation, then, is the expected legal certainty for the time frame and conditions under which energy generation projects can be implemented. This governmental responsibility reflects in Cynthia’s statement on the ability of prior consultations to influence and modify projects: “So the ideal is to signal right from the beginning, from the planning discussion, the inventory discussion, that there won’t be many changes. Especially because when we plan, we count on that energy entering the system in year X, if it is not available, we have to substitute this energy through another source or the same source in another place, but that comes at very high costs.” (Interview, own translation)

The MME is described by Lelio and Cynthia as the grantor of projects, with the responsibility to register the projects and supervise the fulfillment of socio-environmental responsibilities in cooperation with IBAMA and FUNAI. Moreover, the Ministries’ mission is to reconcile different requirements and interests in the country. Apart from socio-environmental safeguards, the responsibility of the MME is to provide the energy base for economic development in Brazil. As Cynthia puts it: “It’s not a question of pressure, it’s a question of planning and what we do expect in terms of national growth. [. . . ] We have a project portfolio that we have to facilitate and that’s why we cannot halt that process.” (Interview, own translation)

The MME, Cynthia continues, works with a rate of energy demand that is expected to rise from 4.5 to 5% per year. This would mean that there is a calculated demand to add 2,000 to 3,000 mega watts to the electric system every year, which is responsibility of the MME. Especially in hydroelectric energy, she sees an enormous potential for Brazil, as emissions would be low and the potential amount of producible energy very high. In spite of the overlapping interests with electric, private, or semi-public companies, Lelio dismisses the known reproach that the MME would only represent the interests of the electric sector:

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“We’re not here to simply defend the electric sector, right? We want national development with social justice.” (Interview, own translation)

As stated above, Lelio stresses that the MME sees its role in the reconciliation of development with a necessary part of social justice. It is furthermore important for both Cynthia and Lelio to correct the supposedly bad image of the electric sector which they relate is commonly classified as villain in public opinion. They both complain that the public opinion would be ignorant of the important steps leading to more democracy and co-decision in the last five years, such as the public consultation of the Ten Year Energy Plan (PDE). Some years ago, the electric sector would have simply presented it, as Cynthia states: “In the old days, the electric sector did its planning on its own and that was it.” (Interview, own translation)

Communication is still a weak point in interaction with the general public, but steps of social progress have to be made, she adds. Lelio also points to the responsibility of other governmental agencies in the process of augmenting social justice, who could not leave the responsibility related to a project only with the entrepreneur. It is of course, he says, the responsibility of the entrepreneur to try to reduce the negative effects that his project will have on nearby residents, but he cannot substitute the lack of basic state services. “No other actors are charged like the energetic sector. [. . . ] We have to separate the responsibility arising from a venture from what should be happening there. [. . . ] So, what happens at many power plants is that, for example, you are going to affect a community or you are going to affect the street that connects the community with the school, right? And sometimes, you are going to hinder [access to] that school, right? So, the entrepreneur has to work together with the Secretary of Education to facilitate that school, facilitate transport that was not there before in order to have more students, or relocate that school. But afterwards, its the state that has to take care of that school, like it should have been even before.” (Interview, own translation)

The two above-explained points – that the MME would be somehow too closely linked to private interests, and the problem of socio-environmental mitigation measures being fulfilled in a just and sustainable way – have become publicly debated in relation with two famous cases of resistance towards hydroelectric power plants in the

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Amazon. The Belo Monte Dam and the Tapajós Dam both generate daily news9 and very controversial discussions on participatory planning and the implementation of development projects in and close to indigenous territories in Brazil. Lelio and Cynthia also relate to these two cases and the nature of the problem from the point of view of their institution. They both claim the hydroelectric power plant Belo Monte to be an example of extreme modification of the initially planned project. Lelio reports that twenty years have passed since the beginning of the planning process, the inventory of the Xingu river basin was renewed, and the project reduced from 20,000 to 11,000 mega watts. Cynthia adds that this power plant will guarantee the growth of national electric demand for two years. She refers to this project as one that changed to a great extent before concluding the licensing process because of the severe protests, but she adds that this is not a normal case. She also relates to the many informative meetings (38) that have been held to discuss the project. These meetings for the most part did not receive public recognition as consultations, which is reason among others for which the project has been stopped by judicial order many times: “We are not avoiding consultations. We are discussing internally, we discuss this proposal with the Office of the Public Prosecutor. Our idea is also to discuss with the indigenous, with the local peoples if they accept this proposal, right? So. . . for us, even if it is not being depicted as consultation, but it’s a form of dialogue.” (Interview, own translation)

Lelio and Cynthia both name NGOs as actors complicating these dialogues. Their defensive and protective position and acting would not respond to any attempts at compromise by agents of the Ministry, or to offers of having a dialogue, “not even with the pope”, Cynthia states frustrated. “ [. . . ] that you cannot do this, cannot do that. We could sit down to talk as long as we possibly can, we could bring the pope over, they would not listen.” (Interview, own translation)

9 | Just today as I write this chapter, two articles in Brazil’s influential newspaper O Globo discuss clean energy and environmental effects of this kind of energy generation: (OGl, 19.01.2015). Da água para o vinho, January 19. http://oglobo.globo.com/opiniao/da-aguapara-vinho-15138821 (accessed January 26, 2015), and Irigaray, M. 2015. A farsa da ‘energia limpa’. O Globo, January 19. http://oglobo.globo.com/opiniao/a-farsa-da-energia-limpa15138866 (accessed January 26, 2015).

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Apart from this alleged stubbornness, even stronger accusations are issued: NGO staff would co-opt members of indigenous communities, buy them, and transport false information, creating tension and conflict. In many cases, NGOs mediate the contact between indigenous communities and governmental institutions, bringing of course information and projects to the villages. NGOs have also been known to support protests, such as in the cases of Belo Monte and the hydroelectric power plant complex at the Tapajós River. In the latter protest, Cynthia recalls that especially the Mundurucú people, one of the groups affected by the changes in the water level and threats to the flora and fauna of the Tapajós region, resisted the steps for implementation and planning of the first power plant, São Luiz do Tapajós, by disturbing and blocking the environmental impact studies. She describes the project in the Tapajós river basin as a project that is strategic for the country, as declared by President Dilma Rousseff and the National Council of Energy Policy (Conselho Nacional da Política Energética – CNPE). In 2013, the Mundurucú people occupied the construction site of Belo Monte in order to receive public media attention for their resistance against the dam. Their main point was not to accept a consultation that would deprive them of their right to oppose the project 100%. In Cynthia’s point of view: “The Mundurucu never wanted any of this. They did not want to talk, refused consultation, now they are coming with that talk, now . . . [. . . ] they always positioned themselves in all government meetings saying that they are against the power plants, and don’t accept consultation, you know.” (Interview, own translation)

The contentious point here is the claim for a right to veto for indigenous and tribal people in prior consultations issued in many occasions by representatives of the Mundurucú leaders (Racismo Ambiental, 2013), a highly contested point in debating the regulation of ILO Convention 169 in the country. Neither Lelio nor Cynthia see this as a possibility for prior consultations in Brazil, and both claimed that this was not to be found in the text of the Convention. Consultations, Lelio states, should be perceived more in the sense of “listening to” the consulted groups.

6.2. T HE N ATIONAL I NDIAN F OUNDATION (FUNAI) A second member of the Interministerial Working Group (GTI) is the National Indian Foundation (Fundação Nacional do Indio – FUNAI). Created in 1967, FUNAI represents one of the oldest institutions in the Brazilian political landscape if one connects its linage to its predecessor the Indian Protection Service (Serviço de Proteção ao In-

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dio – SPI), which was founded in 1910 as the “indigenist agency” of the government. The eventful history of this institution is an expression of the complex and changing relationship between the Brazilian state and indigenous peoples. Since it is this relation that ILO Convention 169 primarily tries to define, it is worthwhile to investigate shortly into its past. The Indian Protection Service (SPI) represented the first step of taking over state responsibility for the destiny and wellbeing of indigenous populations in Brazil, something that in former times had been the domain of religious institutions (2006: 112). The establishment of the SPI and its tasks can be seen as an expression of the ambivalent perspective on indigenous peoples in those days which finally triggered state intervention. Apart from seeing lifestyles of indigenous peoples as a transitory form of existence that soon would merge into the national culture (and needed assistance in that process), indigenous villages were perceived as kinds of bastions that would guarantee the integrity of the national territory in areas that were difficult to access. Early policies aiming at indigenous peoples were shaped by this impetus for assim-ilation and fostered a relationship of tutelage between these peoples and the state. Basic notions of this policy materialized in 1973 in the Indian Statute (Estatuto do Indio), a summary of guidelines for policies concerning indigenous peoples that has been in force until the present day, although its reformulation is awaiting a vote in Congress (Instituto Socioambiental, 2015e). This legal document defines the rights and legal position of indigenous peoples in Brazil, especially in relation to tutelage. In the old Indian Statute, tutelage meant that indigenous peoples were not granted full legal personality, and the power and obligation to tutor them was ascribed to the indigenist state agency (Souza and Barbosa, 2015), (Souza Lima, 2001, p.2427). It was with the enacting of the new Constitution in 1989 that this relationship was redefined, although the Indian Statute in terms of its general guidelines continues to be valid. Indigenous peoples were recognized as full citizens with individual rights and the collective right to exist as differentiated communities within Brazilian society (Souza Lima, 2001, p.2429). In 1967, the National Indian Foundation (FUNAI) came to substitute the Indian Protection Service (SPI), which was also an attempt to abolish certain problematic aspects of the relations with indigenous peoples created through the SPI10. Since 1991, FUNAI has been subordinated to the Ministry of Justice (Ministério da Justiça – MJ); in the same year, an institutional reform outsourced a great deal of FUNAI’s

10 | Accusations had been getting public on genocides, corruption and administrative inefficiency within the SPI (Oliveira Filho, João Pacheco de and Freire, Carlos Augusto da Rocha, 2006, p.131).

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core competencies such as health, education, and environmental protection of the indigenous territories. Formally, responsibilities and budgets have since then been shared with the accountable Ministries11 . The main current task of FUNAI today focuses on the coordination and execution of Indigenous Policy in Brazil. This mission is an often cited phrase: [. . . ] protecet and promote the rights of indigenous peoples in Brazil. (Fundação Nacional do Indio, 2015c)

Primarily, this mission implies the identification and registration, as well as the monitoring and supervision of indigenous territories. FUNAI’s further tasks include the promotion of sustainable development among indigenous populations and within their territories, as well as the execution and coordination of policies for isolated and newly contacted indigenous peoples. In addition, FUNAI is responsible for having an inter-institutional dialogue with other entities of the government and for guaranteeing that indigenous peoples have access to their rights in the areas of social security, education, participation and social control (Fundação Nacional do Indio, 2015c)12 . As for its administrative practices, FUNAI leads the procedures that aim to fulfill the demarcation of indigenous territories, as mentioned above. It is FUNAI’s task to form a Working Group that constructs the limits of the area to be demarcated. FUNAI is also responsible for the social, cultural and economic study of the indigenous group to be affected, for publishing a report that can be publicly contested, and for presenting the report to the Ministry of Justice. This Working Group usually integrates at least one anthropologist and one topographer, but usually consists of many other specialists (Oliveira Filho, 1998, p.78). The Ministry of Justice then examines the report and contests it or publishes the decree for demarcation, after which non-indigenous inhabitants have to be removed from the area and compensated by the National Institute of Colonization and Agrarian Reform (INCRA). The final ap-

11 | These are the Ministry of the Environment (MMA), the Ministry of Health (MS), the Ministry of Education (MEC), and the Ministry of Sports (Ministério de Esporte – ME) – the latter concerning the quite famous Games of the Indigenous Peoples (Jogos dos Povos Indígenas), a competition taking place every year in the country. In practice, this leads to problems of doubling and overlapping of areas of authority and budgets as (Gramkow et al., 2007, p.142) show. 12 | In addition to these tasks described by the institution itself, Antonio Souza Lima mentions the legal authority of FUNAI to authorize any kind of studies in indigenous territories, which makes the institution a classical “gate keeper” (Souza Lima, 2001, p.2001).

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proval and recognition (homologation) is issued by the Brazilian President (for a short summary of the procedures of demarcation, see (Instituto Socioambiental, 2015g))13 . Demarcation processes are important factors for land conflicts in the context of infrastructure projects since a whole new set of rights applies to indigenous communities living on registered indigenous territory, especially regarding the possible removal and compensation of the communities. Apart from this important task, FUNAI also participates in environmental licensing processes as an intervening agency that produces position statements and reports on the effects of planned projects in indigenous areas. FUNAI analyses the environmental impact studies, highlighting the effects on indigenous communities in the area. Within the licensing process, FUNAI is also responsible for the public hearings (audiência pública) on the projects for indigenous peoples, in cooperation with the licensing agency (IBAMA, in many cases). When the first licenses are issued, FUNAI continues to watch over the implementation of mitigation measures and sends reports to the responsible environmental agency (Fundação Nacional do Indio, 2015b). With future prior consultations accompanying the licensing process, the role of FUNAI to “speak for the Indians” could be affected. Apart from a general representation of matters and rights of indigenous peoples, I see this as FUNAI’s main stake in the regulation process14 .

13 | This whole process often encounters fierce controversies at the locales in which future indigenous territories are to be demarcated because of the impending danger of removals and other profound impacts on the livelihoods of local populations that depend on this report; and on a political level it is highly contested mainly by the agrarian lobby. A constitutional amendment transferring the right to identify and demarcate indigenous territories to the Congress – the Proposal for Constitutional Amendment (Proposta de Emenda á Constituição – PEC) 215 – was circulating in Congress during my field research and was repeatedly named as one of the major threats to indigenous rights because of the strong representation of the agribusiness in the legislative body (Raquel Júnia, 2012; Instituto Socioambiental, 2013). After several rounds of discussing the Proposal in the Commission of Constitution, Justice and Citizenship (Comissão de Constituição e Justiça e Cidadania – CCJC), the PEC is awaiting vote House of Representatives today. 14 | This is not meant to imply that the institution necessarily defends this representative function. In an open letter to the Ministry of Justice in November 2013, the interim president of FUNAI, Maria Augusta Assirati, clarified some positions of the National Indian Foundation on the conceptualization of prior consultation. In that same letter, she stated that the agency of FUNAI in the licensing processes cannot substitute the necessity of direct consultations with indigenous populations. The letter defines FUNAI’s role primarily as a service provider that can

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It was quite hard to obtain an appointment for an interview with Emilia, the representatives of FUNAI in the GTI. We met very quickly during a lunch break, but I met several other representatives of FUNAI during the time in which I was working in the office of an international development agency that was located inside FUNAI’s building. Also, I met several FUNAI representatives in local capitals and in very small towns in the Amazon. These people working in peripheral areas often did not know about the regulation procedure and the related discussions in Brasília, but they had hands-on experience with conflicts over land, as well as with the challenges of realizing the institution’s mission in remote places and the day-to-day interaction with indigenous communities and leaders. I finally met Emília at the head office of FUNAI in Brasília, where she works in the department that is responsible for the promotion of indigenous citizenship rights, an ample group of rights as defined on FUNAI website: As citizen rights are classified the right to equality, freedom of expression, political rights, and rights to a dignified and fulfilling life. A further evolution of the idea of citizenship also entails the notion of environmental rights, as well as gender rights and the right to diversity (Fundação Nacional do Indio, 2015a) (own translation)

This also includes, as per FUNAI’s self-declaration, the guarantee of non-threat of indigenous lifestyles by state action as well as the participation of indigenous peoples in politics affecting them (prior consultation is explicitly mentioned) (Fundação Nacional do Indio, 2015a). For Emília, prior consultation means dialogue, and she sees the main task of ILO Convention 169 is to indicate the necessity of increasing the quality of dialogue between states and indigenous peoples. She does not see this dialogue being realized adequately in many different fields. That is why, in her point of view, FUNAI maintains the view of the indigenous movement on topics such as that the revocation of Ordinance 303 is justified. In these claims, Emília sees strong claims for more dialogue with the government. “We are not running after having a regulation done and ready like other sectors of the government have shown interest in, and we also don’t write off the positioning of the indigenous peoples that we have to understand is legitimate, you understand? To say that if the government wants to dialogue on indigenous rights, ok, then lets talk about

give technical expertise if desired by those advised during consultations (Fundação Nacional do Indio, 2013).

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the Indian Statute, lets talk about Ordinance 303, right? So, all these claims, we the FUNAI understand them as claims for dialogue. And a frank dialogue in good faith is the first condition of consultation, right? So, maybe all these claims are not directly related to the topic of projects or the document that will regulate the proceedings for consultations, but the basis for all this is dialogue, right?” (Interview, own translation)

In another part of the interview, Emília describes the lack of a clear signal of dialogue by President Dilma Rousseff, a signal awaited for by the indigenous peoples, she states. A clear signal of good will is what Emília sees as necessary to make progress in the deadlocked situation between the government and the indigenous movement. “These are postures. . . almost symbolic postures, you understand? In order to start a frank conversation, of good faith, which is what says Convention 169 of the ILO. Obviously in this conversation you won’t resolve Belo Monte, Tapajós, the highways, nothing of this. But you will give a clear signal that both sides recognize that in front of a new legislation that has not been implemented with efficiency and to a satisfactory level, we have different interests and the law prescribes that these different interests can dialogue in order to come to solutions that are more pacific, right?” (Interview, own translation)

Emília says that until this situation is solved and a productive dialogue is reestablished, FUNAI does not want to hastily pass regulation over the indigenous peoples’ heads15 . In this context, she sees the realized attempts to consult indigenous peoples as inadequate. Emília represented FUNAI in the Working Group (GTI), and during my study she was present in many public meetings on the issue. She sees the existence of the Working Group partially as the result of FUNAI’s initiative to establish the topic of prior consultation as an issue that intersects with various points within the government. She perceives the Working Group’s mission as developing a proposal for a uniform procedure for prior consultation in Brazil, as well as for the avoidance of conflict in this area. According to Emília, the GTI is not keeping up with this complex task. She says that there have been too few meetings and that the public events organized by the General Secretariat to discuss the topic and collect subsidies to draft a law concerning the future subjects of rights have been sporadic and not part of a

15 | After my interview with Emília, President Dilma Rousseff finally met with indigenous leaders in July 2013. Nevertheless, this meeting did not lead to a reintegration of the indigenous movement in the regulation process.

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legitimate regulation of ILO Convention 169. These meetings, she comments, could at most serve as preparatory conversations, but not as officially recognized consultations following Convention 169 in Brazil. In the regulation process, she describes FUNAI’s actions as participating in informative meetings and assisting indigenous organizations in defining agendas for these meetings. Evaluating the regulation process as a whole, Emília states that the actors needs to recognize that they are dealing with the legal regulation of a rule that has not yet been adequately implemented in Brazil. Existing conflicts of interests would be expected by the law to find a peaceful solution through dialogue. Emília is quite an expert on international human rights; she completed an MA and PhD in the area and has written on some contested cases of (non-)implementation of indigenous rights in Brazil. She sees regulation as being in the interest of all participating parties, including the indigenous movement. Furthermore, she considers the “symbolic postures” of non-participation of the indigenous movement not as a position against the regulation process, but as an attempt to negotiate the conditions and circumstances of regulation, a totally legitimate step in her point of view. On the other hand, she comments that this could be a crucial opportunity to bring in claims of the indigenous movement in the drafting process and shape initial proposals. In her point of view, a national regulation of ILO Convention 169 without the participation of indigenous representatives would be invalid, and could be – as in the case of a constraining of existing rights – internationally repudiated. That is why an early and integral integration of indigenous representatives and their claims could, according to Emília, prevent subsequent legal steps. Emília is criticizes the role of the General Secretariat (SGPR) for not fulfilling its “bridge position” between government and civil society. When asked about a possible change in the role of her own institution’s bridge position, however, Emília says she does not see any negative change in the institutional role of FUNAI that would be triggered by the regulation process. “No, I think it can only fortify. The institutional role of FUNAI since many years is no longer to tutelage or to be the only one within the government to speak of indigenous matters, but it is to work towards the indigenous question being treated with respect within all government bodies. So, if we achieve a good consultation mechanism within the diverse bodies that lead with indigenous peoples and that need to understand the authority of these peoples, I think this only fortifies the role of FUNAI. . . and anyway, the role of FUNAI is to work for the autonomy of the indigenous peoples and a big part of this autonomy comes from the acknowledgement of the direct relationship that some governmental bodies have to have with indigenous peoples. FUNAI always serves

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as a body of support and assistance, of defense of the rights of indigenous peoples.” (Interview, own translation)

For quite some time, Emília states, the role of FUNAI has no longer been one of tutelage, but one of support and assistance in defending the rights of indigenous peoples. In addition, she mentions the important function of “reminding” the other state agencies of the “indigenous question” and the existent difference of these peoples’ lifestyles. Nevertheless, despite acting as an advocate of indigenous rights, FUNAI would have to adhere to instructions set by the government, Emília adds. The institutional role of FUNAI – or better, the possibilities of fulfilling its institutional double role in reconciling often antagonistic claims – was a topic in almost all informal conversations I had with FUNAI staff outside of Brasilia. Several points were mentioned in trying to describe the possibility for the national indigenist agency to act and make decisions autonomously. Having majoritarian “soft” instruments at its disposal, the influence of FUNAI amounts to nothing more than reminding, claiming, or publishing reports, some members told me. Having no “hard” power in decisions such as in the environmental licensing process, FUNAI’s position can be simply ignored in the process of implementing projects that affect indigenous peoples. Some of its staff see protests and strikes as the only possibilities to influence public policies, adding with a sad smile that this is what indigenists and indigenous people would have in common in Brazil.

6.3. T HE PALMARES C ULTURAL F OUNDATION (FCP) The Palmares Cultural Foundation (Fundação Cultural Palmares – FCP) was founded in 1988 as part of the Ministry of Culture (Ministério da Cultura – MINC), and it was officially the first federal agency created to promote the preservation, protection and dissemination of black culture in Brazil (Ministério da Cultura, 2013). Its mission comprises the fight against racism, the promotion of equality and the valorization and preservation of black culture. Furthermore, the FCP watches over the legal guarantee of the black population’s exercise of civil rights, and it has the task to defend the recognition of the identities of diverse culturally distinguished groups in Brazil (August 22. Lei N◦ 7.668). As another part of its concrete tasks, the Palmares Cultural Foundation is entrusted with the mediation and communication of topics concerning the Afro-Brazilian population within the government and between the government and civil society. Within the FCP, the Department for Promotion and Support of the Afro-Brazilian

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Culture (Departamento de Fomento e Promoção da Cultura Afro Brasileira – DEP) is responsible for this communication. The National Center for References and Information on Black Culture (Centro Nacional de Informação e Referência da Cultura Negra da Fundação Cultural Palmares – CNIRC) produces studies and systematizes information on Afro-Brazilian culture. My interview partner at the FCP, Luisa, worked in the third department of the Palmares Cultural Foundation, the Department for the Protection of the Afro-Brazilian heritage (Departamento de Proteção ao Patrimônio Afro-Brasileiro – DPA). Luisa was named as a substitute representative of the FCP in the Interministerial Working Group (GTI). She recalls monthly meetings in different subgroups focusing on legal or methodological aspects. Luisa takes part in the subgroup for mobilization – and in biweekly meetings of the “bancada quilombola”, which are state entities working with quilombola communities and involved in organizing the consultations on the content of regulation. These agencies comprise the Ministry of Culture, the Special Secretariat for the Promotion of Racial Equality (SEPPIR), and the National Institute of Colonization and Agrarian Reform (INCRA). Luisa’s department in the FCP is responsible for the registration and certification of communities who declare themselves to be descendants of quilombo communities. Once analyzed and published, these certificates give the communities access to public policies and civil rights defined for quilombola communities. Apart from this, other core tasks of the FCP are the analysis of environmental studies to determine the impact on quilombola communities and the participation in consultations and public hearings (audiências públicas) on the subject – similar to FUNAI’s participatory role in public hearings (2007. Portaria Interministerial N◦ 419). As for Luisa, 90% of her department’s efforts go into processes for environmental licensing, she told me that there were about 250 processes of licensing involving the FCP which were directly or indirectly affecting 813 quilombola communities. The FCP’s role as an intervening agency in the environmental licensing process then appears to be the largest interface between the institution and the topic of prior consultation, especially with regard to the measures of mitigation to be included in the final projects’ designs. Luisa particularly stresses the role of the FCP in preparing the communities for the meetings where these mitigation accords are negotiated: “In the majority of cases, we do prior meetings, independent of the consultation, we assembly everybody in order to present the project in the area, what it will affect, inform the community how far the community will be of it, because we cannot arrive only in the moment of the public consultation [sic!]. Before that, we need to be there, sit down and converse with the community so that they can be prepared to participate in the consultation.” (Interview, own translation)

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These meetings during the preparatory phase for a “prior license” (LP) are held in order to present the diagnostic of EIA/RIMA to the members of the community. Luisa describes these preliminary meetings as already having the character of preparing a consensus on the project that will be the topic of public hearings: “What we do is: present the mitigation measures, the impact, the compensation and mitigation measures, so that the community can validate it. We tie this up so that community can approve it – if they agree, and if they don’t agree the entrepreneur will need to redo it and submit it for their approval, nothing will be done in disagreement with the community.” (Interview, own translation)

Luisa describes the role of the Palmares Cultural Foundation in these meetings as a sort of promoter, organizing the event that is paid by the entrepreneur. “Since he is the entrepreneur, he needs to pay. He is causing the impact, he needs to take the costs. The infrastructure, the promotion, bringing the people, their transportation, he needs to pay this. [. . . ] We are responsible for the consultation, the entrepreneur only pays. Pays the logistics, right, the infrastructure, the preparation of the place, pays for lunch. . . but we promote, we organize, we speak.” (Interview, own translation)

All in all, Luisa tells of quite some positive experiences with participative meetings in the licensing context; only in very few cases would a community refuse their approval. Luisa does not see indigenous and tribal peoples’ right to veto in prior consultation as covered by the Convention’s text that according to her opens an escape in cases where no agreement can be reached: “Yes, people think that consultations will have the power to veto. And this won’t happen. It won’t veto the big projects that the government wants to do. Won’t veto. Especially because Convention 169, it speaks of cases of no consent, if the community does not agree, it gives an exit. Still, it does not have the power to veto.” (Interview, own translation)

This leads some people to doubt the ultimate purpose of consultation, Luisa relates. In her point of view there should be a right to veto for cases in which communities are relocated. Luisa expects clearer guidelines from the regulation process as well as legal lever-

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age to put pressure on entrepreneurs that refuse to debate the impact of their projects with the communities: “I hope that this will be regulated soon, because we have been doing this the way we think it needs to be done. But as long as this is not regulated, there are some entrepreneurs that insist in not doing it because there is no regulation. And we say: ‘If you won’t do it, you won’t have your license’. The faster this will be regulated, the better for the communities and even for the entrepreneur.” (Interview, own translation)

She sees regulation as being in everybody’s interest and the slow momentum of the regulation process as not related to one particular blockade, but due to the multitude of peoples participating and to a deficiency of resources in the responsible Ministries to finance meetings in remote places16 . The delay of the steps in the regulation process then appears more as a normal problem of participative processes in a country as vast as Brazil. Luisa names logistics as the main challenge in organizing the metaconsultations of the regulation process that they organize in cooperation with the General Secretariat of the Presidency and CONAQ.

6.4. T HE S PECIAL S ECRETARIAT FOR THE P ROMOTION OF R ACIAL E QUALITY (SEPPIR) The Special Secretariat for the Promotion of Racial Equality (Secretaria de Políticas de Promoção da Igualdade Racial da Presidência da República – SEPPIR) was created on March 21 2003, an emblematic day for the black movement worldwide because it is the anniversary of the massacre of 1960 in Sharpeville, South Africa, where police opened fire on a demonstration of black people protesting against the South African law restricting their access to certain areas (Secretaria de Políticas e de Promoção da Igualdade Racial, 2012). In 1966, the United Nations declared March 21 as the International Day for the Elimination of Racial Discrimination. The new Special Secretariat was considered to be a result of and tribute to the strength that the black movement gained in Brazil and internationally; the World Conference against Racism held in Durban, South Africa, in 2001 was one of the most prominent manifestations of this development at the time. The Brazilian government

16 | At the time of the interview, the deadline of the first Ordinance that installed the Interministerial Working Group for the regulation of prior consultation in Brazil is expiring and consultations of indigenous peoples and quilombola communities were being postponed.

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as well as Brazilian social movements participated actively in this conference, and the conference’s Plan of Action is mentioned by SEPPIR not only as one more step that prepared the path for the creation of the institution, but also as an important point of reference until this day (Secretaria de Políticas e de Promoção da Igualdade Racial, 2011). SEPPIR’s mission is defined primarily as the formulation, coordination and articulation of policies and guidelines for the promotion of racial equality in Brazil, which includes the coordination of affirmative action policies promoting the protection of the rights of individuals and ethnic groups, with a particular emphasis on the black population17 . The Special Secretariat also cooperates with international organizations to develop programs that promote racial equality (Secretaria de Políticas e de Promoção da Igualdade Racial, 2012). Although SEPPIR has this strong focus on black groups, elsewhere the organization states that its mission explicitly includes not only quilombola communities, but all traditional communities with African origins as well as Roma and Sinti groups (Secretaria de Políticas e de Promoção da Igualdade Racial, 2015). In contrast to the Palmares Cultural Foundation (FCP) presented in the previous chapter, the Special Secretariat also focuses on traditional peoples in terms of affirmative action and public policies, while the FCP is strongly involved in the processes recognizing the communities’ adherence to this group. Sônia, my interview partner in SEPPIR also stated directly that the mission of ILO Convention 169 and the mission of SEPPIR overlapped and that the new relevance of the Convention would fortify the Secretariat’s mission before other institutions of the government. “Inasmuch as instruments are being created that inhibit abuse, violation, its clear that SEPPIR. . . this is one of our roles. We move forward in what SEPPIR has as its mission, which is the promotion of policies that guarantee the rights of this population, right. This instrument becomes an important instrument also for the specific governmental body that is responsible for the coordination of this policy, in being an ally in the defense of this in front of the government itself, in front of other bodies, also internationally. So for us this is very significant, very significant [. . . ]” (Interview, own translation)

Sônia works as a project manager at SEPPIR, in the Sub-Secretariat for Policies for Traditional Communities (Secretaria de Políticas para Comunidades Tradicionais –

17 | On a recent analysis of SEPPIR’s National Policy for Promoting Racial Equality that aims to eliminate discrimination of blacks in Brazil, see (Costa, Sérgio, 2015).

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SECOMT). This Sub-Secretariat is one of three sections; the others deal with the planning and formulation of policies as well as affirmative action policies. Our interview took place shortly after the realization of one of the meta-consultations on the regulation of ILO Convention 169 with quilombola communities, in Montes Claros, Minas Gerais. I had participated in this consultation and asked Sônia about her evaluation of it. She highlights three points as very positive. First, the discussion level was very high in her point of view, which was also due to the participation of community members of different states: “So, it was very rich for the quilombolas that took part, they understood a lot. Moreover because there also was contribution from other quilombolas from other states, you understand? From the Southeast, they came from Minas, in the case of Rio de Janeiro and Espirito Santos, this really enriched the discussion a lot.” (Interview, own translation)

Second, Sônia trusts that the results of the workshops will be taken to the members of the communities who could not be present, maybe even through workshops organized by the quilombola movement itself. A last point that she perceived as very positive was the opportunity to foster a dialogue between the government and civil society, including discussions on the Convention as well as simply communicating that it exists. She believes that the relationship between the government and the quilombola movement has become strengthened by the events. Sônia rather negatively evaluates the cooperation with the state government of Minas Gerais. Because of a lack of support, the resources for paying the travel costs of many community members were too little, which added to the problem of the weak mobilization of the quilombola movement for the events. This means that the expected number of participants at Montes Claros was not met. Moreover, time also was scarce in the workshops for in-depth discussions. This all led to significant criticisms from the quilombola participants who stated that for a definitive and meaningful result, more leaders would have to participate in these kinds of consultations. “The quilombolas themselves told us that the numbers of leaders that participate in this process is still very small. Its necessary to come closer to the communities, and reach a larger number of people. This remains to be studied by the government, all the governmental bodies that participated in this process, how we can come closer. [. . . ] So that more people can have the information and more people can form an opinion on this.” (Interview, own translation)

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Sônia explained the strategy to proceed in a meaningful way: the participating governmental institutions planned to summarize the encounters, present them at another national meeting, and then write a draft for the regulation of prior consultation in Brazil, which was to be consulted again with CONAQ. However, apart from the critiques aimed at procedural issues, Sônia also recalls more profound questionings from members of the quilombola community that were expressed at the meetings. Some participants generally expressed doubts about the liability of laws for quilombola communities in Brazil, and Sônia clearly sees their point: “De facto, there exists an enormous contradiction between what is written in the law. . . – and that not only for the quilombolas, for all traditional communities. Convention 169 is one of these legal landmarks, but there is also the Constitution, the Decree 4887 – for the quilombolas, and Decree 6040 for the traditional peoples and communities. So there exists a series of legal landmarks that, according to what they say, is not respected by the government. They impose various situations to them which are totally contrary to what’s written in the law. That means: What is that population saying to us? The government itself violates the law.” (Interview, own translation)

Sônia expresses her understanding for the quilombola movements’ perception that the regulation aims to create one more law that will not matter. Some participants in the consultation stated that ILO Convention 169 – although ratified more than a decade ago – is just one example of a valid norm not applied in Brazil and claim a general lack of law enforcement for traditional communities. Sônia concords with this position and names the lack of knowledge or established public consensus on the basic conditions for prior consultations as one root of this situation. This lack a public consensus on prior consultation and related ignorance of Convention 169 counts for the government and for companies, but also for the communities themselves. It is not clear to them whether and what kind of meetings should be declared indispensable for the implementation of projects. This situation, Sônia says, often leads to serious violations of the rights of the quilombola community members to participate in decisions concerning them: “Sometimes we say that a consultation is taking place. But what is this consultation like? [. . . ] we don’t know. We know that there are projects that hold consultations when they arrive in the communities, organize meetings and so on, some of them even do public hearings. But its not this that quilombolas tell us actually. They say that when

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the project arrives, when they are called, the project is already there. In many cases they are not even heard, and no sort of meeting is held.” (Interview, own translation)

Despite this apparently vagueness with regard to the character of a “real consultation”, Sônia has a clear opinion on the current consultative meetings with members of the quilombola community in the context of the regulation procedures: They do not qualify as prior consultations, but as an initial distribution of information and commencement of dialogue. “[. . . ] the meetings were not yet consultations. It was much more the moment to dialogue about it and hear first impressions of the quilombolas about this initial information. There is still a long way to go.” (Interview, own translation)

Still, Sônia considers ILO Convention 169 an instrument of international law that will give public visibility to the issue of consultations: “This brings a new perspective to these peoples. It means that Brazil committed in front of the world that it won’t violate these rights anymore. That it will respect them. That is extremely significant with regard to other legal landmarks [. . . ]. An international regulation has a different weight.” (Interview, own translation)

That is why she sees regulation as an important way out of the contradictory situation that follows from the existence of many legal protections for indigenous and tribal peoples that are simply being ignored in practice. For SEPPIR, Sônia relates, one important aim of the regulation consists in having the word “quilombola” written in the draft of the law when determining the subjects of ILO Convention 169 in Brazil. The question whether to include the full group of traditional communities she sees as a second, separated discussion. As to the movement with which the terms of this inclusion in the group of beneficiaries of Convention 169 should be negotiated, it is not only the Coordination of Quilombola Communities (CONAQ) that appears as the political representation of quilombola communities. Apart from CONAQ, other representations of quilombola communities are making their voices heard in the consultations. Sônia shares that a new organization, the Frente (“Front”) has intervened in the consultations. She doubts the Frente’s ability to represent rural quilombola communities and character-

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izes them rather as representing urban black movement18 . In general the quilombola movement is struggling to establish a new political representation of quilombolas in Brazil, Sônia states, and describes the Frente as expression of this change.

6.5. T HE N ATIONAL D EPARTMENT I NFRASTRUCTURE (DNIT)

FOR

T RANSPORT

Since its creation in 2001, the National Department for Transport Infrastructure (Departamento Nacional de Infraestrutura de Transportes – DNIT) has been responsible for implementing the infrastructure policy of the federal system of transport. This comprises the operation, maintenance, restoration, replacement, adaptation and expansion of Brazil’s federal transport system via the construction of new routes and terminals (Departamento Nacional de Infraestrutura de Transportes, 2015). The DNIT is, like the National Indian Foundation (FUNAI), an autarquía, which is an agency of indirect public administration, in this case linked to the Ministry of Transport (MT). The relevance of prior consultation for the institution is quite obvious: comparable to the Ministry of Mines and Energy (MME), the DNIT is involved in the implementation of the federal planning of infrastructure and plays an important role in the process of licensing road construction projects. When asking for an interview at the DNIT, I was directly referred to the General Director, General Jaime. General Jaime, in his late 50s, had assumed the post in 2011. To the interview, he brought with him a written statement from his colleague Dr. Alice, whom he previously had asked to formulate a statement in name of the DNIT on the question of regulating ILO Convention 169 and prior consultation. Dr. Alice worked in the Environmental Coordination Department, and later I was able to talk to her in person. General Jaime started our conversation with a longer talk on the problem of ethnic minorities (“minorias étnicas”) in Brazil. According to his account, conflicts between the majority society and these minorities are expression of normal “intestinal commotions of nation states”, a phase that other states, such as the USA or Europe, had

18 | The Frente Nacional em Defesa dos territórios quilombolas published a public statement on their Facebook page repudiating the regulation process, accusing the Federal Government and the General Secretariat of hypocrisy in the light of the current violations of rights to territory that quilombola communities have. The Frente also criticized SEPPIR for ignoring the range of organizations representing the quilombola movement apart from CONAQ (Frente Nacional em Defesa dos Terriórios Quilombolas, 2013).

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already passed. As examples of such “commotions” he names the Thirty Years’ War and the Hundred Years’ War. Furthermore, in the interview he underlines Brazil’s character as a racially mixed country, visible in the names and faces of its inhabitants: “Brazil already was a globalized country even before they invented globalization. Do you now why? We are an intense mix of the white, the black and the indigenous. [. . . ] So we don’t have a problem with racial segregation. Any person in Brazil with whom you go and talk, everybody genuine Brazilian, has a name whatsoever that came from the other side of the ocean, from Europe. He has one foot in Africa because somebody mated a black women in the colonial times, right, and what came out was this mulatto and in the middle of all this there was the Indian.” (Interview, own translation)

The General, born in the North of Brazil in the state of Roraima as a son of Syrian immigrants, says that he himself would be the best example for this miscegenation. To conclude his outline of Brazil’s composition, General Jaime asserts that “os indios são brasileiros agora” – the indigenous peoples are Brazilians, “os nossos iguais” – our equals: “I want to state the following: We cannot continue to treat our equals as if they were something very different. We are all Brazilians.” (Interview, own translation)

A common thread through the General’s account is the perspective that prior consultation and especially the related field of national development is most importantly a question dealt with among citizens who live in different circumstances but are culturally one large group of Brazilians. As for the participation of “ethnic minorities” in debating development both in general and specific to projects, General Jaime expresses a two-fold perspective. On the one hand, he believes that participation legitimatizes the venture in question; on the other hand, the delay caused by such processes (he addresses only institutional consultations here, not even the consultation of local communities) could result in financial losses, which the groups that claim participation would especially feel: “That is a very complicated topic. . . and it delays the development of the country a lot, because you have to start consultations of the governmental bodies like FUNAI, Ibama, Palmares Cultural Foundation, which sometimes can take four, five years. And as long as all this is not resolved, there is no project that will facilitate the generation of wealth and its circulation. Consequently, this wealth that could be generated and even distributed to the minorities, I don’t get to generate this. Because of so much

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consultation and so many conversations, so many agreements, so many requirements from the parties, you don’t get to generate. . . Brazil could generate much more wealth than it currently does. The country doesn’t manage to do so because there are so many rules that put obstacles for it. And then the laments: ‘But I also wanted to participate, I wanted to receive more benefits for my community” – but if the rules impede me from implementing the project. . . ” (Interview, own translation)

In general, the director sees participation first and foremost as a financial question that should be evaluated in order to determine whether the public can afford to lose time and money by hearing out and fulfilling the claims of “ethnic minorities”. He emphasizes that those who generate taxes and public budgets in turn have a legitimate claim to state services in return. These taxes could also be partially used for redistribution to ethnic minorities (who he implies as not generated taxes and public income), but first of all keeps the “public policy machine” alive. “In our view, there needs to be a limit for the costs. Because the money that enters the national safe is one single amount. Where does it come from? It comes from production, from the generation of wealth through tax collection. These taxes make the public machine turn, function. This public machine needs to devolve to whom gathered this money a good quality service. And one part of this money is for minorities. But it must not given just like this, granted. It’s not a present.” (Interview, own translation)

General Jaime’s colleague Dr. Alice states in her written statement that the obligations assumed with the ratification of ILO Convention 169 are fulfilled by the public hearings realized as part of the environmental licensing process. She stresses the fact that affected people are being heard in these public hearings via the participation of the representing institutions FUNAI and the Palmares Cultural Foundation. In our interview, Dr. Alice made this argument more explicit. ILO Convention 169, she states, aims at two different goals: On the one side, the Convention’s aim is to consider the rights of the people it protects. On the other side, consultative meetings should serve as an additional input influencing governmental decisions. This implies two distinct proceedings in her interpretation. First, it implies a discussion of the decision to adopt a project as part of the government’s plans, which according to Dr. Alice can only be done via the representative institutions FUNAI and Palmares Cultural Foundation (FCP); second, for already scheduled projects it implies that any kinds of hearings or participatory meetings should be integrated in the licensing process. The role that the DNIT should assume within the field of prior consultation is described exhaustively by General Jaime. He reinforces his view that the preoccupation

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with “ethnic minorities” is one that concerns the whole government, not specifically the National Department of Infrastructure of Transport. He mainly sees the obligation of the DNIT as fulfilling the conditions that the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) established during the licensing process. IBAMA is the actor with the main responsibility regarding the integration of the local populations’ needs and claims into the conditions issued together with the license, General Jaime states. “The technicians who analise the impact and the mitigatory measures are theirs [Ibama’s], not mine. I don’t have the legal competency to deal with this. So I have the legal obligation to commision an Environmental Impact Study and present it to Ibama, they put it on public hearings, discuss it publicly, and afterwards issue the license saying what are the conditions, what are the PBA programs that need to be developed. That means I have no way to. . . because if I start to do hearings with everybody, I need to choose what I am going to do: project or hearing? And finally I would divert the focus of a very important body, the Ibama, that has been given the competency to license. [. . . ] This money that will be spent in the environmental question is money that has to be ordained by Ibama.” (Interview, own translation)

Adding to this, General Jaime’s colleague Dr. Alice states that the mission of the DNIT is principally to carry out the construction of the roads planned in the Growth Acceleration Plan (Plano de Aceleração de Crescimento – PAC). Both my interview partners at the DNIT could not say much about the regulation process or the Working Group (GTI), since they were not representatives of the DNIT in the group. When asked about their expectations on the creation of a law for prior consultation, they expressed different opinions. General Jaime was not very optimistic as to whether this new law will be able to simplify anything: “Every time new laws are being set up, it’s only to make everything more complicated. I never saw them create a law to facilitate anything. Do you know any?” (Interview, own translation)

Dr. Alice sees a possible benefit of regulation in the planning process before projects come under the responsibility of the DNIT. In the daily business of executing the planned roads, she sees the danger of hampering the implementation process and creating confusion with the existing regulations of the licensing process.

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“Why? Because we already have a regulation within the environmental licensing. So, if we today create other instruments that I need to follow parallely, we will double work. Or, lets say the Decree, or whatever instrument it will be, established the necessity for specific deadlines for presentations etc. How will this work in parallel? [. . . ] Its not only what the communities order that is necessary for public policies. That is sometimes confused, especially if you look at the indigenous question. How will this work in parallel to the licensing process? We have to be very careful from the moment on that we have projects that are already selected and prioritized by the government as for example the projects in PAC, because there is already a decision by the government to implement them.” (Interview, own translation)

Dr. Alice points out that how the procedures for prior consultation in Brazil should be defined is not only a question of what local communities consider as right or adequate, principally in the field of indigenous policies, but it is also a governmental decision. For her, the question of how future participative formats will be combined with the existing set of rules for the licensing process is the biggest challenge facing the regulation of prior consultation.

6.6. T HE M INISTRY

OF THE

E NVIRONMENT (MMA)

The Ministry of the Environment (Ministério do Meio Ambiente – MMA) was founded in 1992, and in 2003, six topics were defined as part of the Ministry’s current core area of competence: the national policy for the environment and hydro-resources; the national policy for the preservation, conservation and sustainable use of ecosystems and the biodiversity of forests; the proposition of strategies, mechanisms, as well as economic and social instruments for the improvement of the quality of the environment and sustainable use of natural resource; policies for the integration of environment and production; policies and environmental programs for the Amazon; and the Economic-Ecological Zoning (ZEE) (August 20. Lei N◦ 10.678). The relation of this Ministry to prior consultation can be seen in the wider political frameworks that Brazilian environmental policy is setting for the licensing and implementation of infrastructure and energy projects, especially with regard to the integration of economic growth and environmental protection in Brazil. My interview partners at the MMA were both lawyers. Jorge worked in the Department supporting the National Environmental Council (CONAMA), where different levels of the responsible Ministries and civil society coordinate environmental

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policies19 . Marcos worked for the Office of the Attorney General (AGU) in a legal advisory department situated within the Ministry of the Environment (Conjur– MMA). At the time, his department was busy with translating political positions of the Ministry of the Environment into legal language, which also included the case of regulating of prior consultation. As to a possible interference between the regulation of prior consultation and environmental licensing, the latter being one core area of the Ministry’s competence, the position of both my interview partners was very clear. When asked about possible overlaps between public hearings (audiências públicas) and prior consultations in this context, Marco states pointedly: “These are two completely separated things. Here MMA is not relinquishing. Convention 169 has nothing to do with the environmental licensing process, and it will not have to do with it.” (Interview, own translation)

According to Marcos, the specification “prior” in consultation can only mean prior to the decision of establishing a public policy, hence long before the implementation and licensing of projects. Jorge unfolds his explanation more than Marcos does, pointing to the difference between the principle of the “right of the majority” and the “right of the minority”: “Public hearings are legally established for the right of the majority. In other words, within the licensing, I want to know if this specific community, the majority of the state of Roraima that thinks very different then the indigenous, if they want or don’t want that project, ok? That’s a public hearing. Right of the majority. I open up so that all the community comes and speaks and so on. [. . . ] But this is very different from prior consultation. Prior consultation does not have to do with the majority, its made for minorities. Its made so that these minorities would have a completely different proceeding. If we start to confuse public hearing with prior consultation we are violating the rights of indigenous peoples.” (Interview, own translation)

To exercise the right of the minority, it is of the utmost importance to identify the range of groups being directly or indirectly affected by a project in implementation. Only after this identification could prior consultation be applied, Jorge states. He refers to the case of Belo Monte as an example of bad practice, where, as he explained,

19 | The regulations of the procedure for environmental licensing is one of the most important issues that the council considers (Conselho Nacional do Meio Ambiente, 1986, 1/86).

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consultations have only been realized with the directly affected groups; the indirectly affected groups and their supporters rightly claim a lack of consultation in national and international courts. Similar to General Jaime’s comments on ethnic minorities as the subjects of the right to prior consultation, Marcos tries to contextualize the issue as a question of recognizing “originary peoples” (povos originais). “What we have here is a social group that is our origin, that represents the Brazilian culture, represents a very important part of us like – ontologically speaking, as Brazilians – our cultural and social formation that needs to be respected.” (Interview, own translation)

Marcos envisions the regulation process at best to contribute to the creation of respect for the ontological root of what constitutes Brazilians today. On the other hand, the recognition of “originary peoples” started in different economic circumstances and Marco stresses the importance of considering the development of Brazil since those days. He stresses that the economic situation of the country is different from when these rights were recognized: “nós nos transformamos de vagão pra uma espécie de semi-locomotiva do mundo”. He sees Brazil as standing at a crossroad in terms of development, but without the historic background of institutional consolidation that other countries, for example in Europe, were able to benefit from. Because development in Brazil could move in various directions, it is unclear how to handle the tension between development and protection that prior consultation involves, he relates: “We are now invited to participate in something that we are not at all prepared for because we don’t have the logistical infrastructure. We still don’t have the social structure to cope with this. So we are at a crossroad now. We are the most biodiverse country in the world, we are the G1 in biodiversity. And now we are also a country with the perspective to develop [economically]. Where do we go?” (Interview, own translation)

In this situation of uncertainty, the effects of powerful discourses of fear are tangible. One narrative in Brazil relates to the effects of a looming shortage of resources, for example a coming collapse of planning, or drastic cuts in consumption in Brazil. Marcos tells one such story, which is about electricity shortage. “Our electricity, we grow 4% every year, in energy consumption, even if we would not grow in terms of GDP, still the consumption increase is 4%. Until 2025, 2030, all

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legally available hydro-electric potentials will be exhausted. If there is no legal adjustment, we won’t have any more hydro-electric potential available in 2030.” (Interview, own translation)

Again, I am not concerned here with the accuracy of this equation, but with its discursive aim and effect. As all of the shortage stories, this one also creates a narrative urgency to grow economically and use the potential of the existing resources, in this case for hydroelectricity. This narrative promotes the legitimacy of voices that support the subordination of democracy and human rights to the “urgent needs of the nation”. Another narrative of fear is the story of foreign countries that want to keep Brazil down via inadequate environmental restraints among other methods. Marcos compares the situation of Brazil to other economic situations in countries worldwide which all participate in one model of consumption and growth. According to him: “Which country in the world would dismiss a possibility to grow, with that growth model we have today in the world, with this worldwide consumption model, would dismiss it and say: ‘Let’s leave everything untouched. Who had the opportunity had it, who had a job had it, who had money to eat had it, who did not – that’s it.’ [. . . ] We have a little trauma here in Brazil that some things are done so that we don’t grow. They are arranged so that Brazil stays where it is. Because the more we preserve, less we grow and less we are becoming dangerous from an economical point of view, you understand?” (Interview, own translation)

In telling this, Marcos does not comment on the extent to which he supports this perspective, but he definitely argues in favor of a historic perspective as inherent in this narrative, also with regard to an interpretation of ILO Convention 169 in Brazil. In his words, this means situating the legal text in its historic context, and understanding what the legislators of the International Labour Organization had meant to achieve through their formulations of certain expressions in the text of Convention 169, especially when trying to define the meaning of “tribal peoples”. “So, if you analyse the post-war era, how the world was divided and as I told you earlier, initially Brazil and Latin America stayed aside because we did not participate in the Second World War. So, who divided the world and who was trying to reinstate its identity, political importance etc. where the tribes in Africa and in Europe. The nomads, the gypsies, I don’t know who, people in Africa. For this reason, you have to understand what was the spectrum of the pre-169 debate, to know it they were speaking of the same things that we are speaking about today. So, easy, indigenous peoples we

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know. Indian was Indian anywhere. But the other – what does tribal mean?” (Interview, own translation)

Marcos argues for this historic perspective although he sees it dismissive within the area of law, as he states, since he considers it indispensable to understand which groups could be meant by these unspecific terms. According to both Marcos and Jorge, the definition of the subjects of rights of Convention 169 via and within the Interministerial Working Group (GTI) was still very vague at the moment of our interview in October 2013. Complementary to historical aspects, Jorge states that any interpretation of ILO Convention 169 in Brazil would have to be orientated according to Article 231 and 232 of the Federal Constitution. It is important for him to clarify that national legal sources that define aspects of “the indigenous question” but were set up before and contradicting the Federal Constitution should be put aside in the current discussion. According to Jorge, the Constitution should serve as a starting point also for the question if there could be a right to veto in the regulation text, which is a possibility that both my interview partners at the MMA deny, despite emphasizing that there is a right to be consulted and to find a compromise defined by the national and international legal framework applicable in Brazil. Both Marcos and Jorge claim that avoiding or at least reducing societal conflicts should be one of the functions of a future law on prior consultation. Jorge explains the benefit of regulation from his point of view: no specific legal obligation derives from the fact that the Convention as an agreement on human rights is self-enforcing. This means that without regulation, the application of Convention 169 – a governmental policy – would depend on the case-to-case assessment of a judge. He sees regulation as creating binding guidelines for the legislative, administrative and juridical forces in the whole country, a situation which Jorge believes would make a considerable difference. Legal certainty is also what Marcos and Jorge, both lawyers, see behind the muchdebated Ordinance 303 (portaria 303) of the Office of the Attorney General (AGU)20 . Ordinance 303 was the topic of the day of our interview since the Supreme Court (Supremo Tribunal Federal – STF) met the same day to give a verdict on appeals against an older decision related to crucial points of the Ordinance – the conditions that declare the indigenous territory of Raposa/Serra do Sol. In Ordinance 303, the AGU declared conditions for the declaration, use and extension of indigenous territories that the STF set up in a verdict confirming the establishment of the indigenous territory of Raposa/ Serra do Sol as valid for all indigenous territories in Brazil.

20 | See chapter 5.1.

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Jorge and Marcos describe the intention of the AGU in publishing Ordinance 303 as an attempt to make the Supreme Court’s verdict on the indigenous territory of Raposa/Serra do Sol (2009) more efficient by expanding the conditions that were set in the judgment of this case. As stated above, this content of Ordinance 303 generated a wide range of protests from the indigenous movement and even other movements that declared their solidarity (Articulação dos Povos Indígenas do Brasil, 2012a,b). In the opinion of Jorge and Marcos, the conditions of the Raposa/ Serra do Sol case should be seen in a more differentiated manner: some conditions would actually help all involved parties, for example the definition of the combined management of indigenous territories and conservation units in cases of overlap. Other conditions should be revised. After the judgment of the Supreme Court in 2009, several appeals for clarifications and reformulations of the decision had been filed. In these appeals, the state of Roraima, indigenous organizations and the Office of the Federal Public Prosecutor (MPF) questioned different aspects of the verdict and demanded more specifications on several conditions (STF 2014). The Supreme Court was going to judge these appeals on the afternoon of the day on which our interview took place. While the Court denied all claims for a reformulation of the judgment, it gave several clarifications on their nature this day. One important element of the judgment is that the case of the indigenous territory Raposa Serra do Sol was not automatically binding for other cases of indigenous territories (STF 2014). The indigenist and indigenous movements interpreted this as a clear rejection of Ordinance 303, although the Ordinance was not referred to directly, neither in the appeals nor in the judgment. After the protests reached its peak in 2012, the Office of the Federal Attorney General (AGU) had suspended the Ordinance until the judgment of the Supreme Court (STF) on the appeals to the conditions of its first judgment in 2009. Then in February 2014, a few months after the second judgment of the STF, the Attorney-General Luis Inácio Adams ordered a reformulation of Ordinance 303 according to the new verdict issued on the day of my interview with Jorge and Marcos. This reformulation is still pending. Both my interview partners discussed the introduction of conditions in the verdict on the case of Raposa/Serra do Sol as a widening of the judiciary competencies of the Supreme Court into the realm of legislation. The question of separating the democratic powers and their respective competencies could become significant for the negotiation of expertise and authority in the establishment of a legal regulation of ILO Convention 169 in Brazil. Jorge and Marcos see that different political forces drive judicative and legislative branches of government. Their power in determining the context in which prior consultation is discussed can determine the outcome of this interpretive process. Jorge considers the reaction of the indigenist and in-

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digenous movement towards Ordinance 303 to be misled because he sees the open space for negotiating the characteristics of prior consultation as an extraordinary opportunity within an otherwise very closed government. Jorge sees the main driving force for the withdrawal of the indigenous organizations from the process to be in the indigenist organizations. When asked about a prognosis on the outcome of the fierce conflicts over possible interpretations of the right to prior consultation in the country, both Marcos and Jorge do not comment optimistically. They conclude that a law regulating prior consultation in Brazil is a potential threat to powerful lobby groups such as agribusiness, which they believe exert sufficient pressure to prevent a legal regulation and promotion of consultations.

6.7. T HE G ENERAL S ECRETARIAT OF THE P RESIDENCY (SGPR) H EAD OF THE W ORKING G ROUP As the last of the institutions participating in the Interministerial Working Group (GTI), I will try to give an impression of the work and positions of the staff of the General Secretariat of the Presidency (Secretaria Geral da Presidência - SGPR). The Secretariat was one of the three institutional pillars of the Brazilian presidency during most of the time of my research. While the Secretariat of Institutional Relations (Secretaria de Relações Institucionais - SRI) managed contact with the Congress, states and municipalities, and the Civil Office (Casa Civil) was - and still is - responsible for the inner-governmental coordination and monitoring of programs, the General Secretariat of the Presidency was overseeing “outward relations” with social movements (Secretaria Geral da Presidência, 2015). After her reelection in 2014, President Dilma Rousseff reorganized her cabinet and created the Secretariat of the Government (Secretaria de Governo do Brasil) by merging the former General Secretariat of the Presidency (SGPR), the Secretariat of Institutional Relations (SRI), the Secretariat of Micro and Small Companies (Secretaria da Micro e Pequena Empresa – SMPE) and the Cabinet of Institutional Security (Gabinete de Segurança Institucional – GSI/PR). The new Secretariat of the Government unites the competencies of the Secretariat of Institutional Relations (SRI) and of the former General Secretariat of the Presidency (SGPR). Since the SGPR was mediating between the Federal Government and actors of the civil society during my field work, it will be in the center of this chapter, although disestablished by the current administration. Its mission positioned the General Secretariat among the many channels that have been established for the fulfillment of the principle expressed in the Constitution that

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social participation should be the primary force that maintains democracy in the country (Secretaria Geral da Presidência, 2015). Within the General Secretariat of the Presidency, the Secretariat of Social Interaction (Secretaria Nacional de Articulação Social – SNAS) was the section responsible for the coordination of the Interministerial Working Group (GTI) on the regulation of prior consultation in the country21 . I interviewed two representatives of the General Secretariat of the Presidency several times during the regulation process, and both worked in the Secretariat of Social Interaction (SNAS). Tácio, whom I met first, had been working for two years as coordinator in the Social Dialogues section of the SNAS, which was responsible for the day-to-day dialogue with civil society. This is in contrast to other sections within the SNAS that focused on institutionalized forms of dialogue such as councils, commissions, and conferences or on issues such as access to education and public policies. Tácio coordinated a subsection of Social Dialogues that specifically took care of traditional peoples and communities – in the wide sense of the phrase: indigenous peoples, quilombola communities and other traditional peoples and communities22 . Apart from this job, Tácio also was about to graduate from the University of Brasília with a PhD in anthropology23 . Tácio and I met therefore on different occasions and in different contexts such as interviews in the office of the General Secretariat of the Presidency, in research colloquiums at the university, at public events discussing prior consultation or the regulation procedure, on the actual consultation meetings with the quilombola movement, as well as at the Supreme Court awaiting the judgment of the Supreme Court on the conditions of the Raposa/ Serra do Sol case. Our conversations became fewer when the question of prior consultation became a hot topic in many urgent cases, leading Tácio to “put out fires” in disputes throughout Brazil. This is why the topics that he comments on in our conversations are more about the beginning of the regulation procedure. Tácio recounts how the International Labour Organization started to pay more attention towards the implementation of Convention 169 in Brazil after a denunciation of violations of the Convention in a shadow report that the Central Brazilian Union (Central Única dos Trabalhadores – CUT) sent to the Committee of Experts on the Application of Conventions and Recommendations of the ILO (CEACR). Based on

21 | The Secretariat of Social Interaction (SNAS) continues within the Secretariat of the Government. 22 | For the difficulties in defining this concept, see Chapter 5.3. 23 | On the role of anthropologists in the regulation of ILO Convention 169 in Brazil, see chapter 8.3.

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this, a dialogue started between the Ministry of Foreign Affairs (MRE), Tácio and his colleagues from the General Secretariat (SGPR) and the social movements on how the implementation of the Convention could be strengthened in the country. From these dialogues emerged the decision to create an Interministerial Working Group that should coordinate the regulation process, says Tácio tells, and since the General Secretariat was already ahead in the process, it was selected to coordinate the discussions. Joana, Assistant Secretary General of the SNAS, was entrusted with the task to lead and coordinate the Working Group. I met her relatively late in the regulation process in 2014, so in contrast to my interviews with Tácio, my conversations with Joana revolved more around the outcome of the process and her conclusions on it. In her assessment, the Secretariat’s leadership gave a political charge and attention to the process of regulation that hindered finding a straightforward consensus: “[. . . ] because we are the Presidency of the Republic. So we call for a heavy political charge as well. I don’t know, if the process would not have been led from inside the Secretariat of the Presidency, if it would have been done by the Secretariat of Human Rights or by the Ministery of Culture. . . [. . . ] We have great power to summon. Only that at the same time that we summon, we also attract a lot of attention for other questions. That’s a personal evaluation. If this process maybe would have been more ‘low profile’, without calling that much attention, maybe it would have gone through.” (Interview, own translation)

One of the first activities of the newly created Working Group was to call for an international seminar in March 201224 . Tácio, mainly representing the Interministerial Working Group in this seminar, presented a procedural proposal for the regulation of prior consultation to 160 international experts, representatives of the government, indigenous peoples, quilombola communities and civil society organizations. He proposed to apply the principles of ILO Convention 169 to the regulation procedure. For this, three distinct stages had been pre-defined by the General Secretariat: The first step was imagined as a phase of dissemination of information on the Convention; second there were to be regional consultations; third, a seminar for the final consultation on a draft proposal was to be held. Public dialogue with the Interministerial Working Group (GTI) was proposed via a Facilitation Committee that should comprise representatives of all civil society and social movements. In our conversation,

24 | See also the beginning of chapter 6 where I introduce the Interministerial Working Group (GTI).

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Tácio recalls the protests at this seminar against this schedule for participation, especially with regard to the formal groupings that the proposal implied. He expresses his lack of understanding for the refusal of the indigenous representatives to form such a shared group, but he suspected that the fear of losing rights through the participation in a mixed group was behind this refusal. The suggestion by the General Secretariat to create a mixed Civil Society Committee was upheld nevertheless. The Committee was planned to consist of 12 quilombola representatives and 12 indigenous representatives. The General Secretariat tried shortly thereafter to define which indigenous organizations should send representatives for the indigenous part of the group and Tácio shares that this was faced with severe protests during the seminar. While trying to renegotiate the terms for an indigenous participation in the Civil Society Committee during the months following the seminar, the General Secretariat was surprised by the publication of Ordinance 303 by the Office of the Federal Attorney General (AGU). Both Joana and Tácio relate the negative impact this step had for the creation of dialogue between their institution and the social movements, particularly with regard to the indigenous movement. Joana cites the publication of Ordinance 303 as one example of the general lack of internal dialogue within the federal government: “[. . . ] this hindered fundamentally the process to build trust that we as the government had come to do with the indigenous, quilombolas and other traditional peoples and communities.” (Interview, own translation)

After the publication of Ordinance 303, the large indigenous organizations COIAB and APIB based their participation in the regulation process on the condition that the Ordinance was revoked. While COIAB and APIB opted for a blockade strategy, Tácio recalls that smaller indigenous organizations such as the Indigenous Council of Roraima (Conselho Indígena de Roraima – CIR) or the Federation of the Indigenous Organizations of the Rio Negro River (FOIRN) expressed demands to be informed and to discuss ILO Convention 169. Tácio relates this to what he considers the general problem of representation within the indigenous movement. According to him, the youngest and most present organization in Brasília, APIB, calls itself national but Tácio states that it has no strong “capillarity”, meaning a close relation to those whom they represent. He thinks that large regional and national indigenous organizations experience a moment of crises, such as deficiencies in funding and a growing distance to their bases, while more locally orientated indigenous organizations manage to have more real discussions with the masses. In Tácio’s point of view, larger organizations such as COIAB and APIB stay at the level of discussing formats and

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methods, while smaller organizations such as FOIRN or the Organization of the Indigenous Reserve of the Xingu Park (Associação Terra Indígena Xingu – ATIX) delve more deeply into content-laden discussions. He also criticizes the monopoly that the larger organizations hold in terms of accessing the discussions in the capital Brasília and participating in events or seminars. According to Tácio, the problem of representativity is why the General Secretariat tried to involve both levels of representation in the Civil Society Committee that was meant to counsel the Working Group (GTI). At the seminar in Brasilia, six representatives of large indigenous organizations were preselected by the General Secretariat to join six representatives from smaller, more local indigenous organizations. This interference in the autonomy of the indigenous movement to name its representatives caused trouble with the larger indigenous organizations that are accustomed to indicating adequate indigenous representatives for events and forums: “This also did not rebound well with that national part, with the APIB, they wanted something like a monopoly to define who would participate.”(Interview, own translation)

As a result of these conflictive situations, the Civil Society Committee that was meant to counsel and accompany the work of the Interministerial Working Group was never established as a whole, and meetings happened only with the 12 designated representatives of the quilombola communities. Joana highlights her impression that the analysis of benefits of the regulation process made by the quilombola representatives was far more differentiated than the blockade strategy of the indigenous movement. “On the other side we had the quilombolas, a group of quilombolas that was closer to us, who knew that Ordinance 303 was very harmful, acknowledging various detrimental actions, but that differentiated that this process of the 169 could be a process of rescuing, of reaffirmation. And a process of positioning of the quilombolas in relation to the content of the 169.” (Interview, own translation)

The state institutions working with quilombola communities recognized the importance of this agenda, Joana states, and in my conversation with Tácio he also reports that one declared goal of the General Secretariat was to have a clear statement in the regulation text that quilombola communities are considered the subjects of rights of ILO Convention 169 in Brazil. Tácio sees this as a considerable breakthrough for the political movement of quilombolas in the country because an officially binding statement of the government to this question was missing until that day. With regard to the

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other traditional peoples and communities, Tácio states that they tried to incorporate them as well, but that the concept was so wide that their inclusion scared everybody in the Working Group anxious about the prospect. This way, nine consultative meetings on the regulation of prior consultation and ILO Convention 169 were organized with more than 800 quilombola community members in different regions of Brazil. Tácio admits that during these meetings the informative aspect became mixed with the moment in which ideas and suggestions from the participants were collected; this was criticized by the quilombola movement, for example after the consultation in São Paulo25 . When I talked to Tácio at the end of 2014, the next planned steps were another round of consultations with the coordinators of the regional quilombola movements, another national seminar, and general consultation of a legal draft via internet. At that time, a regulation of prior consultation for indigenous peoples was no longer in sight, Joana told me. She thought that this was because of the blockade strategy that the indigenous movement opted for until that day, making the revocation of Ordinance 303 a condition for their participation in the regulation procedure. Both Tácio and Joana state that their Secretariat worked hard in order to revoke the Ordinance and that they had not been informed about this step prior to its publication. Joana sees the blockade strategy of the indigenous movement as expression of an inflexible, even intolerant attitude, although she was quick to add that this is not meant as a judgment: “On the other side, we also had on the indigenous side an inflexibility. . . or how can I say it. . . rejection is not the right word, but a movement to not accept, by no means, the dialogue.. right, they not only tied the dialogue to the revocation of Ordinance 303, but. . . in other words, manifestation of a certain intolerance, to condition the dialogues to clearer movements and arrangements of the government in relation to indigenous policies. I don’t judge this, if it’s right or wrong, but that’s what it was. As a form of fighting, the indigenous, the indigenous group that was the closest to this debate, which was APIB, opted for this way of positioning.” (Interview, own translation)

Tácio also relates a difficult relationship with some organizations of the civil society, especially with regard to NGOs supporting the struggle of indigenous peoples. He suggests that some of them have a “messianic moment” in which they believe themselves to be in a war of the “State” against the “Indian”. He attributes this to a great deal of disinformation, most of it based on conjectures, while especially the SNAS

25 | See also chapter 5.2 on the quilombola organization CONAQ and the perspective of their leaders.

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tried to establish dialogue and supportive formats of interaction between the state and society. To illustrate this, Tácio tells of the urgent delineation of an indigenous territory where the government sent the military in order to guarantee a fast and smooth demarcation for indigenous peoples in the contested area. But of these acts of good will, sighs Tácio, nobody talks. Only the “war stories” are in the headlines. Joana sees a possible step towards implementing ILO Convention 169 in the partial regulation for quilombola communities. Confronted with the ongoing blockade of dialogue by important indigenous organizations, she considers it essential to maintain the results of the participative process with the quilombola communities: “So, in the face of the withdrawal of the indigenous peoples from the process, in the face of their reaffirmation, the regulation will be targeted at the quilombolas. Then there are different analyses, right: Isn’t that detrimental to Convention 169? But on the other side, we did a long process with the quilombolas, this cannot be put at the mercy of the hitch between the government and the indigenous. They also deserve an outcome that guarantees this right to them. A right that is less visibly their right then in the case of the indigenous peoples.” (Interview, own translation)

Important hedging measures for the government in this situation of a partial regulation that could be considered prejudicial would be the meticulous public registration of actions and reactions during the regulation attempt in order to justify its result. Therefore, a clear statement from the part of the General Secretariat was planned, stating that a dialogue with the indigenous movement would still be possible and desired at all moments. Joana even expresses hope that the outcome of the regulation could attract the indigenous movement to come back to the dialogue in order to establish something similar for their peoples – or even to improve the regulation. “Well this regulation does’n say that its only for quilombolas, to the contrary, in the first moment, in this moment, in the Brazilian context, the progress we achieved was this. But we are working, willing, to continue to elaborate on this program with the indigenous peoples as well. This regulation can even attract them back, seeing the regulation for the quilombolas. And it’s exactly this that we would like to say, that we’re open, and that the process needs to take place as a dialogue: It’s a bad regulation? - so we hope the indigenous peoples will say: ‘This regulation is bad – quilombola communities, let’s redo it!” (Interview, own translation)

As for the targeted draft of a law, Tácio outlines its intended content. The planned structure included a first section on the subjects of rights of the Convention (he spoke

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of indigenous and quilombola groups at the time of our first interview, while only the latter were included in the final drafting process as it later turned out). In a second section, the “how” was meant to be defined, meaning the measures that require consultation – the scope of the Convention, so to speak. In a third section, the principles of prior consultation were to be defined, specifying what was set down in the text of Convention 169: “[. . . ] the principles are those that are laid down in the Convention, but adapting, incorporating our reality, giving more details to it: For a consultation to be called informed, what will you do?” (Interview, own translation)

Tácio stresses that consultations cannot be thought as events, but as processes that imply three steps: first the presentation of the project and agreement on the consultation process; this is followed by an informative phase; then comes the informed consultation; finally there is the consolidation and feedback phase. Joana describes the many formats in which the regulation already was discussed. The first form was a mere decree, while later suggestions aimed at an Interministerial Ordinance of all Ministries that have an impact on infrastructure and territories – she cites such bodies as the Ministry of Mining and Energy (MME), the Ministry of Planning (MP), or the Ministry of Transport (MT). Later, the suggestion was to create an Interministerial Ordinance involving only the Ministries that work with quilombola communities – including the Ministry of Agrarian Development (MDA), the National Institute of Colonization and Agrarian Reform (INCRA), the Special Secretariat for the Promotion of Racial Equality (SEPPIR), the Palmares Cultural Foundation (FCP) and the General Secretariat of the Presidency (SGPR). As we spoke, all this depended on the last round of presidential elections on the Sunday following our interview that finally would result in a re-election of President Dilma Rousseff: During our interview, Joana speculated that if there were to be a different election result, all the regulation efforts would have had to be accelerated in order to conclude anything before the change of command in the country. She did not believe that continuity would be possible after such a rupture. “In light of the fact that this discussion was dragged for such a long time, and that we came very close to the election process, we decided to wait for the decision on Sunday. Depending on Sunday’s results, we will have either more time to reinforce the debate, to achieve something all the more secured and agreed, condoned, or we have to return this question to the quilombolas and see how we wrap up this process still this year in order to not have setbacks [. . . ].” (Interview, own translation)

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Besides these problems, other issues of temporality worry especially Tácio. Apart from the blockade of the indigenous movement and the upcoming elections pressuring for a solution, infrastructure and energy generation projects were implemented further and on-the-spot solutions for protests and participation had to be found while the political negotiations continued. “We were always very conscient that the world would not stop so that we would have time to regulate Convention 169. [. . . ] The government’s own time does not allow to stop everything in order to regulate. Things continue to happen, right, tense situations continue to arise, and we have tried to keep the door open.” (Interview, own translation)

One of the prime spots of tension at that time was the Tapajós River and the Mundurucú people who reside there and engage in diverse forms of protest against the construction of a complex of hydroelectric power plants at the river basin. The Office of the Federal Public Prosecutor (MPF) went to court in 2012 against the implementation of the hydroelectric power plants and claimed the right to consultation for the affected peoples. After several decisions by different courts, in 2015 the responsible judge confirmed the necessity to prove that there have been at least attempts to consult the fiercely resistant indigenous groups that refuse any negotiations on the construction of power plants at their river. Joana says that when the General Secretariat finally managed to organize a meeting of the relevant indigenous organizations and state institutions and first negotiations took place, a further lack of internal government dialogue led to the Ministry of Mining and Energy publishing an Ordinance announcing the date for the public auction (leilão) in which companies can bid for construction concessions. With this step, the implementation of the power plant was initiated with no regard to first fragile agreements. This destroyed months of slow approximation and trust building between the General Secretariat and indigenous organizations. Frustrated, Joana says: “Please excuse my language, but we were fucked, again, everything again. Please excuse the word, but it was exactly what happened. Why? We went there to tell the people: The government will do the tender, the tender has no date yet, because we need to fulfill all the steps of the licensing process, we need an analysis, the environmental impact study, so that the preliminary license can be issued, so that there can be a tender. [. . . ] You as an indigenous who is talking with the government that says that are so many steps still to be realized before the tender, and 10 days later you see that an

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Ordinance is published that already defines the date of the tender, what would you think? Would you trust this government?” (Interview, own translation)

It is with the Mundurucú people that the General Secretariat worked out a new casebased solution for consultations and defining processes. Indigenous protocols, developed by each people and its supporting organizations, and defining basic principles to be observed in consulting them should serve as the foundation for consultation processes. This model was first elaborated by the Wajãpi people and their support groups in an attempt to reclaim indigenous agency in the debates on prior consultation. The Mundurucú developed a protocol after this model, explicating their political organization and modes of decision making, Joana says: “It’s them, in their way, telling us the following: ‘Look, we have 45 – or 47 – villages here in our territory. We never sat down to discuss anything all together, because every village has its own chief, its own leader, its own format, its own collective. So now for the first time, this process of consultation stirred a debate among us, or it developed a topic that we did not have before and it was very difficult. It was very difficult to sit down with 45, 47 chiefs, 47 leaders, 47 formats and do what we normally do.” (Interview, own translation)

Of course nothing defined in these protocols can violate existing legislations, Joana adds when I asked about a possible right to veto. In her point of view, the protocols serve more as a kind of presentation of the internal organization of concerned groups to the government. Tácio also explains once more the understanding of the General Secretariat that there can be no right to veto. On the one hand, he argues, ILO Convention 169 does not provide for such a right (he refers to legal experts of the ILO, later to positions expressed by prominent members of the Office of the Federal Public Prosecutor); and on the other hand, this is because of the concept of dialogue inherent in consultations: “Consultations are no plebiscites, but they are meant to build consensus” (Interview, own translation). Furthermore, he adds that such a decision – to give a right to veto to one of the groups participating in prior consultations – would go beyond the mandate of the Interministerial Working Group (GTI). At the time of my conversation with Joana, the Working Group had already come to an end, and in retrospect, she had mixed feelings looking back. First, the initial idea of a small Working Group was dropped: “So in the beginning the idea was to have a really small working group. Small, like with 5, 6 governmental bodies at maximum. But later the whole team thought it would

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be important to also have a pedagiogical mission in this work. Therefore we felt it was necessary to invite everybody on the Esplanade who has interaction or relation to. . . a proximity to the indigenous and quilombola topic. Therefore the group was widened from 5,6 to 26.”26 (Interview, own translation)

The dialogue between the many Ministries with different institutional interests did seem exhausting to Joana, but it was another factor that really frustrated her: “Me who coordinated this group, I couldn’t stand it anymore, that we started the discussion with one person within the Ministry, and in the next meeting, there would be somebody else, in the next meeting still somebody different [. . . ] they didn’t pass on any information, there was no memory, the discussions. . . you know?” (Interview, own translation)

The high fluctuation of personnel made continuous work and progress difficult, she concludes, especially within a context where political processes depend on single individuals to a high degree. That is why her conclusion of the regulation process is that processes need to be strongly institutionalized in order to produce results in Brazil. “What I think. First: We don’t have the capacity for lengthy processes within the government, understand? [. . . ] I don’t know if it’s a management problem, there is a lot of change, personal change. [. . . ] In long processes, either they are very institutionalized or you guarantee institutionalization within the Pluriannual Plan, within a law. . . or said differently: There needs to be legal institutionalization, or you limit processes to maximum one year. If they gonna be longer it’s not worth the effort.” (Interview, own translation)

A maximum one year deadline for governmental working groups seems to be very important to Joana; she repeats it several times, while stating on the other hand that participative processes naturally take a great deal of time. One last point that Joana sees retrospectively as a problem in the regulation procedure is the lack of clear orientation for the technical levels of administration within the Ministries.

26 | The Esplanade is the central government area in Brasília, where all the Ministries are seated.

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“I think that the management of the political coordination of some topics also should penetrate more to the core of the governmental bodies, to the technical level as well. We mostly have a macro direction, an orientation from the political authority, but this very rarely turns into efficient commands at the implementation level, you know.” (Interview, own translation)

Joana adds that this of course counts for the government of which she is a part, but beyond this she sees three measures needed in public administration to facilitate participatory processes in general: First, there should be cultural education allowing for a deeper understanding of different decision rhythms and general conceptions linked to participation and consultation; second processes should be institutionalized in order not to lose them; and third, a strong, acting and independent civil society should be fostered so that they can “make the public machine move”. In this specific case of participation, Joana says, the regulation of prior consultation is of course a difficult arena where politics for indigenous peoples and quilombola communities interfere with the highly contested question of the distribution of land. Here she sees another major reason for the slow and difficult pace of the regulation. “Here the indigenous/quilombola question transcends to the topic of territorial management on a higher level. These are very profound questions, and they are highly relevant for the public. . . since the scenario is very undefined and complex, these complexities enter the regulation process and make it at the same time very rich, rich debates, but also very hard to move forward.” (Interview, own translation)

Within this context, Joana thinks that a future legal regulation of prior consultation could bring the benefit of defined baselines that will not be negotiable for each case. At best, she expects of a set of parameters that will avoid questioning and conflicts. Notwithstanding the fact that a law cannot cover all possible questions appearing in reality, Joana expects a legal regulation of prior consultation to give points of reference for future juridical conflicts. “I think that a well made regulation, well written, it will bring parameters that are going to help in future queries. Judicialization will always remain, it can be judicialized, but it will bring parameters, also for this judicialization. You can never cover everything in a law or a regulation. I think that the judicial process will also support the maturing of the debate. [. . . ] I think that a regulation will be a step forward to avoid conflicts. It avoids conflicts because it clarifies and justifies, gives guidelines. A regulation means this - create conditions: Which laws, which guidelines are important to guarantee in

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consultation processes? Which important or even non-negotiable aspects are relevant for a consultation process?” (Interview, own translation)

Joana sees “improving the public debate” as a kind of procedural result, something that the process of debate and circulation of information has already brought to the public, and she believes that events and ongoing processes around prior consultation will continue to yield benefits. When she compares her impressions with attempts of regulation in other countries of Latin America such as Bolivia, Peru or Chile, Joana is quite content about the achievements in Brazil: “If you look beyond our limited world in Brazil, look at the whole, you think ‘Man, it’s alright. We are struggling, but we are not alone, right?’ We are not alone. And its a really complex topic, the content of the 169 is very complex.” (Interview, own translation)

6.8. ACTORS ,

ARENAS , DISCOURSES

The accounts of the members of the Interministerial Working Group can be organized in three parts. First, an important part of the narratives address the actors of the regulation and their legitimate representatives as well as previous experiences in the field of participative formats. Second, I consider it important to take notice of the different arenas of negotiation that are mentioned and discussed by many of my research partners as to their inherent conditions and opportunities. Third, I present and analyze the discourses that appeared in the interviews and show how they are utilized to frame prior consultation in Brazil. Actors As to the actors of the regulation, a first question of great interest for the governmental agents is that of who shall be the legitimate interlocutor of the subjects of rights, or put differently, who shall be their counterpart. Many conversations addressed the question if there is a generalizable group of “subjects of rights” and who are their legitimate representatives. Tácio made the point that the large indigenous organizations APIB and COIAB base their power on their monopoly of indicating representatives to be invited as well as on their position in giving access to regional organizations and their leaders. When the General Secretariat aimed at having contact with a preferably large spectrum of indigenous peoples, Tácio questions if these organizations should always be the only ones to give their opinion and send their representatives. In Chap-

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ter 5.1, one of the indigenous leaders, Rosana, gives a different account of the “clash of representations”. She states that in situations of conflict, the government tries to circumvent organizations that do not align with their interest and to find representatives that follow and confirm their suggestions as being consented on by “the indigenous peoples”. The question of who decides on the representative status of indigenous organizations is crucial for defining the legitimacy of these organizations’ roles within a standardized procedure for prior consultation. But it is not only from outside that representative organizations are questioned. In her description of several quilombola organizations acting publicly in the metaconsultations, Sônia from SEPPIR describes a situation that the quilombola and the indigenous movement seem to have in common: political organizations that claim to represent a certain social movement are always concurring on their representativeness. Here the Frente claims to represent quilombolas and intervenes and questions the consultations of quilombola leaders and the whole regulation process while at the same time CONAQ co-organizes these meetings. The cited case of the metaconsultation in São Paulo had quite an effect in forums and spaces that deal with policies for quilombola communities. In its description of the event, the NGO SocioEnvironmental Institute (ISA) states that the quilombola leaders that were present did not accept the proposed format of collecting subsidies for a draft of a law for prior consultation in small working groups, and that the leaders asked the members of public administration to leave the meeting in order to allow the present social movement leaders to discuss among themselves. In a public statement published after the meeting, these community leaders expressed that the time and place of the meeting was insufficient and that quilombola communities should not be consulted on such an important issue without prior notice of the meetings’ real intentions. They refused to accept the meeting as a consultation following the principles defined in ILO Convention 169 (Instituto Socioambiental, 2013). In relation to the same event, Tácio of the General Secretariat of the Presidency draws a different picture. He sees conflicts such as this one prominently induced by NGOs who use what he criticizes as a distorted public image of a “war” going on between the government and a part of the social movements. In line with that perspective, my interview partners at the MME accused NGOs of co-opting or even “buying” local community members in order to align with their goals. I cannot to assess the diverse allegations towards NGOs within this study. As in the story of the quilombola leader who stopped the construction of a pipeline with the text of ILO Convention 169, I think it is more rewarding to examine the discursive function of these stories than their actual accuracy. Delegitimizing actors with these accusations seems to be a common reproach, especially with regard to non-governmental organizations.

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A second characteristic of the actors and their strategies appears to be the aggregation of institutions in perceived interest groups, the “electric sector” being the first example. I think it became quite clear in my descriptions of the tasks and processes involving the Ministry of Mines and Energy that the differentiation of actors and interests within the “electric sector” of Brazil is not easy. The interests of private and public groups intersect here, and this is also present in some parts of Lelios’ account of the different governmental agencies and their responsibilities compared to that of the “electric sector”. Characterizations of “social progress” in this sector contradict claims for a democratic debate on the development of the country that do not consider online consultations of ready-made development plans to be sufficient. The comment by the MME staff on the weighting of responsibilities connected with development projects in remote areas is very interesting in this regard. Especially Lelio hints to the problem of shifting the responsibility for the living conditions in places affected by projects like hydroelectric power plants entirely to entrepreneurs or the Ministry that is responsible for its implementation. The state with all its programs and agencies has to contribute to sustainable development and social justice in the form of basic social services such as providing access to electric energy and building (or equipping) schools and hospitals. Disguising the deficiency in such basic state services as a problem to be solved by infrastructure projects and its actors means expelling the state from its foremost task and privatizing it. Moreover, it means making the provision of these services a condition for the implementation of highly contested development projects. A second collective actor in public discourse seems to be the group of “the indigenists”, comprised not only of FUNAI as a governmental agency, but also NGOs, social movements, and individual intellectuals. The term indigenist relates back to the political ideology of indigenismo as established in Mexico in the first decades of the 20th century. In that specific context, indigenism can be defined as a political movement vindicating the right to cultural difference and recognition of indigenous peoples. These ideas were born in the context of a nationalist movement in Mexico that lauded culturally indigenous heritages as relics of the past, a nostalgic expression for the origins of Mexicans. Starting with the Interamerican Congress on Indigenism in 1940, this movement spread from Mexico to many Latin American countries (Rodrígues-Piñero, Luis, 2005, p.54-57). In the case of Brazil, Antonio Carlos de Souza Lima defines indigenism as a set of ideas concerning the insertion of indigenous peoples in nation-state societies: [O] conjunto de idéias [. . . ] relativas à inserção de povos indígenas em sociedades subsumidas a Estados nacionais, com ênfase especial na formulação de métodos para o

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tratamento das populaçães nativas, operados, em especial, segundo uma definição dos que seja indio. (Souza Lima, Antônio Carlos de, 1995, pp.14-15)

Regarding the actors of indigenism, the so-called indigenists, their role has undergone changes with the development of indigenism, yet old images continue to exist in the present connotation of the term. The first indigenists were adventurers such as the brothers Vilas-Boas, who explored Brazil’s inaccessible hinterlands in the first half of the 20th century and established the first contact with indigenous groups. Later institutions, especially of the church, which fought for the integration of indigenous peoples into the nation state were called indigenists. With the establishment of an indigenist state institution, the Indian Protection Service (SPI), indigenists became a designation for employees of the SPI and later of FUNAI, people of varying formations and with a range of tasks that included all forms of mediation between the Brazilian society, the state, and indigenous peoples (Souza Lima, Antônio Carlos de, 1995). Souza Lima states that the logic of indigenism makes indigenists necessary as spokespersons and mediators by ignoring the capacity and right to self-determination of indigenous peoples. Ora, se hà um campo indigenista, ele se "funda" a partir da inexistência (ainda que ela exista na retórica) do direito à auto-determinação dos povos indígenas: o que não se questiona não é apenas a "lógica da história" e o "desemparo do desaparecimento", mas o porta-vozismo que eles justificam. Faz-se necessària a existência da figura do mediador, que pode ser (mas não só) a do tutor legal. (Souza Lima, 1987, p.197)

Souza Lima sees the image of the “indigenist“ in Brazil quite ambiguously regarding his ability to empower indigenous peoples. The “indigenists” working at FUNAI from the 1970s until 1985 did not obtain specific qualifications apart from punctual and diffuse training, and knowledge was mostly passed on informally by predecessors (Souza Lima, 2001, p.2429). Besides the “indigenists” in the strict sense, anthropologists have accompanied the development of FUNAI and its actions ever since its creation. Important academic figures like Darcy Ribeiro and Roberto Cardoso de Oliveira worked for the SPI and in the Council For Indigenous Policies (CNPI) in which the reform of the indigenist institution was initiated and drafted (Souza Lima, 2001, pp.2427-2429). On the other hand, based on their fieldwork done at FUNAI, João Pacheco de Oliveira and Alfredo Wagner de Almeida report that most positions labeled as “anthropologist of FUNAI” are being filled with all kinds of social scientists holding the most diverse degrees and training in fieldwork (Oliveira Filho, 1998, p.81). Some authors stress that indigenists and anthropologists are two groups that

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should not be mixed. For example, Pacheco de Oliveira and Souza Lima make the point that “indigenismo” as a political movement nurtured by the academic field and “anthropology” as an academic field should not be confused, although overlaps do exist (Oliveira Filho, João Pacheco de and Lima, Antônio Carlos de Souza, 1981, p.289). I think it became clear that the field and the actors of indigenism are closely linked with the institution of FUNAI. On this link exists a great deal of literature, mostly written by Brazilian anthropologists. On the one hand, there is a large body of texts relating to the continuing authoritative relationship that characterizes the interaction between FUNAI staff and indigenous peoples, for example during the demarcation process in which indigenous peoples are integrated only as guides and facilitators (see especially (Oliveira Filho, 1998)). On the other hand, some accounts (and many of my observations) relate to the strong, media-effective protests that indigenous leaders realize in order to influence decisions or the general orientation of FUNAI. It is daily business in FUNAI’s headquarters in Brasília and in regional representations of FUNAI that offices are being occupied and blocked by a visible number of leaders or members of an indigenous community. In addition, claiming vital participation of indigenous representatives in the determining the president of FUNAI is a frequent assertion of the movement27 . As stated above, the regulation of proceedings for prior consultations of indigenous peoples as a direct dialogue between other Ministries and indigenous leaders could modify this complex and historically significant power relation. The relation between FUNAI and indigenous peoples is the topic of an ongoing dispute about a legitimate framing of the institution’s significance and public image (Souza Lima, 1987). Because criticism about FUNAI and its defense are rapidly perceived of as a political project, a critical analysis of the indigenist state agency is very difficult. Criticism is often perceived as an attack on “indigenism” in general,

27 | During the time of my fieldwork, the long standing president of FUNAI, Márcio Meira, resigned and several interim presidents alternated in rapid succession. In this question, too, the indigenous movement tried very hard to pressure the Ministry of Justice to opt for a candidate whom they would approve. Every new office holder in the presidency of FUNAI also has to deal with many different claims (especially from the side of the indigenous movement and anthropologists who work in the area of indigenous policy) and public questionings. Some of the presidents of FUNAI left the office because of pressure from the indigenous movements and supporting organizations (for example the FUNAI president José Márcio Panoff Lacerda in 1999 (Setemy, 2001)).

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or a fatal blow for an already sinking ship, as the anthropologists João Pacheco de Oliveira and Alfredo Wagner de Almeida put it: Em muitos momentos o órgão indigenista mais parece uma nau que, sem timoneiro ou plano de navegação, prossegue a sua viagem em um mar extremamente ecapelado. Todo o esforço da tripulação se resuma à tentativa de não submergir na próxima onda, avaliando um funcionàrio ou uma política exclusivamente por suas repercussões diretas na última crise. (Oliveira Filho, 1998, p.73-74)

However, a defense of FUNAI and its mission is often directly dismissed as a misplaced and old-fashioned defense of tutelage (see for example the analysis that the anthropologists João Pacheco and Antônio Carlos de Souza Lima give (Oliveira Filho, João Pacheco de and Lima, Antônio Carlos de Souza, 1981)). For sure, there is a position of a two-sided attack for FUNAI – from within the government by institutions who fear their work might became too complicated or costly when integrating the perspectives and claims of indigenous or indigenist organizations, and from the indigenous movement not willing to abandon their protests and claims towards what is perceived as “the government”, represented in many cases by FUNAI. Arenas Apart from this actor scenario, many of the actors of the regulation procedure expressed experiences with formats and arenas for participation in the past. For example, Luisa of the Palmares Cultural Foundation (FCP) refers to meetings with quilombola communities that appear to have already mixed features of public hearings as legally envisaged during the licensing process and of prior consultation (especially the above-mentioned necessity to come to terms with the community) as defined in ILO Convention 169. In legitimizing these meetings, Convention 169 already figures as one source of rules among others, and Luisa expects the regulation to bring greater clarity to the forms that consultations should have. Luisa’s account additionally points to a reality that prior consultations will also face: Brazil’s peripheries are in many cases several days of trips from closest urban center; sometimes they are reachable only by boat, and lack electricity among other logistical challenges. Financial resources are crucial in joining a significant number of rural community members at these meetings and not just their leaders. As also was stated in the account of the quilombola leaders, not only time and money, but also administrative flexibility is crucial in dealing with local organizations and logistics. In her account, Luisa repeatedly mixes up different participative formats, for example:

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„We issued a series of conditions for the entrepreneur to have a preliminary license, right, within the conditions it is necessary to realize public consultation according to Convention 169.” (Interview, own translation, my emphasis)

Here it becomes quite clear that Luisa is referring to prior consultation (consulta prévia) as she mentions ILO Convention 169 as source. She says public consultation (consulta pública), which also exists as a participative format in Brazil, but this indicates an individual form of participation and commenting, mostly on legal drafts for public policies via the internet (Governo Federal Brasileiro- Portal Brasil, 2015). Luisa is not the only one mixing these two up. In my interview at the MME, the term consulta pública also appeared when clearly talking about consultation in relation to ILO Convention 169. My interview partners’ vague references to existing participative formats could hint to a certain lack of conceptual clarity within this field. When prospecting a format and place for prior consultation in the negotiation of energy generating projects, I believe that it is of vital importance to take notice that many of the staff members of the responsible state agencies as well as local populations have a long history of experience with another format of participation, namely the public hearing (audiência pública). Different ways to integrate prior consultation in already existing formats for participation for example in the environmental licensing process were discussed. Participation is framed, especially by actors of the electric sector, as it happens in public hearing; in a lecture style, the goal is to inform, not to discuss. In the context of the many different formats for participation existent in Brazil, proponents of an understanding of prior consultation not as an informatory meeting, but as a dialogue had difficulties of bringing this different notion of participation to the negotiating table. This problem appears also in relation to a second kind of arenas repeatedly mentioned in the interviews; those that lie outside of the official regulation of the ILO Convention but still seem to have an important impact on it. The first kind of external arena comprises development projects that are contested in Brazil in terms of a lack of prior consultation, such as the cases of the two hydroelectric power plants Belo Monte at the Xingu River and São Luiz do Tapajós dam. The negotiations and struggles for a legitimate realization of these projects paralleled the regulation debates constantly. The two cases also offer interesting possibilities for comparison. While in the case of Belo Monte, the acting of government representatives during the regulation of prior consultation was restricted to repeating that there had been consultations, which was firmly denied by the social movements and NGOs. The Mundurucú denied consultations until adequate frameworks to help reach binding agreements were provided. After long negotiations with the General Secretariat of the Presidency on possible

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formats for consultations, the Mundurucú developed their own proposal on how they wanted to be consulted. During the ongoing debates on definitions and procedures for prior consultations in the country, especially the General Secretariat of the Presidency was at the same time negotiating a specific procedure for consulting the Mundurucú. Cynthia of the Ministry of Mines and Energy (MME) has called this conflict their “case study” for prior consultation. “Protocols” defining the accepted procedures for prior consultation were a way to calm the protests. Claiming the power to define these safeguards to the concerned groups via “protocols”, which in the case of the Mundurucú was prepared by an indigenous group, does apparently transfer agency back to the indigenous peoples as subjects of rights of Convention 169. On the other hand, the space open for deliberations is apparently still undefined and limited. Instead of clearly outlining the questions to be negotiated and decided upon in consultations, the objectives of prior consultations continue to be a contested issue. This becomes clear when examining the protocol that the Mundurucú people developed and handed over to the General Secretariat of the Presidency. Apart from adding several preconditions to their agreement to be consulted28 , the protocol defines who of the Mundurucú should be consulted: men, women and children of all villages, including those who are not certified and their political organizations, but never only these organizations. After that, the circumstances of future consultations are defined: consultations should occur prior to any decisions and within the territory of the Mundurucú. The government is asked to spend some time with the Mundurucú: When the federal government wants to come to implement consultation in our village, they cannot land, spend the day and go back. They have to stay and be patient with us. They have to live with us, eat what we eat. Hear our conversation. The government doesn’t need to be afraid of us. (Ministério Público Federal - Procuradoria da República no Pará, 2014)

The protocol emphasizes the wish of the Mundurucú to meet with the decision makers and not with their assessors and to speak in their language to translators in whom they are confident, all at the government’s expense. In addition to the proposed three-step model of the government, the protocol of the Mundurucú adds a fourth phase to the

28 | The protocol contains the claim to demarcation of one of their territories and prior consultation for indigenous peoples that are affected but live outside of declared indigenous territories as well as for the riverside communities living at the Tapajós river (Ministério Público Federal - Procuradoria da República no Pará, 2014).

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consultation model – a phase of internal Mundurucú meetings within their villages, with their partner organizations and with their befriended organizations. This step was proposed after the informative meetings with the government and before any deliberative negotiations (Ministério Público Federal - Procuradoria da República no Pará, 2014). Under the headline: “What do the Mundurucú people expect from the consultation?” The protocol ends with the frase: We hope that the government will respect our decision. We have a right to veto. Sawe! (Ministério Público Federal - Procuradoria da República no Pará, 2014)

“We expect that the government will respect our decision. We have the right to veto. Sawe!” As became quite clear, the indigenous movement does try to claim agency as well as authority in the process of interpreting the principles of prior consultation in the country for themselves, and the claim to a right to veto is all but dead despite the continuing denials by government representatives. Similar to creating precedents for prior consultation through the negotiations of conflicts on concrete projects, the judiciary can be seen as another parallel arena in the process of negotiating the meaning of prior consultation in Brazil. The decision of the Supreme Court on the conditions of the indigenous territory Raposa/Serra do Sol appears as a kind of preliminary decision on certain aspects of prior consultation and as an attempt to define the legitimate frames for its interpretation. The Supreme Court’s judgment confirms the importance of the right to be consulted, while at the same time embedding it in the context of other, legally legitimated rights such as national defense that cannot be suspended by consultations. It also gives procedural advice, in negating the automatic application of the conditions to all indigenous territories, the central objective of Ordinance 303. Discourses In all these attempts to frame the question of prior consultation in different arenas, I see several discourses at work. I use here the notion of discourse as a set of ideas and behaviors towards specific contexts as developed by (Foucault, 2007). Discourses then are powerful tools for influencing actors and their roles, steering processes of developing concepts and interpreting reality. Commenting on an interpretation of Convention 169 and the definition of its right holders, Marcos (MMA) wants to ask for the meaning of categories of collective identity at the moment of their creation and tries to connect this with the present. In applying this historic perspective, it quickly becomes obvious that the Indian aimed at in the 1980s does not exist anymore – many authors question if he ever existed or

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was already part of a process of invention (Ulloa, 2005; Ramos, 1998). Instead of questioning the image of the classical Indian, this historic discourse normally questions the rights connected with this image. Especially General Jaime from the DNIT underlines that indigenous peoples would have to be considered as Brazilians in the first place, which makes these groups no longer historic formations of difference, but reduces their status to lower class groups and frames them as in need of state assistance. General Jaime’s use of “minorities” then seems to imply groups presenting special rights based on difference who are actually not so different from the mainstream society and ask for a considerable share of the wealth that the majority in the state produces. However, this difference is based on criteria that were actually dissolved by the process of miscegenation, according to this discourse. The story of miscegenation being a distinctive feature of the historic development of the country is a well-known discourse in Brazil, initiated among others by publications as the famous “Casa Grande e Senzala” (1933) by the Brazilian sociologist Gilberto Freyre. Freyre describes the importance of the relation between plantation owners and slaves for the formation of a non-discriminatory Brazilian society, an idea that later became known as “racial democracy”. In the following years, especially the Brazilian sociologist Florestan Fernandes denounced the idea of racial democracy as a myth of equality that obstructed emancipation of the oppressed and also hindered anti-racist mobilization (Guimarães, 2001, pp.151,154). The denunciation of the perceived myth of racial democracy is described by A.S. Guimarães as a significant catalyst for the protests of the Black movement from the 1970s to the 1990s (Guimarães, 2001, pp.159-160). Nevertheless, Guimarães declares that the idea of racial democracy is all but dead: Morta a democracia racial, ela continua viva enquanto mito, seja como falsa ideologia, seja como ideal que orienta a ação concreta dos atores sociais, seja como chave interpretativa da cultura. E enquanto mito continuará ainda viva por muito tempo como representação do que, no Brasil, são as relações entre negros e brancos, ou melhor, entre as raças sociais – as cores – que compõem a nação. (Guimarães, 2001, p.162)

In his analysis of on the conceptual history and current relevance of racial democracy in Brazil, Guimarães describes that the ideological space of the concept of racial democracy has currently been overtaken by the idea of multiculturalism, which is institutionalized in many of the new constitutions in Latin America (Guimarães, 2006, pp.271-273,271). I will take up this point in Chapter 10.2. While elements of the idea of miscegenation can be found in many of accounts in the previous chapters, two of my interview partners make explicit use of the idea

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that has contributed to the narrative of racial democracy in Brazil. Marcos states that the ideal of the ecological native does not exist and questions rights he perceives as based on this notion, while General Jaime directly declares indigenous peoples as primarily “Brazilian” – understood as an indistinguishable mixture. This approach portrays indigenous peoples as economic minorities, which is a category based on class and not on race or culture. It is on this basis that the right to co-determine and decide on the implementation of developmental projects perceived as important for the whole national society is questioned. Another discursive field of context for prior consultation is the question of the role of the state in mitigating social inequality and defending or creating rights for the disfavored populations. General Jaime supports a concept of state that I would call liberal, looking at the state basically as a provider of services that protect and enable the generation of public wealth. In his argument, processes of political participation in Brazil are already threatening the fundamental process of the production of prosperity and should not be continued in this direction. In agreement with his colleague at the DNIT, Dr. Alice, General Jaime rather sees the right moment for consultation given in the process of planning, and states that it is at this precise time that the responsible governmental institutions and their policies (and not local populations) could be integrated. In this kind of early integration, General Jaime sees a possibility for preventing long consensus-finding processes at the moment of implementation. It is only in that prior planning phase that both Marcos and General Jaime detected a need for thinking of new ways to comply with the norms set in ILO Convention 169. In the implementation of projects, they do not only see change as unnecessary, they furthermore consider the mismanagement of existing rules to be dangerous. My interview partners at the DNIT stated that the Department is in the position of implementing plans and premade decisions in a timely manner, comparable to what was said in the MME. New regulations for participation cannot stand in the way of this task in their point of view, as the generation of public wealth has a clear priority. In an international perspective, this connects to Marcos’ story of anxiety that Brazil could be deprived of global development if human rights and environmental constraints are respected. It is him who compares the stages of development of the countries in the times of the creation of rights for native peoples with their (and Brazil’s) position today. Here, the narratives of shortage also have their place. The scenarios of urgency for using the natural resources for the proliferation of public wealth is also present in other discussions on the “national interest” necessarily superseding particular interests. In addition, the political decision behind a path of development path that leads to a rising demand for energy was not questioned in the interviews with the responsible Ministries like the Ministry of Mines and Energy (MME) or the National

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Department for Transport Infrastructure (DNIT), nor presented as such. Which actors have this increased need for electricity is a question that stays hidden between technical calculations of the “country’s energy demand”. The fundamental assumptions of this discourse question whether a collective can financially afford to respect claims of minorities. This collective is the state – a representation of every one of its members. Marcos says that “We stand at a crossroad of economic development” – without regard for whom actually stands there or for which groups in the country the economic course is being set. In this account, the state does not figure as a relation between different social classes, but as what Souza Lima in his discussion of discourses on statehood in Brazil called the notion of the “collective individual” (Souza Lima, 1987)29 . In sum, the accounts of the members of the Interministerial Working Group (GTI) show the complex interactions between representatives of social movements and state organs, in terms of historically developed relations as well as in the many fields of interaction that influence each other and negotiate the terms of these interactions in always changing contexts. The instrumental use of the discourses I presented here is not to be understood as limited to state representatives. In Chapter 9.1, I will show the more general structures behind the use of discourses in the process of interpreting law as well as more facets of their concrete application in the regulation of prior consultation in Brazil.

29 | Interestingly, Souza Lima sees this image of the state as the fruit of a nationwide consensus (Souza Lima, 1987, pp.161-162) based an indigenist conception of statehood. The indigenist discourse and the development discourse seem to overlap in this regard while aiming at different results.

7. Civil society actors – two NGOs

The involvement of civil society actors in the process of legal regulation of prior consultation in Brazil is much harder to grasp than for the Working Group, as it occurred parallel to the official regulation procedure in many decentralized workshops and seminars. Nevertheless, these acts influenced the participants of regulation, their knowledge on national and international legislation and possible interpretations, as well as related legislative projects, and current conflicts involving the question of prior consultation. This chapter starts with an outline of the events that marked the participation of the main organizations of civil society in debating prior consultation in Brazil. In this review, three main positions of civil society actors stand out: disengaged observation, participation via knowledge dissemination, and direct follow up. In a second part, I will present material from interviews that I conducted with representatives of two NGOs, mapping their changing postures towards the governmental initiative of regulation. Of course, the discussion on the nature of the right to prior consultation and the implementation of ILO Convention 169 in Brazil did not just begin in 2012 with the start of the official regulation process that I investigated. I present here material collected on several informative meetings on the right to prior consultation that had been held by NGOs and other civil society actors before the official process began. In 2008, for example, a seminar on “Opportunities and Challenges for the Implementation of ILO Convention 169” was held in Brasília. The event was organized by the Socio-Environmental Institute (ISA) and the Pro-Indian Commission of São Paulo (CPI-SP), and aimed to sensitize political and juridical key actors as well as the stakeholders of the implementation of the right to prior consultation as defined in ILO Convention 169 (Instituto Sociedade, População e Natureza, 2008). At the seminar, legal experts from the Inter-American Court of Human Rights, the International Labour Organization and the Office of the Federal Public Prosecutor (MPF)

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discussed the legal force of Convention 169. Organizations of concerned groups presented experiences with the implementation in other countries, and judges, FUNAI representatives, the senator Marina Silva and representatives from an indigenous organization discussed the challenges of the application of the Convention in Brazil. One roundtable that consisted of the representatives of the quilombola organization CONAQ, a representative of the indigenous Warã Institute, as well as the Central Workers’ Union (CUT) debated the monitoring system of the International Labour Organization. These organizations had been leading forces for the filing of a shadow report to the ILO a few months before the seminar. At the seminar they were presenting the causes of rights violations they chose to show the ILO in public. The ISA published the talks and discussions of the seminar (Garzón, 2009). Shortly before the official start of the regulation procedure in 2012, another seminar with civil society representatives was held in Brasília in 2011, this time organized by the Alternative Cooperation Network, a network of indigenous and indigenist organizations (Rede de Cooperação Alternativa – RCA). This seminar, like the previous one, counted on the support of the Norwegian Embassy and the Norwegian Rainforest Foundation and was realized in partnership with the Office of the Federal Public Prosecutor (MPF). This time, the seminar was at the University of Brasília (UnB), in cooperation with the Center for Research on the Americas (CEPPAC). In terms of the content of the seminar, it appeared to be a replica of the meeting in 2008; it even consisted partially of the same people, although the 2011 seminar perhaps placed more emphasis on the necessity to regulate ILO Convention 169. Different from the other seminar, alas, was the outcome. The RCA did not just summarize and register the talks, but it formulated first safeguards for a regulation of the right to prior consultation in an accompanying workshop, presented in the form of a specific list of demands towards a regulation process. As for the regulation procedure and its intended result, the document demands broad participation, sufficient time, information and financial resources and a unified procedure for all subjects of rights (Rede de Cooperação Alternativa and et.al., 2011). As many of the civil society actors are registered members of the RCA network, I present the main points of this list of demands here in order to depict the main positions of these actors. In general, the document claims that there should be consultation for all administrative and legislative decisions on the federal, state, and municipal levels that affect the collective rights of indigenous peoples (even if not specifically directed at them), independent of their placement within or outside of indigenous territory. In addition, the document demands consultation for drafts of decrees that authorize the exploitation of hydric and mineral resources in indigenous territories and their surrounding as well as for legislative and administrative decisions on cross-border policies that affect the collective rights of indigenous

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peoples. It also claims a right of indigenous peoples to be consulted on the legislative initiatives and interim measures of the executive that affect the their collective rights (Rede de Cooperação Alternativa and et.al., 2011). As to an adequate moment for consultation, the document stresses that the process of consultation needs to be prior to the administrative or legislative decision taken by the state, meaning still in the beginning of planning processes, and that the responsibility to initiate consultations shall lie with the state, while the indigenous peoples shall have the right to request its realization. In the case of legislative measures, the consultation shall occur before the approval of the final report in the House of Representatives and in the Federal Senate. In the case of authorizations for the exploitation of hydric and mineral resources in indigenous territories, the Congress shall consult indigenous peoples before issuing authorizations (Rede de Cooperação Alternativa and et.al., 2011). The document also states that consultation processes shall be realized by the respective state body with the competence to decide on the object of the consultation, be it the Congress for legislative decisions, or the bodies of the executive power on all its levels for administrative decisions. The state shall guarantee the exchange with indigenous peoples and involve all responsible sectors relevant for the decisions that shall be consulted. During the consultations, the document calls for the presence of a third actor besides the indigenous peoples and the state bodies that shall be vigilant about the content and execution of the decisions under consultation; the Office of the Federal Public Prosecutor (MPF) is mentioned in this context (Rede de Cooperação Alternativa and et.al., 2011). On the subjects of rights, the document mentions only indigenous peoples that are directly affected and underlines the impossibility of FUNAI taking decisions in their name (Rede de Cooperação Alternativa and et.al., 2011). Although other traditional peoples are named as passing references in other parts of the document, they do not receive the same attention as indigenous peoples. Emphasis is put on the importance of an understanding of consultation as a process of various phases that shall be defined jointly between the state and indigenous peoples, depending on the scope and the content of the measure under consultation. From this joint decision shall arise a consultation plan that defines interlocutors on both sides as well as adequate deadlines, independent consulting, translation and modes of decision taking. A time frame should be contained in this consultation plan that contemplates the time needed by the indigenous peoples to realize processes of understanding and deliberation with regard to the measure under consultation. Information for indigenous peoples shall be handed over beforehand and from independent sources, and technical and legal consultants shall be chosen by the indigenous peoples. Furthermore, every consultation shall be documented and made available to the public. The document clarifies that specific consultations shall not be confused with spaces of active citizen

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participation and social control in which indigenous representatives also participate (Rede de Cooperação Alternativa and et.al., 2011). The last item in this list of safeguards for a future regulation deals with the legal force of the results of consultations, which is a very contested issue. Reaching a settlement or obtaining the consent of indigenous peoples is defined as an explicit goal of every consultation. All agreements reached in this process shall be binding and reflected in the final decision. In the case of non-settlement, the state shall register the reasons for the failure to reach an agreement. The structure of this “manifesto” is reflected in the proposal by the Interministerial Working Group (GTI) at the international seminar “Seminário Convenção 169 da OIT: experiências e perspectivas” in March 2012, the opening event for the official regulation procedure. During this seminar, many of the civil society organizations that participated in the previous events were part of an ad hoc Working Group of the civil society that elaborated on comments related to the proposals for the regulation procedure presented by the GTI during the seminar. In their statement on the methods presented by the Working Group at the end of the seminar in 2012, the participating NGOs again urged the government to include the question of which specific state body shall be responsible for the realization of the consultations as well as to define the legal effects of the agreements reached during these processes in a future regulatory document. They reminded the governmental representatives of the possibility to use the already established spaces of participation like the CNPI and the CNPCT in order to disseminate information beyond the official meetings. The signing organizations1 further called for a consented deadline for the regulation process in order to avoid creating sentiments of being overrun on the side of the subjects of rights on the one hand, and on the other hand also avoid extending the discussions infinitely. Finally, the civil society group called for a monitory mechanism that shall help to check on the adequacy of the established proceedings and their improvement, if necessary (Rede de Cooperação Alternativa and et.al., 2011). Shortly after this event, the first declaration of withdrawal circulated in Brasília. The Indigenous Advocacy Center (Centro de Trabalho Indigenista – CTI) published a declaration titled “Who Is Interested in the Regulation of ILO Convention 169?” in

1 | These were the Brazilian Society of Anthropology (Associação Brasileiro de Antropologia – ABA), the Indigenous Advocacy Center (Centro de Trabalho Indigenista – CTI), the Pro-Indian Commission of Acre and São Paulo (Comissão Pró-Indio de São Paulo/ do Acre – CPI-SP/ CPI-AC), the Institute of Indigenous Research and Training (Instituto de Pesquisa e Formação Indígena – Iepé), the Socio-Environmental Institute (Instituto Socioambiental – ISA), and the Alternative Cooperation Network (Rede de Cooperação Alternativa – RCA).

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April 20122 , relating to the “roadmap” that the Working Group (GTI) had published as a result of the seminar in March. The public declaration questions the intentions of the Federal Government to regulate a Convention that it calls self-enforcing at the same time. The authors assert their suspicion that the Brazilian government, which in their point of view never tried to apply the principles of ILO Convention 169, suddenly discovered its interest in these rights. Additionally, the document states that even if good faith were to be presumed behind this initiative, the regulation would aim at questions – one example is the definition of “being affected” by a project – that had already been defined in other legislation (in this case, the Ordinance 419 of 2011). The declaration further states that an international human rights Convention in the current interpretation of the Supreme Court is given a supra-legal status in Brazil and thus cannot not be standardized by a decree or ordinance. In sum, the CTI declaration states that what is needed are not new rules but the political will to apply the existing ones. Here, the CTI sees the actual problem and consequently declares its withdrawal from the regulation process: It seems that, in the current political situation, constituting working groups to ‘normatize’ indigenous participation in the destiny of their territories is no more than a curtain to cover the real intention to undermine the legitimate means of consultation and thus, like this, tutelage the decisions of indigenous peoples with the aim to obtain the complete ownership of the natural resources on their territories. The CTI will not participate in this process. (Centro de Trabalho Indigenista, 2012)

After this first conflict, other declarations of non-participation followed, protesting against Ordinance 303 and the treatment of indigenous and quilombola organizations in the course of the regulation process. In a second public meeting in August 2013, neither the CTI, CIMI nor the CPI-SP appeared at a seminar promoted by the General Secretariat of the Presidency that called for discussing the progress of regulation and a first draft of a legislative act3 . New organizations followed the call4 , and some or-

2 | The original title of the public statement is “A quem interessa a regularização da Convenção 169 da OIT?” (Centro de Trabalho Indigenista, 2013). 3 | For their public statements, see (Comissão Pro-Indio São Paulo, 2013; Centro de Trabalho Indigenista, 2013; Conselho Indigenista Missionário, 2013) the latter was not even invited. 4 | These were among others: the Brazilian Society of Non-Governmental Organizations (Associação Brasileira de Organizações Não Governamentais – Abong), the NGO Global Justice (Justiça Global), the Ford Foundation, the NGOs Terra de Direitos and Conectas, as well as representatives of the research project Projeto Nova Cartografia Social da Amazônia (PNCSA),

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ganizations continued to dialogue with the government, among them the NGOs ISA and Iepé as well as the Brazilian Society of Anthropology (ABA). The ABA representative Ricardo Verdum afterwards published some observations on the course of this encounter. In his report of the meeting, he describes a “tug of war” between the General Secretariat trying to create a climate of cooperation and the civil society representatives demanding the revocation of Ordinance 303 as well as a more plausible initiative of the government to reintegrate the indigenous organizations. After this exchange of positions, Verdum relates, the meeting was closed ahead of time because no agreement was in sight (Verdum, 2013). In sum, I argue that two different strategies can be identified in the civil society engagement with the regulation of prior consultation in Brazil. First, there are the organizations that traditionally operate within the field of politics for indigenous peoples as well as for their territories and resistance, but that never entered or very soon withdrew from the process for different reasons. CIMI and the CTI can be assigned to this position that is predominantly one of observation. I do consider a voluntary absence from the official process an attempt among others to participate in the negotiations on the interpretation of prior consultation. Secondly, there is the broad field of knowledge dissemination related to consultation, in which the most diverse organizations engaged via the hosting of seminars, partly with appearances of the GTI, or via the organization of workshops and other events on prior consultation with their target groups (the Pro-Indian Commission of São Paulo CPI-SP, the Institute of Indigenous Research and Training Iepé, the NGO Terra de Direitos, and the Catholic Pastoral Land Commission (Commissão Pastoral da Terra – CPT)). Some NGOs created virtual spaces of information, for instance the CPI-SP and the ISA created websites on the concept of prior consultation and its application in Latin America (Instituto Socioambiental, 2015b) as well as on the regulation procedure in Brazil (Comissão Pro-Indio São Paulo, 2013). Few organizations accompanied the official process in a relatively continuous way and tried to influence the discussions in the Working Group and among the public. ISA, ABA, and Iepé participated in most of the public meetings with the GTI. In the next two chapters, I will present two NGOs that adhered to opposite strategies: the Catholic Indigenist Missionary Council (CIMI), as part of the organizations that played a more observatory role, and the Socio-Environmental Institute (ISA), as

a network of students and professors of the Federal University of Amazonas, Manaus (Universidade Federal do Amazonas – UFAM), that proposes the creation of participatory maps in cooperation with traditional communities of the Brazilian Amazon (Projeto Nova Cartografia Social da Amazônia, 2014).

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one of the most committed NGOs in the regulation procedure. The perspectives from these different points of view can help to understand the strategies, concepts, and claims of the civil society in the regulation procedure.

7.1. T HE C ATHOLIC I NDIGENIST M ISSIONARY C OUNCIL (CIMI) The Catholic Indigenist Missionary Council (Conselho Indigenista Missionário – CIMI) was founded in 1972 at an encounter of the National Conference of Bishops of Brazil as a coordination unit for the promotion and assistance of the missionaries’ pastoral activities for indigenous peoples in Brazil (Suess, 1989, p.18-19). The founding members were all high-ranking missionaries, priests and other dignitaries of diverse Catholic congregations (Suess, 1989, p.20). The 1970s – time of creation of CIMI – were a period of growing development efforts directed at the Amazonian territories, exemplified by the Transamazônica highway and other projects. For decades, the Catholic parishes had sent missionaries to indigenous territories (one model institution was the “Operação Anchieta” that later became the NGO Operation Native Amazon (Operação Amazônia Nativa – OPAN)) in order to spread the faith, but also as a kind of service to what were perceived helpless poor souls in danger of extinction. In the 1960s a new understanding of Catholic advocacy spread all over the world: the Pope spoke publicly of the “decolonization of the peoples” as the sign of the times, and diverse regional encounters of bishops and missionaries in Latin America started to discuss and denounce violence and arbitrariness against indigenous peoples on the continent of South America (Suess, 1989, p.11-13). Souza Lima writes that no official indigenist activity of that time can be understood without taking into account the actions of the Church (cf. (Souza Lima, 2001, p.2431)). He sees the goal of CIMI and other contemporary missionary operations as directed to creating a pan-indigenous movement to claim self-determinism for all indigenous peoples against the growing access of capitalism to their territories. In line with the proposals of the 2nd Vatican Concile and its Latin-American corolaries, Cimi’s work is dedicated to the indigenous areas [. . . ], promoting indigenous assemblies, as well as opening the field for pan-indigenous organization, and emphasizing this, on a rhetoric level, as a prime via for indigenous self-determination (Souza Lima, 2001, p.2436).

In this spirit, CIMI supported the first official “National Assembly of Indigenous

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Leaders” in the country, in 1974, and continued to promote exchanges between political leaders of the rising indigenous movement in Brazil in the following years (2006: 188–89). As stated above, the Church played a crucial role in these times of the first shaky steps of a national indigenous movement based on an engagement of indigenous leaders themselves. In the first decades of its existence, CIMI was repeatedly in explicit opposition to and in open conflict with the policies of FUNAI, the government agency for official tutelage (2006: 193), (Suess, 1989, pp.21-26,78-80). In a number of other cases, the behavior of CIMI was also not in line with leading bishops and dignities of the Catholic mission in Brazil, but CIMI was institutionalized as an annexed body of the National Conference of Bishops of Brazil with their own statute of maintaining a certain independence from the leading bishops (Suess, 1989, pp.90-91). The German theologian Paulo Suess, who looks back on decades of pastoral care in the Amazon, describes the preservation and defense of the indigenous territories as a question that took center stage of the missionaries’ actions in the following decades (Suess, 1989, pp.25-26). Another crucial field of action became the promotion of the participation of indigenous peoples in the reformulation of the Federal Constitution in the 1980s. Apart from the direct support of indigenous leaders who tried to personally participate in the public discussions in Brasília, CIMI presented an amendment to the National Constituent Assembly in 1987 that promoted the defense of indigenous territories, self-determination, a multi-ethnic society as well as the concept of a multi-national state (Suess, 1989, pp.76-77). Today, CIMI’s members include more than 400 missionaries and laypersons in 114 teams with the mission to place themselves at the service of the lives of indigenous peoples in the whole country. CIMI is organized in 11 regional offices that provide a basic structure of support for the personnel working within the indigenous areas and one national secretary in Brasília, providing consulting services on politics, legal questions, as well as supra-national articulation. In its more than 40 years of existence, the field of action of the NGO has only negligibly changed: the struggle for the recognition of indigenous territories, the strengthening of the indigenous movement, and an intercultural as well as inter-religious dialogue have been core intentions of CIMI from its beginning until this day. A new dimension of work is the support of indigenous peoples living in urban areas (Conselho Indigenista Missionário, 2015)5 . CIMI’s role in this regulation process can justifiably be described

5 | One of its most famous “frontiers” is surely the support of the resistance against the hydroelectric power plant Belo Monte against which the Bishop of Xingu, Erwin Kräutler has been protesting for decades despite continuous death threats and attempted assaults. He has

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as merely an observational one. CIMI did not officially participate in the meetings with the Interministerial Working Group, nor has its presence been registered in any of the preparation seminars. In a document justifying its absence from the seminar for civil society groups that the General Secretariat organized in 2013, it justifies its rejection of the invitation to participate in the colonialist language of the regulation procedure in which whites would again define the rules of the game. It supports the blockade of the process by the indigenous organization APIB and names Ordinance 303 a political choice of the Federal Government that it considers incompatible with any regulation efforts that aim to realize the principles of ILO Convention 169. The result of CIMI’s analysis of the situation is that the rules laid down in the Convention will most probably not be respected by a regulation led by the government: There is no reasonableness nor implementation guarantee of the guidelines of Convention 169 in the process of regulation as it is led by the government (Conselho Indigenista Missionário, 2013)

My interview partner at CIMI was the executive secretary Gabriel, who was prominently involved in protesting against legal projects in the capital, using the obligations assumed with the ratification of ILO Convention 169 repeatedly as an argument against the restriction of indigenous rights to participation and their territories in the country. He had come to join the National Secretariat of CIMI in Brasília in 2009 after working in the coordination of the Southern region. The National Secretariat of CIMI occupied itself mainly with giving information about steps and performance of the Brazilian indigenous movement. This information was presented in international forums and also included evaluations of legal processes. CIMI participated in many formats in the public debate on the desired course of development of Brazil. In our interviews, Gabriel expresses a very negative perspective on the regulation of prior consultation in Brazil. He sees the reason and the benefit of the regulation process in the guarantee of access to resources for the agro-industrial sector, facilitated by a government that totally surrendered to the demands of a model of development oriented on exports. He interprets the regulation initiative as being primarily directed at increasing the viability of an infra-structure apparatus that guarantees the transport of commodities as well as the extraction of resources: roads and ports for

been president of CIMI between 1983 and 1991 and was endowed with the Right Livelihood Award, also known as an Alternative Noble Peace Prize, in 2010 for his struggle in favor of the indigenous peoples of the Amazon.

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transport, as well as hydroelectric power plants in order to meet the rising demand for energy. “In our understanding, this initiative aims at facilitating and allowing the progress of – in the first place – development projects. In the current political scenario in Brazil, we think that the prime aim of the executive is to implement the model of development that the government took on, which is fundamentally extractivist and export-oriented. This means, its based in the production of agrarian commodities, based in the exploration of primary resources and totally oriented towards exports. To facilitate this, a strong fight and valorization of land is happening, lands that are needed to produce the commodities and extact the minerals needed to implement this model. In order to facilitate on the one hand the flow of commodities and on the other mineral extraction, the government – the executive – is committed to implement a whole apparatus of infrastructure ; be it highways, waterways, havens or hydroelectric power plants – because mineral exploitation demands a lot of electricity, especially in the Amazon region – [. . . ] So we have this huge demand of the executive. It’s all an arrangement.” (Interview, own translation)

Gabriel sees making formerly protected areas accessible, which according to him means the last huge reserves of natural resources in the Amazon, as the principal focus of interest in the negotiations on legal regulations for prior consultation. Within that perspective, he regards the inclusive approach of the government – including quilombola communities and in the beginning even other traditional communities into the group of subjects of rights – as a devious move to possibly include their vast, resource-rich territories in the groups who are potentially accessible for the agribusiness6 . “The agri-business is interested in all lands, all existing territories. [. . . ] The land that is still available or that could be available on the market is exactly that land which is

6 | Gabriel names more related processes of including new territories in the land market. He names the circulation of a decree that shall allow the sale of quilombola territories, as well as rumors of an inner-governmental discussion on the possibility to issue private land title in the government settlements known as assentamentos. Until now these territories had been under the authority of the National Institute of Colonization and Agrarian Reform (INCRA). This would also allow for private sales. Gabriel’s repeated conclusion is that: “So all these elements are part of the process to put a maximum number of territories on the land market.” (Interview, own translation)

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occupied [by indigenous and other traditional communities]. We cannot generalize, but predominantly, the majority of territories that are being aimed at by these sectors (the agri-business and other sectors), they are occupied by whom? Indigenous peoples, quilombolas communities, traditional peoples. Why? Because these are areas that are located at the banks of the big rivers or in areas with mineral resources. In many of them there exists only timeber, forest, where these people live. Its obvious that all these lands are in focus. That’s why they try to integrate all of them in that regulation block, in order to get access to these territories.” (Interview, own translation)

Gabriel sees strong political alliances behind this attack on protected areas: The “bancada ruralista” – a union of parliamentarians openly supporting the claims of large agricultural producers in the Brazilian Congress – is in his perspective preparing several legal projects in order to facilitate this access. “Indigenous territory, declaration of quilombola territory and creation of new protected areas: The landowner lobby, they attack these three topics because for the agribusiness, they are considered barriers to access land.” (Interview, own translation)

From this perspective, his conclusion on a viable strategy for the affected populations and their territories versus this attack appears quite logical: In the first instance, indigenous peoples had to slow down the fast speed with which the government tried to solve this regulation. With reference to the publication of Ordinance 303 contradicting essential points laid down in ILO Convention 169, Gabriel concludes that it does not make sense for the indigenous peoples to cooperate in such a fast-track regulation. As for the CIMI’s interpretation of the right to prior consultation, Gabriel says that in his point of view, the right to consultation comprises the right to consent. He considers it essential to include this aspect in any meaningful application of the right to consultation. “Our understanding of Convention 169 is that it gives indigenous peoples the right to decide if they want or don’t want, if they accept or don’t accept, if they agree or don’t agree with a specific project or venture, whatever it might be, on their territories.” (Interview, own translation)

Gabriel sees the task of CIMI in this situation to be in solidarity with indigenous leaders, and especially National Secretariat of CIMI should play a supporting role for indigenous delegations on their missions in Brasília. Some of the leaders, he related, are also starting to work for the government. Gabriel describes a strong demand

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for the involvement of political leaders of the indigenous movement in governmental bodies. Apart from the positive aspect of being able to influence processes from within the government, Gabriel sees here the danger of compromising the actions of these leaders within the movement. Gabriel does not comment very positively on the official indigenist agency FUNAI. “Politically and financially disassembled” is his verdict. Because of the recent institutional reform, FUNAI outposts in the indigenous villages had been closed, and Gabriel describes the technical coordination as not able to get the necessary financial resources for regular visits in the villages. FUNAI is not able to put plans into action on the ground, says Gabriel. But he does not see this entirely anchored with the institution itself. He sees a political strategy behind the weakening of the official indigenist agency, which is the same strategy as behind the attempts to change the rules regulating access to protected areas: impeding the support for indigenous claims to land.

7.2. T HE I NSTITUTO S OCIOAMBIENTAL – (ISA) Founded in 1994, the Socio-Environmental Institute (Instituto Socioambiental – ISA) is a quite young non-governmental organization. The ISA itself describes the end of the 1980s as a series of events that brought together the founding team of the SocioEnvironmental Institute (ISA): the movements and discussions around the new Federal Constitution of 1988, the creation of a Movement of the Forest Peoples (Aliança dos Povos da Floresta) in the same year, the protests of indigenous groups against the plan to exploit the Xingu river basin, and finally the preparation and realization of the Earth Summit in Rio de Janeiro, in 1992 (Instituto Socioambiental, 2015a). The newly created organization absorbed the “material and immaterial heritage” of two older organizations, the Indigenous Rights Nucleus (Núcleo de Direitos Indígenas – NDI), and the Ecumenical Documentation and Information Center (Centro Ecumênico de Documentação e Informação – CEDI), the latter’s publication and research series Povos Indígenas no Brasil being a standard work on the situation of indigenous peoples and policies directed at them in Brazil that the ISA keeps publishing to this day (Instituto Socioambiental, 2015a). The ISA has eight regional offices in Brazil, three of which are in larger cities (São Paulo, Manaus and Brasília), and five in project areas in the Amazon, at the Ribeiro River and at the southern part of the Xingú River. As for its funding, the ISA counts on three types of financial sources: institutional partnerships, partnerships supporting certain programs, and financial support related

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to concrete projects within these programs. The organization is funded by all kinds of national and international funds7 as well as by large companies such as Vale and Petrobras, and governmental agencies such as the Ministry for Environment (MMA) or the Ministry of Agrarian Development (MDA) (Instituto Socioambiental, 2015d). Today, the ISA’s work is organized into six focal points. Three programs aim at the social, economic, or environmental planning of large river basins: the Xingu Program, the Ribeira Valley Program and the program Rio Negro Socioambiental. Furthermore, the section “Povos Indígenas no Brasil” collects and publishes information on indigenous peoples in the Brazil, and the program “Monitoramento de Areas Protegidas” engages in the monitoring and information of protected areas. Finally, the Program for Socio-Environmental Policies and Law aims to promote and to foster the implementation of public policies that guarantee the integration of a balanced ecosystem and decent living conditions for indigenous and other traditional peoples (Instituto Socioambiental, 2015f). I met two representatives of the Socio-Environmental Institute (Instituto Socioambiental – ISA) at different points of my research. Carolina, forestry engineer, I met in the very beginning of my research for a short interview. We discussed the problem of prior consultation in the context of ISA’s work. As mentioned in Chapter 3, my relationship with Beatriz, a lawyer working in the Department of Socio-Environmental Policies and Law of the ISA, was very different. We met several times for informal meetings and I also met her at almost all public events in Brasília dealing with the issue of the regulation of ILO Convention 169 or prior consultation in general. Beatriz has written extensively on the question of prior consultation in Latin America, on current socio-environmental conflicts in Brazil and their legal interpretations as well as on human rights. She had studied the issue of prior consultation in Colombia, and was involved in negotiating the formats and content of participatory meetings at Altamira in the case of the hydroelectric power plant Belo Monte. During the regulation procedure, Beatriz gave several talks on the right to prior consultation, and she prepared legal reports among other for the Office of the Public Prosecutor (MP). In our meetings, Beatriz gave examples of the initiatives of the ISA when discussing prior consultation: She recalls many meetings in and around indigenous territories aimed to discuss the topic. She points especially to an educational course for young indigenous leaders in the indigenous Xingu Park in which the already men-

7 | These are, for example, the Ford Foundation, Rainforest Foundation, the Bank of Brazil, the Brazilian Biodiversity Fund, the Amazon Fund, the Moore Foundation or the European Development Fund (Instituto Socioambiental, 2015d).

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tioned indigenous protocols8 containing independent suggestions from indigenous groups on how they want to be consulted were being developed. Beatriz also tells of the ISA’s engagement against a mining project that will further affect the conflictive area surrounding the construction site of the hydroelectric power plant Belo Monte. The planned mine will probably produce cumulative stress on the riverbanks and its inhabitants, and ISA was producing information material as well as organizing public debates on these effects. When talking about her impressions of the negotiations on the implementation of projects such Belo Monte in situ, Beatriz cites a new trend in the claims of indigenous leaders. Those leaders, she says, express the demand to not only be recognized as affected people, but to participate in the profit generated through projects to which they have not agreed to. These projects would produce a financial surplus that they want to share. Beatriz considers the debate on compensation instead of participation dangerous with regard to legal questions of collective property relationships, but also with regard to the equivalent that is created in these negotiations on compensation: education, health and other basic state services should be provided independently of the implementation of infrastructure projects, but they often constitute large parts of the mitigation measures negotiated during the licensing process. Beatriz points to the risk of using these basic state services as a bargaining chip in future negotiations during consultations. Carolina also has ample experience with the creation of environmental mitigation measures and describes the results of the negotiations on the implementation of projects as kinds of instant shopping lists that rarely reflect the process of the continuing impact that most of the projects generate. Instead of exchanging basic civil rights for the destruction of their territories, the debate on consultation should consider “prior” to mean “prior to planning processes”, Beatriz states. She says that this is exactly the point the Mundurucú would try advance through their protests: a consultation on the hydrological resource plan for the Tapajós river basin. This would prevent further conflicts on every single power plant, Beatriz concludes. In the struggles for a legitimate interpretation of the right to prior consultation in Brazil, she sees a limitation in relating the terms only to ILO Convention 169. Prior consultation and the right to free, prior, and informed consent would have more legal sources than the actually quite conservative interpretation laid down in Convention 169, she said. Unfortunately, the government explicitly decided to regulate ILO Convention 169 and prior consultation only insofar as it is regulated

8 | See also Joana’s account in 6.8.

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by the International Labour Organization. Nevertheless, the public discussion would not have to be restricted to this, she adds. Beatriz has a quite negative view of International Labour Organization and specifically its Committee of Experts (CEACR). The CEACR would not be capacitated to interpret indigenous rights since they lack specialization in these issues. She calls their interpretation of the right to consultation very conservative and adds that the whole body of the ILO would represent an inadequate structure to discuss these kinds of rights since it would exclude the presence of indigenous peoples and would consist of one third of representatives from companies whose interests would be adverse to the interest of indigenous people worldwide. Overall, the prominence of ILO in the topic is considered inadequate by Beatriz, who sees the Inter-American System of Human Rights as a much more appropriate body to discuss and define the right to prior consultation. It was the Inter-American Court of Human Rights that pointed to the difference between the right to veto of indigenous groups – a concept that still is regularly criticized as being anti-democratic – and the obligation of the government to obtain the consent of indigenous peoples, Beatriz states. According to her, this difference is a political one; it implies a semantic change of perspective on the consultations and a new perception of the agency of the implied actors to engage in a constant dialogue instead of being granted the one-time power to vote “yes” or “no”. She calls the whole debate on the “threat” of a right to veto for indigenous groups an outdated discussion that is used to disqualify the rights of indigenous peoples. Beatriz considers the precautionary measure of the Inter-American Commission on Human Rights (IACHR) with regard to Belo Monte to be the real trigger for regulation efforts, while she sees the shadow report handed in by the Central Workers’ Union (CUT) as too moderate and politically influenced by the PT, which is Brazil’s Working Party that has been governing the country since President Lula was in office. Carolina states that the inner-Brazilian discussion, the sustainable development plans of the 1980s as well as the never-ending conflict on Belo Monte, have triggered criticism of the specific forms in which consultations and in general participative forums are implemented in the country. This criticism has now found an expression and a possibility for realization in the regulation of ILO Convention 169. Talking about the progress of the regulation process, Beatriz comments positively on the fact that the General Secretariat uses existing agendas with NGOs and other civil society actors in 2012 to debate prior consultations. Different from critics within civil society organizations who alerted that this way, no clear requirements would be observed for the consultations of the subjects of rights and feared that these meetings could be sold as consultations afterwards, Beatriz sees positive aspects in this proceeding. These informal meetings and discussions on prior consultations would

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contradict the argument that there would not be enough money to consult large groups of the population, and in addition the topic would reach more peoples and not only the same leaders as it always has, she states. Furthermore, these unofficial meetings would facilitate the contextualization of the right to prior consultation on the one hand within the framework of large projects and participation in general. On the other hand, they would show that consultation processes are already part of a practice of relating between the government and indigenous peoples that need to be regulated. When she describes one of these unofficial informative events on prior consultation in the indigenous Xingu Park, she stresses the merely informative character of this encounter and relates that leaders predominantly express their distrust in the good faith of this governmental initiative because of the many commitments that the government did not fulfill. When asked about her expectations on the regulation procedure in 2013, Beatriz sighs and states: “Não tenho mais saco para o governo” – “I am fed up with the government”. In general, she stresses that the implementation of the right to consultation does not depend on this regulation. The Convention would continue to be valid, and the protocols with indigenous claims on minimum requisites for consulting them would continue to be elaborated. What is more at stake in her point of view is the dialogue between civil society and the government. If a decree were to be published and which it stated that all the meetings officially declared as informative indicated that that consultations had been realized, Beatriz opinion is that this would represent a severe breach of trust between the different parties of dialogue.

7.3. B ETWEEN

COOPERATION AND RESISTANCE : STRATEGIES OF THE CIVIL SOCIETY ORGANIZATIONS

Beatriz’s final statement “I am fed up with the government” reflects a general gradual movement of withdrawal of NGOs from the regulation process. Two main points of criticism on the proceeding of the regulation are expressed by these organizations. First is the ambivalent acting of what is perceived of as “the government” with relation to Ordinance 303. The withdrawals of the NGOs were meant to express their support for indigenous organizations in their blockade strategy directed at the revocation of the Ordinance. And second, the governmental plan to proceed with the regulation with or without the indigenous movement is heavily criticized. These critical points reflect the position of the Catholic Indigenist Missionary Council (CIMI), the first NGO presented in this chapter. CIMI operated as a critical observer of the regulation procedure, producing and distributing information on

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events and developments from an external position, and insisting publicly on their interpretation of the right to consent, which included a right to not consent to what is perceived of as the selling-off of the last protected areas. This position of resistance and opposition to state policies for indigenous peoples appears to be almost inherent in the history of CIMI. It is interesting to take note of the processes of agenda-setting and expertise-claiming which seem to shape a relationship of concurrence on access to indigenous peoples between FUNAI and CIMI for quite some time. FUNAI is criticized as creating a kind of exclusive channel between the institution and indigenous peoples by various accounts of missionaries, while CIMI struggled for some time to establish an officially recognized authority on the issue. Yet in these days, the political situation is perceived of threatening an indigenist agenda in general, and the representative of CIMI, Gabriel, depicts FUNAI as a victim of stronger political agendas. In our conversations as well as in public statements, CIMI describes the regulation of prior consultation as captured by the political project to create access to protected areas. Compared to CIMI, the ISA was more actively engaged in the regulation process, participating in the official meetings as well as organizing their own meetings and trying to shape the process principally via the introduction of new references for an interpretation of the right to prior consultation in Brazil. ISA - and Beatriz specially – were busy introducing new perspectives and points of view on the contested issues in the discussions on an interpretation of prior consultation in Brazil. She stresses the differentiation between the right to prior consultation as defined in Convention 169 and in the general discussion within international law. This perspective opens up new frameworks for a valid interpretation of this right in Brazil, and it relates to Rosana’s earlier statement of not being content with the concept of consultation as defined within the Convention. While questions in the discussions with governmental agencies mostly circled around ways of understanding and interpreting what is said in Convention 169 and by the ILO experts, this perspective opens the floor for a broader discussion on prior consultation. A good example is the question whether the right to veto is granted by ILO Convention 169. As I have shown in the previous chapters, a great deal of energy is spent by the participants of the regulation on finding arguments supporting or impeding a right to veto, while the perspective presented by Beatriz sees in ILO Convention 169 the obligation to reach an agreement. This obligation to reach an agreement implies another kind of agency among indigenous peoples and the government; it implies a process of dialogue rather than punctual meetings that permit or veto the proposed projects. Still, this “semantic change” does not solve all procedural problems. Here, too, questions of procedure need to be solved, as for

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example the timeframe in which the two parties are obliged to negotiate in order to reach a settlement. With the introduction of new, powerful interpretations of the right to prior consultation from institutions such as the Inter-American Commission on Human Rights, the sole authority of the ILO Committee of Experts (CEACR) is questioned and the constructed quality of the ILO’s expertise on the issue of indigenous rights is exposed9 . Apart from the exclusive authority of the ILO experts, Beatriz also scrutinizes the tripartite structure of the organization and the resulting representation of indigenous peoples and their claims by a politically influenced workers’ union, the CUT. This is a common point of criticism on the ILO system in relation to indigenous rights (Keppi). On the hand, then, this shows the role of NGOs in introducing new possible frameworks for the interpretation of law, of prior consultation in this case. In harsh contrast to these considerations, my interview partner in CIMI, Gabriel, produces the classical discourse of development in which the government is at service of and entwined with large agro-industrial enterprises which are focused on production for exportation. According to Gabriel, this “conjuncture” grasps at the last pristine and fertile territories, which are those of the traditional peoples. The weapon in this struggle is the law, used by the political representatives of agribusiness. Gabriel identifies clear, class-related interests in the regulation procedure. There is even a special language that illustrates this story; many CIMI representatives use the expression “conjuntura” (conjuncture) to name the complex relations between government and the agrarian and industrial economic sector. Gabriel even speaks of “the capital” being an actor in the regulation process, and by this evokes Marxian theories on class related struggles for resources. Interestingly, looking at the actors in this study as well as their motivations, Gabriel’s presentation of the regulation process resembles the one used by Marcos (MMA) and General Jaime (DNIT). The envisioned context for the regulation procedure is Brazil’s increasing need for energy in order to supplement its expanding economy. This need can only be fulfilled by the access to resources in territories that predominantly interfere with protected areas and traditional populations. The extraction of these resources is part of a longer process of planning, and participatory measures have to be integrated into existing procedures of implementation. Within this discourse, the regulation of ILO Convention 169 is regarded as serving first and foremost for the creation of a flexible frame for consultations, avoiding the situation of legal uncertainty and making development planning feasible. The different uses made of this discourse by the distinct actors is based on

9 | For a historic revision of the establishment of this authority, see chapter 4 on the creation of ILO Convention 169.

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whether they consider the vision and priorities illustrated in the discourse as serving public growth and social justice. In the perspective of CIMI, it is labeled as serving only the interests of the owners of the agro-industry.

8. Observers: international, national & disciplinary experts

Observers appeared on various levels in the negotiations on a national regulation of prior consultation in Brazil. The International Labour Organization (ILO) is the issuing authority of the Convention under regulation, yet due to its structure, interventions by the ILO are limited to publishing observations and commenting on reports, except in cases of strong violations of rights regulated by the ILO’s conventions. In contrast to the UN system, the Inter-American System of Human Rights, established by the Organization of American States (OAS), provided legal actors and forums that took much more active positions to the cases of alleged violation of ILO Convention 169 in Brazil. Yet, also these attempts had to stay on the level of critical reviews and questionings of Brazilian politics due to the restriction of the international human rights regime. On the national level, especially the Office of the Public Prosecutor (MPF) is to be mentioned as a very active observer of the regulation process. The MPF repeatedly intervened in concrete cases of conflict by appealing to regional courts and the Supreme Court in demand for the realization of prior consultations, mostly in cases of hydroelectric dams. Still, although often invited to public events and debates on the issue in their role of experts, representatives of the MPF were not officially participating in the elaboration of a draft law for prior consultation. I further included a chapter on a third group of experts, which I introduce here as disciplinary experts. Besides the important role of legal expertise, the evaluations of anthropologists of pending problems of the realization of prior consultations such as cultural difference, translation, or intercultural communication were part of the public negotiation on the meaning of prior consultation in Brazil.

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8.1. I NTERNATIONAL

OBSERVERS :

ILO

AND THE

OAS

The International Labour Organization (ILO) is the “issuing authority” of the norm everybody tried to apply and interpret in the regulation process. In addition, the ILO comprises a monitoring system that evaluates and publicly reproaches violations of its norms in countries that ratified them. In official statements of several Ministries and Ministry staff of the Brazilian government, the International Labour Organization and its monitoring system is often mentioned as having triggered the whole regulation procedure. My interview partner at the Socio-Environmental Institute (ISA) regarded the Inter-American Human Rights System as the most suitable forum for the frame of reference and discussion of the right to prior consultation. By this, she refers to the human rights protection system of the Organization of American States (OAS). This system was established in 1948 via the “American Declaration of the Rights and Duties of Man” and consolidated via the adoption of the “American Convention on Human Rights” by 35 countries (Organization of American States, 2015). The two bodies acting in the name of this system are the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights (IACHR) (Hopkins, 2009, p.136). The Commission is composed of seven experts in human rights (not specifically rights of indigenous peoples)1 that have the mission to raise awareness and make recommendations to member states with respect to measures that will foster human rights, prepare reports and request reports from governments on the human rights situation in member countries, as well as conduct on-site investigations on human rights violations (Hopkins, 2009, p.148-149). In addition, the Commission may request a country to adopt precautionary measures in order to prevent serious human rights violations (Inter-American Commission on Human Rights, 2011). In 2011, the Commission sustained a request to invoke precautionary measures on Brazil in order to prevent serious harm to the indigenous communities living at the Xingu River basin by the impacts of the Belo Monte hydroelectric power plant (Inter-American Commission on Human Rights, 2011). In answering a call by several local indigenous groups and their support groups, the Commission requested the Brazilian gov-

1 | Since 1990, a Special Rapporteur on the Rights of Indigenous Peoples supports the work of the IACHR in promoting the Inter-American Human Rights System as it is applied to indigenous peoples. His tasks further include the production of thematic reports, participation in the analysis of petitions and requests for precautionary measures such as on-site visits to OAS member countries (Organization of American States, 2011).

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ernment to immediately suspend the licensing process in order to meet minimum requirements such as: prior consultation, guaranteed access to the environmental impact studies, and an adoption of measures to protect the isolated indigenous groups living in the area (Inter-American Commission on Human Rights, 2011). The reaction of the Brazilian government to this request was indignant. In an official news release, the Ministry of Foreign Affairs stated that all requirements had been fulfilled, including consultation of the affected populations, and that the Brazilian government considered the actions of the IACHR “precipitated and unjustifiable” (Ministério das Relações Externas. Assessoria de Imprensa do Gabinete, 2011). In addition, the nomination of the Ex-Minister of the Secretary of Human Rights, Paulo Vannuchi, to a position in the IACHR was cancelled. A few months later, the Inter-American Commission on Human Rights withdrew their demand for prior consultation. I think this case clearly shows the heavy political and financial burden which the interpretation of prior consultation carries on all levels of the debate. Nevertheless, diverging interpretations continue to exist. In 2009, the IACHR published the report “Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System”, citing the UN Special Rapporteur James Anaya, who differentiates between the right to veto and the right to consent in his report to the UN Human Rights Council. Anaya’s report is entitled “Report on the Situation of Human Rights and Fundamental Freedoms of Indigenous People”, and it deals with the problem of a potential right to veto for indigenous peoples in consultation processes as defined in international law, with specific reference to the UN Declaration on the Rights of Indigenous Rights of 2007: In all cases in which indigenous peoples’ particular interests are affected by a proposed measure, obtaining their consent should, in some degree, be an objective of the consultations. As stated, this requirement does not provide indigenous peoples with a ‘veto power’, but rather establishes the need to frame consultation procedures in order to make every effort to build consensus on the part of all concerned. The Special Rapporteur regrets that in many situations the discussion over the duty to consult and the related principle of free, prior and informed consent have been framed in terms of whether or not indigenous peoples hold a veto power that they could wield to halt development projects. The Special Rapporteur considers that focusing the debate in this way is not in line with the spirit or character of the principles of consultation and consent as they have developed in international human rights law and have been incorporated into the Declaration. (United Nations, 2007, p.17)

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Here again, new possible sources for a legitimate interpretation of the right to prior consultation widen the area of action and discussion on the topic of prior consultation. A few years had passed between the intervention of the IACHR on behalf of the implementation of prior consultation and when I started my research in Brazil. In the national regulation process, the Inter-American Commission on Human Rights was mentioned merely as an additional reference. That is why I focused on the ILO as the present international actor in the regulation efforts. I met two kinds of ILO staff. In the first instance, I interviewed employees at the national office of the ILO in Brasília. One employee, Tamara, was working in a program of the ILO on food security among indigenous women and children. Since there was no specific program to deal with Convention 169 in the national office when the regulation process was initiated in 2012, this program was adapted to include lines of action directed at the support of the working plan of the General Secretariat such as meetings with indigenous leaders, or translations of Convention 169 into indigenous languages. Another employee, Saul, joined our conversation at the ILO Office in Brasilia where he worked in the directorate of the ILO national office. He is a labor attorney and a widely known expert on labor rights in Latin America who formerly acted as a US workers’ representative in ILO Committees and Conferences. Both Tamara and Saul underline the obligatory neutrality of the regional ILO offices in relation to national processes of the interpretation of ILO norms. Saul explains: “Our office does not develop an official understanding of a Convention. [. . . ] What we do is relate, cite the conclusions and recommendations issued by the supervision system that I just explained. We have to be very careful with this.” (Interview, own translation)

Saul repeatedly reminded that it is the supervision system of the International Labour Organization that issues conclusions and recommendations on the implementation of the ILO’s norms, Saul reminds. This supervision system is constituted via regular reporting of the signatory countries of every ILO Convention to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) (Rodrígues-Piñero, Luis, 2005, p.243). The Committee is formed by 20 jurists appointed by the Governing Body of the ILO and entrusted with the task to “provide an impartial and technical evaluation of the state of application of international labour standards” (International Labour Organization, 2015a) via an analysis of the reports that are submitted by every country on the ratified conventions. The Committee has several ways of answering to these reports. It can either request more information

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on questions mentioned in the report directly from a country’s government as well as employers’ and workers’ organizations (Direct Requests), or the experts can decide to publish observations on the situation of labor rights and the implementation of specific ILO norms in the country in its annual report. This report is analyzed at the annual Labor Conference, which is a meeting of all member states, and at the conference a list of the worst cases of rights violations is chosen by the tripartite Conference Committee on the Application of Standards to be discussed publicly among all member countries at the General Assembly. Figure 8.1 illustrates this procedure.

Figure 8.1.: The regular supervisory process of the International Labour Organization (International Labour Organization, 2015a) After interviewing the two members of the ILO national office, I met the Brazilian member of the CEACR, who was also the Minister of the Superior Labour Court (Tribunal Superior de Trabalho – TST), the highest Brazilian appellate court for la-

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bor law issues, for an interview, again together with Saul2 . Apart from his work in these boards, Leonel represented the ILO in several seminars on the subject of prior consultation in Brazil. In our interview, Leonel tried to explain the working principles of the Committee of Experts. Created in 1926, the Committee was set up to verify if the information in the reports revealed a suitable application of the ratified Conventions in the respective countries. Leonel meets annually with his peers in the office of the ILO in Geneva, where assessors have already pre-prepared the cases and suggested measures. When the experts arrive in the Geneva office, they read and comment on the prepared documents for five days. Each expert has certain conventions or topics on which he or she will especially comment. After this preparation phase, the final products are translated to the official languages of the ILO (English, French, and Spanish) and will be read and discussed in plenary meetings by all 20 members of the Committee. The experts, among them judges, Prosecutors, lawyers and professors from around the world, then make decisions traditionally in unanimity, which Leonel said implies processes of debate and consensus finding. Debates with a cultural background, Leonel states, would be the most complicated for the experts. He gives the example of Koran schools that send children to go begging. Whether this is considered child labor or a lesson in humility is not easy for the members of CEACR to determine. What happens in the long term, Leonel says, is that the Committee develops a doctrine on certain topics. He hastens to add that this doctrine is not to be equated with jurisprudence, as the Committee of Experts is not a jurisdictional body. Instead, the experts develop specific readings of each norm, and these readings are reviewed from time to time and published in documents called “General Surveys” – compilations of the understanding of the Committee of Experts on certain matters. Apart from the General Surveys, the Committee of Experts also publishes “General Observations” with more generic comments on subjects that deserve elucidation. On the topic of Convention 169, the experts published two General Observations. In the first one issued in 2008, they clarified their reading of the right to prior consultation with regard to the many attempts of national implementation that the Committee regarded

2 | I met Saul twice, both times unexpectedly. He participated in the interview I arranged with Tamara in the ILO office in Brasília and he also as appeared in Leonel’s office at the time set for our interview. While he acted as a representative of the ILO in the first meeting, the situation in the second interview had much more to do with debating legal details. Often the conversation led to small debates between the two legal experts, sometimes challenging each other on possible legal sources for certain perspectives on the ILO and interpretations of the international rights in question.

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as insufficient Committee of Experts on the Application of Conventions and Recommendations (b). The Committee criticizes the procedures in many countries where key decisions affecting indigenous and tribal peoples are taken by the Ministries of Mining or Finance without any coordination with the governmental agency that is responsible for indigenous and tribal peoples’ rights. The CEACR considered this a clear violation of the right that these groups have to participation Committee of Experts on the Application of Conventions and Recommendations (b). The Committee also emphasizes the importance of the right of indigenous and tribal peoples to determine their priorities for development, which in the eyes of the experts is not fulfilled by consulting these groups on specific projects of resource exploitation while the overall plan for the natural resource management of an area has already been set Committee of Experts on the Application of Conventions and Recommendations (b). The Committee further describes two main challenges in the implementation of the right to consultation. The first challenge is to realize consultations with indigenous and tribal peoples before the adoption of legislative and administrative measures that will affect them. The second challenge described in the General Observations is the establishment of consultations as part of the processes of granting licenses for the exploitation and exploration of natural resources Committee of Experts on the Application of Conventions and Recommendations (b). The experts state that if “these requirements are met, consultation can be an instrument of genuine dialogue, social cohesion and be instrumental in the prevention and resolution of conflict” Committee of Experts on the Application of Conventions and Recommendations (b). In a second General Observation elaborated in 2010, the Committee tried to clarify the means of interpretation at hand to apply the Convention (Committee of Experts on the Application of Conventions and Recommendations, e). This document was the experts’ answer to criticism expressed by governments and employers’ groups regarding the interpretive power and binding character of the CEACR’s reading of ILO norms. Leonel and Saul both recall this recurrent discussion within the ILO on the power to establish binding interpretations of ILO norms, a power that is only granted to the International Court of Justice in Den Haag via the ILO Constitution. Especially the employers’ groups within the ILO structure tend to insist on this limitation of the necessary power of interpretation of the CEACR that is needed to monitor the application of ILO norms. The observations in these general observations partly justify the proceeding of the Committee in a few cases of perceived violations of Convention 169 in several Latin American countries (Ecuador, Colombia, Argentina, Peru and Brazil), and they suggest a historical approach towards an understanding of the principles of the Convention’s text. The experts describe the formation of the principle of consultation, especially with regard to Article 6 of the Convention and the am-

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bivalent formulation of the role of consent that was established in the final wording3 . The experts cite the tripartite Committee of the ILO Conference and its clarifications on a lawful implementation of the right to consultation, which is mostly consistent with the interpretation of the CEACR. The CEACR sees the right to consultation as a cornerstone of ILO Convention 169 that cannot be fulfilled by merely formal processes of participation, but demands procedures according to the circumstances, via indigenous institutions, in good faith and with the aim of achieving consent (ibid.). At the same time, “such consultations do not imply a right to veto, [. . . ] nor is the result of such consultations necessarily the reaching [sic] of agreement or consent” (Committee of Experts on the Application of Conventions and Recommendations, e, p.10), the experts continue in another part of the observations. Leonel confirms this notion in our conversation: “The only case where we speak about consent, and no more of consultation, is when it comes to relocation of indigenous peoples. Here we can say that without consent there is no possibility of moving indigenous peoples from their territory.” (Interview, own translation)

Leonel describes ILO Convention 169 as a convention based primarily on social dialogue, which at the same time defines some “peremptory rights” for indigenous and tribal peoples such as the right to land and their own culture and language. Convention 169 is not part of the list of the eight fundamental ILO conventions that was set up in order to prioritize the ILO norm system and suggest urgent ratifications. Still, Leonel considers Convention 169 as one of the essential ILO conventions. He adds that in his point of view, the Convention does not only protect indigenous peoples, but it sees the interests of all parties involved in the promotion of sustainable development. More than just bringing indigenous and tribal people in dialogue with governmental agencies, it also leads to processes of raising awareness by integrating other social actors, for example when in the case of Brazil the indigenous and quilombola movements searched for allies within the tripartite system of the ILO and managed to receive the support of the Central Workers’ Union (CUT) to bring

3 | Since the notion of obligatory consent was not capable of achieving a majority of votes in the Revision Committees in 1988 and 1989, consent was set as an objective of consultations realized in good faith, with the exception of cases of relocation of communities (Committee of Experts on the Application of Conventions and Recommendations, d). For a more detailed representation of the revision and the process of creation of ILO Convention 169, see chapter 4.

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their claims to Geneva. Because of this fostering of dialogue, Leonel considers the Convention to be an important instrument for the prevention of conflicts, an opinion also expressed repeatedly by the Commission of Experts (Committee of Experts on the Application of Conventions and Recommendations, b,e). Leonel sees dialogue as the essence of Convention 169 and develops an interesting perspective on how the obligations set in the convention can educate for dialogue: “[. . . ] I would say conflicts are inherent in dialogue processes, but they are especifically the consequence missing habitutes of dialogue. If you look at the evolution of syndicalism in whatever place in the world, it started with a lot of conflicts until the mechanisms of dialogue were developed and the people got used to dialogue on equal terms. The social dialogue that exists in Brazil today between the syndicates and the entrepreneurial sector, or between the syndicates and the governments is totally different from what was going on 30 years ago, it got more mature, the different parts started to acknowledge each other as on the same level – something that still did not happen with the representatives of the indigenous and tribal peoples.” (Interview, own translation)

Note that Leonel sees the lack of habitude to “dialogue on equal terms” as the trigger for the many conflictive situations regarding the implementation of the right to consultation. From that point of view, it is just a procedural question of training for dialogue that can overcome conflicts between indigenous peoples and their governments. The training for dialogue that ILO Convention 169 could bring in its application would demand capacitation of the participants of dialogue, as Saul comments in our conversation. Leonel points to the state as the actor being responsible for a leveling of the unequal starting conditions of this dialogue – as is the case with regard to other fields of social dialogue regulated by ILO, for example between governments and the labor movement worldwide. Leonel sees the remedy for unequal starting positions in affirmative action. “In the case of labour legislation, lets say in the case of Brazil, all legislation is developed with the aim to protect the employee because he has less power than the employer. In the same way, the implementation of the Convention presupposes the protection of fundamental rights of the indigenous and tribal peoples, so that an unequal situation is eased and they can negotiated on equal terms. For that it is fundamental that the negotiators on the stronger side, which is the government, are being capacitated and habilitated.” (Interview, own translation)

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Of course, he states, the stronger side - the government - needs to provide qualified and trained interlocutors, for example anthropologists, to guarantee an accessible dialogue. Leonel concludes that at first new confrontations may arise, but that in the long term, the correct implementation of the Convention’s principles would represent an instrument of “peacemaking”. “From the moment in which consultation mechanisms are implemented and working, attending the requirements to which we referred to a lot in this conversation – of being prior, in good faith, and with the objective to reach an agreement – in the long run we will note that the Convention is effectively an instrument of social pacification.” (Interview, own translation)

Leonel sees the legal significance of the Convention first and foremost to be in its binding character, since the Convention is the only international text on the issue that is capable of generating juridical effects because violations can be charged within the UN system at the Court of Justice. The International Labour Organization itself, on the other hand, has no executive system that would implement its decisions and norms. Saul mentions that there is no system of “blue helmets” that would execute organizational decisions like in the case of the Security Council of the UN. Saul sees this situation, lamentable in his opinion, rooted in the sovereignty of the member states and the related limited action force of ILO. Saul adds that the only power that the International Labour Organization possesses is publicity. The ILO, and especially its annual Conference, would “validate” the behavior of governments in public as being in accordance with international labor norms, or, in other cases, denounce it as violating these same norms. This was the case for Brazil, as Tamara and Saul of the ILO national office both share. Because of the shadow reports sent by the CUT and other unions in 2008 and 2009, the experts annually commented on the situation in the country and asked the Brazilian government repeatedly to send more information. Without significant reactions from the Brazilian government, the tone of the expert Committee’s observations became harsher in every year (Committee of Experts on the Application of Conventions and Recommendations, c,d), until in 2011, the tripartite Committee of the Conference is said to have discussed putting the cases of alleged violations of rights in Brazil on the agenda of the plenary discussion, a the “dirty list” of 10 countries and their application of ILO norms, or lack thereof, being publicly debated. Tamara and Saul were not present at this Committee, but tell both tell that according to their information, the delegation of the Brazilian government is said to have

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made a deal with the workers’ representatives in the tripartite Conference Committee in order to not appear in the final list. The deal was to progress substantially with the implementation of ILO Convention 169 in Brazil, especially with regard to the regulation of Article 6 of the Convention. Of course, no records of these kinds of unofficial agreements exist, as to Saul the “short list” is always matter of backroom negotiations between the representatives of the government, employers and workers.

8.2. N ATIONAL LEGAL EXPERTS : T HE O FFICE OF THE F EDERAL P UBLIC P ROSECUTOR (MPF) The Public Ministry (Ministério Público – MP) is often called the “fourth branch” of the Brazilian democratic system. The Office of the Federal Public Prosecutor (Ministério Público Federal – MPF) is one important body of the Public Ministry. The Constitution grants it independency from the actions of the other branches (Constituição, 1988. Constituição da República Federativa do Brasil Art. 129), and it is entrusted with the tasks of ensuring the fulfillment of the individual inalienable rights defined in the Magna Charta, the upholding of the legal order, and the democratic system (Ministério Público Federal, 2015b). Its mission also includes the monitoring of the other democratic public authorities (Ministério Público Federal, 2015b). The MPF is headed by the Prosecutor General, who is in charge of three different kinds of Prosecutors: Public Prosecutors who act on the state and municipality level, Federal Public Prosecutors who act in different regional courts, and Superior Federal Public Prosecutors who act in the highest courts of the country (Ministério Público Federal, 2015a). On all these levels, members of the Office of the Federal Public Prosecutor (MPF) act on cases that involve the interests of the Federal Union and before the federal courts, for other issues concerning the above described field of activity. In order to coordinate the work of the Federal Public Prosecutors on certain topics, the MPF provides six so-called “Review Chambers” that coordinate the work of the Prosecutors in different thematic blocks. The sixth of these chambers is dedicated to indigenous populations and traditional communities. The Constitution defines the juridical defense of the rights of indigenous peoples as one of the core tasks of the Office of the Federal Public Prosecutor (Constituição, 1988. Constituição da República Federativa do Brasil Art. 129). Dóris, my interview partner at the MPF, is a renowned figure in the public defense of indigenous and traditional communities. At the time of our encounter, she headed the sixth chamber as a Superior Federal Public Prosecutor. She has published extensively on the rights of indigenous peoples and traditional communities.

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With regard to the regulation of prior consultation as defined in ILO Convention 169, the MPF mainly appeared as a group of legal experts who are experienced in the (legal) conflicts and social protests around large infrastructure projects (among others via publications such as ESMPU 2015). For example, members of the MPF participated in seminars discussing opportunities and challenges for an implementation of ILO Convention 169 already in 2008 (see Chapter 7 on civil society and its interactions with the regulation process) in Brasília. In 2013, the Office of the Federal Public Prosecutor in Pará organized a workshop on the right to free, prior and informed consultation for traditional populations in the Amazon, where it presented precise suggestions on when the different existing formats of participation - prior consultation (consulta prévia), hearings of the Congress (oitivas) and public hearings (audiência pública) should happen in the case of the licensing of enterprises. Figure 8.2 presents the developed proposal for the example of hydroelectric power plants.

Figure 8.2.: Procedure of prior consultation in the licensing process for hydroelectric power plants as proposed at a seminar organized by the Office of the Federal Public Prosecutor in Parà 2013 (MPF-PRPA 2013) This scheme introduces three forms of public participation. Following this graphic, first consultations with indigenous peoples should be realized on the results of the inventory studies of a hydrographic basin. After a following environmental impact study, the Congress needs to hear indigenous peoples (oitivas) on their evaluation

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of its results before issuing authorization for the project. In a last step, all affected populations are invited to public hearings. In my interviews as well as in public statements, the Public Prosecutors of MPF attached importance to a differentiated perspective on these different tools for participation and their different legal sources. In 2014, the sixth chamber of the MPF organized a seminar for Prosecutor members of the MPF in Brasília in order to discuss ILO Convention 169 and its implementation in Brazil. In addition to these seminaries, the MPF also participated in public hearings in the Senate and in other occasions, when the right to participation, consultation and consensus was discussed publicly. Apart from these informative and awareness-raising actions, the importance of the MPF in contesting the implementation of hydroelectric power plants in the Amazon in the last decades should not be understated. The many public civil actions filed against the licensing and environmental impact studies for the Belo Monte power plant are only the most famous examples in which the Office of the Federal Public Prosecutor of Parà engaged in what can be called a legal battle with the Office of the Federal Attorney General (AGU). The MPF also pursued legal complaints against the procedures of implementation of hydroelectric power plants at the rivers Teles Pires and Tapajós, in many instances making a case for involvement and consultation of the affected populations. And last but not least, especially Dóris was involved in preparing appeals at the STF in the name of the Office of the Federal Public Prosecutor against the conditions of the first judgment of the Supreme Court on the homologation of the indigenous territory Raposa/Serra do Sol and against their application in other cases, as Ordinance 303 suggests. Dóris is an experienced interpreter of the Constitution, and international as well as national law. During our conversation in her office, she read the Constitution word by word to me several times and explained how, for example in the case of Belo Monte, the interpretation of a comma in Article 231 of the Federal Constitution is the battlefield for determining if the Congress needs to hear local communities before it authorizes enterprises that affect them, or if this is also possible after the decision has already been made. When asked about the role of the MPF in the regulation process, Dóris answers that in this specific context, she understands the role of the institution literally as described in the Constitution: the MPF should defend indigenous peoples. In general she sees the Public Prosecutor’s Office as a facilitator that supports emancipatory movements in the process of claiming the application of their rights as set in the constitution, and sometimes even acts on behalf of the society. This cannot be un-

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derstood as a kind of mediation, Dóris states, because the MPF is not an uninterested actor in negotiations between groups such as indigenous peoples and the government: “[. . . ] mediation means to put yourself in the middle, and we don’t put ourselves in the middle. We have a side, we are on the side of the Indians [. . . ] in what are their just demands, right?” (Interview, own translation)

The traditional place of the MPF is anchored in the judiciary, Dóris says, but by and by additional tasks were ascribed to the institution. The government today calls the Prosecutors to listen to their opinion beforehand, to participate in debates related to the rights of indigenous and tribal populations – Dóris calls this role that of an “inductor of governmental practices” in the context of indigenous rights: “O Ministério Público acaba ser indutor de algumas pràticas do governo em relação a essas medidas”. Still, Dóris describes the position of the MPF with regard to the regulation of prior consultation as aligned with the position of the indigenous movement: “There was a lot of discussion among us if we should participate or not. And then there was Ordinance 303 and the Indians left, and so did we. These [consultations] now, we were not aware that they were happening.” (Interview, own translation)

At the time of our conversation in June 2013, Dóris claimed to not have been informed on the plan of informative consultative meetings with the quilombola communities, but she was informed about a denunciation made in front of the Prosecutor’s Office about one of the consultations that happened in São Paulo with quilombola representatives. Being part of the round of meta-consultations that the General Secretariat of the Presidency organized in 2013, this particular meeting generated protest among the participants as to the danger of being declared an official consultation, although many of the participants had only heard of the Convention for the first time4 . Dóris criticizes the governmental attempts to hold informative meetings and at the same time already collect subsidies for a regulation draft. „The complaint that we received was that, for example, the consultation of the quilombola community in the Ribeira valley in São Paulo was. . . they said that there was no consultation, that they were against the methodology and everything. I think that this method of the government is absolutely inadequate. They are not consulting, they want to construct consultations saying that they are listened to the [indigenous] peo-

4 | For more information on this event, see chapter 5.2 and 6.4.

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ples, right? But you cannot. . . what I told them was that it is not only listening. It’s a dialogue, isn’t it?” (Interview, own translation)

Dóris’s main point of critique is the concept of “listening” that she sees implemented in these meetings. Consultation, in her understanding, implies a dialogue that goes beyond listening. She sees this lack of a profound recognition of the character of consultations rooted in the fact that the governmental initiative is very recent, while at the time, the Public Prosecutor’s Office had been working on interpretations of the right to consultation and its legal sources for a longer time. As a result of this discussion, Dóris initially was against any further legal regulation as a matter of principle because she thought it to be problematic to create a precedent of a human rights Convention needing any further regulation in order to be effective. As regulated in the Constitutional Amendment 45, any human rights convention enters the Brazilian judiciary system as a supralegal source and is immediately effective. On the other hand, Dóris sees the case of Belo Monte as showing the clear necessity to agree on certain rules characterizing an adequate process of consultation in order to prevent that any kind of meeting can be declared as a consultation in accordance with ILO Convention 169. As for the ongoing regulation process, Dóris comments quite negatively on it. In her perspective, the government decided to create a regulation for prior consultation in Brazil, but was totally hampered by the reactions to Ordinance 303. Not advancing in any direction, the government thought of a test for a consultation procedure to be realized with the Mundurucú people, Dóris says. This method was also established in reaction to a public civil action (ação civil pública) filed by the MPF that required participation of the Mundurucú in the negotiation of the implementation of a hydroelectric power plant at the Tapajós River (Ministério Público Federal - Procuradoria da República no Pará, 2012). Dóris tells of a meeting in Brasília, in which the Prosecutor’s Office was consulted on “good practices” for a consultative process. Dóris points to the many open questions with regard to the legal interpretation of the right to consultation, also within the MPF. “The right to consultation, it’s a process, right? It cannot be done in a single action. We have to imagine many different things, many different characteristics, right? Translation, anthropological mediation, how do we. . . what does it mean to listen? Listen to everybody? Listen to some representatives of the group? What does consent mean? Consent of everybody? Because there are no groups in which everybody thinks the same, only ideal groups think the same way.” (Interview, own translation)

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Translation and anthropological mediation, the meaning of listening, questions of representation as well as a deeper understanding of consensus with regard to human groups are some points that she mentions to exemplify the many impending pitfalls that would accompany a regulation of the Convention’s text. Dóris tries to imagine a perfect consultation: “The government comes and says: ‘I want to construct a hydroelectic power plant here.’ Then, the Indians answer: ‘But why hydroelectric and not eolic?’ So, the government needs to take this serious, this comment of the Indians on wind energy – it pollutes much less. ‘So why don’t you do this?’ Then the government needs to give an answer to that consultation. Maybe the group accepts the proposal, maybe not and then it continues: ‘But the project speaks of three power plants, I don’t want. . . I don’t accept three hydroelectric power plants, I only accept one.’ The government will study this and say: ‘Alright, I agree to implement only two.’ And the Indians say: ‘No, I don’t accept two, I only accept one.’ And so the negotiation goes on: ‘But I don’t want it to be at that part of the river because here there is so much fish.’ And the government: ‘But I can’t do it anywhere eles because here I have enough water to guarantee energy throughout the year.’ So that’s what I mean, negotiations, permanent exchange.” (Interview, own translation)

In this “exemplary consultation”, indigenous peoples become involved in the energetic planning, including the technical details of the advantages and disadvantages of hydroelectric energy or wind energy. The government is in the position of having to prove that their plans meet the optimum point between the necessity to generate energy and the minimum of damage to local livelihoods. It is the government, who also has to alter its plans repeatedly until they manage to convince the indigenous groups. This does not, as Dóris underlines, include the right of one of the parties to veto the project. “In a plural society it’s very difficult to say that one group has the dominion of veto, right? Because maybe the project is of interest to the other, to another, neighbouring group, ok? [. . . ] And I would even be afraid to put the power to simply say no in the hands of one group, I would be afraid that this might give them a feeling of prejudice, a strong feeling of intolerance that for now is somehow hidden but that could grow strong any time [. . . ] I think its an enormous weight for any group to say they have the right to say ‘no’ in a society with so many different actors.” (Interview, own translation)

Within Dóris’ concept of a negotiation process, the right to simply say “no” even includes a certain degree of intolerance, and she considers such a right a heavy burden

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for one group in a society with many different interests and actors. Similar to the ILO experts in the previous chapter, she sees the right to veto given only in cases that threaten the possible cultural or physical extinction of a group. Dóris sees anthropologists as the actors who will identify the cultural extinction of a group as well as translate of the whole negotiation process that Dóris projects for consultations. “There is always the need for anthropological translation and mediation. That’s the only way that remains. The power is completely with the anthropologists.” (Interview, own translation)

Dóris admits that her position is not the only one that exists among the Prosecutors of the MPF. Within the Public Prosecutor’s Office, as well as in international panels, the question of a right to veto remains one of the biggest controversies of the implementation of the right to consultation. Of course, she adds, public authorities and intellectuals with a position in favor of a right to veto are preferably cited and brought to public events by the indigenous movement, which would simply defend the most favorable interpretation possible, without regard to the legal situation. “I know university professors that have this position. And the Indians hear them obviously, they are like any human group, they listen most to the position that favours them and will fight for it. [. . . ] They are testing their limits, and I think its this, it’s not only about exercising a right to veto, it’s about knowing until where they can go.” (Interview, own translation)

On the other hand, Dóris also criticizes the opposing discourse that she calls “the inevitability of enterprises”. Of course, she admits, a negotiation process as she sees it would delay enterprises in Brazil for decades. But the question of what kind of commitment the Brazilian society has with the peoples that are going to be affected by such projects is one question that should be publicly debated and should not be answered hastily. The power of this discourse of inevitability becomes clear when Dóris talks about the role of the judiciary in the interpretation of the right to consultation. She says that the legal norms defining consultation until this day are interpreted with or without further regulation in the moment of their application (or conflicts on their application) and not only with regard to what the legislators might have imagined at the moment of the adoption of the norms. Confronted with the frightening future perspectives envisioned by the discourse of inevitability for the case that enterprises would be slowed down or stopped (energetic chaos, blackout etc.), the judges that decide on claims for consultation would rarely decide only based on legal arguments.

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They also interpret existing legal uncertainties from their position as social beings in a collective: they become impressed by these arguments. “There is judge that only decides based on. . . that doesn’t exist. . . the study of law, its a science that demands interpretation, but beyond this demands interpretation of a social being.” (Interview, own translation)

This leads to a situation in which the more advanced a project is, the more difficult it becomes to stop it, even if its implementation violates existing law, Dóris states.

8.3. B RAZILIAN

ANTHROPOLOGISTS THE DISCIPLINARY EXPERTS

–

This research involved a special relationship with Brazilian anthropologists. They were my colleagues and disciplinary peers, and as such they commented and counseled me on my research process. I was perceived in many situations as part of their group, as an anthropologist – in Chapter 3 (Methods) I commented on the implications of this situation for my field work. On the other hand, this group was involved as participants in a variety of ways in the regulation procedure: As individual intellectuals, as staff of governmental and non-governmental organizations, and last but not least, as disciplinary experts on many questions involved in debating prior consultation in Brazil. These questions comprised first and foremost the conceptualization of cultural difference and the question of how to “solve” this problem for interactions on a political scale. Although I talked to many anthropologists during my field research, their accounts do not represent one institutionalized actor in the regulation procedure. That is why I decided, after a short introduction on the ways in which anthropologists interacted with the regulation process, to present here the future role attached to anthropologists in the imaginations of a consultation procedure in Brazil as expressed in the accounts of the other actors. As I will show, these imaginations build on the social practice of anthropologists today. Brazilian anthropologists played a very interesting role in the debates on consultation, participation and cultural difference surrounding the regulation process. They acted individually, but also via the Brazilian Society of Anthropology (ABA). Members of the ABA participated in the public events organized by civil society groups in 2011 as collaborators and in 2013 in the event organized by the Interministerial Working Group (GTI) for a discussion of the progress of the regulation process as participants. As for the ABA itself, the organization aims to practice a kind of dual

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lobbyism: On the one side, the ABA, which is the oldest scientific organization in Brazil, of course represents the interests of their members, who are Brazilian anthropologists. On the other hand, an explicitly stated part of the self-image of the ABA is the defense of the rights of ethnic minorities and human rights in general (Associação Brasileira de Antropologia, 2015). Apart from this representation via ABA, single anthropologists were called to comment on the components of the definition of prior consultation such as “being affected” or the chronological priority of consultation processes to the implementation of projects. Some of these events were organized by the General Secretariat of the Presidency, and some were private. An interesting example is the role of the anthropologist Alfredo Wagner who became a quite important figure in the regulation process. He was called to resume the presentations in the opening seminar of the regulation procedure in March 2012 as well as later during the Rio+20 Conference to comment and question the regulation process. Wagner is also named by my interview partners as an important expert on the question of defining and promoting “traditional communities”. His research project Nova Cartografia Social da Amazonia, based at the University of the State Amazonas in Manaus, has been mentioned as producing important information on these groups for the National Commission for the Promotion of Sustainable Development of Traditional Peoples and Communities (CNPCT). This is a good example for the expert position that was attributed and taken by several anthropologists during the public debate on prior consultation in Brazil. Moreover, some of the representatives of governmental bodies were anthropologists, as in the case of Tácio working in General Secretariat of the Presidency (SGPR) and coordinating the regulation process while at the same time developing a research project on the topic. Anthropologists further worked in the participating NGOs, such as CPI-SP and ISA, among others; they also worked for foreign governmental agencies promoting sustainable development and supporting different fields of policy like the German development cooperation “GIZ”. In my interviews, it is especially the legal experts observing the regulation process who state clearly what they imagine as the role of anthropologists in future consultations. Leonel, for example, a member of the ILO Committee of Experts (CEACR), sees anthropologists as qualified and trained interlocutors in future consultation processes, with the responsibility to guarantee an accessible dialogue between indigenous and tribal people and governmental representatives. Anthropological knowledge is projected here as providing for uninterested mediation and cultural translation, and the sheer presence of anthropologists as a means to secure the effort to communicate on equal terms with affected people. In Dóris’s account on the role of anthropologists in consultation processes, she goes so far to say that in her point of view, anthropol-

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ogists should determine the threat that a project represents for the social and cultural survival of a group. This can include deciding if a rejection by a consulted group to consent to a proposed project has to be taken as the final words that represent a veto or not. Furthermore, constant translation and mediation during the consultation processes should be the task of anthropologists, Dóris states, adding that “this is the only way left”. In this conception of the result of anthropological work, ultimate judgments on crucial questions are expected from anthropologists, by this surpassing the strict area of the discipline. These two conceptualizations of anthropological knowledge – uninterested cultural translation as well as the capacity to judge political and legal concerns – reflect the expectations raised by an existent practice of anthropologists in Brazil as actors and not merely authors, as Souza Lima states in relation to the famous figure of Darcy Ribeiro (Souza Lima, 1987, p.156). Anthropologists in Brazil have a long tradition of involvement with politics aiming at the populations they study, starting from the debates of the National Constituent Assembly up to today (Oliveira Filho, João Pacheco de, 2002). Since the 1990s, public administration increasingly started to integrate anthropological experts in the demarcation processes and counseling bodies of politics for indigenous peoples (Oliveira Filho, João Pacheco de, 2002, pp.253-254). Because of this influence, along with the pressure of new international legislations such as ILO Convention 169, legal categories based on classical anthropological concepts (such as “ethnic group”) were (with some alterations) adopted and the designated groups were provided with rights to coveted public goods. To enact ordered applications of these rights, anthropological expert evaluations are increasingly considered necessary. Since the questions decided upon are mostly sensitive matters such as the land question in Brazil, the outcome and conditions of creation of these expert reports are seriously contested. In this situation, it is hardly possible to fulfill the necessary working conditions as well as scope of application and epistemological grounding of the discipline. Still, as my interview partner at the MPF stated, within the current legislative framework and their administrative regulations, there seems to be no alternative to handing over this burden to anthropologists. A closer look at the role of anthropologists in the processes of demarcation of indigenous territories can shed light on this role. The administrative process of the recognition of the right of an indigenous group to the exclusive use of a part of the national territory is defined in the Federal Constitution as based on the right to territory by indigenous peoples and in several subsequent regulations relating to the proceedings of the recognition processes. As already delineated in the chapter dealing with the National Indian Foundation (Chapter 6.2), anthropologists lead the Working Groups that are established to coordinate the process of delimitation and definition

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of a future indigenous territory. This implies the responsibility not only to lead the field visits to the area in question, but also make the final suggestion of the size of a territory to be demarcated in the report to the Ministry of Justice (Oliveira Filho, 1998; Oliveira Filho, João Pacheco de, 2002). The crucial role of anthropologists in the definition of territories to be demarcated (established after queries on the quality of FUNAI work in the 1990s via a covenant between the ABA and the Office of the Public Prosecutor (MPF)) time and again generates heated debates within anthropology as well as harsh, comprehensive critiques of a wrong perception of the working of the discipline as well as the power to interfere in political questions. Summing up this debate, two main positions can be established. First, there is the defensive group, who basically considers the achievement that led to the creation of FUNAI and the procedure of demarcation to be a political victory in the endless struggle for territorial rights in the country. In a scenario that sees two antagonistic powers in an eternal fight – the export-oriented economic sector and its public administration representatives reaching out for new, unexplored resources vs. the indigenous peoples that are deprived of their basic human right to survival by the occupation of their territories – anthropologists and their role in the demarcation processes as well as the institutional role of FUNAI are defended at all costs. Furthermore, this group, admittedly homogenized for the sake of this argument, points to the necessary engagement of the anthropologists with the group they study as a natural result of the conditions of fieldwork (see for example (Ramos, 1990, p.454)). By the other position, critiques are being formulated on the inherent tutor-role and false objectivization bestowed on the anthropologist going to a field that in most cases is already characterized by an open conflict over land, carrying out anthropological research in a very limited time (mostly weeks), and authoring a decision on the adequate size of an indigenous territory based on these conditions after returning from the field (cf. e.g. (Oliveira Filho, 1998; Oliveira Filho, João Pacheco de, 2002)). These points of debate among anthropologists, but also in the media, are not merely questions of perceiving the scope and production process of social sciences, but also of a societal positioning of the discipline. Critiques aimed at the collaboration of anthropologists with public administrations in many cases is perceived as part of a political project that is seen as going far beyond the suitability of the conditions of fieldwork during demarcation field visits. These debates seek to disqualify or defend the anthropological voice in these questions. The Brazilian anthropologist João Pacheco de Oliveira formulated three interesting points that need to be changed within the process of recognition of indigenous territories in order to create space for a suitable integration of anthropological knowledge. First, he calls for a reformulation of the expert work that can be no longer

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perceived of as substituting political decision making and mediation. The ethnographic situation of an encounter needs to be stressed, Pacheco states. This implies the consideration of anthropological expert reports as preliminary, elaborated by scientists that can only deliver the informational basis for negotiations and should be evaluated later in a mixed working group of indigenous and non-indigenous actors. Second, the Brazilian administrative system needs to conceptualize the work of anthropologists as the establishment of a nexus of meanings supported by ethnographic evidence. This work can deliver arguments and probable consequences of decisions, not decisions per se (for example on geographical limits). And third, the condition of anthropologists as spokespersons for indigenous interests should be abandoned and indigenous representatives should be included in the mechanisms of decision making on territories (Oliveira Filho, João Pacheco de, 2002, p.267–273). This program for a suitable integration of anthropological expert knowledge in political debates also applies for an appropriate conceptualization of the role of anthropologists in future consultations.

8.4. S PREADING

INFORMATION AND MEDIATING RIGHTS

With regard to the accounts of legal experts, the roles of the ILO and the MPF in the regulation process were quite different. The ILO staff as well as the ILO experts expressed themselves very cautiously on the contested points of a definition of prior consultation in the economic and social context of Brazil. Instead of opinioning on their own, my interview partners often related to existing expert statements by agents of the international human rights regime. As in the case of the agendas and programs of the government that were presented in previous chapters, the ILO also redefined existing programs and budgets in order to do justice to the regulation procedure. Different from members of the Working Group or civil society, the ILO representatives of the national office see their function more as one which mediates the process and facilitates dialogue. They truly stay in the role of international observers, while it is the experts in the ILO Expert Committee that struggle for the right to issue their own interpretations of the ILO norms vis-à-vis current cases of implementation. In general, members of the ILO national office describe the actual power of organizations like the ILO as limited to the creation of publicity. Within this situation, the question of which cases are brought to the public (and in what form) appears to be a technical choice, but at second glance it is manipulative mass of political bargaining in the backrooms of international committees. Great decision power is attributed to

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juridical expert knowledge, which cannot fulfill it within the permanent bargaining situation that constitutes the daily business of international politics. The situation is different for the Federal Public Prosecutors at the MPF. I see the overall importance of the Office of the Federal Public Prosecutor (MPF) in their capability of mobilizing the judiciary to evaluate legislative and executive measures of the government regarding the implementation of projects as well as the regulation of existing legal norms like the right to consultation. As in the case of the legal experts of the ILO, this is a force that is exercised after the legislative process is concluded. Nevertheless, the Prosecutors seem to utter their interpretation of the characteristics of a future consultation in Brazil quite clearly and seem to be repeatedly invited to do so in public hearings, seminars and legislative bodies. The Prosecutors provide argumentative material for the legal foundations of certain interpretive approaches to prior consultation. The Federal Public Prosecutor Dóris describes this situation as surpassing the traditional role of the MPF, which is anchored in the judiciary’s negative legislating, and appears to be in the process of becoming an inductor of governmental practices. Different from other accounts of my interview partners5 , Dóris’s approach to interpreting the right to consultation is not related to a search for the historic imaginations of its legislators in the ILO, as she herself states. Rather, she tries to define the fundamental assumptions laid down with the definition of the right to consultation in various legal sources, and she tries to link them to existing legal frameworks. Furthermore, she points to the social context of any individual’s interpretation of law, even in the case of judges. She candidly criticizes the sense of “inevitability” created in the public discourse on development for the implementation of infrastructure and development projects when there should be room for a public discussion of priorities. In the regulation process, then, the Prosecutors acted by questioning the legal and philosophical foundations of the interpretive approaches that are applied to underlying rights that interfere with or demand for consultation, such as the right to identify the subjects of rights, the right to territory and private property as well as the priority of development projects over civil rights. Dóris and the other Prosecutors seem not to support indigenous claims to a right to veto. They also do not support the governmental proceedings in consulting only those groups of the subjects of rights that agreed to participate in the regulation process as the Interministerial Working Group established it.

5 | See for example Marcos’ account in chapter 6.6.

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Apart from these descriptions of their role, juridical expertise is again discussed as creating arenas for negotiating legitimate interpretations of prior consultation in Brazil. The discussions between Saul and Leonel on the ILO’s monitoring and decision making processes hint at an internal struggle of competencies between the tripartite constituencies of the International Labour Organization on an international level. The mentioned contestation of interpretive power of the ILO experts and of the scope of the CEACR’s decisions and observations is not limited to inter-organizational spaces, but it is questioned from within the constituencies of the ILO. With instruments as General Surveys and General Observations, the members of CEACR establish dominant interpretations of the meaning of the Conventions’ principles while jurisprudence on cases of implementation is limited to the International Court. Other members of the ILO contest the role of expert knowledge in this context. During my research, a heated discussion questioned the limits of the field of action of the judicative in Brazil (Moreira, 2013; Ribas, Giovanna Paola Primor and Souza Filho, Carlos Frederico Marés de, 2014). One example that stirred this discussion was the Supreme Court setting its own conditions in relation to the declaration of the indigenous territory Raposa/Serra do Sol. This judgment happened in 2009, and in 2014, the legal actions contesting the content, formal validity and scope of the conditions were subject of a new decision of the Supreme Court. Some of the legal appeals directly contested the formulation of conditions as surpassing the limits of the judicial power and interfering in the legislative sphere, which was also commented on in several of the interviews (see, for example, the comments of the MMA staff in Chapter 6.6). As Yamada and Villares state in their discussion of the conditions of the Raposa/Serra do Sol case (Yamada and Villares, 2010), the Supreme Court judged more than the question of one specific declaration when deciding in this conflict. The broader question of the validity of the constitutionally secured rights for indigenous peoples vis-à-vis other interests was clearly a subtext to this decision (Yamada and Villares, 2010, p.149). As stated by members of the Interministerial Working Group, this surpassed the traditionally defined sphere of action for the judiciary that does not comprise the implementation of rights or suggestion of solutions, but “negative legislation”: repealing violation of existing rights (Yamada and Villares, 2010, pp.149154). Furthermore, some of the conditions (5, 6, 7, and 11) directly concern the right of indigenous peoples to participate in decisions affecting the use and management of their territories, including the right to prior consultation (Yamada and Villares, 2010, p.152). Apart from the question of the relation between the different democratic powers, especially between the executive and judicative powers, the outcome of the STF judgment then interfered directly with the process of defining the right for prior

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consultation in Brazil. Additionally, several other legal experts strongly advanced existing judicial decisions on the questions under scrutiny in the regulation process as arguments for certain interpretations, thereby discursively limiting the range of possible political solutions. Besides these legal arenas for debating prior consultation, the juridical experts also bring up conceptual questions that evolve around prior consultation, for example the idea of consensus as a result of a dialogue among equals. Dialogue figures prominently in the CEACR expert’s account of prior consultation as a tool fostered by Convention 169 for conflict avoidance6 as well as in Dóris’s account of an ideal consultation as a never-ending negotiation. Both accounts negate the possibility for a right to veto, but based on different arguments: while Leonel does not think that this is included in the dominant expert interpretations of the Convention’s text, the Dóris states that a right to veto would contradict a dialogue that involves interaction rather than merely listening, and that such a right to veto would be a burden to any parties of a consultation. This concept of dialogue has important implications. First, the concept of a dialogue among equals in the context of prior consultation of indigenous and tribal peoples in Brazil ignores the many complaints about the danger of a de facto “right to ignorance” of the implementation agencies in the case that agreements cannot be reached at short notice. Within the context of existing conflicts such as Belo Monte, it is questionable whether this creates a balance of power in the right of indigenous peoples to demand new suggestions when they do not consent to a proposed project. Furthermore, there remains the question in how far indigenous communities need to be capacitated to build an informed opinion on technical questions, for example, the technical advantages and disadvantages of different types of energy generation in a given area on equal terms with technicians of the Ministry of Mines and Energy. Maybe this disparity could even be considered a breach of the principle of adequacy of dialogue that Dóris claims elsewhere in our conversation. And finally, the bridging of these and other gaps shall be solved by an anthropologist acting as a mediator. This is also illustrated in Leonel’s perspective of anthropologists acting in the name of the state as uninterested translators and warrantors of an accessible dialogue for indigenous and tribal peoples. This image of mediation in fact hides the point that it is a question of different priorities with regard to development, if one debates a hydroelectric power plant in reference to megawatts and energy sources or in other terms. On the other hand, denying this capability to indigenous peoples means again depriv-

6 | In this context, I find it interesting to know that the experts of the CEACR already try to make decisions on a consensus basis.

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ing them of their right to participation and self-determination, also granted by the Convention. In commenting on the problem of integration and discrimination of indigenous peoples in Brazil, the anthropologist Alcida Ramos already formulated this problem: “No matter how we look at it, integration or segregation represent different forms of achieving the same thing - the negation of legitimate otherness” (Ramos, 1990, p.446). Somehow, this question seems unsolvable, and simply stating that “all power is with the anthropologists” (Dóris) signifies that instead of granting a “veto” to one of the participants in the negotiations involving consultation, it is granted to an artificially externalized “expert” that is given the burden to make a decision that cannot do justice to the existing legal framework. I outlined in Chapter 2.5 the implications of multiculturalist policies including the paradox of the disparity of guaranteeing equal rights and the right to be different. The attempt to console both demands led in the case of the regulation of prior consultation in Brazil to a paradox situation that groups defined as culturally distinct were called to engage in a dialogue among equals. This dialogue among equals assumes a common ground between the various participants of prior consultations which are being attested to be culturally different at the same time. If we suppose “culture” to include more than just forms, and suppose that this notion includes cosmologies, comprehension of crucial concepts and references, this creates the a paradox situation which I tried to visualize in Figure 8.3. As becomes clear from this figure, the paradox of groups constructed as culturally (apart, of course, from socially and economically) different in the situation of equal participation necessitates the existence of an intermediary force for a real dialogue to occur – in the case of the regulation of prior consultation in Brazil, this intermediary force was meant to be the anthropologist. The legal subjects of Convention 169 are defined in Convention 169 as culturally distinct from the national society and as original inhabitants of a part of the nation’s territories, on the destination of which they are granted the right to a say by virtue of the characteristics presented above. In the enforcement of this right in Brazil, consultations were conceptualized as a dialogue on equal footing. This paradox depends on cultural translation and mediation for its solution. The only possible group of actors that is considered endowed to this kind of mediation of difference is the very group that delineated the notions of culture that were initially the starting point or main basis for the conceptualization of these legal categories of cultural difference: anthropologists. Antônio Guimarães calls the concept of actors that are set up in multiculturalist policies in order to fulfill the established necessity to name and measure differences and inequalities in a society “judges of difference” (Guimarães, 2006, p.280).

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Figure 8.3.: The paradox of cultural difference & the right to participation Within this debate, I think it is important to consider the interweaving of science and politics as structurally given and renegotiated constantly with regard to its form, but not its existence. L’Estoile and Neiburg (L’Estoile and Neiburg, 2002) show that the multifold reciprocal dependencies of academic institutions and state administration described in many case studies are not pathological connections, but struggles between two agents in the space that statehood creates; sometimes interests overlap, and sometimes they are antagonistic. As João Pacheco states in his essay on the anthropologist as an expert (Oliveira Filho, João Pacheco de, 2002), the question posed by the collaboration of anthropologists in administrative processes is not whether it is science or not. Rather, the questions are what the conditions of data production in these cases are, for which audience are the reports being produced and which decisions do the reports support. Finally, a process based so completely on dialogue such as consultation procedures that hands over the control and responsibility of its crux of the matter – communication on equal terms, free decision taking, and protection of cultural integrity - into the hands of a group of scientific experts does mean a new conceptualization of the anthropological endeavour and heavy burden for anthropologists. On the other hand, this process creates new fields of work for anthropologists and a new powerful position of the discipline in concurrence with other specialists and political leaders for

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the power to define problems that require state action. The questions that were raised by this situation point to important questions of the development of anthropology and its limits that I will take up and discuss in Chapter 10.2.

Part III. Discussion and Conclusions

9. Discussion I: The implementation of law

In this chapter, I discuss results that my study revealed on the process of regulating prior consultation in Brazil revealed with regard to three general discussions on law. I start by addressing the process of legal regulation in terms of a general process of law implementation. As presented in Chapter 2.1, such processes involve debates on legitimate frameworks for an interpretation law in a specific context; in this case on the meaning of prior consultation in Brazil. As I will present in Chapter 9.1, an interpretive approach to law and its application permits a perspective on “the ways legal institutions and actors create meanings” (Merry, 1992, p.360). Here, I draw on Sally Engle Merry’s analysis of the dynamics of establishing “frames of meaning” in legal dispute (Merry, 1992), and I apply the steps and strategies she defines very clearly in her analysis to the negotiations on establishing an interpretation of prior consultation in Brazil. Apart from these perspectives on interpretation and contest inherent in all legal practices, the process of regulation of ILO Convention 169 is characterized by the features that international law brings into this process. In my discussion of the influence of this international setting for the national regulation of prior consultation in Brazil, I first want to draw on the concept of “legal pluralism”. In Chapter 9.2, I discuss the notion of translators as established within the field of legal pluralism, and I account for the concurring use of national and international norms with the concept of “interlegality” established by Boaventura de Sousa Santos (Santos, 1987, 2002). In Chapter 9.3, I argue that the regulation of prior consultation in Brazil presents the case of an attempt to create a norm in order to address real world problems while simultaneously aiming at implementing and applying an already existing norm. This situation calls into action political as well as juridical forces as became clear in the presentation of the ethnographic material. It is interesting to discuss the prominent role of the judiciary and the Office of the Federal Public Prosecutor as well as State Public Prosecutors (MPF and MPE) in the different arenas of negotiation that emerged in relation with the process of legal regulation of prior

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consultation in Brazil as a case of judicialization of politics. I further argue that the growing judicialization of issues concerning indigenous peoples and land rights in Latin America can be understood in the context of the growing legalization of social rights in that area.

9.1. C OMPETING

DISCOURSES ON FRAMES FOR PRIOR CONSULTATION IN B RAZIL

In this chapter, I present the different strategies and claims of the participants and observers of the regulation process as attempts to influence the interpretive process implied in the regulation of ILO Convention 169 in Brazil. A future law on prior consultation appears here as a symbol for the social relations of different groups, the dispute about the interpretation as a process of meaning-making on the definition of actors, their relations and possible solutions for the problem of interaction between them. This approach to the regulation process emerged in the very beginning of my research and parallel analysis when I compared the different accounts in my ethnographic and interview material on what was actually happening with the regulation of prior consultation in Brazil, as well as in the way the different actors referred to each other. In trying to understand the process of implementing law, then, the main difficulty for the involved actors seemed to lie in defining which body of norms would be the framework guiding this implementation. As previously presented in Chapter 2.1, Sally Engle Merry provides a theoretical toolkit that offers a perspective on the functioning of discursive strategies to establish “frames of meanings” that predefine actors and their relationships as elements of distinct ways in which subsequently conflicts are settled. In the following, I want to show that these mechanisms are applicable to my case study. Sally Engle Merry herself referred repeatedly to processes of framing within the context of human rights (Merry, 2006a; Levitt and Merry, 2009), but in her much earlier work Getting Justice and Getting Even (Merry, 1990) she develops a clear analytical perspective on the actual functioning of discourses for process of framing. As I presented in detail in Chapter 2.1, Merry identifies the three discourses of law, therapy and morality that provide different accounts of the actors, adequate solutions and necessary references for the presented interpersonal conflicts. Law figures in her account as one of these frames for talking about actions and relationships. Figure 9.1 operationalizes Merry’s argument as she applies it to the struggles in American courts.

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Figure 9.1.: Creating meaning in conflict: The establishing of frames for interpretation in a court (My own elaboration of (Merry, 1990)) While the setting of the scene and the existent hierarchical relationships between the actors of course are different in the case of the regulation of prior consultation in Brazil, we can find very similar processes of framing that aim at constructing authoritative images of actions and relationships. I argue in this work that the process of establishing an interpretation of prior consultation in Brazil worked comparably to what Merry describes for the struggles to establish an interpretation of interpersonal problems in American courts. At the outset of the process of legal regulation of ILO Convention 169 in Brazil stood resource conflicts – complaints about the rights to exclusively use land, water or minerals brought the topic to national and international attention. The protests of mainly indigenous peoples against the hydroelectric power plant Belo Monte and the aerospace launch center that is dislocating quilombola communities in the municipality Alcântara are just two of the most famous examples as I outlined in Chapter 4 and 5.1. After the denunciation of these problems as perceived cases of rights violation to the International Labour Organization, these problems were framed as violations of internationally obligations assumed by the Brazilian state. Pressure was exerted on the Federal Government of Brazil to comply with the norms defined in ILO Convention 169, and the government initiated the process of regulation, or, put differently, it started a process of law drafting that should guarantee a satisfying application of the Convention to the case of Brazil. This can already be considered a process of framing. Furthermore, negotiating a framework for the interpretation of the Convention in Brazil in the face of the existing conflicts and the national legal framework implied

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a second process of framing. Different parties tried to establish frames of meaning for this process of interpretation and translation of the Convention’s text to national law. In this process, identities of the participating actors, along with their obligations and rights were discussed. In my analysis of the interviews I conducted with actors and observers of the regulation procedure, I found three discourses that were used to frame actors, their relations and the nature of the right to prior consultation in Brazil. These discourses appear as references in all interviews I conducted. They are used in very diverse ways by the actors, although the underlying narrative is the same. I structured them according to their basic narrative, their inner logic, the actor constellation portrayed in each discourse, and their legal references. These discourses are not clearly separated entities; they partly answer to each other regarding fundamental questions. Another interesting variable in all three discourses is the perspective they bring not only to actors and their relationships, but specifically to one of the most contested issues in the process of interpreting ILO Convention 169 in the light of the existing legal framework in Brazil: the question of a right to veto for consulted peoples. This is one example of how the different discourses shed light on the possible ways of defining the limits of consultation and the right to free, prior and informed consent (FPIC). As I showed above, I consider the discourses strategic instruments to establish frameworks for the legal interpretation of prior consultation in Brazil, which I consider a process of translating prior consultation from an international legal framework to a national one. Different from Merry, I think the question here was not if but which area of law shall be applied, including specific implicit assumptions about actors and relationships. I argue that law appears here as many ways of talking about actions and relationships, depending on which area of legislation is considered adequate as a basis for interpreting prior consultation in Brazil. Figure 9.2 visualizes my argument. The discourse of cultural difference and rights The perspective brought by this discourse is the narrative of the Brazilian state having assumed the obligation to protect and implement rights of indigenous and tribal peoples before the international community by adhering to the group of signatories of ILO Convention 169 on the one hand, and by integrating internationally established rights in its Constitution on the other. As for the regulation of the Convention in Brazil, this process is seen as the result of the report of cases of violation of these rights by the state via civil society organizations. The regulation process is seen as an answer of the Brazilian government to the resulting public pressure. For defining these rights set on an international level within the ILO now within Brazil, the right to

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Figure 9.2.: Creating meaning through conflict. Frames of meaning in the regulation of prior consultation in Brazil (My own elaboration).

self-determination is considered of prime importance, representing the core of these rights and the conceptual legitimation of the right to consultation. Framing prior consultation within the discourse of cultural difference and rights implies the perspective that at the core of the regulation process, it is about the implementation of indigenous rights as culturally specific expressions of universal human rights. Latin America as a region of post-colonial nation states relating to their indigenous populations is seen as the setting for the negotiation of prior consultation in Brazil. International law, as well as specific norms and jurisprudence from transnational sources, are cited by proponents of this framing as sources for interpretation, which becomes clear from the account of a representative of the Special Secretariat for the Promotion of Racial Equality (SEPPIR): “I think that for SEPPIR, the fact that it is expressed in an international law, right, in an international convention, that this population is subject of right of this convention, this has an extremely high significance because we legitimize, right, we strengthen a fight that exists for centuries in this country – the fight about the preservation of this people, its culture, its reality.” (Interview, own translation)

Within this frame, existing discourses on cultural differences, especially regarding indigenous peoples and rights resulting from this difference as well as their historic oppression and territoriality, are evoked and applied to the question of how to define guidelines for prior consultation in Brazil. This frame defines indigenous peoples as

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the main actors in this setting; in the role of a marginalized group standing up against the second actor, the nation state, that is reminded of its responsibilities. In giving strong priority to the right to self-determination as the conceptual foundation for the right to prior consultation, all practical questions are seen as having to subsume under this goal in order to make a complete realization of this right feasible. Proponents of this frame mostly argued for consultations being realized in the villages and communities of the right holders, in timely priority to any impact studies or measures aiming at the implementation of a project or a measure. Crucial importance is given to the goal of facilitating the decision-making process of indigenous and tribal peoples on measures that will affect them. For this, sufficient duration of consultative processes is often advocated. The discourse on cultural difference and related rights presents a right to veto as possible in all cases where the fundamental right of self-determination of indigenous and tribal peoples would be limited otherwise. The proponents differ in the understanding of the limits of the right to self-determination. More radical representatives of this discourse in Brazil claim that a right to veto would finally endow indigenous peoples with a weapon equal to the state’s de-facto right to veto that due to this argumentation implies the possibility to overrule communities in cases where no understanding could be reached. Proponents of this approach on an international actor level often state that the question of a right to veto is badly put, since it would mistake the true notion of prior consultation being a process of dialogue. Reference to this frame was primarily made by leaders of the indigenous movement, representatives of civil society organizations, representatives of the Office of the Federal Public Prosecutor (MPF), and international legal experts. These actors pictured the regulation as a process that would lead to an enforceable, positive law, while for example my interview partner at the MPF stated that on the other hand, national regulations should not be needed in order to implement international human rights law. Basing the implementation of human rights on a national legal regulation would imply the danger of creating precedents and hamper the implementation of other, not yet nationally regulated international laws. The discourse of statehood & citizenship This discourse is used to frame the regulation of prior consultation as a situation within the national context of Brazil. Proponents state that in the first line, it is the Brazilian Constitution that grants political involvement of affected groups of Brazilian citizens on the measures affecting them. Prior consultation is lined up with other mechanisms of participation, such as public hearings and councils, which guarantee the involvement of citizens in decisions of the state. Sometimes, the different formats of participation are confused within this discourse. The say that indigenous groups

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have in affairs of national interest is seen as having to be proportional to the rights of other groups as well as proportional to the feasibility of this intercultural dialogue. The core rationale here is the dialogue of different interests in a democratic state, implying the assertion of the majority. Proponents of the statehood discourse refer to liberal approaches to democracy in order to define features of prior consultation. The field of action is seen as limited to the borders of the Brazilian state, and as a main reference, the Constitution is cited repeatedly. Actors are not defined as marginalized vs. the state, but as political majorities and minorities claiming rights and interests. That is why questions of place and timing are usually pictured as less predefined by proponents of this frame and the need for continuous dialogue and negotiation is stressed. Diverging interests are seen as point of departure for participatory negotiations between citizens and the state. Consultations are framed as one instrument among others for political participation that will alone not solve the problem of a dialogue between groups perceived of as “peripheral minorities” and the majority-society. That is why prior consultation is considered in relation with other instruments of co-determination and different constellations are discussed, for example with regard to the legal subjects. The subjects of right of ILO Convention 169 appear as political “minorities” in relation with “the state”. Some of the proponents of this discourse question whether only indigenous or tribal peoples should be the primary actors of these meetings, while poor rural populations would not dispose of such rights. As to the question of a right to veto, in the reality constructed by this frame it is of course not possible for a minority to veto a majority, as a statement of a Federal Public Prosecutor working in the MPF illustrates: “The right to veto only means ‘I don’t want this, fullstop’. No group can say this, right? [. . . ] In a plural society it’s very difficult to say that one group has the dominion of veto. Because maybe the project is of interest to the other, to another, neighbouring group, ok? [. . . ] I think it’s an enormous weight for any group to say that they have the power to say ‘no’ to a society with só many different actors.” (Interview, own translation)

This discourse is further used by government officials from FUNAI as well as the MMA or DNIT to claim a necessary limit of the rights implied in prior consultation, with regard to the time and scope of the topics that should be discussed in these meetings. Also, some NGOs use this discourse to question the efficacy of punctual

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encounters between the state and indigenous peoples, pointing to missing conditions for an informed participation of these citizens. The development discourse The development discourse is the most complex frame in my point of view. I found two kinds of development frames in my material that appear as two sides of the “regulation story”. The first frame focuses on economic growth: according to this frame, Brazil needs more and more energy for its growing economy. This energy demand has to be met by the planning and expansion of the country’s infrastructure. Energy reserves today are to be found for the most part in protected areas and have to be made accessible via a long term planning. Processes of participation have to integrate in already existing licensing procedures and cannot hamper the allocation and provision of the needed supply. This frame of economic growth is activated by representatives of government officials representing the implementing agencies, like the Ministry of Mines and Energy (MME) or the Department for Transport (DNIT), whose director said the following in our interview: “Because of so much consultation and so many conversations, so many agreements, so many requirements from the parties, you don’t get to generate. . . Brazil could generate much more wealth than it currently does. The country doesn’t manage to do so because there are so many rules that put obstacles for it.” (Interview, own translation)

As in this citation, many proponents of the economic growth version of the development discourse highlight that legal norms should primarily support and not hinder wealth generation. In the second version of the development frame, predominantly NGOs referred to the same “discursive setting”, but they interpreted it differently. In this version of the development frame, the ascending agrarian lobby of Brazil is pictured to fight successfully against the hard-won fruits of years of struggle of the environmental lobby, especially against environmental restrictions as well as rights of local populations to territory. This agrarian lobby reaches for the last protected territories in order to extract its resources and integrate them in the capitalist market. The regulation process is seen as an instrument to create a legal framework that is as flexible as possible for the necessary pro forma fulfillment of participatory rights. With the formal realization of prior consultations, legal security should be created for development projects, and the planning and calculation of these projects should become easier and more profitable.

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The discourse applied here to frame prior consultation, in both versions, is characterized by an economic perspective of Brazil as a developing country in the current global market structures. The historic development path and present economic situation of other countries, mainly in Europe, serve as a recurring reference for this rationale. The actors of this discourse are framed as “traditional peoples” with rights based on (questionable, as the public growth narrative pictures it) claims of difference1 and the “developers” of the country – such as large agriculturists and industrialists. The latter actors are either seen positively as the ones bringing the country forward, or negatively as people making fast money on the cost of the country’s last remaining natural resources. Especially representatives of the institutions of the Brazilian government responsible for the implementation of development policies have used the priority that this frame constructs for the unhindered execution of projects that foster economic and energetic growth in order to argument for a strict time schedule: Since the main issue in the scenery created by the public growth narrative is discussing and mediating the impact of infrastructure and energy generation projects, proponents of this frame often argued for scheduling prior consultations after an initial project design and impact study has been concluded on the spot, in order to “have something to present” in these meetings. This frame constructs consultations mainly as presenting information and facts on the proposed project and argues for consultations at a later stage. With regard to the duration of consultations, the development frame considers these negotiations as limited by the necessity to implement predefined development plans. This governmental responsibility is reflected in a statement of representatives of the Ministry of Mines and Energy (MME) during a public discussion on prior consultation and on the necessity to obtain the consensus of consulted groups: “One worrisome situation is that of the time. [. . . ] We need infrastructure in our country that grows, it will double its installed megawatts in the next 20 years, between 16 and 19 thousand, we need to double this in 10 years, I will comment on this only shortly: we have here 220KW, in South Africa 4 thousand; Australia, Japan and Europe 7 thousand, United States 12 thousand. So we will have to double this quickly because society demands it. We will grow, we are developing. Because of this I think that time is fundamental for us, because new projects have to be defined.” (Interview, own translation)

As this citation already suggests, the development frame, especially in its version that

1 | On this matter, see the assertions of the MMA and DNIT representatives in chapter 6.

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focuses on economic growth, works with the help of narratives of fear. First, there is the narrative of scarcity: power blackouts, the collapse of planning, or consumption barriers are some of the situations invoked for the case of a limited access to (energetic) resources. In order to prevent this, plans have to be accomplished and resources exploited. This last point is also important with regard to the second narrative of fear, which conjures that foreign countries aim to disrupt Brazil’s chances of economic development. This narrative pictures national sovereignty to be at stake in case that new participatory obligations are allowed to be imposed to Brazilian politics by external actors. The last narrative of fear arises from the second version of the development frame, and pictures large landowners in Brazil as accumulating more and more of the country’s natural resources in order to exploit them while disregarding the catastrophic effects for biodiversity and social diversity in Brazil. This is a narrative used by Brazilian NGOs to describe the worst possible outcome of a merely formal regulation of prior consultation in Brazil. A right for traditional peoples to veto infrastructure and energy generation projects fostering the economic development of the country is unimaginable in both versions of the development frame, due to different assumptions. In the economic growth version, the production of public wealth that supports the state and society in general, so it cannot be cut or diminished by an economically marginal group. In the second version, a right to veto is not projected as possible since the whole regulation process is not perceived of as a political process aiming at empowering powerless groups, but on the consolidation of the political leadership of an economic elite group. The negative version of the development discourse in framing the relation of prior consultation and economic growth was used as an explanatory reference by several NGOs that left the regulation process and declared it a farce (see Chapter 7). Using frames to construct authoritative images of prior consultation These frames served as references for interpretation. The actors of the regulation procedure in Brazil used them as instruments for the determination of an initial situation from which a legitimate interpretation of prior consultation could be realized. Of course, none of these frames are true or false; they are portrayals of the conflicts under scrutiny that shed different light on the pending questions that the right to prior consultation poses. For example, while the frame of development displays a clear focus on economic growth as a precondition for any kind of political agenda, the discourses on cultural difference and participation address the question of equality from two perspectives. The development frame can be seen as a sort of counter discourse to the assumptions of the cultural difference frame in Brazil. It uses the story of a monolithic “one Brazilian people” in order to question the foundations of the con-

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nection of cultural identity and specific rights in Brazil, completely leaving out the international dimension of these rights. Parts of this argument are taken up in the frame on statehood and citizenship in the leveling of all actors as “citizens”. As I have shown, the reference to these three frames for the regulation helps the actors shape a field of possible future solutions for the problem of a legitimate interpretation of ILO Convention 169 in Brazil. The different “frames of meaning” attached to the regulation process, its actors and relationships pre-determine the interpretation of aspects of prior consultation, as can be seen with the example of a possible right to veto of the consulted groups. The discourses to which the frames for prior consultation in Brazil refer precede the discussion and are used in various other contexts. Moreover, they have different resources at their disposal. While the development discourse of course is backed by powerful material power relations, the reference to the human rights discourse that is produced by the frame of cultural difference also bears power resources, as (Levitt and Merry, 2009) state: Resonance with potential supporters, funds from international organizations or foundations, as well as what the authors call an “air of global connectedness, modernity and progress” (Levitt and Merry, 2009, p.443) constitute important fundamentals for political claims as well. I also concur with Levitt and Merry’s statement that organizations cannot be reduced to representing one frame in the negotiations of legitimate interpretation of human rights. In the regulation process, actors often used different frames in one interview or public presentation, especially in areas where they are lapping. Notably, the different governmental institutions vary in their use of the different discourses and the perspective they construct on possible meanings of prior consultation in Brazil – among each other, as well as depending on the situation of talk. Levitt and Merry rightly state that the position of organizations towards contested issues can be best described as “a function of the sequence and intersection” (Levitt and Merry, 2009, p.453) of different frames. Summing up, my account shows how frames shaped the possibilities for interpretation of the right to prior consultation in Brazil. By transporting Merry’s analytical approach from the rather closed sphere of courts to the situation of a national regulation of international law, I emphasize the plurality of legal frameworks possibly addressed by these framing attempts while still maintaining a detailed focus on the steps and strategies of vernacularization. I integrate the reality of the entanglement of national, transnational and international legalities into this approach. In the next chapter, I want to elaborate this aspect of my study on the regulation of prior consultation in Brazil, namely discussing the regulation process as a series of attempts to translate and apply concepts defined in an international law setting to a national context.

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9.2. I NTERLEGALITY

AND VERNACULARIZERS IN THE REGULATION PROCESS

With regard to the process of regulating prior consultation in Brazil, the above described framing of social conflicts as an issue addressed by ILO Convention 169 – and thus an issue regulated by a human rights regime2 – can be seen as a successful strategy to bypass the national legal system and its perceived “rightlessness”3 . The globally recognized right to consultation was in the center of complaints contained in the shadow reports of the Brazilian workers’ union CUT and other civil society organizations to the ILO Office. As for pushing forward a discussion on this right in Brazil, this strategy can be considered successful. On the other hand, framing a conflict in the language of human rights implies the stringent necessity to use the discourse’s language (Merry, 1992, p.368–369). In international and human rights law, not only adjudication processes, but also institutions responsible for complaints as well as general mechanisms for solving disputes work quite different from those of the legal system in Brazil known to many of the actors of the national regulation process. The functioning of international dispute settlement mechanisms is not equally clear to everybody involved in the regulation process. I presented the importance of intermediaries – or vernacularizers – in such a setting in Chapter 2.2. In the debates on a national norm for prior consultation in Brazil, different vernacularizers were at work. Especially indigenous and quilombola leaders described several aspects of vernacularizing human rights as a challenging task. The indigenous leader Rosana presented a detailed account of the difficulties of translating legal discussions occurring in the administrative center to village leaders and their reality, using contexts of everyday life as heritage or land. The necessity to learn the details of current legal and administrative questions and related language was named as a factor that keeps political leaders away from their villages. This situation opens space for different forms of leadership to arise, which can conflict in the way described by the indigenous leader Taravy who accused the traditional village leaders of a lack of knowledge and of being easily persuaded by NGOs. In fact, leaders living in the villages often have less access to capacitation and training in the power plays with the different representatives of the state or lobby groups than the representatives of indigenous or quilombola organizations that participate in many events and work-

2 | See footnote 4 in the historic Chapter (4) on the definition of “regime“ as used in this work. 3 | Richard Wilson (Wilson, 2007) calls such processes “verticalization of conflicts” and describes them as a typical feature of international human rights law (Wilson, 2007, p.335).

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shops. It was these leaders, trained in political bargaining strategies, that came up with the strategy to use the situation of interlegality strategically and instrumentalize the public commitment of the Brazilian government to regulate Convention 169 in order to pressure for the annulment of Ordinance 303 – a national norm. One example for the power play at the side of the General Secretariat of the Presidency (SGPR) may be the questioning of the legitimacy of the APIB to represent indigenous peoples in Brazil and the attempts to bypass the indigenous organization after the blockade strategy was declared. The lack of capacitation in this strategic bargaining of the political leaders of traditional peoples may also have led to the exclusion of these peoples from the group of right holders of Convention 169 in Brazil; representatives of traditional peoples lamented this lack of information and capacitation repeatedly in public events4 . Apart from this symbolic resource, translators or vernacularizers seem to depend heavily on a related resource: funding. Especially the quilombola leaders described the ambivalent relation of resistance and dependency, where oppressor and ally in many cases were represented by the same institution. Martin got to the heart of the situation: “Sometimes we bite, sometimes we blow out the fire”. This position is close to what Merry describes as “anointed vernacularizer”: intermediaries that are externally financed which thus often limits their position to the opinion of their financiers. Rosana describes this situation also for indigenous leaders who she characterizes as “orientated” by the NGOs which finance their traveling costs and participation in seminars, workshops and conferences. As I will explain in more detail in chapter 10.2, this conditioned support results in some cases in a disciplining of voices of social movements and their leaders by organizations that were brought into being in order to support exactly these movements’ claims. Indigenous and quilombolas leaders in the regulation process in Brazil had to fight for acceptance on two not so obvious fields: at home with the local base and at the same time with the NGOs and their funding schemes. A second group of vernacularizers in the regulation procedure were NGO staff members. They figured prominently as knowledge brokers in the regulation procedure in Brazil, adding a larger range of possible legal references than provided by the state institutions involved in the process. Additionally, especially those NGOs that acted in the fields of knowledge dissemination and follow-up of the process functioned as important sources of lobbyism, support and mediation. Still, these brokers

4 | If we consider the relevant literature on the rise of the identity category of traditional peoples, it can be stated that the existence of the concept of povos e comunidades tradicionais as it is used in Brazil today is already the result of a process of vernacularizing an international debate on the interaction humans and protected areas (Barreto Filho, 2009).

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were harshly criticized by both indigenous as well as quilombola leaders as bordering tutelage positions from time to time. This criticism illuminates one aspect of power inherent in processes of vernacularization: its interweaving with representation. As described in chapter 2.2, translators have very ambiguous power in this context. In this light, the fights to determine legitimate representations of the different actors of the regulation process become more understandable. Electing or setting up these leaders means choosing the knowledge brokers who will channel and convey information between the groups. Be it the representatives of the subjects of rights or the representation of their movements via NGOs, the role of translation is a powerful one, and it can become a burden, as some of the translators relate. Human rights law then appears as a powerful language which is accessible only to a small group of people while its rules regulate the life of many. In addition to these more classic types of translators of vernacularization, the regulation procedure in Brazil pointed to a very important mediator not mentioned in the literature on translating human rights to local contexts presented in chapter 2. Here, I refer to a kind of “cultural translator” who is responsible for conveying scientific ideas to the field of politics: anthropologists were conceptualized and acted as mediators in various aspects during the regulation procedure. Especially international law experts and the Office of the Federal Public Prosecutor (MPF) considered anthropologists as necessary negotiators and interlocutors for guaranteeing the equality of the participating parties as well as the adequacy of dialogue in future consultations. As for the regulation procedure itself, their role in this process was a form of “cultural counseling”, accompanying the debates on the future draft of the law and continually correcting notions that contradict disciplinary as well as personal experiences with alterity and dialogue. In the designed regulation draft as it existed until the end of the process, anthropologists were depicted as translators or brokers during the consultation process between different languages and understandings of indigenous or tribal peoples and government officials. Also in the light of the presented common practice of using anthropological expertise in cases of territorial conflicts in Brazil, it can be concluded that anthropologists come into play when the political space for decision needs to be veiled by the apparent objectivity of expertise. So while this can be seen as a form of mediation, translation or both, the role of anthropologists in the vernacularization of prior consultation in Brazil shows again the instrumentality of the process of translation itself as well as the importance of authority and legitimacy for these processes, a point that was already discussed in the previous chapter. Anthropologists and their produced knowledge are used for judging the cultural ade-

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quacy of translations; they introduce a hierarchical notion in the conceptualization of processes of vernacularization. All these translators, brokers and judges act in a situation of interlegality, as I argued in chapter 2.2. The regulation of prior consultation in Brazil evoked a situation of norm collision as described by Gunther Teubner: several regulatory regimes competed for authority over the definition and resolution of the setting and crucial questions involved in the idea of prior consultation. In chapter 9.1, I presented these settings as discourses on cultural difference and rights, statehood and citizenship, and development. Different regulatory regimes exist as codified law on national as well as international levels. As Teubner and Sousa Santos describe, norms on these two levels are characterized by substantial differences. Teubner sees this difference mainly in the degree of specialization (he characterizes national law as highly specialized and transnational law as rather sectorialized). I agree insofar as the different degree of comprehensiveness of norms leads to a very different language – this can be observed already in the process of creating ILO Convention 169. For example with regard to an indigenous consent to measures under consultation, the many different national interests and realities that needed to be addressed by the words of the Convention lead to a rather vague and general formulation. In other cases, the specific regulatory perspective taken in the Convention’s text and its official interpretations (for example by the CEACR) as well as in the UNDRIP lead to general formulations that are difficult to implement in a national setting characterized by the balancing and negotiation of different interests. As was also shown in the historic chapter (chapter 4), important notions discussed during the revision of Convention 169 were integrated in the Brazilian Federal Constitution of 1988 that today provides an important national source of legitimacy for claims for prior consultation. The historic debate on a new Federal Constitution in Brazil then can be seen as one more example for the interaction of international and national discussions on the right of indigenous peoples to cultural identity (Yrigoyen Fajardo, 2009, p.26-29). During the process of interpreting the text of ILO Convention 169 on a national level, questions were raised as to the compatibility of national with international norms, which I consider as another aspect of the situation of interlegality. Already in the communications between the Brazilian government and the ILO Committee of Experts, doubts about compability of the current Indian Statute and the precepts of ILO Convention 169, for example, were expressed and the defining power of national as well as international norms were weighed against each other. During the ratification, notions of ownership as well as self-determination as set in the Convention were questioned in relation to their conformity with the Brazilian Constitution and this

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presented an impediment for ratification for almost a decade. Here again it becomes obvious that a simple hierarchy that pictures international law as the ultimate legal force does not picture reality adequately; it is rather an interplay, or hybridization of the two systems that can be observed. As delineated in chapter 2.2, Boaventura Sousa Santos sees the substantial differences of these regulatory regimes rooted in their different scale (Santos, 1987, p.289290). He states that regulation patterns, action packages and regulation thresholds (ways of determining the scope of a norm) distinguish different regulatory regimes on distinct scales (Santos, 1987, p.289-290). One example of the effect of different regulation patterns in the regulation of prior consultation in Brazil is the debate on a definition of the subjects of the right to prior consultation as defined in ILO Convention 169 and in the national Brazilian legislation. The Convention’s text names “indigenous and tribal peoples” as holders of rights, leaving much space for interpretation in the national context of Brazil, especially with regard to the emergence of the recent social category of “traditional peoples”. “Tribal peoples” is a social object without a clear identity in the national legal system of Brazil. While stating some more or less concrete criteria for belonging to the group of “tribal peoples” in its first paragraph5 , the second paragraph of Article 1 of ILO Convention 169 states that self-determination shall be the “fundamental criterion for determining the groups to which the provisions of this Convention apply” (ILO, 1989. Indigenous and Tribal Peoples Convention 169). This of course reflects debates on indigenous rights in the human rights sphere, as well as the possible trade-off between the members of the ILO Commission charged with the revision of Convention 107 in 1988 (see chapter 4). On a national level, though, very concrete rights and obligations were going to be connected with the admission to be part of the group of the subjects of rights of Convention 169. Therefore, the group of “traditional peoples”, possibly falling under the concrete criteria as well as possibly self-determining themselves as tribal people in order to benefit from the Convention’s rights, was excluded since it seemed to make the whole process with its presence impossible because of its menacing indefiniteness. For the leaders of the quilombola movements, as well, being named specifically in a regulating norm addressing the implementation of ILO Convention 169 in Brazil appeared as one of the major goals. In my interviews, the indigenous leader Rosana

5 | The Convention states that traditional peoples’ “social, cultural and economic conditions distinguish them from other sections of the national community” and that their “status is regulated wholly or partially by their own customs or traditions or by special laws or regulations” (International Labour Organization, 1989).

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characterized Convention 169 as diffuse, and she outlined the difficulties of the indigenous leaders in defining a strategy towards its application. Another substantial difference in national and international law experienced by my research partners was the range of options each scale provides. Martin states that international law raises more attention and public pressure, which he conceived of as a good entry point for claiming quilombola rights. On the other hand, he states, this law lacks enforcement. ILO representatives themselves stated in interviews that they considered publicity – international law’s only enforcement power according to them – to be a power of “shaming” or “awarding”. The international legal system is based on the consent of sovereign nations and lacks an enforcing system apart from its power of creating publicity: The power of international human rights institutions to publicly blame and discuss situations of conflict in specific states is its only true enforcement apparatus. In the case of Brazil, the menace of appearing on a short list with cases of alleged situations in violation of ILO norms has triggered governmental efforts to initiate the legal regulation of the Convention’s precepts on a national level. The delineated competition of national and international definitions on participation and self-determination continued during the regulation process, for example in the debate on a right of the consulted groups to reject a project or measure. On the one hand, no right can of course be granted on the national level that is considered conflicting with the legal framework set up by the Constitution and positive national law. Many national legal experts considered a right to veto to be in conflict with the existing Brazilian legal framework. On the other hand, it is difficult to conceptualize a consultation with a determined outcome that aims to achieve “free, prior, and informed consent”, as many social movements and civil society organizations state. In this context, it is interesting to take note of the situation of legal pluralism on the international level. The different international authorities of the ILO and the UN were questioned in their expertise and in their mandate to judge the national situation by NGOs as well as social movement representatives. Even internally, the different organs within the International Labour Organization questioned their distinct spheres of authority, for example in the debate on the interpretive power of the ILO Expert Committee (CEACR). This shows that the international legal system is also to be grasped as a plural legal system that offers sources of reference to a wide range of claims. Many of my interview partners perceived this context of interlegality as a threatening “unclear legal situation”, not only because of international and national law addressing the issue, but also because the national legislation seemed to offer different references and frameworks for consultative processes. This ambiguity is expressed for example in the many diverging positions by indigenous leaders, NGOs and even

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legal experts as to what point the self-enforcing character of Convention 169 would even render a regulation dangerous for creating exclusive definitions such as that of the right holders. Many of my research partners considered the legal regulation as a step out of legal pluralism, expecting legal security, a “final word” on the many contested issues. With or without a final form of regulation, this seems doubtful in the face of the self-enforcing character that the Brazilian Constitution grants to international human right treaties. A good example for this is the intervention of the Inter-American Commission on Human Rights in the conflicts around the construction of the Belo Monte Dam at the Xingu river in 2011, requesting the suspension of the license until international human rights and environmental standards are fulfilled (Inter-American Commission on Human Rights, 2011). The Brazilian government’s refusal to tolerate this intervention and their threat to cancel their participation in the IACHR pointed clearly to this fragile construction of the power of international law and its enforcement. Summing up, the high relevance of access to knowledge and funding for vernacularizers and brokers became clear in this chapter. Their ambivalent situation of power and vulnerability is part of their gatekeeper position and presents a great challenge for individual persons. Furthermore, vernacularization was shown in this chapter as a powerful process. In researching processes of translating human rights to specific situations, attention has to be paid to two positions of power: representative and scientific authority provide for roles that matter in the process of interpreting human rights on small-scale levels. Moreover, interlegality has proved a valid concept for explaining structural difficulties and interactions between the regulatory regimes in translation. My analysis further showed that competing regulatory regimes do not only exist vertically (between the levels of nationality, transnationality and internationality), but also horizontally – between different sectors. And finally, situations of insecurity and conflict that occur in settings of interlegality are increasingly sought to be clarified via the judiciary, which will be the topic of the next chapter.

9.3. J URIDICAL

AND POLITICAL PROCESSES AS DIFFERENT WAYS OF MANAGING THE DISPUTE ON PRIOR CONSULTATION

As a last point addressing questions of the application of law, I want to discuss the general roles of the judiciary and legal discourse in the process of regulating Convention 169 in Brazil. Within its course, the regulation of prior consultation became very much influenced by juridical processes and institutions. The Brazilian judiciary

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as well as the Office of the Federal Public Prosecutor (MPF) played crucial roles in opening and closing opportunities for debate and participation. The actors of the Brazilian executive seem to have been “overrun” by this power. As presented in chapter 2.3, scholars cite the struggle of indigenous peoples’ organizations for the implementation of international and national obligations as one prime example of the judicialization of politics worldwide (Sieder et al., 2005). I want to comment on this situation with regard to indigenous politics and the Brazilian legal system, showing how the case of the regulation of prior consultation in Brazil adds to this trend. Specifically, I argue that processes of judicialization shaped the process of negotiating a national norm for prior consultation in Brazil. In the introduction to her classical collection of essays on case studies of dispute processing, (Nader, 1978) mentions the seven most common ways of dispute settling: adjudication, arbitration, mediation, negotiation, coercion, avoidance, and “lumping” (Nader, 1978, p.9). While many of these mechanisms are part of the political sphere, the primary mechanism of dispute settling of the juridical setting is adjudication. During the regulation of ILO Convention 169 in Brazil, different dispute resolution mechanisms were applied; especially the General Secretariat of the Republic (SGPR) had to mediate between the different institutional interests represented in the Interministerial Working Group (GTI), as well as with representatives of social movements and civil society organizations. While the process of legalization progressed, the SGPR negotiated the terms of consultations in concrete cases of conflict like the protests of the Mundurucú people against the Tapajós Dam. Political instruments of conflict settlement were applied at many different stages, as I showed in the previous chapters. Nevertheless, a strong influence of the judiciary on the process of negotiating a legitimate interpretation of prior consultation in Brazil cannot be denied. The described judgment of the Brazilian Supreme Court (STF) and the arguments surrounding the publishing of Ordinance 303 (see chapter 6) shaped the regulation process and its actors profoundly. In looking at the regulation process as a distinct way of settling disputes, I argue in this subchapter that different spheres of dealing with conflicts imply different ways of dealing with conflicts. Even being an independent actor not considered part of the Brazilian judiciary, the Office of the Federal Public Prosecutor (MPF) assumed a very prominent role in bringing the regulation procedure to the sphere of the judiciary. Representatives of the institution participated in shaping visions of the notion of prior consultation from the beginning of the debate in Brazil by giving pre-advice on the constitutionality of the different ideas for implementation. During the regulation process itself, the MPF maintained the role of an observer regarding the official schedule of the Interministerial Working Group (GTI). In the parallel arena of concrete development projects,

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the MPF acted prominently in pursuing court action claiming lack of consultation, for example in the case of Belo Monte. The MPF was also prominently involved in the debate on the applicability of the conditions of the first judgment of the Brazilian Supreme Court on the declaration of the indigenous territory Raposa/Serra do Sol (see Chapter 6.6). It even questioned a perceived legislator activity of the STF in establishing conditions, the latter being a task normally entrusted to the Congress. The opinions of the judges of the Supreme Court on this question were divided as to if this judgment exceeded the competencies of the Supreme Court or not. In any case, both judgments of the STF on the case of the indigenous territory Raposa/ Serra do Sol – on its declaration (2009) as well as on the scope of the conditions established with its declaration (2014) – interfered with political processes. Especially the first of the STF’s judgments was discussed extensively in Brazil as an example for the growing judicialization of politics (cf. e.g. (Ribas, Giovanna Paola Primor and Souza Filho, Carlos Frederico Marés de, 2014)). In the case of the second judgment, it can be inferred that the judgement actually worked as a kind of pre-decision on issues under discussion within the political process of negotiating an understanding of the scope of prior consultation in Brazil. This can be seen as one more example of how courts in Latin America have a tendency to cast themselves as defenders of rights beyond formalist interpretation, described by (Couso et al., 2010). Moreover, the role of the Office of the Federal Public Prosecutor (MPF) as summarized above is very much confirming Arantes’ statements on the protective role of the institution (Arantes, 2005, p.233). Taking over the described “guardianship role” led the institution to interact directly on behalf of the populations that were perceived of as unable to access their right to consultation, but it also contested the steps taken by other actors such as the publication of Ordinance 303 by the Attorney General (AGU). This is very much in line with the perceived general effects of judicialization. Sieder et al. name the advantages and challenges of the judicialization of politics as the possibility to secure governmental guarantees for resources as well as the possibility to uphold “interests of the weak” (Sieder et al., 2005, p.8-9). The case of the regulation of prior consultation in Brazil confirms this thesis. Actions taken by the Attorney General (AGU) – also not member of the judiciary – additionally contributed to translocating the political process of the legal regulation of prior consultation to the sphere of the judicative. The publication of Ordinance 303, limiting consultations in various dimensions, caused an outrage that finally led the indigenous movement to withdraw from negotiations in order to make their protest against this Ordinance publicly known. My interview partners described this step as the one that hampered the proceeding most strongly. It was the legitimacy of the AGU’s Ordinance on which the STF was judging in fall 2014. These court decisions

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on aspects of consultation and indigenous rights worked as side stages for the political process of negotiating a publicly accepted interpretation of prior consultation in Brazil and in general had two kinds of effects on the regulation process. On the one hand, they negatively influenced the willingness of especially the indigenous movement to continue interacting in the regulation process with the federal government. On the other hand, these judgments predefined and excluded specific interpretations of the right to prior consultation as set in Convention 169 within the context of Brazil, for instance regarding a right to veto or possible cases of non-consultation. This aspect of the “regulation story” hints at the effect of judicialization on the strategies of social movements. Legal mobilization proved to be an important strategy for the indigenous movement in order to stand the perceived threat to their territories. This is a common tendency for indigenous movement in Latin America; for example, César Rodríguez-Garavito states that more and more indigenous leaders in Colombia went to law school (Rodríguez-Garavito, César, 2010, p.282), and in the case of Brazil, many of the indigenous leaders were actually lawyers. Apart from the concrete influence on actions during the regulation process, it is important to consider that processes of judicialization in general substitute the negotiation and struggle for legitimacy that is characteristic of the political sphere with hierarchical models of conflict resolution as adjudication represents. Perceiving of this strong influence of legal conflict resolution methods as a judicialization of the regulation of prior consultation in Brazil opens the focus on the different processes of dispute processing that is characteristic of each sphere and leads to different results. In this way, the regulation of prior consultation in Brazil can be characterized as showing features of depolitization of conflict, a common effect of the transfer of claims for social justice to the legal sphere. This confirms findings of anthropological research in the area of implementing human rights, specifically the right to prior consultation as in Rodríguez-Garavito’s analysis of the formalization of claims to consultation in the context of mining projects in Colombia (Rodríguez-Garavito, César, 2010)).

10. Discussion II: Prior consultation in Brazil

In this second discussion chapter, I analyze some specific features of the interpretation of the right to prior consultation in the context of historic state-society relations, relating to experiences with participation and the legal regulation of cultural rights in Brazil. In the first subchapter (10.1), I address the practical challenges implied in realizing participative process with regard to two key concepts. The first is the concept of dialogue, whose crafting was the declared goal of the regulation process. Nevertheless, the attempt to design a fair and equal encounter without discriminating the groups consulted was difficult. I use results from anthropological studies of knowledge exchange and participatory processes to highlight the pitfalls and structural problems of this endeavor. The second key concept for discussing the complex structure for participation and negotiation that was used by the actors of the regulation process is that of arenas. Based on the spatial account of participation of (Cornwall, 2002), I establish a system of categorization that accounts for the different kinds of arenas which brought the actors of the regulation process together or respectively set them apart. This scheme helps develop a spatial perspective on the arenas of participation as well as the strategies of the groups considered “participants” – social movements and NGOs. In chapter 10.2, I address the right to prior consultation as a net spun between the spheres of law, anthropology and the protests of social movements. I show the challenges of basing special rights to territory and participation on notions of cultural difference and delineate this historic formation on an international level as well as in Brazil. Subsequently, I draw from the literature on multicultural politics and the effects of the notion of “special rights for special peoples” (Ramos, 1994; Hale, 2004; Bocarejo, 2012) to show the practical result of the production of what I called “containers of difference” that arose from this linkage. With the help of literature on the interweaving of science and politics (Latour, 1987; L’Estoile and Neiburg, 2002), I show how this linkage creates a necessity for the figure of “judges of difference”

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(Guimarães, 2006): anthropologists as experts for cultural difference. In this intricate complex of scientific debates on alterity, the legal codification of human rights, and the protests and strategies of social movements, I argue that doubting one part of this “actor-network” (Latour, 1987) unfortunately puts in danger rights that have been long fought for until a new basis for legitimization is established. This makes the critique of notions of culture and indigenous peoples difficult, notions that deserve critical assessment and development.

10.1. T HE

PRACTICALITIES OF PARTICIPATION

In this subchapter, I want to address several points that stood out in my material presented in the ethnographic part of this work with regard to the “practicalities of participation”. In ILO Convention 169, participation of indigenous and tribal peoples in decisions affecting their right to self-determine their fate is the primary focus; their free, prior and informed consent (FPIC) to such decisions is set as crucial for the realization of this right. Participation was already a crucial point in the establishment of ILO Convention 169, or rather in the revision process of Convention 107. The negotiations and formulations in the ILO Committees – presented in chapter 4 – relating to the notion of indigenous consent versus the upkeep of national sovereignty showed this very clearly. Consultations were established within Convention 169 as an instrument to guarantee the co-determination granted to these peoples. In the regulation process in Brazil, the implementation of such consultations – already on a planning level – displayed many of the challenges that all participatory processes face, plus some of the pitfalls of what was conceptualized as “intercultural communication”. I organized these points under the two headlines of “forms of dialogue” and “arenas and strategies of negotiation”. “Forms of dialogue” had to be found in Brazil in order to delimit the interactions taking place during the regulation process. The complexities of finding just conditions under which peoples and formats of knowledge perceived as “culturally different” could have a “fair“ dialogue soon became evident. Apart from this, the spaces under construction in setting up new and old arenas of interaction were of course structured by long lasting relations of power that occurred during the negotiations. This subchapter presents a kind of double perspective on prior consultation as it focuses on the one hand on the models for consultations discussed in the process of legal regulation of ILO Convention 169 in Brazil; on the other hand it examines the process of legal regulation itself as a process of meta-consultation.

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Forms of dialogue In the discussions on a regulation of ILO Convention 169 in Brazil, “dialogue” was a very prominent paraphrase to describe what prior consultation should mean. Emilia from the National Indian Foundation (FUNAI) equates the two notions in her account, and legal experts of the ILO stated in public documents (Committee of Experts on the Application of Conventions and Recommendations, a) as well as in interviews with me that a successful consultation would represent an instrument of genuine social dialogue. In general, dialogue was regarded as a great positive connotation in the socio-political context of my research partners within the Brazilian government; it is set as the prime task of many institutions dealing with social movements and political communication (Tácio even worked within a whole section called “Social Dialogues” within the General Secretariat of the Presidency). When Ordinance 303 was published, its main effect as described by my interview partners was and continued to be the rupture of dialogue. Moreover, “dialogue” is used often in order to establish a border between consultations and public hearings (audiência pública), a format for participation directed much more at informing than at actual agency of the participants. “Dialogue” further figured as an alternative draft in the negotiations on the deliberative power of consultations, when a right to veto was associated with simply voting yes or no and especially social movements pointed to the more procedural character of dialogue implied in the notion of the governmental obligation to obtain the consent of the consulted groups. This dialogue was designed during the regulation procedure as a “dialogue among equals”, especially by government representatives and international observers. Indigenous leaders often opposed this concept by pointing at the inherent obfuscation of the power of governmental representatives or companies to declare the dialogue “failed” which implied a de facto power to veto the non-consent of the consulted community in their eyes. Indeed, the conceptualization of a “dialogue among equals” in this context helps to avoid questions of power in relation to consultative meetings: In such an idealized dialogue at eye-level, indeed none of the participating parties can be granted a right to veto, as my interview partner at the Office of the Federal Public Prosecutor (MPF) stated1 . Nevertheless, the impossibility of rejecting a project under consultation of course limits the affected party’s range of self-determined actions and

1 | Dóris, my interview partner, in fact stated that in her interpretation, a project that presents a threat to the cultural survival of a group would need the consent of the community. I discuss the responsibility handed over to the “expert” whose envisioned task it is to determine this situation in Chapter 8.3 and 8.4.

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informed consent as defined, for example, in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). In current discussions of legal scholars the topic, consultation and the right to free, prior and informed consent are usually considered to be linked (Anaya, 2004; Lâm, Maivân Clech, 2000). Having a closer look at the roots of the idea of informed consent, the socio-legal scholar David Szablowski (Szablowski, 2011) finds its origins in doctor-patient relations in which the patient gives his informed consent to a medical treatment. This situation is of course a fiduciary situation requiring information so that the patient can exercise his or her right to self-determination (Szablowski, 2011, p.124). In contrast to this situation, however, Szablowski characterizes situations of consultation (in his work in the context of extractive industries) as situations of “oppositional bargaining”. Szablowski criticizes that this is not considered in many “consultation regimes”: The conflict between the interests of the parties is much more pronounced and is less tempered by shared goals, or the influence of a professional ethic of service and care, as in the medical case. Concessions to communities can present extractive industry firms with substantial costs and obstacles. Notably, collective bargaining, a case arguably more comparable to FPIC, is not distinguished by fiduciary duties. Instead the parties owe one another a duty to bargain in good faith – a much lesser standard. (Szablowski, 2011, p.124)

In many of the public discussions in Brazil, the “good faith” of the governmental as well as the entrepreneur’s strategy was heavily doubted and anger was expressed by indigenous as well as quilombola representatives on the fuzziness of the interpretation of the “informed” feature of prior consultation. Social movement leaders listed asymmetries in information and difficult access to deliberative forums as realities opposing the idea of a “dialogue among equals”2 . Knowledge circulation is one of the frequently mentioned points that is pictured as crucial for enhancing a situation in which “informed consent” is feasible for consultations. Especially quilombola leaders named the meta-consultations that were realized within the scope of the regulation process in 2013 as important moments of knowledge circulation, although the mixing of this aspect with quasi-deliberative aspects was the price for this information. Within the Working Group (GTI), the General Secretariat of the Presidency (SGPR) assumed the task of informing on Conven-

2 | Cornwall calls these capabilities that grow out of access to education and trainings “weapons of the powerful” (Cornwall, 2002, p.27-28).

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tion 169 and the regulation process. Apart from the many meetings with participating and observing actors that this task implied3 , the General Secretariat tried to disseminate the content of ILO Convention 169 as translated to three indigenous languages (Terena, Ticuna and Guaraní Kaiowa) with funding from the national ILO office in Brasília. Despite these efforts, the problem of how to reach populations in remote communities remained. In addition, the question arose of who had the actual capacity to participate in consultations or even in the knowledge sharing process: Illiteracy among rural communities was mentioned by quilombola leaders as a major threat to the communities and the invoking of their rights. Based on my observations of the meta-consultations and other public meetings, I would add to these problems the lack of a basic understanding of the political system and its institutions in Brazil. Especially in the consultations of quilombola leaders in Montes Claros in June 2013 that I witnessed, a lack of knowledge on the institutional functioning of responsible authorities – in this case basically the Palmares Cultural Foundation (FCP) – was expressed by the present leaders, and their search for understanding who is going to attend them with the problems in their communities as well as which institution is able to oblige state and municipal administration to implement the existing norms became evident in the debates. Interestingly, this lack of knowledge on existing rights and norms regulating right to territory, social services and other resources of the quilombola communities was identified by the leaders as also existing strongly on the side of the public administration that they deal with every day. This shows how much knowledge circulation on all levels can make significant changes to participatory dialogues. The account of the indigenous leader Rosana adds to this picture the experience that the problem of passing knowledge and information is often not only a question of linguistic translation or of expressing complex processes in an accessible way, but it implies a “translation of relevance”: an integration of the issue at stake into the scheme of relevance of the addressee, in her case local indigenous community leaders without experience in the field of indigenous politics and mainly interested in their territories. Conceptualizing dialogue between indigenous or quilombola community members with this in mind leads to the impasse of assessing perceptions of (cultural, social, or economic) alterity among the participants of consultations on the one hand4

3 | For more details on this agenda see Chapter 6. 4 | César Rodríguez-Garavito states after his study of prior consultation in Colombia that “consultations embody a discursive clash, in which claims and different kinds of knowledge, based on radically distinct epistemological roots, get crossed” (Rodríguez-Garavito, César, 2010, p.297).

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and the ideal of non-discrimination within this dialogue on the other. The crucial point seems to be to conceptualize this difference in a non-discriminatory way within the intended “dialogue among equals”, in order to not fall into essentializing definitions of culture and knowledge as being different (or even inferior) and incompatible by nature. In order to understand the roots of this problem, I want to suggest integrating insights from anthropological studies on practices and formats of intercultural dialogue that have approached this issue as a problem of essentializing knowledge systems (Sillitoe, 1998; Sillitoe et al., 2002) (Nadasdy, 1999; Ingold, 2011). As delineated in chapter 2.4, these authors point to the inherent political nature of the integration of different knowledge systems and their holders in co-management processes. They describe the difficult balance of conceptualizing the difference appearing in such forms of cooperation without reifying it and, in doing so, limiting the agency of its knowledge holders. The described problem of an adequate acknowledgement of the different format and circumstances of production of ”traditional knowledge” also holds for the formats of consultation drafted in the regulation process as became clear when analyzing the role of anthropologists in future consultations in Brazil (see chapter 8.3 and 8.4) as well as in the negotiations on suitable circumstances for prior consultations in Brazil. A fact that further complicated this situation is that social movements and their leaders themselves make use of essentialized vocabulary in order to access rights based on these notions. Thus, while a complete disregard of the specific needs and contexts for a dialogue between indigenous or quilombola groups and governmental representatives is to be considered an illegitimate ignorance of the right to difference, shortened notions of “traditional” or “indigenous” knowledge and peoples can lead into new forms of discrimination. These insights point to the necessity of deessentializing notions of knowledge within the context of dialogue and interaction that consultation processes create, without simply ignoring cultural processes and contexts that form ways of knowing and their expression. Moreover, these results hint once more to the crucial role of gatekeeping and responsibility that translators have in these kinds of processes. Still, I find David Szablowski’s argument (Szablowski, 2011) that information does not provide a full solution to the problem of power in establishing situations of free, prior and informed consent important. Szablowski hints to the point that the strength of an actor’s bargaining position is augmented above all by his or her choices and alternatives towards a conflict resolution: A fully informed party with poor alternatives to settlement remains in a weak position, regardless of the extent of its knowledge, and can be bargained down significantly. (Szablowski, 2011, p.125)

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Alternatives for settlement can often be found in an alternative arena for negotiation, as the next part of this chapter will show. Arenas for participation and strategies of negotiation In order to understand the meaning of the different spaces for participation used during the regulation process, I suggest a perspective on these spaces as “arenas”. As presented in chapter 2.4, arenas can be understood as temporally as well as spatially structured situations of interaction (cf. (Cornwall, 2002, 2008)). During the regulation of prior consultation in Brazil, different temporalities were perceptible on all levels. First, there was the time given by the election period (a four-year term in Brazil), which is the time an elected government has to realize political projects. Even with the re-election of President Dilma Rousseff in fall 2014, political positions were redistributed and the team that was leading the regulation process within the General Secretariat of the Presidency changed positions. Joana, head of the Interministerial Working Group (GTI), states in her retrospective that political processes involving any kind of working groups in Brazil cannot take longer than a year. If they exceed this time, they become lost – which seems to have happened to the legal regulation of prior consultation in the country, despite the initiation of the regulation procedure in the middle of Rousseff’s mandate. Here, however, another temporality comes in: that of participatory processes. The information and deliberative processes of participants do not work in the same rhythm as legislative periods, and neither do upcoming urgent conflicts. While a complex process of negotiation and deliberation was started in Brasília on the question of defining prior consultation in Brazil as whole, construction projects and civil protests continued to press for urgent solutions on how to integrate or give decision power to affected communities. The different paces of an administration to guarantee law enforcement and the construction/destruction caused by development projects evoked worries and frustration among the affected communities, as one quilombola leader expressed at the consultative meeting in Montes Claros in 2013. She contrasts in the following quote the discussions about a legal regulation of prior consultation for quilombola communities with the pressing urgency of environmental destruction and territorial expropriation. “So I think this is pretty bad – we are discussing definite positions that will really define the life of these communities, because two or three years from now, this all might not matter anymore. Until the Decree is going to be regulated, published, and approved, it

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won’t change a thing anymore. Our rivers will already have been gone, or forests will have been gone, our territory is already gone.” (Interview, own translation)

This perceived incompatibility of temporalities caused great frustration and even distrust in the usefulness of participatory processes among the social movements in Brazil. Another point related to the temporality of participation that appeared in my interviews is the durability of participatory spaces. Especially NGO members hinted to the stronger leverage that continuous spaces of interaction create as compared to punctual participatory spaces that consultations, even considered as lasting longer than a few meetings, represent. Andrea Cornwall describes the problems of shortterm participatory spaces very aptly: Simply plucking out ‘poor people’ and asking them what they would like, want or need risks producing echoes of the very discourses that disempower, as well as legitimacy for solutions that may further deepen their misery. (Cornwall, 2002, p.25)

Arenas for participation, then, are crucially structured by their temporal limitations, in enabling or impeding meaningful exchange and formulation of positions. Beyond this, arenas for discussing the interpretation of prior consultation in Brazil also differed according to the possible agency of the participants. During the regulation process of Brazil, two long-term interfaces between social movements and state authorities were involved: the National Commission for the Promotion of Sustainable Development of Traditional Peoples and Communities (CNPCT) was defined as a partner for negotiating the terms of a regulation of ILO Convention 169 for traditional populations with the Interministerial Working Group (GTI), and the National Commission for Indigenist Politics (CNPI) can be characterized as a permanent side scene for the negotiation of the relationship of the Brazilian government to the indigenous movement. Both spaces are institutionalized arenas for discussing sectorial policies and represent regular spaces of interaction between social movement leaders and social movement representatives - that is when these spaces are not blocked by its members. Framing and networking can be described as primary functions of the CNPI and CNPCT, as well as knowledge circulation: To stay informed about political projects in their process of formation within the government was described as an important criterion by the indigenous leaders to come back to negotiations after their withdrawal from the CNPI. In addition, I consider the Interministerial Working Group (GTI) itself to be a regularized participatory approach to the definition of a cross-sectorial policy, even if it was restricted to the members of the administration,

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constituting a new space of discussion and negotiation of normally separated processes within the government. These kinds of spaces fit Andrea Cornwall’s description of “regularized relations” (see chapter 2.4). The interlocking of state and civil society in these spaces accounts for the poor deliberative power and rather long-term impact that the two Commissions had in the regulation process. As a second type of arena, less institutionalized spaces of participation that were set up for discussing specific questions can be named. Prior consultation as discussed and tentatively implemented within the process of its legal regulation is such a format in itself. These “fleeting formations” may be considered starting points for the institutionalization of a participatory space, but they are initially “opened up at particular moments for particular purposes, then closed again”, as Cornwall states (Cornwall, 2002, p.19). These spaces aim to open up deliberation rather than actually make decisions and occupy a mainly insignificant place in policy processes. That is why they present normally low forms of accountability (Cornwall, 2002, pp.19-20). Claims within the regulation process to a right to veto in consultations can thus be understood as addressing the accountability attached to these meetings. This low accountability was considered a threat to the right to self-determination of indigenous and tribal peoples, a right that should be guaranteed by the implementation of prior consultation as per ILO Convention 169. In contrast to the above-described arenas set up by the state, NGOs primarily aimed to create spaces outside the official framework for the regulation of prior consultation that was established by the government and the Working Group. In cooperation with these NGOs, the indigenous “protocols” were elaborated, which offer a basis for negotiations on the conditions for the consultations of specific indigenous peoples. These protocols fell out of the officially scheduled regulation process as they represented autonomous attempts to define the framework within which prior consultation should be discussed. This accounts for the inclusion of the claim for a right to veto in the protocols. Cornwall calls these kinds of spaces “alternative interfaces”: spaces which are chosen, not offered, and exist autonomously from the state. I agree with Cornwall in her assessment that these spaces have the potential to become sites of more radical propositions (Cornwall, 2002, p.21). On the other hand, questions of representation are less formally resolved in these spaces which may lead to further questioning, and they lack the authority and legitimacy of more formalized, official spaces. In the case of the indigenous protocols asserting conditions for consultations, the initiative was highly appreciated by members of the judiciary and within the General Secretariat of the Presidency, but this did not challenge the overall path and result of the regulation process.

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While the protocols represented a format of participation that still partly followed the process led by the government and the discussions in institutionalized spaces, there were also arenas of open protest and resistance that interfered in the regulation process. First and foremost, the protests and repeated short-term negotiations on the participation of indigenous communities in the elaboration and implementation of the two hydroelectric power plants Belo Monte and São Luiz do Tapajós can be characterized as such kinds of spontaneous protest, not only outside but indeed in opposition to the sphere of the state. The Belo Monte case created spaces that Cornwall calls “movements” – short term initiatives in which many of the social movements in Brazil identified with the cause of the indigenous residents of areas affected or flooded by the construction of the dam. Repeated acts of solidarity happened and continue to happen in the urban centers of Brazil. In addition, I consider the non-participation and withdrawal of several of the important actors of the regulation process (a growing number of NGOs as well as the main part of the indigenous movement) also as a “movement” in the sense that Cornwall establishes. Non-participation definitely stood in concurrence to the consultative gestures of the government and was a consciously chosen strategy of protest. In organizing the manifold ways of participation and negotiation in terms of time and space, a clear perspective on the different strategies available in each of the identified formats of participation is possible. The meta-consultations of quilombola leaders on a legal regulation for prior consultation in Brazil represented spaces set up by the government. In these spaces, the national quilombola movement adopted bargaining strategies; in a way, they were exchanging their presence in these spaces for the opportunity to disseminate knowledge on Convention 169 and to meet with regional movement leaders. The indigenous protocols presenting what the subscribers considered important about the social and political structure of a community as well as setting their limits for a legitimate consultation process can be considered acts of re-empowerment. They can be considered a move by indigenous organizations and their support groups towards self-empowerment vis-à-vis the limited space for action offered by the official process as well as in response to parallel strategies of the government within the field of indigenous policies (as for example Ordinance 303). The protocols can be perceived of as a strategy of resistance, of creating alternative spaces, while at the same time it has to be considered that in their reception, the government simply ignored what contradicted the limits of legitimacy in their point of view (mainly, the claim for a right to veto) and welcomed the protocols as if they represented exactly what everybody was looking for. These acts of resistance then appeared as being incorporated by their very addressees. Another strategy of the indigenous movement and some NGOs was the withdrawal from any of the spaces of

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participation. In their public statement, participation then was framed as something dangerous, as bearing the risk of legitimizing policies in which they did not have a real saying based on their mere presence. The strategy of non-participation is specifically interesting since it sheds a new light on participation different from the appraisals this principle has generated in the literature as well as in politics (Leal, 2011). In line with critique formulated by the indigenous movement in Brazil, several authors question an automatic empowerment emanating from participative formats. Chris Tennant (Tennant, 1994) takes up some of the criticism expressed in recent research as to the shortcomings of considering participation an institutional panacea. Regarding the danger of an excessive focus on procedures that come with the uncritical appraisal of participation, he states that: The ‘problem’ is then one of participation, which is a ‘problem’ whose resolution is procedural, and whose resolution does not challenge institutional structures in the way that the substantive political goals of indigenous peoples might do. (Tennant, 1994, p.50)

This distraction from the underlying structures of power and asymmetries of access to decision-making that is inherent in considering participation as a universal remedy can be both used and abused to legitimize the continuation and expansion of institutions that actually lie at the root of the problem, making participation an empty gesture. Tennant finally formulates the danger inherent in overpraising participation in terms of a procedural remedy as a “disempowering shift from substantive political goals to the institutional objective of increased participation” (Tennant, 1994, p.56). César Rodríguez-Garavito (Rodríguez-Garavito, César, 2010) sees this danger becoming reality in consultation process in Colombia. He harshly criticizes the focus set on “participatory institutions’ procedural intricacies” that would veil the material conditions and power asymmetries which hamper genuine deliberations in consultations (Rodríguez-Garavito, César, 2010, p.279). The strategy of non-participation of the indigenous movement in Brazil can be seen as addressing this danger inherent in participatory processes and especially in the merely procedural focus on the resolution of social conflicts as Tennant describes above. The refusal of a large part of the indigenous movement to discuss consultations without discussing a right to veto aims to empower the subjects of participation to challenge institutionalized power relations. While I show in this chapter that it is extremely useful to order different spaces for participation regarding the possibility of agency handed over to the participants as well as according to the degrees of leverage that the decisions emerging from these

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spaces create5 , many of the limits set up here are actually diluted in reality, for instance the sharp distinction of state and non-state spaces. For example, many of the officials of the newly created governmental institutions dealing with quilombola communities (the Palmares Cultural Foundation – FCP, or the Special Secretariat for the Promotion of Racial Equality – SEPPIR) employed important figures of the movement itself and integrated them into the state machinery. This floating boarder between state and non-state actors makes sharp differentiation analytically challenging, but it is also difficult for the actors themselves. Furthermore, the material presented in the ethnographic chapters points to the entanglement of different formats and arenas of participation that impacted the regulation process as a process of creating new spaces for participation, of course none of which were empty or free of power structures and pre-established relations between actors. These arenas exist in concurrence and competition to each other and serve as spaces to act out relations of power that are surpassing single arenas, such as the relationship of cooperation and trust between the state and the indigenous movement. Violating this fragile relation of exchange and mutual compromise in one of the areas means that progress for negotiations in other arenas is impeded. The effect of Ordinance 303 is a vivid example of this. Thinking of the mutual influence and overall importance of the presented arenas for participation, I even came to think that the creation of these new spaces for participation – the consultations, the Working Group, the networks – can be considered the ultimate goal for some of the actors of the regulation of prior consultation in Brazil, who participated in a somewhat paradoxical process: While almost all of the social movements and NGO representatives expressed their disenchantment with participatory processes and related to experiences of powerlessness and wasted energy and time, they all engaged in one form or the other with the official regulation procedure, at least for some time. Maybe the goal of creating these spaces can be considered at least equal to the official topic of debating a definition and procedure for prior consultation in the country.

5 | One problem related to all these spaces is the point of defining their scope. During the regulation of prior consultation in Brazil, the limits and leverage of consultative meetings were heavily contested. On the one hand, social movements and NGOs contested the prior exclusion of a possibility for a right to veto of consulted groups being laid down in a legal regulation. On the other hand, especially when observing and participating in the meta-consultations with quilombola leaders, it became evident that a participatory process that does not define the limits of the topic that is put to question does create a strange feeling of uselessness for the participants who know that not everything is possible. A false openness in participatory spaces can actually be interpreted as not taking its outcome seriously.

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10.2. T HE I NTERWEAVING

OF LAW, ANTHROPOLOGY AND MULTICULTURALIST POLITICS IN THE RIGHT TO PRIOR CONSULTATION

This chapter deals with the problematic aspects of basing collective rights to territory and/or participation on notions of cultural difference, as I argued in Chapter 2.5 is the case for the right to prior consultation. Indigenous movements in Brazil as well as indigenist movements worldwide have fought for the link between recognized formations of cultural alterity and social rights for quite some time (Brysk, 2000; Lâm, Maivân Clech, 2000; Ramos, 1998; Rößler, Maren, 2008). During the regulation of prior consultation in Brazil, the strategies of the subjects of rights were based on the firmness of the linkage between their publicly recognized social identity and the right to prior consultation, as became evident in chapter 5.4. The indigenous movement could opt for a blockade strategy because the adherence of indigenous peoples to the group of beneficiaries of the rights granted in ILO Convention 169 was out of the question. Their presence therefore was somewhat mandatory for any legitimate participative process of regulation and could be used as leverage in political negotiations. Quilombola leaders, on the other hand, referred to the legal codification of their adherence to the group of subjects of rights of ILO Convention 169 as one major aim of their participation in the regulation process and consequently engaged in bargaining relationships. When looking at the group of traditional peoples and communities, the formation of a new identity regime that connects cultural identity and social as well as territorial rights can be observed today (Barreto Filho, 2009; Almeida, 2012; Cunha and Almeida, 2000; Lobão, Ronaldo, 2012). During the time of the regulation process, the linkage of traditional peoples’ differentiated identity with existing notions of cultural difference, along with rights connected to it, was not yet fully established and was being set up in different terms and institutional arrangements than it was for indigenous peoples or quilombola communities. The situation of distinctly defined legal codifications of difference for these three groups, then, can be seen as hindering the creation of a unified movement of the subjects of rights of ILO Convention 169 in the context of the regulation of prior consultation in Brazil. The problem situated in the linkage of cultural difference and rights to territory or participation also became evident for me during my field research when I repeatedly came across the discourse I described in chapter 9.1 as a discourse on cultural difference and related rights. As described in chapter 9.1, proponents of this discourse argue that it is the cultural difference and historic situation of indigenous peoples that entitles them to savor the right to prior consultation as a specific human right. This discourse makes strong reference to international law, where this right and the

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matching definition of indigenous and tribal peoples are preponderantly laid down. As I showed in the historic chapter (4), the definition of the category of indigenous peoples within the ILO system was strongly influenced by the American Indigenism movement that consisted mostly of anthropologists and sociologists which portrayed the issue of indigenous peoples as one of cultural change and integration during the 1950s (Rodrígues-Piñero, Luis, 2005, p.54-57). Later, the International Labour Organization (ILO) started to base their Indigenous Labour Programme on scientific debates portraying indigenous peoples first and foremost as poor peoples, and by this transferring the question to the realm of economic development. The actions of the ILO then focused mainly on aid programs that aimed at economic development. The rising debate on the need for a comprehensive legal code that would protect the right of indigenous and tribal peoples (in these times framed as “tribal and semitribal populations”) finally led to the adoption of Convention 107 in 1957. In the processes of setting up Convention 107, human rights activists pointed to the necessity of taking into account the cultural and historic situation of these peoples. ILO Convention 107, then, represented the first international codification of a concept of indigenous peoples as culturally different and having suffered colonization. As presented in Chapter 4, Convention 107 depicts “tribal and semi-tribal populations” as economically underdeveloped and culturally bounded (C107, 1957. Indigenous and Tribal Populations Convention: Art. 1 §a), respectively descendants from original populations which still live a life similar to their “ancestors” (C107, 1957. Indigenous and Tribal Populations Convention: Art. 1 §b). From this definition, a right to territory and (although still very limited) participation in decisions affecting these groups was deduced. In Convention 107, the situation of these populations was still framed as a passing situation that would lead to cultural distinction and economic integration. The Martínez Cobo Study (Martínez Cobo, José) as well as the growing protests of indigenous movements worldwide then led to the revision of the Convention and the adoption of ILO Convention 169, which granted the right to constant self-determination and widened participatory as well as territorial rights. However, the basis of these rights was not profoundly questioned as we can see in the definition of the subjects of rights of the revised ILO Convention 169 of 1989:

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1. This Convention applies to: (a) 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; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. (ILO, 1989. Indigenous and Tribal Peoples Convention 169: Art. 1)

The economic situation of the addressees of the Convention was erased from the text, and their status as peoples was recognized – although not implying any of the related rights defined for “peoples” in international law, as an annex to this first Article of Convention 169 states. Further, the principle of self-determination was introduced as a parallel criterion to the points of definition presented in this first article that basically repeats the definition of ILO Convention 107. As I showed in Chapter 4, the associated rights for the group now called “indigenous and tribal peoples” were fundamentally widened with the new ILO Convention 169, but the points established for defining to whom these rights shall apply continued to be based on cultural difference and historical continuity of lifestyles of inhabitants considered as natives. The definition of ILO Convention 169 is also taken as benchmark for the definition of indigenous peoples in Brazil, together with the Indian Statute (Fundação Nacional do Indio, 2016). This definition of indigenous peoples prevails in international law and has caused heated debates among anthropologists as to its universality and legitimacy, respectively regarding anthropologists’ usage and support of this conceptual construction (Appadurai, 1988; Barnard, 2006; Beteille, 1998; Kuper, 2003). The second group considered subject of rights of ILO Convention 169 throughout the regulation process in Brazil was the group of quilombola communities. Quilombola communities in Brazil are defined in Decree 4887 as remainders of the historic quilombo communities. Quilombola communities are defined in this important legal reference as ethnic-racial groups identified via self-assignment, but they are also depicted as having a distinct history, vital relations with their territories and black ancestry related to historic resistance: For the purpose of this Decree, remnants of quilombola communities are defined as ethno-racial groups, according to the criteria of self-attribution, with an own historical

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trajectory, endowed with specific territorial relations, with presumption of black ancestry related to resistance to historical oppression (November 20. Decreto N◦ 4.887).

Here, too, culturally and historically contingent difference is linked to territorial rights (Leite, 2005). Beyond this, the definition of “tribal peoples” as laid down in Convention 169 was considered as applicable to quilombola communities during the regulation process. These definitions of difference and their implications for implementing the right to prior consultation created several severe challenges during the regulation process. Of these challenges, I want to discuss three main effects of the definition of the legal subjects of the right for prior consultation as set in ILO Convention 169. First, it conditions the access to specific rights on the maintenance of a perceptible difference of the group of right holders as a whole in comparison with the rest of a society’s population. Second it creates the necessity to measure this difference, a task mostly attributed to anthropologists who are endowed with a responsibility and power that is questionable in this context. Third, it puts those who want to develop further notions of ethnicity and identity in the position that their criticism of this linkage and the implied concept of fixed cultures risks leading to – or being misunderstood as – the egalitarian positions of the racial democracy/miscegenation narrative presented in chapter 6.8. This leads to the situation that criticizing this linkage can be used as an attack on the basis of legitimacy of indigenous and tribal peoples’ right of access to vital resources. The container of cultural difference Many of my interview partners among the indigenous and quilombola leaders complained about support groups (mainly NGOs) speaking in their name, taking over the public representation of the communities, and even judging public performances of the leaders as adequate or inadequate performances of representation. This form of disciplining voices is a phenomenon described by different authors with regard to multiculturalist politics as outlined in chapter 2.5. The Brazilian anthropologist Alcida Ramos for example describes the ascent of a figure in Brazil that she called the “Hyperreal Indian”, a “model Indian” created by NGOs in order to comply with the exigencies of the bureaucratized world of international donors who rely on images of “indigenous peoples” as set in the international discourse: In following their Western destiny toward bureaucratization and, at the same time, dealing with Indian rights, the NGOs seem to have found a way out of the dilemma by creating a bureaucratizable Indian. Flesh-and-blood Indians would have to either

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be kept at arm’s length, or have their wild otherness – a potential source of disorder – filtered and tamed, and be transformed into model Indians. (Ramos, 1994, p.160)

This hyperreal model Indian is the one NGOs support and prospect, Ramos describes, via selective processes that favor representations of indigenous peoples that combine with “the Western image of the suffering, helpless and noble savage” (Ramos, 1994, p.164). Since NGOs depend on this image of a “noble subject in need” as their financial raison d’être, powerful discourses and resources facilitate the definition of what Ramos calls “the simulacrum of the Indian”: dependent, miserable, yet innocent and honorable ideal types (Ramos, 1994, p.163). While Ramos describes this situation of imposing ideal types on real peoples in exchange for resources and public visibility to describe the relation between the increasingly bureaucratized Indian support groups and indigenous peoples in Brazil, she does consider this a larger phenomenon within the context of human rights, even a common situation when defending human rights with bureaucratic means (Ramos, 1994, p.166). According to this perspective, it is arguable that rights as defined in ILO Convention 169, as well as in the Federal Constitution of Brazil, have become an instrument for disciplining protest and maintaining outdated notions of alterity6 . Sérgio Costa and Guiherme Leite Gonçalves point in their analysis of rights of Afro-descendants in Latin America and the Caribbean to a further problematic aspect of basing rights on notions of tradition. In an analysis of exemplary rulings of the Inter-American Court of Human Rights, they show how attempts to protect the rights of these groups again and again lead to legal incapacitation of the groups meant to protect (Costa, Sérgio and Leite Gonçalves, Guilherme, 2011). Judges of Difference In chapter 8.3 and 8.4, I presented notions of anthropologists’ role as disinterested mediators and cultural translators that were necessary for the concepts of prior consultation that circulated during the regulation procedure. Moreover, I showed how this role is connected to present tasks being ascribed to and claimed by anthropologists in Brazil. In the following, I argue that by the definitions of ILO Convention 169, and especially by its notion of cultural difference being one of the basic conditions for the right holders to claim the rights laid down in the Convention, “judges of

6 | Sérgio Costa makes a similar point with regard to the construction of diversity in Brazil, claiming that recent international agendas, new political and legal opportunities in Latin America, as well as linkages between social inequality and cultural differences, among others, have led to a process of “freezing differences” (Costa, Sérgio, 2012).

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difference” are necessary elements of correction when the actual subjects of the Convention shall be accessed and capacitated to fully enjoy their rights. This being the case, I showed in chapter 2.5 that the concept of culture inherent in the Convention is based on the assumptions of cultural relativism, an approach that while being en vogue in social sciences in the decades when the discussions about indigenous rights were codified in the ILO in the 1980s, is now considered as not only failing to display the reality of situational and polythetic associations and fissures of groups (Barnard, 2006), but as indeed fostering conflicts, even implying conceptual instruments for racism (Kuper, 2003). This already shows the crucial role anthropological knowledge is granted in taking immanently political decisions in Brazil – one example being the statement of the Federal Public Prosecutor that anthropologists will need to decide on the question whether a project affecting indigenous or tribal peoples demands merely consultation or consent of the affected communities. The task envisioned for anthropologists in this setting is to assess future effects of a project and decide whether the “cultural survival” of the affected peoples is endangered. Considering the conditions of anthropological fieldwork in theory and in the current practice of demarcation processes (see chapter 8.3), this politization of anthropological knowledge is already being critically discussed by Brazilian anthropologists (Oliveira Filho, João Pacheco de, 2002; Oliveira Filho, 1998; Barreto Filho and Lima, 2005; Leite, 2005; Souza Lima, 1987) as well as anthropologists working in Brazil (French, 2009)7 . Anthropological notions of indigenous culture and cultural difference were integrated in international legislation in the field of human rights. Once codified, these notions prevail as legal definitions while the notions of the groups denominated by these categories developed further in anthropological and general social science discussions on culture and cultural boundedness. Anthropologists are at the same time creators and disciplinary experts for these categories of difference while a rather “hyperreal anthropologist” is needed in order to create a situation in which a dialogue with the “Other” is possible. I see the challenges involved in the application of a right derived from this linkage rooted in the interweaving of anthropology and international human rights law, which share some features of addressing and representing reality, but act distinctly in the above-described manners, especially with regard to the time spans necessary for revising definitions of important concepts. This interweaving leads to the situation I described as the third challenge of basing special

7 | While anthropologists appear as powerful judges of difference on the one hand, other voices point to the appropriation of the kernels of the disciplinary toolkit of anthropology and its instrumentalization in law and politics (Riles, 2006).

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rights on notions of cultural difference: Criticism of the boundedness of the notion of culture underlying the link of cultural difference and special rights poses risks of attacking important rights of access to political, social and economic resources that have been built on this connection. Possibilities for critique I described the discourse of citizenship and statehood that was used during the regulation process in Brazil in Chapter 9.1. Particularly actors from the Ministry of the Environment (MMA) and the National Department for Transport Infrastructure (DNIT) doubted the existence of peoples who fit the official definition of indigenous and tribal peoples in Brazil that I presented at the beginning of this sub-chapter: indigenous peoples would be primary Brazilians, respectively citizens, and the issue of the impact of development projects would constitute a question which is dealt with among Brazilians, I was told by representatives of the two Ministries. This argument puts in question the result of several decades of struggle of the indigenous movement in Latin America and worldwide for the recognition of their rights to existence on their territory by pointing to the above described problematic reality of the relativist notions of culture inherent in the category of “indigenous peoples” as set in, for example, ILO Conventions 107 and 169. It also questions the established link between definitions of cultural difference and related specific rights. Among anthropologists, the conclusions on the difficult notion of indigeneity and an adequate way of dealing with it are very heterogeneous. Adam Kuper (Kuper, 2003) calls for anthropological suspicion towards the idea that supposedly original inhabitants of a country should be granted privileged rights to its resources (Kuper points to the parallelism with movements of the extreme right in Europe claiming to be the “real natives” (Kuper, 2003, p.390)). Opponents of this radical critique argue that the conflicts that Kuper sees rising because of this “discrimination” do already exist and are merely framed as ethnic conflicts or as strategic answers to the identity politics of nation states, respectively (Kenrick and Lewis, 2004; Ramos, 2003). When Alan Barnard states – in an attempt to mitigate the controversy – that indigeneity should not be considered an analytical tool but a political, ideological concept (Barnard, 2002), I think this points to the essence of my critique. In the construction of the link between cultural difference and social rights, indigeneity – in other words, being indigenous – is treated on the one hand as a self-description of a political movement to assert their right to self-identification as a crucial feature of their adherence to the legal subjects of ILO Convention 169. Nevertheless, at the same time, objective and apparently analytical criteria for the definition of the subjects of rights of Convention 169 are introduced in the regulation process that provided a basis for the

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implementation of this right in a concrete context. Here, a controversial social category is fixed as to its “essential difference” - culture and heritage -, thereby limiting the agency of the described groups to one option: complying with a kind of “hyperreal” identity under which they are entitled to the rights set down. I want to argue here that the configuration of prior consultation constitutes a political-scientific network in the sense that Bruno Latour established (Latour, 1987). Latour pointed repeatedly to the networks of politics, historic developments and technology needed in order to create what appears as a mere “scientific fact” (Latour and Sheridan, 1993). I argue that the right to prior consultation as defined in ILO Convention 169 is such a network wherein three kind of things were interwoven: anthropological notions of “cultural difference”, the growing number of social movements claiming participation in the politics of development affecting their livelihoods, and the dynamic of growing codification of international rights addressing issues that in former times were strictly national ones such as territory and social rights8 . In the right to consultation, this network formed what I argue can be considered a “black box” (Latour, 1987). A “black box” is conglomerate of actors that works invisibly (integrating human and non-human actors, as Latour argues, but this fact does not play a big role in this case), whose collaboration appears only when its functioning is disrupted (Latour, 1987). During the regulation process, concrete issues brought up by the upcoming implementation of this right challenged the smooth co-operation of this conglomerate, and discourses questioning the different underlying processes of generation of knowledge and power gained strength. Since the functioning of this network depends on the public acceptance of all its parts, scholars as well as activists seem to have the option of either to continue in the beaten track of “cultural difference and related rights” with all its paradoxical situations or to throw the baby out with the bath water and argue for the re-negotiation of the whole construction of anthropological notions of difference, law, and multiculturalist policies – including the right to prior consultation.

8 | Benoît L’Estoile and Federico Neiburg confirm this perspective in their anthology “Antropología, impérios e Estados nacionais” (L’Estoile and Neiburg, 2002), a collection of case studies on the complex relations between the production of anthropological knowledge and the implementation of state politics. In referring to studies on South Africa, Mexico, Brazil, Portugal and other places, they assert that the structural and structuring interdependency of anthropologists and state institutions cannot be dismissed as pathological, and they deny both the ideal types of a “pure science” as well as of an “applied science” (L’Estoile and Neiburg, 2002, p.13-15).

11. Conclusion

This study explored the process of regulating ILO Convention 169 in Brazil. In accompanying the negotiations on a draft law for prior consultation in Brasília and other locales from 2012 to 2014, the prominent issue of the meaning of prior consultations in conflicts between social movements and their respective nation states in Latin America was studied. I approached the issue via fieldwork that resulted in a mixed methodological approach using in-depth interviews as well as participant observation and the analysis of secondary material produced by the actors of the regulation process as well as ILO archival material. I present a detailed account of the challenges and possibilities that the field of “indigenous politics in Brazil” offers for fieldwork and actor-centered hypothesizing. I present a detailed account of my access to the field and subsequent field stays. Trying to understand the meaning of the issue for my research partners as well as their strategies in negotiating a legitimate public interpretation of prior consultation brought me to the theoretical questions presented here. My research question addressed the meaning of prior consultation for the actors of the regulation process and the question how their institutional and discursive repertoire influenced the construction of a legal framework for prior consultation in Brazil. Thus, the initial focus of this research was to analyze the case of regulating prior consultation in Brazil as a case of law implementation. I found that a vital aspect of the implementation of law is the translation of an abstract rule to instructions for behavior in real situations. This translation implies interpretive processes. In order to realize this interpretation, a context has to be set within which interpretation can take place. Processes of debating the implementation of law then evolve first and foremost around the framework for its interpretation. I draw on the work of Sally Engle Merry in order to account for this negotiation of “frames of meaning” (Merry, 1990). In accordance with Merry’s findings, I identify three frames of meaning that implied different notions of the roles of the involved actors, distinct formats for consulta-

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tion, notions of the general context of the regulation procedure and, most importantly, of legitimate conflict resolution procedures. The first frame used the discourse of cultural difference and rights to depict prior consultation as an enactment of the right of indigenous peoples to self-determination vis-à-vis their nation states, a right they are considered entitled to by proponents of this discourse because of their historic settlement priority, oppression, and continuing cultural difference. The second frame for prior consultation referred to a discourse of statehood and citizenship in considering prior consultation as an issue of citizen participation in the multiethnic state of Brazil that involves negotiation between political minorities and majorities. Third, a development discourse is used to depict prior consultation as an issue hampering (for good or for bad) economic growth. This frame considers the implementation of prior consultation as necessarily limited by the small economic contribution of its right holders to the public wealth. Participating actors as well as observers of the regulation process used these three discourses in order to frame the process of interpreting ILO Convention 169 and vital questions such as the question of a right to veto or to consent. With the help of this analytical approach, I show that the definition of clear guidelines for prior consultation in Brazil involved the re-negotiation of issues such as state sovereignty, citizenship and management of land and resources that accompany the discussion on indigenous rights since the beginning of its establishment in international law. In contrast to Merry, I argue that law can be more than one discourse among others since it implies many different legal arenas and possibilities for the interpretation of the conflicts at issue. I contribute to the literature on the dynamics of the application of law within legal anthropology by widening this perspective to include larger societal processes of negotiating the interpretation of social conflicts. Finally, I suggest that the dynamics of constructing an issue by defining its rules as described and analyzed by Sally Engle Merry apply not only to processes of judicialization, but also for juridification. The national regulation of prior consultation, I argue, is a case of parallel enactment of both processes: in the same time that international law is applied, a national law is created. The international legal system of course interacted with national law in the regulation process, and it thus was creating new possibilities for references and introducing new actors and norm hierarchies. I have analyzed different aspects emerging from the situation of legal pluralism to describe the challenges of implementing international law in Brazil. For example, I draw again on several works by Sally Engle Merry (Merry, 1988, 2000, 2006b) in order to account for the role of the “vernacularizer” that plural systems demand. What I found was that the notion of intermediary actors accounts for the difficult situation of social movement leaders and NGOs when link-

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ing discussions in international forums and national discussion boards with the reality and contested issues in their communities. The “translator” figure also accounts for the ambiguous position that such actors have in transporting information and representing a big number of peoples with their voice, while on the other side powerful donor structures limit political leaders strategies. My work contributes to the literature on legal pluralism by offering a description of the many arenas of interaction of international and national law, widening the traditional focus of these approaches to include subnational legal conflicts by applying its concepts and questions to the national regulation of prior consultation in Brazil. This description clearly hints at the different nature of norms that are being created in the two spheres of national and international legality. My account also shows that their interaction puts national and international law in competition as reference for legal and social conflicts. I conclude that the relationship between both cannot be conceived of as a harmonious, clearly regulated hierarchy. The situation of legal regulation represents an example of what Sousa Santos (Santos, 2002) called interlegality. Also emanating from the analysis of my material was the question of how the different spheres of democracy interacted in the attempt to create a new law. This third research problem was also strongly driven by actors’ accounts of the course of the regulation process and the debate of indigenous peoples and their rights in Brazil being a case of the judicialization of politics. I address this question by referring to the different conflict resolution strategies applied in the regulation of prior consultation in Brazil. Indeed, I conclude that many of the important contested issues in the negotiations such as the question of a right to veto for the consulted groups and the scope and deliberative power that consultations should have in Brazil were being defined in the judiciary and by independent legal actors parallel to the political regulation process realized by the Brazilian government. While judicialization can be considered as a menace to the democratic process of legitimization, it is of course a double-edged sword: in times considered to be politically regressive, the judiciary can be considered an institution that is protecting the basic rights of minorities. This can be identified as the scheme of justification for the course of action of the Office of the Federal Public Prosecutor (MPF), the General Attorney (AGU) and the Supreme Court with regard to concrete cases of prior consultation as well as in reference to the regulation procedures. My case study supports what (Sieder et al., 2005) state on the definition, triggering factors and effects of the judicialization of politics in Latin America. I suggest along with Stuart Kirsch (Kirsch, 2012) that apart from the causes stated by Sieder et al., the growing body of international and national legislation of the issue fosters judicialization especially in the area of indigenous politics.

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Apart from these discussions on the interpretation and implementation of both national and international law, my material points to two specific features of the right to prior consultation as defined in ILO Convention 169 that I consider crucial for the regulation attempt in Brazil. First, the implementation of the right to consultation implied several practical challenges when being conceptualized and exemplarily put into practice during the regulation process; these were challenges that addressed the “practicalities of participation”. The first challenge I deal with is the problem of defining the form of dialogue to be implemented. I argue with (Szablowski, 2011) that the idea of informed consent as being a crucial feature of prior consultation implies a fiduciary relation between the actors of the consultation, as the concept’s root in medical consultations suggests. Nevertheless, prior consultations interfere with the contested field of resource and land-use politics and thus have to be considered rather as situations of oppositional bargaining. In these bargaining processes, the circulation of knowledge and the gatekeeper position of translators gain a high significance. I show that the problem of conceptualizing this dialogue in prior consultations is in essence a matter of recognizing cultural differences without falling in the trap of discriminating the groups addressed. In referring to anthropological studies on the process of knowledge integration in land and resource politics (Nadasdy, 1999; Sillitoe, 1998; Sillitoe et al., 2002), I argue that this issue is a problem of hidden agendas of power and of confining knowledge formats and its carriers to “authenticity” which is characteristic of many processes of participatory development or integrated resource management. Beyond these conceptual problems, I address in a second step the different spaces for participation created or linked with the regulation of prior consultation in Brazil. With the help of works by (Cornwall, 2002, 2008), I establish a categorization of time-space formats that accounts for the different opportunities for action and participation strategies adopted by the representatives of the subjects of rights of ILO Convention 169. To Cornwall’s differentiation of participatory spaces and their opportunities, I add my finding that non-participation can actually present a powerful political strategy. Further, I suggest that the creation of participatory arenas as well as their interconnection can actually be considered one of the main goals for actors engaging in participatory spaces. I present the interweaving of law, anthropology and multiculturalist politics in the right to prior consultation as the last of the specific features regulating prior consultation in Brazil. I argue that the connection between these three factors has grown in the establishment of this right in international law and was directly addressed during the process of creating ILO Convention 169. In its implementation in Brazil, the linkage of anthropology, law, and multiculturalist politics was challenged openly by opponents of a too far-reaching interpretation of the group of right holders. In order

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to grasp this linkage, I inquire into the notions of culture that underlie the idea that special rights to territory and participation are connected to concepts of “cultural difference” as well as to the spreading of this link via multiculturalist politics in Latin America. I refer to works by Alcida Ramos (Ramos, 1994) and Charles Hale (Hale, 2004) in asserting that this link creates a powerful mechanism of domination of the addressed groups in conditioning the maintenance of a perceivable alterity to the access to rights. I further show that this problem is picked up by a larger discussion on the notion and use of the concept “indigenous peoples” among anthropologists, referring also to the questionable role of “judges of difference” that is ascribed to anthropologists in this context (Kuper, 2003; Barnard, 2006; Beteille, 1998). I argue that the right to prior consultation should be conceived as a historic net linking anthropological discussions on cultural difference, the rising tendency of codify international law that interferes in matters formerly considered to be issues of national sovereignty and the strengthening social of movements worldwide, but especially in Latin America, that protest against development policies and projects affecting their livelihood. I argue with (Latour, 1987) that this linkage presents an actor-network, forming a “black box” of invisible co-operation until its working is interrupted. During the regulation process, this intertwining was questioned and discourses criticizing this conglomerate gained strength. I conclude by pointing to the fact that questioning the foundation of legitimacy of the link between cultural difference and rights puts the whole construct in question - including the social rights that indigenous peoples have long fought for - until a new legitimate conceptual basis can be established. This presents a difficulty for critically addressing the scientific constructs of difference implicit in the “prior consultation network”. My contribution here lies in the linking of formerly disconnected fields of discussion about conceptualizing difference and about the scope of national and international law with a historical perspective on the achievements of different indigenous movements worldwide. I introduce a networkperspective to this case and thus provide a case for the debate on actor-networks in science and technology studies (STS). My study stands out by its unique approach that integrates the voices of a very broad range of actors debating prior consultation on a national level. It gives a comprehensive account of the different strategies and concepts involved in the interpretation of prior consultation in Brazil. The focus of this study is clearly pointed towards the administrative process of legal regulation, and its central location was Brazil’s capital Brasília. Despite these specificities, the presented results are by no means singular within the field of studies on prior consultation. Relating my results to Almut Schilling-Vacaflor’s recent comparative study on different consultations in Bolivia (Schilling-Vacaflor, 2013), both studies indicate similar topics being contested:

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Schilling-Vacaflor also highlights in the case of Bolivia the representation and definition of right holders, the deliberative power of the consultations, the danger of legitimizing decisions already taken via participation and the problem of powerful fields of social struggles such as the question of territories “traversing” the issue of consultation. This study also confirms findings of César Rodríguez Garavito’s analysis of FPIC as a form of governance (Rodríguez-Garavito, César, 2010). Rodríguez Garavito identifies different approaches towards framing indigenous rights on the international level and shows how legal paradigms and roles of actors are defined by the three approaches of “integrationism”, “neoliberal multiculturalism” and “counterhegemonic multiculturalism” (Rodríguez-Garavito, César, 2010, p.290). These approaches are reflected in my findings on the discourses of development, citizenship and statehood, and human rights that I identified in the debates on regulating prior consultation in Brazil. Rodriguez Garavito also describes the process of politics merging into law in his analysis of the functioning of consultations in Colombia (Rodríguez-Garavito, César, 2010, p.301), comparable to the dynamics of what I describe as the judicialization of politics. My work discusses the basic conditions that affect the implementation of prior consultation in many Latin American countries; such as multiculturalist policies, contested paths for development, and a changing image of indigenous and tribal peoples in the public. Nevertheless, results on discourses on alterity and institutionalized relationships as well as the organization of state and civil society entities on the different national levels should not be universalized. I argue in this work for a transparent presentation of the circumstances and methods of anthropological studies in order to facilitate the comparison and translation of its findings to new contexts instead of a generalized abstraction of results. My findings could be of interest to institutions and policy makers involved in processes of implementation of international law as well as participatory projects. Apart from the fields of struggles for land-use and resources that were relevant for this study, FPIC and consultation will increasingly become important with regard to the protection and management of traditional knowledge. Against the background of a rising number of attempts to register patents on for example medicinal plants used in traditional methods of healing, the protection of the rights to use and communicate traditional practices will be a significant field for consultations. The results of my study can further serve as a source for reflection on strategies and alliances for social movements. Here, I think it could be especially rewarding to reflect on the problem of essentialized notions of alterity being used in order to claim access to rights which are actually built on this containment of identities. Instead of relying on these again and again in the same way, the establishment of new

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linkages between social categories of identity and legally codified rights could be a more rewarding goal. This research project inquired into the perspectives and strategies of the actors and observers of the regulation of prior consultation in Brazil and showed the challenges and underlying social, institutional and discursive structures that shaped this endeavor. As for the struggles between indigenous peoples and their nation states this study’s point of departure - no easy policy recommendations can be derived in my point of view. This study showed the complex actor-networks that are activated as well as contested in these situations. For many remote places like the BR 163 highway in Brazil where land use conflicts and clashes between indigenous or quilombola communities and other parties determine everyday life, the regulation of ILO Convention 169 could have widened the access of indigenous and tribal peoples living at the highway to their rights as well as accelerated the process of finding solutions for the many smoldering conflicts. On the other hand, a limitation of rights of indigenous and tribal peoples might have been prevented by the fact that no (proposed) legislation further codified collective categories and their rights. In this scenario, an increased implementation of the right to prior consultation via the judiciary – the Supreme Court and regional courts obliging or exempting the executive branch from obligations with regard to consultations – is probable in the future. As a result of my study, further research might well be conducted on the processes of legal regulation of prior consultation in Latin America and in comparable locations. The legal regulation in Brazil is a very current topic that might be further explored in many respects, for example the effects that the silent death of the regulation initiative will have on future attempts of implementing consultations (for example in the two conflict cases of the Belo Monte and the Tapajós dam presented in this work) as well as for the relation of the Brazilian government with the International Labour Organization. The future role of the independent elaboration of guidelines for prior consultations by indigenous (or quilombola) communities, for example via the protocols described in this study, remains to be explored further. With regard to the sociological and anthropological approaches to the interpretation and implementation of law, I think that the issue of institutionalized power relations and their implication for interpretive approaches to the implementation of law deserve further studies. The approaches used in this work, especially the approach of Sally Engle Merry, manage to account for the “power of naming” in itself, but it remains rather blurry as to the relation of this power with the material power of institutionalized authorities. The relation between the “power of ideas” and the “power of resources” continues a field for further research. Moreover, my results raise wide-ranging questions for the interaction of anthropologists and anthropolog-

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ical knowledge with the areas of law and politics. They present one more case of the intricate coupling of researchers with their field, showing how anthropologists co-create the problems they study as well as how anthropological knowledge is appropriated in law that “has a propensity to essentialize social practices” (Wilson and Mitchell, 2003, p.4). While "culture" was a shorthand for anthropologists’ potential contribution to human rights law for quite some time (Riles, 2006, p.62), it is maybe time for a re-definition.

Acknowledgements

Completing a thesis is in the end a collective work, nobody gets through this on his own. In the years of research and writing, many people were important companions for me and my work. During my PhD, my work was financed via the FONA program by the BMBF (Bundesministerium für Bildung und Forschung), which I am very thankful for. Within FONA, my work was embedded in the multi-disciplinary research project CarBioCial (Carbon-optimized land management strategies for southern Amazonia), which provided a a vivid network for a multi-perspective discussion on the Brazilian Amazon and the policies and impacts of land use. I am particularly indebted to my project leader Dr. Regine Schöneneberg, whose trust and spirit have carried my work through many difficult phases. Her professional and personal guidance continue a great support in my scientific endeavors. Also a great partner in all the time was my colleague in CarBioCial, Korbinian Hartberger, partner in the endeavour of graduating and invaluable partner for fieldwork in Brazil. He read and commented on chapters and drafts at various stages of this work and always was an amazing partner for discussion and mutual learning. In addition to my research project, I was linked to the Institute of Latin American Studies of Freie Universität Berlin during my PhD, a fruitful surrounding for exchanges and presentations. I thank my advisor Prof. Dr. Sergio Costa for our discussions and his honest criticism and input to various stages of this dissertation. Prof. Dr. Stephanie Schütze has been a terrific second supervisor, really supporting and showing me the “way to writing” when I was lost in my material and did not see how to bring all the complexity of fieldwork to a piece of paper. She has been a very valuable partner for discussing Legal Anthropology as well as writing techniques ever since. Beyond the support received in Germany, I could enjoy personal and scientific support during my stay as associate research fellow at the Department of Anthropology (DAN) at the Universidade de Brasília (UnB). This was an important space for

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vivid exchange with the academic staff as well as with the participants of the Programa de Pós-Graduação. I would like to thank especially for the support of Prof. José Vieira Pimenta, who read and commented on various drafts and helped me a lot to sharpen my perspective on the political background and overall setting of the processes around the regulation of prior consultation in Brazil. In Brasília, I had the fortune to find an engaged and interested environment to discuss my questions with a wide community of scientists and activists. I would like to especially thank Márcia Gramkow and Angela Sacchi for our conversations and discussions, both on indigenous politics as well as Anthropology in general. These helped me a lot to shape my perspectives on expertise and politics. I also would like to thank the staff of the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) at Brasília, who hosted me in the first weeks and opened many doors in Brazilian government institutions for discussions and further research. I am indebted beyond words to the friends I found in Brasília, who transformed the at first hostile city into a vivid space full of friends, happy nights and days and provided a home for me in the Cerrado. Without this, the many doubts and dead ends of the research endeavor would have been so much harder and definitely my field stays much less joyful. I learned a lot from this time, on a personal and scientific level. In Germany, my friends and family also provided invaluable support for the many ups and down a PhD thesis implies. My brother and mother as well as friends in Berlin have always been there to listen and distract me when needed to breathe and go back to writing. I would like to thank especially Riccarda Flemmer for her support and comments on the last versions of this thesis. Our exchange on consultation and indigenous rights in general continue a great source of inspiration to me. This text also owes a lot to the thorough and witty editing of Jeff Purchla, who was an immense help not only in polishing expressions and writing, but also clarifying thoughts and lines of argument. Last but not least, this work would not have been possible without the openness, warm reception and support of my research partners. Their experiences and views are the inestimable basis for all my reflections and analyses.

A. List of Abbreviations

This is the list of abbreviations as I use them in the text. Because most of the names are in Portuguese, I provide the full name in Portuguese and my English translation in brackets. In the case of institutions of international politics and/or international law, I use the English abbreviation in the text and provide here the full English name and the Portuguese translation in brackets, together with the often different Portuguese abbreviation. In one case I use the abbreviation of a German institution, giving the German name together with the English translation. ABA

Associação Brasileira de Antropologia (Brazilian Society of Anthropology)

Abong

Associação Brasileira de Organizações Não Governamentais (Brazilian Society of Non-Governmental Organizations)

ADCT

Ato das disposições constitucionais transitórias (Transitory Constitutional Disposition Act)

AGU

Advocacia Geral da União (Office of the Federal Attorney General)

AIP

Andean Indian Programme (Programa Andino Indígena)

ANEEL

Agência Nacional de Energia Elétrica (National Agency for Electrical Energy)

ANP

Agência Nacional do Petróleo, Gás Natural e Biocombustíveis (National Agency for Petroleum, Natural Gas and Biofuels)

APIB

Articulação dos Povos Indígenas do Brasil (National Organization of the Indigenous Peoples of Brazil)

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ATIX

Associação Terra Indígena Xingu (Organization of the Indigenous Reserve of the Xingu park)

BR

Rodovia federal (Federal Highway)

CBD

UN Convention on Biological Diversity

CEACR

Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organization (ILO)

CEDI

Centro Ecumênico de Documentação e Informação (Ecumenical Documentation and Information Center)

CEPPAC

Centro de Pesquisa e Pós-Graduação sobre as Américas da Universidade de Brasília (Center of Research on the Americas of the University of Brasília)

CIMI

Conselho Indígenista Missionário (Catholic Indigenist Missionary Council)

CIR

Conselho Indígena de Roraima (Indigenous Council of Roraima)

CNBB

Conferência Nacional dos Bispos do Brasil (National Conference of Bishops of Brazil)

CNI

Confederação Nacional da Indústria (Brazilian National Confederation of Industry)

CNIRC/FCP

Centro Nacional de Informação e Referência da Cultura Negra da Fundação Cultural Palmares (National Center for References and Information on Black Culture of the Palmares Cultural Foundation)

CNPCT

Comissão Nacional de Desenvolvimento Sustentável dos Povos e Comunidades Tradicionais (National Commission for the Promotion of Sustainable Development of Traditional Peoples and Communities)

CNPE

Conselho Nacional da Política Energética (National Council of Energy Policy )

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CNPI

Comissão Nacional de Política Indigenista (National Commission for Indigenist Politics)

CNPT

Centro Nacional para o Desenvolvimento Sustentado das Populações Tradicionais (National Centre for the Sustainable Development of Traditional Populations)

COIAB

Coordenação das Organizações Indígenas da Amazônia Brasileira (Coordination of the Indigenous Organizations of the Brazilian Amazon)

COICA

Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica (Network of Indigenous Organizations of the Amazon Basin)

CONAMA

Conselho Nacional de Meio Ambiente (National Environmental Council)

CONAQ

Coordenação Nacional de Articulação das Comunidades Negras Rurais Quilombolas (National Coordination of Quilombola Communities)

CPI SP

Commissão Pró-Índio de São Paulo (Pro-Indian Commission of São Paulo)

CPI AC

Commissão Pró-Índio do Acre

CPRM

Companhia de Pesquisa de Recursos Minerais (Mineral Resources Research Company)

CPT

Comissão Pastoral da Terra (Pastoral Land Commission)

CTI

Centro de Trabalho Indigenista (Indigenous Advocacy Center)

CUT

Central Única dos Trabalhadores (Central Workers’ Union)

DEP/FCP

Departamento de Fomento e Promoção da Cultura Afro Brasileira da Fundação Cultural Palmares (Department for Promotion and Support of the Afro-Brazilian Culture of the Palmares Cultural Foundation)

DNIT

Departamento Nacional de Infraestrutura de Transportes (National Department of Infrastructure of Transport)

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DNPM

Departamento Nacional de Produção Mineral (National Department of Mineral Production)

DPA/FCP

Departamento de Proteção ao Patrimônio Afro-Brasileiro da Fundação Cultural Palmares (Department for the Protection of the Afro-Brazilian heritage of the Palmares Cultural Foundation)

ECM

Extended Case Method

EIA/RIMA

Estudo de Impacto Ambiental/Relatório de Impacto Ambiental (Environmental Impact Study)

EPE

Empresa de Pesquisa Energética (Energy Research Company)

FAO

Food and Agriculture Organization of the United Nations (Organização das Nações Unidas para a Alimentação e a Agricultura)

FCP

Fundação Cultural Palmares (Palmares Cultural Foundation)

FNP

Frente Negra Brasileira (Brazilian Black Front)

FOIRN

Federação das Organizações Indígenas do Rio Negro (Federation of the Indigenous Organizations of the Rio Negro River)

FPIC

Free, prior and informed consent (consentimento livre, prévio e informado)

FUNAI

Fundação Nacional do Indio (National Indian Foundation)

GIZ

Gesellschaft für Internationale Zusammenarbeit (German Society for Development Cooperation)

GSI/PR

Gabinete de Segurança Institucional (Cabinet of Institutional Security)

GTI

Grupo de Trabalho Interministerial (Interministerial Working Group)

IACHR

Inter-American Commission on Human Rights (Comissão Interamericana de Direitos Humanos – CIDH)

LIST OF ABBREVIATIONS | 309

Ibama

Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (Brazilian Institute of Environment and Renewable Natural Resources)

IBGE

Instituto Brasileiro de Geografia e Estatística (Brazilian Institute of Geography and Statistics)

IcmBio

Instituto Chico Mendes de Conservação da Biodiversidade (Chico Mendes Institute for Biodiversity Conservation)

Iepê

Instituto de Pesquisa e Formação Indígena (Institute for Indigenous Research and Training)

INCRA

Instituto Nacional de Colonização e Reforma Agrária (National Institute of Colonization and Agrarian Reform)

ILC

International Labour Conference (Conferência Internacional do Trabalho)

ILO

International Labour Organization (Organização Internacional de Trabalho – OIT)

ISA

Instituto Socioambiental (Socio-Environmental Institute – NGO)

LP

Licença Prévia (Preliminary License)

MAB

Movimento dos Atingidos por Barragens – (Movement of People Affected by Dams)

MD

Ministério da Defesa (Ministry of Defense)

MDA

Ministério de Desenvolvimento Agrário (Ministry of Agrarian Development)

MDS

Ministério do Desenvolvimento Social e Combate à Fome (Ministry of Social Development and Fight Against Hunger)

MEC

Ministério de Educação (Ministry of Education)

MINC

Ministério da Cultura (Ministry of Culture)

MJ

Ministério da Justiça (Ministry of Justice)

MMA

Ministério do Meio Ambiente (Ministry of the Environment)

310 | FRAMING PRIOR CONSULTATION IN BRAZIL

MME

Ministério de Minas e Energia (Ministry of Mines and Energy)

MNU

Movimento Negro Unificado Contra a Discriminação Racial (Unified Black Movement)

MP

Ministério do Planejamento, Orçamento e Gestão (Ministry of Planning, Budget and Management)

MPE

Ministério Público Estadual (Office of the State Prosecutor)

MPF

Ministério Público Federal (Office of the Federal Public Prosecutor)

MRE

Ministério de Relações Exteriores (Ministry of Foreign Affairs)

MS

Ministério da Saúde (Ministry of Health)

MST

Movimento sem Terra (Brazilian Landless Movement)

MT

Ministério do Transporte (Ministry of Transport)

MTE

Ministério de Trabalho e Emprego (Ministry of Labour and Employment)

NDI

Núcleo de Direitos Indígenas (Indigenous Rights’ Nucleus)

NGO

Non-Governmental Organization (Organização Não-Governamental – ONG)

OAS

Organization of American States (Organização dos Estados Americanos – OEA)

OPAN

Operação Amazônia Nativa (Operation Native Amazon)

PBQ

Programa Brasil Quilombola (Policy Package directed at quilombola communities)

PAC

Programa de Aceleração do Crescimento (Growth Acceleration Program)

PBA

Plano Básico Ambiental – (Basic Environmental Plan)

PDE

Plano Decenal de Expansão de Energia (Ten Year Energy Plan)

PEC

Proposta de Emenda á Constituição (Proposal for Constitutional Amendment)

LIST OF ABBREVIATIONS | 311

PIB

Produto Interno Bruto (Gross Domestic Product)

PNPCT

Política Nacional de Desenvolvimento Sustentável dos Povos e Comunidades Tradicionais (National Policy for Sustainable Development of Traditional Peoples and Communities)

PPA

Plano Pluriannual

PPSA

Empresa Brasileira de Administração de Petróleo e Gás Natural S.A.(Brazilian Company for Oil and Natural Gas Administration AS)

RCA

Rede de Cooperação Alternativa (Alternative Cooperation Network)

RCO

Council of Netherlands Employers’ Federations (Confederação Neerlandesa dos Empregadores)

SDH/SGPR

Secretaria de Direitos Humanos da Presidência da República (Secretariat for Human Rights of the Presidency of the Republic)

SECOMT/SEPPIR Secretaria de Políticas para Comunidades Tradicionais (SubSecretariat for Policies for Traditional Communities) SENGE DF

Sindicato dos Engenheiros no Distrito Federal (Union of Engineers of the Federal District)

SEPPIR

Secretaria de Políticas de Promoção da Igualdade Racial (Special Secretariat for the Promotion of Racial Equality)

SGPR

Secretaria Geral da Presidência da República (General Secretariat of the Presidency of the Republic)

SMPE

Secretaria da Micro e Pequena Empresa – (Secretariat of Micro and Small Companies )

SNAS/SGPR

Secretaria de Articulação Social da Secretaria Geral da Presidência (Secretary for Social Interaction of the General Secretariat of the Presidency)

SNUC

Sistema Nacional de Unidades de Conservação (National System of Conservation Units)

312 | FRAMING PRIOR CONSULTATION IN BRAZIL

SPI

Serviço de Proteção ao Indio (Indian Protection Service)

SRI

Secretaria de Relações Institucionais – Secretariat of Institutional Relations

STF

Supremo Tribunal Federal (Brazilian Supreme Court)

STS

Science and Technology Studies (Estudos em ciências e tecnologia)

TST

Tribunal Superior de Trabalho (Superior Labour Court)

UN

United Nations (Organizações das Nações Unidas – ONU)

UnB

Universidade de Brasç˜ilia (Federal University of Brasília)

UNI/UNIND

União das Nações Indígenas (Union of Indigenous Nations)

WGIP

UN Working Group on Indigenous Populations (Grupo de Trabalho sobre Populações Indígenas da ONU)

WHO

World Health Organization (Organização Mundial da Saúde – OMS)

ZEE

Zoneamento Económico Ecológico (Economic-Ecological Zoning)

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