Brasilia, 16 December 2015
In our capacity as members of the United Nations Working Group on Business and Human Rights, we have today ended our ten-day visit to Brazil. This was our first visit to a State in the Latin American and Caribbean region. The objective of our visit was to support efforts of the Government, business enterprises and other stakeholders to prevent and strengthen protection against business-related human rights abuses, in line with the UN Guiding Principles on Business and Human Rights (“Guiding Principles”).
Brazil is party to the core international human rights treaties and has issued a standing invitation to UN Special Procedures of the Human Rights Council. We are grateful to the Government of Brazil for the support and facilitation of this mission, indicating its willingness to address business and human rights issues.
During our visit, we met with Government officials from the Office of the Presidency of the Republic, the Ministries of Women, Racial Equality and Human Rights (Special Secretariat for Human Rights), External Relations, Finance, Justice, Mines, Environment, Consumer Protection, IBAMA, FUNAI, Attorney General’s Office, Ombudsman Service, Federal Comptroller’s Office. In addition, we held meetings with representatives of the Federal Public Prosecutor’s Office, the National Bank for Economic and Social Development, the Sao Paulo Stock Exchange, various officials and public prosecutors in the States of Sao Paulo, Rio de Janeiro, Minas Gerais, and Pará. We also met with members of Congress (Chamber of Deputies); representatives from CUT (Central Única dos Trabalhadores), FIRJAN (Federação das Indústrias do Estado do Rio de Janeiro), the Global Compact Brazilian Network, UN agencies in Brazil, as well as representatives from a range of business enterprises (including Norte Energia, Petrobras, Samarco, and Vale); civil society organizations; and affected communities. We started our visit in Brasilia and then went on to Sao Paulo, Rio de Janeiro, Belo Horizonte, Mariana, Altamira and Belém.
In our statement, we would like to outline some initial observations from our visit. Our official mission report to the 32nd session of the Human Rights Council in June 2016 will include further observations and recommendations.
The Working Group’s visit took place during a time of political and economic turmoil caused by economic recession, impeachment proceedings against the President, corruption scandals involving some of the country’s major companies and members of the political establishment, and what is being referred to as the worst environmental disaster in the history of the country following the breaking of a tailing dam impacting the States of Minas Gerais and Espiritu Santo.
With regard to awareness about business and human rights issues, our general impression is that mainstream business enterprises, both private and State-owned, and business associations remain largely unaware of the United Nations Guiding Principles. Companies report that they have received little guidance from the Government about the actions they are expected to take in line with the Guiding Principles.
Certain CEOs may know about the requirements placed on business by the Guiding Principles but this is often not translated into middle management activities. Our expectation is that the human rights dimension should be integrated not only at the policy level but also at the sites/operations level, including in a company’s value chains.
In relation to the companies that are aware of the Guiding Principles, the Working Group observed that they primarily understand human rights risks as being about risks to the company, rather than the risks faced by vulnerable rights holders. If companies focus on the question of human rights risks to a specific project, rather than using a holistic approach, then there is a risk that human rights concerns will be traded off and side-lined, to the detriment of affected communities.
Brazil has a number of State Owned Enterprises (SOEs) that have a particular responsibility to protect against adverse human rights impacts. Also, the State’s own human rights obligations come into play when SOEs take decisions that impact human rights. Earlier this year, the Government organised an event in which Brazilian SOEs committed to uphold the OECD Guidelines for Multinational Enterprises which explicitly promote the Guiding Principles. Furthermore, CNI (the National Confederation of Industry in Brazil) is a signatory to the Bahrain Declaration made during the 2015 first Annual Global Employers’ Summit in Bahrain which calls for the implementation of the Guiding Principles. We are not yet seeing the above commitments being reflected sufficiently in the day to day practice of SOEs, or companies in which the State holds a significant share-holding, or other economic entities under the control of the State, such as development banks, and in the business relationships that flow from these entities.
There appears to be little instruction coming from the Government, both at the Federal and State level, in relation to the human rights impact of companies and SOEs in particular. It seems that the Government grants a licence for a large infrastructure project and then provides little oversight or regulation of the project. The lack of State presence is problematic. While companies can be privatised, States cannot outsource their duty to protect human rights. States never lose the obligations they hold and human rights impacts must be properly overseen by the State on an on-going basis. The State can have a small presence in the operation of economic activities but it has to have a strong presence in overseeing and enforcing human rights.
The Brazilian Development Bank (BNDES) is a SOE which plays a hugely important role, as a main source of funding for large-scale development in Brazil and increasingly also abroad. While the Bank does require certain environmental and social standards for projects funded, the Working Group encourages a more explicit reference to the requirement that projects include safeguards against adverse human rights impacts, in line with the Guiding Principles on Business and Human Rights.
Brazil has actively promoted large public and private investments in a range of large-scale infrastructure projects as part of the Program of Acceleration of Growth (PAC), launched in 2007. Many of these projects have had significant adverse impacts on local communities and their human rights. Such adverse impacts were documented by a special commission of the National Council for Human Rights, which studied, over four years, seven large scale development projects, including hydropower plants and mines.
The Working Group received information and heard testimonies from affected communities and public prosecutors concerning a range of cases (including the Belo Sun and Tapajós projects) mainly related to extractive industries, agro-business and construction. The Working Group looked closely at a few cases which illustrated the recurrent concerns raised.
The Working Group visited Altamira to look into the construction of the Belo Monte hydropower plant, along the Xingu River in the Amazonas. The dam is located in an area with 11 indigenous lands and 2 indigenous areas. The auction to build, operate and maintain the plant was won by the Norte Energia consortium in 2010. While the construction of the plant is almost complete, this year both the Federal Public Ministry and FUNAI (the official Government agency for indigenous affairs) advised against granting the operational licence, as Norte Energia had not yet met many licence conditions to mitigate adverse social and environmental impacts. In response to human rights concerns raised, and at the request of the Federal Public Ministry, an inter-ministerial fact finding mission was carried out in June 2015 and made 55 specific observations concerning the lack of implementation of mitigation measures to protect against adverse human rights impacts.
Despitethe concerns expressed, the Institute of Environment and Renewable Natural Resources (IBAMA) granted the operational licence on 24 November.
In Altamira, the Working Group met with representatives of Norte Energia; affected communities, including indigenous peoples; and public prosecutors. The Working Group discussed the case with Federal State authorities in Belém in order to assess what measures had been taken to identify and prevent human rights risks and to mitigate adverse human rights impacts of the project.
Norte Energia showed the Working Group some of the projects it had carried out in accordance with the licence conditions. Norte Energia must implement conditions requiring the company to undertake a range of socio-environmental actions, including building water, sewage and landfill facilities, health clinics, andschools. Many of these investments are ongoing or have been implemented and will improve living conditions of people in Altamira. However, the Working Group noted significant shortcomings in the way projects to mitigate adverse social impacts were being implemented, resulting in tensions and protests.
The Working Group was informed by State authorities that the school built by Norte Energia was a temporary container inadequate for the Altamira climate. Likewise, riverine people had been resettled to new housing located far from the river (their main source of livelihood) with no infrastructure. In both cases, there appeared to have been no consultation with the people prior to the conception of the mitigation projects.
Norte Energia appeared not to have specific mechanisms in place to exercise human rights due diligence, allowing human rights risks to be identified and addressed. In light of information received about other development projects, Norte Energia’s approach appears to be quite representative of the way mitigation measures are often approached by companies in Brazil.
The Working Group visited the Independte II neighbourhood of Altamira, a poor residential area of some 400 houses. The area will be flooded once the dam reservoir is filled and residents were very anxious about what would happen to them. They said that they had received no information nor had they been consulted on their resettlement and residents were concerned that the dam would flood their houses and that they would have nowhere to go. As a result of advocacy by civil society organizations on behalf of the community, IBAMA came to assess the situation which resulted in the inclusion of a new requirement in the licence agreement, requesting Norte Energia to provide alternative housing for the people living in the Independent II neighbourhood before October 2016. Residents were worried that this requirement would not be complied with and they did not know about relocation plans.
The Working Group met with State authorities, business, civil society and community representatives in Minas Gerais. The State has the highest concentration of industrial mines in Brazil, and the Working Group’s visit took place after the tragic disaster caused by the 5 November rupture of the Fundão tailing dam, in the district of Mariana. The disaster is referred to as the worst environmental disaster in Brazil.
The tailing dam contained iron mine residue and was operated by the mining company Samarco, controlled by Brazilian Vale and Anglo-Australian BHP Billiton, each holding a 50% share. The dam rupture resulted in the release of 55-60 million m3 of mining residue into the Rio Doce river, causing a flood of mud which inundated villages, completely destroying Bento Rodriguez and Paracatu, and causing the death of 19 persons (of which 5 people are still missing). The mud has travelled more than 600 km down the Rio Doce river to reach the ocean, killing fish, fauna and flora, and causing a major social and environmental crisis, affecting the livelihood and access to drinking water of a large number people, including thousands of fishermen who directly depend of the river for their livelihood.
The Working Group met with Samarco Executive and with staff of Vale to discuss actions taken. The Working Group also met with victims of the disaster from Mariana, Minas Gerais, and the State of Espiritu Santo, as well as with State and Federal public prosecutors involved in seeking justice and compensation for victims. From the testimonies and submissions made to the Working Group, a main concern of affected communities is uncertainty about what longer-term support they would receive to rebuild their lives and concerns about the health risks posed by the contaminated river and sea. Trust in the company amongst the local community was badly hurt. There was therefore a need to provide information which would be credible in the eyes of the affected communities. People were also concerned that more dams could collapse. We learned that there are 753 tailing dams in Minas Gerais alone, and that 40 of them were considered unsafe. The Working Group would therefore urge the competent authorities and the companies responsible to take immediate action to reinforce safety measures.
The Working Group appreciated the efforts taken by the company to take action after the disaster. The fact that the CEO himself took a lead in the company’s response, and the willingness to consult with communities were important steps to finding solutions together with the effected communities. The Working Group encouraged the company to pay more attention to critical voices, to ensure an environment where people can express their concerns without fear of reprisal, and to be transparent and explain the failings in the early response to the disaster.
The Working Group noted that it had taken almost two weeks for the company to inform the public that two other structures (Santarém dam and Selinha dike) were in an unsafe condition. Equally, the company had not provided information to communities about the health risks related to the mud. Also there had clearly been a failure in the company’s contingency plan. People from the affected areas said that they had not been alerted about the disaster by the company or by the civil defence force. This was despite a time gap of about 10 hours between the dam rupture and the flooding of Bento Rodriguez, the first village to be flooded. Prior warning would have allowed people to save some belongings and might have saved lives, as is noted in the civil class action, dated 9 December 2015, filed by the Ministerio Publico of the State of Minas Gerais against Samarco, Vale and BHP. The Ministerio Publico of Minas Gerais on 11 November 2015 sought an agreement with Samarco to guarantee an amount of 300 million reais (77 million USD) to provide reparation for victims. Despite several attempts to reach an agreement, Samarco did not agree, leading to the submission of the lawsuit.
Given the scale of the disaster, the Working Group considers that the Federal and State authorities need to play a more active role in the disaster response. While the Working Group was briefed by the Office of the Presidency about the relief effort, there is a need to the Government to provide clear information to the population and guidance concerning the resettlement process and determination of compensation. While Samarco is responsible for repairing the damage caused, the State remains the primary duty bearer to uphold human rights of affected communities.
Construction work for the Rio 2016 Olympics
The hosting of the 2014 World Cup and the 2016 Olympic Games has led to an surge in construction work. A main human rights concern related to these mega-sporting events in Brazil has been the need to ensure adequate safeguards for persons pressured to resettle in order to give way to construction projects. In 2011, the UN Special Rapporteur on the right to adequate housing raised concerns over cases of displacement and evictions in several cities including Sao Paulo, Rio de Janeiro, and Belo Horizonte. Similar concerns were also raised in the context of Brazil’s UPR review in 2012.
The Working Group visited the Vila Autódromo settlement in Rio de Janeiro, located next to ongoing construction sites, where some 50-100 persons are refusing to leave their homes. Others have accepted to resettle and receive compensation. There would seem to be no legal grounding for any expropriation, as the construction is a private development project which could not be characterized as being in the public interest. Yet, in June 2015, there was a violent clash with residents, as municipal guards (Group of Special Operations) sought to break a human chain around two homes which were going to be demolished. The Mayor stated that people can stay, and that no one will be forced to leave. However, as the Working Group witnessed, the life of those who have remained is being made impossible, as they are surrounded by a construction site with frequent cuts to electricity and water supply.
A common theme related to large-scale development projects, was that measures to mitigate adverse human rights impacts were imposed top-down without prior meaningful consultation. Another problem concerns the way mitigation measures are conceived and implemented. In the case of Belo Monte, there seems to have been little advance planning to prepare the city to deal with the large influx of construction workers. As has been the case with other large-scale construction sites, the sudden growth of the population has been accompanied by a steep increase in cases of violence, trafficking, sexual exploitation of women and girls, and alcohol addiction. There is a need to take into account the broader social and cultural contexts in which development projects exist. In particular, such projects must take into account international learnings about managing interactions with indigenous communities in order to prevent the total disruption to the life of indigenous communities.
The requirement of consultation is also integral to international human rights standards on development-based resettlement, as set out in the Guiding Principles on Internal Displacement and in the basic principles and guidelines on development-based evictions and displacement. In the case of indigenous peoples, there is further the requirement of full and prior informed consent regarding relocation as provided for in the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization (ILO), which Brazil has ratified, as well as in the United Nations Declaration on the Rights of Indigenous Peoples. Where resettlement is unavoidable, international human rights standards require that people are provided with fair compensation and are not be deprived of their sources of livelihood.
In light of the human rights abuses which have come to be associated with large-scale development projects, the Working Group learned that the Minas Gerais State Government was considering a draft law which would set out a “State policy on people affected by dams and other development projects”. The law would seek to address some of the main problems currently observed by, inter alia, guaranteeing the participation of affected communities in all stages of the development project; recognizing the specific situation of indigenous peoples; and setting out clear guidelines for just compensation and relocation. A similar Policy was already established by decree in the State Rio Grande do Sul in 2014. These are welcome developments, and could be supported by clearer guidance to companies of their responsibility under international human rights law, in line with the Guiding Principles on Business and Human Rights.
At the same time, the Working Group also noted with concern developments going in the opposite direction. Notably, a legislative initiative (Projeto de Lei do Senado, number 654 of 2015) to “fast track” the licencing process which would make licencing simpler for infrastructure works and activities such as mining. In addition, the proposed revisions to the Mining Code include the elimination of some environmental protections in relation to areas to be exploited by mining activity and assign to the relevant mining company the right to use water needed for its operation without protecting water for human use. the Working Group is also concerned by the increasing recourse to the legal mechanism of “safety suspension” (suspensão de seguranca) which allows the president of a court to suspend legal decisions which block a development project from going forward with the justification that it is a matter of “public interest”.
The Working Group received a number of briefings during its visit about labour matters and heard from prosecutors, the Ministry of Labour, and civil society about the issues of forced labour and the suspension in 2014 of the “Dirty List of Slave Labour”, the register of employers caught using slave labour; proposals to weaken the current definition of slave labour in national law; child labour and various programmes to address this; proposals to reduce the minimum age for work; the problem of outsourcing and control over value/supply chains and how a draft Bill on outsourcing could aggravate this; and issues relating to health and safety at work including unhealthy working conditions and exposure of agricultural workers to poisonous chemicals that are banned elsewhere.
About 240 tribes live in Brazil today, totalling around 900,000 people, or 0.4% of Brazil’s population. The government has recognized 690 territories for its indigenous population, covering about 13% of Brazil’s land mass. Nearly all of this reserved land (98.5%) lies in the Amazon.
During our visit we repeatedly encountered human rights concerns affecting indigenous peoples and Quilombo (people descending from escaped African slaves). Apart from concerns related to development projects in the Amazonas, the Working Group was alarmed by the violent social conflict in Mato Grosso do Sul. According to data from the Special Secretariat of Indigenous Health (Sesai) there were 138 murders of indigenous persons (“deaths from assaults”) registered in 2014 (up from 97 in 2013), and almost a third of which (41 murders) took place in Mato Grosso do Sul.
Information gathered by the Missionary Council for Indigenous Peoples documents a total of 138 murders of indigenous persons in 2014, almost a third of which (41 murders) took place in Mato Grosso do Sul. Over the past decades, indigenous peoples have been subjected to forced displacement caused by expansion of agribusiness and other large-scale development projects.
The Working Group is concerned that the land of many indigenous peoples has not yet been properly demarcated. What is more, indigenous peoples are now expressing their concern about a draft Bill which would transfer decisions on the demarcation of indigenous territories from FUNAI and the President to Congress, a step which the Working Group considers with concern as it could set up further obstacles.
Human rights defenders
The Working Group was informed in several meetings that human rights defenders are increasingly facing threats to their lives for raising their voice in cases where their rights are compromised by economic interests. The Working Group notes in this regard that a 2014 report by Global Witness shows an increase in killings of people claiming their human rights, particularly in the context of land disputes and environmental pollution. According to this report, out of the total of 908 identified cases worldwide during the period from 2002 to 2013, almost 50 percent (448) were in Brazil. According to information received, including from the Public Ministry, violence is, in many instances, committed by the national police force and private security providers.
The Working Group learned about the Federal programme, implemented at the State level, for the protection of human rights defenders. In Minas Gerais, the Working Group was able to meet with five of the 51 human rights defenders who are currently protected under the programme. They reported a very high level of intimidation, threats, murders, and social exclusion, and a disregard in the part of the police authorities they contacted for the issues they face, often related to concerns raised about the activities of business operations. The Working Group also heard about the implementation of this program in the Amazonas region, where currently 74 human rights defenders are being assisted by the programme.
The Working Group was informed that these programs operate on a very limited budget, with only a few staff in each State assigned to execute the programme. The Working Group understands that the human rights defender programme in Minas Gerais is considered to be the most advanced in Brazil, which poses questions for the adequacy of protection mechanisms for human rights defenders in other parts of Brazil. To further raise awareness about the situation of human rights defenders, we would encourage further collaboration between these programmes and international organizations.
Access to remedy
Amongst the various mechanisms to ensure access to justice for victims of business-related human rights abuse, the Working Group was particularly impressed by the work of the public prosecutors under the Federal Public Ministry (Ministerio Público) and 27 State-level Public Ministries. Established under the 1988 Constitution, against the background of 21 years of military dictatorship (1964-1985), the Public Ministry works independently of the three branches of Government and has a mandate “to defend the judicial order, the democratic regime and the inalienable social and individual interests” (Art. 127). A total of around 1,000 Federal public prosecutors and more than 12,000 State-level public prosecutors are empowered to investigate and initiate legal proceedings against State authorities and business enterprises on behalf of private individuals or communities. In many of the cases of alleged business-related human rights abuse, public prosecutors were assisting communities in mediating with companies or submitting law suits.
With regard to non-judicial grievance mechanisms, Brazil does not have an independent national human rights institution. However, there is a National Commission on Human Rights which is composed of representatives from Government institutions, the Ministerio Publico and civil society. The National Commission has prepared a number of reports on business-related human rights issues. However, members of the National Commission with whom the Working Group met pointed out that their recommendations are rarely acted upon by the Government.
The Working Group also met with the OECD National Contact Point (NCP), in the Ministry of Finance. Set up in 2003, the NCP has examined a number of cases, related to alleged non-compliance of the OECD Guidelines on Multinational Corporations which includes
a chapter on human rights, aligned with the Guiding Principles.
National Action Plan
During its visit, the Working Group identified a need for improved coordination and dialogue on business and human rights issues. In particular, there is a need to create platforms for multi-stakeholder dialogue, involving Government, business and civil society. It was clear from meetings held that it is difficult to get representatives of companies, State representatives and aggrieved communities to sit around the same table. In this regard, the Working Group welcomes Government plans to develop a national action plan on business and human rights. We encourage the Government to found the national action plan on the United Nations Guiding Principles, and to use the guidance prepared by the Working Group for the preparation of such action plans. As the guidance document underlines, such plans “need to be developed in inclusive and transparent processes. Interested stakeholders need to be allowed to participate in the development, and update, of the NAP and their views need to be taken into account. Information needs to be shared transparently at all stages of the process”.
In closing, the Working Group emphasises the importance of the State embedding the Guiding Principles in commercial investment and business. There needs to be a better balance in the power structure relating to investments to ensure that a regulatory or State framework (such as that exemplified by IBAMA, FUNAI and the Federal and State prosecutors) is able to act to resolve the power imbalance that may allow irresponsible business practice to go un-checked. Rights holders must be provided with sufficient power to make their case in a way that enables them to be in a balanced negotiating position vis-a-vis a company. Effective stakeholder engagement, especially enabling the voice of the most vulnerable (which in many cases we witnessed is lacking) is particularly important. Secondly, the Working Group notes with concern the perception of corporate capture of regulatory and policy making process which leads to suspicion that companies are in charge of all aspects of their development projects without appropriate oversight by the State. This perception comes, in part, from the fact that companies contribute to political campaigns and leads some to consider that the political and regulatory process is being “bought” and makes people worry that the Government’s capability to oversee business operations might be co-opted by political financing processes, and extensive corporate lobbying.
The Working Group is encouraged that there is a political commitment regarding business and human rights, both at the government and business level, but the roll out is limited and this needs attention. Business as usual is what we have seen, despite all the progress on the international scene, with some few exceptions.
The Working Group has ended its visit, but we will continue to collect information over the coming months as we write our report to be presented to the Human Rights Council in June 2016. It will contain concrete recommendations for the Government and business enterprises, as well as other stakeholders. We hope these will be useful to efforts to protect against and address adverse impacts of business activities on human rights in Brazil.
Available at : http://www.ohchr.org/Documents/Issues/Business/UNWG_NAPGuidance.pdf