Indigenous Peoples' Right to Free, Prior, and Informed Consent in the Context of State-Sponsored Development: The New Standard Set by Sarayaku V; Ecuador and its Potential to Delegitimize the Belo Monte Dam

I. INTRODUCTIONIn July 2012, the Inter-American Court of Human Rights issued a landmark decision in Kichwa Indigenous People of Sarayaku v. Ecuador,1 an indigenous rights case that had been on the Inter- American system's docket for over eight years.2 The Inter-American Court held that the state of Ecuador had violated both international and domestic law by allowing an Argentine oil company to drill on indigenous land without first consulting the resident Kichwa community.3 Citing various sources of law, including the American Convention on Human Rights ("ACHR"),4 the Indigenous and Tribal Peoples Convention ("ILO Convention 169"),5 and the Ecuadorian Constitution, the Court found Ecuador in breach of the Kichwa's right to give or withhold their free, prior, and informed consent ("FPIC") on all decisions potentially affecting their property or rights.Sarayaku represents a major victory for indigenous peoples throughout the Americas and perhaps the world. The decision sets a stricter standard than any preceding Inter-American decision or legal instrument on the rights to consultation and FPIC in the context of state-sponsored development. Brazil embodies a prime example of a state under the Court's jurisdiction that likely is affected by the Sarayaku decision.6 In violation of its indigenous peoples' rights, Brazil approved the development of Belo Monte, a major hydroelectric complex whose construction currently is underway.7This comment argues that the new FPIC standard set by Sarayaku has the potential to delegitimize Belo Monte's development, which Brazil authorized without first properly consulting the indigenous groups whose lands and livelihoods it will adversely affect. Part II provides a history of the dam and describes its projected impacts on local indigenous peoples. It then presents the legal underpinnings of Brazil's consultation and FPIC obligations, as provided by the ACHR, Brazilian law, and ILO Convention 169. Part II concludes by discussing how Sarayaku further expands the consultation and FPIC protections established by prior Inter-American case law.Part III draws parallels between Sarayaku and the Belo Monte dispute to demonstrate the applicability of the Sarayaku standard to the latter. To achieve this, Part III analyzes Brazil's acts and omissions surrounding Belo Monte to illustrate that the state is in breach of the same legal instruments and FPIC standards that the Court found Ecuador had violated in Sarayaku.Part IV offers recommendations on how Brazil should proceed with Belo Monte's development in light of Sarayaku. Part IV concludes by attempting to fill the gap in the existing international indigenous rights law by suggesting that ILO Convention 169 revise its text to reflect the Sarayaku standard.II. BACKGROUNDA. THE BELO MONTE HYDROELECTRIC PROJECT1. The Development of the Controversial DamFor over thirty years, the Xingu Basin of the Brazilian Amazon has been the site of an ongoing development dispute that has drawn intense reactions from the Brazilian public and the international community alike. Under the original 1970s plan, what was then known as the Altamira Complex would have consisted of six separate dams and five generating plants.8 The highly controversial proposal required flooding of over 20,000 square kilometers of land, including the entire Paquigamba indigenous reserve.9 In response to severe criticism from the international community and violent dissent from indigenous groups-which led even the World Bank, the project's principal funder, to withdraw its backing-the government modified its proposal.10 By 1998, the renamed "Belo Monte" complex had undergone a drastic makeover. The new design called for a single dam capable of producing eleven gigawatts of electricity and for the inundation of 500 square kilometers of land,11 a third of the area that would have been flooded under the original scheme.12 While smaller than the Altamira Complex, Belo Monte will still be the world's third largest dam and is expected to cost R$20 billion to develop. …