The changing face of environmental governance in the Brazilian Amazon: indigenous and traditional peoples promoting norm diffusion

Abstract

Transnational networks of non-state actors are using ILO Convention No. 169 as a powerful instrument of environmental governance. The treaty promotes the norm of Free, Prior and Informed Consultation (FPIC), empowering local communities to influence infrastructure projects that impact their livelihoods and natural resources. However, there is a disconnect between the Brazilian government’s discourse and the effective implementation of this norm. Using document analysis and process tracing, this article investigates this rhetoric-practice gap. It argues that these transnational networks are diffusing the FPIC norm through Consultation Protocols, slowly bridging the gap.

Transnational Networks; Norm Diffusion; Consultation Protocols; ILO Convention No. 169; Multiple Actors in Environmental Governance

Introduction

This paper presents the case study of an international convention, which has been used in Brazil as a legal and political tool in environmental governance despite focusing marginally on environmental issues and primarily on protecting the rights of indigenous peoples. ILO Convention No. 169 (International Labour Organization 1989a) was written to promote the autonomy of traditional groups. Given that they see their livelihoods intertwined with the protection of natural resources, they are using this convention as an instrument for stronger environmental measures in Brazil. This suggests that studying global environmental governance would be limited if it focused only on the analysis of environmental conventions.

ILO Convention No. 169 was approved in 1989 and established the norm that indigenous and tribal peoples have the right to be consulted on any legislative or administrative matters that impact them (International Labour Organization 1989a). The norm calls for free, prior and informed consultation, meaning that it should take place before a project is implemented, that communities should not be coerced into accepting the project, and that they should receive complete information, especially concerning potentially negative impacts. Hereafter this is called the norm of Free, Prior and Informed Consultation (FPIC).

Since ratifying it in 2004, Brazil’s compliance with ILO Convention No. 169 has been erratic. The government intends to implement numerous infrastructure projects (e.g., the São Luiz do Tapajós dam, the Ferrogrão railroad, and ports on Maica Lake for bulk carriers, among others), which have negative impacts on traditional communities ( Gerlak et al. 2019 ; Fearnside 2019 ). For years the proponents of projects like these have disregarded the provisions on consultation. It was only after the FPIC norm became more diffused among traditional communities that the convention began to influence the country’s political agenda. Around 2014, communities started developing their own consultation protocols-documents that outline the steps the government ought to follow when consulting them. Communities are now demanding their right to be consulted.

Despite Brazil being a party to this convention, there has been a disconnect between the discourse of the Brazilian government and the effective implementation of the FPIC norm. The government has claimed many times that consultation was conducted, although communities argue it was not. This article analyzes the gap between the government’s discourse and practice. I investigate how the FPIC norm has been diffusing into the official rhetoric, and how several institutions are working to bridge the discourse-practice gap. This analysis covers the period from 1988 (when the FPIC norm was discussed by the ILO) until the time of writing (July 2019), when we see signs of this norm diffusing in Brazil. For this analysis I rely solely on secondary data. I reviewed ILO archival documents and several consultation protocols. I used the method of process-tracing ( George and Bennett 2005 ), which requires examining government statements, media articles and other documents, to identify a causal relationship between events (promoting consultation protocols) and their impacts (incorporating the FPIC norm into the government’s rhetoric and, slowly, its practices).

This research shows that actors such as community associations, non-governmental organizations (NGOs), international foundations, and religious organizations form transnational networks. They strive to change the way the Brazilian government abides by international standards and the way in which natural resources are governed. Throughout this process, traditional communities become more powerful actors. Environmental governance in Brazil cannot be understood without a close examination of how a multitude of international and non-state organizations operate in networks to influence that governance.

This analysis illustrates a new case of norm diffusion characterized by a transnational-networked pattern. Norm diffusion is the process through which ideas spread and influence the worldviews of policymakers, local communities, international organizations, private corporations, and civil society leaders. Ideas do not simply flow in a top-down or bottom-up manner; rather the case shows how they diffuse through networks. I identify the norm proponents and entrepreneurs in the case of consultation protocols, which diffusion mechanisms they are using, and the consequences of this process for environmental governance in Brazil.

Theoretical Framework

Constructivist scholars in International Relations (IR) study norm diffusion to understand how ideas spread, focusing on processes that promote or hinder the creation and dissemination of ideas ( Karns et al. 2015 ). One important focus in constructivist theories is on how norms influence state preferences ( Jung 2019 ). Despite this state-centric focus, there are many authors in this field who study how actors other than states are agents of norm proposition and diffusion, for instance international organizations (IOs), activist groups, private companies, among others ( Keck and Sikkink 1998 ; Carpenter et al. 2014 ; Avant et al. 2010 ). This paper highlights how non-state actors are having a crucial role in diffusing the FPIC norm in the Brazilian Amazon.

There are several definitions of norms, but a useful one is that “[what] makes norms norms is that they develop ‘stickiness,’ backed by a ‘logic of appropriateness’ to replace an initial ‘logic of consequences’” ( Acharya 2011 , 116). Some ideas never become widespread despite being promoted (they don’t stick), while others are accepted and used. A norm is a widespread idea that is adhered to because it is deemed adequate. The difference between a logic of appropriateness and a logic of consequence is what differentiates norms from laws ( Acharya 2011 ).

There are multiple ways of organizing authors’ contributions within this field (for a great review of the IR Constructivist literature, see Jung 2019 ). One way is dividing them into three camps. First, there are those who see norms flowing from the international to the national level (top-down), for instance when powerful countries and IOs influence smaller states by teaching them what is adequate (M. Barnett, M. Finnemore, M. Negron-Gonzales, and M. Contarino, among others). Second, there are those who see norms diffusing from peripheral states to the international level (bottom-up), for instance when less powerful countries manage to diffuse norms internationally to promote their own interests, or when smaller countries first adapt norms coming from larger players before incorporating them into domestic practices (A. Acharya, K. Sikkink, S. Park, among others). The third camp encompasses authors who see norms diffusing through transnational networks. For example, Park (2006) challenges the idea that IOs lead the process of norm creation, highlighting the importance of NGOs and activists in these processes. Khagram (2004) describes how grassroots and civil society movements have influenced the World Bank regarding the construction of dams. The present paper contributes to the literature on the third camp by analyzing a new case of norm diffusion through transnational networks.

Norm entrepreneurs are state or non-state actors who have “strong notions about appropriate or desirable behavior in their community” ( Finnemore and Sikkink 1998 , 896). Often, they target states as the main actor whose behavior they want to influence, trying to convince them to embrace a certain norm. When entrepreneurs operate in different countries, their networks are termed “transnational” ( Keck and Sikkink 1998 ; 1999; Florini 2000 ; Carpenter et al. 2014 ; Rietig 2016 ). These cases are also known as transnational advocacy networks, defined as “actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and services” ( Keck and Sikkink 1999 , 89).

Entrepreneurs often need an organizational platform to operate, such as an NGO or an IO. Barnett and Finnemore (2004) view IOs as “conveyor belts” through which norms diffuse. In the case discussed here the ILO was this conveyor belt. Once entrepreneurs manage to put ideas onto these platforms, norms begin to spread. Finnemore and Sikkink (1998) identify a “norm’s life cycle,” which begins with norm emergence and, after reaching a tipping point, norms cascade and become internalized. This approach considers that there must be a tipping point after which norms that have emerged will cascade into the international society. This can be the point when a norm becomes institutionalized, although the authors maintain that norms can cascade first and be institutionalized later. The FPIC norm first emerged among indigenous groups and civil society organizations, which then gained the support from some partner countries. The norm was later institutionalized in ILO Convention No. 169, and it is now diffusing (cascading) across member countries.

Finnemore and Sikkink (1998) assert that entrepreneurs use several mechanisms to influence state behavior, such as framing, persuasion, and bandwagoning, although they see socialization as the most influential. “Socialization is thus the dominant mechanism of a norm cascade, [and it happens through] emulation (of heroes), praise (for behavior that conforms to group norms), and ridicule (for deviation)” ( Finnemore and Sikkink 1998 , 902). Acharya (2004) considers “localization” as a central mechanism, characterized by the process through which international ideas are modified to fit local demands. He also suggests that mechanisms of norm diffusion can be snowballing, learning and emulation. Further, he highlights that norm entrepreneurs promote the “widening, deepening [and/or] thickening” of international norms in a process that is region-specific ( Acharya 2014 , 406).

The ongoing process of diffusing the FPIC norm involves socializing states about what kind of consultation is appropriate. It also includes shaming them for not doing it, and in the case of Brazil it encompasses adapting (localizing) this norm to the national context. Localization is seen for instance in the consultation protocols. After Brazil ratified the convention, there were no clear guidelines regarding how to conduct consultation, so traditional groups in the Amazon created their protocols as a mechanism to adapt this international norm to the Brazilian context.

ILO Convention No. 169 and the FPIC Norm

The Indigenous and Tribal Peoples Convention n. 169 of the International Labor Organization (aka ILO Convention No. 169) is one of the most important legally-binding international laws that protects indigenous peoples across the world (Survival International n.d.). This convention is a revision of ILO Convention No. 107, which was integrationist (i.e. it fostered the idea that indigenous peoples had to be integrated into the country’s main society, thereby not respecting their autonomy). In 1988 the ILO tasked the Committee on Convention No. 107 with updating international practices towards indigenous populations. It is important to note that the ILO has a tripartite structure, so representatives of governments, employers and workers all have equal voice on decisions. The committee followed this tripartite structure and members from the three sectors participated in the revision process.

When the revised convention came to a final vote, the three sectors of the Brazilian delegation abstained (see records of votes on page 32/19 of the ILC 76^th Session during the 37^th sitting, International Labour Organization 1989b). This would lead one to imagine that they were aligned with one another, which was, however, not the case. These groups had diverging views then, and this continues to be the case. On one side, members of the workers’ delegation and other civil society groups both in Brazil and elsewhere pushed hard for a thorough revision and a convention that would guarantee comprehensive rights to indigenous populations. On the other, government and employer delegations from Brazil and other countries resisted new standards deemed incompatible with their national legislation and sovereignty. There were several issues that brought out these tensions. The most contentious one was about how the convention should address issues related to projects that would impact indigenous peoples: should they be consulted or should they give consent before a project moved forward.

The government and employer representatives of Brazil opposed granting consent rights to indigenous peoples. The committee originally suggested that the revised document reads “seek consent” and several amendments were worded and reworded to make it clear that this would not guarantee indigenous peoples the right to veto government projects (International Labour Organization 1989c). During the ILC’s 75^th session, the representative of the Norwegian government pushed for governments to “consult fully with a view of obtaining consent,” but the representative of the US government suggested the new convention promotes “full consultation in lieu of seeking the consent” ( International Labour Organization 1988 , page 32/10, paragraph 74). The government and employer representatives of Brazil voted in favor of the US suggestion ( International Labour Organization 1988 ).

The representative of Brazilian workers (Central Única dos Trabalhadores, CUT) played a leading role in pushing for full consent, which was aligned with workers’ delegations from other countries. “The [Brazilian] Workers’ members proposed a two-part amendment to substitute ‘obtain the informed consent’ for ‘seek the consent,’ and to add that it should be ‘freely expressed through their own institutions.’ They considered it essential that indigenous peoples have a real influence on decision-making” ( International Labour Organization 1988 , page 32/10, paragraph 73). Nonetheless, this position was outvoted in the final version of the revised convention. The approved version of ILO Convention No. 169 only calls for indigenous peoples to be consulted about projects that impact them; their consent is not required for projects to be implemented. The convention only protects the right of indigenous peoples to consent to projects (i.e. veto) in cases when these populations must be relocated from their territories - see article 16 of the Convention (International Labour Organization 1989a). Thus, the document offers no strong legal framework to determine what happens when, after being consulted, indigenous people do not consent to projects that will negatively affect them but do not require their compulsory relocation.

The Coordination of Indigenous Organizations of the Brazilian Amazon (Coordenação das Organizações Indígenas da Amazônia Brasileira, COIAB) is a nonprofit indigenous organization that was part of the committee that revised ILO Convention No. 107, which shows that indigenous groups have been engaged in high-level policymaking for several decades. It is hard to know exactly why, but COIAB was not present during the ILC 76^th session in 1989 when the final version of the document was passed. Statements by other indigenous organizations can shed some light. Mr. Helms, the Rapporteur of the Committee, acknowledged that “indigenous representatives were often very dissatisfied with our procedures and our decisions, and that some felt obliged to leave the room on a couple of occasions” (International Labour Organization 1989b, 31/2). Other indigenous representatives, however, stayed until the end and recorded their statements in the conference proceedings. For example, Mr. Ontiveros Yulquila, representative of the Indian Council of South America, denounced that:

“it has been absurd for us to watch, from the observers’ seats, deprived as we were of the right to speak or to vote by the regulations and structures of the ILO, the Government and Employers’ delegates of a large part of the world (Canada, the United States, Argentina, Brazil, Bolivia and Venezuela) behave like representatives of the old colonial empires which despoiled the Americas, denying us the right to exist and express our identity as peoples in the cultural, social and economic fields” (International Labour Organization 1989b, 31/8).

The final version of ILO Convention No. 169 promotes the principle of free, prior and informed consultation in several of its passages (ILO 1989a). Article 6 affirms that governments ought to consult traditional groups impacted by any legislative or administrative projects that directly impact them, and it calls for good-faith consultation so that the people can freely participate. Article 15 states that governments shall consult those impacted by a project “before undertaking or permitting any programmes” (Article 15, paragraph 2). Article 7 requires that social and environmental impact assessments be made available and be taken into consideration “as fundamental criteria for the implementation of these activities” (Article 7, paragraph 3). In other words, decisions ought to be made in an informed way.

Implementation of ILO Convention No. 169 in Brazil

The government of Brazil has been a reluctant follower of the convention. It abstained during the final vote when the convention was approved in 1989, but it did ratify it in 2002 and signed a presidential decree in 2004 promulgating the convention and making it legally enforceable under domestic legislation ( Brasil 2004 ). Since then, there has been a slow and ongoing internalization process for the FPIC norm. There are many cases when traditional populations were deprived of consultation, frequently so in dam cases ( Garzon et al. 2016 ). This spurred a lively debate in Brazil about the role of ILO Convention No. 169, its poor implementation, and its potential to foster thorough processes of consultation.

If the government and the private sector have been reluctant followers, civil-society groups and local communities have been passionate leaders. For instance, they sued the government in 2006, together with the Federal Prosecutor’s Office (Ministério Público Federal, MPF) alleging that indigenous peoples had not been consulted for the Belo Monte Dam ¹ . This dam is one of the most notorious cases of lack of consultation in recent Brazilian history. The dam had been planned for a long time, but this and other legal suits delayed construction activities. The case was decided in favor of indigenous groups in lower courts, but the decision was suspended later by higher courts, so the dam project moved forward ( Instituto Socioambiental 2014 ). Judicial decisions have put construction activities on hold many times. Technically, construction should not have been started or should have at least been kept on hold until all local communities were consulted. However, for many years the project has moved forward despite protests denouncing such violations.

During the same period, other dams followed the same path as Belo Monte, notably Teles Pires and São Manoel, both of which face numerous legal actions in the Brazilian court system ² . Indigenous groups and their supporters have pressured the government for thorough consultation processes, which have not happened in line with FPIC norms. All suits have been granted in favor of indigenous peoples in lower courts ( Foresti 2017 ), but later overthrown by higher courts via a loophole in Brazilian law known as “security suspension.” This is a highly controversial judicial device that allows federal judges to overturn decisions from lower houses, before the case is adjudicated in higher courts ( Sequeira 2014 ). A federal judge may overturn a lower court’s decision arguing that placing a project on hold would harm the greater national public order and economic security of Brazil. A merit-based assessment and final judgment by the Supreme Court is then postponed. Consultation processes are thus suspended and economic growth is securitized ( Chase 2017 ).

All these instances of lack of consultation and manipulation of the judicial system to push dam projects forward have created strong reverberation among activists, who pressured the Brazilian government to implement ILO Convention No. 169. They partnered with the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), and in April 2011 the IACHR sent an official letter to the Brazilian government requesting that all licensing processes for Belo Monte be suspended until good-faith consultation was carried out ( Comissão Interamericana de Direitos Humanos 2011 ). In response to the growing shaming pressure, the government declared a few days later that the request was unjustified and that proper consultation had been conducted (Ministério das Relações Exteriores 2011).

Some government representatives pointed to large meetings held in gymnasiums where people were informed about the specifics of the project and what to expect. At no point was there a question as to whether dam construction would happen or not. None of these “so-called consultations” respected FPIC norms ( Salgueiro 2011 ). Dr. Rodolfo Salm was one of thousands who have eye-witnessed these public hearings. He reports seeing police and National Guard armed with rifles, machine guns and tear gas (Salm 2009). These meetings were not free because communities felt intimidated and could not freely participate in the decision-making process. Salm (2009) also reports that several questions were dismissed or ridiculed. This does not characterize a process of informed consent, because people were not given complete information regarding the dam project. Lastly, the public hearings were also not prior because they took place after the government decided to implement Belo Monte.

Despite this abysmal performance, Mr. Gilberto Carvalho, Minister of the General Secretariat of the Presidency of the Republic (Secretaria-Geral da Presidência da República) asserted that consultation was carried out and even mentioned ILO Convention No. 169 when declaring this (Lopes 2012). This indicates an enormous dissonance between the government’s discourse and the effective implementation of this convention. After large public outcries demanding better consultation processes, the government contended in 2011 that there were no clear standards for implementing the FPIC norm. It then announced it would create specific regulations determining the criteria for consultation processes (Locatelli 2016a). Civil society groups pushed for a participatory process, which led to the establishment of a working group in January 2012 to discuss new guidelines (Brasil 2012a). These efforts were happening parallel to the construction activities of Belo Monte, Teles Pires, and other dams. Later in 2012, two decisions by the government pushed civil-society groups over the edge, forcing them to walk away from negotiations at the working group.

The first decision was in July that year (2012), after the Office of the General Counsel for the Federal Government (Advocacia-Geral da União, AGU) released a document determining that the right of indigenous peoples shall be disregarded in cases of significant public interest to use natural resources in their territories (AGU Portaria 303, Brasil 2012b). The second was a bit more convoluted. On August 13^th a regional federal court had determined that all construction activities in Belo Monte be put on hold due to lack of consultation with indigenous groups ( Tribunal Regional Federal da 1ª Região 2012 ). A few days later, on August 24^th, the AGU issued another document (Supremo Tribunal Federal 2012a, Reclamação 14404) asking the Supreme Court (Supremo Tribunal Federal, STF) to overturn the decision (Supremo Tribunal Federal 2012a). On August 27^th, the president of the Supreme Court issued a decision overturning the ruling by the regional court, arguing that a previous security suspension order (Suspensão de Liminar 125, Ministra Ellen Grace) was still in place and thus the regional court had overstepped its authority (Supremo Tribunal Federal 2012b). This decision came so shortly after the one by the regional court, and even more closely after the request by the AGU, that it raised suspicions about opaque agreements between the executive and judiciary branches of government.

These two events of July and August 2012 cast a dark shadow over the working group and outraged civil-society groups. The government had agreed to host discussions about consultation, but its good-faith intentions were now jeopardized. Negotiations continued for another few months until key activist groups decided to walk away. One of the most serious cases was the Brazilian Association of Indigenous Peoples (Articulação dos Povos Indígenas do Brasil, APIB). In an open letter in 2013, APIB denounced the ill-intentions of the government, accusing it of manipulating the guidelines for community consultation ( Articulação dos Povos Indígenas do Brasil 2013 ). Others adopted the same position and walked away from negotiations ( Sanson 2013 ), rendering expectations for a legitimate consultation process almost hopeless.

Traditional communities in the Amazon were still apprehensive about infrastructure projects planned for their region. Many indigenous organizations and their partners were aware of legal safeguards and wanted to defend impacted communities. But in several cases the communities themselves were not familiar with the protections they had from national and international legislation. In 2011, the Coordination of the Indigenous Organizations of the Amazon Basin (Coordenação das Organizações Indígenas da Bacia Amazônica, COICA) in partnership with the Spanish Agency for International Development Cooperation (AECID) organized a workshop to inform indigenous leaders about their rights recognized by international institutions such as the ILO, the UN and the IACHR. A year later they repeated this process to reach even more indigenous leaders ( Fellet 2012 ). In 2013 the Brazilian Public Prosecutors’ Office started to promote similar workshops among traditional communities in the Amazon, informing them about ILO Convention No. 169 (Ministério Público Federal 2013).

Eventually, a large number of people from various communities came to know about their rights. They also learned that leaders and partner organizations had pressured the government to enforce these measures, only to find out that decision-makers had ignored their rights, arguing that it was impossible to consult these communities due to a lack of guidelines. In 2014, during another wave of heightened tensions, communities and their partners came up with a creative solution: if the government wanted guidelines, these groups decided to give them some. They created consultation protocols.

What are Consultation Protocols?

Consultation protocols are documents written by local communities with guidelines they expect the government to follow when consulting them. Guidelines vary from community to community, and each protocol is unique to represent the particularities of their own indigenous or traditional groups. All of them declare that consultation should be free, prior and informed, and all protocols mention Brazil’s obligations under ILO Convention No. 169. For this paper, I have analyzed the protocols of several communities in the Amazon region (see ^{Appendix A}), examining their content, publication date, and the organizations involved.

The Wajãpi indigenous people were the first in Brazil to publish their consultation protocol in 2014 (Locatelli 2016a). They open the document declaring:

We have decided to write this document because we often see the government doing things to the Wajãpi People without asking us what we need or want. Other times the government does things around the Wajãpi territory which impact us, and it does so without asking our opinion. The government has never consulted our people.

The document also mentions that “It is an obligation of the government to consult us. [The right to consultation] is guaranteed by ILO Convention No. 169 and it is a law in Brazil since presidential decree 5051/2004 was signed” (translation slightly adapted by author) ( Conselho das Aldeias Wajãpi 2014 ).

The idea that communities could write their own protocols establishing how they want to be consulted spread quickly. Starting in late 2014, many began developing their protocols. Although these documents are not all the same, my textual and document analysis shows that they follow a general template similar to the Wajãpi example. There are a few common sections in all these documents:

• Who are the people protected by the protocol: this section explains about their traditional culture and how they use natural resources. This is important because it is here where they self-declare their identity as indigenous, tribal, or traditional communities, thus establishing that they are protected under ILO Convention and under the 5051/2004 presidential decree;

• How the initial contact needs to happen: this section outlines which institutions must be contacted to formally start a consultation process (e.g., community associations, labor unions, etc.) This is to prevent other organizations that do not legitimately represent a community from highjacking the consultation process;

• When and where meetings shall take place: this section states that meetings should be inside the community so that everyone participates. This is to avoid public hearings held in gymnasiums in nearby towns from later being presented as consultation meetings. Regarding “when,” all protocols emphasize the need for consultation to take place prior to the project in question. Some documents also emphasize that during certain periods of the year, people in the communities are busy with traditional or subsistence activities (i.e., the harvest season). So, consultations should be scheduled not to overlap with these periods;

• Who is allowed to participate in the meetings: this section states that everyone in the community and outsiders trusted by the community can join the meetings. This is to avoid women and elderly people from being excluded, and to make sure that partner organizations are not barred from negotiations. This section also emphasizes that government representatives who are sent to these meetings to speak on behalf of the project must not be mere technicians but rather must have authority to negotiate and compromise;

• What needs to be explained, and in what language: this section makes it clear that the language used during consultations ought to adopt simple terms and avoid jargon. It also requests time for translation into indigenous languages, when necessary. This is important because it speaks to the need for consultation to be informed. Full information, including risks and uncertainties must be disclosed to interested communities;

• How negotiations will unfold: This section delineates that there will be first a few explanatory meetings for everyone in the community to understand what the project is about. Then the community will hold internal meetings, and finally there will be negotiation meetings with government and project representatives. This is important because it underscores the fact that even if some meetings are held, it does not mean that full consultation was conducted;

• How decisions are made: This section states that communities make decisions by consensus, so government representatives should refrain from buying off selected leaders or trying to create internal divisions in the community.

Effectiveness of Networks in Diffusing the FPIC Norm

Some might ask what is the value of short, simple documents written by local communities and sent to government institutions. A skeptic would classify them as mere letters or informal documents with no legal standing. This skeptical view, however, is far removed from reality. Consultation protocols have become one of the most important documents in the implementation of ILO Convention No. 169 in Brazil. They have been used by federal judges to determine that certain projects should be put on hold until proper consultation takes place ( Tribunal Regional Federal da 1ª Região 2016 ; Locatelli 2016b; Procuradoria Regional da República da 1ª Região 2017).

One of the most iconic examples of the importance of consultation protocols is the case of the São Luiz do Tapajós (SLT) Dam. The dam, if built, would impact the Munduruku indigenous people, who preemptively published their consultation protocol in 2014. The Munduruku people have been putting up a heroic fight against the SLT dam, tenaciously demanding their right for consultation. After a civil public action lawsuit ³ , their efforts yielded positive results when a federal judge determined that all project-related activities be put permanently on hold, highlighting the importance of consultation according to ILO Convention No. 169 ( Tribunal Regional Federal da 1ª Região 2015 ).

In August 2016, the Brazilian Institute of the Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis, IBAMA) – which is the government agency under the Ministry of the Environment that grants licenses for dams and similar projects, decided to archive the permitting process for the SLT Dam (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis 2016). This was a landmark decision because it set a precedent regarding how these projects must be conducted from then on. Parts of the government’s executive branch that are dam proponents had argued that the area impacted by the project was not an indigenous territory, and thus the Munduruku people would not have to be removed from a traditional area, given that the area in question was not traditionally theirs ( Centrais Elétricas Brasileiras 2016 ). The president of IBAMA at the time challenged this argument, stating that the impacts on indigenous people had not been adequately assessed ( Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis 2016 ).

This was a long and convoluted legal battle. When analyzing various documents of this process, I found many references to ILO Convention No. 169 and to consultation protocols. Whenever the FPIC norm is mentioned, its legitimacy is acknowledged by all sides. Dam proponents, however, argue that, in the SLT case, indigenous people have the right to be consulted but not the right to block the project, given that their relocation would not be from an officially recognized indigenous territory ( Centrais Elétricas Brasileiras 2016 ). The SLT case highlights how these communities demand their right to be consulted and to actively participate in environmental governance decisions such as the construction of dams. It also shows how they are now beginning to influence the decisions of high-level policymakers.

A network of engaged organizations is diffusing the FPIC norm. Several of them can be identified in the protocols themselves. The Wajãpi protocol was promoted by their indigenous associations (Apina, Apiwata and Awatac) and made possible thanks to the support from the Amazon Cooperation Network (Rede de Cooperação Amazônica), the Iepe Indigenous Institute (Instituto de Pesquisa e Formação Indígena), and Rainforest Foundation Norway. The Munduruku protocol was led by the Munduruku Ipereg Ayu movement and their indigenous associations such as Da Uk, Pusuru, Wuyxaxima, Kerepo and Pahihip. It relied on the support from partners such as the Oriental Amazon Forum (Fórum da Amazônia Oriental), Greenpeace, the Federation of Agencies for Social and Educational Assistance (Federação de Órgãos para Assistência Social e Educacional), the Missionary Indigenist Council (Conselho Indigenista Missionário), the Ford Foundation, the Federal Prosecutor’s Office (Ministério Público Federal) and the Nova Cartografia Project. Some of these organizations are grassroots groups, some are civil-society groups, others are religious or public entities within Brazil and some are international institutions. They perfectly fit the definition of norm entrepreneurs: “agents [who have] strong notions about appropriate or desirable behavior in their community” ( Finnemore and Sikkink 1998 , 896). They were proponents of consultation protocols, which frame FPIC an appropriate norm that ought to be followed.

This list of organizations is but a short selection from those involved in creating two protocols in the Brazilian Amazon (the Wajãpi and the Munduruku ones). I have analyzed all protocols indicated in ^{Appendix A}, considering the list of community associations (those that are primarily responsible for leading the process of creating protocols) along with the list of their partner organizations (NGOs, foundations, legal consultancy, etc.). This analysis showed the networks of norm entrepreneurs pushing for more thorough implementation of the FPIC norm in Brazil. Networks are channels through which norms diffuse. The organizations in this process operate at different levels, are based in several countries, and come from various backgrounds (religious, environmental, legal, etc.) It is thus possible to see that the diffusion of the FPIC norm in Brazil has not been top-down or bottom-up but is rather happening through these transnational networks.

The FPIC norm was originally promoted by some indigenous groups and their partners (from Brazil and elsewhere). It was then incorporated into a convention by an international organization, used in legal cases by public prosecutors in Brazil and diffused by civil society groups among other traditional communities. This gave the norm a new format by incorporating it into their consultation protocols, which are now being used to influence state behavior. The indigenous groups in the Amazon currently promoting their protocols have probably not been in contact with indigenous organizations in other countries who promoted the FPIC norm back in 1989, when it was incorporated into ILO Convention No. 169. Nonetheless, these groups are indirectly connected through a network of partner organizations. One could think of this transnational diffusion as a local-global-local pattern, but it is important to keep in mind that the “local” groups are not the same at the beginning and at the end of this diffusion process.

I argue that if it were not for these networks, the gap between the discourses of the Brazilian government and the effective implementation of this international treaty would be even wider. The government did ratify ILO Convention No. 169 and pass a presidential decree turning FPIC into law in Brazil. However, moving from ratification to effective implementation is a wide gap policy makers are still reluctant to bridge. As of now, there are more cases of FPIC rights being ignored than consultation protocols being respected. Having said that, it is important to point out that this research did not find any instances where dam proponents or high-level policymakers in government agencies indicated that consultation was unnecessary or was not the right thing to do. Even though the discourse-practice gap is still wide, the “oughtness” characteristic of the FPIC norm is generally accepted. The norm is in the process of being diffused. If this gap is being bridged at all it is due to the tenacious efforts of civil-society movements that are not willing to give up on the right to be consulted.

Policies that protect consultation are still weak. The process from ratification to implementation of ILO Convention No. 169 has been dragging for more than fifteen years. The government did not respect consultation rights, and it violated them in several cases. But if we look at the recent past, we can be reasonably optimistic, because it suggests consultation policies are becoming intermediately effective. Aside from the Munduruku case, the Juruna indigenous people used their protocol to put the Belo Sun mining project on hold ⁴ (Procuradoria Regional da República da 1ª Região 2017). These cases show promising signs of more effective implementation of the FPIC norm, which is due to the promotion of consultation protocols by various networks.

It is then interesting to consider the ways in which international norms do diffuse. Indigenous and civil-society organizations formulated the FPIC norm in the late 1980s, but alone these groups could not convince countries to abide by it. The norm became accepted only after being incorporated into an international convention. However, ideas are not adopted simply because they are promoted as “the right thing to do.” Incorporating principles of prescriptive behavior in international conventions does not, by itself, make the world a better place. There are two crucial subsequent steps for these norms to diffuse. First, countries must ratify the conventions. International legal instruments effectively influence state behavior because of their legal nature ( Simmons 2009 ). Enforcing international law becomes an extremely arduous process without ratification. However, after Brazil ratified ILO Convention No. 169 in 2004, the government did not start abiding by it right away. It manipulated the process and avoided complying with good-faith consultation processes. Protocols would take another ten years to be published, and even longer to start influencing federal courts. Now, although reluctant, the government has been paying attention to consultation rights.

The second crucial step for a norm to diffuse and take hold is that those protected by the norm take ownership of it. Traditional populations started using ILO Convention No. 169 as a tool to protect their interests only after attending the workshops mentioned above and learning about the FPIC norm. Now their demand is clear: They must participate in environmental governance decisions because their livelihoods depend on these resources. They have a right to thorough consultation processes. The government’s rhetoric acknowledges this right, but policymakers are still reluctant to respect it. The diffusion of FPIC is happening both due to Brazil’s ratification and due to communities feeling empowered by this norm.

Presidential decree 5051/2004 ( Brasil 2004 ) is the legal device that protects the FPIC norm in Brazil. Interestingly, it did not become the main idea associated with consultation protocols. The presidential decree is fundamental from a legal perspective, but politically it is ILO Convention No. 169 that validates the FPIC norm. This is indicative of a norm diffusion process. As mentioned above, “[what] makes norms norms is that they develop ‘stickiness,’ backed by a ‘logic of appropriateness’ to replace an initial ‘logic of consequences’” ( Acharya 2011 , 116). What is developing “stickiness” in Brazil is ILO Convention No. 169. The idea that communities have the right to free, prior and informed consultation is deemed appropriate. Decree 5051/2004 has the function of legally protecting this norm, but the norm itself is encoded in the international convention ( Brasil 2004 ).

Conclusion

This article analyzed the rhetoric-practice gap in Brazil regarding consultation. The FPIC norm was created by indigenous and civil-society groups and later validated by ILO Convention No. 169. The diffusion of this norm cannot be explained simply as top-down or bottom-up. Rather it requires understanding of the transnational networks that promoted consultation protocols, which became an instrument to bridge this gap. Studying environmental issues should not be restricted to the analysis of environmental conventions. This case shows that a human-rights convention (indigenous rights in particular) is being used as one of the most powerful legal and political instruments of environmental politics in Brazil.

Environmental governance writ is largely the inquiry into who governs which natural resources and how decisions are made. The FPIC norm and consultation protocols influence these three domains. They claim that traditional communities have the right to participate in these decisions (who), that natural resources in their territories are important for their livelihoods (which), and that decisions ought to be made after good-faith consultation processes (how). Protocols and their framing based on ILO Convention No. 169 widen the scope of this field. These documents are changing how the environment is governed in the Amazon. Local communities have always been the legitimate governors, but at times they were deprived of their right to make decisions about the management of these resources. They still cannot veto government projects (except in cases of compulsory relocation), but this convention does change the power-sharing dynamics of who has a say in the process of deciding the fate of rivers, forests and mineral resources in Brazil.

Protocols can halt infrastructure projects, which is a victory for those directly impacted and for the broader network. They grant precious time for scientists to challenge impact assessment reports, for other communities to join the movement, for journalists to raise awareness, and for activists to persuade policymakers. Environmental governance is a field of contested powers where different authorities claim legitimacy over their ruling of natural resources. Protocols are shifting these dynamics. Currently, it is impossible to understand dam governance in the Brazilian Amazon without paying attention to these documents and this international convention.

Acknowledgement

The author would like to thank Drs. Samuel Barkin, Margaret P Karns and Philip Fearnside for their comments and advice.

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Appendix A

Consultation Protocols

Title	Link
Protocolo de Consulta e Consentimento Wajãpi	https://acervo.socioambiental.org/sites/default/files/documents/WAL00006.pdf
Protocolo de Consulta Montanha e Mangabal	https://acervo.socioambiental.org/sites/default/files/documents/01D00005.pdf
Protocolo de Consulta Munduruku	https://acervo.socioambiental.org/sites/default/files/documents/mud00083.pdf
Protocolo de Consulta dos Povos do Território Indígena do Xingu	https://acervo.socioambiental.org/sites/default/files/publications/0pd00257.pdf
Protocolo de Consulta Quilombola- Santarém	http://www.mpf.mp.br/atuacao-tematica/ccr6/documentos-e-publicacoes/protocolos-de-consulta-dos-povos-indigenas/docs/PROTOCOLO_CONSULTA_WEBmin.pdf
Protocolo de Consulta dos Povos Indígenas Munduruku e Apiaká do Planalto Santareno	https://acervo.socioambiental.org/sites/default/files/documents/0hd00051.pdf
Protocolo de Consulta aos Pescadores e Pescadores do Município de Santarém – PA	http://www.mp.pa.gov.br/data/files/2D/E6/8F/D7/120D6610E63C6C66180808FF/Protocolo%20dos%20Pescadores%20de%20Santarem.pdf
Protocolo de Consulta - Quilombolas de Abacatal/Aurá	https://acervo.socioambiental.org/sites/default/files/documents/03D00035.pdf
Protocolo de Consulta Juruna (Yudjá) da Terra Indígena Paquiçamba da Volta Grande do Rio Xingu	https://rca.org.br/wp-content/uploads/2016/08/protocolo-juruna-CAPA-e-MIOLO.pdf
Protocolo de Consulta das Comunidades Ribeirinhas Pimental e São Francisco	https://acervo.socioambiental.org/sites/default/files/documents/01D00013.pdf
Protocolo de Consulta dos Quilombolas de Jambuaçu/Moju-PA	https://acervo.socioambiental.org/sites/default/files/documents/03D00037.pdf
Protocolo de Consulta ao Povo Waimiri Atroari	https://acervo.socioambiental.org/sites/default/files/documents/WTL00006.pdf
Protocolo de Consulta e Consentimento - Associação das Comunidades Remanescentes de Quilombo do Alto Trombetas II	http://cpisp.org.br/wp-content/uploads/2017/03/ACRQAT_ProtocoloConsulta.pdf
Protocolo de Consulta dos Kayapó-Menkragnoti associados ao Instituto Kabu	https://acervo.socioambiental.org/sites/default/files/documents/MGL00003.pdf
Protocolo de Consulta Yanomami e Ye'kwana	https://acervo.socioambiental.org/sites/default/files/documents/YAL00051.pdf

Publication Dates

• Publication in this collection
  23 Sept 2019
• Date of issue
  2019

History

• Received
  30 Apr 2019
• Accepted
  21 Aug 2019