The case of Benito Oliveira Pereira and Lucio Guillermo Sosa Benega, on their own behalf, on behalf of other members of the Campo Agua'e indigenous community of the Ava Guarani people v. Paraguay. Views of the Human Rights Committee of July 14, 2021. Communication No. 2552/2015.
In 2015, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Senegal.
The UN Human Rights Committee noted that the State party did not properly monitor illegal activities that caused pollution of agricultural lands adjacent to the territory of the community. The Committee stated that the State party had not provided any other explanation to refute the alleged causal relationship between the pollination of agrochemicals and the damage mentioned. The Committee noted that the authors and other members of the community exercised the right to enjoy their culture in relation to a lifestyle closely related to their territory and the right to use the natural resources available there. The Committee found that mass pollination with pesticides posed a threat that the State party could reasonably have foreseen. The competent State authorities were informed about these activities and their consequences for the members of the community; The prosecutor's office also revealed that the existence of a criminal offense was "fully proven", and the accused owners of the companies themselves admitted their guilt. The State party has not stopped these activities, thereby allowing the continued pollution of the rivers in which the authors fished, drew water, bathed and washed their clothes, the further death of their livestock, which served them as a source of food, and the continued destruction of their crops and resources in the forest where they hunt and gather. The Committee concluded that the facts before it demonstrated a violation by the State party of articles 17 and 27 of the International Covenant on Civil and Political Rights, considered separately and in conjunction with article 2, paragraph 3, of the Covenant.
As seen from the text of the Considerations, the pollination carried out by large Brazilian companies systematically violated the environmental regulations of the State party, which establish measures to reduce environmental impact and obligations to leave live protective strips between areas treated with pesticides and reservoirs, roads and settlements in order to avoid pollution. In violation of the law, the companies did not leave protective strips when treating their crops with pesticides, they led it right at the houses, the community school (even during classes), the access road to the community and near the rivers that flow through the companies' lands before they cross the territory of the community, and where the indigenous people take water, fish, bathe and wash clothes (paragraphs 3.1 - 3.14 of the Decision).
The Committee's legal position: In the case of indigenous peoples, the concepts of "housing" and "privacy" should be understood within the framework of the special relationship they maintain with their territory (paragraph 8.2 of the Considerations).
Article 17 of the Covenant should not be understood as limiting the obligation to refrain from arbitrary interference, but rather as implying an obligation to take positive measures necessary for the effective observance of this right, regardless of whether the interference comes from public authorities or from natural or legal persons (paragraph 8.3 of the Considerations).
When pollution directly affects the observance of the right to privacy and family life and housing and its consequences have a certain level of severity, environmental degradation affects human well-being and generates violations of privacy and family life and housing (paragraph 8.4 of the Considerations).
In the case of indigenous peoples, the enjoyment of culture may relate to a lifestyle closely related to the Territory and the use of its resources, and may include traditional activities such as fishing or hunting; thus, the protection of this right is intended to guarantee the preservation and continuous development of cultural identity. As the UN Committee on Economic, Social and Cultural Rights notes, a pronounced collective dimension of the cultural life of indigenous peoples is necessary for their existence, well-being and comprehensive development and includes the right to lands, territories and resources that they traditionally owned, occupied or otherwise used or acquired. Therefore, "it is necessary to respect and protect the cultural values and rights of indigenous peoples associated with their ancestral lands and their connection with nature, in order to avoid the degradation of their special way of life, including livelihoods, loss of natural resources and, ultimately, their cultural identity." The Committee on the Elimination of Racial Discrimination has confirmed that the close connection that indigenous peoples maintain with the land must be recognized and understood as the fundamental basis of their culture, their spiritual life, their inviolability and their economic situation, their connection with the land is a material and spiritual element that they must fully use in order to preserve their cultural heritage and pass it on to future generations, that is, a necessary condition for "preventing their disappearance as a people." Article 27 of the Covenant, interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples, enshrines the inalienable right of indigenous peoples to use the territories and natural resources that they have traditionally used to feed and preserve their cultural identity (paragraph 8.6 of the Considerations).
Measures are needed to ensure the effective participation of indigenous peoples in decisions affecting them. In particular, it is fundamentally important that measures that endanger or hinder economic activities of cultural value be carried out with the free, prior and informed consent of community members, in addition, they must respect the principle of proportionality in such a way that they do not endanger the very existence of society. The Committee notes that the State party's legislation protects the right of indigenous peoples to be consulted in cases of activities that may affect their territory (paragraph 8.7 of the Views).
The Committee's assessment of the factual circumstances of the case: according to the authors, the circumstances of the case indicated a violation of article 17 of the Covenant, since their pets, crops, fruit trees, as well as hunting, fishing and gathering constituted elements of their private life, family and home, and that the lack of State control over agricultural activities that polluted their reservoirs, thus led to the death of their crops and pets, contributed to the mass death of fish, bees and game, and caused them health problems, It constituted arbitrary interference with their private and family life and their homes (paragraph 8.2 of the Considerations).
The Committee noted that the authors of the communication and other members of the indigenous community of Campo Agua'e belong to the Ava Guarani people, one of the indigenous peoples recognized by the Constitution of the State party as the forerunners of education and the institution of the State. This community received legal recognition of its traditional territory in 1987 in Presidential Decree No. 21.910. Their dwellings are located on the outskirts of the territory, and a forest has been preserved in the center, which provides the community with the necessary resources to preserve its cultural identity. The Committee pointed out that the livelihoods of members of the indigenous community (including the authors of the communication) are crops, pets, fruit trees, hunting, gathering, fishing and water resources - all elements of their territory where they live and live their private lives. The above has not been refuted by the State party. The Committee considered that the above-mentioned elements constituted the lifestyle of the authors and other members of the community who maintained special relations with their territory, and were elements that could fall under the protection of article 17 of the Covenant (paragraph 8.3 of the Views).
The Committee drew attention to the fact that the State party did not properly monitor illegal activities that caused pollution, which is documented, noted by the State party itself and even recognized by both accused owners of companies. By failing to ensure proper control, the State party has not prevented pollution. Their failure to comply with their duty of protection allowed for many years to continue mass spraying in violation of the law, including the use of banned pesticides, which not only caused health problems for community members (including children due to pollination a few meters from school during classes), but also led to pollution of their reservoirs, the destruction of their crops, without which members of the community were left without food, and the death of their pets contributed to the mass death of fish and bees - components of their private and family life and their homes. The Committee stated that the State party had not provided any other explanation to refute the alleged causal relationship between pollination with agrochemicals and the damage mentioned (paragraph 8.4 of the Views).
The authors argued that there had also been a violation of article 27 of the Covenant in the circumstances of the present case. They pointed out that the environmental damage caused by spraying had serious consequences, amounting to a denial of the right to enjoy their culture. First, the loss of natural resources associated with the cultivation of food by members of the community for themselves, in turn, threatens their culture and ancestral customs related to hunting, fishing, gathering in the forest and the agroecology of Guarani, thus leading to the loss of traditional knowledge. Secondly, the mitakarai initiation ceremonies are no longer held due to the disappearance of materials for the construction of the yerokiha dance house, which they used to find in the forest; avati corn, from which they made "chichu kagui", an obligatory element of this sacred rite; and wax used to make ritual candles, from- for the mass extinction of wild bees "yatei". Due to the termination of this rite, children do not join an important part of their original culture, and the last priests of oporaiva no longer have students, which threatens the preservation of their cultural identity. Thirdly, there has been a weakening of the community structure, as several families have left. The authors of the communication pointed out that they are personally responsible to the community for ensuring the transfer of culture from generation to generation, given their role as community leader and teacher. The Committee noted that, in the State party's view, although its legislation recognizes collective rights, this does not apply to article 27 of the Covenant and that the authors have not proved harm to them personally (paragraph 8.5 of the Views).
The Committee considered that the authors and other members of the community exercised the right to enjoy their culture in relation to a lifestyle closely related to their territory and the use of the natural resources available on it. The Committee found that mass pollination with pesticides posed a threat that the State party could reasonably have foreseen: in addition, the competent State authorities were informed about these activities and their consequences for members of the community; The prosecutor's office also found that the existence of a criminal offense was "fully proven", and the accused owners of the companies themselves admitted their guilt. The State party has not stopped these activities, thereby allowing the continued pollution of the rivers where the authors fish, draw water, bathe and wash their clothes, the further death of their livestock, which served them as a source of food, and the continued destruction of their crops and resources in the forest, where they hunt and gather. The Committee pointed out that the State party had not provided any other explanation for what had happened and had not justified taking any measures to protect the rights of the authors and other members of the community to their cultural life (paragraph 8.8 of the Views).
The Committee noted that, according to the authors, the facts indicated a violation of the provisions of article 2, paragraph 3, of the Covenant, together with articles 17 and 27 of the Covenant, due to the lack of effective remedies to protect them from violations. The authors pointed out that, even though the authorities had sufficient information to establish a causal link between the illegal use of pesticides by companies and harmful effects on their health and the safety of their territory - on the basis of which the Prosecutor's office filed criminal charges - the investigation of the criminal case, which began in 2009, It has not been completed, and the evidence requested by the prosecutor's office has not been presented; pollination continued to be carried out in violation of the law, and the damage was not eliminated, despite the possibility of an agreement on the petitions of the accused owners of the companies to suspend the proceedings with the condition of recognition of their responsibility. The Prosecutor's Office, in violation of the criminal procedure legislation, also did not involve a technical consultant specializing in indigenous issues who could ensure that cultural diversity was taken into account during the investigation and that the unequal impact of violations on members of the community was documented. The Committee considered that, more than 12 years after the authors of the communication filed an application for criminal proceedings in connection with the spraying of pesticides, to which they had also been exposed all this time, the investigation had not progressed significantly and the State party had not provided explanations justifying the delay, which did not allow for compensation for the damage caused in Violation of the provisions of article 2, paragraph 3, in conjunction with articles 17 and 27 of the Covenant (paragraph 8.9 of the Views).
The Committee's conclusions: The facts presented indicated a violation by the State party of articles 17 and 27 of the Covenant, considered separately and in conjunction with article 2, paragraph 3, of the Covenant (paragraph 9 of the Views).