O direito fundamental à consulta prévia, livre e informada: os protocolos de consulta e o caso do lago do Maicá em Santarém

Abstract

In the Amazon region, events that cause damage to the environment, traditional communities and indigenous peoples are recurrent. In view of this scenario, the study is relevant, once it analyzes the construction and implementation of a large enterprise in a place traditionally occupied by riverside communities, quilombolas or indigenous peoples. The research was developed in the Science of Society Graduate Program, in the Human Rights, Society and Environmental Citizenship research line. The research problem involves the following question: the free, prior and informed consultation, carried out with the support of protocols produced by indigenous peoples, quilombolas and fishermen who may be affected by the construction of the port terminal at Maicá Lake in Santarém/PA, has a binding effect? Seen in these terms, the general aim of the research was: to analyze whether the decision taken by communities and traditional peoples, based on free, prior and informed consultation, with the support of consultation protocols, has a binding effect in the case of the possibility of building the port terminal in the Lake Maicá, in Santarém/PA. The specific objectives were: a) to investigate the history, legal nature, subjects and applicability of ILO Convention 169; b) research international judgments regarding the applicability of the right to the free, prior and informed consultation; c) analyze whether the right to the free, prior and informed consultation is materially fundamental; d) examine how the elaboration of consultation protocols produced by indigenous peoples, quilombolas and fishermen takes place, especially in the case of Maicá Lake. In order to answer the research problem and achieve the expected objectives, qualitative, bibliographical, documentary research was used in the methodology, as well the inductive method. To analyze the consultation protocols, the hermeneutic-dialectic method by Maria Cecília de Souza Minayo was used, having as basic theories the “The Order of Discourse” by Michel Foucault, and “The inclusion of the Other” by Jürgen Habermas. As expected results, the research indicated that for the right to free, prior and informed consultation to have its purpose achieved, it is not enough to carry out the process as a simple formal step to be fulfilled. Decisions taken must have binding effect in order to comply with the provisions of Convention 169 of the ILO.