Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Brazil (Ratification: 2002)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019; the joint observations of the IOE and the National Confederation of Industry (CNI), received on 31 August 2018; the observations of the National Confederation for Typical State Careers (CONACATE), which include general comments on the application of the Convention received on 28 August 2017, and the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include a report by COICA (a Peruvian indigenous peoples’ organization) on the application of the Convention in various countries.

Representation made under article 24 of the ILO Constitution. Right of Quilombola communities to the lands they traditionally occupy. Alcântara space launch centre. For many years, the Committee has been examining the question of the impact of the establishment of the Alcântara space centre (CEA) and the Alcântara launch centre (CLA) on the rights of the Quilombola communities of Alcântara. The Committee notes that the Governing Body at its 337th Session (October–November 2019) decided that the representation made under article 24 of the ILO Constitution by the Union of Rural Workers of Alcântara (STTR) and the Union of Family Agriculture Workers of Alcântara (SINTRAF), alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. The Committee observes that the allegations in the representation refer to the consequences of the extension of the area covered by the Alcântara space launch centre on the rights of the Quilombola communities and the lands traditionally occupied by them. In accordance with its usual practice, the Committee has decided to defer the examination of this issue until the Governing Body adopts its report on the representation.

Article 3 of the Convention. Human rights. The Committee observes that certain United Nations bodies and the Inter-American Commission on Human Rights (IACHR) have expressed concern in recent years at the situation of conflict surrounding territorial claims and at threats and attacks on the rights and integrity of the indigenous peoples of Brazil. The Committee notes the press release of 8 June 2017 of the Office of the United Nations High Commissioner for Human Rights (title: “Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn”) in which three UN Special Rapporteurs and a IACHR Rapporteur stated: “In the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country. […] Indigenous peoples are especially at risk”. The Committee notes that the IACHR, in its preliminary observations of 12 November 2018 concerning its visit to Brazil, emphasized that harassment, threats and murders characterized land disputes and forced displacements. The IACHR noted with concern that the impunity surrounding these acts of rural violence was contributing towards their perpetuation and increase. Furthermore, at the time of its travel to Mato Grosso state, the IACHR observed the grave humanitarian situation faced by the Guarani and Kaiowá peoples, largely due to violations of their land rights. The IACHR visited the Dorados-Amambaipeguá indigenous lands, and received information on the victims of the “Caaraó massacre”, during which one person was killed and another six members of the community were injured, as well as reports of frequent armed attacks by militias.

The Committee also notes that the IACHR granted precautionary measures on 29 September 2019 in favour of members of the Guyraroká community of the Guarani Kaiowá indigenous people, since they had prima facie evidence that families of the community are in a serious and urgent situation because their rights to life and physical integrity are at serious risk. The IACHR takes into consideration reports concerning the high level of conflict between members of the community and landowners and concerning death threats (Resolution 47/19, Precautionary Measure (PM) 458/19).

The Committee notes this information with concern. The Committee urges the Government to take all the necessary measures to protect the life, physical and psychological integrity, and all the rights guaranteed by the Convention to indigenous and tribal peoples. The Committee considers that indigenous and tribal peoples can only assert their rights, particularly with regard to possession and ownership of the lands they traditionally occupy, if adequate measures are adopted to guarantee a climate free of violence, pressure, fear and threats of any kind.

Articles 6, 7, 15 and 16. Consultations. In its previous comments, the Committee referred to the process for regulation of the indigenous and Quilombola peoples’ right to consultation which had been under way since 2012. In this regard, the Government indicated that the process of negotiation with the peoples concerned had encountered certain difficulties and that the Secretariat-General of the Government was endeavouring to restore the dialogue. The Government was considering the possibility of proposing a potential consultation mechanism on the basis of a practical case. The Committee also noted that the CNI and the IOE had emphasized that the absence of regulation on the consultations required by the Convention was generating legal uncertainty for enterprises.

In its report, the Government indicates that in recent years a number of indigenous peoples have taken initiatives in this area, indicating to the State the manner in which they wish to be consulted. In this context, they have drawn up their own protocols for prior consultation in which they formalize the diversity of procedures for building dialogue enabling effective participation in decision-making processes that can affect their lives, their rights or their lands. The Government refers in particular to the support given by the National Foundation for Indigenous Affairs (FUNAI) for drafting protocols for consultations involving the Xingu indigenous peoples in 2016, the Krenak indigenous people in 2018 and the Tupiniquim people in 2018, and to discussions under way in the Roraima Indigenous Council (CIR). In this regard, the Committee observes that, according to information on the website of the Public Prosecutor’s Office, other communities have adopted protocols of this type. Moreover, regarding policies, programmes, actions and projects relating to social assistance for indigenous peoples, the Government indicates that FUNAI is intensifying efforts to sign agreements with provider institutions in order to ensure respect for the particular social and cultural characteristics of these peoples and to respect their right to free and informed prior consultation where appropriate.

The Government also points out that there is growing demand for infrastructure from indigenous communities (for electric power, water storage and distribution or road construction). In this regard, FUNAI ensures that all actions, activities or projects respect the right to free and informed prior consultation, so that relations between the Brazilian State and the indigenous communities are not vertical. The Government indicates that FUNAI, through its decentralized units, supplies technical, logistical and at times financial support to partner bodies and municipalities under whose jurisdiction indigenous lands are located in order to organize the necessary meetings.

The Committee welcomes the drawing up of consultation protocols by certain communities and the role played by FUNAI in this respect. The Committee requests the Government to provide further information on the status of these protocols and to indicate how it is ensured in practice that the protocols are applied in a systematic and coordinated manner through the country whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly. The Committee also encourages the Government to continue its efforts with a view to the adoption of a regulatory framework on consultations which will enable the indigenous and Quilombola peoples to have a suitable mechanism guaranteeing them the right to be consulted and to participate effectively whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly, and which will be conducive to greater legal certainty for all stakeholders. The Committee recalls the need to consult the indigenous and Quilombola peoples as part of this process and to enable them to participate fully through their representative institutions so as to be able to express their views and influence the final outcome of the process. It requests the Government to provide information on the consultation processes undertaken, including on the basis of the consultation protocols developed by the various indigenous communities and the results thereof.

Article 14. Lands. The Committee recalls that the two bodies responsible for the identification and demarcation of lands and the issuing of land titles are FUNAI (for lands traditionally occupied by indigenous peoples) and the National Institute for Settlement and Agrarian Reform (INCRA) (for lands traditionally occupied by the Quilombola peoples). The procedures are regulated by Decree No. 1775/96 and Decree No. 4887/03, respectively. The Government describes the various stages of the procedure, including: the request to open an administrative procedure for regularization; the preparation of a zone study (containing anthropological, historical, cartographic, land ownership and environmental elements); the declaration of limits; the opposition phase; the physical demarcation; the publication of the recognition order establishing the limits of the territory; and the registration and concession of the titles of collective ownership to the community by decree. The Committee notes the statistical information sent by the Government on land demarcation procedures in the states of Mato Grosso and Rio Grande do Sul. It observes that in Rio Grande do Sul, of a total of 48 procedures, 20 have resulted in regularization and 28 are in progress (at the study, declaration or demarcation stage). Regarding Mato Grosso, of a total of 50 procedures, 24 have resulted in regularization and 26 are in progress. The Committee also notes that, according to information on the FUNAI website, 440 lands have been regularized in the country as a whole. Moreover, 43 lands have had their limits identified, 75 lands have had their limits declared and nine lands have had their limits certified. Lastly, for 116 lands, the procedure is at the study stage.

The Committee notes that CONACATE refers in its observations to Constitutional Amendment Proposal No. 215/2000, under examination by the National Congress, the aim of which is to confer exclusive authority on the National Congress to approve the demarcation of lands traditionally occupied by indigenous peoples and also to ratify demarcations which have already been certified. CONACATE indicates that the final decision on any new demarcation of these lands would no longer be under the authority of the competent ministry but under the authority of the National Congress, where agri-industry is heavily represented.

The Committee also observes that, according to the information available on the website of the Federal Supreme Court (STF), in September 2019 FUNAI filed an extraordinary appeal (1.017.365/SC) with the Supreme Court on the issue of the “time frame”. The “timeframe” approach followed by certain jurisdictions means that only lands actually occupied on 5 October 1988, the date of promulgation of the Constitution, should be recognized as lands traditionally occupied by indigenous peoples. Since the STF recognized the general scope of the constitutional issue under examination, its final decision will have binding force in all instances of the judiciary. Moreover, the Committee notes that, according to information on the Congress website, two interim measures were adopted in 2019 aimed at transferring the authority to identify, delimit, demarcate and register indigenous lands from FUNAI to the Ministry of Agriculture, Livestock and Supplies (MPO 870/2019 and MP 886/2019). The first measure was rejected by the National Congress and the second measure was deemed unconstitutional by the Supreme Court.

The Committee observes that the IACHR, in its preliminary observations of 12 November 2018 relating to its visit to Brazil, stated that it had received various testimonies concerning the difficulties and long delays which indigenous communities face regarding access to land ownership. The result of these difficulties was that public lands intended for these communities were occupied by landowners or private mining enterprises, and this gave rise to conflicts involving expulsions, displacements, invasions and other forms of violence. The IACHR also expressed concern at the weakening in recent years of institutions such as FUNAI.

The Committee recalls that Article 14 of the Convention provides that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. In this regard, the Committee emphasized in its general observation of 2018 that recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based. The Committee trusts that the Government will continue taking all necessary measures to ensure the full application of the Convention with regard to the ownership and possession rights of indigenous and tribal peoples over all the lands which they traditionally occupy. It requests the Government to take the necessary measures to follow up in the very near future on the procedures pending before FUNAI concerning the delimitation, demarcation and registration of indigenous lands and before INCRA concerning lands traditionally occupied by Quilombola communities. The Committee in particular requests the Government to provide information on the measures taken regarding the situation of the Guarani and Kaiowá peoples. The Committee further requests the Government to provide information on the human and material resources allocated to both FUNAI and INCRA to fulfil their mandate at every stage of the procedure – studies, delimitation, demarcation and registration of lands.

The Committee is raising other matters in a request addressed directly to the Government.