INDIGENOUS RIGHTS

IN SOUTH AMERICA

FPIC AND ÜTHER KEY ISSUES

FOR NATURAL RESOURCE DEVELOPMENT

Juan Sonoda, Editor

Angela Antakly João Victor de Barros

Juan Carlos del Busto Benfenati Fernando Escobar Pacheco Juan Pablo Escudero Toro

Ysabel Figueira Jorge Figueredo

Pedro Garcia Gonzalo Grez

Kevin O' Callaghan Alejandro Pemintel Echenique

Flavia Queirolo-Nicolini Mauricio Salgueiro

Juan Sonoda Guillermo Tejeiro Gutierrez

Francisco Tong Gonzáles Carlos Umana Trujillo

Andrés Vera Agustina Y edro

Jaime P. Zaldumbide Ursula Zavala Carlín

ROCKY MOUNTAIN MINERAL LAW FOUNDATION

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BRAZIL Pedro Garcia

João Victor de Barros Veirano Advogados

I. lS THERE A DEFINITION OF INDIGENOUS PEOPLE? AND ARE MIXED

HERITAGE COMMUNITIES OR OTHER TRADITIONAL COMMUNITIES

INCLUDED IN THE DEFINITION?

In Brazil, the definitions of "Indian" and "indigenous community" are provided by Federal Law No. 6,001 of 1973 (Estatuto do indio or "Indian Statute"), which reflected a policy of progressively and harmoniously integrating Indian and indigenous people into the national community. The Brazilian Federal Constitution enacted in 1988 (Constituição da República Federativa do Brasil or "Brazilian Constitution"), in contrast, represents a shift away from integration, providing indigenous people with a special regulation grounded on the protection and respect for their rights.l

The Indian Statute defines Indian or "silvícola"2 as any individual of pre-Columbian origin and ancestry who self-identifies and who is identified as belonging to an ethnic group whose cultural character­istics distinguish him from the national society. On the other hand, an indigenous community is defined as a set of Indian families or communities, either living in complete isolation from other sectors of

1 Adriany Ferreira & Camila Oliveira, "A Mineração em Terras Indígenas: uma Análise Socioambiental da Necessidade de Regulamentação" (ISSN 2236-9406), 13 Revista Síntese Direto Ambiental, at 9 (2013).

2 The Brazilian Constitution refrained from using the term silvícola (forest dweller) and preferred to use expressions such as Indians and indigenous peoples.

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the national community, or with intermittent or permanent contacts with the national community with no integration.

Accordingly, with regard to the criteria for the definition of Indians, the National Indian Foundation ("FUNAI")3 provides the following:4

The State is not supposed to recognize who is indigenous or not, but rather to ensure the respect for the individual and social processes of creation and development of ethnic identities. The criteria adopted by FUNAI are based on ILO Convention 169 on Indigenous and Tribal Peoples, fully enacted in Brazil by Decree No. 5,051/2004, and on the Indian Statute (Law 6,001/73).

FUNAI sets forth that the criteria are: a) self-definition and perception of their indigenous identity and b) recognition of such identity by the group of origin.

In addition to indigenous peoples, this chapter will also address the concept and the main legal aspects o f the so-called "Quilombolas," who are the people descended from runaway slaves who formed communities called "quilombos" during the slavery period in Brazil.S In fact, Brazil is recognized as one of the countries that received the most slaves captured and brought from Africa.6 There­fore, the study of Quilombos has great importance in the Brazilian context.

According to Article 2 of Decree No. 4,887/2003 quilombo commu­nities shall mean ethnic-racial groups, determined according to self­identification criteria, with a distinct historical background and a

3 FUNAI is a federal governmental agency, as further explained in this chapter.

4 FUNAI, "Quais os critérios utilizados para a definição de indígena?" Available at http:/ jwww.funai.gov.br/.

5 "Quilombo" is derived from the term "kilumbu," which means "locked enclosure" in dialects originating in Angola and Congo. Marcelo A de Melo, "Terras Indígenas, comunidades quilombolas e o registro de imóveis no Brasil," 65 Revista de Direito Imobiliário, at 275 (2008).

6 de Melo, supra note 5.

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specific relationship to their territories,7 and Afro-Brazilian ancestry related to the resistance to historical oppression associated with the slavery period.s

In compliance with Article 1, section 2 of the United Nations Con­vention No. 169, of the International Labor Organization on Indige­nous and Tribal Peoples ("ILO 169"), Decree 4,887/2003 establishes self-definition as a criterion for identifying quilombo descendants. Accordingly, the Brazilian doctrine states as follows:

1t is important to note that the self-definition is one of the criteria adopted by Decree 4,887/2003, but not the only one. This is an extremely important criterion, since it starts from the correct premise that for definition of the ethnic identity it is essential to take into consideration the perceptions of the individuais who are being identified, under penalty of corroborating ethnocentric or essentialist readings of outside observers from another culture, often full of prejudice. The basic idea, which may be related to the principie of human dignity, is that on the identity definition, it is impossible to ignore the view that the individual has about himself, under penalty of perpetuating serious bias and violences, concrete or symbolic.9

Notwithstanding, self-definition was not the only criterion adopted by Decree 4,887/03, which also stipulates in Article 2 some require­ments which may be confirmed by anthropological and historical analysis. This provision refers to the necessity of the group having historical ties to the occupied territory, and with Afro-Brazilian ancestry related to the resistance to historical oppression. Therefore, the foregoing provision creates objective requirements concerning the ethnic identity of the group, its territoriality and its singular his­torical evolution.1o

7 Their relationship to their territories includes their occupation history and their use of land for housing and performance of religious activities and festivities, among other cultural aspects.

8 INCRA (2016). Available at: http:/ /www.incra.gov.br/.

9 Daniel Sarmento, Por um constitucionalismo inclusivo: História Constitucional Brasileira, Teoria da Constituição e Direitos Fundamentais, at 302 (2010).

lO Sarmento, supra note 9.

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11. ARE INDIGENOUS OR TRADITIONAL COMMUNITIES' RIGHTS

PROTECTED BY SUPRANATIONAL, NATIONAL OR SUB-NATIONAL

NORMS? HAS ANY PART OF THE LEGISLATION BEEN IMPLEMENTED

WITH THE PURPOSE OF CONFORMING TO ILO 169? HA VE ANY RIGHTS

BEEN RECOGNIZED BY THE COURTS WHICH POTENTIALLY EXPAND THE

LAWS ON THE TOPIC?

Indigenous communities' rights in Brazil are protected by both supranational and national norms.

According to Article 5, paragraph 2 of the Brazilian Constitution, the rights and guarantees expressed therein do not exclude others deriving from the international treaties to which the Federative Republic of Brazil is a party. Furthermore, it states in Article 22, section XIV, that the Federal Union has the exclusive authority to pass laws concerning Indian populations, thus precluding sub­national norms.

Under Decree No. 5051, dated April 19th, 2004, Brazil has formally adopted ILO 169, which has been recognized by the Brazilian courts as applicable to both indigenous11 and Quilombolas communities.12

1. National norms

a. The Brazilian Constitution of 1988

The Brazilian Constitution introduced a separate chapter addressed to Indian people. Indigenous communities' rights are also protected by numerous provisions in the Constitution.

Accordingly, Article 129, section V of the Brazilian Constitution has assigned to the Public Prosecutor' s Office the duty to protect indigenous rights through legal proceedings. On the other hand, Article 232 states that the Indians, their communities and organiza­tions are legitimate parties to sue and have their rights and interests defended in court. Likewise, Article 109, section XI, provides that federal courts have jurisdiction over disputes over indigenous rights.

It is also acknowledged in the Constitution that regular elementary education in Brazil shall be provided in the Portuguese language, and the Indian communities shall also be ensured the use of their

11 Augusto Affonso Botelho Neto v. União, STF, Feb. 4, 2014. 12 Aracruz Celulose S/ A v. Altiane dos Santos, TRF-2, Jan. 1, 2009.

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native tongues and their own learning methods, according to paragraph 2 of Article 210.

The Brazilian Constitution has also included protection for the cultural aspects of the indigenous and Afro-Brazilian in Articles 215, paragraph 1, and 216, declaring the material and non-material assets related to the identity of these communities to be part of the Brazilian cultural heritage.

As provided in Article 231, the Brazilian Constitution recognizes Indians' social organization, customs, languages, creeds and tradi­tions, as well as their original rights to the lands they have been tra­ditionally occupying, and the Federal Union is responsible for determining the boundaries of those lands and protecting and ensuring respect for their property. Article 231 includes 7 paragraphs of provisions concerning indigenous lands, which will be further explained below.

The current Constitution introduced into the Brazilian legal system the concept that Indians are differentiated groups and enabled to preserve themselves as such. In other words, the Brazilian legislators abandoned the outdated concept that arose from the so-called social evolutionism theory,13 under which Indian communities were con­sidered primitive and as a consequence they needed to become "civ­ilized" and be incorporated into the national community.

b. Law No. 6,001 of 1973 (Estatuto do Índio or "Indian Statute")

As mentioned above, the Indian Statute aimed to progressively and harmoniously integrate indigenous people into the national com­munity. However, the current Brazilian Constitution provides indig­enous people with special regulation grounded on the protection and respect for their rights, for the purpose of changing the former inte­gration policy into a policy of granting permanent recognition to indigenous people' s social organizations, customs, beliefs and tradi­tions, and their rights to lands they originally and traditionally occupied.

13 Carla Barbosa. "Direito a diferença na sociedade da informação: os direitos indígenas na Constituição brasileira," 20 Revista do Instituto dos Advogados de São Paulo, at 43 (2007).

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Notwithstanding, the Indian Statute, enacted before the Brazilian Constitution, sets forth in Article 4 that Indians are considered as integrated when they have been incorporated into the national community and are recognized with the full exercise of civil rights, even if they retain practices, customs and traditions characteristic of their culture.

The Indian Statute also includes provisions to ensure respect for the cultural aspects of the indigenous communities, their artistic values and customs. Moreover, it indicates in Article 51 that children should be educated, as much as possible, without separating them from their families or from tribal social contact. Articles 58 and 59 concern crimes against the Indians and the indigenous culture, prohibiting the exploitation of the Indian or the indigenous community as objects of tourism advertising or exhibiting them for purposes of profit.

c. The Brazilian Civil Code of 2002

The Brazilian Civil Code ("BCC") sets forth in Article 4 that the civil capacity (capacidade) of indigenous shall be governed by special legislation. The BCC removed provisions concerning the relative civil capacity of Indians and any tutelary regime as set out by the old Civil Code of 1916. In addition, the BCC refrained from using the term silvícola (forest dweller), since it has been considered discrimi­natory.14

d. The National Indian Foundation (Fundação Nacional do Índio, or "FUNAI")

The FUNAI is the federal governmental agency established by Law 5,371/1967 with the following purposes:

• to establish the guidelines and ensure the execution of the indigenous policy, based on the principies provided therein, such as the respect for the Indian and the assurance of the continuous possession of the lands inhabited by these communities;

• to manage the indigenous assets in order to ensure their preservation, expansion and enhancement;

14 Ana V. Araújo et alii, Povos Indígenas e a Lei dos "Brancos": o direito à diferença, at 58 (2006).

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• to promote surveys, analyses, studies and scientific research on Indians and Indian social groups;

• to promote the provision of medicai and sanitary assistance for Indians;

• to promote the appropriate basic education of Indians to facilitate their integration into the national society;

• to increase awareness of the indigenous cause by means of communication;

• to provide law enforcement in reserved areas and in matters related to the protection of Indians.

Furthermore, FUNAI performs studies on the identification and demarcation of indigenous lands and opinions on protection of indigenous communities, as further explained in this chapter.

With regard to Quilombolas, the law under which slavery was abolished in Brazil ("Lei Áurea," enacted by Princess Isabel in 1888) did not provide for the mechanisms by which the slaves and their descendants would be compensated. The issue was discussed for many years thereafter and resulted in Article 68 of the Transitory Constitutional Provisions Act ("ADCT"). It was enacted together with the Brazilian Constitution in 198815 and provided that members of Quilombolas communities that are occupying their lands shall be granted definitive ownership16 and shall receive the respective title deeds from the Government.

Such constitutional provision aimed to support equality and social justice, since it grants territorial rights to members of underprivi­leged groups composed almost exclusively of very poor people who are victims of stigma and discriminationP It is a remedial measure, designed to pay the nation's historical debt owed communities com-

15 The Brazilian Constitution has also included protection to the cultural aspects of the Afro-Brazilian in Articles 215, paragraph 1 and 216, declaring the assets of a material and non-material nature bearing reference to the identity of these communities as part of the Brazilian cultural heritage.

16 As further explained below, the title deeds are registered by means of collective titles to the communities' duly incorporated associations.

17 Sarmento, supra note 9, at 279.

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posed of descendants of slaves, who still suffer from the adverse effects.

The implementation of Article 68 of the ADCT required further regulations on proceedings and requirements applicable to the rights of Quilombolas. As further explained, such regulations are currently set forth in Decree No. 4887 of November 20, 200318 and in the Normative Instruction of the National Institute of Land Reform and Colonization (Instituto Nacional de Colonização e Reforma Agrária, or INCRA) No. 57, of October 20, 2009. Both provisions determine the procedures for identification, recognition and demarcation of the lands occupied by the Quilombolas communities.

111. DOES THE CONCEPT OF INDIGENOUS OR NATIVE TITLE (DISTINCT

FROM RIGHTS, I.E., HUNTING, FISHING, TRAPPING) EXIST IN YOUR JURISDICTION? CONSIDER, FOR INSTANCE, WHETHER INDIGENOUS PEOPLE OR MEMBERS OF TRADITIONAL COMMUNITIES CAN OBTAIN PROPERTY RIGHTS OR PREFERENTIAL BUSINESS RIGHTS BASED ON THE

HISTORICAL USE OF LAND. IF THE CONCEPT DOES EXIST, ARE THERE SIGNIFICANT EXCEPTIONS TO WHEN IT WOULD APPL Y OR CAN THE

RIGHT BE EXTINGUISHED?

1. Indigenous communities

The current Brazilian Constitution in Article 231 acknowledges Indians' original rights to the lands they have traditionally occupied, and the Federal Union is responsible for the demarcation of those lands, as well as for protecting and ensuring respect for their property.

We briefly summarize the historical context of indigenous rights over the lands they occupy, as provided by the Brazilian constitu­tions:

(i) The Constitution of 1934 in Article 129 demanded respect for the silvícolas' possession of the lands where they had been permanently located, whereas the sale of these lands was prohibited;

18 Note, however, that the validity of the decree is being challenged at the Supreme Federal Court under unconstitutionality motion No. 3239, which is ongoing (there is currently a 1-1 draw on the votes by the ministers judging the case).

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(ii) Similarly, Article 216 of the Constitution of 1946 demanded respect for the silvícolas' possession of the lands where they had been permanently located, provided they did not trans­fer it;

(iii) Article 186 of the Constitution of 1967 guaranteed silvícolas permanent possession of the lands they inhabited. In addition, it recognized their right to the exclusive use of the various natural resources existing there. Article 4 also included the areas occupied by silvícolas within the assets pertaining to the Federal Union.

The Brazilian Constitution enacted in 1988 avoided the term silvícolas (forest dweller), and used expressions such as "Indians" and "indigenous peoples."

With regard to the property rights over the lands traditionally occupied by indigenous peoples, it is important to mention that the current Brazilian Constitution in Article 20, section XI, sets forth that all lands traditionally occupied by Indians are included among the assets belonging to the Federal Union. Notwithstanding, the Con­stitution acknowledges Indians' original rights to the lands they have been traditionally occupying. In other words, they have the right to possess the lands but notas a title deed, which belongs to the Federal Union.19

According to Article 231, paragraph 1 of the Brazilian Constitution, the lands traditionally occupied by Indians are those on which they live on a permanent basis, those used for their productive activities, and those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural survival, according to their practices, customs and tradi­tions. Furthermore, paragraph 2 of Article 231 states that indigenous lands are intended for their permanent possession and that indige­nous people shall have the exclusive use of the resources of the soil, rivers and lakes existing therein.20

19 José Afonso da Silva, Curso de direito constitucional positivo, at 863 (35th ed. 2012).

20 As further clarified below, pursuant to paragraph 3 of Article 231 of the Constitution, the exploitation of water resources, including the hydraulic energy potential and the prospecting and exploitation of mineral resources

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It is also important to note that the Constitution provides that indigenous lands are not subject to sale or negotiation and that the rights thereto are imprescriptible. Paragraph 5 of Article 231 of the Brazilian Constitution forbids the remova! of Indian groups from their lands, except ad referendum by the National Congress of Brazil in the event of catastrophe or of an epidemic that represents a risk to their population, or when the National Congress determines remova! to be in the interest of the country' s sovereignty, but under any circumstances the return of Indians to their lands shall occur immediately after the risk ceases.

The procedure for demarcation of indigenous lands is provided by Federal Decree No. 1775 of 1996. In summary, such procedure begins with an anthropological study of the land' s identification provided by the FUNAI, with the indigenous group's participation in ali of its phases. After that, the Minister of Justice will require further veri­fications or deny such identification and will provi de the land' s demarcation by means of an ordinance. Finally, the Brazilian Presi­dent will approve the demarcation of the indigenous land.

a. The case of Raposa Serra do Sol

The Brazilian Supreme Court has ruled21 that the date for recognition and demarcation of lands traditionally occupied by Indians is the date of the enactment of the Brazilian Constitution: October 5, 1988. Thus, lands that indigenous peoples used to occupy in the past or those that may be occupied in the future are not included in "lands traditionally occupied," except in cases of wrongful possession by non-Indians.

The case of Raposa Serra do Sol Indigenous Land was the leading case in the Supreme Court concerning the time frame for recognition of lands traditionally occupied by Indians, and provided essential conclusions22 regarding the subject. The conclusions were:

in indigenous lands, can only be performed with the authorization of the National Congress of Brazil, after consulting the communities involved and ensuring their participation in the profits of such resource exploitation activities, as set forth by specific legislation. However, such legislation is still nonexistent.

21 Tales Oscar Castelo Branco v. União, STF, Feb. 12, 2015.

22 Augusto Affonso Botelho Neto v. União, STF, Sep. 25,2009.

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(i) The timing of the occupation. The Brazilian Constitution refers to the date of its enactment (October 5, 1988) as the date fixed for the recognition of Indians' rights over the lands they traditionally occupied. These lands traditionally occu­pied do not include those that Indians may come to occupy in the future or those that were previously occupied in the past but without enough permanence to be considered tradi­tionally occupied on October 5, 1988. Setting this date reflects the constitutional purpose of avoiding limitless debate over occupation of indigenous areas. Fixing a date may also avoid fraud.

(ii) The occupation' s traditionality. In addition to the occupation on the day and year o f the Constitution' s enactment, the indigenous occupation must also be long-lasting and perma­nent; there must be "a spiritual and psychic sense in which the land belongs to the Indians and the Indians belong to the land." These lands are distinguished by the fact that each generation transfers to another, informally or without the accuracy of official records, the land that they have employed in arder to produce, create and sustain the foundations of their linguistic and social communication.

2. Quilombolas communities

As to the Quilombolas communities, the definition of "occupation" for the purposes of Article 68 of the ADCT has been the subject of various scholarly debates and court disputes. The prevailing opinion so far can be summarized as the areas that the communities were effectively occupying and using for their traditional, social and cultural habits and ways of life at the time of enactment of the Brazilian Constitution.23

The implementation of Article 68 of the ADCT required further regulations on proceedings and requirements applicable to the rights of Quilombolas. Such further regulations are currently set forth in Decree No. 4887 of November 20t, 2003 and in the Normative Instruction of the National Institute of Land Reform and Coloniza­tion (INCRA) No. 57, of October 20, 2009. The decree and the instruction determine the procedures for identification (self-determi-

23 INCRA v. Carlos Franco, TRF-3, Mar. 18, 2015.

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nation), recognition and demarcation of the lands occupied by the Quilombolas communities. It is important to note that the validity of such Decree is being challenged at the Supreme Federal Court under unconstitutionality motion No. 3239, which is ongoing and currently ata 1-1 draw on the votes by the justices of the Supreme Court.

Notwithstanding, pursuant to Article 17 of Decree No. 4,887/2003, the Quilombolas communities shall be represented by their duly incorporated associations, which are able to hold the property rights.24 The title deed cannot be individually granted, since it is recognized and registered by collective title to the communities. In addition, Article 17 prohibits the sale of Quilombolas lands.

Furthermore, ILO 169 also provides in Article 16 that the protected communities should not be removed from the lands which they occupy except when such relocation is necessary in the public interest and provided that their rights are properly observed (including their consent).

The regulations of the Quilombolas rights are found in a complex and interconnected set of statutes which should be reviewed on a case-by-case basis. Notwithstanding, the procedure for the identifi­cation and delimitation of a hypothetical Quilombola community can be briefly summarized as follows:

(i) if a certain community decides to have its rights recognized as a Quilombola community (considering that the legislation permits self-determination), it would have to liaise with INCRA for the recognition of the community and the deter­mination of the areas it was occupying;

(ii) the proceedings of INCRA must be preceded by the presen­tation by the community of the certificate of registration thereof with the Palmares Foundation;25

(iii) INCRA should then initiate technical and scientific studies to confirm the existence of the community and evaluate the

24 Alcides M. da Gama, "O direito de propriedade das terras ocupadas pelas comunidades descendentes de quilombos" (2010). Available at http:/ f www.palmares.gov.br/.

25 Palmares Foundation is an entity linked to the Brazilian Ministry of Culture and established by Law No. 7,668/1988.

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reports and documents submitted with its application. The conclusions should be included in a Technical Demarcation Report (RTID). The INCRA shall notify various entities in the course of its analysis, including the Palmares Foundation, IPHAN (Instituto do Patrimonio Historico e Artistico Nacional), IBAMA (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renovaveis), and FUNAI, among oth­ers, which may provide comments throughout the proceed­ings);

Normative Instruction of the INCRA No. 57, of October 20, 2009, establishes the proceeding for the identification and delimitation of Quilombolas lands by means of the referred Technical Demarcation Report (RTID), which must include certain essential elements that can be briefly summarized as follows:

a. Anthropological report with:

• General information about the self-determined Quilombola community;

• The municipality and area characterization;

• The data o ver the community' s birth and death rates, if available;

• The occupation history, with the characterization of the current occupation indicating the land used for housing, economic activity, paths and routes, use of natural resources and performance of religious activities and festivities, among other cultural events;

• The social organization with the group' s genealogical representation;

• The description of the group's political represen­tation;

• The analysis of the Quilombolas' logic (rationale) for the area's occupation (appropriation), considering cultural, historical and social aspects;

• The traditional aspects of the occupation by the community;

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• The description of the productive activities devel­oped by the community;

• The description of the areas essential for preservation o f resources necessary for the community' s economic and cultural well-being; and

• A conclusion with the land' s delimitation proposal.

b. Land status (registrations) survey;

c. Survey and detailed specification of situations of overlapping of claimed areas with conservation units;

d. Conclusive opinion of INCRA's technical and legal departments on the proposed area;

(iv) INCRA shall review the land status including real estate registrations. After its conclusions, it must make public the location of the lands that are subject to the proceedings and notify any affected parties, which can object to the conclu­sions of the INCRA report;

(v) should there be no objections or if they are resolved, INCRA shall then conclude the granting of the surface rights to the Quilombolas community, through deeds that are not granted to specific individuais but rather to the registered community and cannot be negotiated or offered or taken as security;

(vi) assuming for instance that a mining company needs the lands identified and granted to the Quilombolas community for its project, it would be able to obtain the mineral rights from the Federal Attorneys' Office of the National Depart­ment of Mineral Production (DNPM) but the environmental licensing proceedings would depend on the resolution of the Quilombola issue with INCRA and the competent environ­mental authority (usually IBAMA). Failure to properly address the presence of the Quilombolas could result in a challenge by public prosecutors (state and federal) to the various permits, including the applications for exploration licenses. There have been cases where public prosecutors even sought the annulment of valid environmental licenses on the basis of (i) the inappropriate evaluation of the social­environmental impacts of the activity (ii) the fact that the Quilombolas communities were not heard during the envi-

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ronmental licensing and, thus, were not able to discuss the compensatory measures so offered, (iii) ILO 169, according to which the communities can only be removed from their land upon their consent, (iv) the lack of delimitation by INCRA of the area occupied and claimed by the communities, which prevented the analysis of impacts thereof, and (v) the appli­cation of the precautionary principie;

(vii) as soon as the authorities, in particular INCRA and IBAMA, have reached an agreement, the environmental proceedings can be concluded and the mining activities can be resumed.

IV. IN WHAT SITUATION WOULD COMPANIES (AS OPPOSED TO

GOVERNMENT) BE REQUIRED TO CONSULT WITH INDIGENOUS

COMMUNITIES OR TRADITIONAL COMMUNITIES ABOUT PROJECTS OR

DEVELOPMENTS? WHAT IS THE EXTENT OF THE OBLIGATION? IS IT A

FORMAL OR INFORMAL PROCESS?

The adoption of ILO 169 plays a significant role in natural resources projects. The Convention determines that in cases in which the State retains the ownership of underground resources, governments shall establish or maintain procedures through which they shall consult these communities, with a view to ascertaining whether and to what degree their interests would be damaged, before undertaking or permitting any project for the exploration or exploitation of such resources.

Accordingly, the Brazilian Constitution sets forth in Article 176 that mineral deposits, under exploitation or not, other mineral resources, and the hydraulic energy potentials constitute, for the purpose of exploitation or use, a separate property interest from the property interest in the soil, and they belong to the Federal Union. The concessionaire is guaranteed the ownership of the mined product.

1. lndigenous communities

In addition to the provisions of Article 176 above, paragraph 1 establishes that the prospecting and exploitation of mineral resources and the utilization of the hydraulic energy potential may only take place with authorization or concession by the Federal Union. 1t must be in the national interest, conducted by Brazilians or by a company organized under the Brazilian laws and having its head office and administration in Brazil, as set forth by law, which law shall establish

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specific conditions when such activities are to be conducted in the boundary zone or in Indian lands.

Furthermore, pursuant to Article 231, paragraph 3 of the Constitu­tion, (i) the exploitation of water resources, including the hydraulic energy potential,26 and (ii) the prospecting and exploitation of min­eral resources within indigenous lands require the authorization of the Brazilian Congress, after consulting the communities involved and guaranteeing those communities participation in the profits of such exploitation activities, as set forth by specific legislation. How­ever, such legislation does not exist.

Accordingly, among the main legislative bills that address mining activities in indigenous lands are (i) Bill of Law No. 1,610/1996, which provides for the exploration for mineral resources on indigenous lands; (ii) Bill of Law No. 2,057/1991, which proposes the creation of the Statute of Indigenous Societies, including a separate chapter dealing mining, (iii) government' s proposals from 2007, and (iv) an alternative to Bill of Law No. 1,610/1996. These bills propose consultation with the communities, in accordance with the Brazilian Constitution's demands; however, they do not specify how it should occur.27

The Brazilian government has suspended the processing of applica­tions for mining concessions on indigenous lands since the Minister of Mines and Energy, Mr. Aureliano Chaves, blocked them because of the expectations for the enactment of the Constitution of 1988 and its provisions. According to the most recent publication, there are now 4,116 applications concerning 152 indigenous lands.28

26 Such requirement is also provided in Article 49, section XVI of the Constitution, which sets forth the exclusive competence of the National Congress to authorize the exploitation and use of water resources in Indian lands. There are some cases of hydroelectric dams affecting indigenous communities constructed in Brazil that can be mentioned such as Serra da Mesa Dam and Belo Monte Dam, which were authorized by the National Congress by means of Legislative Decree No. 103/1996 and Legislative Decree No. 788/2005, respectively.

27 Melissa V. Curi, "Aspectos legais da mineração em terras indígenas", 4 Revista de Estudos e Pesquisas, FUNAI, at 221 (2007).

zs Socio-Environmental Institute (ISA) (2013). Available at: https:/ jwww. socioambiental.org/.

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Therefore, the absence of specific legislation regulating mineral exploitation activities on indigenous lands as demanded by the Bra­zilian Constitution and the consequent suspension of processing of applications have caused many conflicts, especially between pro­spectors and Indians, such as those experienced on the Roosevelt Indigenous Land of the Cinta Larga people, which holds a deposit of diamonds.

With regard to the areas surrounding this indigenous land, in the case DNPM v. Federal Public Prosecutor's Office ("MPF"),29 the Federal Court of the 1st Region ruled that even though the exploitation and mining of diamonds around the indigenous land would be legal, it was important to evaluate whether in this case these activities are compatible with the public interest:

As evidenced, the presence of miners in the areas surrounding the indigenous land, as stated in the opinion of the Attorney General' s Office, encourages contraband and organized crime, thus there is no public interest in mining the surrounding areas. On the contrary, a mining concession in the sub-judice area is against the national interest and against the survival right of the indigenous people.

Moreover, the Brazilian Constitution established that any action intended to authorize the occupation, ownership and possession of indigenous lands, or the exploitation of the natural resources of the soil, rivers and lakes existing therein, is null and void, having no legal effect, except in case of the relevant public interest of the Federal Government as provided by a supplementary law, according to Article 231, paragraph 6. However, so far such supplementary law does not exist. At the moment, Bill of Law No. 227/2012 and Bill of Law No. 260/1990 are intended to address this matter but are still pending a vote in Congress.

Finally, it is worth mentioning that in Brazil the exploration and production of oil and gas activities are regulated pursuant to Article 177 of the Brazilian Constitution and Federal Law No. 9,478 of 1997, which establishes that the bidding rounds conducted by the Brazilian Agency of Petroleum, Natural Gas and Biofuels (ANP) are the legal method for the acquisition of oil and gas fields in Brazil. In this sense, the ANP has determined that indigenous lands are incompati-

29 DNPM v. Federal Public Prosecutor' s Office, TRF 1, Apr. 30, 2013.

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ble with oil production. Thus, ANP has been considering those lands as "areas of environmental sensitivity," and therefore, those areas have been excluded from the bids, by means of the provisions of Article 2 item V of Resolution No. 8/2003 of the National Energy Policy Council (CNPE).

2. Quilombolas communities

As to the areas occupied by descendants of Quilombolas communi­ties, Opinion No. 457/2010, provided by the DNPM, concluded that there is no legal impediment to the development of mining activities on lands that have already received title-deeds for Quilombolas areas, or in areas that have already been demarcated for that purpose but whose title-deed has not been registered. The opinion stated that the issuance of exploration licenses and mining concessions should occur independently of the prior consultation with those communi­ties.

However, as previously explained, it is important to highlight that pursuant to Article 15 of ILO 169, in cases in which the State retains the ownership of underground resources, governments shall estab­lish or maintain procedures through which they shall consult these communities,30 with a view to ascertaining whether and to what degree their interests would be damaged, before undertaking or permitting any project for the exploration or exploitation of such resources. Although this does not mean that there would be a prohi­bition against the exploration/ exploitation of such areas, the Quilombolas communities shall to the extent possible participate in the benefits of such activities and shall receive fair compensation for any damages which they may suffer as a result thereof.

30 It should be anticipated that the Public .Prosecutor's Office might recom­mend in writing that federal and state environmental agencies suspend environmental licenses or authorizations and refrain from renewing or granting them to companies until the affected communities are consulted as stipulated by ILO 169.

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V. DOES AN AGREEMENT WITH AN INDIGENOUS COMMUNITY NEED

TO BE REACHED IN ORDER TO DEVELOP A PROJECT THAT MAY IMPACT

A COMMUNITY? WHO NEEDS TO REACH SUCH AGREEMENT (COMPANY

OR GOVERNMENT)?

As previously explained, in Brazil there is currently no law which settles consultation procedures with indigenous peoples and Quilombolas communities. Regarding the consultation required under the provisions of the ILO 169, the Brazilian Supreme Court in the case Tales Oscar Castelo Branco v. União31 has ruled that such consultation right is not absolute and that certain interests also protected by the Constitution can, under certain conditions, limit the prior consultation procedure. Furthermore, it stated that the importance of consultation with indigenous communities does not mean that indigenous communities have veto power over decisions. The Court has also stated:

The Indians must be heard and have their interests honestly and seriously considered. It does not mean, however, that in the end the decision can only be valid if it relies on their acquiescence. In a democracy, differences are normal and expected. No individual or social group has the subjective right to unilaterally determine the State's decision. It is not the kind of prerogative that the Constitution assigned to Indians.

This conclusion has also been supported by numerous scholars: there is no right to veto or requirement that consent be obtained in the consultations under ILO 169, since in plural societies no group should have the power to impose itself on the other groups.32

VI. HOW CAN COMPANIES KNOW IF THEIR PROJECT IMP ACTS

LOCAL INDIGENOUS COMMUNITIES OR TRADITIONAL COMMUNITIES?

CAN COMPANIES CHECK A REGISTRY FOR CLAIMS MADE BY

INDIGENOUS INDIVIDUALS, GROUPS OR TRADITIONAL COMMUNITIES?

There is a national registry of the indigenous lands located in each of the 27 Brazilian Federative Units provided by the FUNAI, which can

3l Augusto Affonso Botelho Neto v.União, STF, Feb. 4, 2014.

32 Eduardo F. Bim; "A participação dos povos indígenas e tribais," 204 Revista de Informação Legislativa, at 203 (2014).

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be verified on its website.33 The records include indigenous lands under their first anthropological studies for identification by the FUNAI, those already demarcated by the Minister of Justice and those approved by the Brazilian President. The available information includes the name, the state and the municipality where those lands are located.

As to the Quilombolas communities, Palmares Foundation provides information on its website,34 such as the name, state, and municipal­ity of Quilombolas communities that have claimed certificates of Quilombolas self-determination, and certificates that have been issued by Palmares Foundation as well. Furthermore, INCRA pro­vides on its website3s records of the issued Technical Demarcation Reports (RTIDs) regarding the identification of Quilombolas lands by INCRA and INCRA Ordinances issued for recognition of Quilombolas territories.

VII. HOW DOES THE PRESENCE OF INDIGENOUS GROUPS OR TRADI­TIONAL COMMUNITIES AFFECT THE ENVIRONMENTAL LICENSING PROCEEDINGS IN YOUR JURISDICTION?

The Inter-ministry Ordinance of the Ministry of Environ­ment/Ministry of Justice/Ministry of Culture/Ministry of Health No. 60 of March 24, 2015, sets forth the proceedings for the partici­pation of the various federal agencies on environmental licensing, such as Fundação Palmares and FUNAI, as the representative gov­emmental agencies that shall provide opinions on projects that affect descendants of Quilombolas and indigenous communities, respec­tively.

Article 16 of the National Institute of Land Reform and Colonization (Instituto Nacional de Colonização e Reforma Agrária, or INCRA) No. 57, of October 20, 2009 provides that in the event that Quilombolas lands interfere or overlap with conservation units (such as a national forest), INCRA shall take the necessary measures to

33 FUNAI. Available at: http:/ jwww.funai.gov.br (search "Índios no Brasil/ Terras Indígenas").

34 Palmares Foundation. Available at: http:/ jwww.palmares.gov.br (search "Comunidades Quilombolas").

35 INCRA. Available at: http:j jwww.incra.gov.br (search "Quilombolas").

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accommodate the sustainable development of the communities with other public interests. Furthermore, INCRA, ICMBIO (Instituto Chico Mendes), the Executive Secretary of the National Defense Council and FUNAI are responsible for finding the appropriate legal instruments to reconcile the Quilombolas presence and activities with other public interests. This provision enables the authorities to exercise some discretion in finding reasonable ways of harmonizing the interests of Quilombolas communities with other important activities, such as the preservation of environmental areas and ventures in the public interest, such as a mining project. In case of controversy or a dispute, the administrative proceeding will be submitted to the Chief of Staff of the Presidency of the Republic for the merits and to the Federal General Attomey for legal matters.

It should be anticipated that the Federal Public Prosecutor' s Office ("MPF") and the State Public Prosecutor' s Office ("MPE") might recommend in writing that IBAMA, ICMBIO, and the state's envi­ronmental agency suspend environmentallicenses or authorizations and refrain from renewing or granting them to companies until the affected communities are consulted, as stipulated by ILO 169. In addition, compensation and indemnification to such communities may also be required.

Typically, the fact that a certain mining project affects indigenous or Quilombolas communities causes the environmental authorities additional concem and therefore companies should anticipate these facts and start liaising with the respective officials well in advance, in order to accommodate any requirements and offer remedies.

VIII. Do ANY INDIGENOUS COMMUNITIES OR TRADITIONAL COMMUNITIES OPERATE THEIR OWN LEGAL SYSTEM, DISTINCT FROM TYPICAL NATIONAL OR SUB-NATIONAL LAWS, WHICH COMPANIES MAY NEED TO TAKE INTO ACCOUNT?

The Brazilian State remains a single system, enforcing the legal system of the national society on the indigenous communities.36 The indigenous legal systems are treated as an organizational structure.

36 Estella L. de Souza, "Sistemas jurídicos indígenas? Diversidade jurídica e Possibilidades de diálogo," XVIII Congresso Nacional do CONPEDI, at 109 (2009).

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Pursuant to Article 9 of ILO 169, to the extent compatible with the national legal system, the methods customarily practiced by the indigenous and tribal peoples for dealing with offences committed by their members shall be respected, likewise the customs of these peoples in regard to criminal matters will be taken into consideration by the authorities and courts dealing with such cases.

The Indian Statute established in Article 57 that "the application of criminal or disciplinary actions by tribal groups, according to their own institutions, against their members will be tolerated, provided that they are not cruel or degrading, the death penalty being prohibited in any case."

Even though indigenous peoples may have their own "legal systems" with internai rules and penalties governing their relations and structures, the formal recognition of these rules has still been refuted and admitted only in exceptional cases, such as the judgment of the Criminal Suit No. 92.0001334-1,37 which refrained from punishing an Indian, Basilio Alves Solomon, accused of killing another Indian. Since Basilio had already received and served the punishment imposed by his own indigenous people, seclusion from other members of his people and isolation within the indigenous territory for a specified time, the Brazilian justice found that such punishment was similar to the penalty of imprisonment provided by the Brazilian law.

IX. ARE THERE ANY PLANS IN PLACE TO PROVIDE GREATER

PROTECTION TO INDIGENOUS OR TRADITIONAL COMMUNITIES?

Bill of Law No. 2,057 of 1991 proposes the creation of the Statute of Indigenous Societies, replacing Law No. 6,001 of 1973, the current "Indian Statute," in order to update the legislation according to the Brazilian Constitution of 1988. The bill seeks to overcome the inte­grationist approach that was behind the Indian Statute of 1973.

By contrast, the Proposed Amendment to the Brazilian Constitution No. 215, which among other resolutions transfers the authority for demarcation of indigenous lands, currently from the Federal Gov­ernment, to the National Congress of Brazil, is widely criticized by

37 Araújo, supra note 14, at 65.

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indigenous communities, since it prohibits the expansion of the demarcated areas and encU:mbers the recognition of new territories.38

38 Terra Notícias, "Por que os indígenas estão revoltados com a PEC 215?" (2015). Available at: http:/ jnoticias.terra.com.br/.

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