Dilma Rolling Back Indigenous Rights in Brazil?

Zachary Hurwitz
The Xikrin Kayapó meet with Norte Energia, S.A. during the June 2012 occupation of Belo Monte. (Photo: Amazon Watch)

The Rousseff administration may be preparing to take a humongous step backwards on indigenous peoples' rights. The Federal Counsel General, or Advocacia Geral da União (AGU) – the Executive Branch's most powerful supporting office – unilaterally decreed on Tuesday that indigenous peoples' usufruct rights do not supercede the government's interests in utilizing indigenous lands for energy infrastructure and extractive industries.

Item (V) of the AGU's ordinance states that the government has a right to build such projects "independent of consulting the affected indigenous communities or FUNAI."  FUNAI, the government's tribal relations agency, has traditionally been responsible for supporting a developer's process of prior consultation with affected indigenous people – ideally, obtaining free, prior and informed consent. 

Brazil's Federal Public Prosecutor's Office called the declaration "absurd" and "inconstitutional," and swore legal action. No precedent exists in the Brazilian judicial system that would sustain the AGU's ordinance. Items 2 and 3 of Article 231 of the Brazilian Constitution uphold indigenous peoples' "exclusive" usufruct rights on their lands, and require developers to obtain Congressional approval after having previously consulted with the affected indigenous people. Brazil's Supreme Court set a precedent in favor of these protections in a 2008 decision that upheld the continuity of the Raposa Serra do Sol indigenous territory against invasive rice growers.

Nonetheless, it looks as if the Rousseff administration – or perhaps it's the Bancada Ruralista in Congress – is quite interested in loosening these constitutional protections, and along with them, Brazil's commitments to international convenants such as ILO Convention 169.

Why, you may ask? Isn't Brazil a beacon of sustainable development, as showcased at Rio+20?

Not so. The Dilma administration is desperate to extract the bauxite, iron ore, nickel, copper, and other minerals that are deposited in the Amazon. Damming the rivers of Amazônia would provide electricity to run the smelters that produce tradeable mineral commodities. Transforming those rivers into shipping waterways would reduce the costs of export by making it quicker for minerals and agricultural goods to reach ports of call.

Amazônia's hydropower and mining potential exists precisely where the federally-protected lands of indigenous people – who depend so intimately on the water of Amazonian rivers – are located. To some economists, these areas might be known as "infrastructure bottlenecks."

But to the people who live there, these lands are known as "home." 

Both the AGU's ordinance and Article 231 mention indigenous peoples' right to "participate in the results" of development projects on their lands; meaning, to derive royalties and compensation upon consenting to such projects, a model that has been attempted elsewhere. Indeed, a bill (PL 1610/96) that offers precisely such a trade-off has floated in the Brazilian Congress for over a decade.

But the AGU ordinance is not about protecting indigenous peoples' sovereign rights. It is about opening up new "plays" for energy production and commodity extraction, to make sure Brazilian industries stay a cut above in the global economy. It is about making indigenous territories fair game.

To propose that tribes relinquish their exclusive usufruct rights over their land and their right to be previously consulted over development projects that radically change their lives – in exchange for royalties – is absurd. It is absurd in a democratic, pluricultural Brazil. It is absurd in the 21st century.

It is absurd anywhere, in any century.