By: Andrew Johnson
Fires still threaten large expanses of the Amazon rainforest, and the policies of President Bolsonaro and the Brazilian government encourage the Amazon’s continued destruction. The pattern occurs in a similar manner in several Brazilian states, where plots of land are illegally seized, cleared, and then set on fire to make room for the agriculture, logging, and mining industries to access natural resources previously protected under environmental and socio-economic safeguards. President Bolsonaro’s policies have created a culture of impunity for these crimes, and extractive industries are driving the conduct at the acquiescence of the Brazilian government. The environmental degradation of the Amazon has serious environmental implications because the Amazon is essential to maintaining biodiversity as it is home to ten percent of all wildlife species. Further, it is a massive carbon sink, which sequesters carbon from the atmosphere and produces oxygen for the planet. The risks that these fires pose to biodiversity and climate change mitigation implicate a variety of legal issues. However, there is an equally important human rights issue playing out in the context of the Amazon: the right of indigenous peoples to their lands and livelihoods.
There are approximately 305 indigenous tribes living in Brazil, which totals nearly 900,000 people. About half of the indigenous peoples in Brazil call the Amazon their home and sustain their livelihoods on the rainforest’s resources. President’s Bolsonaro’s policies that encourage the illegal seizure and burning of lands specifically target indigenous territories in the Amazon, and thus violate the rights of indigenous peoples under international law and Brazil’s own constitution.
Under the International Labor Organization’s (ILO) Convention 169 on Indigenous and Tribal Peoples (Convention 169), indigenous peoples have ownership and possessory rights over their lands which they traditionally occupy or use for subsistence activities. Additionally, governments have the responsibility to identify lands indigenous peoples traditionally own and implement effective protections of the lands and natural resources. Brazil ratified Convention 169 in 2002, and as a result is legally bound by its provisions. Moreover, Brazil has enshrined the right of indigenous peoples within its Constitution. The Brazilian Constitution codifies indigenous peoples’ right to land they traditionally occupied and used, as well as their right to participate in the extraction and use of natural resources on their lands.
However, President Bolsonaro’s policies violate indigenous peoples’ rights to their traditionally owned land. When President Bolsonaro took office, he removed the ability of the National Indian Foundation (FUNAI in Portuguese), Brazil’s indigenous affairs agency, to identify and title indigenous lands. He then granted the authority to the Agricultural Ministry, which stalled the land titling of more than 230 indigenous communities. He also stripped The Brazilian Institute of Environment and Renewable Natural Resources (IBAMA in Portuguese) of its jurisdiction over environmental crimes, like deforestation, and vested the Agricultural Ministry with the power to manage Brazil’s forests. Furthermore, lawmakers and allies of the agriculture, logging, and mining industries announced plans to alter legislation to permit industrial activities, like agriculture, mining, and logging, in indigenous territories, even though the legislation would be in direct contravention to the Brazilian Constitution.
These policies have led to the invasion of indigenous lands and illegal industrial activity in indigenous territories. Amnesty International conducted interviews with indigenous leaders in three territories across Brazil in April 2019. According to the indigenous leaders, they have reported illegal seizures of land and logging to government officials; however, there have been limited responses from governmental officials, none of which have stopped the illegal land invasion and logging. In fact, many indigenous leaders have received death threats for speaking out against this illegal activity. The response of the government has been entirely inadequate due to the President Bolsonaro’s divestment of authority from FUNAI and IBAMA to the Agricultural Ministry.
The policies that encourage the illegal invasion and extraction of resources in the Amazon violate Convention 169 of the ILO and the Brazilian Constitution because they infringe upon indigenous peoples’ rights to their land and the usufruct rights that accompany their land. In 2019, the rate of deforestation has increased 80 percent and the National Institute for Space Research (INPE in Portuguese) recorded 73,000 fires since the start of the year. The destruction of the Amazon in indigenous territories is a clear violation of article 15 of Convention 169 because the Brazilian government is not dispensing with its duty to take effective measures to protect indigenous peoples’ resources in lands they traditionally own and use. Furthermore, the Brazilian government is in violation of articles 17 and 18 because it has not upheld proper complaint procedures and penalties for land disputes. President Bolsonaro stripped IBAMA of its ability to combat environmental crimes, officials are not responding to the reports of indigenous leaders, and the monitoring of deforestation and logging has decreased significantly due to budget cuts.
Moreover, President Bolsonaro’s policies violate Article 231(2) of the Brazilian Constitution. The encouragement of private industries to extract resources from indigenous territories denies indigenous peoples their right to benefit from the use of the land, or usufruct rights. Indigenous peoples rely on the Amazon for food, shelter, and medicine as well as cultural survival. The destruction of the Amazon denies indigenous peoples the benefits of the land, which they have a constitutional right to access.
In order to protect the Amazon and indigenous peoples’ rights, the Brazilian government should, in the very least, reevaluate and repeal President Bolsonaro’s policies that favor extractive industries. Additionally, the government should restore FUNAI and IBAMA to their full operational capacity and encourage the agencies to protect indigenous rights and combat environmental crimes occurring in the Amazon. Finally, the government should implement the concept of free, prior, and informed consent as a fundamental right in the Brazilian Constitution. To preserve biodiversity, combat climate change, and protect human rights, it is absolutely imperative that indigenous peoples are at the forefront any policy decision and legislative action in the future.
 See David Child, The Amazon is burning: What you need to know, Aljazeera (Aug. 27, 2019) https://www.aljazeera.com/news/2019/08/amazon-burning-190823082046821.html (last visited Sept. 10, 2019).
 See Amnesty International, Brazil: Authorities must investigate and prosecute those responsible for destruction of the Amazon (Sept. 2, 2019) https://www.amnesty.org/en/latest/news/2019/09/brazil-must-investigate-and-prosecute-those-responsible-for-destruction-of-the-amazon/ (last visited Sept. 10, 2019).
 See Amazon Watch, Complicity in Destruction II: How Northern Consumers and Financiers Enable Bolsonaro’s Assault on the Brazilian Amazon 1, 3 (2019) https://amazonwatch.org/assets/files/2019-complicity-in-destruction-2.pdf.
 World Wildlife Fund, The Amazon https://www.wwf.org.uk/where-we-work/places/amazon#wildlife-that-live-in-the-amazon (last visited Sept. 10, 2019).
 Child, supra note 1.
 Amnesty International, Brazil: Risk of bloodshed in the Amazon unless government protects Indigenous peoples from illegal land seizures and logging [hereinafter Brazil: Risk of Bloodshed in the Amazon] (May 7, 2019) https://www.amnesty.org/en/latest/news/2019/05/brazil-risk-of-bloodshed-in-the-amazon-unless-government-protects-indigenous-peoples-from-illegal-land-seizures-and-logging/ (last visited Sept. 10, 2019).
 Survival International, Brazilian Indians, https://www.survivalinternational.org/tribes/brazilian (last visited Sept. 10, 2019).
 Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) art. 14, Sept. 5, 1991, 76th ILC Session; Constitution of Brazil art. 231 (2014).
 Id. at arts. 14, 15.
 Ratifications of C169 – Indigenous and Tribal Peoples Convention, International Labor Organization https://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314 (last visited Sept. 10, 2019).
 Constitution of Brazil, art. 231.
 Id. at art. 231(3).
 See Amazon Watch, supra note 3 at 3.
 See id.
 See id.
 See id.
 See id. at 4. See also Constitution of Brazil, art. 231(3).
 See Brazil: Risk of Bloodshed in the Amazon, supra note 6.
 See Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) arts. 14, 15; Constitution of Brazil, art. 231.
 See Child, supra note 1.
 See Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169)art. 14.
 See id. at arts. 17, 18.
 See Amnesty International, supra note 2.
 See Constitution of Brazil, art. 231(2).
 See id.
 See Survival International, supra note 7.
 See Constitution of Brazil, art. 231(2).