Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes with interest the Government’s detailed first report, prepared with the participation of the National Indian Foundation (FUNAI), and the ample documentation attached to the report, all of which is indicative of the attention the Government accords to applying the Convention.

1. Legislation. In its last comments on Convention No. 107, the Committee noted that the Executive had submitted to the National Congress a proposal to consolidate the legislation on indigenous peoples, which implements virtually all the constitutional provisions on indigenous matters and serves as a framework for indigenous policy in Brazil. The Committee notes that the legislation has not as yet been consolidated. It hopes that during the debate on consolidation, the Government will take into account the recent ratification of Convention No. 169, particularly Article 6, under which governments are required to consult the peoples concerned through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The Committee invites the Government, should it see fit, to request technical assistance from the ILO, in consolidating the above legislation, to ensure that the various Bills are compatible with the Convention.

2. Article 1 of the Convention. Self-identification. The Committee notes that, according to the Government’s report, there are approximately 400,000 Indians in Brazil, with more than 180 languages and living in 220 villages distributed throughout the country. The Committee notes that Act No. 6,001 "Indian Statute" of 19 December 1973 indicates, in section 3, that for the purposes of the Act the following definitions apply: "Indians or forest dwellers: persons of pre-Colombian origin and ascendancy who identify themselves and are identified as belonging to an ethnic group having cultural characteristics that distinguish it from the national society". The Committee would be grateful if the Government would specify how this Article of the Convention is applied in the various censuses conducted to determine the number of indigenous persons in Brazil. It also asks the Government to provide information on indigenous peoples who have not been contacted, and particularly on the measures taken or envisaged to protect and safeguard these peoples from undesired contact with outsiders, such as timber enterprises or foreign religious missions.

3. The Committee notes that article 231 of the Federal Constitution of 1988 provides that the social organizations, customs, languages, beliefs and traditions of Indians shall be recognized, as well as their rights of origin to the lands that they traditionally occupy. However, Act No. 6,001, which is still in force as it has not been officially repealed, regulates, in section 1, the legal status of "Indians or forest dwellers and indigenous communities, with a view to preserving their culture and integrating them, gradually and harmoniously, into the national community". The Committee wishes to draw the Government’s attention to the fact that this provision of section 1, as well as others of the said Act, is contrary to the spirit of the Convention and the principles it embodies, and points out that the preamble to the Convention states: "Considering that the developments which have taken place in international law since 1957, as well as the developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards, and Recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live". The Committee hopes that the Government will bear these comments in mind in consolidating the legislation on indigenous matters and that it will keep the Committee informed in this regard.

4. Articles 2 and 33. Coordinated and systematic action with the participation of the indigenous peoples. The Committee notes that the FUNAI and the Federal Office of the Public Prosecutor are responsible for protecting the rights of indigenous peoples and that, together with the General Coordination of the Defence of Indigenous Rights (CGDDI), they have responsibility for receiving and initiating procedures for complaints of abuse of indigenous rights. The Committee would draw the Government’s attention to the fact that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of the indigenous peoples to protect the latter’s rights, and establish that programmes affecting indigenous peoples shall include: (a) the planning, coordination, execution and evaluation, in cooperation with the peoples concerned, of the measures provided for in this Convention; and (b) the proposing of legislative and other measures to the competent authorities and supervision of the application of the measures taken, in cooperation with the peoples concerned. In other words, the Convention establishes the participation of indigenous peoples, from planning through evaluation, in measures that affect them. The Committee would be grateful if the Government would provide information on the participation of indigenous peoples in the FUNAI and on the latter’s role where legislation and programmes affecting indigenous peoples are adopted, indicating in particular the role played by the FUNAI in legislation adopted during the period covered by the next report. To sum up, the Committee would be grateful if the Government would provide information on the manner in which it ensures, with the participation of the indigenous peoples concerned, the coordination of existing programmes at all stages, from planning through evaluation, in accordance with Articles 2, paragraph 1, and 33, paragraph 2(a) and (b), of the Convention.

5. Article 4. Special measures. The Committee notes that an "interministerial technical cooperation group" has been set up, in which the FUNAI takes part, to set priorities and determine emergency actions for indigenous peoples. Please provide information on the priorities established and the actions carried out. Please indicate whether the priorities include the health situation of indigenous children, particularly in areas with high mortality and malnutrition rates, and the coordination of policies with the Ministry of Health.

6. Article 5. The Committee notes the provisional measure MP No. 2186-16 of 23 August 2001, which, in Chapter III, establishes the protection of traditional knowledge through the Management and Genetic Heritage Council (CGEN) with the participation of the FUNAI. Please indicate, for instance, whether any intellectual property has been registered for indigenous communities and whether the latter benefit therefrom.

7. Article 6. Consultations. The Committee notes that the Federal Constitution (article 231(3)) provides that the peoples concerned must be consulted before the Congress issues authorizations, in instances where the indigenous population is affected as in the case of use of water resources and the exploration and exploitation of mineral resources. Since this information concerns consultations regarding natural resources, the Committee will come back to the matter in examining the application of Article 15. Article 6 is more general in scope and concerns procedure. The Committee points out that under this Article, the peoples concerned must be consulted whenever consideration is being given to legislative or administrative measures which may affect them directly. Please provide information on the manner in which the legislation provides for consultation in the event of administrative and legislative measures, in accordance with Article 6(1)(a) of the Convention. Please also provide information on the manner in which such consultations are conducted, particularly in the light of the basic requirements for consultations (prior consultations, conducted through representative institutions of the indigenous peoples concerned and by means of appropriate procedures).

8. Article 7. Participation. The Committee notes that, according to the report, indigenous peoples have the greatest interest in the protection of their territories and that, consequently, members of such communities are included in any supervisory and protective measures conducted on indigenous land. It notes the examples of participation cited, including that of the Kapayó and Pará Indians. The Committee would be grateful if the Government would send detailed information on how it provides for participation by indigenous peoples in the administration of state-owned forest areas. Please also indicate whether legislation provides for such participation in all cases, indicating any exceptions, and whether studies have been carried out in cooperation with the peoples concerned to assess the social, spiritual, cultural and environmental impact on these peoples of development activities planned on land they occupy or otherwise use.

9. Articles 8 to 12. Administration of justice. The Committee notes that the Federal Constitution provides, in article 232, that indigenous peoples and their communities and organizations may legitimately take part in legal proceedings to protect their rights and interests, with the Public Prosecutor intervening at all stages of the proceedings. It notes, however, that sections 7-11 of the Indian Statute, "Assistance or Guardianship", establishes legal guardianship of indigenous peoples and their members. It also notes that according to section 9, any indigenous person may apply to the competent judge for release from guardianship and assume full civil capacity provided the following requirements are met: minimum age of 21 years; knowledge of the Portuguese language; ability to carry out a useful activity in the national community; reasonable understanding of the national community’s customs and habits.

10. The Committee further notes that in section 56, the Indian Statute provides that where an indigenous person is convicted of a criminal offence, the penalty shall be mitigated and that, in executing it, the judge shall take into account the degree of the person’s integration in a forest community (integración silvícola). Section 57 provides that, in the case of tribal groups and in accordance with the latter’s own institutions, the imposition of penal or disciplinary sanctions on their members shall be allowed provided the sanctions are not cruel or degrading, the death penalty being prohibited in all cases.

11. The Committee points out that legal guardianship by the Union of Indigenous Peoples, while affording these peoples some protection, is in direct conflict with the Convention and with article 231 of the Federal Constitution as referred to above in view of the protectionist nature of guardianship and the emphasis placed on autonomy in the Convention. For example, it conflicts with Article 8, paragraph 3, according to which the application of paragraphs 1 and 2 of this Article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties. It notes, however, that indigenous people may relinquish guardianship voluntarily. Please indicate the percentage of indigenous people under guardianship and the consequences of release from guardianship in terms of the rights laid down in the Convention. The Committee also repeats its previous observation that it hopes that the Government will take into account its comments when consolidating the legislation on indigenous issues and that it will keep the Committee informed in this respect.

12. The Committee also points out that there is an obvious contradiction between section 9 of the Indian Statute and Article 12 of the Convention which provides that the peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights and that measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means. Nevertheless, under section 9 of the Indian Statute, the Portuguese language is a requirement for release from guardianship, whereas Article 12 of the Convention establishes an individual and collective right for indigenous peoples to take legal action in their own language. In the Committee’s view, to require an indigenous person to speak Portuguese in order to be released from guardianship and take legal action appears inconsistent with the Convention. It would be more consistent with the Convention if, as well as being able to take legal action in her or his own language, indigenous people were afforded assistance and protection by the FUNAI or the Ministry of the Interior in a manner other than that provided by guardianship. The Committee would be grateful if the Government would state whether studies have been conducted on this matter and would comment on this paragraph indicating any possible alternatives to guardianship.

13. Land. The Committee notes that the criteria for identifying and establishing borders for indigenous lands are set forth in Decree No. 1775/96 and Ordinance No. 14/MJ of 1996 and that the work of establishing borders is carried out in accordance with the Handbook of Technical Standards for Demarcating Indigenous Lands. It notes that, at present, more than 70 per cent of indigenous lands recognized in Brazil have been demarcated and approved. It also notes that of the lands demarcated or in the process of approval, 90 per cent are located in the "Legal Amazon". Please indicate how Article 14, paragraph 3, of the Convention is applied with regard to procedures for resolving land claims by the peoples concerned. The Committee notes that the problem is not one of demarcation and approval, but of how to respect in practice the integrity of demarcated and approved indigenous lands: as noted in the Committee’s comments under Convention No. 107, there are problems linked to the presence of private owners, timber and agricultural and stock-raising enterprises setting up on indigenous lands. The Committee would be grateful if the Government would indicate, out of the total area of land demarcated and approved, the area of the land which is free of dispute and in which indigenous peoples can live in peace, and the percentage of land in which there is dispute and in which, despite regularization, it is still not possible to ensure that the peoples concerned are able peacefully to exercise their rights over the land. Please also indicate the strategy for resolving these problems, as stipulated in the Convention.

14. Raposa del Sol. The Committee notes the information supplied by the Government in response to its comments on Convention No. 107, indicating the decision of the Federal Supreme Court for "discontinuous" approval of the indigenous land Raposa del Sol in Roraima, and that the FUNAI and the Federal Office of the Public Prosecutor are exploring ways of preventing these lands from being divided into islands. Please continue to provide information on the development of this situation and in particular about the conflicts that have arisen between agricultural producers and indigenous people. In the same comments, the Committee noted persistent reports of several serious problems caused by the construction of a military base in Roraima, opposed by the Yanomami indigenous tribe, a particularly vulnerable population which has been seriously affected. The Committee requests the Government to provide information on further developments in this matter.

15. Article 15. Consultation and natural resources. With regard to forestry exploitation, the Committee notes that provisional measure No. 2,166-67 of 2001 provides for amendment of the Forestry Code of Brazil to allow exploration for forestry resources in indigenous lands and that the forestry management plan is to be examined by the FUNAI and by Ibama. With regard to mineral exploration and exploitation, the Committee notes the information in the report concerning the monopoly of the Union, and notes that exploration for these resources is subject to authorization from Congress and consultation of the communities affected. According to the report, the matter is highly complex because major public and private interests are involved. The Committee could be grateful if the Government would state how the legislation makes provision for the consultations established in Article 15, the purpose of which is to ascertain whether and to what degree the interests of the peoples concerned would be prejudiced, before undertaking or permitting any programmes for exploration, and how it ensures that the peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damage. Please provide information on the participation by these peoples in the benefits and compensation provided pursuant to this Article of the Convention and article 231 of the Constitution.

16. Article 16. Relocation. The Committee notes that article 231(5) of the Constitution prohibits the relocation of indigenous peoples except in the event of a disaster or epidemic endangering the population or the interests of sovereignty, and guarantees the right to return. Please indicate any relocations during the period covered by the next report, stating their causes and describing the circumstances in which they were carried out.

17. Article 18. Intrusion upon indigenous lands. The Committee notes the various actions undertaken by the FUNAI together with the indigenous people against intrusion by independent gold seekers (garimpeiros), and notes that the actions are ongoing in Roraima. This is a matter that the Committee has been examining for several years under Convention No. 107. Please provide information on the unlawful occupation of land by garimpeiros and by estate owners, who sometimes acquire indigenous land unlawfully. Please indicate the measures for preventing lands in the process of approval from being appropriated by private persons or used without consultation of the indigenous peoples.

18. The Committee notes the documents attached to the Government’s report containing information on assaults and killings of indigenous persons over issues of land, for which complaints were filed with the FUNAI, and on indigenous lands, maps and the relationship between crime and land disputes. It notes with concern the number of killings of indigenous people, including representatives of the indigenous communities of Rondonia and members of the Pataxó Hã-Hã-Hãe. It also notes the killings of Truká indigenous people in the northwest of Brazil in 2000, including the community chief and his son. According to the FUNAI, these crimes are not isolated incidents. The Committee requests the Government to provide information on the measures taken to prevent these crimes related to land disputes and to identify and try the perpetrators and impose dissuasive sanctions.

19. Article 19. National Agrarian Programmes. The Committee notes that in 2004 representatives of the Federal Government and indigenous organizations, with the participation of financial agents, established a working group to facilitate access to agricultural credit for indigenous peoples. What makes this a complex matter is that the indigenous peoples - although land regularization has been completed - have usufruct, not ownership, of the land. The Committee would be grateful if the Government would provide information on the follow-up of this issue and on developments regarding the Programme of Technical Assistance and Rural Extension.

20. Article 20. Recruitment and conditions of employment. The Committee would be grateful if the Government would indicate the main problems encountered in applying this Article to indigenous workers, and the role played by the FUNAI, with regard to indigenous people not under guardianship. Please provide information on the activities undertaken by the labour inspectorate in supervising the application of this Article of the Convention to indigenous workers.

21. In its previous observation on Convention No. 107, the Committee noted with interest the Community Charter on Social Rights in Indigenous Labour Relations, concluded on 2 May 2002 by indigenous representatives, the government of Mato Grosso do Sul, the FUNAI, other state institutions, the Order of Attorneys of Brazil, the Regional Indian Missionary Council and enterprises in the State of Mato Grosso. It noted that, while allowing individual contracts, the Charter establishes that recruitment of indigenous persons shall take place by means of team contracts, to be recorded in the Registers of Labour and Social Insurance, and determines the applicable laws, establishes a fine of 100 UFIRS (payable to the indigenous communities) per worker and per infringement in the event of failure to comply with any clause of the Charter and contains other provisions on medical examinations, the number of workers, periods of leave and the promotion of this type of contract. The Committee expressed the hope that team contracts would make an effective contribution to combating the unlawful employment of indigenous people in the State of Mato Grosso. The Committee requests the Government to continue to provide information on the use made of such contracts in practice, indicating whether a signification number of enterprises and indigenous workers have signed team contracts, and pointing out any problems that may have been encountered, any infringements reported and sanctions imposed, together with any other information which may help to provide a better appreciation of the practical results of team contracts. The Committee notes the information supplied by the Government on the activities of the CGDDI with regard to the work situation of indigenous people in Mato Grosso do Sul. It notes that there are approximately 400 labour disputes involving indigenous persons and that agreements were reached for compensation or retroactive entry in the register. The Committee requests the Government to continue to provide information on this matter and to state whether any indigenous workers are being subjected to forced labour practices in Mato Grosso and Mato Grosso do Sul or in other regions.

22. Articles 21 to 23. Vocational training, handicrafts and rural industries. The Committee notes the various programmes referred to in the report, and the activities of the Micro- and Medium-Sized Enterprises Support Service (SEBRAE) and the National Industrial Apprenticeship Service (SENAI), inter alia. The Committee also notes that UNESCO has set up a cooperation contract with the FUNAI to develop and strengthen indigenous cultures in Brazil. The Committee would be grateful if the Government would continue to provide information on the measures taken to apply these Articles.

23. Social security and health. The Committee notes that since 1999 the Ministry of Health, particularly the National Health Foundation (FUNASA), has been responsible for indigenous health. This means that the structure whereby the FUNAI provided support for indigenous health through the Casas do Indio, has been transferred to FUNASA, removing from the FUNAI an essential element for providing indigenous healthcare. One serious problem is that there are no shared data between FUNASA and the FUNAI allowing the provision of comprehensive care to these peoples. According to FUNASA data, infant malnutrition is not confined to indigenous villages in Mato Grosso do Sul and is to be found in other states. The child mortality rate is higher than that of black children or white children. The highest child mortality rates are to be found in the communities of Alto Rio Juruá (AC), Xavante (MT) and Rio Tapajós (PA). The Committee notes further that in Maranhão, in March 2005 alone, 14 Guajajara children died of malnutrition. The Committee observes that the problem is multifaceted and involves among other factors the high mortality rate among indigenous children in several states and death from malnutrition among indigenous children. The Committee is bound to note that FUNASA is an organ of the Ministry of Health, apparently without specialization on indigenous questions which would allow it to deal with these serious problems in a comprehensive manner. The Committee accordingly asks the Government to indicate whether the special emergency measures it referred to previously include mechanisms for coordination between the policies of the FUNAI and the Ministry of Health, and urges the Government to take measures rapidly to reactivate the health system for indigenous peoples, if it has not already done so. It would be grateful if the Government would provide information on this matter, and particularly on measures taken or planned by both institutions - and the coordination between them - to deal with the above problems of death from malnutrition and infant deaths which, although public health issues, are also related, inter alia, to the maintenance of lands traditionally occupied by indigenous peoples which are essential to their survival and contact with the dominant society.

24. Education and the media. The Committee notes that according to the UNDP report "Democracy in Latin America: Towards a citizen’s democracy", published in 2004, significant progress has been made in a number of countries in protecting indigenous rights and, although several constitutions recognize the multinational and pluriethnic nature of their societies, the legislation is wanting and their languages continue to go unrecognized as official languages. Table 23 of the report indicates that, in Brazil, no indigenous language has been given recognition as an official language of the State. The Committee would be grateful if the Committee would indicate the manner in which the development and practice of indigenous languages is promoted and asks it to continue to provide information on the application of the Articles included in this section.

25. Article 32. Contacts and cooperation across borders. The Committee notes the Project on the Protection of Indigenous Lands and Peoples of the Legal Amazon (PPTAL), which is part of the pilot programme for the protection of tropical rainforest under the responsibility of the presidency of the FUNAI. The Committee would be grateful if the Government would indicate whether other governments of adjacent countries and indigenous peoples participate across borders in the above project or other joint projects. The Committee notes that according to the Government, the possibility of joint operations between Brazil and the Bolivarian Republic Venezuela is being studied with a view to combating unlawful mining on indigenous lands. The Committee would be grateful if the Government would provide information on developments in the above discussions and agreements with Venezuela for affording the protection laid down in the Convention to peoples separated by international borders.