Brazil Law

Development, Conservation, and Indigenous Rights in Brazil
Author(s): Marc Pallemaerts

Source: Human Rights Quarterly, Vol. 8, No. 3 (Aug., 1986), pp. 374-400
Published by: The Johns Hopkins University Press
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HUMAN RIGHTS
QUARTERLY
Development, Conservation,
and
Indigenous Rights
in Brazil
Marc Pallemaerts *
INTRODUCTION
The Amazon Basin is the
largest tropical
moist forest area in the world. The
greater part
of the Amazon forest, over three-fifths of the basin's total area,
lies in
Brazil, covering
42
percent
of that
country's
national
territory.
In 1970
the total
indigenous population
of Brazil numbered 120,000.
The
majority
of
the Indians of Brazil (61 percent)
live in Amazonia1 in small, scattered tribal
groups. They
are
largely dependent
on the
tropical
forest for their cultural
and economic survival.
Brazil's
military
rulers and economic elite view the Amazon forest as a
vast
"unoccupied"
and
"unproductive"
frontier area which is to be "devel-
oped"
and
integrated
into the national
economy. Pursuing
a
policy
which
had been
planned
since the end of the 1940s, in the
early
1970s the
military
government,
with both the assistance of the World Bank,
the Inter-American
Development Bank, the United States
Agency
for
International Develop-
ment, and other international
lending agencies,
and the active
participation
of transnational
corporations
and national
entrepreneurs,
embarked on the
"National
Integration
Plan" (Plano de
IntegraAo Nacional)2 an ambitious
program
for the
development
of the Amazon
region.
The first
step
in this
program
was the
building
of thousands of miles of roads, including
the
famous Transamazonian
Highway,
to make the area accessible and to
open
*
The author gratefully acknowledges the support of the Belgian American Educational
Foundation, which made this
study possible.
This article was
completed
before the
restoration of civilian
government
in Brazil and does not take account of
any changes
in
law and
policy
that
may
have occurred since.
1. In this article, the term "Amazonia" is used to
designate
the Brazilian
part
of the Amazon
Basin, extending
over the states and territories of Amazonas, Par~, Maranhao,
Mato
Grosso, Acre, Rond6nia, Roraima, Amapa,
and Goias.
2. Decree-Law No. 1.106 of June 1970.
374
Indigenous Rights
in Brazil 375
it
up
for economic activities. A
subsidiary
aim of this
road-building
scheme
was the resettlement of thousands of landless
peasants
from the
poverty-
stricken northeast,
who were
given
small
plots
of land
along
the roads as a
substitute for more drastic land
reform.3
One hundred kilometer-wide
strips
of rainforest on either side of the entire Amazon road network, legally
re-
garded
as
"vacant
lands" (terras devolutas), were declared the
property
of the
federal
government by proclaiming
them "areas
indispensable
for national
security
and
development."4
These areas were later made available for com-
mercial
agricultural
colonization
projects.5 Although supposedly
this was
done "without
prejudice
to .. the
rights
of the
[Indians],"6
numerous
In-
dian tribes were
dispossessed
of their lands
by
this scheme. In 1970 Presi-
dent Medici stated official
government policy
as follows: "Men without land
in the Northeast. Land without men in the Amazon."7
The
government
also instituted a scheme of fiscal incentives to
promote
private
investment in the Amazon
region.8
Taking advantage
of these tax
breaks, United States, Japanese,
and
European
transnational
corporations,
as well as Brazilian
entrepreneurs,
set
up
commercial
logging, mining,
and
cattle-ranching operations throughout Amazonia, all
mainly export-oriented
economic activities of little or no benefit to the rural
poor.9
These
"development"
activities have been
extremely destructive, both
for the
indigenous peoples
of
Amazonia, and for the
ecological diversity
and
3. F.
Cardoso
and G.
Miller,
Amaz6nia:
Expansao
do
Capitalismo
121-122 (1977).
4. Decree-Law No. 1.164 of 1
April 1971, 1971 111
Colegio das Leis
[Colego] 9, arts. 1, 2.
5. Decree No. 68.524 of 16
April 1971, 1971 IV
Cole(go
40, art. 1(c).
6. Decree-Law No. 1.164, supra note 4, art. 5(a).
7.
Quoted in S. Davis, Victims of the Miracle 39 (1977).
8. Law No. 5.174 of 27 October 1966.
9. The
large-scale livestock
projects which have caused most of the overall deforestation
and received the bulk of
government financial
support
have created
very
little
perma-
nent
employment. J. Eglin
and H.
Thery,
Le
Pillage
de L'Amazonie
123-124 (1982).
"Since the
profits
are
repatriated
almost
entirely
to southern Brazil, the cattle
ranching
emphasis
has
brought
no
lasting
benefits to the
people
of Amazonia." Goodland, "Envi-
ronmental
Ranking
of Amazonian
Development Projects
in Brazil," 7 Envtl. Conservation
9, 10 (1980). On the
contrary,
the development projects
have
uprooted and
displaced
the local population which earned its livelihood from the forest in a sustainable manner,
not
only
the
indigenous people,
but also other inhabitants of the forest who lived
by
gathering
wild nuts, rubber, or
precious minerals.
Eglin
and
Thery, supra,
at 127; Lutzen-
berger,
"The
World
Bank Polonoroeste
Project:
A Social and Environmental
Catastro-
phe,"
15
Ecologist
69 (1985). Agricultural colonization schemes have failed to
provide
landless peasants with a stable livelihood because of the
unsuitability
of Amazonian soils
for sustained
agricultural production. Many settlers are forced to
give up their
plots after
a few
years and become landless wanderers
again. Guppy, "Tropical Deforestation," 62
Foreign
Aff. 928, 942 (1984). In
spite
of the
agricultural settlement
projects
in Amazonia,
which are
theoretically intended to
provide land for landless
peasants,
the overall con-
centration of land tenure has continued to increase
throughout
Brazil since the start of
the Amazon
development program. According
to the official statistics of
INCRA, the
government's institute for
agrarian reform, the
proportion
of the arable land area oc-
cupied by large estates
grew from 49
percent to 57
percent between 1967 and 1978,
while the total area in the hands of
smallholders
decreased. Eglin
and
Thery, supra,
at 96.
376 PALLEMAERTS
stability
of the Amazonian forest
ecosystem.
Numerous Indian tribes have
been
dispossessed
of their lands or exterminated
by government agencies
and
private developers
under the
guise
of "relocation" and
"pacification."
As
one
general unambiguously put
it: "I am of the
opinion,
that an area as rich
as this-with
gold,
uranium and diamonds-cannot afford the
luxury
of con-
serving half
a dozen Indian tribes who are
holding
back the
development
of
Brazil."10
Another
consequence
of the economic
development
of Amazonia
is
rapid
deforestation. It is estimated that at least 10
percent
of the
original
Amazon forest has
already
been
destroyed
and that, if
present
trends con-
tinue, most of it will have
disappeared by
the turn of the
century,
with an ir-
reparable
loss of
genetic
resources and serious
ecological, hydrological,
and
climatic effects.1
Although
it is clear that "the causes for the
rapacious
destruction of the
Amazon rain forest are to be found in the same factors that are
uprooting In-
dian and
peasant populations
in Brazil,"'2 the Brazilian
government
is
neither
willing
nor able to tackle the root causes of these economic and
social
problems
13
since
doing
so would
inevitably
call into
question
the le-
gitimacy
of the
development
model to which it adheres. Instead, the
govern-
ment is
fighting
the
symptoms
of the
problem by applying window-dressing
measures which do not
require
a fundamental reversal of entrenched
policies.
The Brazilian
government
has
recently
become aware of the
potentially
disastrous
consequences
of continued
large-scale
deforestation and has
created a number of national
parks
and other reserves in Amazonia in order
to
preserve "representative samples"
of both the
tropical
rain forest and its
genetic
resources.14 This conservation
program
is viewed as an
integral
ele-
ment of the
government's
Amazon
development policy s
and has received
technical and financial
support
from some of the same international
agen-
cies which
helped promote
much of the destructive
"development"
in the
10. Statement by General Fernando Ramos Pereira, Governor of Roraima, March 1975,
quoted
in
Dqvis,
supra
note 7, at 103.
11. Estimates of deforestation in Amazonia
very widely
and there has been a lot of con-
troversy about rate of destruction of the Amazon forest. The
figures
cited here are from
Goodland, supra
note 9, at 26 n.5, where a brief overview of a number of
disparate
estimates can be found.
12. Davis, supra
note 7, at 162.
13. See Ledec, "The Political
Economy
of
Tropical Deforestation," in Divesting
Nature's
Capital:
The Political
Economy
of Environmental Abuse in the Third World, 179 (H.
J.
Leonard, ed. 1985); Plumwood and
Routley,
"World Rainforest Destruction - The Social
Factors," 12
Ecologist
4 (1982).
14.
Wetterberg,
Prance and
Lovejoy,
"Conservation Progress
in Amazonia: A Structural
Review," 6 Parks, July-Sept. 1981, at 5.
15. Pddua and Quintao,
"Parks and
Biological
Reserves in the Brazilian Amazon," 11 Ambio
309 (1982).
Indigenous Rights
in Brazil 377
first
place.'6
Rather than
recognizing
the Amazonian
Indians' primary
inter-
est in forest conservation and
reversing
the common structural causes of de-
forestation and
despoliation
of
indigenous peoples,
the
government pursues
separate,
uncoordinated
policies
of Indian assimilation and selective forest
protection.
These
policies
are
antagonistic
to both the fundamental
principle
of territorial
integrity
and the
right
to economic and cultural self-
determination of the Amazonian Indians, because
they
are
completely
subordinated to the Brazilian
military
and economic elites' interests in "na-
tional
security"
and "national
development."
In
this article I will
attempt
to demonstrate how Brazilian national
legis-
lation, as well as the international
legal
framework for the
"protection"
of In-
dian land
rights
and the
development
and conservation of Amazonian forest
resources, reflects
political
and economic
objectives
which are
contrary
to
the interests of the
indigenous peoples
of the Amazon Basin and thus fail to
protect
their
rights adequately.
II. THE NATIONAL LEGAL FRAMEWORK
A. The
Legal
Status of Indians in Brazil
It
is not the
purpose
of this article to
give
a detailed overview of all
aspects
of
the
position
of Indians in the Brazilian
legal system,17
since the focus here is
on land
rights
and the
right
to forest natural resources. However, at the
outset,
I
would like to
emphasize
three
aspects
of the
general legal
status of
indigenous peoples
in Brazil which are relevant to the
specific questions
which are the
subject
of this article.
First,
it should be noted
that, unlike North American Indians, the Indian
tribes of Brazil cannot
rely
on
treaty rights
which can be vindicated before
national courts, albeit
imperfectly.
No treaties were ever concluded be-
tween Brazilian Indians and the
Portuguese
colonists.
Consequently,
the
rights
of
indigenous peoples
within the Brazilian
legal system
are determined
entirely by
Brazilian national
law, subject only
to the international
legal
obli-
gations
of Brazil
vis-a-vis
other states. One
example
is
I.L.O.
Convention No.
107,18
to which Brazil is a
party. However,
that convention is of no
practical
16. The F.A.O., for
example,
which cosponsored the
survey
of areas
deserving protection,
earlier provided financial assistance for livestock
development
in the Amazon.
Eglin and
Thery, supra note 9, at 68.
17. For a comprehensive general overview, see Medina, "The
Legal
Status of Indians in
Brazil," 3 Am.
Indian
J.,
Sept. 1977, at 12.
18.
Convention Concerning
the Protection and
Integration
of
Indigenous
and Other Tribal
and Semi-Tribal Populations in Independent Countries (I.L.O. No. 107), 26 June 1957,
328 U.N.T.S. 247.
378 PALLEMAERTS
significance
to the
indigenous peoples themselves, since, regardless
of
whether Brazilian law
recognizes
the
supremacy
of international law and
whether individuals would be able to claim
any rights
derived
directly
from
this convention before Brazilian courts,
it is
questionable
whether Brazil in
fact violates the
vague
and
inadequate
standards of the
convention.'9
Of
even more
importance,
Indians have no access to the courts of Brazil.
The
Brazilian
Civil Code defines Indians, legally
known as silvicolas or
"forest-dwellers," as
"relatively incapacitated"
and
subject
to a
special legal
regime
of
tutelage.20
This
regime
is laid down in the Indian Statute, a law
which, according
to its own terms, "regulates
the
juridical
situation of the In-
dians or
forest-dwellers."21
Thus
Indians
are
legally
minors under the
guard-
ianship
of the Brazilian state. The
tutelage
is exercised
by
a federal
govern-
ment
agency
in
charge
of Indian affairs, known as the National
Indian
Foun-
dation
(Funda~go
Nacional do indio- FUNAI).22 The
consequences
of the
Indians'
legal incapacity
as
regards
land
rights
are twofold: Indians are
legally
incompetent
to own land 23 and cannot initiate
legal proceedings
in their
own
right24
to defend their
precarious rights
of
"possession"
and "usufruct"
of the lands
they
inhabit.25
FUNAI is
presumed
to
represent
and
protect
the interest of the
indige-
nous communities
subject
to its
guardianship. Indeed, the law
provides
that
it is FUNAI's
duty
"to assume
judicial
or
extrajudicial
defense of the
rights
of
the forest-dwellers."26 If, however, FUNAI
in fact
fails
to fulfill its
duty
and to
protect
Indian
rights against
third
parties
or subordinates the interests of the
Indians to the
imperatives
of the
government's development policy,
as is
often the case, no
legal
recourse is available.
Although
the law
stipulates
that
"the tribal
groups
or native
community
are
legitimate parties
for the defense
of their
rights
in
justice,"
27
they
cannot themselves seek redress because
only
FUNAI can take
legal proceedings
on their behalf, an
unlikely proposition
if
FUNAI is itself an
accomplice
of the
infringement
of the
rights
in
question.
it
is a
legal anomaly
of FUNAl's
guardianship that,
unlike other forms of
guard-
ianship
under the Civil Code,
it is not
subject
to
any judicial
control.
The
tutelage regime
of the Indian Statute is inconsistent with the
general
principles
of Brazilian law
relating
to
guardianship
in other
respects
as well.
19. See infra text accompanying
notes 143-152.
20. Civil Code, art. 6,
III.
21. Law No. 6.001 of 19 December 1973 dealing
with the Indian Statute, art. 1 (official
English
translation published by the National
Indian
Foundation, Fundacao Nacional do
Indio- FUNAI) [hereinafter cited as
Indian
Statute].
22. Id. art. 7, para.
2.
23. Swepston,
"The Indian in Latin America:
Approaches
to Administration, Integration
and
Protection," 27 Buffalo L. Rev. 715, 732 (1978).
24. Id. at 723.
25. See infra text accompanying
notes 38-40.
26. Indian Statute, supra note 21, art. 35.
27. Id. art. 37.
Indigenous Rights
in Brazil 379
Indeed, the
general
rule is that in cases of "relative
incapacity"
the
guardian's
role is
only
to assist the ward in the free
expression
of his own will, not to act
as a substitute for the ward.28 Yet the avowed
policy
of
FUNAI
is not to ex-
press
and defend the interests of the Indians as defined
by
the Indians them-
selves, but rather to balance these interests
against
the "national interest" of
the Brazilian state. As the President of FUNAI himself stated in
1980, "A
FUNAI staff member
should,
more than
anything,
act as a
judge
between
two cultures: that of the Whites and that of the
Indians.
When he
begins
to
defend one side more than the other he becomes biased and, for this rea-
son,
undesirable."29 This has led a conference of Brazilian
lawyers
and an-
thropologists
to conclude that
"[t]he guardianship
has been transformed into
an obstacle to the free
expression
of the ward's will, whereas it is
precisely
the free
expression
of that will, i.e. that of the
Indians, which
ought
to inform
and
guide
the action of the
guardian,
i.e. that of
FUNAI."
30o
This
problem
is
strikingly
similar to the evolution of the
concept
of
"trusteeship"
from
protec-
tion to
empowerment
in United States
Indian
law.31
Finally,
it should be stressed that the
primary
aim of the
government's
policy
with
regard
to
indigenous peoples
is to
integrate
them into the domi-
nant
society
and its market
economy.
The assimilationist
goal
of Indian
pol-
icy
is
expressly
laid down in the Constitution of Brazil, which
provides
that
"the Union shall have the
power
to
legislate upon
.
..
incorporation
of
forest-dwelling aborigines
into the national
community."32 It is further
spelled
out in the Indian Statute which
speaks
of
"integrating them, progres-
sively
and
harmoniously,
in the national
communion."33
Indian tribal
groups
are classified into three
legal categories: "isolated," "integrating,"
i.e.
"accept-
ing
certain
practices
and
ways
of life common to the other sectors of the na-
tional
community,
of which
they
stand
progressively
more in need for their
very subsistence," and
"integrated."34 Although
the statute contains a num-
ber of references to the
Indians'
"free choice of their
way
of
living
and means
28. Brazilian Indians and the Law 6
(Cultural
Survival Occasional Paper
No. 5, Oct. 1981).
This
publication contains
English translations of a number of
position papers adopted
at
an
interdisciplinary conference of
lawyers
and
anthropologists
held at the Federal
University
of Santa Catarina at
Florianopolis
in October 1980. The full
proceedings
of the
conference have been
published
as
O
Indio Perante O Direito
(S. Coelho
dos Santos ed.
1982).
29. Statement of Mr. Nobre da
Veiga,
President of FUNAI, to the
newspaper O
Estado de Sio
Paulo, 3 June 1980, quoted
in
In
the Path of
Polonoroeste: Endangered Peoples of
Western Brazil 62 (Cultural Survival Occasional Paper
No. 6, Oct. 1981).
30. Brazilian Indians and the Law, supra note 28, at 6-7.
31. See
Indian
Law Resource Center, "United States Denial of
Indian Property Rights:
A
Study
in Lawless Power and Racial Discrimination," in
Rethinking Indian
Law 15, 19-24
(National Lawyers Guild ed. 1982).
32.
Constitution
of the Federal
Republic
of Brazil, art. 8, XVII,
o (as amended 1969) (English
translation from Constitutions of the Countries of the World (Blaustein and Flanz eds.
1982)) [hereinafter cited as Constitution].
33.
Indian Statute, supra note 21, art. 1.
34. Id. art. 4, II.
380
PALLEMAERTS
of subsistence" and to the need to
respect
"their cultural values, traditions,
usages
and
customs," 35
these are little more than a thin veneer which scarce-
ly
conceals the overall thrust of the
legislation
toward a
paternalistic
and eth-
nocentric model of
"development."
It is
interesting
to note, however, that Brazilian
indigenous rights
advo-
cates have not denounced the Indian Statute as
altogether antagonistic
to
the
rights
of Indians.
By
a subtle exercise of
legal construction, they
instead
have
attempted
to demonstrate that the
objective
of the
legislation
is not as-
similation, that
"integration"
should not be understood as
synonymous
with
"assimilation."36 While strict adherence to the least
patently
assimilationist
language
of the statute
may
be a useful tactical
ploy
to achieve the
greatest
possible recognition
of Indian
rights
within the established
legal
and
political
order, and hence
may
achieve a limited short-term
improvement
in the con-
dition of the
indigenous communities, it is doubtful whether reliance on ex-
isting legislation
can
guarantee
Indians a
long-term
survival as
independent
and distinct
peoples.
B. Indian Land
Rights
The status of Indian lands in Brazil is laid down in the
constitution, which
provides
that "the lands
occupied by forest-dwelling aborigines"
are
part
of
"the
patrimony
of the
Union," i.e. are the
property
of the federal
govern-
ment.37
However, the Indians
enjoy
certain
constitutionally protected rights
on these lands, as
specified
in Article 198 of the constitution: "Lands inhab-
ited
by forest-dwelling aborigines
are inalienable under the terms that fed-
eral law
may establish; they
shall have
permanent possession
of
them, and
their
right
to the exclusive usufruct of the natural resources and of all useful
things
therein
existing
is
recognized."38 Thus, under Brazilian
law, Indian
communities have no
legal property right
to their land, but
only
a
right
of
"possession"
and
"usufruct," which is
extremely precarious.
The
guarantee
of Article 198 of the constitution is
explicitly
reiterated in
Article 22 of the Indian Statute. In addition to the
"occupied
land" within the
terms of Article 198 of the
constitution, the statute also
provides
for different
categories
of "reserved areas" which "are not to be confused with those in
immemorial
possession
of the native
tribes.""39
These lands include "Indian
reserves" and "Indian
parks."40
It is not
quite
clear what is the difference in
35. Id. art. 2, IV, VI.
36. Brazilian Indians and the Law, supra
note 28, at 2, 7.
37.
Constitution, supra
note 32, art. 4, IV.
38. Id. art. 198.
40. Id.
Indigenous Rights
in Brazil 381
legal status,
if
any,
between "reserved areas" and
"occupied
lands." The dif-
ference seems to be
mainly technical,
in that the establishment of a reserved
area
requires
an act of
legislation,
i.e. a
presidential decree, whereas the
rights
of Indians to
"occupied
lands" arise
directly
from the constitution, in-
dependently
of
any
administrative or
legislative
act. However, the
explicit
distinction made in the Indian Statute between
"occupied
lands" and "re-
served areas" could also be read to
imply
a substantive
legal difference, to
the effect that the
rights
of Indians in "reserved areas" are not
constitutionally
protected
but
carn
be
abrogated by legislative
act in the same manner as
they
were created. In
any event, the distinction
appears
to be
primarily
of aca-
demic interest, as the constitutional
guarantee
of Indian land
rights
itself has
proved
to be
quite
ineffective in
practice
and has failed to
protect
Indian
lands from encroachment and destruction. In
fact, an entire
array
of
legal
provisions operates
to
nullify
in effect the Indians' constitutional
right
to
guaranteed possession
of their land and exclusive use of their natural re-
sources.
The constitutional
provisions
themselves have a
double-edged
rationale
which is detrimental to the interests of the Indians. Indeed, they appear
to
be at least as much concerned with
consolidating
the federal
government's
jurisdiction
over land and resources as
they
are with
preserving
the Indians'
ancestral
rights.
The fact that lands
occupied by Indian
tribes are the
prop-
erty
of the Union
according
to Article 4,
IV of the constitution has made
In-
dians
pawns
in a
power struggle
between the states and the federal
govern-
ment. As one commentator notes, Indian land
rights
have been
a
longstanding tug-of-war
between the states and the federal
government.
It is
reasonable to
expect
continued state resistance to the further
recognition
of In-
dian
occupancy
or to the creation of new reserves since, under the new Indian
Statute, land reverts to the federal
government
when no
longer occupied by
natives.4'
While state
governments
thus have a vested interest in
promoting illegal
en-
croachment on Indian lands in order to reduce federal
power
within their
borders, the federal
government
has a short-term interest in
recognizing In-
dian
occupany,
if
only
as a means of
establishing
control over resources
which would otherwise be under state
jurisdiction.
This federal interest is
made
explicit
in Article 21 of the Indian Statute: "Land
spontaneously
and
definitively
abandoned
by
a native
community
or tribal
group
shall revert,
by proposal
of
[FUNAIJ and
declaratory
act of the Executive Power, to the
possession
and full
ownership
of the Union."42
Moreover,
Article 198 must
be
analyzed
in the context of other constitutional
provisions governing
fed-
41. Grasmick, "Land and the
Forest-Dwelling
South American Indian: The Role of National
Law," 27 Buffalo L. Rev. 759, 778 (1978).
382 PALLEMAERTS
eral
jurisdiction
over land and resources. In
reality,
the effective
rights
of in-
digenous
communities over their lands are
probably
determined more
by
those other
provisions
than
by
the
generous-sounding principles
enounced
in Article 198. For instance, Article 89 of the constitution
empowers
the Na-
tional
Security
Council "to indicate the areas that are
indispensable
to the
national
security"43
and to control land use and economic activities in those
areas.44
This
power
has been abused to
appropriate
Indians lands in
Amazonia for
highway construction, agricultural
settlement and livestock
projects.45
Other constitutional
provisions
indicate that the Indians' "exclu-
sive usufruct of the natural resources" on their lands as affirmed in Article
198 does not in fact
imply
exclusive control of those resources. Indeed, ac-
cording
to Article
168, mineral
deposits
and
hydropower
resources do not
belong
to the
occupier
or even owner of the land on which
they
are found,
but are under the control of the federal
government.
Thus it is the
govern-
ment, not the Indians, which controls
exploitation
and decides whether or
not to allow mineral or
hydropower development
on Indian lands. Under
the constitution, the
only right
of
indigenous peoples
with
respect
to mineral
resources and
hydropower
on their territories is to receive a share of
any
ex-
ploitation
revenue
through FUNAI
in consideration of their "exclusive usu-
fruct."
46
The constitution further confers on the federal
Congress
the
power
to
legislate
not
only
on mineral resources, but also on forests, hunting
and
fishing.47
Although theoretically
it should be exercised with due
regard
to
the constraints
resulting
from other
provisions
of the constitution,
such as Ar-
ticle 198, we shall see below how this
legislative authority
has been used to
regulate hunting
and the
exploitation
and conservation of forests in a man-
ner which
may
interfere with
indigenous
resource use. As noted above, the
constitution also
gives
the
Congress
a mandate to
legislate
on the
"incorpora-
tion of the
forest-dwelling aborigines
into the national
community."48
This
mandate is the constitutional basis of the Indian Statute which, as we shall
see below, faithfully implements
the
objective
of
"incorporation,"
inter alia
by allowing
commercial resource
exploitation
activities on tribal lands.
Another
major problem
is the
recognition
of Indian
occupation
of land.
The fact that
indigenous
land-use
patterns
are
quite
different from the
Western
concept
of
"occupation"
allows
public
authorities and
private
land
speculators
to
regard
vast areas of Indian
territory
as "vacant land" (terras
devolutas) open
to
appropriation. "[T]he
fiction of vacant land has been tra-
ditionally
invoked to
justify
the
usurpation
of these native
areas."49
Thus,
43. Constitution, supra note 32, art. 89,
III.
44. Id. art. 89, IV.
45. Decree-Law No. 1.164, supra note 4.
46. Constitution, supra
note 32, art. 168, para. 2; cf.
Indian Statute, supra
note 21, art. 24.
47. Constitution, supra
note 32, art. 8, XVII, h.
48. Id. art. 8, XVII, o.
49. Grasmick, supra
note 41, at 773.
Indigenous Rights
in Brazil 383
although
the law
expressly provides
that
"[r]ecognition
of the
right
of the
In-
dians and tribal
groups
to
permanent possession
of the land
they inhabit, in
the terms of Article 198 of the Federal Constitution, shall be
independent of
the delimitation
thereof,"50
the constitutional
protection
of Indian land
rights
is
likely
to be
largely illusory
unless the boundaries of Indian
territory
are
somehow formalized and enforced
by
the
government.
One of the
legal
methods used
by
the
government
for
preventing
dis-
orderly
encroachment on Indian lands is the
temporary
"interdiction" of
areas
occupied by indigenous
communities. The
purpose
of "interdiction" is
not to
preserve permanently
these Indian lands from invasion
by
white set-
tiers,
but rather to avoid violent confrontations between Indians and tres-
passers
and to enable FUNAl officials to
"pacify"
the
Indians, i.e., make
peaceful
contact with them and convince them to
give up
some of their
lands for
development.
To this end, the interdiction decrees confer
police
powers
on FUNAI to
"prevent
or restrict...
during
the
period necessary
for
the
pacification
of the tribes, the access, transit or
stay
of
persons
or
groups,
whose activities are deemed inconvenient for the establishment of contact
with the
tribes."'51
The
temporary
character of these measures is made ex-
plicit by
instructions to
FUNAI
to
notify
the Minister of the Interior as soon as
the
"pacification" operations
are
completed
so that the interdiction can be
lifted.52
It is quite apparent, therefore, that the interdiction decrees are little
more than
legislative
mandates for the removal of the Indian "obstacle" to
development.
FUNAl's
"pacification" campaigns, especially
in the late 1960s
and
early
1970s indeed have been denounced
by anthropologists
as dis-
guised genocide,
because these
campaigns
almost
invariably
resulted in the
annihilation of entire
tribes.53
Following
the demise of the
indigenous
population,
the
appropriation
of its land is
legally completed by
another
presidential
decree which terminates the interdiction and declares that the
area has "reverted to the
possession
and full
ownership
of the Union in ac-
cordance with Article 21 of the
[Indian Statute]."54
The land is then
officially
made available for some economic use, such as
agricultural settlement, in
accordance with the land reform
laws.ss
The establishment of Indian reserves
hardly
constitutes a more
perma-
nent
guarantee
of Indian land
rights
than the declaration of interdicted areas.
For
example,
the decree
establishing
a reserve for the Warimiri-Atroari tribe,
51. See, e.g., Decree No. 62.995 of 16
July 1968, art. 2.
52. See id. art. 4.
53. From a review of
FUNAI pacification expeditions along
the
Trans-Amazon highway net-
work between 1970 and 1974, anthropologist
Shelton Davis concluded that, during
this
period, FUNAI
"became a chief
accomplice
in the
processes of ethnocide that were
unleashed on the
Indian
tribes of the Amazon Basin." Davis, supra note 7, at 76.
54. See, e.g., Decree No. 83.541 of 4 June 1979, 1979 IV
Colego 153, art. 2.
55. See id. art. 3.
384 PALLEMAERTS
purportedly
"to
give
effect to Article 198 of the
Constitution,"s56
also contains
a
provision instructing FUNAI
to submit to the Minister of the Interior within
two
years
of the establishment of the reserve a
proposal
"for the reduction of
the reserved area, in so far as it is deemed excessive in
respect
of the needs of
the Indians which
occupy
it."
s7
This
legislative
mandate for
confining
an in-
digenous community
to a small
portion
of its ancestral lands is a clear illus-
tration of the "vacant land"
myth
of colonial
ideology
which still
pervades
the official
policy
of the Brazilian
government.
In a later decree
concerning
the same
indigenous territory FUNAI
is instructed to
pacify
the Waimiri-
Atroari within a
larger
interdicted area and
subsequently
to demarcate
"those lands
effectively i~nhabited
and
occupied by
the
indigenous groups."s58
The standard
procedure
for
determining
which areas are
subject
to the
legal regime
of Article 198 of the constitution is the "administrative delimita-
tion"
(demarcadio administrativa) of native lands, provided
for in Article 19
of the Indian Statute.
The demarcation of Indian land is the mechanism, outlined in the Indian Statute,
for
guaranteeing
the
protection
of that land.
Technically, however, the
right [of
the Indians] to have their land
protected precedes
the
obligation
of the
govern-
ment to demarcate it.
Specifically,
the function of demarcation ... is to
give
material form to the
legal protection
of Indian
land.59
Since less than half of Brazil's Indian
population
lives within the boundaries
of
officially
established
indigenous
reserves,60
the
process
of administrative
delimitation is of crucial
importance
for the
protection
of the lands of the
majority
of the
indigenous peoples
who live outside such reserves. The re-
sponsibility
for the delimitation lies with FUNAI, which establishes the limits
of Indian lands
by
an administrative decision that is taken
following
a field
survey by
an
anthropologist
and an
engineer.61
This decision is
subject
to ho-
mologation by presidential
decree.62
FUNAI
has failed to
complete
the limi-
tation
process
within a
five-year period
as
prescribed by
the Indian Statute 63
and has often "carried
[it]
out in
disregard
of
anthropological
and
legal
precepts."64
In fact, administrative delimitation
appears
to be a
negative process
as
much as a
positive
one: it is aimed at least as much at
certifying
that certain
lands are not
subject
to Indian
occupation
in order to consolidate land titles
56. Decree No. 68.907 of 13
July 1971, 1971 VI
Cole~io 74, art. 1.
57. Id. art. 3.
58. Decree No. 86.630 of 23 November 1981, 1981 VIII
Colego 242, art. 3.
note 28, at 732.
60. Swepston, supra
note 23, at 732.
61. Decree No. 76.999 of 8
January 1976, 1976
II
ColeIeo
28, art. 2.
62. Indian Statute, supra note 21, art. 19, para.
1.
63. Id. art. 65.
note 28, at 5.
Indigenous Rights
in Brazil 385
and
promote development,
as it is at
making
effective the constitutional
pro-
tection of Indian lands. It is not coincidental that FUNAI has been more dili-
gent
in
issuing
so-called
"negative
certificates" to land
speculators attesting to
the absence of Indians on certain
parcels
of land, than in
fixing
the limits of
tribal lands for the benefit and
protection
of the native communities them-
selves.6s
This
tendency
is
likely
to be confirmed
by a recent presidential
decree which
provides
for the involvement of state
governments
in the ad-
ministrative delimitation
process.66
C.
Exploitation
of Natural Resources on
Indian
Lands
Not
only
does Brazilian law fail to
protect adequately
the land base of
indig-
enous communities, it also
deprives
those communities of effective control
over the natural resources
necessary
for their
independent
economic subsis-
tence and cultural
survival, even within those lands to which
they
have a for-
mally recognized right
of
occupation.
The
constitutionally guaranteed right
of Indians to the "exclusive usu-
fruct of the natural resources and of all useful
things" existing
on the lands
they occupy
is
rhetorically
reiterated in several
provisions
of the Indian Stat-
ute.67 However, the same statute also contains a number of
provisions
which are
effectively
inconsistent with this
right.
These contradictions are re-
flected in the
statutory
definition of the
concept
of "usufruct": "The usufruct
assured to
Indians
or forest-dwellers
comprises
the
right
to
possess,
use and
receive the natural wealth and all the utilities
existing
on land
occupied by
them, and likewise the
product
of the economic
exploitation
of said natural
wealth and utilities."
68
In other words, the Indian Statute
regards
commercial
exploitation by
outsiders of natural resources on Indian lands as
compatible
with the Indian
right
of
usufruct, as
long
as the Indians
nominally
derive
some revenue from such activities.
First, the statute makes clear that the
right
of Indian communities to the
natural resources on their lands remains
entirely
subordinate to the "national
interest." Indeed the statute authorizes "intervention" in native areas, inter
alia "to
carry
out
public
works of interest to national
development"
and "to
work valuable subsoil
deposits
of
outstanding
interest for national
security
and
development."
69
For these
purposes
the
president
can decree the "tem-
porary
transfer" or even
"permanent
removal" of tribal
groups
from their
65. Id. See also Price, "The World Bank vs. Native Peoples: A
Consultant's View," 15
Ecologist 73, 74, 77 n.3 (1985).
66. Decree No. 88.118 of 23
February 1983, 1983 II
Coleg:o
128, art. 2, para. 3.
67. Indian Statute, supra note 21, art. 2, V, IX, art. 22.
68. Id. art. 24
(emphasis added).
69. Id. art. 20, para 1(d), (f).
386 PALLEMAERTS
lands.70 The statute
stipulates
that in the case of removal "the native commu-
nity..,
shall be
assigned
an area
equivalent
to the former
one, ecological
condition included."
7'1
Yet it is common
knowledge among anthropologists
that Amazonian Indians
generally
do not survive forced relocation. At least
one commentator has noted:
A
profound knowledge
of the area is essential for survival. Thus, if a
group
is
moved
away
from its traditional area, its chances for survival are
jeopardized.
Even if the new area is
ecologically
similar to the
group's
homeland its members
may
starve before
they
can find
necessary resources.72
Even if Indians are not
physically separated
from their resource base
by
"transfer" or "removal," the law
permits
commercial activities on Indian lands
which
destroy
the
very
forest resources on which
they depend
for their sub-
sistence.
According
to the Brazilian
Forestry
Code
(Cddigo Florestal) forests on In-
dian lands are
"subject
to the
regime
of
permanent preservation" (preser-
vag'Ao
permanente)
for the
purpose
of
"maintaining
the environment neces-
sary
for the survival of the
forest-dwelling populations." 73
The
felling
of trees
in forests of
permanent preservation
without the
permission
of the
compe-
tent
authority
is
prohibited.74
The Indian
Statute, however, reduces this
"permanent preservation"
status to a
legal
fiction
by expressly authorizing
deforestation of Indian lands.
The
felling
of timber in the native forests considered to be under the
regime
of
permanent preservation,
in accordance with Item
g
and
Paragraph
2 of Article 3
of the
Forestry Code, is conditioned on the existence of
programs
or
projects
for
developing
the
respective
land
by crop
and stock
farming, industry
or reforesta-
tion.75
These are
precisely
the
types
of
"development" projects
which almost inevi-
tably
result in the destruction of "the environment
necessary
for the survival
of the
forest-dwelling populations." Large-scale
livestock
projects
in
particu-
lar have been criticized
by experts
as the most
ecologically
destructive and
unsustainable of all land uses in the Amazon
region. According
to the staff
ecologist
of the World Bank, "Conversion of
tropical
rainforest
ecosystems
into
pastures
for cattle rates the worst, environmentally,
of all the con-
ceivable
alternatives." 76 Yet, according
to the Brazilian
government's
official
2.
3.
72. Price, "What Lands Should Be Reserved?" in
in
the Path of Polonoroeste, supra
note 29,
at 62
(emphasis added).
73.
Forestry Code,
Law No. 4.771 of 15
September 1965, reprinted
in
Legislagao
Florestal 3
(V. Farah ed. 1967), art.
3(g), para.
2.
74. Id. art. 26(b).
75. Indian Statute, supra
note 21, art. 46.
76. Goodland, supra
note 9, at 18.
Indigenous Rights
in Brazil 387
report
to the
I.L.O., stock-raising projects
are
being
run on Indian lands both
by FUNAI
itself and
by private entrepreneurs
to whom
FUNAI
leases the
land, with the
Indians
as
cheap labor.77
Commercial
exploitation
of mineral resources on Indian lands is also ex-
plicitly
authorized
by
the Indian Statute.
Large-scale mining operations
dis-
rupt
the
ecological integrity
of the forest environment and the traditional in-
digenous
subsistence
economy. Although they
are
regarded by experts
as
less
environmentally
harmful than other
"development"
projects,8
they
are
nonetheless
incompatible
with the economic self-determination of the Ama-
zonian Indians. Even if
they
had a
legal right
to full
ownership
of their tribal
lands, as
opposed
to the mere
right
of
possession recognized by
the Consti-
tution, Indians would be unable to
prevent
mineral
development
if
they
wished to, because, according
to Brazilian
law, ownership
of the
ground
does not include title to the mineral
deposits
in the subsoil, which are under
the exclusive
jurisdiction
of the federal
government.79
In
1969, before the enactment of the Indian Statute, the Ministers of the
Navy,
the
Army,
and the Airforce, jointly exercising
the
powers
of the
presi-
dent, issued a decree
legalizing
the
exploration
and
exploitation
of mineral
resources on Indian lands, "having regard
to" the
provisions
of the constitu-
tion
guaranteeing
the "exclusive usufruct" of the
Indians.80
This decree is
quite typical
of the obsession of
military dictatorships
with formal
legality
as
a cloak for substantive
injustice.
The decree
requires
that
FUNAI
be con-
suited
before
prospection permits
are issued for
areas"presumably
inhabited
by
forest-dwellers" and that
mining
concessions can
only
be
granted
for such
areas
subject
to
prior agreement
between the
mining company
and
FUNAI
"for the
purpose
of
preserving
the
right
conferred on forest-dwellers
by
Arti-
cle 186 of the
Constitution."8'
More
significantly, however, the decree re-
quires FUNAI
to submit a
complete map
of Indian lands to the National
Department
of Mineral Production
(Departamento
Nacional da Produ&io
Mineral- D.N.P.M.),
the
government agency
in
charge
of
licensing mining
operations,
within two months. Thereafter,
if
FUNAI
fails to
provide
this in-
formation within the
prescribed term,
D.N.P.M. is relieved of
any responsi-
bility
for
noncompliance
with the
provisions
of the decree.82 Given the fact
that
FUNAI
has to this
day
been unable to
complete
the demarcation of In-
dian lands, one can
imagine
that the data,
if
any, supplied by FUNAI
to
77.
Swepston, supra
note 23, at 732.
78. Goodland, supra
note 9, at 12-13.
79.
Constitution, supra
note 32, art. 168; Mineral
Code, Decree-Law No. 227 of 28
February
1967, art. 84, reprinted
in
ConsolidagAo
das Leis Sobre
Mineragao
65 (1973).
80. Decree No. 65.202 of 22
September 1969, preamble, reprinted
in
Consolidagdo
das Leis
Sobre Mineracio, supra note 79.
81. Id. arts. 1, 2. Article 186 of the Constitution of 1967 was
essentially the same as Article
198 of the Constitution of 1969, which is
quoted supra text
accompanying
note 38.
82. Decree No. 65.202, supra note 80, art. 3, para. 2.
388 PALLEMAERTS
D.N.P.M. in the short time
granted by
the decree were
grossly inadequate
to
protect
the interests of the Indians.
Apparently,
the real
purpose
of the
decree was
only
to establish a
procedure
for
legitimating
unrestrained access
to mineral resources on Indian lands.
The Indian Statute
permits mining
on Indian lands
subject only
to
"prior
understandings"
with
FUNAI
"in order to
safeguard
the interests of the In-
dian Estate and the
well-being
of the forest dwellers."
83
It also
stipulates
that
the
royalties
"shall revert to the benefit of the Indians and constitute a source
of native income."84 The later
provision, ironically,
is in fact more detrimen-
tal than beneficial to the interests of the Indians, as it
gives FUNAI
a vested
interest in
promoting
commercial
mining
on Indian lands, since the "native
income" (renda
indfgena)
is administered
by FUNAI85
and one tenth of it is
earmarked to fund FUNAl's own administrative
budget.86
New
regulations governing mining
on Indian lands were laid down in a
presidential
decree of November 1983.87
According
to these
regulations,
mining operations
shall
only
be
permitted
on
indigenous
lands where there
are
"strategic
minerals
necessary
for national
security
and
development."88
In
principle,
concessions for such
operations
shall
only
be
granted
to
public
enterprises
owned
by
the federal
government,89 although
"in
exceptional
cases" national
private enterprises may
also be
granted prospection
licenses
and
mining
concessions.90
The decree also
stipulates
that "whenever
possi-
ble" the
mining companies
shall "use
indigenous labor, taking
into account
the
working capacity
and the
degree
of acculturation of the
forest-dweller."9'
Although
it contains some nominal
safeguards against "prejudice
to in-
digenous culture, customs and
traditions,"92
the
underlying purpose
of the
decree is
clearly
to
develop
mineral resources on Indian lands, using
indians
as a
cheap
and docile work force, in order to increase Brazil's
export
earn-
ings.
Thus Indian culture is to be sacrificed for the
repayment
of the Brazilian
foreign debt, through
the destruction of the natural resource base of the in-
digenous economy
and the
proletarianization
of the Indian
people.
D. Conservation of Natural Resources on Indian Lands
The economic and cultural self-determination of
indigenous peoples
can be
threatened not
only by legislation permitting
the commercial
exploitation
of
note 21, art. 45, para.
2.
1.
85. Id. art. 43.
86. Decree No. 68.377 of 19 March 1971, 1971
II
Coleq;o
258, art. 4, V.
87. Decree No. 88.985 of 10 November 1983, 1983 VIII
Colegio
192.
88. Id. art. 4.
89. Id.
1.
91. Id. art. 8.
1.
Indigenous Rights
in Brazil 389
certain resources on Indian lands but also, paradoxically, by government-
imposed
"conservation" measures
restricting
the access of
indigenous
peoples
to the natural resources on which
they depend
for their subsistence.
While Amazonian Indians have an intimate
knowledge
of forest
ecology
and
have
empirically developed sophisticated
methods for the sustainable
management
and
exploitation
of renewable natural resources, so that their
traditional economic activities are
fully compatible
with the conservation of
these resources, the Western
preservationist concept
of "conservation" is
completely
alien to them and
potentially antagonistic
to their interests.
Although
in
principle
there should be no
incompatibility
between
indige-
nous
rights
and conservation
objectives,93
a
policy
such as that
presently
pursued by
the Brazilian
government, promoting,
on the one hand, wide-
spread
destruction of renewable forest resources for commercial
profit,
while, on the other hand, preserving "representative samples"
of the forest
by excluding
all forms of human
activity,
is inconsistent with the interests of
indigenous peoples.
The Indians'
right
of "exclusive usufruct of the natural resources" of the
lands
they occupy
includes the
right
to hunt, fish and use other renewable
forest resources. This is
specified
in the Indian Statute which states that
"[t]he
Indian
is
guaranteed rights
to the
practice
of
hunting
and
fishing
in the areas
occupied by him, any police
measures that
may possibly
have to be
applied
being
carried out
persuasively."94
The
exclusivity
of the
right
is
guaranteed
by
another
provision
of the statute which states that
"[i]n
these areas, any
person foreign
to the tribal
groups
or native communities is
prohibited
to
practice hunting, fishing
or fruit
gathering."95 However, it is clear from the
language
of the statute that the use
by Indians
of natural resources on Indian
lands is not
subject only
to such restrictions as
may
be
provided by
their own
customary
conservation rules, but can also be
subject
to
any "police
mea-
sures" the Brazilian state
may
deem
necessary.96
The basic
provisions
of Brazilian law
relating
to forest conservation are
93. See
generally Clad,
"Conservation and
Indigenous Peoples:
A
Study of
Convergent
Inter-
ests," 8 Cultural Survival Q., Dec. 1984, at 68.
2
(emphasis added).
1.
2. See also art. 28, para.
2.
Technically, indigenous subsistence hunting
seems to violate the Fauna Protection Law, which
prohibits "professional hunting"
and
requires
all hunters to
carry
a license. Law No. 5.197 of 3
January
1967, 1967
I
ColeEo
581, art. 1, 2, 13. This law does not
recognize
subsistence
hunting
as a
separate legal
category subject
to a special regime. One commentator, noting
this
legal vacuum, has
observed that it is an unsolved "question
of
legal
interest" whether or not
aboriginal
hunting requires
a license. P. A. Lemme Machado, Direito Ambiental Brasileiro 262
(1982). With regard
to
indigenous hunting
the general provisions of the Fauna Protection
Law
presumably
are
superseded by
the
special provisions
of the Indian Statute
guaranteeing
indian
hunting rights.
But it remains unclear whether this
implicit "license"
applies only
in reserves and demarcated lands or in
any indigenous hunting grounds,
whether or not
permanently "occupied."
In
any event, this
legal
vacuum illustrates how
conservation
legislation
is enacted without
regard
to
indigenous rights.
390 PALLEMAERTS
to be found in the
Forestry Code.97
Article
5
of this code
empowers
the
government
to create National Parks and
Biological Reserves, which are
defined as "areas with
exceptional
natural attributes where the
protection
of
flora, fauna and scenic
beauty
is combined with educational, recreational
and scientific
objectives." 98
Another land-use
category
which is instituted
by
this article is that of National Forests, which can be
designated by
the
gov-
ernment for "economic, technical or social
purposes." 99
In
practice,
the
pri-
mary purpose
of National Forests
appears
to be economic: the
competent
government agency
is to
"promote
the
multiple
use of
[their natural
resources... under a
regime
of sustainable
yield"1o0
and
may
to this end
conclude
agreements
with
private companies
"aimed at the rational use of
the natural resources
existing
in the
forest"l0'
-
presumably
a
legal euphe-
mism for
logging
concessions.
The
government
has also made use of its
powers
under the old
Forestry
Code of 1934 to
designate
certain areas of the Amazon Basin as "Forest
Reserves."102
The term "reserve" is
quite misleading,
because these areas are
in fact classified as
production
forests (florestas de
rendimento).'03
The
forestry agency
considers them "a
transitory
land-use
category...
afforded
little or not
protection."104
All the above areas are under the
jurisdiction
of the Brazilian
Forestry
Development
Institute (Instituto Brasileiro de Desenvolvimento Florestal-
I.B.D.F.),
a federal
government agency
which is in
charge
of both the man-
agement
of
protected
areas and the
promotion
and
regulation
of commer-
cial
forestry
and the forest
products industry,s05
an obvious conflict of
interests.
An additional
legal category
of
protected
areas
recently
created
by
new
legislation,
the so-called
Ecological
Stations
(Estag6es
Ecoldgicas),
are de-
fined as
"representative
areas of Brazilian
ecosystems
destined for basic and
applied ecological research, the
protection
of the natural environment and
the
development
of environmental
education."'06
These areas are under the
control of the
Department
of the Environment (Secretaria Especial
do
Meio
Ambiente- S.E.M.A.).o07
97. Law No. 4.771, supra note 73.
98. Id. art. 5(a).
99. Id. art. 5(b).
100. See, e.g.,
Decree No. 73.684 of 19
February 1974, 1974
II
Coleg:o
245, art. 2
(establishing Tapaj6s
National Forest).
101. Id. art. 5.
102. See, e.g.,
Decree No. 51.024 of 25
July 1961, 1961 VI
ColeqBo
145
(establishing Jaru
Forest Reserve).
103.
Forestry Code, Decree No. 23. 793 of 23 January 1934, art. 3(d).
104.
Wetterberg,
Prance and Lovejoy, supra
note 14, at 6.
105. Decree-Law No. 289 of 28
February 1967, arts. 3, VII, VIII, 5, VIII.
106. Law No. 6.902 of 27
April 1981, 1981 11
Colegio 19, art. 1.
107. The ratio
legis
for the establishment of
Ecological
Stations appears quite dubious,
especially
in view of a recent
presidential decree-
probably
the most
baroque piece
of
Indigenous Rights
in Brazil 391
According
to the
Forestry Code, all forms of resource
exploitation
are
prohibited
in National
Parks.108
These restrictions are further
specified
in
detailed
regulations,
which
explicitly
ban
hunting
and
fishing
and the
gather-
ing
of fruits and other forest
products.109
Similar restrictions also
apply
in
Biological
Reserves1o and in
Ecological Stations,"' and
presumably
in
Forest Reserves."2
In the
early
1960s an
experimental attempt
was made to combine envi-
ronmental conservation and the
protection
of Indian lands
by
the establish-
ment of the
Xingu
National Park, covering
the territories of thirteen tribal
groups
in Mato
Grosso."3
The dual
purpose
of the
park
was
spelled
out as
follows in a
presidential
decree:
(1) To
preserve
the
original
flora and fauna of the area
against
whatever forms of
destruction, exploitation
or decharacterization as a
sample
of Brazilian nature
which in scientific and
physiographic
value
represents
national
heritage; (2) To
guarantee
to the
indigenous population
in the area of the
park possession
of the
lands
they occupy
under Art. 216 of the Federal
Constitution."4
The
Xingu
National Park was
generally
considered a successful
experiment
in
indigenous policy
1s
but it succumbed to the Amazonian
development
program.
In 1971 the
park
was cut
through by
one of the Amazonian
high-
ways
and the land to the north of the road, home of the Txukahamai Indi-
ans,
was excluded from the
park's
territory."6
FUNAI was instructed to
"at-
tract" the Txukahamai within the new
park boundaries, in order to "return
the lands inhabited
by
them to the
possession
and full
ownership
of the
Union."'7 The
Xingu
National Park was abolished as an
independent
ad-
ministrative
entity
on the establishment of
FUNAI 18
but the current
legal
status of the
park's
lands is
unclear."9
Although
it was
originally
established
environmental
legislation
ever enacted - which provides that nuclear
power plants
shall
be located in
Ecological
Stations! Decree No. 84.973 of 29
July 1980, 1980 VI
Colegio
131, art. 1.
108. Forestry Code, art. 5.
109. Regulamento
dos Parques Nacionais Brasileiros, Decree No. 84.017 of 21
September
1979, 1979 VI
Colegio 225, arts. 13, 15, para. 2, 38.
110. Law No. 5.167 of 3
January 1967, 1967
I
Cole~io 581, art. 5(a).
111. Law No. 6.902, supra
1.
112. See, e.g.,
Decree No. 51.024, supra
note 102, art. 5.
113. Decree No. 50.455 of 14
April
1961. See C.
Junqueira,
The Brazilian
Indigenous
Problem
and Policy: The Example of the
Xingu
National Park 11
(AMAZIND/IWGIA
Doc. No. 13,
1973).
114. Decree No. 51.084 of 31
July
1961, art. 1
(English
translation in R. Goodland and
H. Irwin, Amazon
Jungle: Green
Hell to Red Desert? 76-77 (1975)). Article 216 of the
Constitution of 1946 was
essentially
the same as Article 198 of the Constitution of 1969,
which is quoted supra
text
accompanying
note 38.
115.
Junqueira,
supra
note 113.
116. Decree No. 68.909 of 13
July
1971, art. 2.
117. Id. art. 3.
118. Law No. 5.371 of 5 December 1967, art. 7.
119. Medina, supra
note 17, at 21 n.75.
392 PALLEMAERTS
with reference to the conservation
provisions
of the
Forestry Code, Xingu
National Park is not included in the official list of Brazilian national parks.120
It
is
apparently
no
longer regarded
as
having
the
legal
status of a National
Park. Its
present
status is
probably
that of an "Indian
park"
as defined in the
Indian Statute, and
subject
to the
jurisdiction
of
FUNAI:
An Indian
park
is an area contained within land in the
possession
of Indians,
whose
degree
of
integration
is sufficient to allow economic, educational and
sanitary
assistance
being supplied
to
them by
the
agencies
of the Union, wherein
the flora, fauna and natural
scenery
of the
region
are to be
preserved.12"
Considering
the resource
exploitation provisions
discussed above, it is clear that this status is
grossly inadequate
both for the
protection
of
indigenous
culture and for environmental conservation.
There are some indications in
government policy
that
protected
areas as
defined in Article 5 of the
Forestry
Code and "native lands" as defined in Arti-
cle 17 of the Indian Statute are
regarded
as
mutually
exclusive land-use cate-
gories.
For
example,
in
1961, the boundaries of the Sete Quedas National
Park were drawn so as to exclude the "habitat" (sic) of the Xetas Indians.'22
The
park
limits were established in collaboration with the Indian Protection
Service
(S.P.I.-
FUNAI's
predecessor)
which was "to
adopt
measures for the
observance of the interests of the Indians
inhabiting
the
region."123
The establishment of the Monte Pascoal National Park in the
mangrove
forest of Bahia in 1961
apparently
conflicted with Indian land
rights.124
In
1977
I.B.D.F. reported
to the International Union for Conservation of Nature
and Natural Resources that "Indian settlements remain in five
percent
of the
park,
near the coast, but
plans
are under
way
for
relocation."12s
However,
the conflict was solved in 1980
by returning 7,000 hectares (17,290 acres) of
the
park
area to the Pataxos Indians, in
apparent recognition
of the
legal
su-
premacy
of their
constitutionally protected right
of
occupancy.126
In
the late 1970s, when the
ecological consequences
of the Amazon
development program
became a matter of official concern for the Brazilian
government itself, a "conservation"
component
was
tagged
on to
ongoing
development
schemes. In 1976, I.B.D.F. published
an
"Analysis
of Nature
Conservation Priorities in the
Amazon," a
study prepared
in
cooperation
120. International Union for Conservation of Nature and Natural Resources, IUCN Directory
of
Neotropical Protected Areas 64 (1982) [hereinafter cited as IUCN
Directory].
122. Decree No. 50.665 of 30
May 1961, art. 2, reprinted
in
Legislagao Florestal, supra
note
72, at 88.
123. Id. art. 3.
124. Decree No. 242 of 29 November 1961, reprinted in
Legisla~io Florestal, supra note 73,
at 122.
125. 1 International Union for Conservation of Nature and Natural Resources, World Direc-
tory
of National Parks and Other Protected Areas, BRA.3.9 (1977) (emphasis added).
126. IUCN
Directory, supra note 120, at 80.
Indigenous Rights
in Brazil 393
with the
F.A.O.'27
Criteria were
developed
to select
"representative samples"
of Amazonian
ecosystems
which should be
preserved, especially so-called
"pleistocene refugia," i.e., centers of
genetic diversity. These methods were
originally developed by
United States
experts
and
implemented
in Brazil
with the
support
of
private
conservation
organizations
such as the Interna-
tional Union for Conservation of Nature and Natural Resources and the
World Wildlife Fund. In
cooperation
with FUNAI, the land reform
agency
INCRA, and other
government agencies,
I.B.D.F.
parcelled
out Amazonia
into lands for
agricultural settlement,
cattle
ranches, industrial
forestry
and
other forms of economic
development, protected areas, and
indigenous
reserves.128"
On World Environment
Day,
5 June 1979, President
Figueiredo
officially approved
a "National
System
Plan for Conservation
Units," recom-
mending
the establishment of 17.5 million hectares (43.225 million acres) of
new
parks
and reserves in the Amazon.129 As the director of the National
Parks
Department
of I.B.D.F.
emphasizes:
"The
growth
of
parks
and reserves
in the Amazon occurred within the context of
[the] national
programs
for
economic
development."13
The Brazilian
government's
renewed interest in
conservation is not unrelated to its realization that most Amazon
develop-
ment
projects
have
proved
not
only ecologically
disastrous but also eco-
nomically
unsuccessful,131
and that the
genetic diversity
of the
virgin
Amazon forest constitutes a valuable economic resource with
potential
for
future commercial
exploitation.132
Since 1979,
a
large
number of new "conservation units" with a total area
of more than seven million hectares (17.29 million acres) have been created
in the Amazon Basin. Some of these
protected
areas are
extremely large
and
overlap
with
Indian
lands. At a conference in October 1980, Brazilian an-
thropologists
and
lawyers expressed
concern at "the
consequences
of recent
action
by
official
agencies permitting
the
superimposition
of areas set aside
for environmental
protection
onto
indigenous
areas" which
"creates prob-
lems which are different to solve under current
law."133
The Pico da Neblina National
Park, covering
an area of 2.2 million
hect-
ares (5.434 million acres) on the border with Venezuela, includes the lands
127.
Wetterberg,
Prance and
Lovejoy, supra
note 14, at 5-6.
128. Id. at 7. See also Decree No. 83.518 of 29 May 1979, 1979 IV ColegAo 140
(establishing
working group
on Amazonian forest
policy).
129.
Wetterberg, Prance and
Lovejoy, supra note 14, at 7.
130. PAdua and Quintio, supra note 15.
131. The
policy
of subsidized livestock
development has been
especially
"disastrous both
financially and
environmentally." Goodland, supra note 9, at 18. In certain areas of
Amazonia, 85
percent of cattle ranches have already gone
out of business. Id. at 19.
Cattle-breeding projects would not have been
economically
viable without massive
government subsidies of
up to 70
percent
of total
project costs. Id. at 22.
132. For
example, the forest can be used by the pharmaceutical and
plant-breeding
indus-
tries. See N.
Myers, The
Primary Source:
Tropical Forests and Our Future (1984).
133. Brazilian Indians and the Law, supra note 28, at 9.
394 PALLEMAERTS
of several
Indian tribes, presumably
the
Mandaw~ka, Karut~na,
and
Yabaina.134 Yet the decree
establishing
the
park
does not contain
any provi-
sions
acknowledging Indian
land
rights
in the
area.135s
According
to 1.B.D.F.
"[a] large part of the area is title-free. Indians are present, but there are no
proclaimed
Indian
Reserves."136
The Pacaas Novos National Park in the state of
Rond6nia largely
over-
laps
an interdicted area inhabited
by
the Uru-Eu-Wau-Wau
tribe,'37
but simi-
larly
no
provision
is made for
Indian rights
in the constitutive
decree.'38
The
park
area is
reported
as "owned
by
IBDF"139
but is
being illegally
invaded
by
settlers.140
Following
clashes between the
trespassers
and the
Indians,
FUNAI
sent an
expedition
to the area in 1980 to
"pacify"
the Uru-Eu-Wau-
Wau.141
As these
examples illustrate, there is a
potential
conflict between the
constitutional
provisions regarding
the exclusive use of natural resources on
Indian lands
by Indians
and the
provisions
of the conservation
legislation
stipulating
that the flora and fauna of National Parks and
Biological
Reserves
be
strictly protected.
From this clash of
legislation objectives
it is
necessary
to
salvage
that which has
constitutionally
been
guaranteed the Indians.
Administratively, therefore, it is im-
portant
to make
ecological preservation compatible
with the subordinate to the
Indians'
prior rights.
... That is, they
must be
guaranteed
the
possibility
of
carry-
ing
out their economic, social and cultural activities and not be
prevented
from
continuing
to hunt, fish and
gather
wild
foods.142
How
exactly
this is to be achieved is not
specified,
but it would seem
logical
that Article 198 of the
constitution,
a
superior
rule of law within the hierar-
chy
of the Brazilian
legal system,
should
prevail
over the
provisions
of the
Forestry
Code and national
parks decrees, in so far as these are inconsistent
with the "exclusive usufruct" of the Indians.
ll. THE INTERNATIONAL LEGAL FRAMEWORK
In this section, I
will discuss
briefly
the
provisions
of a number of interna-
tional
agreements
to which Brazil is a
party
and which affect
indigenous
134.
Compare Wetterberg,
Prance and
Lovejoy, supra
note 14, at 9
fig.
5 with Goodland and
Irwin, supra
note 114, at 59
fig.
7.
135. Decree No. 83.550 of 5 June 1979, 1979 IV
Colegso
160.
136. IUCN Directory, supra note 120, at 67.
137. In the Path of Polonoroeste, supra note 29, at 32.
138. Decree No. 84.019 of 21
September 1979, 1979 IV
Colelio
262.
139. IUCN Directory, supra note 120, at 69.
140. Natural Resources Defense Council, Indications of Natural Resources and
Ecological
Mis-
management
in the World Bank Financed Brazil Northwest Development Program 15-17
(12 October 1984) (unpublished memorandum submitted to World Bank).
141. In the Path of
Polonoroeste, supra
note
29,
at 45.
142. Brazilian Indians and the Law, supra note 28, at 9.
Indigenous Rights
in Brazil 395
rights
and the
development
and conservation of natural resources in the
Amazon
Region.
Not
surprisingly,
Brazilian state
practice
at the international
level has
consistently
been to
emphasize
on
every possible
occasion that
these matters fall within the ambit of national
sovereignty
and are the exclu-
sive
responsibility
of each
government,
and to
oppose any
substantive inter-
national
legal obligations
which would restrict Brazil's freedom to
dispose
of
the Amazon forest and its
indigenous peoples
in accordance with its self-
defined national interest.
Consequently,
whatever international
agreements
Brazil has entered into either
generally
reflect its own national
priorities,
sub-
ordinating indigenous rights
and conservation to
development,
or leave suf-
ficient room for discretion to accommodate them.
A. I.L.O. Convention No. 107143
Brazil ratified I.L.O. Convention No. 107 on 18 June 1965. The Convention
was
promulgated by presidential
decree '44 and is
presumably thereby
incor-
porated
into Brazilian law. The Indian Statute
expressly provides
that FUNA!
"shall disseminate and
respect
the norms of Convention
107."u145
However, the
provisions
of the I.L.O. Convention
concerning indige-
nous lands allow for such broad state discretion that it would be difficult to
find even Brazil in substantive violation of them. Indeed, the
language
of Ar-
ticle 12, paragraph
1 seems to have been written to fit the twin tenets of"na-
tional
security"
and "national
development"
which are the foundation of the
Brazilian
military's ideological
discourse
rationalizing
the
"integration"
and
"penetration"
of the
Amazon.146
The
populations
concerned shall not be removed without their free consent from
their habitual territories
except
in accordance with national laws and
regulations
for reasons
relating
to national
security,
or in the interest of national economic de-
velopment
or of the health of the said
populations.147
The
provisions
permitting
"intervention" on Indian
lands
148
appear
to have been
carefully
worded in a manner not
overtly
in-
consistent with the above
provision
of the 1.L.O. Convention.
Nevertheless, there is one
aspect
of the I.L.O. Convention which
may
well be worth further consideration
by indigenous rights
advocates. The
Convention
provides
that
"[t]he rights
of
ownership,
collective or individual,
of the members of the
populations
concerned over the lands which these
143. I.L.O. Convention No. 107, supra
note 18.
144. Decree No. 58.824 of 14
July 1966, 1966 VI
ColeC;o
79.
145. Indian Statue, supra
note 21, art. 66.
146. Cardoso and
M(iller,
supra note 3, at 10.
147. I.L.O. Convention No. 107, supra note 18, art. 12, para.
1.
note 21, art. 20.
396 PALLEMAERTS
populations traditionally occupy
shall be
recognized."149 Yet, as discussed
above,'s0
Brazilian law does not
recognize
the Indians'
right
of
ownership,
but
only
their
rights
of
possession
and usufruct. This
appears prima facie
to
be inconsistent with Article 11 of the 1.L.O. Convention. The
inconsistency
is
evident when one
compares
the official
Portuguese
translation of the Con-
vention as
promulgated
in Brazil with the
provisions
of the Brazilian Consti-
tution
relating
to indian lands. The
"right
of
ownership"
in Article 11 is trans-
lated as "direito de
propriedade"l'5
but Article 198 of the constitution
grants
the Indians
only
the
right
of
possession (posse)
while the
right
of
ownership
(dominio or
propriedade)
of Indian lands is vested in the federal
govern-
ment.'52
Of course, even if the Brazilian Constitution were to
recognize
the
right
of
ownership
in accordance with the
I.L.O. Convention, that would not,
under Brazilian law, increase
indigenous
control over
resources, especially
mineral resources, as discussed above. The I.L.O. Convention does not
specify
to what extent
ownership
should include control over resources,
which is an
important
flaw.
B.
Treaty
for Amazonian
Cooperation
's3
This
treaty,
also known as the Amazon Pact, is viewed as the cornerstone of
Brazilian
diplomacy
in the Amazon
region
and as an instrument
through
which Brazil seeks to extend its
political
and economic influence over
neighboring
countries in the Amazon Basin. It seems that the most immedi-
ate, practical objective
of the
treaty
was to secure the
cooperation
of other
countries for the
development
of the
hydropower
resources of the
region,'54
a direct threat to
indigenous lands.'ss
The overall thrust of the Amazon Pact is
clearly pro-development.
While
the document does contain a number of references to
indigenous peoples
and conservation, it is obvious that these are
merely
incidental concerns.
The
preamble
states the commitment of the
parties
"to achieve total incor-
149.
I.L.O. Convention
No. 107, supra
note 18, art. 11. See
Swepston
and Plant, "Interna-
tional Standards and the Protection of the Land
Rights
of
Indigenous
and Tribal Popula-
tions," 124
Int'l
Lab. Rev. 91 (1985).
150. See
supra
text accompanying
notes 37-38.
151. 1966 VI
Colegao
at 82.
152. Constitution, supra note 32, art. 4, IV. See also the Indian Statute, which speaks
of land
"belonging
to ... the domain [dominio]
of the Union, but in the possession [posse] of
Indian communities." Indian Statute, supra
note 21, art. 45.
153. Done at Brasilia, 3
July 1978, reprinted
in 18
Int'l Legal
Materials 1045 (1978)
[hereinafter referred to as Amazon Pact].
154. Id. art. V. See E. Martins, Amaz6nia, A
Ultima
Fronteira 54, 56 (1981).
155. See P.
Aspelin
and
S.
Coelho dos Santos, Indian Areas Threatened by Hydroelectric
Proj-
ects in Brazil (IWGIA Doc. No. 44, 1981).
Indigenous Rights
in Brazil 397
poration
of their Amazonian territories into their
respective
national econo-
mies" while
recognizing that, to this end, "it is
necessary
to maintain a bal-
ance between economic
growth
and conservation of the
environment."s56
Article IV reflects the
signatories' suspicion
of
any
international control
over their Amazonian
development
activities: "The
Contracting
Parties
declare that the exclusive use and utilization of natural resources within their
respective
territories is a
right
inherent in the
sovereignty
of each state and
that the exercise of this
right
shall not be
subject
to
any
restrictions other
than those
arising
from international law." It is
significant
that the
original
draft of this
provision, referring
to the
obligation
not to cause
"perceptible
damage"
to other nations-an
obligation generally
considered to be
part
of
customary
international law - was toned
down.'57
The conservation
provisions
were not
part
of the
original
Brazilian draft,
but were
reportedly incorporated
as a result of amendments submitted
by
Venezuela.158 As one commentator observes, these amendments did not
necessarily
indicate
genuine
concern: "Venezuela's enthusiasm for
ecologi-
cal issues and native
peoples may
reflect
relatively greater
concern for con-
servation and native
peoples
in that
country
than in Brazil. On the other
hand, it
may
also have stemmed from a
geopolitical
desire to slow Brazilian
development
of the
Basin."159
The main
provisions
of the
pact relating
to conservation and
indigenous
peoples
are Articles
VII,
XIII and XIV, which contain
only vague,
noncom-
mittal
undertakings
to
cooperate, exchange information, and
promote
research. However, the
language
of these
provisions
is
quite
indicative of
the overall attitude of Amazonian
governments
toward environmental con-
servation and
indigenous rights.
Article VII
speaks
of "the need for the ex-
ploitation
of the flora and fauna of the Amazon
region
to be
rationally
planned
so as to maintain the
ecological
balance within the
region
and
preserve
the
species."
In another clause, the
parties agree
to
encourage
measures "in order to increase the rational utilization of the human and
natural resources of their
respective
Amazonian
territories."160
Indigenous
peoples
are referred to
successively
as "human resources" which are to be
"rationally utilized," as attractions for an
"increasing
flow of
tourists"161
and
as
"ethnological
wealth" which is to be "conserved,"162 but nowhere is there
any recognition
of their inherent
rights
as
peoples.
It is clear that the native
156. Amazon Pact, supra note 153, preamble.
157. Ware, "The Amazon
Treaty:
A
Turning Point in Latin American
Cooperation?"
15 Tex.
Int'l L.J.
117, 126 n.65 (1980).
158. Id. at 125-126, 134.
159. Id. at 125.
160. Amazon Pact, supra note 153, art. XI
(emphasis added).
161. Id. art. XIII.
162. Id. art. XIV.
398 PALLEMAERTS
communities and the natural wealth of the Amazon forest are viewed
by
the
signatories
of the Amazon Pact as
objects
of economic
exploitation.
This is evidenced further
by
the declaration
adopted
at the first
meeting
of Ministers of
Foreign
Affairs held
pursuant
to Article XX of the
Treaty
in Oc-
tober 1980, which sheds more
light
on the role reserved for the
indigenous
peoples
in the Amazon
development process.
This document calls for
priority
attention to the needs and interests of its amazonian
population
in order
to obtain a
complete integration
in the national
development process taking
care
of
preserving
their cultural and social values
....
The autoctone
indigenous
population
constitutes an essential element of the Amazon and a source of
knowledge
and life
system
which serves as a cultural and economic base, being
therefore
worthy
of
particular
attention in actual and future
planning
of the Ama-
zonian
region
of each
country.163
C. International
Tropical
Timber
Agreement.
The International
Tropical
Timber
Agreement (I.T.T.A.)
164
is one of
a
series
of
commodity agreements
concluded under the
auspices
of UNCTAD. The
main aim of the
agreement
is to
promote tropical
timber
exports
as a source
of income for
developing
countries. It sets
up
a
commodity organization,
the
International
Tropical
Timber
Organization (I.T.T.O.),
which is to monitor
and
support
research and
development projects
of interest to the timber
trade in the world
tropical
timber market. Brazil
played
an
important
role in
the
negotiation
of the
agreement, hosting
and
chairing
a
meeting
of
pro-
ducer countries where a first draft was
elaborated.'6s
While the
agreement lays great
stress on "the
sovereignty
of
producing
members over their natural
resources"166
and
recognizes
"the
importance
of
tropical
timber to the economies of the
members,"167
it
completely ignores
the
primary
interest of native
peoples
in
tropical
forest resources and the im-
portance
of the
living
forest to
indigenous
economies. For
example,
the list
of criteria for the selection of
projects eligible
for I.T.T.O.
support
does not
include their
impact
on
indigenous
people.168
As a matter of fact, during
the
course of the
negotiations, Brazil, insisting
on the
sovereign rights
of
pro-
ducer nations, blocked an Australian amendment to the effect that
logging
activities should not
unduly impair
the "non-timber use of
tropical
163.
Bel~m
Declaration, 24 October 1980, paras. II-III, reprinted
in 7
Envtl. Pol'y
& L. 46
(1981).
164.
Opened
for
signature
2
January 1984, U.N. Doc.
TD/TIMBER/11
(1983).
165. "UNCTAD
Tropical
Timber Seminar," 10
Envtl. Pol'y
&
L. 88 (1983).
166. International
Tropical
Timber
Agreement, supra
note 164, art.
1.
167. Id.
preamble.
168. Id. art. 23, para.
6.
Indigenous Rights
in Brazil 399
forests."'"69
The
parties pledge
to
support
and
develop
"industrial
tropical
timber reforestation and forest
management activities,"'70 which indicates
that their concern for reforestation stretches
only
as far as the interests of
commercial
plantation forestry.
The
agreement
does
pay
some
lip-service
to
conservation in its
preamble
and includes, at the bottom of its list of
objec-
tives, the
following:
"to
encourage
the
development
of national
policies
aimed at sustainable utilization and conservation of
tropical
forests and their
genetic resources, and at
maintaining
the
ecological
balance in the
regions
Sconcerned."171
But, as one commentator
points out, "the ITTA, despite
its
preambular
stress on the environment and sustainable
yield management,
does not
anywhere specify
what the substantive concerns of the ITTO
should be in this area."1"
IV. CONCLUSION
As the above
analysis
has demonstrated, there is little
hope
of
reconciling
in-
digenous rights
and conservation objectives within a national and interna-
tional
legal
framework which
gives priority
to
capital-intensive
and
export-
oriented
"development"
at the
expense
of human
rights
and
ecological equi-
librium.
Conservation
policies
in Brazil are
only
one element of the overall
technocratic model of Amazon
"integration." They
are
"paternalistically
devolved and
implemented"'73
and based on
exclusionary principles. They
reflect a
"protectionist approach [which] emphasises
a
drawing
of
legal
or
geographic boundaries, which do not
really
exist
ecologically,
around what
is considered, usually
on a
highly
selective basis, exploitable
and what is
not." 174
From an
indigenous rights
and environmental
perspective,
an
entirely
different
approach
would be desirable. This
approach
would
ideally pro-
ceed from the basic
premise
of the
sovereignty
of
indigenous
nations or
minimally
from a full
legal recognition
of their collective
right
of
ownership
to their ancestral lands and would secure their
right
of economic and
cultural self-determination
by granting
them full control over the natural
resources on these lands.
The
principle
of
"permanent sovereignty
over natural resources," which
169. "UNCTAD
Tropical
Timber
Agreement
on Course," 11
Envtl. Pol'y
& L. 91 (1983).
170. Id. art.
l(f)
(emphasis added).
171. Id. art.
1(h).
172.
Johnson,
"Chimera or
Opportunity?
An Environmental
Appraisal
of the
Recently
Con-
cluded
International Tropical Timber
Agreement,"
14 Ambio 42, 43 (1985).
173.
Clad, supra note 93, at 68.
174. G. C.
Ray, quoted in
id.
at 73 n.2.
400 PALLEMAERTS
has been
consistently
abused
by
the Brazilian state to
justify
its destruction of
renewable natural resources on the territories of native
peoples
in the
Amazon
region,17s
should be invoked
by
those
indigenous
communities to
conserve and use their resources
according
to their own
priorities.
175. At the 1972 United National Conference on the Human Environment, Brazil, faced with
international criticism of its Amazon development policy
and afraid that
emerging
stan-
dards of international environmental law
might
restrict its
sovereignty
over its forest
tesources, insisted on "the sovereign right
of each country to exploit its own resources in
accordance with its own environmental
policies"
and obtained
recognition
of this
right
in the declaration
adopted by
the conference. Sohn, "The Stockholm Declaration on the
Human Environment," 14 Harv.
Int'l
L.). 423, 490-491 and n.257 (1973).

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Development, Conservation, and Indigenous Rights in Brazil

Author(s): Marc Pallemaerts

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