Like Bolsonaro, the powerful farmer faction in the Brazilian National Congress sees the ILO-169 as an obstacle to the development and restriction of national sovereignty. The way for massive valorization of indigenous territories for industrial agriculture, mining and hydropower plants should be cleared.
Munduruku with UN Special Rapporteur on Indigenous Rights (2016). Photo: christianrussau
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Brazil’s agricultural lobby is not giving up in its ruthless fight against peasant structures and indigenous territories, on the contrary: They are intensifying the attacks. This is evident not only in the attempts to criminalize the indigenous and social movements in the countryside and to establish social narratives through a discourse of hatred that stimulate targeted attacks on indigenous peoples and other traditional territories and land holdings, but also in the structural financial erosion of state environmental and human rights bodies such as Ibama, ICMBio or FUNAI. This can also be seen in the shortening of state programs such as small loan subsidies or purchase programs for regional, agricultural products such as PAA or PNAE, but also in various legislative projects such as the PL490, which provides for a deadline regulation, the so-called “marco temporal”, to deal with legal processes to adapt the demarcation processes of indigenous territories in the interests of the agricultural lobby. This also includes the two legislative proposals, also known as the “land grab laws”, “PL da grilagem”, one in the National Congress, PL2633 / 2020, the other in the Senate as PL 510, which are supposed to legalize the illegal appropriation of land retrospectively – and, last but not least, Bolsonaros PL 191, which aims to legalize mining, hydropower and industrial agriculture in indigenous territories.
And now the Attempt to initiate Brazil’s withdrawal from Convention No. 169 of the International Labor Organization (ILO).
The official bipartisan association in the Brazilian National Congress, the Frente Parlamentar da Agropecuária (FPA), took place on August 12th this year published a document on her website calling for her to leave ILO 169. There, the farmers’ faction argues that the ILO 169 is curtailing Brazil in the “powers to legislate, administer, draft and evaluate national and regional development plans and programs, to build roads, hydropower plants and other infrastructure measures – in short, to make sovereign decisions about what for the progress and development of the country is most needed ”. The FPA therefore demands that Brazil withdraw from ILO 169 as soon as possible. According to ILO regulations, this can happen every ten years, since Brazil signed the ILO in 2002, this step could be completed by September 5, 2022, according to the farmers’ lobby.
This is in line with Bolsonaro’s ideas. Shortly after taking office, he too announced that Brazil’s exit from ILO 169 was urgently needed in order not to hinder the country’s development any further. In March 2019, the Bolsonaro government was the first to send Brazil’s ambassador to the UN in Geneva, Maria Nazareth Farani Azevêdo, who publicly referred to the possibility that Brazil could leave ILO Convention 169. This was followed in October 2019 by the GSI Security Cabinet, which reports directly to the President of Brazil and, according to a press report on October 4, 2019, called on the AGU to issue a groundbreaking ruling by the STF Supreme Court from 2006, which invalidated the ILO that was ratified by Brazil in 2002. Convention 169 also affirmed quilombolas (descendants of black escaped slavery) to review legality. According to the press report at the time, the GSI document also reminds of the next possible termination period should Brazil decide to withdraw from ILO Convention 169: According to the GSI document, this could happen between September 5, 2021 and September 5, 2022. The GSI document mentions the “effects of ILO Convention 169 on the development of the country” as a justification for a possible exit by Brazil. The GSI document proposes the establishment of a working group to work out a new proposal for a presidential decree that should regulate the modus operandi of the “prior consultation of indigenous peoples and tribes”. Here, too, the GSI, which is now largely dominated by the military, provides a justification: the previous application of ILO 169 affects “projects of national interest”.
Bolsonaro himself never made a secret of his hatred of indigenous people. “Not one centimeter more will be demarcated as an indigenous reserve”, should he be elected President of Brazil, the former MP and far-right captain retired, Jair Bolsonaro, sounded in April 2017. “In 2019 we will dismantle the Raposa Serra do Sol indigenous reserve. We will give guns to all ranchers, ”he announced in 2016. Three years later he became president of South America’s largest state. His attacks on indigenous rights are now correspondingly. And it is also evident in his political practice: the new designation of the indigenous areas as legally protected territories (“Terra Indígena”) required by the constitution of 1988 have accordingly decreased to zero under the Bolsonaro government.
ILO Convention 169 was signed by Brazil in 2002, ratified in 2004 and implemented in national law by a presidential decree. According to the reading of the Supreme Court of Brazil STF, international legal treaties signed by Brazil stand below the legal validity of the Brazilian Constitution, but above any law. In the case of the various above-mentioned legislative initiatives by Jair Bolsonaro and the ruralistas for the economic valorization of the indigenous territories, this would mean that the right to free, prior and informed consultation stipulated in Art. 6 and 7 of ILO Convention 169 unites President Jair Bolsonaro Could thwart the bill. Article 6, sentence 2 of ILO Convention 169 states: “The consultations carried out in application of this Convention are to be carried out in good faith and in a form appropriate to the circumstances with the aim of obtaining agreement or consent with regard to the proposed measures.” So a future law passed by the Brazilian National Congress at Bolsonaro’s instigation to revalue indigenous territories through industrial agriculture, mining and dams threatens to come into conflict with ILO Convention 169, if it were important for the Bolsonaros and consorts that Brazil previously withdrew from the convention .
The fulcrum in the dispute between the economic exploitation interests of a Bolsonaro government and the protection interests of the indigenous peoples of Brazil in the struggle for their territories is the question of the “consent” to be obtained from the indigenous peoples mentioned in Article 6 and how the “consultation” in detail have to look. And it is precisely in this tension between “consultation” and “consent” that the dispute about the interpretation of ILO Convention 169 in Brazil has been moving for years.
Project operators and the governments of different political stripes in Brasília usually believe that it is sufficient to hold consultations in the form of hearings. This has happened with all major infrastructure projects to date, such as rural roads, hydropower plants and dams, as well as mining permits. Hearings were held which often did not have the character of a free, prior and informed questioning, which did not take place “in good faith” and which did not provide for a vote, possibly even with a veto right of the indigenous peoples concerned.
Indigenous peoples, as well as the relevant UN bodies and the ILO, however, clearly take the position that the ILO Convention requires free, prior and informed consent (FPIC), in accordance with the UN declaration the rights of indigenous peoples (UNDRIP), which also makes the FPIC mandatory in several cases, especially when territories and livelihoods of indigenous peoples are affected or a project provides for their resettlement. Free and informed consent assumes that prior real consultations have taken place in good faith (“good faith consultations”). According to indigenous peoples, international legal experts and human rights organizations, consultation, participation and consent are all three equally basic requirements for legal protection for indigenous peoples. And if “consent” is required, this must, conversely, mean that a project cannot be carried out if the communities concerned do not give their consent. However, Brazil’s jurisprudence has not yet recognized this accordingly.
The question that remains is whether Bolsonaro and his colleagues can manage Brazil’s withdrawal from ILO 169, which is now being sought? Unfortunately, this danger is very real. For this requires the approval of the two chambers, the House of Representatives and the Senate, of the Brazilian National Congress, but since the powerful Farmer: Innenlobby has now fired on it, it will not be easy in Congress to prevent this.
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