Since Brazilian President Jair Bolsonaro took office in 2019, the fate of the Amazon and its indigenous peoples has been hanging by a thread. With the executive, legislature and judiciary having now decimated the environmental agenda, Brazil’s paths to a greener future look bleak.
In 2021, deforestation in the Brazilian Amazon reached its highest level since 2006, while illegal mining in legally protected Yanomami indigenous lands increased by 46%. This gold mining led not only to malaria and mercury exposure, but also to unprecedented violence against indigenous peoples. In 2019, 277 cases of such violence were recorded, including 113 murders, 33 death threats, 16 cases of racist and ethnocultural discrimination and 10 cases of sexual violence.
The exploitation and destruction of the largest tropical forest in the world is based on well-known methods. For starters, Bolsonaro’s government neutralized agencies created to protect the environment and indigenous peoples. These include the Brazilian Institute of Environment and Renewable Natural Resources, the Chico Mendes Institute for Biodiversity Conservation, and the National Indigenous Foundation.
The current administration has weakened these agencies in part by not applying environmental fines: since 2019, 98% of administrative proceedings relating to environmental offenses have been paralyzed. Funding to prevent and control forest fires has been cut by around 38% compared to 2018. The government has also intimidated and sacked officials for being proactive in enforcing environmental law, and legalizing the actions of squatters and land grabbers on indigenous lands.
Bolsonaro is pursuing a no-prisoners approach to overturning hard-won rights. Dismantling the authority of monitoring and protection agencies, creating rules to hinder environmental sanction processes and capturing institutions takes time and requires a permissive institutional framework.
Bolsonaro is not silent on this. He publicly urges the invasion of native lands, saying they should be occupied for mining, farming, and ranching. It is no coincidence that invasions, illegal mining and deforestation of indigenous lands have increased sharply – and gone unpunished – since 2019.
The president’s allies hold key positions in Brazil’s Congress, where landowners and agribusiness are strongly represented. The “rural caucus” currently controls 245 of the 513 seats in the chamber. Congress is working on a series of controversial bills that will most likely destroy natural resources and erode institutional safeguards, with disastrous consequences for the environment and the rights of indigenous peoples.
For example, Bill 2159/21 will abolish environmental licensing. Bills 2633/20 and 510/21 encourage the illegal occupation of public lands, Bill 6299/02 facilitates the approval of pesticides and Bill 490/07 adopts a time limit (marco temporal) criterion – October 5, 1988, the date on which the Brazilian Federal Constitution was promulgated – as a condition for delimiting indigenous lands. Finally, Bill 191/20 authorizes mining and hydroelectric dams on indigenous lands and was recently fast-tracked through Congress with little debate or transparency.
For those seeking to preserve Brazil’s priceless natural resources and protect its indigenous peoples, the judiciary should be the natural forum of last resort. Brazil’s Supreme Court, or STF, currently has to rule on seven lawsuits, known as the “green case”, challenging the government’s environmental record. But while final decisions are pending, the contrasting initial votes from two judges highlight the obstacles facing the green case.
Judge Cármen Lúcia compared the government’s attacks on the green agenda to a “colony of termites”, pointing to the effectiveness of the assault in destroying protective mechanisms and, ultimately, democracy itself. But Lúcia also went further, saying the government’s failure to protect the environment had created an “unconstitutional situation”.
As César Rodríguez-Garavito of New York University explains, such a statement may involve the court ordering “various government agencies to take coordinated action to protect the entire affected population and not just specific plaintiffs.” in the case”.
A decision of this nature invites several challenges, including from critics of judicial activism. But in the face of a systemic failure deliberately caused by elected institutions and an environmental emergency directly affecting the survival of Brazilian indigenous groups, the STF should assume its constitutional role.
Unfortunately, Lúcia’s promising decision was suspended by a single judge, André Mendonça, a recent Bolsonaro named who was previously his justice minister. According to STF’s practice, there is no time limit for reconsidering a suspended prosecution. Only Mendonca can decide if and when the STF will consider the case – a mechanism that is widely seen as a form of veto that undermines the court’s legitimacy.
The remaining hope lies in the mobilization of Brazilian civil society before the presidential and legislative elections in October. During the recent 18th Acampamento Terra Livre, a historic event for indigenous resistance and the struggle for rights, around 8,000 indigenous people from all over the country occupied the seat of the federal government in Brasilia. For the first time, Indigenous Mobilization brought institutional politics to the fore, pre-dropping congressional candidates with the slogan ” Retomando o Brasil: demarcar territórios e aldear a política‘ (“Taking Back Brazil: Delimiting Territories and Reshaping Politics with Villages”).
On April 12, former president and current candidate Luiz Inácio Lula da Silva visited the camp and promised to demarcate indigenous territories and respect International Labor Organization Convention 169, if elected. . That promise might not be enough, given the pressing environmental crisis, but upward pressure is currently all we have.
Bolsonaro’s authoritarianism will lead to a highly polarized election. He repeatedly questions the legitimacy of Brazil’s electronic ballots. With increasing deforestation in the Amazon, global hope for climate justice is as threatened as Brazilian democracy.
Danielle Hanna Rached is Professor of International Law at the Getulio Vargas Foundation in Rio de Janeiro. Marta Machado, professor at the Faculty of Law of the Getulio Vargas Foundation in São Paulo, is a researcher at the Brazilian Center for Analysis and Planning and a researcher at the Center for Law and Social Transformation. Denise Vitale is a professor of human sciences and international relations at the Federal University of Bahia.
© Syndicate Project 2022