National Congress sees previously approved proposals and laws aggravating the climate crisis

Although the Federal Executive is now taking a new stance in terms of environmental and climate policy in Brazil, draft bills known as ´the Socioenvironmental Destruction Package´ are currently being processed or have already been approved in the National Congress. These texts have the potential to exacerbate the climate crisis and disregard scientific data even in times of extreme catastrophic events.

Among these setbacks, the most prominent is Law 14,701, which undermines indigenous rights by establishing the “timeframe thesis,” approved by the National Congress last October. Now, the law is being challenged in the Supreme Federal Court (STF) through actions filed by the Articulation of Indigenous Peoples (Apib), political parties, and other organizations. 

Specifically on the matter of discussions surrounding the timeframe thesis, when the proposal was under consideration in the Brazilian parliament, the Inter-American Commission on Human Rights (CIDH) stressed that the failure to recognise historical and cultural identities and rights identities of Indigenous peoples and Quilombola communities stems from the racial and structural discrimination they have always been subjected to in Brazil. In the same period, the UN emphasised that the timeline thesis violates the fundamental rights of the Indigenous peoples, set out in the United Nations Declaration on the Rights of the Indigenous Peoples and jeopardises not only their lives and cultures but also environmental equilibrium in their regions.

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“The relationship between human rights and climate is undeniable and takes various forms, affecting diverse communities. These bills not only harm the general population, exacerbating the impacts of climate change, but also directly attack the rights of Indigenous and Quilombola peoples, who play a crucial role in biodiversity protection.” Said João Godoy, coordinator of the Socioenvironmental Rights Defence Programme at Conectas.

According to Godoy, “for Brazil to undertake effective and inclusive climate action, it is necessary to integrate human rights and socio-environmental aspects, guided by climate justice, combating environmental racism, protecting Indigenous and traditional territories and ensuring democracy.” 

The environmental degradation resulting from these projects affects the health, food security and quality of life of everyone, while simultaneously weakening the protection of ecosystems maintained by these traditional communities.

According to the Climate Observatory (OC), a network of environmental entities fighting the climate crisis, there are at least 25 bills and proposals for constitutional amendments with the potential to worsen the climate crisis. 

These laws “affect established rights in areas such as environmental licensing—an important tool for society against potentially destructive economic activities—land grabbing, Indigenous rights, and the financing of environmental policy. There are also others that relax the Rainforest Code, legislations on water resources, mining, the ocean and coastal zones, some of which it is highly likely will go ahead in the near future.” It says in the OC publication.

The Timeline Thesis bill violates the Indigenous peoples’ constitutional right to territory 

In effect under Law 14,701/2023, it regulates Article 231 of the Federal Constitution, addressing the recognition, demarcation, use and management of Indigenous lands. Various Indigenous, indigenist, environmental, and human rights organizations have denounced the processing of this law at the UN. There was no consultation with important Congressional committees, nor was there free, prior, and informed consultation allowing active participation of Indigenous peoples. Additionally, the law is incompatible with international standards and human rights treaties.

Setbacks: 

1. Establishment of the timeframe thesis for the demarcation of Indigenous lands, making the right to their ancestral territories conditional on the presence of these peoples on the land on 5 October 1988, the date of the promulgation of the Constitution.
2. Authorisation for the construction of roads, dams and other projects on Indigenous lands without prior, free, informed consultation.
3. Permission to grow soy beans and raise cattle on Indigenous land.
4. Creation of rules that make the demarcation process endless, meaning it is impossible to conclude.
5. Prevention of the removal of invaders from Indigenous lands until the demarcation process is finalised, enabling invasions and facilitating organised crime.
6. End of the no-contact policy for isolated Indigenous peoples
7. Reformation of constitutional concepts of Indigenous policy, such as the traditionality of occupation, original rights and the exclusive use of territories by Indigenous peoples.
8. Allowing already demarcated and ratified lands to be reclaimed by the State if there are changes in the “cultural traits” of the Indigenous peoples or other changes due to the “passage of time,” undermining the perfect legal act and acquired rights and creating racist criteria outdated by international legislation, such as the idea of “acculturation” and the possibility of defining Indigenous identity based on subjective and unilateral criteria of the Brazilian state.

Pesticides Bill: changes the rules for the approval and commercialisation of chemical products for agriculture.

In December 2023, the bill, known at the time as the “Poison Bill,” was promulgated. It eases the regulation and use of pesticides in Brazil. It was presented 25 years ago by former Senator Blairo Maggi (independent/Mato Grosso). The initial proposal sought to amend two items of the Pesticide Law. However, the current text repeals the existing legislation and introduces 67 new articles.

With strong support from the agribusiness and ruralist bloc in the National Congress, coordinated by the Parliamentary Agricultural Front (FPA), it was approved in the Committee in 2018, under the rapporteurship of Deputy Luiz Nishimori (PSD/PR) and the presidency of Tereza Cristina (PP/MS), who was a federal deputy at the time.

More than 300 organizations and public bodies, such as Fiocruz, Inca, Anvisa, and Ibama, signed a petition against the proposal, which seeks to serve the interests of multinational agrochemical companies and is an attack on the health and rights of the population.

Setbacks: 

1. It facilitates the approval of pesticides and the registration of new substances by reducing the evaluation criteria and the time required for approval.
2. It centralises authority by excluding key health (Anvisa) and environmental (Ibama) agencies from the decision-making process for the approval of new pesticides, thereby reducing the influence of health and environmental bodies.
3. It reduces restrictions on the use of substances that are currently considered hazardous to human health and the environment.
4. Facilitates the entry of generic pesticides into the market, allowing the use of existing substances without the need for new detailed impact studies.
5. The easing of regulations may increase exposure to toxic substances for the environment, the population, and especially vulnerable communities, with potential adverse consequences for public health and biodiversity.
6. It removes explicit prohibition of approval of carcinogenic, teratogenic and mutagenic substances and eliminates the requirement to prioritise the approval of less toxic molecules. 

Environmental Licensing Bill: weakens the regulations for licensing areas for projects 

There is a long-standing discussion about the need for a comprehensive and unified environmental licensing process. Projects, currently need to meet federal requirements and adapt to the rules of the relevant state. These vary significantly. 

Bill 2159/2021 has been approved by the Chamber of Deputies and now awaits analysis by the Federal Senate under the rapporteurship of Senator Tereza Cristina (PP/MS) and Senator Confúcio Moura (MDB/RO) who sit on the Agriculture and Environment Committees. Approval of the bill has the strong support of the Parliamentary Agricultural Front and the National Confederation of Industry (CNI). It weakens environmental licensing in the country.

Environmental organizations, such as the coalition of NGOs Climate Observatory, fear that the approval will represent the “mother of all setbacks,” in the words of Suely Araújo, the coalition’s public policy coordinator.

Setbacks: 

1. Environmental licensing, the main tool for preventing socio-environmental damage, would no longer prevail.
2. Under self-declaratory licensing (LAC), developers would not need to present environmental studies.
3. A number of activities would be exempt from environmental licensing.
4. States would be free to define the types of projects and requirements for environmental studies and national level guidelines would be removed.
5. Legal uncertainty would increase and competition between states to attract investments by requiring less environmental protection would be stimulated.
6. Mitigation measures for indirect impacts, such as deforestation, gas emissions, and socioeconomic factors would be restricted.
7. Threatens Indigenous and traditional communities by considering environmental impacts only on those in ratified and demarcated areas.
8. Reduces the power of management agencies, such as ICMBio, by removing their veto and limiting their role to a consultative capacity.

Land Grabbing Bills: ease regulations on land regularisation, legalising the irregular occupation of public lands.

Currently being processed in the Federal Senate and attached to Bill 510/2021 by Senator Irajá Abreu (PSD/TO), Bill 2633/2020 by Deputy Zé Silva (SOLIDARIEDADE/MG) it was approved in the Chamber of Deputies in August 2021. The bill’s rapporteurs are Senator Marcos Rogério (PL/RO) on the Agriculture and Agrarian Reform Committee (CRA) and Senator Eliziane Gama (PSD/MA) on the Environment Committee (CMA).

The bill seeks to ease land regularisation norms, a right already guaranteed by Law No. 11,952 of 2009, which was relaxed in 2017. With strong support from the ruralist bloc, the real aim of the bill is to extend these rights to land grabbers and large landowners, allowing the legalisation of the irregular occupation of public lands.

Setbacks of Bill 2633/2020:

1. It would extend exemption from inspection for small occupations (up to four fiscal modules) to medium areas of up to six modules.
2. It would allow future regularisation of invaded public lands at any time through bidding.
3. It would exempt properties of up to six modules from joining the Environmental Regularisation Programme (PRA) or signing a Conduct Adjustment Term (TAC) in case of environmental damage, requiring only the presentation of the CAR, which is incompatible with the Forest Code.

Setbacks of Bill 510/2020:

1. It would grant amnesty to those who invaded and illegally deforested public land prior to December 2014.
2. It would increase the risk of granting official registration documents to areas in conflict or priority areas by eliminating prior inspection for large estates of up to 2,500 hectares and reducing the cases where inspection is mandatory.
3. It would allow new land registration documents to be issued to people who have been beneficiaries of public lands in the past.
4. It would provide incentives for the continuous occupation and deforestation of public lands by giving preference in the sale by auction to occupants after December 2014.
5. It would allow official registration documents to be granted for illegally deforested areas without requiring the regularisation of environmental liabilities, if no environmental citation has been issued.

The Constitutional Amendment – the Timeframe Thesis: limits the territorial rights of Indigenous peoples

Immediately after the majority of Supreme Federal Court justices decided to annul the timeframe thesis, a constitutional amendment proposal was presented by Senator Dr Hiran (PP/RR). Additionally, 26 other senators associated with the agribusiness and mining sectors signed the amendment, which aims to constitutionalise the timeframe thesis. The text considers the day of the Constitution’s promulgation, 5 October 1988, as the reference point for land rights: only those Indigenous peoples who were on the territory at that time would have the right to demarcation.

The amendment is currently being processed in the Federal Senate, where the Constitution, Justice, and Citizenship Committee (CCJC) is evaluating whether the proposal meets the formal and constitutional requirements to be discussed and voted on. The amendment will not go through other committees before being presented to the plenary.

Setbacks:

The amendment limits the rights of Indigenous peoples to the lands they occupied on 5 October 1988, disregarding forced displacements before that date.

1. The proposal would reverse the progress in rights guaranteed by the 1988 Constitution, which recognises original rights over traditionally occupied lands with no mention of a timeframe.
2. It would restrict territorial rights and threaten the preservation of Indigenous cultures and ways of life.
3. The lack of demarcation could intensify conflicts between Indigenous peoples and the agribusiness and mining sectors.
4. The amendment could violate international human rights treaties, such as ILO Convention 169.
5. Denying territorial rights perpetuates the poverty and marginalisation of Indigenous communities.

PEC 59/2023: Indigenous land demarcation assigned to the National Congress instead of the Executive Branch

The proposal was presented by Carlos Viana (PODEMOS/MG) and other senators at the end of 2023 and is now being processed in the Federal Senate.

The proposal has the strong support of the ruralist bloc, which has an interest in facilitating agricultural and mineral exploitation in Indigenous territories. It aims to transfer the responsibility for Indigenous land demarcation from the National Indian Foundation (Funai) to the National Congress. 

The process of land demarcation is regulated by Decree No. 1,775/96 and is currently the responsibility of the Executive Branch. This change would mean that the demarcation process, which is technical and legal, would become a predominantly political decision.

Setbacks:

1. The proposal violates the entrenched clause of the Constitution that guarantees the separation of powers, as it transfers the responsibility for demarcating Indigenous lands, a function that has historically belonged to the Executive Branch, to the National Congress.
2. Funai, created to protect Indigenous rights, would lose one of its most important functions, weakening the institution and leaving Indigenous communities more vulnerable to external pressures.
3. The demarcation of Indigenous lands is a technical process, based on anthropological, historical, and legal studies. Transferring this responsibility to the National Congress would make the process a political one, subjecting it to partisan and economic interests instead of technical criteria and historical justice.
4. Even if approved through a Constitutional Amendment, delegating this responsibility to Congress is likely to be challenged in court, as it interferes with the fundamental rights of Indigenous peoples and contradicts principles laid down in the Constitution.

Bill 6050/2023 eases regulations on economic activities on Indigenous lands.

This bill was proposed by the Parliamentary Inquiry Commission on NGOs and is currently being reviewed by the Human Rights and Participatory Legislation Committee, where it awaits the appointment of a rapporteur.  

The bill, which is still in the early stages of processing in the Federal Senate, has not yet received any amendments and will also be reviewed by the Infrastructure Services, Environment, and Constitution, Justice, and Citizenship Committees.

Setbacks:

1. The bill aims to regulate mineral exploration and other economic activities on Indigenous lands. This could pave the way for increased exploitation of these territories, with potential negative socio-environmental impacts such as deforestation, water pollution and loss of biodiversity.
2. By easing economic activities on Indigenous lands, the bill implies a reduction in the rights and protection of these communities. This contradicts the constitutional rights of Indigenous peoples to their land and the natural resources contained on them. It also disregards the requirement for prior, free, and informed consultation, as stipulated in international treaties and the Brazilian Constitution.

Bill 4546/2021: Establishes a water infrastructure policy disconnected from the National Water Resources Policy.

Currently being processed in the Chamber of Deputies. Presented by the Executive Branch in 2021, it was appended to Bill 603/2003 and is awaiting comment by the rapporteur, Deputy Adriana Ventura (NOVO/SP), on the Public Administration and Service Committee (CASP). 

Known by environmentalists as the “Water Privatization Bill,” the proposal suggests an approach to water infrastructure that may overlook the sustainability and integrated management of water resources advocated by the National Water Resources Policy.

Setbacks:

1. It would drastically affect the National Water Resources Policy by removing  decentralisation and the participative management of water.
2. It would reduce the autonomy of basin committees in approving river basin management plans.
3. It does not consider water as a public asset, disrespects its status as a human right and undermines constitutional principles.
4. The prioritisation of large-scale projects, such as dams, has historically displaced local and Indigenous communities, causing social conflicts and the loss of traditional territories. The bill intensifies these problems without providing adequate solutions for those affected.
5. By encouraging private sector participation in the financing and exploitation of water infrastructure, the bill may lead to excessive pressure on critical river basins, increasing the vulnerability of these areas.