Legal Issues Report

Table of Contents

I. Executive Summary.................................................................................................................2
II. Applicable Legal Framework..................................................................................................2
A. National................................................................................................................................3
B. Regional...............................................................................................................................8
C. International.......................................................................................................................10
III. Violation of Laws in Expanding Pipelines Across Maranhāo...............................................12
A. Background of Pipeline Expansion...................................................................................13
B. Analysis of National, Regional, and International Violations...........................................15
IV. Recommendations..................................................................................................................17
A. Law for the Protection of Indigenous Rights and Territories Against Gas Pipeline
Expansion..................................................................................................................................17
V. Bibliography..........................................................................................................................19
I. Executive Summary

This report addresses the major legal issues that stand in the way of Oil Free Amazon in our
mission to spread awareness and advocate for legal action in safeguarding the fundamental
human rights of the Guajajara Indigenous community of Maranhāo. In the Brazilian state of
Maranhāo, a proposed pipeline threatens to cut through Guajajara land, representing an extensive
violation of their rights.

Despite domestic law, as well as numerous international treaties and conventions on point,
Indigenous communities in Brazil encounter significant obstacles in seeking justice for violations
of their rights. The criminalization of Indigenous activism, the lack of accountability and
impunity—as well as significant barriers to accessing justice—perpetuates a cycle of oppression
and human rights violations in Brazil.

The expansion of gas pipelines poses a direct threat to the rights of the Guajajara community;
specific rights violations, such as land dispossession and environmental degradation, are
exacerbated by legal complexities that impede the community’s ability to seek recourse.
Significant barriers to justice exist for the Guajajara community: such as, geographical
remoteness, financial constraints, and systemic discrimination in the legal system. It is vital that
the Brazilian state decriminalizes Indigenous activism, holds those that violate Indigenous rights
accountable, and reduces the barriers to justice.

Under the new administration, Brazil has made significant advancements toward realizing the
rights of Indigenous peoples. However, Brazil continues to violate domestic laws, as well as
regional and international conventions. In advocating for and backing the proposed pipeline in
Maranhāo, the Brazilian government is violating its commitment toward protecting the rights of
the Guajajara community.

By invoking domestic law and leveraging regional and international human rights conventions,
Oil Free Amazon is working toward a future where Indigenous rights are respected and
protected. This report will begin by summarizing the domestic, regional, and international legal
frameworks on point. Then, this report identifies the laws that the proposed pipeline violates.
Finally, this report makes recommendations for a draft law that addresses the legal issues faced
by the Guajajara community.

II. Applicable Legal Framework

Brazil has committed itself to numerous laws and conventions recognizing and promoting the
rights of Indigenous peoples and their territories. Beyond the Constitution of 1988, Brazil
enacted numerous statutes and national policies, as well as tried a handful of cases in which the
government committed itself to protecting the rights of Indigenous peoples. Court cases, treaties,
and conventions—at both the regional and international level—reinstate Brazil’s obligations to
the Indigenous populations within its borders.

A. National

2
Within its jurisdiction, the Brazilian government is obligated to protect and promote the rights of
Indigenous peoples and their territories. As highlighted within the Constitution of 1988, the
Statute of Indigenous Peoples, and the National Policy for the Sustainable Development of
Traditional Peoples and Communities, Brazil seems committed to protecting Indigenous rights to
their traditional lands and territories. This commitment is additionally invoked within Brazil’s
judiciary as Supreme Court cases uphold and expand upon the right of Indigenous peoples to
occupy their traditional lands. Despite the seemingly robust national commitment, Indigenous
people have faced significant obstacles and barriers to realizing their rights as demonstrated
within these cases.

Title VIII, Chapter VIII of the Constitution of the Federative Republic of Brazil describes the
rights of Indigenous peoples within Brazil as well as the government’s commitments and
obligations to them.1 Specifically, the government is called upon to demarcate, protect, and
ensure respect for the traditionally occupied and original lands of Indigenous people.2 Paragraph
1 of this section further describes that traditionally occupied lands extend to “those used for their
productive activities, those indispensable to the preservation of the environmental resources
necessary for their well-being and for their physical and cultural reproduction.”3 Thus, the
Brazilian government is acknowledging the integral protection of lands traditionally occupied by
Indigenous peoples is fundamental for the preservation of their way of life, including access to
resources essential for their sustenance.

Paragraph 6 of this section reinforces the constitutional protection of Indigenous lands—stating,

in part, “Acts with a view to occupation, domain and possession of the lands referred to in this
article or to the exploitation of the natural riches of the soil, rivers and lakes existing therein, are
null and void, producing no legal effects, except in case of relevant public interest of the
Union.”4 The Constitution thus invalidates attempts to occupy or exploit Indigenous lands with a
caveat, however. In cases where there might be a legitimate public interest in the land or its
resources, occupying and exploiting Indigenous lands and resources may be validated. These
actions must be carefully considered, however, and aligned with the broader interests of the
federal government.5

1
CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 231-232 (Braz.)[hereinafter BRAZIL
CONSTITUTION], translated at
https://www.oas.org/es/sla/ddi/docs/acceso_informacion_base_dc_leyes_pais_b_1_en.pdf.; see
Pedro Calafate, 25 INT’L J. MINORITY & GRP. RTS. 183 (May 2018) for a discussion on the
development of Indigenous rights in Brazil in relation to constitutional acknowledgement.
2
BRAZIL CONSTITUTION, supra note 1.
3
Id. at 153.
4
Id.
5
See Ana Paula Akerman Sheps, The Dispute over the Raposa Serra do Sol Reserve
Demarcation: A Matter of Indigenous Constitutional Rights or National Sovereignty?, ANUARIO
MEXICANO DE DERECHO INTERNACIONAL, 2010. Describing that “While the Federal
Constitution of 1988 guarantees to the [I]ndigenous the rights to the lands, the property of lands
belongs to the Federal government and not to the [N]atives” who “can live an duse the land for
all possible means of survival, but cannot alienate or simply sell it, as the property belongs
unquestionably to the Federative Republic of Brazil.”
3
Before the 1988 adoption of the Constitution, Brazil promulgated Law No. 6.001 in 1973,
denominated as The Indian Statute.6 This statute, although conflicting with various parts of the
Constitution, continues in force.7 Focused on protecting the rights and interests of Indigenous
peoples, Indigenous lands and territory are of fundamental consideration in the statute. 8
Recognizing Indigenous lands as the exclusive domain of the Indigenous communities, this
statute details numerous governmental obligations in protecting Indigenous land rights. Beyond
ensuring the defense of Indigenous lands using the Armed Forces and Federal
Police, the federal government is tasked with developing administrative and judicial procedures
to protect the possession of Indigenous lands.9 The federal government is additionally tasked
with assisting Indigenous peoples in the judicial and extrajudicial defense of their rights.10

The Indian Statute regulates the use and exploitation of natural resources within Indigenous
lands as well. Article 22 recognizes Indigenous peoples’ “right to exclusive enjoyment of natural
resources and all utilities” existing on Indigenous lands.11 Expanding on this right, the statute
“establishes that only [I]ndigenous people may exploit, usufruct and benefit from natural
resources of the lands” and that “all activities (such as: hunting, fishing, harvesting, etc.) in these
areas only are permitted to inhabitants.”12 Like the Constitution, this statute permits the
exploitation of natural resources in cases of great national interest, and the government may
intervene in Indigenous lands “to carry out public works that are of interest to national
development.”13

In 2007, Brazil promulgated Decree No. 6.040/2007, establishing the National Policy on
Sustainable Development of Peoples and Traditional Communities (PNPCT). PNPCT promotes
and regulates sustainable development plans within the country while simultaneously seeking to
strengthen Indigenous rights in relation to the land, environment, and economy.14 Article 3 of the

6
Maria Veirislene Lavor Sousa, Reflections on Indigenous Rights In Brazil: Brief History and
Current Legislation, REVISTA DA FAEEBA: EDUCAÇÃO E CONTEMPORANEIDADE (2023); Dispõe
sobre o Estatuto do Índio, PRESIDÊNCIA DA REPÚBLICA CASA CIVIL SUBCHEFIA PARA ASSUNTOS
JURÍDICOS (1973), https://faolex.fao.org/docs/pdf/bra14188.pdf.
7
Indian Statute, POVOS INDÍGENAS NO BRASIL, https://pib.socioambiental.org/en/Indian_Statute,
for example, the Indian Statute intends to both preserve Indigenous culture while concomitantly
integrating Indigenous people into the national community. This policy of assimilation is largely
done away with in the 1988 Constitution, which seeks to instead consider the diversity of
Indigenous cultures.
8
Sousa, supra note 6.
9
Id.; Dispõe sobre o Estatuto do Índio, supra note 6, at Capitulo V.
10
Dispõe sobre o Estatuto do Índio, supra note 6, at Capitulo V.
11
Id. at art. 22.
12
Law No. 6.001 Establishing the Indigenous People Statute, L. & ENV’T ASSISTANCE
PLATFORM, https://leap.unep.org/en/countries/br/national-legislation/law-no-6001-establishing-
indigenous-people-statute#:~:text=It%20establishes%20that%20only%20indigenous,only
%20are%20permitted%20to%20inhabitants.
13
Dispõe sobre o Estatuto do Índio, supra note 6, at art. 20.
14
DECRETO No. 6.040, de 7 de fevereiro de 2007, Diário Oficial da União [D.O.U.] de
8.2.2008 (Braz.). Article 2 denotes “The PNPCT’s main objective is to promote the sustainable
development of the Peoples and Traditional Communities, with an emphasis on recognizing,
4
Decree lays out the specific objectives which include guaranteeing the access of Indigenous
peoples and communities to their traditionally used territories and natural resources. 15 Unlike the
two previous documents, this Decree guarantees the rights of Indigenous peoples in the face of
projects, works, or undertakings that directly or indirectly affect the communities.16 The
government is also obligated to support and guarantee the productive inclusion of Indigenous
peoples and communities in the promotion of sustainable development.17 Acknowledging the
importance of traditional territories for the livelihoods and cultural identity of Indigenous
peoples and communities, the Decree also recognizes the right of these folks to sustainable
access and use of natural resources within their territories.

The Constitution, Statute, and Decree each acknowledge the importance of land in maintaining
the cultural, social, economic, and political practices of Indigenous peoples. With this
acknowledgment, each emphasizes the need for recognition and demarcation of the traditional
lands and territories of Brazil. As the Constitution mandated the demarcation of Indigenous lands
and established the responsibility of the federal government to carry out this process,18 the
Supreme Court was presented with several cases revolving around the recognition and protection
of the rights of Indigenous peoples to their traditional lands—two of which will be discussed
here.

The demarcation of the Raposa Serra do Sol Indigenous territory in the state of Roraima began in
the 1970s, but the land was not declared to be in permanent Indigenous possession until 1998.19
In 2005, President Lula signed a decree reaffirming the continuous and exclusive nature of the
territory. As this territory was subjected to violent clashes for land, the Raposa Serra do Sol
Indigenous community faced significant opposition from non-Indigenous farmers and ranchers,
the Roraima state, and the Brazilian military. Not only were these third parties claiming that their
due process was not respected, but they also argued that the demarcation was unconstitutional
because it had the potential to threaten national security and impede economic activities. 20 Non-

strengthening and guaranteeing their territorial, social, environmental, economic and cultural
rights, with respect and appreciation for their identity, their forms of organization and their
institutions.”
15
Id. at art 3, section I.
16
Id. at art. 3, section IV.
17
Id. at art. 3, section XVII.
18
The demarcation process begins when the Brazilian government identifies an area to be
demarcated using legal, anthropological, historical, environmental, and other forms of evidence.
As required by due process, all parties have an opportunity to contest the demarcation within 90
days of publication of the demarcation plans. These third parties have the burden of proof
however this opportunity to contest is controversial as it attempts to refute a right that is
inherently Indigenous. It is important to note the demarcation process is “highly contentions” and
“the only certainty in regards to the demarcations is the fact that each time lands are subjected to
demarcation in Brazil, [I]ndigenous rights are further questioned, and violence towards them is
likely to occur.” Ana Paula Akerman Sheps, supra note 5. (providing useful analysis of the law in
question; however, this organization does not support the overall conclusion of Sheps’s article.)
19
Id.
20
Supreme Court Upholds Indians’ Rights in Historic Ruling, SURVIVAL INT’L (Mar. 20,
2009), https://www.survivalinternational.org/news/4354.
5
Indigenous farmers and landowners, with the support of Justice Carlos Ayres Birtto, first
introduced the marco temporal argument.21 This legal theory posits that the physical occupation
of land by Indigenous communities at the time of the promulgation of the 1988 Constitution is a
crucial factor for the recognition and demarcation of those lands.

This conflict worked its way up to the Supreme Court and culminated in a 2009 landmark
decision in which the Court upheld the demarcation of the territory while also setting conditions
for the presence of non-Indigenous people within the territory, declaring that all non-Indigenous
occupants should vacate until a compromise could be agreed upon.22 Although the Raposa Serra
do Sol case represents a major victory in recognizing and upholding Indigenous land rights, the
Supreme Court’s reservations allow for serious intervention in Indigenous lands.23 Providing a
legal basis for government infringement, “’projects’ and ‘works’ to be undertaken without the
need for consent from the local [I]ndigenous community,” as well as “military installations, road
networks, [and] alternative energy exploration” may be permitted in Indigenous territory. 24 Thus,
the Supreme Court gives priority to national interests over the interests and, indeed, rights of
Indigenous people.

The marco temporal argument, first introduced in the Raposa Serra do Sol case, later appeared in
several Congressional bills that sought to open Indigenous lands and territories to extractivist
industries—bills which were heavily lobbied by the Bolsonaro administration.25 Disregarding the
historical and actual context of land dispossession and Indigenous persecution, this constitutional
interpretation seeks to limit the territorial rights of Indigenous peoples. Indeed, the marco
temporal argument repeatedly reached the Supreme Court and despite their rejection of various
elements of the argument,26 it reappeared in the demarcation process of the Xokleng Ibirama
Laklaño Indigenous Land of the Xokleng, Kaingang, and Guarani people in the state of Santa
Catarina.27 Beginning with the eviction of the Xokleng from lands they resided on in 2009, Santa

21
Cede Silva, Supreme court Set to Rule in Favor of Broader Indigenous Territorial Rights,
BRAZILIAN REP. (Sept. 21, 2023, 3:19 PM),
https://brazilian.report/liveblog/politics-insider/2023/09/21/supreme-court-broad-indigenous-
territorial/.
22
Id.
23
Ana Naomi de Sousa, Brazilian Indians Win Legal Battle, SOCIALIST LAW., Mar. 2010, at 17,
https://www.jstor.org/stable/pdf/42948523.pdf.
24
Id.
25
Edson Naknanuk Krenak, Indigenous Peoples Take Over Brasilia Demanding Security and
Freedom, CULTURAL SURVIVAL (Apr. 15, 2022),
https://www.culturalsurvival.org/news/indigenous-peoples-take-over-brasilia-demanding-
security-and-freedom.
26
Brent Millikan & Christian Poirier, Victory for Indigenous Peoples as Brazil’s Supreme Court
Rejects Attempts to Limit Indigenous Land Rights, INT’L RIVERS (Aug. 18, 2017, 3:35 PM),
https://archive.internationalrivers.org/blogs/260/victory-for-indigenous-peoples-as-brazil
%E2%80%99s-supreme-court-rejects-attempts-to-limit.
27
S.T.F.J., Repercussão geral no recurso extraordinário 1.017.365 Santa Catarina, Realtor: Min.
Edson Fachin, 21.02.2019, 1 (Braz.), https://redir.stf.jus.br/paginadorpub/paginador.jsp?
docTP=TP&docID=749577852; see also Setbacks on Indigenous Rights in Brazil, ARTICULAÇÃO
DOS POVOS INDÍGENAS DO BRASIL,

6
Catarina promoted the marco temporal argument throughout several appeals until arriving at the
Supreme Court in 2019.28 The Supreme Court then rejected the argument as unconstitutional in
September 2023, with Minister Luís Roberto Barroso describing “the Constitution is very clear,
there is no ownership of land traditionally belonging to Indigenous communities. This is the
solution to this case.”29

With such a recent decision, its exact effects are unknown, and, with significantly conflicting
branches of government, Indigenous people face serious obstacles and opportunities for realizing
their rights.30 This decision sets a precedent for all Indigenous land demarcation processes
throughout Brazil.31 Despite this decision being a clear victory for Indigenous folks and
communities in Brazil, the Supreme Court Ministers introduced proposals that have the potential
to threaten Indigenous rights to land.32

Brazil’s commitment to uphold, promote, and protect Indigenous rights—particularly to land and
territories—is enshrined in various legal instruments. Although the Constitution, various statutes
and decrees recognize and safeguard the traditional lands of Indigenous people, emphasizing
their right to possession and occupation, these communities continue to face serious obstacles to
realizing their rights. Supreme Court decisions reinforce the constitutional protection of
Indigenous lands but do not go all the way in ensuring cultural and territorial integrity against
encroachments.

B. Regional

At the regional level, Brazil is a signatory to the Organization of American States (OAS)
American Declaration on the Rights of Indigenous Peoples. While not a legally binding
instrument, this Declaration articulates principles and rights related to Indigenous peoples in the
Americas. Drawing inspiration from various international instruments, which will be discussed

https://apiboficial.org/files/2023/09/marcotemporal_panfleto_en_tela.pdf.
28
Kiya Amos-Flom, Triumph and Turmoil: The Xokleng Case and the Future of Indigenous Land
Rights in Brazil, COLUM. J. TRANSNAT’L L.: BULLETIN (Oct. 17, 2023),
https://www.jtl.columbia.edu/bulletin-blog/triumph-and-turmoil-the-xokleng-case-and-the-
future-of-indigenous-land-rights-in-brazil.
29
ARTICULAÇÃO DOS POVOS INDÍGENAS DO BRASIL [hereinafter APIB],
https://apiboficial.org/marco-temporal/?lang=en(last visited Dec. 8, 2023).
30
See Amos-Flom, supra note 28. (describing how this decision will “likely immediately impact
the 490 existing [I]ndigenous land claims” while President “Lula has also laid some groundwork
for new demarcation of [I]ndigenous territories by creating Brazil’s first Ministry of Indigenous
Peoples, led by [I]ndigenous woman Sonia Guajajara.” This decision is also expected to affect
“ongoing anti-Indigenous legislative bills, such as Bill 490, which would limit the establishment
of new [I]ndigenous reservations.” As this bill passed both chambers of Congress, a major
political and ethical divide clearly exists.)
31
APIB, supra note 29.
32
Id. For example, Minister Alexandre de Moraes suggested that landowners in Indigenous
territories who are occupying in ‘good faith’ could receive State compensation if they were to be
removed from the demarcated territory—potentially incentivizing illegal land occupation.
7
below, this Declaration addresses Indigenous rights related to land, territories, and natural
resources.33

Article XIX of the Declaration recognizes the right of Indigenous peoples to a healthy
environment and outlines principles related to its conservation, restoration, and protection. 34 Of
note, this article describes Indigenous peoples’ right to “manage their lands, territories and
resources in a sustainable way,” alongside their right to “be protected against the introduction,
abandonment, dispersion, transit, indiscriminate use, or deposit of any harmful substances that
could adversely affect [I]ndigenous communities, lands, territories and resources.”35 Thus, this
Article highlights the interconnectedness of Indigenous rights, environmental sustainability, and
the importance of safeguarding Indigenous communities’ relationships with the environment.
Article XIX further affirms the rights of Indigenous peoples to actively participate in the
management and protection of their natural surroundings in a manner that aligns with their
cultural values.36

Beyond the right to the protection of a healthy environment, the Declaration lays out the social,
economic, and property rights of Indigenous peoples.37 Article XXV recognizes the integral role
of traditional lands and resources in sustaining the unique cultural identity and spiritual well-
being of Indigenous communities—stating, “Indigenous peoples have the right to the lands,
territories, and resources which they have traditionally, owned, occupied or otherwise used or
acquired.”38 Article XXV, in asserting the rights of Indigenous peoples to their ancestral
territories, simultaneously emphasizes the intergenerational aspect of their responsibility for the
preservation and continuity of these lands, territories, and resources.39

Finally, Article XXIX of the Declaration addresses Indigenous peoples’ right to development. 40
Indigenous peoples have the right to actively participate in the development and determination of
programs affecting them.41 The Declaration furthermore obligates States to consult and cooperate
with Indigenous peoples in good faith before approving projects affecting their lands, territories,
and resources.42 Indigenous peoples also “have a right to restitution and, where this is not
possible, to fair and equitable compensation.”43 This article emphasizes the importance of
indigenous participation, consent, and protection from negative consequences in the context of
development initiatives affecting their rights and well-being.

33
Organization of American States, American Declaration on the Rights of Indigenous Peoples,
2016, O.A.S.T.S. No. 1, https://www.oas.org/en/sare/documents/DecAmIND.pdf.
34
Id. at art. XIX, 21–22.
35
Id.
36
Id. at 22.
37
Id. at 29.
38
Id. at art. XXV.
39
Id.
40
Id. at art. XXIX, § 3–5.
41
Id.
42
Id.
43
Id.
8
Numerous cases within the Inter-American Court of Human Rights address Indigenous rights to
land and property.44 These cases repeatedly demonstrate that “[I]ndigenous territorial property is
a form of property that is not based on official recognition of the State, but in the use and
possession of traditional lands and resources.”45 These Court decisions are legally binding on
Brazil, who has accepted its contention jurisdiction. Within the Court, Case 12.728, brought on
by an application filed by the Inter-American Commission on Human Rights, determined that
Brazil violated the communal property rights of the Xucuru Indigenous peoples when it failed to
demarcate their traditional lands in a timely manner.46 The Commission’s merit report included
recommendations to prevent further such human rights violations, urging Brazil to take
immediate action in removing non-Indigenous settlers from the traditional lands of the Xucuru
Indigenous peoples.47

Other decisions within the Inter-American Court obligate the State party to ensure the property
rights of Indigenous peoples, including their right to exclusive control and ownership, as well as
their right to be protected against third-party interference in their territories. 48 Jurisprudence
demonstrates states are required to demarcate the traditional lands and territories of Indigenous
people and may not act in a manner that affects the existence or value of the community’s
properties prior to demarcation.49 Other jurisprudence required the State party to provide
appropriate and effective administrative mechanisms to protect and ensure Indigenous peoples’
rights to their traditional territories.50 Before taking action that may affect the lands and natural
resources of Indigenous peoples, the State party must consult with the community and guarantee
that the community benefits from the action, if approved.51 Although the Inter-American Court
decisions are legally binding on the countries involved in specific cases, they do not
automatically bind other countries. These decisions can have persuasive authority, however, and
may be considered by other international and domestic courts.

Brazil, as a member state of the OAS, has made commitments to protecting and promoting
Indigenous rights to land and territory at the regional level. Despite these commitments, the
regional and international community recognized clear violations of Indigenous property rights

44
For a more extensive discussion, see Alejandro Fuentes, Protection of Indigenous Peoples’
Traditional Lands and Exploitation of Natural Resources: The Inter-American Court of Human
Rights’ Safeguards, 24 INT’L J. MINORITY & GRP. RTS. 229 (2017),
https://www.jstor.org/stable/26557865?seq=1.
45
Merits: Xucuru Indigenous People: Brazil, Case 12.728, Inter-Am. Comm’n H.R. Report No.
44/15, OEA/Ser.L/V/II.155, doc. 24 ¶ 66 (2015) [hereinafter Merits: Xucuru Indigenous People].
https://www.oas.org/en/iachr/decisions/court/2016/12728FondoEn.pdf.
46
Id. at 19.
47
Id.
48
Id. at 20–21.
49
See Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations,
and Costs, Judgment, Inter-Am. Ct. H.R. (2001).
50
Merits: Xucuru Indigenous People, supra note 45 at ¶ 87.
51
See Saramaka People v. Suriname, Inter-Am. Ct. H.R. (2007); Court further explained that, any
“large-scale development or investment projects that would have a major impact within
Saramaka territory” must “obtain [from the Saramaka,] their free, prior, and informed consent,
according to their customs and traditions.”
9
in Brazil. Brazil’s commitment to these regional instruments, however, reflects a desire to
safeguard Indigenous rights to preserve cultural identity and collective well-being—representing
capacity for growth and opportunities for the full realization of Indigenous rights.

C. International

Brazil is a party to several international treaties and conventions that are dedicated to protecting
the rights and livelihoods of Indigenous communities, such as the United Nations Declaration on
the Rights of Indigenous Peoples (UNDRIP)52 and the International Labour Organization (ILO)
Convention No. 169. By signing on to these legal instruments, Brazil demonstrates its promise to
incorporate its principles within its domestic legal frameworks.

After twenty years of debate, UNDRIP was adopted in 2006 and calls on States to comply with
existing trends in international legal mechanisms recognizing and promoting Indigenous rights. 53
With goals of enhancing cooperation between Indigenous peoples and States, the Declaration
seeks to establish a level of equality between the two, recognizing and valuing the differences in
individuals and cultures.54 The recognition of the inherent rights of Indigenous peoples underlies
their right to forming and maintaining their own political, economic, and social structures, as
well as cultural and spiritual traditions. Article 11 of the Declaration states that “Indigenous
peoples have the right to practice and revitalize their cultural traditions and customs. This
includes “the right to maintain, protect, and develop the past, present, and future manifestations
of their cultures.”55 UNDRIP emphasizes the right to maintain and revitalize cultural traditions,
upholding the distinctive relationship Indigenous peoples have with their lands, territories, and
resources. Article 25 describes “Indigenous peoples have the right to maintain and strengthen
their distinctive spiritual relationship with their traditionally owned or otherwise occupied and
used lands, territories, waters and coastal seas and other resources.” 56

Moreover, the Declaration stresses the right of Indigenous peoples to own, control, and develop
their traditional lands and resources.57 Articles 29 and 32 expand upon this right in the
environmental and developmental context. Article 29 describes Indigenous peoples’ “right to the
conservation and protection of the environment and the productive capacity of their lands or
territories and resources.”58 Article 32 similarly explains their right to “determine and develop
priorities and strategies for the development or use of their lands or territories and other

52
For an objective analysis of UNDRIP, see Fabiana de Oliveira Godinho, The United Nations
Declaration on the Rights of Indigenous Peoples and the Development of International Law, 2
ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL 62 (2008).
53
Frequently Asked Questions: Declaration on the Rights of the Indigenous Peoples, U.N.
PERMANENT F. INDIGENOUS ISSUES [hereinafter FAQ],
https://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf.
54
Fabiana de Oliveira Godinho, supra note 52.
55
G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, (Sept. 13,
2007).
56
Id. at art. 25.
57
Id. at art. 26.
58
Id. at art. 29.
10
resources.”59 Requiring legal recognition and protection from states, the Declaration advocates
for environmental conservation, cultural heritage preservation, and the development of priorities
by Indigenous peoples themselves for their lands and resources.

Although not legally binding, UNDRIP represents a change in international, regional, and
domestic norms. Carrying significant moral and political weight, the Declarations serve as
persuasive authority, and signatory countries are generally expected to take steps to implement
its principles within their legal frameworks and policies.60 Voting in favor of UNDRIP in 2007,
Brazil affirms its dedication to recognizing and respecting Indigenous peoples’ rights within its
borders and around the world.61

Before UNDRIP, ILO Convention No. 169 was adopted in 1989 and represents a significant
international instrument addressing the rights of Indigenous and tribal peoples.62 In ratifying ILO
Convention No. 169 in 2002, Brazil agreed to become legally bound by its principles.63 Brazil is
obligated to implement these principles in good faith and cooperation with Indigenous peoples.64
This Convention includes important provisions related to the land rights of Indigenous peoples
and recognizes the significance of land for the social, economic, and cultural well-being of these
communities.65 Article 14 lays out guidelines for recognizing and protecting the traditional lands
of Indigenous peoples—even affording protections to lands not exclusively occupied by
Indigenous peoples but are the site of traditional subsistence activities.66

Covering a wide range of issues and topics affecting Indigenous peoples, fundamental to this
Convention are the principles of consultation and participation.67 Although not rights, these
principles are essential in ensuring Indigenous peoples are involved in decisions affecting them. 68
Article 7 demands that Indigenous peoples “participate in the formulation, implementation and

59
Id. at art. 32.
60
FAQ, supra note 53.
61
Indigenous Peoples’ Rights in Brazil, INT’L WORK GRP. INDIGENOUS AFF.,
https://www.iwgia.org/en/brazil.html#:~:text=Indigenous%20Peoples'%20rights%20in
%20Brazil&text=The%20country%20voted%20in%20favour,has%20signed%20ILO
%20Convention%20169.
62
For an objective analysis of the Convention, see Handbook for ILO Tripartite Constituents:
Understanding the Indigenous and Tribal Convention, 1989 (No. 169), INT’L LAB. OFF. 1 (2013)
[hereinafter Handbook],
https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/
wcms_205225.pdf.
63
Ratifications of c169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169), ILO,
https://www.ilo.org/dyn/normlex/en/f?
p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314; Id. at 5.
64
Handbook, supra note 62, at 5–6.
65
Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries,
Sept. 5, 1989, ILO No. 169., 1650 U.N.T.S. 383, art. 13 [hereinafter Convention (No. 169)].
Article 13 stating “governments shall respect the special importance… of the peoples concerned
of their relationship with the land or territories.”
66
Id. at art. 14.
67
Handbook, supra note 62, at 1.
11
evaluation of plans and programmes for national and regional development which may affect
them directly.”69 In States where the government retains ownership of resources in Indigenous
land, Article 15 obligates them to “establish or maintain procedures through which they shall
consult these peoples… before undertaking or permitting nay programmes for the exploration or
exploitation of such resources pertaining to their lands.”70

While crimes against Indigenous peoples have yet to reach the International Criminal Court
(ICC), the Court previously stated that it would prioritize crimes of land dispossession,
environmental destruction, and illegal exploitation of natural resources—crimes that
disproportionately affect Indigenous communities.71

By signing on to these agreements, Brazil recognizes the importance of international standards

and demonstrates its commitment to Indigenous rights. While becoming a signatory is an
important step, the effectiveness of these commitments depends on subsequent actions taken by
Brazil to implement and enforce these principles at the national level. Changes in government
policies, legal frameworks, and actual practices highlight Brazil’s inadequacy in realizing all
Indigenous rights.

III. Violation of Laws in Expanding Pipelines Across Maranhāo

This next section calls attention to the laws that the Brazilian government is violating in
promoting and supporting pipeline expansion through the State of Maranhāo. Following
background and evidence of pipeline expansion, this section briefly states what laws are being
violated at the domestic, regional, and international levels.

A. Background of Pipeline Expansion

Although President Lula’s administration is making significant advancements toward protecting

Indigenous and environmental rights when compared to that of Bolsonaro,72 the new

68
See Convention (No. 169), supra note 65. Commitment to consultation can be found in Article
6(1) of the Convention. Commitment to participation can be found in Article 7(1) of the
Convention.
69
Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries,
Sept. 5, 1989, ILO No. 169., 1650 U.N.T.S. 383, art. 7.
70
Id. art. at 15.
71
Protection of Indigenous Peoples, COALITION INT’L HUM. RTS.,
https://www.coalitionfortheicc.org/global-challenges-icc-protecting-indigenous-peoples;
Environmental Destruction and Land-grabbing, COALITION INT’L HUM. RTS.,
https://www.coalitionfortheicc.org/global-challenges-ICC-environmental-destruction-
landgrabbing#:~:text=The%20ICC%20Prosecutor's%202016%20policy,the%20illegal
%20dispossession%20of%20land.
72
See Brazil: Indigenous Rights Under Serious Threat, HUM. RTS. WATCH (Aug. 9, 2022, 8:20
PM), https://www.hrw.org/news/2022/08/09/brazil-indigenous-rights-under-serious-threat,
describing “The administration of President Jair Bolsonaro has undermined the government
agency tasked with protecting [the rights of Indigenous people], issued regulations that are
12
administration continues to support national gas pipeline expansion plans.73 Still operating on the
legal framework enacted during President Bolsonaro’s rule,74 the Energy Research Company
(EPE)—a division of the Brazilian Ministry of Energy—published its “Ten-Year Energy
Expansion Plan.”75 With plans of a new regasification terminal and a new natural gas processing
plant, as well as extensive integrated and isolated networks of planned and authorized
transmission pipelines,76 the new administration’s energy plan is, again, not far removed from
proposed expansion under President Bolsonaro.77

In the Brazilian state of Maranhāo, which encompasses the Guajajara community and lands,
major gas pipeline expansion plans are underway.78 A government-proposed pipeline will cut
through the northeast territory of Maranhāo, running from a power station in Santo Antônio dos
Lopes to the aforementioned regasification terminal at the Port of Itaqui near São Luis.79
Although the proposed pipelines do not directly cut across presidentially recognized Guajajara
territory, it must cross the Pindaré River, a river traditionally important for the community who
lived along the margins of the river since time immemorial.80 Beyond impacting the Guajajara
community, the proposed pipelines are located within less than three kilometers of Indigenous
lands and intersect with numerous Quilombola territories.81 Called the Santo Antônio dos Lopes-

harmful to Indigenous people, and halted the recognition of their traditional lands. The
government has also weakened the federal environmental protection agencies, the Brazilian
Institute of the Environment and Renewable Natural Resources (IBAMA, its Portuguese
acronym) and the Institute for the Conservation of Biodiversity (ICMBio), leaving Indigenous
territories even more vulnerable to encroachment.”
73
Mauro Nogarin, Spotlight on Brazil: Government Promotes Five New Gas Pipelines, 250
Pipeline & Gas J. (Mar. 2023),
https://pgjonline.com/magazine/2023/march-2023-vol-250-no-3/features/spotlight-on-brazil-
government-promotes-five-new-gas-pipelines.
74
2031: Ten-Year Energy Expansion Plan, EMPRESA DE PESQUISA ENERGÉTICA 1, 2,
https://www.gov.br/mme/pt-br/assuntos/secretarias/sntep/publicacoes/plano-decenal-de-
expansao-de-energia/pde-2031/english-version/relatorio_pde2031_cap07_eus.pdf.
75
Id.
76
Id. at 3.
77
Plano Indicativo de Gasodutos de Transporte, EMPRESA DE PESQUISA ENERGÉTICA 1, 13,
https://www.epe.gov.br/sites-pt/publicacoes-dados-abertos/publicacoes/PublicacoesArquivos/
publicacao-531/EPE,%202020%20-%20Plano%20Indicativo%20de%20Gasodutos%20de
%20Transporte%202020.pdf. Map on page 13 identifies similar “areas of interest” for energy
infrastructure expansion as is being advocated for in the 2023 report.
78
Brazil’s Maranhão State Gas Distributer Working on Expansion Plan, BNAMERICAS (Nov. 9,
2023),
https://www.bnamericas.com/en/news/brazils-maranhao-state-gas-distributor-working-on-
expansion-plan.
79
2031: Ten-Year Energy Expansion Plan, supra note 74.
80
Daniela Leite et al., Paleogenetic Studies in Guajajara Skeletal Remains, Maranhao State,
Brazil, J. ANTHROPOLOGY, 2014, https://www.hindawi.com/journals/janthro/2014/729120/.
81
Indicative Transmission Gas Pipeline Plan, Empresa de Pesquisa Energetica 1, 25 (Jan. 2021),
https://www.epe.gov.br/sites-pt/publicacoes-dados-abertos/publicacoes/PublicacoesArquivos/
13
São Luis Gas Pipeline, the planned infrastructure expansion first appeared in a November 2020
government plan. Beyond the Brazilian government’s proposed expansions, private energy
infrastructure construction also threatens the Guajajara community. Proposing a roughly 300 km-
long pipeline, Brazilian energy company, Eneva, is engaging in preliminary licensing and
engineering work for a similarly located pipeline.82 These proposed pipelines will impact the
presidentially recognized lands, waters, and resources of the Guajajara community, 83

Figure 1 Source: 2031: Ten-Year

Energy Expansion Plan, EMPRESA DE PESQUISA ENERGÉTICA 1, 3,
https://www.gov.br/mme/pt-br/assuntos/secretarias/sntep/publicacoes/plano-decenal-de-expansao-de-energia/pde-2031/english-
version/relatorio_pde2031_cap07_eus.pdf.; map showing “Brazilian natural gas infrastructure: existing, planned

publicacao-531/PIG%202020%20Report.pdf.
82
Nossos Negócios: Exploração e Produção, ENEVA (2020), https://eneva.com.br/nossos-
negocios/exploracao-e-producao/#; Eneva Visão 2030, ENEVA 1, 34, 88 (2022),
http://vipfiles.valor.com.br/BDEmpresas/598704.pdf; André Ramalho, Eneva é Candidata
Natural a Participar de novo Terminal de GNL no Maranhão, EPBR (May 5, 2023),
https://epbr.com.br/eneva-e-candidata-natural-a-participar-de-novo-terminal-de-gnl-no-
maranhao/.
83
The proposed pipeline runs alongside Araribóia and Caru, both Indigenous lands of the
Guajajara as ratified by presidential decree and registered. See Guajajara, POVOS INDIGENAS NO
BRASIL, https://pib.socioambiental.org/en/Povo:Guajajara. Describes how “All 11 Indigenous
Lands inhabited by the Guajajara are located in the centre of Maranhāo State, in the regions of
the Pindaré, Grajaú, Mearim and Zutiua rivers…. Since the late Eighteenth Century and the early
Nineteenth Century, they expanded their territory to the Grajaú and Mearim river regions where
they settled shortly before the arrival of the whites…”
14
 B. Analysis of National, Regional, and International Violations

Although the rhetoric contained in Brazil’s national policies seemingly provides robust
protections and support for developing Indigenous rights, Indigenous peoples face serious
obstacles in realizing their rights—as demonstrated by pipeline expansion affecting the Guajajara
community. These pipeline expansion projects go against norms and policies found in Brazil’s
national legal framework. These pipeline expansion projects certainly violate parts of the
PNPCT. This Decree guarantees the rights of Indigenous peoples in the face of projects, works,
or undertakings, which directly or indirectly affect the communities. These projects further
violate the government’s obligation to support and guarantee the productive inclusion of the
Guajajara people in these development decisions. By not adequately consulting the Guajajara
community in promoting these gas pipeline expansion plans, Brazil is violating its commitment
to safeguard the traditional lands and resources of the Guajajara community.

Many commitments within Brazil’s Constitution, however, are seemingly upheld, such as
demarcating land traditionally held by the Guajajara community. While the Constitution
explicitly describes that attempts to occupy or exploit Indigenous lands are null and void, the
exception for public and national interest may apply to this pipeline expansion. Because a similar
caveat is included in the Statute of Indigenous Peoples, it would also be difficult to argue that
this pipeline expansion is violative. This exception for projects of national interest is antithetical
to principles enshrined in Brazil’s national framework promoting Indigenous participation in
decision-making processes and protecting Indigenous rights to traditional lands, territories, and
natural resources.
As similar principles of recognizing and promoting Indigenous rights to traditional lands,
territories, and natural resources are embedded within regional legal instruments, Brazil’s
support for pipeline expansion projects is violative. By signing the OAS American Declaration
on the Rights of Indigenous Peoples, Brazil committed itself to protecting the Guajajara lands,
territories, and resources from the transit of any harmful substances with potentially adverse
effects. As the proposed pipelines promise to transport natural gas alongside lands and rivers
traditionally important to the Guajajara community for subsistence activities, Brazil is violating
its commitment by promoting and supporting these expansions. Like the PNPCT, this
Declaration calls upon States to include Indigenous Peoples in the development and
determination of programs affecting their lands, territories, and resources. Although not legally
binding, the principles of this Declaration can be used as persuasive authority in defining Brazil’s
violations.

Similarly, cases within the Inter-American Court of Human Rights that do not involve Brazil
cannot be legally binding on the country, but serve as persuasive authority in outlining the
violations inherent in these pipeline expansion projects. Past decisions of the Inter-American
Court has obligated States to appropriately consult with Indigenous communities before taking
action that has the potential to affect their lands and natural resources. Applying this principle,
Brazil should have consulted with the Guajajara community before advancing and promoting
these pipeline expansion projects.

The international legal instruments discussed provide a framework for addressing Brazil’s
violations against the Guajajara community. Articles 3 and 10 of UNDRIP, which address the

15
right to self-determination and the right to free, prior, and informed consent are particularly
important in the context of gas pipeline expansion in Brazil. Alongside Article 11 which is
devoted to protecting cultural heritage and Article 26 recognizing the right to land and resources,
the gas pipeline expansion, impacting the traditional lands and resources of the Guajajara
community of Maranhāo, clearly infringes upon their right to maintain and strengthen their
relationship with their lands. Moreover, Article 28, identifying a right to remedies and
reparations lays out the Guajajara community’s right to seek just and fair redress in the face of
these violations.

ILO Convention No. 169 is similarly relevant and reveals opportunities for addressing the
challenges faced by the Guajajara community. Article 14 of the convention recognizes the rights
of Indigenous peoples to the ownership and possession of the lands that they traditionally
occupy. Alongside Article 7’s recognition of the rights of Indigenous peoples to decide their own
priorities for development, Brazil cannot pursue gas pipeline expansion projects impacting
Guajajara traditional lands and territories without the full and effective participation of the
community. Relatedly, Article 15 of the convention underscores the importance of protecting the
environment and the productive capacity of Indigenous lands. As gas pipeline expansion often
raises environmental concerns, it is vital that the Guajajara community has a say in decisions that
impact the environment of their territories.

IV. Recommendations

Despite numerous international treaties and conventions on point, Indigenous communities in the
Amazon encounter significant obstacles in seeking justice for rights violations. Although the
Brazilian Supreme Court recently handed down a decision upholding Indigenous peoples’ rights
to their traditional lands, the lack of accountability and impunity as well as significant barriers to
accessing justice in the state perpetuates a cycle of oppression and human rights violations. The
expansion of gas pipelines poses a direct threat to the rights of Indigenous communities and
specific rights violations, such as land dispossession and environmental degradation are
exacerbated by legal complexities, impending the Guajajara community’s ability to seek
recourse. Significant barriers to justice exist for the Guajajara community such as geographical
remoteness, financial constraints, and systemic discrimination in the legal system. As land
defenders and Indigenous activists are extrajudicially killed at alarming rates in Brazil, it is vital
that impunity and barriers to justice are addressed within our campaign.

Oil Free Amazon is dedicated to safeguarding the fundamental human rights of Indigenous
communities in the Amazon against gas pipeline expansion. These communities, particularly the
Guajajara community of Maranhāo, face complex legal challenges. By leveraging international
human rights treaties and conventions, coupled with strategic advocacy and dialogue, Oil Free
Amazon is working towards a future where Indigenous rights are respected and protected. By
referencing the work of Indigenous activists, as well as Indigenous and human rights
organizations in Brazil, Oil Free Amazon presents the following draft law:

16
 A. Law for the Protection of Indigenous Rights and Territories Against Gas
Pipeline Expansion

Preamble: Recognizing the historical and cultural significance of Indigenous communities and
the imperative to protect their fundamental human rights, this law is enacted to safeguard
Indigenous lands against large-scale infrastructure projects. This law is designed to address the
unique legal challenges faced by Indigenous communities, including geographical remoteness,
financial constraints, and systemic discrimination.

Article 1: Declaration of Indigenous Land Sovereignty and Land Demarcation

1) In any land demarcation process involving Indigenous territories, there shall be a legal
presumption that the land under consideration was traditionally occupied by Indigenous
peoples unless proven otherwise.
2) Non-Indigenous parties contesting Indigenous land claims shall bear the burden of proof to
demonstrate, by clear and convincing evidence, that the land in question was not traditionally
occupied by Indigenous communities.
3) Indigenous communities affected by contested land claims shall have the right to seek legal
remedies, including injunctive relief and damages, in the event of bad faith or wrongful
contestation by non-Indigenous parties.
4) Indigenous lands in Brazil are exclusively designated for the use and benefit of Indigenous
peoples. Any encroachment, invasion, or use of Indigenous lands for large-scale mining,
hydroelectric, or other infrastructure projects without the free, prior, and informed consent of
the affected Indigenous communities is strictly prohibited.
5) All projects affecting Indigenous lands must adhere to the principles of free, prior, and
informed consent as outlined in international human rights standards.
6) Actions by ruralists, politicians, agribusiness, or other entities that seek to encroach upon
Indigenous lands are prohibited and shall be subject to legal consequences.

Article 2: Non-negotiability of Indigenous Rights

1) Indigenous rights, including the right to self-determination, cultural integrity, and the
exclusive use of their lands, are non-negotiable and shall prevail over conflicting interests,
including national sovereignty defense policies.

Article 3: Protection of Indigenous People and Activists

1) The invasion, murder, or threats against Indigenous people, activists, or leaders, especially in
the context of resisting development projects, are criminal offenses. Perpetrators shall be
prosecuted and held accountable under the law.
2) Indigenous leaders advocating for their rights and the protection of their communities shall
not be subject to unjust criminalization. Legal actions against Indigenous folks must be free
from bias and discriminatory practices.

Article 4: Consultation and Participation Mechanisms

17
1) Mechanisms for meaningful consultation and participation of Indigenous communities in
decision-making processes related to projects on or impacting their lands, territories, or
natural resources shall be established.
2) Before approving any project with potential impacts on Indigenous lands, a comprehensive
Environmental and Social Impact Assessment must be conducted in collaboration with the
affected Indigenous communities.
3) Indigenous communities must be given veto power in projects impacting their lands,
territories, and natural resources.
4) In consultation and participation processes, Indigenous people’s voices must not only be
heard and respected but also given priority in decision-making.

Article 5: Access to Justice

1) Legal mechanisms shall be established to address the geographical remoteness and financial
constraints faced by Indigenous communities, ensuring they have effective access to justice
in cases of violations of their rights.

Article 6: Reporting and Accountability

1) Regular reporting mechanisms shall be established to monitor the implementation of this law
and to hold accountable any entity or individual found in violation of its provisions.

18
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Alejandro Fuentes, Protection of Indigenous Peoples’ Traditional Lands and Exploitation of
Natural Resources: The Inter-American Court of Human Rights’ Safeguards, 24 INT’L J.
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19
 https://www.culturalsurvival.org/news/indigenous-peoples-take-over-brasilia-demanding-
security-and-freedom.
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%20dispossession%20of%20land.
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%20Brazil&text=The%20country%20voted%20in%20favour,has%20signed%20ILO
%20Convention%20169.
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%20are%20permitted%20to%20inhabitants.
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20
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21