Bolsonaro pushes mining on indigenous lands
Publish date: 11 February 2020
Issue Number: 641
Diary: Legalbrief Environmental
Brazil’s far-right President, Jair Bolsonaro, unveiled a controversial Bill last week that would allow commercial mining on protected indigenous lands, delivering on a campaign promise that has shocked tribal leaders and environmentalists. A report in The Guardian notes that the Bill to regulate mining including oil and gas projects, as well as hydroelectric dams, on indigenous reservations for the first time, will be sent to congress this week. Brazil’s Constitution does not rule out mining on reservations, but does not allow it because it has not been regulated. Bolsonaro has long alleged that Brazil’s indigenous people occupy too much land – 13% of the country – and hinder economic development of untold mineral resources, from gold and diamonds to niobium and rare earths. But leaders of most of Brazil’s 300 tribes oppose mining on their reservations and say that allowing commercial mining would undermine their communities and wipe out their cultures, which are already threatened by increasing invasions by illegal loggers and wildcat miners. The proposal includes provisions to consult indigenous communities and would require congressional approval for any mining or hydroelectric power generation project. Government officials have said, however, that indigenous communities would not have the right to veto projects once authorised by Congress. Bolsonaro also separately plans to allow large-scale commercial agriculture on indigenous reservations, which is not permitted under current environmental laws.
Indigenous groups in Canada suffered a loss when a court blocked their bid to delay the expansion of the Trans Mountain pipeline. The Federal Court of Appeal dismissed the case because of its limited role in the dispute. The Jurist notes that the indigenous plaintiffs alleged that the government inadequately consulted with them in approving the pipeline expansion. A similar complaint succeeded in 2018, when a Canadian court ruled that the consultation had indeed been inadequate. The government re-approved the pipeline in June 2019 after going back to address the shortcomings identified by the court. The First Nations groups in the latest lawsuit, however, again alleged numerous deficiencies in the consultation process. The Federal Court of Appeal yesterday ruled that although the flaws it identified in the first proceeding 'were significant, they were restricted to precise issues within the overall consultation process'. Thus, this second decision concerned only whether 'the Governor in Council could reasonably conclude that the flaws identified in (the 2018 case) were adequately remedied by the renewed consultation process'. Additionally, the court said that 'the Governor in Council was entitled to measure the adequacy of the second consultation process in light of what was possible in the circumstances'. The court dismissed the case because of this narrowed scope and its reasoning that the duty to consult 'does not dictate any particular substantive outcome'. Indigenous peoples do not have that ability to effectively veto project proposals, and instead, 'their concerns can be balanced against competing societal interests'. The court found the government's decision to permit the pipeline reasonable in this light, and the Trans Mountain project is now set to proceed.