Brazil, Federal Supreme Court, 2 February 2022, ADPF 709
Case overview
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Type of Court (territorial scope)
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Link to the full text of the decision
General Summary
The Court heard an "Arguição de Descumprimento de Preceito Fundamental - ADPF" to annul two administrative acts of the "Fundação Nacional do Índio (Funai)" that prohibited the territorial protection activities of this entity in unapproved indigenous lands, during the Covid-19 pandemic. According to the plaintiff, such acts contravened norms for the protection of indigenous rights and the jurisprudence of the Federal Supreme Court, specifically on the execution of indigenous territorial protection activities on non-approved lands. The Court analyzed the claims and verified the repeated attempt to undermine the protection measures determined by the Court. Furthermore, it determined that suspension of the territorial protection manifested in the administrative acts of the "Fundação Nacional do Índio (Funai)", would open ways for third parties to transit across indigenous lands, causing a risk to the health of the communities, not only in terms of Covid-19 but also of other infectious and contagious diseases. Under these terms, it granted the claims.
Facts of the case
In the context of Covid-19 and because of the manifest weakness of the indigenous population in exercising their rights during a pandemic, the "Articulação dos Povos Indígenas do Brasil (Apib)" filed a constitutional action ("Arguição de Descumprimento de Preceito Fundamental - ADPF") requesting the implementation of measures to combat Covid-19 for this population. According to the plaintiff, two administrative acts issued by the "Fundação Nacional do Índio (Funai)" contravened norms for the protection of indigenous rights, as well as the jurisprudence of the Federal Supreme Court. The plaintiff stated that such administrative acts referred to the illegitimacy of FUNAI's execution of territorial protection activities on lands that were not approved or regularized. In this sense, such acts were contrary to the Constitution, to the indigenous protection laws, and to the jurisprudence of the Federal Supreme Court.
Type of measure challenged
Measures, actions, remedies claimed
- That the Union and the "Fundação Nacional do Índio (Funai)" execute and implement territorial protection activities on indigenous lands, regardless of whether they were approved or recognized.
- The suspension of the effects of administrative acts Ofício Circular nº 18/2021/CGMT/DPT/FUNAI and of Parecer nº 00013/2021/COAF-CONS/PFE-FUNAI/PGF/AGU
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court analyzed the repeated attempt to undermine the protection measures determined by the Court concerning the indigenous population within the framework of Covid-19. For the Court, the suspension of territorial protection manifested in the administrative acts of the "Fundação Nacional do Índio (Funai)", would open ways for third parties to transit across indigenous lands, which would cause a risk to the health of the communities, not only in terms of Covid-19 but also of other infectious and contagious diseases.
Specifically, the Court determined that, by eliminating territorial protection on non-approved lands, the "Funai" signaled to invaders that the Union will refrain from combating irregular actions in such areas, which may constitute an invitation to invasion that is well known and sought by loggers, as well as to the practice of illicit conduct. Finally, beyond the omission of the "Funai", the Court emphasized that the administrative acts could affect isolated and recently-contacted indigenous peoples who are even more vulnerable epidemiologically.
Conclusions of the deciding body
The Court granted the claims to suspend the administrative acts of the "Fundação Nacional do Índio (Funai)" that prohibited the territorial protection activities of this entity o n non-approved indigenous lands. After the suspension, the "Fundação Nacional do Índio (Funai)" must implement protection actions independently of the homologation of indigenous areas. Otherwise, the process will be referred to the Public Ministry Office to investigate the crime of disobedience.
Fundamental Right(s) involved
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to property
- Indigenous peoples' rights
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 6, Brazilian Federal Constitution of 1988
- Indigenous peoples' rights, Art. 2015 § 1º, Brazilian Federal Constitution of 1988
- Right to property, Art. 5 XXII, Brazilian Federal Constitution of 1988
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. property
- Health v. indigenous peoples' rights
