Brazil, Federal Supreme Court‎, 2 February 2022, ADPF 709‎

Case overview

Country
Brazil
Case ID
ADPF 709‎
Decision date
Deciding body (English)
Federal Supreme Court‎
Deciding body (Original)
Supremo Tribunal Federal
Type of body
Court
Type of Court (material scope)
Constitutional Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Constitutional Review
Area
Property
Further areas addressed
Indigenous peoples' rights
Vulnerability groups
Indigenous groups
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_PT available on www.conjur.com.br
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
Two administrative acts of the "Fundação Nacional do Índio"‎
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
Action brought by a qualified entity in the interest of a specific group of claimants for the purpose of collective redress measures such as damages or restitutions and annulment of the administrative decision.
Nature of the parties
  • Claimant(s)
    Private collective
  • Defendant(s)
    Public
Type of procedure
Ordinary procedures
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. ‎

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.‎

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