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RESOLUTION Nº 12/85 Case
Nº 7615 BRAZIL March
5, 1985 BACKGROUND:
1. On December 15,
1980, a petition against the Government of Brazil was presented to the
Inter-American Commission on Human Rights, in which the petitioners, Tim
Coulter (Executive Director, Indian Law Resource Center); Edward J.
Lehman (Executive Director, American Anthropological Association);
Barbara Bentley (Director, Survival International); Shelton H. Davis
(Director, Anthropology Resource Center); Groge Krumbhaar (Acting
President, Survival International, U.S.A.); and other persons, allege
violations of the human rights of the Yanomami Indians, citing in
particular the following articles of the American Declaration of the
Rights and Duties of Man: Article I (Right to Life, Liberty, and
Personal Security); Article II (Right to Equality before the Law);
Article III (Right to Religious Freedom and Worship); Article XI (Right
to the Preservation of Health and to Well-being); Article XII (Right to
Education); Article XVII (Right to Recognition of Juridical Personality
and of Civil Rights); and Article XXIII (Right to Property). 2. From
examination of the documents and testimony submitted to the Commission,
the following antecedents of fact and law can be inferred: a.
Between 10,000 and 12,000 Yanomami
Indians live in the State of Amazonas and the Territory of Roraima, on
the border with Venezuela; b.
The Brazilian Constitution guarantees
the right of the Indians to their own territory and stipulates that this
constitutes permanent and inalienable ownership (Constitutional
Amendment Nº 1/69, Article 198). It also establishes the right of the
Indians to the exclusive use of the natural resources of their
territory; c.
Article
23 of the Estatuto do Indio (Statute of the Indians Law 6,001 of
1973) establishes that "the lands occupied by them in accordance
with their tribal usage, customs and tradition, including territories
where they carry on activities essential for their subsistence or that
are of economic usefulness" constitute territory of the Indians; d.
Article
2 of Law 6,001 also guarantees the right of the Indians and of the
Indian communities to "possess permanently the lands they occupy,
recognizing to them the right to the exclusive usufruct of the natural
resources and all useful things therein existing"; e.
Article 6 of the Brazilian Civil
Code establishes that the Indians are considered "relatively
incompetent" and are under the "guardianship" of the
Fundaçäo Nacional do Indio (FUNAI - National Indian Foundation). That
institution is under the Ministry of the Interior and was established
for the defense, protection, and preservation of the interest and
cultural heritage of the Indians and also to promote programs and
projects related to their social and economic development; f.
In the decade of the 1960s
the Government of Brazil approved a plan of exploitation of the vast
natural resources in and development of the Amazon region. In 1973
construction began on highway BR-210 (the Northern Circumferential
Highway), which, when it passed through the territory of the Yanomami
Indians, compelled them to abandon their habitat and seek refuge in
other places; g.
During the decade of the 1970s, rich mineral deposits were discovered in
the zones of Couto de Magalhäes, Uraricäa, Surucucus, and Santa Rosa
--territories of the Yanomamis-- which attracted mining companies and
independent prospectors (garimpeiros), thus aggravating the displacement
of thousands of Indians; h.
Between 1979 and 1984 various efforts
were made and various projects presented aimed at marking the boundaries
of a Yanomami Park as Indian territory; i.
In March 1982, after an intensive
campaign of protest by national and international human rights and
Indian defense organizations, the Government of Brazil, by ministerial
decree GM/Nº 025, established the interdiction (absolute reservation)
of a continuous territory of 7,000,000 hectares in the Federal Territory
of Roraima and the State of Amazonas for the Yanomami Indians. Among
other provisions, that decree assigned to the FUNAI the responsibility
for taking the following five measures for protection of the Yanomami
Indians: i.
the interdiction (absolute reservation)
of a continuous area of land; ii.
the establishment of an administrative
structure with enough control posts to coordinate and implement the
assistance to the Yanomamis; iii.
the construction of landing strips at
the control posts and various areas for the purposes of attracting
isolated groups of Indians as well as establishing an infrastructure for
building roads and highways; iv.
the adoption of measures to protect the
Indian groups, especially those related to the reserved areas, to
protect the natural environment and preserve the existing buildings and
equipment; and v.
to coordinate and direct the activities
of the religious missions. j.
On September 12, 1984, the then
President of the FUNAI, Mr. Jurundy Marcos da Fonseca, submitted a new
proposal to the inter ministerial Working Group that had been
established in 1983 through Decree 88,118. It aimed at defining the
future Yanomami Indian Park with an area of 9,419,108 hectares, which
would include practically all the territory and the villages that the
Yanomamis inhabit. Up to now, however, that proposal has not been
implemented. 3. In the
presentation made by the petitioners and in subsequent testimony and
reports given to the Commission by them, the following allegations were
made: a.
The massive penetration of outsiders
into the area has had devastating physical and psychological
consequences for the Indians; it has caused the break-up of their
age-old social organization; it has introduced prostitution among the
women, something that was unknown; and it has resulted in many deaths,
caused by epidemics of influenza, tuberculosis, measles, venereal
diseases, and others. b.
Despite repeated interventions in behalf
of the Indians by many humanitarian, religious, and pro-Indian
organizations, the authorities responsible for the Indians's health and
for ensuring the implementation of the provisions of the Constitution
and the law have done little. c.
The agricultural development projects
carried out by the Instituto Nacional de Colonizaçäo e Reforma Agraria
(INCRANational Institute for Settlement and Agrarian Reform),
established for the benefit of the Indians displaced from their lands,
have not produced the desired effects. The result, on the contrary, has
been the loss of their lands and their compulsory transfer to
agricultural communities that do not correspond to their customs and
traditions. d.
The process of integration of the
Indians, as it is established in the legislation and as it is applied by
the responsible authorities, tends toward the disintegration and
destruction of the Indian communities, instead of contributing to their
economic and social well-being. e.
The occupation and development of the
area of Amazonas and the Territory of Roraima has resulted in the
destruction of encampments and the disappearance and death of hundreds
of Yanomami Indians and threatens to make them extinct. f.
The proposal for the establishment of the "Yanomami Indian
Park," while it has received the support of the Federal Government,
on the other hand has been objected to by sectors primarily interested
in the economic development of the State and the Territory of Roraima,
which have expressed their opposition to the project, and so far this
has resulted in noncompliance with Law 6,001, which provided for the
reservation of the Indians lands. 4. All the
communications from the petitioners have been duly transmitted to the
Government of Brazil, from which the Commission has requested the
pertinent information. The Government, in its Notes Nº 127 of May 13,
1981, and Nº 316 of November 3, 1981, Nº 101 of April 14, 1982, and Nº
38 of February 13, 1985, in response to those requests by the
Commission, has commented broadly on the Brazilian legislation in
relation to the legal status and the civil and political rights of the
Indians, as well as on the main points raised in the petitioners
accusations, in terms that are summarized here following: a.
Legal status of the Indians in Brazil. Civil rights i.
In accordance with Brazilian law, the Indians are considered
relatively incompetent to perform certain acts and are placed under
administrative guardianship for their protection. The law provides
suitable protection for all "individuals" and
"communities of Indians." ii.
The Federal Constitution guarantees to the Indians the right to
movement, the right of assembly, and the right to freedom of expression.
The FUNAI does not interfere in any way in the enjoyment of these
rights. iii.
Since 1980, the FUNAI has increased the budget for education of
the Indians so that they may study in educational centers near their
communities. b.
Political rights i.
The Indians are holders of political rights guaranteed by Law
6,001 of 1973. The exercise of these rights depends on verification of
the special conditions established in that law and the pertinent
legislation. ii.
Emancipation (being freed form guardianship) on a community level
is governed by Article 11 of the Statute of the Indians (Law 6,001) and
may be declared by the President of the Republic by decree when a
majority of the members of a community request it and the individual
members full integration into the national society is verified by
investigation by the competent federal organ. Emancipation cannot
emanate from an initiative of the guardian organ (FUNAI) or be declared
independently of the will of the community. As regards the participation
of Indians in city or county councils, the Government has pointed out
that "there are some Indians on these Councils, particularly in the
State of Mato Grosso do Sul." c.
Protection of the Indians' health The
Government has informed the Commission that in the last three years,
through the FUNAI, with cooperation under an agreement with the French
association "Médecins du Monde" (Doctors at the World) and in
cooperation with the Committee for the Establishment of the Yanomami
Park, it has been concerning itself with health care for the Yanomamis
through mass vaccinations and control of epidemics. d.
Protection of the Indians' lands The
Indians' lands are protected both by the Federal Constitution and by the
Statute of the Indians (Law 6,001, articles 6, 22, 24, 25, and 44). With
respect to the establishment of the Yanomami Indian Park, the Government
has recognized that the period established by Law 6,001 for the
demarcation of the boundaries of the Indian lands has already expired
(Note Nº 316), and it has informed the Inter-American Commission on
Human Rights that "the definition of the Yanomami area is being
carefully considered and is in the final stage of study by
representatives of the FUNAI, the General Secretariat of the Ministry of
the Interior, the Special Secretariat for the Environment, the Instituto
Brasileiro de Desenvolvimento Florestal (Brazilian Institute of Forest
Development), and the General Secretariat of the National Security
Council". The
Government has also reported that the FUNAI has been trying hard to
complete the withdrawal of all persons who are illegally occupying
Indian lands. This task has been accomplished in several zones. Later,
by Note Nº 38 of February 13, 1985, the Government informed the
Commission that, with respect to the extent of a continuous area for the
Yanomamis, the President of the FUNAI, on September 12, 1984, had sent a
new proposal for the definition of the future Yanomami Indian Park to
the Inter ministerial Working Group established by Decree 88,118/83.
Under that proposal, the area of the Park would be 9,419,108 hectares,
which would include all the isolated Yanomami areas (Ajarani, Catrimani,
and Pacu); and its establishment depends on the determination of the
border lines and the establishment of an infrastructure, which is now at
an advanced stage. In
that same note in February of this year, the Government informed the
Commission that the President of the FUNAI, in response to the request
of the chiefs of the control posts in the Yanomami area, by Ministerial
Decree Nº 1817/E of January 8, 1985, prohibited the transit or stay of
non-Indian individuals or groups, mainly mining prospectors, in the
area, and that up to the date of that note, no mining company had been
permitted to enter Yanomami territory. e.
Possibility of transfer of tribal groups and of intervention
by the Government in the Indians' zones i.
Law 6,001 gives the President of the Republic the power and right
to intervene in the areas inhabited by Indians, to expropriate property,
and to move them for exceptional reasons (Article 20), among them: to
carry out public works of interest to national development, for the
exploitation of resources of the subsoil belonging to the Federal State
that are of great interest for security and national development, and
national security requirements. Such transfer of Indians may be done
through a decree by the President of the Republic. Law
6,001 of 1973 provides for conditions under which the government
agencies may proceed to transfer groups of Indians to areas equivalent
to those to which they are accustomed. ii.
As regards the exploitation of and concession of rights to
minerals in Indian lands, Article 168 of the Constitution provides that
the resources of the subsoil belong entirely to the Federal State even
when they are under private property. In order to protect the heritage
of the Indians, Law 6,001 permits exploitation of the subsoil of Indian
lands only in cases of great national interest, by federal public
entities, after they have obtained the consent of the FUNAI and only
when it is a matter of strategic minerals necessary for national
security or development. CONSIDERING:
1. That the
petitioners reported to the Commission the violation of the human rights
of the Yanomami Indians by the Government of Brazil and by the National
Foundation for Indians (FUNAI) the government agency of guardianship of
the Indians established to administer the Government's Indian policy and
to implement Law 6,001 of December 19, 1973, called the "Statute of
the Indians." 2. That the
reported violations have their origin in the construction of the
trans-Amazonian highway BR-210 that goes through the territory where the
Indians live; in the failure to establish the Yanomami Park for the
protection of the cultural heritage of this Indian group; in the
authorization to exploit the resources of the subsoil of the Indian
territories; in permitting the massive penetration into the Indians'
territory of outsiders carrying various contagious diseases that have
caused many victims within the Indian community and in not providing the
essential medical care to the persons affected; and finally, in
proceeding to displace the Indians from their ancestral lands, with all
the negative consequences for their culture, traditions, and costumes. 3. That the
Federal Constitution of the Republic stipulates in Article 4.IV that the
patrimony of the Union includes "the lands occupied by
forest-dwelling aborigenes," and that, moreover, in Article 198 it
states: Lands
inhabited by forest-dwelling aborigenes are inalienable under the terms
that federal law may establish; they shall have permanent possesion of
them, and their right to the exclusive usufruct of the natural resources
and of all useful things therein existing is recognized. 4. That for legal
purposes, Law 6,001 in its Article 3, established two groups of Indians:
a.
the "Indians or Forest-dwelling
Aborigenes," that is to say, individuals of pre-Colombian origin
whose cultural characteristics distinguish them form the national
society; and; b.
the "Indian Community or Tribal
Group," which refers to groups that may live isolated from, or in
any case not integrated into, the national community. 5. That, moreover,
for the protection of the Indian territory, Law 6,001 (the Statute of
the Indians) provides as follows: Article
19
On
the initiative and under the supervision of the federal organ for
assistance to the Indians, the Indian lands shall be administratively
demarcated in accordance with the procedure established in a decree of
the Executive Branch. Article
25
Recognition
of the right of the Indians or tribal groups to have permanent
possession of the lands they inhabit, under the terms of Article 198 of
the Federal Constitution, shall not depend on the demarcation of those
lands, and shall be ensured by the federal organ for assistance to the
forest-dwelling aborigenes... 6. That Article 20
of Law 6,001 stipulates that the Union, by decree of the President of
the Republic, may intervene in the areas occupied by Indians in
exceptional cases, such as: a) for national security reasons; b) to
carry out public works of interest to national development; and c) for
the exploitation of resources of the subsoil that are of great interest
for security and national development. 7. That
international law in its present state, and as it is found clearly
expressed in Article 27 of the International Covenant on Civil and
Political Rights, recognizes the right of ethnic groups to special
protection on their use of their own language, for the practice of their
own religion, and, in general, for all those characteristics necessary
for the preservation of their cultural identity. 8. That on the
subject of indigenous populations the Commission, in an earlier
recommendation it adopted, has pointed out: That
for historical reasons and because of moral and humanitarian principles,
special protection for indigenous populations constitutes a sacred
commitment of the states; That
on various occasions this Commission has had to take cognizance of cases
in which it has been verified that abuses of power committed by
government officials responsible for administrative work in connection
with indigenous communities have caused very serious injury to the human
rights of their members; That
these offenses against human rights are all the more reprehensible
considering that they are committed by agents of the public power and
have as their victims persons or groups for whom the effective exercise
of the means of defense established by the laws of the respective states
is particularly difficult;... It
therefore recommended: 1.
That all the states pay very special attention to the suitable
training of the officials who are to perform their work in contact with
the aforementioned populations, awakening in those officials an
awareness rights of indigenous persons, who should not be the object of
discrimination of any kind. (OEA/Ser.P.AG/doc. 305/73, rev. 1, March 14,
1973, pp. 90 and 91) 9. That the
Organization of American States has established, as an action of
priority for the member states, the preservation and strengthening of
the cultural heritage of these ethnic groups and the struggle against
the discrimination that invalidates their members' potential as human
beings through the destruction of their cultural identity and
individuality as indigenous peoples. 10.
That from the careful examination made by the Commission of the
facts, including the replies from the Government of Brazil, it finds the
following: a. That on account
of the beginning, in 1973, of the construction of highway BR-210 (the
Northern Circumferential Highway), the territory occupied for ages
beyond memory by the Yanomami Indians was invaded by highway
construction workers, geologists, mining prospectors, and farm workers
desiring to settle in that territory; b. That those
invasions were carried out without prior and adequate protection for the
safety and health of the Yanomami Indians, which resulted in a
considerable number of deaths caused by epidemics of influenza,
tuberculosis, measles, venereal diseases, and others; c. That Indian
inhabitants of various villages near the route of highway BR-210 (the
Northern Circumferential Highway) abandoned their villages and were
changed into beggars or prostitutes, without the Government of Brazil's
taking the necessary measures to prevent this; and d. That after the
discovery in 1976 of ores of tin and other metals in the region where
the Yanomamis live, serious conflicts arose that led to acts of violence
between prospectors and miners of those minerals, on one side, and the
Indians, on the other. Such conflicts, which occurred especially in the
areas of the Serra dos Surucucus, Couto de Magalhäes, and Furo de Santa
Rosa, affected the lives, security, health, and cultural integrity of
the Yanomamis. 11.
That from the facts set forth above a liability of the Brazilian
Government arises for having failed to take timely and effective
measures to protect the human rights of the Yanomamis. 12.
That the Government of Brazil, in the last few years, has taken
various measures to overcome or alleviate the problems that have come up
with the Yanomami Indians. In that direction, the Government of Brazil
has reported, through a note from its Permanent Representative to the
Organization of American States dated February 13, 1985, that it has
taken the following measures to protect the security, health, and
integrity of the Yanomamis: a)
The President of the FUNAI sent a
proposal to the inter ministerial working group on September 12, 1984,
requesting the definition and demarcation of the boundaries of the
future Yanomami Park, which would have an area of 9,419,108 hectares; b)
The area proposed for that Park
would cover the isolated areas of Ajarani, Catrimani, and Pacu, as well
as four control posts, three surveillance posts, and a number of
religious missions that would be able to provide medical and other
services to the Indians; c)
The FUNAI, with the cooperation of the
French association "Médecins du Monde" and the Committee for
the Establishment of the Yanomami Park, is carrying out a health program
among the Yanomamis, which especially includes mass vaccinations and
control of epidemics; d)
The President of the FUNAI has
prohibited the transits or stay of non-Indian individual or groups,
especially mining prospectors, in the area proposed for the
establishment of the Yanomami Park; e)
Up to now, no mining company has
entered the Yanomami's region; and f)
The plan for aid and assistance to
the Yanomamis continues being carried out by Regional Delegation Nº 10
of the FUANI, which has its headquarters in Boa Vista, Roraima. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES: 1. To declare that
there is sufficient background information and evidence to conclude
that, by reason of the failure of the Government of Brazil to take
timely and effective measures in behalf of the Yanomami Indians, a
situation has been produced that has resulted in the violation, injury
to them, of the following rights recognized in the American Declaration
of the Rights and Duties of Man: the right to life, liberty, and
personal security (Article I); the right to residence and movement
(Article VIII); and the right to the preservation of health and to
well-being (Article XI). 2. To recognize
the important measures that the Government of Brazil has taken in the
last few years, particularly since 1983, to protect the security,
health, and integrity of the Yanomami Indians. 3. To recommend: a)
That the Government of Brazil continue
to take preventive and curative health measures to protect the lives and
health of Indians exposed to infectious or contagious diseases; b)
That the Government of Brazil, through
the FUNAI and in conformity with its laws, proceed to set and demarcate
the boundaries of the Yanomami Park, in the manner that the FUNAI
proposed to the inter ministerial working group on September 12, 1984; c)
That the programs of education, medical
protection, and social integration of the Yanomamis be carried out in
consultation with the indigenous population affected and with the
advisory service of competent scientific, medical, and anthropological
personnel; and d)
That the Government of Brazil inform the
Commission of the measures taken to implement these recommendations. 4. To include this
resolution in its Annual Report to the General Assembly of the
Organization of American States. Notes:
Dr. Andrés Aguilar did not participate in the consideration and
decision of this case. Dra. Gilda Russomano refrained from participating in this case pursuant to Article 19 of the Regulations. |