1The Nagoya Protocol calls upon all Parties to take account of the customary laws of indigenous and local communities, along with their protocols and procedures. It also urges them to support the creation of community protocols to define the minimum conditions required for the negotiation of mutual agreements, along with standard contractual clauses for the fair and equitable sharing of benefits arising from the utilisation of traditional knowledge associated with genetic resources (Art. 12).

2There are already twenty or so community protocols in place in Brazil and they are regarded as important tools for the organisation and defence of the territories, culture and natural resources of indigenous peoples and traditional communities.1

The regulatory framework

3It is worth reminding ourselves of the principal national and international regulatory frameworks ratified by the Brazilian government, which have laid the foundations for a policy designed to guarantee indigenous peoples and traditional communities the right to self-determination, respecting their distinctive forms of organisation and protecting their knowledge.

4Since the Second Constitution of 1934, all of Brazil’s constitutions have recognised the sovereignty of indigenous peoples over the territories in which they live. However, only the Constitution of 1988 devoted two articles specifically to indigenous peoples (Articles 231 and 232), recognising the social structures, customs, languages, beliefs and traditions of the Amerindians, as well as their fundamental rights over the land which they have traditionally occupied. It also provides protection for these rights, particularly with regard to the utilisation of natural resources located on indigenous land.2 It establishes the legitimate right of indigenous peoples and their organisations to defend their rights, and authorises the public prosecutor to intervene on behalf of indigenous peoples.3

5Convention 169 of the International Labour Organisation, promulgated in Brazil as Decree No. 5.051 dated 19 April 2004, expands the recognition of these rights. In addition to indigenous peoples, it includes traditional communities and encompasses multiple dimensions: identity, culture, physical integrity, religion, education, involvement in decision-making processes, work, land, resources and development, environmental protection and intellectual property.

6The right to prior consultation is established by Convention 169 and the Decree which transposed it into Brazilian legislation. The government must conduct advance consultations with local populations, using appropriate procedures, whenever a proposal affects their territories or way of life, with a view to reaching an agreement and securing their free, prior, informed consent on the measures in question.

7The Convention on Biological Diversity was ratified by Brazil in Decree 2519/1998, and was initially subject to Provisional Measure 2186-16/2001, and subsequently Law 13123/2015. This regulatory framework establishes instruments for the protection of Brazil’s genetic heritage, recognises the traditional knowledge associated with the utilisation of indigenous plant varieties and animal species, and acknowledges the right of the “providers” of such knowledge to receive a fair and equitable share of the benefits derived from their economic utilisation. Brazil signed the Nagoya Protocol on 2 February 2011, but political upheaval and opposition from sections of the agro-industrial complex prevented its ratification in Congress.

8The national policy for the sustainable development of traditional peoples and communities, enshrined in Decree 6040/2007, represented a major social breakthrough, the fruit of an extensive process of public debate. It introduced and defined the concept of traditional peoples and communities (PCT): culturally differentiated groups who recognise themselves as such, have their own forms of social organisation, and occupy and use territories and natural resources as vectors of their cultural, social, religious, ancestral and economic reproduction, making use of knowledge and innovations derived from tradition. In May 2016, Decree 8.750 established the National Council of Traditional Peoples and Communities, identifying 29 societal “segments” spanning everyone from indigenous peoples to Quilombolas,4 from traditional fishing communities to Romani and the Babaçu nut breakers.5 These hugely diverse groups are spread across the whole country.

9Indigenous people comprise 305 identified groups, speaking 274 languages. According to the National Indian Foundation (FUNAI), there are some 50 groups living in voluntary isolation in the Amazon region. According to the Coordination of the Indigenous Organisations of the Brazilian Amazon (COIAB), the number is over 100 if we include groups living in the territory of other countries.

Consultation protocols

10Numerous consultation protocols have been established since 2014, initially at the behest of organisations representing the indigenous peoples of Amazonia, and subsequently expanding to encompass other regions and traditional communities, extractive workers (products derived from the forest, Cerrado savannah or rivers) and Quilombolas.

11These protocols share a number of common concerns: the need to organise in order to confront the threats hanging over traditional territories, and a sense of dissatisfaction born of a long history of unfair and unequal relations with the government and the private sector. Against a backdrop of uncertainty and repeated violations of their rights, indigenous peoples and traditional communities view the consultation mechanism and its emphasis on free, prior, informed consent as a means of guaranteeing fundamental collective rights, primarily territorial and cultural rights.

12In Amapá, the pioneering initiative in this respect was the action taken by the Wajãpis people, who produced their own consultation protocol following a territorial conflict with settlers enacting the agrarian reform. In parallel to this initiative, the local communities and extractive producers of the Bailique Archipelago have developed their own community protocol, driven by the need to promote more equitable commercial relations in the açaí sector6 and challenge the government on the lack of public policies for this territory. 2019 saw the launch of a new protocol for the indigenous peoples of the Oiapoque, suffering the consequences of the new federal road slashing through their territory. The protocol asserted these peoples’ rights to education and healthcare. The river-dwelling communities of the Amapá estuary, meanwhile, adopted the Beira Amazonas protocol.

13Autonomously-constructed consultation protocols have thus been adopted to guide dialogue with the government and other external parties in the process of seeking free, prior and informed consent for any action, project or public policy with a direct impact on the territory and way of life of the groups in question (see Box 1).

Protocols strengthening communities

14As we have seen, the great strength of these protocols resides in the processes of organisation, coordination, appropriation and understanding that they inspire, as indigenous peoples and traditional communities get to grips with their rights. When people engage fully with their right to consultation, social organisation is strengthened and the protocol achieves greater legal and political resonance (see Box 2).

15Can we assess the practical impact of this instrument? Does it provide real protection?

16Major infrastructure projects imposed in a violent and arbitrary manner, including huge hydroelectric dams at Santo Antônio and Jirau and Belo Monte, have become emblematic cases of malpractice in the Amazon. Questions have been raised as to whether the preliminary consultation protocols were respected, or whether they were manipulated by those in positions of power, with contempt for both legal process and the legitimate representatives of the peoples affected.

17In December 2017, an important and unprecedented ruling recognised the legally-binding nature of the protocols. The Regional Federal Court of the 1^st district reminded the State of Pará of its obligation to consult the Juruna people, suspending the environmental authorisation process initiated by the Belo Sun mining company. The main argument put forward by the federal prosecutor was that the preliminary consultation did not comply with the consultation rules set out in the Juruna protocol, which must be followed before any authorisation can be issued.8

18In a similar case, the protocol of the Mundurucu indigenous people contributed to the abandonment of the environmental authorisation process for a proposed hydroelectric dam on the river Tapajós. When a consultation was conducted in accordance with the relevant directives, with the close involvement of the communities affected, the project was ruled to be unfeasible.

19The federal prosecutor plays a fundamental role in steering and supporting the development of these protocols. As an institution acting to defend the rights of indigenous peoples and traditional communities, it draws upon these protocols as vital adjuncts to national legislation and international conventions.9

20Other actors have also played important roles, including the Amazonian Cooperation Network formed by several indigenous and indigenist organisations,10 the NGO Terra de Direitos, and the Pastoral Land Commission. It is perhaps worth noting that the financial resources required to support the creation of community protocols have largely been provided by international organisations.

Going beyond the question of genetic resources

21For the indigenous movement, a major topic of discussion at present is how best to guarantee the rights of peoples living in voluntary isolation. At a time of repeated attacks against indigenous peoples and their land, these groups are the most vulnerable of all. Another point, on which consensus has not been achieved, is the need to expand the discussion regarding the best way of providing appropriate, differentiated forms of consultation for women. Many women still have trouble making their voices heard in an equitable manner in public settings such as hearings and meetings. Women’s associations, for example, are important organisations that need to be consulted in an appropriate manner.

22The community protocols introduced by the Nagoya Protocol can and should set the course for a more balanced and equitable process of access and benefit-sharing for traditional knowledge associated with biodiversity. Above and beyond the question of access to genetic resources, they serve to establish rules for consultations on all matters affecting local and indigenous communities, ensuring that real negotiations take place between communities, governments and other social and economic stakeholders.