The Brazilian Federal Supreme Court comes to the protection of indigenous people’s right to health in the face of Covid-19

In August 2020, the plenary of the Brazilian Federal Supreme Court delivered a decision affirming the legal capacity of an indigenous movement, the Articulation of Indigenous Peoples of Brazil (APIB), to bring a claim before the Supreme Court for the review of actions and omissions of the federal government and the National Indian Foundation (FUNAI) when addressing the threat of Covid-19 to indigenous peoples – and ordering both the government and FUNAI to take precise actions for the protection of the indigenous peoples against such threat. The Decision is grounded on the Brazilian Federal Constitution and on international treaties which Brazil has ratified and introduced into its domestic legal system. At different moments, as we explain below, the Decision interprets this corpus of domestic law in light of international law. Notably, the Decision draws on the latter to affirm the need to ensure intercultural dialogue in enforcing the right to health. In this post, we begin with an account of the social-legal context of the Decision, before looking at how it addresses the right to access to justice and right to health before offering some final thoughts.

The socio-legal context and the request for judicial review

There are around 305 indigenous ethnic groups in Brazil making for a 900,000-strong population (0.2% of the total Brazilian population) distributed across the Brazilian territory. Approximately 70% of this population live in 724 indigenous lands (around 500 are demarcated, most in the Amazon region) and the remaining 30% in urban areas. There may be different indigenous peoples sharing the same demarcated lands. There are several isolated and recently contacted peoples living in demarcated and non-demarcated lands.

Despite the significant achievements in terms of rights, indigenous peoples continue to face some old challenges. The enjoyment of certain rights, such as the right to health, has been restricted, in practice, to those indigenous peoples living in formally demarcated lands. That said, demarcated lands have been relentlessly invaded by illegal miners, loggers and farmers. The most dramatic example is that of the Yanomami reserve, which is home to around 25,000 indigenous individuals, but in which there are more than 20,000 illegal miners. Moreover, there are 223 lands pending demarcation, and countless lawsuits brought by local farmers, and even local authorities delay the procedures of demarcation even further, which leads to more delays in terms of the realisation of indigenous rights. In terms of access to justice, indigenous peoples face numerous obstacles, such as language barriers that might hinder their understanding of rights, inequality within the system itself, and overrepresentation in the criminal justice system. Because of their social organisation, their collective right to access to justice has been further affected, as we explain below.

In what concerns their right to health, in 1999, a new piece of legislation was enacted establishing the Indigenous Healthcare Subsystem within the Brazilian Unified Health System (Brazil 1999). This Subsystem, funded by the Brazilian Federation, should take into account the cultural identity, customs and traditions of indigenous people – that is, it should be established with due consideration of aspects such as health assistance, sanitation, nutrition, habitation, environment and land demarcation. To attain its objectives, the Subsystem is decentralised and regionalised, and supported by the Unified Health System. This regulation sets forth that indigenous peoples have the right to participate in decision-making on health policies. Although the Subsystem has never delivered on all its promises – for instance, it is rarely open to city-dwelling indigenous people, who need to rely on the Unified Health System – it became an important institution advancing indigenous peoples’ right to health. Problems have accumulated over the last two years, with the current government adamant in the defence of a political agenda aiming to ‘integrate’ indigenous people into society and denying their rights.

The arrival of Covid-19 has highlighted indigenous peoples’ vulnerability. Reportedly, Covid-19 was first brought to indigenous lands by a doctor working for the Subsystem in the State of Sao Paulo, by land invaders in the Amazon region and by workers in certain industries like meat processing plants in the southern parts of Brazil. There is mounting concern that missionaries trying to reach isolated communities will end up contaminating them. Hence, the importance of creating sanitary barriers, as we discuss below. Confirming the pattern of inequality that afflict them, contagion among indigenous peoples is higher than among the rest of the population. At the time of writing, there are more than 160 people affected, more than 41,000 confirmed cases and over 800 deaths. Contagion among certain people whose existence had already been at risk, such as the isolated Flecheiros and those of the Javari Valley reserve, may lead to their complete disappearance.

It was in this context that APIB and six political parties lodged a claim before the Supreme Court, requesting the Court to order the federal government and FUNAI to implement sanitary barriers for the protection of isolated and recently contacted peoples; to implement a situation room (described below) with the participation of representatives of indigenous peoples; to remove invaders from indigenous lands (including the Yanomami reserve), and to ensure that the Indigenous Health Subsystem be available to all indigenous individuals including those living in urban areas. It also requested the Court to order the Human Rights National Council to consult with indigenous peoples and specialised authorities to produce a plan for addressing Covid-19 within indigenous peoples and to order the government to implement such plan. Except for the removal of invaders, Justice Rapporteur Barroso provisionally granted all the measures and the plenary later confirmed his Decision. So far, the government has failed to comply fully with the Decision, with the Court rejecting the government’s plan for addressing Covid-19 among indigenous peoples.

The Decision: Access to justice and the right to health

The first aspect of the Decision, access to justice, deserves attention because it ensures the participation of indigenous peoples in the decision-making on the implementation of their right to health – the decision-making by the Supreme Court and later, by the government and FUNAI. APIB is an indigenous movement without formal legal personality. The respondents unsuccessfully objected to APIB’s capacity to bring a claim for judicial review of their actions and decisions. Rejecting their objection, the Rapporteur adopted an expanded interpretation of article 103(IX) of the Brazilian Constitution by which only political parties, confederations of labour unions and national professional entities are entitled to lodge judicial review claims. The Rapporteur noticed that the restrictive interpretation that had so far prevailed had reduced the opportunities for the Court to act for the protection of the fundamental rights of vulnerable groups. In what concerns us here, the Rapporteur affirmed that the Constitution guarantees direct legal representation for indigenous peoples as well as full respect for their social organisation, beliefs and traditions. APIB not being organised as a legal entity should not hinder its capacity to represent Brazilian indigenous peoples before the Court. Notably,

It cannot be assumed that such peoples organise themselves in the same way that we organise ourselves. Ensuring respect for their customs and institutions means respecting the means by which they articulate their representation in the light of their culture (Decision, para 12)

Dealing with the right to health, the Rapporteur first establishes the principles of precaution and prevention, and the need to ensure intercultural dialogue as the legal grounds for the Decision. The Rapporteur invokes the domestic case law on precaution and prevention, which commands the adoption of measures that are more protective of individuals who are under imminent health risk, and the rejection of measures whose security implications are uncertain. The Rapporteur notes the ‘looming threat of mass extermination of indigenous peoples as a result of the expansion of the Covid-19 pandemic’ (para 16); underlines that the government resists the implementation of indigenous rights, and recalls statements made by the current President against the demarcation of indigenous lands. As regards the need for intercultural dialogue, the Rapporteur raises the treaties that Brazil has ratified, which provide for the participation of indigenous peoples in decision-making concerning their lives and health and their natural environment, to affirm that

it is essential that such peoples can express their needs and assist the State in finding solutions. Therefore, any and all decisions involving indigenous peoples must ensure also and intercultural dialogue (para 21).

The Rapporteur then turns to the situation of isolated and recently contacted indigenous peoples, noting that the decision not to have contact with outsiders is theirs to make as it derives from their right to self-determination, as protected under International Labour Organization Convention 169, and constitutes a means for the protection of their identities and their social organisation. The Decision notes that because of the pandemic, isolated and recently contacted peoples are ‘the most exposed to contagium and extinction’ (para 25). The Rapporteur recalls the Covid-19 Guidelines adopted by the UN High Commissioner for Human Rights, as well as Resolution 1/2020 of the Interamerican Commission of Human Rights, both of which recommend the adoption of sanitary barriers for the protection of indigenous peoples. Although such recommendations are not mandatory, the Rapporteur notes, they are objective standards offered by experts in a context of ‘scientific and technical uncertainty’ (para 26). The Rapporteur orders the establishment of the sanitary barriers with the participation of indigenous peoples through the Situation Room (para 30).

The establishment of a Situation Room for the management of the pandemic had been mandated by a federal regulation issued by the Ministry of Health and the National Indian Foundation (FUNAI). The claimants invoked Convention 169 to request the Court to ensure inter alia that representatives of indigenous peoples participate in the Situation Room. In granting the request, the Rapporteur emphasises that Convention 169 enjoys supra legal status, and strongly rejects the argument of the defendants that the exceptional, urgent character of the pandemic would justify the exclusion of indigenous peoples from the Situation Room. The Rapporteur notes that it is because the government had failed to act in face of an emergency that the participation of indigenous peoples in the decision-making becomes crucial. He notes that indigenous peoples have brought visibility to the problems they face.

APIB and the other claimants put forward some requests for the benefit of indigenous peoples in general including (1) the opening of the Indigenous Healthcare Subsystem to all indigenous in Brazil, whether living in urban or rural (non-demarcated) areas; and (2) the attribution to the National Human Rights Council of the responsibility for the formulation of a plan for countering Covid-19 with the participation of representatives of indigenous peoples and with the assistance of two Brazilian health organisations. Justice Barroso grants in part the first request, rejecting the argument put forward by the respondents, who argue inter alia that lack of demarcation of indigenous lands make the identity of the peoples living in such lands questionable. Justice Barroso draws directly from Convention 169 to affirm that the identity of an indigenous people derives from self-identification and is not dependent on the official demarcation of its lands. Hence, Justice Barroso orders the Subsystem to attend to indigenous peoples living in non-demarcated lands, and to attend to indigenous peoples in urban areas only insofar as the latter do not have access to the Unified Health System. Justice Barroso grants the second request, ordering the inclusion of measures for containing and isolating invaders in the plan for addressing Covid-19 among indigenous peoples.

The decision in perspective

While some elements in the Decision bear clear importance for the development of the international law on the rights of indigenous peoples, the relevance of some other aspects may be obfuscated by the complexity of the judgment. Starting with the latter, we recall that the Decision orders the government to comply with its international responsibilities vis-à-vis indigenous right to health – responsibilities that derive from the Constitution and Convention 169. Now, the Decision reads these responsibilities also in accordance with international soft-law instruments, making a contribution to the understanding of the relevance of such instruments. According to the Decision, these instruments encompass objective standards in face of scientific incertitude. Besides, the Decision also brings the traditional approach of the Brazilian courts towards precaution and prevention to bear upon the enforcement of obligations that have international character. This is not a small feat, considering the development of the debate on both precaution and prevention in the international and the regional spheres. In the Decision, precaution and prevention require both the adoption of the measures that are more protective of the indigenous peoples and the rejection of measures that may increase the risks to their health. This reading of both principles may contribute to their development in the field of global health but also in other fields such as environmental law.

What is perhaps more evident, the Decision sets a precedent in domestic law, and contributes to international practice, by ruling that indigenous peoples are entitled to the collective right to access to justice and the right to healthcare services with due consideration to their particular characteristics and customs – thus, the importance of both the APIB and Indigenous Healthcare Subsystem in the case. Also, indigenous people are entitled to the right to health regardless of the recognition of their right to their lands. Indeed, the rejection of the argument that the identity of indigenous peoples would depend on any formal recognition by the government is of paramount importance and conforms with the case law of Interamerican Court of Human Rights. The Decision not only forces the government to come into compliance with international obligations, but it also strengthens state practice on access to justice and right to health and recognises that the collective identification of a people is a corollary of their autonomy.

But it is the affirmation of the need for intercultural dialogue when addressing Covid-19 that emerges as the most important contribution that the Decision makes. The need for intercultural dialogue is a legal ground of the Decision. Drawing on Convention 169, Justice Barroso wastes no time in arriving at it – no need for any incursions into legal theory. The need for intercultural dialogue is promptly affirmed as indispensable (imprescindível) ‘in every question that involves the rights of indigenous peoples’ (para 15). We argue that the Decision, without saying it, treats the need for intercultural dialogue as a principle that directs the interpretation and enforcement of indigenous rights. As a principle, it brings an additional layer of importance to the right to participation and to be consulted. On the one hand, participation needs to occur pursuant to the cultural characteristics of the indigenous peoples. Consultation of the peoples concerned will be carried out through culturally appropriate procedures and in particular through their representative institutions, whenever consideration is being given to any measures that may directly affect them. On the other hand, participation ensures that the cultural aspects that distinguish indigenous people come to bear in the formulation and implementation of policies. This will prove to be crucial in addressing Covid-19 and in preventing new pandemics, as the participation of the concerned indigenous people in decision-making regarding their health enhances their ability to cope with diseases, including Covid-19 (and generally). Equally important, recall that one of the triggers of the pandemic is environmental degradation and climate change, and that for cultural reasons, indigenous peoples care more for the conservation of their lands than society in general.