Authors of a book on Prior, Free and Informed Consultation pointed out obstacles to the application of the law in Brazil during its launch at the MPF-PA
* Isabella Pilegis, ISA journalist, collaborated
Scheduled to take place between November 10th and 21st, 2025, in Belém (PA), the Climate Conference on Climate Change (COP 30) will land in Brazil for the first time and should place the Amazon at the center of the largest global climate discussion event. and the people who live in it.
It is nothing new that, through their ways of life, indigenous people, quilombolas, extractivists and other traditional populations are mainly responsible for forest conservation and, consequently, their territories store immense carbon stocks – which is essential for tackling the climate crisis.
However, these people have been facing several challenges in defending their rights and territories, such as the difficulty in guaranteeing consultation in all phases of infrastructure projects and in discussions about climate financing mechanisms in Indigenous Lands and Protected Areas, such as food markets. carbon and jurisdictional Reducing Emissions from Deforestation and Forest Degradation (REDD+) programs.
Understand what carbon is and how “carbon markets” work:
These were the central themes of the discussions that took place in the Auditorium of the Federal Public Ministry in Belém (PA), which hosted, at the end of February, the launch of the book “Brazilian Courts and the right to Prior, Free and Informed Consultation”, organized by Socioenvironmental Institute (ISA) in partnership with Observatory of Community Protocols for Consultation and Free, Prior and Informed Consent and the Center for Research and Extension in Socio-Environmental Law.
Based on a broad survey, the authors analyzed decisions in the Federal Regional Courts (TRFs) in all regions of the country, the Superior Court of Justice (STJ), the Federal Supreme Court (STF) and the Inter-American Court of Human Rights.
See how the book launch was in Cuiabá (MT)
“Prior consultation with indigenous and traditional peoples is the minimum. And this minimum is still denied by the Brazilian State”, said Felício Pontes, regional attorney for the Republic known for his work in guaranteeing the constitutional rights of indigenous people and quilombolas in the Amazon. He said he hopes the book contributes to “a process of decolonization of the Brazilian judiciary”.
Prior, Free and Informed Consultation is an exclusive obligation of the State, represented by the Executive and Legislative powers, which cannot delegate the task to individuals. “There were 524 years, in Brazil especially, of colonialism itself, of making the colonizer's vision, the outside, European vision, the dominant vision, without any form of valuing the vision of the original peoples. The right to Consultation reverses this,” he explained.
What is the right to Consultation?
Free, Prior and Informed Consultation is a right established by Convention 169, of the International Labor Organization (ILO) and incorporated by Brazil and the United Nations Declaration of Rights of Indigenous Peoples.
In essence, it provides that indigenous peoples and traditional communities are consulted before actions that impact their territories and ways of life (find out more in the ISA special on the topic).
One of the ways to do this is through consultation protocols, documents drawn up by each indigenous people or traditional community on the form and process in which they should be consulted, in a way that respects their representative institutions, uses and traditions.
“By February [of this year], we had mapped 105 Community Autonomous Protocols. For COP 30, it is essential to elevate this strategic discussion, ensuring compliance with ILO Convention 169 and the Climate Framework Conventions, prioritizing the protection of territories and biomes in the face of climate vulnerabilities”, highlighted Liana Amin Lima, professor of Human Rights from the Federal University of Grande Dourados (UFGD) and coordinator of the Protocol Observatory.
“Consultation is part of all administrative and legislative acts, therefore, it is the State’s duty to also monitor these processes. But monitoring the process of conducting Consultation processes, monitoring compliance with agreements [as in REDD+ discussions], also involves respect for the protagonism, autonomy, self-determination of these peoples”, he continued.
Biviany Rojas Garzón, lawyer and representative of the Instituto Socioambiental (ISA), argued that the participation of indigenous and traditional peoples in discussions about the climate crisis is crucial, as they play a vital role for humanity. “Forests are important to discuss the set of measures that we need to adopt as a human species to mitigate and adapt [to the climate crisis]”, she analyzed.
“And forest people are fundamental in this discussion, as they actively participate in decisions about forest management and regeneration. In this way, public policies on REDD+ mainly involve indigenous territories and traditional communities and, as a result, they are fundamental actors in this discussion”.
“The right to Consultation, for the quilombola population, is important for the visibility of both the community and the violations that quilombola communities go through, that is, the invisibilization [suffered] even by the State”, pointed out Vercilene Dias, lawyer quilombola and legal advisor to the National Coordination for the Articulation of Black Rural Quilombola Communities (Conaq).
With COP 30 approaching, she defended that discussions on the right to consultation and the presence of forest people leaders be ensured. “Because it is precisely [they] who are being affected. Those who suffer the effects [of climate change] are not middle-class people or those in large cities; they are the people on the outskirts, the traditional communities,” she recalled.
“It is important that other countries [at COP 30] know the consultation protocols for indigenous peoples and traditional communities, so that we can move forward in the consultation discussion. There are many international companies that want to buy carbon credits and they have to know how our rights work”, argued Ewésh Yawalapiti Waurá, indigenous lawyer and director of the Associação Terra Indígena do Xingu (Atix).
Rodrigo Magalhães de Oliveira, an analyst at the Federal Public Ministry, pointed out that Pará is at the center of this discussion, due to COP 30, but that “the State has been a systematic violator” of this right and that, therefore, it is necessary to do “ homework".
According to him, the Consultation is an instrument capable of guaranteeing the safeguarding and integrity of territories and the forest, which is fundamental not only for the protagonist peoples, but for the entire world.
“I have no doubt that there are many obstacles to realizing the right to Consultation, including racism and the way the State has always treated these communities. Therefore, the Consultation implies limiting the possibility of the State acting in an arbitrary manner”, he indicated.
Reality in the territories
Vercilene Dias and Ewésh Yawalapiti Waurá brought to the launch in Belém a vision of the reality of these discussions in the territories, especially within the scope of debates on climate financing. According to them, there is still a lot of lack of knowledge in villages and communities about the functioning of mechanisms such as carbon markets and jurisdictional or governmental REDD+ programs.
Conaq launches booklet on REDD+ through the eyes of the quilombola community
In the case of voluntary carbon markets, the lack of clear contractual information and approaches from companies that do not respect consultation protocols can result in the signing of asymmetrical and unfair contracts, which keep these populations subjugated
“We are still at a stage of explaining to leaders and associations how the carbon market works, what carbon is, and guiding them to understand why it is possible to receive carbon credits for the role they play in preserving forests”, he pointed out. Ewésh Yawalapiti Waurá.
“There have been unfavorable negotiations. Contracts often provide for a very small percentage to be allocated to benefit sharing, because there is no effective consultation. And the concern is even greater regarding the issue of the local carbon market. Consulting companies approach, directly affect communities, negotiating with some leaders without taking the broad discussion to the territories”, he lamented.
Discover the Consultation Protocol for the Peoples of the Xingu Indigenous Territory
“When communities are not consulted, when there is a total absence of the right to consultation process, judicialization increases”, recalled Vercilene Dias.
She said during the launch panel that companies that want to offset their carbon emissions have approached quilombola communities with offers of extremely disadvantageous contracts and that they only become aware of projects or regulatory instruments from the moment they suffer a violation.
“And they [respond] like this: 'Look, it's not like that. We were not consulted. This standard here does not meet our specificities, that is, this project, this enterprise, does not meet our specificities either'”, he reported.
The right to consultation, according to her, brings the necessary visibility for communities to fight for their rights. “To say to the State, to say to society: 'I exist. I am here. I was here before. Why wasn't I consulted before the project came to my territory and wanted me to move or before the regulations were created?'”.
Service
Book “Brazilian Courts and the right to Prior, Free and Informed Consultation”
Authors: SILVA, Liana Amin Lima da et al (Coord.)
Publisher: Instituto Socioambiental and CEPEDIS
Number of pages: 322