Brazil Analysis
Status: In-depth
An in-depth law and policy analysis that assessed the potential application of Marine Conservation Agreements (MCAs) in Brazil was undertaken in 2008. A summary of the analysis is provided below. The original final analysis report with all citations and references can be downloaded from the resource box on the right. While this analysis did not ground-truth findings, it provides a foundation from which to do so. From the analysis, it appears private ownership of lands and resources below the high tide line is not possible in Brazil. However, the use of government authorizations and co-management agreements for conservation purposes may be possible.
Private Ownership and Use of Maritime Areas
National System of Nature Conservation Areas
Funding for Private Conservation
Key Agencies
Key Legislation
Private Ownership and Use of Maritime Areas
Pursuant to the Brazilian Constitution, the properties exclusively owned by the Union include: maritime beaches and the oceanic and coastal islands; natural resources of the continental shelf and the exclusive economic zone; the territorial sea; legal coastal areas; and mineral resources. Coastal lands and maritime areas are classified as public goods of common use and, as such, are protected for public use without the need of specific governmental consent. Private ownership of these areas is not allowed. Private individuals and entities are only entitled to use maritime areas for the development of certain activities.
Brazilian legislation establishes environmental licensing as the mechanism to authorize any enterprise or activity which potentially pollutes or harms the environment. The authorization decision is based on technical, social and environmental aspects of the analysis of the impacts on the area. The decision-making process includes public participation and an evaluation of the projects’ impacts and benefits on the area. Environmental licensing is under the jurisdiction of the Brazilian Institute for the Environment and Natural Renewable Resources (IBAMA) and other state environmental agencies, depending on the type and location of the proposed activity. IBAMA issues environmental licenses for activities located or developed in the maritime areas, such as the territorial sea, continental shelf and the exclusive economic zone.
Fishery Activities: Fisheries in Brazil are regulated by federal laws that establish, among other provisions, specific fishing areas, the necessary requirements for the development of the fishing, restrictions and prohibition periods in view of the regional peculiarities, and protection of the fauna and flora. Moreover, there are Brazilian states with specific fishery restrictions and protection policies for aquatic fauna. The control of access and sustainable use of the maritime resources in fishing areas is performed by IBAMA within the territorial sea, the Union include: maritime beaches and the oceanic and coastal islands; natural resources of the continental shelf and the exclusive economic zone. The control may also be performed by state and municipal agencies through special agreements.
Aquaculture Activities: Aquaculture is defined by the Brazilian legislation as the production in captivity of organisms in any stage of development and whose habitat is predominantly aquatic, as well as the cultivation or creation of organisms whose life cycle is totally or partially in the aquatic environment. Individuals or legal entities who wish to develop aquaculture in maritime areas must request authorization to use public waters and observe the applicable environmental laws and any legal restrictions for the area.
National System of Nature Conservation Areas Return to top
Conservation Areas are territorial spaces, including the environmental resources, jurisdictional waters and relevant natural characteristics therein, which are legally designated with conservation objectives by governmental agencies under special rules. Conservation areas that are part of the National System of Nature Conservation Areas (SNUC) in Brazil include: 1) Integral Protection Areas, in which the main objective is nature conservation and only indirect use of its natural resources is allowed; and 2) Sustainable Use Areas, in which the main objective is sustainable use use of natural resources. The two types of conservation areas are further divided in twelve sub-categories that range from areas where economic activity is not allowed in any way to less restrictive sub-categories, where economic activities are restricted only in different degrees.
Maritime Conservation Areas: Although different from classic terrestrial protected areas, maritime areas also benefit from conservation strategies that were once dedicated only to terrestrial areas. Maritime areas now represent, even as a minority, areas of great importance to Brazilian Conservation Areas. The SNUC Act establishes that oceanic and coastal islands are pre-destined for nature conservation. Any use for other purposes must be authorized by the competent environmental agency. Such authorization is necessary in abandoned islands or those inhabited where conservation areas have already been created or those that possess ecosystems that should be protected. The authorization is not necessary in densely urbanized areas. There are approximately 156,870 hectares of maritime conservation areas in Brazil today. From this total, 37,384 hectares are in sustainable use Areas, including the Biological Reserve of the Atol das Rocas, the Maritime National Park of Fernando de Noronha, the Maritime National Park of Abrolhos and the Biological Reserve of the Arvoredo. Another 119,486 hectares are in maritime Sustainable Use Areas.
Private Coastal Natural Heritage Reserves: Private Natural Heritage Reserves are a sub-category of Sustainable Use Areas that must be identified for protection by private owners of areas of biological importance. The owners, whether individuals or legal entities, are the only ones allowed to take the initiative of creating such conservation areas, since they can only be created in areas where the owner has full title. As such, the creation of Private Natural Heritage Reserves in maritime areas or in Legal Coastal Areas is not possible since these areas are exclusively owned by the Union. There is, however, a possibility of claiming in court the full title over coastal areas by claiming that such areas do not meet the characteristics of Legal Coastal Areas, as provided in Brazilian Law-Decree n. 9.760/1946.
Co-Management of Maritime Reserves: The National System of Nature Conservation Areas Act allows Conservation Areas to be managed by Public Interest Non-Governmental Organizations (OSCIPs) that have as objective the protection of the environment. OSCIP participation does not exclude the Public Power’s presence in the management of Conservation Areas, except in case of a Private Natural Heritage Reserve which, as seen above, cannot be created in maritime areas. The co-management of Conservation Areas implies the rendering of information and annual reports to the competent authorities. The OSCIPs are entitled to receive resources or donations from public or private organizations and also from individuals to be used in the Conservation Area under their responsibility. The analysis for this project did not include the identification of existing instances of private co-management of maritime reserves in Brazil. As such, it is unclear whether there is precedent for this type of arrangement.
Funding for Private Conservation Return to top
Environmental National Fund: The Environmental National Fund (FNMA) is a program administered by the Ministry of Environment which supports public and government initiatives that promote the recovery, conservation and preservation of the environment and the improvement of the quality of life in Brazil. To obtain financial resources from the FNMA, applicants must present a proposal for the use of natural areas or to solve or minimize environmental problems therein. FNMA has a transparent process to select projects and was one of the first public funds to incorporate members of the organized civil society in its structure, allowing equal access to its resources. In this sense, both public institutions and private non-profit associations which aim to protect the environment, such as NGOs and OSCIPs, are among the legal entities that can apply for FNMA’s resources.
Brazilian Network of Social-Environmental Funds: The Brazilian Network of Social-Environmental Funds was created in 2006 and is composed by private, federal, state and municipal funds that finance social-environmental actions, acting as the connection between the government and the civil society in the implementation of conservation and sustainable development strategies.
Key Agencies Return to top
Brazilian Institute for the Environment and Natural Renewable Resources: The Brazilian Institute for the Environment and Natural Renewable Resources (IBAMA) is connected to the Ministry of Environment and administers federal actions related to the national environmental policy, the environmental licensing, and the authorization of natural resource use and environmental control.
Chico Mendes Institute for Biodiversity Conservation: The Chico Mendes Institute for Biodiversity Conservation was created in 2007 and is connected to the Ministry of Environment. Its main institutional mission is to manage federal conservation areas. Thus, the Institute is entitled to execute the actions of the national conservation areas policy and is allowed to propose the creation of new conservation areas, as well as to protect, manage and supervise the ones created by the Union.
Coastal Zone Management Integration Group: The Coastal Zone Management Integration Group (GI-GERCO) is a forum created to provide technical support for decisions made by the Interministerial Commission for Marine Resources (see below) on coastal zone management. The GI-GERCO is coordinated by the Ministry of Environment and has representatives from the federal sectors most active in the coastal zone, as well as from the Brazilian Association of Environmental Entities (ABEMA), which coordinate the state environment agencies, the National Association of Municipalities and Environment (ANAMMA), which congregates local government environment bodies, and NGOs.
Interministerial Commission for Marine Resources: The Interministerial Commission for Marine Resources (CIRM) was created in 1974 to implement the National Maritime Resources Policy. The CIRM has representatives from the Ministry of the Navy, the Ministry of Environment, the Ministry of External Relations, the Ministry of Transport, the Ministry of Education and Sports, the Ministry of Industry, Commerce and Tourism, the Ministry of Planning and Budget, the Ministry of Mines and Energy, the Ministry of Science and Technology, the Chief of Staff's Office of the Presidency and the Strategic Affairs Secretariat.
Ministry of Environment: The Ministry of Environment was created in 1992 and is the main environmental agency in Brazil, being directly responsible for the national environmental and hydric resource policies, the preservation, conservation and sustainable use of ecosystems policies, and for the protection of biodiversity and forests. The Ministry of Environment can propose strategies, mechanisms and economic and social instruments for the improvement of environmental quality and the sustainable use of natural resources in the country.
National Agency of Water Transport: The National Agency of Water Transport (ANTAQ), a part of the Ministry of Transport, regulates, supervises and controls activities related to water transport, exploitation of waterways and port infrastructure.
National Agency of Petroleum: The National Agency of Petroleum (ANP), a part of the Ministry of Mines and Energy, is the agency responsible for regulating activities related to petroleum, natural gas and biofuel. The ANP is also responsible for the invitations to bid on the exploitation, development and production of oil and gas and for the control of contracts entered with the concessionaires.
Navy: The Navy Command is responsible for the regulation and control of waterway traffic, specifically as it relates to navigational safety and the protection of the maritime environment.
Special Secretariat of Fisheries and Aquaculture: The Special Secretariat of Fisheries and Aquaculture (SEAP) advises the President in the formulation of policies and guidelines relating to fishing and aquaculture. SEAP promotes the implementation and evaluation of measures, programs and projects that support the development of artisanal and industrial fisheries, as well as actions connected to infrastructure development that supports the production and commercialization of fish. SEAP regulates the sustainable use of migratory fish and issues licenses, permissions and authorizations for artisanal and commercial fisheries and aquaculture in fishing zones, including the territorial sea, in the Union including: maritime beaches and the oceanic and coastal islands; natural resources of the continental shelf and the exclusive economic zone.
Key Legislation Return to top
The legal protection of the environment, including maritime areas, is performed under statutes stemming from the Brazilian Federal Constitution, which distributes the authority to legislate on environmental matters between the Union, states, federal district and municipalities. The authority of the Union is to establish general rules, while the states and the federal district complement the federal statutes, either by filling the gaps or by creating rules that were not yet established by the Union. Municipalities have the authority to legislate only in matter of local interest, supplementing the federal and state statutes pursuant to the occasion.
Brazilian environmental legislation began its consolidation process in the beginning of 1980 with the edition of the National Environmental Policy and the promulgation of the Brazilian Federal Constitution in 1988, which dedicated an exclusive chapter to the protection of the environment and the conservation of the resources and natural spaces. Since then, environmental concerns were inserted in several legislative acts and today the Brazilian legal system is made up of various laws that directly or indirectly protect the maritime environment and its resources.
Brazilian Federal Constitution: After the framework for the political and legal aspects of the environment are established in the Brazilian Federal Constitution, an entire chapter is dedicated to the protection to the environment. Its articles provide that public authorities and the public at-large have the duty to defend and preserve the environment for future generations, establishing a series of obligations such as the preservation and recovery of species and ecosystems and defining areas that shall have especial protection.
Environmental Crimes Act: The Environmental Crimes Act sets forth the penal and administrative crimes resulting from conduct or activities harmful to the environment and its fauna while providing civil, administrative and criminal penalties for individuals and legal entities. Specifically related to the maritime environment, the Environmental Crimes Act establishes as a crime the death of aquatic fauna caused by effluent emissions, the degradation of public aquaculture areas, the exploration of natural fields of invertebrate aquatic animals and algae without authorization, and the release of debris of any nature on banks of mollusks or coral that are properly demarcated in nautical charts.
Likewise, it is crime to fish under the following conditions: during forbidden periods, in protected places, protected species, animals of inferior size, in excess of amounts allowed, or by use of forbidden apparel and methods. The law also establishes the same penalties for those who transport, commercialize or industrialize species acquired by illegal forbidden fishing. It is also a crime to fish using explosives or like substances and with toxic substances.
The Environmental Crimes Act also provides penalties to whoever causes direct or indirect damage to conservation areas, regardless of their location, which naturally includes those located in maritime areas. It is also a crime to cause pollution of any nature in such levels that result or that may result in damages to the human health, or that provoke the death of animals or the significant destruction of flora. Such penalties increase if such pollution hinders or impedes the public use of beaches, or if it comes as a result of the release of residues or oils in disagreement with established standards.
Fisheries Code: The Fisheries Code has been in force since 1967 with the publication of the Brazilian Law-Decree n. 221/1967, which defines fishery as every action to capture or extract animals or vegetation that have life cycles in the water. The provisions of the Fisheries Code are to be applied in the interior waters, the Brazilian territorial sea, the areas of high sea, in accordance with international treaties and conventions ratified by Brazil, in the contiguous area and in the Union include: maritime beaches and the oceanic and coastal islands; natural resources of the continental shelf. Fisheries may be transitory or permanently forbidden by in public or private waters. The Code establishes the express prohibition of fisheries in places that can cause navigational hazards and fisheries that use toxic substances, dynamite and other explosives.
The Brazilian legal system has other laws that restrict fishing activities, such as the Brazilian Law n. 7.643/1987 that forbids fishing, or any form of intentional molestation, of all cetacean species in Brazilian jurisdictional waters, establishing confinement and fines in case of noncompliance, including the loss of the vessel in favor of the Union, in case of regression.
Maritime Areas Act: Brazilian Law n. 8.617/93 states that Brazilian jurisdiction includes the water, air space, seabed and subsoil of the territorial sea, the contiguous zone, the exclusive economic zone and the Union include: maritime beaches and the oceanic and coastal islands; natural resources of the continental shelf. The law establishes that foreign vessels in the Brazilian territorial sea are subject to the regulations established by the Brazilian Government. Brazil can take necessary measures to avoid and to repress violations of laws and internal rules.
Brazil has sovereign rights in the exclusive economic zone for the exploration, use, conservation and administration of the natural resources of the waters over the seabed, the seabed itself, its subsoil, and other activities for economic purposes. Brazil also has sovereign rights on the continental shelf for the exploitation of its natural resources and it holds the exclusive rights to regulate scientific investigations, protection and preservation of the maritime environment, and construction, operation and the use of artificial islands, facilities and structures.
National Environmental Policy Act: The main objective of the National Environmental Policy Act, established in 1981 by Brazilian Law n. 6.938/81, is the preservation, improvement and recovery of environmental quality. Its guidelines are created through rules and plans that consider and comply with a series of principles, such as the protection of the environment through government action, rationalization of the use of soil, underground resources, water and air, planning and control of environmental resource use, protection of the ecosystems, and control of potentially polluting activities, among others. To accomplish its objectives, the National Environmental Policy uses specific mechanisms for environmental protection. Such mechanisms, include establishing standards of environmental quality, evaluating environmental impacts and licensing activities, designating protected areas and seeking punishment relating to environmental degradation.
National Maritime Resources Policy Act: Sanctioned by the Brazilian Decree n. 5.377/2005, the National Maritime Resources Policy promotes the rational exploration of the Brazilian territorial sea and Union include: maritime beaches and the oceanic and coastal islands; natural resources of the continental shelf, including the living resources, minerals, energy, soil and subsoil, which may promote economic and social development and national security. The National Maritime Resources Policy establishes principles and objectives for governmental plans, programs and actions for the development of marine research, technology, exploitation and sustainable use. The Interministerial Commission for Marine Resources (see above) is responsible for coordinating the implementation of the National Maritime Resources Policy.
A significant plan implemented under the auspices of the act is the National Plan of Coastal Management. The plan establishes general rules for the environmental management of the Brazilian coastal zone, providing the basis for state and municipal policies, plans and programs. A program established under the act is the program to assess the Sustainable Potential of the Living Resources of the Exclusive Economic Zone (Revizee), which follows the ratification of the United Nations Convention on the Law of the Sea. Revizee conducts research (including inventories, biomass determinations and sustainable catch assessments) on living resources within the Brazilian exclusive economic zone.
National System of Nature Conservation Areas Act: See above.
Oil Pollution Act: The Oil Pollution Act, Brazilian Law n. 9.966/2000, provides for the prevention, control and inspection of pollution caused by oil releases and other noxious or dangerous substances in waters under national jurisdiction that may cause risks or damages to the human health, the aquatic ecosystem or that may impair the use of water. The act requires continuous follow-up by environmental agencies to prevent and control activities that generate oil and other noxious substances. The act requires authorization for any discharge of oil, noxious substances, ballast water and other pollutant residues in waters under national jurisdiction. Even when discharges are duly authorized, the responsible parties are held liable for damages caused to the environment. Noncompliance with the act may result in fines that can reach up to R$ 50.000.000,00 (fifty million Brazilian Reais), regardless of other administrative and penal sanctions and civil liabilities of the damages.
Petroleum Act: The Petroleum Act, Brazilian Law n. 9.478/1997, ended the monopoly of the Union in activities related to the exploitation, production, refinement and transportation of petroleum in Brazil, allowing private companies, either national and foreign, to act in all aspects of the productive chain, from well to wheel. The law established the national policies for the rational use of energy in order to protect the environment and promote the conservation of energy. The National Agency of Petroleum (see above) regulates, promotes and controls economic activities of the petroleum, natural gas and biofuel industries to ensure implementation of conservation practices, rational use of raw materials and preservation of the environment. The exploitation, development and production activities related to petroleum and natural gas are undertaken through concession contracts and the concessionaire is obliged to repair or indemnify for damages caused by its activities and to practice all necessary measures for environmental recovery.
Submerged Items Act: The Submerged Items Act provides for the research, exploration, removal and demolition of sunken, submerged, stagnated and lost items in waters under national jurisdiction. Naval authorities implement the act to prevent, reduce or control risks or damages to navigational safety, third parties and the environment.
Waterway Traffic Safety in Waters under National Jurisdiction Act: The Waterway Traffic Safety in Waters under National Jurisdiction Act provides that the Marine Command is entitled to ensure the security of human life and the safety of navigation in the open sea and interior waterways and to prevent the environmental pollution by vessels, platforms or their support facilities. Among the instruments of control at the Marine Command’s disposal, the command may deny entry by foreign vessels that represent a threat to the environment, its crew or any third party or to the safety of waterway traffic.