Minas Gerais Publishes Decree Regulating FPIC in its Environmental Licensing Processes

On September 12, 2024, the Government of Minas Gerais published Decree No. 48,893 (the “Decree”), which provides for Free, Prior and Informed Consultation (FPIC) in the state's environmental licensing processes for members of indigenous communities with in the State. FPIC is provided for in Article 6 of Convention No. 169 of the International Labor Organization (ILO), enacted by Decree No. 5,051/2004, and currently in force in Brazil under Decree No. 10,088/2019. The Decree establishes the right to consultation for indigenous populations with regard to legislative or administrative measures that may directly affect them.

The Decree establishes two criteria for conducting FPIC in environmental licensing processes: (i) first, the indigenous peoples must be recognized by the National Indian Foundation (Fundação Nacional dos Povos Indígenas, “FUNAI”), be members of quilombola communities as certified by the Palmares Cultural Foundation, or be members of another group of indigenous peoples recognized by the State Commission for the Sustainable Development of Traditional Peoples and Communities of Minas Gerais; and (ii) second, the indigenous peoples must be located in the area directly affected by, or within the distances established by Annex I of Interministerial Ordinance No. 60/2015, in the case of projects with significant environmental impact. The Decree establishes a 3 kilometer distance for relevant activities subject to the Environmental Impact Study and Environmental Impact Report which are not covered by Annex I of said ordinance.

The Decree provides an exemption from FPIC’s consultation requirements in cases where the traditional peoples and communities (i) are located in a consolidated urban area, provided that the activity or undertaking is not within the limits of their land or territory; and (ii) have already been consulted by a government agency, with regard to environmental licensing for the same purpose and without changes that affect them.

For private projects, the developer will be responsible for conducting the FPIC. The Decree only applies to licensing processes initiated after its publication, and its application is optional for activities initiated previously.\

The Environmental, Climate Change and ESG Practice of Tauil & Chequer Advogados, in association with Mayer Brown, is available to provide further clarification on this topic.