The Dominion - law

Canada’s Largest Environmental Lawsuit a Victory

Moira Peters — Mon, 12 Jul 2010 05:08:59 +0000

Ontario court rules Vale must pay $36 M to Port Colborne residents

FREDERICTON—Almost 10 years after Wilfred Pearson, a retired truck driver from Port Colborne, Ontario, signed his name as the lead plaintiff to the largest environmental class action lawsuit filed in Canadian history, the verdict is in—and it is in his favour.

Port Colborne residents claim that their property values were diminished by the levels of nickel emitted from Inco's refinery. On July 6, 2010, Ontario Supreme Court Justice J.R. Henderson sided with the residents and awarded more than 7,000 households in Port Colborne a total of $36 million. Households in the Rodney Street area, in the shadow of the nickel refinery, were each awarded $23,000 while those living on the east side of Port Colborne were each awarded $9,000, and the west side, $2,500. Vale (formerly Inco) has said the company will appeal.

"It has been a very long 10 years. People said to me the day we launched this lawsuit that you can't fight large corporations and expect to win. They were wrong. I hope this court victory shows people can stand up and fight for justice," said Diana Wiggins, who originally called the Canadian Environmental Law Association, setting the lawsuit in motion.

The lawsuit’s initial defendants included Inco, the Ontario Ministry of Health, the Ontario Ministry of Environment, the Niagara Regional Health Department, the Niagara District School Board, the Niagara Catholic School Board and the City of Port Colborne.

In February 2001, Pearson was the lead plaintiff on the lawsuit of 8,000 plaintiffs who originally sought $750 million in damages to health, property value and quality of life. Although that suit failed in 2002 to be certified, it was subsequently modified to focus on devaluation of property. The suit was certified on November 18, 2005. The plaintiffs settled out of court with all defendants except Inco. In late June 2006, Inco’s efforts to stop the class-action lawsuit were dismissed by the Supreme Court of Canada. The lawsuit that resulted in the July 6 verdict went to trial in October 2009.

Eric Gillespie, the lawyer representing the Port Colborne residents, said, "Our clients are very pleased with the decision. It's a very significant award and it's been made to the entire community."

Inco opened the Port Colborne nickel refinery in 1918, cashing in on the post-war demand for nickel. The refinery was a major employer in Port Colborne for decades after; the workforce peaked at about 2000 in the 1950s. The nickel refinery stopped refining nickel in 1984. Today, fewer than 200 people work at the plant that refines cobalt and other precious metals.

Wiggins and Ellen Smith, two Port Colborne mothers, founded Neighbours Helping Neighbours in 2001 to tackle the nickel contamination problem in their city. Smith became the lead plaintiff in the lawsuit when Pearson's health problems became too severe for him to continue.

Inco became one of the main landowners in the area in what many believed was an apparent attempt to buy contamination concerns, beginning in the 1960s. Some properties along Rodney Street, deemed to be the most contaminated, were remediated by Inco.

Residents feel that the Inco refinery is responsible for the heavy metal contamination of their soils, and Inco has admitted to contamination by nickel, copper, cobalt and arsenic. An estimated 20,000 tonnes of nickel oxide, a carcinogen, was spread over the Port Colborne area during the refinery's operation. In some areas of Port Colborne, nickel exceeds 20,000 parts per million (ppm). Ontario's Ministry of the Environment considers the safe upper threshold for nickel in residential soils to be 200 ppm.

Wiggins became aware of the extent of the contamination after talking to a friend who had been hired by Inco to pump out contaminated soil. Contaminants were said to be escaping into the ground water and wells. For decades, Inco had been dumping electrolyte nickel or "green liquor" into an aquifer below the Rodney Street neighbourhood. Over time, a fracture developed in the bedrock. By 2000, this "green liquor" was seeping into Lake Erie and surrounding areas.

Wiggins introduced herself to Smith after reading a story about her fears of property contamination in the local Tribune. In June 2000, Smith and her partner Craig Edwards requested that the Ministry of Environment test the soil on their Rodney Street area property. Smith and Edwards were astounded by the results. Their property contained between 14,000 and 16,000 ppm nickel, and over 600 ppm lead.

Smith, who is now the mother of two teenagers, wrote in 2003, "I have enjoyed watching my children play with their trucks and cars, making roads and bridges in the dirt. I thought that some day they might wish to become engineers. We have had numerous rounds of baseball, catch or Frisbee in the backyard. We spent warm summer days at the ballpark. Now the children's play areas are restricted. The ballpark is chained shut. They can't explore their world without barriers. They can't even enjoy the surroundings of their own home. They can no longer be the children they were."

Smith and Edwards paid off their home and property only to later find out their soil was contaminated. Smith said, "How can we sell this house and property to another starting family when we know what lurks beneath the ground and in the walls? As a mother watching her young children grow, I am sickened and at a loss for words to explain the feeling of not knowing what the future holds for my children. As a Port Colborne resident, I feel personally violated by those we trusted to protect our environment and our health and safety."

Wiggins recalls the moment in the year of 2000 that sprang her into action. "My son would come home from school quite often complaining of severe sinus headaches and stomach aches. He also had rashes on his body. At the beginning of these ailments, I did not suspect there was an environmental problem. I had my son tested for nickel in his urine. But when I went to my son's pediatrician for the test results, he was elusive. The doctor wouldn't look me in the eye, stood with his back to me and stated that he 'wasn't allowed to discuss this issue' with me."

Wiggins discovered that Inco had purchased a property and sold it to the Niagara District School Board.

"The original landowners farmed the [property]. It had been said that the lady of this house suffered from a severe skin rash, so severe that it was difficult for her to work on the land. A few years after Inco purchased the land from the couple, the Niagara District School Board acquired it and built Humberstone School," said Wiggins.

Wiggins spoke with various specialists in the environmental and health fields. "As time went on and more information started surfacing, it literally was making me feel sick to my stomach every time I put my son on the bus," said Wiggins.

Wiggins and Smith reluctantly joined the Community-Based Risk Assessment (CBRA) process—a process that was supposed to determine the risks of the refinery contamination and a process to clean up the contamination.

"Getting quite discouraged, I started to attend their meetings in September 2000. As time went by, I became even more discouraged as it was becoming increasingly clear that nothing was going to be done to ensure the safety of the people living with such high levels of contamination," said Wiggins. "I doubted this company-sponsored process. Here we have a known contamination in our city. However, it is still just sitting here for children to play in, people to grow crops in, for us to breathe."

The suppression of a phytotoxicity report from her son's school and soil test results in the Rodney Street area worried Wiggins. She also learned that the Ministry of Environment's office had been holding strategic communication meetings on how to deal with Port Colborne residents and their concerns about environmental contamination.

Smith remembers uncovering documents that demonstrated the government withheld information about the refinery's environmental problems. Reading each page made Smith push harder for the truth and for justice.

Nasal cavity cancers, linked to exposure to nickel oxide, have claimed the lives of several refinery workers, some before they received their first pension cheque. Surviving family members blame the refinery for the loss of their loved ones.

In November 2000, the community was shocked to hear government scientist Al Kuja say, "There's areas where every single household has someone sick, every single family, some member has something—cancers, rashes, leukemia... Personally I think that something is going on."

In early 2001, soil at Humberstone School tested at levels of 1,200 ppm of nickel.

"I spoke with the school representatives, trying to get them to do something to protect the children. At one point, I had a conversation with a Niagara School Board staff member in charge of the safety and wellness of the children. He said, 'If it were me, I would just move my child to another school.' I responded, 'That would be fine for my son... but what about the other 200 children in the school?' It appeared to me that authorities were not explaining to parents what the contamination statistics meant, so how could parents make an informed decision concerning the health risks for their children? There were children with quite severe skin rashes and ongoing headaches and stomach aches."

Wiggins pulled her son from Humberstone School in February 2001 to demand measures be taken to protect the children in the school. The school obliged and a week later her son was back at school with new rules: students were not allowed to play on grass, they had to wash their hands when they came in from the outside, and windows in the school were to to be kept shut when farmers were working on the land. She enrolled her son in a different school in the fall of 2002. The Humberstone School was shut down in 2003 and demolished in 2008.

The women, Pearson and others from Port Colborne have demonstrated outside Inco’s shareholders’ meetings in Toronto, holding signs such as, "Inco Nickel Found In My Kitchen, Attic And Left Lung." One of the more memorable shareholders’ meetings was in 2003 when Port Colborne residents handed out what they called "dirt bags"—bags of their contaminated soil—to Inco shareholders.

Both women monitor Vale’s problems at home and abroad. In 2003, Wiggins motivated others to organize a global day of action against Inco. In October of that year, people around the world demonstrated and held public presentations, film screenings and vigils in Newfoundland, Ontario, Guatemala, Indonesia and Kanaky-New Caledonia in the first global day of action against a Canadian mining company.

Vale, now under Brazilian ownership, has provoked the creation of a network determined to coordinate actions among communities affected by Vale in Brazil and worldwide. Striking Vale workers in Canada recently visited Vale-affected communities in Brazil and Indonesia.

Tracy Glynn sits on the Board of the Dominion/Media Co-op and is an organizer of the New Brunswick Media Co-op. She wrote a masters thesis on the the environmental and health problems of Inco's smelter and mines in Indonesia. She sits on the Board of Mining Watch Canada and is co-editor of the website MinesAndCommunities.org.

Inco Diana and Ellen

Inco Indonesia

Port Colborne's INCO chemical pond

Recovering from the Heart Attack

Moira Peters — Thu, 10 Jun 2010 05:31:10 +0000

Arrestees fighting off Olympic side-effects in court

VANCOUVER—Although the Olympics' closing ceremonies were three months ago, for those who opposed the two-week spectacle, the Vancouver 2010 Games have not yet left town.

Guillaume Pascal was arrested and accused of involvement in the February 13 Heart Attack Demonstration. "Two cops say that I instructed people to smash the windows of the RBC [Royal Bank of Canada]," he said. "VPD [Vancouver Police Department] said that they caught the ringleader of the action when they arrested me."

The Heart Attack was a demonstration meant to clog the roads leading through Vancouver to Whistler where many of the sports events were taking place. 300 masked people walked through downtown Vancouver, vandalizing symbols of the Olympics and capitalism. Olympic sponsors' advertisements on city buses were spray-painted; newspaper boxes of the Province and Canwest newspapers were overturned and the windows of the Hudson's Bay Company were smashed. The group was dispersed finally by riot police in the West End.

Pascal was arrested two days after the Heart Attack demonstration, after his residence and vehicle were constantly monitored by the police.

"VISU [Vancouver Integrated Security Unit] really dropped the ball on keeping the peace," said Pascal, who believes he was arrested because security agencies needed to save face after property was damaged during the Heart Attack. "They spent eight times the amount [on security] as the Quebec City Summit of the Americas, and needed a scapegoat for their incompetence in letting the Heart Attack take place."

"The Heart Attack ended the violent protests, and that had a lot to do with the response of the police," said Deputy Chief Constable Steve Sweeney at a March 17 Olympic security debriefing. "The public came over to our favour," he said about support for police conduct during the Heart Attack.

But few saw footage of police conduct during the February 13 demo. Police were brutal in arresting protesters, and even detained people peacefully walking to a prison vigil later that day.

"There were no charges made against me," said Sozan Savehilaghi, who marched with a pink-wigged, coverall-wearing group calling itself the Olympic Cleanup Crew. She was detained for video-taping arrests during the Heart Attack. "I was never read my rights or told why I was being detained. There were just lots of empty threats."

Savehilaghi was one of 27 protesters arrested during the Olympics, according to Solidarity with Anti-Olympic Convergence Arrestees (SACA)—a group formed to bring together arrestees and supporters to raise funds for the formers' defence. Ten of the arrestees were charged, of whom two are still fighting charges in court.

SACA member Ed Durgan was arrested February 13 near Pigeon Park, fifteen blocks away from where the Heart Attack demo ended. He was arrested for riding his bicycle on the sidewalk after questioning a group of police, whom he believed were harassing someone sleeping on a bench near the park.

"I was nearly deported. We had to fight for me to stay since they were going to revoke my student visa," said Durgan. "They put effort into intimidating me because I was a high-profile activist. But [the detainees] realized we'd all been arrested for political purposes, and wanted to stick together and fight these charges." Durgan said SACA goes beyond fundraising, and is considering legal action against the police for harassment.

Fundraising for SACA is tricky in Vancouver, where recently a benefit rock gig at the Pitt Pub at the University of British Columbia (UBC) was cancelled by the Alma Mater Society (AMS).

"AMS is claiming that the policy is that only student groups can book events on-campus," said SACA organizer Alissa Westergard-Thorpe, "which makes no sense because off-campus groups"—such as the Red Cross and Vancouver General Hospital—"work with student groups to book space at UBC all the time."

Despite UBC AMS' actions, there is support for SACA. The launch of the Dominion's G20 special issue on May 14 at the Vancouver Media Co-op included a solidarity statement with SACA. A dance party at the Secret Location on the same night included a silent auction for SACA.

Pascal's case is still going through court. "And there are other things like finding a job, that is hard after this," he said. "Marginalizing someone into being a 'terrorist' stops him from ever being able to live normally."

Isaac K. Oommen is a freelance journalist and communications graduate student researching media representation of marginalized people. He is a collective member of the Vancouver Media Co-op.

Olympic Cleanup Crew

Main & Hastings Cop Shop

The Need for Legal Empowerment

Paula LaPierre — Wed, 27 Jan 2010 02:22:17 +0000

The Need for Increased Legal Empowerment

We must avoid the trap of interpreting disadvantaged or poor strictly from a material paradigm.

Sincerely,

Paula LaPierre

Joint Efforts are the Key

Paula LaPierre — Mon, 14 Dec 2009 17:36:16 +0000

As Global Citizens We Should All Care About Water

Paula LaPierre — Sat, 05 Sep 2009 17:39:35 +0000

Understanding the Importance of Grassroots Communities

Paula LaPierre — Sat, 16 May 2009 18:59:23 +0000

Fighting Free Entry

dawn — Fri, 21 Nov 2008 10:29:57 +0000

Ending mining’s privileged access to land

OTTAWA, ONTARIO–In Ontario, Aboriginal organizations and landowners may be about see an end to the province’s archaic “Free Entry” system, the system that governs the allocation of mineral tenure in most jurisdictions across Canada.

Free Entry allocates rights to mineral tenure (the right to explore and potentially extract minerals on a tract of land) through claims staked on a first-come, first-served basis. It guarantees the claim-holder the exclusive right to develop a mine on the land, if economically viable minerals are found.

Free Entry applies to all Crown lands, most of which are First Nations traditional territory. It also applies to private properties, because mineral rights belong to the Crown, not to the surface-rights holder.

Canada is one of the few countries with this system of mineral tenure. In December 2007, the Environmental Commissioner of Ontario stated, “This century-old system continues to rely on principles that are no longer reflective of modern planning or resource management.”

The Ontario Court of Appeal has called the Mining Act “a remarkably sweeping law,” which allows no role for communities in deciding when and how mineral exploration will take place.

In British Columbia, mineral claims can be staked online, with the click of a mouse from anywhere in the world.

A number of Supreme Court decisions under Section 35 of the Constitution, which recognizes existing Aboriginal treaty rights, reinforce the right to meaningful consultation and accommodation of Aboriginal interests. The Mining Act is in direct conflict with Section 35.

Mineral staking entails the creation of a third-party interest on lands of Aboriginal use and occupation. First Nations are demanding to be consulted and accommodated before claims are staked.

They insist that they need to evaluate the potential effects mining and mineral exploration are likely to have on other uses of the land before they allow it to go ahead. For this consultation to be meaningful, it has to acknowledge the right of the Aboriginal government to say, “No.”

In November 2005, an official press release from the Nishnawbe Aski Nation (NAN, which represents 49 First Nations in Ontario’s North), stated:

“We are facing a multitude of First Nation grievances triggered by mining exploration that could at any time lead to an explosive conflict. A number of NAN First Nations have declared moratoriums on mining exploration and development. The immovable object of mining company shareholders and Mining Act assessment requirements will one day meet the irresistible force of Treaty rights with predictable consequences. At issue is the so-called Free Entry system. The ownership of the land itself is in dispute.”

Communities fight back

In British Columbia, the Takla Lake First Nation has prevented Imperial Metals' access to its exploration site on Bear Mountain for more than three months. Bear Mountain is sacred to the First Nation. Two watersheds, the Driftwood and Bear, originate on the mountain's slopes. Both are headwaters for endangered salmon runs. ”We'll protect it with all our might," councillor Victor West told The Tyee in August.

In the northwest of the province, sacred headwaters in Tahltan Territory have also been off-limits to mining exploration for more than three years, due to blockades enforced by elders in the community. There have been a number of arrests of community members, including Lillian Moyer, a great-grandmother.

In New Brunswick, landowners in Turtle Creek and Cambridge Narrows say they are experiencing increased pressure while prospecting and that many landowners are “infuriated” by uranium prospecting tags in their properties. Tracy Glynn and Craig Johnson, both New Brunswick residents, wrote in the Times & Transcript, “This represents a violation of their property and their rights as landowners in the province – these New Brunswick citizens are perfectly justified in raising concerns over the implications of these tags for the future of their land.”

They have been supported by New Brunswick First Nations in their demands for change.

In Quebec, a new coalition, Pour que le Québec Ait Meilleure Mine (a play on words, as "mine" also means "appearance"), is advocating for an end to "Free Mining," which allows for universal access and first-come, first-served mineral licensing. The coalition is also pushing for a number of changes to the Mining Act, including improved closure bonding, which would require companies to guarantee funds to pay for mine closure in order to prevent abandonment.

Similarly, property owners and First Nations in Ontario have been demanding changes to the Mining Act. In spring 2008, seven leaders from the Ardoch Algonquin and the Kitchenuhmaykoosib Inninuwug (KI) First Nations were jailed for contempt when they refused to acknowledge a court injunction to open their traditional lands to mineral exploration.

There was a huge public mobilization and outcry, and the leaders were released in May. However, the Ardochs still have a multi-million-dollar default judgment against them from the mining company, the company has asked leave to appeal the release of Bob Lovelace to the Supreme Court, and the trial court is still seeking costs from that hearing from the non-status community.

By July 14, the Ontario Premier was forced to address the reform of the Mining Act. In a news release, he stated:

“Our plan will ensure that mining potential across the province is developed in a sustainable way that benefits and respects communities. We will ensure that our mining industry remains strong - but we also need to modernize the way mining companies stake and explore their claims to be more respectful of private land owners and Aboriginal communities. The Ontario government believes exploration and mine development should only take place following early consultation and accommodation of Aboriginal communities.”

Consultations on the Ontario changes continue, although many First Nations argue that the process is moving too fast and does not provide them with time or resources for the communities to study the proposed reforms.

As provincial governments are feeling more and more pressure to reform how mining is carried out across the country, non-governmental organizations are beginning to lead the way.

A report prepared by Eco-Justice and the Canadian Institute of Environmental Law and Policy was released in early October. Endorsed by a collaboration of many well-respected NGOs, the report provides a model for the changes, including agreement from First Nations before staking can take place, a permitting system and environmental assessment for each stage of mining, and an end to self-assurance for mine closure. The report states:

“As a world leader in mining production and exports, Ontario’s mining industry should also be a world leader in promoting and engaging in sustainable, responsible mining practices. The Ontario government must play a lead role in ensuring that such sustainable, responsible practices are adopted, especially given that Ontario’s mining laws and policies are used as a model for developing nations where Canadian mining companies operate.”

Joan Newman Kuyek is a writer and researcher living in Ottawa, and is the former National Coordinator of MiningWatch Canada.

The free entry system is based upon the following premises:

Mining prevails over private property interests.
Mining is the highest and best use of Crown lands.
All Crown lands are open for staking and mineral exploration unless they are expressly excluded or withdrawn by statute.
Mining prevails over Aboriginal land rights.
Mineral tenures are appropriately granted on a "first come, first served" basis.
Mineral potential is so valuable that it warrants leaving the staked area essentially unregulated and potentially unusable for other resource interests.

Human Rights vs Mining Rights

Battle for the Amazon

Moira Peters — Wed, 27 Aug 2008 22:14:49 +0000

Brazilian Supreme Court case pits farming in the Amazon against indigenous rights

The Brazilian Supreme Court has delayed a ruling that could have far-reaching effects on the Amazon and the thousands of indigenous people who live there. In question is the legality of a process that created an Indigenous Territory in northern Brazil, and the case threatens to reverse decades of progress on indigenous and social rights throughout the country.

After more than two decades of struggle for recognition, five indigenous groups in Brazil's northern Roraima state won the rights to their ancestral lands in 2005. Their efforts culminated in the creation of a new Indigenous Territory, Raposa Serra do Sol, which covers a large swath of the Amazon Rainforest on the border with Guyana.

In a decree signed by Brazilian President Luiz Ignacio Lula da Silva, over 18,000 indigenous Makuxi, Wapixana, Ingariko, Taukepang and Patamona peoples were granted 1.7 million hectares. Non-indigenous peoples were compensated and forced to leave the area. Although this might have brought an end to the long struggle for recognition of their territorial rights, the indigenous peoples of Raposa have faced fierce opposition from entrenched economic interests in Roraima.

In particular, a group of seven wealthy rice farmers has refused to leave the region, throwing the reserve into chaos. Known as fazendeiros, these large-scale farmers have rejected compensation and relocation, despite having arrived in the area less than 15 years ago.

A recent spate of violence against the indigenous peoples in the Raposa Territory has increased tensions. In April, an indigenous leader was attacked when a bomb was thrown at his house. In May, six Macuxi children and four adults were attacked and shot by armed men working for a rice farmer, and local mayor Paulo Cesar Quartiero. Quartiero was detained by police and later released, despite the discovery of a large weapons cache on his property.

Earlier, in April, the Supreme Court suspended an operation by the federal police to remove the remaining seven illegal occupants of the reserve: the fazendeiros had set up blockades and destroyed bridges in order to fight their eviction.

"Even with all the destruction carried out by the rice growers, the Supreme Court decided in their favor," Macuxi chief Dionito Jose de Sousa told the Associated Press in April.

According to Catarina Vianna, a member of Makunaima Grita, a Brazilian group dedicated to helping the indigenous people at Raposo Serra do Sol, the current struggle is a basic one for the peoples of Raposa.

"This is really a local conflict. It's about use of water, about the farms getting bigger and bigger,” she said by phone from London. “Now the indigenous people are saying, 'Enough, this has been recognized as our land.’"

With the support of the Roraima state government, the fazendeiros and state Governor José de Anchieta have appealed to Brazil's Supreme Court to break up the Raposa Territory and free up large amounts of the land.

"The farmers want the indigenous land to be divided into islands. They don't want the indigenous land to be a continuous tract of land. But legal experts in Brazil maintain that there is no legal basis to annul the 2005 demarcation," said Vianna.

****

This comes at a time when President Silva has signed a decree to station troops permanently on all Indigenous Territories on the border. There has been talk among top officials in the Brazilian Armed Forces about foreign meddling in the largely-indigenous border region. Citing risks to national sovereignty, it appears the military feels threatened by the formation of Indigenous Territories.

"The military has an agenda," said Vianna, "to protect Brazilian sovereignty. It's been their main discourse since the dictatorship in the 60s and 70s. They are against the demarcation of continuous indigenous lands near the border because they want to control what happens [there], and they're afraid that what they call 'foreign interests' will use the Indians to then exploit the Amazon."

The military is using the conflict in Roraima to support these goals, suggesting the presence of drug traffickers and guerrilla groups in indigenous lands, and has called for the Supreme Court to annul Raposa Serra do Sol's boundaries.

According to Tim Cahill, a researcher on Brazil with human-rights organization Amnesty International, the military has long tried to taint social movements in Brazil by claiming connections to foreign revolutionary groups.

"In relation to the accusations of money coming in from Venezuela and FARC rebels – I have no evidence for or against it," he said. "But it's fair to say that whenever there's some criticism or attack to be made against social movements in Brazil... the FARC are always dragged out, although very little evidence is ever provided to prove these allegations. So it seems once again that it's an attempt to criminalize social movements in Brazil and discredit their work [that benefits] the poor and the marginalized."

Cahill says that the military – which has total access and freedom of movement in Indigenous Territories – does not have a good reputation among indigenous peoples.

"Indigenous people across the Amazon have persistently complained to Amnesty and denounced violations committed by soldiers who work indigenous areas – sexual abuse, physical abuse, and intimidation," he said. "There seems to be a clear contradiction in the sense that indigenous areas are meant to limit the access into those areas to guarantee their safety and protection. Yet when the Army goes in there, time and time again we see that [indigenous] rights are violated."

However, the military is unrepentant and has made it clear that no group's rights supersede those of the Brazilian Armed Forces.

"We want to be clear on something fundamental – Indian lands are Brazilian lands," said Defense Minister Nelson Jobim, according to a May Reuters article. "There are no nations or Indian peoples, there are Brazilians who are Indians."

The Brazilian Ministry of Defense was contacted for this piece, but declined to comment.

****

Cahill believes the real causes for the current conflict over Raposa go deeper than the military's security concerns. He says that this case represents a key moment in the face-off between indigenous rights and the interests of big business in Brazil, and big agrobusiness in particular.

"This is something we see not only in the Amazon, but across Brazil," he said. "The cultural, social and economic rights of indigenous peoples tend to come into conflict with the economic interests of big agro-industry. And big agro-industry has been the driving force of the recent economic boom that's occuring in Brazil, and we've seen that there's a lot of political and judicial support for their interests."

"In this case, it's not that the military has allied itself with the farmers," said Vianna. "Rather, two separate interests have come together. This handful of farmers – they're extremely wealthy. It's not about them. It's about how Brazil will use the Amazon. Are they going to just leave it to the Indians, who won't develop it? Or does Brazil have a plan for developing the Amazon? This is a discourse of economic development.

"That's why the farmers are using economic arguments. They are saying, 'What we do is good for the state and national economy.' They call themselves the 'Nationalist Resistance.' They consider themselves those who represent the nation, against the Indians who are supported by 'foreign interests.' They never say who these 'interests' are. But by conflating the local conflict into this language of nationalism and development – of developing the nation – they were able to get closer to the military's cause."

****

Rogerio Duarte do Pateo, a Sao Paulo-based member of Makunaima Grita, signalled that the consequences of the court's ruling could extend far beyond Raposa's borders.

"A decision against Raposa would create the legal precedents to revoke all indigenous titles to land in Brazil," he said. "Any other territory could be contested, [such as] the Yanomami, Kayapó."

Both Pateo and Cahill believe a decision against Raposa would not only violate the Brazilian Constitution, but it could put at risk the gains made over the last 30 years in terms of indigenous rights, throughout Brazil.

"What is on the line here is Article 231 of the Brazilian Constitution and the indigenous rights that are laid out in that article," Pateo said. "It's not that the court decision will directly affect the Constitution, but the arguments that are being used go against Article 231 – it seems that the justice system is going to favour the big landowners – and this will open up the way to revise Article 231."

"The 1988 Constitution allows indigenous people the process to set out and identify their ancestral lands," said Cahill. "There's a real fear that this will set back cases across the country of indigenous peoples who continue to fight for the rights to their land, and who, through this process, continue to seek the provision of their basic human rights and cultural rights."

According to a statement signed by 85 Brazilian NGOs in support of Raposa Serra do Sol, the Constitution "defined the rights of indigenous peoples over their lands and established that these rights enjoy over-riding precedence over any subsequent rights granted to non-indigenous holders."

However, Brazil's indigenous peoples are still fighting for these rights – and those outlined in the recently-adopted UN Declaration on the Rights of Indigenous Peoples – to be upheld and put into practice.

"Indigenous peoples are considered minors under Brazilian law… The demarcation process doesn't give [them] full rights to their land, but allows the land to be held by the federal government in custody for them," Cahill said. "[It is] an issue which has been hotly contested and which many believe limits the rights of indigenous peoples to their full citizenship and full rights under international law."

****

Whatever the Supreme Court decides, the case represents a key moment in the decades-long struggle for indigenous rights in Brazil.

"It would seriously undermine the whole system of Indian reserves in Brazil if the courts were to bow to pressure from influential landowners and politicians, particularly given the violence the Indians have been subjected to," said Miriam Ross, from Survival International.

According to Pateo, a ruling against the Raposa territory would not only undermine the recent successes in relation to indigenous rights, but would "mark the future of development in Brazil in relation to the Amazon,” giving a clear signal to logging, hydroelectric and agricultural companies that the Amazon is up for grabs.

The ruling was to be announced on August 27, but was delayed when one of the judges requested more time to look into the case.

"Will we continue a predatory model of exploitation that doesn't respect the law?" Pateo asks. "Or will Brazil be transformed – definitively – into a country that develops itself sustainably, and respects human rights?"

Watch video of the May attack on Macuxi Indians in Raposa Serra do Sol.

Raposa Indigenous After Attack