An overview of the Brazilian Wildlife National Legislation

The Brazilian Wildlife Legislation was enacted in 1967 and has a total prohibition of hunting, which is not respected by local communities considering their reality, culture and needs. The legal orientation relating to national wildlife rules are transforming poor community members in criminals, when they hunt in order to complement their income, instead of providing the tools for wildlife management and community’s access to natural resources. The lack of a general policy in sustainable use of wildlife is driving species to exhaustion, not reducing poverty. There is a pressuring need for a legislative reform to the Brazilian reality and incorporate local communities’ needs and culture. The wildlife legislation should also pay more attention to economic instruments and environmental principles.

The BFC, Article 225, paragraph 1, VII, says that: “in order to protect fauna and flora, it is forbidden, in by law, activities that place their ecological function at risk, provoke the extinction of species or submit animals to cruelty.” The BFC lists as environmental assets water, caves, energy, fauna, flora, forests, islands and sites of outstanding natural beauty.

The wildlife is a public asset of common use by all Brazilians. The Federal Law no. 5,197/1967 establishes that “animals of any species, in any development phase, which live naturally outside captivity, constitute the wildlife, as well as their nests, shelters and natural breeding areas that are Federal Union’s property, being prohibited their use, persecution, destruction, hunt and gather.”

Brazilian wildlife belongs to the Federal Union in both private and public lands. The Federal Law no. 5,197/1967, Article 3, prohibits the trade of wildlife species and products that result from hunting, persecution, destruction or gather. The penalties for non-compliance are: cancellation of registration and confiscation of products and hunting instruments; prison from three to 12 months; or a fine of R$4,150.00 (approximately US$775.00). The Federal Law no. 5,197/1967, Article 18, prohibits the export of skins and leather of amphibious and reptiles in “brut.” An exception is in Article 19 that allows export from farmed wildlife, which requires an authorization of transit, following CITES regulations.

Since 1997, the Chico Mendes Biodiversity Conservation Institute is responsible for implementing extractive and non-extractive uses inside Federal Conservation Units. Non-extractive use, such as ecotourism, is promoted by the Federal Government, Member States, Municipalities and the private sector. Since 1985, ecotourism has been promoted in n Brazil, via the Brazilian Tourism Federal Agency (EMBRATUR), in cooperation with theBrazilian Institute for the Environment and Natural Resources(IBAMA). Nevertheless, ecotourism was unorganized and scattered up to 1994, when the Federal Government established the Directive on Ecotourism Policy and National Programme. However, nor governmental efforts nor private ones had been enough to overcome barriers and promote ecotourism.

In 1995, the Brazilian Ecotourism Institute was established to organize and promote partnerships among significant stakeholders such as entrepreneurs, operators and travel agencies, environmentalists, lodging sector, and local communities.

The Federal Law no. 11,771/2008 on the National Tourism Policy deals with ecotourism and its importance for facilitating the support of sustainable tourism in natural areas, stimulating the adoption of compatible practical behaviors with minimum impact on the natural environment’s conservation; and preserving the cultural identity of the communities and traditional populations eventually affected by touristic activities. Nevertheless, the way ecotourism is being implemented in Brazil brings high profits for very few stakeholders involved in the process (largely the richer ones that own hotels and restaurants), and causes many negative environmental impacts on wildlife. The profits are not shared with the poor communities. There is still much room for planning, management and implementing better initiatives regarding ecotourism.

There are a few successful cases of ecotourism[1], generating income and motivating local communities to change their practices of illegal wildlife hunting and trade to carry out legal activities with tourism that generates more income. Nevertheless, ecotourism is not an instrument that can be used in all communities for fighting illegal wildlife hunting and trade. Many communities do not have any tourism infrastructure and institutional arrangements.

As summarized by Duffy and St. John (2013), communities are often unable to develop tourism initiatives because they are located in areas with low levels of wildlife, inadequate transport links and facilities to service international tourism markets. Furthermore, there is good evidence of how tourism initiatives are subject to elite capture at the community level, national level (government officials, private businesses) and the international scale (by large tour operators).

The professional hunting is prohibited by Federal Law no. 5,197/1967, Article 2, and is considered a criminal offense. The hunting for population control is allowed by Federal Law no. 5,197/1967, Article 3, as far as the hunter has a governmental administrative authorization to do so. For obtaining such an authorization the hunter needs to explain the nuisances caused by the animal and the duration of its destructive activity, via an environmental impact assessment.

The amateur sporting hunting is allowed by Federal Law no. 5,197/1967, Article 2, under a special administrative licensing for amateur clubs and societies. Nevertheless, this kind of hunting is prohibited in parks as defined by the Forest Code (Federal Law no. 4,771/65) and the Convention for the Protection of Flora, Fauna and Scenic Beauty of the American Countries.

The subsistence hunting is not mentioned in the federal legislation. There is a loophole in the Federal legislation about whether or not an administrative authorization is required for individuals to practice subsistence hunting. Nevertheless, indigenous population are allowed to practice this kind of hunt inside their reserves as well as countryside populations that do not have easy access to products from domesticated animals.

The Law of National Politics of Environment (Federal Law n. 6,938/1981, Article 15) considers a crime any behavior that “put in danger, or increases the existing danger to, the life of any human being, fauna or flora.” Many of the crimes against wildlife are defined in Federal Law n. 9,605/1998, which legally protects the environment as a whole, with special protection for the wild, domestic and domesticated fauna. This Law defines crimes against the fauna, including: the specimens of the wild fauna, native or in migratory route (Article 29, caption, paragraph 1, III); the fauna (Article 29, paragraph 1, I); the nest, shelter or natural breeding areas (Article 29, paragraph 1, II); eggs, larvae, products and by-products of the wild fauna (Article 29, paragraph 1, III); the amphibians and reptiles (Article 30); exotic animals (Article 31); wild, domestic or domesticated, native or exotic animals (Article 32); the animal living creature (Article 32, paragraph 1); and specimens of the aquatic fauna (Article 33), fish, clams and crustaceans (Articles 34 and 35).

The Federal Law n. 9,605/1998 also lists as crimes: to destroy or to damage national park (Article 38); to cause fire in bush or forest (Article 40); to penetrate in Conservation Units carrying substances or instruments for hunting (Article 52); to cause pollution that can result in damages to the health of human being (Article 54); to provoke the loss of animals life or flora destruction (Article61); and to spread illness, plague or species that can cause damages to agriculture, cattle range, fauna, flora or ecosystems.

Despite all legislation criminalizing and prohibiting illegal wildlife hunt and trade, the number of crimes against wildlife (and its profits) has been increasing. This is a sign that the command-and-control prohibitions by itself are insufficient to reduce illegal wildlife trade.

It is important to notice that the Brazilian illegal wildlife trade is clearly divided into two basic types: internal trafficking, which is clutter, practiced by truckers, bus drivers and shopkeepers, leaving their cities taking wild animals that will guarantee them money for travel and food; and international trafficking – sophisticated, outlined, planned by professionals to supply a demand coming from allegedly big names in international society, artists, millionaires, countless businesses and large laboratories that follow creative and unique layouts, distribute bribes and have the condescension of government officials, airline companies and even politicians.

The trafficking of Brazilian wildlife divided into three distinct tracks:

? Private collectors;

? Pets for scientific purposes; and

? Pets for international marketing.

The wildlife leaves the country through ports and airports in major Brazilian cities and then cross the borders of neighboring countries, especially Argentina, Paraguay, Bolivia, Colombia, Venezuela, Guyana and Suriname. In these countries, there are private jets, awaiting the arrival of Brazilian trucks that take the wildlife by the thousands for international land.

It is time for Brazilian policymakers and stakeholders to take a closer look at economic instruments to combat illegal wildlife trade as an alternative to command-and-control measures.

[1] Pantanal, the world’s biggest flooded plain situated in the State of Mato Grosso and Mato Grosso do Sul, shelters a population of 20 million alligator. There is a Pantanal alligator management project, which is part of IBAMA’s programme on “Biology, Conservation and Handling of Brazilian Crocodiles." The project involves local community in managing and using alligators, which became an attractive income-generating option for region’s producers. The legal base for this activity is IBAMA Ordinance no. 126/1990. (https://www.redeprofauna.pr.gov.br/arquivos/File/legislacao/port_126_90.pdf).