Indigenous Peoples and Land Demarcation in Brazil: A Never-Ending Process?

From 7 to 17 March 2016, UN Special Rapporteur on the rights of Indigenous Peoples, Victoria Tauli-Corpuz, visited three Brazilian states and the Federal District in order to assess and highlight the current challenges faced by indigenous communities. As a result of these visits, the UNHRC produced a report released on August 8 2016 concerning the key UN recommendations on the processes of land demarcation. Reaffirming what has been proposed by the previous UN Rapporteur in 2009, these recommendations show that Brazil is still failing in its threefold duty to respect, protect and fulfil the human rights of indigenous peoples.

Even though there is a chapter in the Brazilian Constitution dedicated to Indians (Chapter VIII), which formally recognizes their right to have the lands they traditionally occupy demarcated (article 231), violations of their right to property are increasing. As land demarcation is vital to the realisation of all the rights to which indigenous communities are entitled, the lack of land demarcation reveals the extent to which Brazilian institutions are committed to guaranteeing human rights.

The delay in recognising the rights of indigenous people to the land by the Government is worsened by deforestation, destruction of rivers and depletion of soil quality due to intense monocropping and mining activities, as outlined by the UNHRC report. In addition, Brazil was recently considered to be the most dangerous country for environmental activists in 2015, which leads the discussion to an even more critical level.

The UN Special Rapporteur spoke to representatives of more than 50 indigenous peoples from at least 13 states. She also met with many national authorities from the three branches of Government, including the National Indian Foundation (FUNAI) and the Special Department on Indigenous Health (SESAI). The variety of representatives participating in this open consulting process has undoubtedly contributed to a broader understanding of the situation of indigenous peoples in Brazil.

As for the Special Rapporteur’s recommendations concerning land rights, it is recommended by the UNHRC report that the Government: a) redouble efforts to move beyond the current impasse in relation to land demarcation, including approaches to address the judicialization of the demarcation processes, and give consideration to appropriate compensation in relation to the repossession of lands; b) complete all demarcation processes pending at FUNAI, the Ministry of Justice and the Presidency; and c) develop concrete and prioritized actions to guarantee environmental protection of indigenous lands and their natural resources and to prevent illegal activities. Besides that, it is expected that the Federal Supreme Court will continue to accept requests for the suspension of eviction orders and will ensure that future rulings concerning indigenous peoples’ rights are fully consistent with national and international human rights standards.

The Special Rapporteur considers that existing impediments cannot serve as excuses for the State to continually postpone the land demarcation processes, given that such demarcation has been a constitutional provision since the promulgation of the Constitution of 1988. Furthermore, Brazil has ratified the Inter-American Convention on Human Rights as well as recognized the compulsory jurisdiction of the Inter-American Court on Human Rights, whose jurisprudence has extensively addressed land demarcation as a human right. By disregarding its duty to ensure the indigenous peoples’ right to the land, Brazil fails not only to provide effectiveness to its constitutional provisions but also to heed the binding rulings of a regional human rights system to which it has voluntarily committed.

At this point, the question of whether Brazil is willing to take positive measures to complete the land demarcation processes is inescapable, especially after the release of the UNHRC’s detailed report. However, considering the current political situation in Brazil, the answer may prove challenging to foresee. The report mentions the controversial proposed constitutional amendment, PEC 215, which intends to transform the recognition of land rights from a technical-based to a political-oriented process. Other objectives would include changes to licensing megaprojects—which is generally carried out with little or no consultation of local communities. If passed by the National Congress, such an amendment would further undermine all initiatives towards the completion of the land demarcation processes.

Despite all the international advertising depicting Brazil as a place where all forms of diversity are respected and encouraged, everyday experience relating to the rights of indigenous peoples has shown otherwise.