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February 14, 2024

Disputes in the Indigenous Environment in Brazil

Maria Lins Albuquerque

The main conflicts that occur in the Indigenous environment in Brazil are driven by disputes between economic activities that heavily utilize the land and the preservation of Indigenous territories. There is no resolution of conflicts without an understanding of the various interests involved.

The main themes of dispute are related to the complex land situation of forested and preserved lands in Brazil, the lack of government protection, and the economic interests of activities such as mining and agribusiness, which are tied to a model of economic development adopted in Brazil for many decades. This discourse disregards the socio-environmental issues involved and is used as a justification for allowing these activities to take place either within or very close to Indigenous lands or protected areas.

Many Indigenous lands are repositories of valuable minerals such as gold, silver, iron, coal, bauxite, and others, including strategic minerals essential for new technologies, such as rare earths, copper, and nickel. They also have fertile soils which are attractive to produce agricultural commodities, for livestock farming, and for the timber industry, activities responsible for deforestation.

These sectors exert pressure on governments to relax access to Indigenous lands, with lobbying efforts, economic pressure, communication, and marketing resources. They seek to influence government policies and public opinion in their favor. Thus, interests in Indigenous lands go beyond just companies and may involve governments and other actors.

In addition to economic pressure, land grabbing, which means the illegal appropriation of Indigenous lands by farmers, is a persistent issue that also results in territorial conflicts and threats to Indigenous subsistence.

Finally, illegal mining is growing alarmingly. From 2010 to 2020, the area occupied by illegal mining within Indigenous lands grew by 495%.

The consequences of these conflicts are diverse, including forced displacement of Indigenous communities from their traditional lands, resulting not only in the loss of housing but also in means of subsistence; social disintegration, as families and communities are separated; discrimination and marginalization; vulnerability and even exploitation through forced labor and human trafficking.

Even when Indigenous territories are preserved, their proximity to the mentioned activities often leads to cultural erosion, with the loss of traditions and Indigenous knowledge, and social conflicts, often resulting in violence. These conflicts are complex and difficult to resolve, as they involve legal, environmental, social, and cultural issues.

The expulsion of Indigenous communities from their lands brings severe environmental damage, including deforestation, water and soil pollution, and depletion of natural resources. On a smaller scale but with much greater violence, illegal activities such as mining, logging, and livestock farming create real battlegrounds between exploiters and Indigenous peoples, some of whom are still isolated. For example, the Yanomamis recently became victims of a massacre that mobilized international public opinion, given the scale of exposure to diseases, malnutrition, environmental degradation, armed attacks by miners, and the destruction of their traditional way of life. The situation was so dire that the newly elected president, Luiz Inácio Lula da Silva, mobilized the National Force to address the nutritional and health emergencies of the communities and to prevent the actions of the miners.

There are various allegations from Brazilian organizations at the International Criminal Court (ICC) for the investigation of crimes against humanity during the Bolsonaro government concerning the Yanomami Indigenous Territory. The Bolsonaro government is accused of extermination, persecution, and the practice of inhumane acts causing suffering.

The Yanomami issue is striking and extreme, exemplifying the disputes in Indigenous environments in Brazil.

Temporal Framework and Indigenous Constitutional Rights

Currently, according to data from the 2022 Census by IBGE (Brazilian Institute of Geography and Statistics), there are 1.69 million Indigenous people in Brazil, equivalent to 0.83% of the country's population. This population encompasses 305 Indigenous ethnicities, speaking at least 274 languages. The majority, around 63%, live outside officially demarcated Indigenous territories.

A major dispute has been ongoing, dividing the legislative and judicial powers in the country, regarding what has been called the "temporal framework." This is a complex issue related to the understanding of Indigenous territorial rights in Brazil and concerns the interpretation of Article 231 of the 1988 Federal Constitution, which recognizes the Indigenous peoples' right to permanent possession of their traditional lands. The central point of the debate is how to determine from when the lands would be considered continuously occupied by Indigenous people, as the Constitution does not specify a cutoff date.

The law 14.7011, approved in October 2023 by the Senate, determines that the temporal framework would be the date of the promulgation of the 1988 Constitution. In practical terms, this would mean that only lands occupied by Indigenous people at that time (1988) would have the right to demarcation. This interpretation is especially supported by the so-called "ruralist caucus" in Congress, composed of lawmakers who advocate for agribusiness interests. This is often used to justify the expansion of agriculture and livestock farming in Indigenous lands that were not continuously occupied in 1988.

In September 2023, shortly before Law 14.7011, the Supreme Federal Court (STF), which is the highest judicial authority in Brazil, deemed the temporal framework unconstitutional. STF found that the temporal framework contradicts the Theory of Indigenous Land. This theory considers that Indigenous peoples' rights to traditionally occupied lands predate the creation of the Brazilian state, with the government's role being limited to demarcation and declaration of territorial boundaries. The Supreme Court justices indicated that Article 231 is an unamendable clause, meaning it cannot be altered after the promulgation of the Constitution.

The Supreme Court's decision also unanimously established that non-Indigenous individuals who occupied the territories that may be demarcated as Indigenous lands in good faith may be compensated. The compensation amount should be paid by the federal government and should encompass the full value of the land, along with improvements made on the site. Implementing this decision could expedite the demarcation processes.

Despite being approved by the Senate, the temporal framework, along with 33 other sections of the law, was vetoed by President Luiz Inácio Lula da Silva. The president also vetoed economic exploitation of Indigenous lands, including in cooperation with or hiring of non-Indigenous individuals. The President rejected the section that guarantees "there will be no limitation on use and enjoyment for non-Indigenous individuals who possess the area, with their permanence in the demarcated area guaranteed." Similarly, the president vetoed the section that expanded the possibilities of compensation for good-faith occupations.

The National Congress can reverse the president's final decision by rejecting his vetoes. For this, an absolute majority of votes from deputies and senators is required. The text may also return to the STF, which is likely to uphold the current interpretation and declare the text unconstitutional. The ruralist caucus could then invest in one of the Proposed Constitutional Amendments (PECs) that are already under consideration in the House and Senate, restarting the cycle.

Lack of Oversight and Informal Occupations

The Brazilian Constitution of 1988 stipulates that the Union should conclude all necessary demarcations within five years from its promulgation, which was until October 5, 1993. However, as described above, this was not fulfilled. From 2019 to 2022, on the contrary, there was an absolute halt in demarcations, along with a weakening of federal agencies such as IBAMA (Brazilian Institute of the Environment and Renewable Natural Resources) and FUNAI (National Indian Foundation). The government at that time revealed a state policy favorable to the development of economic activities in Indigenous environments.

Governments before Jair Bolsonaro faced significant challenges in overseeing already demarcated and registered Indigenous territories, typically relying on court orders. However, during Jair Bolsonaro's administration, any measures for oversight and protection were abandoned. Organized crime within Indigenous territories strengthened, becoming one of the main social problems for these communities, significantly exacerbating disputes in the Brazilian Indigenous environment.

As a result of the slow process of regularizing Indigenous lands, 62% of the 1,391 Indigenous territories and territorial demands in Brazil in 2022 had some administrative issues pending for regularization. Furthermore, approximately 10 million hectares of delimited and declared Indigenous lands are pending homologation, and there are still 493 requests for new areas in the initial phase and 120 under study.

The reality is aggravated by the fact that, out of the 117 groups of voluntarily isolated Indigenous peoples registered by CIMI (Indigenous Missionary Council), 86 are not recognized by FUNAI. This means that these peoples are invisible to the state, as are the potential situations of violence they are exposed to.

Therefore, the conflict situation is not solely the fault of companies interested in Indigenous Territories (TIs). The slowness in the implementation of laws, the back and forth of public policies, and the lack of oversight and public budgetary resources all exacerbate the conflicts and their consequences.

Unfortunately, the recognition of Indigenous territorial rights, prior consultation and consent, and respect for international treaties and agreements are often disregarded in Brazil, even though human rights organizations seek to monitor and report the constant violations.

The Weakening of FUNAI

The National Indian Foundation (FUNAI) is the Brazilian administrative authority involved in dispute resolution related to reserve areas and in matters of protecting cultural rights and promoting the well-being of these communities. However, in recent years, its actions have favored the exploitation of Indigenous lands, such as the norm IN09/1020, which proposes the weakening of the policy for isolated Indigenous peoples and allows the use of Indigenous lands not yet demarcated for agricultural and livestock exploitation.

In contrast, a dossier on the contradictory actions of the organization was prepared by a partnership between Indigenous Associates, and the Association of Employees of the Institute of Socioeconomic Studies, with institutional support from Actionaid, the Ford Foundation, and Rainforest Foundation Norway, among other renowned entities, highlighting the breakdown of FUNAI, with actions such as the extinction of specialized agencies and the reduction of the organization's budget.

At the beginning of his term, President Lula da Silva adopted a series of measures to restore the importance of the agency. It is still too early to analyze their effects. The context of conflicts between powerful economic interests in occupying Indigenous lands and preserving reserves remains largely unchanged for now.

Conflict Resolution Instruments: Conciliation, Mediation, and Arbitration

Agrarian and land conflicts in Brazil stem from significant social inequality and the historical and political contexts that have given rise to disputes between extremely distinct and powerful interests. It also makes clear that these conflicts urgently need to be addressed to halt the prevailing climate of violence, recognizing that knowledge of the conflicts and the involved actors is crucial.

Disputes involving Indigenous lands are often addressed in courts and legal forums, and the outcome depends on the specific case and judicial decisions. However, Indigenous communities operate under an internal legal framework based on their customs and traditions, distinct from the national legal system, so alternative forms of conflict resolution have been adopted, such as conciliation, mediation, and arbitration.

Conciliation aims to resolve the dispute with the assistance of a conciliator who works to help the conflicting parties reach a consensual agreement. It is a suitable alternative for situations where the parties have no prior social bond. Mediation, on the other hand, is applied when the parties have a pre-existing emotional bond before the conflict. The mediator works to restore the relationship and, thus, promote the resolution of the dispute. Finally, arbitration is suitable when the conflict involves capable parties and available pecuniary rights. In arbitration, the parties transfer the resolution of the dispute's merits to an arbitrator or an arbitral tribunal.

Arbitration, was regulated in Brazil in 1996 and recognized as constitutional by the Supreme Federal Court (STF) in 2001. This practice has been gaining ground in Brazilian Agribusiness and generated approximately R$ 100 billion in 2022.

In 2004, the Attorney General's Office (Advocacia-Geral da União) developed a pilot project for Conciliation and Arbitration Chambers to administratively resolve disputes between FUNAI and federal agencies and entities. Of the issues brought to the chambers, seventeen were resolved through conciliation and five through arbitration. Among them, the conflict with the National Department of Works Against Drought (DNOCS) regarding the installation of an irrigation project in the state of Ceará on lands that FUNAI believed were traditionally occupied by Indigenous people stands out. The parties turned to the Chamber, and there was a consensus that, because the irrigation project coincided with Indigenous lands, DNOCS could not maintain it in this area.

However, it was in 2015, shortly after the enactment of Law 13.140, the Mediation Law, that the first Indigenous Conciliation and Mediation Center in Brazil was established within the Raposa Serra do Sol Indigenous Land, more specifically in the Maturuca Indigenous community. Sixteen Indigenous leaders selected by the National Council of Justice completed the Basic Course in Judicial Mediation to work at this first center, which was temporarily deactivated for a few months and then reactivated in 2019. By order of the judge of the Court of Justice of Roraima, the conciliation agreements from this Indigenous Center must be written in the native language of the parties residing in that territory.

Considering that the ethnic existence of Indigenous peoples is directly linked to their lands, these alternative means of conflict resolution can empower Indigenous communities in the management of land disputes, making them protagonists and allowing them to protect their culture and ancestry.

The culture brought by the common justice system often establishes a relationship where there is usually a winner and a loser. Alternative means, on the other hand, enable both parties to be winners, shifting from a contentious and litigious culture to one of dialogue and communication.

Bioeconomy: Another Path to Strengthen Indigenous Organizations

Although is not a method for resolving disputes involving conflicts in Indigenous environments, bioeconomy is an important means to build a path for protecting Indigenous reserves and, consequently, preserving the forests and natural heritage where they are located.

In 2021, the United Nations Food and Agriculture Organization (FAO) and the Fund for the Development of Indigenous Peoples of Latin America and the Caribbean (FILAC) released a report titled "Indigenous Peoples and Traditional Communities and Forest Governance." This report presents 300 scientific studies conducted over the past two decades, demonstrating that deforestation rates in forests in Latin America and the Caribbean are significantly lower in Indigenous and traditional areas with recognized territorial rights by governments.

According to MapBiomas, Indigenous lands have lost only 1% of their native vegetation in the last 30 years, while private areas have lost 20.6%. From 1990 to 2020, a total of 1.1 million hectares were deforested in Indigenous lands, whereas deforestation in private areas amounted to 47.2 million hectares.

Bioeconomy emerges as a means to reconcile extreme opinions regarding land use conflicts, although it does not resolve local disputes. In other words, bioeconomy is a path to be pursued to leverage a profitable front of activities integrated with forest restoration and preservation and the environment. However, local conflicts require policies and actions of monitoring and control that depend on government positions and resources.

Data from the Organization for Economic Co-operation and Development shows that this sector already generates approximately 2 trillion euros and provides employment for 22 million people.

The concept of bioeconomy applied to Indigenous communities goes beyond "sustainable production." According to WRI Brazil, which is part of the World Resources Institute, in the view of industrialized countries, the uses of the bioeconomy concept are more related to Biotechnological Bioeconomy or Bioresources, prioritizing the mitigation of greenhouse gas emissions and energy transition. It focuses less on the goal of valuing or conserving biodiversity. The entity states that in this understanding, "bio" refers to "biological" and not to "biodiversity."

Bioeconomy, applied to Indigenous territories characterized by high social and biological diversity, should conceptually be bioecological, with the premise of the integral conservation of the biome. This generates value for the economy by valuing Indigenous ancestral knowledge in conjunction with nature conservation.

There is, therefore, a possibility of integrating public policies so that these resources also contribute to the valorization of the bioecological-cultural condition of Indigenous productive activities.

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