Agribusiness and Indigenous Lands: The Importance of the Multi-Door Conflict Resolution System

Brazilian agribusiness is a pillar of the national economy. This is evident when looking at the numbers, which demonstrate the sector’s strength in Brazil and around the world. It is estimated that agribusiness will constitute around 24% of the Brazilian GDP in 2023, nearly one quarter of the country’s economy. This is due, in part, to record grain production exceeding 317 million tons. Agribusiness also accounts for more than 50% of Brazilian exports, with expectations of future growth as more than 330 million tons of grain are anticipated to be exported by 2030.

Given the sector’s size, the Brazilian legal community needs to understand the wide variety of conflicts within the sector, including those situations involving Indigenous communities. There is a long history of conflicts between agribusiness and Indigenous peoples in Brazil, including serious issues regarding the demarcation and use of Indigenous lands that are currently being litigated in the courts. However, within a multi-door conflict resolution system, based on the third wave of access to justice well outlined by professors Mauro Cappelletti and Bryan Garth, it is should be understood that long protrated litigation disputes should be avoided.

In Brazil, there are 81.4 million cases being processed in the Judiciary, and, according to the country's National Council of Justice, the average duration of a case varies from three and a half years to eleven years. Therefore, structuring a dispute resolution model that can encourage negotiations and agreements, instead of waiting for the final court ruling, would be a more ideal mechanism for access to justice.

In this scenario, conciliation and mediation stand out; they are suitable for promoting a constructive dialogue in land demarcation disputes between the Indigenous community and companies linked to agribusiness. Conciliation and mediation in disputes involving the Indigenous community are important in this context, and the mediator needs to be versed in Indigenous culture. With such knowledge, they can assist in the architecture of dialogue necessary to obtain and implement an agreement in each case.

In addition to the wide variety of governmental institutions that address these matters, including Funai (Brazil’s National Indian Foundation) and the Attorney General's Office, among others, skilled mediators and conciliators can be important instruments in obtaining a legitimate agreement that can support the interests of all parties involved in the dispute. Skilled mediators and conciliators using consensual dispute resolution models can generate better results for Indigenous community and for the companies in dispute compared to a final judgment on the merits.

A relevant recent judgment of Extraordinary Appeal n. 1.017.365, in which the Federal Supreme Court established Theme n. 1.031, serves as a guideline to assess various land disputes with Indigenous communities. Those involved in agribusiness must have a deep understanding of the Federal Supreme Court’s guidelines set out in this case. Those guidelines are:

1. The demarcation of Indigenous lands seeks to preserve the right to possession of places that were traditionally occupied by the Indigenous community.
2. The concept of traditional Indigenous possession is linked to the uses, customs, and traditions of the Indigenous community, in accordance with §1 of article 231 of the constitutional text.
3. The constitutional protection of Indigenous ownership does not depend on the existence of the Indigenous peoples’ physical presence on the land on the cut-off date of October 5, 1988 (Brazilian Constitution Day), as the Federal Supreme Court set compensation standards for owners of land that had to be ceded back to Indigenous communities.
4. It is up to the Federal Union to conduct the demarcation procedure for Indigenous lands, and the anthropological report conducted under the terms of Decree No. 1,775/1996 is one of the fundamental elements for demonstrating the traditional occupation of a specific Indigenous community, in accordance with its uses, costumes, and traditions.
5. The lands of traditional Indigenous occupation are the permanent possession of the community, with the Indigenous people having exclusive use of the richness of the soil, rivers and lakes existing there. Furthermore, lands of traditional Indigenous occupation, as public lands, are inalienable, unavailable, and the rights over them are imprescriptible (not subject to prescription).
6. Indigenous peoples have civil and litigation capacity, being legitimate parties in the processes in which their interests are discussed, with both the Public Ministry, which administers the law, and Funai.

The criteria set out in Theme n. 1.031 are to be interpreted on a case-by-case basis, and it should be noted that the Court revised its prior ruling that only those lands that were occupied or being disputed prior to October 5, 1988 could be Indigenous lands. The new change not only expands the lands subject to these standards, it also gives Indigenous communities the opportunity to reclaim more disputed lands thereby creating the possibility of a new set of land disputes to be resolved. For cases that go through the litigation process under these guidelines, it is important to remember that Article 3 of the Brazilian Code of Civil Procedure encourages parties to adopt alternative methods of conflict resolution.

One of the authors was engaged by a client in a conflict involving a large company in the Brazilian railway sector and several Indigenous communities. The issue could have been addressed to the Judiciary by the Public Prosecution but the judicial sphere was avoided due to a direct and transparent dialogue between the subjects involved. During an administrative procedure, a priest who knew the indigenous culture was assisted by an anthropologist who helped translate the language into drawings. This facilitated communication between all parties. The use of the anthropologist enabled direct communication, with a broad understanding of the interests involved. It allowed for effective mapping of the most advisable ways to produce a solid agreement. The opening stance towards consensual dialogue in this case was positive, avoiding years of fruitless legal disputes involving the Public Prosecution, the Indigenous communities, and the company.

In a social and economic universe that is increasingly demanding with environmental, social, and corporate governance (ESG) policies, Brazilian agribusiness cannot neglect the necessary balance between its financial projections and the preservation of its image. It must adhere to the demands of sustainable operations, while attending to environmental concerns, and social and governance issues.

Therefore, in conflicts involving fundamental rights of Indigenous peoples, it is worth remembering that many conflicts with multilateral interests can and should be resolved through negotiation. Alternative methods of dispute resolution can be fruitful, especially through methods of mediation and conciliation, which are encouraged in Article 3 of the Brazilian Civil Procedure Code and in the Federal Constitution.