—Sebastian Abad Jara, LLM in International Law, University of Cambridge; Daniel Pereira Campos, PhD candidate at the University of São Paulo, Brazil.
Brazilian law on indigenous lands is perhaps one the most significant examples of a detachment between “law in books” and “law in action”, with a substantial impact on the rights of indigenous peoples.
The Brazilian Constitution established a protective (albeit imperfect) legal regime to recognise, demarcate and protect indigenous people’s lands. Article 231 of the Constitution states that the Union must demarcate and protect traditionally occupied lands.
Paragraph 1 of Article 231 defines traditionally occupied lands as indigenous people’s territories that are: (i) permanently occupied and inhabited, (ii) used for their productive activities, (iii) essential for the preservation of the environmental resources required for their well-being and (iv) necessary for their physical and cultural reproduction, according to their uses, customs and traditions. The Constitution, therefore, established a clear framework to land demarcation based on the traditions of the indigenous peoples.
In the past years, however, a new legal doctrine called “Marco Temporal” (demarcation timeframe in a free translation) advanced a legal interpretation that Article 231 only guarantees the demarcation of indigenous lands that were either claimed for or already occupied on October 5, 1988, date of promulgation of the Brazilian latest Constitution.
This doctrine has gained support among State officials, the judiciary and the Agribusiness Caucus in Congress – which has put forth a Bill of Law to incorporate it into federal legislation, arguing that it would expedite demarcation proceedings (restricting the timeframe of analysis) and provide legal certainty to non-indigenous landholders. This doctrine would therefore advance a more “efficient” interpretation of Article 231.
International human rights bodies have continuously criticised Brazil’s slow progress in indigenous land demarcation. In 1996, the Committee on the Elimination of Racial Discrimination (CERD) urged the State to adopt “solutions for the demarcation, distribution and restitution of indigenous lands” to the communities.
Between then and now, the Human Rights Council in the last three Universal Periodic Reviews (2012, 2017 y 2023), the Committee on Economic, Social and Cultural Rights (2003 y 2009), the CERD, the Special Rapporteurs on the right to adequate housing, the rights to freedom of peaceful assembly and association and the rights of Indigenous Peoples have expressed concern about the pace at which Brazil has carried out demarcation of indigenous lands. These entities have determined that the slow progress in recognising the communities’ rights hinders and goes against the UN Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169.
The lack of demarcation has led to several consequences, including forced evictions of communities from their ancestral lands, threats, harassment, and attacks against communities defending their territories. This omission can result in widespread loss of collective identification and legal protection for indigenous peoples, as the case of the Yanomami, Ye’kwana, and Munduruku peoples illustrates.
Several obstacles have hampered the demarcation process in Brazil. These include a lack of political will to advance the processes, pressures from interest groups on natural resources, government officials’ hostile and racist discourses towards indigenous populations, and the dismantling of government policies and programs for indigenous communities.
As of 2021, 435 indigenous territories had been successfully regularised, while 847 indigenous territories still await resolution of their demarcation cases. However, in many cases, the regularisation of territories includes just a part of the traditionally used and occupied space by indigenous peoples.
While there are significant challenges to demarcation, human rights organisations have strongly condemned the “Marco Temporal” approach. The main criticism refers to the rigidity of the demarcation timeframe since it does not include, for instance, indigenous peoples who were violently expelled from their territories before 1988.
The Inter-American Commission on Human Rights (IACHR) stated that the “demarcation timeframe” has already affected communities and has led to the administrative annulment of demarcation processes, violating human rights standards. It urged Brazil to “refrain from pushing forward bills and legal interpretations that could generate risks for indigenous and tribal peoples”.
After all, the right of indigenous communities to land incorporates both a material and spiritual dimension intertwined with their fundamental right to self-determination. Preservation of this connection to the land is thus imperative for the continuity of their cultural heritage and the fulfilment of their right to autonomy.
The territory is uniquely significant for indigenous peoples as it is fundamental for developing their culture, spiritual traditions, and economic survival. Since certain places, phenomena, or natural resources are considered sacred under their cosmology, landholding is rooted in their ancestral cultures and customary land tenure systems, which differ from the Western concept of property.
The Inter-American Court has explained that occupation is the main element to be considered when indigenous communities lack formal recognition of property rights. Nonetheless, occupation is not necessarily related to continuity, as indigenous peoples maintain their property rights despite losing occupation due to their ancestral connection to the land.
Demarcation has been considered a critical mechanism to guarantee indigenous territorial rights, as the delimitation of the land is essential for cultural survival and the preservation of community integrity. This is why creating an effective mechanism for legally recognising and physically demarcating indigenous lands is indispensable.
The international system does not offer specific guidelines for the demarcation process, although international organisations have observed that the States must provide legal security and stability to communities. The IACHR has suggested the creation of independent official demarcation bodies, fully representative, to ensure fair delimitations that do not unjustly harm any group. States must ensure indigenous peoples demonstrate their prior ownership, considering each community’s specific characteristics.
Flexible criteria should be applied when setting limits for territorial demarcation. Some relevant elements to be considered are historical evidence of land occupation, development of traditional practices or rituals, or technical studies.
The latter could be achieved by implementing an intercultural approach which implies the recognition of ethnic minorities’ socioeconomic characteristics and incorporating their values, practices, customs, and cosmologies within the State apparatus. Such an approach requires a paradigm shift from cultural assimilation to the coexistence of diverse cultures in society – one that will not be achieved through a restrictive approach to demarcation.
Suggested citation: Sebastian Abad Jara and Daniel Pereira Campos, Interculturality and Brazil’s Marco temporal, Int’l J. Const. L. Blog, Aug. 30, 2023, at: http://www.iconnectblog.com/stronginterculturality-and-brazils-emmarco-temporal-em-strong/
Comments