Brazil's controversial bill on Indigenous Land Rights an existential threat for original peoples

The bill will determine the fate of both indigenous communities and the Amazon

TOPSHOT-BRAZIL-POLITICS-WORLD ENVIRONMENT DAY-LULA DA SILVA-RAON Brazilian President Luiz Inacio Lula da Silva (R) and Brazilian indigenous leader Raoni Metuktire | AFP

In a tumultuous showdown of political force that some say threatens the very existence of Brazil's indigenous peoples, the country's legislative lower house has overwhelmingly passed the fiercely-debated Bill 490. The move has sent shockwaves through the Amazon rainforest and cast a foreboding cloud over the future of Indigenous Land Rights in Brazil. 

With the potential to invalidate vast swaths of recognised indigenous territories, this bill threatens to unravel the delicate balance between progress and preservation, leaving the fate of both the indigenous communities and the world's largest tropical rainforest hanging in the balance. As indigenous peoples grapple with this critical juncture, activists call for efforts to safeguard the rights and rich cultures of the original inhabitants of the land.

"It is a terrible blow, an extermination of the indigenous peoples," says Sydney Possuelo, former president of Brazil's National Indian Foundation, the government agency responsible for the protection and promotion of the rights of indigenous peoples.

The bill relies on a time frame —Marco Temporal— theory that would limit the rights to land by indigenous people to those who can prove they had a presence in their ancestral lands at the time of the approval of Brazil's current Constitution in 1988, a task that may prove difficult 35 years after the fact. 

"It would do much worse," says Possuelo who has dedicated his life to the study, understanding and protection of the sertão, the Brazilian outback, documenting indigenous cultures, advocating for the rights and well-being of indigenous communities.

"It is a terrible blow against all indigenous people in the sense that it voids all that was done until today," he says. 

A good part of the demarcation of lands was done after 1988, notes Possuelo. "More than 50% to 60% of the indigenous lands were demarcated after '88. Thus, this cancels practically almost all that the state has done in demarcating indigenous lands." 

Activists and indigenous people are alarmed. They agree that the bill has the potential to unravel decades of progress made in recognising and safeguarding indigenous territories. 

Against the backdrop of the Lula administration's recent recognition of nearly 2,100 square kilometers of indigenous lands, experts agree that the possibility of full approval of the new law is existential threat for indigenous communities. 

Possuelo lamented "the voracity over indigenous lands in a country of this size, a country of 8.5 million square kilometers, the conquest of which we owe in large part to indigenous action correcting our lack of experience in ensuring the survival of the forest."

"Indigenous peoples helped in the broadening and conquest of the national territory," he pointed out, "and we respond by invalidating everything demarcated to them. It is really extraordinary."

"It will hurt the indigenous peoples greatly," said Possuelo.

Indeed, the bill marks a pivotal moment in the ongoing struggle for Indigenous Land Rights in the country with the largest indigenous populations in South America. 

Brazil's indigenous communities are scattered throughout the country, inhabiting various regions and reflecting a mosaic of traditions. From the Xingu, Tikuna, Munduruku, Surui, and Yanomamis in the Amazon to the Guarani-Kaiowá in the Pantanal, they exist across Brazil. These tribes speak distinct languages, practice unique rituals, and maintain ancestral connections to the land. 

However, it is not just their cultural significance that makes indigenous communities so crucial. These communities have long been recognised as important stewards of the environment, with a profound understanding of sustainable practices and the interdependence between humans and nature. 

Nowhere is this more crucial than in the Amazon rainforest, a global environmental asset and a vital carbon sink.

Indigenous peoples have a profound connection to the forests, viewing them not just as a source of resources but as sacred spaces that hold deep spiritual and cultural significance. Through their traditional knowledge and sustainable practices, they have contributed to the preservation of these ecosystems since long before European colonisers.

Recognising this invaluable role, President Lula has pledged to support and empower indigenous communities in their conservation efforts, acknowledging that their ancestral lands are not only their homes but also crucial habitats for countless species and crucial contributors to the planet's ecological balance.

But Lula rules with a strong opposition in congress.

Conservative congressmen tied to the country’s agrobusiness caucus celebrated the vote, while indigenous communities fear that this action may reverse the progress achieved.

Brazil's Constitution acknowledges the inherent right of indigenous peoples to the lands they have historically inhabited, without imposing time restrictions or arbitrary cut-off dates. It explicitly mandates the federal government to delineate and safeguard Indigenous territories.

And Lula has moved to do just that. In a significant move congruent with campaign rhetoric, his administration has officially recognised many indigenous territories in its first months in office.

The two largest recognised territories are in the Amazon, and Lula as made it clear that he intends to protect the world's largest tropical forest, stressing that his actions are consistent with the role of Amazonia as a crucial carbon sink, essential in efforts to combat global climate change. 

Since his election, Lula has claimed a leading role for Brazil on climate discussions. The efforts have gained him global recognition.

His recognition of the lands grants local communities the right to use their ancestral lands "according with their traditional practices" and imposes strict restrictions on mining activities and other practices that threaten the environment such as logging.

Notably, Lula's action serves as a delineation marking the rights of indigenous peoples versus those of non-indigenous individuals, the latter now unequivocally forbidden fromi engaging in any economic endeavors within Indigenous lands.

The move was hailed as a positive precedent for the conservation of natural resources and the empowerment of indigenous communities.

Bill 490, however, is seen as the most serious and vicious attack on indigenous rights in decades because it could limit indigenous land claims and potentially call into question large swaths of land already demarcated. It does so by undermining their historical claims to ancestral lands. 

Moreover, it grants the government the power to reclaim land from indigenous communities if their "cultural traits" are deemed to have changed, raising concerns about the erosion of Indigenous rights.

The legislation introduces a specific timeframe for the creation of indigenous territories, resulting in a reduction of their overall area. This change could also pave the way for mining and infrastructure projects within Indigenous areas.

Under the bill, contact with isolated indigenous communities would be authorised, potentially leading to road construction, mining operations, dam building, agricultural initiatives, and the use of genetically modified crops in protected Indigenous lands.

TOPSHOT-BRAZIL-WORLD ENVIRONMENT DAY-ADOLPHO DUCKE-RESERVE Aerial view of the Amazonia rainforest side by side with houses of the neighborhood Coroado located in the east zone of Manaus, Amazonas state, Brazil | AFP

The Marco Temporal Theory and its implications

Critics argue that the Marco Temporal Theory is a deceptive strategy aimed at undermining legitimate claims for the demarcation of indigenous lands. It disproportionately impacts groups that have already been displaced from their ancestral lands or whose presence was not recognised before the specified cut-off date.

"The national congress falsely picked Article 231 and says that therein is the origin of the theory of Marco Temporal. That is not true," says Possuelo. 

"Anyone who has access to Article 231of the Constitution and has a minimum of common sense will see that there is none of that," argues Possuelo. "The article simply determines that the Brazilian state has to demarcate all the indigenous lands. It does not say that has to be done now, later, or before or that it has to delineate the indigenous lands. 

"It is the worst of all the blows that the Brazilian state, and the government, and this congress has done against the indigenous peoples."

Significantly, if enacted, this has the potential to upend land rights by triggering numerous lawsuits to question indigenous historical rights to their lands. This would endanger even well-established territories. 

"From the moment this law was promulgated, the indigenous people are in the crosshairs of those who steal their lands," says Possuelo. "The national society has eternally skewed the question of land rights and agrobusiness needs more and more land to increase its production." 

The disproportionate impact on isolated and recently contacted indigenous communities is immediately evident, and this had not gone unnoticed. They would face significant challenges in proving their presence on the land in 1988 and lose their land rights.

"Ninguem respeta Indio pelado" —no one respects a naked Indian— says Adriana Alves, an advocate for indigenous rights, using the native proverb to emphasise the importance of land rights. In essence, it says that indigenous peoples do not receive the respect and recognition they deserve unless they have some form of power, authority, or possessions. 

By denying them the possession of the land, she says society is oblivious to the irony of applying that concept to the peoples who were the original occupants of all of the land in Brazil.

In doing so, she highlights the importance of visibility, representation, and asserting rights in order for the dwindled indigenous populations to be acknowledged and respected.

She takes the concept even further into the environmental and climate discussions by pointing out that as protectors of the forests, native peoples were the original holders of the asset now designated as "carbon credits," work which has been eroded by modern society.

Indeed, carbon credits are financial credits for successfully protecting lands for reducing or removing carbon dioxide from the atmosphere, something Alves says indigenous people do as a matter of their inherently deep respect for nature and the environment, which is at the root of their stewardship and sustainability culture.

The challenges

The contrasting developments of Bill 490's approval coming on the heels of the recognition of indigenous lands under the Lula administration highlights the political challenges to Lula's promises to protect Indigenous rights. 

This is at the very core of the preservation of Indigenous communities' rights and the integrity of the Amazon.

To understand the historical context, Alves sees in this an analogy to an event that occurred 26 years ago, the burning alive in a Brasilia park of Galdino Jesus dos Santos, 44, a land rights activist of the Pataxo tribe of Southern Bahia state. The perpetrators were absolved and now hold positions of power, she points out.

This law is that act writ large, says Alves. "The struggle for indigenous land rights goes beyond legal battles and political debates—it is a fight for justice, equality, and the recognition of Indigenous peoples' inherent rights."

As the bill's swift approval has taken the country by surprise. The role of the Congressional Agriculture Front caucus cannot be ignored. It has long actively advocated for the development of indigenous lands, aligning with powerful economic interests and it enjoyed the support of former president Jair Bolsonaro who, despite losing the presidential election, elected many of his supporters to congress. 

For indigenous communities, this means an uncertain future and highlights the importance of renewed activism and political participation. While the bill still awaits approval in the Senate, stakeholders, policymakers, and civil society remain vigilant among indigenous resistance efforts. 

In this scenario, there is an important need for an ongoing dialogue, say activists who call for more advocacy, and legal action on the part of Brazil's indigenous peoples to buttress support for Lula's efforts to turn campaign promises to reality.

Links to resource extraction and development

Indigenous communities and advocates are once again raising concerns regarding the potential opening of their lands to mining and resource exploitation and stressing the environmental and socio-cultural consequences of such developments. 

In contrast, proponents of the bill argue that it is necessary to allocate more land to farmers and promote economic development projects. They contend that expanding agricultural activities and fostering infrastructure initiatives will drive economic growth and benefit the country as a whole and that it is necessary to not sacrifice the opportunities for the many to protect the few.

For the Lula administration the challenge lies in finding a political balance between these and economic interests in the region.

Indigenous resistance

Indigenous communities are resolute in their determination to defend their land and rights. As the bill has yet to be passed by the Senate, they see an opportunity for further resistance, and potential amendments.

It is a critical crossroad for Brazil, balancing indigenous rights, environmental preservation, and economic development with the political winds of this bill raises alarming concerns for stakeholders, policymakers, and civil society. The potential impact on indigenous communities, however, is outsized and could be devastating.

In the end, the indigenous peoples are left to the mercy of their luck, because nothing else protects them. And that is not the worst part, says Possuelo. "It is that in doing so, the national congress attacks the Constitution. The Constitution ordains one thing, and they do another."

Indigenous peoples have the support of the Lula administration but remain vigilant as the fate of Indigenous Land Rights in Brazil hangs in the balance, with far-reaching consequences for both indigenous communities and the Amazon ecosystem.

"We are only left now with the hope that the Supreme Federal Tribunal will decree this bill inconsequential and unconstitutional and so void it permanently so that these indigenous lands can be possessed as demarcated and respected," says Possuelo.

"We will wait to see that the Supreme Tribunal can return with a finding that is in favor of the indigenous peoples."


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