The 1988 Constitution, together with a series of laws and land tools [1], provide that property must serve a social function. Brazil's laws also recognize the right to adequate housing and property, both in rural and urban areas. From a legal perspective, Brazilian citizens, particularly those from vulnerable groups such as poor people, women, indigenous and traditional populations, can now claim their land rights. Depending on whether the land is public or private, individual and collective rights to use or own land can be obtained, after a minimum period of peaceful possession. In addition, many land-related policies, such as land regularization and housing programs, also acknowledge that women should receive preference in obtaining land rights. The 1988 Constitution [18], together with very progressive laws such as the 2001 Cities Statute (Federal Law 10.257[19]), leverages the lessons learned through innovative experiences at local levels, as well as the collectively drafted proposals of the agrarian and urban reform movements to lay out what is considered to be one of the most advanced frameworks for land rights recognition in LAC region.
The situation on the ground, however, is quite different from what Brazil’s progressive legislation implies. For instance, an estimated 250,000 people have been evicted, affected or threatened of eviction in various cities, during the period leading up to the World Cup and Olympic Games [2]. The evictions occurred mainly in areas of increasing land value, such as alongside the routes to/from the airport – stadium – touristic center, due to the implementation of public infrastructure and private real estate developments. Forced and violent evictions were often reported even when families had formal property titles. Moreover, market evictions and gentrification have also occurred in many documented cases, through more “quiet” processes in comparison to the violent massive evictions mentioned above. Recurring evictions in Brazil highlight the weaknesses of decades of regularization and housing programs that focused on individual freehold titles.
The gap between law and practice whereby Brazilians have a recognized right to housing, land and property yet remain highly vulnerable to eviction, either through violent or quiet processes, suggests that land tenure security in Brazil is not only a legal or technical issue, but also a political one.
Key elements that explain this situation are the historic concentration of wealth and power in the hands of few privileged landowners, combined with rapid urbanization and weak land governance frameworks [3]. Under these circumstances, the urbanization process reinforced major inequalities in land access and control. Historically, while a clear majority of the population is driven to informal settlements due to lack of formal access to land and housing, few privileged land owners control the majority of land in Brazil [4]. This land is not always used for a “social function”, as required by the Constitution, and is often managed by weak land governance, regulatory and planning frameworks.
The most vulnerable often lack access to public defense and cannot afford to hire a lawyer. As a result, many tend to continue living in undocumented property and are not aware of their rights. There are capacity gaps of both rights holders in claiming their rights, and of duty-bearers in meeting their obligations, particularly within the judiciary and executive branches of power. In addition, right defenders often lack reliable information to identify, monitor and prevent land rights violations, and to activate defense mechanisms at local and international levels.
Unfortunately, the situation does not seem to be improving. In July of 2017, a new National Law of Land Regularization (Federal Law 13.465) was approved, changing the frameworks of land regularization in urban and rural areas, as well as in the Amazon. Recent analysis from Land and Urban Reform movements activists and specialists [5] indicate that, although this new law supposedly aims at facilitating the land regularization in the entire country, it actually functions as an attempt to:
- provide amnesty to land grabbing and corruption, as well as to the high-standard irregular occupations (mansions, etc.);
- reduce the land regularization for the poor to individual property title options, which will likely facilitate the commercialization of the land currently occupied by agrarian reform settlements and urban informal settlements, reinforcing the notion of land as a commodity and not as a right; and
- facilitate access to national public resources by large corporations, including foreign ones.
In sum
what is being promoted as an attempt to reduce bureaucracy and increase efficiency in the management of public assets, in practice hides the possibility to transfer public assets, land and natural resources to the private sector disregarding the current social and collective criteria [6].
This 2017 Land Regularization Law, alongside several executive actions carried out by Brazil’s current administration since 2016, not only jeopardizes the previous progressive legal framework for land regularization but fails to ensure public participation at all levels of government. This affects the role of civil society in the democratic management of cities and rural areas, with serious impact on land use and governance structures. Moreover, it contradicts the commitments made by the Brazilian government to implement the New Urban Agenda and the 2030 Agenda – Sustainable Development Goals.
When it comes to indigenous and community land rights in Brazil, two major groups deserve special attention: the indigenous (“native-Americans”) who controlled the land before the Portuguese colonization, and the “quilombolas”, descendants of slaves, who in the late colonial period escaped from their masters and formed their own communities or camps in remote areas. The “quilombos”, which then represented a resistance against slavery, today continue to be a place of resistance against racial and social oppression [33].
The Brazilian legal framework recognizes the land and property rights of indigenous peoples and traditional communities, often resembling international legal frameworks. The main international legislation protecting indigenous and traditional people’s rights is the Convention 169 of the International Labor Organization (ILO)[34] of September 1991, which represents an instrument for the social inclusion of these peoples. The document recognizes their aspirations to take control of their own institutions and ways of life and economic development, and to maintain and strengthen their identities, languages and religions within the scope of the states where they live. It is understood that the protection of the rights and culture of indigenous and traditional peoples contributes to cultural diversity, to the social and ecological harmony of humanity.
In Brazil, the Federal Constitution of 1988 and the Decree 5051/2004, which ratified ILO’s Convention 169, guarantees indigenous and traditional peoples the exclusive possession of their territories and respect for their social organizations, customs, languages, beliefs and traditions, consolidating the Democratic and Multiethnic State of Law. The 1988 Constitution represented an important paradigm shift in establishing cultural diversity as a Brazilian constitutional value, characterizing it as a multi-ethnic country, ensuring respect for social organization, customs, beliefs and traditions, as well as rights (CF/88, art. 231). It further defined that the Brazilian government should demarcate all indigenous lands within a period of 5 years, according to the criterion of traditional land occupation. But the administrative procedure for the demarcation of Indigenous Lands was established only in 1973, with the Indian Statute (Law No. 6.001/1973).
Afro-Brazilian land rights activists also lobbied to include protection of the territorial and cultural integrity of quilombos in the 1988 Constitution. Since the mid-1990s, the national quilombo movement has effectively mobilized rural black communities around the issues of landownership and the regularization of quilombo territories [35]. They have, since, conquered a framework of laws and norms establishing public policies and governmental programs directed to quilombolas and the titling of their traditional lands.
However, despite the clear and robust legal framework, the realization of land rights for both indigenous and quilombolas is still a complex issue characterized by high level of tension and conflict. Land policies are promoted without the precise knowledge of the landscape and ethnic considerations, resulting in territorial overlaps. This chaotic situation has facilitated land grabbing and thefts, adding complexity and irregularity in the Brazilian agrarian framework and fueling land conflicts and violence in rural areas.
The strong inequality of land distribution and inadequate access to land by vulnerable groups, information asymmetry, and insecure land tenure are contributing factors to land and environment degradation, deforestation, rural poverty, forced evictions, violence, and other human rights abuses [36]. In addition, the lack of accurate information on land with data and geographic information of indigenous and community lands, private properties and other land categories in a single cartographic base makes it difficult to identify overlap between these areas, generating land conflicts.
In this context, the indigenous groups and traditional communities are disproportionately affected and often caught in the forefront of violent confrontations. Land issues are at the center of the discussion of Brazil's indigenous and traditional communities people. Land provides not only means of physical survival, but also forms the basis of a cultural and social identity. The indigenous and traditional groups in Brazil face constant threats and harms due to their claim for land demarcation and the recognition of their rights, and several times the lack of protection of the rule of law within the Brazilian state have resulted in "cultural genocide" of many groups [37].
Taking the demarcation of quilombolas land as an example: the first titling of a quilombola land occurred only seven years after the promulgation of the Constitution, in 1995 and, so far, only 258 quilombola communities received titles, 8% of the estimated total of 3,000 communities in Brazil, indicating that government action is still far below what is necessary to guarantee their legal right to land [38]. Without their land demarcation, the rights of indigenous and traditional communities are constantly being threatened by landowners, miners and loggers, as well as by major infrastructure projects, such as the construction of hydroelectric power plants, highways and transmission lines, mining projects on or near indigenous lands [39].
The slow pace and complexity of the regularization and demarcation of indigenous and quilombolas lands in Brazil shows the disregard for their cause (some indigenous communities are waiting for their land demarcation for more than 20 years). In addition, there are institutional issues such as low operational capacity of the governing bodies and corruption of public officials, budgetary constraints, governance difficulties (different institutions and multiple registrations without integration among them, complex legislation and judicialization of regularization processes, conflicts of land ownership, as well as pressures and threats that need to be resolved) [40].
Most recently, under the administration of President Michel Temer, the Brazilian government has set out several controversial reforms, alongside a series of political corruption scandals, which have led to both increased conflict and social unrest across the country [41]. There has been a small number of land demarcation and titling procedures concluded from May 12, 2016, when he assumed the presidency on an interim basis, and it is notable the fact that members of its government and its allies have tried to revise and even revoke the few procedures signed by former President Dilma Rousseff. The almost complete paralysis of the demarcation of indigenous lands and the titling of quilombola lands demonstrates the strong ties of Michel Temer with agribusiness (CIMI, 2015). Politically, Brazil has a strong presence of congressmen who are also agrarian entrepreneurs, or who are indirectly involved in the Brazilian private sectors with some sort of interest in the outcomes of land and environment regulation.
Recent setbacks on indigenous and traditional communities land rights include the controversial timeframe (“marco temporal”), an arbitrary cut-off date for land claims in which indigenous are to have rights only over lands they were physically occupying as of 5 October 1988, the day the most recent federal Constitution, despite the fact that, by then, many indigenous groups had already been forced from their lands [42][43]. Additionally, a targeted campaign to defund and dismantle Brazil’s national indigenous agency has left the entity barely able to defend Indigenous Peoples’ culture and lands [44].
Quilombola’s territories are also under threat by an effort to challenge the constitutionality of the Federal Decree (No 4887/03) that stipulates procedures for titling Quilombola territories. The Federal Supreme Court (STF) will decide if there is a future for the more than 16 million Brazilian quilombolas, who are now facing the possibility of losing their lands, their memories and their identity.
Brazil has a long history of discrepancy between their written law and the social reality, but for the past years it has been more evident the policy of deconstructing rights and deterioration of culture, life and means of survival within the territories of traditional and indigenous communities and peoples in recent years is evident, and, according to CIMI (2016)[45], there will be even more severe changes, especially in relation to land demarcations.
Much of what has been achieved so far, in terms of land rights recognition during the recent Brazilian history, is due to increasing social organization of social movements, workers unions, professional bodies, academia, NGOs, progressive politicians, etc., who combined efforts to react to the use and management of land and cities as commodities, as a source of profit for the elites, while most of the population was living in inadequate conditions. In sum, the claims and proposals of the land reform movements were growing ever stronger, including the ideas of social function of land, fair distribution of the burdens and benefits of the urbanization process and the democratic management of land and cities.
The land use trends in Brazil, which are often a reflex of and feedback major inequalities, with strong class, ethnic and gender aspects, are a result of historical asymmetric power relations and resistance, shaping the Brazilian territory.
