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 .
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) 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 . 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 . 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 .
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 . 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 .
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) .
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 . 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 . 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 .
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), there will be even more severe changes, especially in relation to land demarcations.