- In mid-January Brasília issued Ordinance 80, which moves decisions regarding indigenous land demarcation from Funai, the agency of Indian affairs, to the Justice Ministry. Large-scale landowners applauded the measure, while indigenous land rights activists are opposed to it.
- Brazil’s population includes 900,000 indigenous people, of whom 517,000 live on officially recognized indigenous lands. About 13 percent of the country’s territory is set aside as indigenous lands — 98.5 percent of it in the Amazon.
- The demarcation process has been fraught with controversy; demarcation of indigenous territory has been delayed for years by Funai, and in some places, by decades. Federal authorities argue that the shift of decision-making to the Justice Ministry will speed the resolution of land conflicts.
- Ordinance 80 opponents say that the shift to the Ministry of Justice takes away Funai’s power to decide indigenous demarcation matters via consultations with technical experts and anthropologists, an authority that is enshrined in Brazil’s Constitution.
With the issuance of a federal decree in mid-January, Brazil’s government announced major changes to the procedure by which it formally demarcates indigenous lands — a move applauded by the ruralistas industrial agriculture lobby and large landowners, but greeted with alarm by indigenous land rights activists.
The federal decree, known as Ordinance 80, shifts decisions made regarding the recognition of indigenous territory boundaries to the Ministry of Justice, taking those decisions out of the hands of the National Indian Foundation (Funai), which had previously demarcated indigenous lands based on technical research and anthropological analysis.
Brazil’s population includes 900,000 indigenous people, of whom 517,000 live on officially recognized indigenous lands. About 13 percent of the country’s territory is set aside as indigenous lands — 98.5 percent of it within the legally designated Amazon region.
The demarcation process has been fraught with controversy, and demarcation of indigenous territory has been delayed for years by Funai, and in some places, for decades. Ordinance 80 is only the most recent effort by the Temer government (sometimes conducted in secret) to do an end run around the current Funai demarcation process, possibly in order to exert more control over it.
Minister of Justice Alexandre de Moraes signed Ordinance 80, which creates a special commission to evaluate Funai’s land demarcation work. This Specialized Technical Group (GTE) will include a Ministry of Justice legal consultancy as well as representatives of the Special Secretariat of Human Rights, the Secretariat of Policies for the Promotion of Racial Equality, and Funai.
Ordinance 80 states that demarcation decisions “demand careful analysis and involve the study of the whole demarcation procedure, as well as the need to reconcile celerity [speed of action] and legal security.”
The measure violates in full the Brazilian Constitution and the jurisprudence of the Supreme Federal Court, Luciano Maia told Mongabay. He is the deputy attorney general and Sixth Chamber of Indigenous Populations and Traditional Communities Coordinator for the Federal Public Ministry (MPF), a Brazilian body of independent government public prosecutors.
Maia noted that article 2 of the decree 1775/1996 states that “The demarcation of lands traditionally occupied by indigenous people will be based on work developed by an anthropologist of recognized qualification.”
“That work belongs to Funai only, and is based on studies made by anthropologists, indigenists and cartographers,” he said. The Minister of Justice “wants to include exogenous elements who have no experience in anthropology and indigenous issues in the demarcation process.” The MPF has requested a meeting with the Minister of Justice to discuss Ordinance 80 but is still awaiting a response.
The Ministry of Justice and Citizenship has not responded to Mongabay’s requests for an interview.
Meanwhile, Brazilian President Michel Temer has made his position clear. In a public event held with farmers earlier in January, he defended Ordinance 68 (a previously annulled version of Ordinance 80) and declared that such measures are intended to reduce “the huge conflicts that exist in those [indigenous] areas.” And, he added, that Funai would not be discredited by the changes.
MPF’s deputy attorney general refuted Temer’s argument: Ordinances 68 and 80 “discredit Funai’s role,” he said. “The agency is subordinated to the Ministry of Justice, and… will produce legal insecurity and uncertainty among the indigenous communities. The result of this scenario is already known, more violence in the field. [The Ministry of Justice] is not interested in speeding up the land demarcation process, but in not doing it.”
Funai was contacted for an interview by Mongabay, but declined to comment at this time.
Instead of issuing Ordinance 80, the federal government should be moving forward on the issue of providing compensation to farmers, said Adriana Ramos, coordinator of the Socioenvironmental Institute (ISA), an NGO that defends the rights of indigenous peoples in Brazil.
“One of the reasons for the opposition to the acknowledgment of indigenous land rights is the existence of [large-scale] landowners who purchased land from state governments, in areas that are recognized as indigenous,” said Ramos. But the Constitution is clear in saying that property titles made on indigenous lands are null and void. Ramos also explained that there has been no monetary compensation by the state for these erroneous land transactions, though there has been compensation offered for improvements (houses and facilities) built on those lands.
“Nowadays those cases are being questioned,” said the ISA coordinator. “If landowners have formally and officially bought lands from the state, they are exceptions for which there should be a solution.” She recalls that for a long time the indigenous movement was against the payment of indemnities to farmers. “But the violence of the conflicts reached such high levels that indigenous people have lessened their criticism to that possibility.”
A Proposed Constitutional Amendment (PEC) 132, which aims to compensate the holders of legitimate property titles on indigenous lands, ratified in October 2013, has been held up in the Chamber of Deputies since 2015, awaiting creation of an analysis commission.
“The recognition of the right to indigenous territory is the recognition of the right to the difference [in cultures] of those populations. There is no way to guarantee indigenous people’s right to life [while] denying them the right to the land,” added the ISA coordinator.
“And it is not a matter of quantifying the land to which each one is entitled, because if we use this parameter, there are 517,000 indigenous people settled on less than 107 million hectares of officially recognized indigenous lands, according to the 2010 IBGE demographic census. [But there are] 46,000 large landowners in Brazil who exploit an area of more than 144 million hectares. That is, there is a lot of land for few farmers.”
It is expected that indigenous land rights activists will continue in their opposition to Ordinance 80. MPF deputy attorney general Maia said that the MPF will ask that the government revoke the new ordinance, but is waiting for an audience with the Ministry of Justice before proceeding with any action.
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