- Brazil’s President Luiz Inácio Lula da Silva partially blocked a controversial bill that dramatically violates Indigenous rights, a month after the Supreme Court ruled out its core article.
- While some Indigenous activists lament that the bill wasn’t fully rejected, many hail the partial veto as a win for human rights and the protection of the Constitution.
- The vetoed bill now returns to Congress, where Lula’s decision will be upheld or rejected; if rejected, the time frame bill will be enacted, in a major blow to Indigenous rights and environmental protection, experts say.
- The veto sparked outrage among Brazil’s powerful rural lobby, which vowed to reject Lula’s changes to the bill, although any decision made in Congress can be challenged in the Supreme Court.
Brazil’s President Luiz Inácio Lula da Silva partially vetoed the controversial time frame bill in a move that quashed efforts in Congress to strip back Indigenous rights. It’s a temporary victory for activists, who now wait on tenterhooks as the president’s decision goes back to Congress for a new chapter, where some experts fear the vetoed points will be rejected and the bill will become ratified.
Congress overwhelmingly approved the time frame bill (PL 2903) on Sept. 27, defying the decision of the Supreme Court, which had, just a week earlier, decided that the time frame, thesis, known as marco temporal in Portuguese, was unconstitutional. One of the most contended points within the bill prevents Indigenous people from claiming territories that they were not physically occupying on Oct. 5, 1988, the date of the promulgation of the Federal Constitution — the same thesis nine justices from the Supreme Court ruled out in September, against only two votes. On Oct. 20, Lula vetoed this point in the bill along with several other clauses considered major setbacks to Indigenous rights.
In a statement made to the Federal Senate’s president, Rodrigo Pacheco, Lula declared the bill “contrary to the public interest and unconstitutional.”
The Minister of Indigenous Peoples, Sonia Guajajara, called the partial veto “a great victory” and an indication of the “coherence of the government with the Indigenous agenda.” Indigenous organizations along with the Ministry of Defense and the Ministry of Indigenous Peoples itself had previously called for a total veto, and some activists lament the president’s decision to not fully reject the bill.
“There is no way to celebrate President Lula’s ‘partial vetoes’ of this aberration that is PL 2903,” Beto Marubo, a member of the Union of Indigenous Peoples of the Javari Valley, wrote on social media. “Brazil lives at the mercy of a few anachronistic agribusinesses that change the laws at their pleasure.”
A celebration of the partial veto fails to consider that although the bill was mostly blocked, Indigenous rights didn’t progress, Miguel Aparício, president of the Observatory of the Human Rights of Uncontacted and Recently Contacted Indigenous Peoples, told Mongabay. “It’s apparently a victory because the time frame was rejected, but that only puts us in the situation of the Constitution, which we were already in,” he said. “Conquest means achievement. There is no achievement. It’s staying as we were.”
Despite the dissatisfaction demonstrated by some organizations that defended a total rejection of the bill, the partial block is a triumph, said Kenzo Jucá, a socioenvironmental consultant who has worked with environmental legislation in the National Congress for more than 20 years.
“It was a victory for the legality and constitutionality of the legal regime protecting the territories traditionally occupied by the 266 Indigenous ethnicities of Brazil,” he told Mongabay. “Serious and flagrantly unconstitutional points were vetoed, [including] a thesis that would enable the annihilation of territories and Indigenous peoples in the country in a few years.”
Some experts say the partial veto was a strategy to ease tension among the lawmakers who proposed the bill. “If [Lula] vetoed it completely, he would create an even greater tension than what already exists within the National Congress,” Rafael Modesto dos Santos, the legal adviser to the Indigenous Missionary Council (CIMI) told Mongabay.
Two passages in the bill were approved, which have raised some concerns among Indigenous activists. The first is part of article 20, which determines that exclusive usufruct of Indigenous peoples over the territory they occupy “does not override the interest of defense policy and national sovereignty,” although the paragraph allowing the installation of military bases and the expansion of road networks and energy alternatives was vetoed. “This [article 20] is terrible,” Aparício said. “This article explicitly returns to the ideology of the military dictatorship,” he added. “Suddenly the standing forest is not an interesting thing for national interest.”
Then there is article 26, which allows economic activities on Indigenous land, provided that the community itself admits the cooperation and contract of non-Indigenous third parties.
According to a statement from the Articulation of Indigenous Peoples of Brazil (APIB), article 26 “can expand harassment in the territories” and article 20 “is dangerous as it may also open the door to mitigate exclusive usufruct.” Aparício echoes this concern, stating that article 26 can “open up the possibility of agribusiness activities.” However, APIB also recognized that article 231 in the Constitution still protects Indigenous rights in these instances, a fact also confirmed by a government statement.
As well as overturning the point containing the time frame thesis, Lula vetoed points that authorized contact with uncontacted communities “to provide medical aid or to mediate state action of public utility” and mining on Indigenous lands. The president also blocked articles that allowed the loss of land due to alleged “alteration of the cultural traits of Indigenous community or other factors caused by the passage of time” and the permission for non-Indigenous occupants to remain on traditional land until demarcation procedures are complete and the compensation for improvements in good faith (such as the construction of houses or fences) is paid.
Now the president’s decision goes back to Congress, where lawmakers can reject or uphold it on a date yet to be defined. The legislature has the power to override presidential vetoes and the powerful ruralist lobby has already declared it will overturn the decision.
To reject the veto, an absolute majority is required, which is the equivalent of 257 votes from deputies and 41 votes from senators in favor of the rejection. Considering the previous results of the bill’s vote in the two legislative houses, overturning the vetoes seems a possibility. The bill was approved in the Chamber of Deputies in May by 283 votes in favor to 155 against, and in the Senate by 43 in favor and 21 against. “We believe the veto will be overturned, but that the Supreme Court will reestablish normality in light of the Constitution to declare the time frame as unconstitutional,” said Modesto.
If the vetoes are overturned, it means the time frame and the other points considered harmful to Indigenous people will be made into law — and the bill will likely be challenged in the Supreme Court once again. In the first trial, delayed several times in a two-year period, the majority of justices concluded that the Brazilian state couldn’t apply 1988 as a landmark for establishing Indigenous territories because several Indigenous peoples were forcefully removed from their lands before that.
“It would be a huge mess,” Jucá said about the possibility of the veto being overturned, not to mention a political “declaration of war” given that the Supreme Court has already rejected the time frame thesis. “An eventual overturning of the veto would have the potential to harm, all at once, agribusiness, the economy, the global climate, the Brazilian goals of the Paris Agreement, Indigenous peoples, sociobiodiversity and the political coalition that leads Brazil,” he added.
Whatever the decision in Congress, the outlook for Indigenous rights is gloomy, Aparício said. “Let’s imagine a positive scenario in which the ruralist lobby’s proposal fails. We then have the scenario that Lula approved, [which is] incomplete. Of course, the time frame is worse. But we are choosing between the bad and the worst,” he said.
Senator Marco Rogério defended the time frame proposal, saying it was an opportunity to restore legal certainty to rural Brazil, where people live in insecurity due to a lack of boundary definition. The decision of the Supreme Court related to considering the time frame unconstitutional did not bind the legislature, he added.
According to Senator Jayme Campos as quoted in a government statement, the bill was a way of “respecting rural producers and Indigenous people, bringing security and peace to the countryside.”
After the bill was originally approved, a group of 61 civil society organizations published a letter asking Lula to veto the law in full. The document called the time frame bill “the greatest violation of human rights and Indigenous Lands since redemocratization”.
“Brazilian society can no longer accept the institutionalization of barbarism and expects the President of the Republic to fulfill his constitutional duties and guarantee the reestablishment of the Fundamental and Human Rights of Indigenous Peoples,” the organizations demanded.
Indigenous communities in Brazil have experienced a relentless onslaught of assaults against their territorial rights for years, say Indigenous organizations, and the time frame bill is another move designed to weaken their land claims. “In the last decade, especially, the National Congress has been trying, at any cost, to make the demarcation of original lands unfeasible — directly confronting the Federal Constitution of 1988,” according to CIMI.
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