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Is Brazil a Venezuelan outpost?

Indigenous and afro-descendant peoples from Brazil are facing setbacks usually found in countries with no rule of law. The judiciary is their only hope. Español Português

Hundreds of indigenous people took the seats of the parliamentarians in Brasilia in 2013 to protest a proposal that would give Congress powers to demarcate indigenous lands. José Cruz / ABr - Agência Brasil. CC BY 3.0 br.

The lack of free elections, the persecution of those who criticize the government, systematic repression against demonstrators and a judiciary unresponsive of the government’s abuses are only a few reasons why Venezuela deserves the label of dictatorship. While the disruption of the rule of law affects the population in general and the indigenous peoples specifically in Venezuela, indigenous and afro-descendant (quilombolas) peoples face institutional abuses, and a wave of violence and impunity in Brazil that fits into the reality of those countries with no rule of law.      

As of July 2017, 33 environmental activists had been killed in Brazil, most of whom are indigenous. With 50 deats in 2015 and 49 in 2016, Brazil has held, for the past three years, the first position in the list of countries with the highest number of environmental activists killed. These deaths usually follow the same pattern: local authorities with ties to landowners who have usurped quiolombola and indigenous traditional lands sponsor the attacks and enjoy almost complete impunity. While the Bolivarian National Guard (Guardia Nacional Bolivariana) abet armed civilians who kill demonstrators in Venezuela, militias financed by landowners assault and execute members of communities claiming their territories in some Brazilian states.

Through presidential decrees passed some weeks ago, Michel Temer validated the unlawful occupation of several nature reserves by large-scale farmers. He also annulled environmental fines and granted amnesty to outstanding pension debts owed by persons in the agribusiness industry. The parliamentary group linked to agribusiness, known as “rural front” (bancada ruralista), paid Temer back by halting the Attorney General’s request to start criminal proceedings against him, with charges of racketeering and of receiving illegal electoral donations.

In this context of anti-indigenous symbiosis between the Executive branch and Congress, the Brazilian Supreme Court (Supremo Tribunal Federal – STF) issued a ruling on August 16th that spilled a drop of hope in an ocean of pessimism. The decision rejected two lawsuits filed by the state of Mato Grosso, in which it requested indemnity due to the creation of the National Reserve of Xingu and the reserves of Nambikwára and Parecis, inhabited by several indigenous communities. The suits alleged an illegal expropriation to the prejudice of the Mato Grosso local state, but its actual purpose was hindering the acknowledgment of indigenous land by the Federal Union. It should be stressed that Mato Grosso is one of the Brazilian states where the “bancada ruralista” have captured Congressional representation and the overall local political structures. Indeed, the current Ministry of Agriculture, Blairo Maggi, is one of the biggest landowners in said state, and is also a faithful representative of the “bancada ruralista” in the national government.

As of July 2017, 33 environmental activists had been killed in Brazil, most of whom are indigenous.

So far, the STF ruling of August 16 places some distance from the regressive measures taken by the executive branch, the Congress, and from previous worrisome judgments passed by the supreme court itself. In 2009, STF had decided a case related to the demarcation of indigenous territory Raposa Serra do Sol, in the state of Roraima. In brief, this decision made the indigenous property rights conditional on the possession of the claimed land before the date of enactment of the Federal Constitution, October 5th, 1988, by the respective indigenous communities. This interpretation, known as “timeframe thesis” (tese do marco temporal) is vigorously supported by the “bancada ruralista”. However, indigenous and quilombolas organizations, civil society and the UN Rapporteur on Indigenous Peoples Rights have criticized said thesis, as it deprives hundreds of communities from their right to restitution or to remain in their traditional territory.  

It is important to recall the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases, regarding Paraguay, in which the Inter-American Court of Human Rights ordered the restitution of the territory of the three indigenous communities, even though their displacement goes back to the 19th century. The Inter-American Court stressed that under current international standards, the obligation to restitute an indigenous traditional territory is applicable even when third parties acquire it in good faith. The convoluted timeframe thesis is clearly an affront to the jurisprudence of the Inter-American Court, which could accordingly receive an international complaint against Brazil, given that the state ratified the American Convention on Human Rights in 1992 and accepted the jurisdiction of that court in 1998. 

Although the STF did not address the timeframe thesis in the August 16th ruling, it will have to do so in a group of lawsuits that will be decided in the next few weeks. The legal question brought by these suits is precisely the right of indigenous and quilombolas communities forcibly displaced before 1988 to have their traditional territory restituted. Should the STF reaffirm the disastrous thesis, the three branches of the state (legislative, executive and judiciary) would be aligned in order to validate hundreds of traditional lands unlawfully occupied by big farmers. It would also be another piece of evidence that in the “Ruralist Republic of Brazil”, the rule of law is no longer available for a sector of the population that has been particularly mistreated by centuries of violence, discrimination and deprivation of its most fundamental right: the right to live in their traditional lands and to exist as a population with distinct ethnic and cultural institutions. 

About the author

Daniel Cerqueira es abogado, oficial de programa sénior de la Fundación para el Debido Proceso (DPLF). Twitter: @dlcerqueira.

Daniel Cerqueira é advogado, oficial do programa sênior da Fundação para o Devido Processo (DPLF). Twitter: @dlcerqueira.

Daniel Cerqueira is a Lawyer, Senior Program Officer at the Due Process for Law Foundation (DPLF). Twitter: @dlcerqueira


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