Credit: Evaristo Sa/AFP via Getty Images
By Inés M. Pousadela
MONTEVIDEO, Uruguay, Oct 24 2023 – Brazil’s Supreme Court has delivered a long-awaited ruling upholding Brazilian Indigenous peoples’ claims to their traditional land. It did so by rejecting the ‘Temporal Framework’ principle, which only allowed for the demarcation and titling of lands physically occupied by the Indigenous groups who claimed them by 5 October 1988, when the current constitution was adopted. This excluded the numerous Indigenous communities who’d been violently expelled from their ancestral lands before then, including under military dictatorship between 1964 and 1985.
The case was brought in relation to a land dispute in the state of Santa Catarina, but the ruling applies to hundreds of similar situations throughout Brazil.
This was also good news for the climate. Brazil is home to 60 per cent of the Amazon rainforest, a key climate stabiliser due to the enormous amount of carbon it stores and the water it releases into the atmosphere. Most of Brazil’s roughly 800 Indigenous territories – over 300 of which are yet to be officially demarcated – are in the Amazon. And there are no better guardians of the rainforest than Indigenous peoples: when they fend off deforestation, they protect their livelihoods and ways of life. The best-preserved areas of the Amazon are those legally recognised and protected as Indigenous lands.
But there’s been a sting in the tale: politicians backed by the powerful agribusiness lobby have passed legislation to enshrine the Temporal Framework, blatantly ignoring the court ruling.
A tug of war
The Supreme Court victory came after a long struggle. Hundreds of Indigenous mobilisations over several years called for the rejection of the Temporal Framework.
Powerful agribusiness interests presented the Temporal Framework as the proper way of regulating article 231 of the constitution in a way that provides the legal security rural producers need to continue to operate. Indigenous rights groups denounced it as a clear attempt to make theft of Indigenous lands legal. Regional and international human rights mechanisms sided with them: the Inter-American Commission on Human Rights and the United Nations (UN) Special Rapporteur on the rights of Indigenous Peoples warned that the framework contradicted universal and Inter-American human rights standards.
In their 21 September decision, nine of the Supreme Court’s 11 members ruled the Temporal Framework to be unconstitutional. With a track record of agribusiness-friendly rulings, the two judges who backed it had been appointed by former far-right president Jair Bolsonaro, and one of them had also been Bolsonaro’s justice minister.
As the Supreme Court held its hearings and deliberations, political change took hold. Bolsonaro had vowed ‘not to cede one centimetre more of land’ to Indigenous peoples, and the process of land demarcation had remained stalled for years. But in April 2023, President Lula da Silva, in power since January, signed decrees recognising six new Indigenous territories and promised to approve all pending cases before the end of his term in 2026, a promise consistent with the commitment to achieve zero deforestation by 2030. The recognition of two additional reserves in September came alongside news that deforestation in the Brazilian Amazon had fallen by 66 per cent in August compared to the same month in 2022.
Agribusiness fights back
But the agribusiness lobby didn’t simply accept its fate. The powerful ruralist congressional caucus introduced a bill to enshrine the Temporal Framework principle into law, which the Chamber of Deputies quickly passed on 30 May. The vote was accompanied by protests, with Indigenous groups blocking a major highway. They faced the police with their ceremonial bows and arrows and were dispersed with water cannon and teargas.
The Temporal Framework bill continued its course through Congress even after the Supreme Court’s decision. On 27 September, with 43 votes for and 21 against, the Senate approved it as a matter of ‘urgency’, rejecting the substance of the Supreme Court ruling and claiming that in issuing it the court had ‘usurped’ legislative powers.
The Articulation of Indigenous Peoples of Brazil’s (APIB) assessment was that, as well as upholding the Temporal Framework, the bill sought to open the door to commodity production and infrastructure construction in Indigenous lands, among other serious violations of Indigenous rights. For these reasons, Indigenous groups called this the ‘Indigenous Genocide Bill’.
The struggle goes on
As the 20 October deadline for President Lula to either sign or veto the bill approached, a campaign led by Indigenous congresswoman Célia Xakriabá collected almost a million signatures backing her call for a total veto. Along with other civil society groups, APIB sent an urgent appeal to the UN requesting support to urge Lula to veto the bill.
On 19 October the Federal Public Prosecutor’s Office said Lula should veto the bill on the basis that it’s unconstitutional. On the same day, however, senior government sources informed that there wouldn’t be a total veto, but a ‘very large’ partial one. And indeed, the next day it was announced that Lula had partially vetoed the bill. According to a government spokesperson, all the clauses that constituted attacks on Indigenous rights and went against the Constitution were vetoed, while the ones that remained would serve to improve the land demarcation process, making it more transparent.
Even if the part of the bill that wasn’t vetoed doesn’t undermine the Supreme Court ruling, the issue is far from settled. The veto now needs to be analysed at a congressional session on a date yet to be determined. And the agribusiness lobby won’t back down easily. Many politicians own land overlapping Indigenous territories, and many more received campaigns funding from farmers who occupy Indigenous lands.
While further moves by the right-leaning Congress can’t be ruled out, the Supreme Court ruling also has some problems. The most blatant concerns the acknowledgment that there must be ‘fair compensation’ for non-Indigenous people occupying Indigenous lands they acquired ‘in good faith’ before the state considered them to be Indigenous territory. Indigenous groups contend that, while there might be a very small number of such cases, in a context of increasing violence against Indigenous communities, the compensation proposal would reward and further incentivise illegal invasions.
But beneath the surface of political squabbles, deeper changes are taking place that point to a movement that is growing stronger and better equipped to defend Indigenous peoples’ rights.
The 2022 census showed a 90-per-cent increase, from 896,917 to 1.69 million, in the number of Brazilians identifying as Indigenous compared to the census 12 years before. There was no demographic boom behind these numbers – just longstanding work by the Indigenous movement to increase visibility and respect for Indigenous identities. People who’d long ignored and denied their heritage to protect themselves from racism are now reclaiming their Indigenous identities. Not even the violent anti-Indigenous stance of the Bolsonaro administration could reverse this.
Today the Brazilian Indigenous movement is stronger than ever. President Lula owes his election to positioning himself as an alternative to his anti-rights, climate-denying predecessor. He now has the opportunity to reaffirm his commitment to respecting Indigenous peoples’ rights while tackling the climate crisis.
Inés M. Pousadela is CIVICUS Senior Research Specialist, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society Report.
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