Géraud

Géraud de Ville

The Open University, Department of Engineering and Innovation
London, UK

Celebrating Brazilian Indian Day

The Point on Indigenous Land Rights

April 19, 2013

One of the objectives of Project COBRA is to analyse the legal framework that surrounds indigenous communities in Brazil and Guyana. On this Brazilian Indian Day, a celebration that aims to remind us of the native origins of Brazil, let us look at the evolution of indigenous land rights in this multicultural country.

Project COBRA – Creative Commons

For most of its colonial history, Brazil’s relationship with its indigenous peoples has been marked by a tension between an apparent desire to protect communities and continuous endeavours to build a “unified” nation, notably through policies of territory occupation and conquest. Up until the 1980s, state protection of indigenous peoples’ lands was primarily focused on objectives of integration and assimilation. Once indigenous groups had been assimilated into Brazilian society, they would no longer benefit from specific state protection, losing their right to their land in the wake of their emancipation.

It was only in 1988, with the adoption of the new Constitution of the Federative Republic of Brazil that the objective of assimilation was dropped in favour of the recognition of the cultural and territorial rights of indigenous peoples. One of the Constitution’s key provisions required that procedures to identify and demarcate all indigenous traditional lands had to be completed by 1993. By 2004, eleven years after the original deadline, only 55% of indigenous territories had been demarcated. What started as an extremely ambitious project of territorial recognition had been scaled down due to rising contestation among non-indigenous groups, particularly ranchers, miners and loggers.

One of the territories under dispute, the Raposa Serra do Sol in Roraima, became a symbol of the fierce opposition between indigenous and non-indigenous groups with over 500 appeals made against the proposed demarcation. The demarcation was first finalised in 2005, but the case was subsequently taken to the Federal Court, Brazil’s highest judiciary authority. In 2009, the court confirmed the legality of the decision in what was initially deemed an important victory for indigenous peoples and human rights groups. However, the devil is in the details, and the Federal Court’s decision was replete with a series of exceptions that have since begun to severely restrict the nature of the right of indigenous peoples to their lands. UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, declared that the ruling seriously limits “constitutional protections by specifying State powers over indigenous lands on the assumption of ultimate State ownership”.

The solutions for the sustainable management of natural resources by communities that are evidenced in Project COBRA are not all directly dependent upon the recognition of indigenous land rights, but it helps to make them successful. The implementation of these solutions in Brazil and elsewhere requires a legal framework that recognises the collective aspect of indigenous traditional land, and the culturally diverse management of natural resources that derives from it. On this 19th April 2013, it is worth reminding ourselves that Brazil’s formal recognition of what is sometimes labelled the indigenous peoples’ heritage – or the expressions of the relationship between the peoples, their land and the other living beings and spirits which share the land – would be the most noble and appropriate manner to celebrate the Indian day.

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