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End of May Brazilian legislators passed legislation that would invalidate Indigenous land claims and open up protected Indigenous lands to mining, road building, agriculture and other extractive industries.
The legislation was overwhelmingly endorsed in the country’s conservative-dominated lower house and has now been submitted to the Senate for approval.
But the bill is moving slowly. That’s because a central piece of legislation is already under investigation in Brazil’s Supreme Court. The legal dissertation under investigation, Mark temporary, has been going through the courts since 2007 and, depending on the court’s interpretation, could determine the future of indigenous lands in the Brazilian Amazon that have yet to be recognized by the Brazilian government. The ruling would also have major implications for the constitutionality of the legislation.
“If the ‘marco temporal’ proposition is adopted, all indigenous lands, regardless of status and region, will be evaluated under the proposition, which puts all 1393 indigenous territories under direct threat,” said the UN Special Rapporteur on the rights of indigenous peoples. peoples, peoples, José Francisco Cali Tzay in a statement.
But what is macro temporal?
Brazil’s constitution gives indigenous peoples the right to claim land they have “traditionally occupied”, and since the adoption of the constitution in 1988, more than 700 indigenous territories have been claimed. To date, 496 have been officially recognized or demarcated by the government, which defines property boundaries and guarantees ownership of the land and exclusive use of its natural resources to the indigenous peoples living on it.
Introduced for the first time in 2007marco temporal, is the idea that if indigenous communities were not on the land they claimed in 1988, when the constitution was passed, they have no claim to that land.
For most of Brazil’s history, land occupied by indigenous peoples was technically government property. The Indian Statute of 1973contains rules on the state’s and Brazilian society’s relations with the indigenous communities, and gave indigenous peoples the same legal status as children, meaning they were not authorized to represent themselves in the state’s legal system, including in land matters.
“At the time, the idea behind the legislation was that indigenous peoples had to be emancipated from their condition as indigenous peoples in order to be full and permanent citizens of Brazil,” said Tracy Divine, an associate professor of Latin American studies at the University of Miami. and research fellow for the Washington Brazil Office. “It wasn’t until the 1988 constitution that the state decided that people in Brazil could be indigenous and Brazilian at the same time.”
This means that even if indigenous peoples occupied traditional lands before 1988, they were not allowed to register their land holdings with the Brazilian government, making their arguments unprovable in court.
If accepted, marco temporal’s legal stance would allow Congress to accept or reject Indigenous land claims, rather than the President, making the protection of Indigenous lands more difficult and creating opportunities to extend currently accepted territorial boundaries. modify.
“It goes against the constitution of the country because the constitution of the country uses the term ‘original rights to land,'” Divine said. “But what the constitution says is that indigenous peoples have original rights to the land, which would mean that their rights even predate Brazil’s formation as a country.”
Marco temporal has its origins in agribusiness and has been adopted and pushed by a variety of developers, loggers, miners and farmers with business interests in the Amazon regions that may already be protected because of the indigenous communities that control their territories or could be protected in the future.
Many proponents of Marco temporale name economic development as a major reason for codifying the idea, especially for soybean production, ranching and mining. Lobbyists for those industries have been quite vocal in their support.
Indigenous peoples, however, claim that the lands in question are theirs from time immemorial, regardless of their history in government, that the constitution supports their claims, and that further development in the Amazon would be detrimental to their health and that of the rainforest.
Indigenous peoples are estimated to protect almost 80 percent of the planet’s remaining biodiversity, with the Brazilian rainforest containing nearly a quarter of all terrestrial biodiversity and 10 percent of all known species on Earth.
Over the past four years, deforestation in the Amazon has increased 56 percent with an estimated 13,000 square miles of land destroyed by development. During that time, indigenous peoples lost an estimated 965 square miles of their traditional territories under the policies of former president Jair Bolsonaro.
Since legislators in the lower house passed the controversial legislation, protests have taken place in Brasilia, the country’s capital, and indigenous groups have blocked roads outside Sao Paulo, Brazil’s largest city, they burned tires and used bows and arrows against police who responded with tear gas.
Currently, indigenous peoples in Brazil await court decisions and congressional actions, and while President Luiz Inácio Lula da Silva could eventually veto the bill, there are fears that he will pass legislation that meets marco temporal to satisfy the agro-industry that forms a large part of the country’s economic survival. Brazil scores are among the top 12 largest economies in the world with their gross domestic product (GDP) estimated to reach $1.65 trillion by 2021. The country provides more than 50 percent of the world trade in soybeans of crops produced on 17 percent of the country’s arable land.
“We knew the right would have a reaction against all of Lula’s pro-Indigenous and pro-environmental measures,” said Ana Carolina Alfinito, a legal advisor about Brazilian business for Amazon Watch. “What we didn’t expect is that this action would be so fast and so intense.”
This article originally appeared in grist bee https://grist.org/global-indigenous-affairs-desk/in-brazil-the-legal-theory-that-could-strip-indigenous-peoples-of-their-land/. Grist is a non-profit, independent media organization dedicated to telling stories about climate solutions and a just future. More information on Grist.org