's Congress should reject a draft bill that would impose an arbitrary cutoff date curtailing the right of Indigenous peoples to their traditional land. Brazil's lower house is expected to vote in the coming days on Bill 490/2007, which would prevent Indigenous communities from obtaining title of their lands if they were not physically present on them on October 5, 1988, the day Brazil's current Constitution was adopted.
If the cutoff date becomes law, Indigenous peoples who were expelled from their territory before October 1988 and cannot prove they were involved in an ongoing dispute over their claim on that date would not be able to secure legal recognition of their lands. Indigenous peoples who face difficulties proving their physical presence would also face barriers to recognition of their land rights.
"Indigenous land rights don't begin or end on an arbitrary date," said Maria Laura Canineu, Brazil director at Human Rights Watch. "Approving this bill would be an inconceivable setback, would violate human rights, and would signal that Brazil is not living up to its commitments to protect the communities that are proven to best protect our forests."
On May 24, 2023, the lower house of Brazil's Congress approved a request to speed up the process of reviewing the bill. If approved by the lower house, the bill would then go to the senate. The maneuver seems to be an attempt to influence a long-awaited decision by the Supreme Court on the legality of the 1988 cutoff date. On June 7, the Court will resume consideration of the case and may issue its final ruling.
In 2017, during the administration of former President Michel Temer, the Solicitor General's Office adopted a legal opinion that upheld the 1988 cutoff date, but the Court suspended its implementation in 2020, pending its final ruling. Human Rights Watch has previously urged the new Solicitor General Jorge Messias, appointed by President Luiz Inácio Lula da Silva, to repudiate the position, known in Brazil as the "time frame" argument, and urge the Supreme Court to uphold Indigenous rights.
President Lula has committed to protecting the environment rights of Indigenous people. He has created a new Indigenous Peoples Ministry and resumed titling of their lands. However, his government has sent mixed signals on the cutoff date. While the minister of Indigenous people and the head of the Indigenous affairs agency have strongly rejected it, Lula's agriculture minister defended it during an interview for a talk show and the solicitor general has failed to revoke the 2017 legal opinion.
Brazil's Constitution recognizes Indigenous people's right to "the lands they traditionally occupy," without any time limits or arbitrary cutoff dates, and states that it is incumbent upon the federal government to demarcate Indigenous territories and to protect them. The uncertainty over titling makes Indigenous territories particularly vulnerable to encroachment by people involved in illegal land-grabbing and environmental crimes, fueling conflicts over land and violence against Indigenous peoples.
Several demarcation requests have been pending for decades in Brazil. The bill expressly states that its provisions would apply to all those pending cases, which would aggravate the situation by delaying demarcation even more or preventing it altogether.
Choosing an arbitrary cutoff date and refusing to recognize ancestral lands claimed after that date is not in line with international standards. The United Nations Declaration on the Rights of Indigenous Peoples, which Brazil supported, recognizes that Indigenous peoples have the right to the lands, territories, and resources that they have traditionally occupied or used. In line with this standard, countries should give legal recognition and protection to traditional lands, including those that Indigenous peoples were forced to leave or had otherwise lost.
The Inter-American Court of Human Rights has also recognized that Indigenous peoples' right to their traditional territory continues as long as "the material, cultural, or spiritual connection" with the land persists.
Bill 490/2007 also contains other problematic provisions, including to allow the government to explore energy resources and expand strategic roads in Indigenous lands without any consultation with Indigenous peoples. International standards call for effective consultation in good faith to obtain Indigenous peoples' free and informed consent before enacting legislation or approving projects that would affect their lands and livelihoods.
Not only is demarcation and protection of lands fundamental to upholding Indigenous rights, but it is also a cornerstone of successful conservation, Human Rights Watch said. Indigenous management effectively prevents deforestation, with Indigenous territories in Brazil and other Amazon countries registering lower deforestation rates in relation to comparable areas. Indigenous management also delivers net climate benefits for the planet, as forests managed by Indigenous people in the Amazon are strong net carbon sinks.
"Indigenous peoples' rights are at stake," Canineu said. "President Lula and his ministers should unequivocally and vociferously oppose any attempts to arbitrarily block land claims by Indigenous people. The Solicitor General should do his part by immediately revoking the 2017 legal opinion and defending Indigenous rights."
