Brazil is in the midst of a massive corruption scandal, which has implicated the current president, four former presidents, at least 50 members of Congress and thousands of politicians in ongoing bribery investigations. The scandal, coming just a year after the impeachment of former President Dilma Rousseff, furthers a crisis in which hardly any political leadership remains untouched by corruption allegations.
The resulting political environment has mixed implications for indigenous peoples. Positively, the investigation has highlighted corruption in government and in the agribusiness, extractive and infrastructure construction sectors where transparency is important for indigenous rights. But in the short term, attacks on indigenous rights appear to be accelerating. There is a real risk that amidst the political distractions, the National Congress will enact legislation which has serious long-term consequences for indigenous land rights.
A key driver of this violence is land tenure insecurity for indigenous peoples, who face delays of years or decades in formalizing legal rights to their land, via a process known as demarcation. Stalled demarcations and evictions of indigenous persons can result in land conflict or violence. In the meantime, farmers may buy the land in good faith, not realizing it is indigenous land, creating subsequent conflicts.
Protecting indigenous land rights is crucial to addressing this violence. However, agribusiness interests opposed to greater recognition of indigenous land claims have gained political traction. Since 2016, the National Congress has proposed or enacted a range of measures designed to inhibit the demarcation process, while easing environmental and social protections around licensing for large economic projects. Demarcation has effectively ground to a halt. This is particularly disappointing because, historically, Brazil was a regional leader in terms of the indigenous land rights. Its Constitution was one of the earliest to recognize indigenous rights and remains one of the most progressive.
The last few months have seen sustained legal and political attacks on indigenous rights:
In January, a regulatory change (Ministry of Justice Ministerial Order 80/2017) altered the process for demarcating indigenous lands to introduce a new technical group to advise on the process. Some indigenous activists have expressed concern that this introduces outsiders without expertise in indigenous affairs and undermines the role of the indigenous agency, known as FUNAI, in the process.
Antonio Costa, the head of FUNAI, was dismissed in May, apparently due to his resistance to funding cuts to the indigenous agency and refusal to hire people without experience in indigenous affairs. Costa’s replacement, the fourth FUNAI president in the course of one year, is an army general who already faces opposition among indigenous activists.
Congress is also considering several concerning bills and has continued to move forward on restricting indigenous land rights during the political crisis:
A proposed constitutional amendment (PEC 215/2000), would shift the demarcation process to Congress instead of an administrative process. Because Congress is currently controlled by a political bloc opposed to indigenous demarcations, this would likely halt the process.
Two other proposed bills proposed (Draft Bills 1216/2015 and 1218/2015) would invalidate the current regulations governing demarcation, effectively stall any further demarcation, allow for broad revision to past demarcations, and allow for mining or other projects without consent where justified as in the public interest.
As it stands, FUNAI is unable to carry out crucial responsibilities and indigenous peoples are unable to proceed with demarcation applications. The proposed legislation would result in long-term insecurity for indigenous persons, result in the revision of demarcations that have already been completed and undermine the right of indigenous persons to free, prior and informed consent of development projects on their land. Brazil needs to find practical ways to prevent and solve land conflicts, but this cannot occur without addressing the underlying problem of tenure insecurity for indigenous persons. It is accordingly crucial that the current political crisis does not become a convenient cover for a further erosion of indigenous land rights.