Indigenous land plays a crucial role in the battle against deforestation, biodiversity loss, and climate change, write Luiz Eloy Terena and Ana Carolina Alfinito
This week, the Brazilian Supreme Court (STF) is resuming the judgment of the Xokleng case, a landmark trial that will define the future of Brazil’s indigenous peoples, and consequently of the world’s forests, biodiversity, and climate.
The court will analyse the scope of the indigenous territorial rights enshrined in the Brazilian Federal Constitution and decide whether or not these rights are limited by the so-called “marco temporal” thesis – or “the time limit trick” – which, if upheld, will put at risk the indigenous territories that have already been recognised by the state.
Let me explain. Brazilian constitutions have, since 1934, recognised indigenous rights to land, but the Federal Constitution of 1988 represented an important leap in the protection of these rights. In addition to establishing that indigenous peoples are entitled to the land they traditionally occupy, the constitution states that such rights are not created by, but merely recognised through state law. The constitution has made it the duty of the federal administration to demarcate all indigenous lands.
The “marco temporal” thesis aims to change that. It posits that indigenous peoples are only entitled to the lands they physically occupied on the date of the 1988 Federal Constitution. It will mean all the theft of indigenous lands that took place up until 1988 would, with the stroke of the pen, be sanctioned by the legal system. This restriction clause will erase the history of violence and displacement suffered by indigenous groups and block legal means of redress. It would also put at risk all territories that have been demarcated until today, since demarcation processes would be reopened and demands be made to prove indigenous presence in 1988.
The pressure to restrict indigenous land rights is enormous. Land grabbers, loggers, agribusiness, and the industrial and semi-industrial mining sectors are among those that have an interest in exploiting indigenous land. And if indigenous lands go, all other protected territories are likely to follow.
This will of course have a potentially devastating impact on the environment. A growing body of scientific evidence demonstrates the crucial role that indigenous land tenure plays in the battle against deforestation, biodiversity loss, and climate change. Data from the ICCA Consortium this year revealed that more than 30 per cent of the earth is conserved thanks to indigenous people and local communities. According to the UN’s Special Rapporteur for Indigenous Peoples from 2019, 80 per cent of the world’s remaining forest biodiversity lies within indigenous peoples’ territories. And in the most recent report released by the Intergovernmental Panel on Climate Change (IPCC), the world’s top scientists attest in a unified voice that the contribution of indigenous peoples is critical for achieving the best-case scenario for our climate.
The “time limit trick” has been lurking for at least two decades amongst members of the National Congress involved in Brazil’s rural affairs. After his election in 2018, president Bolsonaro paralysed land demarcation processes across the country, arguing that indigenous presence on these lands in 1988 needed to be proven. In the judiciary, the “marco temporal” thesis is being pushed in hundreds of lawsuits in which indigenous land tenure is discussed.
The trial for the Xokleng will be a watershed case and decisive because it has been granted general repercussion status, meaning that whatever is decided in the dispute will be applicable to similar cases across Brazil. It refers to a territorial dispute between the Xokleng peoples and the state of Santa Catarina in which the “marco temporal” thesis was used to argue that the demarcation of the Ibirama La-Klãnõ indigenous land – inhabited by Xokleng, Kaingang, and Guarani indigneous groups – should be annulled.
Throughout the end of the 19th and beginning of the 20th centuries, Xokleng were hunted by militias sent by settlers. In 1914, a reservation of 40,000 hectares – a small fraction of their territory – was demarcated, freeing up the remaining land for colonisation. This reservation was later reduced to 16,000 hectares, sanctioning the illegal encroachments. In the 1970s, a dam and conservation park created by the state further reduced Xokleng lands. After the Federal Constitution of 1988, a land demarcation process begun and, in 2003, the minister of justice recognised the Ibirama La-Klãnõ indigenous land with the extension of 37,108 hectares.
This land demarcation is now being questioned as a result of the “marco temporal” thesis, as are over 245 indigenous land demarcation processes that still need to be concluded by Brazil’s National Indigenous Foundation (FUNAI). Even the indigenous lands where the process has been concluded are not safe, especially those located in development frontiers that were consolidated far before 1988.
In the Xokleng trial, the Brazilian Supreme Court has the chance to bury the “marco temporal” thesis once and for all. To do so, it must fulfil its role as guardian of the Federal Constitution and declare it unconstitutional. This will hinder its further application in disputes involving indigenous territorial rights. It will also block the approval of the clause via a federal bill.
The indigenous peoples of Brazil are not idly standing by. Over 6,000 people from across Brazil have gathered at the Struggle for Life Camp in Brasilia for the Xokleng trial this week. Those who govern Brazil today envision a country without indigenous lands, and consequently without indigenous peoples. But their struggle is not only about protecting a way of life, it’s about the survival of our planet.
Luiz Eloy Terena is the general counsel for the Articulation of Indigenous Peoples of Brazil (APIB).
Ana Carolina Alfinito conducts research on social movements, indigenous rights and legal pluralism in Brazil and is currently legal advisor at Amazon Watch.