COLLECTIVE LAND RIGHTS: THE EXTRAORDINARY APPEAL 1.017.365 AND FUTURE OF INDIGENOUS LANDS IN BRAZIL

The Xokleng indigenous peoples are habitants of the Santa Catarina state in Brazil. Their history is characterized by brutal violence. First, the colonization of territories that we now regard as Brazil caused the Xokleng to be close to extinction. Up until this day, the relationship between the Xokleng and other groups of people has been rough, mainly because of a struggle for natural resources and land ownership (Wiik, 2018).

Now, the Xokleng are involved in an important case. This case, Extraordinary Appeal 1.017.365, decides on the destiny of the Xokleng’s land occupation. The history of the Xokleng tells a story about struggle and violence, where indigenous peoples are eliminated from the land they have been living on for thousands of years. If the Xokleng lose this case, the fate of many other indigenous land claims will fall in favour of agricultural and industrial interests, serving as a precedent for several other cases throughout Brazil and the Amazon (Al Jazeera, 2021).
President Bolsonaro has exclaimed several times in the media that no lands will be demarcated anymore, which means that no indigenous land will be restituted to indigenous groups. Bolsonaro favours the economic purpose that the land can have, such as mining and logging. The impact of these economic activities is great on the people living on indigenous land, for example through contaminated drinking water (Avila, 2021).
This article examines what legal foundation is relevant for the outcome of the Xokleng case. Therefore, the legal situation in Brazil and the international legal context is discussed.

Legal Situation: the Extraordinary Appeal 1.017.365 and its impact on other communities                                                                                                                    The Brazilian Supreme Court has released the judgement of a landmark case regarding indigenous and other traditional community´s rights. In the Extraordinary Appeal 1.017.365, the Court will decide if there is a time frame for Indigenous communities to claim their traditional lands.[1] One thesis suggests that to be entitled to the right to their traditional lands, indigenous communities must have occupied the claimed locations by 1988 (when the Constitution was promulgated) (Bourscheit, 2021). On the other hand, the National Indian Foundation – FUNAI[2] (the Brazilian agency for the promotion of indigenous peoples´ interests), and several NGOs and entities sustain that the Supreme Court must uphold the “indigenato” thesis, according to which indigenous peoples have ancestral rights to their lands, preceding the State itself (Conectas, 2021; STF, 2021).

In this particular Xokleng case, FUNAI has appealed a decision from the 4th Regional Federal Appellate Court which granted the eviction of approximately 100 Indigenous persons from the Biological Reserve of Sassafrás in the State of Santa Catarina. The Santa Catarina Environment Institute (IMA)[3] claimed that the Xokleng indigenous peoples had invaded the reserve in January 2009 and that they had cut trees with chainsaws for selling (Gregg, 2021). The 1st Federal Court of Mafra granted the eviction in 2010, which was upheld by the Appellate Court in July 2013. Parts of disputed lands had been administratively recognized as the Inbirama-la Klãnõ Indigenous Land in 2003, which is a 37.000-hectare area, but were not yet demarcated during the proceedings (STF, 2021)[4], (Gregg, 2021).[5]

In 2019, the Supreme Court decided that this case has general repercussions, which, due to legal and social relevance, entitles it to be analysed by the Court, whose decision must serve as a guideline for analogous cases (STF, 2021).[6] According to the human rights organization Conectas Direitos Humanos (2021), there are 310 indigenous lands in some stage of demarcation proceedings, which may be resolved if the Court rejects the time-frame argument. On the other hand, should the Court accept this thesis, it will unleash and/or escalate various land conflicts and give rise to demarcation annulments.

Article 231 of the Brazilian Constitution is very clear for the Xokleng case: 

Article 231[7]

Indians shall have their social organization, customs, languages, creeds and traditions recognized, as well as their original rights to the lands they traditionally occupy, it is incumbent upon the Union to demarcate them, protect and ensure respect for all of their property.

Paragraph 1. Lands traditionally occupied by Indians are those on which they live on a permanent basis, those used for their productive activities, those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction, according to their uses, customs and traditions.

Paragraph 2. The lands traditionally occupied by Indians are intended for their permanent possession and they shall have the exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein.

It states that indigenous peoples have original rights to their traditional lands, which has been sustained not only by FUNAI but also by many of the entities that addressed the court as amici curiae and by the Office of the Prosecutor General (STF, 2021)[8]. On the other hand, the alternative thesis is supported by the rural lobby (Conectas, 2021).Even though the Brazilian National Indian Foundation, FUNAI, is an entity of the Federal Government, the Attorney General’s Office[9] released a legal opinion in 2017 adopting the time-frame thesis[10]. Based on this document, the Ministry of Justice ordered, in 2020, 17 land demarcation proceedings to return to their initial phases (Fuhr & Araujo, 2020). Therefore, it is of utmost importance that the Brazilian Supreme Court rejects the time-frame argument, to protect and fulfil indigenous peoples’ rights in accordance with the literal text of the Constitution.

International Legal Frameworks – Possible Human Rights Violations                    The Supreme Court will decide on what the right interpretation of the 1988 Brazilian constitution is and will guide as a preceding case for many other land demarcation cases. As has been discussed, the time-frame thesis cannot be adopted because it violates the Brazilian constitution. This is because article 231 of the constitution states that land that has been owned traditionally by indigenous peoples must be considered as their possession. 

The general question of this case is whether the time-frame thesis is legal to be adopted in cases where indigenous communities are claiming traditional lands occupation. This question must also be answered in the context of international legal frameworks because there are several that indicate what rights indigenous peoples have in respect to land claiming, and what obligations the Brazilian state has to guarantee these rights. These international legal frameworks are the American Convention on Human Rights, the International Labour Organisation Convention n० 169, and the United Nations Declaration on the Rights of Indigenous Peoples. This article discusses their relevance in light of the Xokleng case and argues if Brazil is complying with its international obligations if the time-frame thesis is adopted.

American Convention on Human Rights

Firstly, the 1969 American Convention on Human Rights, also known as the pact of San Jose, is the main human rights convention of South and North America. Its purpose is to form a framework for the personal liberty and justice of all people living on these continents[11]. Brazil ratified the convention in 1992 and is therefore bound by the terms of this convention. The most relevant article in the convention for the Xokleng case is Article 21, which provides the property right. 

Article 21. Right to Property[12]

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.

2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

3. Usury and any other form of exploitation of man by man shall be prohibited by law.

If the Xokleng case falls in favour of the time-frame thesis, the consequences will be violating the terms of Article 21. The fact that the Supreme Court has decided that this case will be a case of general repercussion, means that, if the time-frame thesis is applied in all analogous cases, the Brazilian state is acting against their obligations described in Article 21. According to subparagraph 2, the state is obligated to prevent citizens from being deprived of their property, which in the Xokleng case means that the land demarcation is illegal because there is no compensation or public utility to the land. 

This is because the reason that the indigenous property would be demarcated is for the rural lobby, who would use the land for agriculture or mining. Furthermore, the reason that Xokleng peoples were not occupying their property in 1988, which is key to the time-frame argument, is because of violence from other citizens who eliminated Xokleng from their land (Conectas, 2021). This means that the time-frame thesis is also in contrast with Article 21 of the Convention. Therefore, the time-frame thesis cannot be upheld when considering that depriving property of citizens is not legal, because the circumstances of this case do not meet the requirements of this law. 

1989 Indigenous and Tribal Peoples Convention                                          Secondly, the International Labour Organization Convention n० 169, also known as the 1989 Indigenous and Tribal Peoples Convention, is an international treaty that concerns the rights of indigenous peoples around the world. Most of the countries that have signed this convention are South-American, yet there are also countries from other parts of the world, for example, The Netherlands and Denmark[13]. The convention states different rights for indigenous peoples and describes what the obligations of the government are to guarantee these rights. The most relevant article of this convention, concerning the Xokleng case, is Article 14. 

Article 14[14]

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system to resolve land claims by the people concerned.

The most important element of this article is subparagraph 2, which states that governments shall take steps to identify which lands are traditionally occupied by the indigenous peoples. In the Xokleng case, it is clear that their land has not been protected by the Brazilian government in the past, especially before 1988. “Effective protection” has not been guaranteed by the government and has resulted in the Xokleng not being able to occupy their traditional territory. According to these factors, ownership of the land based on traditional ownership must be guaranteed by the state. This means that the time-frame thesis is not a valid reason to repeal the ownership of traditional territory. 

2007 United Nations Declaration on the Rights of Indigenous Peoples            Lastly, the 2007 United Nations Declaration on the Rights of Indigenous Peoples, also known as the UNDRIP, is the most comprehensive treaty on the rights of indigenous peoples worldwide. The UNDRIP formulates multiple articles that are relevant to the Xokleng case. UNDRIP Article 8[15] defines that states shall provide effective protection to indigenous peoples, in particular to actions that have the aim of dispossessing indigenous peoples from their land. As has been discussed, this was not the case for the Xokleng, because they were evicted from their property in the past (Conectas, 2021). Furthermore, Article 10[16] formulates that no relocation of indigenous peoples shall take place without consent and agreement by them. This means that the Xokleng cannot be deprived of their land without consent and agreement, yet this is exactly what happens when the time-frame thesis is acknowledged. The ancestral rights to their land are removed without consent or agreement. Article 26[17] of the UNDRIP defines exactly that wrongfulness because it formulates that indigenous peoples have ownership of the land they traditionally use. 

In conclusion, the Xokleng case is, because of its general repercussions, of great importance for the future of indigenous peoples in South America. The obligations of the Brazilian state under international law contradict every aspect of the time-frame thesis, which means that the rights of the indigenous peoples must be respected by acknowledging their land rights. Therefore, the need for refusing to recognize the time-frame thesis by the Supreme Court of Brazil is of the highest importance.