Will Brazil’s Supreme Court rule against Indigenous land rights this week? (commentary)
Aug 28, 2023
On the 30th of August, Brazil’s Federal Supreme Court is set to rule on the Marco Temporal, a legal argument that would severely limit Indigenous peoples’ land rights.
Bill 490 was overwhelmingly approved by representatives of the Lower House of Congress and introduces a time frame to create Indigenous territories, reduces the area of Indigenous lands, and opens Indigenous areas to mining and infrastructure projects, among other changes.
“If the Supreme Court determines the Marco Temporal is valid …all legal recourse for future land titling would be blocked, and titled territories could be at risk as communities could be obligated to prove their claim within the new, limited framework,” a new op-ed argues.
This post is a commentary. The views expressed are those of the authors, not necessarily Mongabay.
A ruling by Brazil’s Federal Supreme Court will determine the future of Brazil’s Indigenous peoples and, by extension, the world’s forests, biodiversity, and our ability to mitigate the climate crisis.
Luis Inácio Lula da Silva’s recent election as president of Brazil and the subsequent creation of the Ministry of Indigenous Peoples instilled hope around the world that Brazil would emphasize environmental policy in the face of climate change, with Indigenous peoples’ rights at the core. However, recent actions by Brazil’s congress and legislators have yet again placed the country’s primary rainforests—about one-third of the world’s—at risk.
On the 30th of August, Brazil’s Federal Supreme Court is set to rule on the Marco Temporal, a pernicious legal argument that translates as a “Time Limit” on Indigenous peoples’ land rights. The thesis, backed by lawmakers linked to agribusiness, asserts that Indigenous peoples are only entitled to lands they physically occupied during the 1988 signing of the Constitution, officially striking from records the brutal decades of forced displacement during Brazil’s long dictatorship in the years leading up to 1988. If ruled constitutional, Marco Temporal would significantly hinder the formal recognition of any Indigenous lands in the future, jeopardize already recognized territories, and threaten efforts to address the climate crisis.
Meanwhile, a parallel threat is currently making its way through Congress. In May, Brazil’s Lower House passed bill 490 by a margin of 283 to 155 votes. This bill, renamed PL 2903 by the Senate, leans heavily on the Marco Temporal thesis. It also permits mining, water, and energy exploitation within Indigenous territories without requiring free, prior and informed consent—in clear violation of international convention (ILO 169), which Brazil has signed onto. On Wednesday, the Brazilian Senate’s Agriculture Committee approved Bill 2903. The proposal now moves to the Constitution and Justice Committee and may soon face a vote in the plenary. The agribusiness lobby in Congress is rushing the bill through before the country’s Supreme Court can rule.
Even if the Marco Temporal thesis is rejected by the Supreme Court, PL 2903 still poses a disastrous threat. In addition to heralding open season for would-be extractivists, the bill also aims to dissolve protections for Indigenous people living in isolation. This could lead to potential genocides, and would introduce new, convoluted steps to the land titling process for Indigenous peoples’ territories.
Marco Temporal is clearly unconstitutional. Any lawyer familiar with the Brazilian constitution can see this. Unlikely to rule in favor of the thesis, some Supreme Court judges—such as Bolsonaro-appointee André Mendonça—have attempted to stall for time by delaying the ruling itself. As long as the judgment remains in limbo, uncertainty prevails, leading to insecurity in territories and enabling more invasions.
Meanwhile, Supreme Court minister Alexandre de Moraes’s new position has introduced an additional worry for Indigenous lawmakers. While casting his vote against Marco Temporal in June, de Moraes attempted to stake out a “middle ground” stance, suggesting that lengthy negotiations with agribusiness invaders would be a prerequisite for demarcation. In the upcoming vote in August, other ministers are expected to follow his lead.
Indigenous peoples’ forested lands are some of the world’s most secure carbon sinks. These forests have been integral to mitigating climate change over the past two decades, particularly in Brazil, where they have retained 99% of their native vegetation from 1990 to 2020. This is in stark contrast to privately held lands, which have lost 20.6% of their forests in that same period. However, the fact that the demarcation process is highly politicized and therefore extremely slow, has caused a ripple effect of devastating impacts, including land invasions, lack of access to health and education, and a striking increase in infant mortality and the assassination of Indigenous leaders.
This reality is further underscored by the fact that in the last five years, over 113 million mature trees have been cut down within Indigenous peoples’ territories in Brazil, with illegal mining causing around 6% of deforestation between 2017 and 2021. The damage from mining extends beyond deforestation. A recent study demonstrates that contamination caused by illegal gold mining is suspected as the primary cause of birth defects and developmental delays in Munduruku children. Furthermore, mercury used in the mining infiltrates waterways, leading to persistent degradation of the health of rivers and forests within Indigenous peoples’ territories.
The combined threats of Marco Temporal and PL 2903 would legalize the genocide and historical theft of Indigenous peoples’ lands and erase the history of violence and displacement while opening up remaining territories to be exploited for natural resources without their consultation. The consequences would be enormous, and it begs the question: What value does gold have—or cattle, timber, and soy, for that matter—when compared to all life on Earth?
Indigenous peoples possess unparalleled knowledge of their lands. However, they cannot protect their territories—or the forests that the world relies on to mitigate climate change— without official titles. Their land rights are not only a matter of historical reparation and civil protection, but are also a cost-effective conservation mechanism that upholds and protects biodiversity within these ecosystems.
If the Supreme Court determines the Marco Temporal is valid within the Brazilian Federal Constitution, all legal recourse for future land titling would be blocked, and titled territories could be at risk as communities could be obligated to prove their claim within the new, limited framework.
Faced with this crucial decision for the planet, global leaders must urgently take a stand against the Marco Temporal and the ongoing assault on Indigenous peoples’ lands in Brazil, led by the agribusiness caucus. The fight is not only for the right of Indigenous peoples to exist in their territories free from deforestation, mining, and violence, but also to preserve life and protect the future of our planet.
Dinamam Tuxá, lawyer, an Indigenous social activist of the Tuxá people, and Executive Coordinator of the Articulation of Indigenous Peoples of Brazil (APIB). Suzanne Pelletier is executive director of Rainforest Foundation US.