Privatization and dispossession in the shadow of the Pandemic | Land Portal | Sécurisation des droits fonciers à travers les données ouvertes

Law Project 2.633/2020 is presented to the Brazilian Congress and may sign a point of no-return in the struggle for the Amazon and its socio-biodiversity

On August 16, 2019, a NASA satellite revealed that smoke generated by large fires in the Amazon rainforest, primarily in Brazil, was stretching across Latin America. It was the time of the so-called Fire Days in the Brazilian Amazon. Three days later, on the 19th  at 3pm, the sky of Sao Paulo – thousands of kilometers away from the Amazonian frontline – suddenly blackened and turned the day into a dark night due to the combination between the smoke coming from Southwestern Amazon, clouds and a cold front. The urban realization of what was happening in the forest triggered a moment of collective reflection on the need for a global effort to protect one of the most important ecosystems in the world. It did not happen only in Brazil, but in Europe and elsewhere.  Most important, the Fire Days increased global awareness on the diversity of peoples who reside in this unique ecosystem and have contributed for centuries to the diversity of life. Such socio-ecology designing the largest tropical rainforest in the globe was built not despite of peoples, but due to their presence exercised by complex agroforestry systems constructed around sophisticated forest management and conservation. 

Less than a year later, people in the main urban centers around the country and elsewhere have realized the fragility of the Amazonian ecosystem and the threat that climate change and the expansion of the productive frontier represents for both people and the environment. However, small hold farmers, indigenous and quilombola communities in Western Pará are still suffering the local violence and the extended effects and threats of deforestation. This social and physical sufferance is intensified by the end of the territory as they know it and has been exacerbated by the Federal government’s cutting on the budget for environmental monitoring and the criminalization of the professional working with the communities for years. Even when images of fires were appearing on the frontpages of national and international newspapers, the overlap between the highest rates of deforestation in the Amazon region, the lowest environmental monitoring and, sadly, with the highest rates on human rights violations got very limited visibility. 

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The case of the Apyterewa Indigenous Territory, in the municipality of São Félix do Xingu, in Pará, offers a clear representation of the way in which environmental and social violence compound. The area is the most deforested and degraded Indigenous Territory in the country, followed by Arariboia Indigenous Territory, located right at the transition between the Cerrado and the Amazon biome. Here is where the frontiers of cattle, soy, eucalyptus and mining have been expanding for decades and where a considerable number of indigenous people live in voluntary isolation. This is an area where environmental violence and political violence combine, with the Military and the Federal government facilitating the expansion of agri-business by denying the existence of these peoples because they are isolated and because their land titling process has not yet been concluded with the issuance of an homologated title as required by the Brazilian agrarian law. In this area, the Pastoral Land Commission (CPT) has registered approximately 79% of the murderers in the country, mostly involving indigenous people who were land defenders and had put forward requests for titling before the Federal Justice. In the Apyterewa and Arariboia territories, like in other parts of Brazil, human, territorial and environmental rights violations collide, revealing the importance of titling as much more than drawing a line on a map.

The attack on indigenous rights started before covid19. And then arrived covid19.

We are now nine months after August 2019 and the skies of Brazil are darkened by another kind of cloud. It is the coronavirus pandemic, the consequence of a virus whose mortality in Brazil is the highest in Latin America and has been dismissed by the federal Government. The same that happened with the fires and deforestation nine months ago. The virus has rapidly spread across the country, imposing a particularly high death toll among residents of places suffering with structural racism and inequality such as the favelas, indigenous peoples’ territories (including those in voluntary isolation), quilombola communities.

The fires in 2019 and the deadly impact of Covid-19 on the most marginalized have several points of contact. Firstly, several studies have revealed a direct link between the deforestation, loss of biodiversity and the proliferation of viruses: covid-19 may well have been born at the frontier of the Amazon rather than in a Chinese wet market. Moreover, both are evidence of President Jair Bolsonaro’s violent and productivist attitude towards people and the planet: nature is an untapped source of wealth and people are worth political attention only if they contribute to the economic expansion and ‘modernization’ of the country. 

However, no connection between social and environmental violence is stronger than in the legislative and regulatory processes that have been taking place during last month in Brasilia. There, Law Project 1.142/2020 on ‘Extremely urgent measures in support of indigenous people due to covid-19’ has been lingering in the House of Representatives for almost two months. On the other hand, on April 22nd the National Indian Foundation (FUNAI)  issued its Normative Instruction IN 9/2020 to strip of the qualification of ‘traditionally occupied  land’ to those indigenous territories not yet demarcated and Law Project 2.633/2020 on Titling of occupations infringing on land belonging to the Union or the INCRA (Regularização fundiária de ocupações incidente em terras situadas em áreas da União ou do INCRA) was presented in Congress to be voted with urgency. 

FUNAI IN 9-2020 instructs the public administration to register as land owned by Indigenous Peoples in the Public Land Management System (SIGEF) and put out of market only those territories that reached the final stage of titling. In this sense, land already occupied or through the reclamation and demarcation process is going to be reckoned as vacant land and, consequently, should be seized and included in public land destination processes. The instructions must be read along with the Brazilian General Attorney‘s Legal Opinion 001-2017, which was issued during President Temer’s government. Both actions go back to debate that traditional occupied lands as of recognized by Article 231 in the Brazilian Constitution are those where indigenous communities were on October 5th, 1988, the date when the Constitution entered into force. In particular, General Attorney’s Legal Opinion 001-2017 – whose compatibility with the Brazilian legal framework will be voted by the Supreme Federal Court this week – crystallizes the issuance of the Constitution as the  “temporal benchmark” and requires the presence of indigenous communities on the land on that date in order to legitimately require the recognition of their land title. If confirmed and normalized, the Opinion would affect the claims of all those communities – the majority - that were dislocated from their original land by the direct political violence of the dictatorship or by the political violence of agricultural and infrastructural projects. 

Through action and inaction, the biological violence of the pandemic is willfully amplified, reinforces existing socio-economic patterns and can produce long term consequences that go well beyond the loss of lives. The Law Project 2.633/2020 must, therefore, not only through the lenses of the pandemic, but also of a long and extenuating struggle that is becoming every day more violent and more entrenched into the Brazilian rule of law.

P.L. 2.633/2020: regularizing land grabs at time of covid-19

The Projeto de Lei (Bill) 2.633/2020 was presented to Congress on May 12, the same day that the vote on Provisional Measure 910 (M.P.910), an emergency land titling decree issued by President Bolsonaro in December 2019, was due. The MP had been received with strong opposition and it was withdrawn before being voted into law. Like the MP, the aim of the bill is to introduce a simplified procedure for issuing private titles over public land (Federal Land and land that is currently under the authority of the National Institute of Colonization and Agrarian Reform). Like the MP, the PL has been presented as an urgent matter that should be discussed and voted by the Congress with priority: at a time of possible recession, urgent land privatization are presented as an opportunity for the agribusiness sector to keep on growing and engendering revenues for the country. Despite some differences, the PL measure has raised both procedural and substantive concerns that is worth briefly summarize. 

First of all, civil society organizations and the Public Attorneys at Law, particularly its Special Office for the Rights of Citizens, have opposed the adoption of a legislative fast-track to address titling, an issue with legal, historical, social, cultural and economic ramifications. Such choice appears not only politically inappropriate and incompatible with the relevance of the matter and its long-term repercussions, but also contrary to the requirement to obtain the Free, Prior and Informed Consent of indigenous communities. Also, for bill such as 2.633/2020, environmental, human rights as well as indigenous, and quilombolas organizations along with the Landless Workers Movement and the Land Pastoral Commission underlined the Constitutional provision that parliamentary commissions must be involved in the legislative process. The Bill, in this sense, would be unconstitutional and unconventional as it would not be respecting ILO Convention 169. 

Looking at the COVID-19 situation, the adoption of the law would also go against the internal guidelines adopted by the Congress that require to give priority to matters directly related with the health emergency. The Legal Opinion of the Public Attorneys at Law regarding the issue as one of public interest regarding caution by calling attention to the conclusion reached by the Federal Court of Auditors about land issues in Brazil was also ignored. Such conclusion called attention to the fact that  the Legal Land Program (Programa Terra Legal) established by Law 1.195/2011 had not reached its goal of titling land occupied before 2008, that its funds have been mainly subsidizing medium and large proprietors rather than small holders, and that it had not generated the fiscal revenues – by means of duties and taxation – that were expected. The rush towards regularization seem to suggest that covid-19 may not be a political priority but the opportunity to push for other political priorities as made clear by the Presidential meeting broadly broadcasted on Friday, 22nd.

The functional role of covid-19 in the legislative process is also visible in the way the supporters of the P.L. are using the economic condition created by the pandemic as a justification to accelerate land  titling  for the sake private property plays in the extraction of wealth out of the land. For them, the process will strengthen the position of small-scale farmers and smallholders, who will receive from the P.L. the opportunity to go beyond proprietary uncertainty as a barrier to access capital and investments. As such, the P.L. has been promoted by the rural caucus at the National Congress as a progressive measure and as an economic necessity to support families at the brisk of recession. However, the process defined by the P.L. seems to go in the opposite direction and to favor large capitals, mostly financiers, and the rewarding of large-scale cattle ranchers and loggers that plays the primary role in land commodification by taking out forest coverage to the limit of the code. Whoever logs and burns the forest in large endeavors is who is going to own it and negotiate it in the future. It is for the reason that one of the most strategic elements contained in the Bill is the introduction of an amnesty for environmental crimes committed until 2018, a date that expands by ten years the 2008 limit set by the Forest Code. 

For what concerns its substance, one of the most controversial aspect of the bill has to do with the provision of a simplified process of titling for smaller areas. According to article 13 of the bill, individuals and farming cooperatives could obtain the title over an occupied area up to six ‘fiscal modules’, which in the context of the Amazon is equivalent to 660 hectares, with the sole need for the applicant to present a self-declaration that attest the lack of any conflict of interests, upload the georeferenced (GPS) information  and provide the description of the land though the Rural Environmental Registry (CAR). Unless the analysis of the documents suggests differently, and in the absence of environmental violations, fraud or controversies already registered with the Agrarian Arbitration Court, no further control and no in loco monitoring will be needed before issuing the title. 

The simplicity – and environmental and racial injustice - of a process based on the principle of ‘first come first served’ would already be problematic in ‘normal’ times. Right now, when monitoring is almost halted in the Amazon region and the attention turned to Covid-19, it would be even worse. By relying on documents rather than inspection, the process would intensify the risk of divergence between the reality on the ground and the ‘reality’ presented in the documentation. As a matter of fact, many studies in the last years have shown the juxtaposition of self-declared registries over land that is traditionally occupied but has no registry in the system or land that is part of areas used for planting and shifting traditional agricultural systems. By accepting self-declarations in the contexts of untitled traditional land, the bill would only intensify the struggles around these areas, already at the frontiers of green grabbing. 

Moreover, although if the bill stipulates that no occupation posterior to 22 June 2008 will be regularized and that satellite and remote sensing may be used to check the validity of the self-declaration, the limited controls and the environmental amnesty may benefit the responsible for the deforestations practiced in recent years. In addition, the combination between the fast-track titling contained in the P.L., the IN 9/2020 and the Opinion 001-2017 would create the ‘perfect’ conditions for an increase in the conflicts between pretentious occupiers, illegal occupiers and indigenous peoples waiting for the recognition of their titles, also stimulating even more invasions and violence against them by heightening the risk of contamination. This combination is not just environmentally mortal, it is genocidal.  

In the context of Covid-19 and the growing food insecurity throughout Brazil and Latin America,  the likelihood that the P.L. will open a Pandora box of land struggles, fraudulent practices such as the orchestration of schemes to subdivide larger tracts of land into smaller parcels so to avoid the inspection, and accelerated privatization of public land and the transformation of territories into assets for green capitalism, financial speculation or the realization of commercial practices that are incompatible with the needs of food security is even higher. 

The P.L. 2.633/2020 is not only a Brazilian matter

In 2019, when fires ate an unprecedented amount of the Amazon forest, citizens, companies and politicians from all over the world blamed the Brazilian Government for its inaction and its denial of the gravity of the situation. Few months later, in the cloud of fear and economic recession that accompany the covid-19 pandemic, the Brazilian Parliament may be passing a legislation that creates the conditions for an amnesty of those fires and that may have irremediable consequences on the legitimation and enforcement of the vision of the Amazon ecosystem as an object to control, appropriate and exploit. 

The data is clear about the link between titling and deforestation and degradation. In January 2019, the Deforestation Alert System of the Institute of Humans and Environment (Imazon) had already registered an increase by 54% of the logging, the first stage of the deforestation cycle, compared to the same month of 2018. In the first four months of 2020 alone, according to the monthly analysis realized by the Deter system from National Institute for Space Research (INPE), warnings of deforestation in Indigenous lands in the Brazilian amazon increased by 59% compared to the same period of 2019. Despite the temporal limit contained in the text – occupations occurred before January 2018 – the simplified process of regularization and the self-certification required by the M.P.910 provided an incentive to more deforestation. The fundaments of the P.L. 2.633/2020 are not dissimilar and the definition of a new temporal limit and a reduced surface that can be privatized without inspection (6 ‘fiscal units’ compared to 15) are not guarantee that the promise of express titling will not intensify logging in the coming months. Especially given the lockdown and the reduced presence of inspectors, civil society, activists and citizens on the ground.

 

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When we think about what is happening in Brazil and what may happen if P.L. 2.633/2020 is approved, we cannot avoid thinking about Naomi Klein’s theory of the shock doctrine, i.e. the use of shocking historical events by economic and political elites in order to implement agendas that go against the interest of the people (and the planet). However, when we think about the P.L. 2.633/2020 and the pressure that some Brazilian politicians are exercising to facilitate the titling of occupied public land in the context of a fragile ecosystem, we must recognize that this has to do with all of us as much as with Brazil. 

The Amazon is a unique space of socio-biodiversity. The ecosystem is the result of the centuries of interactions between humans and non-human beings. Therefore, the struggle for defending it as a collective space to produce good life and save our species must also be the struggle to protect the rights of the humans that are part of its ecology. The Amazon reveals that biodiversity is socio-biodiversity and that the protection of collective land rights, self-determination and the lives of the people who have a symbiotic relationship with it is fundamental for our existence. To fight against climate extinction is thus entangled to fight not just for the Amazon and for its people. This is way climate justice cannot be detached from environmental, human and land rights in the region. Moreover, P.L. 2.633/2020 has to do with most of us not only as part of a global movement to protect the socio-biodiversity, but also because the fires, occupations and deforestations are the direct consequence of an increasing demand for minerals, animal protein and soybeans. 

In the context of globally interconnected value chains and global production, land rights and the grabbing of Brazilian land cannot be simply analyzed through the narrow lenses of a local conflict that concerns grabbers, grabbed and the Federal State. The legal, physical and moral violence is exercised along the Amazonian frontier. It is directly felt by the people, communities and activists operating there. However, its root causes transcend the territorial boundaries of Brazil and the legislative boundaries of the Federal Congress

If we truly want to find radical solutions, we shall blame and point fingers against the state-capital nexus that is scarifying people and ecosystems in the name of growth and wealth. But we should do more. We shall enrich our disappointment with some introspective analysis and coordinated transnational interventions that will, in the end, save the lives that save our lives. Even more at the time of covid-19. According to data organized by the National Committee for Indigenous Life and Memory, led by the National Articulation of Indigenous Peoples (APIB), on May 25th, 63 different Indigenous groups were affected by the pandemic:  1140 people were infected so far and 131 people dead. Many cases were not even registered and the contamination rate is increasing in disputed areas. In this context, Bill 2.633/2020, IN 9/2020 and Opinion 001-2017 would not only infringe on the socio-biodiversity of a unique ecosystem but would provide new legislative lymph, authority and legitimation to an ongoing process of genocide of indigenous people protracted through centuries of physical violence, epistemicide, invasions, demarcations, appropriations and expulsions. 

 

Prof. Tomaso Ferrando and Prof. Marcela Vecchione-Gonçalves are members of Properties in Transformation, an international and multidisciplinary research group that aims at building a long-term collaboration among academics and non-academics interested in the study of and advocacy around the multi-dimensional nature of properties and their transformations

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