Cecília Bojarski Pires  (PhD Candidate at the School of Law of the University of Minho) 

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Indigenous and tribal peoples’[1] ancestral territories are essential for climate stability and resilience.[2] “Their territories contain about one-third of all the carbon stored in Latin America and the Caribbean forests and 14 percent of the carbon stored in tropical forests worldwide”.[3] It is indisputable that the role played by indigenous peoples is vital in terms of global climate action, but that is not all. This article aims to demonstrate the importance of preserving indigenous peoples’ lands to achieve European and global climate goals, protect the forests and other ecosystems, conserve biodiversity, and prevent climate change. Furthermore, it is a matter of respect for human rights, a European value.

According to Villares,[4] indigenous peoples are united to the land and all its elements. Moreover, the land is not just a tangible material element but a subjective element that takes on a transcendental character. Thus, the territory is occupied and developed by everyone in that community. For that reason, indigenous peoples’ production system is, in general, much less predatory. The consequence of this special way of dealing with the land means that indigenous peoples can use natural resources without putting ecosystems at risk. It makes them indispensable for guaranteeing environmental conservation and contributing to the fight against poverty, hunger, and malnutrition.[5]

The survey “Governance by Indigenous and Tribal People” (2021)[6] introduces essential conclusions about the importance of indigenous peoples and their unique relationship with the land. Due to numerous cultural factors and traditional knowledge, forests in Indigenous Territories are better preserved, with less deforestation and forest fragmentation. The titled collective territories have prevented between 42.8 and 59.7 million metric tonnes of CO₂ emissions per year, the equivalent of removing between 9 and 12.6 million vehicles from circulation for one year.

For example, the Mangueirinha Indigenous Territory in southern Brazil helps to conserve one of the last native Araucaria forests in the world; in Bahia, the Pataxós of the Barra Velha Indigenous Territory helps to protect one of the most diverse remaining areas of the Atlantic Forest. In the Amazon, Brazil’s largest biome, while much of the forest has already been stripped bare, the Indigenous Lands have lost an infinitely smaller number of their original forests.[7]

In the European context, the EU’s environmental policies, notably within the framework of the European Green Deal, include some efforts in line with the indigenous worldview contributions to achieve some priority objectives, such as the need to “reduce greenhouse gas emissions and reach climate neutrality by 2050; advance towards a regenerative growth model, decoupling of economic growth from resource use and environmental degradation; protect, preserve and restore biodiversity, and enhance natural capital (notably air, water, soil, and forest, freshwater, wetland and marine ecosystems) and reduce environmental and climate pressures related to production and consumption”.[8]

In 2022, considering systematic attacks and lack of protection of the indigenous peoples’s rights in Brazil, the European Parliament adopted a position in shape of a Resolution[9] on the situation of indigenous peoples and environmental defenders in Brazil. This document expressly recognised that indigenous peoples contribute “to the protection of the rainforest and other ecosystems, and thus play a crucial role in preserving biodiversity in the region and preventing climate change”.[10] Among other factors, mention was made to the fact that “Amazon plays a vital role in absorbing carbon dioxide, reducing greenhouse gases and maintaining regional and global weather patterns”;[11] there was a concern about the potential effects of the bill on the demarcation of indigenous lands, “which could lead to increased deforestation and the destruction of indigenous peoples’ livelihoods”.[12] It therefore called for “the recognition and protection of the lands traditionally occupied by indigenous peoples, including by resuming the demarcation of indigenous territories and protecting these territories from illegal land seizures”.[13]

In the same document, the European Union (EU) called European companies “to ensure human rights due diligence throughout their supply chains in Brazil; reiterates that the proposed EU regulation on deforestation-free products must include the protection of indigenous peoples’ rights and human rights and ensure that rights violations are not involved in the production of products placed on the European market; calls on the Commission to ensure that any cooperation framework includes strong, binding and enforceable provisions on the protection of human rights, including the rights of indigenous communities, and to promote respect for international standards and commitments, including on deforestation”.[14] 

In this sense, within the scope of the European Green Deal, EU Regulation 2023/1115 lays down measures to avoid the placement and availability on the EU’s market of products that could contribute to deforestation, greenhouse gas emissions, global biodiversity loss and human rights disrespect. In this context, relevant commodities and products shall not be placed or made available on the market or exported, unless some conditions are fulfilled: i) they are deforestation-free; ii) they have been produced following the relevant legislation of the country of production; iii) they are covered by a due diligence statement. A consequence of these rules is the companies will have to respect the international human rights legislation. As a result, companies that violate the human rights of indigenous peoples, for example, will find the European market closed to their products.

In Brazil, the Federal Constitution of 1988[15] recognised, in its Article 231, the ancestral right of indigenous peoples to their territories. These are portions of the Brazilian territory inhabited by indigenous peoples permanently, used for their productive activities, essential to the preservation of the environmental resources vital to their well-being, and necessary for their physical and cultural reproduction, according to their uses, customs, and traditions.  The Constitution also predicts that all traditionally occupied indigenous lands should go through a demarcation process to recognise them as Indigenous Territories, which has not yet happened. Therefore, the lack of formal[16] recognition of Indigenous Territories means that many indigenous lands suffer from systematic cases of violent invasion.

In recent years, as a consequence of the halt in new land demarcations and the complete failure to protect Indigenous Territories under Jair Bolsonaro’s government, even already demarcated territories have suffered a qualitative and quantitative increase in violence and violations of the rights of indigenous peoples. According to data from the “Report on Violence against Indigenous Peoples in Brazil” (2021), [17] violence has been intensified by illegal prospectors, loggers, animal hunters, fishermen and land grabbers.

In general, the crimes recorded were: i) violence against the property of indigenous peoples in three categories: omission and delay in land demarcation processes, conflicts related to territorial rights and possessory invasions, illegal exploitation of natural resources, and other damages to the patrimony; ii) violence against individuals: abuse of power, death threats, murders and culpable homicides, bodily injuries, racism, ethnic-cultural discrimination, attempted murder, and sexual harassment; iii) violence due to the omission of public authorities.

In 2022,[18] the indigenous population in Brazil reached almost 1.7 million people, representing 0.83% of the total population. Most of the country’s indigenous people live in the “Amazônia legal,” a region made up of the states of the North, Mato Grosso, and part of Maranhão, regions that have important biodiversity and are also the target of agribusiness disputes. In this sense, “80 % of deforestation worldwide is caused by the conversion of forests to agricultural land for commodities such as beef, soy and palm oil”.[19]

On 21 September, the full Court of the Federal Supreme Court, which is primarily responsible for guarding the Brazilian Federal Constitution, by a majority, rejected the “Marco Temporal” (“Time Frame”) thesis for the demarcation of Indigenous Territories, in the context of Extraordinary Appeal (RE) 1017365.[20] The “Time Frame” thesis argued that only indigenous groups occupying the lands on the date of promulgation of the Brazilian Constitution, 10 May 1988, would have the right to traditional territory recognition. Consequently, indigenous peoples who had not settled on the land by the date mentioned would not have the right to have their territories demarcated. Continuing with the judgment, on 27 September, the Court ruled that the owners who occupied indigenous lands in bona fide (i.e., in good faith) may be compensated by the Brazilian State, which should be reimbursed by the federative entity responsible for irregularly issuing the land title.[21]

It is essential to consider that indigenous peoples were forced off their lands violently, including as a result of the expansion of the agricultural frontier, not inhabiting the lands in 1988. In addition, the Brazilian Constitution establishes that indigenous rights are “original rights” prior to the foundation of the Brazilian state, which makes it impossible to establish a time frame for the recognition of traditional territories and the demarcation of Indigenous Territories. As stated by the “Articulação dos Povos Indígenas do Brasil” (APIB), the adoption of the “Time Frame” thesis would legalise the historical process of “more than 500 years of colonisation, genocide, and expulsion of indigenous peoples from their territories, which goes back to times before 1988.”[22]

The “Time Frame” thesis rejection offers an advance in the Supreme Court’s jurisprudence. In a “markedly pluri-ethnic and multicultural country,”[23] it prevents the cultural and physical murder of indigenous peoples. For that matter, the Supreme Court Ministers’ votes represent the institutional recognition of another conception of territory, of a worldview that until then was relatively ignored by the legal structure: the neuralgic importance of land for indigenous existence.

Despite the progress provided by the Supreme Court decision, the threat against indigenous peoples and the environment is still very significant. On 27 September, the Brazilian Senate approved the introductory text of a bill that insists on establishing the “Time Frame” thesis for the demarcation of indigenous lands even with the recognition of its unconstitutionality by the Supreme Court. The proposal symbolises the risks indigenous peoples still face and the protection (and support) their cause needs to mobilise. The bill measures put at risk indigenous peoples’ existence and can cause irreversible environmental damage. The foreseen actions consist of authorisation for mining and planting transgenics on indigenous lands, the possibility of establishing contact with isolated peoples, the possibility of carrying out economic ventures without consulting the affected people, the possibility of concluding contracts between indigenous and non-indigenous people to explore economic activities, among others.[24]

The bill is a political move by the most conservative wing of the Brazilian National Congress, formed by the Parliamentary group representing the interests of agribusiness and other groups that consider indigenous peoples and the defence of environmental causes to be a threat to their private interests. The rejection of the “Time Frame” thesis for the demarcation of Indigenous Territories in Brazil is fundamental for global climate stability and resilience. It is also a step towards ensuring the right to life of people who have been historically dispossessed of their lands since the Brazilian “discovery”.

And yet, indigenous peoples continue to be intimidated. Considering a range of historical factors, the international human rights protection system, and the importance of indigenous peoples in reducing environmental and climate pressures around the world, protecting indigenous peoples is a global cooperation duty. The worldview of indigenous peoples, which does so much for the environmental issue, must be respected and recognised beyond Brazil’s borders. With intelligence and humility, this can also be a (new) opportunity to consummate a necessary historical repair. 

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[1] “According to the United Nations (UN), more than 5 000 different peoples, with a population of over 370 million people, divided between 70 countries on five continents, fall under the category of “indigenous peoples” (UNIPP, 2012). These peoples are quite diverse. Each has their own culture, language, history, worldview, and productive, food, and medicinal systems. While there are various meanings of the term “indigenous” or “indigenous peoples”, the term has come to be used internationally in the context of global debates about the rights of ethnic minorities, tribal peoples, natives, aborigines, and indigenous populations. These are groups that have been, and continue to be, discriminated and marginalized, as the result of colonialism and postcolonial processes of building and developing modern nation states”.

See FAO and FILAC, Governance by Indigenous and Tribal People. An Opportunity for Climate Action in Latin America and the Caribbean (Santiago do Chile, 2023), 6, accessed September 26, 2023. Doi: https://doi.org/10.4060/cb2953en.

[2] FAO and FILAC, Governance by Indigenous and Tribal People, 2.

[3] FAO and FILAC, Governance by Indigenous and Tribal People, 2.  

[4] Luiz Fernando Villares, Direito e Povos Indígenas (Curitiba: Juruá   Editora), 2009.

[5] FAO and FILAC, Governance by Indigenous and Tribal People.

[6] FAO and FILAC, Governance by Indigenous and Tribal People.

[7] Tiago Moreira dos Santos “Terras Indígenas Protegem a Floresta”, Instituto Socioambiental accessed September 26, 2023, https://terrasindigenas.org.br/pt-br/faq/tis-e-meio-ambiente#:~:text=A%20conserva%C3%A7%C3%A3o%20ambiental%20das%20Terras,viver%20e%20ocupar%20um%20lugar.

[8] European Parliament, “Environment policy: general principles and basic framework”, accessed September 27, 2023, https://www.europarl.europa.eu/factsheets/en/sheet/71/politica-ambiental-principios-gerais-e-quadro-de-base#:~:text=A%20pol%C3%ADtica%20ambiental%20europeia%20baseia,os%20dom%C3%ADnios%20da%20pol%C3%ADtica%20ambiental.

[9]  See European Parliament resolution of 7 July 2022 on the situation of indigenous and environmental defenders in Brazil, including the killing of Dom Phillips and Bruno Pereira (2022/2752(RSP)), P9_TA(2022)0292 , accessed October 10, 2023, https://www.europarl.europa.eu/doceo/document/TA-9-2022-0292_EN.pdf

[10] “European Parliament resolution of 7 July 2022”, G.

[11] “European Parliament resolution of 7 July 2022”, H.

[12] “European Parliament resolution of 7 July 2022”, J. 6.

[13] “European Parliament resolution of 7 July 2022”, J. 7.

[14] “European Parliament resolution of 7 July 2022”, J. 8.

[15] See Constituição da República Federativa do Brasil de 1988 (Brasília, DF: Senado Federal, 1998), accessed September 22, 2023, https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm.

[16] The demarcation process is an administrative instrument to limit the territory traditionally occupied by certain indigenous peoples. Land demarcation is a fundamental protection for indigenous peoples’ physical and cultural survival.

[17] Conselho Indigenista Missionário (CIMI), “Relatório Violência contra Povos Indígenas” (Brasil: 2021), accessed September 26, 2023, https://cimi.org.br/wp-content/uploads/2022/08/relatorio-violencia-povos-indigenas-2021-cimi.pdf.

[18] Instituto Brasileiro de Geografia e Estatística (IBGE), “Brasil tem 1,7 milhão de indígenas e mais da metade deles vive na Amazônia Legal”, (Brasil: 2022), accessed September, 26, 2023, https://agenciadenoticias.ibge.gov.br/agencia-noticias/2012-agencia-de-noticias/noticias/37565-brasil-tem-1-7-milhao-de-indigenas-e-mais-da-metade-deles-vive-na-amazonialegal#:~:text=A%20maior%20parte%20dos%20ind%C3%ADgenas,2022%20(totalizando%20753.357%20pessoas).

[19] See “European Parliament resolution of 7 July 2022”.

[20] See Supremo Tribunal Federal (Brazil), Recurso Extraordinário (RE)10117365, com repercussão geral (Tema 1.031), accessed September, 26 2023, https://portal.stf.jus.br/processos/detalhe.asp?incidente=5109720.

[21] Paulo Roberto Netto, “Marco temporal: STF decide que ocupante de boa-fé deverá ser indenizado”, UOL, September 27, 2023, accessed September 27, 2023, https://noticias.uol.com.br/politica/ultimas-noticias/2023/09/27/stf-marco-temporal-indenizacao-proprietarios-boa-fe.htm.

[22] “Mais de 500 anos de colonização, genocídio e expulsão dos povos indígenas de seus territórios, que remete a tempos muito anteriores ao ano de 1988”. See Sara Resende, “Senado vai contra STF e aprova texto-base do marco temporal para demarcações de terras indígenas”, G1, September 27, 2023, accessed September 27, 2023, https://g1.globo.com/politica/noticia/2023/09/27/senado-vai-contra-stf-e-aprova-marco-temporal-para-demarcacoes-de-terras-indigenas.ghtml.

[23] “Marcadamente pluriétnico e multicultural”. See Deborah Duprat, “O Direito sob o marco da plurietnicidade/multiculturalidade”, in Constituição de 1988: o Brasil 20 anos depois. Os cidadãos na Carta Cidadã, ed. Bruno Dantas, Eliane Cruxên, Fernando Santos e Gustavo Ponce de Leon Lago, vol. 5 (Senado Federal, Instituto Legislativo Brasileiro, 2008), accessed September 27, 2023, https://www12.senado.leg.br/publicacoes/estudos-legislativos/tipos-de-estudos/outras-publicacoes/volume-v-constituicao-de-1988-o-brasil-20-anos-depois.-os-cidadaos-na-carta-cidada/educacao-e-cultura-o-direito-sob-o-marco-da-plurietnicidade-multiculturalidade/view.

[24] Sara Resende, “Senado vai contra STF e aprova texto-base do marco temporal para demarcações de terras indígenas”, G1, September 27, 2023, accessed September 27, 2023, https://g1.globo.com/politica/noticia/2023/09/27/senado-vai-contra-stf-e-aprova-marco-temporal-para-demarcacoes-de-terras-indigenas.ghtml.

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