constitution – Tribes Alive

*Indigenous leaders in Times Square, New York during Climate Week; Chief Raoni Metuktire, with banner: ‘Marco Termporal Não’.*

On Friday Brazil’s Supreme Court voted on a case which has been a Sword of Damocles hanging over the heads of Brazil’s indigenous peoples. The result was a 9 to 2 ruling against the concept of a ‘Marco Temporal’ – a date-based limit on indigenous claims to territories they occupied.

It has taken more than two tortuous years for the Supreme Court to throw out this patently absurd case, which had been rumbling through the lower courts for over ten years.

The case rested on the idea that only those lands which were physically occupied by indigenous communities on the date that the 1988 Constitution came into force would qualify for demarcation as Indigenous Territories (ITs). Even a superficial reading of the Constitution makes it quite clear that this was not the intention of the Constitution, nor was it feasible within the wording of the clauses relating to the rights of indigenous peoples. If this were to be upheld by the Supreme Court it would have prevented the demarcation of any further ITs and would have put many existing ITs at risk.

In Brazil justice flows very slowly, and sometimes throws up confusing results. But this time reason prevailed, bringing huge relief – and a lot of partying – in indigenous territories throughout the country.

Brazil’s Indigenous Peoples owe much of this victory of reason over greed to actions taken 35 years ago, when Brazil’s post-dictatorship 1988 Constitution was drafted. The political climate at the time was sympathetic to the recognition of indigenous rights, and indigenous activists of the time were invited to input their ideas to the Constitutional Commission. Foremost among the indigenous negotiators was Bep’kororoti Payakan, known as Paulinho by the non-indigenous. Sadly, he was a victim of Covid. He was highly intelligent and spoke good Portuguese – very rare at the time. He was very actively involved, with the powerful support of Chief Raoni Metuktire, in negotiating the exact terms of the 1988 Constitution, as part of a coherent indigenous effort to have their rights enshrined in the Constitution. Their success in that process established the essential foundations on which this case was decided, so we owe them a huge debt of gratitude for their work. They must not be forgotten.

…and Bad News on Belo Monte

Not unexpectedly, but still disappointingly, the President of the Supreme Court, Carlos Ayres Britto, has suspended the injunction which halted work on the dam.

In a move which represents a total capitulation of the Supreme Court to the wishes of the Executive he refused to comment on the legal aspects, but nonetheless suspended the injunction until the case reaches a full Supreme Court hearing.

How is this a total capitulation? According to Norte Energia, the company building the dam, the government has already spent the major part of R$5 billion through the largely nationally-owned companies which form the core of Norte Energia, and it is incurring further costs daily. Immense damage has already been done in terms of the destruction of the physical, social, cultural and food security of the indigenous tribes affected. The environment suffers more with each day that work progresses. We are at, or very close to, the point where the damage done is irreversible, and the investment so huge that no judgement from any court could stop the Leviathan’s progress.

No date has been set for a hearing in the Supreme Court. The case is unlikely to reach the Court for months or even years, by which time the dam will be more or less built, the destruction will have already have been done, the indigenous cultures will have been wiped out, and therefore the case will be no more than academic.

Ayres Britto seems to be blind to the fact that the government has succeeded in bypassing the country’s constitution and huge swathes of its environmental and human rights legislation. Because of the enormity of the project, judging that a fait accompli was carried out illegally can do nothing to reverse the damage done. The Supreme Court will have no sanction available; at worst the government may receive a slap on the wrist, which it will simply shrug off on its march towards the next illegal mega-project on the next river.

It is sad to see Brazil’s young democracy suffer such degradation. Without a proper balance between the Three Powers – which are so iconically at the heart of Brasilia, where the Executive, the Judiciary and Congress all sit on the Square of the Three Powers – Brazil is reverting to a dictatorship, with a Judiciary cowed into submission by an all-powerful Executive, which in turn is endorsed by a supine and submissive Congress, influenced and financed by corporate interests.

We watched through the 1980s as Brazil left the years of dictatorship behind. We were in awe as the country swept into a new age of enlightenment, enacting progressive laws to protect the rights of its citizens, whether rich or poor, black or white, immigrant or indigenous. The adoption of the 1988 Constitution was a high point, and the hosting of the 1992 United Nations Earth Summit was a triumph. Brazil was seen throughout the world as a bright star, a shining example of how a young democracy could vigorously defend what was good and humanitarian.

How sad to see such promise dashed. Mired in wave after wave of corruption at the highest level – ironically the Supreme Court cannot judge the Belo Monte case because it is embroiled in the Mensalão case, which is about corruption in the highest ranks of the government – Brazil’s burgeoning wealthy elite are following the worst example of their gurus in the developed world and enriching themselves with no thought for those who are paying the price for their riches.

The government is enthusiastically endorsing policies and legislation which has no other intention but to take away the safeguards built so painstakingly into the fabric of the modern Brazilian state. First, the courageous and far-reaching (if poorly enforeced) Forest Code was watered down, paving the way to rising deforestation and increased conflict over land tenure. Now there is a project to change the constitution (known as PEC 215) which will transfer responsibility for demarcation of indigenous territories from FUNAI to the National Congress, where each and every proposal will be bogged down for years unless it is simply dismissed at the outset. There is the crazy AGU 303 decree referred to in another article here. And there are the multiple mega projects planned for the Amazon which will result in no more nor less than cultural genocide.

President Dilma Rousseff appears disinterested in anything which might impede her developmentalist agenda for the Amazon. She seems to look upon anyone and anything which is not part of the rich, new world of Brazilian economics and business as a trifling impediment to be brushed aside, whether they be indigenous people, rural settlers, threatened species or ecosystems. She has her priorities and nothing and no-one may be permitted to stand in her way.

Victory Against The Absurd

…and Bad News on Belo Monte

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