2023-08-16 16:49:24
The Agriculture and Agrarian Reform Commission (CRA) of the Senate may vote, this Wednesday (16/8), the Temporal Framework Law Project (PL nº 2903/2023; numbered in the Chamber as 490/2007). If approved, the text goes to the Constitution and Justice Commission (CCJ).
Approved by the Chamber of Deputies at the end of May, the proposal imposes a series of setbacks to indigenous rights. In addition to establishing the thesis of the temporal framework, making new demarcations unfeasible, the project enables the predatory exploitation of natural resources in Indigenous Lands (TIs); allows the installation of projects with great socio-environmental impacts in these areas; violates the right to prior consultation; and foresees the possibility of promoting forced contact with isolated indigenous people.
Em technical note announced today, the ISA points to the unconstitutionality of the proposal and suggests its rejection by the commission.
“The amendment promoted by the bill is unconstitutional because it alters, through an ordinary federal law, the express text of the Constitution”, says the note. According to the document, sent to the rapporteur at CRA, Soraya Thronicke (Podemos-MT), in addition to making international agreements and investments for the country unfeasible, the PL may “increase deforestation, land invasions and violence against indigenous peoples, given the expectation of annulment of the demarcation processes”.
In addition, the document highlights, the National Congress did not promote free, prior and informed consultation on the legislative measure, contrary to international treaties ratified by Brazil, such as Convention 169 of the International Labor Organization (ILO). “This is the fundamental right of indigenous peoples to be consulted by the State whenever administrative or legislative measures may directly affect them”, points out the note.
Marco temporal
The temporal framework thesis determines that only the indigenous peoples who were in their possession on the date of promulgation of the Constitution (October 5, 1988) would have the right to land, disregarding the history of expulsions, forced removals and violence committed against these populations, mainly during the Military Dictatorship.
The PL also allows interested parties to contest the demarcations at all stages of the procedure. According to the note of ISA, “the possibility is unprecedented, since in each and every administrative process there are rules, moments and deadlines for the contestation of the interested parties”. “Allowing the process to have no time limit for contestation has the purpose of disrupting and making the completion of the demarcations unfeasible”, points out Juliana de Paula Batista, lawyer for the ISA.
Today, anyone can contest the claim, from the opening of the process up to 90 days after the publication of the identification report prepared by the National Foundation for Indigenous Peoples (Funai). Afterwards, the process moves on to the declaration of territory boundaries by the Ministry of Justice. There are demarcations that drag on for 20 or 30 years.
isolated indigenous people
PL 2903 threatens indigenous peoples who live in isolation by inaugurating a policy of forced contact under the hypothesis of “state action of public utility”. According to the proposal, the competence for forced contacts would be “state agents”, intermediated by “public or private companies”, which could even include religious missions.
Since the end of the 1980s, Funai has established that groups without official contact with the State must have the option of doing so, at the time and in the way they deem convenient. In return, the government must protect its territories from invaders and environmental degradation.
These populations are extremely vulnerable to unforeseen contacts and conflicts, as they do not have the same immunological memory for contagious diseases common among non-indigenous people, such as the flu. In addition, in general, they live in remote and difficult-to-access regions, which can make emergency medical care unfeasible. In the past, forced contacts wiped out large numbers of entire groups in a short amount of time. The possibility of ending the non-contact policy worries indigenous organizations and civil society, which claim that this is a violation of the rights of isolated people and a great risk to their lives.
indigenous reservations
The PL paves the way for the federal administration to partially or fully annul “Reserved” indigenous lands, if it deems that the indigenous people have lost their cultural traits.
The “Indigenous Reserve” is a type of IL established to ensure the physical and cultural survival of an indigenous people, but where the traditional occupation has not necessarily been recognized according to current anthropological technical knowledge. This is because most of these areas were made official based on the 1973 Statute of the Indian. Therefore, many of them are decades old.
According to ISAthere are currently 66 areas classified as reserved indigenous areas in the country, with a population of almost 70,000 people.
“The removal of land due to the loss of cultural traits, in addition to being arbitrary, gives the State the prerogative to say who is indigenous and who is not. This prerogative belongs to the peoples themselves, who have the fundamental right to collectively self-identify as distinct from the rest of national society. In addition, the possibility could update practices such as integrationism and forced cultural assimilationism, currently prohibited by the Constitution and by treaties and international declarations that establish minimum limits of dignity and respect for indigenous peoples”, says Batista.
Main problems of Bill No. 2903
– It applies that the “timeframe” is a criterion to be observed for all IL demarcations, making an already time-consuming procedure unfeasible;
– Establishes that the demarcation be contested at all stages of the administrative process, which could make its completion unfeasible and cause procedural turmoil;
– Authorizes the planting of transgenics in ILs, which is currently prohibited and could lead to the contamination of seeds and creole and native species, compromising biodiversity, genetic heritage and food security of indigenous peoples;
– Allows the Union to retake “Indigenous Reserves” based on subjective criteria;
– Allows the deployment of “equipment, communication networks, roads and transport routes, in addition to the buildings necessary for the provision of public services, especially health and education” in the TIs, regardless of consultation with the affected indigenous peoples;
– Puts an end to the “no contact” policy with isolated indigenous people. According to the PL, the contact could be made with the purpose of “intermediating state action of public interest”, by public or private companies, including associations of missionaries;
– In overlaps between indigenous territories and Conservation Units, the responsible environmental agency will have the prerogative to define the management of the area.
Understand in detail:
Technical-Legal Note on Bill (PL) No. 2,903/2023
Executive Summary – Main problems of Bill (PL) No. 2,903/2023
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