Rights to traditional lands of the amazon indigenous peoples as a human right by Arraes Editores

Rights

Traditional Lands of the Amazon Indigenous Peoples as a Human Right to

BEATRIZ SOUZA COSTA JAMILE BERGAMASCHINE MATA DIZ (Organizers)

Rights

Traditional Lands of the Amazon Indigenous Peoples as a Human Right to

Belo Horizonte 2021

CONSELHO EDITORIAL Álvaro Ricardo de Souza Cruz André Cordeiro Leal André Lipp Pinto Basto Lupi Antônio Márcio da Cunha Guimarães Antônio Rodrigues de Freitas Junior Bernardo G. B. Nogueira Carlos Augusto Canedo G. da Silva Carlos Bruno Ferreira da Silva Carlos Henrique Soares Claudia Rosane Roesler Clèmerson Merlin Clève David França Ribeiro de Carvalho Dhenis Cruz Madeira Dircêo Torrecillas Ramos Edson Ricardo Saleme Eliane M. Octaviano Martins Emerson Garcia Felipe Chiarello de Souza Pinto Florisbal de Souza Del’Olmo Frederico Barbosa Gomes Gilberto Bercovici Gregório Assagra de Almeida Gustavo Corgosinho Gustavo Silveira Siqueira Jamile Bergamaschine Mata Diz Janaína Rigo Santin Jean Carlos Fernandes

Jorge Bacelar Gouveia – Portugal Jorge M. Lasmar Jose Antonio Moreno Molina – Espanha José Luiz Quadros de Magalhães Kiwonghi Bizawu Leandro Eustáquio de Matos Monteiro Luciano Stoller de Faria Luiz Henrique Sormani Barbugiani Luiz Manoel Gomes Júnior Luiz Moreira Márcio Luís de Oliveira Maria de Fátima Freire Sá Mário Lúcio Quintão Soares Martonio Mont’Alverne Barreto Lima Nelson Rosenvald Renato Caram Roberto Correia da Silva Gomes Caldas Rodolfo Viana Pereira Rodrigo Almeida Magalhães Rogério Filippetto de Oliveira Rubens Beçak Sergio André Rocha Sidney Guerra Vladmir Oliveira da Silveira Wagner Menezes William Eduardo Freire

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Arraes Editores Ltda., 2021.

Coordenação Editorial: Fabiana Carvalho Produção Editorial e Capa: Danilo Jorge da Silva Imagem de Capa: Free-Photos (Pixabay.com) Revisão: Responsabilidade do Autor 341.1234 R571 2021

Rights to traditional lands of the amazon indigenous peoples as a human right /[organised by] Beatriz Souza Costa [e] Jamile Bergamaschine Mata Diz. Belo Horizonte: Arraes Editores, 2021. 70 p.

ISBN: 978-65-5929-054-3 ISBN: 978-65-5929-055-0 (E-book) Vários autores.

1. Direitos humanos. Direitos humanos indígenas. 3. Direitos fundamentais. 4. Direitos dos povos indígenas. 5. Amazônia – Povos indígenas. 6. Amazônia – Índios – Direito às terras. 7. Indígenas – Direito à terra. I. Costa, Beatriz Souza (Org.). II. Diz, Jamile Bergamaschine Mata (Org.). III. Título.

CDDir – 341.1234 CDD(23.ed.)– 342.0872 Elaborada por: Fátima Falci CRB/6-700

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Contents

INTRODUCTION Beatriz Souza Costa....................................................................... 1 1. PROPERTY AS A HUMAN RIGHT Márcio Luís de Oliveira................................................................ 5 2. INDIGENOUS PEOPLES’ RIGHTS TO TRADITIONAL LANDS Lorena Machado Rogedo Bastianetto............................................ 17 3. COLLECTIVE PROPERTY RIGHTS JURISPRUDENCE André de Paiva Toledo.................................................................. 33 4. COLLECTIVE PROPERTY RIGHTS OF THE AMAZON INDIGENOUS PEOPLES Ana Virgínia Gabrich Fonseca Freire Ramos............................... 51 CONCLUSION Camilla Freitas............................................................................... 63

Introduction Beatriz Souza Costa1

Since the enactment of the 1988 Federal Constitution, there has been an improvement in the Brazilian legislation regarding the rights of indigenous peoples, especially in relation to demarcation of lands and the use of natural resources. However there have been several setbacks leaving Brazilian Indigenous Peoples facing a highly vulnerable situation. The ownership over these lands, according to the 1988 Constitution, received a different and special treatment in relation to other forms of public or private ownership. Permanent possession and exclusive usufruct rights were granted to indigenous peoples regarding the riches of the soil, rivers, and lakes with the Federal Government being responsible for demarcating and protecting such lands. In this context, this paper has as its objective the research and in-depth discussions on topics with respect to the right of Amazon indigenous peoples, in light of the challenging process of guaranteeing these peoples’ self-governance over their lands, with a view to their right to develop economically, as well as the protection of their rich traditions. Studies on property rights have their origins in ancient classics and meets ideological discussions throughout human history to this very moment, given their socioeconomic and environmental importance. The analysis of the meaning of property, from 1

Post-Doctorate in Environmental Law from Universidad de Castilla-La Mancha (Spain). PhD and Master in Constitutional Law from UFMG. Dean of Research at Escola Superior Dom Helder Câmara. Professor of the Graduate Program in Environmental Law and Sustainable Development at Escola Superior Dom Helder Câmara.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

its constitutive and legitimizing aspects, and its scope, from the perspective of its ownership and reach, has gained relevance as grounds to indigenous peoples’ self-governance rights over their property. Moreover, property is still a reflection of the collective identity of these peoples, who carry with them natural, cultural, and historical elements. Finally, property is internationally recognized as a human right. Some international legislations have already recognized the permanent consortium rights over traditional indigenous lands and the emancipation in decision-making in economic and environmental policies, especially regarding the lands indigenous peoples occupy. These legislations are based on the original thinking of the theologian Francisco de Vitória, who brought as a contribution to international law the jus inter omnes gentes, moderating state power in favor of the natural and common rights of all groups, not of a particular one. Also in the international arena, the Inter-American Convention on Human Rights (the “American Convention”), lists in its main document a number of fundamental human rights, aiming primarily at guaranteeing individual freedoms; amongst them the right to property, including that of traditional peoples. In this sense, the jurisprudence of the International Court of Human Rights (the “Court”) understands that the right of indigenous peoples to collective or communal property is a fundamental human right. This protection is based on the special meaning of collective ownership of ancestral lands, which considers the safeguarding of the cultural identity of each of these peoples, as well as their natural resources. Although article 231 of the Federal Constitution protects the rights of indigenous peoples, a protection which encompasses their social organization, languages, customs, beliefs, rights and traditions as well as the original rights over the lands traditionally occupied by them, these peoples, in fact, face difficulties in recognizing their historical possession of territories which have been occupied by them. The deadlock involves land demarcation, in addition to issues related to agrarian conflicts and problems related to the exploitation of natural resources.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

In view of this, States have as a challenge the fulfillment of the proprietary interests of indigenous peoples through the formal recognition of genuinely occupied lands, granting them selfgovernance and legal certainty, thus fulfilling their very human rights. In the same sense, this formal recognition is not enough, but the guarantee that these lands will be sufficiently extensive for the full development of these peoples.

1 Property Formation Process as an Individual or Communal Human Right Márcio Luís de Oliveira1

1. PROPERTY: MEANING AND SCOPE It dates to Ancient Classics studies and reflections on property. The subject matter, due to its socioeconomic relevance, was addressed by medieval philosophy and theology and reached its peak in the transition period between the Modern Age and the consolidation of the Contemporary Age, especially by liberal thinkers of the Enlightenment and those belonging to scientific and historical socialism. In the ideological confrontation amongst capitalist, socialist and fascist systems, and in the most extreme episodes of recent history, property has been the topic of discussions and paradoxical acts. However, in a hypermodernity context (also called postmodernity by many academics), property notions come back to demand attention once again. In this book, the analysis of property will focus on its meaning and scope. As for the meaning, the term property will be addressed from its constitutive and legitimizing aspects; regarding 1

PhD and Master in Law (UFMG); Further training course in Public and Private International Law (Netherlands / Holland); Professor at Universidade Federal de Minas Gerais (UFMG) School of Law, Graduate Professor (PhD / Master in Environmental Law and Sustainable Development) at Escola Superior Dom Helder Câmara – ESDHC, Master’s at Faculdade Milton Campos; Visiting Professor at the Universidad Complutense de Madrid, Spain; Collaborating Professor at The Hague University of Applied Sciences, Netherlands (Holland); General Counsel of the Technical-Legislative Consultancy of the State of Minas Gerais, Executive Power.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

its scope, property will be treated observing its ownership and scope aspects. In its creation, property implies dominance over something that can be quantified by applying previously agreed upon parameters. Currently, it is up to the various fields within economics to establish, under certain cultural and natural contexts, the technical criteria for property economic sizing. Once economic essence criteria has been established, it will be made binding by state and international legal-normative systems. As an ownership over something or an economically quantifiable asset, a property is revealed by the legal ownership over and in the potential use, enjoyment, fruition, repossession, and release of the asset over which it falls2. Consequently, an asset can be used, enjoyed, and even made available even if such rights are detached from the property itself. This consists in the right of possession, which is an expression of the property attribute, but which can also be revealed in a way that is detached from the property itself. In other words, possession of an asset can take place by itself or as a real or ideal attribute of the property. Thus, every title holder of an asset has, in relation to that asset, its general possession; whether holding its actual or effective possession. In other words, actual possession of an asset can occur regardless of its title.3 In its legitimizing aspect – justification for its existence – property as ownership title (ideal and actual) over assets allows its owner – person or group of people – to have access to a set of “things” that are necessary for its / their existence or as a worthy achievement. Under these two perspectives are innumerable theories of justice placed in the history of philosophical thinking. All of them seek to legitimize individual or collective ownership over assets. In summary, property is legitimized by necessity or merit.4 However, in the historical process, property – ownership over assets – has expressed more economic-institutional power 2

BEVILÁQUA, Clóvis. Direito das coisas. 4th ed. Rio de Janeiro: Forense, 1956. p. 97 ss. PONTES DE MIRANDA, Francisco Cavalcanti. Tratado de direito privado. Rio de Janeiro: Editor Borsoi, 1955, Tomo X, p. 7 ss. Aristóteles. A política, Livro II. São Paulo: Martins Fontes, 1992.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

and public recognition than unveiling justice through the satisfaction of needs or by meritorious results. For this reason, its primary function has been relieved, that is, to allow accessibility to private or collective assets necessary to meet basic daily needs or as meritorious result. The accumulation of assets by private or state agents to the detriment of the large population contingent has always been the subject of heated academic debates or violent wars. In the same sense, economically dominant groups (property concentrators) have long competed for some primacy or even the elimination of the opponent. Nevertheless, this is not the appropriate forum for the reconstruction of theories of justice or for the analysis of situations, causes and consequences of socioeconomic inequality due to property (in)accessibility. Therefore, having addressed the meaning of the property in its constitutive and legitimizing aspects, one shall discuss the scope and extension of property, from the perspective of its ownership and reach. Ownership of property concerns the de jure subject to whom property belongs. This subject may be an individual, a legal person or an atypical entity (without legal personality, but provided with the potential to be a rights holder, under a specific circumstance, such as bankruptcy or legacy). Property ownership can then be assigned to one or several subjects simultaneously, as condominiums for instance, as well as in co-ownership situations. But the property holder may also be a collectivity that expresses a community social identity (such as the native peoples of the Americas and Australia) or humanity, in the case of diffuse inter-subjective and intergenerational assets such as the environment (e.g., the Antarctic continent) and some cultural works and expressions that are in the public domain (e.g. Aristotle’s texts, the Bible, the Koran, a rhythm or musical style such as blues or samba). Within its scope, property also shows different spectrums. Ownership can extend to material assets (e.g., real estate) or immaterial assets (e.g., the composition of a song). Property can also reach a specific asset or a collection or group of assets that may or may not constitute a systemic set of assets, such as a particular social or natural habitat.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

It appears, therefore, that property is a historic-civilizational institute showing immense complexity. However, and regardless of its nuances, property reveals part of the identity of its individual or communal holder. This is the aspect that matters in this text. 2. THE PERCEPTION OF PROPERTY AS UNVEILING PART OF PERSONAL OR COMMUNAL IDENTITY In the historical process of forming and unveiling the identity of a person or community, actual (or natural) and cultural needs, as well as achievements (merit) and losses, are revealed from various perspectives, one of which being accessibility and property use. The clothes one wears (necessity) and what one acquires due to work (merit) are expressions of parts of the identity of the subject who owns such goods. The same can be seen regarding communal properties, which are constituted in diffuse intersubjective and intergenerational relational processes and which make up a collective identity. The location of the social settlement – and everything in it from natural and cultural elements – is a constituent factor of the community lifestyle. Language, literature, cuisine, architecture, economics, social and political institutions and private and public customs are formed, consolidated and updated under the perspective of a material and immaterial heritage of communal domain and impossible to be appropriated exclusively by private individuals, as it is transpersonal and transgenerational.5 From this perspective – that of property as the unveiling of part of the identity of the individual and the community – it has been realized that the accessibility and use of property could not be subject to the insecurity and arbitrariness of established relations of an expropriating or subjugating power. It was, therefore, from this expansion of consciousness (correlation between identity and property) that Western modernity came to understand 5

OLIVEIRA, Márcio Luís de. A Constituição juridicamente adequada. 2nd ed. Belo Horizonte: D´Plácido, 2016, first chapter.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

property as a “natural right” (therefore, extendable to all peoples and groups), and no longer as an stratum-natural privilege or as a consequence of conquest by subjugation (power), as it has always been since immemorial times. Although there was a discussion in Magna Grecia about the justice or injustice on access and use of property, it had never been understood as an element for the expression of part of the identity of its owner. It is important to note that the notion of identity as a legal subjectivity was only achieved in modern times6. Thus, the justice or injustice of the access and use of property was based on the criteria of necessity and merit7. During the Middle Ages, and under the feudal system, land ownership was a real concession attributed to someone (and their descendants) or to a community (city). Consequently, it was also up to the grantor to withdraw ownership of the property from the concessionaire in certain circumstances, such as the conviction for the crime of royal treason or upheaval against the king. In some contexts, land ownership was considered a lordship, as it encompassed land ownership and the authority to exercise certain public functions. In the dynamics of power relations, immovable and movable assets were subject to expropriation without further justification. In fact, the signing of the Magna Carta by King John (the landless) on June 15, 1215, in England, was due to an attempt to limit royal powers to restrict or arbitrarily suppress prerogatives of members of the Catholic Church and nobles, among which property. From then on property was considered as a right of the subjects of the monarchy8. Although it was not a law in the contemporary sense of the institute, the Magna Carta was a kind of social contract, of a binding nature, established between the king, the high clergy and nobility. So much so that it guaranteed the clergy and nobility the legitimate right to fight against the king in case of noncompliance, which 6

OLIVEIRA, Márcio Luís de. A Constituição juridicamente adequada. 2nd ed. Belo Horizonte: D´Plácido, 2016, second chapter. Aristóteles. A política, Livro II. São Paulo: Martins Fontes, 1992. HUME, David. História da Inglaterra: da invasão de Júlio César à Revolução de 1688. São Paulo: Editora Unesp Digital, 2017.

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would make the act of treason or the illegitimate uprising uncharacteristic. But even so, property did not constitute a right related to the identity of its owner. In medieval England, access to and use of property were still privileges arising of or due to the belonging to certain social estates or groups of organized professionals (guilds). Over the centuries and with the slow formation of the Common Law legal system, these prerogatives had extended to all citizens. At a decisive moment in English history, the 1689 Bill of Rights strengthened the extension of citizens’ rights and guarantees and instituted the decentralization of State functions as modern constitutionalism pillars.9 However, the first official document of relevance to recognize dignity as a fundamental attribute of personality was the Declaration of Independence of the Thirteen British Colonies, signed on July 4, 1776, during the Second Continental Congress held in the city of Philadelphia, Pennsylvania. According to such Declaration of Independence, its writers considered “self-evident truths” that [...] all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

Once the independence war ended, and already under a constitutional process, the members of the First Congress of the United States of America submitted, on September 25, 1789, a list of amendments to the Constitution (of September 17, 1787) that had been drafted to be approved by the member states of the Union, yet to be incorporated. The amendments established a list of rights and guarantees and were based on the 1776 Declaration of Independence as a legal recognition of a hitherto religious and morally based attribute: the dignity of the human person. The Bill of Rights became part of the Constitution of the United 9

OLIVEIRA, Márcio Luís de. A Constituição juridicamente adequada. 2nd ed. Belo Horizonte: D´Plácido, 2016, second chapter.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

States of America on December 15, 1791, providing, in Constitutional Amendment No. V, property as one of the fundamental constitutional rights and guarantees, essential to the legal dignity of a human person – not just religious or moral10. These first state documents granting property the status of right (Magna Carta and Bill of Rights, in England; Declaration of Independence in and Constitution of the United States of America), demonstrate the distinct change in perception that occurred in the historical process of the recognition of rights: from a class privilege to the right of all citizens (in England) to a new meaning and extension of the dignity of the human person, in the United States of America. Revolutionary France is contemporary to the process of independence and the formation of the United States of America. In that scenario, the French National Constituent Assembly, selfproclaimed by the Third State during the meeting of the General States (1789) – and also inspired by the humanist philosophy of the Enlightenment and by the events that took place in North America (1776 Declaration of Independence in and 1787 Constitution of the United States of America) – drafted and approved the Declaration of the Rights of Man and the Citizen, on August 26, 1789. In the constituent environment, the Declaration broke with the Old Regime (that of a medieval state society and that of the Absolute Monarchy) and provided a substratum for a new form of legitimation and organization of the relations among the State, society and the private sector. The Declaration was ratified on October 5, 1789 by Louis XVI, under pressure from the Assembly and the people who met at Versailles, and became part of the preamble to the first revolutionary France Constitution, adopted on September 3, 1791, which instituted a Parliamentary Monarchy.11 In Articles 2 and 17, the Declaration of the Rights of Man and the Citizen confirms property as one of the four natural 10

United States of America. National Archives: available at: <https://www.archives.gov/ founding-docs/bill-of-rights-transcript>. Accessed on 1/28/2020. République Française. Available at: <https://www.elysee.fr/la-presidence/la-declaration-des-droits-de-l-homme-et-du-citoyen>. Accessed on 1/15/2020.

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and imprescriptible rights of the person and gives it guarantees against arbitrariness: Art. 2. Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression.12 Art. 17. La propriété étant un droit inviolable et sacré, nul ne peut en être privé, si ce n’est lorsque la nécessité publique, légalement constatée, l’exige évidemment, et sous la condition d’une juste et préalable indemnité.13

It is clear that the two contemporary legal instruments – the Constitution of the United States of America, further to its Bill of Rights, and the Declaration of the Rights of Man and the Citizen – are inspired by the 1776 Unites States of America Declaration of Independence. In turn, this last Declaration updates and refreshes historical elements of the 1215 Magna Carta and more specifically of the 1689 Bill of Rights as a founding political-legal act of the English Parliamentary Monarchy and of the modern notion of a Constitution, in its substantial sense. In the historical context of the American and French liberal revolutions, Western constitutionalism – initiated in England – was established, expanded and strengthened as a legal paradigm that would serve as a basis for deconstructing the old bases of legitimation of public and private powers in various places of the world14. From then on, constitutionalism and political-legal internationalism began a process of co-legitimation that, over the next two centuries, permeated the tensions between vertical and horizontal power relations in national and international societies. 12

Free translation: “Article 2. The goal of any political association is the conservation of the natural and imprescriptible rights of Man. These rights are liberty, property, security, and resistance to oppression. Free translation: Article 17. Property being an inviolable and sacred right, no one can be deprived of it, except when public necessity, legally established, obviously requires it, and under the condition of fair and prior compensation. OLIVEIRA, Márcio Luís de. A Constituição juridicamente adequada. 2nd ed. Belo Horizonte: D´Plácido, 2016, second chapter.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

3. INTERNATIONAL DECLARATIONS OF HUMAN RIGHTS: PROPERTY AS A HUMAN RIGHT More than a century and a half after the Age of Liberal Revolutions, and the notion of fundamental rights and guarantees already consolidated as legal expressions of the immanent dignity of individual and collective identity, the horrors of World War II brought to the fore the permanent need for vigilance against arbitrariness. Thus, and without going into the historical issues that preceded it, the newly established United Nations Organization (1945), through its General Assembly, adopted and proclaimed the Universal Declaration of Human Rights (the “UN Declaration”), on December 10, 194815. Regarding property as a human right, Article XVII of the Declaration states that Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

The UN Declaration, although influenced by historical documents that preceded it and that were mentioned earlier, is based on a express legal recognition of the dignity (an immanent and self-referenced value) of the human person and, consequently, on the human rights that result thereof (Preamble and article 1 of the Declaration). Under this conception, individual and collective property is ascertained as a human right, which makes the Declaration an important legal framework of collective rights. Since its utterance, not only is property seen as part of the identity of the titleholder as well as of the communal identity that holds a communitarian asset. Communal property gains singular importance from the perspective of the recognition and protection of micronational community identities that have lived, for generations, in certain specific 15

United Nations – UN. United Nations Human Rights. Office of the High Commissioner. Available at: <https://www.un.org/en/universal-declaration-human-rights/index.html>. Accessed on 2/3/2020.

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locations. The experiences of transpersonal and intergenerational community lives in certain regions of state or interstate territories constitute very peculiar local identities, the survival of which requires the legal support for the protection of communal title over such territories and the entire collection of legal assets thereof. Diverse native peoples (or original peoples) and others that have established themselves, for generations, as communal identity clusters in various locations on all continents are in danger of having their identities destroyed when the locations and resources available therein (under communal title) are exposed to invasion and exploitation by private actors or as a consequence of arbitrary acts by governments. Community micro-identities – as expressions of a collective lifestyle – are dependent on access and transpersonal and intergenerational use of natural and cultural assets existing in the locations where they were established. The illegitimate invasion, occupation or exploitation of these sites and their available assets by public or private agents external to the communities are factors that violate the transpersonal and intergenerational collective identities, since they expel or expropriate communal properties, which are, in essence, the unveiling of community identities. As already mentioned, individual property, at its core, is an expression of part of the person’s identity. For this reason, property is raised to the qualification of fundamental right (Constitutional Law) or human rights (International Law) not by the attribute of belonging to an asset, but as the unfolding of the needs, potentialities and aspirations of a person in the process of an unveiling subjectivity. Therefore, communal property is also an expression of part of communitarian identity of a social group as a process of unveiling its collective lifestyle, constituted and updated in transpersonal and intergenerational relationships under historical and functional connections with the entire acquis of communal property. It was from this understanding – property as a fundamental right and as a human right since property unveils part of an individual or a collective identity – that the 1948 UN Declaration was followed by – for the same purpose of recognition and guarantee of rights – other legislation under the Constitutional and global or regional International Laws of several States.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

For the purposes of this work, the 1948 American Declaration of the Rights and Duties of Man (the “American Declaration”) and the American Convention shall be duly highlighted. The American Declaration was approved during the holding of the IX American International Conference, held in Bogotá, Colombia, in April 1948, which gave rise to the Organization of American States - OAS. Historically, the American Declaration preceded, by months, the UN Declaration16. The American Declaration, in Article XXIII, provides, among others, for property as a human right, in the following terms: ARTICLE XXIII Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.

As the first Declaration of Human Rights since the French Revolution, the wording of the 1948 American Declaration restricts property as a human right to the private sector. However, it already makes clear the dignifying sense of property as a human right because it is an expression of part of a human person’s identity, needs and aspirations. That American Declaration was succeeded and refined by the American Convention, signed at the Inter-American Specialized Conference on Human Rights, in San José, Costa Rica, on November 22, 196917. Regarding property as a human right, the American Convention attests: Article 21. Right to Property: 1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 16

Organization of American States – OAS; Inter-American Commission on Human Rights – IACHR. Available at: <http://www.oas.org/en/iachr/mandate/Basics/declaration.asp>. Access on 2/2/2020. Organization of American States – OAS; Inter-American Commission on Human Rights – IACHR. Available at: <http://www.oas.org/dil/treaties_B-32_American_ Convention_on_Human_Rights.htm>. Accessed on 2/3/2020.

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2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law.

The American Convention, in turn, announces social functionality as an eventual limit to property rights. Thus, in the context of recognizing the coexistence of collective rights and individual rights, the American Convention confers socioeconomic prerogatives to communal property, pursuant to the terms stated herein. The following chapters will deal with the communal dimension of property in relation to the peoples of the Amazon.

2 Indigenous Peoples’ Rights to Traditional Lands Lorena Machado Rogedo Bastianetto1

Although indigenous populations are still extremely needy and marginalized in relation to decision-making processes in the domestic and international arenas2, International Law or jus gentium3 had as its the forerunner the theologian Francisco de 1

Teacher at Escola Superior Dom Helder Câmara PhD student in Procedural Law at PUC/MG. Master’s in Environmental and Sustainable Development Law at ESDHC. Undergraduate degree in law from Universidade Federal de Minas Gerais. Post-Grad Degree in Procedural Law at PUC/MG. Further training in European and German Law / Ludwig Maximilans-Universität / Munich / Germany and Post-graduate Degree in Business Management / Fundação Getúlio Vargas / IBS. Researcher in Environmental Regulation of Economic Activity and in Strategic Research on Pan-Amazonia by Escola Superior Dom Helder Câmara. Member of the Brazilian Institute of Procedural Law and of the Civil Procedure Commission of the Bar Association of Minas Gerais. Currently a lawyer. See the Report of Special Rapporteur on the Rights of Indigenous Peoples/United Nations/2019: “The Special Rapporteur reiterates that the right to self-determination of indigenous peoples is, fundamentally, a human right. Its realization is indispensable for indigenous peoples to enjoy all the collective and individual human rights pertaining to them. The right has an external and an internal dimension, expressed through the exercise of control over their lives and through the participation in all decision-making that may affect them, in accordance with their own cultural patterns and structures of authority”. (UNITED NATIONS. The Report of Special Rapporteur on the Rights of Indigenous Peoples/United Nations/2019, 17 July 2019. Available at: <https:// undocs.org/A/74/149>. Access on: Jan 1, 2020). Cf. Cançado Trindade, “General principles of law encompass the principles of International Law, and express the opinio juris communis of the international community, in the construction of a new jus gentium, the International Law for humankind”. (CANÇADO TRINDADE, Antônio Augusto. International Law for Humankind: Towards a New Jus Gentium. General Course on Public International Law from

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Vitória4, whose greatest consternations in the age of discoveries were civil capacity of indigenous peoples and theoretical criticism of the ubiquitous Christian empire. In a lecture on what currently qualifies as the foundations of International Law, in accordance with objectivism, Vitória5 presents an innovative theory on the jus gentium, mitigating state sovereignty in light of the socalled totus orbis, an organic and aggregating principle of peoples, based on the bonds of solidarity amongst them for the purpose of establishing the common good, correcting injustices and social malformations6. Vitória refuted the theory that the maximum pontiff could exercise the power of attributing uncovered lands to Catholic kings, as exposed in the papal bull Inter Caetera7and highlighted

Hague Academy of International Law, 2005, Leiden/Boston: Martinus Nijhoff Publishers, 2006. v. 316). See Van Der Kroef, “The sixteen century Dominican friar, Francisco de Vitória, has in recent years been the subject of a variety of investigations which have established him as one of the founders of the modern law of nations, ranking in eminence with Grotius and Suárez, who, systematizing and coordinating Vitória’s principles, stablished what one student has called “the Spanish school of International Law”. (VAN DER VAN DER KROEF, Justus M. Francisco de Vitoria and the Nature of Colonial Policies. The Catholic Historical Review, v. 35, n. 2, p. 129-162, July 1949. Available at: <http:// www.jstor.org/stable/25015004>. Access on: Feb 3, 2020). In this sense, please see: NASSER, Salem Hikmat. Jus Cogens: ainda esse desconhecido. Revista Direito GV 2, v. 1, n. 2, p. 161-178, jun./dec. 2005. Available at: <http:// bibliotecadigital.fgv.br/ojs/index.php/revdireitogv/article/view/35233/34033>. Access on: Jan 1, 2020. MACEDO, Paulo Emílio Vauthier Borges de. O Mito de Francisco de Vitória: defensor dos direitos dos índios ou patriota espanhol?. Revista de Direito Internacional, Brasília, v. 9, n. 1, p. 1-13, jan./jun. 2012. Available at: <https://www.publicacoesacademicas.uniceub.br/rdi >. Access on: Jan 1, 2020. See. Requerimiento, “A este san Pedro obedecieron y tomaron por señor, rey y superior del universo los que en aquel tiempo vivían, y así mismo han tenido a todos los otros que después de él fueron elegidos al pontificado, y así se ha continuado hasta ahora, y continuará hasta que el mundo se acabe. Uno de los Pontífices pasados que en lugar de éste sucedió en aquella dignidad y silla que he dicho, como señor del mundo hizo donación de estas islas y tierra firme del mar Océano a los dichos Rey y Reina y sus sucesores en estos reinos, con todo lo que en ella hay, según se contiene en ciertas escrituras que sobre ello pasaron, según se ha dicho, que podréis ver si quisieseis”. (LÓPEZ DE PALACIOS, Juán. Requerimiento. Available at: <https://web.archive.org/web/20070501102909/> http://www.ciudadseva.com/textos/otros/requeri.htm>. Access on: Jan 1, 2019).

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

by the work Requerimiento8, by Palacios Rubios, which should be read by the conquerors to the American Indian tribes loudly as a formality to their submission to Spanish laws. According to the teachings of Macedo,9 to Victoria, God had distributed his authority to all peoples, not just Christians. The Indians could also own land and exercise sovereignty since they were in “peaceful control of their public and private affairs. Therefore (unless another obstacle to the contrary), they must be considered true masters and, under these circumstances, they cannot be stripped of their possessions”.

Therefore, Vitória, at the same time that he mitigates the voluntarism of States, constructing international law as a legal system that is not insubstantial to the individual will of nations, does so in the defense of the natural rights of the Indians to the possession, ownership and domain of their lands, placing all peoples and nations.as subjects of the jus gentium – international law. This development of international law, founded on superior and independent norms from the will of States, is constitutionally supported in Brazil, through the recognition of 8

See The Bull Inter Caetera ( Alexander VI, May 4, 1493), “And, in order that you may enter upon so great an undertaking with greater readiness and heartiness endowed with the benefit of our apostolic favor, we, of our own accord, not at your instance nor the request of anyone else in your regard, but of our own sole largess and certain knowledge and out of the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth, do by tenor of these presents, should any of said islands have been found by your envoys and captains, give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainland found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole, namely the south, no matter whether the said mainland and islands are found and to be found in the direction of India or towards any other quarter, the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde.” (THE BULL Inter Caetera (Alexander VI), May 4, 1493. Available at: <http://www.nativeweb.org/pages/legal/ indig-inter-caetera.html>. Access on: Jan 1, 2020). MACEDO, op. cit., p. 3.

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a permanent consortium possession of traditional indigenous lands as an original or congenital right of these populations10. In the international arena, Convention 169 of the International Labor Organization – ILO on Indigenous and Tribal Peoples of 1989 (the “ILO Convention No. 169”), ratified by Brazil in 200411, also reaffirms the constitutional commitment to respect the special relationship of the Indians with the lands they occupy, as a means to enable the full expression of their dignity, culture and beliefs12. The ILO Convention No. 169 repeatedly explains the essentiality of the participation of indigenous people in the decision-making processes of economic and environmental policies that affect them, especially those dealing with interventions in their traditional lands13. This trend of linking human rights and development processes has been increasingly recognized by countries, as well as by international organizations. In agreement with Quane, this growing trend represents a radical shift from the position that prevailed up until a decade or so ago when human rights and development were generally regarded as two separate, 10

See art. 231 of the 1988 Constitution. (BRASIL. Constituição (1988). Constituição da República Federativa do Brasil. Available at: <https://www.gov.br/planalto/pt-br>. Access on: Jan 1, 2020). See (BRASIL. Decree No. 5,051, of April 19, 2004. Enacts Convention No. 169 of the International Labor Organization – ILO on Indigenous and Tribal Peoples. Diário Oficial da União, Brasília, Apr. 20, 2004. Available at: <https://www.gov.br/planalto/ pt-br>. Access on: Jan 1, 2020. See. arts. 13 through 19 (BRASIL. Convenção No. 169 da OIT sobre povos indígenas e tribais. Available at: <https://www.gov.br/planalto/pt-br>. Access on: Jan 1, 2020). Cf. ILO Convention 169, “Article 6 1. In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them; (c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. 2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures. (BRASIL. Convenção No. 169 da OIT sobre povos indígenas e tribais, op. cit.).

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

though parallel, processes. This meant that states did not tend to integrate human rights considerations into their development programs and were largely unaccountable for the human rights implications of these programs14.

However, there are heated debates about the breadth of the indigenism in Brazil15 when compared with national interest, as 14

See QUANE, Helen. The Rights of Indigenous Peoples and the Development Process. Human Rights Quarterly, v. 27, n. 2, p. 652-682, May 2005, p. 653. Available at: <www.jstor.org/stable/20069800>. Access on: Feb 4, 2020. See Motion to Clarify on a Statement of Claims 3.338/RO: “Then being declared the constitutionality of the continuous demarcation of the Raposa Serra do Sol Indigenous Land and stated the constitutionality of the administrative-demarcation procedure, pursuant to the following institutional safeguards approved by a majority: a) the enjoyment of the riches of the soil, rivers and existing lakes in indigenous lands (§ 2 of Article 231 of the Federal Constitution) it does not override the relevant public interest of the Union, as resigned from the Constitution and in the form of a complementary law (§ 6 of Article 231 of the Constitution); b) the usufruct of the Indians does not include the commercial exploitation of water resources and energy potentials, which will always depend (such exploitation) on authorization from the National Congress; c) the usufruct of the Indians does not reach the research and mining of mineral wealth, which will always depend on authorization from the National Congress, ensuring their participation in the mining results, all in accordance with the Constitution and the law; d) the usufruct of the Indians does not include panning or sparking, and, if applicable, mining mines must be obtained; e) the enjoyment of the Indians does not override the interests of the national defense policy; the installation of bases, units and military posts and other military interventions, the strategic expansion of the road network, the exploration of energy alternatives of a strategic nature and the safeguarding of wealth of an equally strategic nature, at the discretion of Organs competent bodies (Ministry of Defense, heard the National Defense Council), will be implemented independently of consultation with the indigenous communities involved, as well as with the National Indian Foundation (FUNAI); f) the performance of the Armed Forces and the Federal Police in the indigenous area, within the scope of their respective duties, is ensured and will take place regardless of consultation with the respective indigenous communities, or FUNAI; g) the enjoyment of the Indians does not prevent the installation, by the Federal Government, of public equipment, communication networks, roads and transport routes, in addition to the constructions necessary for the provision of public services by the Federal Government, especially those of health and education…” (BRASIL. Supremo Tribunal Federal. (Grand Chamber). Motion for Clarification on a Statement of Claims 3.338/RORAIMA. Motion for Clarification. Actio popularis. Demarcation of the Raposa Serra do Sol indigenous land. Rapporteur: Min. Roberto Barroso. October 23, 2013, Diário de Justiça Eletrônico, Brasília, DF, Feb. 3, 2014. Available at: <http://portal.stf.jus.br/>. Access on: Jan 1, 2020).

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well as the quality of procedural participation of tribes when influencing the normative decision making of the Brazilian state16. The political-legal implications arising from a comprehensive understanding of indigenous rights to traditional lands, as well as the direct influence of Indians in the regulatory process of countries, demand an understanding of development under a new meaning as per human rights, intrinsically connected to the principle of peoples’ self-determination. The later principle was included in the express list of peremptory norms of international law by the 2019 report of the United Nations International Law Commission – ILC17. 16

See Motion for Clarification on a Statement of Claims 3,388/RO: “Consultation with indigenous people is a central element of Convention 169, of the International Labor Organization. This convention is part of Brazilian domestic laws, having been internalized by Legislative Decree No. 143/2002 and by Presidential Decree No. 5,051/2004, and was considered in several passages of the decision subject to a Motion for Clarification. But this right to participate is not absolute – like no other right. As such, certain interests also protected by the Constitution may exception or limit, under certain conditions, the prior consultation procedure. National defense is an academic example of what has just been said. If strategic issues justify the application of confidentiality to public interest data (CF / 88, art. 5o, XXXIII), it is natural that they can do without prior notification to whomever – including indigenous communities. This subject was also addressed by Justice Menezes Direito, with express reference to the Convention (pp. 408)”: “In this way, being the indigenous land located on a border strip, which is the case under examination, the usufruct of the Indians over the land will be subject to restrictions whenever the national defense public interest is at stake. The installation of military bases and other military interventions at the discretion of the competent bodies, contrary to what appears to be extracted from the Declaration of the Rights of Indigenous Peoples and ILO Convention No. 169, will be implemented regardless of prior consultation with the indigenous communities involved or FUNAI. The same should happen when the national defense interest coincides with the expansion of the road network or energy alternatives and the safeguarding of strategic wealth, according to a favorable statement by the National Defense Council” (BRAZIL, Motion on a Statement of Claims 3.338/RORAIMA, op. cit.). See Fourth Report on Peremptory Norms of general International Law (jus cogens) by Dire Tladi, Special Rapporteur/2019: “The right of self-determination is another norm previously identified by the Commission as a norm of jus cogens. The right to self-determination is a classical norm of jus cogens whose peremptory status is virtually universally accepted… Consisted with the general approach adopted in the present report, the discussion above has not attempted to solve the more complex problem of what constitutes the right of self-determination…” (GENEVA. United Nations. General Assembly. International Law Commission/UN, 29 April-7 June and 8 July–9 August 2019, p. 48 ss. Available at: <https://legal.un.org/docs/?symbol=A/CN.4/727>. Access on: Jan 1, 2020).

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

In accordance with ILO Convention No. 169, it is the right of indigenous peoples to choose their own priorities with regard to the development process, insofar as it affects their lives, beliefs, institutions and spiritual well-being, as well as the lands they occupy or use in any way, and to control, as far as possible, their own economic, social and cultural development. In addition, these peoples must participate in the formulation, application and evaluation of national and regional development plans and programs that are likely to affect them directly18.

However, the ILO Convention No. 169 has had few ratifications – 23 to date19 – as associated with the express mention in the treaty that indigenous peoples would not be equated with the meaning of “peoples”20 in line with the rights recognized by international law – facts that prevented its global impact on indigenous economic policies, especially those related to their lands. Furthermore, these entitlements deriving from the right to self-determination still present themselves with little demarcation, both under Brazilian and international law, especially with respect to the weighting of this collective nature peremptory norm – aimed at the indigenous population – inserted in the state territorial structure that unifies the smaller communities in an enlarged society21, called “people”22. 18

See. art. 7 (1) of Convention No. 169 / ILO. (BRASIL. Convenção No. 169 da OIT sobre povos indígenas e tribais, op. cit.). See INTERNATIONAL LABOUR ORGANIZATION. Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169). Date of entry into force: 05 Sep. 1991. Available at: <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11 300:0::NO:11300:P11300_INSTRUMENT_ID:312314:NO>. Access on: Jan 1, 2020. See Art. 1, 3: “3. The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law”. Cf. INTERNATIONAL LABOUR ORGANIZATION. Ratifications of C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169), op. cit. The difference between society and community is based, primarily, on the fact that communities are formed by spontaneous and organic ties, while societies are formed voluntarily by legal bonds. In this sense, please check: MELLO, Celso de Albuquerque. Curso de Direito Internacional Público. 11th ed. Rio de Janeiro: Renovar, 1997. v.1, p. 41 ss. See opinion of the Rapporteur Luis Roberto Barroso: “Finally, as noted by Justice Gilmar Mendes, the relevance of consultation with indigenous communities‘ does not

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The 2019 report by the International Law Commission -ILC on peremptory norms states itself that the inclusion of the principle of self-determination of peoples as a jus cogens is not intended for complex discussions of delimitation and scope of this principle23. It is important to emphasize, however, that the increasing regionalization and functionalization of International Law, as well as the integration of domestic legal systems to International Law24, has brought an intense focus to the indigenous topic, especially since the 1970s when specialized studies on the discriminatory practices against indigenous populations started to be carried out by the Sub-Commission for the Prevention of Discrimination and Protection of Minorities25, which belongs to the United Nations. The creation of a working group on indigenous populations – Working Group on Indigenous Populations (WGIP) – at the United Nations modified the process of participation and interaction in the agency’s research and deliberations, allowing organizations representing Indians to be consulted at and attend to group sessions26. Since then, with the situation of little applicability of the ILO Convention No. 169, efforts have been converged so that an international document of a global nature mean that decisions formally depend on the acceptance of indigenous communities as a requirement for their validity ’(pp. 799). Indians must be heard and their interests must be honestly and seriously considered. It does not follow, however, that the decision taken, in the end, can only be valid if it can count with their acquiescence. In a democracy, disagreements are normal and expected. No individual or social group has the subjective right to determine the State’s decision alone. It is not that kind of prerogative that the Constitution attributed to the Indians”. (Brazil, Motion for Clarification on a Statement of Claims 3.338/RORAIMA, op. cit.). 23 In this regard, see footnote 15 of this paper. 24 See CANÇADO TRINDADE, op. cit. 25 See UNITED NATIONS. Study of the Problem of Discrimination against Indigenous Populations. Final Report (first part) submitted by the Special Rapporteur Mr. José R. Martínez Cobo, 8 September 2014. Available at: <https://www.un.org/esa/ socdev/unpfii/documents/MCS_intro_1981_en.pdf>. Access on: Jan 1, 2020. 26 See BARELLI, Mauro. The Interplay Between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime. Human Rights Quarterly, v. 32, n. 4, p. 951-979, Nov. 2010, p. 954 ss. Available at: <http://www.jstor.org/ stable/40930341>. Access on: Feb 6, 2020.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

could reverse the fragmentated picture in facing the challenges involving indigenous rights and their effectiveness. However, the process of drafting a declaration focused on the indigenous issue was not less complicated, given that there was a reaction by states regarding the significance of the congenital right to indigenous lands for the sovereignty of countries, as well as the collective nature of these rights, which would clash head-on with the then in effect structuring of the individual human rights protection system27. The United Nations Declaration on the Rights of Indigenous Peoples28 (the “UN Declaration on Indigenous Rights”), a document whose legal significance is of a soft law, was adopted in 2007, after more than two decades of deliberations29, a fact that highlights how thorny and controversial the topic of indigenous rights to its land is when state sovereignty is also at stake. The important connection between soft law and hard law30 imposes the consideration that even international documents drafted by global international system entitled “declarations” – given that it disqualifies it as a treaty and inserts it in the category of provisions without a binding nature – are fully able to contribute to the formation of customary law, including jus cogens norms originating therefrom. In addition, the existence of a declaration of rights of indigenous people in the international system starts to influence the legislation and implementation of countries’ internal economic and environmental policies, raising aspirations for a wider range of rights and their effective enforcement. Article 26 of the UN Declaration on Indigenous Rights, which deals precisely with the rights of Indians to traditional lands, is one of the most controversial in that document31. Firstly, 27 28

See Ibidem, p. 956 ss. See UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples, op. cit. The creation of the working group on indigenous populations dates to 1982. See BARELLI, op. cit., p. 954. In this sense, please see: LICHTENSTEIN, Cynthia Crawford. Hard Law v. Soft Law: Unnecessary Dichotomy?. The International Lawyer, v. 35, n. 4, p. 1433-1441, Winter 2001. Available at: < https://www.jstor.org/stable/40707627?seq=1>. Access on: Feb 6, 2010. See Davis, “Articles 24-30 deal with lands, territories and resources. This is the most controversial section of the Declaration. Article 26 states that Indigenous peoples have

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because the recognition of the right to self-determination for a smaller “sub-state” community32 represented the pioneering spirit of the UN Declaration on Indigenous Rights in the context of international protection of human rights, a fact that caused, during the deliberations to produce the document, many consternations on the part of states in relation to the applicability of the indigenous peoples’ secession right33 - and their traditionally occupied lands – in relation to the territories of the countries in which they are located. Moreover, the implications that the principle of self-determination of indigenous communities promote in accordance with the extensive rights to traditional lands expressed in the declaration – of possession, use, enjoyment, development and control of resources and lands originally inhabited by them - come into conflict with the decisive sovereignty of the states34 in the

the right to own, develop, control and use lands and territories. This encompasses rights to the total environment of such lands, therefore comprising air, waters, coastal seas, sea-ice, flora and fauna and other resources which Indigenous people have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land- tenure systems and institutions for the development and management of resources, and the right to effective measures by states to prevent any interference with, alienation of or encroachment upon these rights”. (DAVIS, Megan. The United Nations Declaration on the Rights of Indigenous Peoples. Australian Indigenous Law Review, v. 11, n. 3, p. 55-64, 2007, p. 60. Available at: <http://www.jstor.org/stable/26423064>. Access on: Feb 6, 2010). Cf. art. 4 of: UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples, op. cit. Cf. art. 46. 1: “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”. (UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples, op. cit.). See Article 28 1. “Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent”. This provision shall be interpreted in accordance with art. 46 2.: “In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

standardization and regulation of the referred areas in accordance with public interest, which would include the consideration of multiple interests of the people, and not only of the indigenous peoples. Thus, it is important to highlight that the successful conclusion of the UN Declaration on Indigenous Rights, whose deliberations lasted for about 25 years, was also the result of the commitment of regional systems on the protection of human rights, especially the Inter-American system. The adoption of the American International Charter of Social Guarantees, in 1948, was already addressing this subject matter35, which places the international organization as a precursor in facing the indigenous dilemmas in the international arena36. From the 1970s, according to Barelli, parallel engaging initiatives among the international regional and global systems in the agenda of indigenous communities were decisive for the establishment of parameters for the recognition of indigenous rights, especially those dedicated to the congenital relationship with their traditional lands37. For this reason, the adoption of as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society”. (UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples, op. cit.). 35 Art. 39 of the 1948 American International Convention on Social Guarantees: “ In countries where the problem of an indigenous population exists, the necessary measures shall be adopted to give protection and assistance to the Indians, safeguarding their life, liberty and property, preventing their extermination, shielding them from oppression and exploitation, protecting them from want and furnishing them an adequate education”. See CONFERÊNCIAS Internacionais Americanas: Segundo Suplemento, 1945‐1954. Washington, D.C; Unión Panamericana; 1956. 451p. 36 See BARELLI, op. cit., p. 962 ss. 37 See Kreimer, “In 1970, for example, the IACHR ruled upon the obligation of the Colombian state to defend the land of the Guahibo Indians in that country against external interference. Both the State, in its observations, and the Commission, in establishing its competence in the case, referred to violations of the rights of the communities by private and state intruders. In 1973, the Commission admitted a case involving the Aches in Paraguay, in which the petitioners alleged that private parties and state agents were responsible for attacks and forced malnutrition against the Aches people, as well as attempts to enslave and eradicate the community. In its admissibility decision, the Commission addressed both the rights of

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the American Declaration on the Rights of Indigenous Peoples in 201638 (the American Declaration on Indigenous Rights), after almost 10 years of the adoption of the UN Declaration on Indigenous Rights and after decades of both systems addressing the topic, represented the consolidation and particularization of the indigenous context in the Americas. The UN Declaration on Indigenous Rights enshrined the indigenous communities substantive right to their lands, based on tradition39 and safeguarded the collective right and accountability

individual Ache people, and the rights of a clearly collective nature, violations which included genocide, the disowning of collective land rights, and the destruction of the language, traditional music, and religious practices of the Ache people. Additionally, in a landmark 1985 declaration in the Yanomami Case involving the Mato Grosso and Roraima federal states of Brazil, the Commission recommended that the Brazilian state delimit and demarcate the Yanomami Park for the Yanomami people. Moreover, the Commission found violations of the rights to life, liberty, and personal security, residence and movement, and health and well-being, in respect of the victims in the case, as enshrined in the American Declaration on the Rights and Duties of Man, and recommended, inter alia, that programs of education, medical protection and social integration be carried out for the t for the Yanomami people, in consultation with the indigenous populations affected.” (KREIMER, Osvaldo. Collective Rights of Indigenous Peoples in the Inter-American Human Rights System, Organization of American States. Proceedings of the Annual Meeting (American Society of International Law), v. 94, p. 315-316, Apr. 2000, p. 315. Available at: <https://www.jstor.org/ stable/25659431>. Access on: Feb 8, 2020. See Barelli, in comparing the most important initiatives between the regional and global systems, “In 1990 the Inter-American Commission created the Office of the Special Rapporteur on the Rights of Indigenous Peoples. A decade later, a similar initiative was taken by the UN Commission of Human Rights, which appointed a UN Special Rapporteur on the Fundamental Rights and Freedoms of Indigenous People. More importantly, in 1997 the Inter-American Commission would vote and approve the text of the Proposed American Declaration on the Rights of Indigenous Peoples. As discussed in Section II, a few years earlier in 1994, the WGIP had adopted the text of the UN draft declaration. Finally, following the example set by the UN Commission on Human Rights, which in 1995 had created the WGDD to further discuss the content of the UN draft declaration, the OAS General Assembly established a Permanent Council Working Group in 1999 for the purpose of continuing the consideration of the text of the Proposed American Declaration”. (BARELLI, op. cit., p. 963). See ORGANIZATION OF AMERICAN STATES-OAS. General Assembly. Proceedings Volume I. AG/RES.2888 (XLVI-O/16), Santo Domingo, Dominican Republic, June 13-15, 2016. Available at: <http://www.oas.org/en/sla/docs/AG07239E03. pdf>. Access on: Jan 1, 2020. See Art. XXV 1. “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual, cultural, and material relationship with their lands, territories, and resources and to uphold their responsibilities to preserve them for themselves and

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

for the conservation of traditional indigenous lands for future generations, an essential aspect of the contemporary environmental agenda. The peremptory norm of self-determination of peoples is also expressly reaffirmed in the document, safeguarding, however, the sovereign state unity40. It is important to note that the free self-qualification of people and communities as indigenous people also presents itself as an unilateral right (direito potestativo) expressed in the UN Declaration of Indigenous Rights, given that it demonstrates the commitment to mitigate the attempts of the international legal system to conceptualize or differentiate the people and communities to which the declaration would apply41. Clearly, declarations, as international documents essential to the recognition of rights and obligations, although devoid of a binding nature, at least from a formal point of view42, do not have as their regular scope, with sophistication and differentiation, the applicability and effectiveness of the human rights prescribed therein. Its purview is to guide, encourage, instruct and warn states and the international community as a whole to the essentiality of state mechanisms and a legal structure capable of enforcing such rights, in the most agglutinated and stable way

for future generations”. (UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples, op. cit.). See Art. IV: “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the Organization of American States or the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states”. (UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples, op. cit.). See Barelli “…a 2006 resolution of the African Union (AU) Assembly of Head of State and Government, while welcoming the decision of the UN General Assembly to defer the adoption of the UNDRIP, noted that the vast majority of the peoples of Africa are indigenous to the African continent, advancing important reservations with regard to the concept`s applicability to the region”. (BARELLI, op. cit., p. 958). It is important to highlight that under the material and content aspects, the rights and obligations contained in declarations can be international customs or contribute to their formation, including peremptory norms - jus cogens. Thus, the inference that the content of declarations - documents formally without any binding force - is also devoid of obligatory nature is false.

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possible. For this reason, international declarations will always contain inaccuracies and terminological digressions that give rise to vigorous discussions about their scope and the challenges of their integration into domestic systems. At the same time, international law engages with and is permanently complemented by the legal pluralism emanating from regional and global systems - whether through soft law or hard law – which requires international documents to be understood as dependent and supplementary to each other. Thus, the main documents mentioned above, which are - ILO Convention No. 169, the UN Declaration on Indigenous Rights and the American Declaration on Indigenous Rights – form part of an integrated framework of international laws, capable of expanding the demand and effectiveness of updated and democratic political-legal projects on indigenous rights to traditional lands. REFERENCES BARELLI, Mauro. The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime. Human Rights Quarterly, v. 32, n. 4, p. 951979, Nov. 2010. Available at: http://www.jstor.org/stable/40930341>. Access on: Feb 6, 2020. (BRASIL. Constituição (1988). Constituição da República Federativa do Brasil. Available at: <http://www.planalto.gov.br>. Access on: Jan 1, 2020. (BRASIL. Convenção n.º 169 da OIT sobre povos indígenas e tribais. Available at: <https:// www.planalto.gov.br>. Access on: Jan 1, 2020. (BRASIL. Decree No. 5,051, of April 19, 2004. Enacts Convention No. 169 of the International Labor Organization - ILO on Indigenous and Tribal Peoples. Diário Oficial da União, Brasília, Apr, 20 2004. Available at: <https://www.planalto.gov.br>. Access on: Jan 1, 2020. (BRASIL. Supremo Tribunal Federal. (Tribunal Pleno). Motion for Clarification on a Statement of Claims 3.338/RORAIMA. Motion for Clarification. Actio popularis. Demarcation of the Raposa Serra do Sol indigenous land. Rapporteur: Min. Roberto Barroso. October 23, 2013, Diário de Justiça Eletrônico, Brasília, DF, Feb. 3, 2014. Available at: <https://www.stf. jus.br>. Access on: Jan 1, 2020. CANÇADO TRINDADE, Antônio Augusto. International Law for Humankind: Towards a New Jus Gentium. General Course on Public International Law from Hague Academy of International Law, 2005. Leiden/Boston: Martinus Nijhoff Publishers, 2006. v. 316. CANÇADO TRINDADE, Otávio. A constitucionalização do Direito Internacional: mito ou realidade?. Revista de informação legislativa, v. 45, n, 178, p. 271-284, Apr. / Jun. 2008. Available at: <https://www12.senado.leg.br/ril/edicoes/45/178/ril_v45_n178_p271.pdf>. Access on: Jan 1, 2019. CONFERÊNCIAS Internacionais Americanas: Segundo Suplemento, 1945‐1954. Washington, D.C; Unión Panamericana; 1956. 451p.

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DAVIS, Megan. The United Nations Declaration on the Rights of Indigenous Peoples. Australian Indigenous Law Review, v. 11, n. 3, p. 55-64, 2007. Available at: <http://www.jstor.org/ stable/26423064>. Access on: Feb 6, 2010. GENEVA. United Nations. General Assembly. International Law Commission/UN, 29 April-7 June and 8 July–9 August 2019. Available at: <https://legal.un.org/docs/?symbol=A/ CN.4/727>. Access on: Jan 1, 2020. INTERNATIONAL LABOUR ORGANIZATION. C169 - Indigenous and Tribal Peoples Convention, 1989 (No 169). Available at: <https://www.ilo.org/dyn/normlex/en/f?p=NORM LEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312314:NO>. Access on: Jan 1, 2020. INTERNATIONAL LABOUR ORGANIZATION. Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169). Date of entry into force: 05 Sep 1991. Available at: <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314:NO>. Access on: Jan 1, 2020. KREIMER, Osvaldo. Collective Rights of Indigenous Peoples in the Inter-American Human Rights System, Organization of American States. Proceedings of the Annual Meeting (American Society of International Law), v. 94, p. 315-316, Apr. 2000. Available at: <http://www. jstor.org/stable/25659431>. Access on: Feb 8, 2020. LICHTENSTEIN, Cynthia Crawford. Hard Law v. Soft Law: Unnecessary Dichotomy?. The International Lawyer, v. 35, n. 4, p. 1433-1441, Winter 2001. Available at: <http://www.jstor. org/stable/40707627>. Access on: Feb 6, 2010. LÓPEZ DE PALACIOS, Juán. Requerimiento. Available at: <https://web.archive.org/ web/20070501102909/http://www.ciudadseva.com/textos/otros/requeri.htm>. Access on: Jan 1, 2020. MACEDO, Paulo Emílio Vauthier Borges de. O Mito de Francisco de Vitória: defensor dos direitos dos índios ou patriota espanhol? Revista de Direito Internacional, Brasília, v. 9, n. 1, p. 1-13, jan./jun. 2012. Available at: <https://www.publicacoesacademicas.uniceub.br/rdi>. Access on: Jan 1, 2020. MELLO, Celso de Albuquerque. Curso de Direito Internacional Público. 11th. ed. Rio de Janeiro: Renovar, 1997. V 1. NASSER, Salem Hikmat. Jus Cogens ainda esse desconhecido. Revista Direito GV 2, v. 1, n. 2, p. 161-178, jun./dec. 2005. Available at: http://bibliotecadigital.fgv.br/ojs/index.php/revdireitogv/article/view/35233/34033. Access on: Jan 1, 2020. QUANE, Helen. The Rights of Indigenous Peoples and the Development Process. Human Rights Quarterly, v. 27, n. 2, p. 652-682, May 2005. Available at: <http://www.jstor.org/ stable/20069800>. Access on: Feb 4, 2020. THE BULL Inter Caetera (Alexander VI), May 4, 1493. Available at: <http://www.nativeweb. org/pages/legal/indig-inter-caetera.html>. Access on: Jan 1, 2020. UNITED NATIONS. The Report of Special Rapporteur on the Rights of Indigenous Peoples/United Nations/2019, 17 July 2019. Available at: <https://undocs.org/A/74/149>. Access on: Jan 1, 2020. UNITED NATIONS. Study of the Problem of Discrimination against Indigenous Populations. Final Report (first part) submitted by the Special Rapporteur Mr. José R. Martínez Cobo, 8 September 2014. Available at: <https://www.un.org/esa/socdev/unpfii/documents/ MCS_intro_1981_en.pdf>. Access on Jan 1, 2020. UNITED NATIONS. United Nations Declaration on the Rights of Indigenous Peoples. Resolution adopted by the General Assembly on 13 September 2007. Available at: <https://

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www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/ UNDRIP_E_web.pdf>. Access on: Jan 1, 2020. ORGANIZATION OF AMERICAN STATES-OAS. General Assembly. Proceedings Volume I. AG/RES.2888 (XLVI-O/16), Santo Domingo, Dominican Republic, June 13-15, 2016. Available at: <http://www.oas.org/en/sla/docs/AG07239E03.pdf>. Access on: Jan 1, 2020. VAN DER KROEF, Justus M. Francisco de Vitoria and the Nature of Colonial Policies. The Catholic Historical Review, v. 35, n. 2, p. 129-162, July 1949. Available at: <http://www.jstor. org/stable/25015004>. Access on: Feb 3, 2020.

3 Indigenous Communal Property Right: The Contribution of the Inter-American Court of Human Rights André de Paiva Toledo1

Despite colonization, indigenous peoples have survived as communities with a strong identity. Such survival relates to a specific way of existence, developed because of their special relationship with traditional lands, in the sense that land possession is focused on the ethnic group as such2. This special relationship with the territory distinguishes indigenous peoples from other communities or groups. Its common ground is a quest for the preservation and nourishing of a culture tied to their ancestral lands. Among indigenous peoples, there is a tradition concerning communal ownership of land. Those communities subsist because of family farming and collective agriculture, fruit and medicinal plants harvesting, hunting and fishing. Besides that, the traditional 1

PhD in Law from the Panthéon-Assas Paris II University, France. Professor of Public International Law at Escola Superior Dom Helder Cãmara. Coordinator of the Research Group on International Natural Resources Law (DIRNAT). Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 135; Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 174; Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas), párr. 101; Corte Interamericana de Direitos Humanos, Caso do Povo Indígena Xucuru e seus Membros vs. Brasil, Sentença de 5 de fevereiro de 2018 (Exceções Preliminares, Mérito, Reparações e Custas), par. 115; Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 149.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

territories are the basis for the development of their cultural identity, which is defined by their distinctive cultural, linguistic, and religious bonds. For indigenous peoples, their special relationship with nature is a concrete and spiritual element which they must fully enjoy, even to preserve their cultural legacy and to transmit it to future generations3. This has constantly been recreated by them throughout history4. The importance of traditional territories to the survival of indigenous communities implies that their members should not be prevented by factors beyond their control from carrying out those traditional activities5. 3.1. THE RIGHT TO INDIGENOUS COMMUNAL PROPERTY IN ARTICLE 21 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS Despite dealing with property rights lato sensu, it appears that the American Convention”) makes no express the right to communal property, nor does it establish prerogatives for indigenous peoples, that make up a significant portion of the population of OAS members. The identification of the communal property right has been done through the consolidation of the jurisprudence of the Court”, when it judged the merits of international disputes based on Article 21 of the American Convention, whose ultimate beneficial parties are ancestral communities. In terms of the domestic civil rights, property is seen as an individual right defined by the exclusive use and enjoyment, the power to sell and have it destroyed by its owner. In this regard, the Court has asserted that the term “property” includes any right which may be part of a person’s estate. This concept includes all 3

Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 149. Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 154. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 113.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

movables and immovables, corporeal and incorporeal elements and any other intangible objects capable of possessing value6. In its analysis of Article 21 of the American Convention, the Court takes into account, in light of the general rules of interpretation set forth in Article 29 of the American Convention, the special meaning of communal property of ancestral lands, including the preservation of their cultural identity, as well as the steps that a State has taken to make this right fully effective7. Yet, the term “property” contained in Article 21 has an autonomous meaning, for which reason it cannot be made equivalent to the meaning ascribed to it in domestic law8. Based on this, the Court has indicated that the concepts of property and possession, in the context of indigenous peoples, must have a new meaning9. The property right must be reconceived as an assemblage of all things defined as a cultural heritage. Thus, the Court has considered that the close relationship of indigenous peoples to their traditional lands, as well as the intangible elements resulting from natural resources found there, must be safeguarded under Article 21 of the American Convention10. The international community, notably the State parties to the American Convention, cannot disregard certain versions of use and enjoyment of property, springing from the springing from 6

Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 124, 137; Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 144. Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations), at par. 145. Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 146; Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas), párr. 100. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 87. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 85.

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the culture, uses, customs, and beliefs each indigenous people. By restricting itself to an individualistic conception of property, which has been surpassed since the second half of the 19th century, it would be tantamount to saying that there is only one way to use and dispose of assets, which would make it impossible to guarantee the quality of life of much of humanity11. According to the jurisprudence of the Court, the historical occupation of a real estate by the members of indigenous peoples reflects a rule of customary law, which, therefore, must be respected by States as property rights protected by Article 21 of the American Convention. The remarkably close connections of indigenous peoples with their lands must be recognized by States as the fundamental basis of their spiritual life, group integrity and economic survival. They have the right to live freely in their own territory, what is seen by the Court as a dimension of the property right. Members of different indigenous peoples can perform migratory movements from one place to another within the same territorial basis. In reason of that, it is possible that there are overlaps of communal lands claimed by different indigenous peoples. It means that members of different communities can allege rights over the same land. Since the traditional land possession is linked to a historical continuity, the communities not necessarily occupy a single place throughout centuries. It is the case, for example, of the Mayagna (Sumo) Awas Tingni members who share, over time, lands with other communities. These indigenous members have a communal property right to the lands they currently occupy to the detriment of the rights of other indigenous peoples. The concept of communal property can consist of coownership, according to the customs of different indigenous peoples, what 11

Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29, 2006 (Merits, Reparations and Costs), at par. 120; Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), par. 111; Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, Judgment of November 25, 2015 (Merits, Reparations and Costs), at par. 129.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

differentiates the meaning of this right in a context of individual appropriation of land. In its judgments, the Court has stated that Article 21 of the American Convention protects the right to property in a sense which includes the rights of members of indigenous communities within the framework of communal property12. In accordance to this, the precise boundaries of an indigenous territory may only be determined after due consultation with neighboring peoples13. However, in many cases, the Court notes that the limits of the indigenous territory, on which the communal property right exists, have not been effectively delimited and demarcated by a State. So, it is important to analyze a State obligation to recognize indigenous territory since communal property rights are based exclusively on traditional patterns of use and occupation of ancestral lands. 3.2. STATE OBLIGATION TO EFFECTIVELY RECOGNIZE INDIGENOUS COMMUNAL PROPERTY RIGHT IN THE FACE OF PRIVATE INDIVIDUAL PROPERTY RIGHT The traditional possession by indigenous peoples of their territories has the same effects as a full ownership title granted by the State14. It means that those rights exist even without State actions to identify them. The lack of title does not compromise the existence of the right to communal property since the ancestral communities had an over-comprehensive relationship with their traditional lands long before the formation of the State itself. 12

Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 148. Inter-American Court of Human Rights, Case of the Moiwana Community v. Suriname, Judgment of June 15, 2005 (Preliminary Objections, Merits, Reparations and Costs), at par. 133. Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 151; Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29, 2006 (Merits, Reparations and Costs), at para. 128.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

As an unfolding of this jurisdictional positioning, it has been considered that the members of indigenous people were the legitimate owners of their traditional lands, even if they do not have possession thereof as a result of the acts of violence perpetrated against them. Traditional land ownership by indigenous peoples, even if it no longer exists, is the constitutive factor of communal property, which must prevail before the State. If it does not recognize the equality of property rights based on traditional possession of the land by indigenous people, such practice constitutes, not only violation of Article 21, but a violation of the principle of non-discrimination set forth in Article 1(1) of the American Convention15. Despite the fact that communal property rights are not created by the State, it is necessary that they are expressly declared by public authorities in view of an effective defense of those rights by the indigenous people. Indeed, the lack of delimitation and demarcation of indigenous lands by the State can create a climate of uncertainty among the members of the community16. As a result of customary practices, possession of the land should suffice to obtain official recognition of that property through its registration by State authorities17. Mere legal recognition of indigenous territories is practically meaningless if the property is not physically delimited and created by the State18. Indeed, the Court has decided that the traditional occupation grants to indigenous peoples the right to demand official recognition of their ownership. 15

Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 140. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 109. Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 151. Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 143; Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), párr. 135.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

Based on this understanding, the members of indigenous peoples have a right before the State which guarantees that States shall abstain from carrying out, until official recognition of their ownership, actions that might affect the existence or enjoyment of the right to hold the lands where they live in. According to the Court, the State violates the communal property right when it has granted concessions to third parties to use the land and resources located in an area which could correspond to an indigenous territory19. Indeed, until traditional lands have been granted to indigenous people, the State must ensure that the territory is not harmed by the actions of the State itself or of private third parties, even if done so in good faith. According to this jurisprudential understanding, State parties to the American Convention are obliged to delimit, demarcate, and grant title of the lands to indigenous peoples, before carrying out any other acts. Such obligation was reinforced by the adoption in the 2007 UN Declaration on Indigenous Rights. This instrument states that States shall ensure, as soon as possible, the recognition and legal protection of the lands, territories and resources of indigenous peoples20. Despite the significant jurisprudential construction of the collective dimension of a property right, the Court agrees that, at first, both the private property of individuals and communal property of the members of the indigenous peoples are equally protected by the American Convention. Indeed, in many cases, although indigenous peoples continue to occupy their traditional lands, the market economy activities into which they were incorporated led to restrictions to their mobility rights21, whereby they ended by becoming sedentary. Often, the State’s domestic 19

Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 153. Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), párr. 118. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 62.

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legal system recognizes the private property of individuals over lands that have been traditionally occupied by members of an indigenous people. Such State sovereign decision is the result of a merely “productive” conception of the land, when considering the conflicting rights of indigenous peoples and the private owners of the lands claimed22. Regarding the contraposition between collective and individual property rights claims, Article 21 of the American Convention includes the collective interest as an important limitation to the property right and refers to the expropriation of private property by the State23. Nevertheless, the Court cannot decide that communal property rights to traditional lands prevail over the right to property of private owners, since the Court is not an internal judicial authority. This duty rests exclusively with the sovereign State, which must fulfill its responsibilities without any discrimination and considering all aspects and circumstances, including the special relationship that indigenous peoples have with their lands24. However, the Court is competent to analyze whether the State ensured the human rights of the members of an indigenous community, including the right provided for in Article 21 of the American Convention. Indeed, the Court understands that the indigenous members who, for reasons beyond their control, have left their lands or lost possession of them, retain property rights, even without a legal title, except when the land has been legitimately transferred to third parties in good faith25. Regarding the possibility of recovering traditional lands, the Court has established that the spiritual and material basis for indigenous 22

Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 182. Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas), at par. 154. Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, Judgment of November 25, 2015 (Merits, Reparations and Costs), at par. 156. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 109.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

identity is mainly supported by their special relationship with their traditional territory, so that as long as this relationship exists, the right to claim this territory remains in force26. The Court point out that, when conflicts of interest exist regarding indigenous claims or when communal property rights and private property rights are in real or apparent contradiction, there will be a need to assess, on a case-by-case basis, the admissible restrictions to the enjoyment and exercise of those rights. That is to say that, in a democratic society, the legality, proportionality and legitimacy of such restrictions must be properly addressed,27. For example, the Court established, in the cases of the Yakye Axa and Sawhoyamaxa indigenous communities against Paraguay, based on domestic law, that the State recognized an unrestricted right of the indigenous peoples to request the return of the traditional lands they have lost, even when they were under private ownership28. Similarly, in the case of the Xucuru indigenous community and their members against Brazil, the Court established that the State made a constitutional29 legal choice in favor of communal property right over individual property right, even before third parties acting in good faith. 3.3. INDIGENOUS COMMUNAL PROPERTY RIGHT CORRESPONDS TO FREE, PRIOR AND INFORMED CONSENT IN RELATION TO ALTERNATE LANDS If a State decides to give priority to individual property rights rather than to communal ones, it must provide the 26

Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 112. Corte Interamericana de Direitos Humanos, Caso do Povo Indígena Xucuru e seus Membros vs. Brasil, Sentença de 5 de fevereiro de 2018 (Exceções Preliminares, Mérito, Reparações e Custas), par. 125; Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 144. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 110. Supremo Tribunal Federal, Ação popular sobre Demarcação da terra indígena Raposa Serra do Sol, Julgamento de 19 de março de 2009.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

members of indigenous peoples with an alternate land of the same size and quality, within the traditional territory of their ancestors30. The Court reiterates that the offer of an alternate land will only be admissible when it has been adequately assessed that the expropriation is not appropriate and that the negotiations to purchase the land have failed31. For example, in a case related to flooding of indigenous lands as a result of the implementation of a hydroelectric project, as happened in the case of the Kuna de Madungandí y Emberá de Bayano indigenous community and their members against Panamá, the right to claim the traditional lands by the indigenous peoples was in fact impossible. Therefore, they automatically have the right to obtain other land of the same size and quality32. These alternate lands must be chosen by members of the indigenous people, in compliance with the right to prior, free, and informed consultation, internationally recognized as a human right33. Once the right has been exercised by the members of indigenous peoples to obtain from the State other indigenous lands, the new territory must be treated according to the same guarantees provided for the protection of the original territory. Otherwise, the 30

Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 109. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 286. Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), at par. 120. Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, Judgment of November 25, 2015 (Merits, Reparations and Costs); InterAmerican Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs); Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations); Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas); Inter-American Court of Human Rights, Case of the Garífuna Punta Piedra Community and its Members v. Honduras, Judgment of October 8, 2015 (Preliminary Objections, Merits, Reparations and Costs).

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

enjoyment of the right to communal property would be limited because they have not had extended occupation of such alternate lands, since this lack of occupation is precisely the result of the relocation carried out by a State for reasons beyond the control of indigenous peoples34. If they are all indigenous lands, they shall be all under the same protection regime, regardless of the criterion used for their creation. The obligations must necessarily be the same as in cases in which the recovery of ancestral lands is still possible. Since the real participation of indigenous peoples in the choice of alternate lands is a sine qua non condition, if a State makes a legislative choice in favor of individual third-party property rights in good faith, the Court understands that their members may reject the alternate lands offered by the State because they did not meet the necessary quality requirements35. They are not obliged, even when domestic law determines the opposite, to accept any offer of new indigenous territory made by the State. On the contrary, a State is internationally obliged to call in, in effect, the members of the indigenous peoples before defining the location of the new indigenous lands, attributing to this new territory the same legal protection previously granted. Under Article 1(1) of the American Convention, a State must ensure the effective indigenous participation, in accordance with their customs and traditions, in any act that could affect their territory and restrict the right to the lands thereof, to ensure that such act do not negate their survival as indigenous people. To guarantee the full exercise of the right to communal property provided for in Article 21 of the American Convention, it necessarily implies the delimitation, demarcation and non-trespassing of indigenous lands by State authorities. If the respecting of such rights is not possible, an offer of new lands for their occupation shall take place, which must be done taking 34

Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), at par. 122. Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 119.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

into account the will freely expressed by the respective indigenous peoples. As such the Court considers that the State, in accordance with Article 2 of the American Convention, must take all necessary legislative, administrative and any other measures to ensure the human right to ownership of the traditional territories36. It is at this point that the issue touches Articles 8 and 25 of the American Convention, dedicated respectively to judicial guarantees and protection. With the purpose of ensuring the full exercise of communal property rights, as well as collective access to justice, in accordance with their communal system, the State must grant to the members of an indigenous peoples the legal recognition of their collective juridical capacity. For this reason, a State does not comply with its duty to give domestic legal effect to the members of indigenous people’s property rights, in relation to Articles 2 and 1(1) of the American Convention, when it does not provide domestically sufficient judicial means for the exercise of rights recognized internationally37. Indeed, according to the Article 3(1) of International Labor Organization Convention No. 107, ratified by the great majority of American States, so long as the factual conditions of the indigenous peoples concerned prevent them from enjoying the benefits foreseen in domestic law, special measures shall be adopted for the protection of the property of these communities38. 36

Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 281; Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29, 2006 (Merits, Reparations and Costs), at par. 136; Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), párr. 144; Inter-American Court of Human Rights, Case of the Moiwana Community v. Suriname, Judgment of June 15, 2005 (Preliminary Objections, Merits, Reparations and Costs), at par. 209. Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs), at par. 116. Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), párr. 116.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

3.4. INDIGENOUS COMMUNAL PROPERTY RIGHT CORRESPONDS TO THE MANAGEMENT OF NATURAL RESOURCES AND THE SURVIVAL OF THE ETHNIC GROUP AS SUCH The Court has considered that the property right of indigenous peoples to their traditional lands covers the intangible elements resulting from natural assets found thereto, which must be safeguarded pursuant to the terms of Article 21 of the American Convention. For this reason, the protection of the territories of indigenous peoples stems from the need to guarantee the security and continuity of their control and use of natural resources, which in turn allows them to maintain their way of living. The right to collective ownership of land traditionally owned is therefore associated with the situation of material and immaterial dependence of its members. In this regard, the Court has asserted that the term “property” includes all movables and immovables, corporeal and incorporeal elements, and any other intangible objects capable of having value39. Thus, there is a strict connection between the indigenous territory and the natural resources used traditionally by their members. These resources, which are in fact necessary for their physical and cultural survival, must be protected by States under Article 21 of the American Convention to ensure that the indigenous communities can keep their traditional identity and guarantee their material survival40. Indigenous natural resources are not any and all natural resources found in lands traditionally occupied by these peoples, but only those traditionally used by their members and considered necessary for the continuity of their lifestyle. 39

Inter-American Court of Human Rights, Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 137. Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations), at par. 146; Corte Interamericana de Direitos Humanos, Caso do Povo Indígena Xucuru e seus Membros vs. Brasil, Sentença de 5 de fevereiro de 2018 (Exceções Preliminares, Mérito, Reparações e Custas), par. 117; Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations), at par. 146.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

For this reason, the State must guarantee the right of indigenous peoples to effectively control their territory, as owners, and use their natural resources. In particular, the Court established that, so that the exploration or exploitation of natural resources in traditional territories does not imply a denial of the subsistence of the indigenous people as such, the State must carry out an adequate process that guarantees the right to consultation to their members in all cases, notably in large-scale plans. In this sense, the issuance of concessions within indigenous territories does not amount, in principle, to a denial of their survival as a human group. This must be assessed on a case-by-case basis. The State shall ensure that the area is not deforested and that it is not exploited in such a way as to cause irreparable harm to indigenous natural resources41. For this reason, no concession can be issued within indigenous territory unless and until independent and technically capable entities perform a prior impact assessment. If there is no risk to the survival of the indigenous peoples, the State must ensure that they receive an equitable benefit from any economic activity within their territory42. This obligation of benefit sharing with indigenous peoples, regarding the use of their natural resources, exists not only in regard to the American Convention, but due to the fact that it has been recognized as a general principle of international law by the Court43. 41

Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs), at par. 291. Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs), at par. 129; Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas), párr. 156; Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs), at par. 129; Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations), at par. 157. Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas), párr. 158.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

When there is a deadlock between communal property rights of indigenous peoples and individual property rights of third parties acting in good faith over the same portions of land, States must evaluate, on a case-by-case basis. However, no evaluation can be carried if it threatens the survival of the ethnic group as such44. Thus, communal property of the land ensures that the members of indigenous communities are treated not only as individual human beings but specially as members of an ethnic group. There is a collective right to survival as organized people, with control over their environment as a necessary condition for the reproduction of their culture, for their own development and for their endeavor45. The State may restrict the peoples’ communal property right to their lands and natural resources only when such restriction complies with existing legal requirements and when it does not deny their survival as an ethnic group46. Given this intrinsic connection that indigenous peoples have with their territory, the protection of property rights and the use and enjoyment thereof is necessary to ensure their survival. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory47. In the case of the communal property right of indigenous peoples, it should also be understood that a limitation or restriction to that right may 44

Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, Judgment of November 25, 2015 (Merits, Reparations and Costs), at par. 155. Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 146. Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs), at par. 128. Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs), at par. 149; Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), párr. 111; Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 146; Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, Judgment of November 25, 2015 (Merits, Reparations and Costs), at par. 156.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

imply a denial in their survival as a human group48. Thus, the Court has specified that the State is required to verify that those restrictions or limitations do not imply a denial of existence49. Otherwise, a State’s action can be deemed as approaching that of the practice of genocide, which is an act whose purpose is the destruction of human groups as such. The State is obliged, as a norm of jus cogens50, to guarantee the enjoyment of communal property rights to the members of indigenous peoples, especially when their survival as a human group depends on it. BIBLIOGRAPHY Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas). Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas). Corte Interamericana de Direitos Humanos, Caso do Povo Indígena Xucuru e seus Membros vs. Brasil, Sentença de 5 de fevereiro de 2018 (Exceções Preliminares, Mérito, Reparações e Custas). Inter-American Court of Human Rights, Case of Blake v. Guatemala, Judgment of July 2, 1996 (Preliminary Objections), Separate Opinion of Judge A. A. Cançado Trindade. Inter-American Court of Human Rights, Case of the Garífuna Punta Piedra Community and its Members v. Honduras, Judgment of October 8, 2015 (Preliminary Objections, Merits, Reparations and Costs). 48

Corte Interamericana de Direitos Humanos, Caso do Povo Indígena Xucuru e seus Membros vs. Brasil, Sentença de 5 de fevereiro de 2018 (Exceções Preliminares, Mérito, Reparações e Custas), par. 115; Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs), at par. 147; Corte Interamericana de Derechos Humanos, Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Membros vs. Panamá, Sentencia de 14 de octubre de 2014 (Excepciones Preliminares, Fondo, Reparaciones y Costas), párr. 18. Corte Interamericana de Derechos Humanos, Comunidad Garífuna Triunfo de la Cruz y sus Miembros vs. Honduras, Sentencia de 8 de octubre de 2015 (Fondo, Reparaciones y Costas), párr. 155; Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs), at par. 128; Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations), at par. 156. Inter-American Court of Human Rights, Case of Blake v. Guatemala, Judgment of July 2, 1996 (Preliminary Objections), Separate Opinion of Judge A. A. Cançado Trindade, at par. 11.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, Judgment of November 25, 2015 (Merits, Reparations and Costs). Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012 (Merits and Reparations). Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs). Inter-American Court of Human Rights, Case of the Moiwana Community v. Suriname, Judgment of June 15, 2005 (Preliminary Objections, Merits, Reparations and Costs). Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007 (Preliminary Objections, Merits, Reparations and Costs) Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29, 2006 (Merits, Reparations and Costs). Inter-American Court of Human Rights, Case of the Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010 (Merits. Reparations and Costs). Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005 (Merits, Reparations and Costs). Supremo Tribunal Federal, Ação popular sobre Demarcação da terra indígena Raposa Serra do Sol, Julgamento de 19 de março de 2009.

4 Collective Property Rights of Indigenous Peoples of the Amazon Ana Virgínia Gabrich Fonseca Freire Ramos1

4.1. SPECIAL RELATIONSHIP BETWEEN THE INDIGENOUS PEOPLES OF THE AMAZON AND THEIR TERRITORIES The traditional indigenous worldview places the territory in a different category than the one that it is commonly inserted in. For the indigenous peoples, the territory – and everything in it – is a sacred place, essential for the survival of the community and for the maintenance of their customs, beliefs, culture, spiritual life and traditions. This holistic view of the territory is protected by the Inter-American Court of Human Rights (IACHR), which in its document entitled “Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights Systems”, amply recognizes the importance and special relationship between indigenous peoples and their territories. Thus, the IACHR States that Article 21 of the American Convention and Article XXIII of the American Declaration protect this relationship, as well as the natural resources of ancestral territories, which are fundamentally 1

PhD student in Law at Dom Helder Escola de Direito (DHC); Master’s in law from DHC; Specialist in Environmental Law; Specialist in Health Law; Undergraduate Professor at Dom Helder; Graduate Professor in Medical and Bioethics Law at PUC Minas; Lawyer.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

important for the enjoyment of other human rights of indigenous peoples. For the IACHR, States must respect this special relationship between indigenous peoples and their territories, which is fundamental for indigenous peoples’ material survival and for the cultural integrity2 Moreover, in accordance with the IACHR, the indigenous population is structured on the basis of its profound relationship with the land”; that “land, for the indigenous peoples, is a condition of individual security and liaison with the group” and that “the recovery, recognition, demarcation, and registration of the lands represents essential rights for cultural survival and for maintaining the community’s integrity”3.

For the indigenous peoples, the land must also be preserved in a way that transmits their culture and traditions to future generations and ensures the perpetuation of their values. Thus, the lack of access to land and its resources is capable of producing insecure situations for indigenous communities, which are deprived of access to the minimum conditions for their dignified survival. Such a situation may result in violation of other basic rights, such as the cultural identity and the right to collective survival of indigenous communities4. In the same sense, the IACHR’s report entitled Indigenous and Tribal Peoples of the Pan-Amazon Region puts forward that States should materialize territorial rights by granting formal property titles, or other forms of state recognition, which give legal certainty to indigenous peoples in relation to their lands. According to the Report, the indigenous territory must be sufficiently extensive and materially continuous, that is, without fragmentation, to guarantee the full development of ancestral forms of life5. 2

3 4

IACHR. Inter-American Commission on Human Rights. Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights Systems (2009). Idem. IACHR. Inter-American Commission on Human Rights. Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights Systems (2009). Idem.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

In terms of the Brazilian legislation, the Constitution of the Federative Republic of Brazil of 1988 ensures in subparagraph XXII of its Article 5 the right of proprietary interest, affirming, in its subparagraph XXIII, that properties must fulfill their social function. For a better understanding, however, of the issue of indigenous property, it will be necessary to analyze some concepts in the next topic. 4.2. GUARANTEES RELATED TO LAND, TERRITORY AND NATURAL RESOURCES Prior to the analysis of the guarantees related to the land, territory and natural resources, it is necessary to understand the concept of collective (or common) property and its singularities. Initially, it should be emphasized that when common property is referred to, such concept is not limited to a single model of property, but rather, it generically presents various forms of appropriation and collective handling of natural resources6. José Heder Benatti, based on Blaikie and Brookfend, presents has three characteristics for a common property, which are: a) there is an individual use of certain natural resources, but not individual possession; b) when using a particular resource, the user acquires rights to that asset, but nothing prevents some users from having independent rights of use; c) collective usufruct gives right of use only to members of that group, excluding others who are not members of that community7.

In other words, the idea of s common property is permeated by a notion of a primary legal system, because the community 6

BENATTI, José Heder. Propriedade comum na Amazônica: acesso e uso dos recursos naturais pelas populações tradicionais. In: SAUER, Sérgio; ALMEIDA, Wellington (orgs.). Terras e Territórios na Amazônia: demandas, desafios e perspectivas. Brasília: Editora Universidade de Brasília, 2011, p. 93-113. BENATTI, José Heder. Propriedade comum na Amazônica: acesso e uso dos recursos naturais pelas populações tradicionais. In: SAUER, Sérgio; ALMEIDA, Wellington (orgs.). Terras e Territórios na Amazônia: demandas, desafios e perspectivas. Brasília: Editora Universidade de Brasília, 2011, p. 93-113.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

itself is the one who lives and preserves its values over generations. Thus, its legitimacy lies in the group’s own ability to appropriate the natural resources available there and to build its rules of use. Primary possession, on the other hand, occurs due to the fact that the occupation of the area to takes place with the community intention to own that territory, without the authorization of third parties.8. In this way, common property would involve the land and how its resources are managed and handled. In terms of the Brazilian Constitution, the protection of indigenous property is provided for in art. 231 which recognizes the indigenous peoples’ social organization, languages, customs, beliefs, rights and traditions, as well as the original rights over the lands traditionally occupied by them, falling within the competence of the Federal Government its demarcation, protection and obligation to ensure that all assets are respected9. Paragraph 1 of the same article provides that “the lands traditionally occupied by indigenous people are those they inhabit on a permanent basis, those used for their productive activities, those essential for the preservation of the environment resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions”10. That is, the Constitution recognized the indigenous worldview when protecting its lands. Despite all the Constitutional Protection, in practice the situation differs. As the IACHR warned in the Report, indigenous peoples in the Amazon territory still seek to carry out the recognition of their historical occupation of their lands, facing many obstacles to this, with emphasis on the lack of political will to advance the processes of lands’ demarcation. To this, the problems related to land conflicts and the exploitation of natural resources are added. In cases where progress has been made in recognizing land ownership, the problem presented by the IACHR was in relation 8 9

Idem. BRAZIL. Constitution of the Federative Republic of Brasil of 1988. Idem.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

to the territory effectively recognized, which often did not encompass the entire space traditionally occupied by the community, with important parts of the territory being excluded11. The IACHR also mentions in its report the question of violence, threats and all forms of the physical and personal integrity violations suffered by indigenous peoples. Waldir de Jesus Brabo Ferreira Junior and Natália Mascarenhas Simons Bentes, in addressing the recognition of the collective property right of indigenous peoples, present important remarks on the topic: The indigenous subject is an ethnic, social and anthropological issue, however, as it occurs today, it is especially political, impacting on the performance of States in light of the compliance to their internal policies in relation to the lands they occupy. Thus, the maintenance of the protection to indigenous peoples, considering their spiritual, cultural and material relations of spaces that they have traditionally preserved, is an international rule of law, based on the international instruments created to justify the rights and duties of States on indigenous lands12.

Thus, by pointing out indigenous protection as a political issue, the authors present another obstacle to the protection, especially, of their lands. The political interests’ conflicts are currently one of the problems that hamper indigenous protection the most. Political obstacles and interests can alter countries’ internal rules and leave indigenous communities unprotected and in a more vulnerable situation. In addition to the above-mentioned instruments of protection of indigenous peoples, it is important to highlight the 11

IACHR. Inter-American Commission on Human Rights. Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights Systems (2009). FERREIRA JÚNIOR, Waldir de Jesus Brabo; BENTES, Natália Mascarenhas Simões. O desenvolvimento das normas jus cogens em relação ao reconhecimento do direito à propriedade coletiva dos povos indígenas à luz da sentença do caso Povo Indígena Xucuru e seus membros versus Brasil. Revista da Faculdade de Direito UFPR, Curitiba, PR, Brasil, v. 64, n. 1, p. 9-38, abr. 2019. ISSN 2236-7284.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007. Item 2 of Article 8 of the Declaration States that “States shall establish effective mechanisms for the prevention and repair of: (...) b. Any act that aims or results in subtracting their land, territories or resources”.13 Article 10, on the other hand, reinforces that Indigenous peoples will not be removed by virtue of their lands or territories. No transfer shall take place without the free, prior and informed consent of the indigenous peoples concerned and without prior agreement on fair and equitable compensation and, where possible, with the option of return14.

As a result, it appears that there are international instruments providing protection to indigenous peoples, their lands and worldview, leaving to the States to create the internal legislation to protect these peoples. Regarding interference by third parties, the IACHR warns that in the event of legal conflicts of territorial property with third parties, State action must take place in accordance with the principles and limits that govern human rights. Thus, the IACHR establishes that restrictions on the use and enjoyment of this exercise can only occur if: 1. established by law; 2. necessary; 3. proportionate; and 4. its purpose must aim for a legitimate end in a democratic society15. The Commission further stresses that indigenous peoples who may have lost full or partial ownership of their land retain the right of ownership over them, even when the land is in the hands of third parties16; however, in practice, what it is seen is a recurrent violation of this right of indigenous peoples and an increase in the number of conflicts over land, which will be discussed in the next topic. 13

UN. United Nations. United Nations Declaration on the Rights of Indigenous Peoples (2007). Idem. IACHR. Inter-American Commission on Human Rights. Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights Systems (2009). Idem.

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

4.3. EXPROPRIATION OF LAND AND OBSTACLES TO THE RECOGNITION OF PROPERTY The 2018 Report on violence against Indigenous Peoples in Brazil, produced by the Missionary Indigenist Council (CIMI), highlights alarming data on the protection of indigenous peoples in Brazil. The table below was made based on the data provided by the CIMI Report, omitting only the information related to indigenous territories outside the Brazilian legal Amazon. The table refers only to Chapter 1 of the Report, entitled violence against heritage.

Possession invasions, Conflicts Omission and illegal exploitation concerning length of land of natural resources territorial regularization and various damage to rights property

Total cases

222

235

Total

410

513

Source: CIMI, Report on the Violence against Indigenous Peoples in Brazil (2018)

From the table, it is possible to realize that the states that make up the Brazilian Amazon have problems for the regularization of indigenous lands, most of these problems being concentrated on omission and delay in their regularization, that is, issues directly linked to the action of public authorities. Also, alarming are the numbers relating to invasions and exploitation

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

of natural resources, which is evidenced mainly through illegal mining on indigenous lands (the 1988 Federal Constitution in its Article 231, paragraph 3, states that research and mining of mineral wealth on indigenous lands can only be effective by means of an authorization of the National Congress and hearings of the affected communities). The Report also presents a breakdown of indigenous lands by States of the Federation, evaluating some aspects such as lands: declared (with a Declaratory Ordinance of the Ministry of Justice. Awaiting approval), to be identified (included in FUNAI’s schedule for future identification, with Technical Working Groups already set), approved (with Decree of the Presidency of the Republic. Awaiting registration), identified (recognized as traditional Territory by FUNAI’s Working Group. Awaiting a Declaratory Ordinance of the Ministry of Justice), with an ordinance of restriction (lands that received the order of FUNAI Presidency restricting the use of the area to the right of entry, movement or permanence of persons outside FUNAI staff) and without any action. Thus, in terms of indigenous lands in the Brazilian Amazon, this would be the table with 2018 data:

Ordinance of Restriction

Identified

To be identified

189

222

PA:

Total

282

410

Declared Approved

No Total action

Source: CIMI, Report on the Violence against Indigenous Peoples in Brazil (2018)

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

The second table, on the other hand, presents equally worrying data, mainly in the column “land without measures”, that is, those in which no action was taken by Public Authorities to guarantee its protection. Thus, it is possible to see that, despite the Constitutional framework and the existence of several international documents, indigenous lands still face difficulties in guaranteeing their protection, a fact that results in the violation of the rights of indigenous peoples. Even though the above data presents the situation of the indigenous peoples of the Brazilian Amazon and each country has its peculiarities, the IACHR’s report identifies some obstacles common to all indigenous peoples of the Amazon: Se centran, entre otras, en la demora excesiva o paralización de procesos de demarcación de tierras y territorios indígenas, la adopción de medidas normativas que disminuyen las garantías previamente reconocidas en materia de propiedad colectiva, el reconocimiento parcial del territorio o su condicionamiento a requisitos de posesión, la apropiación ilegítima de territorios indígenas por parte del Estado y de terceros, las fuertes presiones de sectores económicos vinculados a las industrias extractivas y el establecimiento de regulaciones en materia agraria desfavorables para los pueblos amazónicos17.

The protection of indigenous lands still faces many obstacles that must be transposed to guarantee the rights of indigenous peoples and to enable their existence and future generations. A final point worth mentioning concerns the right to restitution of the traditional territory. 4.4. RIGHT TO RESTITUTION OF TRADITIONAL TERRITORY The United Nations Declaration on the Rights of Indigenous Peoples states in its Article 28, Item 1, that 17

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

1. Indigenous peoples have the right to redress, by means which may include restitution or, where this is not possible, fair, impartial and equitable compensation, for the land, territories and resources they have traditionally or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without your free, prior and informed consent18.

In its Article 16, ILO Convention 169 – International Labor Organization states that: Article 16 1. Subject to the provisions of the following paragraphs of this Article, the peoples concerned shall not be moved from the land they occupy. 2. Where, exceptionally, the transfer and resettlement of these peoples are deemed necessary, they may only be carried out with the consent of them, freely granted and with full knowledge of cause. When it is not possible to obtain your consent, the transfer and resettlement may only be carried out after the completion of appropriate procedures established by national legislation, including public polls, where appropriate, in which the interested peoples have the possibility of being effectively represented. 3. Whenever possible, these peoples should have the right to return to their traditional lands as soon as the causes that motivated their transition and resettlement cease to exist. 4. Where return is not possible, as determined by agreement or, in the absence of such agreements, by appropriate procedure, such peoples shall, in all cases where possible, receive land whose quality and legal status are at least equal to those of the land they previously occupied, and to enable them to cover their needs and ensure their future development. When interested people prefer to receive compensation in cash or in goods, such compensation shall be granted with the appropriate guarantees (...)19.

Thus, what is perceived is that international instruments for the protection of the rights of indigenous peoples ensure that they 18

UN. United Nations. United Nations Declaration on the Rights of Indigenous Peoples (2007). ILO. International Labor Organization. Convention No 169 on Indigenous and Tribal Peoples (1989).

Rights to Traditional Lands of the Amazon Indigenous Peoples as a Human Right

must remain in their territory, even indicating ways of land restitution when they may have been usurped or used for other purposes. Despite this provision in international documents, what happens in practice is the loss of traditional territory to the detriment of other interests, other than the indigenous peoples’ original rights (such as, and especially, economic interests). Specifically in relation to Brazil, it is necessary to highlight the incongruity that emerged from the judgment of the case “Terra Indigena Raposa Serra do Sol” by the Federal Supreme Court, where the so-called timeline of October 5, 1988 (date of the promulgation of the Federal Constitution) was established for the recognition of indigenous territorial law. In addition to this time frame, there is the traditions mark, that is, land occupation of the land in a permanent manner, except persistent wrongful possession. The establishment of the time frame is contrary to that ensured by international legal acts and the 1988 Constitution itself, as it does not recognize an indigenous peoples’ original right to the lands they traditionally occupy. Furthermore, by establishing a time frame, the STF’s jurisprudence refuses to recognize the marginal situation in which indigenous peoples often find themselves; many indigenous people leave their lands for different reasons, such as expulsions and violence, but continue to be linked to it, fighting for its reestablishment. The demarcation of a time frame thus prevents these lands from being reestablished or that any other compensatory remedy foreseen by law is applied. The time frame, therefore, disregards the entire indigenous worldview, all its special relationship with the land, reducing it to a date, without taking into account the entire indigenous trajectory and all the difficulties encountered in staying in their territories. It also disregards all international legislation on the subject and prevents the enjoyment of the rights already guaranteed. Therefore, the collective property of indigenous peoples is a right guaranteed by international documents and which must consider not only the traditional relationship between possessionownership, but also, and especially, the special relationship between indigenous peoples and their land.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

The recognition of the right to indigenous property goes beyond a legal institute, but it is a recognition of an original right, of those who already inhabited the territory and took care of it long before the laws and instruments of protection. Great challenges pervade the protection of the collective property rights of indigenous peoples. As we tried to briefly demonstrate, the struggle for recognition still has a long way to go, but progress is taking place, albeit timidly, and it is hoped that States will effectively put into practice what the instruments of international protection have already pointed out to. REFERENCES ASSOCIAÇÃO NACIONAL DOS PROCURADORES DA REPÚBLICA. Índios, Direitos Originários e Territorialidade. 6ª Câmara de Coordenação e Revisão. Ministério Público Federal. Organizadores: Gustavo Kenner Alcântara, Lívia Nascimento Tinôco, Luciano Mariz Maia. Brasília: ANPR, 2018. Available at: http://www.mpf.mp.br/atuacao-tematica/ccr6/documentos-e-publicacoes/artigos/docs_artigos/indiospdf.pdf/ Accessed on: 10 feb. 2021. BENATTI, José Heder. Propriedade comum na Amazônica: acesso e uso dos recursos naturais pelas populações tradicionais. In: SAUER, Sérgio; ALMEIDA, Wellington (orgs.). Terras e Territórios na Amazônia: demandas, desafios e perspectivas. Brasília: Editora Universidade de Brasília, 2011, p. 93-113. BRASIL. Constituição da República Federativa do Brasil de 1988. Disponível em: http://www. planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm Accessed on: 2 feb. 2021. CIDH. Comissão Interamericana de Direitos Humanos. Convenção Americana sobre Direitos Humanos (1969). Available at: htps://www.cidh.oas.org/basicos/portugues/c.convencao_americana.htm Accessed on: 9 feb. 2020. CIDH. Comissão Interamericana de Direitos Humanos. Derechos de los pueblos indígenas y tribales sobre sus tierras ancestrales y recursos naturales: Normas y jurisprudencia del Sistema Interamericano de Derechos Humanos (2009). Disponível em: https://www.oas.org/ es/cidh/indigenas/docs/pdf/Tierras-Ancestrales.ESP.pdf Accessed on: 1 feb. 2021. CIMI, Conselho Indigenista Missionário. Relatório violência contra os Povos Indígenas no Brasil dados de 2018 (2018). Disponível em: https://cimi.org.br/wp-content/uploads/2019/09/ relatorio-violencia-contra-os-povos-indigenas-brasil-2018.pdf Accessed on: 9 feb. 2021. FERREIRA JÚNIOR, Waldir de Jesus Brabo; BENTES, Natália Mascarenhas Simões. O desenvolvimento das normas jus cogens em relação ao reconhecimento do direito à propriedade coletiva dos povos indígenas à luz da sentença do caso Povo Indígena Xucuru e seus membros versus Brasil. Revista da Faculdade de Direito UFPR, Curitiba, PR, Brasil, v. 64, n. 1, p. 9-38, abr. 2019. ISSN 2236-7284. Available at: https://revistas.ufpr.br/direito/article/view/61647/38400 Accessed on: 07 feb. 2021. doi:http://dx.doi.org/10.5380/rfdufpr.v64i1.61647. OIT. Organização Internacional do Trabalho. Convenção n. 169 sobre os Povos Indígenas e Tribais (1989). Disponível em: http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2004/ Decreto/D5051.htm Accessed on: 10 feb. 2021. ONU. Organização das Nações Unidas. Declaração das Nações Unidas sobre os Direitos dos Povos Indígenas (2007). Available at: https://www.un.org/esa/socdev/unpfii/documents/ DRIPS_pt.pdf Accessed on: 9 feb. 2021.

Conclusion Camilla de Freitas Pereira1

Land for indigenous peoples is of special value. There is a relationship of respect and sacredness, going beyond traditional legal concepts of possession and ownership, which take economic aspects into account. However, the independence of these peoples in the economic, social and cultural areas runs through the recognition of property, which is a value enshrined as a fundamental right in national and international diplomas, and which is inherent to the condition of dignified existence of human beings. The Brazilian constitutional protection guaranteeing permanent possession and lifelong usufruct while giving title to the Federal Government is based on the protection of these lands and those who live on them. However, the said safeguard is inadequate and insufficient for an effective protection and implementation of the rights of these peoples to the extent that it does not guarantee them economic autonomy or even protection of their identity and culture. Because it is a collective property, traditionally occupied over years, in most situations, the land still represents a manifestation of community life, and its entire history, translated by the relationships among individuals themselves and with nature. The restriction on the freedom of communal property of indigenous peoples threatens their culture, the use of land resources 1

Master’s in Environmental Law from Escola Superior Dom Helder Câmara. Further training (expert) in Public Law from Cândido Mendes University. Currently a lawyer.

Beatriz Souza Costa / Jamile Bergamaschine Mata Diz (Orgs.)

and weakens, in addition to their own identity, their existence. The recognition of the right to property and consequently the freedom to use and enjoy it is a measure capable of ensuring the necessary dignity of theses peoples, which is a fundamental right.