by Leticia Marques Osorio and César Augusto Baldi
The Supreme Court of Brazil will start soon the judgement of the constitutionality of Presidential Decree 4887 of 2003 which regulates the procedure for granting property titles to Quilombo communities over the lands they occupy. The Decree establishes the modus operandi of the procedure for granting the Quilombo communities the right to property enshrined in article 68 of the Temporary Constitutional Provisions Act of the Brazilian Federal Constitution of 1988, which must be implemented by the National Institute of Colonisation and Agrarian Reform. If the Supreme Court quashes the Decree, this will paralyze a national land titling programme being implemented to benefit more than 1,400 Quilombo communities throughout Brazil (by the count of the Palmares Cultural Foundation.
Even worse, if the Decree is considered unconstitutional, the previous one – Decree 3912 of 1991 – will prevail and thus reinstate unattainable requirements for granting land titles to the Quilombo communities. For instance, these communities were required to prove that they were actual descendants of the original Quilombo fortresses right back to 1888, when slavery was legally abolished in Brazil. The Decree issued in 2003, by contrast, was elaborated by a multidisciplinary expert group in consultation with a range of civil and Quilombola organisations, and it complies with the Federal Constitution and the relevant international human rights treaties to which Brazil is a State Party, such as the American Convention on Human Rights, Convention 169 of the International Labour Organisation (ILO) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
In 2004 the Democrat Party (former Liberal Party) argued the unconstitutionality of the Decree before the Supreme Court (ADI n. 3239), with the support of the National Confederation of the Industry, the National Confederation of Livestock Producers and the Brazilian Rural Society. The arguments used to challenge the constitutionality and the applicability of the Decree threaten to undermine the rights to property and to access to natural resources of the Quilombo communities, which are recognised by international human rights law and by the Constitution. Article 216 of the Constitution recognises these communities as part of the national cultural heritage as their identity, action and memory form the Brazilian society. As such, they are entitled to be granted special protection by the State as necessary to guarantee respect for their distinct cultural identity, social structure, economic system, customs, beliefs and traditions and the preservation of their traditional way of life.
Although legally recognised, the property rights of Quilombo communities have been adjudicated at a slow pace, leaving them extremely vulnerable to forced evictions and threats by land owners, mining companies and development projects seeking to take possession of their lands and natural resources. Until December 2009, only 177 communities had been assigned ownership titles, comprising only 13% of the estimated 1,408 communities that traditionally occupy 87 territories with a total area of 1,171.579 hectares (according to the Comissão Pró-Indio São Paulo ). Out of this total only eight property titles have been issued by the current Government. The level of protection assigned to these communities will determine the extent of the preservation of their cultural legacy and its transmission to future generations.
The main arguments used by the detractors of Decree 4887 in the Direct Action of Unconstitutionality before the Court refer to (i) the inappropriateness of Decree 4887 to ‘regulate’ the Constitution; (ii) the concept of Quilombo communities; and (iii) the concept of occupied lands.
The first argument refers to the alleged violation of the principle of legality through the autonomous application of the Decree as it is argued that the constitutional article referring to Quilombo lands could only be regulated by law and not by a Presidential Decree. The plaintiffs, however, do not mention that the previous norm issued to regulate the same article was also a Presidential Decree (n. 3912 of 2001), with the same legal status as the current Decree, which revoked the former. The jurisprudence of the Supreme Court, however, has considered inadmissible a demand of unconstitutionality when the rule previously in force contains the same defect. Moreover, article 68 of Temporary Constitutional Provisions Act is self-applicable as it regulates the fundamental right of the social function of property, which seeks the promotion of substantive equality and social justice insofar as it grants land rights to members of a disadvantaged group, composed almost exclusively of poor people who are victims of stigma and discrimination. It consists of a reparatory measure, which aims to repay a historical debt of the Nation to communities that still suffer the effects of centuries of domination and violation of rights.
Furthermore, it can also be argued that the Decree 4887 does not consist of an autonomous legal norm as it emanates from Law 9784/1999, which regulates the general administrative procedure under the Federal Public Administration, from ILO Convention 169, ratified by Brazil on 25 July 2002, and from the American Convention on Human Rights, ratified on 25 September 1992. Although Decree 4887 does not explicitly refer to the ILO Convention, the concept of ‘tribal peoples’ enshrined therein – namely, peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations – seems to fit into the definition of Quilombo communities adopted in 1994 by the Working Group on Black and Rural Communities of the Brazilian Association of Anthropology, e.g. groups that developed practices of resistance for the maintenance and reproduction of their integrity and identity – of their project of life – in a determined place. Once a country ratifies an ILO Convention it has one year to align legislation, policies and programmes to the Convention before it becomes legally binding.
The American Convention protects the right to property by stating in article 21(1) that “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”. In interpreting the application of the Convention, the Inter-American Court of Human Rights has ruled that the right to property entails the protection of communal property rights of indigenous peoples and other ethnic groups, such as black communities. For instance, the cases Saramaka People vs. Suriname and Moiwana vs. Suriname, heard by the Court in 2005 and 2007, respectively and the two standing cases considered admissible by the Inter-American Commission, the Samucangaua communities and others vs. Brazil and the Garifuna Community of Triunfo de La Cruz vs. Honduras, illustrate this understanding. Thus, as a secondary normative act, the Decree cannot be challenged through a Direct Action of Unconstitutionality. The question that remains unanswered is whether the Brazilian Supreme Court will recognize the supra-legal status of ILO Convention 169 and thus accept that the regulation of the contested titling procedure emanates from these Conventions and the Constitution. In case the Decree is declared unconstitutional, it is also unclear whether this will affect the validity of the property titles already issued by the federal government.
The second argument posed against the Decree 4887 refers to the criterion established to determine what a Quilombo community is. The detractors of the Decree contend that the constitutional norm has adopted the concept of remaining communities and not that of descendant communities, and thus the application of the criterion of self-identification for determining the groups to which the provisions of the Constitution apply. According to the Decree, Quilombo communities are ethnic-racial groups determined according to self-identification criteria, with a distinct historical background and a specific relation to their territories. As such, their black ancestral history is presumptively related to their resistance to the oppression suffered.
In the same vein, ILO Convention 169 has adopted an approach based on both objective and subjective criteria to determine the meaning of ‘tribal peoples’. According to its article 1 (1)(a) ‘tribal peoples’ are “peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.” Moreover, it states that self-identification as indigenous or tribal should be regarded as a fundamental criterion for determining the groups to which the Convention applies. It does not say that it should be the only criterion, but serious consideration has to be given to such a principle when determining the groups to which the Convention applies. It is up to each country to determine in detail the groups covered by the Convention on the basis of both objective and subjective criteria, and in consultation with those affected.
The contemporary concept of ‘remaining communities’ of Quilombos considers the prevalence of an autonomous process of production within the communities within specific territories socially established as a result of acts of resistance. The Committee of Experts on the Application of the Convention and Recommendations of ILO, in its individual Communication to Brazil issued in 2010, has indicated that “the [Quilombo] communities appear to meet the requirements for being covered by the Convention [n. 169] and they identify themselves as tribal peoples within the meaning of Article 1(1)(a) of the Convention. Inasmuch as these communities meet the requirements set out in Article 1 of the Convention, the Articles of the Convention shall be applied when addressing the issue which is the object of the communication….”
In Saramaka People vs. Suriname, the Inter-American Court on Human Rights examined the question of whether the Saramaka people could be legally defined in a way that takes into account the different degrees to which various self-identified members of the group adhere to traditional laws, customs, and economic practices. This question was particularly relevant for members living in Paramaribo or outside of the territory claimed by the Saramaka. In its ruling, the Court declared that the Saramaka people can be defined as a distinct tribal group as its members enjoy and exercise certain rights, such as the right to property, in a distinctly collective manner. The Supreme Court of Brazil should recognise that Quilombo communities are not mere traces of the past; they are part of the present agrarian structure and contemporary society.
The third main argument used against the constitutionality of Decree 4887 refers to the concept of ‘occupied lands’. According to article 2(2) of the Decree, “the lands occupied by the remaining communities of Quilombos are those used to guarantee their physical, social, economic and cultural reproduction. Moreover, it states in article 2(3) that for the measurement and demarcation of such lands, territorial criteria indicated by the remaining communities of Quilombos must be taken into account, as well as their ability to present the technical documents they consider relevant to instruct the titling procedure. The detractors of the Decree 4887 argue that this concept of territory is too vague and gives a very wide margin of discretion in its interpretation. Instead, they argue that the lands to be assigned to the communities should only be those being effectively occupied for residential purposes at the time of the titling procedure.
However, the challenged definition of ‘occupie lands’ does appear aligned with the concept of land enshrined in articles 13 and 14 of ILO Convention 169. According to the ILO’s 2003 Manual on the Convention (page 29), the concept of land “embraces the whole territory they use, including forests, rivers, mountains and sea, the surface as well as the sub-surface”. The concept of ‘occupied lands’ goes beyond the geographical and historical borders currently in place – the territories where they live and produce – to encompass the areas indispensable for the preservation of the natural resources necessary to their welfare and to the present and future reproduction of their way of life, according to their customs and traditions. Their rights over the lands must encompass the right to the full exercise of their cultural rights and the diffusion of their cultures.
Thus, the ‘occupied lands’ to which property rights must be assigned by the State to the Quilombo communities are those effectively possessed by them and those that suffice and are necessary to guarantee the expression, reproduction and permanence of their culture, spiritual life, integrity and economic survival. The Committee of Experts on the Application of the Convention and Recommendations of ILO, in its individual Communication to Brazil issued in 2010, has recalled the special importance for the cultures and spiritual values of the peoples covered by the Convention of their relationship with the lands or territories which they occupy or otherwise use, and the obligation of governments to respect that relationship.
The Inter-American Court on Human Rights has likewise developed a broad notion of property, which recognises and protects the communal rights to land and to natural resources of Maroon communities. For instance, in the case of Saramaka People vs. Suriname, the Court considered that “land is more than merely a source of subsistence for them; it is also a necessary source for the continuation of the life and cultural identity of the Saramaka people”. The Court has also ruled, in Moiwana vs. Suriname, that the forced displacement of tribal communities from their homes, lands, or properties is considered a continuing violation of the right to property that warrants restitution and/or compensation.
Under international human rights law, restitution is considered the preferred remedy for displacement, prior to the payment of compensation. Hence, the concept of ‘occupied lands’ might, in some cases, include lands which have been recently lost and/or grabbed. The question here is whether the Supreme Court of Brazil will impose the same nineteen conditions established by Justice Carlos Menezes Direito in the judgment on the demarcation of the indigenous reservation Raposa Serra do Sol, which bounded the exercise of indigenous rights over the area and framed future land demarcations. In case the Decree is considered constitutional, will the Supreme Court follow the decision of the Inter-American Court on Human Rights in the case of Saramaka People vs. Suriname and recognize the diversity of property and land rights exercised by the Quilombo communities? To what extent will the judgment of the Supreme Court incorporate the constitutional concept of Quilombo communities as a cultural heritage of the Brazilian society?
If the Supreme Court considers Decree 4887 unconstitutional, Brazil will adopt a regressive approach to addressing the housing and living conditions of all Quilombola communities and will lose the opportunity to follow the human rights provisions enshrined in the Constitution and in international human rights law. The ‘juridical contra-revolution’ asserted by Boaventura de Souza Santos, meaning “a form of conservative judicial activism which seeks to neutralise the democratic gains achieved over the past two decades by political means in Latin America” seem to have encroached in many relevant decisions taken by the Brazilian Supreme Court regarding fundamental human rights.