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.