Bridging the Gap between Indigenous Rights and their Enforcement in Brazil through the Inter-American Court’s Xukuru Case: A Realistic Goal or an Unachievable Dream?

23 May

Written By GroJIL International Law Under Construction

Chloe Autran

Introduction

“This trial brings the possibility of a historical reparation in the process and struggle of the indigenous people for territorial demarcation.” These are the words of Indigenous leader Cacique Marcos Xukuru, referring to a pivotal trial against the Brazilian state before the Inter-American Court of Human Rights (IACtHR): Xukuru Indigenous Peoples and its members v. Brazil. First of its kind – Brazil had never been challenged by the court prior to this case – the trial seemed to establish a domestic precedent for the protection of a fundamental Indigenous right; that of collective property and the ownership of traditional land.

This right is expressly protected under the Brazilian Constitution, considered a ground-breaking legal document when it first emerged in 1988. Article 231 provides that the State is responsible for demarcating and protecting Indigenous land, which is acknowledged as a vital pillar for their physical and cultural survival. Unfortunately, what was written on paper seemed to remain in the normative realm. Although the Fundação Nacional do Índio (FUNAI, or National Indian Foundation) was tasked with demarcating traditional land, only about 67% of the designated territory was officially recognised [p. 209] as Indigenous in 2018. Violent confrontations with external occupants and illegal exploitation of natural resources also remained part of tribes’ daily realities.

Although the Xukuru community’s struggle to their land is but one example of countless unsuccessful demarcation cases, it dared to seek supra-national litigation as a means of redress. The outcome of this case was ground-breaking as the IACtHR recognised Brazil was effectively in breach of international Indigenous property rights. One important question, however, remains: did the case follow the same faith as Indigenous constitutional rights, limiting itself to the realm of words and ideas? Or did litigation contribute to effectively seal the discrepancies between the law and its practical implementation? Raising the hopes of many when first announced, the IACtHR decision was recently challenged, as new legislative bills threatening Indigenous’ right to their land have been brought to the discussion table… yet again.

The Discrepancies within the Indigenous Protection System in Brazil: International Law as the Adequate Remedy?

Before diving into an analysis of the Xukuru trial itself, it is important to measure the width of the gap between indigenous rights on paper and in practice.

One of the most innovative elements of the Brazilian Constitution of 1988 was its new approach towards Indigenous peoples. Following a long-standing struggle lead by civil society in Brazil, the legal document ultimately acknowledged their independent cultural, socio-political and legal identity. Article 231 of the Brazilian Constitution (1988), for instance, recognises communities are entitled to their traditional land, implying the Brazilian State is responsible for demarcating and protecting their proprietary rights [p. 3]. The Article is referred to by De Oliveira Dias and Souza Dias as a ‘Constitutional device’ setting out the guidelines for the development of the land demarcation system.

Legal innovations, however, greatly contrast with the actual implementation of the law. When dealing with Indigenous land demarcation cases, the Supreme Court has based its reasoning on the ‘marco temporal’ principle to reach unjust, yet legally justified, decisions. It stipulates Indigenous territory can only be demarcated provided the community proves it was physically present on the land on 5 October 1988, effectively allowing courts to ignore the historical expulsion of tribes from the land occupied prior to this date.

There is, however, a discernible gap between the implementation of Indigenous rights in Brazil and internationally. In fact, the 1969 American Convention on Human Rights provided for the emergence of key organs overseeing State’s implementation of protective human right provisions. This includes the Inter-American Commission on Human Rights and the IACtHR, which focused extensively [p. 19] on Indigenous rights. From the date of its creation up to 2018, the court addressed twenty-five contentious cases brought by Indigenous communities, twelve of which involved territorial rights and land demarcation. The IACtHR adopted a largely progressive interpretation of Article 21 (right to property) of the Convention. Most of its decisions ultimately granted Indigenous communities the right to own their land (Mayagna (Sumo) Awas Tingni v Nicaragua in 2001 and Saramaka people v Suriname in 2007) and recognised the vital link between Indigenous peoples and their territory for survival (Yakye Axa v Paraguay in 2005 and Kichwa of Sarayaku community v Ecuador in 2012).

The Xukuru case is another example of the Court’s willingness to expand Indigenous rights. However, did it contribute to generate institutional change across the Brazilian legal landscape?

The Promising Potential of the Xukuru Case

The Xukuru tribe’s long-awaited territory demarcation procedure began in 1989, following a promulgation by the Ministry of Justice at the time. After numerous challenges posed by third parties interested in exploiting the land, the official designation of their territory was finally confirmed in 2010. Until 2018, however, the State failed to fully restore [p. 209] the land to its rightful occupants as non-Indigenous persons remained, resulting in a series of assassinations and other forms of violence.

Against this backdrop, the community, and its representatives, submitted a complaint before the Inter-American Commission on Human Rights in October 2002. Failing to follow the recommendations delivered by the Commission, Brazil was subsequently challenged before the IACtHR in March 2016, which delivered its final decision in February 2018.

The Court’s legal analysis focused mainly on the violation of the right to collective property. It based its reasoning on a wide interpretation of Article 21 of the American Convention, read in a manner which provides for the protection of Indigenous communities’ ‘customary communal use of traditional lands’ [p. 210]. The Court also acknowledged the Brazilian State’s obligations vis a vis its Indigenous tribes. On this basis, it established that territorial rights must materialise through the adoption of legal and administrative initiatives, capable of strengthening the land demarcation mechanism. Three reparation measures were therefore adopted. Brazil was ordered to:

Ensure ‘the final delivery of the traditional territory to the community, immediately and effectively’;
Publish the judgement on the government’s website; and
Create a communitarian development fund of one million, to be administered jointly by the State and the Xukuru community, in addition to providing 10,000 dollars for compensation.

The potential of the outcome seemed limitless.

Measuring the Practical Impact of the Xukuru Case

In the words of Navarro, ‘[t]he Xukuru case was an important reinforcement of territorial rights, while simultaneously strengthening regional jurisprudence and domestic demands for the implementation of Indigenous constitutional rights’ [p. 204]. The IACtHR’s progressive interpretation of Article 21 undeniably opens a window of opportunity to transform the approach adopted by domestic courts, enhancing interactions [p. 566] between the international and national legal spheres.
Brazilian case law following the Xukuru decision was promising. A court in the state of Amazonas, for instance, ruled in favour of the FUNAI after a civil action was brought to condemn the lack of human and material resources necessary for the foundation to perform its functions. The Xukuru case was used to emphasise the consequences of Brazil’s disregard for Indigenous communities in light of its legal duty to protect them [p. 628]. The Inter-American decision was also cited in two cases brought by the Kayabi and Xacriaba tribes before domestic courts to emphasise (1) the right to collective property and (2) a guarantee to protect traditional demarcated land.

The Xukuru impact was undeniable. However, the case has been mainly used to strengthen arguments and justify judicial decisions. Is it enough, to generate institutional change? As argued by Von Bogdandy, [p. 643] the full potential of judicial decisions should be accompanied by the implementation of adequate policies.

If the Xukuru case built significant judicial momentum for a wider interpretation of Indigenous rights, the progressive trend was not sustained over time. A series of recent legislative proposals [p. 347] have entered the political debate, seriously threatening tribes’ livelihoods and enjoyment of territorial property. These include bill 191/2020, potentially authorising infrastructure projects to exploit Indigenous territory. Bills 2633/2020 and 510/2021 open the possibility to legalise the unlawful occupation of land in the Amazon region. Additionally, bill 3729/2004, which simply removes the environmental licensing requirement for projects nationwide, recently turned into legislation. Clearly, constitutional Indigenous rights seem to have taken the back seat once again. In addition to the increasingly restrictive laws in Brazil, the government remains passive in the face of blatant violence [p. 37]. In 2019, murders increased by 20% compared to 2018, whilst 160 land invasions were registered in the first half of 2019, more than double the total number of invasions in 2018.

Concluding Remarks

While the potential of the local Xukuru struggle was explored at the supra-national level, the Court’s progressive interpretation of legal provisions inspired the Brazilian judiciary to follow suit. This, however, constitutes an initial step towards systemic change. Obligations binding the Brazilian state are yet to be fulfilled through adequate policies transforming the administrative and legal structures intended to protect Indigenous peoples’ right to own their traditional land.

Is there a way forward? Can the IACtHR rulings be transformed into practical legal reforms? The solution was well formulated in a 2017 report by Open Society Justice’s Initiative: ‘[a] court’s decision is in many ways the beginning of the battle, rather than the end of a process’ [p. 77]. Indigenous communities must be able to engage with the government long after a ruling is issued. Maintaining strong relationships between lawyers, legal organisations and Indigenous communities is equally as critical after a case is concluded to ensure judicial decisions are implemented in practice.

Various initiatives and mechanisms can be used to secure long-term engagement. First, financial support must cover the litigation costs, but also the ‘post-ruling advocacy struggle for implementation’ [p. 78]. Second, specialised institutions tasked with implementing court decisions should also be established. Following the ruling of a Hight Court case initiated by the Temuan-Orang Asli community in Malaysia, for instance, was created the Indigenous-lead Badan Bertindak Tanah Orang Asli Selangor [p. 55] (Selangor Orang Asli Land Task Force). It is responsible for the protection of natural reserves in the Orang Asli area by ensuring, amongst other initiatives, that public records are kept in order. Combined, both mechanisms could facilitate the creation of a comprehensive advocacy framework capable of leveraging the pressure exercised by courts to push for policy and legislative change.

Only with strong long-term interactions among Indigenous peoples, the legal community and the government can the power of strategic litigation be fully unlocked. In this sense, the Xukuru case represents an undeniable step forward, but remains more than one step away from fully reaching its potential.