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BRAZIL: Start of Landmark Case Bodes Well for Indigenous People

Mario Osava

RIO DE JANEIRO, Aug 28 2008 (IPS) - A Brazilian Supreme Court hearing on a landmark case got off on a positive footing for the indigenous people who live in the Raposa Serra do Sol reservation in northern Brazil.

The Court, which will set an important legal precedent when it decides the fate of the reservation in the Amazon jungle along Brazil’s northern border, delayed the final decision when one of the judges asked for a recess to further investigate the case, on the first day of the hearing Wednesday.

Magistrate Carlos Ayres de Britto, the first and only judge to have voted so far, used the Portuguese word “esbulho” (dispossession or unlawful possession) to describe the occupation of parts of the reservation by non-indigenous landowners who want to break up the 1.7 million hectare reserve in order to hold on to the land that they farm.

The demarcation of the reservation as one continuous tract of land in the state of Roraima, on the border with Venezuela and Guyana, was signed into law in 2005 by President Luiz Inácio Lula da Silva.

In his vote, Britto rejected the complaint brought by two senators from Roraima state with the backing of local government authorities, landowners and even factions of the indigenous groups.

He said the reservation must remain intact in order to live up to the constitutional rights of the 19,000 members of five indigenous groups who share the territory.

The Supreme Court ruling will be decisive not only for the people of Raposa Serra do Sol but for a large part of the indigenous people living in areas disputed by landowners and ranchers in Brazil.

Native groups, indigenous rights activists and environmentalists fear that a verdict in favour of breaking up the reservation could also open up to legal challenges dozens of other indigenous territories that have already been demarcated.

The position taken by Britto, who spoke for nearly two hours, represents more than just one vote on the 11-judge panel. The next magistrate in line to vote, Carlos Alberto Direito, asked for more time to look into the case, after praising Britto’s broad knowledge of the matter.

The president of the Supreme Court, Gilmar Mendes, said he hoped a verdict would be handed down before year-end.

The legal challenge to the demarcation of Raposa Serra do Sol defends the “acquired rights” of landowners, mainly rice farmers, who lay claim to property within the reservation.

Joenia de Carvalho, the first female indigenous lawyer to make a presentation at a Supreme Court hearing, said the farmers, who she described as “invaders” of traditionally indigenous areas, have caused land conflicts in the reservation in which “21 leaders have been killed and many houses have been burned down.”

Since 1996, these “supposed owners” have had no right to the land they occupy, said Britto, who said the unlawful possession of the land was proven by notary records that show irregular growth of the property in the hands of the landowners by means of murky sales, mergers and divisions in the 1980s and 1990s.

Former Supreme Court justice and foreign minister Francisco Rezek, representing the Roraima state government, accused the federal government of demarcating Raposa Serra do Sol in an irresponsible manner and of reducing the area under jurisdiction of the state government to just 10 percent of the total, which he said left little land for agriculture.

But Britto argued that the 121,182 sq km – equivalent to three other Brazilian states that are home to 22 million people – of land in Roraima outside of the indigenous reserve and other federal land is more than enough territory for the “less than 400,000 non-indigenous inhabitants of the state.”

The judge also said the anthropological studies on which the demarcation of the reservation was based were sound and widely recognised, and were not questioned for years after they were published.

The studies show that “only a continuous territory ensures the rights of physical and cultural reproduction and integral maintenance of customs and traditions” of indigenous groups, Britto added.

The five indigenous groups, who have lived in that area free of conflict for at least 150 years, have mingled and speak related languages, and the areas where they have traditionally lived border each other to form one continuous territory that should not be separated into “islands,” which would be unconstitutional, said the magistrate.

He argued, furthermore, that indigenous lands and border areas are “perfectly compatible” – a reference to the argument set forth by landowners in that area and even members of the military that the fact that Raposa Serra do Sol is on the border poses a threat to security and national sovereignty.

History shows that the presence of indigenous people along the border has helped defend the country’s frontiers, and the constitution itself recognises private ownership of land along borders as “fundamental to defence,” he said.

To those who express fears that indigenous groups will assert themselves as independent nations with foreign support, based on the United Nations Declaration on the Rights of Indigenous People, Britto said the Brazilian constitution has adequate provisions to prevent this. He also said the constitution is the best possible instrument for defending the rights of native groups.

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