Coordinated attacks on Brazil’s Indigenous Peoples, and its forests, are coming thick and fast, despite EU policy-makers' requests to see concrete and measurable progress. As charges of international crimes are investigated in the International Criminal Court, the EU should take a stronger stance on the Mercosur trade deal and put it on ice.
Bolsonaro’s government is proposing a dangerous new bill (Bill 490/2007) which states that the demarcation of occupied Indigenous Peoples’ land should be based on the situation on 5 October 1988 – the date Brazil’s Constitution was promulgated. Confirming this “marco temporal” in law would reflect boundaries that ignore all the forced expulsions and violence that preceded 1988, and were established when Indigenous groups lacked legal standing to contest landgrabs in their own name. The ‘time mark’ would represent a significant grab – “retake” − of customary Indigenous lands to open them to extractive industries; it was approved by a Commission of Constitution and Justice on 23 June.
In 2020, the UN Rapporteur on Indigenous Peoples had sent a letter to Brazil alerting that the marco temporal violates international human rights law. It was nonetheless approved by a Commission of Constitution and Justice on 23 June 2021. A delegation of Indigenous Peoples with the Levante pela Terra countrywide movement against Bill 490 was attacked with teargas at the Chamber of Deputies annex during the debates on that bill.
The Brazilian Articulation of Indigenous Peoples (APIB; #MarcoTemporalNão) and others are fighting the draft law by all the means at their disposal. APIB has sent an urgent appeal to several United Nations rapporteurs to stop the Bill’s further progress in Congress.
The marco temporal is also being challenged before Brazil’s Supreme Court (STF) in a case relating to the Xokleng people’s territory, which will have broad repercussions by setting a binding precedent. Proceedings were set to begin on 30 June 2021. The Court went on break instead, and the date has been reset for 25 August. Notably, an STF judge who is against the marco temporal is set to retire; pressure is coming from the agrobusiness lobby that is hoping Bolsonaro’s new appointee to the Court will tilt the balance in their favour.
Unfortunately, groups must fight each law proposal one by one, and there are many: the ‘Land-grabbers Bill’, Bill 2633/2020, intended to regularise private occupation of public lands; Bill 984/2019 to build roads in Iguaçu National Park and other conservation units; Bill 177/2021 that would authorise the Brazilian president to withdraw from International Labour Organisation Convention 169 on Indigenous and Tribal Peoples, limiting future accountability; Bill 191/2020 that opens Indigenous lands to exploration for mining and infrastructure projects. Despite being in clear violation of the Brazilian Constitution, these bills are progressing through various legislative committees.
The attacks are also murderous. Indigenous groups and human rights organisations accuse Bolsonaro’s government of also creating a permissive atmosphere for physical attacks on Indigenous and environmental defenders. More than two dozen have been assassinated since 2019. Some live under threat, with Cacique Babau a case in point, whose fight to demarcate his Pataxó People’s land resulted in a consortium plot to assassinate him. Invasions of Indigenous territories have also dramatically increased in recent years; in a time of raging pandemic, this exposes them fatally to disease. Deforestation has soared to a 14-year high, and continues to increase.
On 23 June, an international commission of 12 lawyers, supported by civil society, proposed a definition for the crime of ecocide, a crime against humanity and against the planet, to be considered among international crimes at the International Criminal Court in The Hague (ICC). APIB will file a case alleging ecocide, as well as on the crime of genocide, against Bolsonaro before the ICC in July 2021. APIB’s case will be joined to a 2019 case brought by the Collective for the Defence of Human Rights (CADHu) and the Arns Commission, made up of former ministers and intellectuals, for crimes against humanity and incitement to the genocide of Indigenous Peoples committed by Bolsonaro.
With ecocide, genocide and crimes against humanity in play, why is the EU still even remotely considering a trade agreement with Brazil? It is clear that it is not possible to bring about change by working within the system. Bolsonaro has shown himself impervious to constructive criticism – he can even be goaded into worse behaviour by it. Supporting this government with additional funds through aid without conditions, and proposing an EU deforestation law that would not respect customary rights, would be an insult to Indigenous Peoples. The EU must take a strong stance in dealing with a trade partner gone rogue, which in a first instance includes ‘stop negotiating’.