An exclusive investigation reveals that more than 100 properties have been approved on Indigenous Lands (TI is the Portuguese acronym) and are pending demarcation. The authorizations increased exponentially with a new FUNAI regulation that unprotects these territories.

First Place of the Data Journalism Contest “All Eyes on the Amazon”

By Bruno Fonseca and Rafael Oliveira

Originally published in Portuguese in: https://apublica.org/2020/05/com-bolsonaro-fazendas-foram-certificadas-de-maneira-irregular-em-terras-indigenas-na-amazonia/

Under the leadership of Jair Bolsonaro, the government has systematically certified farms in Indigenous Lands (TI is the Portuguese acronym) in the Legal Amazon Region. Since the beginning of his administration in 2019, 42 farms have been certified irregularly, contrary to protections to these lands planned since 2012 by the Fundação Nacional do Índio (FUNAI, for its acronym in Portuguese).

Then, starting on April 22, when FUNAI approved a regulation to authorize the certification of private lands in non-approved Indigenous areas, the number soared. There were 72 new certifications in less than a month, an average of more than two per day. Non-approved Indigenous Lands are areas that await the presidential decree, the last phase of the demarcation process before final registration. To date, the Bolsonaro government has not approved of any Indigenous land.

The conclusions are part of an unpublished investigation by the Agencia Pública, which shows that in the current government there are already 114 farms with the certification approved in the land use system (SIGEF, for its acronym in Portuguese) and that they enter sections of non-approved Indigenous areas. In total, these farms occupy more than 250 thousand hectares of Indigenous areas.

Landowners are required by law to register their properties in the [SIGEF] system of the National Institute for Colonization and Agrarian Reform (INCRA is the Portuguese acronym). Without certification, it is not possible to register the land at the registry office, to apply for financing legally, or to have works authorized, such as hydroelectric connections and other activities, such as requests for mining activities.

With the new regulation published by FUNAI, all 235 Indigenous land parcels in the process of demarcation in the country no longer face any obstacle for the registration of these properties. Protection is also lost to areas formally claimed by Indigenous groups, those with restricted use ordinances, those considered references of isolated Indigenous groups and those assigned for Indigenous usufruct.

The investigation shows another more worrying situation. There are more than 2,000 private properties self-declared in the National Rural Environmental Registry System (CAR/SICAR, for its Portuguese acronym) that affect Indigenous areas in seven states of the Amazon region. Five hundred of these are in territories where isolated Indigenous people live.

According to sources consulted by the report, the self-declarations made in this system may be regulated by PL 2633/2020, which replaces the MP for land occupation and this matter may be put to vote this week in Congress.

According to the criteria of attorney Juliana de Paula Batista, from the Socio-Environmental Institute (ISA, for its Portuguese acronym), the statement obtained in FUNAI, associated with PL 2633, may allow the legalization of illegally occupied lands. Bolsonaro promised not to demarcate any centimeter of Indigenous land, during his campaign. However, the Bolsonaro government also recently presented Bill (PL) 191/2020, which aims to legalize mining on Indigenous lands. In an interview with Pública, the deputy attorney general Antônio Carlos Bigonha stated that the approval of the mining PL would be “as if the State decided to legalize homicide due to no knowing how to control it.”  Bigonha is the coordinator of the Constitutional Review Court of the Federal Prosecutor’s Office, which is the mediator of the Indigenous relationship with the State.

The more than 100 private properties with authorized certification in the last two years affect 12 Indigenous lands in the states of Pará, Mato Grosso, and Maranhão. In these, 10 different ethnic groups live. The average for previous years was three illegally certified farms in Indigenous areas, for a comparable figure.

As reported by INCRA in response to Pública, FUNAI is responsible for adopting measures for the rectification or cancellation of land certifications that irregularly affect Indigenous territories. After requesting their opinion, no replies were received from FUNAI until the publication date.

Most of the certified farms are concentrated in the area of the Legal Amazon Region, in the state of Maranhão and the most critical situation is that of three neighboring Indigenous territories, which register conflicts and murders of Indigenous peoples : the lands of Bacurizinho, Kanela Memortumré and Porquinhos dos Canela-Apãnjekra. The surface area of the three regions began to be reduced by 74 certified farms, between 2019 and 2020, most of which were approved by the government before FUNAI published the regulation that authorized the certification of private land in non-approved areas.

The three have already been delimited, which means that the studies were approved by the FUNAI President and published in the Official Gazette of the Federation. Kanela Memortumré had already passed to the declared stage, through an ordinance of the Ministry of Justice that recognizes that the territory must be physically delimited, but was adversely affected by the opinion of the former Minister of Justice Sergio Moro, so the process was sent back to FUNAI.

In Mato Grosso, on the other hand, there are Indigenous lands that have almost half of the area occupied by agricultural farms that are registered. This is the case of the land of Cacique Fontoura, in San Félix do Araguaia. The Fontoura farm was registered and certified in the federal system on April 23, one day after the FUNAI regulation. Most of the agricultural area is within Indigenous land, not outside it.

The area has been contested for years. In 2016, the Federal Court of Cuiabá dismissed a lawsuit that requested the recovery of a farm of almost 10,000 hectares located on Indigenous land.

The Maranhão Indigenous Lands, near the limit of the Legal Amazon Region, have the largest number of authorized farms in their areas. The Porquinhos TI is one of the most affected.

In addition to the farms certified by INCRA in Indigenous areas, 42 of the 48 TIs not approved in the Amazon have some part of the territory invaded by self-declared land registries made in the Rural Environmental Registry (CAR, for its acronym in Portuguese), under the responsibility of the Brazilian Forest Service. Since Bolsonaro took office, the entity was transferred to the Ministry of Agriculture, Livestock and Supply (MAPA is the Portuguese acronym).

In total, 2,165 rural properties self-registered in the system include Indigenous Lands in the states of Acre, Amazonas, Pará, Rondônia, Mato Grosso, Tocantins and Maranhão. Most of these records are pending analysis, but there are seven of them with completed analyses, which means that there are no pending issues.

According to the regulations of FUNAI, when it affects Indigenous lands, the record cannot be published.

One of these private properties that was analyzed and has no pending issues invades the Menkü territory, of the Myky people, in Mato Grosso. The Indigenous land is almost entirely invaded by other land parcels of landowners that are under analysis.

“[The] farmers say that we no longer need land, that ours is already a sufficient size and that we just have to work,” says the leader of the Tupy Myky. “At all times, they ask us to surrender, that if we give up they will be in our favor, they will go to Brasilia to fight with the government in order to get resources, machinery. But we made it very clear that we are against such ideas, and that we will fight for as long as we can,” he said.

Some of the Menkü land has been approved since 1987, but the process has been questioned by the Myky people, who are waiting for a new study that could expand the area to 146,000 hectares.

For the Tupy, measures like FUNAI’s regulation are “against Indigenous groups” and will strengthen farmers who dispute land with their group. “This decision by FUNAI and, above all, the statements that President Bolsonaro always makes might encourage landowners to invade this land. – “Landowners say: If we do something with the Indigenous people, no one will say anything,” say the Myky leaders.

Seven areas where uncontacted Indigenous people live are subject to CAR by the owners, six of them with restricted use guaranteed by FUNAI.

Research shows that more than 500 rural properties have been registered in SICAR, CAR’s online system, in areas where isolated groups live.

The most affected land is Ituna/Itatá, in the state of Pará. The territory, which was the deforestation champion in 2019, according to data from Prodes/INPE is filled almost entirely by private ownership registries.

In Mato Grosso, the report found hundreds of private lands declared in the Apiaká do Pontal, Kawashiva do Rio Pardo and Piripkura TIs, where uncontacted Indigenous peoples live. In Rondonia, the 8,000-hectare small TI of the Tanaru already has more than a third of the area registered by landlord registries.

In the state of Mato Grosso, in the territory of the Manoki Indigenous people, eight farms were certified by INCRA in SIGEF after FUNAI published the regulation that did not protect non-approved TI. The five farms have the entire area within the Indigenous land. In addition, much of the Manoki territory is traversed by private properties self-declared by their owners that are waiting in SICAR to be analyzed by the government.

“There is a lot of invasion by logging companies, which extract a lot of lumber. As it is an invasion, they set fire to the forest and built fences, brought cattle, etc. After the cattle, [agriculture enters] and that’s how they are invading such places,” says Giovani Tapura, one of the leaders of the region. In 2018, a report by Pública showed the Manoki’s fight against farmers who invade their territory and block the demarcation process.

According to Giovani, despite the large number of conflicts in the region, until 2018 Indigenous peoples had support based on FUNAI’s measures. After the election of Bolsonaro, the situation began to turn even more unfavorable for the Manoki. “We relied heavily on IBAMA when there was a logging invasion and today, the government does not care. The FUNAI is no longer what it used to be. To start the delimitation process, this did not take us a day of study and experience, it took many years. With just one signature, were all those anthropological studies lost? Our study was begun in 1992 and it has lasted until now, almost 30 years,” he says.

The report found declarations of certified lands and farms in the area where the Manoki live, who are struggling to complete the demarcation process of their territory.

“This measure [by FUNAI] benefits those who have already invaded the land, who are already within the territory. This weakens the Indigenous people and strengthens the agribusiness and logging companies that have already invaded our territories,” says the Indigenous Arapium, Auricélia Fonseca. She is a law student at the Federal University of the West of Pará (UFOPA is the Portuguese acronym), and a deputy coordinator of the Tapajós Arapiuns Indigenous Council (CITA), which represents 13 ethnic groups from 18 territories of the Baixo Tapajós region, in Santarém; Belterra and Aveiro, in Pará.

According to an investigation by Pública, the lands of the Maró, Cobra Grande, Bragança-Marituba and Mundukuru-Taquara, which are located in the region, have 100% of the territory coveted by the declarations made by the landowners. The four areas have already been delimited and two of these were already declared.

In the territory of the Maró, for example, due to death threats one of the chiefs had to have bodyguards, as the town managed to recover part of its territory from the loggers, according to Auricélia.

In the Tapajós Medio region, Alessandra Munduruku, one of the main Indigenous women leaders in the country, affirms that the role of the president of FUNAI is “genocidal”. “Other women and I, who are at the front line, we are defending our territory with more energy than a guy in a suit, who is in charge of negotiating our lands. He does not have the dignity to work for FUNAI, to walk through the towns, he is not even speaking on behalf of the Indigenous peoples because he has the blood of the Indigenous peoples in his hands,” says the first woman president of the Pariri Indigenous Association.

The largest unapproved Indigenous territory in the region, Sawré Muybu, is the target of six private lands that have self-declared their ownership of some section of the Indigenous lands.

In Sawré Muybu, the Munduruku are also trying to curb the interest of miners, even though this land has been the most requested for TI mining rights, in the last decade. There are 97 processes, which represent more than 14% of all orders in the Amazon region, as was revealed by Pública.

“Is FUNAI going to exist to kill more people, like they are doing now?,” asked Alessandra. “For us what counts is the land. If the Indian does not have his territory, he gets sick, and that is what FUNAI is doing to us. Only they forgot that we have endured for over 520 years. We are going to fight for our land to be demarcated, either in this administration or another one. Because governments pass, but our lands remain,” he says.

FUNAI withdrew the protection of non-approved Indigenous lands, but Bolsonaro has not yet completed any approval process in his government. Indigenous peoples criticize the lack of land demarcation.

The FUNAI regulation that allowed the certification of farms on non-approved lands was enacted by the Federal Government’s Secretary for Agrarian Affairs, Nabhan García. The former president of the Rural Democratic Union (UDR is the Portuguese acronym) appeared in a video with the president of FUNAI, Marcelo Augusto Xavier, to commemorate the measure and to state that the non-approved TIs were considered Indigenous lands due to “an ideological motive” and in an “illegal way.”

In March last year, INCRA even sent FUNAI a draft regulation with a similar effect, in which it proposed the elimination of TIs not approved by the Land Management System (SIGEF). At that time, the then president of the Indigenous entity opposed the proposal, and agreed to the technical information and opinions contrary to the measure. Franklimberg Ribeiro de Freitas was fired a few days later, and in an interview with Folha de S. Paulo he stated that Nabhan García “really hates Indigenous groups.”

According to the Organization of Indigenous Peoples of Brazil (APIB is the Portuguese acronym), the regulation attacks Indigenous rights and will cause an increase in conflicts over land.

“There is an ongoing genocidal policy and administrative measures will aggravate socio-environmental and ethnic-cultural conflicts of Indigenous groups and these invaders who try at all costs to usurp our territories for different purposes,” says Dinamam Tuxá, APIB’s vice coordinator.

The situation produced many comments that opposed FUNAI’s measure.The Indigenous Missionary Council (CIMI is the Portuguese acronym), the Brazilian Association of Anthropology (ABA is the Portuguese acronym), the FUNAI Employees Association and the Socio-Environmental Institute  condemned the regulation. Federal deputy Joenia Wapichana (Rede-RR) presented a proposal for a legislative decree in order to stop the application of the new regulation of FUNDAI to “safeguard the constitutional rights of Indigenous groups.” The Sustainability Network also presented a Declaration of breach of fundamental precepts (ADPF 679) against the regulation of the Supreme Federal Court (STF, for its Portuguese acronym), but the appeal was denied by the prosecutor, Luiz Fux, without a judgment on the merits. Another party, the Workers’ Party (PT), also went to court to file a lawsuit against the regulation. Four deputies of the PT summoned the Sixteenth Federal Court of Brasilia ^is in a class action against President of FUNAI.

The Federal Prosecutor’s Office (MPF, for its Portuguese acronym) requested that the regulation be analyzed by the STF and published on April 29 a recommendation requesting the immediate dismissal of the regulation. Signed by 49 lawyers from 23 states, the document considers that the measure is unconstitutional because it creates “an undue order of precedence of private property over Indigenous lands.”

The Supreme Federal Court (STF, for its Portuguese acronym) has already considered that the State should protect Indigenous lands, even without a decree of approval. Last Friday (the 15th), the Mato Grosso MPF filed a civil action lawsuit requesting that FUNAI and INCRA be required to maintain or include in SICAR and SIGEF all the state’s Indigenous lands, under penalty of sanctions. If the judicial branch complies with the request, the TIs that have not been approved and the other areas that were protected before the FUNAI regulation will be protected again in the state. According to Pública, the goal is to establish a legal front at the national level, and prosecutors from other Brazilian states are already working to file similar civil action lawsuits.

In 2017, prosecutor Luiz Fux considered unconstitutional the inclusion of the term “demarcated” in an extract from the Forest Code that describes Indigenous lands, considering that “the demarcation and title of territories are merely declarative, and not constituent.”

In 2013, in the extract from the ruling of petition 388, related to the case of demarcation of the Raposa Terra do Sol TI, it was stated that “the rights of Indigenous people over the lands they traditionally occupy were constitutionally ‘recognized’, and not simply granted, with which the act of demarcation is of a declaratory nature, and not actually constituent.”

Methodology

To obtain the data, the report researched three public databases: Indigenous Lands of FUNAI ; the properties of the Rural Environmental Registry (CAR, for its Portuguese acronym) ; and private properties registered in the Territorial Management System (SIGEF is the Portuguese acronym). When crosschecking the information, we considered only non-approved TIs, since FUNAI regulations released land registration in these areas. From the CAR database, only rural properties (IRUs, for its Portuguese acronym) were considered in municipalities where TIs exist. And of the properties registered in SIGEF, we take into account only those that are legalized and that have a status of certified by the system. The results are the overlap of the selected areas of the CAR and SIGEF databases with the TI areas. All the research took into account the eight states of the Legal Amazon Region, in addition to part of Maranhão.

Read it in Spanish, here

The report is included in the Agencia Pública project called Lawless Amazon Region, which investigates violence related to territorial regularization, land demarcation and agrarian reform in the Legal Amazon Region. The special article also covers conflicts in Cerrado, the second largest Brazilian biome.

Update (05/19/2020 at 7:45 p.m.): The infographic “Certified farms in Unapproved Indigenous Lands” has been updated, since the 72 farms approved after the FUNAI regulation were authorized in a period of less than 30 days.

Update (05/20/2020 at 11:53 a.m.): We have corrected the information on the location of Tanaru TI, which is in Rondonia, not in Roraima.