Mr James Wolfensohn President World Bank
Brasilia/DF, February 15, 1996
Dear Mr President,
CAPOIB, The Council of Unity of Brazilian Indigenous Peoples and
Organisations, an organisation which brings together more than one hundred
indigenous organisations in Brazil, is aware that the World Bank is
currently considering the implications of Decree 1775/96 for the
implementation of its projects related to the demarcation and
regularisation of indigenous lands. For this reason we are writing to you
to offer data to be considered during this evaluation.
Since January of this year, indigenous peoples and organisations in Brazil
have been expressing, in the strongest possible terms, their rejection of
the measure imposed by the Brazilian government through Decree 1775/96.
This policy and this regulation violate our historical and constitutional
rights, and threaten the security of our existence now and that of our
future generations.
In view of this, we wrote to officials of the World Bank, to the G7
countries, and to the European Union, requesting the temporary suspension
of funds allocated to projects involving the demarcation and
regularisation of indigenous land in Brazil until the Brazilian government
revokes Decree 1775/96, and establishes an indigenous policy compatible
with the rights of the indigenous peoples.
Our intention in making this request is to ensure that our right to life
is respected and made effective. We can no longer endure the continuing
pressure and violence which threaten and exterminate our people, and we
wish to warn public opinion, in Brazil and abroad, that Brazil 's current
policy towards indigenous peoples, implemented by Decree 1775/96, is the
road to the genocide of Brazil's indigenous peoples.
It was for the same reason that we met, on February 6 last in Brasilia,
with the Bank's representatives. On this occasion we expressed yet again
our rejection of the Brazilian government's measure and drew attention to
the insurmountable obstacles Decree 1775/96 places in the way of the
regularisation of indigenous lands in Brazil, obstacles which make it
impossible for the contracts signed between Brazil, the World Bank, and
donor countries for the demarcation of our lands to be kept.
At this meeting, we presented a lengthy document in which we stated that
there is in operation in Brazil a deliberate policy of reduction of the
area of indigenous territories, embodied now in Decree 1775/96 and even
more obvious in Ministerial Order 14/96, of January 9, which
operationalises the Decree.
At the February 6 meeting, we also stressed our concern about the Bank's
moral commitment, in encouraging the establishment of such a policy,
through its support for demarcations which, based now on Decree 1775/96
and Ministerial Order 14/96, will serve the purpose of reducing indigenous
territories.
We wish now to offer further evidence which we think should be taken into
consideration in the assessments of the World Bank and donor countries.
This is set out below.
REDUCTION OF INDIGENOUS TERRITORIES
The mechanism which makes possible the reduction of indigenous territories
is contained in Ministerial Order 14/96, issued by the Minister of
Justice, Mr Nelson Jobim, and dated January 9, 1996.
The mechanism for reducing the area of indigenous territories is based on
a 'reinterpretation', which contradicts the constitutional basis of the
concept of 'lands traditionally occupied'. Ministerial Order 14/96
undermines this concept by eliminating the basis for distinuishing
indigenous lands from others, namely traditional occupation, as defined by
uses, customs and traditions.
What the Constitution says. The text of the Constitution tells us that
lands traditionally occupied by Indians are defined by four inseparable
and interdependent conditions, which define indigenous possession. Lands
traditionally occupied by Indians are those (1) permanently inhabited; (2)
used for productive activities; (3) essential to the preservation of the
environmental resources necessary to their well-being; and (4) necessary
for their physical and cultural reproduction. These four conditions are
interpreted by a set of three fundamental criteria: according to their
uses, customs and traditions.
What Ministerial Order 14/96 says. Miniusterial Order 14/96 associates
uses, customs and traditions exclusively with the 'areas necessary for
their physical and cultural reproduction'.
On the basis of this 'reinterpretation' of the constitutional provisions
on indigenous possession of land, Ministerial Order 14/96 makes it
possible for indigenous lands, including those already demarcated, to be
reduced.
COMPENSATION FOR LAND
Decree 1775 and Ministerial Order 14/96 create a 'compensation industry'
for those who consider themselves to have suffered from the demarcation of
indigenous lands.
Compensation for improvements carried out in good faith was already
provided for in the Federal Constitution. Nonetheless, Decree 1775/96 and
Ministerial Order 14/96 stipulate payment of compensation for lands to
those who claim to have suffered from demarcations, which is absolutely
illegal and unconstitutional.
The payment of compensation for lands is also based on a 'reinterpretation'
of the constitutional provisions, which considers that indigenous lands
can only be considered as such when there is a corresponding entry in a
land registry, and therefore that titles issued to invaders up to the time
of such an entry are valid.
We enclose with this letter a document produced by CAPOIB, the Comissao
Pro-Indio de Sao Paulo and CIMI, the Indigenist Missionary Council,
dealing specifically with the 'indigenous land compensation industry'.
This is intended as a resource for the World Bank and the donor countries
in their assessment of demarcation projects.
We do not want our lands to be reduced and resources from the public purse
and donors to be used to compensate land-grabbers and all sorts of
invaders who have stolen our land and have no right to compensation under
any Brazilian law.
We cannot accept any more arguments from the Brazilian government which go
against our people and the Constitution of our country, and in favour of
all those who have stolen our lands or acquired them by fraud.
Mr President, we thank you for your attention, and are confident that our
submission will be considered and receive a response.
Yours sincerely
Antonio Pessoa Gomes
Juvino Sales
Jose Severino da Silva
for the Executive Committee of CAPOIB
copies to:
* Denis Mahar - World Bank representative in Brazil
* Ambassadors of the G7 countries and the European Union
* Board of the World Bank
* Legal Department for Latin America and the Caribbean
APPENDIX 1
THE INDIGENOUS LAND COMPENSATION INDUSTRY
Decree 1775/96 (which defines the administrative procedure for the
demarcation of indigenous lands and Ministerial Order 14/96 (which
establishes rules for the preparation of the identification and
demarcation report for indigenous lands) create a 'compensation industry'
for those who consider themselves to have suffered from the demarcation of
indigenous lands.
In establishing the right of challenge in the administrative procedure,
the decree stpiulates that deeds of ownership may be used as evidence in
applying for compensation. The application for compensation and the
relevant pieces of evidence, according to the decree, become part of the
administrative procedure for the demarcation of indigenous lands, since
this guarantees the right of challenge and full defence.
It is the responsibility of FUNAI to accept the application, include it in
the file, give an opinion and foward all the documents to the Minister of
Justice for the Minister to decide on the fate of the demarcation and the
application for compensation.
Maliciously, Decree 1775/96 mentions compensation, but does not describe
the type of compensation (Article, 9, para 8). Compensation for
improvements carried out in good faith on indigenous land is already
provided for in the Brazilian Constitution.
Even though it does not describe the type of compensation, Decree 1775/96
provides for compensation for the lands of those who believe themselves to
have suffered damage, such compensation to be based on deeds of
ownership, since it starts from the principle that such deeds are
legitimate, legal and valid until the indigenous land to which they relate
is registered in a land registry.
The possibility of this sort of compensation is not clearly stated in the
decree, but is evident in Ministerial Order 14/96, which states that
indigenous lands can be considered as such only when there is an entry in
a land register, and thus that deeds relating to them before the date of
such an entry are valid.
This 'reinterpretation' of the constitutional provisions dealing with
indigenous lands and the rights of third parties to them, expressed above
all in Ministerial Order 14/96, is the mechanism which enables states of
the Brazilian federation, municipalities and 'other interested parties' to
claim compensation for lands which are supposedly owned by them before the
indigenous land is registered in a land registry.
ACCESS TO COMPENSATION
PREMISE: Deeds of ownership relating to indigenous lands lose their legal
force only when these lands are registered in a land registry.
This premise is contained in Ministerial Order 14, of January 9, issued by
the Minister of Justice, which says:
'CONSIDERING that the decree of ratification of the
President of the Republic, provided for in Article 5 of Decree
1775 of January 8 1996, has the effect of declaring the
Brazilian Federation's ownership of the demarcated area and,
after its registration in the competent land registry, has the
effect of cancelling any private ownership which may obtain
over the said area (Article 231, 6 of the Federal
Constitution)'.
HOW TO OBTAIN COMPENSATION
LEGAL BASIS: The legal basis for obtaining compensation is contained in
Decree 1775/96 and in Ministerial Order 14/96.
WHAT IS REQUIRED TO OBTAIN COMPENSATION: Decree 1775/96, Article 2, Para
8, allows deeds of ownership to be used as evidence 'for the purpose of
applying for compensation'.
TIME LIMIT FOR APPLICATIONS: The application for compensation, according
to Decree 1775/96, must be submitted by April 9 1996 in the case of
demarcations in progress, that is, lands which have not yet been
registered in land registries.
For compensation in the case of lands which have not yet been identified
as belonging to and occupied by indigenous peoples, the time limit for the
submission of the application is ninety days after the publication of the
report on the identification and topopgraphical delimitation of these
lands, which is carried out by FUNAI.
HOW TO PRESENT THE APPLICATION: The application for compensation is sent
to FUNAI, it being sufficient to submit an application with the relevant
evidence, that is a deed of ownership (fixed possession [posse] or legal
ownership[propriedade]), with a description of its nature and origin, as
provided for in Ministerial Order 14/96.
FUNAI, once it has received the application, forwards it to the Minister
of Justice within sixty days, as stipulated in Decree 1775/96, Art 2, Para
9.
WHO DECIDES ON THE APPLICATION: According to Decree 1775/96, the decision
on payment of compensation, based on ownership deeds, belongs COMPLETELY
AND EXCLUSIVELY TO THE MINISTER OF JUSTICE (Article 2, Para 9). FUNAI
forwards the administrative process of demarcation 'together with opinions
on the arguments and evidence submitted'.
THE BASIS FOR THE MINISTER'S DECISION: The Minister of Justice's decision
on an application for compensation is based on the documents submitted by
FUNAI. However, there are no specified criteria or priorities for the
taking of this decision. IT IS A PERSONAL DECISION BY THE MINISTER OF
JUSTICE, which can only be revoked by a judicial appeal, decided in favour
of the applicant for compensation.
TIME LIMIT FOR DECISION ON THE APPLICATION: The Minister of Justice has
to decide within thirty days from receipt of the application forwarded by
FUNAI.
APPLICATIONS FOR COMPENSATION ALREADY SUBMITTED
=====================================================
The first application for compensation for land was submitted to FUNAI on
January 25, 1996. The application is by Colonizadora Terranorte Ltda,
Carelli Centro Oeste Imoveis Ltda, Antonio Mazurek, Joao Ferrari Pigato,
Arlindo Oscar Carelli and Jose Vanio Vefago, and concerns the
Enauwene-nawe indigenous territory in Mato Grosso.
The application for compensation is for R$7.6 million (US$7.4 million) and
relates to 33,804 hectares known as Gleba Ique.
The applicants submitted as proofs the deeds of purchase and sale, a
certificate issued by the registry in Caceres on the origin of the
ownership and the FUNAI orders establishing the indigenous territory. The
plaintiffs claim that they are the legitimate owners of the lands and that
they were 'deprived completely of an asset which they acquired at great
expense and their good faith abused'.
OTHER EXAMPLES
Enawene-nawe. In this indigenous territory there are about another 150
lots in the same state as that for which the first compensation
application was made, ranging in area from 500 to 2000 hectares.
Compensation in these cases would total around R$17 million (US$16.6
million). Adding this to the cost of the first claim gives a total cost
for this indigenous area of R$24.6 million (US$24.1 million).
Mato Grosso do Sul. The landowners and ranchers in Mato Grosso do Sul who
might receive compensation by virtue of ownership deeds occupy 16
indigenous areas, 10 not registered.
Although ten areas are candidates for compensation under the provisions of
Decree 1775/96 and Ministerial Order 14/96, it is likely that the
landowners will apply for compensation for all 16 areas, since they are
already challenging these in the courts. The landowners are bringing
actions against the Brazilian Federation on the basis of title deeds,
claiming to have suffered damage from the demarcations. It should be
stressed once more that the decision on the validity of the application
lies solely with the Minister of Justice.
The area of lands occupied by landowners in indigenous areas of Mato
Grosso do Sul is 235, 293 ha, which represents compensation (on INCRA's
scale) of R$ 383,057,004 (US$375,395,863), APPROXIMATELY 73% OF THE VALUE
OF THE LOSSES TO THE BRAZILIAN SOCIAL SECURITY SYSTEM FROM FRAUD. This
sum would be increased by the inclusion of compensation for improvements
carried out in good faith, as stipulated by the Brazilian Constitution.
Para'. The list of 'demarcations liable' to communications with a view to
'applications for compensation or to demonstrate flaws, total or partial'
in Para' totals an area of 12,137,054 ha, according to a letter from the
Minister of Justice to the Governor of Para' on January 11, 1996.
If compensation were to be applied for in respect of all the areas listed
by the Minister, the Brazilian Federation would be required to pay
R$1,153,020,130 (US$ 1,129,959,727) (by the INCRA scale) or almost the
total budget for the SIVAM project (US$1.4 billion).
Roraima. The indigenas lands still not registered in this state have an
area of 2,949,473 ha. The cost of compensation on the INCRA scale would
be R$3.4 billion (US$3.3 billion), OR 50% OF THE BUDGET FOR THE MINISTRY
OF LABOUR FOR 1996.
Amazonas. The government of the state of Amazonas, which also received -
after complaining that Para'was being given special treatment - from the
Minister of Justice a list of 'liable' areas, could also receive
compensation amounting to R$1,088,488,378 (US$ 1,066,718,610). This
represents the 51 indigenous areas listed by Nelson Jobim, which have a
total area of 18,767,041 ha.
WHO FOOTS THE BILL?
Compensation payments for improvements carried out in good faith are
included in the Federal budget allocation for FUNAI.
Compensation payments for land, as envisaged in the Decree and the
Ministerial Order, will presumably come from the same source.
APPENDIX 2
Argument of the petitioners in the first application for compensation (see
Appendix 1)
Case No: 08620-0176/96
Date of receipt: 25/01/96
Indigenous area in question: Enawene-nawe
Location: municipalities of Campo Novo dos Parecis and Comodoro/MT
Alleged injured party: Colonizadora Terranorte Ltda, Carelli Centro-Oeste
Imoveis Ltda, Antonio Mazurek, Joao Ferrari Pigato, Arlindo Oscar Carelli
and Jose Vanio Vefago.
Total area: 752,000 ha
Administrative situation: Delimited with physical demarcation (financed
by Prodeagro)
Anthropological report: Artur Nobre Mendes (Specialist Report No 01/91 of
17/06/91)
Petitioners' claim: Compensation, at the value fixed by INCRA (R$ 226.77
per ha) for the 33,804 ha of Gleba Ique
Petitioners' argument
Acquisition of Gleba Ique by the first owner in 1981 and subsequent sale
of part of the area to others in 1987. The property is based on deeds of
ownership issued by the Government of the State of Mato Grosso during the
years 1961-66, with no qualification mentioning the closure of the area in
virtue of the presence of forest people. Since acquisition until the year
1991, the petitioners excercised calm and peaceful posession of the
proverty, paying all taxes due under ITR, when they were prevented from
entering by FUNAI, in virtue of the Enawene-nawe indigenous area. It
should also be remembered that the specialist report...prepared by the
anthropologist Artur nobre Mendes does not accurately represent the
facts. The above-mentioned report states that the Enawene-nawe Indians
were returning to their lands after 25 years, having been driven out by
the Cinta-largas. If in fact the Enawene-nawe were driven out by the
Cintas-largas, the Cintas-largas should have been occupying the area of
land which includes Gleba Ique when the latter was purchased. However,
the first purchaser and the others subsequently found nothing, all of
which points to the conclusion that in 1991 FUNAI organised the move of
the Enawene-nawe Indians to the lands in which the Gleba Ique is
situated. It thus appears that this is not a case of immemorial
occupation by the Enawene-nawe Indians, but instead the creation pure and
simple of a new Indian reserve to cater for difference with another group
of Indians. The statement in the report...that there were no non-Indians
present in the area of the Gleba Ique is not true, since the first
purchaser had been there since 1981. Also, according to the petitioners,
FUNAI did not bother to check titles of ownership existing in the area of
the Gleba Ique in order to check the existence or otherwise of legitimate
owners and the exercise of possession, as a result of which the
petitioners were deprived completely of an asset which they acquired at
great expense, and their good faith abused'.
Evidence submitted by the petitioners
Deeds of purchase and sale; deeds of purchase and sale, a certificate
issued by the registry in Caceres/MT on the origin of the deeds; orders
establishing the area.
Observations
-----------------
Indigenous occupation charcterised by recovery of traditional territory,
from which they were expelled by the Cinta-larga Indians.