Who owns the Amazon?

On January 9th this year, 13 family members from the Paresi indigenous community settled down to an evening’s fishing on a dammed-up section of the Cágado stream, on the Southern fringes of the Amazon basin in the Brazilian state of Mato Grosso.

Just before 10pm, two employees of the nearby Boa Sorte (“Good Luck”) ranch, including its manager, appeared on the scene. Shots rang out, and most of the Indian group fled.

The precise circumstances of the incident are still in dispute. According to the Paresi, one of the employees shouted “You fish thieves!” before opening fire on the unarmed family. The ranch manager claims he came under attack after approaching suspected poachers on the private reservoir, and fired in self-defense.

About the end result, however, there is no dispute. When the family returned to the scene, they found the 42-year-old outspoken Paresi leader Valmireide Zoromará dead, apparently shot in the back. Her husband, Valdenir, not an indigenous person, was seriously injured with a bullet in his head. The two ranch-hands are now in prison being investigated for murder.

Apart from being 2009’s first recorded incident of a fatal confrontation involving Brazil’s indigenous people, the episode was unfortunately nothing out of the ordinary in this violent region – at least 53 Indians were killed in 2008, according to the indigenous rights organization Cimi -- and it has had only limited coverage in the national press.

It had a familiar ring in another important respect. In common with just about every case of rural shootings in the Amazon, including those with international repercussions such as the assassinations of rubber-tappers’ leader Chico Mendes in 1988 and Sister Dorothy Stang in 2005, its root cause is alleged to be the chronic problem at the heart of the Amazon’s woes: uncertainty over land rights and ownership.

In the case of the January 9th killing, Valmireide Zoromará had fought for years for the the Paresi to be given legal rights to their traditional lands, challenging the ownership claims of local ranchers. She had recently fled her home village because of death threats.

As with everything else involving the Amazon, the dimensions of the land problem are staggering. According to a report published last year by the Amazon Institute for People and the Environment (Imazon), an area the size of Alaska (1.5 million square kilometers) is under uncertain ownership: in other words, subject to some kind of private land claim that has yet to be endorsed or verified by the federal authorities.

A further one million square kilometers, although allegedly public, is subject to widespread illegal occupation, the report concluded.

As well as fuelling conflict, the chaotic land situation is widely seen as being one of the driving forces behind deforestation, and a major barrier to sustainable development of the Amazon region. No wonder, then, that a seemingly-obscure administrative battle over the bureaucratic machinery of issuing land titles has taken on a vital importance in the battle to save the world’s largest tropical forest.

According to Roberto Smeraldi, director of the Amazon Programme for Amigos da Terra (Friends of the Earth), the origins of the current chaos can be traced back to 1854 when Brazil introduced the land legislation still in force today. No mechanism was established then to bring public land – and that included virtually the entire Amazon – into the property of the federal union or national state. That created a situation somewhat akin to the “commons” of 16th and 17th century England that were appropriated through acts of enclosure by the great aristocratic estates.

“We have a kind of ‘nobody’s land’ that can be occupied and appropriated,” says Smeraldi. “Eventually the government or justice system will recognize your fait accompli and you will tend to become an owner. So speculation on land often becomes the main reason for expanding the frontier of colonization.”

In practice, the existing pattern of occupation in the Amazon arose from the policies of Brazil’s military government in the 1970s. In the name of national security, a network of highways was planned to bring some semblance of state presence into the vast “empty” green expanse, portrayed by the generals as a threat to Brazil’s sovereignty over its Northern territories and their resources.

In a policy known as “land without people for people without land”, incentives were given to poor farmers from Southern Brazil to move to the Amazon, especially in the area adjoining the eastern portion of the Trans-Amazonian Highway, the vast 5,300km project to link the Peruvian border to the West with Brazil’s Atlantic coastline.

So began a massive land-grab that has been analyzed in a new study by Imazon, carried out in conjunction with the World Bank, which has yet to be published but whose main findings were presented to a seminar in Brasilia last November, on the Amazon land situation and its potential solutions.

Two distinct types of settlers are identified in the study. The first, known as posseiros, which literally means occupiers in Portuguese, are those who lay claim to an area and obtain an official certificate showing that they have applied for title over the land. These applications have often remained pending for decades, and in the meantime the certificates are treated in practice as proof of ownership.

According to the co-author of the Imazon study, Brenda Brito, this type of land claim has had strong links with the process of deforestation. In the first place, it makes it cheaper to deforest new areas to expand agriculture and cattle ranching than to invest in improving productivity on already-cleared land. This is because the posseiros will normally never have paid anything to the government to occupy the land, other than a negligible rural land tax which is often paid to help give legitimacy to the claim.

Also, says Brito, deforestation has been seen as a means of improving the chances of gaining title over the land.

“By deforesting an area, the posseiro is sending a clear message that someone is already taking care of the land,” she says. “Unfortunately, during the 1980s this connection between deforestation and land occupation was even required by the land agency to issue land titles. In fact, to legalize a public land occupation, the posseiro had to ‘exploit’ the area, which was interpreted as deforesting it.

“Therefore, if the posseiros had deforested only a small part of the total area occupied, chances were that they would never get a land title.”

The second type of land claimant is known in Brazil as the grileiro,, a holder of fraudulently-obtained land titles, often issued by corrupt public notaries. The practice is so widespread that it has given rise to a well-understood word in the Brazilian-Portuguese dictionary, grilagem, referring specifically to this type of fraud.

Every so often, the workings of the system of grilagem are brought into public view. On January 13th this year, in an operation code-named “Wild West”, federal police and prosecutors swooped on a group of twelve people alleged to be collaborating to corruptly appropriate public land in the West of Pará state. They included officials from the federal land agency, lawyers, loggers and soy producers.

The combined impact of these types of land occupation – speculative with a view to obtaining title and downright fraudulent – has given rise to what Imazon describes as a “mosaic of conflict” in large parts of the Amazon. This refers to the patchwork of overlapping and often competing claims on the land arising from the legal ambiguities surrounding settlement in recent decades.

A common example of this is where ranchers assert ownership of forest land which has been occupied for generations by traditional groups such as fishing communities, rubber-tappers or subsistence farmers. Without the political influence to challenge the claims, these people find themselves being evicted from their homes and the victims of violence if they stand up to the powerful interests opposing them. It was just such a conflict that led to the assassination of rural union leader Chico Mendes 20 years ago at the hands of local ranchers in the state of Acre, making him Brazil’s foremost environmental martyr.

Overlapping claims have also arisen in areas where indigenous people assert traditional rights over ancestral lands. The process of recognizing those rights under law will normally take many years, and in the meantime if settlers have started to establish their own claims through productive activity, conflicts occur when the Indian lands are approved – the long-running saga of the Raposa Serra do Sol reserve in Roraima, extensively covered in these pages, is a classic case in point.

A final complication in the mosaic is that proposals for new protected areas (national parks etc) in the Amazon will often incorporate land subject to pending claims for title – and the question then arises as to whether the claimants should be compensated for abandoning their “property”. Different courts have reached different conclusions on this question.

With such enormous problems arising from the history of Amazon settlement, it is not surprising that the co-ordinator of the Lula government’s Sustainable Amazon Plan, the minster for Strategic Affairs Roberto Mangabeira Unger, has identified “land chaos” as the foremost problem to be solved if the region is to have a better future.

The efforts to tackle this problem have focused on clearing the massive backlog of claims for land title that have literally stacked up in regional offices of the agency responsible for assessing them, the National Institute for Colonization and Agrarian Reform (Incra). It is reckoned that some 300,000 claims are pending, and a recent government report leaked to the Brazilian press estimated that at the current rate of progress, it would take nearly 1,400 years to get through them.

According to Brenda Brito of Imazon, a key reason for this bottleneck is the dual role indicated by the agency’s name. As well as being responsible for issuing land titles, Incra is tasked with realizing the policy of land re-distribution to help reverse the chronic inequality of ownership in Brazilian society. In practice, this means establishing settlements for landless rural people on portions of large estates deemed “unproductive”, or on public land.

“Part of the difficulty in solving this backlog happens because Incra started to prioritize land reform rather than land titling as of 1985,” says Brito. “However at the same time, Incra never stopped receiving new requests for the latter. As a consequence, both old and new requests were pending decisions, as Incra was concentrating all its efforts in the creation of land settlements.”

Some have also pointed to a direct conflict of interest in this dual role, since the land reform settlements themselves are part of the mosaic of land use in the Amazon. This was brought into sharp relief last September, when the environment ministry’s policy to “name and shame” Brazil’s top 100 deforesters put Incra top of the list, because of the high rate of forest clearances in the areas surrounding the official settlements.

Doubts over Incra’s competence to deal with the problem led to a turf war between Mangabeira Unger’s department and the Agrarian Reform Ministry as to which bureaucrats should be given control of the process. After a meeting with President Lula at the end of January, Unger's proposal for a separate land titling agency was abandoned, but on February 12th, the government published legislation greatly streamlining the granting of title to occupiers of smaller estates in the Amazon.

Under the measure, to be presented shortly to Congress, permanent title for claims up to 1,500 hectares (3,700 acres), the vast majority, will be granted within two to four months, subject to certain conditions. The land must have been occupied lawfully and peacefully before December 2004, be under active cultivation, and the occupier cannot be a public servant or beneficiary of the land reform program.

Depending on the size of the property, claimants will be offered the land for free, or at reduced or market prices, and will be prevented from selling it within ten years. They will also be required to meet the current rule – widely flouted – that all properties in the Amazon should have at least 80 per cent of their area left as native vegetation.

Ahead of the publication of the measure, Minister Mangabeira Unger said, "The fog of confusion will be lifted. My aspiration is that we can regularize 80% of the land claims within three years.

“The big grileiros will be exposed to the full light of day, and these lands will be more susceptible to be re-taken by the federal government.”

Roberto Smeraldi of Amigos da Terra is much more pessimistic about the likely outcome of the proposed changes. He says the “regularization” of land claims is being proposed without the essential safeguard of making it clear that no new public lands will be put onto the market.

“I would say that this type of proposal will heat up land occupation in the Amazon. It will exacerbate conflicts and stimulate people to go out into marginal lands further from road access, in areas where you usually have more forest resources.

“The message that goes out is if you occupy land for long enough, it will pay some day.”

A version of this article was published by www.ecoamericas.com