Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy

Memory I - Quilombola Alert: The Future of Quilombola Communities

I Quilombola Alert: Colloquium on the future of quilombola communities

Day: 25 October 2013

Location: Quilombo Sacopã - Sacopã Street, no. 250, Lagoa, Rio de Janeiro

Access the Colloquium report.

Access the Quilombola Rights booklet and I Alert Quilombola primer

Quilombola territories: a right that generates rights! [I]

The Federal Constitution of 1988 guaranteed, in article 68, of the Act of Transitional Constitutional Provisions, to the remnants of quilombo communities the title of their traditional lands.

Much more than a historical reparation for the suffering of slavery, this right has the main purpose of promoting the human dignity of quilombolas here and now.

Territory is the most basic right of quilombola communities, as it is “a right that generates rights”. What does that mean? This means that, and the Brazilian State recognizes the right of quilombolas and other

traditional communities to the lands they traditionally occupy, will be promoting at the same time numerous other rights that are dependent on titling, for example: economic rights to food and production, the right to a sustainable environment and the right to culture.

Based on knowledge and delimitation of quilombola lands throughout Brazil, the Government may also plan to carry out public policies for education, health, infrastructure and basic sanitation in the territories, which is the most viable and safe path for development.

All this is only possible thanks to one fundamental point: the collective and definitive title. This is what makes quilombola lands different from other types of property, which often generate more conflict than rights.

Collective use is what ensures that production is geared to meeting the concrete needs of the people and not to the unlimited increase in profit, which causes the predatory exploitation of natural resources and endangers peoples' food sovereignty. As the owner of the right to property itself, the community has the responsibility to use rationally and to look after common natural goods.

In turn, the fact that the title is definitive means that it comes to safeguard the quilombola interest in staying in the land of their ancestors, that is, the communities do not want to sell or rent the quilombos, but to live, produce and preserve, contributing above all, to build a fairer, healthier and more balanced urban space.

History of the quilombola struggle for the right to land

The beginning of the struggle for rights

For more than three hundred years, Brazil has experienced official slavery, and it is therefore indispensable to understand and study the period of slavery to understand Brazil. In this sense, it is important to stress that the struggle for the rights of quilombola communities originates from the arrival of the first black slaves in Brazil.

It is known that the slave trade was carried out so that the Portuguese colonizers of Brazil could establish their economic enterprises. Thus, the slave trade intensified in Brazil as gold and silver mines were discovered, which constituted sugar mills, among others. That is, the patriarchate monoculture development model of the time presupposed black slavery as an essential condition for maintaining the economic model of production.

At the time when slavery was official in Brazil (1500-1888) there were laws regulating the relationship between the enslaved and the enslaver.

Much of the laws of this era regulated the slave trade and the situations related to the escape and formation of quilombos. In this context of total oppression of the black enslaved in Brazil, the struggles of the quilombolas began today.

Until the formal abolition of slavery in 1888, Brazilian laws treated quilombolas as criminals. Laws of the time criminalized quilombos because the state knew of quilombola force. That is, the ruling class of the time tried to prevent the struggle of the quilombolas by creating laws that, for example, prevented access to land. This was the case with the 1850 Land Law, which established that it could only own a land if it bought or received in government donation. Thus, it was prevented that free squatters, like the quilombolas, could officially own the land they occupied.

One of the aims of this land law was to maintain the rural production system based on large property and monoculture.

With the formal abolition of 1888 slavery became prohibited in Brazil. Quilombos were no longer, by law, illegal groupings that should be destroyed. But it cannot be said that quilombos ceased to exist only because slavery was formally prohibited in Brazil. The quilombo, at the time of abolition, was not just a space for escape from slavery, but a space for the construction of an alternative life outside the context of export monocultures of the time.

It is also important to note that after the formal abolition of slavery, the Brazilian State did not carry out any public policy to favor existing quilombola communities, those who were formed and the freed blacks who lived in urban centers.

Only one hundred years after the formal abolition of slavery did Brazilian law formally recognize the rights of quilombola communities, especially the right to the territory. This recognition was the result of hard work and social mobilization. Thus, until 1988 there was no prediction that would force the state to make public access policies for quilombola land.

Five hundred years of struggle and the right to territory

Article 68 of the Transitional Constitutional Provisions Act of the Federal Constitution is a legal framework for gaining rights.

Unfortunately, however, the provision of the right in the Constitution did not mean the realization of this right in practice. Today we see that few quilombola territories have been titled after the Constitution has been in force for twenty-four years. This is because guaranteeing the right in the Constitution is important, but its practical realization depends on its willingness to become public policies.

The political mobilization of the quilombolas after the constitution of 1988 gradually gave rise to concrete alternatives that would enable the effective titling of the territories.

In addition to art. Under the ADCT of the Constitution it was necessary for the Brazilian State to create rules so that the titling process could have a beginning, middle and end. That is, it was necessary to say which state agency would make the titles and how it would do to fulfill the right provided for in the Constitution.

With Federal Decree 4887 / 03 the requirement to prove a centenary possession to qualify for title is over. Today, for the titling of territories to take place, it is no longer necessary to prove that the community existed in 1888 and occupied the land until 1988. This decree also relocated to INCRA the task of making the titles of the quilombola territories.

It should be noted that now the fundamental requirement for the titling process to begin is self-recognition by the community itself. Regarding the territory to be titled, Decree 4887 / 03 provides that the land used to guarantee the physical, social, economic and cultural reproduction of the quilombola communities must be titled. That is, expropriation may be made so that quilombola communities can have their entire territory titled, having as reference the areas that were used by the community for their survival over the years.

The ILO 169 Convention and the Fundamental Right to Direct Popular Participation

There are some legislative acts in Brazil that are fundamental for the defense of quilombola rights. One such is the International Labor Organization (ILO) Convention 169. This is an international law that has been valid in Brazil since 2005, when our country willingly and willingly accepted to comply with everything that is written in this standard. It was prepared by the ILO, with the contribution of quilombolas from Brazil and other traditional and indigenous peoples of the world.

The ILO understood that the defense of the rights of quilombola communities, including the right of access to land, is fundamental to guarantee the free exercise of labor. It is guaranteed, for example, that the title of quilombola territories must be made by including land that belongs to non-quilombola people. The ILO 169 Convention also provides in Article 6 a fundamental right for indigenous peoples, quilombolas and traditional communities: the Brazilian government should consult indigenous peoples, quilombolas and traditional communities whenever legislative or administrative measures capable of directly affecting them are envisaged.

However, the 169 Convention has not yet been properly implemented. After eight years of the ILO 169 Convention, the Brazilian State wants to regulate the right of consultation, that is, to make it clear how and when this consultation should take place. The law already exists and its application is mandatory. However, there is no detail in the law on how this consultation should be performed.

As we know, for the right of communities to be respected, the active participation of quilombolas will be fundamental to create the regulation of the right of consultation. Of course, if the ILO 169 Convention itself provides for the right to consultation, if that is precisely what the Brazilian state will make a law for, communities should have the opportunity to actively participate in the construction of this new rule.

Quilombos: what development do we want?

We have seen that access to the territory is considered the first step towards quilombola development, because land is the resource capable of enabling the production and economic freedom of communities. It is a right that generates rights.

But in addition to the right to land, which is the most basic for development, there are also other indispensable fundamental rights that must be made available, such as education appropriate to quilombola culture, health, education and housing, as well as services. basic public transport, communication, sanitation etc.

Therefore, the development we want can only be the acquisition of economic, social, cultural and environmental human rights![

[I] Text extracted from the project: “Human Rights and Development in Western Pará: Fighting Extreme Poverty through Human Rights Education - Quilombola Rights Booklet”. Realization Land of Rights. Authors: Érina Batista Gomes; João Carlos Bermeguy Camerini; Fernando Prioste and Ramon Santos.

[ Direct Unconstitutionality Action (ADI) 3239 filed by DEM against Decree 4.887/ 2003. Minister Rosa Weber's request for a view, made because Minister Cezar Peluso cast his vote on the merits of the action and, therefore, on the unconstitutionality of the decree questioned.

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Realization: AQUILERJ, Justice Forum

Support: UENF, UFF, UERJ