Regularização fundiária e o direito territorial coletivo das comunidades tradicionais rurais na Amazônia: análise da Lei nº 13.465/2017 a partir dos parâmetros interpretativos das decisões da Corte Interamericana de Direitos Humanos

Abstract

Law No. 13,465/2017 changed the legal regulation of urban and rural land regularization, making the collective titling of traditionally occupied lands in Brazil more difficult. This research presents a critical analysis of Law No. 13,465/2017 and the implications of this legislation and its regulating decrees to rural collective territories in the Amazon, seeking to answer the following guiding question: to what extent does the current federal legislation on land regularization guarantee the territorial right of traditional communities and the effectiveness of this right in the Amazon Environmentally Differentiated Settlement Projects? To answer the research question it is used Convention 169 on Indigenous and Tribal Peoples, of the International Labor Convention (ILO), of which Brazil is a signatory, as it establishes special protection for collective territories; as well as the Inter-American Court of Human Rights’ (IA Court. H.R.) decisions, from which interpretative parameters are derived that represent important standards for protecting the territorial rights of indigenous and tribal peoples, a category that includes Brazilian traditional communities. This is a bibliographical study, since it presents concepts about the land instruments available for regularizing possession and/or ownership of the territories of traditional peoples and communities. It is concluded beyond the simple creation of obstacles that hinder the collective titling of traditional territories in the modalities of Environmentally Differentiated Settlement Projects, Law No. 13,465/2017, if used for the land regularization of these spaces, it makes unfeasible any possibility that new differentiated settlements will be created that safeguard the territory in its entirety. The use of Law No. 13,467/2017 to the Environmentally Differentiated Settlement Projects should be rejected, since it imposes a restrictive interpretation to the collective territorial rights of traditional communities, affecting the fundamental rights of these groups. Therefore, it is not possible to speak of a guarantee or effectiveness in the right to collective property of the lands traditionally occupied in the validity of the current legislation of landholding regularization.