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Want to Save the Amazon? Solve Property Rights – Eduardo Porter/Bloomberg

  • To stop deforestation in the region, Brazil must first figure out who has rights to roughly one-third of its land.
Whose land was it?
Whose land was it?  (Michael Dantas/AFP)

By Eduardo Porter

“Stop deforestation in the Amazon!” It sounds easy through the bullhorn of an angry protester marching down the streets of London or Washington. But how?

Efforts to curtail the expansion of cropland for soy, the Amazon’s largest crop, have been only partly successful. To keep cattle ranchers from expanding their pastures and encourage investments to improve productivity, the government must devise new penalties and incentives. It must also stop illegal mining and rapacious harvesting of precious wood.

And here’s the unexpected twist: For all this to happen, Brazil must fix a long-standing, complex legal quirk in the Amazon region that environmental protesters in London or Washington have probably never considered: It must resolve the property rights to roughly one-third of the land.

“Non-Intended Public Land” — for which no record can be found of a legally approved purpose — covers 143.6 million hectares of the Brazilian Amazon, according to Brenda Brito of Imazon, the Institute of People and the Environment of Amazonia. That’s the equivalent of two Texases. For Europeans, it’s a territory roughly the combined size of France, Germany and Spain.

A growing share of the Amazon’s deforestation takes place here: 51% of the nearly 11 million square kilometers cleared each year between 2019 and 2021, according to a study by the Amazon Environmental Research Institute, up from 44% of the 7 million cleared annually over the preceding three years.

It is driven to a large extent by a practice that Brazilians call “grilagem”: claiming rights to land by razing the forest and adding cows to graze on the newly made pasture, making it look like a productive farm. The moniker translates as “cricketing,” a reference to the old practice of throwing a forged title into a box with crickets to yellow the paper and make it look appropriately aged.

The ambiguity over land tenure has roots in the time of military rule from 1964 to 1985, when the government encouraged people to settle Brazil’s vast forested hinterlands as part of a development push that, among other innovations, included tax incentives to replace indigenous forests with eucalyptus and Caribbean pine.

Environmental concerns were less of an issue then. At the United Nation’s first-ever environmental summit in Stockholm in 1972, Brazil’s representative, João Paulo dos Reis Veloso, invited investors from around the world to “Come pollute Brazil!”

The ensuing rush for land immediately created conflicts with others who occupied it — indigenous communities, for instance, and Quilombolas established long before by escaped slaves, whose rights to the land were not recognized by the military. But the newcomers drawn by the military’s offer were also on shaky legal ground, as many never got proper titles.

Focused on agrarian reform to allocate land to small farmers, indigenous communities and other groups, the democratic governments that succeeded the military let the settlers stay. Though the land-granting policy ended, the ambiguity over old property rights — and the legal zigzags taken over the last 20 years to fix the problem by offering to sell public land to its occupiers — encouraged seizures to continue pretty much to this day.

President Luiz Inácio Lula da Silva tried to instill some order to this process during his first term, passing legislation that allowed the regularizing of federal lands settled before 2004 that were not on registered federal or state forests, or on areas with other recognized functions — such as indigenous land, Quilombolas and forest conservation areas.

In 2017, the government of Michel Temer broadened the settlement period to encompass lands settled before 2011. President Jair Bolsonaro tried and failed to extend it again, to 2018. A spaghetti bowl of state laws — for instance, the state of Amazonas allows people to take possession of state-owned land if they’ve settled it for five years, regardless of the date — further encourages new land invasions.

“The lack of legal credibility acts as an incentive for further deforestation,” Brito said. “Our laws end up encouraging the occupation of public land.” It may be illegal for the government to sell public forests, but it is legal once they have been cleared of trees.

Bureaucracy is rarely nimble. So laying down the law of the land has been slow going. A government plan in 2009 to determine the legal status of some 300,000 privately occupied areas — either to establish their private ownership for good or retake the property for public use — had managed to deal with only 44,000 by 2021.

And the problem keeps growing through the legal cracks. Today, occupiers don’t need crickets to authenticate land seizures. They register seized land in the Environmental Rural Register, or CAR, which was created in 2012 to enforce environmental rules. Registration doesn’t prove a legal right to the land. But in practice it is used as such. Non-intended land occupying roughly 9% of the Amazon has been registered as private under the CAR, according to Imazon’s analysis.

Some occupiers seize land even after its public use has been established. The so-called non-intended public lands include some 58 million hectares of registered federal and state forests, which should be legally out of bounds even though they have not yet been assigned as indigenous land, conservation areas or whatever.

The occupation of the rainforest, by the way, does not generally happen on a mom-and-pop scale. Occupiers can legalize up to 2,500 hectares under the legislation passed in the Temer era. That’s about seven Central Parks. Outfits sometimes seize more, parceling it out into lots under the legal limit.

Deforestation is expensive — about $315 per hectare at current exchange rates, according to Imazon’s researchers. This usually requires significant outside financing. One standard method is for occupiers to chop down the most valuable trees and sell the precious wood to finance the razing of the rest and the purchase of cattle. But the practice must draw on outside capital, observers say.

Some 23% of Brazil’s Amazon region is designated as indigenous land, Another 18.5% is set aside as areas for conservation. Collective settlements like Quilombolas occupy 8% and legally established private holdings about 21%. Some of these areas remain under deforestation pressure, but it is the remaining 30% or so that is most vulnerable: the frontier of deforestation.

Stopping land seizures in areas of undefined legal purpose and seizing back land improperly occupied are essential to end deforestation. These practices not only directly shrink the forest. They expand the livestock footprint in the most unproductive way. In fact, cattle ranching in the Amazon is among the least productive in the world, with about one head grazing per hectare, one-third of the estimated potential of the land. “The ox is a mechanism to prove that I am producing,” Brito said. “Livestock is so unproductive because it is used to prove use of the land.”

Ending the legal vagueness over land potentially open to privatization is complex. Ideally, the ambiguity would be resolved in favor of a clear goal: Public forests must be out of reach of private enterprise. Public land, whatever its status, must be allocated to its rightful, sustainable purpose: to serve the public good of the Brazilian people.


Eduardo Porter is a Bloomberg Opinion columnist covering Latin America, US economic policy and immigration. He is the author of “American Poison: How Racial Hostility Destroyed Our Promise” and “The Price of Everything: Finding Method in the Madness of What Things Cost.” Energiesnet.com does not necessarily share these views.

Editor’s Note: This article was originally published by Bloomberg Opinion, on July 20, 2023. All comments posted and published on EnergiesNet.com, do not reflect either for or against the opinion expressed in the comment as an endorsement of EnergiesNet.com or Petroleumworld.

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