Policies and other Factors Shaping Property Relations

This following description of policies and other fac-tors shaping property relations addresses land poli-cies, fiscal incentives, and the differential treatment of smallholders and large agricultural producers by public officials working in the land agencies. Mea-sures taken by the military government to hinder the activities of those organisations trying to assist small farmers in obtaining secure rights to land are subject of a concluding note.

One possible way to classify policies regarding the distribution of public land under military rule is to distinguish policies allocating public land to private individuals from those which recognise claims by private individuals regarding public land. First, regarding land allocation, in areas destined for colo-nisation INCRA granted titles to plots of 100 hect-ares to each family settled. Section 5.4 already alludes to the allocation of large land parcels for the purposes of cattle ranching or private colonisation.

From 1975 onwards, INCRA granted areas of 3,000 hectares to private individuals through so-called Land Alienation Contracts (Contratos de Alienação de Terras Públicas, CATP). Often, CATPs were

regis-tered in private land notaries as property which they only became after fulfilling certain stipulations tied to these contracts (like physical occupation of the area or certain activities to be implemented). If not fulfilled, the land returned to the hands of the state.

If physically unoccupied, others often took advan-tage of the situation by establishing themselves in the area (cf. Plataforma Brasileira de Direitos Huma-nos Econômicos 2003, 21f). In short, the practice of issuing CATPs added further complexity to the land tenure situation.

Second, public land can pass to the hand of private individuals through the “direito de posse.” If the

“posseiro” (somebody settling on unclaimed public land) lives on the land and cultivates it for a year and a day, he establishes a right to the land through appropriation (Foweraker 1981, 112). After five years, the “posseiro” has the right to obtain a title for the land (Binswanger 1991, 823). During military rule the limit of land to be acquired via “apossamento” was 3,000 hectares (the Constitution of 1988 reduces this limit to 2,500 hectares). The size of the plot usu-ally allocated to settlers was 100 hectares. In areas under the jurisdiction of GETAT, special regulations for land allocation applied. A claimant had the right to obtain a title for an area the equals three times the actually deforested plot (ibid). Given that small agri-cultural producers relying on family labour can deforest about 3 hectares / year (Fearnside 2001), this policy favours large agricultural producers. More-over, the mission of GETAT was not to establish via-ble settlements but to ease land conflicts. Even GETAT staff recognised that the 50 hectares plots allocated to settlers were unviable. In case of land invasions by landless settlers, GETAT offered those whose property has been invaded a larger area located somewhere else. Sometimes, these invasions were even prompted by the owners themselves. For example, if the quality of pasture started to deterio-rate, an invasion offered the possibility of obtaining fertile land in other areas (Schmink and Wood 1992, 178ff).

Besides “apossamento” as a legally acknowledged way of acquiring public land, land appropriation also occurs illegally (grilagem). These lands are then reg-istered in private land notaries giving them appear-ance of legally acquired land. Two policies stand out

that enabled later legalisation of illegally acquired land: the “Medidas Provisórias” 005 and 006 dated June 6, 1976 and the possibility of purchase of land which titles are going to be declared void (instituto de recompra) opened up in August 1969 (Treccani 2001, 221ff). Regarding the former, the “medidas pro-visórias” allowed regularising lands of up tot 60,000 hectares that had been acquired irregularly but “in good faith” (Refkalefsky Loureiro and Nildo Aragão Pinto 2005). An example for such a situation is the purchase of a title which has been forged believing that this is a valid title. This legal provision is inter-preted as legitimising grilagem (Treccani 2001, 221f;

Refkalefsky Loureiro and Nildo Aragão Pinto 2005, 81). This interpretation seems justified as acquisition of land areas above the constitutional limit needs approval by National Senate. Concerning the latter, the state of Pará, via the “instituto de recompra,”

permitted the purchase of land titles already declared or to be declared void. The conditions tied to this possibility were (i) that the buyer was considered

“suitable” by the secretariat for agriculture of Pará and that (ii) the buyer did not participate in or knew of frauds related to this title. According to Treccani (2001, 222), the article reveals its focus on large agri-cultural producers as it establishes a priority status of those “posseiros” who implement projects approved by SUDAM. A general disinterest in inves-tigating the titleholders’ good faith in title acquisi-tion paired this article at the time it became law (ibid).

A range of fiscal incentives and credit lines were made available to large agricultural producers. Fol-lowing Mahar (1989, 13), the most important of which were so-called “investment tax credits.” They allowed Brazilian corporations to use up to 50 % of the tax liability as investment capital, if invested in projects located in the Amazon approved by SUDAM.¹¹⁸ Corporations could import equipment and machinery duty-free and were exempted from export taxes for regional products (Hecht 1985, 670).

The average size of SUDAM supported ranches pro-vides a crude indicator of impetus of this policy for further land concentration in the region. By 1983, the average size of SUDAM supported ranches was 23,600 hectares (Binswanger 1991, 825). Further, subsidised credit was available for cattle ranching.

On average, 29 % of the total amount of subsidised

credit per year was applied to livestock projects (author’s calculation based on Mahar 1989, 21).

Access to subsidised credit was and still largely is confined to those, who hold a title to their land (Binswanger 1991, 826). Given the superior position of large agricultural producers in obtaining a title, they also had superior access to subsidised credit.

There is another constitutive element in the evolu-tion of property relaevolu-tions under military rule: the dif-ferential treatment of smallholders and large agricul-tural producers by INCRA officials. Despite of preferential treatment of enterprises in the allocation of land, there were nevertheless laws in place that protected the property claims by smallholders. The Brazilian Land Statute (Estatuto de Terra)¹¹⁹ or the establishment of posse by smallholders are examples.

Bunker (1985, 224ff) underlines that INCRA was required to treat all claimants as equal before the law in land conflicts. In practice, treatment was different.

INCRA lawyers had to evaluate the validity of each claim. This implies, for example, following the chain of transfers of a particular title by obtaining the nec-essary documentation from the notaries offices. If there were breaks in the chain of transfers, INCRA lawyers could validate the claim, refuse it, or request further information. There were, however, no crite-ria guiding the decisions. In circumstances such as these, the like-mindedness of INCRA officials and claimants of large areas of land came into play (Schmink 1982, 348; Bunker 1985). A tendency of INCRA officials to decide in favour of the large claimants ensued.

When claims were based on effective occupation, there was a further factor discriminating against small farmers. The agronomists who had to visit the plot and assess the situation were mostly unfamiliar with family farming but trained in “modern” agricul-ture. Bunker (1985, 226) reports cases, in which crops deemed unsuitable for certain soil qualities led some agronomists to include that the land was not effectively occupied. This assessment occurred despite of the fact that the respective settler did not have access to land with the soil quality deemed appropriate by the agronomists.

In addition, the bureaucratic regulations within INCRA biased against small family farms. INCRA

staff was well aware that land notaries and even land registries of the State are often characterised by incomplete registries. Claimants who could analyse the registries at their own costs were in a favourable position compared to those who did not hat have this possibility. INCRA officials then often decided in favour of those offering extensive documentation, even if it was incomplete. In addition to staff attitude and bureaucratic regulations favouring large ants, differential treatment of small and large claim-ants by INCRA officials also resulted from the influ-ence of large claimants within the agency (Foweraker 1981, 20; Bunker 1985, 230ff; Binswanger 1991, 827;

Treccani 2001, 201). Those benefitting from this influence were then able to acquire land, although it was occupied by others (Schmink and Wood 1992, 169).

There is a final note on the relationship between smallholders and the State in property relations. In the context described above, smallholders needed allies to assist them in obtaining secure rights to their land. In this regard, the Catholic Church pro-vided support. Land literacy campaigns and assis-tance in smallholders’ self-organization are examples of its activities. Schmink and Wood (1992, 183ff) pro-vide a vivid account of the responses by GETAT to these initiatives that took place in the context of the election of a new president of the Rural Labourers Union in Conceição de Araguia in 1980 / 81. The pres-ident of the Union at that time was a Government candidate who did not speak out in favour of small-holders’ property claims. An opposition movement gained strength and put forward its own candidate who was shot a month before the election (the gun-men, who openly voiced his responsibility for the murder, was not arrested, however). The replace-ment candidate nevertheless won the election, which was declared invalid for the lack of quorum.

Although the quorum of the next election was not achieved either, it was declared valid. In this election round, the Government candidate had won. Besides forging election procedures State agencies also tried to cut support for the opposition before the election.

These activities included the silencing of the radio station run by the Catholic Church, a slur campaign against prominent opposition representatives, and the exchange of land titles for political support.

In summary, the institutional context enacted under military rule was heavily inclined towards large agri-cultural producers. Rules for land allocation favoured them, as did the acknowledgement of illegally acquired land; an activity that is out of reach for the large majority of impoverished smallholders. Fiscal incentives facilitated the acquisition of land. Regula-tions for subsidised credit were biased against small-holders on two accounts. Access to subsidised credit required a land title which the large majority of the smallholders did not have. Recipients of subsidised credit could use these resources to occupy further land. In addition, the acquisition of titles was difficult for smallholders. Further, the attitude of public offi-cials in land agencies often hampered smallholders¹²⁰ turning posse into a title.

7.4.3 On the Evolution of Property Distribution