The origin of this understanding dates back to colonial Brazil, when the Portuguese Crown decided to reserve these spaces for itself instead of including them in the sesmarias distributed to the colonizers.
The objective was both to maintain control over salt production and to guarantee defense against potential invaders coming from the ocean.
A scholar of the Portuguese and Brazilian monarchies, researcher and biographer Paulo Rezzutti tells BBC News Brasil that the first document that regulated these areas was the royal charter signed by Dom João 5º (1689-1750) on October 21, 1710.
“She determined that the navies would be reserved for the Portuguese Crown. The coastal beaches should be free from construction”, he highlights.
This had an impact on the so-called sesmarias, the transfers of land made by the Portuguese kingdom to colonizers who came to occupy and explore Brazil.
According to the researcher, at first the size of this strip of land was not clear, but little by little new royal letters became more specific, until they reached a measurement of 15 fathoms — equivalent to around 33 meters.
“Until independence [do Brasil] What prevailed was the general orientation for the use and exploration of Portuguese territories in America, such as land, rivers, coastal and forest areas. Portuguese general and colonial regulations followed the interests and conveniences in relationships of loyalty and fidelity to the purposes of the Monarchy and successive reigns, in particular”, comments historian Paulo Henrique Martinez, professor at Universidade Estadual Paulista (Unesp), to BBC News Brasil. ).
“For this reason, the rules and legislation relating to colonial spaces form a series of interdictions, prohibitions and permissions, nominal, specific, localized and temporary”, he states.
“The coastal areas of the captaincies of Portuguese America were subject to such fluctuations. Just as there were concessions for the enjoyment of land, there were also concessions for fishing, occupation, extraction and collection of natural products also in aquatic environments, such as the passage of rivers and cabotage navigation.”
Shots, salt and fish
The objectives of keeping this strip of land under the command of the Crown were for security reasons and also for economic control.
At a time when any external attack would come from the Atlantic, it was on the beaches that the Portuguese built forts. And it was necessary to keep the area free of buildings in case cannon fire was necessary.
“The purpose was to guarantee the control and defense of the territory, as well as to ensure the exploration and strategic use of these areas by the Crown”, says jurist Marcelo Crespo, coordinator of the law course at the Escola Superior de Propaganda e Marketing, to BBC News Brasil. (ESPM).
It is a current story that explains why the distance of 15 fathoms was due to the power of the cannons of the time. But this is not proven and may be more legend than reality.
“The idea that it had to do with cannons is more of a legend than a proven historical fact,” says Crespo.
“This limit was established more based on administrative and territorial management criteria than on specific military considerations.”
Economically, keeping this range restricted to the Crown guaranteed control over fishing on the coast. And also in salt exploration. “Only the Crown could transfer these areas to anyone who wanted to explore the salt flats”, points out Rezzutti.
Speaking to BBC News Brasil, historian Vitor Soares, who maintains the podcast História em Meia Hora, recalls that “this delimitation aimed to ensure that the Crown maintained control over strategic areas for defense and navigation, preventing these lands from being appropriated by individuals without adequate state control.”
“In addition to the defense and control aspects, this demarcation had economic implications, allowing the Crown to control the use of coastal natural resources and trade and fishing points,” says Soares.
These fifteen fathoms were maintained in 1818, by Dom João 6º (1797-1826) and demarcated only in 1831, during the Regency period.
According to Crespo, João 6º’s measure served mainly “to improve management and tax collection in these areas”.
“In 1831, during the Regency period, there was an attempt to modernize and adapt laws to the new realities of independent Brazil. The legislation was adjusted to better adapt the administration of these lands, ensuring that the marine areas remained under the control of the government, now Brazilian, and were used for public and strategic purposes”, highlights the jurist.
“The 1818 legislation also brought more detailed rules on the occupation and use of these lands. The objective was to ensure that these strategic areas were managed efficiently and that any activity carried out in them was under government control, preventing abuses and guaranteeing the considered appropriate exploitation of natural resources”, evaluates Soares.
“These changes reflected growing concerns about the protection of coastal areas and the need for stricter control over marine lands.”
Measure taken by Dom João 6º in 1818 served mainly ‘to improve management and tax collection in these areas’, says expert/Photo: Public domain
“The presence of the Portuguese court resulted in the relocation of the transportation, trade, construction and defense needs of the Brazilian coast,” adds Martinez.
“The definition and exclusivity in the use of marine lands was linked to the opportunities for those purposes. Installation of docks, canals, shipyards, warehouses, supply and sources of water, raw materials such as wood, firewood, resins, fibers, circulation facilities, ship construction and repairs.”
“These areas were selected and reserved for use by the Crown, with varying durations, according to motivation and need, as stock for the extraction and collection of resources suitable for navigation. This specific destination survived”, he says.
“Even today there are spaces for exclusive use by the armed forces, for energy generation, Indigenous Lands, nature and biodiversity conservation.”
The 1831 legislation brought an important detail: the so-called “private lease”, according to which the public authorities could grant these lands on a long-term lease basis to private individuals, as they considered appropriate — the so-called “emphyteuses refime”.
“In short, the law allowed city halls to manage and use marine land for public purposes, in addition to granting them to private individuals upon payment of an annual fee, thus regularizing informal occupation and raising resources,” says Soares.
Professor at the Museu Paulista at the University of São Paulo, historian Paulo César Garcez Marins reminds BBC News Brasil that although the “regime of emphyteuses” is no longer present in the current Brazilian Civil Code, “those that already existed remain valid”.
“You cannot create others, establish new ones, but you can maintain those already established”, he states.
On February 22, 1868, a new decree ended up regulating all the previous ones regarding units of measurement. “That’s when the 15 fathoms became 33 meters, because the previous unit was no longer used,” explains Rezzutti.
From there to here
“The adoption of the private land property regime, from 1850 onwards, led to the fragmentation of the national territory into units of diverse extension and location. Territorial planning escaped the exclusive control of the State and coastal areas were no exception”, says Martinez.
“Since then, conflicts and disputes over the appropriation and use of territory in Brazil have assumed increasing proportions and violence in the spoliation of public areas and in social conflicts surrounding the living and working conditions of countless regional population contingents.”
“Indigenous lands, artisanal fishermen, shellfish gatherers, caiçaras, extractivism in aquatic and terrestrial ecosystems, such as mangroves and lagoons, are confronted by predatory tourism, trawling, infrastructure works, urban expansion, deforestation, landfills, chemical pollution, industrial and domestic, landfills, oil spills that compromise marine and coastal environmental sanitation”, argues the historian.
There was an increasing need for State control. No longer for defense or economic value, but to guarantee protection.
“The collective interest, public power, quality of life and the socio-cultural and natural formations of the coast are undermined daily by private, individual and business interests. It is worth remembering the emblematic attitude of the previous president. He allowed himself to fish in nature protection areas and had the infraction imposed on him by federal agencies annulled, for his own benefit”, criticizes Martinez.
In the 20th century, the issue of navy lands was the subject of a decree by then president Eurico Gaspar Dutra (1883-1974), on September 5, 1946.
In the extensive law that dealt with the Union’s real estate, it was determined that navy land was all those within 33 meters “horizontally”, from the “position of the high water line-measured in 1831”. By high tide we mean the level of high tide.
According to Crespo, this legislation, “with some modifications over the years, is the basis of what is in force today”.
“This regulation was maintained and adapted over the centuries, being incorporated into the Brazilian legal system after the country’s independence. Currently, the legislation that deals with marine lands is included in the Brazilian Civil Code and in other specific rules that regulate the use and occupation of these areas”, comments Soares.
He highlights that although the 1946 legislation “continues to be the basis for the regulation of marine land”, it was “complemented and updated by other regulations”, mainly by a 1998 law “which brought more details and modernizations to the administration , regularization, tenure and alienation of immovable property owned by the Union”.
The last chapter of this story, at least until the discussion raised by the PEC das Praias, was the 1988 Constitution, in force.
“That was when these navy lands became a constitutional precept, included as Union assets”, points out Rezzutti.
“The PEC das Praias is nothing more than the face of this Brazil, a predator of ecosystems and forms of life. It is a current document of the process of self-attribution of privileges at the expense of the Brazilian population, global public and collective assets and assets”, criticizes Martinez.
“In socio-political terms, it should be classified as a practice of environmental racism and, as such, banned from the legislative agenda as an affront to human rights and the principles of the democratic rule of law.”
The rapporteur of the text in the Senate, senator Flávio Bolsonaro (PL-RJ), has argued that the PEC will not be to “privatize” beaches, but will have positive effects, for example, granting property titles to communities that already occupy the areas — including some quilombola groups.
“Legislation on marine areas has been constantly revisited to adjust to social, economic and environmental changes”, says Crespo.
“Recently, debates about irregular occupation, environmental preservation and sustainable use of these areas have gained prominence, reflecting the continued importance of adequate and equitable management of coastal public spaces in Brazil.”
