STF julga temporary framework of indigenous lands após Câmara advance on the topic

The Supreme Federal Court (STF) maintains the pattern of rulings this week or case that deals with the temporary framework of indigenous lands. The discussion between the opposite sides of ruralism and native peoples has been going on since 2021 and will define how the land demarcation process should take place.

The case is scheduled for the fourth fair session (7). Last week, the Legislature resolved to advance on the issue and approved a project in the Chamber of Deputies that establishes this before the STF concludes its analysis.

Ouvidos peel specialists CNN We understand that the deputies have the legitimacy to legislate on the matter, more than it is up to the Supreme Court to have the final word on the validity or non-validation of these.

The discussion mobilizes indigenous people, who consider these a threat. When the Court began to judge the theme, in 2021, about 5,000 indigenous people camped in Brasília. Part of them attended the trial by means of a curtain set up in Praça dos Três Poderes, in front of the STF.

The temporary framework, defended by ruralistas, determines that the demarcation of an indigenous land can only occur if it is proven that the indigenous people were over the required space on October 5, 1988 — when the current Constitution was promulgated.

An exception is when there is an effective conflict over the possession of the land in dispute, with circumstances of fact or “controvérsia possessória judicializada”, not passed and that persists until October 5, 1988.

The blocking of the time frame ruling by the STF is tied at 1 to 1. The rapporteur of the case, minister Edson Fachin, manifested himself against the measure. For the magistrate, the article 231 of the Constitution recognizes the right of permanence of these people regardless of the date of the occupation.

The minister Kássio Nunes Marques, for his time, voted in favor of these. He considered that the framework should be adopted to define the traditional occupation of the land by indigenous people. In his justification, he says that the solution reconciles the interests of the country and the two original peoples.

The decision will begin to be analyzed by the Court in 2021. On the occasion, Minister Alexandre de Moras requested a hearing (more time for analysis). The magistrate returns the process in October of the same year.

Voting in the temporary framework is a promise of the current president of the Court, Minister Rosa Weber. The magistrate, who settles in October, announced at the end of March that she would guide the case. The statement was made during a visit to the Paraná indigenous village, in Vale do Javari, in Amazonas.

Not later, she announced the date for a decision in an event next to the minister Sonia Guajajara, “in response to the claim” of the head of the Ministry of Indigenous Peoples.

There was no time between setting out the process and restarting it by date or by ruling (or what is scheduled for June 7), the Câmara signed its position approving, on May 30, a draft law that establishes the temporary framework.

The proposal is broader, and draws points as to the authorization for economic activities in indigenous lands with the hiring of non-indigenous third parties and the participation of states, municipalities and people directly interested, such as agricultural producers, in the demarcation process.

One wing two deputies defended that the Legislature vote on the project before the STF judge the issue. The text still needs to pass through the Senate.

Conflict?

An eventual approval of the final law by Congress would not remain pending if the Supreme Court declared this time frame unconstitutional – except for the part that refers to the time frame, since the project in non-Legislative processing is broader and deals with other quests.

“May the Supreme decide to say no to the time frame, it does not prevail by law,” he said CNN or lawyer Belisário dos Santos Júnior, partner of Rubens Naves Santos Jr. Advogados, former Secretary of Justice of the State of São Paulo (1995) and member of the International Commission of Jurists and the Human Rights Arns Commission.

In this hypothetical scenario of collapse of the time frame by the STF, any law that sees the establishment of this type of guideline to condition the demarcation of indigenous lands may be questioned.

“It would be a law that confronts the Constitution”, says Belisário, about this possibility. “And this is going to have consequences. It is possible that this discussion will come not Supreme, but it is a later step. More colliding with the decision of the STF, if it was contrary to the framework, that was the law”.

For the lawyer, the discussion on this is constitutional and, therefore, under the jurisdiction of the Supreme Court. “The STF has the legitimacy to discuss this issue,” he declared.

The lawyer Luiz Mario Guerra does not see any way to get the court ministers to judge the issue, even if the issue is being discussed in Congress.

“Realizing that we are still not in the middle of the production path of the law, there would be no problem for the STF to discuss this matter, mainly because it began with a specific conflict, related to the Xokleng people in Santa Catarina,” he affirmed. CNN.

For the specialist, who is Prosecutor of the State of Pernambuco and partner of Urbano Vitalino Advogados, the Court will have to rule on the possible new law, if approved before the STF concludes the ruling. “That context is difficult, but let’s say that the Congress approves the logo after the Supreme Court returns to judge the case.

The Court will have to consider the new legislation, not what it takes to declare it unconstitutional”, he said.

Guerra understands that the approval of the issue by the Chamber brings some kind of pressure to the ministers, but defends that the final word is from the Supreme Court, as the guardian of the Constitution and the organ that its devices can be interpreted.

“When the STF is with a matter to be appreciated and the Chamber withdraws from the drawer a project of 2007 to appreciate before the Supreme Court, it is face to face that there exists, to a greater or lesser degree, some kind of constitutional conflict”, he affirmed.

to these

The process of the temporary framework in discussion in the STF has its general repercussions recognized in 2019. The instrument allows the definition adopted by the Court to serve as a beacon for all similar cases in all the Instâncias da Justiça.

The specific case is an action of the Institute for the Environment of the State of Santa Catarina (IMA) against the Xokleng people, from the Ibirama-La Klaño Indigenous Land. The territory is located on the banks of the Itajaí do Norte river, in Santa Catarina. With a population of about two thousand people, there are also two indigenous groups, Guarani and Kaingang.

The government of Santa Catarina requests the reinstatement of possession of part of the area, which would be superimposed on the territory of the Sassafrás Biological Reserve, about 200 kilometers from Florianópolis.

The date of the promulgation of the Federal Constitution –October 5, 1988- is the central point of this time frame. No article 231, is established or following:

“The Indians recognize their social organization, costumes, languages, creeds and traditions, and their original rights over the lands they traditionally occupy, competing with the Union to demarcate them, protect and respect all their blessings”.

A proposal for a time frame had never been discussed before, but it gained traction based on a precedent that appeared in the judgment of the STF itself, in 2009, when the Court judged the demarcation of the Raposa Serra do Sol indigenous land, in Roraima.

On occasion, the ministers will understand that the indigenous people have direct access to the territory because they were not local on the date of the promulgation of the Constitution. From that day on, these steps were to be mobilized for the interests contrary to the indigenous people. Ou seja, if they could also sue the lands on those quais not occupied on the same date.

objective criteria

Agribusiness representatives understand that it is essential to delimit a time frame to establish legal security for disputes in the field. Another notable point is the possibility of a decision in favor of two indigenous people to invest in the sector, with impacts for the entire economy.

Paulo Sérgio Aguiar, vice-president of the Brazilian Association of Cotton Producers (Abrapa), spoke to CNN that the Constitution outlines an objective condition to demarcate indigenous lands.

“I do not case Raposa Serra do Sol, or STF trouxe or positioning of article 231, that it is the land that the Indians ‘occupy’ and not ‘occupy’. Ou seja, that they were occupying on October 5, 1988 ”, he said.

Aguiar criticizes the process of demarcation of indigenous lands, saying that there is little room for contestation and participation of owners, in addition to considering the lack of objectivity of the evidence drawn up to support the traditional occupation of the land.

The producer also affirmed that the vote of Minister Edson Fachin, not STF, allows indigenous people to claim lands occupied in a “far distant” past.

Lucas Beber, vice-president of the Association of Soybean and Mill Producers of the State of Mato Grosso (Aprosoja-MT), affirmed that it is a “popular will” to resolve this impasse.

“People stress that this definition will provide legal tranquility for indigenous people and landowners”, he affirmed. “The time frame must be clear that it does not prevent the areas where they were occupied in 1988 from being demarcated.”

original right

As he said CNN Advocate Kari Guajajara, the right of two indigenous peoples to their territories is an original right, or so, which precedes the Brazilian State itself, and which is textually guaranteed in the Constitution.

“Brazil has several unresolved chapters and one of them is to guide two indigenous peoples”, he affirmed. “This is a reflection of the incapacity and lack of strategic will to resolve this chapter of history and ensure the rights of the two people to their territories,” he declared.

The lawyer, who acts in the legal defense of Coiab (Coordenação das Organizações Indígenas da Amazônia Brasileira), says she does not see the possibility of a favorable disfavor to the indigenous people via Congress.

“People expect that no Judiciary, no role against the majority that they have to keep democracy intact, that they can do this analysis impartially,” he affirmed. “The Judiciary is the only Power that has the conditions to recognize this original law and to respect the Constitution.”

According to Apib (Articulação dos Povos Indígenas do Brasil), all the 1,393 indigenous territories (already demarcated, in the process of homologation or identification) run the risk of being impacted, if a time frame is established.

This situation would have especially harmful effects on isolated and recently contacted dusts, it was difficult to verify the occupation of certain territory in October 1988.

“If approved, this reinforces a policy of exclusion that ignores all processes of violence suffered by indigenous people, forced removals and expulsions,” said Guajajara.