This Wednesday, the Supreme Federal Court (STF) resumes the judgment that could define the future of indigenous demarcations in the country. The ministers will decide whether or not they accept the thesis of the temporal framework, defended by ruralists critical of the indigenous policy, which states that only those occupied or claimed by them until the promulgation of the 1988 Constitution can be considered indigenous lands. Minister Edson Fachin, has already voted in favor of the indigenous people, but now there is the possibility of the judgment being suspended, through a request for views. This would make the decision to vote on a bill that inserts the thesis of the framework into the legislation to be in the hands of Congress. Before a Parliament that concentrates almost half of the deputies (241) and senators (39) in rural banking, the postponement would be considered a defeat by the indigenous people, who camped in Brasília since the beginning of last week to claim their rights.
The time frame thesis is controversial because the Constitution does not define a specific date of occupation to be considered in the demarcations. Article 231 of the Charter says that “the Indians are recognized for their social organization, customs, languages, beliefs and traditions, and the original rights over the lands they traditionally occupy, and the Union is responsible for demarcating, protecting and enforcing all their assets. ”. However, the Constitution was enacted shortly after the end of the dictatorship in the country, when the integration policy was in force, which stated that indigenous people should integrate into the society of non-indigenous people. During the dictatorship, many groups were expelled from the lands they traditionally occupied, which were later sold by the state or occupied by land grabbers. “Who has proof of where they were on October 5, 1988?” says Juliana de Paula Batista, a lawyer at the Instituto Socioambiental (ISA). “This is great arbitrariness because it subverts the logic of indigenous peoples’ original rights.”
Until the promulgation of the Charter, indigenous people were protected by the State and could not enter the courts independently for their rights. Currently, native peoples can claim land occupied by third parties for demarcation as long as they can prove that the place was occupied by their ancestors. The demarcation process involves extensive anthropological research that shows whether there were, in fact, members of that ethnic group who were expelled in the area. But as demarcations have taken a long time in recent years — during the Bolsonaro Government, for example, no land was demarcated — many groups started to retake these lands. In many cases, this process generates conflicts and leads to the death of indigenous people. Data from the Atlas of Violence, released on Tuesday, summarize a worrying scenario: Between 2009 and 2019, the murder rate of indigenous people increased by more than 20%, while that of homicides in general fell. During the period, an Indian was murdered every two days in the country.
The thesis of the time frame was accepted by the Federal Regional Court of the 4th Region (TRF-4) in 2013. At the time, the court confirmed the decision of the Court of Santa Catarina in 2009 that granted the Government of that State the repossession of an area located in part of the Ibirama-Laklãnõ indigenous reserve. The Xokleng, Guarani and Kaingang peoples live there. The National Indian Foundation (Funai) appealed the decision and it ended up in the Supreme Court.
The action became even more important after, in 2019, it gained general repercussion status. This means that the decision taken by the ministers will now serve as a guideline for the federal management and all instances of justice with regard to demarcation procedures. Under a Government that has been maneuvering to stop land demarcations, and a Congress that has put to a vote bills that weaken the shielding of indigenous territories, the issue becomes even more delicate.
Influence in the Chamber
If the Supreme Court confirms the thesis of the time frame, the action will also influence bills in progress in Congress. In particular, Bill 490/2007, which deals with the time frame, prohibits the expansion of lands that have already been demarcated and still allows the exploration of indigenous territories by miners. The PL, which has already gone through the Chamber’s Committee on Constitution and Justice and Citizenship in early July and is waiting to be voted on in the Plenary, also makes contact with isolated peoples more flexible — before the Constitution, the policy of the Brazilian state was to go after these peoples to integrate them, which ended up decimating several ethnic groups for diseases to which they had no immunity.
Julia Neiva, coordinator of Conectas’s Social and Environmental Rights Defense program, warns that proposals like this will become constitutional once the Supreme Court accepts the thesis of the time frame. “This contributes to making demarcations unfeasible, increasing violence on indigenous lands and threatening territories that have already been ratified,” she says. Conectas is amicus curiae in this action at the Supreme Court, that is, it is one of the entities that subsidize the court with information for the judgment.
According to Funai, there are currently 680 demarcation processes for indigenous lands. Of these, 443 are from territories already ratified (that is, areas with their boundaries defined, materialized and georeferenced, whose administrative demarcation was accepted by presidential decree), or regularized (land that, after the ratification decree, was registered in a notary’s office in the name of the Federal Government and in the Secretariat for the Heritage of the Union). The remainder, 237 processes, deal with areas claimed by the indigenous people, but the process has not yet been finalized — they are under study or delimitation.
Julia Neiva warns, however, that if the thesis of the timeframe is accepted by the Supreme Court, even lands that have already been demarcated and ratified may be at risk. “If the thesis is adopted, we can say that it can generate legal uncertainty, it will increase the number of cases questioning land that has already been demarcated”, he says.
The thesis of the time frame is defended by ruralists, who claim that it is necessary to create legal security for those who own land and have paid for it. The Parliamentary Front for Agriculture (FPA), an association of deputies and senators from various parties allied with agribusiness interests, argues that the absence of a time frame can affect agriculture throughout the country. And it estimates a loss for the sector of “1.5 million jobs, 364.59 billion reais in agricultural products not produced in the country, and 42.73 billion dollars in agricultural exports not generated”, if the timeframe is established .
But lawyer Juliana de Paula argues that this is an equation that has many factors. “Nobody calculates the billions that will be lost in carbon storage, in rainfall, in biodiversity [caso o marco temporal seja aprovado]”, he says, referring to the fact that indigenous lands tend to have less deforestation. “There are many factors that must be put into this equation.”
EL PAÍS contacted FPA through its press office, but until the conclusion of this report, the request for an interview had not yet been scheduled. Through a note, the organization states that it is not against land demarcation. “We defend the right to property and fair compensation to rural landowners who have their land demarcated, in addition to legal security as a source of credibility in attracting investments and Brazilian development”, they affirm. The FPA also recalls that “14.1% of the national territory is occupied by indigenous peoples”. However, more than 98% of the total extension of these areas is in the Legal Amazon, much of it in remote regions with no agricultural or livestock vocation.
According to the Brazilian Institute of Statistical Geography (IBGE), 41% of the entire Brazilian territory in 2017 was occupied by private rural establishments. Juliana de Paula also recalls that currently there are 51 million hectares of unallocated public land in the country. In other words, regions mainly occupied by forests, belonging to the States and the Union, and which have not yet been destined for use by society. “There are more than two states of São Paulo with increasingly invaded areas, because they know that the National Congress will legalize it later,” she says.
“We have no shortage of land in Brazil. There are many illegal possessions and occupations and this problem needs to be resolved”, says Juliana. “It is a fallacy to say that [sem o marco temporal] someone will lose. Even because, if the indigenous people lose, they ask for the possibility of existing as a person. The producer, if removed, will not get lost”.
The time frame was already a topic debated at the STF. In 2009, the ministers analyzed the demarcation of the Raposa Serra do Sol indigenous land, in Roraima, a stage of dispute since the 1970s, and gave a decision in favor of the indigenous people based on the time frame. At the time, the Supreme Court decided that the indigenous people had the right to the space because they were already there before the promulgation of the Constitution and confirmed the approval of the reservation. It was established, however, that the understanding of the time frame would only be valid for that land. But the decision ended up setting a precedent for other cases to be judged based on the same understanding.
To reinforce this precedent, in 2017, under Michel Temer’s government, the Attorney-General of the Union (AGU) issued a document establishing that indigenous people have the right to land, “provided that the intended area was occupied on the date of promulgation of the Federal Constitution”. The case of the Xokleng indigenous community, from Santa Catarina, which is in the hands of the Supreme Court, was judged by TRF-4 based on this understanding. But in May of last year, the STF minister, Edson Fachin, suspended that opinion of the AGU until the end of the pandemic or until the judgment of the action is closed. In the minister’s understanding, the processing of processes that may have the purpose of repossessions are capable of putting indigenous populations at risk “who can suddenly see themselves clustered on the edges of highways, unattended and without the minimum conditions of hygiene and isolation to minimize the risks of contagion by the coronavirus”.
Fachin, who is the rapporteur of the action, already presented his vote in June, in the virtual plenary, against the time frame. Then, the case was referred to the physical plenary at the request of Minister Alexandre de Moraes. In the same month, the Attorney General’s Office (PGR) also presented an opinion against the timeframe. “Art. 231 of the Federal Constitution recognizes indigenous rights over traditionally occupied lands, whose identification and delimitation must be carried out in light of the legislation in force at the time of the occupation”, wrote the Attorney General of the Republic, Augusto Aras.
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