- João Fellet – @joaofellet
- From BBC News Brasil in São Paulo
The Supreme Court (STF) resumes this Wednesday (1/8) a judgment that will influence the future of demarcation of indigenous lands in Brazil.
The decision will have repercussions for several other peoples who are claiming the demarcation of territories.
In 2018, when analyzing the process of creating quilombola territories, the STF rejected the application of this thesis, a decision that could influence the current judgment (read more below).
The Jair Bolsonaro government and its ruralist allies defend that the concept of the time frame should be validated by the court, a measure that would make new demarcations difficult.
According to defenders of this position, only the communities that occupied them on the date of the promulgation of the Constitution can claim the demarcation of indigenous lands: October 5, 1988.
The thesis has been formally adopted by the federal government since the Michel Temer administration.
In practice, the stance paralyzed new demarcations, since a large part of the pending cases deal with cases in which communities claim to have been expelled from the territories before 1988.
About 6,000 indigenous people have been camped in Brasília for weeks in protest so that the Supreme Court rejects the thesis.
The validity of the concept will be addressed in a judgment on a territorial claim by the xokleng indigenous people of Santa Catarina.
The court will assess whether the Ibirama La-Klãnõ Indigenous Land — inhabited by the Xokleng and two other peoples, the Kaingang and the Guarani — should incorporate or not areas claimed by the government of Santa Catarina and by the occupants of rural properties.
The disputed area formally became part of indigenous land in 2003, but is partially occupied by tobacco plantations.
The government of Santa Catarina says that this land was public and was sold to rural landowners at the end of the 19th century – the area was therefore not occupied by indigenous people in 1988.
Indigenous people claim that the territory was used by the community for hunting, fishing and gathering fruit, but that decades of persecution and killing forced the group to leave the area.
The xokleng were one of the people most impacted by the action of bugreiros — militias hired until the 1930s to expel indigenous peoples from territories given to European immigrants in the southern region.
The case gained importance because the STF determined that the decision on the xokleng will have general repercussions.
In other words, if it recognizes that the group’s demand is legitimate, there will be room for other communities to claim territories from which they say they were expelled before 1988.
The trial has already been postponed and stopped again and again – and it is possible that it will be postponed once more.
This will happen if a minister asks for a view of the process, requesting more time to analyze the issue. In this case, there would be no deadline for the resumption of the judgment.
Indigenous people camped in Brasilia are pressing for the case to be judged before the Chamber of Deputies votes on Bill 490, which is in the final stages of processing.
Among other points, the project establishes 1988 as a time frame for the demarcation of indigenous lands.
If the STF invalidates the time frame thesis in the judgment, however, it is likely that the Chamber will have to alter or discard the bill.
After all, court decisions are made at the level of the Constitution, which is above any bill.
Ruralists, on the other hand, are pressing for the STF to postpone the judgment until after the Chamber’s decision on PL 490.
They hope that, in this way, the bill will be approved in the Chamber and that the decision of the deputies will encourage the court to validate the time frame.
Another possibility, if the STF rejects the timeframe principle, would be to send Congress a Proposal for Amendment to the Constitution (PEC) — but the approval of this measure would be more difficult, as it requires more votes than a Bill of Law.
On June 11, the rapporteur of the case on the xokleng in the STF, Minister Edson Fachin, voted against the thesis of the “time frame”, but the trial was suspended due to a request for a view by Minister Alexandre de Moraes.
Since then, the trial has been rescheduled twice more, but never concluded.
How did the concept of ‘timeframe’ come about?
The concept of “time frame” entered the ruralist vocabulary in 2009. At the time, then-STF minister Ayres Britto proposed the adoption of the thesis when hearing a case on the demarcation of the Raposa Serra do Sol Indigenous Land, in Roraima.
Ayres Britto’s proposal sought to draw a timeline that would restrict the possibilities of demarcation.
A similar concept, however, was already in force in the 2001 presidential decree 3912, which regulated the creation of quilombola territories.
According to the decree, only lands occupied by communities on October 5, 1988, the date of enactment of the Constitution, could be recognized as quilombos.
The decree, however, was revoked by another presidential decree (under President Lula’s administration) published two years later, number 4,887.
The new document extinguished the requirement that communities be in the place claimed in 1988.
In 2018, the STF was called upon to decide whether this new decree complied with constitutional requirements, provoked by a Direct Action of Unconstitutionality (ADI) filed by the then PFL, currently DEM.
The case had as rapporteur the then retired minister Cezar Peluzo, who voted for the unconstitutionality of the decree.
During the trial, Minister Dias Toffoli adopted an intermediate position: he voted for the constitutionality of the decree, but proposed the adoption of a time frame for the recognition of quilombos.
According to Toffoli, the lack of a time frame made the demarcation of territories difficult and caused legal uncertainty.
“It is not by expanding, in an extensive interpretation, with no future time limit, that this relevant right (from the quilombola communities to the territory) will become effective”, said Toffoli.
“On the contrary, perhaps it was precisely this attempt to expand their reach too much that delayed and made the demarcation and definitive title of these lands more complex,” he continued.
Minister Gilmar Mendes agreed with Toffoli and also defended the adoption of a time frame.
But their position in favor of the time frame was rejected by the remaining eight ministers, who also decided on the validity of the presidential decree that regulated the demarcations.
In 2020, Minister Rosa Weber judged embargoes for clarification (requests for clarification) on the judgment made by NGOs allied to the quilombolas.
Weber was in charge of the analysis for having been the first minister to disagree with the rapporteur’s vote, inaugurating the position that ended up winning in the judgment.
With the embargoes, the organizations asked the STF to explicitly reject the validity of the time frame thesis.
They argued that, although the thesis had been defeated in the judgment, the item was excluded from the menu, the summary of the decision.
The organizations’ objective was to get the court to formally reject the timeframe thesis — which could consolidate an understanding for future judgments (“creating jurisprudence”, in legal parlance).
But Rosa Weber assessed that the organizations could not have filed the motion for clarification, because this type of appeal does not apply to Direct Actions of Unconstitutionality – the case of the judgment on the quilombos
Even so, Weber stated that in the judgment, the court “rejected the incidence of the thesis of the timeframe on the possibility of recognizing the traditionality of the lands, able to configure the collective ownership of the areas by the remnants of quilombola communities”.
The court’s decision in the judgment on the quilombolas signals a change in the STF’s stance on the issue.
In 2014, the Second Panel of the court rejected three indigenous land claims based on the timeframe.
Four years later, however, the thesis was defeated in the judgment on the quilombolas.
And, in April of this year, the court accepted a rescission action in one of the 2014 cases, paving the way for the annulment of the decision.
The change comes at a time when the indigenous issue is one of the main points of friction between the STF and the Jair Bolsonaro government.
In recent decisions, the court has ordered the government to draw up plans to combat covid-19 among communities and drive out invaders from the territories.
Last week, Bolsonaro indicated that he may not respect an STF decision against the timeframe.
“If approved (the cancellation of the time frame), I have two options, I won’t say now, but that option has already been decided, it is the one that interests the Brazilian people, the one that will be alongside our Constitution,” he said.
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