Indigenous people reject time frame in STF session; judgment continues on Thursday – 09/01/2021

The STF (Supreme Federal Court) resumed today the judgment of the timeframe of the indigenous lands, which should guide the processes of demarcation of the areas. The analysis of the process had begun last week, with the reading of Minister Edson Fachin’s report, and continued in today’s session.

So far, however, the ministers have not presented their votes. Before this step, the court hears the lawyers representing the entities interested in the case, with permission to make oral arguments of up to five minutes each. Of the 39 registered speakers, 21 spoke today. The remaining 18 are expected to speak tomorrow.

So far, almost all the entities that have spoken represent the indigenous communities. The lawyers rejected, in their defenses, the time frame thesis. Supported by ruralists, the idea establishes that indigenous peoples only have the right to land demarcation if they prove that they occupied the areas at the time of the enactment of the 1988 Constitution.

Attorney Eloy Terena, who spoke to the STF on behalf of the Apib (Articulation of Indigenous Peoples of Brazil), stated that the thesis of the timeframe disregards the history of the treatment given to indigenous peoples in the country.

“It is necessary to ask: if a certain community was not in your land on the date of October 5th, where were they? Who evicted them from there? Just remember that we were leaving the period of dictatorship, where many communities were evicted from their land. support, now with the endorsement of the State itself and its agents,” he said. “Therefore, adopting the time frame is ignoring all the violations to which the indigenous people were and are subjected,” added Terena.

So far, the only ones who spoke in favor of the time frame were the Union’s Attorney General, Bruno Bianco, and Alisson de Bom de Souza, attorney for the state of Santa Catarina. Tomorrow, most entities registered for rural support are rural unions and associations linked to agribusiness, favorable to the time frame.

In his presentation, Bruno Bianco recalled that the time frame thesis has already been used in similar situations, and that its overthrow would bring “legal uncertainty” to land disputes in the country.

“The precedent seeks to harmonize the right to ownership in relation to land that [os povos indígenas] traditionally occupy. The revolving of these established safeguards has the potential to generate total legal uncertainty and even greater instability in the demarcation processes,” stated the AGU.

Souza, in turn, spoke on behalf of the IMA (Institute for the Environment of Santa Catarina), the state’s environmental agency, which managed in court the expropriation of an area claimed by the Xokleng people, a native of the region. It was an appeal against this decision that reached the STF and is being judged with general repercussion. That is, the result will serve to guide similar cases.

Uncertain outcome

Minister Luiz Fux, president of the STF, said last Wednesday that the case will be voted on in the plenary even if it needs new sessions. Internally, however, the feeling of the Court is that there will be a request for a view, as informed by Carolina Brígido, columnist for the UOL. If this is confirmed, the trial will again be paralyzed indefinitely.

Even before voting starts, a good part of the day should be taken up by oral arguments, in which entities interested in the process make presentations of up to five minutes each. There are 39 speakers registered for this step.

The postponement of the trial to this week, determined by Fux, did not end the mobilization of indigenous peoples around the issue. Camped in Brasília since the 23rd, they stayed in the federal capital to follow the case for another week. The concentration, however, moved 2 kilometers away from Praça dos Três Poderes.

If there is a request for a view, attention is turned to Congress, where several bills that have been rejected by entities in defense of indigenous peoples are being processed. One of them is PL 490/2007, which provides for the thesis of the time frame, by which indigenous peoples only have the right to lands they already occupied at the time of the enactment of the 1988 Constitution.

In June, this project was approved by the CCJ (Committee on Constitution and Justice) of the Chamber, presided over by deputy pocketnarista Bia Kicis (PSL-DF). The ruralist caucus, which defends the thesis of the time frame, asks that the text be voted on in the House’s plenary.

The process

The STF’s decision will have general repercussion, that is, it will serve to resolve disputes on the subject in all instances of justice in the country. The dispute pits ruralists, supported by President Jair Bolsonaro (No Party), and more than 170 indigenous peoples, who sent around 6,000 representatives to Brasília to follow the trial, according to Apib (Articulação dos Povos Indígenas do Brasil).

Ruralists defend, in general, that the thesis of the “time frame” of occupation prevails: that the right to demarcate indigenous lands be given only to peoples who were in the area at the time of the elaboration of the 1988 Constitution. If adopted, this criterion it will hinder and limit new demarcations.

The lawsuit deals with a 12-year legal dispute between the government of Santa Catarina and indigenous people of the Xoclengue people, who claim territory in the central region of the state. In January 2009, about a hundred of them occupied an area where the Sassafras biological reserve is now located, an area of ​​environmental protection.

For this reason, Fatma, an environmental agency in Santa Catarina at the time, asked for repossession in court. The order was granted in the first instance and confirmed by the TRF4 (Regional Court of the 4th Region), in Porto Alegre. Funai (National Indian Foundation) then appealed the TR4 decision, and the case reached the Supreme Court at the end of 2016.