Aras defends a case-by-case analysis in a time frame for indigenous land and nods to Bolsonaro – 09/02/2021 – Power

The Attorney General of the Republic, Augusto Aras, defended this Thursday (2) that the establishment of a time frame for the demarcation of indigenous lands should be applied on a case-by-case basis and that there cannot be a linear rule for these disputes over claimed areas by traditional peoples.

Aras’s oral argument was the last one before the closing of the STF (Supreme Federal Court) session that discusses the issue. The analysis of the process will resume next Wednesday (8) with the votes of the ministers of the court.

Aras highlighted the importance of preserving the regions historically occupied by indigenous peoples and suggested that the Supreme Court approve a thesis to be followed by the other instances of the Judiciary that foresees that the demarcation of lands “must be done in the specific case”.

By rejecting the idea that the time frame is totally excluded from the judicial judgments that discuss the possession of land in dispute, the head of the PGR sent a signal to the ruralist congressional bench and to President Jair Bolsonaro, who has criticized the thesis defended by indigenous peoples.

“This attorney general expresses agreement with the departure from the time frame when it is evident that there had already been illicit possession of the lands of the Indians”, he said.

The Attorney General’s statement was dubious in relation to the issue, since the thesis of the timeframe already foresees the removal of this rule when there is the so-called stubborn dispossession, which is characterized by the usurpation of a certain land.

At an event in Planalto on Thursday, Bolsonaro said that any decision by the STF contrary to the time frame will cause a territory the size of the southern region to be added to indigenous reserves. According to him, the verdict could affect food production and inflation.

“Today, for every five people who eat in the world, one dish comes from Brazil. If this is approved, for every 15 dishes, only one will come from Brazil. We will have an increase in inflation, food shortages, farms being simply destroyed by reserves. Look at the responsibility of the STF, which is very important to us,” he said.

The decision to be taken by the STF in the case will be valid for the entire country, as it was applied to the case. Currently, there are 82 processes stalled in the Judiciary awaiting a definition on the possibility of applying or not the temporal framework thesis.

The debate reached the Supreme after the TRF-4 (Federal Regional Court of the 4th Region) used the rule of occupation or not of indigenous lands in 1988 to impose a defeat on the xokleng community.

At the time, Funai (National Indian Foundation) appealed the decision and it was in this appeal that the STF decided to fix the general repercussion.

The federal government agency went to the Supreme against the TRF-4 court order that granted the Santa Catarina Environment Institute (formerly Fatma, Foundation for Technological Support to the Environment) the right to repossess the site that was occupied by the indigenous peoples.

In the specific case, Aras took a stand in favor of Funai’s appeal to return the land to the indigenous people.

The only public vote given in this case so far is from Minister Edson Fachin, who is the rapporteur of the matter and spoke on the subject when the trial began in the virtual plenary.

He harshly criticized the time frame thesis and voted in favor of the indigenous people. Next week, he will defend his position again before the other ministers cast their votes.

Before Aras, the representative of the CNA (Confederation of Agriculture and Livestock of Brazil), Rudy Maia, used the rostrum and stated that the time frame is the only “instrument that brings legal security, predictability and stability to the country’s social relations”.

“The time frame is a clear instrument, it is a possible interpretation in the constitutional text that brings legal certainty, which brings guidelines and contours to guarantee the implementation of the demarcation of occupied indigenous lands”.

Attorney Lethícia Reis de Guimarães, in turn, spoke on behalf of the Xakriabá people and stated that the thesis of the temporal framework is unconstitutional and disrespects the history of traditional populations on their lands.

She spoke on behalf of the indigenous community located in Minas Gerais: “If they weren’t there in 1988, it’s because they were expelled by bullets”.

According to Lethícia, this community had the first recognition of that land in 1728 by the Portuguese crown. Currently, however, only a third of the area they occupied is officially demarcated.
“In other words, around 70% of the area that had already been recognized as a traditional occupation is currently without the use of indigenous people,” he said.

According to her, “if the Constitution is reinterpreted” and the 1988 timeframe is fixed, “1,200 people from four villages can be removed from their territories”.

Lawyer Luana de Figueiredo, however, went in the opposite direction. She spoke on behalf of the Antônio João (MS) Rural Union and the National Property Rights Guarantee Organization and accused the indigenous people of trying to divide society.

“While the indigenous people segregate Brazilian society, denying the right to property, culminating in a risk to the freedoms of Brazilians and the stability of the democratic rule of law, the time frame, on the contrary, welcomes and accommodates us all,” he said.

For her, the definition of the 1988 Constitution as the date on which indigenous people should be on their lands to define who has the right to demarcation does not represent a setback, on the contrary.

“This guarantees the rights of the Indians, yes, as the guarantee to the Indians of the lands essential to them persists, even when not traditionally inhabited in 1988.”

Lawyer Luiz Martins used the Supreme Court on behalf of the Brazilian Association of Soy Producers and also defended the delimitation of the time frame.

“An important highlight concerns the economic impact of any decision. It was attached to the economic study of the Instituto Matogrossense de Economia. It was found that only in Mato Grosso the impact on the generation of direct and indirect jobs will be significant”, he stated.

He was in line with what the AGU (General Advocacy of the Union) had defended on Wednesday (1). The body responsible for the judicial defense of the government stated that a court decision against the time frame will generate legal uncertainty.

For this reason, the AGU also requested that the STF plenary suspend the effectiveness of Fachin’s decision, which suspended the effects of an opinion issued by the AGU to guide the other public administration bodies in favor of the time frame.

Indigenous groups accompanied the court session in the Três Poderes square. Last week, a mega-camp was set up in Brasília. As the start of the case was postponed, a minor was organized for this week.