Recently reinstated as attorney general of the Republic, Augusto Aras presented this Thursday 2 a forceful demonstration against the thesis of the “time frame” for the demarcation of indigenous lands and pointed to possible violations of human rights in the possibility of the Supreme Court validating it.
The position of the PGR was also contrary to that presented yesterday by the Attorney General of the Union, Bruno Bianco Leal, who, in defending the interests of the federal government, alleged legal uncertainty and a threat to social peace if the thesis is overturned. The president Jair Bolsonaro is in favor of the time frame under the argument that indigenous people are used as a maneuvering mass and that the process will harm agribusiness.
In a speech of approximately 25 minutes, with references as different as the chief Raoni and the former British Prime Minister Winston Churchill, Aras said that the Constitution registered the importance of recognizing the indigenous people as the first occupants of the lands.
“Brazil was not discovered, Brazil is not 521 years old, our ancestors who bequeathed this country to us cannot be made invisible,” he said.
“The state legal duty to protect indigenous lands does not begin after the demarcation of the indigenous area. Even before the demarcation is completed, the State will have to guarantee the indigenous people full protection in relation to the lands they occupy, in compliance with the constitutionally guaranteed rights. In fact, the demarcation process must take place within a reasonable period of time”, followed the PGR.
According to the understanding of the time frame, an indigenous land can only be demarcated if it is proven that the indigenous people were in that territory on the date of the promulgation of the Constitution, on October 5, 1988. Defenders of the thesis, many of them linked to agribusiness, argue that the The use of the verb “occupy” in the present tense in the text of the Federal Constitution is proof that indigenous communities could only claim ownership of the lands they occupied at the time of approval of the Charter.
Indigenous leaders, on the other hand, claim that the Constituent Assembly worked with criteria of traditionality. If native peoples interested in demarcation cannot prove ownership of the lands, they may be subjected to removals and prevented from requesting new territories.
In his speech, the attorney general also pointed out that the delay in the regularization of indigenous lands and the lack of protection for communities during the demarcation process may constitute a violation of human rights.
“The state of uncertainty regarding this aspect has already been responsible for the shedding of blood, sweat and tears,” he said. “All indigenous lands should already be demarcated in Brazil. There is, therefore, a delay by the State in this regard”, he added.
Aras argued that the recognition of ‘permanent possession and enjoyment of wealth’, constitutionally guaranteed to indigenous peoples, dispenses with the need for demarcation.
“The demarcation measure only provides legal certainty, that is, it clarifies and facilitates the claim of these lands in the event of a conflict of ownership. In any case, the demarcation is of a declaratory nature, therefore not constitutive”, summed up the attorney.
The second day of the Supreme Court ended once again, however, without even a vote being cast. The session began when there were still 17 oral submissions from amicus curiae – Latin name given to lawyers and institutions that help substantiate the votes of ministers – and of the PGR itself.
Between delays in the beginning of the trial and the return of the break, not even the minister Edson Fachin, rapporteur of the case, managed to cast his vote. The magistrate had already presented his position against the time frame during the session held in the Court’s virtual plenary, but he will need to reread the reasoning of the decision because there was a request for emphasis (referral of the case for in-person analysis), presented in June this year by the minister Alexandre de Moraes.
In the order defined for the demonstrations, the second day of the session was marked by the defense of the time frame. Most of the arguments came from representatives of unions and organizations linked to farmers, whose arguments allege that the eventual overturning of the thesis attacks the rights of rural landowners, agribusiness sectors, as well as the legal security of the country.
“The stability of social peace must be observed in this trial,” said Luana Ruiz Silva de Figueiredo, representative of the National Property Rights Guarantee Organization. The argument was used several times during today’s session. The representatives of rural producers indicate the possibility of conflicts in the countryside, if the thesis is considered unconstitutional.
“While the indigenous people segregate Brazilian society, they deny the right to property, putting at risk the freedoms of Brazilians and the stability of the democratic rule of law, the time frame is the opposite: it welcomes and accommodates us all and does not reflect any retrogression. There is no subtraction of rights. The time frame guarantees the rights of the Indians, yes”, he added.
For the indigenous lawyers, the recognition of the constitutionality of the time frame by the STF ministers should aggravate the processes of violation of indigenous rights in disputes over land in the interior of the country. and they are submitted”, said Eloy Terena, invited to speak for the Articulation of Indigenous Peoples of Brazil.
Data collected by the Instituto Socioambiental’s monitoring of decisions published in the Official Gazette of the Union point to the existence of 303 indigenous lands without presidential approval, which means that the demarcation process is in progress. The disputed lands total 11,000 hectares, occupied by approximately 197,000 indigenous people.
Indigenous leaders and anthropologists claim that the recognition of the time frame can make the completion of these demarcation processes unfeasible, as well as stimulate land repossession initiatives by farmers.
Contrary to the indigenists, lawyer Paulo Dorón, representative of the Brazilian Rural Society, argued in the judgment that “the case boils down to the idea of trust in relation to the constitutional order in force since 1988”.
“It is necessary to consider and be flexible so that apparently antagonistic interests between landowners and indigenous people who occupy traditional lands are able to coexist. There is only one way to live together, which is through trust in the established constitutional order, without ruptures” said Dorón.
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