This Thursday, 2, the plenary of the STF returned to judge the issue of the time frame in indigenous lands. Today, the oral arguments of the amici curiae and the PGR Augusto Aras expressed himself on the issue.
The Attorney’s Office took a stand against the time frame; in other words, for the agency, the thesis that indigenous peoples can only have demarcated lands is not correct if it is proven that they occupied it before the promulgation of the Constitution (October 5, 1988).
Who owns the land?
In 2009, FATMA – Foundation for the Environment of the State of Santa Catarina sought justice, through an action of repossession, saying that it is the legitimate owner of an area of more than 80 thousand m² located on the “Esperança-Bonsucesso” line . According to the Foundation, this area makes up a larger plot, called the “Sassafras Biological Reserve”.
It so happens that, that year, 100 indigenous people occupied that area, “settling there, and ended up cutting down the native forest in the interior of the reserve, building trails and setting up tents”.
FUNAI – National Indian Foundation rebutted FATMA’s argument alleging that that area is actually protected by the Ministry of Justice’s ordinance 1182/03, which declared the Ibirama Indigenous Land to be permanently owned by the Xokleng, Kaingang and Guarani indigenous groups. -La Klãnõ, with an approximate surface of 37,000 hectares, located in the municipalities of Doutor Pedrinho, Itaiópolis, José Boiteux and Vitor Meireles, all in Santa Catarina.
In the 1st and 2nd degrees, the Court understood that the area should be reintegrated to FATMA – Environmental Foundation, under the following grounds:
“there are no elements that allow us to infer that the lands referred to in the initial petition are traditionally occupied by the Indians, in the form of art. 231 of the Federal Constitution, mainly because whoever has been occupying them, even today, for purposes of environmental preservation, as seen, is the author part.”
In 2019, the plenary of the STF unanimously recognized the general repercussion of the matter. On that occasion, the rapporteur, Minister Fachin, stressed that the society, not even the Judiciary, is not pacified by issues such as the acceptance by the constitutional text of the theory of the indigenous fact, the necessary elements for the characterization of the possessory dispossession of indigenous lands, the conjugation of social, community and environmental interests, the configuration of possessory powers to the Indians and its relationship with the administrative procedure of demarcation.
Time frame: controversy
The judgment will require the ministers to make an extensive and in-depth analysis of article 231 of CF/88, which provides as follows:
Art. 231. The Indians are recognized for their social organization, customs, languages, beliefs and traditions, and their original rights over the lands they traditionally occupy, and the Union is responsible for demarcating, protecting and enforcing all their assets.
The italics “traditionally occupy” is the sensitive point of the issue. In 2017, the AGU issued the opinion 1/17 bringing out the time frame.
The time frame establishes that indigenous peoples would only have the right to demarcate lands that were proven to be in their possession on October 5, 1988, the date of promulgation of the Constitution. This opinion was approved by the then President of the Republic Michel Temer.
Currently, this opinion is suspended by order of Minister Edson Fachin. By suspending the text, the minister considered that the opinion could harm several indigenous communities, who could no longer receive adequate treatment from the public authorities, “especially with regard to livelihoods, if the demarcation of their lands has not yet been regularized”.
For the indigenous peoples, the approval of the time frame would be a way of strangling the right of indigenous peoples to demarcate their lands.
“This attorney-general expresses agreement with the departure from the time frame, when it is evidently verified that there has already been illicit possession of the land of the Indians”. So stated the PGR Augusto Aras this afternoon.
The PGR Augusto Aras began his demonstration explaining the importance of land for the original peoples. Aras stressed that it is directly from the land that indigenous people extract their survival and from it preserve their intergenerational cultural traditions. “The land, for the Indians, is sacred,” he said.
For the representative of the PGR, the enjoyment of indigenous rights over the lands they traditionally occupy does not depend on the prior demarcation of the tracts. The demarcation measure, for Aras, only provides legal certainty; that is, it clarifies and facilitates the claim of these lands in an eventual possession conflict.
“Demarcating an indigenous land is equivalent to recognizing a preexisting status. It consists in attesting to the occupation of the Indians as a circumstance prior to demarcation.”
Augusto Aras also explained that the preservation of indigenous lands is intrinsically linked to the protection of the environment, since taking care of the land is part of the tradition of the native peoples.
Finally, Aras proposed the following thesis for the trial:
“Art. 231 of the constitutional text imposes the state’s duty to protect the rights of indigenous communities even before the conclusion of the demarcation process, given its declaratory nature. For reasons of legal certainty, the identification and delimitation of lands traditionally occupied by the Indians must be made in the specific case with the tempus regit actum rule, applying to each case the constitutional norm in force at the time.”