Nunes Marques votes in favor of the time frame thesis defended by the government; judgment is suspended

BRASÍLIA — In the sixth session of judgments on the timeframe of indigenous demarcation in the Supreme Court (STF), Minister Nunes Marques voted in favor of maintaining the thesis — the same position defended by the Jair Bolsonaro government — under the argument that without the time frame the expansion of indigenous lands could occur “infinitely”. The trial, however, was suspended after a request for a review by Minister Alexandre de Moraes.

— Possessions subsequent to the promulgation of the Federal Constitution cannot be considered traditional, because that would imply the right to expand them unlimitedly to new areas already definitively incorporated into the national real estate market — said the minister.

Nunes Marques was the first to diverge from the rapporteur, Minister Edson Fachin, for whom indigenous territorial rights existed before the promulgation of the Constitution. In the rapporteur’s assessment, the so-called temporal framework theory ignores, in its formulation, the situation of isolated Indians, that is, indigenous communities with little or no contact with the surrounding society, or even with other indigenous communities.

For Nunes Marques, however, whoever actually occupies a given time frame does not have the right to expand the occupation. With the request for a review by Moraes, who argued that he wanted to analyze the arguments raised by Nunes Marques in greater depth, the trial has no new date to resume. Behind the scenes at the Court, there was a perception that the troubled political moment was not ideal for analyzing the topic, which was considered a delicate one.

The time frame came to the STF through a repossession lawsuit filed by the government of Santa Catarina against the Xokleng people, referring to the Ibirama-Laklãnõ Indigenous Land (TI), where Guarani and Kaingang indigenous also live. The controversy, in addition to being of interest to the government and indigenous entities, opposes environmentalists and rural producers, who also defend the temporal framework.

What is discussed in the action is whether, for the recognition of an area as an indigenous territory, it is necessary to prove that the indigenous occupied the land at the time of the promulgation of the 1988 Constitution. suspended and await an outcome from the Supreme.

On February 2, the Attorney General of the Republic, Augusto Aras, took a stand against the time frame in the case of the Xokleng indigenous people, from Santa Catarina, currently being judged by the Supreme Court. However, Aras proposed that all indigenous land demarcation processes be discussed on a case-by-case basis – as is already done.

The Federal Attorney General, in turn, defended that a change in the thesis of the temporal framework “has the potential to generate legal uncertainty and even greater instability in demarcation processes” and asks that the framework be maintained “for the sake of social pacification” .

The statement of the attorney general of the Union, Bruno Bianco, points out that the understanding signed by the STF in the Raposa Serra do Sol case “established guidelines and safeguards for the promotion of indigenous rights and to guarantee the regularity of the demarcation of their lands. As a rule, In general, the time frame and the frame of traditionality were observed, except in the case of stubborn dispossession by non-Indians”.

repercussion

The legal coordinator of the Articulation of Indigenous Peoples of Brazil (Apib), Eloy Terena, said that he was already waiting for the favorable vote of Minister Nunes Marques to apply the time frame, but he did not expect the vote to be so restrictive in relation to the rights of the people. indigenous peoples. “It was a very retrograde vote coming from a minister recently appointed by President Jair Bolsonaro and extremely aligned with the interests of the government and agribusiness, but we didn’t expect it to be so restrictive: in addition to voting in favor of the application of the time frame, he says that, indigenous law would be subject to environmental law”.