imbroglio and insecurity may continue

The time frame for the demarcation of indigenous lands has been the center of recent debates in the Federal Supreme Court (STF) and in the Federal Senate. But the imbroglio and legal uncertainty for indigenous people and owners of areas intended for demarcation have no end date.

The end of voting on the judgment on the time frame in the STF does not guarantee that the debates will be closed in the Court. In this Thursday’s session, the final score was 9 votes against the time frame, and 2 votes in favor. But the Supreme Court will still discuss next week the thesis that will be defined on the issue, which will have general repercussions and should guide future decisions on the topic. Furthermore, ministers may still be provoked into deciding on the matter, if the law being discussed in Congress is approved and sanctioned and then becomes the target of questioning.

In the Senate, the processing of a bill, which took 16 years to be approved in the Chamber of Deputies, has involved the efforts of senators linked to the Parliamentary Agricultural Front (FPA). Meanwhile, the bench formed by indigenous deputies, and supported by the Minister of Indigenous Peoples, Sonia Guajajara and the president of the National Foundation of Indigenous Peoples (Funai), Joenia Wapichana, has demonstrated that it is contrary to the legislative proposals and has focused efforts on seeking international support.

Regarding the project being processed in the Senate, the vote in the Constitution and Justice Commission (CCJ) is scheduled for next Wednesday (27). In view of this, the House moves towards the final stage of considering the proposal. After approval by the CCJ, the project will be analyzed in the plenary and, if there are no changes to the text, it will be sent for presidential sanction. If it is not vetoed, it will become law.

If President Luiz Inácio Lula da Silva (PT) decides to veto points of the project or the entire measure, Congress can still overturn them and enact the law on the time frame.

If changes are made to the text in the Senate, the bill will return for further consideration by the Chamber of Deputies.

The time frame thesis provides that the cession of areas in favor of indigenous people would only be valid for lands that were already inhabited by indigenous people on the date of promulgation of the 1988 Constitution. The application or not of the thesis affects indigenous people and land owners, as it determines who will be the possession of thousands of areas throughout Brazil.

Discussions about the time frame should continue

The lawyers heard by the People’s Gazette are unanimous in stating that the imbroglio surrounding the time frame must remain, even with the end of the trial in the STF and, subsequently, when the vote in the National Congress also comes to an end.

Lawyer Albenir Querubini highlights that, even if it is approved in the National Congress, the bill may have its constitutionality questioned before the STF.

Questioning about the future law approved in Congress can be made by political parties, for example, through the presentation of a Direct Action of Unconstitutionality (Adin) to the STF.

“Nothing prevents that, after the approval of the PL, the STF will be provoked by possible unconstitutionality, through Adin by a possible legitimized party (e.g. political parties). If this happens, the imbroglio could last”, explains lawyer Paulo Roberto Kohl.

In his opinion, the rights of both parties, indigenous and non-indigenous, should be guaranteed. “I believe that there should be a federative pact between the states and the Union to resolve the problem, preserving the rights of both parties involved. The majority of non-Indians who are currently at risk of being expropriated have titles to the areas and trusted the State. Your good faith must be preserved,” said Kohl.

In Kohl’s understanding, when it comes to non-indigenous people, property titles granted by the states and the Union should be compensated according to the value of the land, without taking into account what is planted on it, for example. “Western law has long preserved the rights of third parties in good faith. At the very least, they should have the right to compensation for the land or the possibility of exchanging areas, through consultation with the indigenous community”, pointed out the lawyer.

Lawyer Antônio Pinheiro Pedro goes further and states that the correct thing would be for the STF to have interrupted the trial due to the bill’s progress in the Senate. “Aiming to observe the decision of the Legislature and then extinguish the act, due to the fact that the object is already covered by law. Or even, extinguish the action now, as the initiative is being implemented by the Legislative Branch”, stated Pinheiro Pedro.

Jurists disagree on the best solution for the time frame

Possible solutions to the impasses that afflict indigenous people and farmers across the country also include disagreement over the best way for Congress to regulate the measure, whether it should be through a bill or a proposed amendment to the Constitution (PEC).

Still regarding the time frame, there are jurists who understand that the Federal Constitution guarantees the so-called “original rights” to indigenous peoples. On the other hand, there are those who understand that the definitions of the Legislative Branch, as the representative of the people, should prevail.

For jurists who defend the understanding of original rights, the rights of indigenous people over their lands predate the creation of the State itself and take into account the history of domination at the time of colonization. “I think that, after we guarantee a certain advance in the attribution of rights to those who do not have them, through a decision, you could not go back and deny them this right. Even if in the context of approving a proposal discussed in the National Congress, whether it is a law or a constitutional amendment”, said doctor in Constitutional Law Rubens Beçak.

However, there are jurists who understand that the legislator’s vote must prevail and the Judiciary would not have this legitimacy. “Remembering that the Judiciary only came to grant these rights, as […] It will come to the question of the time frame, because this was not done by the Legislative Branch, which would have been more appropriate”, highlighted Beçak.

Although there is this divergence, the technical team of the Parliamentary Agricultural Front (FPA) states that “until the law is enacted, the STF’s understanding must be applied. However, once the law is published, it is what regulates legal relations on the matter”.

PL or PEC? FPA must “run” with PEC on compensation

In addition to the struggle between the Powers, there are different understandings about the type of legislative proposal used by the National Congress to try to pacify the issue. There is the possibility of dealing with the matter through Proposed Amendments to the Constitution (PEC) or Bills (PL).

“I think that the definitive solution would involve the approval of a PEC. In view of this unjustifiable change by the STF, the PEC is necessary in this sense”, stated lawyer Albenir Querubini. The statement is reinforced by lawyer Paulo Roberto Kohl. “The best option would be an Amendment to the Constitution. However, a law has more scope in regulating specific issues that a PEC would not fit”, added Kohl.

The demarcation of indigenous lands has already been debated in PECs, such as PEC 215, which intended to allow the National Congress to give approval for the demarcations. Or even PEC 132/2015, already approved in the Senate, which deals with compensation for land owners in indigenous areas. In recent years, the FPA has also sought approval of the time frame project (PL 2903/2023) to guarantee the rights of rural owners and regulate various points related to indigenous lands, such as mining in the areas and compensation for lands.

With the formation of a majority by overturning the time frame thesis in the STF, the FPA must resume debates on PEC 132/2015 and make efforts to approve it in the Chamber of Deputies. The statement was made in a video released by the president of the FPA, deputy Pedro Lupion (PP-PR), after confirming the vote of the seventh minister contrary to the time frame thesis.

This Thursday (21), Lupion said that the Supreme Court’s decision that overturned the time frame is “political” and “violates the harmony between the Powers”. The president of the FPA highlighted that the agribusiness bench will obstruct the processing of important agendas until bills and constitutional amendment proposals (PECs) on the time frame are analyzed by the National Congress.

At the STF, the issue of compensation is also being addressed. In the trial of the time frame, the thesis presented by minister Alexandre de Moraes, who tends to emerge victorious by the end of the trial, foresees the possibility of payment of compensation, by the Union, to rural producers or other owners who are occupying areas of indigenous territories so that the demarcation can be fulfilled. The discussion on the thesis should take place next week.

For the Articulation of Indigenous Peoples of Brazil (Apib), the proposal for compensation for the value of the land “may make demarcations unfeasible and the exclusive enjoyment of indigenous lands is also an inviolable right”.