Mendonça requests review and STF suspends judgment on time frame

The Minister of the Federal Supreme Court (STF) André Mendonça asked for more time for analysis – and suspended, this Wednesday (7), the judgment on the time frame for the demarcation of indigenous lands. The score stands at: 2 votes against the timeframe and 1 in favor. Mendonça has 90 days to analyze the matter, after which the case automatically returns to the Court’s agenda.

The session was accompanied by indigenous leaders, who will be in the court’s plenary. This week, indigenous people are camped on the Esplanada dos Ministérios to follow the trial.

Ministers discuss the so-called time frame. According to the thesis, defended by landowners, the indigenous people would only have the right to the lands that were in their possession until October 5, 1988, date of promulgation of the Federal Constitution, or that were in judicial dispute at the time.

The trial was suspended in September 2021, after a request for a view from Minister Alexandre de Moraes. The process that motivated the discussion deals with the dispute over the ownership of the Indigenous Land (TI) Ibirama, in Santa Catarina. The area is inhabited by the Xokleng, Kaingang and Guarani peoples, and ownership of part of the IL is questioned by the state attorney’s office, Agência Brasil reported.

Wishes

In his vote, Minister Edson Fachin, rapporteur for the case, stated that the original rights of indigenous peoples are fundamental, therefore they have the status of an ironclad clause in the Constitution, and cannot be changed or relativized. He added that these rights already existed before the 1988 Charter.

“The date of enactment of the 1988 Constitution does not constitute a time frame for the measurement of indigenous possession rights, under penalty of disregarding these rights as fundamental, as well as the entire normative-constitutional framework for the protection of indigenous possession over time”, said the rapporteur.

Minister Nunes Marques opened a divergence. For him, national sovereignty could be at risk if a time frame is not established, given the possibility of an “unlimited expansion” of areas subject to claim by indigenous peoples.

“Later Possessions [a 5 de outubro de 1988] cannot be considered traditional, because they would imply not only the recognition of indigenous peoples to their lands, but also the right to expand them unlimitedly to other areas already incorporated into the national real estate market”, said Marques.

Moraes, the only one to vote in this afternoon’s session, accompanied the rapporteur with reservations. He voted against the time frame thesis. Moraes’ vote provides for compensation to landowners who acquired land in good faith before the date of the Constitution. Those who acquired the land after the milestone must be compensated for the improvements they made on the site. In addition, in cases where it is not possible to carry out demarcation, such as in cities, traditional peoples must be compensated.

“The idea of ​​a time frame cannot be a radiograph, it is not an instantaneous frame based on it. Anyone who was not there at that time cannot, and the indigenous community, no longer be able to plead. I reject the idea of ​​a time frame”, said the minister.

Chamber approved PL of the time frame

Parallel to the discussion at the Supreme Court, the Chamber of Deputies approved a 2007 bill establishing the timeframe. The processing of PL 490/2007 was accelerated after the President of the STF, Minister Rosa Weber, scheduled the resumption of the trial on the subject. The minister made the announcement in April.

The PL of the Temporal Framework was approved in the House on an urgent basis, last week, and forwarded to the Senate. The president of the Senate, Rodrigo Pacheco (PSD-MG), has already declared, however, that the matter will not be dealt with as an emergency in the house, and should follow the normal rite of discussion in the thematic committees.