Raposa Serra do Sol case bases action in the STF on time frame

The action of the PL, the PP and the Republicans in the Federal Supreme Court (STF) to try to guarantee the validity of the law that establishes the time frame for indigenous lands used the case of the Raposa Serra do Sol indigenous reserve, in Roraima, and the change ” radical” understanding of the Supreme Court on the subject as bases to support its arguments.

The Constitutionality Declaratory Action (ADC) 87 was presented to the Supreme Court last Thursday (28), anticipating a judicialization by the government after the overturning of President Luiz Inácio Lula da Silva’s vetoes on a bill that was being processed in Congress .

The law that establishes that new reserves can only be demarcated in areas that were already occupied by indigenous people on the date of promulgation of the Constitution, on October 5, 1988, was approved on the 14th and promulgated on December 28th. It makes it difficult to create new reserves based on anthropological reports, which often have their validity questioned in court.

The opposition parties’ action highlights a “judicial controversy”. In other words, to justify the legal action, the six lawyers who signed the request to the STF argued that decisions by the Judiciary and the Legislature have generated “wide and triggered discussion in relation to the validity of the law”. This is because the STF itself had already decided against the time frame thesis this year.

ADC 87 will be reported by minister Gilmar Mendes, who has no deadline to decide on the case. The action requires the declaration of full validity of the time frame law and that information be requested from the Chamber, the Senate and the Presidency of the Republic on the topic.

Among the arguments presented in ADC 87 are the parameters set by the STF in the judgment of the “Raposa Serra do Sol” case, which would have been incorporated into the time frame law.

The Raposa Serra do Sol reserve is one of the most controversial in the country as it has been the scene of conflict between indigenous people, rice producers, ranchers and miners. The Lula government, supported by the STF, promoted the demarcation of the reservation and expulsion of non-indigenous people. But, as the reserve is located on the border, the demarcation of the reserve created an area vulnerable to external threats to the country’s sovereignty.

This trial, which began in 2008 and ended only in 2018, culminated in a decision that listed 19 conditions for the usufruct of land by indigenous people, in addition to establishing the time frame thesis.

In the action, the lawyers also argue that in a subsequent action, “surprisingly and for no apparent reason”, the STF decided to review the understanding, during the trial of Extraordinary Appeal (RE) No. 1,017,365/SC, which took place in September this year and became known as the “time frame trial”.

Action lists 16 points to guarantee constitutionality of the time frame

In total, ADC 87, in defense of the time frame, has 16 points that support it. The document mentions, among them, the “radical change in the STF’s jurisprudence”.

In the understanding of the parties, the jurisprudence established in the “Raposa Serra do Sol” case was consolidated in the Judiciary and in the STF itself, having served as a basis and precedent for countless other judgments.

However, after the decision, the National Congress was “surprised by the direction that the STF gave to the issue in February 2019”. At the time, the then rapporteur of Extraordinary Appeal (RE) No. 1,017,365/SC, minister Edson Fachin, submitted the process to the general repercussion regime. “The decision regarding the existence of general repercussions surprisingly indicated the possibility of a radical review of already consolidated jurisprudence on a very sensitive subject”, highlights the action.

In ADC 87, the lawyers also argue that the STF’s decisions in Extraordinary Appeal 1,017,365/SC “definitely broke with the principle of legal certainty”.

Furthermore, the ADC supports the decision of the National Congress on the time frame. “The constitutional and political decision of the Legislative Branch in matters of regulation of article 231 of the Federal Constitution, especially in this scenario described, is sovereign”, highlights the text of the action.

In September, the Court rejected the time frame thesis, through the Extraordinary Appeal reported by Fachin. After the Supreme Court’s decision, deputies and senators mobilized to approve the topic, arguing that the ministers had invaded the Legislature’s competence when deciding on the time frame.

The proposal was approved by parliamentarians at the end of September. On October 20, President Luiz Inácio Lula da Silva (PT) partially vetoed the project, arguing, among other reasons, that the vetoed points would be unconstitutional. In December, the National Congress overturned the vetoes and ended up enacting the law, given President Lula’s refusal to do so.

This Friday, as already expected by the opposition and contrary to an agreement reached by the government, the Articulation of Indigenous Peoples of Brazil (Apib), Psol and Rede Sustentabilidade also filed a lawsuit with the STF to overturn the time frame law.