STF begins to define rules after rejection of the time frame

This Wednesday (27), the ministers of the Federal Supreme Court (STF) resumed the judgment on the time frame to define the new rules for the demarcation of indigenous lands.

The judges seek consensus on theses presented regarding compensation to former land owners, in addition to issues related to the exploitation of demarcated lands and other problems, such as the impossibility of demarcating an area recognized as indigenous, however, occupied by a city.

Last week, the Supreme Court rejected the time frame thesis by 9 votes to 2. Only ministers Nunes Marques and André Mendonça voted for the constitutionality of the time frame.

In practice, the STF decision allows areas in which indigenous tribes cannot prove that they already resided before 1988 – lands that may have been invaded by tribes, for example – to be considered property of the ethnic groups.

When voting to reject the time frame, minister Alexandre de Moraes, differed from the rapporteur of the action, minister Edson Fachin, on just one point to propose the payment of compensation to the former owner of the land “corresponding to the value of the bare land and improvements” .

In the initial vote, Fachin proposed only “prior compensation in a judicial administrative process separate from the demarcation procedure” to the former owner of the land who, in good faith, received the title to the land improperly.

The rapporteur opened today’s trial by proposing a “synthetic thesis”, contrary to Minister Moraes’ proposal to study each case in particular to consider compensation.

Even though they voted against the time frame, ministers Alexandre de Moraes and Gilmar Mendes took a stand against possible “injustices” and defended the payment of compensation.

Minister Luís Roberto Barroso followed Minister Fachin’s thesis to form consensus, but said that in his opinion, compensation should not even be considered.

In opposition to the rapporteur, Minister Dias Toffoli defended a broader “analytical thesis”, which could encompass the greatest number of challenges and particularities generated from the Court’s new understanding of demarcation.

With votes from ministers André Mendonça, Nunes Marques, Alexandre de Moraes, Luiz Fux and Gilmar Mendes, Minister Toffoli’s analytical thesis won.

After the vote, the President of the Court, Minister Rosa Weber, suspended the session for the prescribed time. Upon return, the judges must define the details of the analytical thesis.