STF forms majority for Mendonça to vote timeframe – 08/14/2023 – Environment

The STF (Federal Supreme Court) formed a majority this Monday (14) to allow Justice André Mendonça to participate in the judgment of the time frame of indigenous lands, despite the fact that he acted as attorney general of the Union in the process that serves as a reference for the case.

The ministers understand, however, that Mendonça will only be able to vote on the discussion on the establishment of a constitutional thesis regarding the validity of the temporal framework, and is prevented from judging this reference process —which is a Funai resource.

Mendonça himself and ministers Edson Fachin, Cármen Lúcia, Alexandre de Moraes, Dias Toffoli and Luiz Fux voted in favor of this understanding until 5:40 pm this Monday.

The votes of ministers Gilmar Mendes, Cristiano Zanin, Rosa Weber and Kassio Nunes Marques are missing.

The action of the timeframe has general repercussions. That is, when all similar processes on the subject must follow the thesis to be adopted by the Supreme Court.

For judgments of general repercussion, the STF chooses a so-called “leading case” or “paradigm process” —which is a concrete case among the appeals that reach the court on a given topic.

The court then decides on the concrete case and, at the same time, fixes the thesis that will serve as a reference for all other actions.

In the case of the timeframe, the reference process deals with an appeal by Funai (National Indian Foundation) against a decision by TRF-4 (Federal Regional Court of the 4th Region) which decided in favor of repossession of an area treated as traditional indigenous occupation in Santa Catarina.

In these records, Mendonça defended the thesis that restricts the demarcation of indigenous lands.

Before becoming a minister of the court, still as attorney general of the Union of the Jair Bolsonaro government (PL), Mendonça presented manifestations in this process.

Therefore, he asked the rest of the Supreme Court colleagues if they could also judge the general repercussion thesis.

He suggested that, in cases like his, the impediment is restricted only to voting related to the case of reference, “however, it does not apply to fixing and voting on the constitutional thesis, since in this case individual situations or concrete interests are not discussed.”

“That is, one must participate in the entirety of the judgment concerning the theme of general repercussion (including voting, debates and corresponding sessions), only failing to present a vote on the pilot cause (concrete case).”

Since 2021, the STF has analyzed the constitutionality of the time frame, which is not addressed in the legislation. The thesis states that the demarcation of indigenous territories must respect the area occupied by the peoples until the enactment of the Federal Constitution, in October 1988.

According to the criterion, indigenous people who were not on their lands until that date would not have the right to claim them.

This thesis is criticized by lawyers specializing in the rights of indigenous peoples, as it would validate and legalize invasions and violence committed against indigenous people prior to that date.

Ruralists, on the other hand, argue that the determination would serve to resolve disputes over land and would provide legal and economic security for investments in the countryside.

The rapporteur of the process, Edson Fachin, was the first to vote and refuted the thesis of the timeframe, still in 2021. He said that the theory disregards the classification of indigenous rights as fundamental, that is, stony clauses that cannot be suppressed by amendments to the Constitution.

For the minister, the constitutional protection of “original rights over the lands they traditionally occupy” does not depend on the existence of a framework.

Kassio Nunes Marques, on the other hand, reaffirmed the timeframe and voted against Funai’s appeal.

In June, Alexandre de Moraes also voted against the time frame thesis, but proposed changes in relation to the compensation that must be paid by the Union to landowners in places traditionally occupied by indigenous people.

Then, Minister André Mendonça asked for a review (longer time for analysis) and suspended the trial of the process. The analysis of the timeframe should be resumed in the second half of this year.

The virtual plenary session on the possibility of Mendonça judging the timeframe runs until 11:59 pm this Monday and, until the end of the day, ministers can still change their votes or ask for a view (more time for analysis).