STF resumes judgment of the time frame – 08/30/2023 – Daily life

The Federal Supreme Court (STF) resumes this Wednesday (30) the judgment of the validity of the time frame of indigenous lands, which is not addressed by legislation.

The thesis, defended by the ruralists, 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, according to them, it would validate invasions and violence committed against indigenous people prior to that date.

So far, it’s 2 votes to 1 against the timeframe. The trial is resumed with the vote of Minister André Mendonça, who had requested a review (more time for analysis) of the process on June 7.

Mendonça will only be able to vote in the discussion about the establishment of a constitutional thesis regarding the validity of the time frame and is prevented from judging the reference process for the case —an appeal by Funai against the decision of the TRF-4 (Federal Regional Court of the 4th Region ) in favor of the repossession of an area treated as a traditional indigenous occupation in Santa Catarina.

This is because he served, during the Jair Bolsonaro (PL) government, as the Union’s attorney general in this specific process, and defended the thesis that restricts the demarcation of indigenous lands.

So far, ministers Edson Fachin and Alexandre de Moraes have voted against the timeframe, and minister Kassio Nunes Marques has voted in favor.

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 for the dismissal of the appeal.

He argued that the 1988 Constitution recognized indigenous peoples’ original rights over the lands they traditionally occupy, but that constitutional protection depends on a time frame.

Following the vote by Nunes Marques, Alexandre de Moraes asked to be seen and could only vote in June of this year.

He proposed changes in relation to the compensation that must be paid by the Union to landowners in places traditionally occupied by indigenous people.

According to him, if there is no dispossession (usurpation of possession), physical conflict or judicial controversy on the date of promulgation of the Constitution, the Union must previously indemnify the owner of land located in traditional indigenous occupation, in cash or in agrarian debt securities.

In addition, Moraes voted, if the expropriation of these people is contrary to the public interest and “seeking social peace”, the Union “may carry out compensation to indigenous communities, granting them lands equivalent to those traditionally occupied, provided there is express agreement” .

Moraes stated that his vote is for there to be “neither eight nor eighty” in relation to the time frame dispute, and to guarantee “possession to traditional communities without completely denying people in good faith the perfect legal act”.

The resumption of the trial of the process takes place amid new protests by indigenous people in front of the court.

After Mendonça, the next minister to vote will be Cristiano Zanin, the first nominee to the Supreme by President Lula (PT) in his current term.

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AS THE MINISTERS OF THE STF HAVE ALREADY VOTED ON THE TIMEFRAME

Edson Fachin vs.

The rapporteur argues that the right of indigenous peoples to lands predates the creation of the State and that, therefore, it should not be defined by any temporal framework. He recalled that the Constitution defines indigenous rights as fundamental and says that peoples have “original rights over the lands they traditionally occupy”

Nunes Marques, in favor

Indicated by Bolsonaro, he disagreed with the rapporteur and stated, in his vote, that the framework creates legal certainty for demarcations. He followed the understanding created in the Raposa Serra do Sol land judgment, which instituted the thesis for the first time in the Supreme

Alexandre de Moraes, divergent

The minister was against the institution of a timeframe, but opened up the possibility of creating conditions for the demarcation of land —as in the case of Raposa Serra do Sol—, among them, compensation for those who would be left without the area so that the territory be delegated to the indigenous people.