Judge Luís Roberto Barroso voted this Thursday the 31st against the so-called temporary framework for indigenous lands in the Supreme Federal Court (STF) of Brazil. With the vote, the score is four to two against the legal thesis created by the ruralistas, which prohibits indigenous people from claiming lands not occupied by them on the date of promulgation of the Constitution, in 1988.
They also voted against Cristiano Zanin, Edson Fachin and Alexandre de Moraes, and in favor of André Mendonça and Nunes Marques. The votes of five judges are still missing. If six magistrates reject the deadline, the STF will have formed a majority against the ruralist thesis, guaranteeing victory to the Brazilian indigenous peoples, who are against restricting the demarcations.
:: Zanin votes against the thesis of the temporary framework of indigenous lands; the score in the STF is 3 to 2 against the ruralistas (available in Portuguese) ::
In his vote, Barroso affirmed that the Constitution does not provide a temporary criterion for the demarcation of indigenous lands. The Magna Carta, according to him, “assures indigenous people the right to land in the light of their culture, not based on the customs of the dominant society.”
For Barroso, other criteria must be applied to prove the traditional link of the indigenous people with the territory, such as the permanence of these populations as rural workers, the use of the area for religious rituals and the resistance of the people against occupation by the landowners.
Zanin voted against the temporary framework
Zanin said the Constitution recognizes that indigenous land rights are “older” than “any other.” “Faced with this, the thesis of the temporary framework of indigenous lands cannot be validated, which would mean ignoring these populations,” he said.
:: Mendonça repeats arguments of the ruralistas and votes in favor of the temporary framework in the STF (available in Portuguese) ::
As some indigenous leaders pointed out, the magistrate appointed by President Lula da Silva recognized that the peoples were forced to “involuntarily displace and (were) the object of conflicts and threats”, and that in this sense the implementation of the temporary framework would generate a situation of injustice.
“Given this scenario, it is impossible to impose any type of temporary framework to the detriment of indigenous peoples, who have the protection of exclusive possession from the empire in a constitutional series.”
The time frame
The concept of temporary framework consists of a legal proposition that establishes that indigenous peoples have the right to claim only the occupation of lands that were in their possession or in dispute until October 5, 1988, the date on which the current Brazilian Constitution was promulgated. .
The origin of this thesis dates back to 2009, when an opinion issued by the General Counsel of the Union was applied to the demarcation of the Raposa-Serra do Sol reserve, in Roraima, adopting this specific criterion.
In 2003, the Ibirama-Laklãnõ Indigenous Land was established, however, a part of it, which was occupied by the Xokleng indigenous people and was the subject of dispute with the farmers, became the subject of a process before the Supreme Federal Court ( STF) at the request of the government of Santa Catarina. The central question is whether this area, of approximately 80 thousand m², was occupied or not on October 5, 1988.
The Xokleng argue that the territory was unoccupied at the time due to an eviction they had suffered. The decision on this case in Santa Catarina will have broader implications, establishing the STF’s interpretation of the validity of the time frame at the national level. This will affect more than 80 similar cases and more than 300 indigenous land demarcation processes awaiting resolution.
Justice Nunes Marques, of the STF, defended the concept of a temporary framework in 2021, arguing that its absence could lead to an “unlimited expansion” of areas already integrated into the country’s real estate market. He also stated that national sovereignty and independence would be at risk without this limitation. According to Marques, setting the time frame is essential to avoid conflicts and guarantee legal certainty.
However, Judge Edson Fachin, rapporteur of the case, does not agree with the framework thesis. Fachin maintains that the right of indigenous peoples to land is original and precedes the very formation of the State. Fachin points out that the constitutional protection of these rights does not depend on a specific time frame and that land demarcation is a declarative act, not a creative one.
The divergent views on the time frame have significant implications, not only for the specific case of Santa Catarina, but also for the general approach to the territorial rights of indigenous peoples in Brazil.
The legal analysis of the concept of time frame has provoked intense discussions, leading experts to debate its possible repercussions if it is validated. The complexity that the demarcation of new indigenous lands will face with the adoption of the framework is emphasized, since such an approach omits the entire history of violence and marginalization that indigenous peoples have experienced throughout the history of Brazil.
This is related to the fact that, historically, indigenous communities in Brazil have been subject to various forms of violence and have been gradually dispossessed of their lands, often without effective protection or defense. Therefore, defining a temporal reference point to determine the validity of territorial claims does not take into account the injustices and oppression experienced.
Furthermore, there are arguments that the adoption of the temporary framework will not only complicate the demarcation processes, but will also encourage the emergence of new conflicts, even in previously pacified areas. This implies that, from this perspective, indigenous lands could be invaded and legal actions could be initiated with the purpose of evicting indigenous groups from their traditional lands.
Another key aspect is the relevance of the demarcation of indigenous lands for environmental preservation, since the indiscriminate advance of agricultural activities has contributed to deforestation, imbalances in precipitation patterns, increased temperatures and other environmental problems. It is important to note that many consider the temporal framework approach to be incompatible with the Federal Constitution, since the Magna Carta guarantees the right of indigenous peoples to the demarcation of their lands.
On the side of the rural sectors, defenders argue that the framework is essential to guarantee greater legal clarity in relation to territorial demarcations and, above all, to prevent farmers from losing their properties.
Edited by: Nadini Lopes and Rodrigo Durão Coelho