Although it tends to have a positive outcome for the original peoples, the analysis of the time frame in the Federal Supreme Court (STF) created a new concern for the indigenous movement. In June, Alexandre de Moraes voted against the ruralist legal thesis, but made a proposal that changed the course of the trial.
Moraes proposed that owners of farms overlapping indigenous lands have the right to compensation at the time of expropriation. In the name of a supposed harmony between the rights of original peoples and farmers, the minister paved the way to establish a precedent that was as dangerous or more dangerous than the time frame itself.
Read more: STF resumes analysis of the time frame for indigenous lands; follow live
By proposing to increase compensation for farmers, Moraes “reheated” an agenda defended by ruralists for at least 15 years. On behalf of the landowners of Mato Grosso do Sul, Minister Simone Tebet is a former coordinator of the proposal, which now has a chance of being implemented via the Judiciary.
The time frame rapporteur himself, Edson Fachin, considered that financial compensation should not be discussed in the time frame action. The Federal Attorney General’s Office has already warned that the change would generate “incalculable expense” and could halt demarcations. And experts say the proposal is clearly unconstitutional.
“The time frame tends to be declared unconstitutional, but it seems to me that it is relatively certain that the issue of compensation will also be decided by the Supreme Court. The National Congress was very happy with this idea (from Moraes), because it serves the interests of agribusiness” , assessed the legal coordinator of the Articulation of Indigenous Peoples of Brazil (Apib), Maurício Terena.
“The compensation proposed by Moraes breaks with the text of the Constitution. His vote creates a new phase for the demarcation process, which is that of prior compensation, that is, before handing over possession to the indigenous people. The Union would have to pay compensation before to finalize the demarcation, which could make the process even longer”, explains the legal advisor of the Indigenous Missionary Council (Cimi), Rafael Modesto.
Constitution says property titles are void
In his vote, Moraes recalled “good faith” owners who received property titles from municipal, state and federal governments. Therefore, the minister defended that the demarcation processes for indigenous lands can only be concluded when all affected farmers are compensated.
The Union already compensates non-indigenous people who have occupied the areas in good faith. The calculation is made exclusively based on the value of the so-called improvements, that is, the buildings erected. This occurs because the Constitution considers all private titles over areas recognized as indigenous to be null and void. Small producers have the right to be resettled by Incra in the event of expropriation for demarcation.
:: Validation of the time frame could worsen violence against the Guarani Kaiowá, indigenous people fear; STF resumes trial this Wednesday ::
But for Moraes the situation is unfair. He wants farmers to also receive the price of bare land, encompassing the entire rural property, including “empty” areas where there are no buildings, crops or livestock cultivation.
The main organization of indigenous peoples in the country, the Articulation of Indigenous Peoples of Brazil (Apib), recognizes that there are cases of occupation in good faith, but assessed Moraes’ vote as “disastrous” and unconstitutional.
“We defend that these compensations follow the rite determined by the Constitution, which are compensation for improvements in good faith. And that these compensations be made unconnected to any demarcation process and that this does not make the demarcations unfeasible”, summarized Maurício Terena, from Apib.
For Apib, the minister disregarded the widespread scenario of land grabbing and criminal occupation of indigenous territories by agribusiness, including the practice of pistol-whipping. Apib’s legal sector fears that the substantial compensation could serve as a stimulus to the invasion of lands in the regularization phase, rewarding invaders and increasing conflicts in the countryside.
“Violence against indigenous peoples is caused by a series of factors, including deforestation, illegal mining, land grabbing and the expansion of the agricultural frontier, but the main reason is the slowness in demarcating land,” wrote Apib .
“Incalculable expense”, says AGU
The Union warns that Moraes’ vote could halt the demarcations. In a statement sent to the Supreme Court, the Attorney General’s Office (AGU) found that the change could make the process longer, in addition to imposing an “incalculable expense on the federal coffers, in an environment of severe budget restrictions.”
Even with the creation of the Ministry of Indigenous Peoples by the Lula (PT) government, Apib remembers that resources for the sector have been reduced every year. The budget for demarcating indigenous lands fell by 80% in the last ten years: from R$500 million in 2013 to R$100 million in 2023.
“Establishing that compensation to the occupant will be prior to demarcation creates yet another condition (which is not provided for in the legislation) for the exercise of a state duty of demarcation, which has already been in arrears (delay) since 1993, as well as generating a burden financial contribution to the State not yet foreseen in the public budget”, wrote the AGU to the STF.
Under current compensation rules, the Indigenous Missionary Council (Cimi) estimates the amount needed to complete all indigenous land regularization processes at R$10 billion. If Moraes’ thesis is followed by the STF plenary, the Apib legal team calculates that the value will be three times higher.
“Prior compensation is quite unfeasible. I think an adjustment would be to have a temporality for the occupation of the land. That the compensation be made based on criteria established based on the period of occupation (of the farmers who are within the lands requested by the indigenous people)” , declared the Minister of Indigenous Peoples, Sonia Guajajara.
From Moraes to Tebet: “the moment is ripe for conciliation”
Granting compensation to farmers for bare land is not an original proposal by Alexandre de Moraes. For decades, landowners and their political representatives have tried to promote more robust financial compensation as a solution to violent disputes between indigenous and non-indigenous people.
The proposal gained momentum in 2014, at the height of the bloody conflict between rural militias and the Guarani Kaiowá, which has already left hundreds of indigenous people dead. At the time, one of the main articulators of the thesis was the vice-governor of Mato Grosso do Sul, Simone Tebet, current minister of planning.
Moraes and Tebet talked about the topic in 2017, during a hearing in the Senate that all nominees to the Supreme Court undergo. After Temer’s then minister stated that the right to property should be seen in the light of social interest, Tebet recalled a Proposed Amendment to the Constitution (PEC) of his authorship, which would oblige the Union to compensate farmers based on the value of bare land. , before allocating land to indigenous people.
Moraes responded that the moment was “ripe” for conciliation and said he was in favor of preserving property rights. As he did during the time frame trial, he recalled that some property titles were also granted by D. Pedro II to combatants in the Paraguayan War.
The PEC prepared by Simone Tebet was approved in the Senate, but has been stuck in the Chamber for four years. After assuming the planning ministry in the Lula (PT) government, she once again defended compensation for bare land during a press conference in Mato Grosso do Sul, a month before the proposal appeared in Alexandre de Moraes’ vote.
“If this was done (compensation for bare land), I think we solved a large part of the problem. Nobody is against the demarcation of indigenous areas, but we also cannot remove the owner who has the title, who bought, who plants and produces without the due right to compensation”, said Tebet in May this year.
“Minister Alexandre de Moraes tried to reconcile the interests that are in dispute: that of the indigenous peoples and that of the agribusiness bench, which sees in compensation a possibility for them not to leave empty-handed”, summarized Maurício Terena, from Apib.
Indigenous people hope that ministers will follow Zanin’s vote
In the STF, the voting score is 4 to 2 against the time frame. The votes in favor come from the two nominated by former president Jair Bolsonaro (PL): André Mendonça and Nunes Marques. Edson Fachin, Alexandre de Moraes, Cristiano Zanin and Luís Roberto Barroso were against. The votes of the only two women in the Supreme Court, Cármen Lúcia and Rosa Weber, should guarantee a majority against the time frame.
Compensation to farmers divides ministers. For Barroso and Fachin, the time frame process is not the appropriate scope to discuss the topic. Recently nominated to the STF by Lula, Zanin partially accepted Moraes’ thesis. He defended compensation for bare land to occupants in good faith, but made a proposal that could avoid halting demarcations.
In the vote, Zanin proposed that the calculation of compensation to owners be made in judicial or extrajudicial procedures, “in which the good faith of the individual and the civil liability of the public entity will be verified, and it is not possible to measure the compensation in the same demarcation procedure “.
“As incredible as it may seem, Minister Zanin’s vote managed to structure Moraes’ vote in a more qualified way, in a way that does not make demarcation unfeasible, that places the interests of indigenous peoples within this compensation and not just the interests of ruralists in being compensated “, pondered Maurício Terena, legal coordinator at Apib.
Editing: Thalita Pires