The plenary session of the Federal Supreme Court (STF) this Wednesday (20) ended with 5 votes against and 2 in favor of the thesis of the time frame for demarcation of indigenous lands. The last vote given was that of Minister Dias Toffoli, who took a stand against the legal thesis defended by agribusiness and large mining companies.
“Expressions such as ‘too much land for too few Indians’ are the clearest reference, in my opinion, to this understanding, in clear conflict with the constitutional intention, which is to ensure the right to indigenous lands based on the people’s own conception of their lands “, said Dias Toffoli.
To be defeated in the Supreme Court, the time frame needs just one more vote against, which will guarantee a majority of the Court – made up of 11 ministers – to overturn the ruralist thesis. The tendency is for at least two more ministers to take a stand against the time frame: Cármen Lúcia and Rosa Weber.
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The time frame is a legal thesis created by representatives of large landowners. It prohibits indigenous people from claiming lands not occupied by them on the exact date of promulgation of the current Federal Constitution, October 5, 1988.
So far, the following have voted against the time frame: Edson Fachin (rapporteur), Alexandre de Moraes, Luís Roberto Barroso, Cristiano Zanin and Dias Toffoli. The votes against the interests of indigenous people come from the only ministers appointed by Bolsonaro: Nunes Marques and André Mendonça.
Toffoli defends mining on indigenous lands with Congressional approval
Although optimistic about the likely positive outcome, indigenous organizations – which are against the time frame – foresee traps in the ministers’ votes that are as dangerous or more dangerous than the legal thesis itself. These are “hangings” that have no relation to the judged action, but that express the interest of large mining companies and agribusiness.
One of them is Alexandre de Moraes’ proposal to compensate farmers for the value of the land before allocating territories to indigenous people. The Federal Attorney General’s Office (AGU) stated that the change would generate “incalculable expenses” for public coffers.
The indigenous movement says that making demarcation conditional on the payment of compensation could lead to even more delays in the demarcation processes, which in many cases last decades, in addition to encouraging invasions in order to reward land grabbers.
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Another concern is with some theses of Dias Toffoli’s vote. The minister wants to make the right to exclusive enjoyment of lands guaranteed to indigenous people by the Constitution more flexible. The measure would be necessary, according to Toffoli, to allow mining activities and the construction of hydroelectric plants.
Toffoli also defended that mining projects be regulated by law by the National Congress and that indigenous people be consulted and have the right to a part of the economic gains, but he did not condition economic activities on prior authorization from original peoples.
The legal coordinator of the Articulation of Indigenous Peoples of Brazil, Mauricio Terena, called Toffoli’s position in relation to the flexibility of exclusive usufruct “disastrous”.
:: Understand the compensation for farmers under discussion in the time frame trial ::
“I have the impression that upon realizing that the time frame will be declared unconstitutional, they want to serve their financial interests at all costs,” said Mauricio Terena on a social network.
Understand the time frame
The STF will define whether it is constitutional or not to consider October 5, 1988, the date of promulgation of the Constitution, as the time frame for the demarcation of indigenous lands. The STF’s understanding will have to be followed by all courts at all levels in the country.
If they are unable to prove that they occupied the area on the exact date, hundreds of indigenous groups that were violently expelled from territories – as occurred regularly during the 1964 military dictatorship, for example – will lose their right to land if the thesis is validated by the Supreme Court.
:: Repeating arguments from ruralists, Mendonça votes in favor of the time frame in the STF ::
The legal sector of the Indigenous Missionary Council (Cimi) estimates that the approval would affect 90% of the more than 200 indigenous lands that are in the process of demarcation. Therefore, analysis by the STF is called the “judgment of the century” and is considered a priority agenda by all indigenous and indigenous organizations.
Editing: Rodrigo Chagas
