Minister Luiz Fux voted this Thursday (21) against the time frame for indigenous lands. With the vote, the plenary session of the Federal Supreme Court (STF) reached a majority of 6 to 2 against the legal thesis created by ruralists that radically restricts demarcations. Subsequently, Cármen Lúcia also voted against the time frame.
Fux read the section of the Constitution that guarantees original rights over lands traditionally occupied by indigenous peoples. “Even though they have not been demarcated, these occupied lands must have the protection of the State”, declared the minister.
Cármen Lúcia recalled that the Constitution does not allow for the reversal of rights. “The rights to traditionally occupied lands would have to be recognized at any time in which this possession (of indigenous people over their lands) is objectively proven,” he declared.
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With the result, one of the most important chapters of the indigenous movement in Brazil comes to an end. Rejection of the time frame has been at the center of mobilizations and protests in recent years. Lawyers and jurists – indigenous and non-indigenous – claim that the thesis could make 90% of the lands in the demarcation process unfeasible.
Fux and Cármen Lúcia did not address two points being debated in the STF that concern indigenous people: compensation to farmers for the value of bare land and the opening of indigenous territories to mining with the approval of Congress. Both considered that the analysis of the time frame is not the appropriate scope to deliberate on the topics.
In addition to Fux and Cármen Lúcia, the following have so far 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.
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.
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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.
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.
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Editing: Nicolau Soares