The plenary session of the Federal Supreme Court (STF) decided that farmers expropriated in indigenous land demarcation processes have the right to receive prior compensation for the total value of the land, and not just for the buildings erected, as provided for in the Constitution.
Minister Dias Toffoli waived the proposal to give Congress a one-year deadline to regulate industrial mining on indigenous lands. Therefore, the current understanding remains that the activity is only permitted with the consent of the National Congress and the affected indigenous communities.
The consensual understanding between the 11 ministers was signed this Wednesday (27), in the continuation of the analysis of the time frame for indigenous lands. In a historic judgment on September 21, the Court rejected the ruralist legal thesis by 9 votes to 2, but left until this week the definition of points that could take away indigenous rights in favor of agribusiness.
In another thesis established by the Supreme Court, ministers defined that expansion of indigenous lands can only be requested within five years after the completion of the original demarcation. Until then, there was no deadline, as the Constitution textually recognizes the rights of indigenous people over their lands as “unprescriptible”.
:: In historic judgment, STF overturns time frame for indigenous lands by 9 votes against 2 ::
The outcome of the time frame trial also opened space for indigenous communities benefiting from the demarcation to be relocated.
Resettlement, according to the thesis established this Wednesday (27), should only occur in the case of “absolute impossibility” of keeping the people in the territory targeted by the demarcation request, respecting the indigenous rights provided for in convention 169 of the International Labor Organization ( ILO), ratified by Brazil.
“STF buries Marco Temporal, defines criteria harmful to indigenous peoples for compensation for demarcation and withdraws debate on mining in Indigenous Lands”, assessed the Articulation of Indigenous Peoples of Brazil (Apib) in a post on social media.
What will compensation be like?
The proposal to compensate farmers for bare land – that is, for the entire property, not just for the buildings erected – came from Alexandre de Moraes, but was defended for at least 15 years by landowners from Mato Grosso do Sul. The indigenous movement states that The new calculation basis may make demarcations unfeasible, as they significantly increase the value of compensation, in a scenario of low state revenue.
:: Understand the compensation for farmers under discussion in the time frame trial ::
“We defend that these compensations follow the rite determined by the Constitution, which are compensations 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”, said Maurício Terena last time , legal coordinator of the Articulation of Indigenous Peoples of Brazil (Apib).
The Supreme Court understood that owners are not entitled to financial compensation if the indigenous land has already been officially recognized in a demarcation process. As Apib argued, the STF determined that compensation will occur separately from the demarcation process.
Supreme Court contradicted Constitution by validating property titles over indigenous lands
Indigenous and non-indigenous jurists interviewed by Brasil de Fato have already stated that the Supreme Court contradicts the Constitution by considering private property titles issued on indigenous lands subject to compensation.
This is because the Constitution considers, textually, that these titles are null and therefore should not be recognized by the State. Therefore, the type of compensation in force until then was calculated on improvements in good faith, that is, constructions erected in the territory without the intention of committing illegalities.
:: Senator with a farm overlapping indigenous land defends the time frame in the CCJ ::
“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”, explained last week the legal advisor of the Indigenous Missionary Council (Cimi), Rafael Modesto.
“Tangles” of the time frame were an impasse between ministers
Today’s judgment (27) puts an end to an impasse between ministers on topics complementary to the time frame for indigenous lands.
Luís Roberto Barroso and rapporteur Edson Fachin argued that the object of the action was only the time frame, but the majority of ministers understood that it was also necessary to decide on compensation to farmers. “Barroso stated that if demarcations are conditional on compensation, “no indigenous land will ever be demarcated”.
“It is not a good idea to turn this case into the mother of all battles involving the demarcation of indigenous lands. The specific case does not involve most of the issues that are being debated”, maintained Barroso, who was the defeated vote on the issue.
Editing: Thalita Pires
