Minister Alexandre de Moraes spoke out against the original thesis of the “time frame”, this Wednesday (7), in the resumption of the judgment of the Federal Supreme Court (STF) that decides the future of the demarcations of Indigenous Lands (TIs). He followed almost entirely the vote of the rapporteur, Edson Fachin.
“The naked option for the temporal framework is an option for legal security, but this does not guarantee social peace”, defended Moraes. “[If we were to apply it], we would be totally ignoring the fundamental rights of indigenous communities proclaimed by the Constitution,” he said.
The minister differed from Fachin, however, regarding how cases of owners of areas formally recognized as indigenous should be handled. For Moraes, if it is proven that the community was on the land on October 5, 1988 (date of enactment of the Constitution), the owner should be compensated only for the improvements, as provided for in the Magna Carta today. If indigenous possession is not attested on that date, but on another date, the compensation must also cover bare land.
The minister also proposed that an original population could opt for another territory, other than the one traditionally occupied, provided that with their “express agreement”. The rule does not exist in the current legislation. In addition, according to the Constitution, TIs are "unavailable" (check the 10 points of the "thesis" in the box at the end of the report).
After Moraes' demonstration, Minister André Mendonça asked for "views", that is, more time to analyze the process, suspending it. The trial should be resumed from August, after the recess of the Judiciary. Mendonça signaled that he intends to return the case to the plenary within the statutory period of 90 days, "in a common period and that we establish". He even defended the “timeframe” in the same action, acting as attorney general of the Union of the Bolsonaro government.
The score now stands at two votes against, by Fachin and Moraes, and one vote in favor of the thesis, by Minister Nunes Marques. There are still votes to vote, in that order: Mendonça, Luís Roberto Barroso, Rosa Weber, Luiz Fux, Dias Toffoli, Cármen Lúcia and Gilmar Mendes.
The trial began in August 2021 and had been suspended since September of the same year, when Moraes asked for “views”. The analysis of the case has already been included and removed from the STF agenda five times.
The “timeframe” is a ruralist thesis that seeks to restrict the rights of indigenous peoples. According to her, only the lands occupied by them on October 5, 1988 could be officially recognized. Alternatively, they would have to prove the existence of a legal dispute or conflict over the area on the same date, the so-called “reluctant dispossession”.
The interpretation legalizes and legitimizes violence and expulsions suffered by these populations. It also ignores that they were protected by the State and did not have the autonomy to sue the Justice until the promulgation of the Constitution.
The indigenous movement is following the matter with great anticipation and, since Monday (5), has mobilized around two thousand people from various regions and ethnic groups in a camp set up next to the Esplanada dos Ministérios, in Brasília. Demonstrations against the ruralist interpretation were also held throughout the week in other locations in Brazil and abroad.
In his vote, Moraes considered the need to respect the rights of rural producers who acquired in “good faith” property titles issued by the State.
“In the same way that indigenous communities have the right to be indignant at not having their lands demarcated, those farmers who are on the land in good faith have the right to receive fair compensation. The big culprit is the public power", he said. "It seems to me that there is no need for either the eight or the 80, I would say, in the reflections of the decision of the Federal Supreme Court. If we continue with this, we will never be able to guarantee peace in the countryside " , he said.
He reminded him of the massacres suffered by the Xokleng people until the 1950s by “bugreiros”, people hired by the government of Santa Catarina to expel and murder the indigenous people. Moraes mentioned the colonization process and the submission imposed on indigenous peoples: "Much more than a clash of cultures, there was a cruel massacre in relation to the original peoples and a submission imposed by the State, from the beginning".
The specific case now analyzed by the court deals with the appeal of the National Foundation of Indigenous Peoples (Funai) to prevent the reintegration of possession moved, in 2009, by the government of Santa Catarina over a stretch of the TI Ibirama-La Klãnõ (SC), inhabited by the Xokleng, among other populations. The action reached the court in 2016 and was elevated to the category of “general repercussion” in 2019. This means that the decision on it will serve as a guideline for federal management and the Judiciary in relation to all demarcations in the country.
Barroso highlights concordances
Even after the interruption of the trial, Minister Luís Roberto Barroso highlighted his positions in common with those of Fachin and Moraes.
“I consider very important the aspects of agreement expressed by Minister Alexandre de Moraes in relation to Minister Edson Fachin's vote, demystifying, in my view, with success, both, the idea that there would be a 'timeframe' marked by the physical presence in 5 of October 1988 and recognizing that the traditionality and persistence of the claim in relation to the area, even if dispossessed, also constitutes the basis of rights for the indigenous communities”, he stressed.
Barroso also defended the redefinition of the concept of “reluctant dispossession”, an exception to the “time frame” rule defended in a previous judgment of the Second Panel of the STF.
“Evidently, traditional communities cannot and should not be required to act in the same way as the dominant culture, filing lawsuits, making legal notices or taking measures that are not compatible with traditional cultures”, he argued. “Therefore, even if one wants to preserve this idea of 'reluctant dispossession', it has to be reconceptualized as a permanent manifestation of disapproval of that unjust dispossession”, he concluded.
Also present at the STF were the Minister of Indigenous Peoples, Sonia Guajajara, federal deputy Célia Xakriabá (PSOL-MG), chief Raoni Metuktire and the president of the National Foundation of Indigenous Peoples (Funai), Joenia Wapichana.
Xakriabá considered the result of the session positive and praised Moraes' vote. “We also anticipated that he would file a request for visas, but we have now managed to take a breather, because we left with a favorable vote”, he commented.
The deputy assessed that the minister's manifestation could positively influence the processing of Bill (PL) 490/2007, a ruralist proposal that provides for the application of the “time frame”, was recently approved by the Chamber and is now in the Senate.
"For us, who face PL 490, which tries to accelerate and anticipate the thesis of the 'time frame', it is an important victory", he celebrated. ] in the Senate, we have an advantage,” he said.
“But we need to remain vigilant, because the 'deforestation bench' is still going strong. Certainly, Minister Alexandre de Moraes, who has been voting very consistently in favor of democracy, voting along with indigenous peoples is an important signal to say that there will be no democracy without the demarcation of indigenous territories”, he emphasized.
Maurício Terena, the legal adviser of the Articulação dos Povos Indígenas do Brasil (Apib), classified Moraes' vote as a “middle ground” between the two previous votes, by Fachin and Nunes Marques.
“This 'middle ground' thesis has some problems, precisely because it provides, for example, for the institution of prior compensation, that is, this can cause internal problems between us, this can cause harassment by people wanting to buy indigenous lands and occupy the territories. For the rights of indigenous peoples there is no negotiation, there is no 'middle ground'”, he criticized.
Thesis proposed by Alexandre de Moraes
(Transcript of the TV Justiça broadcast; subject to revision after official publication of vote)
1) Demarcation consists of a procedure for declaring the original right to possess lands traditionally occupied by indigenous communities.
2) Traditional indigenous ownership is distinct from civil ownership, consisting of the occupation of lands permanently inhabited by the Indians, those used for their productive activities, those essential for the preservation of the environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions, pursuant to paragraph 1 of article 231 of the constitutional text.
3) The constitutional protection of the [peoples'] original rights over the lands they traditionally occupy does not depend on the existence of a time frame, on October 5, 1988, or the configuration of the stubborn dispossession, such as a physical conflict or a persistent legal dispute at the date of the promulgation of the Constitution.
4) In the absence of the time frame, on October 5, 1988, or of stubborn dispossession or physical conflict or persistent judicial controversy at the date of promulgation of the Constitution, the legal acts and transactions are valid and effective, producing all their effects. perfect and res judicata, which has possession or dominion as its object; or the occupation in good faith of lands traditionally occupied by indigenous peoples; or the exploitation of the soil, rivers and lakes existing therein; assisting with the particular right to prior compensation from the Union, in cash or agrarian debt securities, if it is in the interest of the beneficiary, both in relation to the bare land and in relation to the improvements carried out.
5) In the hypothesis foreseen in the previous item, being contrary to the public interest the deconstitution of the consolidated situation, and seeking social peace, the Union may carry out compensation to the indigenous communities, granting them lands equivalent to those traditionally occupied, provided there is [their ] expresses agreement.
6) The anthropological report carried out pursuant to Decree 1.775/1996 is a fundamental element for demonstrating the traditional occupation of the specific indigenous community, according to its uses, customs and traditions.
7) The resizing of the indigenous land is not prohibited in case of non-compliance with the elements contained in article 231 of the Constitution of the Republic, through a demarcation procedure, under the terms of the rules in force.
8) The lands traditionally occupied by indigenous people are permanently owned by the community, with the indigenous people having exclusive use of the riches of the soil and of the rivers existing therein.
9) Lands traditionally occupied by indigenous peoples, as public lands, are inalienable, unavailable and the rights over them are imprescriptible.
10) There is compatibility between the traditional occupation of indigenous lands and the constitutional protection of the environment.