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Text updated at 9:10 on 3/5/2024.

The Minister of the Federal Supreme Court (STF) Gilmar Mendes suspended, yesterday (22), the processes related to Law 14.701/2023, which provides for the “time frame” for the demarcation of Indigenous Lands (TIs), among other restrictions on the rights of people originating. 

The decision applies to lower courts, that is, it has no effect on actions on the subject that are being processed in the court itself, and will now be analyzed by the other ministers, in the court's plenary. In practice, the rule remains valid. 

Mendes also proposed a “conciliation and mediation process” with the aim of resolving the “social conflict underlying the issue” and avoiding “conflicting judicial decisions capable of causing serious harm to the parties involved (indigenous communities, federative entities or individuals)”, according to note sent by the minister's office. 

“I also order the subpoena of all authors of the actions of concentrated control of constitutionality now considered, as well as the Heads of the Executive and Legislative Powers, in addition to the Attorney General's Office of the Union and the Attorney General's Office of the Republic so that, within the deadline of 30 (thirty) days, present proposals in the context of a new approach to the constitutional dispute discussed in the actions now considered”, says the decision. 

Mendes requested the support of Consensual Conflict Resolution Center (Nusol), created by the Supreme Court in 2020 and which aims to support ministers' offices and promote cooperation with other bodies of the Judiciary. Also according to the decision, the body must hold hearings on the matter to assist the work of “mediators/conciliators” who will be appointed “in due course”.

During the #ATL2024, the legal coordinator of @ApibOficial, Maurício Terena (@terenamauricio), commented on Gilmar Mendes' decision to suspend the processes related to the Marco Temporal. Find out more on the thread. 🧶 pic.twitter.com/ILngJN4CnV

— socioenvironmental (@socioambiental) April 23, 2024

Rights negotiation

The decision, which did not even address the merits of the issue, displeased the indigenous movement, sectors of the government and the Federal Public Ministry (MPF). The fear is that, amid the clashes between the Three Powers, the “conciliation” process will open a gap for negotiation with sectors of Congress, mainly ruralists and the opposition, resulting in new restrictions on indigenous rights. 

“Gilmar Mendes took a long time to decide and decided poorly”, criticized the legal coordinator of the Articulation of Indigenous Peoples of Brazil (Apib), Maurício Terena. “The rights of indigenous peoples, as [STF] Minister Edson Fachin said, are fundamental rights, therefore, they cannot be negotiated,” he warned. Terena informed that Apib is still analyzing the decision and should soon comment on it.

He assessed that Mendes “discredited” the panel of ministers, since the court already has a decision on the matter, and that it should have gone into the merits of the matter considering this (read more at the end of the report). “We are extremely concerned about the content of the decision, because the law remains in force. This is a danger, because he suspended the processes, but maintained the law”, he added. 

Gilmar Mendes is the Supreme Court minister with the most intense political activity and, since the beginning of the Lula government, he has approached the Palácio do Planalto. On the other hand, he has always been close to the ruralists and maintains communication channels with the Bolsonarists. 

In yesterday's decision, he stated that Law 14.701/2023 “contains provisions that, at least in an initial examination, can be interpreted in such a way as to contradict part of the theses set out in the aforementioned judgment [of the time frame]”. On the other hand, he also opened up space for political conversations on the issue by pointing out that the legislation “appears not to have devoted the same attention” to other aspects of Article 231 of the Constitution, indigenous rights.

In a video on social media, the president of the Parliamentary Agricultural Front (FPA), Pedro Lupion (PP-PR), praised the decision. "[She] kept the constitutionality of this law clear. We were victorious in the minister's vote", he celebrated.

Mendes' determination was made public on the first day of the 20th edition of the Free Land Camp (ATL), the largest indigenous mobilization in the country, held in Brasília, this week, by Apib. It is estimated that more than eight thousand indigenous people, from 200 different peoples, will participate in the event. At the center of the discussions is precisely the defense of the right to land, expressed in the demand for demarcations and the rejection of the “time frame”. 

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Concern in the government

Government sectors were also concerned. “I was scared by yesterday's decisions, but we have many arguments against them”, commented Joenia Wapichana, president of the National Foundation of Indigenous Peoples (Funai), at one of the ATL tables. “We will not bow. We will work within our competence, for the rights of indigenous peoples,” he continued. She informed that the agency is closely monitoring the case and that its attorney should also comment soon. 

The public prosecutor at the Federal Regional Court of the 1st Region, Felício Pontes, was also categorical in criticizing Mendes' proposal. “We have to say no to conciliation”, he also said in ATL. “How can we reconcile the right to territory, which is a fundamental right of indigenous peoples?” he asked.

On the 11th, the Attorney General's Office defended that the STF suspend several provisions of the law, such as those that allow the exploitation of ILs by non-indigenous people. 

“The STF places itself in the role of a rights negotiator that should not be that of a constitutional court. If conciliation were possible, it should take place with respect for the decision of the STF itself, which defined the unconstitutionality of the time frame”, criticized the lawyer for the ISA Juliana de Paula Batista.

“There is room for negotiation in which indigenous organizations will not necessarily be able to participate on equal terms. It is expected that the Court's plenary session will weigh the indigenous rights that are at stake, and the inequality regarding the economic and political power of other sectors of society”, he adds. 

time frame

Gilmar Mendes made the decision as rapporteur of actions dealing with Law 14.701 - ADC 87 and ADIs 7582, 7583 and 7586 - in addition to ADO 86, which gives Congress a deadline to regulate paragraph 6 of Article 231 of the Constitution, on the ownership and exploitation of ITs. 

The actions were presented, since the end of last year, by Apib and left-wing parties (PT, PCdoB, PV, PSOL, Rede and PDT), which question the constitutionality of the rule, in addition to the PP, PL and Republicans, who defend it . O ISA é amicus curiae (“friend of the court”) in the three Direct Actions of Unconstitutionality (ADIs), that is, it can present information and arguments in the processes. 

Law 14.701 was enacted after the Congress overturned, in December, almost all of President Luís Inácio Lula da Silva's vetoes on the original text. The approval of the standard challenged the STF decision in September, which declared the “time frame” unconstitutional, by 9 votes against 2. In the same decision, the court ministers established additional theories on demarcation, such as compensation for bare land for non-indigenous occupants.

The “time frame” is a ruralist legal interpretation, according to which only indigenous communities that were in their possession on October 5, 1988, the date of promulgation of the Constitution, would have the right to their lands. The thesis ignores the expulsions and violence committed against these populations, especially in recent decades. In practice, it can make most demarcations unfeasible, due to administrative or judicial questions.

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