The judge leading the mediation ignored requests from indigenous people and left the session before the end
Marked by a series of violations against indigenous peoples, the first public conciliation hearing on Law 05/08, approved in December of last year, took place this Monday (14.701/2023), at the Federal Supreme Court (STF). Representatives of the National Congress, political parties that question the Law in the STF, the government, indigenous peoples, states and municipalities participated. Minister Luís Roberto Barroso, and the rapporteur, Minister Gilmar Mendes, were at the opening of the session, which was then led by assistant judges from Mendes' office, Diego Viegas Vera and Lucas Faber.
The conciliation proposal comes after the proposal of five actions that question the constitutionality of the “law of genocide of original peoples”, as defined by the indigenous movement. In April, Gilmar issued a decision establishing the conciliation working group. Furthermore, suspended all lower court processes related to Law 14.701/2023 – during the Acampamento Terra Livre (ATL), the largest indigenous mobilization in the country.
Approved in September 2023, with 43 votes in favor and 21 against, the law determines that only indigenous people who prove their presence in the location on the date of the promulgation of the Federal Constitution, in 1988, have the right to traditional territory. demarcation processes; allows works to be carried out on Indigenous Lands without free, prior and informed consultation and allows the opening of indigenous lands for leasing. The matter had already been judged unconstitutional by the STF in September 2023 and the law received several vetoes from the president of the republic.
The deadline for completing the conciliation sessions is scheduled for December 18, 2024, but may be extended. At the opening, Minister Barroso said that it is important “to wait a few weeks to see if there is progress or a real prospect of reaching an agreement. If this is not possible, we will simply resume voting.”
Violations of indigenous rights
Some indigenous representatives, such as the legal coordinator of the Articulation of Indigenous Peoples of Brazil (Apib), Maurício Terena, before the hearing even began, were prevented by STF security from entering the venue. In a video published on social media, Terena asks Barroso to open the Court's door to indigenous peoples.
“The presidency has just given the order for release and we continue to be blocked. This is the conciliatory scenario of the Brazilian Supreme Court. We are being forced to be here today and this is the situation.”
Watch the video:
Look, for us to start a conciliation table with material equality, including the literacy of the main drivers, it might take another 500 years.
— Juliana de Paula Batista 🌳 (@jusuindara) August 5, 2024
It's almost over here. But the image that reflects today is this: indigenous people and their lawyers being barred from the STF. pic.twitter.com/yid0RPIetn
At the opening of the session, Minister Barroso made a public apology to the group. “I wanted to apologize to the people who were unduly blocked at the door, representatives of indigenous communities. It was a serious security error, with people already duly reprimanded and I apologize because that is what we can do when there is an error.”
It was just the beginning of a series of other violations that indigenous representatives experienced that day.
Maurício Terena requested, at the beginning of the session, the suspension of Law 14.701/2023. “We understand that the non-suspension of the law has led to a situation of serious violence against the human rights of indigenous peoples. I cite here the case of Mato Grosso do Sul*, which is a situation of extreme confrontation, given the validity of the law.”
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For the executive coordinator of Apib Kleber Karipuna, the suspension of the law would be a minimum guarantee of continued dialogue. “We understand that the law needs to be suspended so that we can, on an equal footing, be able to continue this process at a minimum. If the law is not suspended, we continue to have legal uncertainty in the territories, indigenous peoples continue to be attacked.”
Guardianship and bargaining
President of the National Foundation of Indigenous Peoples (Funai), Joênia Wapichana reiterated that the moment was an opportunity for proposals and solutions, but that they “do not set back rights already reaffirmed in our Constitution, rights that are fundamental, unavailable rights that give the guarantee that indigenous peoples have their lives for the future as well. It is precisely in this spirit of not going back on what the Supreme Court has already advanced, that it is important that these principles and this spirit are present in these discussions without needing to make invisible or deny the existence of indigenous peoples.”
Apib's lawyer, Eloísa Machado, questioned Diego Viegas, assistant judge who led the session after Gilmar Mendes' absence, about what would happen if the entity decided to withdraw from the process. “There is no problem, just that the negotiation table will continue”, she replied. The judge explained that, in the absence of representation of indigenous peoples, Funai would be able to provide this space.
“If here the indigenous peoples speak out against any type of solution, I obviously believe that the representation of Funai, the executive branch, which also represents the interests of the indigenous people, will be able to accept this intention. After all, Funai, in this sense, is there to assist the interests of indigenous representatives.”, said Diego Viegas.
Excited, Alberto Terena, leader of the Terena people and executive coordinator of Apib, criticized the position. “We are here as indigenous representatives of our people. I am considered dangerous by the Brazilian state for going in search of my rights. Then being here before the [Federal] Supreme Court as a representation and saying that we are still represented by an indigenous body? The indigenous body is seeking to enforce our rights within our country, not to protect them again, not for the Supreme Court to say that we are protected. We will not negotiate our original constitutional right and it is not the indigenous body that will represent us in this regard. Never. Never. Once again the Brazilian state will be denying the rights of our people”, he said.
According to Viegas, there was a misunderstanding of his speech, which did not imply guardianship of indigenous people by Funai, but that the indigenous body would be able to gather impressions of the movement in the absence of Apib. The speech was questioned again.
“We feel very violated regarding the issue of state guardianship. Understanding that it may have been an erroneous position on the part of the judge who was helping to conduct the conciliation, but stating that any position taken by the indigenous movement, withdrawing from the conciliation chamber process, Funai would be reflecting the movement's position. For us, it is a position that again refers to the guardianship process that indigenous peoples went through for some time and that was overcome by the Constitution of 88, mainly. But this only reveals how much prejudice and institutional racism are rooted in spheres of power”, said Karipuna.
Executive Secretary of the Ministry of Indigenous Peoples (MPI), Eloy Terena highlighted the importance of the presence of indigenous leaders at the conciliation table. “Apib is the maximum and legitimate representation of indigenous peoples. There is no way for us to discuss the rights of indigenous peoples here without taking into account this self-determination that indigenous peoples have”.
In the middle of the hearing, Assistant Judge Diego Viegas presented an audio of Senator Rodrigo Pacheco, president of the National Congress, stating that “there is an agreement between powers that while you are here, there will be no progress on PEC 48 in Congress”.
PEC 48 is a Proposed Amendment to the Constitution (PEC) that intends to include the time frame thesis in the Federal Constitution. Senator Hiran Gonçalves (PP-RO) presented the PEC in the Senate a week after the STF decided that the time frame thesis was unconstitutional.
No concessions for indigenous people
Invested in defining the dates for the next hearings, judge Diego Viegas made a quick consultation with the members of the special commission and ignored the request from indigenous representatives for a period of 48 hours to inform them if they would be available and if they intended to remain in the conciliation process.
Eloy Terena appealed to the judge to “take a step back” and together think about a methodology to serve the indigenous people. “Imagine, there are 305 peoples, speakers of 274 languages. Imagine the difficulty of these 5 leaders explaining all of this that we are facing. debating here, at the base. So ask the Supreme Court to be more plural, in the sense of understanding this anguish that the indigenous peoples are bringing here. We have leaders here who traveled to be here, they didn't even sleep. less than 24 hours ago, at that exact moment they were being attacked. For us to start talking about conciliation, it is necessary to create a safe and healthy legal environment.”
Diego Viegas only gave in after many arguments that this time was necessary for the representatives to consult their bases and after a non-indigenous MPI representative also made the request. Even so, the dates were pre-determined for August 28th, September 9th and 23rd.
Around 19pm, Diego Viegas informed that he would need to be absent from the session to attend a custody hearing. Lawyer for the Coordination of Indigenous Organizations of the Brazilian Amazon (Coiab), Judite Guajajara asked the judge several times to stay and listen to her, but that did not happen.
“The feeling I have here for the five hours I've been here is the feeling that every time we indigenous people say something it is refuted. What is the value of the indigenous voice at this table? I think that one of the purposes of conciliation mediation is for you to listen and the feeling I have is that since the beginning that we arrived here, no one has listened to what the indigenous peoples are saying. We asked for 48 hours, but we needed to hear a non-indigenous person reinforce this in order to be accepted. We want dialogue. I think indigenous peoples have a lot of experience about dialogue strategy. We have been teaching for a long time how to conduct dialogue and being seated at this table is a demonstration of this willingness, even though our relatives are being attacked, even though the majority of indigenous peoples are already saying 'we don't want conciliation'. We open our hearts, we are here and we have everything to lose. That's why we're resisting here until the last second. But once again what this scenario demonstrates is that it is not a legal debate, but a political debate, since we indigenous peoples are not respected. This here has the potential to be an extremely new experiment that has the potential to be very positive. But if we continue this run over, this will be marked in history as one of the greatest violence against indigenous peoples in Brazil. It is difficult for you to think about pacifying the country, because we were not the ones who created conflicts, on the contrary, we were here and those who arrived were the ones who created conflicts and now they want the indigenous peoples to pay the bill without giving us the minimum conditions to dialogue” .
Watch Judite Guajajara’s speech:
During a press conference at the end of the session, Kleber Karipuna evaluated the first day of the hearing and reinforced that the movement will still give its response as to whether it is in accordance with the dates presented and whether it will remain in the conciliation process until the end.
“We have a very bad impression of this process as a whole. The rules that were not yet in place, which have now been put in place, are not rules that are very favorable to indigenous peoples. Although it has been reported that they will seek to have the decision reached by majority consensus, there is also a voting process and that indigenous peoples, in these dispute processes, in this sense, emerge losers. We had long hours of exhausting debates, even disagreements on the part of the conciliation leader. What we want to bring here at this moment for the indigenous peoples, for the Brazilian indigenous movement, is that Apib and our regional organizations, the leaders who are in this process, we will only continue if the indigenous movement defines that we are to continue this dialogue process and that we will not at any time negotiate any rights of indigenous peoples”.
Situation in Mato Grosso do Sul
Amidst the situation of violence between farmers against indigenous people Guarani Kaiowá from Mato Grosso do Sul, a delegation with the minister of Indigenous Peoples, Sônia Guajajara, the president of Funai, Joenia Wapichana, the federal deputy Célia Xakriabá, the executive secretary of the MPI, Eloy Terena and other government representatives, departed from Brasília on the morning of August 6th.
The group went to visit one of the resumptions of Panambi-Lagoa Rica Indigenous Land, in Douradina (MS), where ten indigenous people were injured after a shooting attack.
According to reports from the indigenous people, even with the presence of the National Force in the area, on the night of August 5, new attacks with rubber bullets and firecrackers were made against the recovery.
Minister Sonia Guajajara said that the Temporal Framework Law does not affect the resumption and that, together with other authorities, she will take the situation to the federal government and the judiciary to speed up the processes “because it is no longer possible to maintain this situation of insecurity permanent".
According to data published by the last Report on Violence against Indigenous Peoples in Brazil, from the Indigenous Missionary Council (Cimi), Mato Grosso do Sul is the second most violent state for indigenous people in Brazil. There were 43 cases of murders against indigenous people registered in 2023; 93 cases of violence against people; 37 cases of suicide and 190 cases of violence against property.
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