The plenary of the Brazilian Federal Supreme Court (STF) is due to resume this Wednesday (7) the trial of the Time Frame Bill (also known as Time Limit Trick Bill), the main bet of Brazilian agribusiness to stop the demarcation of indigenous lands and to question territories already demarcated.
The Court will define whether the legal thesis that considers October 5, 1988 – the date of enactment of the Brazilian Constitution – as the time frame for the demarcation of indigenous lands is constitutional or unconstitutional. The plenary session begins this Wednesday (7) at 13:00 (Brasília time).
Understand
The 1988 Federal Constitution was the first in Brazil to recognize that indigenous people are the first and true owners of the lands occupied by them before the arrival of non-indigenous people.
According to the Constitution, indigenous lands are assets of the Union, which has an obligation to promote the demarcation of these territories in favor of their traditional inhabitants.
Demarcation is a complex istrative process, which has nine stages, from the initial studies of identification and delimitation of the territory, to the interdiction of areas for the protection of isolated indigenous peoples.
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Thus, it is the right of indigenous people to exercise permanent possession and exclusive use of the soil, rivers and all natural resources essential to the maintenance of their ways of life over these lands.
This protection framework for indigenous peoples, however, never fully materialized.
The Constitution gave until 1993 for all indigenous lands to be demarcated, but currently, there are more than 300 territories that are in an indefinite legal situation.
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If they do not have proof that they occupied the area within the period stipulated by the time frame, hundreds of indigenous groups who were violently expelled from territories – as regularly occurred during the 1964 military dictatorship, for example – will lose their right to the land.
The Constitution textually recognizes the indigenous right to traditionally occupied lands, without mentioning any time criteria for demarcations. Therefore, the time frame is considered clearly unconstitutional by jurists, lawyers and the Federal Public Ministry (MPF).
"The Brazilian Supreme Court, under the presidency of Minister Rosa Weber, has given good answers in indigenous and climate matters. In the indigenist advocacy, the expectation is positive, although it is always possible to request a review or another way to postpone the trial", evaluates Nicolas Nascimento, lawyer and legal advisor of the Missionary Council for Indigenous Peoples (Cimi).
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The Federal Supreme Court interrupted the vote on the time frame in 2021, after a request for a review by Minister Alexandre de Moraes. So far, two ministers have voted: rapporteur Edson Fachin, against the time frame, and Nunes Marques, in favor.
The paralysis of the analysis for two years allowed ruralist parliamentarians, ers of Bolsonaro and the political center to advance the issue in the Chamber of Deputies, where the timeframe was approved on an urgent basis last week, thanks to the work of Arthur Lira (Progressive Party).
In the Senate, the signs are of less haste for the vote, which must be done in a regular procedure. There is also a legal opinion issued during Michel Temer's government by the Attorney General’s Office (AGU), an Executive Branch body, favorable to the time frame.
"Prerogative belongs to the Supreme Court"
"Although there are several actors seeking to regulate the issue, the prerogative of interpreting the Federal Constitution belongs to the Supreme Court, as well as the modulation of its understandings", explains Nicolas Nascimento, lawyer and legal advisor of the Missionary Council for Indigenous Peoples (Cimi).
Indigenous people mobilized in Brasilia (DF) to accompany the trial / @Jhony_Kopenoti22/Conselho Terena
"The Judiciary has legitimacy to overturn a rule that goes against the law, as in the case of the time frame, without this meaning disharmony between the powers of the Republic", agreed the lawyer, master in anthropology and doctoral student at the Federal University of Amazonas (UFAM), Felipe Jucá.
"The same issue discussed in different powers causes the tension we are seeing. And if the Legislative Branch finally approves the time frame, nothing prevents this new law from also being judicialized", explained Jucá, who is also a researcher linked to the New Social Cartography project in the Amazon.
Minister appointed by Bolsonaro may hold trial once again
Elevated to the Federal Supreme Court by Bolsonaro, the "terribly evangelical" André Mendonça will be the second minister to vote, right after Alexandre de Moraes, author of the request for review.
In 2021, Bolsonaro declared himself confident that Mendonça would vote in favor of the ruralist thesis once he reached the Supreme Court. While he was still Bolsonaro’s Attorney General of Bolsonaro, he acted in the time frame process in defense of the demarcation criteria.
The legal sector of the Articulation of Indigenous Peoples of Brazil (APIB) even defended, in 2021, that Mendonça should declare himself prevented from voting due to his previous performance.
Nunes Marques' vote presented ruralist fake news
Also appointed to the Court by Jair Bolsonaro, Nunes Marques tied the judgment at 1 x 1 by voting in favor of the time frame. The minister repeated arguments from ruralist entities and even reproduced the fake news that, without the criterion of demarcations, there would be an "unlimited expansion" of indigenous lands, with a threat to "national sovereignty and independence".
In the contrary vote, rapporteur Edson Fachin defended that indigenous territorial possession is not equal to civil possession and, therefore, must be interpreted based on the Constitution, which guarantees the original right to ancestrally occupied lands.
Indigenous extermination and paralyzed demarcations
Indigenous organizations have been mobilized since Monday (5th) in Brasília, in an attempt to sensitize ministers and public opinion. Indigenous leaders and activists warn that the consequences of validating the time frame could deepen the process of genocide experienced by the original peoples.
Even communities that live on land that has already been demarcated may be expelled if they fail to prove that they occupied the territory within the period established by the legal thesis.
This is because the Supreme Court classified the judgment of the time frame as having general repercussions. That is, a jurisprudence will be created that will serve as a basis for judging all similar cases in other courts, defining the future of the next generations of Brazilian indigenous people.
"Isolated indigenous peoples' lands would be extinct"
The applicability of the time frame is questioned in the case of peoples who maintain permanent with non-indigenous people, but the setback would be even greater for isolated people, those who prefer not to maintain with the rest of the population. It is estimated that there are at least 100 groups in this situation in the Brazilian part of the Amazon rainforest, according to the Socio-environmental Institute (ISA).
As the Observatory for the Human Rights of Isolated and Recently ed Indigenous Peoples (OPI) points out, in most cases it is impossible to prove the presence of these groups in a given area and on a specific date. This is because these populations are in constant displacement, retreating to more preserved areas due to the pressure suffered by deforestation.
"If the time frame becomes a law, virtually all isolated indigenous lands already demarcated would be extinguished. You can't ask them [indigenous people] if they were there in 1988. They probably weren't," explains OPI member Fabrício Amorim. "It is very easy to understand why this is a totally absurd and inapplicable thesis for all indigenous peoples, especially for isolated ones".
