By Canal Rural
Justice Alexandre de Moraes, of the Federal Supreme Court (STF), issued his vote against the theory of the temporal milestone
On Wednesday (7), the Minister Alexandre de Moraes, of the Federal Supreme Court (STF) issued his vote against the theory of the temporal milestone However, he proposed changes in relation to the compensation that the Union must pay to owners of land historically occupied by indigenous communities.
Soon after, Minister André Mendonça requested time for analysis (request for examination) and suspended the evaluation of the case.
According to the STF’s internal rules, he will have 90 days to return the case for the court’s analysis.
The STF was examining the constitutionality of the time frame, a subject that is not dealt with in the legislation.
The thesis states that the demarcation of indigenous lands must respect the area occupied by the people until the promulgation of the Federal Constitution in October 1988. According to this criterion, Indians who were not on their land by that date would have no right to claim it.
This theory is criticized by indigenous rights lawyers, because it would validate and legalize invasions and violence committed against indigenous people before that date.
At the opposite of the indigenous movement, entities representing agribusiness allege that it is necessary, in the name of legal security, to establish that only lands occupied by indigenous people on the date of the promulgation of the 1988 Constitution can be demarcated.
From this perspective, the argument is that landowners who occupied and produced on land before 1988 could not be forced out solely on the basis of evidence of the existence of indigenous people at the site in distant times. This would put a good part of the productive lands in the country at risk of expropriation, claim the representatives of several agricultural sectors.
On behalf of the Brazilian Confederation of Agriculture and Cattle Raising (CNA), attorney Rudy Ferraz argued that the time limit is an “important conciliation instrument” for the resolution of agrarian conflicts.
“We can’t live in complete insecurity, with the possibility that any title, 10 or 20 years from now, will be annulled because someone in the past said that there was a possibility of having indigenous land there,” added the defender, in oral support, at the beginning of the trial.
The judgment in question refers specifically to an appeal filed by Funai against a decision of the Federal Regional Court of the 4th Region (TRF-4), but has national relevance, since its decision will serve as a basis for all similar cases in progress.
In this way, the judgment will set a precedent for the resolution of at least 82 similar cases awaiting a decision.
Trial at the STF
The rapporteur of the case, Edson Fachin, was the first to vote and was against the 2021 deadline. He said that this theory disregards the fundamental nature of indigenous rights, which are stony clauses and cannot be modified by constitutional amendments.
According to the minister, the constitutional protection of the “original rights over the lands they traditionally occupy” does not depend on the existence of a time frame.
Kassio Nunes Marques reaffirmed the time frame and voted to dismiss the appeal.
He argued that the 1988 Constitution recognized indigenous people’s original rights over the lands they traditionally occupied, but this constitutional protection depends on a time frame.
Soon after Nunes Marques’ vote, Minister Alexandre de Moraes requested time for analysis. He was the first to vote on Wednesday.
In Moraes’ understanding, the recognition of indigenous land ownership is independent of the existence of a temporal mark based on the promulgation of the 1988 Constitution.
Moraes cited the specific case judged by the STF to justify the illegality of the milestone. The minister recalled that the Xokleng Indians abandoned their lands in Santa Catarina due to conflicts that led to the murder of 244 of them in 1930.
“Obviously, on October 5, 1988, they were not there, because if they were, from 1930 to 1988, there would have been none left. Is it possible not to recognize this community? Is it possible to totally ignore this indigenous community because there is no temporality between the temporal milestone and the eviction [saída das terras]? he questioned.
However, the minister voted to guarantee landowners who own titles to properties that are located on indigenous lands the right to full compensation for expropriation.
For the minister, there are cases of people who acted in good faith and had no knowledge of the existence of indigenous people where they live.
“When it is effectively recognized that the traditional land is indigenous, the compensation must be complete. The bare land and all improvements. The fault, the omission, the lapse was on the part of the public authorities”, he added.
Legislative Timeframe
At the end of May, the House of Representatives approved a bill that establishes the time frame.
However, the text still needs to be approved by the Senate.
If changes occur, the project will return to the Chamber for a new analysis.
Available at: https://www.canalrural.com.br/noticias/agricultura/mendonca-pede-vista-e-decisao-sobre-marco-temporal-e-adiada/
