By André Ricardo Passos de Souza for Money Times
Last Thursday (21), the Federal Supreme Court (STF) concluded, by 9 votes to 2, the trial of the so-called “Temporal Framework” that defines the demarcation of indigenous lands.
When I came across the result, I knew that our next column should try to shed some light on this topic, since we dedicate our column to trying to clarify for market agents the consequences and impacts of situations that permeate important legal issues in corporate law. agribusiness and sustainability.
At that moment, the famous poem by the great Carlos Drummond de Andrade came to mind, with its disquieting question: “And now, José?”.
The Time Frame Thesis
Well, the Temporal Framework thesis, strictly speaking, concerns the delimitation of a period of time in which a given area of land would be considered to be subject to demarcation for the purposes of constituting an indigenous reserve (or land).
The point is that this “displacement in time” of the date of any investigation into the ownership of the land by the indigenous people could harm any right of ownership and/or possession of the land of the current holders of the properties, should the land enter the demarcation process as “indigenous land”, regardless of whether these current occupants/owners have legitimately acquired ownership of these properties.
Thus, the “ruler” that was intended to be fixed in the timeline to prevent this milestone from becoming “movable” and eventually compromising the acquired rights of legitimately acquired landowners registered with a notary’s office, would be the year 1988, when the current Federal Constitution was promulgated.
By an absolute majority, the Supreme Court decided not to set the “Temporary Milestone” in 1988. The Constitutional Court considers that this “cut” based on this date would not meet the wishes and rights of indigenous peoples, as members of our nation and our society, and could thus violate their most basic rights to subsistence as Brazilians who are members of the original peoples.
Possible scenarios for agribusiness
Despite all the controversy and opinions expressed so far, it is a fact that it will not be until next Wednesday (27) that the STF plenary will meet to establish the thesis that will serve as a parameter for the resolution of some 226 similar cases that are still suspended awaiting a final definition based on what happened last week.
In this way, we must look to understand how this case can have repercussions on agribusiness and on the legal security of the legitimate owners of the lands that may be the subject of new demarcations in these 226 other processes – and in many other cases afterwards – that are still underway.
First of all, it is important to note that in Justice Gilmar Mendes’ vote, there is express mention of the “objective criteria” that should guide the modulation of the effects of the decision, still to be decided as of the 27th.
What are the criteria?
The question is: what are these criteria? And how will the rights of legitimate landowners be observed? Will they be compensated? And what about the rights of society as a whole to the environment and food security? All of this will still have to be dealt with when the ministers meet again to define these criteria for modulating the effects of the decision from tomorrow.
In the background, we also have to think about how the new federal processes for recognizing land as liable to expropriation for the purpose of constituting indigenous reserves would be handled by the federal executive bodies. And at this point, what would happen to the bills in progress in other branches of government that still intend to regulate the matter definitively?
Would such “objective criteria” be observed by these federal powers and agencies, regulated by a specific law? What’s more, could the same apply to the criteria for compensation and expropriation of land that could be considered indigenous?
Epilogue?
Given all these questions that arose after Friday’s decision, we began the text by taking refuge in the great Carlos Drummond de Andrade, given the complexity of the issue, which does not end with last week’s STF judgment, but will only be exhausted with a debate by society as a whole and with the action of all the powers of the republic on behalf of the whole of Brazilian society, including the original peoples themselves, who make up society itself and are part of the Brazilian nation.
In addition, today we have numerous investments in Fiagros, in shares listed on the stock exchange of companies that invest in productive land, the constitution of real estate guarantees in agribusiness financing operations, operations in the capital market, of trade finance and many others backed by guarantees and products produced in areas that are now duly registered and regularized with Incra and which may be involved in the near future in disputes over expropriation for the purpose of constituting indigenous lands.
So what choice will the legislator make? What will the powers of the Union and Brazilian society choose? Should we favor legal certainty, food security, the development of the financial and capital markets in agribusiness and the STF decision itself – which brought the interests of indigenous communities to the center of this debate – and the very livelihoods of these original communities, or simply let José answer in what terms all of this will be put in place for future generations of Brazilians? What now, José?
Available at: The STF Temporal Framework trial versus Agribusiness: “What now, José?” – Money Times