The timetable for the demarcation of indigenous lands has returned to the forefront in recent weeks, with different movements in the National Congress and the STF (Federal Supreme Court), but in both cases under criticism from indigenous peoples.
The discussion, in all areas, goes beyond the monument itself and also impacts demarcation procedures in general and the possibilities for exploring territories.
The timetable is the thesis according to which indigenous territories should be recognized at the time of the promulgation of the Federal Constitution, in 1988.
A process is currently underway within the STF and a PEC (constitutional amendment proposal) in Congress.
Last Monday (15), the Minister of the Supreme Court, Gilmar Mendes, voted to overturn the calendar thesis, but spoke in favor, for example, of the exploitation of natural resources by non-indigenous peoples (through cooperation), compensation of farmers for demarcation and also the possibility of assigning people to areas different from those they initially occupied.
Apib (Articulation of Indigenous Peoples of Brazil), the main entity representing this group in the country, says these and other points of the decision threaten “the very life and cultural survival of approximately 1.7 million indigenous people, belonging to 391 peoples.”
On the 9th, the Senate approved a PEC on the subject. Its main difference from Gilmar’s vote is that the proposal sets the timetable in the text of the Constitution.
In accordance with the Supreme Court, the text also provides for compensation for farmers and the distribution of people in areas different from those they initially occupied – in addition to prohibiting the expansion of territories and providing for the participation of rural landowners throughout the demarcation process.
According to Apib, the proposal “promotes a profound restructuring of the constitutional regime of indigenous lands, institutionalizing the denial of indigenous rights.”
What is the discussion about?
The benchmark debate refers to the interpretation of Article 231 of the 1988 Federal Constitution.
“The Indians are recognized for their social organization, their customs, their languages, their beliefs and their traditions, as well as for their original rights to the lands they traditionally occupy, the Union being responsible for delimiting them, protecting and ensuring respect for all their property,” specifies the text.
Critics of the thesis argue that the people’s right to territory precedes the constitutional text and that its demarcation must therefore respect the anthropological studies which determine the area originally inhabited by each group.
Its defenders say it provides legal certainty by setting a timetable for land demarcation.
Who defends
The agri-food industry is the main sector favorable to this thesis, promoted in Parliament by the Agricultural Parliamentary Front (FPA), guarantor of the rural bench and the most important group in Congress.
The FPA states that the PEC serves “to protect the historical rights of indigenous communities, while guaranteeing the stability of social, economic and territorial relations in the country”.
Regarding Gilmar’s vote, the front says it is concerned about the removal of the monument, but welcomes the fact that other points of the decision guarantee “more transparency and security to the demarcation processes.”
History
The tangle of texts on the monument involves, in total, three rulings from the Supreme Court and two proposals to Congress.
2009 – Raposa Serra do Sol case
The first trial took place during the demarcation of the Raposa Serra do Sol indigenous land, in Roraima, completed in 2009 under the report of Minister Ayres Britto. At the time, the STF created 19 conditions for the exploration of the territory and established the calendar thesis for the first time.
2023
- STF reverses schedule with widespread repercussions
The Supreme Court once again analyzed the issue of timing in the judgment on the Ibirama-La Klãnõ indigenous land, in Santa Catarina, of the Xokleng people, resuming the debate on the subject.
In 2023, the STF plenary voted to reverse the calendar thesis, with the difference that the case fell under the so-called “general repercussion”, making this decision effective for all related cases, overlapping with the Raposa Serra do Sol trial.
On this occasion, the Supreme Court also approved compensation for the demarcation of indigenous lands.
- Congress reacts, presents the PEC and approves the project
At the time, the STF and Congress were experiencing tense moments, and the Senate responded: it presented the PEC of the calendar and ended up approving a bill that established the thesis in legislation.
The proposal voted on in Congress was based precisely on the conditions of the case of Raposa Serra do Sol, provided compensation to farmers for the demarcation and allowed the exploration of territories, including by non-indigenous people.
- Lula bans the PL, but Parliament overturns his veto
President Lula (PT) vetoed the bill, but Parliament canceled the measure and applied it as law, opening a new chapter in the conflict.
As soon as the new legislation came into force, the Supreme Court was contacted both by defenders, who requested its validation, and by critics, who assert that the thesis goes against what the Constitution determines.
This is the process that is underway today at the STF, reported by Gilmar Mendes.
How does the STF trial take place?
An advocate for rural interests, Gilmar opened a conciliation table on the issue and even proposed a resolution to regulate mining on indigenous lands – but then backtracked.
In his vote, the minister overturned this historical thesis, but validated the compensation of farmers and allowed people to be assigned to places other than those initially inhabited – a policy applied by the dictatorship and criticized by the indigenous movement.
It also opened the possibility for anthropologists involved in the demarcation process to be suspected in the event of delays and authorized cooperative contracts with non-indigenous populations for the exploration of natural resources.
In addition to Gilmar, Minister Flávio Dino also voted, who opposed the dean on suspicion of civil servants, relocation of indigenous peoples and cooperation.
Cristiano Zanin and Luiz Fux also voted, adding 4 votes to 0 to reverse the thesis.
How does the process work in the Senate?
The PEC for the period was presented in 2023, but had been suspended since mid-2024.
When the STF reacted on the issue again in early December, the Senate responded and approved the proposal in plenary, in an expedited vote.
The PEC’s goal is to counter the argument that the monument violates the Constitution – the basis of the decisions that have so far overturned the argument.
Once approved, the proposal would include the Magna Carta timetable, thus requiring the Supreme Court to respect it in its decisions.
The text must still be voted on by the Chamber of Deputies, which will not happen in 2025.
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