While the Federal Court (STF) begins to judge the calendar again, Congress accelerates the vote on a constitutional amendment that makes the creation of reserves more difficult. In both initiatives, the rights of communities whose lands have not yet been officially recognized can be relaxed.
Raquel MiuraRFI correspondent in Brasilia
More than 150 land demarcation applications filed with the National Foundation of Indigenous Peoples (Funai) may be affected by legislative and legal decisions. At a time of institutional tension between powers, proposals are being put forward aimed at modifying the judgment of the Federal Court of 2023, which at that time abandoned the calendar thesis according to which land is only guaranteed to those who were in the area concerned in 1988, when the Constitution was promulgated, without taking into account expulsions, dominations and invasions throughout history.
Last Tuesday (9), the Senate approved a proposed amendment that incorporates this thesis into the Constitution, PEC 48/23, on the eve of the resumption by the STF of a new discussion on the demarcation of indigenous lands.
“No state response will be sufficient if it only responds to the legitimate expectations of one of the parties concerned. To put an end to violence in the countryside, it is necessary to take into account, as far as possible, the interests and rights of all parties concerned, indigenous peoples and rural producers,” said lawyer Gabrielle Pereira, who spoke on behalf of the Senate, from the STF gallery.
Representatives of the original peoples were also able to present their arguments. “At COP30, Brazil presented itself to the world as a leader in the ecological transition and in the fight against the climate crisis. However, internally, it is experiencing a legislative movement that goes in the opposite direction. This contradiction is denounced by scientists, organizations and by us, indigenous peoples. Either Brazil protects indigenous lands, or Brazil loses its climate credibility”, underlined lawyer Maira Carneiro.
The session will resume this Thursday (11) so that interested parties can still be heard. The vote of the ministers will be given during a session to be fixed.
Uncertainty scenario for indigenous peoples
The case returned to court after new actions were filed based on a law passed by Congress two years ago. Instead of rejecting the requests based on the decision that the court had already adopted, Minister Gilmar Mendes, rapporteur of the file, showed himself willing to review certain points.
The STF’s clash with Congress, which includes the impasse over the impeachment of court ministers, parliamentary amendments and the dosimetry of those convicted of a coup, also had an impact on this theme of the times, in a dispute of protagonism and power between civil servants and members of Congress.
In this scenario, the legislator and the rapporteur defend the flexibility of the right to demarcations, although at different levels.
The current decision of Congress, however, has a higher hierarchical level than the previous ones, because it is no longer a law, but a constitutional amendment, which will be voted on by the deputies and can be challenged again in court, in a scenario of constant uncertainty for the original communities.
The federal government has defended the demarcation of indigenous lands without the 1988 timetable, but with goals set by the STF in 2023, including seeking an agreement to compensate owners who occupied the areas in good faith.
At the end of the session this Wednesday (10), it was remarkable that the STF ministers, who have been discussing this topic for so long, asked one of the Funai lawyers how many demarcation processes are being analyzed within the Foundation. A representative of the Federal Public Prosecutor’s Office helped both parties, informing that there were 156.
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