Senators approved a proposed constitutional amendment to include a rule that would limit the demarcation of indigenous lands to those they occupied on the day the Constitution was promulgated. The Senate approved this Tuesday (12/09) a proposed constitutional amendment (PEC), known as a deadline, which would establish a new rule for the demarcation of indigenous lands.
The calendar thesis stated that indigenous peoples would be entitled to claim in demarcation processes only the lands they occupied on the date of promulgation of the Constitution, October 5, 1988.
PEC 48/2023 ratifies the terms of the calendar, subject of Law 14.701, of 2023. It was approved in two rounds with 52 votes for, 15 against and one abstention. Before becoming law, it must still be analyzed in the Chamber of Deputies and sanctioned by the president.
Defenders of the proposal say it provides legal certainty on the issue and reduces the risk of land claims for landowners. Critics, however, argue that the measure ignores the history of persecution of indigenous people, who are often forced off their lands.
The proposal, which aims to enshrine the calendar in the Constitution, defines the lands occupied by indigenous peoples as “those permanently inhabited, those used for their productive activities, those essential for the preservation of the environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions”.
The PEC was presented in September 2023, after the calendar thesis was deemed unconstitutional by the Federal Court (STF), the same month. With the proposal to modify the Constitution, the parliamentarians who defend this change are trying to circumvent this understanding.
The vote in the Senate took place a day before the Federal Court (STF) began judging four actions that question the constitutionality of the deadline.
Judgment at the STF
In May 2023, the plenary of the Chamber of Deputies approved the basic text of Bill (PL) 490/2007, on the calendar, which created new rules for the demarcation of indigenous lands. In September of the same year, the text was approved by the Senate.
According to this proposal, only indigenous lands traditionally occupied by these peoples on the date of promulgation of the Constitution could be demarcated in the future. The text also withdrew the demarcation of lands from the jurisdiction of the National Foundation of Indigenous Peoples (Funai) and returned its allocation to the Ministry of Justice and Public Security. The natives are against this proposal.
Rural people, who defend the approval of the PL, argue that this delay would offer greater legal security against expropriations of their properties and for agro-industry.
After the Senate approved the thesis, the same month, the STF overturned the deadline, with nine of the eleven ministers voting against the thesis. The judgment on the subject addressed the specific case of indigenous land in Santa Catarina, but it has general repercussions and the verdict now applies to similar cases.
With this decision, the government vetoed the timetable provided for by law. Congress, however, challenged the STF, overrode the veto, and the thesis became law in October 2023.
What the PEC says
According to the Federal Constitution, “Indians are recognized for their social organization, their customs, their languages, their beliefs and traditions, as well as their original rights to the lands they traditionally occupy, and the Union is responsible for delimiting them, protecting and ensuring respect for all their property”. However, the Constitution does not set any date as a deadline.
PEC 48/2023 amends the Constitution and includes the thesis of the demarcation calendar of indigenous lands, defining that only areas that “were under indigenous ownership on October 5, 1988, the date of promulgation of the Constitution” can be claimed.
The author claims that the change “can bring greater stability and predictability regarding the use and occupation of land, impacting investments and economic activities”, in addition to bringing clarity and security to the legal process and generating debates on “the rights of indigenous peoples and territorial management in Brazil”.
The approved proposal also added provisions guaranteeing prior compensation to regular occupants of the land to be demarcated.
Arguments against the calendar
The Articulation of Indigenous Peoples of Brazil (Apib) affirms that the adoption of this deadline would limit the access of indigenous peoples to their original right to their lands and that there are cases of peoples who were expelled a few decades before the entry into force of the Constitution.
“The right of indigenous peoples to their territories does not begin or end on an arbitrary date,” explains Maria Laura Canineu, director of the NGO Human Rights Watch in Brazil. “Approving this bill would be an inconceivable step backwards, violate human rights and signal that Brazil is not honoring its commitment to defend those who have proven to best protect our forests.”
According to the assessment of the Ministry of Indigenous Peoples, this thesis could “make the demarcation of indigenous lands impossible, threaten already approved territories and deprive constitutional rights, which constitutes one of the most serious threats for the indigenous peoples of Brazil today.”
In 2022, protests against the calendar are also reverberating abroad. In April last year, a group of 29 German parliamentarians sent an open letter to members of the Brazilian Congress to express their concerns regarding PL 490/2007.
Judgment at the STF
The case tried by the STF concerned the dispute over the ownership of Ibirama indigenous land, in Santa Catarina. The region is inhabited by the Xokleng, Kaingang and Guarani peoples.
The State of Santa Catarina claims that on the date of promulgation of the Constitution, there was no occupation in the area. On the other hand, the natives claim that on this occasion they were expelled from the premises.
The Attorney General of the State of Santa Catarina, Márcio Vicari, defends the calendar and says that the reality of Santa Catarina is different from that of other federative units. “There are places where the demarcation concerns a large property belonging to a single owner, but, in our state, this impacts the reality of hundreds of families, many of whom are rural producers,” he said during a hearing at the Legislative Assembly of Santa Catarina (Alesc).
At the start of the STF trial in 2021, around 6,000 indigenous people from 170 peoples camped in Brasilia, in an area of the Esplanada dos Ministérios, to protest for their rights and against the calendar.
The origin of the question
The whole problem arose in 2009, when a conflict between indigenous peoples and farmers in Roraima reached the STF. To resolve the dispute over the rightful ownership of the Raposa Serra do Sol indigenous land, the ministers pleaded in favor of the indigenous peoples, saying they were there when the Constitution was promulgated.
If in this case the thesis was favorable to the original peoples, the precedent remained open to contrary arguments: that is to say that the indigenous peoples could not claim as their own lands which they did not occupy in 1988.
In 2017, the Federal Public Prosecutor’s Office (AGU) considered that the calendar thesis would be relevant. As a result, dozens of land demarcation processes are blocked, awaiting a definition of the STF. Among them, the case of the Xokleng indigenous people, from the Ibirama La-Klãnõ indigenous land, in Santa Catarina, who is being tried again at the STF.
Historically persecuted by colonizers, the remnants of this ethnic group were eventually separated from their original lands in the first half of the 20th century. In 1996, however, they managed to demarcate 15,000 hectares – which would later be expanded, in 2003, to 37,000 hectares. Using the timing argument, the area is now claimed by the Santa Catarina Environmental Institute.
rc/le/bl/rk/fc/cn (DW, EBC, ots)
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