The Federal Court (STF) has four votes to declare the deadline for demarcation of indigenous lands unconstitutional. The scoreboard was formed with the vote of Minister Luiz Fux, who voted this Tuesday following the rapporteur of the file, Minister Gilmar Mendes. In addition to them, ministers Flávio Dino and Cristiano Zanin also voted. The case is being judged during a virtual plenary session of the Court which takes place until this Friday.
This Monday, Gilmar voted to reaffirm the unconstitutionality of the deadline for demarcation of indigenous lands. Gilmar considered that the STF has already decided that it is not possible to set the date of October 5, 1988, the date of promulgation of the Constitution, as a condition for land occupation.
Gilmar also voted to set a 10-year deadline for the federal government to complete the demarcation of all Indigenous lands, believing there had been an omission. Indeed, the law on transitional constitutional provisions provided for a period of five years, starting in 1988, for the completion of these processes.
The first to accompany Gilmar was Flávio Dino, who presented some reservations on points such as the rules for the activities of anthropologists, the overlap with conservation units and the authorization of economic activities on indigenous lands.
The thesis of the time is that indigenous peoples are only entitled to the lands they occupied on October 5, 1988, the date of the promulgation of the Constitution. In 2023, the STF had already ruled this agreement unconstitutional, but the bill was later approved.
Cristiano Zanin, third to vote, followed Gilmar against the calendar thesis and fully followed the reservations presented by Dino. For him, “the constitutional system comprehensively recognizes and protects the lands, traditions and habits of indigenous peoples, in order to preserve the culture of the country’s indigenous people.”
“I reiterate, as I already said in the judgment on Theme 1.031 of the General Repercussion, that the Constituent Assembly of 1988, after recognizing the original rights of the indigenous communities on the traditionally occupied lands, determined the duty of the Union to delimit them by a simple declarative act, due to their original, supra-state and pre-existing character to the Brazilian State,” Zanin said.
This Monday, the STF began analyzing four actions involving a law approved by Congress in 2023, setting the timetable. But shortly before, the Court had already ruled this thesis unconstitutional.
Last week, the Senate approved a proposed amendment to the Constitution (PEC) which also provides for a deadline. The text must still be adopted by the House.
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