Brazil's Supreme Court resumes its debates on Wednesday (June 7th) for a crucial judgment for indigenous peoples, as it could call into question the demarcation of the lands reserved for them, which are considered a bulwark against deforestation. In this "trial of the century" for indigenous people, the judges of the highest court in the land must validate or reject the "time frame", a thesis that recognizes as ancestral only the lands occupied by the indigenous when the Constitution was promulgated in 1988.
It is all the more crucial that the Chamber of Deputies last week approved a bill validating this interpretation, a stinging setback for leftist President Luiz Inacio Lula da Silva, who has pledged to make the defense of indigenous people a priority. The text has yet to be submitted to the Senate. Only two of the ten judges who currently make up the Federal Supreme Court (STF) had voted, one for and the other against, when the judgment was suspended in September 2021.
Ramparts against deforestation
Several hundred indigenous people from all over Brazil have been camping in Brasilia since the beginning of the week, mobilized to demand that the "time frame" be declared unconstitutional. Many scientists believe that indigenous reserves play an essential role in the fight against global warming, as bulwarks against deforestation, which has risen sharply under the mandate of former far-right President Jair Bolsonaro (2019-2022).
The demarcation of reserves guarantees indigenous peoples the inalienable right to occupy their ancestral lands, as well as the exclusive use of natural resources, while preserving their traditional way of life. Specifically, the Supreme Court must rule on the case of the Ibirama-Laklano territory, in the southern state of Santa Catarina, which lost its status as an indigenous reserve in 2009, following a lower court ruling. The argument put forward by the judges at the time: these lands were not occupied by aboriginal people in 1988.
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The text of the Constitution promulgated that year guarantees them "original rights to the lands they traditionally occupy, which must be demarcated and protected by the State". If this judgment - which may still take weeks - on the "time frame" is long awaited, it is because it will apply not only to the Ibirama-Laklano lands, but also mechanically to dozens, if not hundreds of other reserves that have been the subject of litigation for years. In April, Lula approved six new indigenous reserves.
What are the arguments of both parties?
Indigenous peoples consider that the Constitution recognizes their right to occupy their ancestral lands, without providing for a "time frame". In particular, they recall that a large number of indigenous peoples were evicted from their territories by force of arms for centuries, including during the military dictatorship (1964-1985).
As a result, they were not necessarily on their ancestral lands in 1988. Representatives of the agro-business lobby, the sector driving Brazil's growth, believe that the "time frame" would provide "legal certainty" to large rural producers. They believe that indigenous lands already represent too large a share of Brazilian territory (about 13%) for a population of about 900,000 people, or less than 0.5% of Brazilians.
'More political than legal'
If the "time frame" thesis is validated, indigenous peoples could be evicted from their lands if they fail to prove that they occupied them at the time the 1988 Constitution was promulgated. According to the NGO Socio-Environmental Institute (ISA), nearly a third of the more than 700 indigenous reserves already demarcated in Brazil could be affected, precisely those that are the subject of disputes. Experts point to the difficulty for indigenous peoples, who have an oral tradition, to prove facts dating back more than 30 years.
According to Helio Wicher Neto, a lawyer specializing in socio-environmental law, the recent approval of Bill 490 in the lower house has a "more political than legal" scope, since it is the Supreme Court that must determine whether it is constitutional or not. "If the STF deems the time frame thesis unconstitutional, any bill that uses this thesis as a criterion for the demarcation of indigenous reserves will be unconstitutional," he told AFP. If it is sent to the Senate after an unfavorable decision of the Supreme Court, this text "should not pass the scrutiny of the (senatorial) committee of the Constitution and Justice," he believes.