Brazil: Indigenous victory in crucial trial for their land

Brazil's indigenous peoples, starting with those of the Amazon, won an important victory on Thursday: after a trial that began in 2021, the Supreme Court upheld their right to their lands, rejecting the positions defended by the powerful agribusiness sector.

The issue was all the more crucial since the reserves allocated to indigenous people are considered by scientists as bulwarks against deforestation and therefore play a key role in the fight against global warming.

This judgment is a "very important response to the threats and criminalization that we have experienced over the past four years," Kleber Karipuna, executive director of the Association of Indigenous Peoples of Brazil (Apib), told AFP, referring to the mandate of former far-right President Jair Bolsonaro (2019-2022).

But it is also a call to the government of leftist President Luiz Inacio Lula da Silva, who returned to power in January, to "move forward on the demarcation of indigenous lands," he added.

Expelled in the twentieth century

The majority was reached Thursday when a sixth magistrate, out of the eleven who sit on the highest court in the country, voted against the thesis of the "time frame", during this long-term trial started in August 2021 and suspended several times. Three other judges then voted against. The result: nine votes against, two in favour. The "time frame" thesis, defended by the powerful agribusiness lobby in the name of "legal certainty" for farmers, proposes to recognize as land rightfully belonging to indigenous peoples only those they occupied or officially claimed at the time of the promulgation of the Constitution in 1988.

However, the indigenous people explain that some territories were no longer occupied by them at that time because they had been expelled, especially under the last military dictatorship (1964-1985). According to the NGO Socio-Environmental Institute (ISA), nearly a third of the more than 700 indigenous reserves already demarcated in Brazil (the majority in the Amazon) could have been affected.

Gathered in a large tent in front of the Supreme Court, hundreds of indigenous protesters, some with painted bodies and feathered heads, watched the proceedings on a giant screen. When the majority was over, some burst into shouts of joy and dance steps, while others hugged their neighbors.

«Debt impossible to pay»

While Judge Carmen Lucia highlighted the "impossible debt of Brazilian society to indigenous peoples", Joenia Wapichana, president of Funai, a public body for the protection of indigenous peoples, welcomed the fact that "justice is on the side of indigenous peoples". "Now that the time frame is definitively buried, we will be able to move forward in protecting our lands and rights," she told AFP.

The only two magistrates in favor of the thesis defended by agribusiness were appointed by Jair Bolsonaro. The latter, whose mandate was marked by a surge in deforestation, had promised not to "give up another centimeter" to indigenous peoples.

The approvals of new reserves remained at a standstill for more than five years, until Lula returned to power, legalizing six new ones in April, then two more in early September. Of the more than 700 reserves already demarcated in Brazil, almost a third of them have not yet been officially approved.

The precedent-setting Supreme Court case focuses on the case of the Ibirama-Laklano territory in the southern state of Santa Catarina, which lost its status as an indigenous reserve of the Xokleng people in 2009 following a lower court ruling. The judges justified their decision by explaining that these lands were not occupied by indigenous people in 1988. "I am very moved because my grandfather fought a lot for this and he is no longer here to see him," said Txului Namblá, an 18-year-old Xokleng.

Compensation

Supreme Court justices have yet to reach consensus on outstanding issues, including possible state compensation for landowners who would be turned into reserves in the future.

This alternative solution to the "time frame" was proposed by the powerful judge Alexander of Moraes, but it was rejected by the natives. In particular, they are concerned that case law on compensation could hinder the approval of new reserves, as they would represent a high cost to the State.

Brazil has nearly 1.7 million indigenous people, living on or off reserves, or 0.83% of the population, according to figures from the latest census.