(Brasilia) The Supreme Court of Brazil has again postponed the debates in view of a crucial judgment for the indigenous populations, which could call into question the demarcation of the lands reserved for them.
During this “trial of the century”, as the defenders of indigenous peoples call it, the magistrates of the highest court of the country must validate or reject the “temporal framework”, a thesis which recognizes as ancestral only the lands occupied by the natives when the Constitution was promulgated in 1988.
The debates were suspended when one of the judges, André Mendonça, appointed by the far-right ex-president Jair Bolsonaro, asked for more time to analyze the file.
At the time of the suspension, two of the ten magistrates had rejected the thesis of the temporal framework, and another had been in favor of it.
This trial before the Supreme Court is all the more crucial since the Chamber of Deputies last week approved Bill PL 490 validating this interpretation, a stinging setback for left-wing President Luiz Inacio Lula da Silva, who committed to making indigenous defense a priority.
The text must still be submitted to the Senate.
Many scientists believe that indigenous reserves play an essential role in the fight against global warming, as a bulwark against deforestation, which has increased sharply under the mandate of ex-president Bolsonaro (2019-2022).
What is the judgment about?
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 state of Santa Catarina (south), which lost its status as an indigenous reserve in 2009, following a judgment by a lower court. . The argument advanced by the judges at the time: these lands were not occupied by the natives in 1988.
The text of the Constitution promulgated that year guarantees them “the original rights to the lands they traditionally occupy, which must be demarcated and protected by the State”.
If this judgment – which may take weeks more – on “the time frame” is long awaited, it is because it will apply not only to the Ibirama-Laklano lands, but also mechanically to tens, even hundreds of other reserves that have been disputed for years. In April, Lula approved six new indigenous reservations.
What are the arguments of both parties?
The natives consider that the Constitution recognizes their right to occupy their ancestral lands, without providing for a “temporal framework”.
They recall in particular that a large number of indigenous peoples were evicted from their territories manu militari for centuries, particularly during the military dictatorship (1964-1985).
That’s why they weren’t necessarily on their ancestral lands in 1988.
Representatives of the agribusiness lobby, the driving force behind Brazilian growth, believe that the “temporal framework” would bring “legal certainty” to large rural producers.
They estimate that indigenous lands already represent too large a share of Brazilian territory (around 13%) for a population of around 900,000 people, or less than 0.5% of Brazilians.
What consequences for the natives?
If the “time frame” thesis is validated, indigenous peoples could be evicted from their lands if they fail to prove that they occupied them when the 1988 Constitution was enacted.
According to the NGO Socio-Environmental Institute (ISA), nearly a third of the more than 700 indigenous reserves already delimited in Brazil could be affected, precisely those which are the subject of disputes.
Experts underline the difficulty for indigenous peoples, who have an oral tradition, to prove facts dating back more than thirty years.
What about the bill?
According to Helio Wicher Neto, a lawyer specializing in socio-environmental law, the recent approval of Bill PL 490 in the Lower House has “more political than legal significance”, since it is the Supreme Court which must determine s is constitutional or not.
” Whether [la Cour suprême] deems the time frame thesis unconstitutional, any bill that uses it as a criterion for the demarcations of indigenous reservations will be too,” he told AFP.
If it is transmitted to the Senate after an unfavorable decision by the Supreme Court, this text “should not pass the screen of the commission [sénatoriale] of the Constitution and Justice,” he said.