Fachin votes against 'timeframe' in decisive judgment for STF demarcations
Brazilian Indigenous landmark is not temporal it is constitutional Fachin
The minister claimed that “the rights of indigenous communities under the Constitution constitute fundamental rights that guarantee the condition of existence and dignified life for indigenous peoples”.
"There is no greater legal security than complying with the Constitution", says minister in vote
Article by ISA lawyer Juliana de Paula Batista
The judgment of Extraordinary Appeal No. 1,017,365, with recognized "general repercussion", which was scheduled for judgment in the virtual plenary of the Federal Supreme Court (STF), between Friday and the next Thursday, was removed from the agenda due to a request to be highlighted by minister Alexandre de Moraes. The judgment of the case now depends on the President of the STF, Minister Luiz Fux. He has the power to decide when the case will be brought back to trial.
Moraes' request was made in the first minute of the trial, so that other justices of the Court did not even have the opportunity to cast their votes. Despite this, the vote of the rapporteur of the process, Minister Edson Fachin, who should be the first to be appointed, was released.
In it, Fachin recognizes that the rights of indigenous peoples are fundamental: “as fundamental rights, they are immune to the decisions of eventual legislative majorities with the potential to restrict the exercise of these rights, since they consist of commitments signed by the original constituent”. The thesis launched by the minister, and already defended in a vote by minister Luís Roberto Barroso, is a shovel for proposals such as Bill (PL) 490, which is on the agenda at the Committee on Constitution, Justice and Citizenship of the Chamber of Deputies . The PL intends to make the demarcations unfeasible ( see ISA technical note ).
In the vote, Fachin also did not accept the thesis of the “time frame” of occupation. According to this theory, only indigenous people who were on the land on October 5, 1988, the date of the promulgation of the Constitution, would have the right to demarcate their lands. "Understanding that the Constitution solidified the issue by electing an objective time frame for the attribution of the fundamental right to an ethnic group means closing the door once more on them to the full and dignified exercise of all rights inherent to citizenship," he said. the minister.
About the “time frame” and the indigenous people who live in voluntary isolation, Fachin asked: “being completely alienated from the western way of life, how will these communities prove to be in the areas they occupy on October 5, 1988?”
The minister also highlighted that the recognition of indigenous land rights is independent of the proof of the so-called "relenting dispossession", thesis that demanded a documented factual conflict or a judicial possessory action on October 5, 1988 as the only means of proving expulsions.
When analyzing the legal status of indigenous lands, the minister reaffirmed the theory of “indigenous” and the jurisprudence of the Supreme Court, which historically recognizes that the rights of indigenous peoples over their lands do not depend on demarcation, as they are “original” rights. The last paragraph of the thesis proposal exposed by Fachin deals with the compatibility between indigenous lands and the protection of the environment, saying that they are not incompatible [learn more in the table below].
"Authorizing, in the absence of the Constitution, the loss of possession of traditional lands by the indigenous community, means the progressive ethnocide of their culture, by the dispersion of the indigenous members of that group, in addition to casting these people into situations of misery and acculturation, denying them the right to identity and difference in relation to the way of life of the surrounding society, the greatest expression of the political pluralism established by article 1 of the constitutional text. There is no greater legal certainty than complying with the Constitution”, concludes Fachin.
Main highlights of the vote
stone clause
"First, the provisions of article 231 of the constitutional text are subject to the provision of article 60, §4 of the Magna Carta, consisting, therefore, of a permanent clause for the action of the reforming constituent, who remains prevented from promoting changes aimed at abolishing or hindering the exercise of individual and collective rights emanating from the constitutional command.”
Fundamental rights
"Secondly, the rights arising from article 231 of the CF/88, as fundamental rights, are immune to the decisions of any legislative majorities with the potential to restrict the exercise of these rights, since they consist of commitments signed by the original constituent, in addition to having been assumed by the Brazilian State before various international bodies (such as, for example, Convention 169 of the International Labor Organization and the United Nations Declaration on Indigenous Peoples). Therefore, they consist of obligations payable to the Public Administration, consisting of a structural duty to be performed by the State, and not merely a cyclical one.”
"Thirdly, as it is a fundamental right, indigenous rights are subject to the prohibition of retrogression and the prohibition of deficient protection of their rights, since they are linked to the very condition of existence and survival of the communities and their way of to live."
Rights independent of demarcation
"(...) the permanent possession of lands of traditional indigenous occupation does not depend on the conclusion or even the carrying out of the administrative demarcation of these lands, it is an original right of the indigenous communities, being only recognition, but not constituted by the legal system."
"The legal nature of the demarcation procedure is merely declaratory, it consists in the exteriorization of the property of the Union, linked and affected by the specific function of serving as a habitat for the ethnic group that traditionally occupies it. It is an activity of the Executive Power, performed by various bodies, according to the procedure shown above, but it does not create indigenous lands, it only recognizes those that are already, by original right, in possession of that community”.
“The final approval of the procedure, carried out by the President of the Republic under the terms of article 5 of Decree No. 1775/1996, serves to certify the due compliance with the provisions of article 231 and the governing legislation. As it is an administrative procedure that recognizes the exercise of a fundamental right, it is not possible that reasons of convenience and opportunity are alleged to fail to recognize the traditionality of indigenous occupation; therefore, only non-compliance with the provisions of the constitutional rule can lead to a refusal to ratify the demarcation proposed by FUNAI and recognized as legitimate by the Minister of Justice, provided that it is justified.”.
time frame
"Analyzed the constitutional trajectory of the tutelage of indigenous possession, I understand that the current Constitution does not represent a milestone for the acquisition of possessory rights by indigenous communities, but a continuum, a sequence of protection already guaranteed by the Constitutional Charters since 1934, and that now, in a context of the
Democratic State of Law, the Indians gain new guarantees and conditions of effectiveness for the exercise of their territorial rights, but that did not only begin on October 5, 1988”.
“It's not about ensuring fraud or enabling the title of communities that are not linked to this past of resistance and a traditional indigenous way of life. Nevertheless, to understand that the Constitution solidified the issue by electing an objective timeframe for the attribution of the fundamental right to an ethnic group means to close the door once more on them to the full and dignified exercise of all rights inherent to citizenship.” .
isolated indigenous
"Furthermore, the so-called time frame theory ignores, in its formulation, the situation of isolated Indians, that is, indigenous communities with little or no contact with the surrounding society, or even with other indigenous communities."
"The understanding of a plural society and respect for diversity, such as that which the Constitution of 1988 seeks to establish, requires that the right to self-determination of these peoples be respected, keeping them out of constant contact with other people, respecting their way of life. of life and avoiding its decimation, as it happened famously in our country with other communities contacted throughout history”.
Indigenous Lands and State Governments
“So, if the time frame theory is applied, and there is no indigenous presence on the date of October 5, 1988 in the area considered, it is not enough to point out that the land would not be indigenous. It is necessary to question, then, who would own the area that should have reverted to federal public patrimony, since it is impossible to take possession of public land.
As noted above, indigenous land is not unoccupied land; thus, the lands cannot have entered the state patrimony and, therefore, cannot have been legitimately transferred to the private patrimony”.
"Stubborn dispossession"
"This abandonment must be eminently voluntary on the part of the community, without the configuration of any form of land grabbing by third parties, and without the requirement of a physical conflict or a lawsuit filed and pending on October 5, 1988”.
"The forms of indigenous resistance to the illicit occupation of their lands must be investigated according to the conception that each ethnic group has about ways to resist invasions."
"For the reasons listed above, I conclude that the constitutional protection of the "original rights over the lands they traditionally occupy" is independent of the existence of a time frame on October 5, 1988 and the configuration of the persistent dispossession as a physical conflict or persistent judicial controversy at the date of promulgation of the Constitution”.
The importance of anthropological work
"If the connection with the land is part of the very definition of identity as an Indian and as an indigenous community, only a technical work, surveying the historical, ethnographic, sociological and environmental characteristics of the occupation will be able to determine whether or not the provisions of the article 231, §1 of the constitutional text”.
"The definition of the traditionality of the indigenous occupation, the maintenance of cultural, spiritual and environmental ties with the considered area, therefore, does not only involve a legal concept, but requires a demonstration carried out by a technical report".
"(...) because in the case of indigenous lands, which are the fundamental rights of indigenous peoples, all studies must be joined to demonstrate the effective occurrence of the characteristics of §1 of article 231, with no space for discretionary assessment".
Area re-study
"However, especially considering the possibility that many indigenous lands have been demarcated without strict observance of the article under discussion (eg, without carrying out an anthropological report affirming the correct extension of the traditional lands), I understand that the carrying out re-studies for the adequate dimensioning of the traditional occupation in such areas, provided that they are carried out in an administrative demarcation process under the terms of the governing legislation, there is no constitutional prohibition”.
"Therefore, if flagrantly unconstitutionality is demonstrated with regard to compliance with article 231 of the Federal Constitution, incurring damages to indigenous communities that have been excluded from part of their traditional territory, I do not understand that there is a prohibition on any redimensioning of lands already demarcated".
Exclusive use
“This time, the indigenous people are guaranteed the exclusive use and enjoyment of the riches of the soil, rivers and lakes existing in the indigenous land. This means the impossibility of granting any form of real or personal right over these wealth to third parties outside the indigenous community in favor of which the traditional occupation is set, or even the performance of business acts with the Indians that remove them from the condition of usufructuaries exclusive to the land.”.
Paragraphs of Article 231
"The same ratio informs the provisions of §§ 3, 5 and 7 of the constitutional provision, with the guarantee of prior hearing from affected communities in case of use of water resources and research and mining of mineral wealth, provided that there is specific approval by the National Congress and participation in the mining, in accordance with the law; prohibition of removal of indigenous communities from their areas, due to permanent and exclusive possession, outside of constitutional hypotheses, ensuring their return as soon as the cause of provisional removal has passed; and the prohibition of mining in indigenous lands. Everything corroborates the permanent possession with exclusive usufruct of the natural wealth by the Indians”.
"These are guarantees that place indigenous lands as res extra commercium, over which no private negotiation is possible, in respect of the public nature and affected by the maintenance of indigenous well-being that characterize these areas."
Null and extinct titles
"In this way, it is understood that the chain of ownership of a given area, considered in itself, does not have the power to impede demarcation procedures, given the existence of an original right to the possession of traditionally occupied lands, the constitutional and normative protection of this right, since before the republican period, as well as the consideration that the constitutional text recognizes the possession, but does not constitute it, hence the existence of possession or private property in indigenous lands is not possible.”
"Another aspect related to the device under discussion, and which arises from the nullity of the ownership titles, is the impossibility of claiming indemnity or action against the Union due to the nullity or extinction of the proprietary or possessory title, except for
improvements derived from the occupation in good faith.”.
"However, under no circumstances may there be an impediment to the completion of the administrative demarcation, with the extrusion of individuals from the demarcated land without any right to retention by the bare land, or prejudice the exercise of possessory rights of indigenous communities based on article 231 of the text constitutional".
Indigenous Lands and the environment
“Therefore, there is no incompatibility between Articles 231 and 225 of the constitutional text, as the Indians have every interest in protecting these areas. The maintenance of unpolluted forests, biodiversity, rivers and lakes ensure the right to exclusive use of natural resources, maintaining the quality of life of these communities. The double affectation between indigenous lands and areas of environmental protection is not unfeasible, on the other hand, as shown in the normative diploma mentioned above”.
"Nevertheless, considering the original right of indigenous communities, environmental protection policies cannot interfere in the exercise of traditional activities of indigenous people, the one, because they are not predatory actions on the environment, the two, because the uses , indigenous customs and traditions are the core of the recognition of the traditionality of the occupation protected by article 231 of the constitutional text.”.
general repercussion
"Nevertheless, the judge who analyzes this type of litigation, even if it is a process with abbreviated rite, must, firstly, consider the elements that characterize indigenous possession, as stated in this vote:
a) demarcation consists of a declaratory procedure of the original territorial right to possession of lands traditionally occupied by the indigenous community;
b) traditional indigenous ownership is distinct from civil ownership, consisting in the occupation of lands inhabited on a permanent basis by the Indians, those used for their productive activities, those essential to the preservation of environmental resources necessary for their well-being and those necessary for their reproduction physical and cultural, according to its uses, customs and traditions, under the terms of §1 of article 231 of the constitutional text;
c) the date of promulgation of the 1988 Constitution does not constitute a time frame for the measurement of indigenous possession rights, under penalty of disregarding these rights as fundamental rights, as well as the entire normative-constitutional framework for the protection of indigenous possession over time ;
d) it is not required, for the demonstration of persistent embezzlement, to file a judicial possession claim at the date of the 1988 Constitution, or even a persistent factual conflict on October 5, 1988;
e) the anthropological report carried out pursuant to Decree No. 1776/1996 is a fundamental element for demonstrating the traditionality of the occupation of a determined indigenous community, according to its uses, customs and traditions;
f) the resizing of indigenous land is not prohibited in case of non-compliance with the elements contained in article 231 of the Constitution of the Republic, through a demarcation procedure under the terms of the governing rules.
Adequate compliance with the Constitution is a fundamental rule for the maintenance of a Democratic State of Rights, in which everyone is guaranteed, without distinction, the rights that the Great Text confers, individual and collective. The complexity of the Brazilian land tenure situation is not disregarded, much less the wide range of difficulties faced by bona fide rural producers. However, legal certainty cannot mean not complying with constitutional norms, especially those that ensure fundamental rights.
Nevertheless, authorizing, in the absence of the Constitution, the loss of possession of traditional lands by the indigenous community, means the progressive ethnocide of their culture, by the dispersion of the indigenous members of that group, in addition to casting these people into a situation of miserability and acculturation, denying to them the right to identity and difference in relation to the way of life of the surrounding society, the greatest expression of the political pluralism established by article 1 of the constitutional text.
There is no greater legal certainty than complying with the Constitution.”
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