A Xokleng celebrates the vote of Brazil’s Supreme Court on the rights of indigenous people to their land, in Brasilia, September 21, 2023. UESLEI MARCELINO / Portal
Indigenous advocates called it the “trial of the century,” and it went in their favor. On Thursday, September 21, Brazil’s Supreme Court upheld the rights of indigenous peoples to their land, declaring the “temporal framework” theory unconstitutional. The issue was all the more urgent because the reserves allocated to indigenous people are seen by scientists as a bulwark against deforestation and therefore play a key role in the fight against global warming.
The “temporal framework” thesis advocated by the powerful agro-business lobby in the name of the “legal certainty” of operators proposes to recognize as the legal property of the indigenous population only the land that they occupied or officially claimed at the time of the promulgation of the Constitution in 1988. However, the indigenous people explain that certain areas were no longer occupied by them at that time because they had been expelled, particularly under the last military dictatorship (1964-1985).
The trial before the Supreme Court, which will set a precedent, relates in particular to the case of the Ibirama-Laklano territory, in the state of Santa Catarina (South), which lost its status as an indigenous reserve of the Xokleng people in 2009, following a Lower court ruling. The judges then based their decision on the fact that these areas were not occupied by indigenous peoples in 1988.
This ruling is a “very important response to the threats and criminalization that we have experienced in the last four years,” Kleber Karipuna, executive director of the Association of Indigenous Peoples of Brazil, told Agence France-Presse (AFP). (APIB) , alluding to the mandate of former far-right President Jair Bolsonaro (2019-2022). But it is also a call to the government of left-wing President Luiz Inácio Lula da Silva, who returned to power in January, to “make progress on the delimitation of indigenous territories,” he added.
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An “unpayable debt”
The majority was reached on Thursday when a sixth of the 11 justices who sit on the country’s highest court voted against the “time frame” theory during this long-running trial, which began in August 2021 and has been suspended for several times. Three other judges then voted against it. Result: nine votes against, two votes in favor. According to the NGO Socio-Environmental Institute (ISA), almost a third of the more than 700 already demarcated indigenous reserves in Brazil – the majority in the Amazon region – could be affected.
The only two judges who supported the agribusiness thesis were appointed by Jair Bolsonaro. The latter, whose mandate was marked by an outbreak of deforestation, had promised to “not give an inch more” to the indigenous peoples. Approval of new reserves remained on hold for more than five years until Lula’s return to power, who legalized six new reserves in April, then two more in early September.
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The delimitation of reservations guarantees indigenous peoples the inalienable right to occupy their ancestral lands and the exclusive use of natural resources, while maintaining their traditional way of life. Of the over 700 protected areas already demarcated in Brazil, almost a third have not yet been officially approved.
Hundreds of indigenous protesters, some with painted bodies and feathered heads, gathered under a large tent outside the Supreme Court and watched the debates on a giant screen. When the majority was reached, some burst into shouts of joy and dance moves, while others hugged their neighbor.
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While Judge Carmen Lucia emphasized that it is “impossible to pay off the debts of Brazilian society to the indigenous peoples,” Joenia Wapichana, president of Funai, a public body dedicated to the protection of indigenous peoples, welcomed the fact that “justice is on on the side of the indigenous peoples”. “Now that the time frame has finally passed, we can move forward in protecting our land and our rights,” she told AFP.
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A consensus still needs to be found
The Supreme Court judges still need to reach a consensus on the issues at hand, in particular on possible compensation by the state to the owners of land that would be converted into reserves in the future. This alternative solution to the “time frame” is proposed by the powerful judge Alexandre de Moraes for the “non-natives” who would have legally and “in good faith” acquired these ancestral lands from the locals, but is rejected by the local leaders.
In particular, they fear that jurisprudence on compensation will slow down the approval of new reservations because they would entail high costs for the state. The judge also suggested compensation for locals who could not be granted the land they rightfully claim.
According to the latest census, Brazil has nearly 1.7 million indigenous people living on or off reserves, or 0.83% of the population.