Defenders of indigenous peoples called it the “trial of the century”and it turned in their favor. On Thursday September 21, the Supreme Court of Brazil confirmed the rights of indigenous people to their land, by declaring the “temporal framework” thesis unconstitutional. The issue was all the more crucial as 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.
The thesis of the “temporal framework”, defended by the powerful agro-trading lobby in the name of ” legal security “ of the operators, proposes to recognize as lands rightfully belonging to the indigenous people only those which they occupied or officially claimed at the time of the promulgation of the Constitution, in 1988. However the indigenous people explain that certain territories were no longer occupied by them at this time because they had been expelled, notably under the last military dictatorship (1964-1985).
The trial at the Supreme Court, which will set a precedent, relates more specifically 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 following a judgment of a lower court. The judges then justified their decision by explaining that these lands were not occupied by indigenous people in 1988.
This judgment is a “very important response to the threats and criminalization that we have experienced over the last four years”, Kleber Karipuna, executive director of the Association of Indigenous Peoples of Brazil (APIB), told Agence France-Presse (AFP), referring to the mandate of ex-far-right president Jair Bolsonaro (2019- 2022). But it is also an appeal to the government of left-wing President Luiz Inacio Lula da Silva, who returned to power in January, to “advance on the demarcation of indigenous lands”he added.
A “debt impossible to pay”
The majority was reached on Thursday when a sixth magistrate, out of the eleven who sit on the highest court in the country, voted against the thesis of the “temporal framework”, during this long-term trial which began in August 2021 and was suspended for several times. Three other judges then voted against it. Results: nine votes against, two for. According to the NGO Socio-Environmental Institute (ISA), almost a third of the more than 700 indigenous reserves already demarcated in Brazil – the majority in the Amazon – could have been affected.
The only two magistrates favorable to the thesis defended by agro-business were appointed by Jair Bolsonaro. The latter, whose mandate was marked by an outbreak of deforestation, had promised not to “not give in another centimeter” to indigenous peoples. Approvals of new reserves remained at a standstill for more than five years, until Lula’s return to power, who legalized six new ones in April, then two others at the beginning of September.
The demarcation of reserves guarantees indigenous people the inalienable right to occupy their ancestral lands, as well as the exclusive use of natural resources, while preserving their traditional way of life. Of the more than 700 reserves already demarcated in Brazil, almost a third have not yet been officially approved.
Gathered under a large tent in front of the Supreme Court, hundreds of indigenous demonstrators, some with their bodies painted and their heads topped with feathers, followed the debates on a giant screen. When the majority was reached, some burst into cries of joy and dance moves, while others hugged their neighbor.
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While Judge Carmen Lucia highlighted the “unpayable debt of Brazilian society towards indigenous peoples”Joenia Wapichana, president of Funai, a public body for the protection of indigenous people, welcomed the fact that “justice be on the side of indigenous peoples”. “Now that the time frame is definitively buried, we will be able to move forward in the protection of our lands and our rights”she told AFP.
A consensus still to be found
The judges of the Supreme Court have yet to find a consensus on the pending questions, in particular on possible compensation by the State of owners of land which would be transformed into reserves in the future. This alternative solution to the “temporal framework” is proposed by the powerful judge Alexandre de Moraes for the “non-native” who would have acquired these ancestral lands from the indigenous people legally and ” in good faith “, but it is rejected by indigenous leaders.
They fear in particular that case law on the subject of compensation will slow down the approval of new reservations, because they would represent a high cost for the State. The magistrate also proposed compensation for natives to whom it would not be possible to grant the lands they rightly claim.
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.