Congress overturns veto of the time frame for indigenous lands

The National Congress rejected the veto of the President of the Republic, Luiz Inácio Lula da Silva, on the bill on the time frame for indigenous lands (PL 490/07). The excerpts will be incorporated into Law 14.701/23.

Although already judged unconstitutional by the Federal Supreme Court (STF), the time frame defined by the project restricts the demarcation of indigenous lands to those already traditionally occupied by these peoples on October 5, 1988, the date of promulgation of the new federal Constitution.

The importance of having this definition in law arises from the STF's own jurisprudence. Traditionally, the court considers that a change in the law subsequent to a trial under constitutionality control forces the court to re-examine the matter, although ministers are not obliged to adopt this understanding.

The legislative function (“creating laws”) is not linked to the effects of the STF’s decision. It is up to the court to give the last word in terms of constitutional interpretation. But this does not prevent the interpretation of the Constitution by the Legislative Branch, which can issue a law or constitutional amendment with the previous understanding, provoking a new pronouncement from the STF regarding a given topic. There are those who call the situation “legislative reaction” or “legislative overcoming of jurisprudence”, a form of “congress activism”.

In a well-known book on constitutional law, Danel Sarmento explains the issue: “the STF's decisions on constitutional matters are not susceptible to invalidation by political bodies. This, however, does not prevent a new law from being enacted, with content similar to the one that was declared unconstitutional. This position can be derived from the constitutional text itself, which did not extend to the Legislative Power the binding effects of the decisions handed down by the STF in the control of constitutionality (art. 102, § 2, and art. 103-A, of the Constitution). If this happens, it is very likely that the new law will also be declared unconstitutional. But the result may be different. The STF can and should reflect on the additional arguments provided by Parliament or debated by public opinion to support the new normative act, and not ignore them, taking the new legislative measure as an affront to its authority. In the meantime, in addition to the possibility of changing the position of some ministers, there may also be a change in the composition of the Court, with reflections on the outcome of the trial”.

Returning to the question of the time frame, according to the new law after the vetoes were overturned, to be considered traditionally occupied lands it must be objectively proven that they, on the date of promulgation of the Constitution, were, at the same time, permanently inhabited, used for productive activities necessary for the preservation of environmental resources and physical and cultural reproduction.

Several other vetoed points from the text were also reincorporated into the law. Between them:

• prohibition of expanding already demarcated indigenous lands;

• adaptation of administrative demarcation processes that have not yet been completed to the new rules;

• nullity of demarcation that does not comply with these rules.

Find out more about the time frame by clicking on the articles below:

• Unless there is a change in understanding, the time frame has been overturned;

• Time frame is at a disadvantage in the STF.