STF invalidates deadline for land regularization of traditional communities in BA

The Federal Supreme Court (STF) declared unconstitutional the law in Bahia that set a deadline for traditional bottom and pasture communities (traditional groups that live from communal grazing in rural areas of the Bahian hinterland) to file requests for land regularization in their territories.

In Direct Unconstitutionality Action (ADI) 5783, the Attorney General's Office (PGR) argued that the deadline for filing the request for land regularization (31/12/2018), provided for in paragraph 2 of article 3 of the state law 12.910/2013, affects the right to identification and protection of these traditional communities, which have a true ancestral relationship with the territories they occupy.

The wording of the contested provision:

Article 3 - The contract granting the real right to use the area will be signed by public instrument with a community association, made up of all its real occupants, and enshrined with an inalienability, unseizability and imprescriptibility clause. [...]

§ 2 - The contracts granting the real right of use referred to in this Law will be signed with associations that file requests for certification of recognition and land regularization, with the competent bodies, by December 31, 2018.

Reasons for the decision

In the opinion of Minister Rosa Weber, rapporteur of the action, the rule is incompatible with the territorial protection owed to traditional communities. In his view, collective lands are not mere immovable property, but part of the existence of these communities and a necessary element for their physical and cultural reproduction. Therefore, denying the guarantee to traditionally occupied lands is denying the very identity of these communities.

The president also stated that the restriction brought by the law is inadequate, unnecessary and disproportionate, as it does not contribute to the cessation of land conflicts and social stabilization. According to information contained in the records, the lack of regulation generates even more conflicts, in addition to giving greater space to land grabbing and real estate speculation. Rosa added that the intended stabilization of land conflicts can be promoted through less restrictive and more effective means.

Minister Cármen Lúcia and ministers Cristiano Zanin, Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso and Luiz Fux followed this trend.

Partial divergence

Minister Nunes Marques partially diverged from the majority understanding. In his assessment, the term of the law is constitutional, it is no longer reasonable with the outbreak of the Covid-19 pandemic and the increase in investment in wind energy in the territories involved. Therefore, he proposed extending the start of the five-year period to the date of publication of the minutes of the ADI trial session.

The decision on the trial was worded as follows: "The Court, by majority, heard this direct action and judged the request to declare the unconstitutionality of § 2 of art. 3rd of Law 12.910/2013 of the State of Bahia, in accordance with the vote of Minister Rosa Weber (President and Rapporteur), defeated, in part, by Minister Nunes Marques, who judged the action to be partially valid, proclaiming the partial unconstitutionality of the aforementioned provision, only to extend the end of the 5 (five) year period to request recognition of the real right of use referred to in the contested law, from the date of publication of the minutes of the session of this trial. [...] ".

Indigenous time frame

The ruling on the decision has not yet been released. The decision comes at a time when there are disputes over the application - or not - of the time frame to lands occupied by indigenous people.

ADI's initial petition can be seen at the link below: