Time frame is at a disadvantage in the STF

Another vote was cast on the issue involving the time frame for the demarcation of "indigenous lands". It happened this Wednesday (20/9) at the Federal Supreme Court (STF). The action in question is Extraordinary Appeal (RE) 1017365. The trial will continue in the session on Thursday (21/9).

Minister Dias Toffoli considers that the 1988 Federal Constitution, by guaranteeing indigenous people the right to traditional lands, was based on the people's own conception of their territory, to allow the occupation to be established according to their uses, customs and traditions.

The minister understands that, in cases where demarcation involves the removal of non-indigenous people who occupy the area in good faith, their resettlement must be sought. If this is not possible, the compensation must cover, in addition to the improvements, the value of the bare land, calculated in a process parallel to the demarcation and without the right to retain the land.

Toffoli defended the possibility of resizing indigenous land, but only if it is proven that the demarcation process did not follow constitutional and legal standards. For the minister, this hypothesis is exceptional, and the annulment of the administrative demarcation act must comply with a five-year statute of limitations. For areas already approved, the deadline starts from the publication of the minutes of the STF judgment.

To date, five ministers - Edson Fachin (rapporteur), Alexandre de Moraes, Cristiano Zanin, Luís Roberto Barroso and Dias Toffoli - understand that the right to land by indigenous communities is independent of the fact that they were occupying the site on 5/10/1988 , date of promulgation of the Federal Constitution. Ministers Nunes Marques and André Mendonça understand that the date must be set as a time frame for the occupation.

time frame

Temporal framework, also known as indigenous fact theory, is a legal thesis according to which indigenous peoples have the right to occupy only the lands that they occupied or were already contesting on the date of promulgation of the 1988 Constitution. This is the traditional understanding of the STF. You can see it, for example, in RE 219983: "the rules defining the domain of items I and XI of article 20 of the 1988 Federal Constitution do not cover lands that, in the remote past, were occupied by indigenous people".

This is contrasted with the theory of indigenato (or immemorial possession), according to which the right of indigenous peoples over traditionally occupied lands predates the creation of the Brazilian state, and it is only up to the latter to demarcate and declare territorial limits.

Original law

The case that gave rise to the appeal is related to a request from the Santa Catarina Environmental Institute (IMA) for repossession of an area located in part of the Sassafras Biological Reserve (SC), declared by the National Foundation of Indigenous Peoples (Funai ) as well as traditional indigenous occupation. In the appeal, Funai contests the decision of the Regional Court of the 4th Region (TRF-4), for which it was not demonstrated that the lands would traditionally be occupied by indigenous people and confirmed the sentence in which the reintegration of possession was determined.