2023-05-05 16:06:01
Article originally published on the Mídia Ninja website, on 5/4/2023
Last Friday (28), the 19th edition of the Free Land Camp (ATL) ended, which brought together about six thousand indigenous people from all regions of the country, in Brasília. President Lula attended the closing ceremony and announced important measures for indigenous peoples. The National Council for Indigenous Policy (CNPI) was recreated to bring together federal agencies and the indigenous movement and articulate government actions. The Management Council of the National Policy for Environmental Management of Indigenous Lands (PNGATI) was also established at the Ministry of Indigenous Peoples.
Lula also signed six decrees, which ratify the demarcations of Indigenous Lands (TIs) Arara do Rio Amônia (AC), Uneiuxi (AM), Tremembé da Barra do Mundaú (CE), Kariri-Xocó (AL), Rio dos Índios (RS ) and Avá-Canoeiro (GO). Shortly afterwards, the president of the National Foundation for Indigenous Peoples (Funai), Joenia Wapichana, announced the signature of the identification ordinance of the Sawré Bap’in ILs, of the Munduruku, in the Tapajós region (PA), and Sete Salões (MG ), of the Krenak people. In April, through a Provisional Measure, Lula had already earmarked BRL 640 million for emergency assistance to the Yanomami and, on Friday, announced an additional BRL 12.3 million.
The relevance of these decrees goes beyond quantity, as they represent the resumption of IL demarcation processes, provided for in the Constitution, but paralyzed five years ago. Each of them is especially important, as it means the completion, at the administrative level, of the demarcation procedure for that territory, essential for the occupying communities and expected by them for decades.
Multi-step process
However, contrary to what many think, it is not the homologation decree that defines the limits of an IT. The demarcation process has several steps and it begins with the creation, by Funai, of a working group, coordinated by an anthropologist, to carry out the necessary studies to identify the territory. It is up to the president of the indigenist body, through an ordinance, to approve the area identified by the group, as Joenia has now done with the Sawré Bap’in and Sete Salões ILs.
From the beginning of the administrative process, until the publication of the identification ordinance in the Official Gazette (DOU), a period of 90 days opens for contesting the proposed limits for demarcation, which can be made by people, companies or institutions. Funai then has another period of 60 days to express its opinion on any disputes and then forward the process to the ministry responsible for making the political decision on the limits to be demarcated.
Interested third parties, who have rights affected by the identification of the TI, have the right to challenge the proposed limits administratively after their officialization. If they do not have their claim recognized, they can appeal to the Court. But they cannot prevent, by other means, the continuity of the demarcation process and the recognition of the constitutional right of the original peoples.
Decree 1775/1996 gave the Minister of Justice the power to decide on these limits, approving them, rejecting them or requesting new steps from Funai. Provisional Measure 1,154/23, which should be voted on shortly by Congress, transfers this competence to the new Ministry of Indigenous Peoples.
It is only after the ministerial decision on the limits of the area that Funai can provide for its physical demarcation, properly speaking, with the placement of markers and identification plaques and with the fencing or opening of trails, depending on the case. As a rule, Funai hires, through bidding, engineering companies for this purpose. It is this step, the physical demarcation, that demands greater investment of public resources. It is also here that the digitization of the demarcated perimeter is carried out, which gives precision to the descriptive memorial of the area contained in the presidential homologation decree.
logical sense
The stages of the demarcation process make sense. The political decision-making on the limits takes place at ministerial level, above Funai, and being aware of possible objections, being able to consult other ministries and the president himself, if that is the case. Likewise, it makes sense that the political decision precedes the investment in physical demarcation, which would result in waste if the boundaries were later revised. It is also logical that the process reaches the president’s hands with the pending issues addressed and the appropriate technical support.
The precision of the geographic coordinates of the demarcated perimeter is not a mere formality, which, often, can only be ensured in loco, during the materialization of the limits. It is not just a question of improving the presidential act, but of avoiding avoidable overlaps and conflicts after registering the area with the Union Heritage Secretariat (SPU) and local registry offices.
Since the transitional government, according to official sources, there were 14 lands with physical demarcation completed. This information generated the expectation that a corresponding number of homologation decrees would now be issued.
Government sources claimed, however, that some of these processes still have formal pendencies and there would not have been time for the Civil House to resolve them, even with the physical demarcation completed. This body is responsible for formulating the texts of decrees to be edited by the president.
The following are the eight lands that were on the list of the transitional government, but were not ratified: Potiguara de Monte-Mor (CE), Xukuru-Kariri (AL), Toldo Imbu (SC), Cacique Fontoura (MT), Aldeia Velha (BA), Rio Gregório (AC), Acapuri de Cima (AM) and Morro dos Cavalos (SC). Groups from these lands, present in the ATL, protested against the exclusion from their territories.
If there are formal reasons for non-homologation, they will soon be resolved and the decrees will be edited. It may be that the conclusion, in June, of the judgment by the Federal Supreme Court (STF) on the issue of the “time frame”. According to this ruralist thesis, only indigenous populations who were in their possession or in conflict over them on October 5, 1988, the date of promulgation of the Constitution, would have the right to their lands.
It is not known exactly what happened, but other information that circulated, unofficially, is that there was strong political pressure against the eight approvals that did not come out, in fact, which is common in these cases. One can imagine, for each of these areas, which interests would be thwarted, but it is not known why they would have been so convincing.
Several open questions remain. Who convinced the government to stop these approvals? Does Planalto know that the definition of the boundaries of these lands preceded the demarcations? Are you going to sit on top of processes, prolonging conflicts and postponing solutions? Are you going to return them to Funai?
At the ATL, Lula declared that he intends to demarcate all ILs with unfinished processes by the end of his term. This would be great for Brazil, providing justice and helping to order the occupation of the territory, although there are cases under analysis by the Judiciary or relating to isolated groups, whose solution does not depend solely on the will of the government. To approach the goal, Lula needs to warn his subordinates that it is not worth sitting on top of the processes.
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