2023-09-27 23:51:32
Five civil society organizations released, this Tuesday (26), a public note in which they expressed concern about legal theses presented in the Marco Temporal trial at the Federal Supreme Court (STF).
At the same time, in the document, the Commission for the Defense of Human Rights D. Paulo Evaristo Arns, the Arns Commission; the Articulation of Indigenous Peoples of Brazil (Apib); the Indigenous Missionary Council (Cimi); the Brazilian Society for the Progress of Science (SBPC); and the Brazilian Anthropology Association (ABA) say they are confident that the STF will remain the greatest guardian of the 1988 Federal Constitution and protector of the fundamental rights of minority and vulnerable social groups, such as Brazilian indigenous peoples.
The STF rejected, last Thursday (21), the thesis of the time frame for the demarcation of indigenous lands – Extraordinary Appeal No. 1,017,365 – by 9 votes to 2. With the decision, the date of promulgation of the Federal Constitution of 1988 cannot be used to define the traditional occupation of land by these communities. On the afternoon of this Wednesday (27), the STF continued with the trial, this time to define the legal theses of general repercussion, which should guide future judgments on demarcations.
Compensation for bare land
Among the points to be discussed is the possibility of compensation for bare land to owners who would have acquired land from the public authorities in good faith, in areas traditionally occupied by Indians. In this case, these owners will have to leave the land
At this point, the entities understand that the Constitution prohibits compensation for the value of bare land in the demarcations, even for individuals in good faith (art. 231, § 6, of the CF). However, in the event of possible compensation, after analyzing each case, social entities argue that this should be completely disassociated from the demarcation procedure, so as not to make the process even more time-consuming.
“Otherwise, the pending demarcations will become unfeasible in practice, as they will become completely dependent on huge state financial resources, which are scarce”, says the note released by the entities.
Land exchange
Another point rejected by the entities is the possibility of exchanging indigenous lands with other areas. They point out that this hypothesis was not covered by the Federal Constitution and that indigenous lands are absolutely irreplaceable.
The note highlights that the possibility of exchanging the property must not be carried out even with the authorization of the indigenous community itself and the National Foundation of Indigenous Peoples (Funai). It also explains the risks if the authorization of original peoples was considered.
“In a context of crisis and in the face of external pressure, communities may be forced to give up their traditional territories, in exchange for others that do not have the same spiritual value for them. The Brazilian Constitution does not enshrine this possibility, which the STF should not endorse.”
Mining on indigenous lands
As a third opposition, the organizations understand that mining on indigenous lands represents a serious risk to the rights of these peoples, as well as to the protection of the environment. For the representatives, the matter was not discussed in the judgment of Extraordinary Appeal No. 1,017,365, by the STF, and indigenous peoples and society did not comment on the matter. Therefore, it would not be appropriate to address the issue within the process at this time, under penalty of serious infringement of due legal process.
The note deals with the damage to indigenous peoples and the environment resulting from mineral exploration in the territories. “Recent history shows us that the existence of enterprises for the extraction of water, organic (hydrocarbons) and mineral resources, in practice, generates the destruction of indigenous territories, the contamination of populations by biological and chemical agents, such as mercury, and fraying the social fabric of these communities, in addition to weakening or making their Food Sovereignty unfeasible and subjecting women and children to physical and sexual violence.”
The note ends with the defense of the full participation and inclusion of indigenous peoples in discussions on topics that concern them. “We need to take seriously what indigenous peoples say about their own rights.”
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