Organizations warn of the risk of a regression in indigenous rights in the STF

2024-08-29 19:00:00

In protest, the indigenous movement abandoned the second conciliation hearing on the Provisional Framework at the STF |Joédson Alves/Agência Brasil

Twelve organizations and representations that act as friends of the court – the “friends of the Court” in the Direct Actions of Unconstitutionality (ADIs) against the Provisional Regime Law (Law 14,701/2023), issued a public note expressing great concern about the launch of the conciliation table established by the Federal Supreme Court ( STF). . The table, led by Minister Gilmar Mendes, is the target of increased criticism due to the lack of transparency and the risk of regression in indigenous rights.

The organizations are in solidarity with the Association of Indigenous Peoples of Brazil (April), which decided to withdraw from the negotiations last Wednesday (28/08), after considering that “negotiation of basic rights is unacceptable”. The main focus of criticism is the way in which discussions were conducted, without properly answering critical questions raised by Apib, such as the request for the recognition of the unconstitutionality of Law 14,701 (Temporary Regime Law), especially in relation to existing provisions. considered unconstitutional by the Supreme Court in Extraordinary Appeal (RE) 1,017,365, which had general consequences and was concluded in September 2023.

This STF judgment was considered a milestone in the protection of indigenous constitutional rights. The position of the STF was diametrically opposed to several points that the National Conference later included in Law 14,701. The standard has been in place since it was announced in December 2023.

The organizations indicate that the lack of clarity about the content of the discussion in the conciliation hearings believes that indigenous territorial rights, recognized as fundamental rights by the STF itself in the judgment with general consequences, could be “under negotiation and even . suffer obstacles”.

The note also denies the temporary position of the assistant judge Diego Viegas Veras, who even showed in the first hearing the audio shown by the president of the Federal Senate, Rodrigo Pacheco, in which he threatened to promote the Constitutional Amendment Proposal (PEC) 48. vote in the Conference, which establishes the Provisional Framework, if there was no result of the reconciliation. According to the organizations, this attitude created “anger and humiliation” among the indigenous representatives.

The entities support the event of Apib, pointing out that “it seems that it is assumed that all the parties have agreed to this type of settlement of the dispute because of the basic idea of ​​compromise as a self-composition of conflicts. When one of the parties refuses, the matter must come back to the judge for the decision. Otherwise, the party who refuses will be denied access to justice. Apib, and not another indigenous entity worth remembering, is one of the authors of ADI 7,582”.

Despite the criticism, the organizations reaffirm their confidence in the STF, citing judgment RE 1,017,365 as an example of an interpretation that must be maintained to guarantee respect for indigenous rights enshrined in the Federal Constitution.

Read the note in full:

Note two friends of the court regarding the launch of the conciliation table in which the constitutionality of Law 14,701/2023 is discussed

The entities listed below are all acknowledged as friends of the court in the files of ADC 87, where ADI 7,582, 7,583 and 7,586 are collected, as well as ADO 86, the assistant judge Diego Viegas Veras informs, under the scope of the Special Commission established by the Commission, regarding the conduct of the work. Minister Gilmar Mendes to try to solve problems “regarding the issue of the rights of the indigenous and non-indigenous communities related to art. 231 of the CF and Law 14,701/2023”.

1. The Special Commission began to operate without prejudice to questions, which Apib raised several times, answering them, in particular the need to declare the unconstitutionality of Law 14,701, at least its provisions in complete disagreement with the STF judgment in RE 1,017,365 . There is a relaxed jurisprudence in the sense that a law arising from opposition to the STF’s understanding leads directly to the presumption iuris tantum of unconstitutionality, and that the duty of argument falls on the legislator to overcome the reason for the Court’s ruling, which protection, which did not happen.
2. The inaugural hearing of the Special Commission, presided over by judge Diego Viegas Veras, began with the threat that, if there was no compromise, a PEC vote would be taken to establish the Temporary Framework on October 5, 1988. The audio featuring the president of the Federal Senate was played loudly, so that there would be no doubt about it. The same thing happened in the second hearing, where the position of the board was too transparent with the notes made by the indigenous communities, reducing constitutional questions to “side issues”.
3. Subsequently, a number of incidents have shown the lack of knowledge of the guiding judge on the issue put under compromise, sometimes implying that Funai would have some role in representing indigenous communities, sometimes saying that the compromise would continue even without representation native existence.
4. There was also no clarity about the limits of what could be brought together, all as a result of the opinion that rights whose origins are confirmed by the STF itself in the judgment RE 1,017,365 could be negotiated and even blocked put on them.
5. The common feeling, from indigenous representatives and from entities that have been working on the matter for many years, was anger and humiliation, given the degradation of the constitutional issue.
6. The decision taken today, to leave the APIB as a national representative movement that brings together organizations from all regions of Brazil, has been endorsed by the signatory entities for two basic reasons. The first is that the very idea of ​​conciliation seems to be the self-constitution of conflicts assuming that all parties have agreed to this way of resolving the dispute. When one of the parties refuses, the matter must come back to the judge for the decision. Otherwise, the party who refuses will be denied access to justice. APIB, and not another indigenous entity worth remembering, is one of the authors of ADI 7,582. And the second is the very centrality of indigenous communities in issues that directly concern them, under the terms of Convention 169 of the ILO. It is unbelievable that their territorial rights could be discussed without the presence of the indigenous people.
7. The undersigned entities reaffirm their confidence in the Federal Supreme Court, which knew how to understand the meaning of article 231 of the Federal Constitution at the time of judgment RE 1,017,365.

Brasilia, August 28, 2024

Brazilian Anthropological Association (ABA)

Arns Commission

Association of Judges for Democracy – AJD

WWF-Brazil

Indigenous Workplace – CTI

Native Missionary Council – Cimi

Yvyrupa Guarantee Commission – CGY

You Connect Human Rights

Xokleng People of Ibirama La-Klãnõ Indigenous Land

Alternative Terrazul

The Institute of Socio-Environment (ISA)

Alana Institute