The Federal Constitution, in its chapter VIII – Articles 231 and 231 – recognizes the right of indigenous peoples to preserve their social organization, customs, languages, among other intangible aspects of their culture, and the Federal Government should take responsibility for protecting and preserving all their assets. The wording goes on to regulate the use of territories traditionally occupied by these groups, assuring them the inalienable and imprescriptible right of possession and use of sufficient territory to guarantee their preservation, well-being, and physical and cultural development.
These provisions were included in the Constitution within a unique historical and political setting. The post-redemocratization period was defined by the efforts for promoting social rights, by implementing policies of reparation and compensation of rights of minority groups that until then had little or no representation in Brazil’s political and institutional scenario.
Nonetheless, despite the achievements brought about by the Constitution, capital for Brazil’s development in the past 3 decades, over the years the Brazilian sociopolitical and economic scenario has undergone significant structural changes, thus shaping up a society that no longer shares the same desires with that existing by the end of the 1980s.
As an example of this paradigm shift, one can refer to the swift growth of agribusiness which, over the last twenty years, has become the main driving force of the Gross Domestic Product, accounting for 1/3 of all wealth produced in the country, thus a prevailing driver of trade surplus.
Given this context, it should be noted that the development of any agricultural activity is strongly connected to the need for robust legal backing, given that the certainty it creates is key to the production and trade of agricultural and livestock products, inasmuch as the contracts entered into are based on trust and rely on several external factors for their accomplishment.
Moreover, this industry is intrinsically tied to the need for reliable legal guarantees concerning land issues, since uncertainty about possession or ownership of means of production may directly lead to decrease in investments and production. Among the many challenges faced by the industry, one has stood out in recent months: the demarcation of indigenous lands.
The debate on the establishment of a limitation for the demarcation of indigenous lands dates back to 2009, with the trial of the Raposa Serra do Sol reserve (Motion No. 3388-4), when Justice Ayres Brito proposed the adoption of a time frame based on the assumption that only the peoples who were occupying their lands until the date of enactment of the Constitution, October 05, 1988, could be entitled to the demarcation of their territories.
More than a decade after this trial, the Extraordinary Appeal RE No. 1017365/SC is pending review, which had its general repercussion recognized by the Federal Supreme Court in 2019, and was taken to the Full Court in 2021. In this case, the appeal filed by FUNAI (National Indigenous Peoples Foundation) seeks to resist the claim of repossession filed by the State of Santa Catarina in relation to the portion of the Ibirama La-Klãnõ Indigenous Land demarcated in 1996 and expanded in 2003 and which, according to the Federal Entity, allegedly belong to the state, having been legally sold to individuals in the 19th century.
The trial, resumed on June 07 and adjourned owing to Justice André Mendonça’s request to see the record, discusses the adoption of the thesis proposed in the 2009 trial: the constitutionality of the existence of a time frame for the demarcation of lands belonging to indigenous peoples. In his opinion, the rapporteur, Justice Edson Facchin, advocated for the position that there would be no limit to the demarcation, that is, there is no need for these peoples to be in possession of the area on the date of enactment of the Federal Constitution, namely October 05, 1988.
The position underlying the rapporteur’s opinion brings a number of problems regarding the demarcation of areas allegedly belonging to indigenous peoples.
Among these problems, it is important to note the high degree of difficulty in attesting, with a reasonable degree of certainty, whether, in the past, that human settlement had really been established in that place. This is because, according to ordinance No. 14/99 issued in 1996 by the Ministry of Justice, one of the requirements for the preparation of the Detailed Report on the Identification and Delimitation of Indigenous Lands – administrative proceeding prior to the demarcation – is the “research on the history of occupation of the indigenous land according to the memory of the concerned ethnic group,” that is, the preparation of an anthropological report takes into consideration cultural and historical aspects of the population in relation to the land, basing its conclusions on traditional records of that people, which is often done only on oral bases, and which, therefore, makes it imprecise to define whether there actually was a relationship of possession that once existed, especially when considering a period of 500 years.
In view of the uncertainty caused by the absence of objective parameters in the demarcation of new territories, it is also worth highlighting the argument proposed by Justice Gilmar Mendes while addressing the issue in 2014. His considerations in that trial gave rise to the Copacabana thesis that can be summed up by the following premise: considering the absence of a term for the recognition and demarcation of indigenous territories and, considering that these were the first inhabitants of the territory found in the year 1500, the entire territory could be recognized as indigenous land, even where occupied by the buildings of Atlântica Avenue in the neighborhood of Copacabana.
In other words, it is not at all reasonable to recognize the imprescriptibly of the right to claim and demarcate lands by indigenous peoples, otherwise, in a hypothetical but legally plausible scenario, any territory that, at any time and in any capacity, may have been occupied by indigenous peoples could be recognized as such, creating uncertainties regarding respect for the private ownership of estates already integrated into the domestic real estate market, as Justice Nunes Marques pointed out in an excerpt of his opinion at the trial session held on June 07.
Reviewing the issue from another aspect, it should also be noted that the lack of definition of limit for the demarcation of indigenous territories gives rise to other issues of a more intricate and serious nature, arising from the same critical point: the absolute lack of legal certainty for the establishment and consolidation of enterprises in the country, an issue that permeates not only the private sector at large, and agribusiness in particular, but also directly impacts the public sector as regards the contracting of basic infrastructure works, such as the construction of motorways, hydropower plants, ports, and railways.
This anomalous context contributes to the establishment of a scenario of uncertainties regarding the country’s development, restricting the domestic production capacity, since, as mentioned above, agribusiness – and not only it – depends on a series of conditions for its development, such as the existence of a reasonable degree of certainty regarding the legal status of the means of production and stability that ensures the return on long-term investments.
The existence of doubts or risks concerning the use of invested capital generates, as a consequence, a destabilization of the entire sector, leading to reduced investments, decreased production, and loss of competitiveness, which in turn lead to a number of consequences that directly impact the economy: reduced employment and income, inflation, etc., which, in turn, can be translated, albeit collaterally, into increased lawsuits, increased violence in the countryside, among others that end up discouraging investment in new rural enterprises.
When analyzing the issue from a strictly legal perspective, it should also be noted that the imprescriptibly of demarcation right breaches the tenet of equal protection, the basic foundation of the domestic legal system, since it allows a group of individuals to exercise a potestative right that extends indefinitely in time, which is not echoed in any of the civil law tenets provided for in our legislation.
Likewise, the possibility of unrestricted exercise of a right, even if provided for in the Constitution, as a duty of the state, the defense and preservation of the native peoples, would stand as an evident abuse, since the constitution ensures, with the status of an entrenched clause, the right to property. This property was mostly acquired legally, sometimes extending for dozens, if not hundreds of years, and it is not even reasonable to assume that an individual has to be penalized for a one-off mistake made by the State.
Therefore, the definitive trial of the general repercussion pertaining to this matter is imperative and must be treated with due caution, since its effects will be felt over countless decades and might limit or perhaps make unfeasible the economic and social progress of the country.
The establishment of a position that allows overcoming this controversy therefore should not be restricted to the temporal limitation for recognition and demarcation of indigenous territories, but, above all, to safeguard legal certainty, lending reliability to business relations as a necessary basis to guarantee national development.
Authors: Alex de Andrade Lira e Pedro Batistoti Boller
Available at: https://www.estadao.com.br/opiniao/espaco-aberto/o-urgente-julgamento-do-marco-temporal/
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