The Federal Supreme Court of Brazil on Thursday invalidated a legislative proposal 9-2 regarding the temporal boundaries for demarcating indigenous lands. The judges’ ruling runs contrary to the argument that the territory of indigenous peoples can only be demarcated if there is evidence of the community in question’s existence as of the promulgation date of the Federal Constitution, namely, October 5, 1988. The official court documents can be accessed here.
Those on the court who supported invalidating the legislative proposal included Ministers Edson Fachin, Alexandre de Moraes, Cristiano Zanin, Roberto Barroso, Dias Toffoli, Luiz Fux, Cármen Lúcia, Gilmar Mendes, and Rosa Weber. Conversely, Ministers Nunes Marques and André Mendonça voted to uphold the proposal.
The opposition to temporal limits was also shared by de Moraes, Toffoli, Fux, Mendes, and Weber who, in aligning with the rapporteur Fachin, cast their votes against the temporality-based thesis. Ministers Mendonça and Marques, on the other hand, voted for the implementation of a cutoff point determining the demarcation of indigenous territories.
Following the Supreme Court’s ruling, Marina Silva, Minister of Environment and Climate Change, referred to the annulment of the temporal framework thesis as an “act of justice.” In a media interview, Minister Silva described the court’s ruling on temporal demarcations as a significant move towards restoring justice and compensating for damages faced by Brazil’s indigenous communities. Read more on her statements here.
On Twitter, she wrote that the recent judgment in favor of indigenous peoples represents an important victory for environmental conservation, as indigenous communities play a pivotal role in protecting forests, biodiversity, water resources, and cultural diversity. This is due in part to the fact that they manage about 80% of the world’s forested areas.
Notably, in the week prior, the Senate had voted to expedite a legislative proposal establishing temporal limits in Brazilian legislation regarding land demarcation, in contrast to this latest court verdict. The proposal had previously been approved in the Chamber of Deputies and required residents to not only demonstrate presence in the specified territory as of 1988 but also validate their indigenous status.
The proposal is currently being reviewed by the Senate Committee on Constitution and Justice and must receive committee approval before it is sent to the Chamber of Deputies. A vote is tentatively set for September 27, 2023. To reach the plenary session, the proposal must be backed by 41 out of 81 senators. Despite the Supreme Court ruling parts of the bill dealing with temporal limits as unconstitutional, the decision does not obstruct legal approval and submission to President Luíz Inácio Lula da Silva for final sanction.
More insights about this development can be found here.