Supreme Court set to rule in favor of broader indigenous territorial rights

Indigenous leaders follow the Supreme Court trial on territorial land rights. Photo: Carlos Moura/SCO/STF

In what is set to be a major victory for indigenous rights and a defeat for Big Agro, the Supreme Court reached a majority on Thursday to overrule the so-called “time-frame argument.”

Indigenous groups say their land rights must be granted based on their ancestral connection to a given territory. Agribusiness lobbies, meanwhile, have sought to define October 5, 1988 — the date the Brazilian Constitution was enacted — as the cut-off point for land rights. According to this understanding, if an indigenous group could not prove that it was occupying or contesting said land on that date, it would not have a territorial claim.

Indigenous leaders have rejected the time-frame argument because several communities were displaced from their lands while the Constitution was being drawn up. Also, providing concrete evidence of occupation of a piece of land 35 years in the past is not straightforward, especially for poor and sometimes uncontacted communities.

The time-frame argument was first introduced in the Supreme Court in 2008 by former Justice Carlos Ayres Britto during a trial over the Raposa Serra do Sol indigenous land in Roraima, Brazil’s northernmost state — an area marked by conflict between indigenous communities and rice farmers.

Former Justice Britto argued that the indigenous rights to Raposa Serra do Sol could not be disputed, as it was clear that they already lived there when the Constitution entered into force. The Constitution protects the rights of indigenous peoples over lands “they traditionally occupy,” with a stress on the verb’s present tense.

Although this argument was originally used to benefit indigenous peoples, rural lobbies and politicians linked to Big Agro have since used it for the opposite goal.

Former far-right President Jair Bolsonaro was one of the argument’s biggest defenders. His two Supreme Court appointees, Kassio Nunes Marques and André Mendonça, sided with the minority to uphold it.

Records of Brazil’s Constituent Assembly in the 1980s show that those who put the charter together (many of whom are still alive and hold public office today) explicitly debated the point of indigenous land occupation.

The wording of the draft was changed at the request of a conservative senator in order not to define something similar to a time frame or cut-off point, precisely to defend the rights of indigenous peoples to land that they perhaps did not occupy at the time of the assembly, but were entitled to.

The Supreme Court has not yet concluded the case. Pro-agro lawmakers in the Senate are rushing to get a bill approved on the matter to uphold the time-frame argument, which has already been approved in the House.

For indigenous organizations, simply striking down the time-frame argument is not enough. Apib, one such organization, raised concerns over the vote issued by Justice José Antonio Dias Toffoli, who raised discussions over the economic exploitation of indigenous lands.

“We understand that this is not the time to have this debate; the way he did it, to some extent, makes the exclusive usufruct of indigenous peoples more flexible,” said Maurício Terena, Apib’s legal coordinator, in a statement.