Brazil’s Supreme Court Minister Edson Fachin cast his vote to reject the time frame thesis and in favor of indigenous peoples’ rights.
Fachin stated: « There is no greater legal certainty than complying with the Constitution, » rebutting the ruralist argument that demarcations without a « time frame » generate legal uncertainty.
In his vote, Fachin defends that indigenous constitutional rights cannot be set back, « since these rights are linked to the very condition of existence of these communities and their way of life. »
He rejects interpretations that try to equate indigenous ownership and civil ownership, as the time frame thesis does. « Indigenous lands », he says, « are broader than ‘a set of huts’; they comprise all the territory necessary for the existence of the peoples. »
He added that « Land for the indigenous people has no commercial value, as in the private sense of civil possession. It is a relationship of identity, which includes spirituality and existence, and it is possible to affirm that there is no indigenous community without land »
Fachin reinforces the sense of « exclusive usufruct », which the Bolsonaro government is trying so hard to subvert: it means the impossibility of granting, in any way, the riches of the soils, rivers and lakes to third parties outside the indigenous community.
Minister Fachin: « The constitutional protection of the original rights over the lands they traditionally occupy is independent of the existence of a time frame on October 5, 1988. »
Minister Fachin proposed correcting the thesis:
« The indigenous territorial rights are a fundamental right of the indigenous communities and they materialize in the original right on the lands they traditionally occupy, under the following assumptions:
I – demarcation consists of a declaratory procedure of the original territorial right to possession of lands traditionally occupied by the indigenous community;
II – traditional indigenous ownership is distinct from civil ownership, consisting in the occupation of lands inhabited on a permanent basis by the indigenous peoples, those used for their productive activities, those essential to the preservation of environmental resources necessary for their well-being…
III – the constitutional protection of the original rights over the lands they traditionally occupy does not depend on the existence of a time frame on October 5, 1988, as there is no basis for the establishment of any time frame;
IV – the constitutional protection of the original rights over the lands they traditionally occupy is independent of the configuration of the persistent dispossession as a physical conflict or persistent judicial controversy at the time of the promulgation of the Constitution;
V – the anthropological report carried out under the terms of Decree No. 1776/1996 is a fundamental element for demonstrating the traditionality of the occupation of a determined indigenous community, according to its uses, customs and traditions;
VI – the resizing of indigenous land is not prohibited in case of non-compliance with the elements contained in article 231 of the Constitution of the Republic, by means of a demarcation procedure under the terms of the governing rules;
VII – the lands of traditional indigenous occupation are permanently owned by the community, with the indigenous peoples having the exclusive use of the riches of the soil, rivers and lakes existing in them;
VIII – lands of traditional indigenous occupation, as public lands, are inalienable, unavailable and the rights over them are imprescriptible;
IX – are null and void, with no legal effects, the acts that have as their object the possession, domain or occupation of lands of traditional indigenous occupation, or the exploitation of the riches of the soil, rivers and lakes existing in them…
X – there is compatibility between the traditional occupation of indigenous lands and the constitutional protection of the environment. »
Indigenous lawyers Samara Pataxó, Luiz Eloy Terena and Ivo Aureliano Makuxi summarized the vote on Wednesday, the 15th:
« Nunes Marques vote, divergent from Fachin’s vote, reproduced the arguments already used and reinforced by those who cowardly cling to the ‘time frame’ to continue their robbery of indigenous lands and lives!
Repeating arguments from the most backward sectors of agribusiness, like a copy and paste of the ruralists’ petitions, Minister Nunes Marques presented his vote in favor of the thesis of the ‘time frame’ for the demarcation of indigenous lands, saying that without it, ‘national sovereignty’ and ‘social pacification’ would be at risk.
Nunes Marques recognizes that indigenous law is imprescriptible, but applies the ‘time frame’, giving amnesty for crimes perpetrated against indigenous peoples – A monstrous vote!
We have been resisting for over 500 years.
‘They ripped off our leaves
broke our branches
cut our trunks
But they forgot to pull out our roots’
And today we are here fighting for life. They still don’t understand it.
But it is true that indigenous peoples are in danger of disappearing!
Please remain attentive and mobilized! NO to the Time Frame Trick! »
« Indigenous Rights are at risk in Brazil, as never before in history. Indigenous Peoples are now being persecuted in our country by a president who articulates the total dismantling of our Rights. » – Emerson Pataxó
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