Representative of Republicans, PP and PL says he will not give up the Land Demarcation Law, while Apib defends suspension
The work of the Special Conciliation Commission appointed by the Minister of STF (Federal Supreme Court) Gilmar Mendes to discuss actions that deal with the time frame for demarcation of indigenous lands. The group will meet until December of this year to find a consensus on the topic, but the initial debates are expected to be marked by divergence among members.
This is because, while the Republican, PP and PL parties are trying to declare the constitutionality of the Temporal Framework Law (14.701/2023) in the STF, the APIB (Articulation of Indigenous Peoples) is against the thesis that determines that indigenous people would only have the right to the lands that were in their possession on October 5, 1988, the date of the promulgation of the Federal Constitution. Both have representatives on the committee and have claims against the consensus.
To the Poder360Rudy Maia Ferraz, lawyer for the parties that have the action in the Supreme Court for the validity of the Law, says that the hearing is a good opportunity to find a consensus among the participants, but that does not give up on the rule for land demarcation. At the same time, the entity defending indigenous peoples, with 6 nominees on the commission, has the demand that suspension the effects of current lawapproved by Congress in 2023.
The lawyer argues that they should be discussed at the hearing ways to implement the provisions of the Law.
“What we do not give up is the Law. What the Supreme Court can discuss, and I believe it will, is the implementation of the process of demarcation of indigenous lands, how this will happen in view of the current Law and the decision of the STF, what equation will have to be made”Rudy Maia told reporters. He also states that there is no “side A and side B”is that “both parties are victims of the process“.
On the other hand, the APIB says that the entity’s minimum requirement to participate in the negotiation is precisely the suspension of the Law and the resource analysis filed by the entity in the process.
According to Maurício Serpa França, legal coordinator of Apib and member of the committee, this should not be confused with the entity being against the consensus proposed by the STF, but positioning of the entity is that there is no way for indigenous peoples sit at a conciliation table “with a rope around his neck”.
“If APIB observes that there is a movement and a correlation of forces within the conciliation, which wants its presence there only to legitimize the process, the entity considers withdrawing”said França in an interview with Poder360.
For Nara Loureiro, a member of the Commission and a lawyer for the PDT, a party that also took legal action against provisions of the Temporal Framework Law, the positions of some members of the group are even “diametrically opposed”therefore, according to her, it is “difficult” that absolute agreement is reached on all claims.
Loureiro states that today’s institutional situation is that of a “run over” between the judicial and legislative solution, and that It is not possible to give up fundamental rightssuch as the original right to land, provided for in the Constitution.
“O that which is unconstitutional, that which is in disagreement with the constitutional system, that which is a fundamental right, that cannot be given up. That which is a fundamental right already achieved, cannot be given up either. The Constitution itself prevents this regression.”says Loureiro.
“When we think of a consensual solution, the objective is to seek an interpretation of the constitutional norm that allows infra-constitutional legal regulation without all the laws that Congress enacts being questioned, or the Supreme Court’s decisions regarding constitutionality being challenged by Congress”, declared to the Poder360. “Because in this specific case that is exactly what happened.”.
TIMEFRAME LAW
The law 14.701which provides for the demarcation, use and management of indigenous lands, was approved in 2023, in response to the Supreme Court’s decision that, shortly before, had removed the milestone.
The enactment came in December of the same year, after the veto override of the president Luiz Inácio Lula da Silva (PT) to some passages, such as those that dispense consultation with indigenous communities to carry out infrastructure works such as road networks, energy alternatives, roads, transport routes and communication networks on indigenous lands, as well as the actions of the Armed Forces and the Federal Police.
For the most part, it is the constitutionality of the parts vetoed by Lula that are being questioned in the Supreme Court.
The temporal framework thesis is defended by landowners and ruralists, who understand that the Law brings legal security to the country by guaranteeing land compensation to non-indigenous people, a mechanism that is also provided for in the thesis of general repercussion defined by the Supreme Court on the subject.
The justification is contested by Apib and other indigenous organizations that defend the cause of native peoples precisely because of the opposite argument, that of juridical insecurity.
“There is a situation of extreme conflict in several Brazilian states, such as Mato Grosso do Sul, Paraná, Rio Grande do Sul and Ceará. In our assessment, these conflicts are occurring because the current law has brought legal uncertainty. Much has been said that the time frame would bring legal certainty, but today Brazil is living in a legal limbo, with an understanding from the Supreme Court and a current law that contradicts and opposes points.”says Terena.
A CNA (Confederation of Agriculture and Livestock) will be represented at the hearing by Marcelo Bertoni, president of Famasul (Federation of Agriculture and Livestock of Mato Grosso do Sul). For him, the demarcation of lands will not solve all the problems created by the impasse. He said he believes that the way forward is to discuss a viable way to compensate producers who occupy lands claimed by indigenous people.
“There are parts that the time frame does not resolve”declares Bertoni. “If the Union made a mistake in selling this type of land, causing this injustice to the indigenous people, I cannot now simply remove producers without fair and prior compensation”.
According to the thesis approved by the STF, it was defined that non-indigenous people who occupied in good faith the territories to be demarcated as indigenous lands may be compensated, the amount of which must be paid by the Union and must include the full value of the land, in addition to changes made to the site. The Law determines that compensation must be given after proof and assessment carried out in an inspection by the competent federal agency.
According to Apib, compensation cannot be negotiated beyond what has already been defined by the Supreme Court. “Apib’s position is that we will not discuss the topic 1031 [do marco temporal]because it has already been, to some extent, decided. If we set a precedent of discussing, re-discussing everything that was decided there, we will enter into a question of extreme legal uncertainty for indigenous peoples”, says France.
Regarding the impasse, Rudy Maia says he expects the government to reach a resolution after the conciliation hearing. “The solution is based on the assumption that the Union assumes its responsibility within the process. The Union assumes the responsibility of implementing that demarcation, compensating in advance and fairly those potentially affected by the process.”.
COMMISSION FORMATION
In the dispatch, Gilmar Mendes states that the Brazilian Congress is the place “adequate” to promote political debates, but “it does not appear to have produced a result that has pacified the interests underlying the issue with the enactment of Law 14,701/2023”in view of the actions that question it filed with the Supreme Court.
The 1st meeting of the commission will be held this Monday (5th August), in a hybrid format, in the session room of the 2nd Chamber of the Supreme Federal Court, in Brasília.
The group will have the following members:
- 6 representatives appointed by Apib (Articulation of Indigenous Peoples);
- 6 by the National Congress (3 from the Chamber and 3 from the Senate);
- 4 by the federal government;
- 2 representatives of the States; and
- 1 representative of the municipalities
- 5 representatives appointed by the applicants of the actions analyzed by the Supreme Court on the subject.
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