Milestone thesis

Indigenous people in front of the A Justiça statue protesting on the day of the Raposa Serra do Sol judgment by the Supreme Federal Court of Brazil, 19 March 2009.

Judgment in the Raposa Serra do Sol case; starting on page 41, point 78, the reporting minister Carlos Ayres Britto explains the regulatory frameworks of the demarcation process, starting with the "time frame of occupation".

The milestone thesis (Portuguese: Marco temporal das terras indígenas), also known as the time marker or Copacabana thesis, is a legal thesis constructed by a case law based on the judgment of the Raposa Serra do Sol case by the Supreme Federal Court (STF) of Brazil in 2009. In it, the Supreme Court decided that the article of the Constitution which guarantees the usufruct of lands traditionally occupied by Brazilian indigenous people should be interpreted by counting only the lands in possession on 5 October 1988, the date of promulgation of the Constitution.

History

The name "Copacabana thesis" comes from a comment by minister Gilmar Mendes in a 2014 trial that reaffirmed the time frame: "Sure, Copacabana certainly had Indians, at some point; Avenida Atlântica was certainly populated by Indians. Adopting the thesis that is stated here in this opinion, we can rescue these apartments in Copacabana, without a doubt, because certainly, at some point, indigenous ownership will be achieved".

Subsequently, in a motion for clarification, the STF ended up clarifying that the conditions only applied to that specific case. However, during Michel Temer's government, based on the opinion of the Attorney General's Office (AGU), the precedent of Raposa Serra do Sol was understood as mandatory for all processes of demarcation of indigenous lands.

In 2019, the issue resurfaced with the judgment of Extraordinary Appeal no. 1.017.365, a case in which the recognition of an area claimed by indigenous people of the Xoclengues people, in the Sassafras Biological Reserve, in Santa Catarina, was in dispute.

Decisions and progress

The first vote in the trial, given by judge rapporteur Edson Fachin, was against the establishment of a landmark. The minister said that Raposa Serra do Sol's decision, instead of pacifying the issue, paralyzed demarcations and intensified conflicts; he also declared that "to say that Raposa Serra do Sol is a precedent for the entire indigenous issue is to impede other indigenous ethnic groups."

The second vote was from Minister Nunes Marques, who was in favor of the thesis: "A theory that argues that land limits are subject to a permanent process of recovery of possession due to ancestral expropriation opens space for conflicts of all kinds without there being a horizon of pacification".

The trial was suspended on 15 September 2021, when Minister Alexandre de Moraes requested a review of the process. On 20 September 2023, the STF resumed the trial and, the following day, formed a majority to overturn the time frame.

Reception

The STF recognized "general repercussions" for the case, which means that what is decided will set a precedent for the entire Brazilian judiciary. By decision of the minister reporting the case, Edson Fachin, all processes on demarcation of indigenous lands were suspended until the end of the COVID-19 pandemic or until the final judgment of an extraordinary appeal.

The AGU defended the thesis, which, according to attorney general Bruno Bianco, built "beacons and safeguards for the promotion of indigenous rights and for guaranteeing the regularity of the demarcation of their lands." The Public Prosecutor's Office (MPF) expressed its opposition to the landmark (i. e., Public Prosecutor's Office and Attorney General's Office disagreed).

Attorney General of the Republic Augusto Aras declared that "for reasons of legal security, the identification and delimitation of lands traditionally occupied by Indians must be done in the specific case, applying to each fact the constitutional norm in force at the time".

Former president Jair Bolsonaro also spoke out in favor of the framework, saying that, if the STF decides to modify it, it would be "a severe blow to our agribusiness, with almost catastrophic internal repercussions, but also abroad."

The Observatório do Clima, a Brazilian environmental regulatory body, dubbed 2023 legislation upholding the theory as the "Indigenous genocide law". The law would allow more industrial activities to occur on Indigenous lands and thus increase deforestation. Many amendments vetoes proposed by the Brazilian president Luiz Inácio Lula da Silva were overriden by the National Congress of Brazil.